18. Non Refundable Registration Fees: The Retailer/Distributor/Master Distributor shall deposit such an
amount ("Registration Fees") by way of a non-refundable registration fee as per commercial terms defined
by PAYNEAR SOLUTION SERVICE on or before the Effective Date.
19. The Retailer/Distributor/Master Distributor shall maintain and deposit with PAYNEAR SOLUTION SERVICE working capital ("Working Capital") in a bank designated and intimated to the
Retailer/Distributor/Master Distributor for this purpose ("Designated Bank) which will be an interest
free deposit. The Working Capital limit may be increased from time to time by way of written intimation
to the Retailer/Distributor/Master Distributor. The Retailer/Distributor/Master Distributor shall
immediately deposit such further amounts to ensure that the Working Capital is maintained at the
aforementioned amounts at all times.
20. The Retaller/Distributor/Master Distributor shall be entitled to a credit limit equivalent to the
Working Capital balance in the books of PAYNEAR SOLUTION SERVICE ("Credit Limit").. The
Retailer/Distributor/Master Distributor may enter into transactions up to the value of the existing
Credit Limit. In the event the value of the transactions exceed the Credit Limit, all further
transactions exceeding the Credit Limit shall automatically be blocked until the Credit Limit is
sufficient to permit further transactions. In the event the Retailer/Distributor/Master Distributor
desires to enter into transactions in excess of the Credit Limit, the Retailer/Distributor/Master
Distributor shall deposit the amount either with the Distributor or PAYNEAR SOLUTION SERVICE
as the case may be to increase its Credit Limit accordingly. The Distributor/ PAYNEAR SOLUTION SERVICE shall, at their sole discretion, permit enhancement of the Credit Limit. If the amount
is deposited with the Distributor, the Retailer/Distributor/Master Distributor need to obtain proper
receipt and the limit gets enhanced from the Distributor. PAYNEAR SOLUTION SERVICE shall not
be responsible for any liabilities in such an event
21. The Retailer/Distributor/Master Distributor shall be entitled to commission, which shall be adjusted
on a daily basis/monthly basis/transaction basis, for the provision of the Services at a rate to be
intimated by PAYNEAR SOLUTION SERVICE to the Retailer/Distributor/Master Distributor from
time to time through its portal, either by way of credit to the Working Capital or the
Retailer/Distributor/Master Distributor may deduct the commission due to it, prior to depositing the
proceeds of a transaction in the Current Account. The Retailer/Distributor/Master Distributor shall be
regularly updated on the Rates of Commission through the Portal. PAYNEAR SOLUTION SERVICE, at
its sole discretion shall decide the sharing of Gross Margin with the Retailer/Distributor/Master
Distributors and its decision will be final. It is presumed that the Retailer/Distributor/Master
Distributor has agreed to such commission / margin before the transaction. Any dispute in this regards
will not be admissible by PAYNEAR SOLUTION SERVICE
22. All prices, charges, fees and discounts for all PAYNEAR SOLUTION SERVICE Services shall
be determined, and may from time to time be revised, by PAYNEAR SOLUTION SERVICE at its sole
discretion. The Retailer/Distributor/Master Distributor shall not collect cash from the customers by
offering discounts on the Services which do not have PAYNEAR SOLUTION SERVICE's sanction. The
Retailer/Distributor/Master Distributor shall also not provide any incentives, subsidies or do any act/
omission or thing, which shall have the effect of providing incentives or subsidies on the Services. The
Retailer/Distributor/Master Distributor acknowledges that PAYNEAR SOLUTION SERVICE has the
right to alter the prices or nullify any sales that have been entered in the portal.
23. All current and/or future taxes or similar fees including without limitation GST, value added tax,
service tax and other local or municipal taxes shall be payable by the Retailer/Distributor/Master
Distributor. Such amounts shall not be retained by the Retailer/Distributor/Master Distributor while
retaining its commission. Payments made to the Retailer/Distributor/Master Distributor shall be
subject to such withholdings as prescribed under applicable law. Subject to the aforesaid, PAYNEAR SOLUTION SERVICE assumes no responsibility for the tax compliance of the
Retailer/Distributor/Master Distributor.
Costs
24. All costs and expenses for operation of PAYNEAR SOLUTION SERVICE Kiosk including but
not limiting to electricity, telephone, staff salary, traveling, promotional activities and other
similar out-of-pocket expenses incurred in the performance of the Services shall be borne by the
Retailer/Distributor/Master Distributor
Activity/Inactivity charges
25. A minimum monthly charges plus Taxes may be levied by PAYNEAR SOLUTION SERVICE and the
same shall be deducted from the Retailer/Distributor/Master Distributor's Working Capital balance. The
Retailer/Distributor/Master Distributor hereby agrees and acknowledges to pay such charges as
intimated to the Retailer/Distributor/Master Distributor from to time
Set off: PAYNEAR SOLUTION SERVICE may, deduct sums due from the Retailer/Distributor/Master
Distributor under these Terms and Conditions from any sums due to the Retaller/Distributor/Master
Distributor under the same and the Retailer/Distributor/Master Distributor hereby consents to such set
off being made by PAYNEAR SOLUTION SERVICE
EMPLOYEES
26. The Retailer/Distributor/Master Distributor shall be solely responsible for all such personnel
employed by it, including payment of wages, making of contributions under various labour laws, such as
the Employees Provident Fund and Miscellaneous Provisions Act, 1952, the Employees State Insurance
Act, 1948, etc.
27. The Retailer/Distributor/Master Distributor acknowledges that it shall be responsible for all acts
and comissions of its employees, subordinates, agents,aforesaid assignees or other personnel engaged
by the Retailer/Distributor/Master Distributor.
EXCLUSIVITY AND NON COMPETE
28. During the continuation Term of this agreement, the Retailer/Distributor/Master Distributor shall
not, directly or indirectly, through any other person, firm, corporation or other entity (whether as
an officer, director, employee, partner, consultant, holder of equity or debt investment, lender or in
any other manner or capacity)
market, offer and/or perform services similar to that being developed, offered or sold by PAYNEAR SOLUTION SERVICE; solicit, induce, encourage or attempt to induce or encourage any employee
or consultant of PAYNEAR SOLUTION SERVICE to terminate his or her employment or consulting
relationship with PAYNEAR SOLUTION SERVICE, or to breach any other obligation to PAYNEAR SOLUTION SERVICE; (c) solicit, interfere with, disrupt, alter or attempt to disrupt or alter
the relationship, contractual or otherwise, between PAYNEAR SOLUTION SERVICE and any other
person including, without limitation, any consultant, contractor, customer, potential customer, or
supplier of PAYNEAR SOLUTION SERVICE; or (d) engage in or participate in any business
conducted under any name that shall be the same as or similar to the name of PAYNEAR SOLUTION SERVICE or any trade name used by PAYNEAR SOLUTION SERVICE.
INTELLECTUAL PROPERTY
29. No license under any patents, copyrights, trademarks or any other intellectual property rights of
PAYNEAR SOLUTION SERVICE/ its affiliates / its Service Provider(s)/ third party(ies) is
granted to or conferred upon to the Retailer/Distributor/Master Distributor by virtue of being the
Retailer/Distributor/Master Distributor of PAYNEAR SOLUTION SERVICE. The
Retailer/Distributor/Master Distributor shall not acquire any interest and right on the trademark(s),
trade name(s), logo, etc. of other party including PAYNEAR SOLUTION SERVICE by virtue of
this Agreement and shall not use the logos, trademark of PAYNEAR SOLUTION SERVICE/owner of
intellectual property on including interalia the Retailer/Distributor/Master Distributor's Rubber
stamps, letterheads, Visiting Cards, websites etc. and/or any such material in whatsoever
manner.
30. The Retailer/Distributor/Master Distributor agrees to protect the logo, trade name and trademark
of PAYNEAR SOLUTION SERVICE and not use the same, in any unauthorised manner, whatsoever,
including interalia as a tool for acknowledging payments accepted by the Retailer/Distributor/Master
Distributor/his representative, thereby creating false impression about the authenticity of such
acknowledgment / receipt. The Retailer/Distributor/Master Distributor hereby undertakes to indemnify,
defend and hold PAYNEAR SOLUTION SERVICE harmless for all loss(es) / damage(s) arising due
to infringement of this clause.
The Retailer/Distributor/Master Distributor is aware of the consequences, if at all, the
Retailer/Distributor/Master Distributor and/or his representative are found in unauthorized use of
PAYNEAR SOLUTION SERVICE logo/ trade name(s) in any manner, then strict action shall be
taken against the Retailer/Distributor/Master Distributor, including permanent deactivation of his
Services, but not limited to any other legal action which PAYNEAR SOLUTION SERVICE may deem
fit and proper, under the provisions of law.
CONFIDENTIALITY AND SECURITY
31. The Retailer/Distributor/Master Distributor agrees that all information disclosed by PAYNEAR SOLUTION SERVICE or which the Retailer/Distributor/Master Distributor gets in the course of
negotiating this Agreement is confidential in nature and hence cannot be disclosed. Each Party may
disclose the existence of this Agreement, but agrees that the terms and conditions of this Agreement
will be treated as Confidential Information; provided, however, that each Party may disclose the terms
and conditions of this Agreement:
as required by any court or other governmental body.
(a) to legal counsel of the Parties; in confidence, to accountants, banks, and financing sources and
their advisors;
(b) in connection with the enforcement of this Agreement or rights under this Agreement;
(c) in confidence, in connection with an actual or proposed merger, acquisition or similar
transaction.
32. The Retailer/Distributor/Master Distributor also agrees that on and from the date of this
Agreement all information, which the Retailer/Distributor/Master Distributor may obtain from PAYNEAR SOLUTION SERVICE pursuant to this Agreement, shall be kept confidential by the
Retailer/Distributor/Master Distributor and shall not be disclosed to any third party, save and except
with the prior written consent of the PAYNEAR SOLUTION SERVICE.
SECURITY OF CONFIDENTIAL USER INFORMATION
33. Security of POS User ID and Password: The Retailer/Distributor/Master Distributor shall be solely,
exclusively and absolutely responsible and liable for safe- guarding and/or securing the
confidentiality of the user id and passwords relating to access of PAYNEAR SOLUTION SERVICE
Services and such other relevant information, in whatsoever name called pertaining to the
Retailer/Distributor/Master Distributor/User Account of the Retailer/Distributor/Master
Distributor.
34. Unauthorized Access: The Retailer/Distributor/Master Distributor shall take all necessary
precautions to prevent unauthorized and illegal use of PAYNEAR SOLUTION SERVICE services
and unauthorized access to the Retailer/Distributor/Master Distributor Accounts provided by PAYNEAR SOLUTION SERVICE The Retailer/Distributor/Master Distributor hereby agrees that PAYNEAR SOLUTION SERVICE shall not be held liable and/or responsible for any wrong doings/
misappropriation/ misrepresentation/any leakage of passwords and for any liability arising due to
insufficient security maintained by the Retailer/Distributor/Master Distributor with respect to the
Retailer/Distributor/Master Distributor account. PAYNEAR SOLUTION SERVICE shall take all
commercially viable and/or reasonable care to, ensure the security of and to prevent unauthorized
access, using commercially viable and reasonable technology available to PAYNEAR SOLUTION SERVICE.
Fraud/fake transactions
35. PAYNEAR SOLUTION SERVICE shall not be liable and/or responsible for any fraud/fake
transactions occurring from the Retailer/Distributor/Master Distributor id by any third party.
PAYNEAR SOLUTION SERVICE takes utmost care for encryption of the
Retailer/Distributor/Master Distributor's personal details. However, PAYNEAR SOLUTION SERVICE cannot control the misuse of the sensitive information like password/s once it is handed over
to the Retailer/Distributor/Master Distributor. Retailer/Distributor/Master Distributors shall be
responsible to follow standard guidelines for securing their id/password for the PAYNEAR SOLUTION SERVICE Software.
(a) PAYNEAR SOLUTION SERVICE will not be responsible or liable for any wrong transaction
done by the Retailer/Distributor/Master Distributor by using fake fingerprints or cloning
fingerprints.
(b) In case of any issue with the documents provided by the Retailer/Distributor/Master Distributor,
PAYNEAR SOLUTION SERVICE may collect OTP from the member to download the documents as KYC,
if the member fails to do the KYC successfully, the member ID may be blocked.
(c) Retailer/Distributor/Master Distributor misbehaving or abusing with customer care, charges ranging
from 100 to 10,000 can be imposed and ID can also be blocked
WARRANTIES AND CONVENANTS OF THE RETAILER/DISTRIBUTOR/MASTER DISTRIBUTOR
36. The Retailer/Distributor/Master Distributor hereby warrants, covenants and undertakes that it
shall
Promptly, effectively, efficiently and professionally sell, market, distribute and promote the
Services and shall promptly respond to all inquiries by any customer or
potential customer in relation to the Services. at all times co-operate with PAYNEAR SOLUTION SERVICE's representative(s) and promptly report to PAYNEAR SOLUTION SERVICE any
complaints or customer feedback relating to the Services which may come to the
Retailer/Distributor/Master Distributor's attention. ) Conduct its operations in compliance with
applicable law, these Terms and Conditions and all guidelines and instructions that may be provided by
PAYNEAR SOLUTION SERVICE from time to time.
) Promote PAYNEAR SOLUTION SERVICE's business interests.
not do or omit, or cause to be done or omitted, any act, deed or thing, directly or indirectly which
may potentially result in any damage to, loss of reputation of or any
loss to PAYNEAR SOLUTION SERVICE in any manner whatsoever,
) employ sufficient number of personnel to provide the Services, who shall be adequately trained to
provide the Services; Ensure all personnel employed by it comply with these Terms and Conditions and
the Retailer/Distributor/Master Distributor shall be solely responsible for all acts/omissions of such
personnel.
Not enter into any agreements with customers or any other third parties which are contrary to law or
to these Terms and Conditions. ) adhere to and shall cause its employees, subordinates, agents,
aforesaid assignees or other personnel engaged by the Retailer/Distributor/Master Distributor to
provide the Services to adhere to the dress code and professional conduct and etiquette as prescribed
by PAYNEAR SOLUTION SERVICE from time to time; ensure that none of the Services are denied
to any person or group of persons or to any customer save and except with the express written consent
and/or
instructions of PAYNEAR SOLUTION SERVICE ; not engage in any unfair or unethical trade or
practice;
(1) not permit unauthorized persons entry into the Retail Outlet and shall, under no circumstance,
permit any unauthorized person to access the computer/server located at the Retail Outlet or access to
information, material, accounts and records in relation to PAYNEAR SOLUTION SERVICE.
Services.
(2) not permit any other person whosoever, to conduct any business, trade or profession of any nature
at the Retail Outlet; and obtain and maintain all required necessary approvals, permits, waivers,
consents, registrations and licenses from the relevant authority to perform all its obligations under
these Terms and Conditions.
37. The Retailer/Distributor/Master Distributor agrees that it shall be solely liable and responsible
for any seizure of instruments provided by PAYNEAR SOLUTION SERVICE to it by any
governmental authority for its actual or alleged illegal and unlawful act.
38. The Retailer/Distributor/Master Distributor agrees that it shall be solely liable and responsible
for taking any type of Insurance including but not limited to Cash handling/transit Insurance, in
accordance to provide protection to PAYNEAR SOLUTION SERVICE business accordingly from time
to time.
39. The Retailer/Distributor/Master Distributor agrees and undertakes to ensure that the contact
details including phone number and/or any other credentials of the consumer/s which needs to be
captured on PAYNEAR SOLUTION SERVICE platform for acknowledging the transaction done at
PAYNEAR SOLUTION SERVICE network, should be genuinely of the customer and/or taken from the
customer/s and the Retailer/Distributor/Master Distributor shall not put his own or any fake / wrong
credentials on behalf of customer/s, in any manner whatsoever.
40. The Retailer/Distributor/Master Distributor also agrees that it shall during the Term of this
Agreement, allow PAYNEAR SOLUTION SERVICE and/or any other statutory authority/ person of
its management, auditors, regulators and/or agents the opportunity of inspecting, examining, auditing
and/or taking copies of any records with the Retailer/Distributor/Master Distributor in relation to
the performance of the Services by the Retailer/Distributor/Master Distributor.
41. The Retailer/Distributor/Master Distributor shall co-operate with such internal or external
auditors and/or as defined above to assure a prompt and accurate audit of the
Retailer/Distributor/Master Distributor's records and data and shall also co-operate in good faith and
in best efforts basis with PAYNEAR SOLUTION SERVICE to correct any practices, which are
found to be deficient as a result of any such audit within a reasonable time.
42. The Retailer/Distributor/Master Distributor shall perform its responsibilities under these Terms
and Conditions diligently and shall strive to increase the sale of PAYNEAR SOLUTION SERVICE
Services to the best of its ability and shall always maintain a good relationship with the specified
Distributor and the customers and shall maintain total transparency in relation to the same.
REPRESENTATIONS AND WARRANTIES
43. The Retailer/Distributor/Master Distributor represents and warrants that:
it has had a full and adequate opportunity to read and review this Agreement and to be thoroughly
advised of the terms and conditions of this Agreement by an attorney or other personal representative,
and has had sufficient time to evaluate and investigate the provision of Services under this Agreement
and the financial requirements and risks associated with the same;
Neither the execution of this Agreement nor the performance of the Retailer/Distributor/Master
Distributor's obligations under this Agreement will result in a violation or breach of any other
agreement by which the Retailer/Distributor/Master Distributor is bound;
it has and will continue to have the power and authority to be bound by these Terms and Conditions and
to perform and fulfill all activities contemplated herein and that no other person or entity is
required to consent or provide permission to the activities contemplated under these Terms and
Conditions and the Retailer/Distributor/Master Distributor is not subject to any agreement, judgment
or order inconsistent with these Terms and Conditions;
(a) the entry into and performance of these Terms and Conditions in accordance therewith shall not
result in a violation of applicable law, its charter documents or any other agreement by which it is
bound; and it is adequately insured for all liabilities specified herein.
44. The warranties provided herein by the Retailer/Distributor/Master Distributor are in addition to
and do not exclude any of the implied warranties under the applicable law with respect to the
activities contemplated under these Terms and Conditions.
MISCELLANEOUS
45. Governing Law: These Terms and Conditions shall be governed by, and construed in accordance with
Indian law as such law shall from time to time be in effect, subject to Delhi Jurisdiction courts
only. 46. Dispute Resolution: The Parties shall try and resolve disputes, if any, arising under these
Terms and Conditions amicably failing which the same shall bereferred to arbitration in accordance
with the Arbitration and Conciliation Act, 1996 or any modifications or re-enactments thereof. The
arbitration shall be conducted by a sole arbitrator agreed between both Parties. The venue of
arbitration shall be New Delhi Only. The arbitration proceedings shall be in English. The award shall
be final and binding on the Parties. A Retailer/Distributor/Master Distributor is a business associate
and the relationship is created under this agreement. In no way the Retailer/Distributor/Master
Distributor is a customer of PAYNEAR SOLUTION SERVICE and shall not be entitled to the
remedy under consumer dispute Act. In the event of disputes between the Retailer/Distributor/Master
Distributor and any other operator of PAYNEAR SOLUTION SERVICE Retail Outlet, such disputes
shall be resolved by an officer of PAYNEAR SOLUTION SERVICE, whose decision shall be final
and binding.
Non-Exclusive Appointment
47. The Retailer/Distributor/Master Distributor hereby acknowledges that all of the rights provided
under these Terms and Conditions including area of operation, without limitation, the limited license
to use PAYNEAR SOLUTION SERVICE Intellectual Property are non-exclusive in nature and
nothing herein shall be read to prejudice any right that PAYNEAR SOLUTION SERVICE to any
other person any other right or permission to perform the activities contemplated under these Terms
and Conditions.
Force Majeure
48. If PAYNEAR SOLUTION SERVICE is prevented from performing any of its obligations under
this Agreement due to any cause beyond PAYNEAR SOLUTION SERVICE's reasonable control,
including, but without limitation to, any act of God, fire, flood, explosion, war, strike, embargo,
government authority / regulation, civil or military authority, acts or omissions of carriers,
transmitters, providers, vandals, or hackers, major system break down and data loss beyond recoverable
(a "Force Majeure Event") the time for PAYNEAR SOLUTION SERVICE's performance will be
extended for the period of the delay or inability to perform due to such occurrence; provided, however
that if PAYNEAR SOLUTION SERVICE is unable to cure that event within 30 (thirty) days of
the Force Majeure Event ceasing, or such further time as may be granted by PAYNEAR SOLUTION SERVICE, PAYNEAR SOLUTION SERVICE may terminate the Retailer/Distributor/Master
Distributor's appointment without any compensation or damages.
Injunctive Relief
49. PAYNEAR SOLUTION SERVICE shall be entitled to injunctive relief in the event of breach
of the terms of these Terms and Conditions by the Retailer/Distributor/Master Distributor to prevent
or curtail any actual or threatened breach by the Retailer/Distributor/Master Distributor of the
express provisions of these Terms and Conditions or purpose fundamental (though not expressed) to
signing of these Terms and Conditions.
Relationship
50. The Services rendered by the Retailer/Distributor/Master Distributor under this Agreement shall
be provided to PAYNEAR SOLUTION SERVICE on "Principle to Principle" basis, and nothing in
this Agreement creates or shall be deemed to.
create the relationship of partners, a joint venture, employer-employee, or principal-agent between
the Parties. The Retailer/Distributor/Master Distributor shall not, without PAYNEAR SOLUTION SERVICE's prior written approval, either on its invoices, letterheads or any other place or
by any other means, orally or in writing, make any statement or representation, calculated or liable
to induce others to believe that the Retailer/Distributor/Master Distributor is the agent of
PAYNEAR SOLUTION SERVICE or do any act, deed or things to bind PAYNEAR SOLUTION SERVICE in any way in dealing with any third party (ies). The Retailer/Distributor/Master
Distributor is providing services to the customers and any dispute with the consumer shall be sole
responsibility of the Retailer/Distributor/Master Distributor.
Notice
51. Any notice required to be provided hereunder by one Party to the other shall be given in
writing and shall be delivered by
(a) personal messenger,
(b) proof of delivery requested courier service or
(c) facsimile. All notices shall be delivered to the address of the Parties as provided in the
Retailer/Distributor/Master Distributor Application Form.
Assignment
52. The Retailer/Distributor/Master Distributor may not assign or delegate any of its rights or
obligations hereunder without a prior written consent from PAYNEAR SOLUTION SERVICE.
Subject to the foregoing, the rights and obligations under these Terms and Conditions shall ensure
to the benefit of, and shall be binding upon, the heirs, legatees, successors, representatives,
and permitted assigns of the respective Parties.53. For the purpose of this Agreement, the term
"Software" shall include custom built software that is owned by PAYNEAR SOLUTION SERVICE, or software that has been licensed from third party suppliers by PAYNEAR SOLUTION SERVICE and in relation to which PAYNEAR SOLUTION SERVICE has obtained the
right to sub license from such third party suppliers.
54. The Retailer/Distributor/Master Distributor shall not sublicense, assign or otherwise transfer
the said Software to any person and/or any third party and is expressly prohibited from
distributing, sublicensing, assigning, transferring or otherwise, the Software, or other technical
documentation /information pertaining thereto, or any portions thereof in any form.
55. The Retailer/Distributor/Master Distributor shall not make any changes / modifications /
alterations in entire / any part of Software / Intellectual Property of PAYNEAR SOLUTION SERVICE
Severability