Terms & Conditions
This Shmart Business Services Agreement (“Agreement”) is entered into between TranServ Private Limited, a company validly registered under the Companies Act, 1956 and having its registered offices at Office no. 2, Ground Floor, Hi Tech Plaza, Mahakali Caves Road, Andheri East, Mumbai400093 (“TranServ”) and the Partner (as defined below).
TranServ and the Partner are hereinafter collectively referred to as “theParties” and severally as “theParty”.
- A. TranServ is involved in the business of providing payment platform and payment aggregation services. TranServ has developed a system that enables businesses to collect funds electronically from Customers for selling goods or providing services through the use of internet, mobile applications, SMS or otherwise;
- B. TranServ has also entered into an agreement with Payment Service Providers includingthe Partner Bank (as defined below) to assist the Partners in procuring pre-paid instruments from the Partner Bank.
- C. The Partner is desirous of collecting payments from its Customers through net banking, credit/debit cards, e-wallets, pre-paid instruments and other electronic payment methods, and has requested TranServ to certain facilities for the purpose of receiving such payments.
Therefore, in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:
- “Customer” shall mean a registered user of the Shmart Wallet service provided by TranServ as well as a third party who is involved in an online transaction with the Partner.
- “Business Day” shall mean any day on which the banks in Mumbai are open.
- “Customer” shall mean a registered user of the Shmart Wallet service provided by TranServ as well as a third party who is involved in an online transaction with the Partner.
- Fees” or “Charges” shall mean the fees charged by TranServ for Services;
- “RBI” means the Reserve Bank of India;
- “Partner”or“Partners” shall mean any partnership firm, limited liability partnership firm, public limited company, private limited company, trust, society or any other legal entity as per the laws in force in India from time to time, who desires to avail of the Services from TranServ;
- “Partner Bank” shall mean The Ratnakar Bank Limited;
- “Payment Service Provider” shall mean banks, financial institutions, online intermediaries, payment gateway providers, card network associations, and/or other entities with whom TranServ has entered into arrangements for facilitating the provision of Services by TranServ;
- “Services” shall mean the services provided by TranServ to the Partner as set out in ScheduleI;
- “Shmart Services” shall mean the services provided by TranServ to Customers though the Shmart Wallet;
- “ShmartWallet” shall mean the account set up by TranServ for the Customerupon the Customer entering into a transaction with the Partner; and
- “Transaction Confirmation”shall mean the intimation received by TranServ from either the Partner or the Customer with regard to the receipt or delivery or supply of goods or services.
- The terms referred to in this Agreement shall, unless defined otherwise or inconsistent with the context or meaning thereof, bear the meanings ascribed to them under the relevant statute/legislation.
- “Business Day” shall mean any day on which the banks in Mumbai are open;
- Reference to statutory provisions shall be construed as meaning and including references also to any amendment or re-enactment for the time being in force and to all statutory instruments or orders made pursuant to such statutory provisions.
- Headings, subheadings, titles, subtitles to clauses, sub-clauses and paragraphs are for information only and shall not form part of the operative provisions of this Agreement or the annexures hereto and shall be ignored in construing the same.
- Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends and by extending the period to the next Business Day if the last day of such period is not a Business Day; and whenever any payment is to be made or action to be taken under this Agreement is required to be made or taken on a day other than a Business Day, such payment shall be made or action taken on the next Business Day.
- Words “directly or indirectly” mean directly or indirectly through one or more intermediary persons or through contractual or other legal arrangements, and “direct or indirect” have the correlative meanings.
- Any reference to “writing” shall include printing, typing, lithography, transmissions by facsimile or in electronic form (including e-mail) and other means of reproducing words in visible form.
- The words “include” and “including” are to be construed without limitation.
- No provisions shall be interpreted in favour of, or against, any Party by reason of the extent to which such Party or its counsel participated in the drafting hereof or by reason of the extent to which any such provision is inconsistent with any prior draft hereof.
- If, in calculating a price or an amount, the relevant variables for such calculation are expressed in different currencies then all such variables for the purposes of such calculation shall be in Rupees.
- If there is any conflict or inconsistency between a term in the body of this Agreement and a term in any of the schedules or any other document referred to or otherwise incorporated in this Agreement, the term in the body of this Agreement shall take precedence.
4. Fees and Other Charges
- Subject to the fulfilment of the other terms and conditions of this Agreement, TranServ shall provide the Partner with Services as specified in Schedule I, for enabling the Partner to receive payments from its Customers for selling goods or providing services. The Partner hereby authorises TranServ to collect payments on behalf of the Partner through services provided by relevant Payment Service Providers
- The Partner is required to register and maintain a Services account with TranServ (“Account”) and choose a reasonably descriptive user name and a secure password.
- The Partner shall be fully responsible for maintaining the confidentiality and security of the Account, and TranServ shall have no liability for any loss or damage caused for any failure by the Partner to maintain confidentiality or security.
- TranServ may share some or all information provided by the Partner with Payment Service Providers, card associations or any other third parties as may be necessary for the efficient provision of Services by TranServ to the Partner. The Partner hereby authorises TranServ to provide such information to such third parties,provided that, TranServ may, irrespective whether required under law or otherwise,seek additional information or documents from the Partners on behalf of itself, the Partner Bank or the Payment Service Providers for verifying any information provided during the registration.
- Except as required by law, the Partner shall have sole responsibility to maintain permanent records of any transactions between TranServ and the Partner in relation to the Services.
- The Partner agrees and acknowledges thatTranServ does not provide or undertake any payment, disbursement, clearing or settlement services as understood under the Payment and Settlement Systems Act, 2007; any banking services as understood under the Banking Regulation Act, 1949; any activities undertaken by a financial institution as understood under the Reserve Bank of India Act, 1934. The Services provided by TranServ constitute a technology and aggregation platformthat enables the Partner to avail the benefit of these services provided by Payment Service Providers authorised to provide these services under the PSS Act and Banking Regulation Act, as the case may be. The Partner agrees that TranServ has no responsibility or liability to the Partner related to any such services provided by Payment Service Providers or other third parties to the Partner through the use of the Services other than as expressly set forth in these terms.
5. Acceptance of this Agreement
- In consideration of the Services provided by TranServ, the Partner agrees to pay to TranServ the fees, charges and/or other sums as stipulated inSchedule II, in accordance with the respective plan chosen by the Partner.
- At any time and from time to time, TranServ may request the Partner to provide TranServ with an interest free and refundable security deposit which may be held as reserve to secure the performance of the Partner’s obligations under this Agreement.
- The Partner shall bear and be responsible for the payment of all relevant taxes (other than income tax that may be payable by TranServ) payable in connection with provision of the Services.
6. Representation and Warranties
- 5.1 “By clicking the Sign Up button or accessing, using or installing any part of the Service, the Partner expressly agrees to and consents to being irrevocably bound by this agreement< ATTACH LINK> and all of the terms set out herein. If the Partner does not agree to all of the terms of this agreement, the Sign Up Button should not be selected. TranServ will promptly cancel the association and the Partner may not access, use or install any part of the Service. Further, TranServ shall have deemed to have accepted this agreement and the contract shall only be considered to be duly executed, valid and binding after the receipt of the Partner’s information from the Partner, and the due verification of the same by TranServ.”
- 5.2 This Agreement shall be deemed to have been received, accepted and formed at the TranServ’s registered office at Office no. 2, Ground Floor, Hi Tech Plaza, Mahakali Caves Road,Off Mahakali Caves Road, Andheri East, Mumbai400093.
7. Covenants of the Parties
- The Partner represents and warrants that:
- if an individual, he/she is over 18 years of age, and if an entity, it is an entity duly constituted and validly existing under Indian law;
- it holds necessary licenses, approvals and consents as may be required for the conduct of its business and such licenses, approvals and consents are valid and subsisting;
- it has, in terms of applicable law and its constitution documents, capacity to enter into and perform this Agreement and it has taken all actions required for its entering into this Agreement; and
- neither making nor performance of this Agreement will violate any law or conflict with or result in the breach or constitute a default or require any consent under any decree, order, judgment, indenture or agreement.
8. Guarantee of Supply and Disputes Regarding Services
- In consideration of TranServ performing the Services as mentioned above, the Partner hereby declares, assures, undertakes and covenants as under:
- the Partner shall duly fulfil all orders in accordance with the instructions of the Customer promptly and without delay;
- TranServ shall not be a party to any of the transactions between the Customers and Partner in any manner whatsoever. TranServ is only acting as a technology platform who has been authorised by the Partner to perform the Services. The transactions are undertaken by Payment Service Providers.
- The Partner is aware that the Payment Service Provider is not guaranteeing any transactions with the Customers in any manner whatsoever;
- the Partner shall ensure that the best service standards in the industry are adopted and shall ensure delivery of services in accordance with the highest standards;
- Subject to Clause 3.4,the Partner shall ensure confidentiality of all information submitted by the Customers. Parties shall ensure that there are proper encryption and security measures at their website to prevent any hacking into the information of its Customers and other bank account / card account data;
- the Partner shall ensure that they are acting in compliance with and shall at all times act in compliance with all laws, rules and regulations and shall at all times comply with the guidelines set by the RBI, Visa/ MasterCard / American Express, Partner Bank and the Payment Service Providers. Partner shall take all necessary steps and / or precautions to ensure that the service offered by it on the Partner Website or otherwise are not mistaken or misrepresented as being associated with, being offered by the Payment Service Provider;
- In relation to the Services, the Partner shall not display any material on the Partner’s website with respect to the services offered under this Agreement, if the act or manner of such display is contrary to any applicable law, regulation, government policy, order or guideline including all applicable foreign laws and regulations or which is misrepresentative of the services of the Partner;
- the Partner shall, to the maximum extent possible, take all precautions as may be feasible to ensure that there is no breach of security and that the integrity of the link between the Partner’s Website, TranServ’s site and the provision of the Service is maintained at all times during the term of this Agreement. In the event of any loss being caused to Customers as a result of the link being breached or being in violation of the provisions of this Clause due to any fault the Partner, then Partner shall indemnify and keep indemnified the Payment Service Provider from any loss as may be caused in this regard due to said fault of Partner.
- Neither Party shall (whether on-line or otherwise) make any representations to Customer or any third party or to give any warranties which may require the other Party to undertake to or be liable for, whether directly or indirectly, any obligation and / or responsibility to Customer or any third party;
- The Partner has the full right and/or authority to avail of the Services. The Partner shall provide TranServ with such information and/or assistance as may be required by them, for the performance by them of the Services and/or any other obligations under this Agreement.
- The Partner acknowledges that Payment Service Providers or card associations may reject the authentication of a transaction for any reason including but not limited to, risk management, suspicion of fraud, selling of banned items, etc. and that TranServ shall not be liable for any such refusal.The Partner shall indemnify and hold harmless TranServ with regard to any claim made by any person arising directly or indirectly in relation to rejection of payment.
- The Partner acknowledges that chargebacks on any amounts shall be the sole responsibility of the Partner and that TranServ shall not be liable for the same. The Partner shall indemnify and hold harmless TranServ with regard to any claim made by any person arising directly or indirectly in relation to refunds for chargebacks.
- The Partner acknowledges that TranServ may register the Customer for a Shmart Wallet account in order to provide the Services to the Partner.
- The Partner shall not use Services in any manner or in furtherance of any activity, which constitutes a violation of any law or regulation or guidelines of Visa/MasterCard/American Express or which may cause Partner, TranServ and / or the Partner Bankand / or the Payment Service Providers to be subject to investigation, prosecution or legal action. The Partner shall use the information regarding a Customer (including name, address, e-mail address, telephone numbers and other data), only for the purpose of completing the transactions for which it was furnished, and not to sell or otherwise furnish such information to others unless the Partner has an independent source of such information or obtains the express consent of such Customer.
- The Partner acknowledges that it shall not carry out the prohibited activities mentioned in Schedule III.
9. User Support
- TranServ shall not be responsible for the delivery or non-delivery of goods or services by Partner to the Customer. Any and all disputes regarding non-delivery and delay in delivery of the Service or in the amount of billing or otherwise will be dealt with by and between Partner and the Customer directly and TranServ shall not be a party to such disputes.
- Provided that on receiving a written request from a Partner or a Customer, TranServ may, make a decision in favour of the Partner or the Customer. The Partner or the Customermay be asked to provide receipts, third party evaluations, police reports, or anything else that TranServ specifies. TranServ retains full discretion to make a final decision in favour of the Partner or the Customer. In the event that TranServ makes a final decision in favour of the Partner or the Customer, each party shall comply with TranServ’s decision.
- The Partner shall provide a reasonable level of customer support to Customers. Such support shall include appropriate notice to Customers of means of contacting Partner in the event the Customer has questions regarding services that Partner offers under this Agreement.
11. Maintenance of Service
- TranServ shall be entitled to rely upon all electronic communications, orders or messages to TranServ through the technological platform and TranServ shall not be obliged to verify or make further inquiry into the identity of the sender, or the message integrity, of any communications, orders or messages. The Partner shall in no circumstance dispute such reliance by TranServ.
- TranServ shall not be liable in contract, tort or otherwise for any direct, indirect or consequential loss or damage sustained by any Party by any direct or indirect use of or reliance on the electronic communication, orders or messages whether with or without the utilization of any security measures, including but not limited to any loss or damage resulting as a consequence of any defects, delays, interruptions, errors, inaccuracies or failures in the various communications.
12. Bank Account/Cardholder Data and Information
- TranServ may, from time to time upgrade, modify, alter or perform maintenance services on TranServ’stechnological platform (hereinafter collectively referred to as “MaintenanceServices”). During the performance of such Maintenance Services, TranServ shall endeavour to ensure that the Services continue to be operational and available and in the event unable shall endeavour to ensure that the same is available for utilisation as soon as may be possible.
- TranServ shall not be liable for any losses, damages and/or expenses incurred by Partner and/or the Customer in respect of any loss of access and/or use or interruption in the use of the Services due to the Maintenance Services or otherwise.
- The Partner shall not, without the prior written prior consent of the TranServ, disclose the identity of any bank account holder or cardholder or any information whatsoever relating to any transactions to any other person or otherwise use any information acquired by it in relation to the cardholders other than for the purposes of this Agreement. Provided however that any information required to be disclosed by any order of a court or regulatory authority of competent jurisdiction may be disclosed to such court or regulatory authority to the extent specified in the order.
- The Partner shall ensure that there are proper encryption and security measures at the Partner’s website to prevent any hacking into the information of Partner. It shall be the obligation of Partner to verify the IP address of the TranServ Site in the return/confirmation message URL.
- Each of Partner and TranServ acknowledge and agree that in connection with this Agreement, each Party will have access to certain trade-secrets and other non-public confidential information of the other during and in connection with its performance of Services hereunder (“ConfidentialInformation”), and hereby agrees not to disclose any Confidential Information to any third party and not to use any such Confidential Information for any purpose other than as strictly required for performance under this Agreement. All such Confidential Information is and shall remain the exclusive property of the disclosing Party and no license shall be granted or implied with respect to such Confidential Information by reason of the other Party’s access to such Confidential Information. Each Party agrees to protect the proprietary information of the other with the same standard of care and procedures used by each to protect its own proprietary information of similar importance but at all times using at least a reasonable degree of care.
- Each of the Parties, shall undertake such precautions such as is sufficient to enable it to comply with all the terms hereof and to ensure similar compliance thereof by each such employee / personnel and which binds each such employee / personnel to maintain complete and effective secrecy and confidentiality regarding any and all information whatsoever pertaining to the other Party which comes to their knowledge in the course of undertaking any work or services in pursuance of this Agreement.
- The receiving Party shall be relieved of this obligation of confidentiality to the extent any such information:
- was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving Party;
- the receiving Party can prove, was known to it, without restriction, at the time of disclosure;
- is disclosed by the receiving Party with the prior written approval of the disclosing Party;
- the receiving Party can prove was independently known by the receiving Party without any use of the disclosing Party's Confidential Information and by employees or other agents of the receiving Party who have not had access to any of the disclosing Party's Confidential Information; or
- becomes known to the receiving Party, without restriction, from a source other than the disclosing Party without breach of this Agreement by the receiving Party and otherwise not in violation of the disclosing Party's rights.
- The obligation of the Parties set forth in Clause 13.1 hereinabove shall survive the termination of this Agreement.
- Parties agree that the terms and conditions of this Agreement shall be treated as Confidential Information and that no reference to the terms and conditions of this Agreement or to activities pertaining thereto can be made in any form without the prior written consent of the other Party; provided, however, that the general existence of this Agreement shall not be treated as Confidential Information and that either Party may disclose the terms and conditions of this Agreement:
- as required by any court or other governmental body;
- as otherwise required by law;
- to legal counsel of the Parties;
- in confidence, to accountants, banks, proposed investors or alliance partners, and financing sources and their advisors;
- in confidence, in connection with the enforcement of this Agreement or rights under this Agreement; or
- in confidence, in connection with a merger or acquisition or proposed merger or acquisition, or the like.
- The Partner also agrees that they shall make all reasonable efforts to protect the technology and the proprietary software of TranServ.
- The Parties shall ensure that that neither it nor any of its employees are privy to any information relating to Customer details and information relating to passwords/pins and other private matters in respect of the Services. The Partner shall not reverse engineer, decompile of disassemble any software disclosed by the TranServ.
- The Partner acknowledge that monetary damages may not be a sufficient remedy for unauthorized disclosure of any Confidential Information / materials and that TranServ shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper.
- This Clause 13 will survive the termination of this Agreement.
- Each Party acknowledges that any trademarks used or adopted by a Party in the conduct of its business is the sole property of the respective owners.
- Each Party shall have the right, during the term of this Agreement, to include the other Party's trademarks or logos in its advertising or promotional literature, free of charge, provided that the Party owning a trademark shall have an opportunity to review and approve any use of its trademarks prior to their distribution or release.
- Partner may, at its sole discretion, market, promote, advertise, and inform the Customers and general public of theServices provided herein in cooperation with TranServ. Any such activity shall prominently display a statement/logo/image provided by TranServ. However the Partner shall be solely responsible for the accuracy of all information provided on its website.
- Once this Agreement is signed, TranServ and the Partner have the right solely or collectively to announce the co-operative arrangement as described herein. Both Parties must approve communications related to all announcements in writing. Fees and charges must remain confidential and cannot be disclosed by either Party without written consent of both Parties.
16. Liability of TranServ
- The Partner hereby undertakes and agrees to indemnify and hold harmless TranServ from and against all actions, proceedings, claims, liabilities (including statutory liabilities), penalties, demands and costs (including without limitation, legal costs of TranServ on a solicitor / attorney and own client basis), awards, damages, losses and / or expenses however arising directly or indirectly as a result of:
- any breach or non-performance by the Partner of any of its undertakings, warranties, covenants, declarations or obligations under this Agreement; or
- any claim or proceeding brought by the Customer or any other person against TranServ respect of any services offered by the Parties; or
- any act, neglect or default of its agents, employees, licensees.
- Should any proceedings be undertaken which may give rise to any Party’s liability under this Agreement, each Party shall provide the other with prompt notice and an opportunity to participate in any such proceedings to represent its interest appropriately.
- The indemnities under this Clause are in addition to and without prejudice to the indemnities given elsewhere in this Agreement and all the indemnities provided herein shall survive the termination of this Agreement.
- In no event will TranServ be liable for any consequential, indirect, incidental, punitive, or special damages whatsoever, including without limitation, damages for loss of business profits, business interruption, loss of business information, and the like for a breach of this Agreement, even if TranServ has been advised of the possibility of such damages. Notwithstanding anything contained under this Agreement, the aggregate liability of Transerv shall not be more than the Fees paid by Partner to TranServ under this Agreement.
- TranServ shall not be responsible for any losses sustained through (i) the use of counterfeit or stolen bank cards, or stolen devices; (ii) fraudulent electronic transactions; or (iii) any failure of a Payment Gateway Provider or the Partner Bank or card issuer to settle the financial transaction associated with the Services.
18. No Consequential Damages
- The Partner acknowledges that services of TranServ may not be uninterrupted. The Partner also acknowledges that the services provided by the Partner Bank and Payment Gateway Provider(s) to TranServ which is passed on to Partner under this Agreement, can be in any event be brought to an abrupt end in any event whatsoever by the Partner Bank and Payment Gateway Provider(s) for any reason beyond the control of the Partner Bankand Payment Gateway Provider(s).
- TranServ’s sole obligation and the Partner’s remedy in the event of interruption to the Services or loss of use and / or the Payment Gateway Providers facilities / services, shall be to use all reasonable endeavours to restore the Services and / or access to the Services as soon as reasonably possible.
- Without prejudice to any other provision of this Agreement, while TranServ shall use its best endeavours to ensure that the Servicesare provided uninterrupted, free from errors and free of virus, it does not warrant that that the facilities/services:
- will be provided uninterrupted or free from errors or that any identified defect will be corrected; or
- is free from any virus or other malicious, destructive or corrupting code, program or macro.
- It is hereby clarified that TranServ is not providing to Partner any warranty or covenant on the quality or service provided by the Payment Gateway Providers or Partner Banks.
- Without prejudice to any other provisions of this Agreement, TranServ shall not be liable to Partner for any loss or damage whatsoever or howsoever caused arising directly or indirectly in connection with the Services, including without limitation any:
- interruption or stoppage to the Customer’s access to and / or use of TranServ’ site and services and the Payment and delivery mechanism;
- any consequential loss or damage or loss of profit, business, revenue, goodwill or anticipated savings.
20. Force Majeure
- Parties to this Agreement shall be entitled to terminate this Agreement without cause at any time by service of a 60 (Sixty) day notice in writing to the other Party.
- Either Party may terminate this Agreement for default in the event the other Party is in breach of an essential condition or provision hereof and has not cured such breach within 15 days of written notice specifying such breach. Consent to extend the cure period for breaches other than non-payment of Fees shall not be unreasonably withheld, so long as the breaching Party has commenced cure during the thirty-day notice period and pursues cure of the breach in good faith.
- Without prejudice to any other provision for termination in this Agreement, TranServ shall be entitled to terminate this Agreement forthwith, by notice in writing to the Partner upon the occurrence of any of the following events:
- if the Partner engages in fraud or other illegal or unethical activities, or in any activities which could adversely affect the reputation of TranServ;
- if the Partner enters into liquidation whether compulsory or voluntary (save for the purpose of amalgamation or reconstruction) or makes an assignment for the benefit of or compounds with its creditors or has a manager or receiver appointed in respect of all or any part of its business or a petition for winding-up or judicial management is presented against it or ceases to carry on any part of its business or threatens to do any of these things;
- if the Partner or any of their respective directors, officers, stockholders, employees or agents are made the subject of a criminal or civil action or investigation or are threatened by such action by any reason whatsoever.
- TranServ shall also be entitled to forthwith terminate this Agreement in the event of the Partner Bank or Payment Gateway Providers or any Party changing their policy in respect of provision of any Services and / or refusing to render such Services for any reason whatsoever.
- Upon the termination of this Agreement for any reason:
- TranServ shall cease to provide Services to the Partner and the Partner shall be disconnected from TranServ’s technological platform, and no further transactions may be effected;
- all undisputed outstanding Fees whether or not invoiced by TranServ shall become immediately payable by the Partner; and
- all materials, documentation, instruction manuals, guidelines, letters and writings and other materials issued by TranServ from time to time in respect of this Agreement, whether in respect of the utilisation of the Services or otherwise shall be returned to TranServ.
- Notwithstanding anything to the contrary in this Agreement, neither Party shall be liable for failure to perform its obligations under this Agreement to the extent such failure is due to causes beyond its reasonable control (“ForceMajeure”). In the event of the occurrence of Force Majeure, the Party unable to perform shall notify the other Party in writing of the events constituting Force Majeure and the performance obligations of the Parties will be extended by a period of time equal to the length of the delay caused by the Force Majeure; provided that if any such delay exceeds 90 (Ninety) days, then following such 90 (Ninety) day period, either Party hereto may terminate the unperformed portions of this Agreement on 10 (Ten) days prior written notice to the other Party.
- Form of Notice
Any notice, consent, request, demand, approval or other communication to be given or made under or in connection with this Agreement (each, a “Notice” for the purposes of this clause) shall be in English, in writing and signed by or on behalf of the person giving it.
- Method of Service:
Service of a notice must be effected by one of the following methods:
- by hand to the relevant address set out in Clause 21.3 and shall be deemed served upon delivery if delivered during a Business Day, or at the start of the next Business Day if delivered at any other time; or
- by prepaid first-class post to the relevant address set out in Clause 21.3 and shall be deemed served at the start of the 2nd (second) Business Day after the date of posting; or
- by prepaid international airmail to the relevant address set out in Clause 21.3 and shall be deemed served at the start of the 4th (fourth) Business Day after the date of posting; or
- by facsimile transmission to the relevant facsimile number set out in Clause 21.3 and shall be deemed served on dispatch, if dispatched during a Business Day or at the start of the next Business Day if dispatched at any other time, provided that in each case a receipt indicating complete transmission of the notice is obtained by the sender and that a copy of the notice is also dispatched to the recipient using a method described in Clause 21.2.1 to Clause 21.2.3 (inclusive) no later than the end of the next Business Day.
- In Clause 21.2 “during a Business Day” means any time between 9.30 am and 5.30 pm on a Business Day based on the local time where the recipient of the notice is located. References to “the start of a Business Day” and “the end of a Business Day” shall be construed accordingly.
- Address for Service
All correspondence to TranServ in relation to this agreement shall be sent to Operations Manager, TranServ, Office no. 2, Ground Floor, Hi Tech Plaza, Mahakali Caves, Andheri East 400 093. All correspondence with the Partner in regard to this agreement shall be according to the details provided by the Partner at the time of registering with TranServ.
- All disputes arising out of this transaction shall be subject to the exclusive jurisdiction of the courts in Mumbai.
23. Communication Policy
- To the extent permitted by applicable Law: (i) no claim or right arising out of this Agreement or the documents referred to in this Agreement can be discharged by one Party, in whole or in part, by a waiver or renunciation of the claim or right unless in writing signed by the Party or Parties giving the same; (ii) no waiver that may be given by a Party will be applicable except in the specific instance for which it is given; and (iii) no notice to or demand on one Party will be deemed to be a waiver of any obligation of such Party or of the right of the Party giving such notice or demand to take further action without notice or demand as provided in this Agreement or the documents referred to in this Agreement.
- The rights and remedies of the Parties hereto are cumulative and not alternative. Except where a specific period for action or inaction is provided herein, neither the failure nor any delay on the part of any Party in exercising any right, power or privilege under this Agreement or the documents referred to in this Agreement shall operate as a waiver thereof, nor shall any waiver on the part of any Party of any such right, power or privilege, nor any single or partial exercise of any such right, power or privilege, preclude any other or further exercise thereof or the exercise of any other such right, power or privilege. The failure of a Party to exercise any right conferred herein within the time required shall cause such right to terminate with respect to the transaction or circumstances giving rise to such right, but not to any such right arising as a result of any other transactions or circumstances.
This Agreement, or any right or interest herein, shall not be assignable or transferable by any Party except with the prior written consent of the other Parties.
This Agreement may not be amended, modified or supplemented except by a written instrument executed by each of the Parties.
- Reservation of Rights
No forbearance, indulgence or relaxation or inaction by any Party at any time to require performance of any of the provisions of the Agreement shall in any way affect, diminish or prejudice the right of such Party to require performance of that provision. Any waiver or acquiescence by any Party of any breach of any of the provisions of the Agreement shall not be construed as a waiver or acquiescence of any right under or arising out of the Agreement or of the subsequent breach, or acquiescence to or recognition of rights other than as expressly stipulated in the Agreement.
- Independent Rights
Each of the rights of the Parties are independent, cumulative and without prejudice to all other rights available to them, and the exercise or non-exercise of any such rights shall not prejudice or constitute a waiver of any other right of the Party, whether under this Agreement or otherwise. Provided that where different rights are created as a result of or on account of a single cause of action, where a Party has achieved complete remedy by pursuing one course of action, such Party shall not be entitled to pursue other causes of action to seek further remedies for the same cause of action.
- Specific Performance
The Parties agree that damages may not be an adequate remedy and that each Party shall be entitled to an injunction, restraining order, right for recovery, suit for specific performance or such other equitable relief as a court of competent jurisdiction may deem necessary or appropriate to restrain the other Parties from committing any violation or enforce the performance of the covenants, representations and obligations contained in this Agreement.
- Entire Agreement
This Agreement constitutes the entire agreement of the Parties relating to the subject matter hereof and supersedes any and all prior agreements, including letters of intent and term sheets, either oral or in writing, between the Parties with respect to the subject matter herein.
- Partial Invalidity
If any provision of this Agreement or the application thereof to any Person or circumstance shall be invalid or unenforceable to any extent for any reason including by reason of any Law, the remainder of this Agreement and the application of such provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by Law. Any invalid or unenforceable provision of this Agreement shall be replaced with a provision, which is valid and enforceable and most nearly reflects the original intent of the invalid and unenforceable provision.
- By accepting the terms and conditions the customer accepts that TranServ may send them
alerts or information regarding what TranServ perceives to be of their interest. These could
be in the form of SMS, e-mail, message or calls on their mobile number or e-mail Id,
provided by the customer while registering for the service or to any such number replaced
and informed by the customer. This message may include offers, discounts and general
information. In case the customer does not want such information, they have to explicitly
ask to be excluded.
- The customer acknowledges that the alerts will be received only if the mobile phone is in
‘On’ mode to receive the SMS. If the mobile phone is in ‘Off’ mode then the customer may
not get / get after delay any alerts sent during such period. The customer cannot hold
TranServ liable for non-availability of the service in any manner whatsoever.
- The customer acknowledges that the SMS service provided by TranServ is an additional
facility provided for the customer’s convenience and that it may be susceptible to error,
omission and/ or inaccuracy. In the event the customer observes any error in the
information provided in the alert, TranServ shall be immediately informed about the same
by the customer and TranServ will make best possible efforts to rectify the error as early as
possible. The customer shall not hold TranServ liable for any loss, damages, claim,
expense including legal cost that may be incurred/ suffered by the customer on account of
the SMS facility. The customer acknowledges that the clarity, readability, accuracy, and
promptness of providing the service depend on many factors including the infrastructure,
connectivity of the service provider. TranServ shall not be responsible for any non-delivery,
delayed delivery or distortion of the alert in any way whatsoever.
- By accepting the terms and conditions the customer acknowledges and agrees that
TranServ may call the mobile phone number or contact them on their e-mail id, provided by
the customer while registering for the service or to any such number replaced and informed
by the customer, for the purpose of collecting feedback.
SCHEDULE I: SERVICES PROVIDED BY TRANSERV TO PARTNER
1. The Services provided by TranServ to the Partner shall be:
- Enabling the Partner to collect money from Customers through internet payment gateways and other modes as may be determined by TranServ. The mode of provision of the Services shall be as follows:
- By accepting the terms of this Agreement, the Partner authorises TranServ to cause online transactions to take place through Payment Service Providers or through the Partner Bankfor the Partner’s benefit.
- TranServ shall generate an electronic fund transfer of any amount received from Customers between the Payment Service Providers and TranServ’s nodal escrow account, pursuant to which, the amount shall be transferred to the Partner’s account.
- Subject to applicable RBI guidelines, TranServ shall cause the Partner Bank to transfer the amount from the nodal escrow account to the Partner’saccount within 3 (Three) days of receipt of the Transaction Confirmation from the Customer.
- In case of any dispute between the Customer and the Partner, TranServ shall hold onto the amount in the nodal escrow account until such dispute has been resolved. Provided that Partner shall be responsible for intimating TranServ about any such dispute. In the absence of any such intimation, TranServ shall transfer the amount to the Partner’s account.
- Distribution of money and provision of Shmart Servicesthrough multiple means, including through the Customer’s Shmart Wallets;
- Value added services such as transaction analytics, loyalty platforms and gift vouchers;
- Subject to guidelines that may be issued by the RBI and the Partner Bank, an option for the Partner to market Shmart Wallet Accounts under the Partner’s own brand name; and
- Any other services as may be determined by TranServ from time to time.
SCHEDULE II: TABLE OF CHARGES
SCHEDULE III: PROHIBITED ACTIVITIES
The Partner shall not carry out any activities that:
violate any law, statute, ordinance or regulation;
relate to transactions involving (a) alcohol, narcotics, steroids, certain controlled substances or other products that present a risk to consumer safety, (b) drug paraphernalia, (c) items that encourage, promote, facilitate or instruct others to engage in illegal activity, (d) stolen goods including digital and virtual goods, (e) items that promote hate, violence, racial intolerance, or the financial exploitation of a crime, (f) items that are considered obscene, (g) items that infringe or violate any copyright, trademark, right of publicity or privacy or any other proprietary right under the laws of any jurisdiction, (h) certain sexually oriented materials or services, (i) ammunition, firearms, or certain firearm parts or accessories, or (j) ,certain weapons or knives regulated under applicable law;
relate to transactions that (a) show the personal information of third parties in violation of applicable law, (b) support pyramid or ponzi schemes, matrix programs, other ‘get rich quick’ schemes or certain multi-level marketing programs, (c) are associated with purchases of annuities or lottery contracts, lay-away systems, off-shore banking or transactions to finance or refinance debts funded by a credit card, (d) are for the sale of certain items before the seller has control or possession of the item, (e) are by payment processors to collect payments on behalf of merchants, (f), are associated with the sale of traveller’s checks or money orders, (h) involve currency exchanges or check cashing businesses, or (i) provide certain credit repair or debt settlement services, credit transactions or insurance activities;
involve the sales of products or services identified by government agencies to have a likelihood of being fraudulent;
violate applicable laws or industry regulations regarding the sale of (a) tobacco products, or (b) prescription drugs and devices; or
involve gambling, gaming and/or any other activity with an entry fee and a prize, including, but not limited to casino games, sports betting, horse or greyhound racing, lottery tickets, other ventures that facilitate gambling, games of skill (whether or not it is legally defined as a lottery) and sweepstakes unless the operator has obtained prior approval from TranServ and the operator and Customers are located exclusively in jurisdictions where such activities are permitted by law.