COMBINED FREECHARGE MERCHANT TERMS
Freecharge Services (as defined below) are provided Freecharge Payment Technologies Private Limited, a company, incorporated under the Companies Act, 2013 and having its registered office at Second Floor, Plot No-25, Pusa Road, New Delhi-110005 and principal office at 16th Floor, DLF Cyber Greens, Tower C, DLF Cyber City, DLF Phase 2, Gurugram- 122002 (including its affiliates, successors, and assigns) (hereinafter referred to as “Freecharge”). By accessing, downloading or using the Freecharge Services or any part thereof, you agree to comply with and be bound by the following:
These three terms and conditions are collectively referred to herein as the "Combined Freecharge Merchant Terms”.
These Combined Freecharge Merchant Terms are published in compliance with and shall be governed by Indian law, including but not limited to the Indian Contract Act, 1872; (ii) the Information Technology Act, 2000, the rules, regulations, guidelines and clarifications framed thereunder including the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011, and the provisions of Rule 3 (1) of the Information Technology (Intermediaries Guidelines) Rules, 2011; (iii) the Payment and Settlement Systems Act, 2007 and applicable rules, regulations and guidelines made thereunder including policy guidelines on issuance and operation of pre-paid payment instrument in India; and (iv) the Reserve Bank of India Act, 1934 and the applicable rules, regulations and guidelines made thereunder. These Combined Freecharge Merchant Terms are an electronic record in the form of an electronic contract formed under the Information Technology Act, 2000 and rules made thereunder and the amended provisions pertaining to electronic documents / records in various statutes as amended by the Information Technology Act, 2000. This contract does not require any physical, electronic or digital signature.
All references in these Combined Freecharge Merchant Terms relating to “Merchants” shall refer to merchants intending to avail the Freecharge Services (as defined below). For the purpose of the Combined Freecharge Merchant Terms, Freecharge and Merchant shall be individually referred to as “Party” and collectively as “Parties”.
These Combined Freecharge Merchant Terms are a legally binding document between the Merchant and Freecharge and will govern the relationship between the Merchant and Freecharge for the use of Freecharge Merchant Services (as defined below), Value Added Services (as defined below), the Merchant Offer Program (as defined below) and access or usage of domain name https://merchant.freecharge.in (“Merchant Panel”), including the related mobile site and mobile application (hereinafter collectively referred to as “Platform”). The Freecharge Merchant Services, Value Added Services and Merchant Offer Program shall collectively be referred to as “Freecharge Services”. By submitting the Merchant Application Form to Freecharge (in electronic form or by means of an electronic record or other means) or by clicking the acceptance button or accessing, using or installing any part of the service you expressly agree to and consent to being irrevocably bound by the Combined Freecharge Merchant Terms set out herein. The Merchant is requested to read and understand the same prior to enrolling as a Merchant for the purposes of these Combined Freecharge Merchant Terms. If these Combined Freecharge Merchant Terms conflict with any other document/electronic record in this behalf, the terms of this document shall prevail, until further changes/ modifications are notified by Freecharge.
Freecharge reserves the right, at our sole discretion, to change, modify, add or remove portions of these Combined Freecharge Merchants Terms at any time without any prior written notice to the Merchant. Any changes or modifications will be effective immediately upon posting of the revised terms and the Merchant waives any right the Merchant may have to receive additional notice of such changes or modifications. The Merchant’s continued use of Freecharge Services following the posting of changes will mean that the Merchant accepts and agrees to the revisions; therefore, it is the Merchant’s responsibility to frequently review these Combined Freecharge Merchant Terms and all applicable terms, policies and guidelines to understand the terms and conditions that apply to the Merchant’s use. If the Merchant does not agree to the amended/revised terms, the Merchant must stop using the Freecharge Services. Any use of the Freecharge Services in violation of these terms may result in, among other things, termination or suspension of the Merchant’s right to use the Freecharge Services.
Consent to Aadhaar based offline verification (applicable if opted by Merchant):
a) I hereby provide consent to verification of my identity using Aadhaar based offline verification and authorize use of my demographic information or any other information (“Verification Information”) collected during such offline verification for the purposes of provision of Freecharge Services.
b) I understand that the Verification Information I may provide during verification shall be used only for verifying my identity for the purpose of availing Freecharge Services by me and for no other purposes. I understand that Freecharge shall ensure security and confidentiality of my personally identifiable data provided during Aadhaar based offline verification.
c) I understand that providing Aadhaar as a means of verification of my identity is not mandatory and declare that I have voluntarily consented to use of my Aadhaar for offline verification.
Freecharge is, inter alia, engaged in the business of providing payments solutions, payment support services and technology solutions. The payment services offered by Freecharge enable customers of the Merchant (the “Customer”) to make their payments by various modes (i.e. credit card/ debit card/ netbanking/ UPI/ Freecharge Balance/Freecharge Pay later etc. (as defined below)) and through various channels (i.e. over the Internet, over telephone, through kiosks, through handheld devices, QR codes, EDC/POS machines etc.). In addition to the above, Freecharge shall also provide the Merchant payment support services including but not limited to technology, card storage, Customer login and maintenance, for processing of payments made by Customers to the Merchant for purchase of products/services through the Merchant Establishment. The Freecharge Aggregation Services, Freecharge Balance Services and Freecharge UPI Services are collectedly referred to as the “Services” or the “Freecharge Merchant Services”. The Merchant is engaged in the business of providing goods and services in the territory of India. The Merchant has requested Freecharge to provide the Services, and any other services mutually agreed in writing vide Schedule(s) that may be executed by the Parties from time to time in accordance with these Merchant Services Terms, in relation to the payments made by a Customer, purchasing products/ services from the website, outlets, shops, branches operated by the Merchant itself or through its franchisees (the “Merchant Establishments)”. The Parties have hereby undertaken and agreed, that during the Term (as defined below) of these terms, Freecharge shall provide the Freecharge Merchant Services to the Merchant, in accordance with these Merchant Services Terms and of the Schedule(s) to these Merchant Services Terms (“Merchant Services Terms”) as contained hereinafter:
1 Definitions and Interpretation
1..1 Unless the contrary intention appears, the definitions and the rules of interpretation set forth in Annexure 1 (Definitions and Interpretations) shall apply throughout these Merchant Services Terms.
2 Approval and Registration to avail Freecharge Merchant Services
2.1 Freecharge will act as an intermediary by creating a link between the Merchant Establishment and the respective Acquiring Banks and/or payment systems/options/instruments for enabling the Customers to make payments on the Merchant Establishment by using the payment mechanisms specified on the Merchant Establishment. In this regard, Freecharge has obtained all necessary licenses, registrations, permissions and authorizations in accordance with Applicable Laws. Freecharge will integrate the Freecharge Software Application with EDC Terminal installed at Merchant’s Establishment and/or on the website/mobile application of the Merchant and/or install a QR Code provided by Freecharge. "EDC Terminal" shall mean the electronic data capture machines and/or point of sales systems installed by the Merchant itself or provided by third party service providers to the Merchant. “QR Code” shall mean a machine-readable code provided by Freecharge consisting of an array of black and white squares, used for storing URLs or other information for reading by the Customer’s camera on a smartphone.
2.2 The Merchant shall disclose the exact business category/business sub-category for which the Merchant will be using the Freecharge Merchant Services and shall only avail the Freecharge Merchant Services through its designated Merchant Establishment. In order to use the Freecharge Merchant Services for any other purpose, the Merchant understands and acknowledges that it shall notify Freecharge in writing of such change and such change will be subject to approval by Freecharge.
2.3 The Merchant understands that in order to avail the Freecharge Merchant Services, the Merchant must be approved by and registered with Freecharge, the Acquiring Banks and/or Partner Bank and such bank(s) as designated by Freecharge 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 (after deducting Freecharge Checkout Fees), pursuant to RBI notifications/guidelines as amended from time to time (“Nodal Bank”). The Merchant shall provide Freecharge with all such documents as required by Freecharge to register the Merchant with Freecharge, the Acquiring Banks and Nodal Bank. The Merchant further understands and acknowledges that Freecharge, the Acquiring Banks and the Nodal Bank have the right to withdraw their approval/consent at any time prior to or after commencement of the Freecharge Merchant Services.
3.1 The Merchant hereby undertakes and agrees that in consideration of the Freecharge Services, the Merchant shall pay to Freecharge, the Freecharge Fees as set forth in Annexure 3.
3.2 It is hereby agreed by the Parties that the Freecharge Fees payable by the Merchant to Freecharge is exclusive of all applicable taxes under Applicable Laws including Goods and Service tax (“GST”) in relation to the Freecharge Services. The Merchant shall ensure that it provides the correct GST number (if applicable) in order to claim any credit for the same. Merchant shall be solely responsible to provide its valid GST Number to Freecharge for claiming the GST input tax credit. In the event of non-furnishing or furnishing of wrong GST Number by the Merchant, Freecharge shall not be liable for any loss of GST Input Tax credit to the Merchant. In the event the Merchant is not registered under GST law the Merchant shall furnish an undertaking to Freecharge that he is not registered under the GST law duly signed by its authorised signatory. Further, if the Merchant subsequently provides the GST Number, Freecharge shall not be liable to revise the invoice for past period.
3.3 Pursuant to these Terms each party, with respect to the services rendered in its individual capacity, would be solely responsible for the compliance of all applicable laws with respect to payment of tax, duties, levies, charges, cess, etc. including but not limited to service tax, VAT, CST, luxury tax, entertainment tax, GST, excise, Customs, etc.
3.4 Parties hereby agree that the Freecharge Fees payable by the Merchant is subject to deduction of tax at source under the Applicable Laws and the Merchant shall issue appropriate tax deduction certificates, as may be required under Applicable Law to Freecharge for such deduction of tax at source. Freecharge shall reimburse the TDS deposited by Merchant on quarterly basis on submission of TDS certificate (Form 16A) by the Merchant to Freecharge.
3.5 It is hereby agreed and acknowledged by the Parties that the Freecharge Checkout Fees charged by Freecharge in respect of a Successful Transaction that has been confirmed by Freecharge shall not be returned or repaid by Freecharge to the Merchant or any other person irrespective of the Successful Transaction being rejected, Chargeback, refunded or disputed.
3.6 The existence of any payment related dispute shall not be acknowledged by Freecharge, unless information along with relevant details of such dispute are communicated to Freecharge within 7 (seven) days of the date of the Successful Transaction.
3.7 Reserve: The Merchant agrees to provide Freecharge with such Reserve of such amounts as may be requested by Freecharge from time to time to secure the performance of the Merchant’s obligations under these Merchant Services Terms for reasons including:
(a) High Chargeback risk,
(b) Credit risk,
(c) Refund overdraft risk,
(d) Non-delivery issues,
(e) Selling of banned items,
(f) Non-payment of maintenance fees or other amount payable to Freecharge, or
(g) Any other indications of performance problems related to the Merchant’s use of the Services.
If the Merchant fails to provide Freecharge with Reserve within fifteen (15) days of receipt of notice for the same, Freecharge reserves the right to suspend and/or terminate the Settlement Amount payable to the Merchant or the Freecharge Services without further notice. Freecharge may use this Reserve to set-off including but not limited to losses, costs, damages, claims, proceedings, penalties, Chargebacks, refunds suffered or incurred by the Customers, Freecharge and/or Acquiring Banks. This shall also include deduction of any kind of outstanding fees payable by the Merchant to Freecharge. If Settlement Amount and/or the Reserve (if any) is not sufficient to cover the Merchant’s outstanding amount, then the Merchant shall pay Freecharge and/or the Acquiring Banks the remaining amount due immediately upon request. Freecharge shall be entitled to charge monthly interest on such outstanding amount at the end of five (5) Business Days from the date of request until the date of payment in full, at the rate of 1.5% per month. Provided that the above right of Freecharge 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 Freecharge to recover all such losses, costs and damages etc. from the Merchant by any other means, which may be available to Freecharge under law.
3.8 Freecharge shall further be entitled to deduct Freecharge Fees, penalties, fines or any other costs from the Settlement Amount.
4 Covenants of the Merchant
4.1 In consideration of Freecharge providing the Freecharge Merchant Services, the Merchant hereby declares, assures, undertakes and covenants as under:
4.1.1 the Merchant shall duly fulfil all Successful Transactions in accordance with the instructions of the Customers and as mutually decided between the Merchant and its Customers.
4.1.2 the Merchant shall comply with all Applicable Laws in respect of the subject matter of these Merchant Services Terms, including, with respect to the manner in which information of the Customers is collected by the Parties.
4.1.3 The Merchant shall retain all payments data received from Freecharge within the territory of India, as required under Applicable Laws.
4.1.4 the Merchant shall ensure to keep confidential, all information submitted by the Customers to the Merchant in relation to the Services.
4.1.5 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 and/or services offered to the Customers for sale, which are displayed and offered by the Merchant.
4.1.6 the Merchant shall take all precautions as may be feasible or as may be directed by Freecharge from time to time and as prescribed under Applicable Laws, to ensure that there is no breach of security and that the integrity of the link between the Merchant Establishment and Freecharge’s site and/or the software application of Freecharge (“Freecharge Software Application”) is maintained at all times during the Term of these Merchant Services Terms.
4.1.7 the Merchant shall, at all times, provide a reasonable level of service support to the Customers. Such support shall include but not be limited to a notice to Customers in relation to the means of contacting the Merchant in the event the Customer has questions regarding the nature or quality of the products and/or services offered for sale by the Merchant, the payment options at the Merchant Establishment and the procedures for resolving disputes in relation to the products and/or services. Freecharge shall only be responsible to handle Customer’s queries/concerns relating to the Services provided under these Merchant Services Terms.
4.1.8 the Merchant hereby agrees and acknowledges that all risks associated with the sale and delivery of the products and/or services in relation to a Successful Transaction shall be solely that of the Merchant and Freecharge shall have no liability thereof, in any manner whatsoever. Any and all disputes regarding the quality, merchantability, non-delivery and delay in delivery of the products and/or services offered for sale at the Merchant Establishment shall be resolved directly between the Merchant and the Customer without making Freecharge a party to such disputes, in any manner whatsoever.
4.1.9 the Merchant hereby agrees and acknowledges that Freecharge and its personnel or auditors (internal or external) or legal advisors and regulators (including but not limited to the RBI or persons authorised by RBI) shall have the right to physically inspect and/or audit all records of the Merchant that relate to the arrangement captured in the Merchant Services Terms and to ensure compliance thereof by the Merchant. The Merchant shall permit entry of representatives/auditors into such premises where the records are maintained upon receipt of a reasonable prior notice from Freecharge.
4.1.10 in the event of any security breach on the Freecharge Software Application, the Merchant shall inform Freecharge of the same within 24 (twenty four) hours of the security breach being detected by the Merchant. Freecharge may suspend the Services till the time such security breach is resolved to the satisfaction of Freecharge.
4.1.11 the Merchant shall maintain the Successful Transaction data for such period as prescribed by RBI and or any other statutory body.
4.1.12 the Merchant shall be responsible for the payment of all taxes, levies etc. due upon the sale of the product or services through the Merchant Establishment.
4.2 From time to time, the Parties may mutually agree that the Merchant shall make available discount/offer(s) on its product/service(s) for Customers making payment through the Freecharge Merchant Services. The details of such discount/offer(s) shall be agreed between the Parties in writing.
5. Term and Termination
5.1 These Merchant Services Terms shall come into force on the Effective Date and shall remain valid and enforceable unless terminated by either of the Parties in accordance with this Clause 5 (“Term”).
5.2 These Merchant Services Terms can be terminated by either Party: (i) by giving a notice period of 1 (one) month in writing to the other Party; or (ii) in the manner set forth in Clause 9 (Force Majeure) below.
5.3 The Parties shall have the right to terminate these Merchant Services Terms by written notice to the other Party if such Party breaches any representation, warranty, covenant, or any term of these Merchant Services Terms or fails to comply with any material rules or procedures required by these Merchant Services Terms. Such termination shall be effective from the date mentioned in such written notice.
5.4 These Merchant Services Terms shall come to an end forthwith if the RBI or any other regulatory agency promulgates any rule, regulation or order which in effect, or application prohibits or substantially impedes the provision of Services to the Customer.
5.5 Upon the termination or expiration of these Merchant Services Terms for any reason, the Merchant shall immediately discontinue the use of the Freecharge Merchant Services.
5.6 Upon the termination or expiration of these Merchant Services Terms, all the Merchant’s rights under these Merchant Services Terms shall cease and no payment shall be due to the Merchant for loss of goodwill, anticipated profits and any other claims or losses in respect of such termination. To the extent permissible under Applicable Law, the Merchant hereby waives any claim to receive any compensation as a consequence of such termination of these Merchant Services Terms. Provided that the termination of these Merchant Services Terms shall not affect the rights and obligations of the Parties accrued prior to such termination.
5.7 Upon the termination or expiration of these Merchant Services Terms for any reason, both the Parties shall discontinue the use of all Intellectual Property in or upon any material that identifies or relates to the Parties’ business, and shall forthwith return all materials containing any Intellectual Property within timelines specified by both the Parties, cease representing themselves in any manner with the other Party; and, return to each other or destroy those documents, records, or other materials (including, without limitation, all copies either photocopy, computer disks media or tapes or the like thereof) which are provided to/ or replicated by either Party or which may contain either Parties’ Confidential Information.
6. Use of Intellectual Property Rights and Protection of Freecharge Software Application
6.1 The Merchant acknowledges that the ‘Freecharge’ trademarks, service marks, logos, and related works of authorship are owned by the Affiliates of Freecharge, and that Freecharge has been granted a license, including a right to sub-license, the ‘Freecharge’ trademarks, service marks and logos from such Affiliates. Freecharge hereby grants to the Merchant, a non-exclusive, royalty-free, limited sub-license to use, display and reproduce the trademarks, service marks, logos and related works of authorship of Freecharge solely in connection with the Services, in accordance with these Merchant Services Terms. The Merchant acknowledges and agrees that this limited sub-license granted to it by Freecharge is personal in nature and that it shall not further sub-license/grant any rights derived from Freecharge to any other party without obtaining a prior written consent from Freecharge. The Merchant further acknowledges and agrees that it shall not register itself as a ‘registered user’ or a licensee of Freecharge’s Intellectual Property at any intellectual property office anywhere in the world, without obtaining a prior written consent from Freecharge. The Merchant shall prominently display, on the Merchant Establishment and in other online marketing materials if so requested by Freecharge, from time to time, a statement/logo/image and/or any other content provided and approved by Freecharge from time to time in relation to the Services. The Merchant may, only for the purpose of performing its obligations under these Merchant Services Terms, utilize Freecharge’s site, the Freecharge Software Application and any other Intellectual Property developed by Freecharge or its Affiliates, belonging either to Freecharge, its Affiliates or other software vendors, all of which are and shall, at all times, remain the exclusive property of Freecharge or its Affiliates, as the case may be.
6.2 Nothing contained herein shall authorise the Merchant to use or in any manner exploit the Intellectual Property Rights of Freecharge or its Affiliates without obtaining the prior written consent of Freecharge and the usage of the Intellectual Property of Freecharge and its Affiliates shall, at all times, be in compliance with such approval and policies as may be notified from time to time by Freecharge.
6.3 The Merchant hereby grants to Freecharge, a non-exclusive, royalty-free, limited license to use, display and reproduce the trademarks, service marks, logos, and related works of authorship of the Merchant solely in connection with the Services, in accordance with these Merchant Services Terms. Freecharge may, only for the purpose of performing its obligations under these Merchant Services Terms, utilize the Merchant’s website, and any other Intellectual Property developed by the Merchant, belonging either to the Merchant or other software vendors, all of which are and shall, at all times, remain the exclusive property of the Merchant.
7. Indemnity and Limitation of Liability
7.1 The Merchant hereby undertakes and agrees to indemnify, defend and hold harmless, Freecharge, including its officers, directors, employees, and Affiliates against any and/or all Losses arising out of or related to:
7.1.1 any actual or alleged breach or non-performance by the Merchant of any of its undertakings, representations, warranties, covenants, declarations or obligations pertaining to the Merchant’s business, website and operations under the scope of these Merchant Services Terms, in any manner whatsoever;
7.1.2 any gross negligence, fraud or wilful misconduct on the part of the Merchant;
7.1.3 any claim, demand, suit, action or proceeding brought by the Customer or any other person against Freecharge that involves, relates to or concerns Freecharge Merchant Services or any products and/or services offered by the Merchant through the Freecharge Merchant Services, any act, deed, omission or non-performance of the Merchant, or a violation or other breach of any of the representations, warranties or covenants set forth in these Merchant Services Terms;
7.1.4 any actual or alleged non-compliance with Applicable Laws.
7.2 The indemnities provided in this Clause 8 shall survive the termination of these Merchant Services Terms.
7.3 The aggregate liability of Freecharge in contract, tort, negligence or otherwise arising out of or in connection with these Merchant Services Terms shall be limited to the total amount of Freecharge Checkout Fees received by Freecharge from the Merchant in the previous three months or the Freecharge Checkout Fees received to date, whichever is lower.
8. Confidentiality
8.1 The Merchant and Freecharge agree to and to cause their respective Affiliates, directors, officers, representatives, employees and agents to not disclose to others any Confidential Information. The Merchant and Freecharge agree that they shall not use, nor reproduce for use, in any way, any Confidential Information of the other except in relation to the performance of its obligations under these Merchant Services Terms and agree to protect the Confidential Information of the other Party with the same standard of care and procedures as used by them to protect their own Confidential Information.
8.2 The aforesaid confidentiality obligations shall not be applicable to any information which:
8.2.1 was at the time received or which thereafter becomes, through no act or failure on the part of the Merchant or Freecharge, generally known or available to the public;
8.2.2 was known to the Merchant or Freecharge at the time of receiving such information as evidenced by written documentation then rightfully in the possession of either the Merchant or Freecharge, as the case maybe;
8.2.3 is rightfully furnished to the Merchant or Freecharge by a third party without restriction by that third party on disclosure; or
8.2.4 needs to be disclosed pursuant to the requirements of law, any Governmental Authority, any stock exchange regulation or requirement of any court or competent authority, provided however, that the Merchant or Freecharge shall have been given a reasonable opportunity to resist disclosure and/or to obtain a suitable protective order.
8.3 The covenants of confidentiality set forth herein shall survive and continue for 3 (three) years after termination of the Merchant Services Terms.
9. Force Majeure
9.1 Freecharge and the Merchant shall not be liable for their failure to perform their respective obligations under these Merchant Services Terms, as a result of any Force Majeure Event. If any Force Majeure Event continues to exist and prevents performance by the affected Party of its obligations for a period of more than 60 (sixty) days, the other Party may, upon delivery to the affected Party of prior written notice, forthwith terminate the Merchant Services Terms.
10. Disclaimer
10.1 Freecharge shall provide the Freecharge Merchant Services in accordance with the industry standards. The Merchant acknowledges that the Freecharge Merchant Services may not be uninterrupted or error free or virus free and Freecharge disclaims all warranties, express or implied, written or oral, including but not limited to warranties of merchantability and fitness of the Freecharge Merchant Services for a particular purpose. Freecharge shall not be liable to the Merchant for any loss or damage howsoever caused or arising, directly or indirectly, including without limitation, as a result of loss of data, interruption or stoppage of the Customer's access to and/or use of the Freecharge Merchant Services, interruption or stoppage of Freecharge's website, non-availability of connectivity between the Merchant’s Establishment and Freecharge's website and/or Freecharge Software Application, etc.
10.2 Freecharge's sole obligation and the Merchant's sole and exclusive remedy in the event of interruption in any and/or all Services shall be Freecharge’s use of all best endeavours to restore the said Services as soon as reasonably possible.
11. Representations and Warranties
11.1 Each Party represents warrants and undertakes to the other Party that:
11.1.1 it is duly organized, validly existing and functioning under the laws of the jurisdiction of its establishment;
11.1.2 it has the power to execute, deliver and perform the Merchant Services Terms and that the Merchant Services Terms have been duly and validly authorized, executed and delivered by it;
11.1.3 its obligations hereunder constitute legal, valid, binding and enforceable obligations;
11.1.4 the execution and delivery of these Merchant Services Terms and the consummation of the transactions contemplated herein do not breach its constitutional documents or any law, provisions of any contract or order of court applicable to it;
11.1.5 there are no legal, quasi-legal, administrative, arbitration, mediation, conciliation or other proceedings, claims, actions, government investigations, orders, judgments or decrees of any nature made, existing, pending or threatened or anticipated, which may prejudicially affect the due performance or enforceability of these Merchant Services Terms or any obligation, act, omission or transactions contemplated hereunder; and
11.1.6 it shall procure and keep all licenses, registrations, authorizations and clearances under Applicable Laws valid with respect to its products and/or services and businesses carried on by it from time to time;
11.2 Further the Merchant represents and warrants that:
11.2.1 it shall, at all times, comply with all Applicable Laws in relation to sale of its products and/or services; and
11.2.2 The Merchant shall not display any material on the Merchant Establishment if the act or manner of such display is contrary to any Applicable Law.
12. Data System, Security and Compliances
12.1 Collection of Data: The Merchant shall use, collect, store, process and transfer any information of a Customer or any information relating to any transaction conducted through the Freecharge Merchant Services only in a manner permitted under and in compliance with Applicable Laws.
12.2 Security: The Parties shall ensure that appropriate security measures, in relation to information of the Customers and pertaining to payment transactions contemplated under these Merchant Services Terms, are undertaken in accordance with Applicable Laws.
13. Treatment of Tokens Issued
13.1 The Merchant may store token that Freecharge provides to the Merchant when a Customer authenticates the Merchant’s application to their account (“Token”). The Merchant will be responsible for the safe keep and prevention of any misuse of all Tokens provided to the Merchant by Freecharge and shall ensure that all such data security measures, including appropriate encryption measures, etc., are undertaken to prevent any breach and, or, hacking, etc., of information contained in such Tokens.
13.2 In the event of misuse of Tokens, or in any event of any mismatch of Tokens with Customers or mismatch between the price shown to the Customer and the price charged to the Customer through the Token, the Merchant shall have full liability for the Successful Transactions and shall indemnify Freecharge against such liability towards the Customer or any other entity claiming damages.
14. Governing Law and Dispute Resolution
14.1 If any dispute arises between the Parties out of or in connection with these Merchant Services Terms, including the validity thereof, the Parties shall firstly endeavour to settle such dispute amicably. The attempt for an amicable settlement shall be deemed as failed as soon as one of the Parties hereto, post 15 (fifteen) calendar days of such attempts, gives a notice to this effect, to the other Party in writing.
14.2 Upon such failure, the dispute shall be referred to a sole arbitrator appointed by the mutual consent of both the Parties. The arbitration proceedings shall be governed by the Arbitration and Conciliation Act, 1996. The place and seat of arbitration shall be New Delhi and the language of arbitration shall be English.
14.3 These Merchant Services Terms shall be governed and interpreted in accordance with Indian laws and the Parties submit to the jurisdiction of the courts at New Delhi.
15. Miscellaneous
15.1 Waiver: No failure or delay by either Party in exercising any right hereunder shall operate as a waiver thereof nor any single or partial exercise of any other right. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
15.2 Notice: Unless otherwise provided herein, all notices or other communications under or in connection with these Merchant Services Terms shall be given in writing and may be sent by personal delivery or post or courier or facsimile or electronic email to the addresses as mentioned by the Merchant in the Merchant Application Form. Any such notice or other communication will be deemed to be effective if sent by personal delivery, when delivered; if sent by post, 2 (two) days after being deposited in the post; if sent by courier, 1 (one) day after being deposited with the courier agency; and if sent by facsimile or electronic mail, when sent (on receipt of a confirmation). Parties may change the address mentioned in the Merchant Application Form by giving a prior written notice to Freecharge.
15.3 Assignment: The Merchant shall not assign, in whole or in part, the benefits or obligations of these Merchant Services Terms to any other person without obtaining the prior written consent of Freecharge. However, Freecharge may assign any of its obligations or rights hereunder to any of its Affiliates or any third party subject to Freecharge providing a prior written intimation to the Merchant.
15.4 Relationship: The relationship of the Parties is that of independent contractors. These Merchant Services Terms are being entered into on a principal to principal basis.
15.5 Non-exclusivity: Both the Parties are at liberty to enter into arrangements with other parties for provision of Services similar to those offered in these Merchant Services Terms.
15.6 Severability: If any part or any provision of these Merchant Services Terms is or becomes illegal, invalid or unenforceable, that part or provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the validity or enforceability of the remaining parts of said provision or the remaining provisions of these Merchant Services Terms.
15.7 Captions in these Terms: The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.
SCHEDULE A: ADDITIONAL TERMS AND CONDITIONS FOR FREECHARGE AGGREGATION SERVICES
1.1 Freecharge and the Merchant have entered into these Merchant Services Terms for the provision of the Freecharge Aggregation Services. As a part of the Freecharge Aggregation Services, Freecharge shall provide a payment facility which includes but is not limited to credit card, debit cards, net banking, Freecharge Paylater and any other additional payment instrument or options as made available by Freecharge from time to time, for processing of payments made by the Customers to the Merchant for purchase of product/services through the Merchant Establishment. In addition to the above, Freecharge shall also provide the Merchant payment support services including but not limited to technology, card storage, Customer login and maintenance, for processing of payments made by Customers to the Merchant for purchase of products/services through the Merchant Establishment.
1.2 For providing the Freecharge Aggregation Services, Freecharge has entered into agreements with various banks, payment system issuers, payment service providers and financial institutions (“Acquiring Banks”) to offer payment facilities through the Internet, including net banking facilities and providing authorization (from third party clearinghouse networks) and settlement facilities in respect of payment instructions initiated by the Customers on the Merchant Establishment.
1.3 The Freecharge Checkout Fees payable by the Merchant to Freecharge shall be deducted from the amount payable to the Merchant in respect of each completed Successful Transaction. Freecharge reserves the right to revise the Freecharge Checkout Fees payable in the event of any revision in the rates charged by the Acquiring Bank (as defined below) or Partner Bank (as defined below) or card associations or guidelines issued by the Reserve Bank of India (“RBI”) and/or other statutory/regulatory bodies, from time to time.
2. Authentication and Authorization by Acquiring Bank
2.1 The Acquiring Bank will authenticate, authorize, and process the payment instructions given by the Customers on the Merchant Establishment in respect of a Successful Transaction upon fulfilment of valid criteria as set forth by the Acquiring Banks from time to time and accordingly transfer such approved Successful Transaction amount from the Customer bank account to the Nodal Account.
2.2 The Merchant understands that Freecharge and/or the Acquiring Banks may reject authorization of a 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 debit/credit cards, use of blacklisted/banned cards or in accordance with the RBI, Acquiring Banks, issuing bank and/or card association rules, guidelines, regulations, etc. and any other laws, rules, regulations, guidelines in force in India, etc.
2.3 The Merchant acknowledges that as a risk management tool, Freecharge and/or the Acquiring Banks shall have the right to limit or restrict Successful Transaction size, amount and/or monthly volume at any time or block any card number, account numbers, group of cards or Successful Transactions.
3. Chargeback, Refund and Reserve
3.1 Freecharge will have the right to charge to the Merchant by means of set off from the Settlement Amount, the full amount of any Chargeback, fines or penalties. The Merchant will fully co-operate with Freecharge in complying with the Card Association rules and regulations regarding Chargeback. If the Merchant desires to dispute any Chargeback with the Issuer or its Association, it will follow the procedures set out in the Issuer’s or Card Association’s rules or regulations.
3.2 If in respect of any Card transaction, Freecharge is intimated whether by any of the Card Associations or by the Card Issuer of the Customer requiring a refund of the Transaction Amount (“Chargeback Refund Intimation”), Freecharge shall notify the Merchant of the same. On such notification, the Merchant shall promptly provide such details, data or information regarding the relevant Card transaction as Freecharge, Acquiring Bank and/or Card Association may require.
3.3 On receiving the Chargeback Refund Intimation and after obtaining such information as it considers necessary in this regard, the Issuer Bank may, as per the applicable Card Association guidelines in that regard, determine that a Chargeback Event has occurred or otherwise determines that a refund should be ordered, direct Freecharge to require the Merchant to refund the amounts received by the Merchant in respect of such Card transaction (“Chargeback Refund Direction”). The Merchant hereby acknowledges and agrees that on the Chargeback Refund Direction being issued by the Issuer Bank, Merchant shall refund the amounts received by the Merchant in respect of such Card transaction (“Refund Monies”) by: (i) remitting the monies to Freecharge; or (ii) allowing a set-off from the subsequent Settlements to be made to the Merchant.
3.4 Chargeback on Freecharge for any reason whatsoever shall be the financial responsibility of the Merchant subject to completion of process of resolution of Chargeback dispute mentioned in terms and conditions of all rules and regulations of Card Association and the procedure in the below sub clauses of this clause.
3.5 If the Card Association companies or an Acquiring Bank notifies Freecharge of excessive Chargeback on a Merchant, then Freecharge will cease processing Successful Transactions through the Merchant, until the issue is resolved to the satisfaction of Card Association companies or Acquiring Bank. The Merchant will continue to be liable for any established Chargeback.
3.6 For the purpose of these Merchant Services Terms, the eligibility of a Customer to receive a refund shall be determined in accordance with the terms and conditions specified on the Merchant’s Establishment and agreed between the Merchant and Customer or if the charge/debit (“Refund Event”):
(a) from a Customer, is a suspect charge / debit or is thought to be irregular or fraudulent in nature; provided that the products / services have not been dispatched by the Merchant to the Customer;
(b) from a Customer is in excess of the price of the product and/or services specified on the Merchant’s website and/or the price agreed between the Merchant and the Customer in relation to any customized services rendered by the Merchant;
(c) is for a product and/or service that is not delivered to the Customer within the delivery timelines specified on the Merchant Establishment;
(d) arises from any hacking, breach of security or encryption attributable to the Merchant;
(e) from a Customer in relation to any Successful Transaction that is suspected to be or is unlawful or unenforceable in accordance with Applicable Laws;
(f) from a Customer is for an incomplete Successful Transaction or any product/service sold is returned by a Customer or the Successful Transaction or a part thereof is cancelled by a Customer in accordance with the terms of the Merchant Establishment;
(g) from a Customer is for any products and/or services provided to the Customer which are not to the satisfaction of the Customer and the Customer is liable to seek a refund in accordance with the terms of the Merchant’s website;
(h) is from a Successful Transaction where a Customer disputes the nature, quality or quantity of the products and/or services delivered by the Merchant;
(i) is from a Successful Transaction where a Customer disputes or denies the transaction or the sale or delivery of products and/or provision of services covered by the transaction with reason;
(j) in relation to a single transaction is made more than once from the Customer’s account;
(k) is erroneously charged/debited from the Customer;
(l) is from a transaction where the authorization of Successful Transaction was declined for any reason by the Customer and the same was processed;
(m) from a Customer is not processed as per Applicable Laws; or
(n) is from a Successful Transaction where information provided electronically to Freecharge in relation to payments made by a Customer through the Merchant Establishment is not in accordance with Applicable Laws or these Merchant Services Terms; or
(o) is for such other refund event as maybe applicable to the Customer.
3.7 The Merchant agrees to provide Freecharge with such Reserve of such amounts as may be requested by Freecharge from time to time to secure the performance of the Merchant’s obligations under these Merchant Services Terms for reasons including:
a) High Chargeback risk,
b) Credit risk,
c) Refund overdraft risk,
d) Non-delivery issues,
e) Selling of banned items,
f) Non-payment of maintenance fees or other amount payable to Freecharge, or
g) Any other indications of performance problems related to the Merchant’s use of the Services.
If the Merchant fails to provide Freecharge with Reserve within fifteen (15) days of receipt of notice for the same, Freecharge reserves the right to suspend and/or terminate the Settlement Amount payable to the Merchant or the Freecharge Merchant Services without further notice. Freecharge may use this Reserve to set-off including but not limited to losses, costs, damages, claims, proceedings, penalties, Chargebacks, refunds suffered or incurred by the Customers, Freecharge and/or Acquiring Banks. This shall also include deduction of any kind of outstanding fees payable by the Merchant to Freecharge.
If Settlement Amount and/or the Reserve (if any) is not sufficient to cover the Merchant’s Outstanding Amount, then the Merchant shall pay Freecharge and/or the Acquiring Banks the remaining amount due immediately upon request. Freecharge shall be entitled to charge monthly interest on such Outstanding Amount at the end of five (5) Business Days from the date of request until the date of payment in full, at the rate of 1.5% per month. Provided that the above right of Freecharge 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 Freecharge to recover all such losses, costs and damages etc. from the Merchant by any other means, which may be available to Freecharge under law.
4. Payment and Settlement
4.1 The Merchant hereby directs and authorizes Freecharge to receive, hold, disburse and settle the Customer Charge in accordance with and subject to the provisions of these Merchant Services Terms. The Merchant shall, at all times, maintain Successful Transaction records, all information and assistance such as payment transaction invoices and other electronic records that may be reasonably required by Freecharge and other competent authorities relating to any Successful Transaction for period prescribed by Applicable Law from the date of the Successful Transaction. The Merchant shall maintain all necessary records in relation to the delivery of the products/services and shall provide Freecharge proof of such delivery, as and when requested by Freecharge. For the purposes of these Merchant Services Terms, the term “Business Day” shall mean a day, not being a Saturday, Sunday or a public holiday, on which banks are open for the transacting of normal banking business in Delhi.
4.2 Freecharge shall endeavour to instruct the Nodal Bank to transmit Settlement Amount from the Nodal Account to the Merchant’s bank account within the time period prescribed by RBI commencing from date of completion of Successful Transaction, subject to the delivery of the products/services to the Customer.
4.3 The Merchant further acknowledges that transmission of the Settlement Amount to the Merchant Bank Account shall be subject to reconciliation of the Customer Charge by the Acquiring Banks, Freecharge and the Nodal Bank after actual receipt of Customer Charge in the Nodal Account.
4.4 The Merchant agrees that all payments with respect to Refund Events and Chargebacks shall be the sole responsibility of the Merchant and Freecharge shall not be liable for any claims, disputes, penalties which may arise in connection with such Refund Events or Chargebacks to the Merchant or the Customer. The Merchant agrees to indemnify Freecharge in respect of any and all claims, disputes, penalties, costs, losses and expenses arising directly or indirectly in relation to Refund Events or Chargebacks for all Successful Transactions initiated and instructed through the Merchant Establishment.
4.5 Notwithstanding anything contained anywhere in these Merchant Services Terms, the Merchant agrees that Freecharge, Acquiring Bank and Nodal Bank reserve the right to reject payments with respect to any Customer Charge for reasons including but not limited to unlawful, unenforceable, doubtful or erroneous transaction, Chargeback, refund, Refund Events, 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/service, if the Successful Transaction was not made in accordance with the requirements of Freecharge and/or the Acquiring Banks and/or Card Association.
4.6 In the event of rejection of payment with respect to Customer Charge, Chargeback, refunds arising from a Refund Event or other outstanding amounts due to Freecharge and/or the Customer by the Merchant, Freecharge reserves 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. Freecharge shall have the right to deduct the payment amount due from future Settlement Amounts payable to the Merchant with respect to subsequent Successful Transactions.
4.7 All Settlement Amount due to the Merchant may be suspended or delayed till such time as Freecharge, the Acquiring Banks and/or Nodal 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) Freecharge and/or the Acquiring Banks have reasons to believe that a fraud has been committed against the Customers, Freecharge, 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/services to Customers; or (e) for any other reasonable reasons.
5. Obligations of the Merchant
5.1 The Merchant shall dispatch/render the products/services to the Customer only upon receipt of Successful Transaction confirmation from Freecharge to the Merchant.
5.2 The Merchant shall deliver the Product within the delivery due dates specified at the time of making the Successful Transaction on the Merchant Establishment. 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.
5.3 The Merchant understands that all refunds must be routed through the same Acquiring Bank payment gateway through which the Successful 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 Successful Transaction refunded. The Merchant shall ensure that Freecharge at all times have sufficient funds of the Merchant to process refunds initiated. Freecharge shall not be liable to process any refund initiated in the event of insufficient funds.
5.4 The Merchant shall be solely liable for quality and efficiency and merchantability of the products/services and Freecharge shall have no liability whatsoever, in this regard.
5.5 The Merchant also acknowledges that the arrangement between one or more Acquiring Banks and Freecharge may terminate at any time and services by such Acquiring Banks may be withdrawn. Accordingly, upon termination of the agreement between Freecharge and the Acquiring Banks, Freecharge shall not be liable to render the Freecharge Aggregation Services without any liability whatsoever.
5.6 The Merchant agrees that Freecharge reserves a right to suspend the Services provided under these Merchant Services Terms in event the Merchant fails to observe its covenants.
5.7 The Merchant shall not carry out any activity, which is banned or illegal or immoral and will not sell in the Merchant Establishment, products and services as is listed and set out in Annexure 2 hereto or as may be declared by Freecharge during the tenure of these Merchant Services Terms, failing which without prejudice to other rights and remedies available to it, Freecharge may suspend or terminate these Merchant Services Terms in whole or in part.
SCHEDULE B: ADDITIONAL TERMS AND CONDITIONS FOR FREECHARGE BALANCE SERVICES ON MERCHANT ESTABLISHMENTS
SCHEDULE C: ADDITIONAL TERMS FOR FREECHARGE UPI SERVICES ON THE MERCHANT ESTABLISHMENTS
1.1 The Merchant will be able to avail this facility at their Merchant Establishment only in respect of its Customers having an operative Account with any bank in India authorized by RBI to provide Immediate Payment Service (“IMPS”), Unified Payment Interface (“UPI”), including the fund transfer services. “Account” shall mean an operative savings bank account maintained by the Customer with any bank in India.
1.2 The Merchant agrees that, Freecharge will be providing the said facility in collaboration with the Partner Bank viz; the UPI Payment Platform, as the connectivity to the UPI System is extended to the Partner Bank by National Payments Commission of India (“NPCI”) and all secure credentials which will be provided by the Customer, that are required to process any Successful Transaction will be captured and encrypted as per the construct and requirements of the UPI System by NPCI at their libraries. Therefore, Freecharge shall not be responsible in any manner whatsoever, for any such Successful Transactions which the Merchant wants to allow its Customers to process through UPI Payment Platform, because the secure mechanism or technology under the UPI System is extended by NPCI to Freecharge through the Partner Bank. “Partner Bank” means and refers to Axis Bank Limited, a banking company incorporated under the provision of the Companies Act 1956, having its registered office at Trishul, 3rd Floor, Opposite Samartheswar Temple, Near Law Garden, Ellisbridge, Ahmedabad-380006 for the purposes of these Merchant Services Terms.
Customer Information: The Merchant agrees that, the Customers shall be entering their sensitive information including Account details, OTP/MPIN and any personal information at the Merchant Establishment for authorizing any Successful Transaction initiated by them over the UPI Payment Platform. Therefore, the Merchant shall not sell, purchase, provide or exchange a Customer's name or Account details or other personal information in any form obtained for the purpose of processing the payment request initiated by him/her through UPI Payment Platform to any third party other than the bank, the Authorizing Bank, or pursuant to Applicable Laws, any Government /Statutory/Regulatory or any other competent body’s request and the Merchant shall be solely liable for any and all losses or liabilities arising on account of violation of Applicable Law in this regard.
2. Undertakings of the Merchant
2.1 Not to use the Freecharge UPI Services in any manner, or in furtherance of any activity, which constitutes a violation of any Applicable Law or regulation or which may result in fraud on any person or which may cause the Freecharge/Partner Bank to be subject to investigation, prosecution or legal action.
2.2 To use information regarding a Customer (including name, address, e-mail address, telephone numbers, and data regarding bank accounts or financial instruments) only for the purpose of completing the Successful Transactions for which it was furnished, and not to sell or otherwise furnish such information to others, unless the Merchant has an independent source of such information or obtains the express consent of such Customer for the same.
2.3 To use the Freecharge UPI Services in accordance with the terms on which the Freecharge UPI Services has been provided to the Merchant and not to attempt to modify, translate, disassemble, decompile or reverse engineer the Freecharge UPI Services, or use it for any purpose(s) other than for the utilization of the Freecharge UPI Services.
2.4 Freecharge shall not liable for any deficient or bad services in any manner whatsoever and for any loss, damages, expenses, litigation, etc. whatsoever that the Merchant may suffer due to any of the reasons as mentioned herein below. The risk in this regard is entirely and solely on the Merchant:
(a) For any direct, indirect, remote or consequential damages occurred to the Merchant while availing this Service, arising out of any error in the facility and which are beyond the control of Freecharge;
(b) When Freecharge acted in good faith;
(c) In respect of the UPI System, as the connectivity to UPI System is extended to Freecharge through Partner Bank only and any/all secure credentials that are required to process the Successful Transaction shall be provided by the Customer which will be captured and encrypted as per the construct and requirement of UPI only, by NPCI. Therefore, the secure mechanism or interface will be extended by NPCI through UPI System to Freecharge through Partner Bank including but not limited to secured credentials or sensitive information such as Customer’s MPIN, Account details, debit card Number, expiry date, OTP, etc in encrypted manner;
(d) The Service is not available due to Force Majeure events, including but not limited to not being in the required geographical range or any other reason including natural calamities, legal restraints, any technical lapses in the telecommunication network or any other reasons beyond the actual control of Freecharge or the Partner Bank;
(e) Also, Freecharge is herein absolved of liability of any nature whatsoever, arising due to a loss; direct or indirect incurred by the Merchant or any other person due to any lapse in the facility owing to the above-mentioned reasons.
3. Successful Transaction Handling
3.1 Deliver to the Customer, a bill, mentioning charges covered in the payment received from the Customer through the Freecharge UPI Services.
3.2 Freecharge or Partner Bank reserves the right to impose limits on the number of Successful Transactions and value of Successful Transactions undertaken using a particular Account and the value of a single Successful Transaction during any time period and reserves the right to refuse to make payments in respect of Successful Transactions exceeding such limit.
4. Payment to the Merchant
4.1 Subject to the Merchant Services Terms, Freecharge shall instruct the Nodal Bank to transmit the Settlement Amount to the Merchant’s bank account after deducting the Freecharge Checkout Fees plus applicable taxes, within the time period prescribed by RBI, subject to the delivery of the products/services to the Customer.
4.2 Payment by Freecharge shall be made without prejudice to any claims or rights that Freecharge may have against the Merchants and shall not constitute any admission by Freecharge as to the performance by the Merchant of its obligations under these Terms and the amount payable to the Merchant.
4.3 Freecharge shall be entitled to set off and deduct from any payment due to the Merchant:
a) the amount of any refund due to any Customer in accordance with the refund procedure set out in Clause 5 below;
b) any overpayment made by Freecharge due to computational/ system error(s) or otherwise;
c) any other sums due from or payable by the Merchant to Freecharge herein; and
d) in doing so, Freecharge may:
(i) debit the Merchant's account forthwith; and/or
(ii) deduct the outstanding amount from subsequent credits to the Merchant's account; and/ or
(iii) if there are insufficient funds available therein, claim from the Merchant, the amount credited to the account in respect of the relative Successful Transaction/s.
4.4 If Freecharge suspects, on reasonable grounds and in its sole and exclusive opinion, that the Merchant has been negligent, or has committed a breach of these Merchant Services Terms, or has committed act(s) of dishonesty or fraud against Freecharge or any Customer, then Freecharge, at its sole discretion, shall be entitled to suspend all payments, including payment of a particular Successful Transaction under these Merchant Services Terms to the Merchant, pending enquiries by Freecharge and resolution of the same to Freecharge's and the Partner Bank’s satisfaction. The Merchant hereby agrees to the aforesaid act on the part of Freecharge and agrees not to raise any dispute(s) with Freecharge and/or raise any allegations on Freecharge in this regard. Upon satisfaction, even when Freecharge subsequently decides to pay the Merchant, the Merchant shall neither claim nor be entitled to any interest payment or other form of additional compensation.
4.5 Rejection / Reversal of Payment: Notwithstanding anything stated elsewhere in these Merchant Services Terms or the Schedules annexed hereto, Freecharge may reject payment / reverse and/or mark lien of the amount that is credited in the Merchant’s Account in respect of orders to the Merchant where:
(a) the Customer refuses to pay because the product / service was not as promised or was defective or was not delivered;
(b) payment in respect of the order or the relevant instalment of the purchase price has already been made;
(c) a dispute has been raised by the Customer and/or Authorizing Bank for any reason whatsoever;
(d) and the Merchant agrees not to raise any dispute(s) with Freecharge and/or raise any allegations on Freecharge in this regard.
5. Presentation of Successful Transactions and Refunds
5.1 The Merchant agrees to inform the Customer about its credit refund policy clearly mentioning the same in the bill invoice and/ or on the website.
5.2 In respect of any Successful Transaction wherein any goods/ services are not received as described, by the Customer or are lawfully rejected or accepted for or services are not performed or partly performed or cancelled, or price is lawfully disputed by the Customer or price adjustment is allowed, the Merchant to initiate a refund of all such Successful Transactions.
5.3 The Merchant agrees and accepts that the Freecharge Checkout Fees plus applicable taxes as specified in the Merchant Application Form will be applicable for all Successful Transactions, and Freecharge Checkout Fees plus applicable taxes will not be refunded to the Merchant in case of any refunds.
5.4 In the event of the Merchant failing to deliver products/ services to the Customer within the delivery due date or failing to give refund to the Customer for the payment amount of the disputed Successful Transaction and the Customer making a complaint to Freecharge, Freecharge shall intimate the same to the Merchant. In event, the Merchant fails to fulfill its obligations, i.e. deliver the Products to the Customer or provide the proof(s) of delivery of the Product, or give refund to the Customer, within a period of 5 (five) Business Days, from the date Freecharge notifies the Merchant, Freecharge shall credit the Customer's payment account and in turn debit from the Merchant account for the particular payment amount or adjust such reversals against the payment amount collected from the Customers to be credited to the Merchant account.
6. Customer Disputes Redressal
6.1 Freecharge shall be entitled at any time to refuse total or partial payment to the Merchant, or, if payment has been made, to debit the Merchant's Account with such amount or to seek immediate reimbursement from the Merchant, in any of the following situations:
(a) The Successful Transaction is for any reason unlawful or a fraudulent Successful Transaction;
(b) The goods and/ or services covered by the Successful Transaction are rejected or returned or the transaction or part thereof, is validly cancelled or terminated by a Customer or if the Merchant fails to provide all or to the Customer's satisfaction, goods and/ or services to the Customer;
(c) The Customer disputes the nature, quality or quantity of the goods and/ or services covered by the Successful Transaction and or the Successful Transaction itself;
(d) There has been a departure from these Merchant Services Terms in relation to that Successful Transaction;
(e) The Customer disputes or denies the Successful Transaction or the sale or delivery of goods and/ or services covered by the Successful Transaction within reasons;
(f) There has been a breach by the Merchant of these Merchant Services Terms, other than the breaches more specifically provided in this sub-clause, in connection with the Successful Transaction or otherwise;
(g) Freecharge reasonably believes that the Successful Transactions are irregular;
(h) Freecharge is of the opinion that there are suspicious circumstances surrounding the Successful Transaction;
(i) Freecharge is of the opinion that the submission is out of the normal pattern;
(j) Any other event or circumstance which Freecharge shall from time to time notify to the Merchant to have occurred at the date of the Successful Transaction.
7. Evidence and Documents
7.1 The Merchant agrees that the following documents would be additionally maintained for records, and presented promptly to Freecharge for defending disputes/ Chargebacks /responding to retrieval requests:
(a) Merchant explanation letter/ rebuttal letter/ All relevant screenshots and documents;
(b) Order form;
(c) Invoice;
(d) Certificate of insurance, when applicable;
(e) Proof of dispatch of the goods/services; and
(f) Proof of delivery of goods/services.
7.2 The Merchant shall provide such reasonable assistance for the prevention and detection of fraud in respect of any Successful Transaction(s) as Freecharge may request, from time to time.
7.3 The Merchant shall ensure that adequate funds are maintained in the Merchant account for refund Successful Transactions and for settling any Chargeback raised on Freecharge/Partner Bank by the Authorizing Bank of the customer.
7.4 The Merchant shall provide timely responses with relevant documents for the Successful Transactions on which Chargeback is raised by the Authorizing Bank of the Customer. Freecharge reserves the right to impose penalty on the Merchant for not providing documents pertaining to the Successful Transactions on which Chargeback was raised.
7.5 If no response, records or document is provided by the Merchant to Freecharge as requested within 5 (five) working days, then the Chargeback raised by the Authorizing Bank of the Customer will be deemed to be accepted and the Successful Transaction amounts will be credited back to the Customer account and the Merchant account will be debited.
SCHEDULE D : ANCILLARY SERVICES
a) Reporting: Freecharge shall provide the Merchant a daily settlement report providing details of the Settlement Amount remitted to the Merchant.
b) Relationship Management: Freecharge shall provide the Merchant with a Relationship Manager to assist the Merchant in resolving any issues that the Merchant may be facing with respect to Freecharge Services.
c) Card Storage: Card Storage service enables the Merchant to offer Customers the facility to store their card information in a secure and PCI DSS compliant way.
d) Dynamic Switching: During a transaction, basis of the health of the Internet Payment Gateway, the global probability of success of the Transaction on the basis of payment method and BIN, the probability of success of the Transaction on the basis of Transaction history and other relevant parameters, the Dynamic Switching feature shall route transactions received from the Merchant Establishment from one acquirer to another acquirer.
e) Guest Checkout: This features enables Customer to make a transaction the Merchant Establishment without logging in to their Freecharge account.
ANNEXURE 1: DEFINITIONS AND INTERPRETATIONS
1. Definitions.
For purposes of these Merchant Services Terms, the following terms have the meanings set forth below:
“Affiliates” means: (a) in relation to a person, any other person, directly or indirectly, Controlled by, Controlling, or under common Control with that person;
“Applicable Law” means and includes any statute, law, regulation, ordinance, rule, judgment, order, decree, by-law, license, treaty, code, approval from the concerned authority, government resolution, directive, guideline, policy, requirement, or other governmental restriction or any similar form of decision of, or determination by, or any interpretation or adjudication having the force of law of any of the foregoing, by any concerned authority having jurisdiction over the matter in question, including but not limited to the Information Technology Act, 2000, the Payment and Settlement Systems Act, 2007, the Payment and Settlement Systems Regulations, 2008 and the guidelines and notifications issued by the RBI, and the guidelines / regulations issued by National
Payment Corporation of India (“NPCI”) there under from time to time;
“Authorizing Bank” shall mean various banks, financial institutions, Card Associations, payment system providers who are licensed under the Payment and Settlement Systems Act, 2007;
“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, Rupay, Diners, American Express, Maestro, cash card, pre-paid card or other card as may be specified by Freecharge 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;
"Card Association(s)" shall mean any of Visa, MasterCard, Visa Electron, Maestro, Diners, Rupay, American Express or any other card association as may be specified by Freecharge from time to time;
“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;
“Chargeback” means any amount which the Issuer of a payment instrument/option or a Card Association or Partner Bank, in connection with a Successful Transaction, either (a) refuses to pay to entity, or (b) claims or sets off as a refund from entity or where such Successful Transaction is disputed by a Customer, for reasons set out in,pursuant to and in accordance with the rules and procedures that such Issuer or Card Association or Partner Bank may have in this regard including but not limited to Card Association Rules pertaining to chargebacks (and includes any fines, penalties that may be levied the Association or Issuing Institution in this regard);
“Confidential Information” means all knowledge, information and / or data disclosed to the Parties under these Merchant Services Terms including but not limited to the details of the Customers. The Party receiving the information shall be the
“Recipient Party” and the Party disclosing the information shall be the “Disclosing Party”;
“Control” means (including the terms “Controlled by” or “under common Control with”) means, in respect of a person: (a) the direct or indirect beneficial ownership of, or the right to vote in respect of, directly or indirectly, more than 50% (fifty percent) of the voting shares or securities of such person; (b) the power to control the majority of the composition of the board of directors of such person; and / or (c) the power to create or direct the management or policies of such person by contract or otherwise or any or all of the above;
“Customer Charge” shall mean the amount paid by the Customer towards any products and/or services purchased/subscribed/availed by the Customer plus the shipping charge (if any) and all other taxes, duties, costs, charges and expenses in respect of such products and/or services.
“Effective Date” means the date mentioned in these Merchant Services Terms;
“Force Majeure Event” includes any event due to any cause beyond the reasonable control of the Parties, including, without limitation, unavailability of any communication system including civil unrest, labour unrest, action of statutory authorities or local or state, central governments, change in laws, rules and regulations, internet, breach or virus in the processes or payment mechanism, sabotage, fire, flood, explosion, acts of God, civil commotion, strikes or industrial action of any kind, riots, insurrection, war, acts of government, hacking, unauthorized access to computer data and storage devices, computer crashes, breach of security and encryption codes;
“Freecharge Checkout Fees” means the technology/platform charges payable by the Merchant to Freecharge for the Freecharge Merchant Services;
“Freecharge Checkout Fees” means the charges payable by the Merchant to Freecharge for the Freecharge Merchant Services as mentioned in Annexure 3;
“Governmental Authority” means any government authority, statutory authority, government department, agency, commission, board, tribunal or court or other law, rule or regulation making entity having or purporting to have jurisdiction on behalf of the Republic of India or any state or other subdivision thereof or any municipality, district or other subdivision thereof, and includes RBI;
“Intellectual Property” means all patents, trademarks, designs, copyrights, permits, service marks, brands, trade names, trade secrets, proprietary information and knowledge, technology, computer programs, databases, copyrights, licenses, franchises, formulae, designs, rights of Confidential Information and all other intellectual property;
“Intellectual Property Rights” mean all rights, benefits, title and/or interest in and/or to any Intellectual
Property, anywhere in the world (whether registered or not and including all applications for the same);
“Issuing Institution or Issuer” means shall mean a bank or financial institution or other legal entity, with which the Customer has a prepaid payment account and/or a net banking account and/or which has issued the valid Card to the Customers;
“Losses” means any and all losses, including all claims, damages, liabilities, deficiencies, assessments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including attorneys’ and other advisors’ fees and expenses, and the cost of enforcing any right to indemnification, reimbursement or recovery;
“Merchant Application Form” means application form filled by the Merchant in physical or electronic form (mobile site/ website/mobile application) for Freecharge Services;
“MPIN” means mobile banking personal identification number;
“Nodal Banks” means the bank(s) designated by Freecharge 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 (after deducting Freecharge Checkout Fees), pursuant to RBI notifications/guidelines as amended from time to time;
“Nodal Account” means the nodal account maintained by Freecharge in accordance with the RBI guidelines with the Nodal Bank;
“OTP” means one time password;
“Partner Bank” means and refers to Axis Bank Limited, a banking company incorporated under the provision of the Companies Act 1956, having its registered office at Trishul, 3rd Floor, Opposite Samartheswar Temple, Near Law Garden, Ellisbridge, Ahmedabad-380006 for the purposes of these Merchant Services Terms.
“PayLater” means a credit facility provided by Freecharge to its Customers in partnership with the Partner Bank.
“Payment System Providers” shall have the meaning ascribed to ‘system provider’ under Section 2(q) of the Payment and Settlement Systems Act, 2007, as amended from time to time;
“Settlement Amount” shall mean Customer Charge minus Freecharge Fees, Chargebacks, refunds (including any refunds arising from a Refund Event) and other charges/fees payable by the Merchant under these Terms.
“Successful Transaction” means a transaction undertaken by a Customer at the Merchant Establishment for which the payment has been processed and received by Freecharge; and
2. Interpretation.
In these Merchant Services Terms:
2.1. the headings are used for convenience and ease of reference only and shall not affect the construction or interpretation of any provision of these Merchant Services Terms;
2.2. unless the context otherwise requires, reference to the singular includes a reference to the plural and vice versa, and reference to any gender includes a reference to all other genders;
2.3. unless the context specifies otherwise, references to Schedules shall be deemed to be references to the schedules of these Merchant Services Terms;
2.4. references to any enactment are to be construed as referring also to any amendment or re-enactment thereof and to any rules, regulations or orders made under it; and
2.5. time is of the essence in the performance of the Parties’ respective obligations.
ANNEXURE 2: BANNED CATEGORIES OF PRODUCTS AND SERVICES
a) Adult Goods & Services - Pornography, other sexually suggestive materials; Escort/Prostitution services.
b) Personal Massagers/sex toys.
c) Alcohol or Alcoholic beverages.
d) Body Parts, including organs - Live, cultured, preserved or from cadaver.
e) Bulk marketing tools - e-mail lists, software or other products enabling unsolicited e-mails/sms.
f) Cable TV de-scramblers & black boxes intended to obtain cable & satellite signals for free.
g) Child Pornography in any form.
h) Copyright unlocking devices - Mod chips or other products designed to circumvent copyright protection.
i) Copyrighted Media - unauthorised copies of books, music, movies and other licensed or protected materials.
j) Copyrighted Software which includes unauthorised copies of software, videogames and other licensed or protected materials including OEM or bundled software.
k) Counterfeit and unauthorised goods - replica or imitation of designer goods; fake autographs; counterfeit stamps.
l) Drugs & Drug paraphernalia which includes illegal drugs and drug accessories including herbal drugs.
m) Drug test circumvention aids, includes drug cleansing shakes, urine test additives and related items.
n) Endangered species - includes plants, animals or other organisms.
o) Gaming/Gambling - lottery tickets, sports bets, enrolments in online gambling sites.
p) Government ID or documents which includes fake IDs, passports.
q) Hacking & Cracking materials which includes manual, how-to-guides, equipment enabling illegal access to software servers or protected property.
r) Illegal goods and goods/services promoting/enabling illegal acts.
s) Miracle cures, which are marketed as quick health fixes.
t) Offensive goods, which includes literature, products and other materials that defame or slander any person or group of person, encourage violent acts, promote intolerance or hatred.
u) Offensive goods, crime which includes crime scene photos or items, such as personal belongings associated with criminals.
v) Prescription drugs or herbal drugs of any kind of online pharmacies which includes drugs / other products
w) requiring a prescription by a recognised & licensed medical practitioner in India or anywhere else.
x) Pyrothenic devices & hazardous materials which includes firework & other toxic/radioactive goods.
y) Regulated goods, regulated by government agency.
z) Securities, which includes stocks, bonds, mutual funds or related financial products or investments.
aa) Tobacco & cigarettes, chewing tobacco and related products
bb) Traffic devices which includes radar detectors / jammers, license plate cover, traffic signal changers and related products.
cc) Weapons which include knives, brass knuckles, gun parts and other armaments.
dd) Wholesale currency which includes discounted currencies or currency.
ee) Live animals or animal parts / products.
ff) Multi-level Marketing schemes / Pyramid / sites using matrix scheme approach.
gg) Any intangible goods and services or aggregation/consolidation business.
hh) Work at home information.
ii) Drop-Shipped Merchant.
jj) Web based telephony/e-mail/sms/fax/calling cards/bandwidth/data transfer or allied services.
kk) Any product / services that is not in compliance with all Applicable Laws whether federal, state, both local and international including laws of India.
ANNEXURE 3: FREECHARGE CHECKOUT FEES
Freecharge Merchant Services
In consideration of the Freecharge Merchant Services in accordance with the Merchant Services Terms and read with this annexure, the Merchant shall pay to Freecharge the Freecharge Checkout Fees as per the table mentioned on merchant.freecharge.in
Freecharge reserves the right to revise the Freecharge Checkout Fee payable in the event of any revision in the rates charges by the Acquiring Bank or Card Associations or Partner Bank or guidelines issued by the RBI from time to time.
B. TERMS AND CONDITIONS FOR USE OF PLATFORM AND VALUE ADDED SERVICES
Your use of the Platform and value-added services provided through the Platform and as described hereinafter (“Value Added Services”) are governed by the following terms and conditions ("VAS Terms"), the Terms and Conditions for Merchant Enrolment for Freecharge Services (“Merchant Services Terms”), the Privacy Policy and any terms and policies which are incorporated herein by way of reference. These VAS Terms are a binding legal agreement between "You" (with the term “Your” or “Yourself” being construed accordingly) or "Merchant" and Freecharge Payment Technologies Private Limited (“Freecharge”, “we,” “our” or “us”) and come into effect when You enroll as a Merchant with Freecharge and upon Your usage of the Platform and/or any Value Added Services. Defined terms will have the same meaning as those found in the Merchant Services Terms, unless otherwise re-defined herein.
If you are using the Value Added Services on behalf of a business, You represent to us that You have authority to bind that business or entity to these terms, and that business accepts these terms.
Please read these VAS Terms carefully before you use the Platform and/or any Value Added Services. We reserve the right, at Our sole discretion, to change, modify, add or remove portions of these VAS Terms, at any time without any prior written notice to You. It is Your responsibility to review these VAS Terms periodically for updates / changes. Your continued use of the Platform following the posting of changes will mean that You accept and agree to the revisions. As long as You comply with these VAS Terms, We grant You a personal, non-exclusive, non-transferable, limited privilege to enter and use the Platform and Value Added Services.
All software used on the Platform and the Value Added Services is the property of Freecharge or their licensors / software suppliers and protected by Indian and international copyright laws. Any use except as specifically permitted under these VAS Terms, including the reproduction, modification, distribution, transmission, republication, display or performance, of the content on the Platform or the Value Added Services is strictly prohibited. All graphics, logos and service names are trademarks of Freecharge or its affiliates. Our trademarks should not be used in connection with any product or service without obtaining authorization from Freecharge, in any manner that is likely to cause confusion among Our customers, or in any manner that disparages or discredits Freecharge. The logos and trademarks of third parties on the Platform belong to respective third parties / brands.
FREECHARGE MAKES NO WARRANTY AGAINST AND WILL NOT BE LIABLE OR RESPONSIBLE FOR: (A) INTERFERENCE OF YOUR ENJOYMENT OF THE PLATFORM OR VALUE ADDED SERVICES; (B) LOSSES OR DAMAGES INCLUDING ANY PERSONAL INJURY ARISING FROM OR IN ANY WAY RELATED TO YOUR ACCESS OR USE OF THE PLATFORM AND/ OR VALUE ADDED SERVICES; (C) USE OF ANY CONTENT POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE PLATFORM AND/ OR SERVICES; (D) FAILURE, SUSPENSION OR WITHDRAWAL OF ALL OR PART OF THE PLATFORM AND/ OR ANY VAS SERVICE AT ANY TIME; (E) ANY BUGS, VIRUSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE PLATFORM OR VALUE ADDED SERVICES; (F) FUNCTIONAL, UNINTERRUPTED, ERROR-FREE OR BUG-FREE DELIVERY OF THE PLATFORM AND/ OR VALUE ADDED SERVICES; (G) SECURITY, RELIABILITY OR TIMELINESS OF THE PLATFORM AND/ OR VALUE ADDED SERVICES. ANY CONTENT OR MATERIAL DOWNLOADED THROUGH YOUR USE OF THE PLATFORM AND/ OR VALUE ADDED SERVICES IS AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS OF DATA OCCURRING ON YOUR DEVICE OR ANY OTHER LOSS OR DAMAGES OF ANY KIND RESULTING FROM THE DOWNLOAD AND USE OF THE PLATFORM AND/ OR SERVICES. NO ADVICE, COURSE OF CONDUCT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM FREECHARGE OR ANY PARTY OR THROUGH THE PLATFORM AND/ OR VALUE ADDED SERVICES WILL CREATE ANY WARRANTY UNLESS EXPRESSLY STATED IN THESE VAS TERMS.
WHILST FREECHARGE WILL UNDERTAKE ALL REASONABLE EFFORTS AND DUE DILIGENCE TO ENSURE SECURITY AND INTEGRITY, FREECHARGE WILL, IN PARTICULAR, NOT BE LIABLE FOR THE FOLLOWING: DELAY OR ERRORS IN TRANSMISSION AND/ OR STORAGE OF INFORMATION TO OR THROUGH FREECHARGE THAT MIGHT OCCUR FROM TIME TO TIME INTRUSION, DISTORTION, LOSS OR FORGERY OF DATA, ETC DUE TO ACT OF ANY THIRD PARTY, FAILURE OF ANY SOFTWARE AND/OR HARDWARE OR TELECOMMUNICATION SERVICE PROVIDER(S) USED BY FREECHARGE OR YOU OR ANY OTHER ACT BEYOND OUR REASONABLE CONTROL. YOU WILL BE LIABLE FOR ANY CONSEQUENCES WHATSOEVER RESULTING FROM ANYTHING TRANSMITTED OR CAUSED TO BE TRANSMITTED BY YOU, TO OR THROUGH THE PLATFORM AND/OR VALUE ADDED SERVICES.
THE PLATFORM AND/OR VALUE ADDED SERVICES ARE CONTROLLED AND OPERATED FROM AND IN INDIA. WE MAKE NO REPRESENTATIONS THAT THE VALUE ADDED SERVICES ARE APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE VALUE ADDED SERVICES FROM OTHER JURISDICTIONS DO SO AT THEIR OWN VOLITION AND ARE ENTIRELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE INDIAN LAWS, RULES, REGULATIONS, GUIDELINES INCLUDING BUT NOT LIMITED TO EXPORT AND IMPORT REGULATIONS AND RBI REGULATIONS. YOU SHOULD NOT USE THE SERVICE IF YOU ARE A RESIDENT OF A COUNTRY EMBARGOED BY THE INDIA, OR ARE A FOREIGN PERSON OR ENTITY BLOCKED OR DENIED BY THE INDIAN GOVERNMENT. UNLESS OTHERWISE EXPLICITLY STATED, ALL MATERIALS FOUND ON THE SERVICES ARE SOLELY DIRECTED TO INDIVIDUALS, COMPANIES, OR OTHER ENTITIES LOCATED IN INDIA.
Any of the above issue(s) needs to be taken up directly with the payee.
For Freecharge:
Postal Address: 16th Floor, Tower C, DLF Cyber Greens,
DLF Cyber City, DLF Phase-3,
Gurugram, Haryana - 122002
Email: merchantsupport@freecharge.com
For you:
To the name and email address provided at the time of registration.
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 will be deemed duly given
C. TERMS AND CONDITIONS FOR MERCHANT OFFER PROGRAM
Freecharge offers its users various digital and financial products and services (“Freecharge Products”). Through this program, Freecharge shall connect its users by collecting offers and discount vouchers offered by its merchants with respect to products and/or services provided by the them (“Offer(s)”) and displaying to registered customers of Freecharge (“Customers”) (“Program”). These terms are in addition to and not in derogation of the VAS Terms, the Privacy Policy and any terms and policies which are incorporated herein by way of reference. Defined terms will have the same meaning as those found in the Merchant Services Terms and/or VAS Terms, unless otherwise re-defined herein.
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