PART I
MOST IMPORTANT TERMS AND CONDITIONS
This document/agreement/understanding is a computer-generated electronic record published in terms of Rule 3 of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (amended from time to time) read with Information Technology Act, 2000 (amended from time to time) and does not require any physical or digital signatures.
These terms including annexures and links herein, apply to your use of this website and the Ezetap Solution (as defined below) owned and operated by Ezetap Mobile Solutions Private Limited ( ‘’Ezetap’’ ), a company incorporated under the provisions of the Companies Act, 1956 and having its registered office at 153, 9th Main Rd, Sector 6, HSR Layout, Bengaluru, Karnataka 560102. “We”, “Us”, “Our” - shall refer to Ezetap. “You”, “Yours”, “Yourself”, “Merchant” - refers to any non-registered individual or corporate body, registered user of Ezetap, including but not limited to Ezetao merchants. “ Applicable Laws ” shall mean (i) any law, statute, rule, regulation, order, circular, decree, directive, judgment, decision or other similar mandate of any applicable central, national, state or local governmental/regulatory Authority having competent jurisdiction and force of law over, or applicable to You, us or the subject matter in question, as may be amended from time to time, and (ii) shall without limitation include any notification, circular, directive or other similar instruction issued by the ‘Financial Sector Regulators’ including but not limited to the Reserve Bank of India (RBI) and/or rules, regulations, roles, responsibilities and processes as defined by NPCI on their website www.npci.org.in.
1. DEFINITIONS AND INTERPRETATION
Definitions: In this Agreement, the capitalised terms listed below shall have the meaning as ascribed herein.
1.1.1 “Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
1.1.2 “Authorised Representative” means directors, employees, auditors, lawyers, representatives or agents of the Receiving Party to whom, Confidential Information may be disclosed by the Receiving Party.
1.1.3 “Agreement” or “Master Services Agreement” means this General Terms of Use along with Merchant Acquiring Form (MAF) or Service Order Forms (“SOF”) hereto, executed between Ezetap and the Merchant and as amended from time to time. For the purpose of giving full and proper effect to this Agreement and the SOF, both shall be read together and construed harmoniously. The terms of SOF shall prevail in the event of any inconsistencies with the Agreement.
1.1.4 “Applicable Laws” means any law, statute, rule, regulation, order, circular, decree, directive, judgment, decision or other similar mandate of any applicable central, national, state or local Governmental/Regulatory Authority having competent jurisdiction and force of law over, or application to the Party or subject matter in question, as may be amended from time to time. Applicable Laws shall without limitation include any notification, circular, directive or other similar instruction issued by the ‘Financial Sector Regulators’ including but not limited to the Reserve Bank of India. Applicable Laws also include rules, regulations, roles, responsibilities and processes as defined by NPCI on their website www.npci.org.in.
1.1.5 “Claims” means any claim asserted against the Merchant, that is paid or payable to a third party pursuant to an order of a court of law, judicial and quasi-judicial authorities
1.1.6 “Confidential Information” means any information, data or document shared or disclosed by the Disclosing Party to the Receiving Party. Confidential Information may or may not be specifically marked and designated as ‘confidential’. Confidential Information shall include, but shall not be limited to, trade secrets, Intellectual Property, formulae, processes, algorithms, codes, data, ideas, concepts, strategies, inventions, data, network configurations, system architecture, designs, flow charts, drawings, proprietary information, business and marketing plans, financial and operational information, material or data relating to the current and /or future business and operations of the Disclosing Party. Analysis, compilations, studies, summaries, extracts or other documentation prepared by the Receiving Party based on information disclosed by the Disclosing Party shall be deemed to be Confidential Information of the Disclosing Party. Confidential Information shall also include (a) information disclosed to the Receiving Party by third parties on behalf of the Disclosing Party; and (b) Personal Data of Customers of the Merchant.
1.1.7 “Customer” means the Merchant’s customer who will be making payments to the Merchant in consideration for goods / services availed of by the customer from the Merchant
1.1.8 “Disclosing Party” means the Party (either Ezetap or Merchant) which discloses Confidential Information to the other Party.
1.1.9 “Device” means the point of sale (PoS) or mobile point of sale (mPoS) devices on which the Ezetap Solution is enabled.
1.1.10 “Effective Date” means the date from which the Merchant starts using the Services to the Merchant.
1.1.11 “End User” means the user of the Ezetap Solution.
1.1.12 “Ezetap Payment Services” means the cloud-based software solution provided by Ezetap to facilitate the process of payments. which includes the ability to process payments from credit and debit cards and the ability to deposit or withdraw cash using a mobile device.
1.1.13 “Ezetap Premium Services” means the additional features enabled in the cloud platform and provided by Ezetap to support value-added services such as deliveries, collections, or other services supplied by Ezetap or its partners.
1.1.14 “Ezetap SDK” means the Software Development Kit, which involves customization services provided by Ezetap to third party development entities for the purpose of integrating and using the Ezetap Solution in mobile applications not supplied by Ezetap.
1.1.15 “Ezetap Solution” means the end-to-end services (involving cloud-based platform, Device (if selected), payment processing, customer support) provided by Ezetap to the Merchant as described in Annexure A.
1.1.16 “Facility Providers” means banks, financial institutions, NPCI, and technology service providers, facilitating the provisions of Services or any part thereof, including but not limited to (a) acquiring banks, (b) banks issuing credit cards, debit cards, prepaid instruments and accounts, and (c) card payment networks.
1.1.17 “Fees” shall bear the meaning ascribed to it in Clause 4.1
1.1.18 “Force Majeure Event” means any event, not within the reasonable control of the Party affected, which that Party is unable to prevent, avoid or remove by the use of reasonable diligence. Force Majeure Event shall, to the extent such events and circumstances or their consequences satisfy the requirements mentioned hereinabove, comprise the following events and circumstances, namely: war, hostilities, invasion, armed conflict, act of foreign enemy, embargoes, moratoriums, any change in regulations resulting in practical impossibility to perform obligations, outages, downtimes and system failures experienced by a Facility Provider, riots, insurrection, prolonged labour stoppages, acts of terrorism, pandemic, sabotage, nuclear explosion, earthquakes, fires, typhoons, storms and other natural catastrophes.
2. Services
2.1 Merchant shall avail the Services and Devices subject to applicable SOF. Subject to Merchant’s compliance with this Agreement and the applicable SOF(s) and solely during the Term, Merchant agrees that Ezetap shall provide the Services and the Devices to the Merchant for its legitimate, bonafide & legal business activities only. The Merchant agrees that Ezetap reserves the right to update the Services and the Devices from time to time.
2.2 Merchant agrees that each Device ordered by Merchant shall have a minimum period of usage of 36 (thirty-six) months, also referred to as the “Lock-in period” commencing from the date of deployment of such Device at the Merchant location. It is to be clarified that in the event the Merchant deactivates or returns a particular Device or set of Devices, before the expiry of the Lock-in period, Merchant shall make a one-time payment to Ezetap of an amount equivalent to the remaining rental or fees (as applicable) for the unexpired duration of the Lock-in Period for such Devices. It is also clarified that, if a Device is replaced by Ezetap for any reason, the Lock-in period for such replaced Device Stand shall be 36 (thirty-six) months from date of replacement and the Lock-in period applies irrespective of a non-transacting TID being in place. The Devices shall be rented to the Merchant as per the terms and conditions set out under Part B of the SOF.
2.3 The Merchant acknowledges and agrees that all references to “Ezetap” shall mean the Ezetap Affiliate for SOFs which are entered into by a Ezetap Affiliate for provision of the Service therein. The Merchant further agrees that any claims relating to or arising from the SOF shall be brought solely against such Ezetap Affiliates. Ezetap shall have no liability in respect of the same.
3. PAYMENT
1.1 In consideration of provision of the Ezetap Solution, payment for the same shall be made in accordance with Merchant Acquiring Form or any Addenda affixed to this Agreement. The Fees shall be charged monthly through valid E NACH Mandate provided by the Merchant and will be subject to such taxes as may be applicable from time to time under the Applicable Law. It is also agreed that any statutory variation with respect to applicable taxes during the subsistence of this Agreement shall be borne by the Merchant.
1.2 All the prices quoted are exclusive of taxes.
1.3 Notwithstanding anything else set out under this Agreement, the Merchant agrees and confirms that Ezetap shall have the right to set-off by whatever means the whole or any part of the Merchant’s liability to Ezetap under this Agreement (or any other agreement between the Merchant and Ezetap or its Affiliates) against any funds, sums or other amounts credited to, or owing to, Merchant under this Agreement (or any other agreement between the Merchant and Ezetap or its Affiliates). The Merchant agrees that Ezetap may exercise the right of set-off at any time, without prior notice to the Merchant. In the event such set-off does not fully reimburse Ezetap for the liability owed, the Merchant shall pay Ezetap a sum equal to any shortfall thereof.
1.4 In the event the Merchant opts to avail any Service that requires settlement of transaction amount by Ezetap to Merchant, Ezetap shall settle on T+1 basis for Wallet and debit card EMI services and T+3 basis for BNPL, where T is the date of transaction. In such cases, Ezetap shall deduct the applicable Fees payable by the Merchant for availing the Service.
1.5 Any outstanding amounts payable by Ezetap (in relation to the Ezetap Solution or part thereof delivered under the terms of this Agreement) or any discrepancies in the invoices must be advised by Merchant in writing to Ezetap at its registered office marked to the attention of Ezetap within 30 (thirty) days from the date that such payment is invoiced.
1.6 In the event of any delay in payment of any amounts to Ezetap beyond the due date of payment, Ezetap at its sole discretion may opt one or more of the following remedies:
a. Charge a late payment interest at the rate of 15% per annum on the due amount;
b. Suspend some or all of the service(s) it provides under this Agreement, until payment of the due amount. Consequently, it is agreed between the parties that Ezetap shall not be liable for any loss, damages, claims including third party claims, which may result owing to suspension of some or all of services by Ezetap in case of non-payment or delayed payment.
c. Set off the due amount from the Valid Charges payable to the Merchant.
d. Debit the outstanding amount through a valid E NACH mandate provided by the Merchant.
1.7 The Parties shall be responsible for compliance and payment of all taxes, duties, levies, cess, surcharge or any other charges that may be applicable on the Party under the Applicable Law, and in connection of this Agreement.
4. REPRESENTATIONS AND WARRANTIES
4. 1 Each Party represents to the other Party that:
4.1.1 It is duly incorporated or established under the laws of its jurisdiction and has all requisite power and authority to own and operate its business.
4.1.2 It has the full legal capacity and power to enter into, exercise its rights under, and perform its obligations under this Agreement.
4.1.3 The execution, delivery and performance of this Agreement has been authorized by all necessary corporate and organizational actions including but not limited to board resolution and/or power of attorney and/or letter of authority to bind the Merchant’s business and company/ firm/ organization.
4.1.4 It has duly executed this Agreement, which forms a legal, valid and binding obligation, enforceable in accordance with its terms.
4.2 Ezetap hereby warrants that:
4.2.1 Ezetap is and shall remain Payment Card Industry Data Security Standard (“PCI DSS”) certified during the performance of this Agreement.
4.2.2 The Services to be rendered do not infringe any third party’s intellectual property rights.
4.3 Merchant hereby represents, warrants and covenants that:
4.3.1 It shall implement, observe and comply with applicable requirements prescribed under Applicable Law including but not limited to the provisions of the, Prevention of Money Laundering Act, 2002, RBI Master Direction - Know Your Customer (KYC), 2016, Information Technology Act, 2000 and the corresponding rules made thereunder required for its business and, including without limitation, for (i) procuring or obtaining relevant registrations, licenses approvals, permits and certificates etc.; (ii) paying and remitting taxes, levies, fees, contributions, etc. Merchant hereby indemnifies Ezetap from all liabilities arising out of Merchant’s non-compliance with Applicable Laws.
4.3.2 It does not, and shall not, engage in any activity related to virtual currency, cryptocurrency and other crypto products (like non-fungible tokens or NFTs), prohibited investments for commercial gain or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world. Any breach of this provision shall be subject to immediate suspension or termination of any or all Services, at Ezetap’s sole discretion, and the Merchant shall be liable to indemnify Ezetap from the Losses arising from such breach.
4.3.3 Its use of the Services and sale of its products/services are solely for its own bona fide business activities, which are in compliance with the Applicable Laws and also the guidelines issued from time to time by the Facility Providers. It is further clarified that the Services shall not be used for any other purpose and/or for illegitimate and illegal purposes.
4.3.4 It will only use the Services for those activities which the Merchant registered for when entering into this Agreement as reflected and as set out in the onboarding form filled by the Merchant, or as otherwise approved in writing by Ezetap from time to time.
4.3.5 It shall not resell or assign the Services, in whole or in part, or otherwise allow the use of the Services by any third parties or its Affiliates.
4.3.6 Its use of Services does not facilitate any activity which is unlawful, illegal, unauthorised, or which is carried on with an intent to defraud, or is likely to result in unjust enrichment and/or unlawful gain of the Merchant or any third parties, including its Affiliates.
4.3.7 Its use of Services does not facilitate the offer, sale or purchase of prohibited products and/or services enumerated in Part II of this Agreement, as may be updated from time to time.
5. RESPONSIBILITIES/ OBLIGATIONS OF MERCHANT
5.1 The Merchant agrees and covenants that before the commencement of any Service under this Agreement, it shall provide the necessary documents (as determined in Ezetap’s sole discretion) to enable Ezetap to conduct the due diligence in respect of inter alia the Merchant and its business / activities. Ezetap shall have the right to share the KYC documents (or the information therein) and other related documents with the Facility Providers or Governmental Authorities or legal enforcement agencies, as required under the Applicable Laws. The Merchant expressly grants consent to Ezetap to rely on the KYC documents provided by the Merchant for providing Services. The Merchant further acknowledges and agrees that Ezetap reserves the right at all times to monitor, review, retain and/or disclose any information in relation to the Services as necessary pursuant to satisfy any Applicable Laws, legal process or governmental request.
5.2 During the Term, Ezetap shall have the right to demand that the Merchant provides any (i) additional KYC related documents and /or (ii) any KYC related or other documents of the Customers of the Merchant or invoices, in its sole discretion and /or as per the Applicable Laws or pursuant to requests from Governmental Authorities or Facility Providers. The Merchant’s failure to submit the KYC documents when requisitioned shall entitle Ezetap to suspend the Services and/or stop settlement of monies (as applicable) until the Merchant submits such KYC documents to the sole satisfaction of Ezetap.
5.3 As of the date of this Agreement and throughout the Term, the Merchant declares that the Merchant, its Affiliates and/ or its Beneficial Owner are not a Politically Exposed Person. The Merchant shall forthwith inform Ezetap in writing if this declaration becomes untrue during any period of the Term. Capitalised terms used in this Clause 6.3 but not defined in the Agreement shall have the meaning ascribed to them in the extant Master Directions- Know Your Customer (KYC) issued by the Reserve Bank of India.
5.4 The Merchant represents and warrants that it holds an informed consent of its Customers to share Customer’s confidential information with Ezetap and its Affiliates in connection with the Services and for further sharing with the Regulatory Authorities as and when demanded under Applicable Laws, for the purposes of transaction tracking, fraud prevention. Further, the Merchant confirms that it has a valid consent from its Customers under its Privacy Policy or otherwise to enable Ezetap and its Affiliates to share the Customer’s confidential information with Regulatory and Enforcement Authorities for enquiries related to fraud, money laundering etc., and for compliance with Section 91 CrPC Notices.
5.5 The Merchant acknowledges that the Services are of complex nature and require the intervention and assistance of a number of parties including the Facility Providers. The Merchant acknowledges and agrees that Ezetap shall only be liable for acts or omissions which are solely and directly attributable to Ezetap.
5.6 The Parties agree that Ezetap shall not be responsible for any delivery, after-sales service, payment, invoicing or collection, Customer enquiries (not limited to sales enquiries), technical support maintenance services and/or any other obligations or services relating to or in respect of the Merchant’s products or services. Such obligations shall be the sole responsibility of the Merchant. Merchant shall indemnify Ezetap against any claim arising from such services or obligations and shall bear any and all expenses and/or costs relating thereto.
5.7 Merchant shall not (whether online or otherwise): (i) describe itself as an agent or representative of Ezetap or the Facility Provider; (ii) represent that it has any rights to offer any products or services offered by Ezetap or the Facility Provider; and (iii) make any representations to Customer or any third party or give any warranties which may require Ezetap or Facility Provider to undertake to or be liable for, whether directly or indirectly, any obligation and/or responsibility to Customer or any third party.
5.8 Merchant shall be responsible to do reconciliation on a daily basis for all the transactions processed. In case of discrepancies, Merchant shall report to Ezetap regarding such discrepancy within three (3) days. Ezetap shall not be liable for any reconciliation issue if the same is highlighted by the Merchant to Ezetap after three (3)) working days from the transaction date.
5.9 The Merchant agrees and acknowledges that all risks associated with the sale and delivery of the products and/or services which are provided by the Merchant to its Customers shall be solely that of the Merchant and Ezetap shall have no liability thereof, in any manner whatsoever. Any and all disputes regarding the quality, merchantability, non-delivery and delay in delivery of the products and/or services offered for sale by the Merchant shall be resolved directly between the Merchant and the Customer without making Service Provider a party to such disputes, in any manner whatsoever.
5.10 Notwithstanding anything to the contrary, Ezetap shall have the right to immediately suspend Services and settlement of any monies or payments without any liability to the Merchant, to the extent applicable, in the event of the following:
5.10.1 The Merchant breaches any clause of this Agreement or any other agreement it may have with Ezetap.
5.10.2 Merchant facilitates any transaction which is unlawful or in contravention with Clause 5.3.4 or the Merchant’s breach of Clause 5.3.7 and Part II.
5.10.3 Ezetap receives instructions from Facility Providers or Governmental Authorities or law enforcement agencies to either suspend the Services, or part thereof, or directs to suspend the Services or part thereof, regardless of whether there is pending investigation/enquiry into the alleged illegal/unlawful activities of the Merchant.
5.10.4 The Merchant’s products/services infringe, or are suspected of infringing, intellectual property rights, copyrightable works, patented inventions, trademarks and trade secrets, or the Merchant is suspected of selling counterfeit and/or knock-off goods.
5.10.5 Merchant uses the Services for any transactions which have a high-risk score as per Ezetap’s internal fraud assessment tools and other policies.
5.10.6 Ezetap is of the opinion that there are suspicious circumstances surrounding the Merchant’s activities.
5.10.7 Ezetap is of the opinion that there are pending, anticipated, or excessive disputes, refunds, or reversals relating to the Merchant’s use of Services.
5.10.8 The Merchant materially changes the type of the products/ services provided to end Customers and as declared on the onboarding form, without obtaining Ezetap’s prior written permission to use the Services for the new or changed types of services/ products, or it is discovered by Ezetap that the Merchant provided substantially misleading and/or false information about the Merchant products/ services as part of the onboarding activities.
5.10.9 Ezetap in its sole discretion determines that the Merchant’s activities expose Ezetap to risks which are unacceptable to Ezetap.
5.10.10 Ezetap in its sole discretion is required to do so due to regulatory changes impacting the Services.
6. AUDIT AND INSPECTION
Merchant shall assist Ezetap in furnishing to its auditors, the Facility Providers, Governmental Authorities, or law enforcement agencies, forthwith upon request from time to time, relevant books, the original copy /copies of proof of transactions, invoices or other records of Merchant, including pertaining to any order placed by the Customers. Merchant shall retain records relating to Transactions for a period of 10 (ten) years or as per the requirements under Applicable Laws, whichever is higher, from the relevant date of the order placed on the Merchant’s site. Ezetap, Facility Providers, Governmental Agencies or law enforcement agencies shall be entitled to audit and inspect the records and other data including but not limited to the Customer’s orders at any time whatsoever and without any prior notice.
7. INTELLECTUAL PROPERTY
7.1 Each Party shall own all rights, title, and interests in its Intellectual Property.
7.2 All Intellectual Property (a) related to the Services contemplated under this Agreement, (b) Ezetap Solution (i) pre-existing; and/or (ii) conceived, generated, derived, produced or reduced to practice, by Ezetap or any of its Affiliates, as a result of the Services performed by Ezetap or such Affiliate shall be and shall remain the exclusive property of Ezetap or such Affiliate. For the avoidance of any doubt, Intellectual Property created by Ezetap or its Affiliate in the course of undertaking its duties and obligations under or during the Term of this Agreement shall be owned by Ezetap (or the Affiliate) unless otherwise stated in writing.
7.3 Ezetap hereby only grants to Merchant a limited license, for the Term, a non-exclusive, non-transferable, non-assignable and revocable right to use Ezetap Solution, secret keys, and other software which relates to integration with the Services. The Merchant shall in no event: (i) provide access to any third party to the foregoing, and (ii) remain responsible for any unauthorised access or use of the same by any third party.
7.4 Each Party owns all rights, title, and interest in its product and service names, logos, and registered or unregistered trademarks (collectively, “Marks”). Merchant hereby grants Ezetap a limited license to use, reproduce, publish, and use the Merchant ’s Marks to identify Merchant as a user of the Service. By way of example, use includes, without limitation, response to RFPs / bids, testimonials, websites, marketing materials, and press releases/earnings announcements.
7.5 The Merchant shall not, and shall not permit a third party to, reverse engineer, decompile, disassemble or otherwise attempt to learn, access or use the source code composed in the Services.
8 . CONFIDENTIALITY
8.1 The Receiving Party shall itself and through its, Authorised Representatives keep the Confidential Information confidential.
8.2 Disclosure to the Authorised Representative: The Receiving Party shall have the right to disclose the Confidential Information to its the Authorised Representative, strictly on need-to-know basis.
8.2.1 In the event Confidential Information is disclosed to the Authorised Representative, the Receiving Party shall ensure that the Authorised Representative is under confidentiality obligations equivalent or stricter than the terms of this Agreement.
8.2.2 The Receiving Party shall ensure that all obligations on such Authorised Representative are strictly enforced and shall also remain responsible for the conduct of such Authorised Representative in terms of the Confidential Information.
8.2.3 The Receiving Party shall ensure that the Authorised Representative does not disclose Confidential Information to any third party, except as provided in Clause 9.3.
8.2.4 The Receiving Party shall be solely liable for any breach of confidentiality of Confidential Information by the Authorised Representative.
8.2.5 The Receiving Party shall immediately notify the Disclosing Party of any actual or potential breach of this Clause. Each Party shall, reasonably, co-operate with the other Party in any investigation, prosecution, litigation or other action related to the Confidential Information.
8.3 Exclusions: Obligations under this Agreement will not apply to Confidential Information which:
8.3.1 is disclosed to the Receiving Party by a third party without any confidentiality obligation;
8.3.2 is expressly authorized in writing by the Disclosing Party;
8.3.3 is in the public domain or becomes part of the public domain through no omission by the Receiving Party or the Authorised Representative;
8.3.4 is required by Applicable Laws, court order or legally binding instructions of Facility Provider, Governmental Authority & law enforcement agencies,
8.3.5 is, at any time, developed independently by the Receiving Party, as maybe evidenced by written records; and/ or
8.3.6 was known to the Receiving Party prior to disclosure, and as may be evidenced by written records.
8.4 Injunctive relief: Parties understand that monetary damages may be an inadequate compensation to the Disclosing Party in the event the Receiving Party breaches any provision of this Clause of the Agreement. Therefore, the Parties agree that in the event of a breach or threatened breach of confidentiality, the Disclosing Party shall be entitled to seek specific performance and injunctive or other equitable relief as a remedy for any such breach or anticipated breach. Provided however that aforesaid remedy shall not limit rights of the Disclosing Party under Applicable Laws.
8.5 Subject to its obligations under Applicable Laws, upon termination or expiration of the Agreement, the Receiving Party shall promptly return all the Confidential Information to the Disclosing Party. The Receiving Party may retain a copy of the Disclosing Party’s Confidential Information for compliance of its obligations pursuant to Applicable Laws.
9. ANTI BRIBERY
Each Party agrees to comply with all applicable anti-bribery and anti-corruption laws which prohibit their officials, representatives, agents or any other person associated with or acting on behalf of such Party from giving, offering, promising to offer, receiving/ accepting or acting in any other manner so as to induce a payment, gift, hospitality or anything else of value (either directly or indirectly) whether from within the country or from abroad to government officials, publics servants, regulatory bodies, judicial authorities, persons in positions of authority, elected or contesting electoral candidates, political parties or office bearers thereof or any other third party or person in order to obtain an improper commercial/ business advantage of any kind. Government officials include any government employee, candidate for public office, an employee of government - owned or government – controlled companies, public international organisations and political parties. Each Party also agrees not to give, offer, pay, promise or authorise to give or pay, directly, indirectly or through any other Person, anything of value to anybody for the purpose of inducing or rewarding any favourable action or influencing any decision in favour of such Party.
10. OFAC
The Merchant undertakes that it shall all times during the Term, comply with the mandates of OFAC and agrees that neither the Merchant nor any of its Affiliates has not directly or indirectly lent, contributed or otherwise made available funds to any third parties, Affiliates, joint venture partners or any other person or entity for the purpose of financing the activities of any person currently subject to the OFAC sanction list.
11. INDEMNITY
EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS STATED IN THE AGREEMENT, THE SERVICES ARE PROVIDED ON “AS IS” BASIS. MERCHANT ACKNOWLEDGES THAT EZETAP DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR FIT FOR SPECIFIC BUSINESS PURPOSES OF THE MERCHANT.
12. TERM & TERMINATION
12.1 This Agreement shall be deemed effective as of the Effective Date and shall continue through the Term. Services commence on the start date specified in each SOF or the Merchant’s use of the Services, whichever is earlier, and shall continue until the Agreement or the applicable SOF is terminated by either Party in accordance with the terms of this Agreement.
12.2 Either Party may terminate this Agreement or a specific SOF in the event that:
12.2.1 Such other Party breaches this Agreement and does not cure such breach within fifteen (15) days of such notice.
12.2.2 Immediately in the event the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.2.3 Ezetap may terminate this Agreement or a specific SOF (i) by thirty (30) days written notice to the Merchant, or (ii) immediately if Ezetap, in its sole discretion, determines that the Merchant’s activities reflect negatively on the brand or reputation of Ezetap or the Facility Providers.
12.3 In the event the Agreement or a particular SOF is terminated, the following shall be the consequences:
12.3.1 Subject to the terms of this Agreement, all or any sums and charges payable under this Agreement or the SOF and which are unpaid at the effective date of termination shall forthwith become due and payable by the Merchant.
12.3.2 The termination of one or more SOFs shall not impact the other subsisting SOFs.
12.3.3 All subsisting SOFs shall stand terminated if the Agreement is terminated.
12.3.4 Unless otherwise agreed to between the Parties, if certain SOFs subsist at the time of termination of the Agreement, the Agreement shall automatically be deemed to have extended till the expiry of the said SOFs.
12.3.5 The Merchant agrees that it shall be, and remain liable after termination for any obligations and/or liabilities which occur post termination in relation to Services provided by Ezetap prior to such termination.
12.4 Termination of this Agreement shall not affect any accrued rights or liabilities of either Party, nor shall it affect the coming into force or the continuance in force of any provision of this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
12.5 Unless specified otherwise the provisions of Clause 2 (Definitions) to the extent such definitions are used in Clauses which survive termination, Clause 6 (Responsibilities / Obligations of Merchant), Clause 13 (Limitation of Liability), Clause 14.3 (Effect of Termination), Clause 16 (Governing Law and Jurisdiction), Clause 17 (Miscellaneous) shall survive termination/ expiration of this Agreement. Clause 12 (Indemnity) shall survive termination of the Agreement for a period of one year from the date of termination.
13 FORCE MAJEURE
13.1 Neither Party shall be in breach of its obligation hereunder if it is delayed in the performance of, or is unable to perform (whether partially or fully), such obligations as a result of the occurrence of a Force Majeure Event; provided that the Party affected by the Force Majeure Event shall give notice to the other Party of the occurrence of the Force Majeure Event as soon as reasonably practicable and in any case within seven (7) days from the date on which the affected Party knew of the occurrence of a Force Majeure Event.
13.2 Each Party shall make all reasonable endeavours to mitigate any delay or interruption to any part of the performance of this Agreement as a result of the occurrence of a Force Majeure Event.
13.3 If a Force Majeure Event which substantially impairs the performance by a Party of its material obligations under this Agreement occurs and such Force Majeure Event continues for a continuous period of more than ninety (90) days, then either Party may terminate this Agreement at any time thereafter by giving seven (7) days’ prior written notice to the other Party.
14 GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed in accordance with the laws of India. The courts of Bangalore shall have exclusive jurisdiction in respect of any such disputes or claims.
15 MISCELLANEOUS
15.1 Notices- Any notice to be given by a Party under this Agreement shall be in writing. Such notice shall be delivered by hand, email, airmail, postage (prepaid), reputed overnight courier service, to the Party to which it is addressed at such Party’s address as specified below or at such other address as each Party shall from time to time have designated by providing fifteen (15) days prior written notice and shall be deemed to have been duly given or made when delivered as aforesaid.
15.2 Assignment- The Merchant shall not assign its rights or obligations under this Agreement without written consent of Ezetap. Ezetap may assign its rights or obligations under this Agreement at any time to its Affiliates.
15.3 Amendment- Subject to the changes in Part II, this Agreement can be modified only upon written consent of each Party.
15.4 Severability- If any provisions of this Agreement are held to be invalid or unenforceable, they are to that extent to be deemed omitted and the remaining provisions of this Agreement shall remain in full force and effect.
15.5 Setoff- Without prejudice to any other rights or remedies Ezetap may have, the Merchant agrees and confirms that Ezetap shall have the right to set-off by whatever means the whole or any part of the Merchant’s liability to Ezetap under this Agreement (or any other agreement between the Merchant and Ezetap or its Affiliates) against any funds, sums or other amounts credited to, or owing to, Merchant under this Agreement (or any other agreement between the Merchant and Ezetap or its Affiliates). The Merchant agrees that Ezetap may exercise the right of set-off at any time, without prior notice to the Merchant. In the event such set-off does not fully reimburse Ezetap for the liability owed, the Merchant shall pay Ezetap a sum equal to any shortfall thereof.
15.6 Entire Agreement- This Agreement expresses the understanding of the Parties with respect to the subject matter hereof. Provisions or terms of any invoice or purchase order except online terms and conditions whether executed before or after the Effective Date shall not apply in any manner whatsoever, to the relationship between the Parties unless such terms are specifically incorporated in this Agreement.
15.7 Execution and Counterparts- This Agreement can be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all of which shall together constitute one and the same agreement. This Agreement may be executed by electronic signature, which shall be considered as an original signature for all purposes and shall have the same force and effect as an original signature. The delivery of signed counterparts by facsimile transmission or electronic mail in “portable document format” (“pdf”) shall be as effective as signing and delivering the counterpart in person.
15.8 Waiver- All rights available to either Party under this Agreement or any other document delivered hereunder or in connection herewith, or allowed it by law or equity, are and shall be cumulative and may be exercised separately or concurrently and from time to time without waiver of any other remedies. Neither Party shall be deemed to have waived any right, power or privilege under this Agreement unless such waiver shall have been expressed in a written instrument signed by the waiving Party. The failure of either Party to enforce any provision of this Agreement shall in no way be construed as a waiver of such provision or a right of such Party to thereafter enforce such provision or any other provision of this Agreement.
Part II
Prohibited Products and Services
1 Adult goods and services which includes pornography and other sexually suggestive materials (including literature, imagery and other media); escort or prostitution services; Website access and/or Website memberships of pornography or illegal sites;
2 Alcohol which includes alcohol or alcoholic beverages such as beer, liquor, wine, or champagne;
3 Body parts which includes organs or other body parts;
4 Bulk marketing tools which includes email lists, software, or other products enabling unsolicited email messages (spam);
5 Cable descramblers and black boxes which includes devices intended to obtain cable and satellite signals for free;
6 Child pornography which includes pornographic materials involving minors;
7 Copyright unlocking devices which includes Mod chips or other devices designed to circumvent copyright protection;
8 Copyrighted media which includes unauthorized copies of books, music, movies, and other licensed or protected materials;
9 Copyrighted software which includes unauthorized copies of software, video games and other licensed or protected materials, including OEM or bundled software;
10 Counterfeit and unauthorized goods which includes replicas or imitations of designer goods; items without a celebrity endorsement that would normally require such an association; fake autographs, counterfeit stamps, and other potentially unauthorized goods;
11 Drugs and drug paraphernalia which includes illegal drugs and drug accessories, including herbal drugs like salvia and magic mushrooms;
12 Drug test circumvention aids which includes drug cleansing shakes, urine test additives, and related items;
13 Endangered species which includes plants, animals or other organisms (including product derivatives) in danger of extinction;
14 Gaming/gambling which includes lottery tickets, sports bets, memberships/ enrolment in online gambling sites, and related content;
15 Government IDs or documents which includes fake IDs, passports, diplomas, and noble titles;
16 Hacking and cracking materials which includes manuals, how-to guides, information, or equipment enabling illegal access to software, servers, website, or other protected property;
17 Illegal goods which includes materials, products, or information promoting illegal goods or enabling illegal acts;
18 Miracle cures which includes unsubstantiated cures, remedies or other items marketed as quick health fixes;
19 Offensive goods which includes literature, products or other materials that:
(a) Defame or slander any person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors;
(b) Encourage or incite violent acts; or
(c) Promote intolerance or hatred.
20 Offensive goods, crime which includes crime scene photos or items, such as personal belongings, associated with criminals;
21 Pyrotechnic devices, combustibles, corrosives and hazardous materials which includes explosives and related goods; toxic, flammable, and radioactive materials and substances;
22 Regulated goods which includes air bags; batteries containing mercury; Freon or similar substances/refrigerants; chemical/industrial solvents; government uniforms; car titles; license plates; police badges and law enforcement equipment; lock-picking devices; pesticides; postage meters; recalled items; slot machines; surveillance equipment; goods regulated by government or other agency specifications;
23 Securities which includes government bonds or related financial products;
24 Tobacco and cigarettes which includes cigarettes, cigars, chewing tobacco, and related products;
25 Traffic devices which includes radar detectors/jammers, license plate covers, traffic signal changers, and related products;
26 Weapons which includes firearms, ammunition, knives, brass knuckles, gun parts, and other armaments;
27 Wholesale currency which includes discounted currencies or currency exchanges;
28 Live animals or hides/skins/teeth, nails and other parts etc. of animals;
29 Multi-Level Marketing collection fees;
30 Matrix sites or sites using a matrix scheme approach;
31 Offering Work-at-home approach and/or Work-at-home information; with an intention to deceive;
32 Drop-shipped merchandise;
33 Any product or service which is not in compliance with all applicable laws and regulations whether federal, state, local or international, including the laws of India;
34 Merchant providing services that have the potential of casting the Payment Gateway Facilitators in a poor light and/or that may be prone to Buy & Deny attitude of the cardholders when billed (e.g. Adult material/ Mature content/Escort services/ friend finders) and thus leading to chargeback and fraud losses;
35 Businesses or website that operate within the scope of laws which are not absolutely clear or are ambiguous in nature (e.g. Web-based telephony, Website supplying medicines or controlled substances, website that promise online match-making);
36 Businesses out rightly banned by law (e.g. Betting & Gambling/ publications or content that is likely to be interpreted by the authorities as leading to moral turpitude or decadence or incite caste/communal tensions, lotteries/sweepstakes & games of chance;
37 Merchants who deal in intangible goods/ services (eg. Software download/ Health/ Beauty Products), and businesses involved in pyramid marketing schemes or get-rich-quick schemes and any other product or Service, which in the sole opinion of either the Partner Bank or the Acquiring Bank, is detrimental to the image and interests of either of them / both of them, as communicated by either of them/ both of them to the Merchant from time to time. This shall be without prejudice to any other terms & conditions mentioned in this Agreement;
38 Mailing lists;
39 Virtual currency, cryptocurrency and other crypto products (like non-fungible tokens or NFTs), prohibited investments for commercial gain or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world;
40 Money laundering services;
41 Database providers (for tele-callers);
42 Bidding/Auction houses;
43 Activities prohibited by the Telecom Regulatory Authority of India;
44 Any other activities prohibited by Applicable Laws;
45 Entities operating as chit funds/ nidhi companies (except government or public sector unit (PSU) entities);
46 Unregulated/ unlicensed money service business (MSB) or money and value transfer services (MVTS) like exchange houses, remittance agents or individuals running such businesses in jurisdictions that require license for such businesses.
The above list is subject to additions / changes by Ezetap, based on instructions received from Facility Providers, without any prior intimation to you.
PART III
Service Order Form
Part A - Services
This Service Order Form (“SOF”) forms an integral part of, and is issued and entered into pursuant to the Agreement.
DEFINITION: The capitalized terms used herein shall have the meaning ascribed to it hereunder:
SCOPE OF SERVICES
Service: Ezetap will provide
a. Ezetap Payment Services (as defined above) which includes the ability to process payments from the modes of payment opted by the Merchant..
b. Ezetap Premium Services (as defined above) which includes a mobile application supplied by Ezetap that is required to access the Ezetap cloud platform through the Device.
c. Acceptance of American Express cards - Upon request of the Merchant, Ezetap has the ability to support American Express Cards on the Devices opted for by Merchant. Activation of American Express will be subject to Ezetap approval and will comply with American Express policy.
2. Mobile Application: In support of the above services, Ezetap will supply the Merchant with a mobile application (which is an interface required to access the Ezetap Solution through the Device) and the Ezetap SDK which is used by the Merchant to use Ezetap Payment and Ezetap Premium Services in a mobile application that is developed by the Merchant.
3. Portal: Ezetap agrees to retain and maintain transaction records for the services purchased by the Merchant and provide a portal to the Merchant showing such records and allow the Merchant to download such records from time to time.
4. Customer Support: Ezetap will provide Level 2 customer support and training and materials for Level 1 Support. The scope of this support and the support requirements and processes required of Ezetap will be mutually agreed upon and documented by both parties.
5. Data Security: Ezetap will ensure that data is managed and used as per the written data security and privacy policies of the Merchant. Unless in conflict with the aforementioned policies, Ezetap will have unfettered access to view and analyze all data generated through the use of the Ezetap Solution by Ezetap.
6. Hosting: Hosting, maintenance, and support of the Ezetap Solution will be managed by Ezetap.
TERMS
a. “Authorization” shall mean the process by which Ezetap approves and confirms to the Merchant whether the Valid Card/UPI account/Wallet account of the Customer has the required credit limit/funds (as the case may be) to make payments for a transaction and includes approval flashed on the PoS terminal or Device at the Premises.
b. “Bank” shall mean the settlement bank of Ezetap.
c. m
d. “Card Organization” includes VISA, MasterCard, Rupay and any other card organization acceptable to the Bank and/or Ezetap offering credit, debit or any other card program to Issuers.
e. “Charge Slip” shall mean the receipt printed out by the PoS Device or a digital receipt, sent or provided to the Customer through an SMS and /or email or to the Merchant on the mobile application and/or Ezetap web portal on successful completion of an Authorization of a charge.
f. “Chargeback” shall mean the reversal (such reversal being requested by a Facility Provider pursuant to a request from the Facility Provider’s Customer) of the debit of the Transaction Amount that was charged by the Merchant, where the reversal is approved by the Facility Provider following examination of the Transaction related documents and information furnished by the Merchant, consequently resulting in Ezetap being charged the Transaction Amount and charges, penalties or fines associated with processing the Chargeback.
g. “Chargeback Amount” shall mean the aggregate amount that the Facility Provider charges Ezetap pursuant to a Chargeback.
h. “Chargeback Documents” has the meaning ascribed to the term in Clause 8 of this SOF.
i. “Chargeback Request” means a claim for Chargeback by Facility Provider’s Customer.
j. "Digital Charge Slip" means the transaction receipt provided to the Merchant by Ezetap to enable the Merchant to record charges.
k. “Issuer” means a licensee of a Card Organization for issuing a card, or provider of a payment method such as UPI, Wallets, net-banking, etc.
l. “Merchant Acquiring Terms” shall mean the terms related to the payments and settlement in view of the Services as provided under this Part II of Annexure B.
m. “Annexure(s)” means the annexures for providing additional information regarding the Merchant or Services, additional details of the Services provided by Ezetap and availed by the Merchant and the commercials applicable for such Services thereof. The Annexures shall form an integral part of this Agreement.
n. “Subscription Fees” or “Monthly Subscription Fees” means the fee at the rate mentioned in the Annexure C hereto as may be charged on a monthly basis by Ezetap in consideration of Services or value added services including integrations if applicable and customer support.
o. “Settlement” means the closure of batch at predefined frequencies by Ezetap except for the transactions through credit cards.
p. “Payment Facilitator” means the services provided to the Merchants by Ezetap built over the platform of VISA, MASTERCARD, RUPAY, other card associations, NPCI for UPI, Wallet Issuers and acting on behalf of the Bank and Wallet Issuers, in processing payments for establishments/Merchants in respect of payments sought by the use of debit card, credit card, UPI, and Wallets.
q. “Transaction Amount” means the amount paid by the Customer in connection with Transaction.
r. “Transaction Fees” or “MDR” means the fee at the rate mentioned in Annexure C hereto as may be charged by Ezetap in consideration of transaction processing, routing and settlement services including all value added services. This fee may be subject to change from time to time as Ezetap may determine at its sole discretion.
s. “UPI” means Unified Payment Interface, an instant payment system developed by the National Payments Corporation of India (“NPCI”) or any other competent authority as recognized by the regulators.
t. “Valid Card” shall mean a card issued by an Issuer whose name is embossed on the same but shall not include (i) a card listed on a current warning notice or (ii) an expired card or a card not yet operational or (iii) a card that cannot be used in India or (iv) a damaged or torn card.
u. “Valid Payment Instrument” means and includes Valid Card, Wallet Accounts, Bank Account and/or UPI Account.
v. “Valid Charges” is an amount authorized in accordance with this Agreement, which is charged to the Customer (i) On a Charge slip acceptable to Bank or the Wallet Issuer (ii) Using the system provided by the Payment Facilitator.
w. “Value Added Services” or “VAS” shall have the meaning attributed to it under Clause 9 hereto.
x. “Mobile Wallets” or “Wallet” are pre-paid payment instruments that facilitate purchase of goods and services, including funds transfer, against the value stored on such instruments. The value stored on such instruments represents the value paid for by the holders by cash, by debit to a bank account, or by credit card to the Wallet Issuers.
y. “Wallet Issuers” are Non-Banking Financial Companies (NBFCs) and other persons permitted by Reserve Bank of India to issue only closed and semi-closed system payment instruments, including mobile phone based prepaid payment instruments.
2. “Mobile Application”: In support of all the Value-Added Services, Ezetap will supply the Merchant with the mobile application which is an interface required to access the Ezetap Solution which will enable the Merchant to collect payments from the Valid Payment Instrument. On the said mobile application, Ezetap may offer to Merchant various Value-Added Services (e.g., maintenance of product catalogue, capability to sell recharge vouchers etc.) at an additional cost. The Annexures as listed below and such other Annexures as may be attached hereto from time to time in terms of the Merchant Acquiring Terms, form an integral part of this document and shall have the same force and effect as if expressly set out in the main body of this document.
3. It is explicitly clarified that, all transactions are routed through Ezetap, a Payment Facilitator and are acquired by the Bank. Ezetap shall provide settlement facility in the event such transactions are routed through TIDs provided by Ezetap. All other settlements shall be done by the acquiring bank of the Merchant and Ezetap shall not be liable for such transactions.
4. SCOPE AND APPLICABILITY
a) APPOINTMENT: During the Term of this arrangement, the Merchant agrees to avail the Services through Ezetap and Ezetap agrees to provide to, or procure for, the Merchant the Services as are specified in Annexure C and / or such other services as may be mutually agreed to between the Merchant and Ezetap in writing, from time to time. The Merchant agrees and acknowledges that Ezetap is the facilitator for providing the Services to the Merchant. The Merchant hereby represents and warrants that it is entitled under applicable law and is duly authorized to agree to the Merchant Acquiring Terms to avail the Services and that there is no prohibition or restriction under applicable law, contract or otherwise for the Merchant to execute this Agreement, avail the Services and perform its obligations as specified hereunder.
b) These Merchant Acquiring Terms shall be applicable in respect of each and every transaction involving payment by means of a Valid Payment Instrument.
c) The Merchant hereby undertakes to honour and accept every Valid Payment Instrument when properly presented as payment by Customers for all transactions. The Merchant shall not engage in such acceptance practices or procedures that discriminate against or discourage the use of Valid Payment Instruments in favour of any other payment instrument that is also accepted by the Merchant or other payment mode accepted by the Merchant.
6. AUTHORIZATION
a) The Merchant agrees to abide by the Authorization procedure as mentioned hereunder and such other terms and conditions as may be specified by Ezetap from time to time.
b) Merchant must obtain an authorization from Ezetap for any and every charge incurred by the Customer.
c) Authorization in respect of charges can be obtained by swiping or inserting or tapping the Valid Card using the Equipment or follow the procedure on the Mobile Application for other Valid Payment Instrument (online authorization).
d) Splitting of charges into two (2) or more Charges Slips using the same card will not be acceptable to Ezetap.
e) Ezetap reserves the right to refuse the charges if an Authorization is declined. Any Authorization given by Ezetap will be in its absolute discretion and Ezetap may further, in such an event, also direct the Merchant to take immediate preventive action.
f) In case of any disputes regarding Authorizations given by Ezetap or regarding any details pertaining thereto (whether as to card number, expiry date of a Valid Payment Instrument, amount, date and the time of charges, time at which Authorization is given or otherwise whatsoever), the decision of Ezetap to grant or refuse Authorization and the details mentioned by Ezetap shall be final and binding on the Merchant.
g) Merchant shall obtain photocopy(ies) of the passport or any government issued identity proof of Customer and front side of Valid Card in case of transaction conducted on international card (issued outside India) is above the amount as per applicable law at that time. The Merchant shall verify such photocopy (ies) with the originals before accepting the same. Merchant shall verify the photo ID of the Customer and match the name and on such Photo ID with the name and on the Valid Card. In case of local card, Photo ID proof shall be collected by the Merchant for transaction above the amount as per applicable law at that time for merchandise or service as may be directed by applicable regulatory authorities from time to time. The amount thresholds and the list of documents to be collected are subject to change as per Ezetap’s policies from time to time.
5. TRANSACTION FEES AND DIGITAL CHARGE SLIP
a) In consideration of the Services being rendered by Ezetap, the Merchant agrees to pay the charges specified in Annexure C to Ezetap.
b) The Merchant agrees to permit Ezetap to charge the purchase of goods and services normally sold by the Merchant.
c) The Merchant acknowledges that any purchase from it by the Customer creates a direct obligation on Ezetap to pay the Merchant and the Merchant agrees not to collect such amount from the Customer directly.
d) The Merchant agrees that the prices of merchandise or service charged to Customers shall be uniform irrespective of payment mode being cash/ card or any other modality of payment.
e) Ezetap agrees to accept without recourse all Valid Charges and the Merchant agrees to accept payment less the Transaction Fee on the total amount listed on the Chargeslips at the rate as mentioned in the Annexure C hereto. Applicable taxes would be charged as extra.
7. PAYMENTS
a) Subject to sub-clause (c) hereof, and without prejudice to the right conferred by Clause 7 hereinafter appearing, Ezetap agrees to pay to the Merchant, Valid Charges specified in the Charge Slips received at their offices post deduction of fees and taxes within 3 business days of receipt, in case of Visa / MasterCard / NPCI or any other card association or Wallet Issuer except under circumstances beyond the reasonable control of Bank or Wallets. Payment of such charges by Ezetap is not to be construed or deemed to mean that the charges involved are Valid Charges. Ezetap will be entitled at any time by giving notice to set-off and adjust outstanding of the Merchant, against all payments due to the Merchant and such set-off and/or adjustments shall be final and binding on the Merchant.
b) The Merchant hereby agrees that Ezetap may from time-to-time increase or decrease the Transaction Fees and communicate the same via an amendment or addendum to this Agreement.
c) Further, the Parties hereby agree that all the applicable taxes, cess and other statutory levies including but not limited to GST as specified from time to time and mentioned in these Merchant Acquiring Terms, which are payable in respect of the Transaction Fees and/or the payments shall be borne by the Merchant. The Merchant hereby authorizes Ezetap to deduct, in addition to the Transaction Fees, these tax amounts, at the time making the aforesaid payment upon submission of Charge Slip by the Merchant.
d) Where Ezetap has reason to believe that any charges have been fraudulently incurred or charged either on a counterfeit card or where Ezetap has reason to investigate or cause to be investigated on any charges (hereinafter referred to as “Suspect Charges”), Ezetap shall be entitled to withhold payment pertaining to such Suspect Charge(s) and not make payment to the Merchant and shall conduct due enquiry and investigation.
e) PROVIDED THAT, if Ezetap determines after due enquiry and investigation that the charge is a Valid Charge and not a Suspect Charge, Ezetap shall release such withheld payment
f) PROVIDED FURTHER that if Ezetap determines after due enquiry and investigation that any suspect charges is not a Valid Charge or transaction reported as fraudulent by Issuing bank, Ezetap shall be entitled not to pay the same at all and the Merchant agrees and undertakes not to raise any claims thereto
g) If Ezetap suspects that the Merchant has committed a breach of these Merchant Acquiring Terms or has acted dishonestly or fraud has been committed against Ezetap or any Cardholder/UPI account holder or third party or has in connivance with any other person done the same or assisted in the same, Ezetap shall be entitled to suspend all payments under this arrangement to the Merchant as well as withholding suitable sum, as may be determined by Ezetap in its discretion, till pending enquiries by Ezetap.
h) Ezetap also has right to hold payments of delayed settlement cases done by the Merchant.
i) The Merchant agrees to pay the monthly invoice(s) within thirty (30) days of having received the invoice(s). In the event the Merchant fails to make such payment within thirty (30) days, Ezetap shall deduct the amount due from the Merchant from the settlement account/amount.
8. CHARGEBACK
8.1 If a Facility Provider communicates to Ezetap the receipt of a Chargeback Request, then the Merchant will be notified of the Chargeback. The Merchant agrees that liability for Chargeback, whether domestic or international, under this Agreement or any SOF thereunder rests with the Merchant. Subject to availability of funds, Ezetap upon receipt of a Chargeback Request shall forthwith deduct Chargeback Amount from the Transaction Amounts which may be used, based on the decision of the Facility Provider, either to a) process Chargeback in favour of the Customer or b) credit to the Merchant. For the avoidance of doubt, Ezetap shall be entitled to deduct the Chargeback Amount upon receiving a Chargeback claim. The Merchant shall be entitled to furnish to Ezetap documents and information (“Chargeback Documents”) pertaining to the Transaction associated with the Chargeback Request in order to substantiate (i) the completion of the aforesaid Transaction; and /or; (ii) delivery of goods / services sought by the Customer pursuant to the said Transaction. The Merchant shall furnish the Chargeback Documents within three (3) calendar days (or such other period specified by the Facility Provider) of receiving notification of the Chargeback Request.
8.2 The Merchant agrees that (i) if the Merchant is unable to furnish Chargeback Documents; and /or; (ii) the Facility Provider is not satisfied with the Chargeback Documents furnished by the Merchant, then the Facility Provider shall be entitled to order Ezetap to effect a reversal of the debit of the Chargeback Amount associated with the Chargeback such that the said Chargeback Amount is credited to the Customer’s Payment Instrument.
8.3 Notwithstanding anything in this Agreement, if the Facility Provider charges the Chargeback Amount from , the Merchant agrees and acknowledges that Ezetap is entitled to recover such Chargeback Amount from the Merchant by way of deduction from (i) the Transaction Amount to be settled to the Merchant and (ii) any other funds of the Merchant held by Ezetap in the course of providing the Services. Provided however, if the available Transaction Amounts or other funds are insufficient for deduction of the Chargeback Amount, then Ezetapis entitled to issue a debit note seeking reimbursement of the Chargeback Amount. The Merchant shall reimburse the Chargeback Amount within seven (7) days of receipt of the debit note.
8.4 On the issuance of notice of termination of this SOF or the Agreement, Ezetap reserves the right to withhold from each settlement made during the notice period, a sum computed based on a Stipulated Percentage (defined hereinbelow) for a period of one hundred and twenty (120) days (“Withholding Term”) from the date of termination of this SOF or the Agreement, whichever is later. The sums so withheld shall be utilized towards settlement of Chargebacks. After processing such Chargebacks, Ezetap shall transfer the unutilized amounts, if any, to the Merchant forthwith upon completion of the Withholding Term. The ‘Stipulated Percentage’ is the proportion of the Chargeback Amounts out of the total Transaction Amounts settled during the subsistence of this Agreement.
8.5 Notwithstanding anything in this SOF, if the amount withheld pursuant to Clause 3.4 above is insufficient to settle Chargebacks Amounts received during the Withholding Term, then Ezetap is entitled to issue a debit note seeking reimbursement of the Chargeback Amount. The Merchant shall reimburse the Chargeback Amount within seven (7) days of receipt of the debit note.
9. VALUE ADDED SERVICES
Ezetap may provide from time to time Value Added Services, including but not limited to Mobile Wallets, Mobile Applications, bills payment, and voucher disbursement and EMI schemes as well as hooks to utility companies using sub-domaining, business analytics and Reconciliation as a Service, making issue of the NPCI – UPI or any other third party platform to the Merchant (“Value Added Services”). If the Merchant avails the Value Added Services, then such Value Added Services shall be subject to the terms and conditions as set forth by the concerned bank service provider and the applicable regulatory norms. The Merchant shall provide the Value-Added Services on such terms and conditions as are agreed between the Merchant and Ezetap
10. BANK ACCOUNT: If the Merchant doesn’t already have a bank account, the Merchant shall open and maintain an account with a bank / financial institution for the purpose of the payments to be made to the Merchant with respect to the Services and/or the payments to be made by the Merchant to Ezetap and/or its business associates.
11. CHANGE IN SERVICES OR SERVICE PROVIDER: Merchant agrees that Ezetap would be entitled to terminate all or any of the Services on such terms and conditions as it deems fit, at its sole discretion, if necessary. The Merchant agrees and undertakes to cooperate with Ezetap and / or the Bank in effecting such further documents.
12. ADDITIONAL OBLIGATIONS OF THE MERCHANT
The Merchant shall immediately inform Ezetap in the event the same card is being used for repeated Card Transactions or if the same Customer uses more than two cards indiscriminately or of any other suspicious activity.
13. COMPLIANCE
a) The Merchant hereby declares, represents and confirms and acknowledges that they shall comply and has complied with all applicable laws of the land and further acknowledges that Ezetap shall have no obligation to verify whether or not the Merchant has acted in accordance therewith.
b) The Merchant hereby also confirms and acknowledges that it is aware of and agrees to abide by the guidelines of the MasterCard / Visa / NPCI or any such card associations, or regulatory authorities, especially Ezetap’s right of the requirement of inclusion of the Merchant’s name in the fraudulent list, if the Merchant acts in contravention of the clauses of these Merchant Acquiring Terms.
c) The Merchant agrees that he shall not use his personal card/UPI account for purchase of goods or services from his own establishment.
d) The Merchant agrees that he shall not split the transactions multiple times on the terminal, using the same Valid Payment Instrument.
e) Merchant will not transfer card payments received from Ezetap to any third-party account or dispense cash on instruction of the cardholder.
f) Deployment of Other Applications in the Equipment: The Merchant shall not deploy any other payment applications in the Equipment which has the capacity to capture card number or card details, UPI account details, except after being informed to Ezetap in advance and concurrence thereof obtained from Ezetap and/or its service provider.
g) Capture only its own transactions: The Merchant shall capture only the transactions done in its establishment in the Equipment deployed. On no account, shall the merchant offer to capture the transactions done on other establishments.
h) The Merchant agrees to bear any financial charges or penalties that may be levied by card association / NPCI/ regulatory authorities due to fraud or non-compliance of any regulations or any card / UPI payment association standards.
i) Merchant shall provide Ezetap with copies of all financial accounts and other such documentation/information concerning the Merchant’s business for Ezetap to evaluate the Merchant’s financial and credit status. Further, the Merchant agrees and undertakes to inform and notify Ezetap, with immediate effect, of any change in circumstances affecting its business including any insolvency event, change in control or change in business name, business address, legal status or other business details.
j) Merchant shall ensure that the Payment Facilitator is used for making transactions for only such products/services that fall within the approved category of Ezetap as per the terms hereof. Further, Merchant shall not deal (or perform business) in types of goods or services prohibited under law.
k) Any data relating to transaction performed using the Payment Facilitator will be processed and passed on to Ezetap on a daily/real-time basis, and Merchant shall inform Ezetap immediately in case of any discrepancies in the settlement amounts. It is further clarified that Merchant will implement any such corrective measure as may be informed/suggested to Merchant by Ezetap.
l) Merchant agrees and acknowledges that all transactions performed by Customers using the Payment Facilitator are in Indian Rupees, unless otherwise approved in writing by Ezetap.
m) Merchant shall provide all the support and assistance, as and when required, to Ezetap for an audit and/or inspection by Ezetap (or its nominees or assigns) and/or its auditors and/or regulators and/or any such third party appointed by Ezetap (a) of Merchant’s books and records, accounts, premises, transactions performed using the Payment Facilitator, and/or (b) of all the daily transaction (including related reports and other data in relation to Merchant or its Customers).
14. REFUNDS: Merchant has to make all refunds to the Customer through Ezetap and the tools provided by Ezetap only vide the Valid Payment Instrument the Customer has used for the transaction. Ezetap will be recovering the gross amount of the transaction from Merchant settlements for refunding the amount back to cardholder. In case there are no transactions for adjustment, the Merchant will have to fund Ezetap for processing any refund.
LETTER OF UNDERTAKING
(On merchant’s letter head)
Date:
To,
Ezetap Mobile Soltuions Private Limited,
#153 , 9th Main, 6th Sector,
HSR Layout ,
Bangalore 560102
Subject: Undertaking to comply, stay fully compliant from time to time, with applicable laws, including but not limited to, gaming laws, rules, regulations, among others.
Sir/Madam,
M/s._________<please add merchant’s name> (‘Merchant’, “We”) represent and warrant to Ezetap Software Private Limited and its affiliates (‘Ezetap’)that:
1. We shall comply with all applicable Know Your Customer (KYC) norms and/or rules and/or regulations and Anti-Money Laundering (AML) standards under the Prevention of Money Laundering Act, 2002. In this regard, any notice received or subsisting from any governmental authorities shall immediately be forwarded to Ezetap.
2. No services provided by us and/or to any of our customers (“Merchant Services”) are of a nature that may be construed as a competition/contest/game/sport/event (online or offline) whose outcome is based merely or preponderantly or predominantly on chance.
3. The Merchant Services are at all times in compliance with all applicable laws, rules and regulations, including pertaining to restriction and/or prohibition on gambling, betting, wagering and gaming activities. The Merchant undertakes to stay compliant, from time to time, in its due course of engagement with Ezetap.
4. The provision of the Merchant Services to our customers in certain specific states of India are in accordance with the applicable laws, rules and regulations of those states and the Merchant has obtained and holds all necessary and valid licenses and/or permissions and/or registrations to that effect.
5. No Merchant Services including facilitation, hosting or providing a platform for any competition/contest/game/sport/event (online or offline) for monies are rendered by us to (i) any customers in those states where it is not permitted by any applicable laws or governmental action (‘Restricted States’) (ii) any customers who are residents of the Restricted States.
6. The Merchant shall indemnify and hold Ezetap, its Affiliates, and each of their directors, managers, officers, employees and agents harmless from and against all losses arising from claims, demands, actions or other proceedings as a result of or on account of any of the representations or warranties of the Merchant as set out above being breached or becoming untrue or incorrect.
7. This letter of undertaking shall be read harmoniously with other agreements, if any, between Merchant and Ezetap.
Yours sincerely,
For (Merchant’s name)
Name of the Authorised Signatory
Designation of the Authorised Signatory
Part B - Device Terms
1. In order to provide the Ezetap Services and if opted by the Merchant, Ezetap shall provide Devices and Mobile Application that are necessary for the provision of the Ezetap Services. Merchant shall acknowledge the receipt of such Device in a form and manner acceptable to Ezetap and each such acknowledgement shall be deemed to be a part of this Agreement.
2. Ezetap, or its business associate, shall after receiving instructions in writing, install the Device at Merchant’s premises. Merchant shall ensure that the necessary infrastructure (like mobile phone(s) or tablet(s) and internet connectivity) required to install the Device is available at the Merchant’s designated location.
3. Merchant shall arrange, co-operate, and provide for installation at its premises the Device and such related accessories and software as Ezetap may deem fit and appropriate. Merchant states and agrees that the Device shall be used exclusively at the Merchant’s designated establishment/ location for the purchase of goods or services for which the Merchant has been signed up and for no other purpose whatsoever.
4. Merchant agrees that each Device, if ordered by Merchant shall have a minimum period of usage of 36 (thirty-six) months, also referred to as the “Lock-in Period” commencing from the date of deployment of such Device at the Merchant location. It is to be clarified that in the event this Agreement is terminated before the expiry of the Tenure, or if the Merchant deactivates or returns a particular Device or set of Devices, before the expiry of the Lock-in period, Merchant shall make a one-time payment to Ezetap of an amount equivalent to the remaining rental or fees (as applicable) for the unexpired duration of the Lock-in Period for such Devices .
5. Merchant shall retain in its possession and for its exclusive use the Device, and keep the same in good condition. Merchant agrees and acknowledges to safe keep and control the use of the Device such that any transaction using the Device shall be deemed to be authorized and sanctioned by Merchant. Merchant shall not use the Device for any fraudulent transactions, business malpractices and illegal activities. Merchant shall not, and shall ensure that the personnel of Merchant using the Device shall not, use the Device in such a manner that it harms the security systems enabled on the Device.
6. Merchant shall not lease or resell the Device and / or such other services as may be mutually agreed to between Merchant and Ezetap to any other Party without the permission, in writing, of Ezetap.
7. Ezetap shall be entitled to charge Merchant for the costs and charges of the Device (including accessories) and/or the costs of repairing the Device/s in the event the Device(s) is/are damaged or lost as a result of improper handling by Merchant unless the Device is bought (and not leased/ rented) by Merchant from Ezetap.
8. In case the Device is provided by Ezetap to Merchant, the Device is the exclusive property of Ezetap, and Merchant shall forthwith surrender the Device to Ezetap in the event of termination of this arrangement for any reason whatsoever. During the tenure of this arrangement and thereafter Merchant shall not claim any right, title, interest or lien over the Device.
9. In case the Device is provided by Ezetap on lease to Merchant, Merchant shall not (i) sell, assign, transfer, lease or otherwise cause \or allow or attempt to cause or allow, any dealings with the Device or any encumbrance on the Device to be created (ii) remove, conceal or alter any markings, tags or plates attached to the Device or part of it indicating Ezetap’s ownership of the Device (iii) Cause or allow Ezetap’s right to access, repossession or disposition of the Device pursuant to this Agreement or otherwise to be encumbered in any way jeopardized by any act of/by Merchant or its servants or agents or by any other factor within its control (iv) Permit any third party to perform the maintenance services on the Device or effect modifications, enhancement or software/hardware changes to the Device without the prior written consent of Ezetap.
10. The loss or damage caused to Ezetap arising out of negligence, or misuse of the Device and / or default in payment due to any reason whatsoever or that of any telecommunication devices attached to / inbuilt within / embedded in the Device, by the Merchant or its employees shall be to the account of Merchant, and Ezetap will recover such losses and expenses from Merchant in terms of this Agreement or the formula provided under Section 12 below, as the case may be.
11. Merchant shall permit the authorized representatives of Ezetap or any other concerned service provider to carry out physical inspections of the Device or telecom equipment (or possession of any of these, in case of termination of this arrangement) during business hours, with or without prior notice.
12. Ezetap may seek enhancement of the Device for provision of additional services using the Device. Merchant shall allow Ezetap or Device provider to undertake such enhancements and facilitate and provide such services in addition to the services to be provided under this Agreement.
13. Any losses or damages caused to Devices shall be calculated as below:
(i) Lost/ Misplaced/ Irreparable Device charges: Price of Device. In the event there is any loss/misplacement/irreparable harm to a Device, the Merchant shall be liable to pay the full Price of the Device, in addition to the applicable taxes.
(ii) Damaged Repairable Devices (including accessories):The Merchant shall be liable to pay repair charges including inspection charge Device as incurred by Ezetap at actuals .