Terms & Conditions

These Terms of Use were last modified on 8th August, 2018

Terms of Use:

This document is an electronic record in terms of Information Technology Act, 2000 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000. This electronic record is generated by a computer system and does not require any physical or digital signatures.

This document is published in accordance with the provisions of Rule 3 (1) of the Information Technology (Intermediaries guidelines) Rules, 2011 that require publishing the rules and regulations, privacy policy and Terms of Use for access or usage of a computer resource.

This Terms of Use Agreement (“Agreement”) is a legal agreement between Merchant (“you,” “your”) and PayKun Payment Solutions Private Limited (“PayKun”, “we”, “our” or “us”) governing your use of PayKun’s services whereby PayKun shall provide aggregate payment gateway solutions to you for selling Products (as defined below) and/or collecting money for a specified purpose (together, the “PayKun Services”).

When you use PayKun Services provided by us, you will be subject to the rules, guidelines, policies, terms, and conditions applicable to such service, and they shall be deemed to be incorporated into this Agreement and shall be considered as part and parcel of this Agreement. The Privacy Policy and the Disclaimer form a part of this Agreement. We reserve the right, at our sole discretion, to change, modify, add or remove portions of this Agreement at any time without any prior written notice to you. It is your responsibility to review this Agreement periodically for updates / changes. Your continued use of PayKun Services following the posting of changes will mean that you accept and agree to the revisions.

ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF USE

This Terms of Use Agreement ("Agreement") sets forth the legally binding terms for your use of the PayKun.com Services. If you do not agree with such modification you have the right to terminate your membership with PayKun.com. You agree to be bound to any changes to this Agreement when you use the PayKun.com Services after the modification has been posted for at least one month. It is therefore important that you review this Agreement regularly to ensure you are updated as to any changes. "The Service" is provided to you, "The User", under the terms and conditions and any amendments thereto and any operating rules or policies that may be published from time to time by PayKun.com as part of the Terms of Use. By using the PayKun.com Services, you agree to be bound by this Agreement, whether you are a "Visitor" (which means that you simply browse the PayKun.com Websites) or you are a "Member" (which means that you have registered with PayKun.com). The term "User" refers to a Visitor or a Member. You are only authorized to use the PayKun.com Services if you agree to abide by all applicable laws and to this Agreement. The PayKun.com Terms of Use comprises the entire Agreement between the User and PayKun.com and supersedes any prior Agreements pertaining to the subject matter contained herein. BY COMPLETING THE REGISTRATION PROCESS AND CLICKING THE "SUBMIT" BUTTON, YOU ARE AGREEING TO BE BOUND BY THE PayKun.com Terms of Use Agreement.

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. TERMS GOVERNING USE OF THE SERVICE

1.1 DEFINITIONS

For the purpose of this Agreement:

  1. “Acquiring Banks” shall mean various banks, financial institutions, Card Associations, payment system providers who are defined and licensed under the Payment and Settlement Systems Act, 2007.
  2. “Acquiring Bank Services” shall mean the payment gateway system and services provided by the Acquiring Banks such as to (i) route internet based Valid Card transactions. (ii) offer various facilities through the internet, including Net Banking facilities. (iii) provide Authentication and Authorization from Card Associations or other third party clearing houses. and (iv) provide settlement facilities in respect of payment instructions initiated by the customers.
  3. "Authentication" shall mean the process by which the Customer’s identification is authenticated by the Acquiring Banks.
  4. "Authorization" shall mean the process by which the Issuing Institution and/or the relevant Card Association electronically or otherwise convey the approval of the charge (i.e. if the Customer has a Valid Card and/or the required credit limit/ debit limit to pay the Customer Charge requested) on a Transaction being undertaken by a Customer on your Website.
  5. “Business Days” shall mean any day on which Acquiring Banks are open for business in India, other than Saturday, Sunday and any days declared by us and/or Acquiring Bank as a Holidays.
  6. "Card Association(s)" shall mean any of Visa, MasterCard, Visa Electron, Maestro, Diners, American Express or any other card association as may be specified by us from time to time.
  7. “Card Association Rules” shall mean the written rules, regulations, releases, guidelines, processes, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Card Association.
  8. “Chargeback” shall mean reversal of the value of the Customer Charge with respect to any Transaction, inter alia, on account of (i) alleged forgery of the card number / bank account or other details (ii) any charge/debit made on a card that has been listed as a hot listed card or otherwise listed on the Card association warning bulletins (iii) duplicate processing of the transaction; or (iv) for other reasons as per applicable rules and guidelines issued by RBI, Card Associations, Acquiring Banks and Issuing Institutions. In addition, it shall include any debit to the PayKun’s bank account to recover the value of the Customer Charge in the event that you have insufficient funds in the Nodal Account and/or you fail to pay for the same.
  9. “Completion of Transaction” shall mean PayKun Completion of Transaction or if PayKun demands Proof of Delivery.
  10. “Confidential Information” shall mean any and all written, oral or other tangible or intangible form of information, discoveries, ideas, concepts, know-how (whether patentable or copyrightable or not), research, development, designs, drawings, blueprints, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, algorithms, software programs, marketing plans or techniques, technical, financial, or business information” trade secrets which includes but is not restricted to any portion or scientific or technical or proprietary information, design, process, procedure, formula or improvement which is not generally available to the public as delivered by either Party (“Disclosing Party” to the other Party (“Receiving Party”) within the framework of this Agreement or resulting therefrom. Provided that confidential information disclosed orally or those produced by electronic media or through any other intangible means shall be deemed confidential if it is identified as being confidential if it is reduced in writing within (30) thirty days of the date of disclosure. Such writing shall specify the date, time, place, persons involved and the substance of the confidential information so disclosed.
  11. "Customer" shall mean an individual or legal entity, who/which purchases Products, offered by you on the your Website or Mobile Application or through IVR System and is directed to the Internet Payment Gateway using a Valid Card or Net Banking account or any other acceptable modes of Payment Mechanism, provided by us.
  12. “Customer Bank Account” shall mean a bank account or credit/ prepaid/ cash card account of the Customer with Issuing Institution.
  13. “Customer Wallet” shall mean a digital prepaid instrument authorized under the Payment and Settlement Systems Act, 2007 and held by the Customer with the Issuing Institution.
  14. “Customer Charge” shall mean the sale price of the Products purchased by the Customer plus the shipping charge (if any) and all other taxes, duties, costs, charges and expenses in respect of the Products/payment that are to be paid by the Customer.
  15. “Delivery” shall mean (i) in respect of a good, delivery of the good by a courier/parcel service appointed by the you or your vendors, to the Customer within Delivery Due Date at the address specified by the Customer in this behalf; or (ii) in respect of a service, delivery or performance of provisions of service within the Delivery Due Date.
  16. “Delivery Due Date” shall mean the date/period displayed on the Website or otherwise notified to the Customer on or before which you shall deliver the Products to the Customer(s).
  17. “EMI” shall mean equated monthly installment payment plan schemes of various Issuing Institutions which PayKun offers you.
  18. "Issuing Institution" shall mean a bank or financial institution or other legal entity, with which the Customer has a Customer Wallet, a Net Banking account and/or which has issued the Valid Card to the Customers (explanation: except for debit card or credit card Transactions, the Issuing Institution of the Customer and the respective Acquiring Bank will be the same).
  19. “IVR System” shall mean interactive voice response technology that allows the Customer to interact with your PayKun hosted IVR platform through a telephone by way of telecommunication signal tone inputs on the keypad and make payments of Customer Charge through IVR dialogue.
  20. "Merchant Bank Account" shall mean the bank account maintained and nominated by you for settlement of your Settlement Amount.
  21. “Merchant Site” shall mean your website or Mobile Application as detailed in the Merchant Service Form or the IVR System hosted by PayKun for you.
  22. “Mobile Application” shall mean a software application that runs on smart phones, tablet computers and other mobile devices, the contents of which are controlled, operated and owned and established by you, for the purposes of enabling the Customers to view Products and carry out Transactions for purchase of Products, offered on the Mobile Application.
  23. “Mobile SDK” shall mean proprietary mobile software development kit, a custom mobile software application and packaged Application Programming Interface codes (APIs) developed by PayKun.
  24. “Net Banking Account” shall mean the facility and internet account provided by the Issuing Institution to Customers holding a bank account or digital wallet account with the Issuing Institutions specified by PayKun from time to time. Provided that the bank account is not listed in current warning or restricted bank account bulletins or notices.
  25. “Nodal Account” shall mean an inoperative account held by PayKun with any of the banks for the purpose of pooling the monies collected from Customers on your behalf and facilitating the transfer of these funds in final settlement to you (after deducting TDR), pursuant to RBI notification DPSS.CO.PD.No.1102/ 02.14.08/2009-10, dated 24/11/2009 or any other RBI notifications/guidelines amended from time to time.
  26. “Nodal Bank” shall mean the bank(s) designated by PayKun for the purpose of pooling the funds collected from Customers on your behalf and facilitating the transfer of these funds in final settlement to you (after deducting TDR), pursuant to RBI notification DPSS.CO.PD.No.1102/ 02.14.08/2009-10, dated 24/11/2009 or any other RBI notifications or guidelines amended from time to time.
  27. “One Click Checkout” shall mean the facility provided to the Customers to save its Valid Card details on the PayKun server to purchase the Products from the Merchant Site with a single click.
  28. “Outstanding Amount” shall mean the amount payable by you to PayKun, Acquiring Banks and/or Customers for any losses, costs, damages, penalties, Chargebacks, refund overdraft or credit problems suffered or incurred by the Customers, PayKun and/or Acquiring Banks; any fees and other payments owed to PayKun by you; and any claims or proceedings filed against PayKun and/or Acquiring Banks by the Customers or any third Party.
  29. “Payment Mechanism” shall mean the mechanism of making payment by utilizing the internet facilities of various Acquiring Banks, Card Associations, card payment systems and through such other modes and mechanisms of payment and delivery as may be notified by PayKun from time to time.
  30. “PayKun Account” shall mean the merchant account maintained with PayKun in order to provide the PayKun Services to you.
  31. “PayKun Site” shall mean the websites provided by PayKun Payment Solutions Private Limited (i.e https://PayKun.com) by means of which PayKun provides aggregative Internet Payment Gateway services to you and the Customers.
  32. "Products" shall mean goods and/or services offered for sale by you on the Merchant Site.
  33. “Proof of Delivery” shall mean sufficient legitimate records evidencing Delivery of the Product to the Customer (i.e. Courier Company’s delivery confirmation and delivery confirmation by the Customer).
  34. "RBI" shall mean the Reserve Bank of India.
  35. “Reserve” shall mean the interest free, refundable funds provided and replenished by you to PayKun from time to time.
  36. “Settlement Amount” shall mean Customer Charge minus the TDR and any other charges/fees payable by you to PayKun under this Agreement.
  37. “Transaction" shall mean every payment request/order placed by the Customer on the Merchant Site for purchasing Products from you.
  38. “Transaction Discount Rate” or “TDR” shall have the meaning prescribed in paragraph 11.
  39. “Upgraded Mobile Application” shall mean the Merchant’s Mobile Application integrated with the Mobile SDK
  40. "Valid Card" shall mean any unexpired credit card or debit card which is issued by an Issuing Institution designated to issue a Visa, MasterCard, Visa Electron or a Maestro or cash card, pre-paid card or other card as may be specified by PayKun from time to time. Provided that the card is not listed in current warning or restricted card bulletins or notices and bears the signature of the person in whose name the card is issued.

1.2 REGISTRATION OBLIGATIONS

As a condition of your use of "The Service" you, 'The User' agree to provide:

  1. true, accurate, current and complete information about yourself as required by the Service's registration form (such data being the Registration Information).
  2. maintain and promptly update the Registration Information to keep it accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, PayKun.com has the right to terminate the user account and refuse any and all current or future use of 'The Service'.
  3. you will create, maintain and use only one Member account and password on the PayKun.com for your use. You will not create multiple Member accounts and passwords for your use on the PayKun.com.
  4. PayKun.com has the right to use / disclose the aggregate registration information to third parties in connection with marketing of services. You have also consented PayKun.com the right to use your registration information to provide targeting of advertising and other service offers. This could be also be used to customise the content you see, to fulfill your requests for certain products and services and to contact / intimate you about special offers or new package. Usage obligations as a condition of your use of "The Service" you will not use "The Service" for any illegal purposes. You will be solely responsible for the contents of transmissions made by you through "The Service". By becoming a Registered User, you consent to the inclusion of your personal data in our on-line database and authorize PayKun.com to share such information with other user(s).

You agree not to use "The Service" to:

  1. Obstruct or hinder the use and enjoyment of "The Service" by other Users.
  2. intentionally or unintentionally violate any applicable local, state, national, and international laws and regulations.
  3. Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity.
  4. Interfere with or disrupt the Service or servers or networks connected to the Service, or challenge any requirements, regulations or guidelines of networks connected to "The Service".
  5. Transmit or otherwise make available any material in connection with surveys, chain letters, junk email, spamming, contests, pyramid schemes, or any duplicative or unsolicited messages (commercial or otherwise); (f) Upload, post, email, transmit or otherwise make available any content that is unlawful, damaging, intimidating, hostile, offensive, harassing, defamatory, improper, obscene, vulgar, invasive of another's privacy, caste related, ethnically or otherwise objectionable.
  6. Upload, post, email, transmit or otherwise make available any content protected by any patent, trademark, copyright or other intellectual proprietary laws unless you own or control the rights thereto or have received all necessary consents to do the same.
  7. Upload files that contain viruses, worms, corrupted files or any other similar software or programs designed to disrupt, damage or limit the operation of any computer or telecommunications equipment or property of another.
  8. "Stalk" or otherwise harass other users; collect or store personal data about other users.
  9. Advertise, Promote or offer to sell or buy any goods or services for any business purpose unless The Service specifically allows such messages or transactions.
  10. Reproduce, duplicate, copy, sell, resell or exploit for any commercial purposes, any portion, use or access of the Service.
  11. harm minors in any way.
  12. upload, post or otherwise transmit any Content that you do not have a right to transmit under any law or under contractual or fiduciary relationships.

1.3 USER ACCOUNT, PASSWORD AND SECURITY

As part of The Service's registration process you will provide us with current, complete and accurate information as requested by the registration form. You will then choose a user name and password. You take total responsibility for maintaining the confidentiality of your password and account. You may change your password by following the instructions on the system. You agree not to use the account or password of another Member at any time or to disclose your password to any third party.

You are also entirely responsible for any and all activities that occur under your account. You agree to notify PayKun.com immediately of any unlawful / unauthorised use of your account or any other security violation. You agree to ensure that you exit from your account at the end of each session. You understand that PayKun.com will not be liable for any loss or damage in any form incurred as a result of unauthorised usage of your account, with or without your knowledge. However, you could be held liable for losses or damages incurred by PayKun.com or a third party as a result of your failure to comply with this clause. You also agree not to use anyone else's account, at any time, without the prior permission of the account holder.

1.4 DATA PROTECTION

PayKun.com is not responsible for any corruption or missing of data. Personal information supplied by user(s) during the use of web site is governed by our privacy policy. Please click here to know about our privacy policy. Registration Information and certain other information about you is subject to our Privacy Policy.

1.5 APPROVAL AND REGISTRATION TO AVAIL PAYKUN SERVICES

At the time of registration you are required to disclose the exact business category/business sub-category for which you will be using the PayKun Services and only avail the PayKun Services through your designated Merchant Site. You understand and acknowledge that in order to use the PayKun Services for any other purpose, you shall notify PayKun in writing of such change and such change will be subject to approval by PayKun. In order to avail the PayKun Services and Acquiring Bank Services, you must be approved by and registered with PayKun, the Acquiring Banks and Nodal Bank. Any undertaking with respect to the PayKun Services under this Agreement shall be subject to PayKun’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 PayKun with all such documents as required by PayKun to register you with PayKun, the Acquiring Banks and Nodal Bank. You authorize PayKun to request for supplemental documentation at any time (before or after your PayKun 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 PayKun Account at any time.

You further understand and acknowledge that PayKun, the Acquiring Banks and Nodal Bank have the right to withdraw their approval/consent at any time prior to or after commencement of the PayKun Services.

1.6 OUR RELATIONSHIP WITH YOU

PayKun facilitates individuals and legal entities in accepting payments initiated by their customers on their website or mobile application directed to the PayKun Site or through using Valid Cards, Net Banking and various other acceptable modes of Payment Mechanism provided by PayKun.

PayKun is a software application (“Software Application”) and established a PayKun website. PayKun 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 PayKun website, for enabling the Customers to make payment of Customer Charge on the Merchant website 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 (i) route internet based Valid Card Transactions; (ii) offer various facilities through the internet, including net banking facilities; (iii) provide Authorization from Card Associations or other third party clearing houses; and (iv) provide settlement facilities in respect of payment instructions initiated by the Buyers.

These Transactions are between you and your Customers and we are only acting as an intermediary. We are NOT (i) a payment System Provider as defined under the Payment and Settlement Systems Act, 2007,(ii) a banking company as defined under the Banking Regulation Act, 1949 or (iii) a non-banking financial company as defined by the Reserve Bank of India Act, 1938.

The relationship between PayKun 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.

PayKun has no connection or interest of whatsoever nature in your business or the Products offered/ marketed on the Merchant Site. PayKun shall provide PayKun Services to you, as an independent entity and under the terms and conditions of this Agreement. PayKun has no relationship with the Customers and all actions under this Agreement, which may affect the Customers instructed by you. You alone shall be responsible to the Customers and neither PayKun nor the Acquiring Bank or anybody connected to PayKun or Acquiring Bank shall have any responsibility or liability towards the Customers and you shall keep PayKun and Acquiring Bank fully indemnified for all times to come in this respect.

1.7 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 website software to the Software Application.

You shall take all such precautions and measures as may be directed by PayKun 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, PayKun 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 PayKun 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 PayKun 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 PayKun and/or Acquiring Banks from time to time.

1.8 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.

PayKun, 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, PayKun 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, PayKun 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.

1.9 IT ACT, 2000 COMPLIANCE

Under Rule 3 of Rules made under IT Act, 2000 vide powers conferred by clause (zg) of sub-section (2) of section 87 read with sub-section (2) of section 79:

Users of computer resource not to host, display, upload, modify, publish, transmit, update or share any information that —

  1. belongs to another person and to which the user does not have any right to.
  2. is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever.
  3. Harm minors in any way.
  4. Infringes any patent, trademark, copyright or other proprietary rights.
  5. violates any law for the time being in force.
  6. Deceives or misleads the addressee about the origin of such messages or communicates any information which is grossly offensive or menacing in nature.
  7. Impersonate another person.
  8. contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer resource.
  9. Threatens the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offence or prevents investigation of any offence or is insulting any other nation.

1.10 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 PayKun Account is closed or terminated.

1.11 OUR FEES

In consideration for PayKun Services, you shall pay PayKun, Transaction Discount Rate (“TDR”). The TDR shall be deducted by PayKun from the Customer Charge payable to you in respect of each completed Transaction. You shall pay all fees, as described on the Website in connection with such Services selected by you. PayKun reserves the right to revise the TDR periodically, and PayKun will intimate you of any such change within reasonable time. You shall also pay to PayKun (i) a non-refundable one time set up fee, and (ii) Annual Maintenance Charge payable in advance every year. PayKun shall have a right to deduct such set-up fee and Annual Maintenance Charges from the Settlement Amount payable to you. In addition, in consideration of the license granted with respect to the Mobile SDK, you agree to pay PayKun a royalty (“Royalty”).

1.12 TERMS OF PAYMENT TO MERCHANT

Subject to any other Clause of this Agreement, PayKun 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 PayKun Services, 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, PayKun and the Nodal Bank (“PayKun Completion of Transaction”).

In the event that you opt for PayKun Services 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 PayKun) 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. (“PayKun 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, PayKun 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 PayKun 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 PayKun 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 PayKun, 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 PayKun 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 PayKun, Acquiring Bank and/or the Customer by you, PayKun 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. PayKun 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 PayKun, 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; (b) PayKun and/or the Acquiring Banks have reasons to believe that a fraud has been committed against the Customers, PayKun, Acquiring Banks or any third party by you, your Customers, or any other third party; or has reason to believe that the Merchant or the Customer has in connivance with any other person done any fraud or assisted in the same; or any transaction has been fraudulently initiated; (c) you have excessive pending Chargebacks or poses high Chargeback and/or refund Risk; (d) continuous non-delivery or delayed delivery of Products to Customers; or (e) for any other reasonable reasons.

1.13 RESERVE

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 PayKun with Reserve of such amounts as may be requested by PayKun 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 PayKun or any other indications of performance problems related to your use of the PayKun Services. If you fail to provide PayKun with Reserve within seven (7) days of receipt of notice for the same, PayKun reserves the right to suspend and/or terminate the Settlement Amount payable you or the PayKun Services without further notice. PayKun may use this Reserve to set-off including but not limited to any Outstanding Amounts payable by you to PayKun, 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 PayKun and/or the Acquiring Banks the remaining amount due immediately upon request. PayKun 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 PayKun 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 PayKun to recover all such losses, costs and damages etc. from you by any other means, which may be available to PayKun 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.

1.14 CHARGEBACKS

  1. Our Collection Rights for Chargebacks: For any transaction that results in a Chargeback, we may withhold the Chargeback amount in a Reserve. We may debit the amount of any Chargeback and any associated Fees, fines, or from your Settlement Amount and/or Reserve. If we reasonably believe that a Chargeback is likely with respect to any transaction, we may withhold the amount of the potential Chargeback from payments otherwise due to you under this Agreement until such time that: (a) a Chargeback is assessed due to a Customer’s complaint, in which case we will retain the funds; (b) the period of time under applicable law or regulation or Card Association Rules by which the Customer may dispute that the transaction has expired; or (c) we determine that a Chargeback on the transaction will not occur. If we are unable to recover funds related to a Chargeback for which you are liable, you will pay us the full amount of the Chargeback immediately upon demand. You agree to pay all costs and expenses, including without limitation attorneys’ fees and other legal expenses, incurred by or on behalf of us with respect to collection of all Outstanding Amounts unpaid by you.
  2. Excessive Chargebacks: If we determine that you are incurring an excessive amount of Chargebacks, PayKun may establish controls or conditions governing the Transactions contemplated under this Agreement, including without limitation, by (a) establishing new processing fees, (b) creating a Reserve in an amount reasonably determined by us to cover anticipated Chargebacks and related fees, (c) delaying payouts, and (d) terminating or suspending the Services.
  3. Contesting Disputed Transactions: In the event of a Chargeback dispute relating to a Transaction contemplated vtsoever, PayKun shall forthwith notify you of the same. On such notification you shall conduct an internal review of such matter and shall within 5 (five) days from receipt of notice, revert to PayKun in writing either:
    1. Requesting PayKun to refund (“Refund Request”) the Customer Charge Amount received by it in respect of such Transaction ("Refund Monies”"). or
    2. Providing PayKun with a statement explaining how the Disputed Transaction is not warranted together with all documentary evidence in support of contesting such Disputed Transaction.

In the event that you: (a) provide a Refund Request to PayKun; or (b) fail to provide Refund Request and fail to contest such Disputed Transaction within the aforesaid period or contests Disputed Transaction without providing supporting documentation to the satisfaction of PayKun, Acquiring Banks, Card Association and/or Issuing Institution, PayKun shall be entitled to recover the Refund Monies from Settlement Amount subsequently made to the Nodal Account. In the event that PayKun is unable to recover the Refund Monies as aforesaid, due to the Settlement Amount credited to the Nodal Account being lower than the Refund Monies, PayKun shall deduct the remaining Refund Monies from the Reserve (if any) or set-off the remaining Refund Monies against the future Settlement Amounts payables to you and refund the same to the Customer. You shall be liable to make payment of the Refund Monies or part thereof which has not been recovered by PayKun forthwith.

It is hereby agreed and acknowledged by the Parties that the TDR charged by PayKun in respect of a Transaction that has been confirmed shall not be refunded or repaid by PayKun to you or any other person irrespective of the Customer Charge being rejected, chargeback, refunded or disputed.

1.15 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 PayKun. 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; PayKun 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 PayKun. PayKun 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. PayKun 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.

1.16 DELIVERY

You shall dispatch/render the Products to the Customer only upon receipt of transaction confirmation from PayKun. PayKun shall give confirmation only upon receipt of transaction confirmation in respect of the Transaction from the Acquiring Bank. PayKun shall not be responsible for any Transactions that have not been confirmed with PayKun 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 PayKun and/or the Acquiring Banks at all times during working hours on Business Days. Notwithstanding any other Clause of this Agreement, you understand that PayKun 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. PayKun 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 PayKun. 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 PayKun and/or the respective Acquiring Bank a party to such disputes.

1.17 REFUNDS AND RETURNS POLICY

By accepting to use PayKun 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 shall (a) maintain a fair refund, cancellation or adjustment policy; (b) disclose its return or cancellation policy to Buyers, (c) not give cash refunds to its Buyers in connection with a card sale, unless required by law, and (d) not accept cash or any other item of value for preparing a card sale refund.

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.

1.18 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 PayKun.

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 PayKun be responsible for customer support to the Customer or any third party.

1.19 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:

  1. verify that you are properly constituted and operate a bona fide business.
  2. verify that you have sufficient safeguards in place to protect Customer's Data.
  3. quantify and investigate the levels of fraud or your default relating to the Transactions and or
  4. provide any other comfort that we (acting reasonably) may require in the context of its exposure under this Agreement and the agreements with the Acquiring Banks or Card Associations, and you shall provide all reasonable assistance and information to us with respect to such Risk Assessments

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 PayKun Account with the Acquiring Banks, Card Associations, Issuing Institutions, other banks, financial institutions and governmental authorities. This includes sharing information (a) about your Transactions for regulatory or compliance purposes (including compliance with KYC), (b) for use in connection with the management and maintenance of the Service, (c) to create and update their customer records about you and to assist them in better serving you, and (d) to conduct PayKun's risk management process.

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:

  1. terminate this Agreement with immediate effect. and
  2. defer the payments due to you for such period as we deem appropriate (acting reasonably) to address the credit risk or exposure and, where necessary, such amount (in whole or part) may be applied towards any amount owed by you to us under this Agreement.
  3. If, at any time, we discover that a fraud has been committed you; or you have in connivance with any other person done any fraud or assisted in the same; or any transaction has been fraudulently initiated, we may report the same to any governmental and/or law enforcement authorities.

1.20 INSPECTION

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 PayKun Account may be terminated. We reserve the right to suspend or terminate the PayKun Account of any user who provides inaccurate, untrue, or incomplete information, or fails to comply with the PayKun 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 PayKun Services forthwith.

1.21 YOUR RESPONSIBILITIES

You hereby declare, assure, undertake and covenant as under:

  1. You shall duly fulfill all Transactions placed on the Merchant Site in accordance with the terms and conditions on the Merchant Site and instructions of the Customer. You undertake to ensure that the Delivery is done as per specifications of the Customer on or before the Delivery Due Date.
  2. You will not offer out of stock Products for sale. You shall be solely liable for quality and efficiency and merchantability of the Products. Further the rates displayed on the Merchant Site shall include all applicable taxes.
  3. You shall comply with all applicable laws, rules and regulations in offering the Products or collecting Payments on its Merchant Site. You shall ensure that all requisite approvals, licenses and registrations, etc. in accordance with all laws, rules, regulations, guidelines in force in India from time to time, have been obtained and are kept in full force and effect to enable you to offer the Products for sale. You shall not conduct any business through the PayKun Services or offer Products thereof in violation of any law or legal requirement of any applicable jurisdiction and shall keep PayKun fully indemnified for all times to come in this regard.
  4. You shall not offer any Products, which are illegal or offensive or banned as per the list provided in Schedule A and/or are not in compliance with applicable laws, rules and regulations whether central, state, local or international of all jurisdiction from where the Customers avail the Products. In addition, you shall comply with and shall ensure compliance by the Customers with all applicable guidelines, rules, regulations issued by RBI and guidelines set by PayKun, Acquiring Banks and/or Card Associations. You agree and understand that PayKun reserves the right to suspend Settlement Amount and/or PayKun Services to you until such time that you do not discontinue selling such banned/illegal Products or does not conform to all applicable laws and regulations in force from time to time. In addition, PayKun reserves the right to terminate this Agreement without further notice in the case of breach of this Clause.
  5. You shall ensure that appropriate cancellation policy, refund policy, privacy policies, disclosures/disclaimers, terms of use pertaining to the Merchant Site, the terms of the Products provided by you and terms of paying the Customer Charge are displayed conspicuously on the Merchant Site in accordance with the terms of this Agreement (collectively “Merchant Terms and Conditions”). You shall prior to accepting any instructions from the Customers ensure that the Customers accepts all the Merchant Terms and Conditions. PayKun reserves the right to inspect the Merchant Terms and Conditions at any times.
  6. In the event that you provide One Click Checkout option to its Customers and the Customer opt for One Click Checkout, you understand that PayKun shall store the Valid Card data of the Customers on its server.
  7. In the event that you have obtained a PCI DSS certification and opts for a One Click Checkout API, you shall be responsible to ensure that all Customer Valid Card data shared with you is kept safe and not shared with any third party without the consent of PayKun and the Customer. You shall ensure that there is no unauthorized use or disclosure of such data or any hacking of the same. You accept all liabilities with respect to such Customer Valid Card data and shall keep PayKun indemnified in case of any breach of this Clause. In addition, in the event that you call the One Click Checkout API for the wrong Customers Valid Card data or the Customer’s account with you is compromised, you shall be fully liable for all transactions processed and PayKun shall have no liability towards the Customers or you. Further, you shall also have in place a privacy policy for handling or dealing with the Customer’s personal information including all Customer Valid Card data, and such policy should be available to the Customers and be published on the Merchant Site.
  8. You shall have the marketable and legal right and title to sell Products offered by it to the Customers by using PayKun Services.
  9. In the event any Customer complaints or is dissatisfied with any Product, you shall take such measures as may be required to resolve the same at its sole cost and expenses.
  10. You shall ensure that the best service standards in the industry are adopted and shall ensure Delivery of all Products paid for on the Merchant Site to Customers in accordance with the highest standards.
  11. You agree to put up such notices, disclaimers or warranties as may be required by PayKun and/or the Acquiring Bank and you shall comply with such request forthwith.
  12. You shall be solely responsible for the accuracy of all information and/or validity of the prices and any other charges and/or other information relating to the Products, which are offered on its Merchant Site.
  13. You hereby agree that it shall bear and be responsible for the payment of all relevant taxes, surcharge, levies etc. (including withholding taxes) in relation to the Customer Charge and PayKun Services provided under this Agreement.
  14. As you will be using the Acquiring Banks Services and Card Association Services, you shall 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 has the right to reverse/reject settlement, suspend and/or terminate Acquiring Banks Services/PayKun Services, make inspections or inquiries in relation to the Transaction, etc. You understand 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 PayKun by an Acquiring Bank and/or Card Association, then without prejudice to PayKun’s other rights hereunder, you shall forthwith indemnify PayKun in an amount equal to the fines, penalties or other amount so levied or demanded. If you fail to comply with its obligations towards the Acquiring Banks and/or Card Associations, PayKun may suspend settlement or suspend/terminate the PayKun Services forthwith.
  15. In the event that you opt for PayKun Services, you agree and understand that you and your Customers shall be bound by the PayKun terms and conditions at https:// PayKun.com). You shall ensure that you and all your Customers comply with the PayKun terms and conditions.
  16. You will not engage in any activity with the Mobile SDK, including the development or distribution of an application, that interferes with, disrupts, damages, or accesses in an unauthorized manner the servers, networks, or other properties or services of any third party including, but not limited to, PayKun or any Acquiring Bank.
  17. You shall not require the Customer to provide you with any details of the accounts held by it with Issuing Institution. You shall not input any data on behalf of the Customers on the Merchant Site or the Acquiring Bank, failing which it will be considered as breach of trust of PayKun and/or of the Acquiring Bank.
  18. You shall ensure to keep confidential, all information submitted by the Customers on the Merchant Site. The Customer shall not be required or asked to disclose any confidential or personal data, which may be prejudicial to interests of the Customer. You shall use the Customer data only for the purpose of completing the Transaction for which it was furnished, and shall not sell or otherwise furnish such information to any third party. You shall be liable to comply with existing data privacy regulations from time to time.
  19. You shall in writing inform PayKun of all changes in its constitution, directors/partners/trustees, or change in the current addresses of each office, within seven (7) Business Days of such change having taken place listing out the names and details of the personnel in charge of your management and affairs. Such intimation shall be provided on your letterhead signed by your authorized signatory.
  20. You shall not engage in activities that harm the business and/or brand of PayKun, the Acquiring Banks and/or card associations.
  21. You must indicate its acceptance of all the respective Acquiring Banks and/or Card Associations, whose Payment Mechanism is being used by you, whenever it communicates the payment methods it accepts to its Customers without prejudice to anyone of the Acquiring Banks and/or Card Associations. In the event that you decide to display the logos of the Acquiring Banks and/or Card Associations whose Payment Mechanism it is providing as a Valid Card payment option to its Customers on the Merchant Site and/or other marketing materials, you must ensure that it prominently displays the logos of all the respective Acquiring Banks and/or Card Associations (being used to process Valid Cards) in the same manner and without prejudice to any one of them and in accordance with the guidelines and/or direction provided by the respective Acquiring Banks and/or Card Associations. In addition, you shall not promote, dissuade or impose restrictions/conditions on any one Valid Card Payment Mechanism and/or Card Association over the other. Exceptions being limited time bound tactical marketing programs with one or more Acquiring Banks and/or Card Associations.
  22. You shall be responsible to resolve all cardholder/customer account holder disputes and provide whatever assistance necessary to assist the Acquiring Banks, Card Associations and PayKun deal with all cardholder/Customer Account holder disputes at its own cost.
  23. You authorize PayKun to share Transaction data and Customer information with the respective Acquiring Banks and Card Associations.
  24. You shall maintain and run the Merchant Site as a part of its business and shall ensure that the Merchant Site does not contain libelous, defamatory, obscene, pornographic or profane material or any instructions that may cause harm to PayKun, the Acquiring Banks, Card Associations and/or any other third party.
  25. You agree that PayKun reserves a right to suspend the payment and/or PayKun Services provided herein, forthwith, in event you fail to observe the terms and conditions herein.

1.22 PRIVACY

Your privacy is very important to us. Upon acceptance of this Agreement you confirm that you have read, understood and accepted our Privacy Policy. 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.

1.23 DISCLOSURES AND NOTICES

You agree that PayKun can provide disclosures and notices required by law and other information about your PayKun Account to you electronically by posting it on our website, or by e-mailing 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.

1.24 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:

  1. the Party discovers at any stage that the other Party is in violation of any law or regulation.
  2. the other Party is adjudicated as bankrupt, or if a receiver or as a trustee is appointed for it or for a substantial portion of its assets, or if any assignment for the benefit of its creditors is made and such adjudication appointment or assignment is not set aside within 90 (ninety) Business Days.
  3. the other Party goes into liquidation either voluntarily or compulsorily.
  4. the other Party is prohibited by any regulatory or statutory restriction from continuing to provide services under this Agreement.

1.25 TERMINATION BY PAYKUN

PayKun 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 PayKun may have under any other Clause in this Agreement.

1.26 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 PayKun exceeds the Settlement Amount due to you the difference thereof shall be a debt due from you to PayKun and be forthwith recoverable by appropriate legal action, as deemed fit by PayKun. Without prejudice to PayKun’s rights and remedies, in the event that you do not make any payments to PayKun by its due date or on demand as required under this Agreement, PayKun 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 PayKun 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 PayKun 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 PayKun 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 PayKun, Acquiring Banks, Card Associations and/or Customers and for all claims and proceedings arising against PayKun and/or Acquiring Banks with respect to this Agreement. At the time of termination, PayKun may retain such amount from the Reserve (if any) and Settlement Amount payable to you (including Settlement Amounts withheld) as may be determined by PayKun to cover chargeback risk, refund risk or any potential loss, damages, penalties, cost that may be incurred by PayKun, 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 PayKun all pending amounts within 10 (ten) days of receiving the demand notice and shall at all times keep PayKun indemnified in this respect. This Clause survives the termination of this Agreement.

2. Prohibited Product List

2.1 Prohibited Items

The Customerassures, undertakes and guarantees that the following products and services shall not be sold on the Customer’s Website and / or no transactions shall be processed through the Payment Gateway Facilities herein by Paygate for following Products and Services:

  1. Adult goods and services which includes pornography and other sexually suggestive materials (including literature, imagery and other media); escort or prostitution services.
  2. Alcohol which includes Alcohol or alcoholic beverages such as beer, liquor, wine, or champagne.
  3. Body parts which includes organs or other body parts.
  4. Bulk marketing tools which includes email lists, software, or other products enabling unsolicited email messages (Spam).
  5. Cable descramblers and black boxes which includes devices intended to obtain cable and satellite signals for free.
  6. Child pornography which includes pornographic materials involving minors.
  7. Copyright unlocking devices which includes Mod chips or other devices designed to circumvent copyright protection.
  8. Copyrighted media, which includes unauthorized copies of books, music, movies, and other licensed or protected materials.
  9. Copyrighted software, which includes unauthorized copies of software, video games and other licensed or protected materials, including OEM or bundled software.
  10. Counterfeit and unauthorized goods which includes replicas or imitations of designer goods; items without a celebrity endorsement that would normally require such an association; fake autographs, counterfeit stamps, and other potentially unauthorized goods.
  11. Drugs and drug paraphernalia which includes illegal drugs and drug accessories, including herbal drugs like salvia and magic mushrooms.
  12. Drug test circumvention aids which includes drug cleansing shakes, urine test additives, and related items.
  13. Endangered species, which includes plants, animals or other organisms (including product derivatives) in danger of extinction.
  14. Gaming/gambling which includes lottery tickets, sports bets, memberships/ enrolment in online gambling sites, and related content.
  15. Government IDs or documents which includes fake IDs, passports, diplomas, and noble titles.
  16. Hacking and cracking materials which includes manuals, how-to guides, information, or equipment enabling illegal access to software, servers, websites, or other protected property.
  17. Illegal goods, which includes materials, products, or information promoting illegal goods or enabling illegal acts.
  18. Miracle cures which includes unsubstantiated cures, remedies or other items marketed as quick health fixes.
  19. Offensive goods, which includes literature, products or other materials that: a) Defame or slander any person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors b) Encourage or incite violent acts c) Promote intolerance or hatred.
  20. Offensive goods, crime that includes crime scene photos or items, such as personal belongings, associated with criminals.
  21. Prescription drugs or herbal drugs or any kind of online pharmacies which includes drugs or other products requiring a prescription by a licensed medical practitioner.
  22. Pyrotechnic devices and hazardous materials which includes fireworks and related goods; toxic, flammable, and radioactive materials and substances.
  23. Regulated goods which includes air bags, batteries containing mercury, Freon or similar substances/refrigerants, chemical/industrial solvents, government uniforms, car titles, license plates, police badges and law enforcement equipment, lock-picking devices, pesticides, postage meters, recalled items, slot machines, surveillance equipment, goods regulated by government or other agency specifications.
  24. Securities, which includes stocks, bonds, or related financial products.
  25. Tobacco and cigarettes which includes cigarettes, cigars, chewing tobacco, and related products.
  26. Traffic devices, which includes radar detectors/hammers, license plate covers, traffic signal changers, and related products.
  27. Weapons which includes firearms, ammunition, knives, brass knuckles, gun parts, and other armaments.
  28. Wholesale currency, which includes discounted currencies or currency, exchanges.
  29. Live animals.
  30. Multi-Level marketing collection fees.
  31. Matrix sites or sites using a matrix scheme approach.
  32. Work-at-home information.
  33. Any product or service, which is not in compliance with all applicable laws and regulations whether federal, state, local or international including the all laws of India.

3. ADDITIONAL LEGAL TERMS

3.1 REPRESENTATIONS AND WARRANTIES

You represent and warrant to us that:

  1. you are at least 18 (eighteen) years of age.
  2. you are eligible to register and use the Service and have the right, power, and ability to enter into and perform under this Agreement.
  3. the name identified by you when you registered is your name or business name under which you sell the Products.
  4. you are duly organized and validly existing under the laws of the jurisdiction in which you are established.
  5. your obligations hereunder constitute legal, valid, binding and enforceable obligations.
  6. the execution and delivery of this Agreement and the consummation of the Transactions contemplated herein do not breach its organisational documents or any law, provisions of any contract or order of court applicable to it and do not require any applicable governmental approval.
  7. any sales Transaction submitted by you will represent a bona fide sale by you.
  8. any sales Transactions submitted by you will accurately describe the Products sold and delivered to Customers.
  9. you will fulfil all of your obligations to each Customer for which you submit a Transaction and will resolve any consumer dispute or complaint directly with the Customers.
  10. except in the ordinary course of business, no sales Transaction submitted by you through the Services will represent a sale to any principal, partner, proprietor, or owner of your entity.
  11. you will not use PayKun Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the use of PayKun Services.
  12. your use of PayKun Services will be in compliance with this Agreement.

3.2 YOUR LICENSE

We grant you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense or assign, to electronically access and use PayKun Services solely to :

  1. receive and accept or make Payments, and
  2. manage the funds you so receive or paid

You will be entitled to download updates to PayKun 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 PayKun 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 PayKun Services, you may not, permit any third party to do any of the following:

  1. access or monitor any material or information on any PayKun system using any manual process or robot, spider, scraper, or other automated means unless you have separately executed a written agreement with us referencing this Clause that expressly grants you an exception to this prohibition.
  2. copy, reproduce, alter, modify, dismantle, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from PayKun.
  3. permit any third party to use and benefit from PayKun Services via a rental, lease, timesharing, service bureau or other arrangement.
  4. transfer any rights granted to you under this Agreement.
  5. violate the restrictions in any robot exclusion headers on PayKun Services, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, decode or attempt to decode or reverse engineer the Services or to in any way override or break down any protection system integrated into the Services.
  6. perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other users, or impose an unreasonable or disproportionately large load on our infrastructure.
  7. create a derivative software program. or
  8. otherwise use the Services except as expressly allowed under this Agreement.

3.3 USE OF INTELLECTUAL PROPERTY RIGHTS AND PROTECTION OF SOFTWARE APPLICATION

You hereby grant to PayKun 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 PayKun Services provided to you to the public. You hereby release PayKun 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 PayKun relating to PayKun Services and that of the respective Acquiring Banks providing the Payment Mechanism. You must only use the logos/marks/images provided by PayKun 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 PayKun respectively, whether directly or indirectly through any third party in the Acquiring Banks Services and software and/or PayKun Services and Software Application. You warrant that it shall only use the PayKun’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 PayKun Site, PayKun may create or generate database in respect of such Customers. All rights and ownership with respect to such database shall vest with PayKun.

3.4 GRANT AND SCOPE OF THE MOBILE SDK LICENSE

  1. Subject to the terms of this Agreement, PayKun grants you a limited, royalty bearing, non-assignable and non-exclusive license to use the Mobile SDK solely for purpose of integrating the Mobile SDK with the Upgraded Mobile Application.
  2. Each time PayKun provides you an updated Mobile SDK, you shall integrate Mobile Application with the updated Mobile SDK.
  3. PayKun owns all legal rights, title and interest in and to the Mobile SDK, including any Intellectual Property Rights that subsist in the Mobile SDK. PayKun reserves all rights not expressly granted to you.
  4. You shall not take any actions that may cause or result in the fragmentation of the Mobile SDK, including but not limited to distributing, participating in the creation of, or promoting in any way a software development kit derived from the Mobile SDK.
  5. Subject to the express License granted in this Agreement, PayKun will retain exclusive right, title and interest in and to the Mobile SDK, and all Intellectual Property Rights subsisting therein. There are no implied licenses under this Agreement, and all rights not expressly granted hereunder are reserved. It is further agreed that you shall not license or assign or offer for sale any software application developed using the Mobile SDK to a third party.
  6. You will not delete or in any manner alter any proprietary rights notices, codes etc. that may be affixed to, embedded in or contained within the Mobile SDK delivered to it.

3.5 CONFIDENTIALITY

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:

  1. is or becomes publicly known other than through breach of this Clause.
  2. is in possession of the receiving Party prior to disclosure by the other Party.
  3. is independently developed by the receiving Party.
  4. needs to be disclosed to professional advisers or in accordance with the order of a competent court or administrative authority.
  5. is thereafter rightfully furnished to such receiving Party by a third party without restriction by that third party on disclosure. or
  6. is required by law, judicial court, recognized stock exchange, government department or agency or other regulatory authority, provided that sufficient notice is given of any such requirement, by the receiving Party to the disclosing Party, in order that the disclosing Party may seek for an appropriate protective order or exemption from such requirement, prior to any disclosure being made by the receiving Party and/or its Affiliates.

Such obligation of confidentiality shall continue for a period of 1 (one) year after the termination or expiry of this Agreement.

3.6 INDEMNITY

You undertake and agree to indemnify, defend and hold harmless PayKun 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:

  1. breach or non-performance by you of any of your undertakings, warranties, covenants, declarations or obligations under this Agreement.
  2. breach of confidentiality and intellectual property rights obligations by you.
  3. any claim or proceeding brought by the Customer or any third party against PayKun and/or the Acquiring Banks in respect of any Products or Services offered by you.
  4. any claim or proceeding brought by the Customer or any third party against PayKun and/or the Acquiring Banks in respect of PayKun Services.
  5. any act, deed, negligence, omission, misrepresentation, default, misconduct, non-performance or fraud by you, your employees, contractors, agents, Customers or any third party.
  6. any hacking or lapse in security of the Merchant Site or the Customer data.
  7. Chargebacks or refunds relating to the Transactions contemplated under this Agreement.
  8. breach of law, rules regulations, legal requirements (including RBI regulations, Card Association Rules, Acquiring Bank rules) in force in India and/or in any place from where the Customers is making the Transaction and/or where the Product is or to be Delivered and/or where the respective Issuing Institution is incorporated, registered or established. or
  9. any fines, penalties or interest imposed directly or indirectly on PayKun on account of your default or Transactions conducted through Merchant Site under these Terms and Conditions.

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.

3.7 LIMITATION OF LIABILITY

Notwithstanding anything stated under this Agreement, the aggregate liability of PayKun 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 PayKun under this Agreement from the date of occurrence of such liability. Provided that PayKun 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 PayKun 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.

3.8 ASSIGNMENTS

PayKun may assign, in whole or in part, the benefits or obligations of this Agreement to its associates or affiliates of other group company, pursuant to a restructuring or re-organization or demerger of its organization or operations. PayKun shall provide thirty (30) days prior intimation of such assignment to you, which shall be binding on the Parties to this Agreement.

3.9 FORCE MAJEURE

PayKun 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 PayKun or the Acquiring Banks.

3.10 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 Bhavnagar. The courts at Bhavnagar shall have the exclusive jurisdiction over any disputes relating to the subject matter of this Agreement.

3.11 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.

3.12 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.

3.13 SEVERABILITY

If any provision(s) of the Agreement is/are held by a court of competent jurisdiction to be contrary to law, or otherwise invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect.

3.14 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.

3.15 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:

PayKun Payment Solutions Private Limited.

1A, First Floor, Leela Shanti Commercial Tower

Nr Hotel Sarovar Portico,

Victoria Park Rd, Bhavnagar-364002, Gujarat, India

All such notices, requests, demands, waivers and other communications shall be deemed duly given

  1. if by personal delivery, on the day after such delivery,
  2. if by certified or registered mail, on the10th (tenth) day after the mailing thereof,
  3. if by courier service or similar service, on the day delivered, or
  4. if by email, facsimile or telegram, on the day following the day on which such email, facsimile or telegram was sent, provided that a copy is also sent by registered mail and, in the case of a facsimile, electronic confirmation of receipt is received.

3.16 GRIEVANCE OFFICER

In accordance with Information Technology Act 2000 and The Information Technology (Intermediaries Guidelines) Rules, 2011 made there under, the name and contact detail of the Grievance Officer is provided below:

Mr. Nirav Solanki (10:00AM TO 05:30PM)

Email: support@paykun.com

Contact No.: 1800 212 8070

3.17 AMENDMENT

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.

3.18 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.