This Terms and Conditions (“Terms and Conditions”) is between you (“You” or“Merchant”) and Mswipe Technologies Private Limited ("Mswipe”) and governs your use of Mswipe’s Equipment and services. These terms and conditions shall be applicable in respect of each and every transaction involving payment by means of a Valid Card.
By clicking “I Accept” or “I Agree” on the signup page, or by accessing and using our products and or services in any way, you agree to be bound by these terms and conditions. DEFINITIONS
1.1.1 “Application” means the Application Form, whether physical or digital, submitted by the Merchant and verified and accepted by Mswipe for the purpose of availing Mswipe’s services.
1.1.2 “Card Member” or “Member” or “Customer” or “Cardholder” shall mean a person holding a Valid Card making payment using a Valid Card.
1.1.3 “Chargeback” means any dispute regarding a Valid Charge raised by a Cardholder with the issuing bank and or the Card Scheme.
1.1.4 “Equipment” shall mean the equipment specified in the Application as may be provided for/caused to be provided for authorization by Mswipe to the Merchant. Equipment does not include Mswipe’s systems (embedded and supporting software), confidential documentation or any related and other Intellectual Property Rights supplied by Mswipe.
1.1.5 “Intellectual Property Rights” shall deem to mean and include all copyright, designs, inventions patents, service marks, trademarks (in each case, whether registered or arising at common law, or its overseas equivalent) or applications for any of these, formulations, trade names, business names, inventions, discoveries, trade secrets, know-how, source code, object code, technical information, commercial and financial data and all other industrial or intellectual property rights (whether or not registered).
1.1.6 “Merchant Discount Rate” or “MDR” means with respect to each Transaction Amount a percentage thereof as specified in the Application. Provided however that the Merchant Discount Rate may be revised from time to time by Mswipe and Mswipe will intimate Merchant of any such change not less than 7 days in advance of its effectiveness.
1.1.7 “Mswipe Gateway” means and includes the software, applications and systems of Mswipe and or its service providers through which a Valid Charge and payment of the Valid Charge to the Merchant is processed.
1.1.8 “Mswipe Sponsor Bank” means any bank or banking entity associated with Mswipe for providing transaction processing services to the Merchant.
1.1.9 “Other Equipment” means devices such as android or other cell phones, bluetooth printer etc. that may be sold by Mswipe to the Merchant on an outright sale basis as specified in the Application.
1.1.10 “Support Services” shall mean transaction processing services through Mswipe Gateway, help desk service on Mswipe’s standard terms and conditions.
1.1.11 “Transaction Amount” shall mean the amount payable by the Customer using the Valid Card for the product/ service offered by the Merchant inclusive of shipping charges and other taxes, duties, cost, charges and expenses in respect of the product / service that are fto be charged to the Cardholder's Valid Card.
1.1.12 "Transaction Receipt" means the digital receipt generated after authorisation of a Valid Charge provided to the Customer and the Merchant recording the charges and transaction details.
1.1.13 “Valid Card” shall mean a VISA/Mastercard/American Express/Rupay or any other debit or credit card issued as per the rules of any such card association as notified by Mswipe from time to time bearing signature of the holder.
1.1.14 “Valid Charges” is a charge within the amount authorized in accordance with Clause 13 herein below, which is charged to the Card Member (i) on a Transaction Receipt acceptable to Mswipe, bearing an imprint of a Valid Card and wherever applicable, bearing the same signature as that on the Valid Card; and (ii) using the Equipment with Transaction Receipt generated from the Equipment after swiping or dipping the Valid Card, and wherever applicable, bearing the same signature as that on the Valid Card.
1.1. Mswipe hereby grants the right to use the Equipment to the Merchant for a monthly fee as specified in the Application and the installation and delivery charges. The Merchant agrees and acknowledges that Mswipe has granted to the Merchant only a limited right to use the Equipment as per these Terms and Conditions within the territory of India and the ownership will remain with Mswipe. Upon termination of the arrangement between the Merchant and Mswipe, the Merchant shall be responsible to pay the price of the Equipment(s) and/or return of the functional Equipment(s).
1.2. At the time of installation, Mswipe’s representative shall train the Merchant about the procedure for using the Equipment along with the Other Equipment.
1.3. To provide Support Services, the Equipment is embedded with Mswipe’s systems and software and Mswipe also provides confidential documentation and other Intellectual Property Rights ( “Mswipe Systems” ). The Merchant agrees and acknowledges that no rights in such Mswipe Systems are being sold by Mswipe to the Merchant and all the right, title and interest in the such Mswipe Systems shall at all times belong to Mswipe. Further, no separate charges are recovered by Mswipe from the Merchant for providing the Mswipe Systems or the Support Services and Mswipe recovers only the monthly charges for right to use the Equipment granted to the Merchant under pursuant to the Application, which cannot be provided in the absence of Mswipe Systems. It shall further be deemed that Mswipe has given limited license to use Equipment and the Intellectual Property Rights in the Mswipe Systems to Merchant during the period when Mswipe is providing Support Services to the Merchant. The Merchant agrees and acknowledges that except the rights expressly granted under these Terms and Conditions, the Merchant shall have no right in the Equipment including but not limited to the Intellectual Property Rights in or to the Equipment or the Mswipe System.
2.1. The Merchant shall at all times during the period of use of the Equipment avail the Support Services provided by or on behalf of Mswipe.
3.1. Mswipe shall deliver or cause to be delivered to the Merchant, the Equipment and Other Equipment (if any) together with Mswipe Systems, at a place specified in the Application. The mode of delivery of the Equipment and Other Equipment may be affected in a manner mutually agreed between the Parties but after receipt of installation fees and delivery charges by Mswipe.
The Merchant shall pay the following charges to Mswipe:
4.1. Installation charges as specified in the Application and cost of Equipment in case of damage or loss or non-return of Equipment upon termination of the arrangement between the Merchant and Mswipe as specified in Clause 12.5 herein.
4.2. Repair of Equipment: Charges for repair of the Equipment as may be applicable on case to case basis shall be paid by the Merchant.
4.3. Other Equipment Sale: Sale price of Other Equipment as specified by Mswipe shall be paid by the Merchant.
4.4. Fees for right to use of Equipment: Fee for right to use of Equipment shall be paid by the Merchant on a monthly basis. However, initially fee for right to use of Equipment for the period as specified in the Application shall be paid in advance and after expiry of this period, fee shall be paid on a monthly basis (refer to the Application). The Merchant agrees, acknowledges and authorises that Mswipe shall have the right to debit the monthly Fees right to use of Equipment and the Merchant Discount Rate from the Transaction Amount to be debited to the Merchant upto 7 (seven) days before the start of the billing cycle. Any delayed payments would attract interest @ 2% per annum.
4.5. Mswipe will raise periodical invoices for recovery of various payments.
4.6. For the purpose of payment of the fees and other charges under these Terms and Conditions, the Merchant shall give his unconditional consent and authorize Mswipe to debit Merchant's bank account through Electronic Clearing System (“ECS”) and or valid standing instructions in the manner as provided in the Application. The Merchant further authorizes Mswipe to recover all costs and expenses in the event the payment of any amounts and other monetary obligations are not honoured on the respective due dates as per the ECS mandate and or the standing instructions. The details of Merchant's bank account through which the Merchant desires to arrange for payment to Mswipe by means of ECS is provided in the Application Form. The Merchant shall provide valid standing instructions for debiting the Merchant’s account in the manner as may be required by Mswipe from time to time.
5.1. Taxes, etc.: The Merchant shall be responsible for any applicable sales, value-added, service use and similar taxes and impositions (“Taxes”) payable with respect to right to use the Equipment or Other Equipment or provision of Support Services, or otherwise arising out of or in connection with the Application and these Terms and Conditions, whether currently applicable or made applicable in future.
5.2. Withholding: The Merchant shall be responsible to deduct the tax at source as applicable under Income Tax Act, 1961 or any other laws,/rules,/ or regulations as may be applicable from time to time and deposit the same to the credit of the government within the respective due dates. Also the Merchant shall be responsible to submit the certificate of tax deducted or any other document evidencing deduction of tax as applicable within 30 days from the due date for submission of returns of tax deduction to the government. The duty to comply with the provisions of tax deduction solely rests upon the Merchant and Mswipe shall not be liable for the same under any circumstances and in any manner whatsoever. Subject to this Clause 6.2, the Merchant shall make all payments of amounts/fees due under this Application to Mswipe free and clear of, and without reduction for, any withholding taxes.
5.3. Audit: The Merchant shall keep complete and accurate records regarding (i) the Support Services provided by Mswipe under this Application; (ii) proof of delivery of products and services supplied by the Merchant in the manner satisfactory to Mswipe; (iii) customer identity proof; and (iv) such other information as may be required by Mswipe from time to time or necessary for the Merchant or Mswipe to validate the Merchant's compliance with its obligations, rights and fees owed under these the Application and Terms and Conditions. The Merchant shall provide such information to Mswipe within three (3) days of Mswipe's written request and with not less than two (2) days’ prior notice, Mswipe or its representatives may inspect, audit, and copy such records of the Merchant and access the Equipment, at any time during the Merchant's regular business hours.
6.1. The Merchant represents and warrants to Mswipe that on the date hereof:
6.1.1. It is an entity duly incorporated, validly existing and in good standing under the laws of India;
6.1.2. It has all necessary power and authority to enter into this arrangement;
6.1.3. The persons signing the Application physically or digitally in the manner specified by Mswipe on behalf of the Merchant have the authority to sign, execute and accept it on behalf of the Merchant so as to create binding obligations on the Merchant and all information provided by the Merchant pursuant to the Application and these Terms and Conditions is true and correct;
6.1.4. The execution and delivery of the Application, and the consummation of the transaction contemplated hereby, and the fulfillment of and compliance with the Terms and Conditions hereof, do not (i) violate any applicable laws, judicial or administrative order, award, judgment or decree applicable to it, or (ii) conflict with the terms, conditions or provisions of its constitutive documents or any other contractual obligations or regulations; and
6.1.5. The Application and these Terms and Conditions, whether in physical form or in electronic form, constitutes valid and legally binding obligation and will be enforceable against the Merchant in accordance with these Terms and Conditions.
6.2. The Merchant shall comply with all the applicable laws including the guidelines and standard Terms and Conditions as set out herein and such other amended guidelines and terms issued by Mswipe from time to time and further acknowledge that Mswipe shall not have any obligation to verify whether or not the Merchant has acted in accordance therewith.
6.3. Mswipe reserves the right to modify, add or remove any part of these Terms and Conditions and guidelines at any time without prior consent of the Merchant.
6.4. Mswipe is not giving any warranties either express or implied, whether of merchantability or fitness for any particular use or otherwise, in respect of the Equipment or Other Equipment or any Support Services provided under the Application and or these Terms and Conditions and no waiver, alteration or modification of the foregoing condition shall be valid unless made in writing and signed by Mswipe. The Merchant's sole and exclusive remedy in the event of interruption to or loss of use and/or access to the Support Services shall be to get the Support Services restored from Mswipe. Mswipe will use reasonable endeavors, at its sole and absolute discretion which shall be final and binding on the Merchant, to restore the Support Services and/or access to the Support Services as soon as reasonably possible.
6.5. The Merchant acknowledges that it has been advised that no agent, employee or representative of Mswipe has any authority to buy and sell or affirm or promise any representation and warranty concerning the Equipment or Other Equipment or Support Services, and unless such affirmation, promise or representation and warranty is specifically set forth in these Terms and Conditions, it does not form part of the Application and or these Terms and Conditions and shall not be enforceable against Mswipe. The Merchant acknowledges that it is cognizant of this provision and evidences its agreement to be bound thereby.
7.1. The Merchant recognizes that it may be given and have access to Confidential Information of Mswipe. The Merchant undertakes not to use any such Confidential Information, for its own purposes except as permitted hereunder, without the prior written consent of Mswipe. The Merchant further undertakes that it shall at all times during and after termination of this Application keep the Confidential Information confidential and not disclose it to any third party. The contents of the Application shall also be kept confidential.
7.2. No announcement, circular, press releases, advertising, marketing materials or promotional materials in connection with the subject matter of these Terms and Conditions shall be made or issued (whether in print, electronically or otherwise) by or on behalf of the Merchant other than (i) as required by law or (ii) to any authority to which the Merchant is subject, without the prior written consent of Mswipe except where such an announcement is required by reason of any of (i) or (ii) above, the Merchant shall consult with Mswipe as to the contents of any such announcement and take into account all reasonable request of Mswipe relating thereto.
8.1. Except for use permitted under this Application, the Merchant shall not use any Mswipe's trademark, service mark, trade name or logo without specific authorization to the effect. Any infringement of any Mswipe's Intellectual Property Rights shall be subject to legal action and damages.
8.2. The Merchant shall not to do anything whatsoever which might impair Mswipe's right, title or interest in or to Mswipe's Intellectual Property Rights and agree that the Merchant shall not acquire or attempt to acquire any right, claims, title or interest, license in or to any of the Intellectual Property Rights of Mswipe. The Merchant shall not decompile/disassemble, or create or attempt to create or reconstruct, by reverse engineering or otherwise, any code supplied under the Application and or these Terms and Conditions including in respect of the Equipment or Other Equipment or use it to create any derivative work.
9.1. Third Party Products: the Equipment and or the Other Equipment may include material which Mswipe licenses from third parties. To the extent required by any such third party in its applicable license or resale agreement with Mswipe, such third party shall be a direct and intended third party beneficiary of the arrangement between Mswipe and the Merchant, insofar as it pertains to protection of Intellectual Property Rights, disclaimers of implied warranties, and limitations and exclusions of liability. The Merchant shall fully indemnify Mswipe and Mswipe Sponsor Bank and/or entity associated with Mswipe against any third party claim alleging that its Intellectual Property Rights are infringed by the Merchant.
9.2. Protection against Unauthorized Use: The Merchant shall promptly notify Mswipe of any unauthorized use of any Equipment or Other Equipment of which the Merchant becomes aware. In the event of any unauthorized use by any user, the Merchant shall immediately terminate and prevent further occurrences of such unauthorized use. If Mswipe commences any legal proceeding in connection with such unauthorized use, then Mswipe may, at Mswipe's option and expense, participate in or control any such proceeding. In such event, the Merchant and Mswipe shall each provide the other with such authority, information and assistance related to such proceeding as may be reasonably necessary to safeguard Mswipe's interests and the Merchant's rights under these Terms and Conditions.
9.3. Server Connections: The Merchant shall reasonably maintain the Equipment or Other Equipment such that the Merchant can get connected to Mswipe Gateway at all times without any lags. However, if the Mswipe Gateway fails to respond, the Merchant shall report the issue and Mswipe will fix it as early as possible.
10.1. The Merchant hereby undertakes to honour and accept every Valid Card when properly presented as payment by Customers for all transactions. The Merchant shall not engage in such acceptance practices or procedures that discriminate against, or discourage the use of cards issued by a card scheme in favour of any other card that is also accepted by the Merchant or other payment mode accepted by the Merchant.
11.1. The Merchant shall use the Equipment or Other Equipment exclusively for the transactions with Customer during the term of the arrangement between the Merchant and Mswipe.
11.2. Mswipe shall be entitled to charge the Merchant for the costs of the Equipment and/or the costs of repairing the Equipment(s) in the event the Equipment(s) is/are damaged or is/are used in an improper manner by the Merchant.
11.3. The Merchant shall not permit any third party to perform any maintenance services on the Equipment(s) or effect modification or enhancement or software/engineering changes to the Equipment(s) without the prior written consent of Mswipe.
11.4. The Merchant shall not (i) sell, assign, transfer, lease or otherwise cause or allow or attempt to cause or allow, any dealings with the Equipment or any encumbrance on the Equipment to be created; (ii) remove, conceal or alter any markings, tags or plates attached to the Equipment or part of it; (iii) disallow Mswipe's right to access, repossess or dispose of the Equipment pursuant to these Terms and Conditions; or (iv) otherwise to be encumbered in any way whatsoever.
11.5. The loss or damage arising out of negligence, or misuse of the Equipment and / or default in payment due to any reason whatsoever shall be recovered by Mswipe from the Merchant in the following manner:
Mswipe reserves the right to revise such amount by giving intimation to the Merchant.
11.6. Notwithstanding anything to the contrary, Mswipe may modify the list of Equipment as stated in Clause 12.5 including upon introduction of any new model of Equipment and shall fix the price of the same at its sole discretion which shall be payable by the Merchant in accordance with Clause 12.5 in respect of such Equipment.
11.7. The Merchant shall permit the authorized representatives of Mswipe or Mswipe's authorized agent to carry out physical inspections of the Equipment (or possession of the Equipment in case of termination of the arrangement between Mswipe and the Merchant) during business hours, with or without prior notice.
11.8. Mswipe may seek enhancement of the Equipment for provision of additional services using the Equipment. The Merchant shall allow Mswipe or Mswipe's agent to undertake such enhancements and facilitate and provide such services.
11.9. The Merchant shall make timely payment of the various charges only to the authorized representatives of Mswipe.
11.10. The Merchant shall ensure that it displays on the Merchant's premises such notices, disclaimers, warranties and indemnities as Mswipe may require from time to time in this regard. The Merchant shall at all times display on such conspicuous place a notice stating that ‘CARDS ARE ACCEPTED HERE’ as may be provided by Mswipe from time to time.
11.11. The Merchant shall adopt appropriate measures of privacy, which measures should clearly ensure that the privacy of its Customers is protected and no information given by such Customers shall be utilized in any manner whatsoever which could directly or indirectly result in any harm to the Customers or which would constitute a breach of such privacy.
11.12. The Merchant hereby undertakes and agrees:
11.12.1. Not to describe itself as an agent, representative, partner or employee of Mswipe or Mswipe Sponsor Bank and/or entity associated with Mswipe and to ensure that its products are at all times, be marketed and/or distributed as the products marketed / sold by the Merchants. It shall also take all necessary steps and/or precautions to ensure that the products are not mistaken or misrepresented as being associated with, being sold by, marketed by or being offered for sale by Mswipe or Mswipe Sponsor Bank and entity associated with Mswipe in respect of the Support Services and any ancillary matter and neither of these entities nor Mswipe shall bear any liability in this regard.
11.12.2. Not to make any representations to its customers or any third party or give any warranties which may require Mswipe or Mswipe Sponsor Bank and entity associated with Mswipe to undertake or be liable for, whether directly or indirectly, any obligation and/or responsibility to customers or any third party.
12.1. Merchant must obtain an authorization through Mswipe Gateway for each and every charge incurred by the Card Member and shall not deliver the goods or services until authorization is received through Mswipe Gateway. Authorization in respect of charges can be obtained by swiping or dipping the Valid Card and validating the transaction by the Customer providing their unique personal identification number (PIN) or such other details as may be necessary under applicable law or required by Mswipe from time to time using the Equipment.
12.2. If the Merchant accepts charges without prior authorization, Mswipe will not be responsible for any such charges or any part thereof and all such charges will be accepted only on a collection basis.
12.3. In the event of the Valid Card being an international card or card issued by American Express, the Merchant shall accept the charges only upon presentment of a valid identity proof of the Card Member and shall require the Card Member to submit a copy of the same before authorization of the charges.
12.4. Splitting of charges into two (2) or more Transaction Receipts will not be acceptable to Mswipe.
12.5. Mswipe reserves the right to refuse the charges if an authorization is declined. Any authorization given through the Equipment will be at Mswipe’s absolute discretion and Mswipe may further, in such an event, also direct the Merchant to take immediate preventive action.
12.6. In case of any disputes regarding authorizations given by Mswipe regarding any details pertaining thereto (whether as to card number, expiry date of a Valid Card, amount, date and the time of charges, time at which authorization is given or otherwise whatsoever), the decision of Mswipe to grant or refuse authorization and the details mentioned by Mswipe shall be final and binding on the Merchant.
12.7. Merchant shall be responsible for verification of Card Member including the validity of the Card, identity of the person transacting with the photograph on the Valid Card (in case of photo Valid Card), ensuring that the Card Member has signed on the signature strip of the Valid Cars and verifying the signature on back panel of Valid Card with the signature of the said Card Member on the Transaction Receipt wherever applicable. In the event of mismatch of credentials, Merchant shall follow procedure as laid down by Mswipe from time to time.
12.8. The Merchant shall not process or deposit transactions with Mswipe for or on behalf of any third party. The Merchant will also not give cash advance by showing the transaction as a sale transaction. The Merchant shall not accept payment from a Cardholder to re-finance an existing debt.
12.9. Mswipe reserves the right to discontinue the Support Service and/or terminate this Application or terminate the right to use the Equipment granted to the Merchant on any of the aforesaid grounds and recover such amounts from the Merchant in case it is exposed to losses due to Chargebacks or any other reason.
12.10. The Merchant shall refrain from indulging in any practice whereby the Merchant refuses to accept a Valid Card for payment.
13.1. The Merchant in handling transaction(s) via the Equipment and Mswipe Gateway must ensure that the extraction of data from the Valid Card must be in the manner specified by Mswipe (this may vary from time to time but Mswipe will give prior notice of variation to the Merchant).
13.2. Deliver to the Cardholder a bill mentioning the Transaction Amount received from the Cardholder through the Equipment and Mswipe Gateway.
13.3. Mswipe reserves the right to impose limits on the number of transactions undertaken using a particular Valid Card and the value of a single transaction during any time period, and reserves the right to refuse to make payments to the Merchant in respect of transactions exceeding such limit. Mswipe also reserves the right to fix a daily merchant limit (i.e. the amount beyond which the cards of the customers cannot be accepted in a day on the Equipment and or Mswipe Gateway) or such other limits as may be specified by Mswipe from time to time.
13.4. Unless otherwise permitted by applicable law or Mswipe, the Merchant shall not require any Cardholder to pay any surcharge, to pay any part of the MDR, whether through any increase in price or otherwise, or to pay any contemporaneous finance charge in connection with the transaction in which a Valid Card is used.
14.1. In consideration of the transaction processing services the Merchant agrees to pay to Mswipe, the Merchant Discount Rate as mentioned in the Application and any further charges as detailed in the Application and or these Terms and Conditions, which shall be deducted by Mswipe from the amounts payable to the Merchant in respect of a Transaction Amount.
14.2. If any extra credit is given by the Merchant to the Cardholder without prior approval of Mswipe, the Merchant shall do so at its own risk and responsibility. In such case the entire transaction would be treated as void and Mswipe will reject payment of the same.
14.3. All applicable tax including service tax, consumption tax or value added tax whether currently in force or introduced after the effective date of the Application and any other taxes, duties, fees and charges arising out of the performance of the Application shall be borne by the Merchant.
15.1. The Merchant agrees to inform the Cardholder about its credit refund policy clearly mentioning the same in bill invoice and/ or on the website.
15.2. If in respect of any transaction, any goods/ services are not received as described, by the Cardholder or are lawfully rejected or accepted for or services are not performed or partly performed or cancelled or price is lawfully disputed by the Cardholder or price adjustment is allowed, the Merchant shall not make a cash refund but shall provide the invoice and other relevant documents to Mswipe for verification and investigation. The Merchant shall sign and date each invoice and other related documents to be provided to Mswipe and include a brief description of the items concerned therein.
15.3. In the event of a refund to a Cardholder, the Merchant shall not make a cash refund to the Cardholder. The Merchant must present a credit process/ refund letter on headed stationary and signed by authorized signatory/ies or in any other manner as specified by Mswipe from time to time. The Merchant must not process a refund transaction, unless there is a preceding corresponding debit on a card account. In the event that only Transaction Receipt are presented to Mswipe at any time, the Merchant shall at the same time make payment of the net refund (i.e. the total refund(s) to the Cardholder(s) less the discount) to Mswipe. The Merchant shall ensure that Mswipe has enough funds of the Merchants to process any refund request received from the Merchant. Mswipe shall not be liable to process any refunds request in case of insufficiency of Merchant’s funds.
15.4. The Merchant agrees and acknowledges that Mswipe shall not be processed by Mswipe after a period of 180 days from the date of transaction.
15.5. The Merchant further agrees and acknowledges that, in case of any refund or chargeback, the MDR charged by Mswipe shall not be refunded to the Merchant or the Cardholder.
15.6. In situations where there is a time gap between the sale date and the refund date, which causes a currency translation difference for transactions on foreign cards, Mswipe will have the right to recover the equivalent INR amount pertaining to such foreign exchange currency translation differences from the Merchant, for the purpose of crediting the same to the Cardholder's Card Account.
15.7. By presentation of any transaction information (which for the purposes of these Terms and Conditions means any invoice, delivery report and/ or any information in respect of any transaction presented to Mswipe by or on behalf of the Merchant) the Merchant warrants to and agrees with the Mswipe and the Mswipe Sponsor Bank:
15.7.1. that the Merchant has supplied or caused to be supplied, the goods/ and or services to which the transaction information relates and to the value stated therein and a price not greater or otherwise on terms not less favourable than the same price and terms at and on which such goods and/ or service are supplied by the Merchant for cash;
15.7.2. that no other Transaction Receipt or invoice or information shall be issued or presented in respect of the goods and/ or services to which the transaction information relates;
15.7.3. that the provision of credit for the supply of goods and/ or services to which the transaction information relates is not unlawful; and
15.7.4. that the transaction information relates to a Valid Charge and that the Merchant has complied with these Terms and Conditions.
15.8. Neither the receipt by Mswipe of any transaction information nor any payment by or any act of omission by Mswipe (other than an express written acknowledgement or waiver thereof by Mswipe) shall constitute or be deemed to constitute any acknowledgement or waiver of compliance by the Merchant with any of the warranties specified in this Application.
16.1. Subject to the provision of Clause 17.2 hereof, and without prejudice to the right conferred by Clause 19 hereinafter appearing, Mswipe shall pay to the Merchant, Valid Charges specified in the Transaction Receipt received at their offices within 3 working days of receipt, in case of Visa / Mastercard or any other card association except under circumstances beyond the reasonable control of Mswipe. Payment of such charges by Mswipe is not to be construed or deemed to mean that the charges involved are Valid Charges. Mswipe will be entitled, at any time to set-off and adjust outstanding of the Merchant, against all payments due to the Merchant and such set-off and/or adjustments shall be final and binding on the Merchant.
16.2. Where Mswipe has reason to believe that any charges have been fraudulently incurred or charged either on a Valid Card or a counterfeit card or where Mswipe has reason to investigate or cause to be investigated any charges (hereinafter referred to as “Suspect Charges”), Mswipe shall be entitled to withhold payment (without interest) pertaining to such Suspect Charge(s).
16.3. Provided that if Mswipe determines after due enquiry and investigation that the charge is a Valid Charge and not a Suspect Charge, Mswipe shall release such withheld payment.
16.4. Provided further that if Mswipe determines after due enquiry and investigation that any Suspect Charge is not a Valid Charge, Mswipe shall be entitled not to pay the same at all to the Merchant and or deduct such amounts from any Transaction Amounts payable to the Merchant and the Merchant undertakes not to raise any claims thereto.
16.5. If Mswipe suspects, on reasonable ground and in its sole and exclusive opinion, that the Merchant has been negligent, or has committed a breach of these Terms and Conditions or act/s of dishonesty or fraud against Mswipe or any Cardholder, Mswipe shall be entitled to suspend all payments under these Terms and Conditions to the Merchant pending enquiries by Mswipe and resolution of the same to the Mswipe's satisfaction.
16.6. The Merchant hereby acknowledges that it may enter into credit facility with various lenders whereby the repayment of loans shall be routed through Mswipe. The Merchant hereby unconditionally authorises Mswipe to deduct all such amounts as may be agreed between the Merchant and the lender from the net payments to be paid by Mswipe to the Merchant.
16.7. Net payments after deducting the fees, MDR or any other amount payable by the Merchant to Mswipe shall be made to the Merchant by Mswipe directly into the respective account of the Merchant or by cheques.
16.8. In the event of a Customer making a purchase by a Valid Card and the customer or the bank associated with Mswipe with whom the Customer has taken the Valid Card raises any dispute whatsoever, Mswipe shall forthwith inform the Merchant of the same and the Merchant shall be obliged, forthwith, to refund all such amounts received without any demur or protest whatsoever. Mswipe shall, without prejudice to its other rights, be entitled to debit the payment to be made to the Merchant and/or from any other account of the Merchant with Mswipe and/or shall also be entitled to set-off the same from any amounts due to the Merchant by Mswipe and make a corresponding credit to the Customer's Valid Card. If the dispute raised by the Customer is decided, to the satisfaction of Mswipe or Mswipe Sponsor Bank and/or entity associated with Mswipe, in favour of the Merchant, such payment shall be forthwith returned to the Merchant without any interest after the monies have been recovered from the Customer. Mswipe or Mswipe Sponsor Bank shall not be liable for any delay in returning the payment to the Merchant and shall be absolved from all liabilities thereon.
16.9. In the event of a Customer making a purchase by a Valid Card and requesting Mswipe Sponsor Bank for a refund on any grounds whatsoever, or in the event of the Customer raising any dispute in respect of the products whatsoever, Mswipe shall forthwith inform the Merchant of the same and shall cause and the Merchant shall be obliged to, forthwith, refund all such amounts to Mswipe and such refund shall be made in a period of not more than five (5) days. If the Merchant and the Customer are unable to arrive at a satisfactory resolution of the problem within a period of ten (10) days thereafter, Mswipe shall be entitled to cause a direct credit to the disputing Customer's account for the disputed amount by debiting the Merchant's account. Such a debit to the Merchant's account and the direct credit to the disputing Customer's account shall not be disputed by the Merchant in any manner whatsoever. In the event of the Customer and the Merchant arriving at a settlement within the said 10 day period, Mswipe shall cause to deal with the said moneys in accordance with the terms of the settlement arrived at. Mswipe or Mswipe Sponsor Bank and/or entity associated with Mswipe shall not be liable to any Customer and the Merchant shall indemnify and keep indemnified Mswipe and Mswipe Sponsor Bank and/or entity associated with Mswipe against any claims, damages, liabilities, costs, expenses, legal fees suffered by Mswipe and Mswipe Sponsor Bank and/or entity associated with Mswipe in this regard.
If a SIM Card has been provided along with the Equipment or Other Equipment as specified in the Application, then the Merchant undertakes to use this SIM Card only with the Equipment or Other Equipment provided under the Application and only for the purpose of telecommunication between the Equipment and Mswipe’s server.
The Merchant undertakes that any charges accepted by Mswipe, which prove to be uncollectable and or are Chargebacks, shall be the exclusive financial responsibility of the Merchant. The Merchant undertakes to pay such uncollectible charges and or Chargebacks (including any processing fees or any other fees incurred by Mswipe in respect of such uncollectible charges and/or Chargebacks) without any demur or protest.
19.1. The Merchant hereby also confirms and acknowledges that it is aware of and agrees to abide by the guidelines of the card schemes, especially the requirement of inclusion of the Merchant's name in the NMAS, if the merchant acts in contravention of the various clauses of these Terms and Conditions.
19.2. Deployment of other applications in the Equipment or Other Equipment: The Merchant shall not deploy any other payment applications in the Equipment or Other Equipment which has the capacity to capture card number or card details, except after being informed to Mswipe in advance and concurrence thereof obtained from Mswipe.
19.3. Compliance to Security Standards: In the interest of security of Card transactions, the Merchant shall comply with PCIDSS standards and arrange to encourage deployment of PABP compliant applications in the Equipment.
19.4. Capture only its own transactions: The Merchant shall capture only the transactions done in its establishment in the Equipment or Other Equipment deployed. On no account, shall the Merchant offer to capture the transactions done on other establishments.
19.5. In the event of any display or advertisement of any product or service or the display/ advertisement or distribution / sale of any product being, in the view of Mswipe or any regulatory / statutory / judicial / quasi-judicial authority, contrary to any applicable law, regulation, government policy, order or guideline including all applicable foreign laws, regulations, Mswipe shall be entitled to call upon the Merchant to cause removal or discontinuation of such display, advertisement, distribution or sale, as the case may be. The Merchant shall, on receipt of such a request, forthwith, discontinue with such practice. Provided that, in the event the Merchant satisfies Mswipe that the same is not contrary to the aforesaid, it shall not be required to discontinue/get discontinued such practice.
19.6. Mswipe or Mswipe Sponsor Bank or entity associated with Mswipe shall not be responsible for any delivery, after-sales service, payment, invoicing or collection, customer enquiries (not limited to sales enquiries), technical support maintenance services and/or any other obligations or services relating to or in respect of the products whatsoever.
19.7. The Merchant agrees and undertakes that any and all disputes regarding quality, merchantability, non-delivery/nonfulfillment and delay in delivery / fulfilment of the products or otherwise will be dealt with by and between the Merchant and the customer directly and Mswipe and Mswipe Sponsor Bank or entity associated with Mswipe shall not be made party to any such disputes. The Merchant shall hold Mswipe including Mswipe Sponsor Bank or entity associated with Mswipe saved and harmless from any such actions or claims that may be initiated against it for reason thereof.
19.8. In no event shall Mswipe be required to or deemed to establish any contract for the sale and purchase of the products with the Customer. The Merchant further undertakes to ensure that the appropriate notices and disclaimers are provided to the Customer informing that the Customer is purchasing the products solely from the Merchant pursuant to a sale and purchase agreement with the Merchant through the Equipment provided by Mswipe.
19.9. Mswipe and Mswipe Sponsor Bank and/or entity associated with Mswipe shall not be liable in contract, tort or otherwise for any indirect or consequential loss or damage sustained by the Merchant by any use of or reliance on the electronic communication, orders or messages including that of Support Services provided by Mswipe to the Merchant whether with or without the utilization of any security measures, including but not limited to any loss or damage resulting as a consequence of any defects, delays, interruptions, errors, inaccuracies or failures in the various communications and Mswipe specifically excludes the same to the fullest extent permitted by law even if Mswipe shall have been advised in advance of the possibility of such damages.
19.10. Whilst Mswipe shall use its best endeavours to ensure that there is no breakdown/ interruption or any technical flaw in the Support Services, the Merchant shall not hold Mswipe responsible for any breakdown / interruption or any technical flaw in the Support Services and/or any consequent delay or failure in completion of payment instructions as a consequence thereof.
In case any Valid Charges of any Card Member are required to be credited back to such Card Member in accordance with these Terms and Conditions, the Merchant will not allow such Card Member to encash any cheque and/or the Merchant will not make any cash advances and cash refunds directly to such Card Member. Further, Mswipe will not be responsible or held liable for refund of such Valid Charges, by the Merchant directly to the Card Member. Merchant will not do cash refund for Card swiped or dipped at the establishment.
Where the Merchant proposes to change the nature of business or merchandise sold, which may result in the Merchant category to be changed in the books of the card schemes, the Equipment, Other Equipment and the Support Services shall be used only after such change is informed to Mswipe and acceptance thereof is conveyed in writing to the Merchant.
22.1. The Merchant shall indemnify, defend, and hold Mswipe and Mswipe Sponsor Bank and/or entities associated with Mswipe including its directors, employees and agents harmless from and against any liabilities, claims or demands (including the costs, expenses, dispute resolution costs and attorneys' fees on account thereof) relating to or which may result from any:
22.1.1. Breach by the Merchant of its obligations, including but not limited to those specified in these Terms and Conditions;
22.1.2. Any injuries to persons or damage to the Equipment, including theft, resulting from Merchant's acts or omissions;
22.1.3. Any claims brought against Mswipe arising in whole or in part out of claims brought against the Merchant involving, fraud, mishandling or misplacing Transaction Receipt during the term;
22.1.4. Any claim or proceeding brought by the customer against Mswipe or Mswipe Sponsor Bank and/or entitles associated with Mswipe in respect of any products of the Merchant;
22.1.5. Claim or proceeding brought against Mswipe or Mswipe Sponsor Bank and/or entitles associated with Mswipe in respect of any services or operations of the Merchant;
22.1.6. Any act of negligence or default by the Merchant or the Merchant's affiliates, agents, employees or licensees or the Merchant;
22.1.7. Any act or omission by the Merchant in respect of the sale of /payment for the products;
22.1.8. Any fines, penalties, interest on delayed payments imposed directly or indirectly on Mswipe and/or Mswipe Sponsor Bank and/or entities associated with Mswipe on account of the Merchant and/or the products.
22.2. Notwithstanding anything contained in these Terms and Conditions, in no event shall Mswipe and Mswipe Sponsor Bank and/or entities associated with Mswipe be directly or indirectly liable to the Merchant for any consequential, remote, direct, indirect, special, incidental or punitive loss, damages, compensation, costs, charges or expenses (including without limitation, loss of profits or revenues, loss of opportunity etc.) of any nature whatsoever by reason of termination of the arrangement between the Merchant and Mswipe.
22.3. The Merchant shall fully indemnify and keep indemnified Mswipe and/or Mswipe Sponsor Bank and/or entities associated with Mswipe from all damages, costs, legal fees, charges and expenses, and losses that Mswipe and/or Mswipe Sponsor Bank and/or entities associated with Mswipe may incur as a consequence of any failure whether temporary or permanent of the Support Services (as modified from time to time) provided by Mswipe Sponsor Bank and or any other entity associated with Mswipe to the extent such failure results in any wrongful or incorrect payment to the Merchant. The Merchant shall also undertake to make good and reimburse Mswipe and/or Mswipe Sponsor Bank and/or entities associated with Mswipe and/or the customer for any failure of the Support Services, to the extent of such failure results in any wrongful or incorrect payment to the Merchant.
22.4. In the event of Mswipe being entitled to be indemnified pursuant to these Terms and Conditions, Mswipe shall be entitled to accordingly and to such extent debit the payments to be made to the Merchant irrespective of any dispute that the Merchant may have in respect of such debit and shall be also entitled to collect the said money in any manner whatsoever.
23.1. This Application shall become effective on the Effective Date and shall remain in full force till either Party delivers to the other Party a written notice for termination of this Application as per provisions under this Application or if the Merchant declines to accept the Terms and Conditions electronically.
23.2. Mswipe can terminate this Application with or without reason whatsoever by providing an advance notice of seven (7) days. The Merchant can terminate this Application with reason by providing an advance notice of thirty (30) days.
23.3. Notwithstanding the above, Mswipe may terminate this Application with immediate effect and without notice in the event that the Merchant breaches any of the Terms and Conditions or fails to honour, observe, adhere to, abide by or comply with any directions or instruction issued by Mswipe and/or fails to honour, observe, perform or undertake any of its obligation under the Application and or these Terms and Conditions or if the chargeback in any month crosses 0.3 % of total transaction value of that month.
23.4. If there is a breach by the Merchant of its obligations or responsibilities under this Application, then Mswipe shall have the right to immediately suspend performance of its obligations hereunder till the time such breach is cured by the Merchant.
23.5. Where any refund claimed by Mswipe exceeds the amount due to the Merchant, the difference thereof shall be a debt due from the Merchant to Mswipe and be forthwith recoverable by action.
23.6. Further on termination of the arrangement between the Merchant and Mswipe, the Merchant shall immediately on such termination return the Equipment to Mswipe in good and working condition (save and except normal wear and tear). Merchant hereby agrees, acknowledges and authorizes Mswipe to recover the cost of the Equipment from ECS or valid standing instructions in the event the Merchant fails to return the Equipment upon termination of the arrangement between the Merchant and Mswipe or the Equipment returned are damaged.
24.1. In the event of the Merchant is not transacting with Mswipe on any Card issued by a particular card scheme for a continuous period of three (3) months, Mswipe reserves the rights to cancel the Merchant's affiliation in relation to that particular card scheme.
24.2. The Merchant hereby acknowledges that Mswipe may from time to time procure, extract or obtain credit related information about the Merchant from various credit bureaus including but not limited to Credit Information Bureau (India) Limited (CIBIL). The Merchant hereby agrees, authorizes and permits Mswipe to procure, extract and or obtain such information without prior intimation to the Merchant.
24.3. Merchant shall follow the processes and procedures as laid down by Mswipe for resolving queries/issues concerning the Customer, Valid Card, the Equipment, Support Services and telecom services. Merchant acknowledges receipt of such procedures, processes and relevant contact numbers for query resolution.
24.4. If the Merchant fails to comply with these Terms and Conditions or in the event the Equipment provided by Mswipe is damaged or stolen then the Merchant shall immediately pay the amounts mentioned in Clause 12.5, as applicable, to Mswipe for the Equipment. Further the noncompliance of these Terms and Conditions by the Merchant shall be construed as material breach of these Terms and Conditions and without prejudice to other rights of Mswipe under these Terms and Conditions, the Merchant shall immediately return the Equipment in working condition with all accessories and packaging on demand by Mswipe.
25.1. Governing Law And Dispute Resolution
This Application shall be governed by and construed in accordance with the laws of India. All disputes under this Application shall be referred to arbitration by sole arbitrator appointed by Mswipe. The proceedings of such arbitration shall be governed by the provisions of the Arbitration and Conciliation Act of 1996 (as amended from time to time) and shall be held at Mumbai, India. The Parties shall be entitled to apply to the competent courts for interim or interlocutory relief in respect of such arbitration. Subject to the above, competent courts in Mumbai, India shall have exclusive jurisdiction over any of the disputes arising out of or in connection with this Application.
25.2. Force Majeure
Neither Party shall be liable to the other nor shall be in default if such Party is adversely affected due to circumstances beyond its reasonable control such as applicable laws, natural calamities, acts of God, threat of wars, riots, strikes, acts of Government, shortages of materials, industrial emergencies, etc.
The Merchant agrees and undertakes to provide all such true and correct documents including but not limited to proof of identification, declaration in case of proprietorship concern, address proof etc. as and in the form required by Mswipe at the time of submitting this Application and from time to time.
These Terms and Conditions (along with the Application) constitute the entire agreement between the parties with respect to the subject matter herein and supersedes all prior arrangements between the parties regarding such subject matter. The arrangement between Mswipe and the Merchant is non-exclusive and on principal to principal basis and nothing contained herein creates any agency or partnership or joint venture relationship between the Mswipe and the Merchant. The Merchant shall not assign or transfer any of its rights and liabilities to any third party. No failure on the part of Mswipe to exercise or delay in exercising any of its rights will be deemed a waiver thereof, nor will any single or partial exercise preclude any further or other exercise of such or any other right. Any notices/communication to be given by a party to the other shall be sent by registered letter or email to the other party at the address/email ID last notified by such party. However any notice or communication sent by Mswipe to the Merchant via email or message on the registered email or registered mobile number or of the Merchant or via or in - app notification shall considered a valid written notice and shall be deemed to have been duly served on the day such email, message or notification is sent. If any part of these Terms and Conditions is unenforceable because of any rule of law, public policy or for any other reason, such unenforceable provision shall be severed from these Terms and Conditions, and the remaining provisions of these Terms and Conditions shall remain in full force and effect. The provisions of these Terms and Conditions which by its nature survives shall survive the termination of the arrangement between the Merchant and Mswipe.