Terms & Conditions:
o THIS DOCUMENT IS
AN ELECTRONIC RECORD IN TERMS OF THE INFORMATION TECHNOLOGY, ACT, 2000 AND
RULES MADE THEREUNDER. THIS ELECTRONIC RECORD IS GENERATED BY A COMPUTER SYSTEM
AND DOES NOT REQUIRE ANY PHYSICAL OR DIGITAL SIGNATURES. THESE TERMS &
CONDITIONS WERE UPDATED ON 15 February 2016 (hereinafter referred to as the
“Agreement”/ “Terms of Use”)
o 1. INTRODUCTION ON
THE SCOPE OF THE AGREEMENT
o TERMS AND
CONDITIONS CONSTITUTE LEGAL CONTRACT. The terms stated herein including any
additional guidelines and/or future modifications to this Agreement read
together with the Privacy Policy, available at www.firstrecharge.online shall
constitute a legal contract between any person utilizing FIRST RECHARGE THE
SERVICE PROVIDER (“User”) of the one part, and FIRST RECHARGE THE SERVICE
PROVIDER (“PAYBEAM THE SERVICE PROVIDER
”/“Company”) having its registered office at CHANDRA SADHU PARA,CHAMPAK NAGAR,
WEST TRIPURA, TRIPURA, 799045 of the other part (collectively referred to as
“Parties” and singularly referred to as “Party”).
o ACCEPTANCE OF
T&Cs. By using, browsing, accessing, registering or accessing
www.firstrecharge.online or any mobile application developed by PAYBEAM THE
SERVICE PROVIDER (“Site”), or availing any service rendered by PAYBEAM THE
SERVICE PROVIDER, a User fully, absolutely and unequivocally agrees to comply
with and abide by the Agreement.
o ELIGIBILITY. PAYBEAM
THE SERVICE PROVIDER services are open only to persons of 18 years of age and
above who have a valid e-mail address and mobile phone number. Users who have
been previously suspended or removed from availing any service by PAYBEAM THE
SERVICE PROVIDER shall not be eligible to avail services from PAYBEAM THE
SERVICE PROVIDER. Users shall not impersonate any person or entity, or falsely
state or otherwise misrepresent identity, age or affiliation with any person or
entity. If you are below 18 years of age, please exit the Site.
o APPLICABILITY. The
terms of this Agreement shall be applicable to Users, Business Partners,
Alliance Partners and Applicable Controlled Entities, as set forth in this
Agreement. This Agreement shall be deemed to be incorporated in the Applicable
Agreement. Any reference to the “Agreement” shall include a reference to the
Applicable Agreement and any reference to “Applicable Agreement” shall include
a reference to this Agreement.
o INCONSISTENCY.
Notwithstanding anything contained herein, Applicable Agreement shall prevail
over this Agreement in case of any inconsistency.
o 2. DEFINITIONS AND
INTERPRETATION
In this Agreement, unless the contrary intention appears
and/or the context otherwise requires, capitalized terms defined by: (i)
inclusion in quotation and/or parenthesis have the meanings so ascribed; and
(ii) the following terms shall have the meanings assigned to them herein below:
“Alliance Partners” are
individuals/sole-proprietorships/companies/LLP’s etc who have entered into a
service agreement with PAYBEAM THE SERVICE PROVIDER for offering PAYBEAM THE
SERVICE PROVIDER’ products and services through web/mobile/API or through any
channel whose particulars are listed in Clause 1 of the service agreement with
Alliance Partners.
“Applicable Agreement” refers to service agreement in
relation to Business Partners and Alliance Partners.
“Applicable Controlled Entity” collectively refers to (i)
Sub-Partners appointed by Business Partners, and the Alliance Partners.
“Applicable Law” includes all applicable Indian statutes,
enactments, acts of the state legislature or parliament, laws, ordinances,
rules, bye-laws, regulations, notifications, guidelines, directions, directives
and orders of any governmental authority, statutory authority, board,
recognized stock exchange, as may be applicable including but not limited to
Guidelines on Managing Risks and Code of Conduct in Outsourcing of Financial
Services by Banks, Business Correspondent Guidelines issued by RBI from time to
time, Payment & Settlement Systems Act, 2007 and rules made thereunder, Policy
Guidelines on Issuance and operation of Pre-paid Payment Instruments in India.
“Business Partners” are firms who have entered into a
service agreement with PAYBEAM THE SERVICE PROVIDER whose particulars are
listed in Clause 1 of the service agreement.
“Confidential Information” means and includes the
Intellectual Property and any and all business, technical and financial
information of PAYBEAM THE SERVICE PROVIDER
or of any of its affiliates that is related to any of the arrangements
contemplated in this Agreement or any other agreement in which this Agreement
is incorporated by reference or otherwise disclosed by PAYBEAM THE SERVICE
PROVIDER to the User any information
which relates to its financial and/or business operations, including but not
limited to, specifications, models, merchant lists/information samples,
reports, forecasts, current or historical data, computer programs or
documentation and all other technical, financial or business data, information
related to its internal management, customers, products, services, anticipated
products/services, processes, financial condition, employees, merchants,
Intellectual Property, marketing strategies, experimental work, trade secrets,
business plans, business proposals, customer contract terms and conditions,
compensation/commission/ service charges payable to the User, and other
valuable confidential information and materials that are customarily treated as
confidential or proprietary, whether or not specifically identified as confidential
or proprietary.
“Customers” shall mean persons, including all body
corporate, partnerships, limited liability partnerships, who are availing
services, either as a consumer or otherwise, rendered by a service provider
through the User using PAYBEAM THE SERVICE PROVIDER products or services.
“Credit” shall mean the payment made by the Business
Partner/Alliance Partner to the Company to carry out transactions through the PAYBEAM
THE SERVICE PROVIDER platform.
“Effective Date” shall mean the date of activation of the
account of the User on PAYBEAM THE SERVICE PROVIDER portal.
“PAYBEAM THE SERVICE PROVIDER Platform” shall mean and
include, the platforms (website, mobile app, others) of PAYBEAM THE SERVICE
PROVIDER that the User accesses for registration and further for transacting,
including all contents, services, and technology offered through the Platform.
“Intellectual Property” shall mean all intellectual property
used for the purpose of or in association with or in relation to the
performance of this Agreement and Applicable Agreement, and includes without
limitation, (a) Software, operating manuals, software code, program,
instructions, specifications, processes, input methods, data or information
used in relation to, or in association with, or for the operation of the
software installed by PAYBEAM THE SERVICE PROVIDER, (b) the trademarks, service
marks, trade names, business names, logos, symbols, styles, colour combinations
used by PAYBEAM THE SERVICE PROVIDER during the course of its business and all
depictions, derivations and representations thereof, (c) all promotional
material including without limitation, advertisements, literature, graphics,
images, content and the ‘look and feel’ of all of the above, (d) all
information, data or material in whatever form, whether tangible or not,
provided by PAYBEAM THE SERVICE PROVIDER to the User during the course of
Applicable Agreement; and (e) all techniques, formulae, patterns, compilations,
processes, inventions, practices, methodology, techniques, improvement, utility
model, procedures, designs, skills, technical information, notes, experimental
results, service techniques, samples, specifications of the products or
services, labeling specifications, rights on software, and any other knowledge
or know-how of any nature whatsoever.
“Merchants” shall mean individuals and/or entities
registered on PAYBEAM THE SERVICE PROVIDER platform and/or appointed by PAYBEAM
THE SERVICE PROVIDER and/or for discharging functions prescribed under these
terms & conditions and/or includes Business Partners, Alliance Partners,
etc.
“Products” shall mean products developed by PAYBEAM THE
SERVICE PROVIDER including products permitting electronic top-ups, utility bill
payments, travel bookings, delivery of various financial products, other
value-added services using various devices like ATMs, POS, Mobile Apps,
Internet and any other products available on PAYBEAM THE SERVICE PROVIDER
platform from time to time.
“Service Provider” shall mean any entity with which PAYBEAM THE
SERVICE PROVIDER has, directly or indirectly, executed an agreement for
facilitating Transactions between such entity and its Customers.
“Software” shall include custom-built software that is owned
by PAYBEAM THE SERVICE PROVIDER, or software that has been licensed from third
party suppliers by PAYBEAM THE SERVICE PROVIDER and in relation to which PAYBEAM
THE SERVICE PROVIDER has obtained the right to sub-license from such third
party suppliers.
“Sub-Partners” shall mean individuals and/or entities
appointed by the merchants on whose premises/outlets/website the Products shall
be sold to the Customers, for and on behalf of the Service Providers, to
facilitate completion of Transactions initiated by such Customers, through the
merchants.
“Transactions” shall mean and include transactions taking
place between a Service Provider and its Customers including, but not limited
to, electronic top-ups for various services, utility bill payments, delivery of
financial products and other services of a like nature provided by the Service
Provider through PAYBEAM THE SERVICE PROVIDER Products.
“Users” shall include individuals, Business Partner, and
Alliance Partner, unless the context provides otherwise or if the context in
which the term “User” has been used is inapplicable to such individual,
Business Partner or Alliance Partner.
3. GENERAL TERMS AND CONDITIONS
INFORMATION SUPPLIED TO PAYBEAM THE SERVICE PROVIDER. Users
agree that the information provided by the Users to PAYBEAM THE SERVICE
PROVIDER on registration and at all other times, including payment, is true,
accurate, current, and complete.
SECURITY OF ACCOUNT. Users’ mobile number and email identify
a Users’ account with PAYBEAM THE SERVICE PROVIDER through which PAYBEAM THE
SERVICE PROVIDER services are dispensed (“Account’). PAYBEAM THE SERVICE
PROVIDER encourages Users to choose a strong password to protect their Account.
It is advised that users do not share their password with anyone or write it
down. PAYBEAM THE SERVICE PROVIDER never, under any circumstances, asks for an
Account’s password. If a User has any reason to believe that his Account is no
longer secure, then the User shall immediately notify PAYBEAM THE SERVICE
PROVIDER and indemnify PAYBEAM THE SERVICE PROVIDER from any liabilities that
may arise from the misuse of such a User’s Account.
PRIVACY POLICY. All information collected from a User
pursuant to the provision of PAYBEAM THE SERVICE PROVIDER services, and
information collected by Alliance Partner, Business Partners, Sub-Partners and
Merchants during the performance of this Agreement or Applicable Agreement, is
subject to PAYBEAM THE SERVICE PROVIDER Privacy Policy.
RECLAIMING INACTIVE ACCOUNTS. If an Account is found to be
overly inactive, the Account may be reclaimed by PAYBEAM THE SERVICE PROVIDER
without providing notice to the concerned User. An Account is considered as
inactive if the concerned User is not signing in and/or has not done any
transactions for more than 6 consecutive months from the Account.
THIRD PARTY SITES, PRODUCTS AND SERVICES. PAYBEAM THE
SERVICE PROVIDER services and/or the Site may include links or references to
other web sites or services solely for the Users’ convenience (“Reference
Sites”). PAYBEAM THE SERVICE PROVIDER does not endorse any such Reference Sites
or the information, materials, products, or services contained on or accessible
through Reference Sites. Correspondence or business dealings between Users and
concerned Reference Sites are solely between such User and the concerned
Reference Site. Access and use of Reference Sites, including the information,
materials, products, and services on or available through Reference Sites is
solely at concerned User’s own risk.
BILLING AND PAYMENT. All payments made by Users directly to PAYBEAM
THE SERVICE PROVIDER, shall be made in the manner and in the quantum detailed
on the User’s Account at PAYBEAM THE SERVICE PROVIDER Platform. Users may be
notified by PAYBEAM THE SERVICE PROVIDER regarding any change in the quantum of
payments to be made to PAYBEAM THE SERVICE PROVIDER and the manner of
disbursement of such payments; however Users are advised to regularly update
themselves of PAYBEAM THE SERVICE PROVIDER billing and payment policy by
regularly visiting the Site. PAYBEAM THE SERVICE PROVIDER shall solely decide
on the payments to be provided to User and may amend the payment structure at
any time without any prior notice to the User. However, after any such
amendment, the detailed payment structure will be made available to the User
and be effective immediately. Credit maintained by the Users with PAYBEAM THE
SERVICE PROVIDER shall be non-interest bearing and shall be forfeited by PAYBEAM
THE SERVICE PROVIDER if found lying unused for more than 365 days. The User
shall keep enough Credit with PAYBEAM THE SERVICE PROVIDER to avoid decline of
transactions on the PAYBEAM THE SERVICE PROVIDER Platform.
SALES. All sales of PAYBEAM THE SERVICE PROVIDER services
are final with no refund or exchange permitted. Users are responsible for
details provided leading to purchase of services. If PAYBEAM THE SERVICE
PROVIDER does not deliver service within 24 hours of money being charged to a
User’s payment account through a transaction on the Site, the User may inform PAYBEAM
THE SERVICE PROVIDER by sending an e-mail to PAYBEAM THE SERVICE PROVIDER
customer services e-mail address mentioned on the Contact Us page. . PAYBEAM THE
SERVICE PROVIDER shall investigate the case and if it is found that money was
indeed charged to User’s Payment Account without delivery of the service then
User may be refunded the money within 15 working days from the receipt of his
e-mail.
LIMITATION OF LIABILITY. In no event will PAYBEAM THE SERVICE
PROVIDER or its directors, agents, officers, or employees be liable to a User
for any special, indirect, incidental, consequential, punitive, or exemplary
damages (including without limitation lost business opportunities, lost
revenues, or loss of anticipated profits or any other pecuniary or
non-pecuniary loss or damage of any nature whatsoever) of any kind arising out
of or relating to (i) this Agreement or any other agreement entered by a User
with PAYBEAM THE SERVICE PROVIDER, (ii) PAYBEAM THE SERVICE PROVIDER services,
the Site or any Reference site, or (iii) User’s use or inability to use PAYBEAM
THE SERVICE PROVIDER services, the Site or any Reference Sites, even if PAYBEAM
THE SERVICE PROVIDER or a PAYBEAM THE SERVICE PROVIDER authorized
representative has advised of the possibility of such damages, (iv)
unauthorized access to or alterations of transmissions or data, any material or
data sent or received or not sent or received, (v) any transactions entered
into by any third person or conduct of any other third party or any
infringement of another’s rights, (vi) the use of counterfeit or stolen cards,
or stolen devices, or (vii) fraudulent electronic transactions. It shall be at
the sole discretion of PAYBEAM THE SERVICE PROVIDER to reverse any transaction
subject to approval of the concerned Service Provider. Notwithstanding the
above, if any court of law finds that PAYBEAM THE SERVICE PROVIDER or its
directors, officers, or employees, are liable to indemnify a concerned User
despite the existence of this Clause 3.8, such liability shall not exceed the
amount paid by the concerned User, if any, for using the portion of the PAYBEAM
THE SERVICE PROVIDER services or the Site giving rise to the cause of action.
Users acknowledge and agree that PAYBEAM THE SERVICE PROVIDER has offered its
products and services, set its prices, and entered into this Agreement and
Applicable Agreement in reliance upon the warranty, disclaimers, and the
limitations of liability set forth herein. Users acknowledge that the warranty,
disclaimers, and limitations of liability set forth herein reflect a reasonable
and fair allocation of risk between Users and PAYBEAM THE SERVICE PROVIDER, and
that the warranty, disclaimers, and limitations of liability set forth herein
form an essential basis of the bargain between Users and PAYBEAM THE SERVICE
PROVIDER. PAYBEAM THE SERVICE PROVIDER would not be able to provide the
services to Users on an economically reasonable basis without these limitation.
USER’S REPRESENTATIONS AND WARRANTIES. The User represents
and warrants that:
it has had a full and adequate opportunity to read and
review the Applicable Agreement and has had sufficient time to evaluate and investigate
the provision of services under the Applicable Agreement and the financial
requirements and risk associated with the same,
it has the requisite capital to set up and maintain the
infrastructure as required under the Applicable Agreement,
neither the execution of the Applicable Agreement nor the
performance of the User’s obligations under the Applicable Agreement will
result in a violation or breach of any other agreement by which the User is
bound,
neither the User nor any of the User’s employees or agents
is under any pre-existing obligation in conflict or in any way inconsistent
with the provisions of the Agreement or Applicable Agreement,
it has the right to disclose or use all ideas, and other
information, if any, which the User has gained from third parties, and which
the User discloses to PAYBEAM THE SERVICE PROVIDER in the course of performance
of the Agreement or Applicable Agreement, without liability to such third
parties,
PAYBEAM THE SERVICE PROVIDER has a right to inspect User’s
business premises that are related to the provision of services under the
Agreement or Applicable Agreement, and to monitor continued and ongoing
compliance of the Applicable Agreement,
it shall immediately intimate PAYBEAM THE SERVICE PROVIDER
of any violation or potential violation of this Agreement by any Applicable
Controlled Entity, or of other circumstances that may cause damage to the
goodwill and reputation of PAYBEAM THE SERVICE PROVIDER,
it shall maintain accurate and proper accounts of all
transactions between Applicable Controlled Entity and itself in relation to
discharge of duties by the Applicable Controlled Entity under the Applicable
Agreement,
it shall provide periodic reports of business operations
with respect to the services rendered under the Applicable Agreement to the
sales executive assigned by PAYBEAM THE SERVICE PROVIDER to the User,
it shall observe proper ethics and transparency in all its
actions in the course of discharge of duties under the Applicable Agreement and
shall not, in any circumstances, take any action or make any statement that may
mislead any Applicable Controlled Entity/customer or prospective Applicable
Controlled Entity /customer of PAYBEAM THE SERVICE PROVIDER
it shall make all efforts to settle any disputes that may
arise between Applicable Controlled Entity, or between the Applicable
Controlled Entity and the consumers amicably and in the event, any such dispute
is referred to a consumer forum or other competent authority, shall provide all
assistance in the settlement of the dispute,
it shall bear all costs and expenses for traveling,
promotional activities and other similar out-of-pocket expenses incurred in the
performance of its duties under the Applicable Agreement,
it will not allow the sale of any products and/or provision
of any services which are specifically restricted by PAYBEAM THE SERVICE
PROVIDER,
it is a one-point contact for all its Applicable Controlled
Entities and shall be solely responsible for any fraudulent acts of the
Applicable Controlled Entities,
it has complete control over its Applicable Controlled
Entities and that PAYBEAM THE SERVICE PROVIDER will not be responsible to
entertain any complaints/queries received from any Applicable Controlled
Entities appointed by the User,
it shall comply with all its obligations pursuant to the
Applicable Agreement and ensure that all payments due from it to PAYBEAM THE
SERVICE PROVIDER are paid in a timely manner in accordance with the Applicable
Agreement,
it shall be responsible to obtain any and all consents and
approvals that are required from regulatory or governmental authorities,
including any consent from Customers required to transfer data to the User
and/or the PAYBEAM THE SERVICE PROVIDER Platform, as the case may be, in
accordance with Applicable Law,
it shall ensure regular and timely payment and deposit of
all taxes, duties and other levies as applicable from time to time with the
relevant authorities,
All costs associated with purchasing of software licenses
and hardware (if any) are to be absolutely and unconditionally borne by the
User,
it shall be solely responsible for and hereby undertakes to
strictly comply with Privacy Policy, and Applicable Law having jurisdiction in
any manner whatsoever in connection with discharge of its duties under the
Applicable Agreement, including but not limited to data protection, security,
piracy, and directions issued by the Reserve Bank of India relating to payment
data, and shall obtain and maintain in full force and effect all registrations
required under Applicable Law for the operation of the business in terms of the
Applicable Agreement, and
it has full power and authority to enter into the Applicable
Agreement and to take any action and execute any documents required by the
terms hereof and this Applicable Agreement has been duly authorized, duly and
validly executed and delivered, and constitutes a legal, valid, and binding
obligation, enforceable in accordance with the terms hereof; and the persons
executing the Applicable Agreement on its behalf are duly empowered and
authorized to execute the Applicable Agreement and to perform all its
obligations in accordance with the terms herein
it shall not access (or attempt to access) the website and
the Products by any means other than through the interface that is provided by PAYBEAM
THE SERVICE PROVIDER. It shall not use any deep-link, page scrape, robot,
spider or other automatic device, program, algorithm or methodology, or any
similar or equivalent manual process, to access, acquire, copy or monitor any
portion of the PAYBEAM THE SERVICE PROVIDER Platform, or in any way reproduce
or circumvent the navigational structure or presentation of the platform,
without PAYBEAM THE SERVICE PROVIDER express prior written consent.
it shall not attempt to gain unauthorized access to any
portion or feature of the Platform, or any other systems or networks connected
to the Platform or to any server, computer, network, or to any of the services
offered on or through the Platform, by hacking, password "mining" or
any other illegitimate means.
INDEMNIFICATION.
(1) User agrees to indemnify, save, and hold PAYBEAM THE
SERVICE PROVIDER, its affiliates, contractors, employees, officers, directors,
agents and its third party suppliers, licensors, and partners harmless from any
and all claims, demands, actions, suits which may be threatened or brought
against PAYBEAM THE SERVICE PROVIDER, and also against all losses, damages,
liabilities, costs, charges and expenses, including without limitation, legal
fees and expenses arising out of or related to:
Users’ use or misuse of PAYBEAM THE SERVICE PROVIDER
services or of the Site/application,
any violation by the User of this Agreement or Applicable
Agreement,
any breach of representations, warranties and covenants made
by the User in this Agreement, or Applicable Agreement,
any claim or legal notice or quasi-legal proceedings to
which PAYBEAM THE SERVICE PROVIDER may be required to become party or to which PAYBEAM
THE SERVICE PROVIDER may be subjected by any person including any governmental
authority, by reason of breach of any Applicable Law,
due to failure of a User to obtain any required statutory or
regulatory approval necessary for the performance of its obligations in the
Applicable Agreement with PAYBEAM THE SERVICE PROVIDER,
all liability, claims, damages, costs, expenses suffered or
incurred by PAYBEAM THE SERVICE PROVIDER as a result of any act or violation of
the Business Partner under Section 269ST of the Income Tax Act, 1961 while
acting as collection agent of the Company
(2) PAYBEAM THE SERVICE PROVIDER reserves the right, at
User’s expense, to assume the exclusive defense and control of any matter,
including rights to settle, for which concerned User is required to indemnify PAYBEAM
THE SERVICE PROVIDER. User agrees to cooperate with PAYBEAM THE SERVICE PROVIDER
defense and settlement of these claims. PAYBEAM THE SERVICE PROVIDER will use
reasonable efforts to notify concerned User of any claim, action, or proceeding
brought by a third party that is subject to the foregoing indemnification upon
becoming aware of it.
DISCLAIMER. To the fullest extent permissible pursuant to
Applicable Law, PAYBEAM THE SERVICE PROVIDER
and its officers, directors, employees, and agents disclaim all
warranties, express or implied, including, but not limited to, implied
warranties of merchantability, fitness for a particular purpose, and
non-infringement of proprietary rights. No advice or information, whether oral
or written, obtained by a User from PAYBEAM THE SERVICE PROVIDER or through PAYBEAM THE SERVICE PROVIDER services or the Site will create any warranty
not expressly stated herein. PAYBEAM THE SERVICE PROVIDER does not authorize anyone to make any
warranty on its behalf and Users should not rely on any such statement. Users
acknowledge that PAYBEAM THE SERVICE PROVIDER
is a reseller and is not liable for any third-party seller’s
obligations. It is the User’s responsibility to evaluate the accuracy,
completeness and usefulness of all opinions, advice, merchandise and other
information provided through the Site or on the Internet generally. PAYBEAM THE
SERVICE PROVIDER does not warrant that
its services will be uninterrupted, or free of errors, viruses or other harmful
components and that any of the foregoing defects will be corrected. PAYBEAM THE
SERVICE PROVIDER services and the Site
and any data, information, third party software, Reference Sites, or software
made available in conjunction with or through its services and the Site are
provided on an “as is” and “as available”, “with all faults” basis and without
warranties or representations of any kind either express or implied. PAYBEAM THE
SERVICE PROVIDER and its third party
suppliers, licensors, and partners do not warrant or make any representations
regarding the use or the results of the use of PAYBEAM THE SERVICE
PROVIDER services, the Site or any
Reference Sites in terms of correctness, accuracy, reliability, or otherwise.
INTELLECTUAL PROPERTY. PAYBEAM THE SERVICE PROVIDER,
services and the Site are owned and operated by PAYBEAM THE SERVICE PROVIDER
and/or third-party licensors. The visual interfaces, graphics, design,
compilation, information, computer code (including source code and object
code), products, software, services, and all other elements of PAYBEAM THE
SERVICE PROVIDER services and the Site
provided by PAYBEAM THE SERVICE PROVIDER
(the “Materials”) are protected by Applicable Law. As between User and PAYBEAM
THE SERVICE PROVIDER , all Materials and
PAYBEAM THE SERVICE PROVIDER
Intellectual Property are the property of PAYBEAM THE SERVICE
PROVIDER and/or third-party licensors or
suppliers. User agrees not to remove, obscure, or alter PAYBEAM THE SERVICE
PROVIDER or any third party's copyright,
patent, trademark, or other proprietary rights notices affixed to or contained
within or accessed in conjunction with or through PAYBEAM THE SERVICE
PROVIDER services. Except as expressly
authorized by PAYBEAM THE SERVICE PROVIDER
, the User agrees not to sell, license, distribute, copy, modify,
publicly perform or display, transmit, publish, edit, adapt, create derivative
works from, or otherwise make unauthorized use of the Materials or PAYBEAM THE
SERVICE PROVIDER Intellectual Property.
Parties do not accrue any rights or interest in the other Party’s Intellectual
Property and use of any Intellectual Property by either User or PAYBEAM THE
SERVICE PROVIDER shall be strictly in
for the fulfillment of and in compliance with the terms of the agreement
between such User and PAYBEAM THE SERVICE PROVIDER . Parties undertake that they shall not, nor
will they allow others to, reverse engineer or disassemble any parts of the
other’s Intellectual Property. If Users’ have comments regarding the PAYBEAM THE
SERVICE PROVIDER services and the Site
or ideas on how to improve it, please contact our Helpdesk. Please note that by
doing so, concerned Users hereby irrevocably assign to PAYBEAM THE SERVICE
PROVIDER , and shall assign to PAYBEAM THE
SERVICE PROVIDER , all right, title and
interest in and to all ideas and suggestions and any and all worldwide
intellectual property rights associated therewith. Concerned User agrees to
perform such acts and execute such documents as may be reasonably necessary to
perfect the foregoing rights.
INTELLECTUAL PROPERTY LICENSE BY ALLIANCE PARTNER. Alliance
Partner grants a non-exclusive license to PAYBEAM THE SERVICE PROVIDER to use
Alliance Partner’s name, trademark, and logo in any marketing or promotional
activities undertaken by PAYBEAM THE SERVICE PROVIDER . Notwithstanding anything contained herein, PAYBEAM
THE SERVICE PROVIDER shall be under no
obligation to advertise, market, or promote Alliance Partner or Alliance
Partner’s Intellectual Property.
USE OF INTELLECTUAL PROPERTY. The user undertakes that:
it shall use the Intellectual Property solely for the
discharge of its duties under the Applicable Agreement,
it shall use Intellectual Property of PAYBEAM THE SERVICE
PROVIDER only in the form and manner
stipulated by PAYBEAM THE SERVICE PROVIDER ,
it shall seek prior written consent from PAYBEAM THE SERVICE
PROVIDER for use of PAYBEAM THE SERVICE
PROVIDER Intellectual Property which is
not previously provided for by PAYBEAM THE SERVICE PROVIDER ,
it shall bring to PAYBEAM THE SERVICE PROVIDER notice all cases concerning PAYBEAM THE
SERVICE PROVIDER Intellectual Property’s
(a) infringement, (b) passing off, (c) registration or (d) attempted
registration,
it shall render to PAYBEAM THE SERVICE PROVIDER all assistance in connection with any matter
pertaining to the protection of PAYBEAM THE SERVICE PROVIDER Intellectual Property whether in courts,
before administrative agencies, or otherwise,
it shall not take any action which shall or may impair PAYBEAM
THE SERVICE PROVIDER right, title or
interest in the Intellectual Property, or create any right, title or interest
therein or thereto, adverse to that of PAYBEAM THE SERVICE PROVIDER ,
it shall not use or permit to be used the Intellectual
Property by any unauthorized person, and
it shall not misuse the Intellectual Property or use it
together with any other mark or marks.
MODIFICATION. PAYBEAM THE SERVICE PROVIDER reserves the right to change, modify, add, or
remove the terms of this Agreement, either in its entirety or a part thereof
(each, a “change”) at any time by posting a notification to the Site or
otherwise communicating the notification to Users. The changes will become
effective, and shall be deemed accepted by Users, 24 hours after the initial
posting and shall apply immediately on a going-forward basis with respect to
payment transactions initiated after the posting date. If Users do not agree
with any such modification, Users sole and exclusive remedy is to terminate
their use of the Services.
CONFIDENTIALITY. Parties shall keep Confidential Information
as confidential. Each Party confirms that it shall protect Confidential
Information with such security, confidentiality, and degree of utmost care as
it would prudently apply to its own confidential information and use it solely
in connection with the transaction to which the Confidential Information
relates. Both Parties acknowledge and agree that they are aware of the
sensitivity & secrecy involved in keeping the customer data/information and
transaction records and shall ensure that neither any of the parties nor their
employees, directors, etc will do any act to violate the same. Notwithstanding
anything contained in this Clause 3.16, Confidential Information shall exclude
any information:
which is already in the possession of the receiving Party
and not subject to any other duty of confidentiality,
that is at the date hereof, or subsequently becomes, public
otherwise than by reason of a breach by the receiving party of the terms of
this Agreement,
Information that becomes legally available to the receiving
Party and/or its affiliates or professional advisors on a non-confidential
basis from any third party, the disclosure of which does not, to the knowledge
of that Party, violate any contractual or legal obligation which such third
party has to the other Party with respect to such information, and
Information that is independently acquired or developed by
the receiving Party and/or its affiliates or professional advisors.
DISCLOSURE OF CONFIDENTIAL INFORMATION. Each Party hereby
agrees that it shall not disclose any Confidential Information received by it
without the prior written consent of the other Party to any third party at any
time. Provided, however, that either Party may make the following disclosures
for which no consent shall be required from the other Party:
Disclosures to its directors, officers, employees,
affiliates/subsidiaries/group/holding companies, third-party service providers
and any employees thereof that it reasonably determines need to receive the
Confidential Information;
Disclosures to its legal and other professional advisers,
instructed by it that it reasonably determines to need to receive the
Confidential Information; or
Disclosures to any person to whom it is required by law or
any applicable regulatory, supervisory, judicial or governmental order, to
disclose such information, or at the request of any regulatory or supervisory
or judicial or government authority.
NON SOLICITATION OF EMPLOYEES. The Parties agree not to
solicit or employ staff from each other’s organizations during the term of this
Agreement and for 12 months immediately following the termination of the
Agreement.
NON SOLICITATION OF CLIENTS. During the term of this
Agreement, the User shall not, either directly or indirectly, solicit, cause in
any part of knowingly encourage any existing or potential clients or customers
of PAYBEAM THE SERVICE PROVIDER to cease
doing business or not to do business, in whole or in part with PAYBEAM THE
SERVICE PROVIDER , or solicit, cause in
any part or knowingly encourage an existing or potential clients or customers
of PAYBEAM THE SERVICE PROVIDER to do
business with any person other than PAYBEAM THE SERVICE PROVIDER , or associate with any prospective clients
or customers while they continue to be clients or customers of PAYBEAM THE
SERVICE PROVIDER .
NON-COMPETE ON BUSINESS PARTNER. Business Partner agrees
that during the Term and for a period of one (1) year thereafter, it shall not,
directly or indirectly, through its employees, affiliates or relatives or in a
firm where the Business Partner or any relative or nominee of the Business
Partner is a partner, or in any company where the Business Partner or any
relative or nominee of the Business Partner is a director or shareholder,
without the prior written consent of PAYBEAM THE SERVICE PROVIDER : (i) be appointed as a Business Partner for
any other person or legal entity which is carrying on a business similar to or
in competition with any business carried by PAYBEAM THE SERVICE PROVIDER at the relevant time, whether in India or
abroad, or (ii) engage in any business that is similar to or in competition
with any business carried on by PAYBEAM THE SERVICE PROVIDER at the relevant time.
COUNTERPARTS. The Applicable Agreement may be signed in two
(2) or more counterparts and each executed version or an electronic copy
thereof shall be deemed an original and which shall, singly or together,
constitute one agreement.
TERM. This Agreement and Applicable Agreement shall come
into force from the Effective Date and remain valid in perpetuity, unless
terminated by PAYBEAM THE SERVICE PROVIDER
by giving to the User, a prior written notice of at least 90 days
(“Term”).
TERMINATION. This Agreement and Applicable Agreement may be
terminated in accordance with the clauses below:
PAYBEAM THE SERVICE PROVIDER
shall be entitled to terminate this Agreement and Applicable Agreement by
serving a written notice of thirty (30) days to the User in the following
circumstances: (a) the User commits any breach of any of the provisions of this
Agreement or Applicable Agreement and, in the case of a breach capable of
remedy, fails to remedy the same within thirty (30) days after receipt of a
written notice giving full particulars of the breach and requiring it to be
remedied; (b) if, in PAYBEAM THE SERVICE PROVIDER opinion, the User is not a fit person/entity
to carry out the obligations imposed on the User under the Applicable
Agreement; (c) if the User fails to achieve the targets as may be communicated
by PAYBEAM THE SERVICE PROVIDER from
time to time.
On the occurrence of the User becoming subject of a
voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of
creditors.
PAYBEAM THE SERVICE PROVIDER
may terminate the Agreement and Applicable Agreement without notice
provided: (a) if, by the acts or default of the User, PAYBEAM THE SERVICE
PROVIDER suffers damage to its name and
reputation; or (b) the Business Partner commits any breach of Confidentiality;
or (c) upon the occurrence of force majeure under Clause 3.28 of this Agreement;
or (d) there is a change in shareholding/control or management of the User; or
(e) any event that would affect the ability of the User to perform its
obligations under the Applicable Agreement occurs; or (f) any of the
directors/partners/proprietors of the Business Partner are convicted of any
criminal charge.
in the event that PAYBEAM THE SERVICE PROVIDER gives notice that the Alliance Partner’s
software or hardware is technically inadequate to support the Connectivity at
any stage of development, and the Alliance Partner fails to cure such
deficiency within 90 days after receiving notice to such effect, then PAYBEAM THE
SERVICE PROVIDER shall be entitled to
give notice of termination as provided,
in the event PAYBEAM THE SERVICE PROVIDER is unable to get necessary permission /
license from any Service Provider and any statutory authority and/or any of the
Service Provider rescinds its contract with PAYBEAM THE SERVICE PROVIDER and/or the sale of Products slips down due to
any defective service, negligence or omission on part of the User, PAYBEAM THE
SERVICE PROVIDER shall have the right to
rescind the Agreement by giving 15 days’ notice to the User and the rescission
shall take effect after expiry of the stipulated period of 15 days. Provided
that unless otherwise specified by PAYBEAM THE SERVICE PROVIDER in its notice, any termination of this
Agreement, on account of rescission of an existing contract with any Service
Provider, shall be effective only in relation to Transactions pertaining to
such Service Provider and the Agreement shall continue to remain in force
between the Parties in respect of other Service Providers.
CONSEQUENCES OF TERMINATION. The Parties shall adhere to the
following clauses immediately upon termination of this Agreement:
Upon termination of the Agreement for any reason, PAYBEAM THE
SERVICE PROVIDER may immediately
disconnect the availability of Products from the PAYBEAM THE SERVICE
PROVIDER Platform, including related
services provided by the platform, and no further Transactions may be effected
through the PAYBEAM THE SERVICE PROVIDER
.
Except as otherwise agreed upon between the Parties, any
license to use Intellectual Property Products, of either Party which has been
granted by such Party to the other, pursuant to this Agreement, shall stand
automatically revoked with the termination of this Agreement by any Party.
User shall immediately discontinue and cease to use the
trademark, logo and other Intellectual Property provided by the Company and
shall immediately hand over any and all copies of documentation of such
Intellectual Property.
Upon the termination of this Agreement, the concerned User
shall return and surrender to PAYBEAM THE SERVICE PROVIDER any Confidential Information that comes into
its possession during the course of its engagement by PAYBEAM THE SERVICE
PROVIDER and shall not retain a copy
thereof in any form whatsoever. User shall, with PAYBEAM THE SERVICE
PROVIDER prior written consent, promptly
destroy the Confidential Information in its possession (and any copies,
extracts, and summaries thereof) and will provide PAYBEAM THE SERVICE
PROVIDER with written certification of
destruction.
immediately return to PAYBEAM THE SERVICE PROVIDER originals
and copies of any and all materials provided to the User pursuant to the
Applicable Agreement, including publicity and marketing materials in its
possession.
provide remote access to PAYBEAM THE SERVICE PROVIDER to
disable any software that PAYBEAM THE SERVICE PROVIDER had installed.
remove all signboards, banners, glow sign boards of PAYBEAM THE
SERVICE PROVIDER from its office and
also all such material, which will indicate any association with PAYBEAM THE
SERVICE PROVIDER
cease to promote, market or advertise PAYBEAM THE SERVICE
PROVIDER or its products/services.
the User shall grant PAYBEAM THE SERVICE PROVIDER , its
employees or agents, access to its information technology systems for a period
of thirty (30) days after termination.
Notwithstanding the above, the User shall not, if so
directed by PAYBEAM THE SERVICE PROVIDER discontinue discharging its duties under
the Applicable Agreement during the notice period and shall continue
discharging its duties as per the Applicable Agreement until indicated
otherwise by PAYBEAM THE SERVICE PROVIDER,
PAYBEAM THE SERVICE PROVIDER shall have the right, exercisable
at its sole discretion, to appoint another User in its place. The User shall
fully cooperate with such newly appointed User.
Upon notice of termination from either party, the User shall
ensure that during the notice period leading to the termination, all systems
and procedures will be strictly adhered to and all customers handled properly.
All inquiries from customers will be diverted to PAYBEAM THE SERVICE
PROVIDER by the User.
Subject as otherwise provided in this Agreement and to any
rights or obligations that have accrued before termination, neither Party shall
have any further obligation to the other under this Agreement.
Any termination of this Agreement or Applicable Agreement
shall be without prejudice to PAYBEAM THE SERVICE PROVIDER rights under law and equity
PROMOTION. The user shall promote the sale of PAYBEAM THE
SERVICE PROVIDER products/services in accordance with the publicity and
marketing guidelines issued by the PAYBEAM THE SERVICE PROVIDER from time to time. User shall only
market/promote PAYBEAM THE SERVICE PROVIDER
services as authorized by PAYBEAM THE SERVICE PROVIDER in writing in this behalf and shall not
market/promote any other services that may potentially be provided by PAYBEAM THE
SERVICE PROVIDER in the future unless
otherwise authorized in writing. The user shall maintain stock and prepare MIS
of the promotional material dispatched from PAYBEAM THE SERVICE PROVIDER and
ensure that such material will be displayed in the Merchant outlets at
prominent eye-level locations to promote the business at that outlet.
ARBITRATION. PAYBEAM THE SERVICE PROVIDER may elect to
resolve any dispute, controversy or claim arising out of or relating to the
Agreement or PAYBEAM THE SERVICE PROVIDER
services by binding arbitration in accordance with the provisions of the
Indian Arbitration & Conciliation Act, 1996. Any such dispute, controversy
or claim shall be arbitrated on an individual basis and shall not be
consolidated in any arbitration with any claim or controversy of any other
party. PAYBEAM THE SERVICE PROVIDER
shall nominate a sole arbitrator who shall preside over the arbitration
proceedings between PAYBEAM THE SERVICE PROVIDER and concerned User. The arbitration shall be
conducted in New Delhi, India and judgment on the arbitration award may be
entered in any court having jurisdiction thereof. Either PAYBEAM THE SERVICE
PROVIDER or concerned User may seek any
interim or preliminary relief from a court of competent jurisdiction in New
Delhi, India, necessary to protect the rights or the property of concerned User
or PAYBEAM THE SERVICE PROVIDER (or its
agents, suppliers, and subcontractors), pending the completion of arbitration.
Any arbitration shall be confidential, and concerned User, nor shall PAYBEAM THE
SERVICE PROVIDER disclose the existence,
content or results of any arbitration, except as may be required by law or for
purposes of the arbitration award. All administrative fees and expenses of an
arbitration will be divided equally between PAYBEAM THE SERVICE PROVIDER and concerned User. In all arbitrations,
each party will bear the expense of its own lawyers and preparation. The
language of the arbitration shall be English.
GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of India, without regard to its conflict
of law provisions and, subject to the arbitration provision in section 3.19,
the exclusive jurisdiction of competent courts in New Delhi, India.
FORCE MAJEURE. Neither Party shall be liable for failure to
perform its obligations under this Agreement to the extent such failure is due
to causes beyond its reasonable control. In the event of a force majeure, the
Party unable to perform shall notify the other Party in writing of the events
creating the force majeure and the performance obligations of the Parties will
be extended by a period of time equal to the length of the delay caused by
force majeure; provided that if any such delay exceeds ninety days, then
following such ninety-day period, either party hereto may terminate the unperformed
portions of this Agreement on ten days prior written notice to the other Party.
For the purposes of this Agreement, force majeure events shall include, but not
be limited to, acts of God, failures or disruptions, orders or restrictions,
war or warlike conditions, hostilities, sanctions, mobilizations, blockades,
embargoes, detentions, revolutions, riots, looting, strikes, stoppages of
labor, lockouts or other labor troubles, earthquakes, fires or accidents.
RECORDS AND AUDIT. The Users shall maintain all statutory
records as may be required from time to time to be maintained under the
Applicable Law. Further, the Users shall maintain accurate books of accounts in
relation to their engagement with PAYBEAM THE SERVICE PROVIDER, pursuant to
service rendered by User pursuant to the Applicable Agreement, in accordance
with standard accounting practices and shall have the same audited annually by
an auditor of good standing and repute and shall forward copies of the audited
accounts to PAYBEAM THE SERVICE PROVIDER annually or as and when required by PAYBEAM
THE SERVICE PROVIDER. The user hereby permits the authorized personnel of the PAYBEAM
THE SERVICE PROVIDER to enter and inspect all books, accounts, records, and
materials in relation to the business operations related to the Applicable
Agreement during normal business hours. During the term of Applicable Agreement
and at any time within sixty (60) days after the termination of the Applicable
Agreement, PAYBEAM THE SERVICE PROVIDER or its employee/representative/agent
may, at its expense, carry out an audit to determine whether the User has
properly complied with its obligations under the Applicable Agreement. In the
event the results of such audit determine that the User has not complied with
its obligations under the Applicable Agreement, PAYBEAM THE SERVICE PROVIDER
shall intimate the User of such nonperformance or the non-observance and the
Business Partner shall immediately comply with its obligations, or within such
other period as may be specified by Company.
PUBLIC RELATIONS. Upon execution of the Applicable
Agreement, Parties shall have the right to announce the cooperative arrangement
as described in the Agreement, provided that all announcements must be approved
in writing by both Parties and such approval shall not be unreasonably
withheld.
SEVERABILITY. If any provision of this Agreement is held to
be unlawful, void, invalid or otherwise unenforceable, then that provision will
be limited or eliminated from this Agreement to the minimum extent required,
and the remaining provisions will remain valid and enforceable.
ASSIGNMENT. This Agreement and any rights granted hereunder
may not be transferred or assigned by User without SUSHMA S,2ndcross,RMS colony, Bhattarahally, KR puram,Bangalore-560049 prior written consent
but may be assigned by SUSHMA S,2nd cross, RMS colony, Bhattarahally,
KR puram,Bangalore-560049 without restriction. Any assignment attempted to be
made in violation of this provision shall be void and of no effect.
SURVIVAL. Clause 1.4, 2.1, 3.3, 3.8, 3.9, 3.10, 3.11, 3.12,
3.13, 3.16, 3.17, 3.18, 3.19, 3.20, 3.26, 3.27, 3.33 of this Agreement shall
survive the termination or expiration as applied to transfers and relationship
prior to such termination or expiration.
HEADINGS. The heading references herein are for convenience
purposes only, do not constitute a part of this Agreement, and will not be
deemed to limit or affect any of the provisions hereof.
ENTIRE AGREEMENT. This is the entire agreement between Users
and PAYBEAM THE SERVICE PROVIDER
relating to the subject matter hereof and will not be modified except in
writing, signed by both parties, or by a Change to this Agreement made by PAYBEAM
THE SERVICE PROVIDER in accordance with the terms of this Agreement.
NOTICE. PAYBEAM THE SERVICE PROVIDER may provide Users with
notices and communications by email, regular mail, or posts on the PAYBEAM THE
SERVICE PROVIDER website, www.Sahaallrecharge.IN or by any other reasonable
means. Except as otherwise set forth herein, notice to PAYBEAM THE SERVICE
PROVIDER must be sent by courier or
registered post to Legal Department, PAYBEAM THE SERVICE PROVIDER SUSHMA S,#2, 2nd cross, RMS
colony, Bhattarahally, KR puram,Bangalore-560049
WAIVER. The failure of PAYBEAM THE SERVICE PROVIDER to exercise or enforce any right or provision
of this Agreement will not constitute a waiver of such right or provision. Any
waiver of any provision of this Agreement will be effective only if in writing
and signed by PAYBEAM THE SERVICE PROVIDER
.
RELATIONSHIP BETWEEN THE PARTIES. This Agreement is not
intended by the Parties to constitute or create a joint venture, pooling
arrangement, partnership, agency or formal business organization of any kind. PAYBEAM
THE SERVICE PROVIDER and the Alliance
Partner/Business Partner shall be independent contractors with each other for
all purposes at all times and neither Party shall act as or hold itself out as
an agent or representative of the other Party nor shall create or attempt to
create liabilities for the other Party by acting or holding itself out as such