MERCHANT TERMS AND CONDITIONS
These Terms and Conditions (“Terms”) govern access or use by you (“Merchant”, “you”, “your”) of the Tyche Services (defined below) provided by Tyche Payment Solutions Private Limited (“Tyche”, “we”, “us” or “our”), a company established under the laws of India, having its registered office at New No 9, Old No 11 First Floor, Palayakaran street, Kalaimagal Nagar, Ekkaduthangal, Chennai – 600032. Please read these Terms carefully before accessing or using the Tyche Services. Your access and use of the Tyche Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and Tyche. If you do not agree to these Terms, you may not access or use the Tyche Services. The Merchant and Tyche shall individually be referred to as a “Party” and collectively as “Parties”.
1. DEFINITIONS AND INTERPRETATION:
In these Terms, except where the context otherwise requires, the following words and expressions shall have the following meanings.
(a) “Acquiring Banks” shall mean various banks, financial institutions, Card Associations, payment system providers who are defined and licensed under the Payment and Settlement Systems Act, 2007 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.
(b) “Acquiring Bank Services” shall mean the payment gateway system and services provided by the Acquiring Banks such as to (i) route internet based Valid Card transactions; (ii) offer various facilities through the internet, including Net Banking facilities; (iii) provide Authentication and Authorization from Card Associations or other third-party clearing houses; and (iv) provide settlement facilities in respect of payment instructions initiated by the customers.
(c) “Authentication” shall mean the process by which the Customer’s identification is authenticated by the Acquiring Banks.
(d) “Authorised Deductions” means the charges payable by the Merchant to Instamojo or any third party whose services are availed by the Merchant on Instamojo’s platform and shall include applicable taxes.
(e) “Authorization” shall mean the process by which the Issuing Institution and/or the relevant Card Association electronically or otherwise convey the approval of the charge (i.e. if the Customer has a Valid Card and/or the required credit limit/ debit limit to pay the Customer Charge requested) on a Transaction being undertaken by a Customer on the Merchant Site.
(f) “Business Days” shall mean any day on which Acquiring Banks are open for business in India, other than Saturday, Sunday and any days declared by Acquiring Bank as a Holidays
(g) “Card Association(s)” shall mean any of Visa, MasterCard, Visa Electron, Maestro, Diners, American Express or any other card association as may be specified by Tyche from time to time.
(h) “Card Association Rules” shall mean the written rules, regulations, releases, guidelines, processes, interpretations and other requirements (whether contractual or otherwise) imposed or adopted by any Card Association.
(i) “Chargeback” shall mean the approved and settled card or net banking Transactions which are at any time refused, debited or reversed from the Merchant Bank Account or from the Merchant’s Settlement Amount in the Nodal/Escrow Account by the Acquiring Bank for any reason whatsoever, together with the bank fees, penalties and other charges incidental thereto.
(j) “Tyche Completion of Transaction” has the meaning ascribed to it under Clause8.2.
(k) “Confidential Information” shall mean any and all written, oral or other tangible or intangible form of information, discoveries, ideas, concepts, know-how (whether patentable or copyright able or not), research, development, designs, drawings, blueprints, diagrams, models, samples, flow charts, data, computer programs, disks, diskettes, tapes, algorithms, software programs, marketing plans or techniques, technical, financial, or business information, trade secrets which includes but is not restricted to any portion or scientific or technical or proprietary information, design, process, procedure, formula or improvement which is not generally available to the public as delivered by either Party (“Disclosing Party”) to the other Party (“Receiving Party”) within the framework of these Terms or resulting therefrom. Provided that confidential information disclosed orally or those produced by electronic media or through another intangible means shall be deemed confidential if it is identified as being confidential if it is reduced in writing within(30) thirty days of the date of disclosure. Such writing shall specify the date, time, place, persons involved and the substance of the confidential information so disclosed.
(l) “Customer” shall mean an individual or legal entity, who/which purchases Products, offered by the Merchant on the Merchant’s Website or Mobile Application or through IVR System directed to the Internet Payment Gateway using a Valid Card or Net Banking account or any other acceptable modes of Payment Mechanism, provided by Tyche.
(m) “Customer Bank Account” shall mean a bank account or credit/ prepaid/ cash card account of the Customer with Issuing Institution.
(n) “Customer Charge” shall mean the sale price of the Products purchased by the Customer plus the shipping charge (if any) and all other taxes, duties, costs, charges and expenses in respect of the Products/payment that are to be paid by the Customer.
(o) “Delivery” shall mean (i) in respect of a good, delivery of the good by a courier /parcel service appointed by the Merchant or its vendors, to the Customer within Delivery Due Date at the address specified by the Customer in this behalf; or (ii) in respect of a service, delivery or performance of provisions of service within the Delivery Due Date.
(p) “Delivery Due Date” shall mean the date/period displayed on the Website or otherwise notified to the Customer on or before which the Merchant shall deliver the Products to the Customer(s).
(q) “GST” shall mean applicable Goods and Services Tax (including any statutory modifications(s) or re-enactment(s) thereof, for the time being in force, and the rules enacted thereunder).
(r) “Internet Payment Gateway” shall have the meaning ascribed to it in Clause 3.3.
(s) “Instamojo” refers to Instamojo Research and Development Private Limited.
(t) “Issuing Institution” shall mean a bank or financial institution or other legal entity, with which the Customer has an Net Banking account and/or which has issued the Valid Card to the Customers (explanation: except for debit card or credit card Transactions, the Issuing Institution of the Customer and the respective Acquiring Bank will be the same).
(u) “IVR System” shall mean interactive voice response technology that allows the Customer to interact with the Tyche hosted IVR platform through a telephone by way of tele communication signal tone input on the keypad and make payments of Customer Charge through IVR dialogue.
(v) “Merchant Bank Account” shall mean the bank account maintained by Merchant which it nominates for settlement of its Settlement Amount.
(w) “Merchant Site” shall mean the active website established for the purposes of enabling the Customers to view Products and carry out Transactions for purchase of Products; and/ or the IVR System hosted by Tyche for the Merchant through which the Customer can make payments for Products purchased from the Merchant.
(x) “Net Banking Account” shall mean the facility and internet account provided by the Issuing Institution to Customers holding a bank account or digital wallet account with the Issuing Institutions specified by Tyche from time to time. Provided that the bank account is not listed in current warning or restricted bank account bulletins or notices.
(y) “Nodal/Escrow Account” shall mean an inoperative account held by Tyche with any of the banks for the purpose of pooling the monies collected from Customers on behalf of the Merchant and facilitating the transfer of these funds in final settlement to the Merchant, pursuant to RBI notification DPSS.CO.PD.No.1102/ 02.14.08/2009-10, dated 24/11/2009 or any other RBI notifications/guidelines amended from time to time.
(z) “Nodal/Escrow Bank” shall mean the bank(s) designated by Tyche for the purpose of pooling the funds collected from Customers on behalf of the Merchant and facilitating the transfer of these funds in final settlement to the Merchant, pursuant to RBI notification DPSS.CO.PD.No.1102/ 02.14.08/2009-10, dated 24/11/2009 or any other RBI notifications/ guidelines amended from time to time.
(oo) “One Click Checkout” shall mean the facility provided to the Customers to save its Valid Card details on the Tyche server to purchase the Products from the Merchant Site with a single click.
(oo) “Outstanding Amount” shall mean the amount payable by the Merchant to Tyche, Acquiring Banks and/or Customers for any losses, costs, damages, penalties, Chargebacks, refund overdraft or credit problems suffered or incurred by the Customers, Tyche and/or Acquiring Banks; any other payments owed to Tyche by the Merchant; and any claims or proceedings filed against Tyche and/or Acquiring Banks by the Customers or any third Party.
(pp) “Payment Mechanism” shall mean the mechanism of making payment by utilizing the internet facilities of various Acquiring Banks, Card Associations, card payment systems and through such other modes and mechanisms of payment and delivery as may be notified by Tyche from time to time.
(qq) “Tyche Services” shall mean the payment aggregation services provided by Tyche in accordance with the applicable law.
(rr) “Tyche Services Product” shall mean Tyche by means of which Tyche provides Tyche Services.
(ss) “Tyche Site” shall mean the websites provided by Tyche Payments Private Limited by means of which Tyche provides Tyche Services to the Merchant and the Customers.
(tt) “Products” shall mean goods and/or services offered for sale by the Merchant on the Merchant Site.
(uu) “Proof of Delivery” shall mean sufficient legitimate records evidencing Delivery of the Product to the Customer (i.e. Courier Company’s delivery confirmation and delivery confirmation by the Customer).
(vv) “RBI” shall mean the Reserve Bank of India.
(ww) “Reserve” shall mean the interest free, refundable funds provided and replenished by the Merchant to Tyche from time to time.
(xx) “Settlement Amount” shall mean Customer Charge minus the Authorised Deductions and any other charges/fees payable by the Merchant to Tyche under these Terms.
(yy) “Software Application” shall mean the software application developed by Tyche.
(zz) “Transaction” shall mean every payment request/order placed by the Customer on the Merchant Site for purchasing Products from the Merchant.
(aaa) “Valid Card” shall mean any unexpired credit card or debit card which is issued by an Issuing Institution designated to issue a Visa, MasterCard, Visa Electron or a Maestro or cash card, pre-paid card or other card as may be specified by Tyche from time to time. Provided that the card is not listed in current warning or restricted card bulletins or notices and bears the signature of the person in whose name the card is issued.
2. TERM
These Terms shall be in force from Effective Date and shall remain in force until terminated by either Party in accordance with the provisions of these Terms.
3. SCOPE OF TYCHE SERVICES
3.1 Tyche has developed a Software Application and established Tyche Sites.
3.2 The Merchant sells the Products and collects payments online from the Customers.
3.3 Tyche 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 Tyche Site, for enabling the Customers to make payment of Customer Charge on the Merchant Site for Transactions carried through the Payment Mechanisms using Acquiring Bank’s Services (“Internet Payment Gateway”).
3.4 In order to serve in this role, Tyche has entered into agreements with various Acquiring Banks to enable use of internet payment gateways/Payment Mechanisms developed by them and process payments using Acquiring Bank Services.
3.5 Once the payment instruction is Authenticated and Authorized by the respective Acquiring Bank in respect of a Transaction, the Acquiring Bank will transfer such approved Customer Charge from the Customer Bank Account to the Nodal/Escrow Account.
3.6 The Merchant hereby directs and authorizes Tyche to receive, hold, disburse and settle the Customer Charge in accordance with and subject to the provisions of these Terms.
3.7 Except as provided in these Terms, no right is granted to the Merchant or to any third party under these Terms.
4. APPROVAL AND REGISTRATION TO AVAIL TYCHE SERIVCES/ACQUIRNG BANK SERVICES
4.1 The Merchant shall disclose the exact business category/business sub-category for which the Merchant will be using the Tyche Services to Tyche and shall only avail the Tyche Services through its designated Merchant Site. In order to use the Tyche Services for any other purpose, the Merchant understands and acknowledges that it shall notify Tyche in writing of such change and such change will be subject to approval by Tyche.
4.2 The Merchant understands that in order to avail the Tyche Services and Acquiring Bank Services, the Merchant must be approved by and registered with Tyche, the Acquiring
4.3 Banks and Nodal/Escrow Bank. Any undertaking with respect to the Tyche Services under these Terms shall be subject to Tyche’s, the Acquiring Banks’ and Nodal/Escrow Bank’s approval and completion of the registration process. The Merchant shall provide Tyche with all such documents as required by Tyche to register the Merchant with Tyche, the Acquiring Banks and Nodal/Escrow Bank. The Merchant further understands and acknowledges that Tyche, the Acquiring Banks and Nodal/Escrow Bank have the right to withdraw their approval/consent at any time prior to or after commencement of the Tyche Services.
5. CONNECTIVITY AND INTEGRITY OF HOTLINK
5.1 The Merchant acknowledges that Instamojo (including Instamojo’s vendors) shall work together with Tyche to link the Software Application with the Merchant Site software, for the purpose of connecting the Merchant Site with the Internet Payment Gateway as exemplified in Clause 3 above, in such form and manner as may be mutually agreed between Instamojo and Tyche. Instamojo (including Instamojo’s vendors) and Tyche shall cooperate and render assistance to each other for connecting the respective software systems of Instamojo (including Instamojo’s vendors) and Tyche.
5.2 The Merchant acknowledges that for security during transmission of data in the course of providing services to the Customers, Instamojo and Tyche shall mutually work upon developing and implementing various mechanisms.
5.3 The Merchant acknowledges that Tyche and Instamojo (including Instamojo’s vendors) shall take all such precautions and measures as may be mutually agreed upon between Tyche and Instamojo 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.
6. AUTHORIZATION AND AUTHENTICATION OF TRANSACTION
6.1 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 to the Nodal/Escrow Account.
6.2 The Merchant understands that Tyche, 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, guide lines, regulations, etc and any other laws, rules, regulations, guidelines in force in India, etc.
6.3 The Merchant acknowledges that as a risk management tool, Tyche 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, Tyche 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.
7. PAYMENT TO TYCHE
7.1 Subject to Tyche’s other rights under these Terms, Tyche shall not charge any service fee, including without limitation transaction/ merchant discount rate to the Merchant, in addition to the Authorised Deductions and settlements made in accordance with Clause 7.2 and 7.3.
7.2 The Merchant further explicitly acknowledges, confirms and directs Tyche to settle:
i. the Customer Charge net of any Authorised Deductions to the Merchant; and
ii. the Authorised Deductions to Instamojo.
7.3 The Merchant confirms that it has authorised Instamojo, under the agreement between Instamojo and the Merchant, to direct Tyche to settle the Customer Charge to any third parties on behalf of the Merchant.
7.4 The Merchant agrees that all communications to Tyche in relation to settlement of Customer Charge shall be undertaken via Instamojo and the Merchant shall not independently approach Tyche in this regard.
7.5 Tyche reserves the right to revise the charges periodically.
7.6 Tyche undertakes to comply with all the compliances mandated under the GST as may be applicable on Tyche as and when the same are implemented by the relevant government authority including timely deposit of GST to the government and maintaining appropriate compliance rating.
8. TERMS OF PAYMENT TO MERCHANT
8.1 Subject to any other Clause of these Terms, Tyche shall endeavor to instruct the Nodal/Escrow Bank to transmit the Settlement Amount from the Nodal/Escrow Account to the Merchant’s Bank Account and to the bank accounts of such other third parties, as may be required by the Merchant, within the time period prescribed by RBI commencing from date of completion of Transaction.
8.2 In the event that the Merchant opts for Tyche Services using Tyche Services Product: Tyche, the Merchant understands that the Transaction shall be completed only upon receipt of the Customer Charge in the Nodal/Escrow Account from the Acquiring Banks and reconciliation of the same by the Acquiring Banks, Tyche and the Nodal/Escrow Bank (“Tyche Completion of Transaction”)
8.3 The Merchant further acknowledges that transmission of the Settlement Amount to the Mer chant Bank Account shall be subject to reconciliation of the Customer Charge by the Acquiring Banks, Tyche and the Nodal/Escrow Bank after actual receipt of Customer Charge in the Nodal/Escrow Account.
8.4 The Merchant hereby agrees that all payments with respect to refunds and Chargebacks shall be the sole responsibility of the Merchant and Tyche shall not be liable for any claims, disputes, penalties which may arise in connection with such refunds or Chargebacks to the Merchant or the Customer. The Merchant agrees to indemnify Tyche 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.
8.5 The Merchant hereby agrees and acknowledges that the Service Fee charged by Tyche in respect of the refunds, disputes and Chargeback transactions shall not be refunded or repaid by Tyche to the Merchant or any other person.
8.6 Notwithstanding anything contained anywhere in these Terms, the Merchant hereby fully confirms and agrees that Tyche, Acquiring Bank and Nodal/Escrow Bank reserve the right to reject payments with respect to any Customer Charge for reasons including but not limited to unlawful, unenforceable, doubtful or 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 Tyche and/or the Acquiring Banks and/or Card Association.
8.7 In the event of rejection of payment with respect to Customer Charge, Chargeback, refunds or other Outstanding Amounts due to Tyche, Acquiring Bank and/or the Customer by the Merchant, Tyche 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 the Merchant. Tyche and/or Acquiring Banks may also deduct the payment amount due from future Settlement Amounts payable to the Merchant with respect to subsequent Transactions.
8.8 If Tyche and/or the Acquiring Banks determine that the Merchant is incurring an excessive number of Chargebacks, Tyche may establish controls or conditions governing the Transactions contemplated under these Terms, including without limitation, by (a) establishing new processing fees, (b) by requesting a Reserve in an amount reasonably determined by Tyche to cover anticipated Chargebacks, (c) delaying payouts, and (d) terminating or suspending the Tyche Services.
8.9 All Settlement Amount due to the Merchant under these Terms may be suspended or delayed till such time as Tyche, the Acquiring Banks and/or Nodal/Escrow Bank deems fit, if (a) the Merchant or its Customer or a third party commits any fraud or violates any law or legal requirement; (b) Tyche and/or the Acquiring Banks have reasons to believe that a fraud has been committed against the Customers, Tyche, Acquiring Banks or any third party by the Merchant, its 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) the Merchant has 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.
9. RESERVE
9.1 Tyche reserves a right to require the Merchant to maintain with Tyche a Reserve of such amounts as may be requested by Tyche from time to time to secure the performance of the Merchant’s obligations under these Terms 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 Tyche or any other indications of performance problems related to Merchant’s use of the Tyche Services. If the Merchant fails to provide Tyche with Reserve within seven (7) days of receipt of notice for the same, Tyche reserves the right to suspend the Settlement Amount payable to the Merchant or the Tyche Services without further notice and/or retain the Settlement Amount in whole or in part in order to maintain it as Reserve after prior intimation to the Merchant. Tyche may use this Reserve to set-off including but not limited to any Outstanding Amounts payable by the Merchant to Tyche, Acquiring Banks and/or Customers.
9.2 In case the Settlement Amount payable to the Merchant and/or the Reserve (if any) is not sufficient to cover the Merchant’s Outstanding Amount, then the Merchant shall pay Tyche and/ or the Acquiring Banks the remaining amount due immediately upon request. Provided that the above right of Tyche 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 Tyche to recover all such losses, costs and damages etc from Merchant by any other means, which may be available to Tyche under the law. In addition, Merchant 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 out standing amount and the collection of same from the Merchant.
10. DELIVERY
10.1 The Merchant shall dispatch/render the Products to the Customer only upon transaction confirmation from Tyche to the Merchant. The Merchant acknowledges that Tyche shall give confirmation only upon receipt of transaction confirmation in respect of the Transaction from the Acquiring Bank. Tyche shall not be responsible for any Transactions that have not been confirmed with Tyche by the Acquiring Banks.
10.2 The Merchant 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 Tyche and/or the Acquiring Banks at all times during working hours on Business Days. Notwithstanding any other Clause of these Terms, the Merchant understands that Tyche and/or the Acquiring Bank and/or Nodal/ Escrow 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. Tyche 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 with these Terms.
10.3 The Merchant shall deliver the Product within the Delivery Due Dates specified at the time of making the transaction on the Merchant Site. If the Merchant is unable to deliver the whole or any part of the Transaction within the Delivery Due Date, the Merchant shall forthwith inform the Customer and take immediate action to refund the Customer Charge in whole or in part as per the Customers instructions.
10.4 All risks associated with the Delivery by the Merchant shall be solely that of the Merchant and not Tyche. Any and all disputes regarding quality, merchantability, non-Delivery, delay in Delivery or otherwise shall be resolved directly between the Merchant and the Customer without making Tyche and/or the respective Acquiring Bank a party to such disputes.
11. REFUND AND RETURN POLICY
11.1 The Merchant agrees to process returns of, and provide refunds and adjustments for, Products sold and/or payment collected through its Merchant Site in accordance with these Terms, the Acquiring Banks instructions and Card Association Rules as may be applicable. The Merchant understands that all refunds must be routed through the same Acquiring Bank payment gateway through which the Transaction was made. In the event that the Merchant initiates refunds through any other mode, the Merchant shall be fully liable for all Chargebacks raised in respect of the Transaction refunded. The Merchant shall ensure that Tyche at all times have sufficient funds of the Merchant to process refunds initiated. Tyche shall not be liable to process any refund initiated in the event of insufficient funds.
11.2 The Merchant understands that no refund shall be processed by Tyche after a period of 180 days from the date of the Transaction.
11.3 The Merchant shall (a) maintain a fair return, cancellation or adjustment policy in accordance with type of business; (b) disclose its return or cancellation policy to Customers at the time of purchase, (c) not give cash refunds to a customer 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.
11.4 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 (if any) that the Customer paid to return Product. The Merchant understands that if the refund policy prohibits returns or is unsatisfactory to the Customers, the Merchant may still receive a Chargeback relating to the disputed Transaction.
12. CUSTOMER PRODUCT SUPPORT
12.1 The Merchant is solely responsible for all Customer service issues relating to the Products sold on the 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. In performing Customer service, the Merchant will always present itself as a separate entity from Tyche.
The Merchant shall provide Customer support within 36 (thirty six) hours during all Business Days. Such support shall include appropriate notice to Customers of means of contacting the Merchant 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.
12.2 Under no circumstances shall Tyche be responsible for customer product support to the Customer or any third party.
13. INSPECTION
13.1 Except as required by law, the Merchant shall be solely responsible for (a) compiling and retaining permanent records of all Transactions and other data and (b) reconciling all Transaction information that is associated with its Customers.
13.2 The Merchant shall maintain records of such periodical checks in such manner as may be specified by Tyche and/or Acquiring Banks. Tyche and/or Acquiring Banks shall be entitled to check and audit records and statements of the Merchant to ensure compliance with the Merchant’s obligations under these Terms at such intervals or times as Tyche and/or Acquiring Bank may deem fit.
13.3 The Merchant shall also permit the authorized representatives of Tyche and/or the Acquiring Banks to carry out physical inspections of the place(s) of business or other facilities of the Merchant to verify if the Merchant is in compliance with its obligations hereunder.
13.4 If the Merchant refuses such inspection or provides inaccurate, untrue, or incomplete information, or fails to comply with these Terms, Tyche reserves the right to suspend or terminate the Tyche Services forthwith.
14. COVENANTS OF THE MERCHANT:
14.1 The Merchant hereby declares, assures, undertakes and covenants as under:
(a) The Merchant shall duly fulfill all Transactions placed on the Merchant Site in accordance with the terms and conditions on the Merchant Site and instructions of the Customer. The Merchant undertakes to ensure that the Delivery is done as per specifications of the Customer on or before the Delivery Due Date.
(b) The Merchant will not offer out of stock Products for sale. The Merchant shall be solely liable for quality and efficiency and merchantability of the Products. Further the rates displayed on the Merchant Site shall include all applicable taxes.
(c) The Merchant shall comply with all applicable laws, rules and regulations in offering the Products or collecting Payments on its Merchant Site. The Merchant shall ensure that all requisite approvals, licenses and registrations, etc. in accordance with all laws, rules, regulations, guidelines in force in India from time to time, have been obtained and are kept in full force and effect to enable the Merchant to offer the Products for sale. The Merchant shall not conduct any business through the Tyche Services or offer Products thereof in violation of any law or legal requirement of any applicable jurisdiction and shall keep Tyche fully indemnified for all times to come in this regard.
(d) The Merchant shall not offer any Products, which are illegal or offensive or banned as per the list provided in Schedule A and/or are not in compliance with applicable laws, rules and regulations whether central, state, local or international of all jurisdiction from where the Customers avail the Products. In addition, the Merchant shall comply with all applicable guidelines, rules, regulations issued by RBI and guidelines set by Tyche, Acquiring Banks and/or Card Associations. The Merchant agrees and understands that Tyche reserves the right to suspend Settlement Amount and/ or Tyche Services to the Merchant until such time that the Merchant does not discontinue selling such banned/illegal Products or does not conform to all applicable laws and regulations in force from time to time. In addition, Tyche reserves the right to terminate these Terms without further notice in the case of breach of this Clause.
(e) The Merchant shall ensure that appropriate cancellation policy, refund policy, privacy policies, disclosures/disclaimers, terms of use pertaining to the Merchant Site, the terms of the Products provided by the Merchant and terms of paying the Customer Charge are displayed conspicuously on the Merchant Site in accordance with these Terms (collectively “Merchant Terms and Conditions”). The Merchant shall prior to accepting any instructions from the Customers ensure that the Customers accept all the Merchant Terms and Conditions. Tyche reserves the right to inspect the Merchant Terms and Conditions at any times.
(f) In the event that the Merchant provides One Click Checkout option to its Customers and the Customer opt for One Click Checkout, the Merchant understands that Tyche shall store the Valid Card data of the Customers on its server in accordance with the applicable law.
(g) In the event that the Merchant has obtained a PCI DSS certification and opts for a One Click Check out API, the Merchant shall be responsible to ensure that all Customer Valid Card data shared with the Merchant is kept safe and not shared with any third party without the consent of Tyche and the Customer. The Merchant shall ensure that there is no unauthorized use or disclosure of such data or any hacking of the same. The Merchant accepts all liabilities with respect to such Customer Valid Card data and shall keep Tyche indemnified in case of any breach of this Clause.
In addition, in the event that the Merchant calls the One Click Checkout API for the wrong Customers Valid Card data or the Customer’s account with the Merchant is compromised, the Merchant shall be fully liable for all transactions processed and Tyche shall have no liability towards the Customers or the Merchant. Further, the Merchant shall also have in place a privacy policy for handling or dealing with the Customer’s personal information including all Customer Valid Card data, and such policy should be available to the Customers and be published on the Merchant Site. The Merchant shall have the marketable and legal right and title to sell Products offered by it to the Customers by using Tyche Services.
(h) In the event any Customer complaints or is dissatisfied with any Product, the Merchant shall take such measures as may be required to resolve the same at its sole cost and expenses.
(i) The Merchant shall ensure that the best service standards in the industry are adopted and shall ensure Delivery of all Products paid for on the Merchant Site to Customers in accordance with the highest standards.
(j) The Merchant agrees to put up such notices, disclaimers or warranties as may be required by Tyche and/or the Acquiring Bank and the Merchant shall comply with such request forthwith.
(k) The Merchant shall be solely responsible for the accuracy of all information and/or validity of the prices and any other charges and/or other information relating to the Products, which are offered on its Merchant Site.
(l) In the event that the Merchant provides EMI options to the Customers, the Merchant shall endeavour to deliver the Product after the approval of the EMI option from the Issuing Institution providing the EMI option through Tyche. Tyche shall not be liable to the Merchant 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/ Escrow Bank or already transferred to the Merchant Bank Account. The Customer shall raise such dispute directly with the Issuing Institution.
(m) The Merchant hereby agrees that it shall bear and be responsible for the payment of all relevant taxes, surcharge, levies etc. (including withholding taxes) in relation to the Customer Charge.
(n) As the Merchant will be using the Acquiring Banks Services and Card Association Services, the Merchant shall comply with all applicable rules, guidelines, instructions, requests and actions, etc made by the Acquiring Banks and/or Card Associations from time to time. The Acquiring Banks has the right to reverse/reject settlement, suspend and/or terminate Acquiring Banks Services/Tyche Services, make inspections or inquiries in relation to the Transaction, etc. In the event that Merchant’s non-compliance of these Terms results in any fines, penalties or other amounts being levied on or demanded of Tyche by an Acquiring Bank and/or Card Association, then without prejudice to Tyche’s other rights hereunder, the Merchant shall forthwith indemnify Tyche in an amount equal to the fines, penalties or other amount so levied or demanded. If the Merchant fails to comply with its obligations towards the Acquiring Banks and/or Card Associations, Tyche may suspend settlement or suspend/terminate the Tyche Services forthwith.
(o) The Merchant shall not require the Customer to provide the Merchant with any details of the accounts held by it with Issuing Institution. The Merchant shall not input any data on behalf of the Customers on the Merchant Site or the Acquiring Bank, failing which it will be considered as breach of trust of Tyche and/or of the Acquiring Bank.
(p) The Merchant shall be liable to comply with existing data privacy regulations from time to time.
(q) The Merchant shall in writing inform Tyche of all changes in its constitution, directors/ partners/trustees, or change in the current addresses of each office, within seven (7) Business Days of such change having taken place listing out the names and details of the personnel in charge of the management and affairs of the Merchant. Such intimation shall be provided on the Merchant’s letterhead signed by the authorized signatory of the Merchant.
(r) The Merchant shall not disparage the business and/or brand of Tyche, the Acquiring Banks and/or Card Associations.
(s) The Merchant must indicate its acceptance of all the respective Acquiring Banks and/or Card Associations, whose Payment Mechanism is being used by the Merchant, whenever it communicates the payment methods it accepts to its Customers without prejudice to anyone of the Acquiring Banks and/or Card Associations. In the event that the Merchant decides to display the logos of the Acquiring Banks and/or Card Associations whose Payment Mechanism it is providing as a Valid Card payment option to its Customers on the Merchant Site and/or other marketing materials, the Merchant must ensure that it prominently displays the logos of all the respective Acquiring Banks and/or Card Associations (being used to process Valid Cards)in the same manner and without prejudice to any one of them and in accordance with the guidelines and/or direction provided by the respective Acquiring Banks and/or Card Associations. In addition, the Merchant shall not promote, dissuade or impose restrictions/ conditions on any one Valid Card Payment Mechanism and/or Card Association over the other. Exceptions being limited time bound tactical marketing programs with one or more Acquiring Banks and/or Card Associations.
(t) Merchant agrees to intimate Tyche and refund back to Tyche any excess or wrong credit received in its account. Merchant also agrees to recover and fully cooperate with Tyche to recover any incorrect settlement done on behalf of the Merchant to any third party.
(u) The Merchant shall be responsible to resolve all cardholder/customer account holder disputes and provide whatever assistance necessary to assist the Acquiring Banks, Card Associations and Tyche deal with all cardholder/Customer Account holder disputes at its own cost.
(v) The Merchant authorizes Tyche to share Transaction data and Customer information with the respective Acquiring Banks and Card Associations.
(w) The Merchant agrees that Tyche has the right to hold an amount from the pending settlement towards future chargeback recovery, based on the risk category and chargeback history of the merchant, in case the merchant stops transacting or drastically reduces volume.
(x) The Merchant shall maintain and run the Merchant Site as a part of its business and shall ensure that the Merchant Site does not contain libelous, defamatory, obscene, pornographic or profane material or any instructions that may disparage Tyche, the Acquiring Banks, Card Associations.
(y) The Merchant agrees that Tyche reserves a right to suspend the payment and/or Tyche Services provided herein, forthwith, in event the Merchant fails to observe the terms andconditions herein.
(z) The Merchant assures and guarantees to Tyche that the Merchant complies with all government laws, rules, and regulations applicable to its business and supports the eradication of corruption. Consistent with the Anti-bribery/Anti-corruption, and Anti-money laundering, the Merchant has had a long-standing commitment to compliance with the minimum requirements adopted by the US/OFAC, UK, UN and the EU in regards to anti-bribery and anti-corruption, anti- money laundering (“Anti-Financial Crimes Laws”) of all of the countries and territories in which the Company does business. Merchant acknowledges and agrees that the Merchant undertakes to be compliant and shall continue to abide to the relevant Anti-Financial Crimes Laws set out in Schedule B hereto
(aa) The Merchant acknowledges that Tyche has set out its policies and procedures regarding the Refunds, disputes, Chargeback, Grievance & complaints, etc. on Tyche’s website available at www.tychepayment.com.
15. REPRESENTATIONS BY THE PARTIES
15.1 Each of the Parties represents warrants and undertakes that:
(a) It is duly organized and validly existing under the laws of the jurisdiction in which it is established;
(b) It has the requisite power and authority to deliver and perform these Terms and that these Terms have been duly and validly agreed by it;
(c) Its obligations hereunder constitute legal, valid, binding and enforceable obligations;
(d) Agreement to these Terms and the consummation of the transactions contemplated herein do not breach its organizational documents or any law, provisions of any contract or order of court applicable to it and do not require any applicable governmental approval; and
(e) The person agreeing to these Terms is duly authorized to agree to these Terms for and on behalf of the respective Party and shall have the authority to bind the respective Party accordingly.
16. USE OF INTELLECTUAL PROPERTY RIGHTS AND PROTECTION OF SOFTWARE APPLICATION
16.1 The Merchant hereby grants to Tyche the right 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 Tyche Services provided to the Merchant to the public. The Merchant hereby release Tyche from all liability relating to the publication or use of the Marks for such purpose. The Merchant hereby confirms that the Merchant has the requisite right to use the said Marks and to grant permission to use as stated herein. The Merchant shall retain all intellectual property rights in such marks.
16.2 The Merchant shall prominently display on its website and/or in other online marketing materials, a statement/logo/marks/image provided by Tyche relating to Tyche Services and that of the respective Acquiring Banks providing the Payment Mechanism. The Merchant must only use the logos/marks/images of Tyche provided by Tyche and no other.
16.3 Nothing contained herein shall authorize the Parties to use in a manner not provided for under these Terms, apply, invade or in any manner exploit or infringe the intellectual property rights of the other Parties, and the usage shall be in compliance with these Terms. In addition, the Parties undertake not to infringe the intellectual property rights of any third party.
16.4 The Merchant undertakes not to infringe the intellectual property rights of Tyche, whether directly or indirectly through any third party in the Acquiring Banks Services and software and/or Tyche Services and Software Application. The Merchant warrants that it shall only use the Tyche’s Software Application for the purposes of these Terms. The Merchant, its employees, contractors, agents or any other person empowered by the Merchant shall not use the Tyche Software Application in any form whatsoever, so as to:
(a) design, realize, distribute or market a similar or equivalent software program;
(b) adapt, modify, transform or rearrange the Software Application for any reason whatsoever, including for the purpose, among other things, of creating a new software program or a derivative software program;
(c) allow unauthorized use of or access to the Software Application;
(d) disassemble, reverse engineer, decompile, decode or attempt to decode the Software Application;
(e) allow the Software Application to be disassembled, reverse engineered, decompiled or decoded; and/or
(f) in any way override or break down any protection system integrated into the Software Application.
16.5 The Merchant fully understands that due to use of the Customer of the Internet Payment Gateway through Tyche Site, Tyche may create or generate database in respect of such Customers. All rights and ownership with respect to such database shall vest with Tyche.
17. CONFIDENTIALITY
17.1 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 these Terms.
17.2 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.
17.3 The obligations set out in this Clause shall not apply to Confidential Information that:
(a) is or becomes publicly known other than through breach of this Clause 17;
(b) is in possession of the receiving Party prior to disclosure by the other Party;
(c) is independently developed by the receiving Party;
(d) needs to be disclosed to professional advisers or in accordance with the order of a competent court or administrative authority;
(e) is thereafter rightfully furnished to such receiving Party by a third party without restriction by that third party on disclosure; or
(f) is required by law, judicial court, recognized stock exchange, government department or agency or other regulatory authority, provided that sufficient notice is given of any such requirement, by the receiving Party to the disclosing Party, in order that the disclosing Party may seek for an appropriate protective order or exemption from such requirement, prior to any disclosure being made by the receiving Party and/or its Affiliates.
17.4 Such obligation of confidentiality shall continue for a period of 1 (one) year after the termination or expiry of these Terms.
18. RELATIONSHIP BETWEEN THE PARTIES
18.1 The relationship between Tyche and the Merchant 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 the Parties 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.
18.2 Tyche has no connection or interest of whatsoever nature in the business of the Merchant or the Products offered/ marketed on the Merchant Site. Tyche does not in any manner take part in the business of the Merchant, directly or indirectly. Tyche shall only provide Tyche Services to the Merchant in relation to the Merchants, the Customers and the Acquiring Bank, as an independent entity and under the terms and conditions of these Terms. Tyche is nowhere connected or concerned about the revenues of the Merchant or the Acquiring Banks.
18.3 Tyche has no relationship with the Customers and all actions under these Terms which may affect the Customers are instructed by the Merchant. The Merchant alone shall be responsible to the Customers and neither Tyche nor the Acquiring Bank or anybody connected to Tyche or Acquiring Bank shall have any responsibility or liability towards the Customers and the Merchant shall keep Tyche and Acquiring Bank fully indemnified for all times to come in this respect.
18.4 Tyche is neither concerned nor required to monitor in any manner the use of the payment modes by the Customers for procuring / availing the Products of the Merchant. The Customers should be required to use the payment modes at their sole option and risks. The Merchant shall be required to notify this responsibility to all its Customers under the instructions provided by Tyche.
19. INDEMNITY
19.1 The Merchant hereby undertakes and agrees to indemnify, defend and hold harmless Tyche 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:
(a) breach or non-performance by the Merchant of any of its undertakings, warranties, covenants, declarations or obligations under these Terms;
(b) breach of confidentiality and intellectual property rights obligations by the Merchant;
(c) any claim or proceeding brought by the Customer or any third party against Tyche and/or the Acquiring Banks in respect of any Products or Services offered by the Merchant;
(d) any claim or proceeding brought by the Customer or any third party against Tyche and/ or the Acquiring Banks in respect of Tyche Services;
(e) any act, deed, negligence, omission, misrepresentation, default, misconduct, non- performance or fraud by the Merchant, its employees, contractors, agents, Customers or any third party;
(f) any hacking or lapse in security of the Merchant Site or the Customer data;
(g) Chargebacks or refunds relating to the Transactions contemplated under these Terms;
(h) breach of law, rules regulations, legal requirements (including RBI regulations, Card Association Rules, Acquiring Bank rules) in force in India and/or in any place from where the Customers is making the Transaction and/or where the Product is or to be Delivered and/or where the respective Issuing Institution is incorporated/registered/ established; or
(i) any fines, penalties or interest imposed directly or indirectly on Tyche on account of Merchant’s or Transactions conducted through Merchant Site under these Terms and Conditions.
19.2 The indemnities under this Clause are in addition to and without prejudice to the indemnities given elsewhere in these Terms.
19.3 The indemnities provided herein shall survive the termination of these Terms.
20. LIMITATION OF LIABILITY
20.1 Notwithstanding anything stated under these Terms, the aggregate liability of Tyche to the Merchant from any cause whatsoever shall not in any event exceed the sum equivalent to 0.01% of one month’s aggregate Customer Charge processed by Tyche for the Merchant preceding the claim or INR 5,000 (Five Thousand), whichever is lower. Provided that Tyche shall not be liable to the Merchant for any special, incidental, indirect or consequential damages, damages from loss of profits or business opportunities even if the Merchant shall have been advised in advance of the possibility of such loss, cost or damages. In no event shall Tyche be liable to the Customers or any third party. In no event shall the Nodal/ Escrow Bank or the Acquiring Bank be liable to the Merchant in any way under these Terms.
21. DISCLAIMER
21.1 Tyche will make all reasonable efforts to provide uninterrupted service subject to down time and regular maintenance. However, notwithstanding anything in these Terms, the Merchant acknowledges that Tyche Site, Tyche Services and the Acquiring Bank’s Services may not be uninterrupted or error free or free from any virus or other malicious, destructive or corrupting code, program or macro and Tyche and the Acquiring Banks disclaim all warranties, expressor implied, written or oral, including but not limited to warranties of merchantability and fitness of the services for a particular purpose. The Merchant also acknowledges that the arrangement between one or more Acquiring Banks and Tyche may terminate at any time and services of such Acquiring Banks may be withdrawn. Although Tyche adopts security measures it considers appropriate for the offer of the Tyche Service, it does not assure or guarantee that no person will overcome or subvert the security measures and gain unauthorized access to the Tyche Service or the Merchant/Customer data. In event of incorrect settlement in the Merchant’s Account due to error on the part of Tyche or the Bank, Tyche shall have the right to reverse the extra funds from the Merchant Bank Account. In addition, the Merchant shall be fully liable to return the extra funds settled within 7 (seven) days of intimation by Tyche. In addition Tyche shall not be liable to the Merchant for any loss or damage whatsoever or howsoever caused or arising, directly or indirectly, including without limitation, as a result of loss of data; interruption or stoppage to the Customer’s access to and/or use of the Merchant Site, Tyche Services and/or the Payment Mechanism, interruption or stoppage of Tyche Site, Software Application and Internet Payment Gateway, non-availability of connectivity between the Merchant Site and Tyche Site, etc, to the extent it is not due to any act or omission by Tyche. Any material/information downloaded or otherwise obtained through the use of the Tyche Services is done at the Merchant’s own discretion and risk and the Merchant will be solely responsible for any damage to its computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by the Merchant from Tyche or through or from the use of Tyche Services shall create any warranty. Tyche shall have no liability in this respect.
21.2 Tyche’s sole obligation and the Merchant’s sole and exclusive remedy in the event of interruption in Tyche Site, or loss of use and/or access to Tyche Site, the Acquiring banks Services and the Payment Mechanism and services, shall be to use all reasonable endeavors to restore the Services and/or access to the Payment Mechanism as soon as reasonably possible.
21.3 Tyche or Acquiring Bank obligations under these Terms are subject to following limitations:
(a) messages that originate from the server of the Merchant or the server of a third party designated by Merchant (e.g., a host) shall be deemed to be authorized by the Merchant, and Tyche shall not be liable for processing such messages;
(b) messages that originate from the cardholder are deemed to be authorized by the card holder and Tyche shall not be required to check its veracity and Tyche shall not be liable for processing such messages;
(c) Tyche or the Acquiring Bank are not responsible for the security of data residing on the server of the Merchant or a third party designated by the Merchant (e.g., a host) or on the server of a cardholder or a third party designated by a Merchant/cardholder (e.g., a host); and
(d) Tyche and/or the Acquiring Banks shall have no liability for any failure or delay in performing its obligations under this facility if such failure or delay: (i) is caused by the Merchant’s acts or omissions; (ii) results from actions taken by Tyche or the Acquiring Banks in a reasonable good faith to avoid violating a law, rule or regulation of any governmental authority or to prevent fraud on cardholders/accounts; or (iii) is caused by circumstances beyond Tyche control, including but not limited to vandalism, hacking, theft, phone service disruptions, Internet disruptions, loss of data, extreme or severe weather conditions or any other causes in the nature of Force Majeure event.
22. TERMINATION
22.1 These Terms may be terminated by either Party by giving 30 (thirty) days prior written notice to the other Party.
22.2 Either Party may terminate these Terms forthwith in the event:
(a) the Party discovers at any stage that the other Party is in violation of any law or regulation;
(b) the other Party is adjudicated as bankrupt, or if a receiver or as a trustee is appointed for it or for a substantial portion of its assets, or if any assignment for the benefit of its creditors is made and such adjudication appointment or assignment is not set aside within 90 (ninety) Business Days;
(c) the other Party goes into liquidation either voluntarily or compulsorily;
(d) the other Party is prohibited by any regulatory or statutory restriction from continuing to provide services under these Terms.
(e) Tyche shall terminate these Terms forthwith, if the Merchant fails to perform its obligations hereunder or is in breach of any terms and conditions of these Terms.
22.3 The termination under this Clause is in addition to and without prejudice to the termination rights given to the Parties under any other Clause in these Terms.
23. CONSEQUENCES OF TERMINATION
23.1 The termination of Tyche Services shall not affect the rights or liabilities of either Party incurred prior to such termination. In addition, any act performed during the term of provision of Tyche Services which may result in a dispute post termination or any provision expressed to survive these Terms 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 these Terms, both Parties shall undertake to settle all outstanding charges within 30 (thirty) days of the termination taking effect.
23.2 Where any payments claimed by Tyche exceeds the Settlement Amount due to the Merchant the difference thereof shall be a debt due from the Merchant to Tyche and be forthwith recoverable by appropriate legal action, as deemed fit by Tyche. Without prejudice to Tyche’s rights and remedies, in the event that the Merchant does not make any payments to Tyche by its due date or on demand as required under these Terms, Tyche 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 Tyche from recourse to any other remedies available to it under any statute or otherwise, at law or in equity.
23.3 All materials, documentation, instruction manuals, guidelines, letters and writings and other materials issued by Tyche from time to time in respect of these Terms, whether in respect of the utilization of the Internet Payment Gateway or otherwise shall be returned by the Merchant to Tyche upon termination.
23.4 The Merchant agrees and confirms that the Merchant shall remain solely liable after the termination of these Terms for all Chargebacks, refunds, penalties, loss, damages or cost incurred by Tyche, Acquiring Banks, Card Associations and/or Customers and for all claims and proceedings arising against Tyche and/or Acquiring Banks with respect to this Agreement. At the time of termination, Tyche may retain all Outstanding Amounts from the Settlement Amount payable to the Merchant for a period of 210 Business Days. Subject to this Clause and any other Clause of these Terms, all settlement to the Merchant after notice of termination shall be done post termination. In the event that such retained amount is not sufficient to cover all Outstanding Amounts of the Merchant post termination, the Merchant shall ensure that it pays Tyche all pending amounts within 10 (ten) days of receiving the demand notice and shall at all times keep Tyche indemnified in this respect. This Clause survives the termination of these Terms.
24. GENERAL PROVISIONS
24.1 Assignments: Tyche may assign, in whole or in part, the benefits or obligations of these Terms by providing a thirty (30) days prior intimation of such assignment to the Merchant, which shall be binding on the Parties to these Terms.
24.2 Force Majeure: Tyche shall not be liable for its failure to perform under these Terms 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 Tyche or the Acquiring Banks.
24.3 Governing Law, Settlement of Disputes and Jurisdiction: These Terms (and any dispute or claim relating to it, its enforceability or its termination) are 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 these Terms, 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 New Delhi. The courts at New Delhi shall have the exclusive jurisdiction over any disputes relating to the subject matter of these Terms.
24.4 Waiver: Unless otherwise expressly stated in these Terms, the failure to exercise or delay in exercising a right or remedy under these Terms 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 these Terms shall prevent any further exercise of the right or remedy or the exercise of any other right or remedy.
24.5 Survival of Provisions: The terms and provisions of these Terms 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 these Terms.
24.6 Severability: If any provision of these Terms is or becomes, in whole or in part, invalid or un enforceable but would be valid or enforceable if some part of that provision was deleted, that provision shall apply with such deletions as may be necessary to make it valid. If any Court/ Tribunal of competent jurisdiction holds any of the provisions of these Terms unlawful or otherwise ineffective, the remainder of these Terms shall remain in full force and the unlawful or otherwise ineffective provision shall be substituted by a new provision reflecting the intent of the provision so substituted.
24.7 Non-Exclusivity: It is agreed and clarified that these Terms are on a non-exclusive basis and the Parties are at liberty to enter into similar arrangement with others.
24.8 Entire Agreement: These Terms constitute 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 these Terms. All Schedules, Recitals and Annexure to these Terms shall be an integral part of these Terms and will be in full force and effect as though they were expressly set out in the body of these Terms.
24.9 Notices: All notices, requests, demands, waivers and other communications required or permitted to be given under these Terms to Tyche shall be in writing through certified or registered mail, courier, email, facsimile or telegram to be sent to the following addresses:
For Tyche:
Tyche Payment Solutions Private Limited New # 9, Old # 11, 1st Floor, Palayakaran Street, Kalaimagal Nagar, Ekkaduthangal, Chennai – 600032
Or, in each case, at such other address as may be specified in writing to the other Parties in accordance with the requirements of this Clause. All such notices, requests, demands, waivers and other communications shall be deemed duly given (i) if by personal delivery, on the day after such delivery, (ii) if by certified or registered mail, on the10th (tenth) day after the mailing thereof, (iii) if by courier service or similar service, on the day delivered, or (iv) if by email, facsimile or telegram, on the day following the day on which such email, facsimile or telegram was sent and, in the case of a facsimile, electronic confirmation of receipt is received.
24.10 Amendment: These Terms 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 by both the Parties.
SCHEDULE A
Banned list of Products referred to in these Terms is as mentioned herein below: –
1. Adult goods and services which includes pornography and other sexually suggestive materials (including literature, imagery and other media); escort or prostitution services;
2. Alcohol which includes Alcohol or alcoholic beverages such as beer, liquor, wine, or champagne;
3. Body parts which includes organs or other body parts;
4. Bulk marketing tools which include email lists, software, or other products enabling unsolicited email messages (spam);
5. Cable descramblers and black boxes which includes devices intended to obtain cable and satellite signals for free;
6. Child pornography which includes pornographic materials involving minors;
7. Copyright unlocking devices which include Mod chips or other devices designed to circumvent copyright protection;
8. Copyrighted media which includes unauthorized copies of books, music, movies, and other licensed or protected materials; Copyright infringing merchandise;
9. Copyrighted software which includes unauthorized copies of software, video games and other licensed or protected materials, including OEM or bundled software
10. Products labeled as “tester,” “not for retail sale,” or “not intended for resale”;
11. Counterfeit and unauthorized goods which includes replicas or imitations of designer goods; items without a celebrity endorsement that would normally require such an association; fake autographs, counterfeit stamps, and other potentially unauthorized goods;
12. Products that have been altered to change the product’s performance, safety specifications, or indications of use;
13. Drugs and drug paraphernalia which includes hallucinogenic substances, illegal drugs and drug accessories, including herbal drugs like salvia and magic mushrooms;
14. Drug test circumvention aids which include drug cleansing shakes, urine test additives, and related items;
15. Endangered species which includes plants, animals or other organisms (including product derivatives) in danger of extinction;
16. Government IDs or documents which includes fake IDs, passports, diplomas, and noble titles;
17. Hacking and cracking materials which includes manuals, how-to guides, information, or equipment enabling illegal access to software, servers, websites, or other protected property;
18. Illegal goods which include materials, products, or information promoting illegal goods or enabling illegal acts;
19. Miracle cures which include unsubstantiated cures, remedies or other items marketed as quick health fixes;
20. Offensive goods which include literature, products or other materials that: a) Defame or slander any person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors b) Encourage or incite violent acts c) Promote intolerance or hatred;
21. Offensive goods, crime which includes crime scene photos or items, such as personal belongings, associated with criminals;
22. Pyrotechnic devices (apart from the ones mentioned in the Restricted category), hazardous materials and radioactive materials and substances;
23. Tobacco and cigarettes which includes e-cigarettes, cigars, chewing tobacco, and related products;
24. Traffic devices which include radar detectors/jammers, license plate covers, traffic signal changers, and related products;
25. Weapons which include firearms, ammunition, knives, brass knuckles, gun parts, and other armaments;
26. Matrix sites or sites using matrix scheme approach/Ponzi/Pyramid schemes;
27. Work-at-home information;
28. Any product or service which is not in compliance with all applicable laws and regulations whether federal, state, local or international including the laws of India;
29. Merchant who deals in BPO services;
30. Merchant who deals in surgical products on B2C model;
31. Merchant who deals in immigration services (only consultancy is doable);
32. Merchant who deals in loose diamonds;
33. Merchant who deals in guaranteed employment services;
34. Religious products which are making false claims or hurting someone’s religious feelings;
35. Merchant who deals in adoption agencies;
36. Merchant who deals in pawnshop;
37. Merchant who deals in esoteric pages, psychic consultations;
38. Merchant who deals in telemarketing (Calling list, selling by phone for example travel service, overall sales);
39. Merchant who deals in credit Counselling/Credit Repair Services;
40. Merchant who deals in get rich businesses;
41. Merchant who deals in bankruptcy services;
42. Merchant who deals in websites depicting violence and extreme sexual violence;
43. Bestiality
44. Crypto currency or Bitcoin.
45. Gaming/gambling which includes lottery tickets, sports bets, memberships/ enrolment in online gambling sites, and related content.
46. Any product or service which is not in compliance with all applicable laws and regulations whether federal, state, local or international, including the laws of India.
SCHEDULE B
CONFIRMATION ON ANTI-BRIBERY AND ANTI-CORRUPTION, ANTI-MONEY LAUNDERING AND EXPORT CONTROLS (“Anti-financial Crimes Laws Confirmation”)
Statement and Purpose: The Merchant and its group companies are committed to operating its businesses conforming to the highest moral and ethical standards. The Merchant has astringent code of conduct and confirms hereby that is committed to acting professionally, fairly and with integrity in all its business transactions and relationships wherever it operates. The Merchant undertakes to comply and implement in its processes all legal requirements relevant to counter ‘bribery and corruption’, ‘money laundering’ and ‘restricted export-import transactions’ applicable in the conduct of its business, the minimum requirements adopted by the US/OFAC, UK, UN and the EU in regards to anti-bribery and anti-corruption, anti-money laundering/ combating the financing of terrorism and other applicable export control laws and regulations including but not limited to any restrictions on the export or import dealings with the ‘Sanctioned Persons’ (“Anti-Financial Crimes Laws”).
This Anti-Financial Crimes Laws Confirmation constitutes a minimum standard. The Merchant undertakes to be compliant and shall continue to abide to the relevant Anti-Financial Crimes Laws: By agreeing to the Terms, Merchant acknowledges and agrees that it:
1. will comply with all applicable laws, regulations and sanctions relating to anti-bribery, anti- corruption, anti-money laundering and export controls including but not limited to the minimum requirements of the Anti-Financial Crimes Laws.
2. is prohibited from dealing with any acts which may be deemed as money laundering under any applicable law, regulations or restrictions.
3. will prohibit the entering into agreements with any person who has been identified in the sanctions list maintained by different state authorities or organizations.
4. has implemented an internal compliance programme, to ensure compliance with and detect violations of all applicable Anti-Financial Crimes Laws.
5. in the event the Merchant does not honor these commitments, the Merchant agrees that this will be considered as a material breach of these Terms. Therefore, Tyche may immediately terminate these Terms.
(‘Sanction Persons’ refer to those persons who are identified in the sanctions list maintained by the US (OFAC), UN and EU)
