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 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.
For the purpose of this Agreement:
As a condition of your use of "The Service" you, 'The User' agree to provide:
You agree not to use "The Service" to:
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.
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.
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.
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.
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.
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 —
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.
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”).
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.
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.
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.
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.
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.
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.
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.
We may, from time to time during the term, make or carry out risk assessments on you and/or the Transactions carried out on the Merchant Site (each a "Risk Assessment") which shall inter alia be for the following purposes:
We may periodically obtain additional reports to determine whether you continue to meet the requirements of this Agreement. You agree that we are permitted to collect and share information about you and your application (including whether you are approved or declined), and your 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:
At any time and from time to time, we may request the Seller to provide us with an interest-free refundable security deposit to be held as the reserve (“Reserve”), to secure the performance of your payment obligations under this Agreement. The Seller agrees to provide such a security deposit as may be requested by us from time to time. We may temporarily suspend or delay Payments to you or request for a security deposit for any reason, including high chargeback risk, refunds, and non-payment of maintenance Fees or any other indications of performance problems related to your use of the Service. The security deposit will be in an amount as reasonably determined by us to cover anticipated chargebacks, returns, unshipped Products and/or unfulfilled services or credit risk based on your processing history and Risk Assessment or such amount designated by the Payment System Providers. The security deposit may be raised, reduced or removed at any time by us at our sole discretion, based on your payment history, a credit review, the amount of any arbitration award or court judgment against you in our favor, or otherwise as we or the Payment System Providers may determine or require. If the Seller fails to provide us with a security deposit within five (5) days of receipt of the notice for the same, we will reserve the right to suspend and/or terminate the Seller’s PayKun Account without further notice.
We may use this Reserve to deduct losses, costs, damages or chargeback, returns, penalties, etc suffered or incurred by the Buyers, us, and/or the Payment System Providers, inter alia, due to fraud, misconduct, negligence or deficiency of service or for any other reason. This will also include a deduction of any kind of outstanding Fees payable by the Seller to us.
We will refund this security deposit amount after 180 days of your last transaction date, at the time of closing your account, and for closing your account there should be not any outstanding or negative balance for your merchant account.
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.
You hereby declare, assure, undertake and covenant as under:
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.
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:
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.
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.
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:
You represent and warrant to us that:
We grant you a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense or assign, to electronically access and use PayKun Services solely to :
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:
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.
The Parties agree to maintain the confidentiality of the Confidential Information and to protect all portions of the other Party's Confidential Information by preventing any unauthorized disclosure, copying, use, distribution, or transfer of possession of such information. Dissemination of Confidential Information by each Party shall be limited to those employees with the need to such access for the advancement of the goals anticipated under this Agreement.
The Parties shall at no time disclose or allow its officers, directors, employees, representatives or subcontractors to disclose the other Party's Confidential Information to any third party without the prior written consent of the other Party. The Parties agree to protect the Confidential Information of the other with the same standard of care and procedures used by themselves to protect their own Confidential Information of similar importance but at all times using at least a reasonable degree of care.
The obligations set out in this Clause shall not apply to Confidential Information that:
Such obligation of confidentiality shall continue for a period of 1 (one) year after the termination or expiry of this Agreement.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
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
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:
Email: [email protected]
Contact No.: 1800 212 8070
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.
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.