The Agreement incorporates the attached KSC Software Pvt. Ltd. (in short 'KSC') Merchant Terms and Conditions and any Schedules as listed below and as added and amended from time to time in writing. Additional copies of the KSC Merchant Terms and Conditions and the Schedules are also available upon request.
Card or Payment Scheme shall mean any card payment systems (such as VISA, MasterCard, American Express or others, including national or local systems) or bank payment scheme (such as direct banking systems, direct debit systems or bank transfer systems);
Confidential Information means any information which is marked as "Confidential" or "Proprietary" or should be reasonably expected to be confidential having regard to the context of disclosure or the nature of the information; including, without prejudice to the generality of the foregoing, the terms of this Agreement as well as business plans, data, strategies, methods, customer and client lists, technical specifications, transaction data and customer data shall be deemed confidential;
Digital Wallet Payment Service means Keettoo's digital wallet based payment service through which a Keettoo account holder can send funds to a recipient using an e-mail address as the recipient's identifier (regardless of whether this is facilitated through the use of the Keettoo Website or a payments gateway integrated into the Merchant Website or otherwise);
Gateway Service means any Keettoo service using a payment gateway integrated into (but not necessarily hosted on) the Merchant Website for receiving payment instructions from a customer;
Merchant means the Person who has entered into this Agreement for Keettoo Services;
Merchant Product/Service means any product or service offered by a Merchant to its customers and/or otherwise provided to a customer pursuant to a Transaction;
Merchant Website means the website operated by or on behalf of the Merchant (as amended from time to time) through which its customers are able to make Transactions;
Keettoo means KSC Software Pvt. Ltd. (CIN No. U72500DL2016PTC298875) whose registered office is at 18, Community Centre, Mayapuri Industrial Area, Phase-4, New Delhi -110064
Keettoo Services means any services provided by Keettoo under this Agreement, including the Digital Wallet Payment Service, the Gateway Service and any other service as agreed between the parties from time to time;
Keettoo Website means the website operated by Keettoo (as amended from time to time) for the provision of its services, currently accessible at http://www.keettoo.com, excluding any external websites to which the website points by way of hyperlink or otherwise;
Person means an individual, a body corporate, an association, a partnership, a trust or any other entity or organization;
Regulatory Requirements means any law, statute, regulation, order, judgment, decision, recommendation, rule, policy or guideline passed or issued by parliament, government or any competent court or authority or any payment system (including but not limited to bank payment systems, card payment systems such as Visa, MasterCard, American Express etc., or any other payment, clearing or settlement system or similar arrangement that is being used for providing the services hereunder);
Reserve means an amount, which is determined by Keettoo (in its sole discretion) in accordance with clause 6, for the purpose of securing any claims by Keettoo against the Merchant;
Security means any form of security requested by Keettoo (in its sole discretion) from the Merchant including: (i) a Reserve and/or (ii) a bank guarantee or other such security.
1.2. Headings are for convenience only and shall not affect the construction or interpretation of this Agreement.
1.3. Unless the contrary intention appears, words in the singular include the plural and vice versa; words importing the masculine gender include the feminine and neuter and vice versa; references to persons include bodies corporate, unincorporated associations, partnerships or an authority.
1.4. Any phrase introduced by the term "included", "including", "in particular" or any similar expression will be construed as illustrative only and will not limit the sense of the words preceding that term.
1.5.1. the cover pages to the Agreement;
1.5.2. the Schedules to the Agreement;
1.5.3. these KSC Merchant Terms and Conditions;
1.5.5. any other document referred to in this Agreement or any other document attached to this Agreement.
3.1. KSC shall make available to the Merchant and its customers the Keettoo Services as specified in this Agreement and as further described on the Keettoo Website.
3.3. The Merchant shall integrate the Keettoo Services into the Merchant Website and operate the same in accordance with the relevant Manuals.
3.4. The Merchant grants KSC the right to access the Merchant Website for the purpose of conducting manual checks or automated searches in order to investigate the accuracy of information contained on the Merchant Website in relation to the Keettoo Services, provided that (i) KSC shall be under no obligation to conduct such searches or checks and (ii) any such searches shall under no circumstances be deemed an approval of any contents of the Merchant Website.
3.5. The Merchant shall co-operate with KSC to investigate any suspected illegal, fraudulent, or improper activity.
3.6. Upon commencement of the Agreement and at any time thereafter for purposes of complying with Regulatory Requirements, the Merchant shall provide KSC with such information as KSC may request, including information about the Merchant’s business, corporate structure and constitution, shareholders, partners, members, directors, key employees or, in the case of a trust, its beneficiaries. The Merchant shall provide, upon request by KSC, copies of financial information and other information on the business of the Merchant, including bank and/or trade references
3.7. The Merchant shall not charge its customers a processing fee, mark up or other surcharge for making payments through the KSC Services.
3.8. The Merchant shall inform KSC in writing of any changes to its business (including any change of control or constitution), business model or the goods and/or services it sells, leases or distributes or of any change to Regulatory Requirements to which it is subject (including but not limited to changes to or the revocation of the licenses it requires for its business)
4.1. KSC may establish a Security in relation to the Merchant for the purpose of providing a source of funds to pay KSC for any and all, actual and reasonably anticipated claims, losses, cost, penalties and expenses.
4.2. If KSC elects that the relevant Security shall include the establishment of a Reserve, then: KSC shall be entitled to prevent the Merchant from withdrawing a sum determined by KSC (in its sole discretion) from the Merchant Account. Alternatively, at KSC sole discretion, KSC may elect for the Security to be a bank guarantee in which case the Merchant shall, upon request, procure a bank guarantee in favour of KSC by a bank and in a form acceptable to KSC and in an amount determined by KSC. The Security shall remain in place regardless of any termination of this Agreement for as long as there are residual or contingent liabilities of the Merchant to Keettoo. The amount of the Reserve (either expressed as an absolute amount or as a percentage of past payments into the Merchant Account) shall be determined by KSC from time to time in its sole discretion. Where a Reserve has not been established at the commencement date of this Agreement, KSC shall notify the Merchant of the imposition of a Reserve, its method of calculation, its amount as well as any increase or reduction of the Reserve without undue delay in writing at any time during the term of this Agreement.
4.3. Without restricting KSC discretion under clauses 4.1 and 4.2, KSC may take into account, amongst others, the following factors when determining the amount to be secured in a Reserve:
4.3.1. the risk of the Merchant ceasing or transferring its business or a substantial part thereof;
4.3.2. the risk of the Merchant materially altering the nature of its business;
4.3.3. If the Merchant's business activities carry a higher than normal risk of chargebacks or other reversals of customer payments;
4.3.4. the Merchant's overall financial standing;
4.3.5. the risk of the Merchant becoming insolvent or otherwise unable to pay debts as they fall due;
4.3.6. where KSC receives a disproportionate number of customer complaints, chargebacks or other payment reversals, fines, penalties or other liability related to the Merchant Account; or
4.3.7. where KSC reasonably believes that the Merchant will not be able to perform its obligations under this Agreement
4.4. KSC shall have the right, at any time, without notice to offset any claims, costs, charges, penalties and expenses from any Security, Reserve or current balance in the Merchant Account. In addition, the Merchant shall pay such amounts as KSC notifies it into the Reserve to replenish any deducted amount. If required by KSC, the Merchant shall pay such amounts into its Merchant Account as reasonably determined by KSC to fund a Reserve or to react to any increased risk of payment reversals that are not covered by the Merchant Account’s then current balance.
4.5. Notwithstanding any of the foregoing, where a Merchant incurs a negative balance on its Merchant Account or becomes otherwise liable for the repayment of monies, the Merchant shall be obliged to make good such negative balance or make a corresponding payment to KSC within three (3) days. In respect of overdue payments, KSC has the right to charge interest @ 18% per year (accruing daily).
5.1. It has and will maintain all required rights, powers and authorizations to enter into this Agreement and to fulfill its obligations hereunder;
5.2. it will perform its obligations hereunder with reasonable skill and care;and
5.3. it has in place and will maintain adequate facilities (including staff training, internal controls and technical equipment) to comply with its data protection, in the case of KSC with the obligations hereunder.
6.1. the Merchant Products/Services that are made available to customers comply with applicable law in any jurisdiction in or to which the Merchant is making its goods and services available;
6.2. the Merchant has at all times all requisite licenses and permits in place to engage in the advertising and provision of its goods and services;and
6.3. it is not receiving funds in connection with any illegal, fraudulent, deceptive or manipulative act or practice and that the Merchant is not sending or receiving funds to or from an illegal source.
7.1. Unless otherwise indicated, fees are quoted in Indian Rupee.
7.2. Unless otherwise stated, a chargeback fee of Rs. ___ per chargeback of credit or debit card transactions and Rs. _____ per chargeback of direct debits applies, regardless of whether the chargeback is subsequently challenged or reversed.
7.3. Fees are quoted exclusive of Value Added Tax. In case Value Added Tax or any other sales tax is or become chargeable, KSC will add such tax to the amount payable but shall, where required, provide information on the net amount, the amount of tax and the tax rate applied.
7.4. Any fee payable by the Merchant shall be deducted from the Merchant Account balance. If the Merchant Account balance is insufficient, or the Merchant Account balance becomes negative, KSC reserves the right to invoice the Merchant for any shortfall.
7.5. Where KSC is unable to deduct any fees or other monies payable by the Merchant from the balance of the Merchant Account KSC shall issue an invoice for the amount owed. Invoices are payable within seven (7) days of the date of the invoice. In case of overdue payments, KSC reserves the right to (i) charge interest in the amount @ 18% per year (accruing daily); and/or (ii) terminate this Agreement with immediate effect by giving written notice to the Merchant.
9.1. For the duration and strictly for the purpose of this Agreement, the parties grant each other a non-exclusive, worldwide, royalty-free, non-transferable licence to copy, use and display any logo, trademark, trade name or other intellectual property owned by, or licensed to the other party, to the extent that KSC is entitled to grant a sublicense.
9.2. Any use, adaptation or amendment of intellectual property (except for non-material adaptation or amendments necessitated by the use for a particular purpose as contemplated by the parties) shall be subject to prior written approval by the party licensing the intellectual property in question. No party shall use the other party's intellectual property or mention the other party in any public communication without the first party's prior written approval.
9.3. Except as expressly stated, nothing in this Agreement shall grant or be deemed to grant to any party any right, title or interest in any logos, trademarks, trade names or other intellectual property licensed to that party by the other party.
9.4. In using the other party's intellectual property (or intellectual property licensed to that other party by a third party), each party shall follow the other party’s reasonable instructions having regard to the purpose of such use under this Agreement and the jurisdiction in which the other party's intellectual property is used. With respect to intellectual property owned or licensed by Card or Payment Schemes, the Merchant shall also follow instructions given by the relevant Card or Payment Scheme. The Merchant shall not use such intellectual property in a way that is or may be detrimental to the business or brand of the relevant Card or Payment Scheme.
9.5. Each party warrants and represents that it owns or has the right to use and sub-licence any intellectual property which it uses or licenses for use to the other party.
9.6. Without prejudice to its right to give instructions under clause 9.4, KSC reserves the right at any time and in its sole discretion to require the Merchant to stop displaying, distributing or otherwise making use of the intellectual property licensed to the Merchant by KSC.
9.7. Each party ("Indemnifying Party") shall indemnify and hold harmless the other party and its employees and directors ("Indemnified Party") for and against any and all claims, losses, liabilities, costs expenses or damages (including reasonable legal fees) incurred by reason of any claim, demand, lawsuit or action by a third party (other than an employee or director of the Indemnified Party) resulting from an actual or alleged infringement of any third party intellectual property right in connection with material provided by the Indemnifying Party.
9.8. The indemnity under clause 12.7 shall only be available if the Indemnified Party:
9.8.1. uses reasonable efforts to notify the Indemnifying Party of such claim as early as possible and in writing;
9.8.2. uses reasonable efforts to mitigate the loss or amount of the claim;
9.8.3. refrains from admitting any liability or settling any claim without the prior written consent of the Indemnifying Party;and
9.8.4. provides, at its own cost, reasonable cooperation in the defense or settlement of such claim.
10.1. Neither party shall be liable in contract, (including breach of statutory duty) or otherwise for any indirect or consequential loss or damage of any kind including punitive or exemplary damages or for any loss of profit or loss of contract, loss of goodwill or reputation, loss of opportunity, loss of revenue or third party loss whether foreseeable or otherwise.
10.2. KSC shall not be liable for any of the following:
10.2.1. a hardware, software or internet connection is not functioning properly;
10.2.2. any suspension or refusal to accept payments which KSC reasonably believes to be made fraudulently or without proper authorisation;
10.2.3. the payment instructions received contain incorrect or improperly formatted information;
10.2.4. unforeseen circumstances preventing the proper performance despite any reasonable precautions taken by KSC. Such circumstances may include but are not limited to acts of God, power outages, fire, flood, theft, equipment breakdowns, hacking attacks, internal mechanical or systems failures as well as downtimes of the Keettoo Website.
11.1. During the term of this Agreement and thereafter, each party shall use and reproduce the other party's Confidential Information only for purposes of this Agreement and only to the extent necessary for such purpose and will restrict disclosure of the other party's Confidential Information to its employees, consultants, advisors or independent contractors with a need to know and will not disclose the other party's Confidential Information to any third party without the prior written approval of the other party.
11.2. Notwithstanding the foregoing, it will not be a breach of this Agreement for either party to disclose Confidential Information of the other party if required to do so under law or in a judicial or governmental investigation or proceeding.
11.3. The confidentiality obligations shall not apply to
(i) is or becomes public knowledge through no action or fault of the other party;
(ii) is known to either party without restriction, prior to receipt from the other party under this Agreement, from its own independent sources as evidenced by such party's written records, and which was not acquired, directly or indirectly, from the other party;
(iii) either party receives from any third party reasonably known by such receiving party to have a legal right to transmit such information, and not under any obligation to keep such information confidential;
(iv) information independently developed by either party's employees or agents provided that either party can show that those same employees or agents had no access to the Confidential Information received hereunder
12.1.1. if the Merchant files a petition for bankruptcy, becomes insolvent, or makes any arrangement or composition with or assignment for the benefit of its creditors, or a receiver is appointed for the Merchant or its business, or the Merchant goes into liquidation either voluntarily (otherwise than for reconstruction or amalgamation) or compulsorily;
12.1.2. upon the occurrence of a material breach of this Agreement by the Merchant if such breach is not remedied within three (3) business days after written notice is received by the Merchant identifying the matter or circumstances constituting the material breach;
12.1.3. if the Merchant violates or fails to comply with any applicable law, regulation or any order by a competent court or government authority.
13.1. The Merchant may not assign any of its rights under this Agreement to a third party without the prior written consent of KSC.
13.2. The Merchant may not out-source the performance of any of its obligations under this Agreement without the prior written consent of KSC, such consent not to be unreasonably withheld.
13.3. In case the Merchant
13.3.1. acquires another existing KSC merchant or its business;
13.3.2. is acquired or its business is acquired by another existing KSC merchant;
13.3.3. merges with another existing KSC merchant
13.3.4. enters into a cooperation with another existing KSC
merchant the Merchant shall pay, upon KSC notice to the Merchant,
(i) its current fees or
(ii) the current fees applicable to the other merchant or
(iii) such reasonable combination of its own current fees and the fees payable by the other merchant as determined by KSC. KSC shall send a notice within one (1) month of the later of (a) completion of the acquisition, merger or cooperation, (b) KSC gaining knowledge of such acquisition, merger or cooperation. If no notice is sent within this time period, the Merchant shall continue to pay its current fees.