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(The terms "User(s)"/"you"/ "your" shall hereinafter refer to the Seller(s) and/or the Buyer(s) as the case maybe).IMPORTANT
This is an important document which you must consider carefully when choosing whether to use SwieLinc Services at any time. Please read the terms of this Agreement (along with Links to this Agreement) carefully before agreeing to it. This Agreement also highlights certain risks on using the SwieLinc Services together with guidance on how online payments through SwieLinc can be facilitated.
You are solely responsible for understanding and complying with any and all laws, rules and regulations of your specific jurisdiction that may be applicable to you in connection with your business and your use of the SwieLinc Services.
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, THE USER EXPRESSLY AGREES TO AND CONSENTS TO BEING IRREVOCABLY BOUND BY THIS AGREEMENT AND ALL OF THE TERMS SET OUT HEREIN. IF THE USER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED. SwieLinc WILL PROMPTLY CANCEL THE ASSOCIATION AND THE USER MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICE.
SwieLinc SHALL HAVE DEEMED TO HAVE ACCEPTED THIS AGREEMENT AND THE CONTRACT SHALL ONLY BE CONSIDERED TO BE DULY EXECUTED, VALID AND BINDING AFTER THE RECEIPT OF THE USER INFORMATION FROM THE USER, DUE VERIFICATION OF THE SAME BY SwieLinc AND A VERIFICATION OF THE CONTRACT BEING SENT BY SwieLinc TO THE USER AS MORE SPECIFICALLY STATED BELOW. THE CONTRACT SHALL BE DEEMED TO HAVE BEEN RECEIVED, ACCEPTED AND FORMED AT SwieLinc REGISTERED OFFICE, Bungalow No.135, Four Bungalows, Near Jankidevi School Bus Stop, Mahada, Andheri West, Mumbai, Maharashtra -400053 , INDIA.
This Merchant Agreement ("Agreement") is a legal agreement between you ("you", "your") and Zenex E-Commerce Pvt. Ltd. (With the registered trademark as "Swipelinc") governing your use of SwieLinc's services whereby SwieLinc shall provide aggregate payment gateway solutions to you for selling Products (as defined below) and/or collecting money for a specified purpose (together, the "SwieLinc Services").
This is an important document which you must consider carefully when choosing whether to use SwieLinc Services at any time. Please read the terms of this Agreement carefully before agreeing to it. This Agreement also highlights certain risks on using the SwieLinc Services together with guidance on how online payments through SwieLinc can be facilitated.
You are solely responsible for understanding and complying with any and all laws, rules and regulations of your specific jurisdiction that may be applicable to you in connection with your business and your use of the SwieLinc Services.
BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING, USING OR INSTALLING ANY PART OF THE SERVICE, YOU EXPRESSLY AGREE TO AND CONSENT TO BEING IRREVOCABLY BOUND BY THIS AGREEMENT AND ALL OF THE TERMS SET OUT HEREIN. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING NON-ACCEPTANCE MUST BE SELECTED. SwieLinc WILL PROMPTLY CANCEL THE ASSOCIATION AND YOU MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SERVICE.
SwieLinc SHALL HAVE DEEMED TO HAVE ACCEPTED THIS AGREEMENT AND THE CONTRACT SHALL ONLY BE CONSIDERED TO BE DULY EXECUTED, VALID AND BINDING AFTER THE RECEIPT OF THE REQUIRED INFORMATION FROM YOU, DUE VERIFICATION OF THE SAME BY SwieLinc AND A VERIFICATION OF THE CONTRACT BEING SENT BY SwieLinc TO YOU AS MORE SPECIFICALLY STATED BELOW.
THE CONTRACT SHALL BE DEEMED TO HAVE BEEN RECEIVED, ACCEPTED AND FORMED AT SwieLinc'S REGISTERED OFFICE, Bungalow No.135, Four Bungalows, Near Jankidevi School Bus Stop, Mahada, Andheri West, Mumbai, Maharashtra -400053 , INDIA.
This Agreement is divided into two parts. Part One explains the terms that govern your use of the Services. Part Two contains additional legal terms, including provisions that limit our liability to you and require individual arbitration for any potential legal dispute. To use the Services, you must accept all of the terms of this Agreement.
1.DEFINITIONS • For the purpose of this Agreement
You must register with us in order to open a SwieLinc Account and use SwieLinc Services. We allow both individuals and Legal Entities to register with SwieLinc. Without any legal obligation to do so, we require certain information from you, as laid out in the registration form, to permit the use of SwieLinc Services. You must provide accurate and complete information. In addition, you must keep the information that you provide up-to-date at all times. For business Users, you are only permitted to apply and enrol, if you represent a legitimate business and have the authority to enter into this Agreement on behalf of the business. You represent and warrant that you are duly authorized by the business entity to accept this Agreement and have the authority to bind such business entity. You further represent and warrant that the business entity has all the requisite consents, approvals, certificates, agreements, registrations and licences in accordance with the laws, regulations, rules and guidelines in force in India from time to time.
You must provide accurate and complete information in response to our questions. You must complete this and other processes to access any funds that you accept through the Services. You must also keep the information that you provide up-to-date. We reserve the right to suspend or terminate your SwieLinc Account in event that you provide inaccurate, untrue, or incomplete information, or fail to comply with the account registration requirements.3. ELIGIBILITY REQUIREMENT FOR OPENING A SwieLinc ACCOUNT
By creating/opening a SwieLinc Account, you represent and confirm that you are:
SwieLinc Services and your SwieLinc Account can only be used in India. You acknowledge that SwieLinc Services may be subject to export restrictions imposed by the laws, rules, regulations, and guidelines in force in India.
4. USER NAME AND PASSWORD
You must choose a reasonably descriptive User name that clearly identifies you or your business. This name will appear on the Customer's Valid card/ Account statement. If a Transaction dispute results from your failure to use a reasonably descriptive user name, you agree to indemnify SwieLinc for any costs stemming from such dispute.
As part of the SwieLinc registration process, you will create a password for your SwieLinc Account. You are responsible for maintaining the confidentiality of the password and the SwieLinc Account, and are fully responsible for all activities that occur under the SwieLinc Account, including, without limitation, all actions by sub-users registered under the SwieLinc Account. You agree to
At the time of registration you are required to disclose the exact business category/business sub-category for which you will be using the SwieLinc Services and only avail the SwieLinc Services through your designated Merchant Site. You understand and acknowledge that in order to use the SwieLinc Services for any other purpose, you shall notify SwieLinc in writing of such change and such change will be subject to approval by SwieLinc.
In order to avail the SwieLinc Services and Acquiring Bank Services, you must be approved by and registered with SwieLinc, the Acquiring Banks and Nodal Bank. Any undertaking with respect to the SwieLinc Services under this Agreement shall be subject to SwieLinc's, the Acquiring Banks' and Nodal Bank's approval and completion of the registration process. By accepting the terms of this Agreement, you agree to provide SwieLinc with all such documents as required by SwieLinc to register you with SwieLinc, the Acquiring Banks and Nodal Bank. You authorize SwieLinc to request for supplemental documentation at any time (before or after your SwieLinc Account has been activated), in order to verify your identity, the accuracy of the information provided, legitimacy of your business, and/or your Customers, including a Customer report that contains your name and address, etc. If we cannot verify that this information is accurate and complete, we may deny your use of the Services, or close your SwieLinc Account at any time.
You further understand and acknowledge that SwieLinc, the Acquiring Banks and Nodal Bank have the right to withdraw their approval/consent at any time prior to or after commencement of the SwieLinc Services.6. OUR RELATIONSHIP WITH YOU
SwieLinc facilitates individuals and legal entities in accepting payments initiated by their customers on their website or mobile application directed to the SwieLinc Site or through SwieLinc's IVR System, using Valid Cards, Net Banking and various other acceptable modes of Payment Mechanism provided by SwieLinc.
SwieLinc a software application ("Software Application") and established a SwieLinc Site. SwieLinc will act as an intermediary, by creating a link between the Merchant Site and the respective Acquiring Banks by means of the Software Application and SwieLinc Site, for enabling the Customers to make payment of Customer Charge on the Merchant Site for the Transactions carried, using Acquiring Bank's Services ("Internet Payment Gateway"). In order to serve in this role, we have entered into agreements with various Acquiring Banks, Nodal Bank, financial institutions, Card Associations and other software providers who are in the business of providing information technology services, including but not limited to, internet based electronic commerce, internet payment gateway and electronic software distribution services, to enable use of internet payment gateways developed by them, to
These Transactions are between you and your Customers and we are only acting as an intermediary. We are NOT
The relationship between SwieLinc and you is on principal-to-principal basis. Nothing contained herein shall be deemed to create any association, partnership, joint venture or relationship of principal and agent or master and servant, or employer and employee between us hereto or any affiliates or subsidiaries thereof or to provide either Party with the right, power or authority, whether express or implied to create any such duty or obligation on behalf of the other Party.
SwieLinc has no connection or interest of whatsoever nature in your business or the Products offered/ marketed on the Merchant Site. SwieLinc shall provide SwieLinc Services to you, as an independent entity and under the terms and conditions of this Agreement. SwieLinc has no relationship with the Customers and all actions under this Agreement which may affect the Customers are instructed by you. You alone shall be responsible to the Customers and neither SwieLinc nor the Acquiring Bank or anybody connected to SwieLinc or Acquiring Bank shall have any responsibility or liability towards the Customers and you shall keep SwieLinc and Acquiring Bank fully indemnified for all times to come in this respect.
SwieLinc is neither concerned nor required to monitor in any manner the use of the payment modes by the Customers for procuring / availing the Products. The Customers should be required to use the payment modes at their sole option and risks. You shall be required to notify this responsibility to all its Customers under the instructions provided by SwieLinc.7. OBLIGATIONS TOWARDS ACQUIRING BANKS AND CARD ASSOCIATION
As you will be using the Acquiring Banks Services and Card Association Services, you undertake comply with all applicable rules, guidelines, instructions, requests and actions, etc., made by the Acquiring Banks and/or Card Associations from time to time. The Acquiring Banks and Card Associations may also put limitations and restrictions on you, at its sole discretion. In addition, the Acquiring Banks has the right to reverse/reject settlement, suspend and/or terminate services, make inspections or inquiries in relation to the Transaction, etc. You understand and acknowledge that the Acquiring Banks and Card Association Rules form a part of this Agreement. In the event that your non-compliance of Acquiring Banks and/or Card Association Rules, results in any fines, penalties or other amounts being levied on or demanded of SwieLinc by an Acquiring Bank and/or Card Association, then without prejudice to SwieLinc's other rights hereunder, you shall forthwith indemnify SwieLinc in an amount equal to the fines, penalties or other amount so levied or demanded. If you fail to comply with your obligations towards the Acquiring Banks and/or Card Associations, SwieLinc may suspend settlement or suspend/terminate the SwieLinc Services forthwith.8. CONNECTIVITY AND INTEGRITY OF HOTLINK
You shall be responsible at your own costs for providing and maintaining all necessary equipment, software and facilities at your end so as to connect the Merchant Site software to the Software Application.
You shall take all such precautions and measures as may be directed by SwieLinc from time to time to ensure that there is no breach of security and the integrity of the link between the Merchant Site and the Internet Payment Gateway ("Hotlink") is maintained and shall ensure that all Customers upon accessing the Hotlink are properly directed to the Internet Payment Gateway. You shall also ensure that there are proper encryption and robust security measures to prevent any hacking into the information of the Customers and other data. In addition to the above, you shall also comply with security practices and procedures as prescribed in the Information Technology Act, 2000 and the rules made thereunder and/or the RBI rules and Regulations. Any loss incurred to you, SwieLinc or the Acquiring Bank as a result of the Hotlink being breached due to improper security on part of you, your employees, contractors, agents, etc and/or on the Merchant Site, shall be borne solely by you and you agree to indemnify, defend and hold harmless SwieLinc and the Acquiring Banks from any claims, actions, damages or losses arising out or in relation thereto.
Without prejudice to the generality of the aforesaid, you shall routinely and at such time intervals as may be specified by SwieLinc and/or the Acquiring Banks check the integrity of the Hotlink and provide such reports and/or conduct such tests as may be required by SwieLinc and/or Acquiring Banks from time to time.9. AUTHORIZATION AND AUTHENTICATION OF TRANSACTION
The Acquiring Bank will authenticate, authorize, and process the payment instructions given by the Customers on the Merchant Site in respect of the Transactions upon fulfillment of valid criteria as set forth by the Acquiring Banks and the Card Associations from time to time and accordingly transfer such approved Customer Charge from the Customer Bank Account/ Customer Wallet to the Nodal Account.
SwieLinc, Acquiring Banks and/or Card Association may reject authorization of Transaction placed by the Customer for any reason including but not limited to risk management, suspicion of fraudulent, illegal or doubtful Transactions, selling of banned items, use of compromised Valid Cards, use of blacklisted/banned cards or in accordance with the RBI, Acquiring Banks, Issuing Institution and/or Card Association rules, guidelines, regulations, etc and any other laws, rules, regulations, guidelines in force in India, etc.
You acknowledge that as a risk management tool, SwieLinc and/or the Acquiring Banks reserve the right to limit or restrict transaction size, amount and/or monthly volume at any time. For the purpose of clarity such limitations or restrictions may be imposed for the following reasons including but not limited to limits/restrictions on the number of purchases which may be charged on an individual Valid Card or net banking account during any time period, rejection of Payment in respect of Customer Orders from Customers with a prior history of questionable charges, unusual monetary value of Transaction, etc. Further, as a security measure, SwieLinc may at its sole discretion block any card number, account numbers, group of cards or Transactions from any specific blocked or blacklisted customer cards, accounts, specific, group of IP addresses, devices, geographic locations and / or any such risk mitigation measures it wishes to undertake.10. YOUR AUTHORIZATION
By accepting the terms of this Agreement, you authorize us to hold, receive, disburse and settle funds on your behalf. Your authorization permits us to generate an electronic funds transfer between the Acquiring Banks and our Nodal Account to process each Transaction that you authorize. Thereafter you authorise us to transfer the Settlement Amount received from your Customers to the Merchant Bank Account designated by you for this purpose at the time of registration. Your authorization will remain in full force and effect until your SwieLinc Account is closed or terminated.11. OUR FEES
In consideration for SwieLinc Services, you shall pay SwieLinc, Transaction Discount Rate ("TDR"). The TDR shall be deducted by SwieLinc from the Customer Charge payable to you in respect of each completed Transaction. SwieLinc reserves the right to revise the TDR periodically, and SwieLinc will intimate you of any such change within reasonable time. You shall also pay to SwieLinc
Subject to any other Clause of this Agreement, SwieLinc shall endeavour to instruct the Nodal Bank to transmit the Settlement Amount from the Nodal Account to the your Bank Account within the time period prescribed by RBI commencing from date of Completion of Transaction.
In the event that you opt for SwieLinc Services using SwieLinc Product: SwieLinc Enterprise, the Transaction shall be completed only upon receipt of the Customer Charge in the Nodal Account from the Acquiring Banks and reconciliation of the same by the Acquiring Banks, SwieLinc and the Nodal Bank ("SwieLinc Completion of Transaction")
In the event that you opt for SwieLinc Services using SwieLinc Product: SwieLinc or SwieLinc demands Proof of Delivery for any Transaction(s), the Transaction shall be completed only upon submission of Proof of Delivery by you (in the manner prescribed by SwieLinc) and the confirmation of the same by the respective Customer. In the event that the Customer does not confirm delivery within 3 (three) days from the date on which you provide Proof of Delivery, it shall be considered as deemed confirmation and the Transaction shall be deemed to be completed. ("SwieLinc Completion of Transaction")
The transmission of the Settlement Amount to the Merchant Bank Account shall be subject to reconciliation of the Customer Charge by the Acquiring Banks, SwieLinc and the Nodal Bank after actual receipt of Customer Charge in the Nodal Account.
All payments with respect to refunds and Chargebacks shall be solely your responsibility and SwieLinc shall not be liable for any claims, disputes, penalties which may arise in connection with such refunds or Chargebacks to you or the Customer. You shall indemnify SwieLinc in respect of any claims, disputes, penalties, costs and expenses arising directly or indirectly in relation to refunds or Chargebacks for all Transactions initiated and instructed through the Merchant Site.
Notwithstanding anything contained anywhere in this Agreement, you hereby confirm and agrees that SwieLinc, Acquiring Bank and Nodal Bank reserve the right to reject payments with respect to any Customer Charge for reasons including but not limited to unlawful, erroneous Transaction, Chargeback, refund, fraud, suspicious activities, card Authentication and Authorization issues, overpayment made due to mathematical errors or otherwise, penalties incurred, Transaction related issues, issues related to Delivery, Customer Charge or Product, if the Transaction was not made in accordance with the requirements of SwieLinc and/or the Acquiring Banks and/or Card Association.
In the event of rejection of payment with respect to Customer Charge, Chargeback, refunds or other Outstanding Amounts due to SwieLinc, Acquiring Bank and/or the Customer by you, SwieLinc and/or the Acquiring Bank reserve the right to reverse the credit given to the Merchant Bank Account or set-off the payment amount rejected, Chargeback or refunded or the Outstanding Amount against Settlement Amount payable to you. SwieLinc and/or Acquiring Banks may also deduct the payment amount due from future Settlement Amounts payable to you with respect to subsequent Transactions.
All Settlement Amount due to you under this Agreement may be suspended or delayed till such time as SwieLinc, the Acquiring Banks and/or nodal bank deems fit, if (a) the you or your Customer or a third party commits any fraud or violates any law or legal requirement;
You understand and acknowledge that at any time and from time to time, we may temporarily suspend or delay payments to you or require you to provide SwieLinc with Reserve of such amounts as may be requested by SwieLinc to secure the performance of your payment obligations under this Agreement for reason, including without limitation, high Chargeback risk, credit risk, refund overdraft risk, non-delivery issues, selling of banned items, non-payment of maintenance fees or other amount payable to SwieLinc or any other indications of performance problems related to your use of the SwieLinc Services. If you fail to provide SwieLinc with Reserve within seven (7) days of receipt of notice for the same, SwieLinc reserves the right to suspend and/or terminate the Settlement Amount payable you or the SwieLinc Services without further notice. SwieLinc may use this Reserve to set-off including but not limited to any Outstanding Amounts payable by you to SwieLinc, Acquiring Banks and/or Customers.
In case the Settlement Amount payable to you and/or the Reserve (if any) is not sufficient to cover your Outstanding Amount, then you shall pay SwieLinc and/or the Acquiring Banks the remaining amount due immediately upon request. SwieLinc shall be entitled to charge daily interest on such Outstanding Amount from the date of request until the date of payment in full, at the rate of 1.5% per month. Provided that the above right of SwieLinc to appropriate the Reserve and set-off the Outstanding Amount in the above manner shall be in addition to and reserving fully the right of SwieLinc to recover all such losses, costs and damages etc from you by any other means, which may be available to SwieLinc under the law. In addition, you agree to pay all costs and expenses, including without limitation attorneys' fees and other legal expenses, incurred by or on behalf of us in connection with the outstanding amount and the collection of same from you.14. CHARGEBACKS
It is hereby agreed and acknowledged by the Parties that the TDR charged by SwieLinc in respect of a Transaction that has been confirmed shall not be refunded or repaid by SwieLinc to you or any other person irrespective of the Customer Charge being rejected, chargeback, refunded or disputed.15. TERMS OF EMI OFFERING
You understand that in order to avail the EMI services of a bank, you must be specifically approved by such bank for provision of EMI services.
The EMI services shall be offered at the discretion and as per the terms and conditions of the respective bank and SwieLinc. You shall ensure that while making a Transaction, the Customer also accepts such terms and conditions.
You understands that at time of the making the Transaction, the Customer shall be charged the full amount of the sale price; SwieLinc shall send details of settled Transactions for conversion to EMI along with complete details, within 2 (two) Business Days from the date of Completion of Transaction. EMI transactions once submitted cannot be cancelled / reversed. In the event that you provide EMI options to the Customers, you shall endeavour to deliver the Product after the approval of the EMI option from the Issuing Institution providing the EMI option through SwieLinc. SwieLinc shall not be liable to you or the Customer for any dispute arising with respect to rejection of EMI option to a Customer after a Transaction has been confirmed, irrespective of the Settlement Amount being in the Nodal Bank or already transferred to the Merchant Bank Account. The Customer shall raise such dispute directly with the Issuing Institution.
You understand and acknowledge that all Transactions shall be converted to EMI transactions in offline mode. The Issuing Institution shall endeavor to convert all transactions approved by them to EMI within 5 (five) Business Days.
You shall ensure that an EMI calculator is available on the Merchant Site in order to explain the EMI calculation to the Customer.
You understand and acknowledge that the Issuing Institution may modify the terms of the EMI offering or withdraw the EMI Scheme completely at any time. SwieLinc and the Acquiring Banks shall not be responsible to you or the Customer for any disputes arising due to non-conversion of a Transaction to EMI or informing you about rejection of EMI request by the Issuing Institution.16. DELIVERY
You shall dispatch/render the Products to the Customer only upon receipt of transaction confirmation from SwieLinc. SwieLinc shall give confirmation only upon receipt of transaction confirmation in respect of the Transaction from the Acquiring Bank. SwieLinc shall not be responsible for any Transactions that have not been confirmed with SwieLinc by the Acquiring Banks.
You shall ensure that it maintains Proof of Delivery with respect to each Transaction initiated through the Merchant Site for a period of at least one (1) year from the date of Delivery. Proof of Delivery shall be open for inspection by SwieLinc and/or the Acquiring Banks at all times during working hours on Business Days. Notwithstanding any other Clause of this Agreement, you understand that SwieLinc and/or the Acquiring Bank and/or Nodal Bank reserve the right to call for Proof of Delivery, at any time, before and/or after settlement of Settlement Amount to the Merchant's Bank Account with respect to any Transaction. SwieLinc and/or the Acquiring Banks have the right to reverse Customer Charge amount to the Customers and/or reject the Customer Charge to Merchant, if Proof of Delivery is not provided in accordance to this Agreement.
You shall deliver the Product within the Delivery Due Dates specified at the time of making the transaction on the Merchant Site. If you are unable to deliver the whole or any part of the Transaction within the Delivery Due Date, you shall forthwith inform the Customer and take immediate action to refund the Customer Charge in whole or in part as per the Customers instructions.
All risks associated with the Delivery shall be borne solely by you and not SwieLinc. Any and all disputes regarding quality, merchantability, non-Delivery, delay in Delivery or otherwise shall be resolved directly between the Customer and you without making SwieLinc and/or the respective Acquiring Bank a party to such disputes.17. REFUNDS AND RETURNS POLICY
By accepting to use SwieLinc Services, you agree to process returns of, and provide refunds and adjustments for, Products sold and/or payment collected through the Merchant Site in accordance with this Agreement, the Acquiring Banks' instructions and Card Association Rules. You understand that no refund shall be processed by SwieLinc after a period of 180 days from the date of the Transaction. You shall
The amount of the refund/adjustment must include any associated taxes required to be refunded and cannot exceed the amount shown as the total on the original sales data except by the exact amount required to reimburse the Customer for postage that the Customer paid to return merchandise. If the Customer accepts returns and makes an uneven exchange of Products (e.g., the sales price is not the same), you must issue a credit for the total amount of the Products being returned and the Users must complete a new sale for any new Products. Please be aware, that if your refund policy prohibits returns or is unsatisfactory to the Customer, you may still receive a chargeback relating to such sales.18. CUSTOMER SUPPORT
All Customer service issues relating to the Transaction, Products sold on its Merchant Site including but not limited to Customer Charge, order fulfillment, order cancellation, returns, refunds and adjustments, rebates, functionality and warranty, technical support and feedback concerning experiences with its personnels, policies or processes, are solely your responsibility. In performing Customer service, you will always present itself as a separate entity from SwieLinc.
You shall provide Customer support during all Business Days. Such support shall include appropriate notice to Customers of means of contacting you including e-mail address and telephone number, in the event the Customer has questions/queries regarding the nature or quality of the Product and the procedures for resolving disputes.
Under no circumstances shall SwieLinc be responsible for customer support to the Customer or any third party.19. MERCHANT RISK ASSESSMENT
We may, from time to time during the term, make or carry out risk assessments on you and/or the Transactions carried out on the Merchant Site (each a "Risk Assessment") which shall inter alia be for the following purposes:
We may periodically obtain additional reports to determine whether you continue to meet the requirements of this Agreement. You agree that we are permitted to collect and share information about you and your application (including whether you are approved or declined), and your SwieLinc Account with the Acquiring Banks, Card Associations, Issuing Institutions, other banks, financial institutions and governmental authorities. This includes sharing information
If, at any time after we have made or carried out a Risk Assessment or it has been notified of an issue, we determine (acting reasonably) that you or circumstances relating to you represent a material credit risk or potentially increase our exposure under this Agreement, we may:
You shall maintain records of such periodical checks in such manner as may be specified by us and/or the Acquiring Banks. We and/or the Acquiring Banks shall be entitled to check and audit your records and statements to ensure compliance with your obligations under this Agreement at such intervals or times as we and/or the Acquiring Banks may deem fit. We and/or the Acquiring Banks may also inspect your business location. If you refuse such inspection, your SwieLinc Account may be terminated. We reserve the right to suspend or terminate the SwieLinc Account of any user who provides inaccurate, untrue, or incomplete information, or fails to comply with the SwieLinc Account registration requirements. If you refuse such inspection or provides inaccurate, untrue, or incomplete information, or fails to comply with the terms and conditions of this Agreement, we reserve the right to suspend or terminate the SwieLinc Services forthwith.21. YOUR RESPONSIBITIES
You hereby declare, assure, undertake and covenant as under:
If there is no activity in your SwieLinc Account (including access or payment transactions) for a period of one (1) year, we may close your SwieLinc Account24. PRIVACY
By using our Service, you may receive information about Customers. You must keep such information confidential and only use it in connection with the Services. You may not disclose or distribute any such information to a third party or use the information for marketing purposes unless you receive the express consent of the Customer.25. DISCLOSURES AND NOTICES
You agree that SwieLinc can provide disclosures and notices required by law and other information about your SwieLinc Account to you electronically by posting it on our website, or by emailing it to the email address provided by you at the time of registration. You also agree that electronic disclosures and notices have the same meaning and effect as if we had provided you with paper copies. Such disclosures and notices are considered received by you within 24 hours of the time posted to our website, or within 24 hours of the time emailed to you unless we receive notice that the email was not delivered.26. TERMINATION BY EITHER PARTY
This Agreement may be terminated by either Party by giving 30 (thirty) days prior written notice to the other Party.
Either Party may terminate this Agreement forthwith in the event:
SwieLinc shall terminate this Agreement forthwith, if the Merchant fails to perform its obligations hereunder or is in breach of any terms and conditions of this Agreement.
The termination under this Clause is in addition to and without prejudice to the termination rights which SwieLinc may have under any other Clause in this Agreement.28. CONSEQUENCES OF TERMINATION
The termination of this Agreement shall not affect the rights or liabilities of either Party incurred prior to such termination. In addition, any act performed during the term of this Agreement which may result in a dispute post termination or any provision expressed to survive this Agreement or to be effective on termination or the obligations set out in this Clause shall remain in full force and effect notwithstanding termination. Subject to other Clauses of this Agreement, both Parties shall undertake to settle all outstanding charges within 30 (thirty) days of the termination taking effect.
Where any payments claimed by SwieLinc exceeds the Settlement Amount due to you the difference thereof shall be a debt due from you to SwieLinc and be forthwith recoverable by appropriate legal action, as deemed fit by SwieLinc. Without prejudice to SwieLinc's rights and remedies, in the event that you do not make any payments to SwieLinc by its due date or on demand as required under this Agreement, SwieLinc shall be entitled to charge daily compounded interest on such overdue amount from the due date until the date of Settlement Amount in full, at the rate of 2.5% per month. This section shall not preclude SwieLinc from recourse to any other remedies available to it under any statute or otherwise, at law or in equity.
All materials, documentation, instruction manuals, guidelines, letters and writings and other materials issued by SwieLinc from time to time in respect of this Agreement, whether in respect of the utilization of the Internet Payment Gateway or otherwise shall be returned by you to SwieLinc upon termination.
You agree and confirm that you shall remain solely liable after the termination of this Agreement for all Chargebacks, refunds, penalties, loss, damages or cost incurred by SwieLinc, Acquiring Banks, Card Associations and/or Customers and for all claims and proceedings arising against SwieLinc and/or Acquiring Banks with respect to this Agreement. At the time of termination, SwieLinc may retain such amount from the Reserve (if any) and Settlement Amount payable to you (including Settlement Amounts withheld) as may be determined by SwieLinc to cover chargeback risk, refund risk or any potential loss, damages, penalties, cost that may be incurred by SwieLinc, Acquiring Banks, Card Associations and/or Customers for a period of 210 Business Days. Subject to this Clause and any other Clause of this Agreement, all settlement to you after notice of termination shall be done post termination. In the event that such retained amount is not sufficient to cover all Outstanding Amounts owed by you post termination, you shall ensure that it pays SwieLinc all pending amounts within 10 (ten) days of receiving the demand notice and shall at all times keep SwieLinc indemnified in this respect. This Clause survives the termination of this Agreement.
You represent and warrant to us that:
We grant you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense or assign, to electronically access and use SwieLinc Services solely to:
You will be entitled to download updates to SwieLinc Services, subject to any additional terms made known to you at the time, when we makes these updates available. We will use reasonable endeavours to give you prior notice of any down-time in relation to SwieLinc Services as a result of updates or preventative or reactive maintenance of our Services. You also acknowledge that the arrangement between one or more Acquiring Banks and us may terminate at any time and services by such Acquiring Banks may be withdrawn. While we want you to enjoy SwieLinc Services, you may not, permit any third party to do any of the following:
You hereby grant to SwieLinc to use, display and reproduce its name, brand name, logo, wordmark, trademark, service marks ("Marks") on a non-exclusive, royalty-free basis, solely in connection with the sales, marketing and advertising SwieLinc Services provided to you to the public. You hereby release SwieLinc from all liability relating to the publication or use of the Marks for such purpose. You hereby confirms that you have the requisite right to use the said Marks and to grant permission to use as stated herein. You shall retain all intellectual property rights in such marks.
You shall prominently display on its website and/or in other online marketing materials, a statement/logo/marks/image provided by SwieLinc relating to SwieLinc Services and that of the respective Acquiring Banks providing the Payment Mechanism. You must only use the logos/marks/images provided by SwieLinc and no other.
Nothing contained herein shall authorize the Parties to use, apply, invade or in any manner exploit or infringe the intellectual property rights of the other Parties without prior written consent of the other Party, and the usage shall be in compliance with this Agreement and such approval and policies as may be notified from time to time. In addition, the Parties undertake not to infringe the intellectual property rights of any third party.
You undertakes not to infringe the intellectual property rights of Acquiring Banks and/or SwieLinc respectively, whether directly or indirectly through any third party in the Acquiring Banks Services and software and/or SwieLinc Services and Software Application. You warrant that it shall only use the SwieLinc's Software Application and the Acquiring Banks software for the purposes of this Agreement.
You fully understand that due to use of the Customer of the Internet Payment Gateway through SwieLinc Site, SwieLinc may create or generate database in respect of such Customers. All rights and ownership with respect to such database shall vest with SwieLinc.32. GRANT AND SCOPE OF THE MOBILE SDK LICENSE
The Parties agree to maintain the confidentiality of the Confidential Information and to protect all portions of the other Party's Confidential Information by preventing any unauthorized disclosure, copying, use, distribution, or transfer of possession of such information. Dissemination of Confidential Information by each Party shall be limited to those employees with the need to such access for the advancement of the goals anticipated under this Agreement.
The Parties shall at no time disclose or allow its officers, directors, employees, representatives or subcontractors to disclose the other Party's Confidential Information to any third party without the prior written consent of the other Party. The Parties agree to protect the Confidential Information of the other with the same standard of care and procedures used by themselves to protect their own Confidential Information of similar importance but at all times using at least a reasonable degree of care.
The obligations set out in this Clause shall not apply to Confidential Information that:
Such obligation of confidentiality shall continue for a period of 1 (one) year after the termination or expiry of this Agreement.34. INDEMNITY
You undertake and agree to indemnify, defend and hold harmless SwieLinc and/or the Acquiring Banks including their officers, directors and agents from and against all actions, proceedings, claims (including third party claims), liabilities (including statutory liability), penalties, demands and costs (including without limitation, legal costs), awards, damages, losses and/or expenses however arising directly or indirectly, including but not limited to, as a result of:
The indemnities under this Clause are in addition to and without prejudice to the indemnities given elsewhere in this Agreement. The indemnities provided herein shall survive the termination of this Agreement.35. LIMITATION OF LIABILITY
Notwithstanding anything stated under this Agreement, the aggregate liability of SwieLinc to you from any cause whatsoever shall not in any event exceed the sum equivalent to the preceding one month's aggregate TDR revenue margin earned by SwieLinc under this Agreement from the date of occurrence of such liability. Provided that SwieLinc shall not be liable to you for any special, incidental, indirect or consequential damages, damages from loss of profits or business opportunities even if you have been advised in advance of the possibility of such loss, cost or damages. In no event shall SwieLinc be liable to the Customers or any third party. In no event shall the Nodal Bank or the Acquiring Bank be liable to you in any way under this Agreement.36. DISCLAIMER
SwieLinc will make all reasonable efforts to provide uninterrupted service subject to down time and regular maintenance. However, notwithstanding anything in this Agreement, the SwieLinc Site, SwieLinc Services and the Acquiring Bank's Services may not be uninterrupted or error free or free from any virus or other malicious, destructive or corrupting code, program or macro and SwieLinc and the Acquiring Banks disclaim all warranties, express or implied, written or oral, including but not limited to warranties of merchantability and fitness of the services for a particular purpose. Although SwieLinc adopts security measures it considers appropriate for the offer of the SwieLinc Service, it does not assure or guarantee that no person will overcome or subvert the security measures and gain unauthorized access to the SwieLinc Service or your/Customer data. SwieLinc shall not be responsible or liable if any unauthorized person hacks into or gains access to the SwieLinc Service or to your SwieLinc Account. In event of incorrect settlement in the Merchant's Account due to error on the part of SwieLinc or the Bank, SwieLinc shall have the right to reverse the extra funds from the Merchant Bank Account. In addition, you shall be fully liable to return the extra funds settled within 7 (seven) days of intimation by SwieLinc. Subject to the other clauses of this Agreement, in the event that the Settlement Amounts to be transferred to you have not been transferred, SwieLinc shall endeavour to settle the relevant Settlement Amount to the Merchant's account within 7 (seven) days of notification from you. In addition SwieLinc shall not be liable to you for any loss or damage whatsoever or howsoever caused or arising, directly or indirectly, including without limitation, as a result of loss of data; interruption or stoppage to the Customer's access to and/or use of the Merchant Site, SwieLinc Services and/or the Payment Mechanism, interruption or stoppage of SwieLinc Site, hacking or unauthorized access to the SwieLinc Services, Software Application and Internet Payment Gateway, non-availability of connectivity between the Merchant Site and SwieLinc Site, etc. Any material/information downloaded or otherwise obtained through the use of the SwieLinc Services is done at your own discretion and risk and you will be solely responsible for any damage to its computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by you from SwieLinc or through or from the use of SwieLinc Services shall create any warranty. SwieLinc shall have no liability in this respect.
SwieLinc's sole obligation and your sole and exclusive remedy in the event of interruption in SwieLinc Site, or loss of use and/or access to SwieLinc Site, the Acquiring banks Services and the Payment Mechanism and services, shall be to use all reasonable endeavours to restore the Services and/or access to the Payment Mechanism as soon as reasonably possible.
SwieLinc or Acquiring Bank obligations under this Agreement are subject to following limitations:
SwieLinc may assign, in whole or in part, the benefits or obligations of this Agreement by providing thirty (30) days prior intimation of such assignment to you, which shall be binding on the Parties to this Agreement.38. FORCE MAJEURE
SwieLinc shall not be liable for its failure to perform under this Agreement as a result of any event of force majeure events like acts of god, fire, wars, sabotage, civil unrest, labour unrest, action of Statutory Authorities or local or Central Governments, change in Laws, Rules and Regulations, affecting the performance of SwieLinc or the Acquiring Banks.39. GOVERNING LAW, SETTLEMENT OF DISPUTES AND JURISDICTION
This Agreement (and any dispute or claim relating to it, its enforceability or its termination) is to be governed by and construed in accordance with the laws of India. Each of the Parties agrees that, if any dispute(s) or difference(s) shall arise between the Parties in connection with or arising out of this Agreement, the Parties shall attempt, for a period of 30 (thirty) days from the receipt of a notice from the other Party of the existence of a dispute(s), to settle such dispute(s) by mutual discussions between the Parties. If the said dispute(s) cannot be settled by mutual discussions within the thirty-day period provided above, either Party may refer the matter to a sole arbitrator to be mutually appointed in accordance with the Arbitration and Conciliation Act, 1996. The arbitration proceedings shall be held under the provisions of the Arbitration and Conciliation Act, 1996. The arbitration proceedings shall be held in English language at New Delhi. The courts at New Delhi shall have the exclusive jurisdiction over any disputes relating to the subject matter of this Agreement.40. WAIVER
Unless otherwise expressly stated in this Agreement, the failure to exercise or delay in exercising a right or remedy under this Agreement shall not constitute a waiver of the right or remedy or a waiver of any other rights or remedies, and no single or partial exercise of any right or remedy under this Agreement shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.41. SURVIVAL OF PROVISIONS
The terms and provisions of this Agreement that by their nature and content are intended to survive the performance hereof by any or all Parties hereto shall so survive the completion and termination of this Agreement.42. SEVERABILITY
If any provision of this Agreement is or becomes, in whole or in part, invalid or unenforceable but would be valid or enforceable if some part of that provision was deleted, that provision shall apply with such deletions as may be necessary to make it valid. If any Court/Tribunal of competent jurisdiction holds any of the provisions of this Agreement unlawful or otherwise ineffective, the remainder of this Agreement shall remain in full force and the unlawful or otherwise ineffective provision shall be substituted by a new provision reflecting the intent of the provision so substituted.43. NON-EXCLUSIVITY
It is agreed and clarified that this Agreement is on a non-exclusive basis and the Parties are at liberty to enter into similar Agreements with others.44. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement and understanding between the Parties, and supersedes any previous agreement or understanding or promise between the Parties, relating to the subject matter of this Agreement. All Schedules, Recitals and Annexure to this Agreement shall be an integral part of this Agreement and will be in full force and effect as though they were expressly set out in the body of this Agreement.45. NOTICES
All notices, requests, demands, waivers and other communications required or permitted to be given under the Agreement shall be in writing through certified or registered mail, courier, email, facsimile or telegram to be sent to the following addresses:
Attn: Legal Department (SwieLinc India)
SwieLinc E-Commerce Pvt. Ltd.
Bungalow No.135, Four Bungalows, Near Jankidevi School Bus Stop,
Mahada, Andheri West, Mumbai, Maharashtra -400053 , INDIA.
For Merchant: To the name and address provided for at the time of registration Or, in each case, at such other address as may be specified in writing to the other Parties in accordance with the requirements of this Clause. All such notices, requests, demands, waivers and other communications shall be deemed duly given
This Agreement shall not be varied, amended or modified by any of the Parties in any manner whatsoever unless such variation, amendment or modification is mutually discussed and agreed to in writing and duly executed by both the Parties.47. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which, when executed and delivered, is an original, but all the counterparts taken together shall constitute one document.
Banned list of Products referred to in this Agreement is as mentioned herein below:-
In addition, the following activities are restricted and not permitted under this Agreement: