Terms and Conditions of Merchant Service Agreement

Brainy Lions Online Services (P) Ltd.

The Circle It Up services provided by Brainy Lions Online Services (P) Ltd. are mobile commerce services which shall enable a Merchant to avail of a payment facility through a mobile application devised by Brainy Lions Online Services (P) Ltd. using mobile phones for assisting the Merchant’s Customer in making payments of the amount/s payable by the Customer to Merchant for the products or services purchased by the Customer from Merchant.

1.  DEFINITIONS

For the purpose of this Agreement, the following words and phrases shall have the meaning assigned to them under this Article.

  1. “Application” means the mobile application “Circle It Up” devised by Brainy Lions Online Services (P) Ltd. used for communication of payment instructions from Customers for the Products and which forms part of the Facility extended to Customers.
  2. “Customer” means any Customer of Merchant who desires to purchase services or products from Merchant and makes payment for the same using the Application on the specified terms and conditions.
  3. “Chargeback” means mobile payment transaction that is billed back to Merchant. Brainy Lions Online Services (P) Ltd. after the payment has been settled and which is subsequently initiated by the card issuing Financial Institution/ Bank for any disputes relating to the transaction, including but not limited to disputes regarding Product delivery failure or Product dissatisfaction or suspect transactions.
  4. “Effective Date” means the date set forth on the first page of this Agreement.
  5. “Facility” means the payment services being provided by Merchant and  to the Customers to make payments to Merchant for Products purchased by Customer using the Application. A process flow of the aforesaid Facility offered to the Customers is as described in Schedule A hereto.
  6. “Intellectual Property” means all patents, trademarks, logos, permits, service marks, brands, trade names, trade secrets, proprietary information and knowledge, technology, computer programs, databases, processes, copyrights, licenses, franchises, formulae, designs, rights of confidential information and all other intellectual property of both Parties hereto.
  7. “Circle It Up Services” shall mean and include the development and provision of a mobile application based credit card processing service enabling the faster processing of mobile payments made by Customers to Merchant using the Payment Gateway.
  8. “Main Agreement” means the Agreement entered into between Brainy Lions Online Services (P) Ltd. and the Merchant.
  9. “Payment Amount” means the total amount (inclusive of taxes, charges, interest etc.) payable by a Customer to Merchant.
  10. “Payment Instructions” means the instructions given by the Customer through the Facility, to Brainy Lions Online Services (P) Ltd. for payment of the Payment Amount;
  11. “Products” means all the goods, services and products, which are offered for sale /rendered by Merchant to Customers from time to time.
  12. “Payment Gateway” means the payment gateway as shall be provided to the Customers by Brainy Lions Online Services (P) Ltd. from time to time for making payments for the Products purchased by the Customers using the Application.

2.  PAYMENT TO THE MERCHANT

  1. Payments on Proof of Delivery: Subject to the provisions of the Main Agreement, Brainy Lions Online Services (P) Ltd. agrees to pay the Merchant the Payment Amount less the Transaction Fees for all Products sold by the Merchant using the Brainy Lions Online Services (P) Ltd. Services, subject to the proof of Delivery being submitted to Brainy Lions Online Services (P) Ltd. and all inquiries, disputes, and refunds processed on account of Merchant’s transactions during the period.
  2. Rejection of Payment: Brainy Lions Online Services (P) Ltd. may reject payment in respect of orders where:
    1.         i.         The Merchant has not obtained a necessary authorization or the facility providers or the Banks reject payment;
    2.        ii.         Any transaction which the Customer refuses to pay because the Product was not as promised or was defective or was not delivered;
    3.       iii.         The card-issuing bank advises that the credit card number/debit card number does not match any number on file;
    4.      iv.         Payment in respect of the order or the relevant installment of the purchase price has already been made.
  3. Where Brainy Lions Online Services (P) Ltd. is entitled to reject payments in respect of a transaction or demand a refund, Brainy Lions Online Services (P) Ltd. shall be entitled to set off and deduct from any payment due to the Merchant, and in doing so Brainy Lions Online Services (P) Ltd. may:-
    1.         i.         debit the Merchants Account held with Brainy Lions Online Services (P) Ltd., forthwith; and/or;
    2.        ii.         deduct the outstanding amount from subsequent credits to the Merchants Account, and/or;
    3.       iii.         if there is insufficient funds available therein; claim from the Merchant the amount paid to the Merchant by Brainy Lions Online Services (P) Ltd. in respect of the relative sales; which the Merchant on receipt of the claim from Brainy Lions Online Services (P) Ltd. undertakes forthwith to pay to Brainy Lions Online Services (P) Ltd., the amount of the refund to the extent to which such funds proves inadequate.
  4. If Brainy Lions Online Services (P) Ltd. or the facility providers or the Banks suspects, on reasonable ground, that the Merchant has committed a breach of this agreement or dishonestly or fraud, Brainy Lions Online Services (P) Ltd. shall be entitled to suspend all payment under this agreement to the Merchant pending enquiries by Brainy Lions Online Services (P) Ltd..
  5. Time of making payments: Payment of Payment Amount in respect of a successful transaction shall be made as per the Payment schedule agreed to by the Merchant and Brainy Lions Online Services (P) Ltd. and as per the guidelines issued by RBI from time to time. It is clarified that under no circumstances shall Brainy Lions Online Services (P) Ltd. be liable to the Merchant for any interest or any other amount whatsoever on collections made by Brainy Lions Online Services (P) Ltd. or otherwise howsoever.

3.  OBLIGATIONS OF MERCHANT

Merchant shall be responsible:

  1. to provide all necessary technical assistance to get the Brainy Lions Online Services (P) Ltd. Service live;
  2. to offer Brainy Lions Online Services (P) Ltd. branding for all communications regarding the Brainy Lions Online Services (P) Ltd. Service;
  3. to comply with all laws and regulations that are applicable to the business conducted by Merchant.
  4. Merchant shall enter into arrangements with their Customers, for providing Brainy Lions Online Services (P) Ltd. Services to the Customers as it may deem appropriate.
  5. Merchant shall ensure that they carry out all verifications of the Customers as may be required by law.
  6. Merchant shall duly fulfill all Customer orders in accordance with the instructions of the Customer and deliver all Products to Customers as expeditiously and without delay.
  7. Merchant shall ensure that all licenses and registrations required by them are in full force and effect to enable them to carry on their business.
  8. The Merchant shall obtain authorization from Brainy Lions Online Services (P) Ltd. before delivering any Order.
  9. Prices to be charged by the Merchant shall be made explicit to the customer.
  10. The Merchant shall provide a commercially reasonable level of customer support to Customers. Such support shall include appropriate notice to Customers of (i) a means of contacting Merchant in the event the Customer has questions regarding the nature or quality of the Products that the Merchant offers for sale and (ii) procedures for resolving disputes.
  11. Merchant shall ensure confidentiality of all information submitted by the Customers. Merchant shall ensure that there are proper encryption and security measures to prevent any unauthorized access to hacking into the information of the Customers and other data.
  12. Merchant shall not carry out any activity, which is banned or illegal or immoral and shall comply with all applicable laws and regulations in each applicable.
  13. Merchant shall ensure accuracy and correctness in performing all orders placed by Customers.
  14. Merchant shall take all precautions as may be necessary to ensure that there is no breach of security and that the integrity of the link between Merchant and Brainy Lions Online Services (P) Ltd. and the payment mechanism is maintained at all times during the term of this Agreement. Merchant shall take proper encryption and security measures to prevent any hacking into the information of Merchant. In the event of any loss being caused as a result of the link being breached or as a consequence of the link being improper or being in violation of the provisions of this clause, the loss shall be to the account of Merchant.
  15. Merchant shall bear and be responsible for the payment of all relevant taxes (including any applicable withholding taxes) due upon the services related to the transactions.
  16. In the event of any Customer complaining of any deficiency in Products/ Service, Merchant shall take such measures as may be required to rectify the same. In the event Merchant is unable to rectify the same, Merchant shall forthwith compensate the Customer for any loss caused to the Customer.
  17. Merchant shall not describe itself as agent or representative of Brainy Lions Online Services (P) Ltd.; nor make any representations to Customers or any third parties or give any warranties which may require Brainy Lions Online Services (P) Ltd. to undertake to or be liable for, whether directly or indirectly, any obligation and/or responsibility to Merchant or Customers
  18. to make payment to Brainy Lions Online Services (P) Ltd. of the consideration as set out in this Agreement

4.  DISCLOSURE OF CREDIT CARD INFORMATION

The Merchant shall not, without the prior written consent of Brainy Lions Online Services (P) Ltd. and the Banks, disclose the identity of any cardholder or any information whatsoever relating to any transactions to any other person or otherwise use any information acquired by it in relation to the cardholders other than for the purposes of this Agreement. Provided however that any information required to be disclosed by any order of a court or regulatory authority of competent jurisdiction may be disclosed to such court or regulatory authority to the extent specified in the order.

5.   CUSTOMER DISPUTES

Brainy Lions Online Services (P) Ltd. shall not be responsible for any non-delivery of the Products to the Customer of Merchant. Any and all disputes with the Customer, including delivery, non-delivery and delay in delivery of the Products or otherwise will be dealt with by and between Merchant and the Customer directly, and Brainy Lions Online Services (P) Ltd. shall not be a party to such disputes.

Brainy Lions Online Services (P) Ltd. shall not be a party to the Agreement between the Customers and Merchant in any manner whatsoever. All contracts are directly between Merchant and the Customers.

Merchant shall be responsible for any miscommunication or incorrect Customer information that may be provided to Brainy Lions Online Services (P) Ltd. at the time of enabling the services for the Customers of Merchant.

Merchant shall keep Brainy Lions Online Services (P) Ltd. indemnified from any from and against any and all liability (including but not limited to liabilities, judgments, damages, losses, claims, costs and expenses,) or any other loss that may occur, arising from or relating to any claim, suit or proceeding brought against Brainy Lions Online Services (P) Ltd. by a Customer for reasons including, but not limited to delivery, non delivery or delay, deficiency or mistake in respect of the Products sold to them by Merchant.

6.   ACCEPTANCE OF CHARGES WITH RECOURSE

  1. The Merchant agrees that payment made in respect of any Order, which proves to be uncollectible from the Customer and in respect of which the Issuing Bank raises a claim on Brainy Lions Online Services (P) Ltd., shall be the financial responsibility of the Merchant. The Merchant agrees to the non-payment of such order or the charging back of such uncollectible charge as the case may be without any demur or protest, dispute or delay. The Merchant further agrees, confirms, undertakes and guarantees that the non-payment of such order or the charging back of such uncollectible charge as the case may be, shall be the personal responsibility / liability of all the promoters and directors in their individual capacity if the Merchant is a Limited Company and / or shall be the personal responsibility / liability of all the partners in their individual capacity, if the Merchant is a partnership firm. The decision of Brainy Lions Online Services (P) Ltd. / bank shall be final and binding. Without prejudice to the provisions of the aforesaid, uncollectible payments shall include
    1. Any payments involving the alleged forgery of the Customer’s Card Number, mobile phone number and PIN, or that of the Card Number, Card Expiry date, Customer Name, Transaction amount, etc. of whatsoever nature. In such an event, Brainy Lions Online Services (P) Ltd. shall not be required to check the veracity of any alleged fraud and shall be entitled to rely upon the allegation made by the Customer.
    2. Any payment which the Customer refuses to honour or demands a refund of because the Product purchased from the Merchant was not as promised or was defective, deficient, incomplete and /or unsatisfactory for any reason whatsoever
    3. Any charge/debit which is a suspect charge.
    4. Any charge/debit made on the card other than a Valid Card.
    5. Any charge/debit made for undelivered merchandise or services.
    6. Any charge/debit arising out of any alleged hacking breach of security or encryption (if any) that may be utilized by Brainy Lions Online Services (P) Ltd., the facility providers and Banks from time to time.
  2. The Merchant hereby authorises Brainy Lions Online Services (P) Ltd. to appropriate the Merchant’s current balance amounts with Brainy Lions Online Services (P) Ltd. to the extent of the aforesaid uncollectible amounts and any other moneys due to Brainy Lions Online Services (P) Ltd. by the Merchant in terms of this Agreement in respect of a Customer Charge without any demur, protest, dispute or delay. If there is insufficient funds available therein; the Merchant shall on receipt of the claim from Brainy Lions Online Services (P) Ltd. undertakes forthwith without any demur, protest, dispute or delay to pay to Brainy Lions Online Services (P) Ltd., the amount of the refund to the extent to which such funds proves inadequate. Without prejudice to any other of Brainy Lions Online Services (P) Ltd.’s rights and remedies, in the event that the Merchant does not make any payment to Brainy Lions Online Services (P) Ltd. by its due date or on demand as required under this Agreement, Brainy Lions Online Services (P) Ltd. shall be entitled to charge daily interest on such overdue amount from the due date of demand (as the case may be) until the date of payment in full

7.  INDEMNITY

  1. The Merchant hereby undertakes and agrees to indemnify Brainy Lions Online Services (P) Ltd. and hold Brainy Lions Online Services (P) Ltd. harmless and keep Brainy Lions Online Services (P) Ltd. at all times fully indemnified and held harmless from and against all actions, proceedings, claims, liabilities (including statutory liability), penalties, demands and costs (including without limitation, legal costs of Brainy Lions Online Services (P) Ltd.), awards, damages, losses and/or expenses however arising directly or indirectly as a result of:
    1. any breach or non-performance by the Merchant of any of the Merchant’s undertakings, warranties, covenants, declarations or obligations under this Agreement; or
    2. any claim or proceeding brought by the Customer or any other person against Brainy Lions Online Services (P) Ltd. in respect of any services offered by the Merchant; or
    3. any act, neglect or default of the Merchant’s agents, employees, licensees or customers; or
    4. any loss or liability arising to Brainy Lions Online Services (P) Ltd.; or
    5. any claim by any other party against Brainy Lions Online Services (P) Ltd. arising from sub-clause (a), (b),(c) or (d) above.
  2. The Merchant shall also fully indemnify and hold harmless Brainy Lions Online Services (P) Ltd. against any loss, costs, expenses, demands or liability, whether direct or indirect, arising out of a claim by a third party that the Merchant’s services infringes any intellectual or industrial property rights of that third party.
  3. The Merchant shall also fully indemnify and keep indemnified Brainy Lions Online Services (P) Ltd. from all loss that Brainy Lions Online Services (P) Ltd. may incur as a consequence of any failure whether temporary or permanent of the Payment Mechanism (as modified from time to time).
  4. The indemnities under this Article are in addition to and without prejudice to the indemnities given elsewhere in this Agreement and all the indemnities provided herein shall survive the termination of this Agreement.

8.   MAINTENANCE OF THE FACILITY

  1. Both the Parties agree that each Party shall be responsible for its own costs and be responsible for providing and maintaining all necessary equipment and facilities at their respective ends for the purpose of providing the Facility. Each Party shall co-operate with the other Party and render assistance to it for connecting the respective systems of the Parties. Each Party shall own the Intellectual Property, if any, generated by it in the discharge of its obligations under this Clause. Nothing contained herein shall be construed as granting or implying any transfer of rights (including license rights) from one Party to the other Party in the Intellectual Property owned prior to this Agreement by each of the Parties respectively.
  2. In case the Facility becomes inaccessible due to any break-down on account of reasons directly attributable to a Party hereto, that Party shall apprise the other Party of such inaccessibility / break down and shall use commercially reasonable efforts to rectify /fix the problem at its own cost.

9.   LIMITATION OF LIABILITY

  1. Under no circumstances shall Brainy Lions Online Services (P) Ltd. be liable to the Merchant or the Customer for indirect, incidental, consequential, special or exemplary loss or damages arising from or in connection with this Agreement, whatsoever or howsoever caused arising directly or indirectly in connection with the Facility, including without limitation any: –
    1. loss of data;
    2. interruption or stoppage to the Customer’s access to and/or use of the Brainy Lions Online Services (P) Ltd. Services;
    3. any consequential loss or damage or loss of profit, business, revenue, goodwill or anticipated savings; arising out of the performance of the Brainy Lions Online Services (P) Ltd. Services or otherwise.
  2. Notwithstanding anything in this Agreement, the liability of Brainy Lions Online Services (P) Ltd. shall not exceed the (a) total amount of the transaction which is in dispute; or (b) the net revenue earned by Brainy Lions Online Services (P) Ltd. from the Merchant during the month previous to the month in which the claim arises; whichever is lesser.

10.  NO WARRANTY

  1. Brainy Lions Online Services (P) Ltd. disclaims all warranties, express or implied, written or oral, including but not limited to warranties of merchantability and fitness for a particular purpose.
  2. Brainy Lions Online Services (P) Ltd.’s sole obligation and the Merchant’s sole and exclusive remedy in the event of interruption to the Facility or loss of use and/or access to Facility, shall be to use all reasonable endeavors to restore the Facility as soon as reasonably possible.
  3. Without prejudice to any other provision of this Agreement, Brainy Lions Online Services (P) Ltd. does not warrant that:
    1. The Brainy Lions Online Services (P) Ltd. Services, the facility providers facilities and the Bank’s payment mechanism will be provided uninterrupted or free from errors or that any identified defect will be corrected; or
    2. is free from any virus or other malicious, destructive or corrupting code, program or macro; or
  4. For the avoidance of doubt, in no event shall Brainy Lions Online Services (P) Ltd. be liable to the Merchant or any other third party for any of the following:
    1. amounts due from Customer in connection with any service obtained by the Customer at the Merchant’s ;
    2. any applicable taxes and Government levies;

11.  FORCE MAJEURE

  1. Notwithstanding anything contained in this Agreement, the Parties shall not be liable for any failure to perform any of its obligations under this Agreement if the performance is prevented, hindered or delayed by a Force Majeure event (defined below) and in such case its obligations shall be suspended for so long as the Force Majeure Event continues). Each Party shall promptly inform the other of the existence of a Force Majeure Event and shall consult together to find a mutually acceptable solution.
  2. “Force Majeure Event” means any event due to any cause beyond the reasonable control of the Party, including, without limitation, unavailability of any communication system, sabotage, fire, flood, explosion, Act of God, civil commotion, strikes or industrial action of any kind, riots, insurrection, war, acts of government, computer hacking, unauthorized access to computer data and storage devices, computer crashes etc.

12.  GOVERNING LAW JURISDICTION

The laws of India shall govern this Agreement. The Parties agree to submit to the exclusive jurisdiction of the Courts located in Mumbai, India as regards any claims or matters arising under or in relation to these terms and conditions.

13.  MISCELLANEOUS

  1. Brainy Lions Online Services (P) Ltd. reserves the right to vary any of the terms and conditions contained herein by posting the revised terms on Brainy Lions Online Services (P) Ltd.’s website without notice to the Merchant.
  2. No failure or delay by Brainy Lions Online Services (P) Ltd. in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law
  3. Merchant may not assign, in whole or in part, the benefits or obligations of this Agreement to any other person without the prior written consent of Brainy Lions Online Services (P) Ltd..
  4. Unless otherwise provided herein, all notices or other communications under or in connection with this Agreement shall be given in writing and may be sent by personal delivery or post or courier or facsimile to the address of the Party in the Main Agreement. Any such notice or other communication will be deemed to be effective if sent by personal delivery, when delivered, if sent by post, two days after being deposited in the post and if sent by courier, one day after being deposited with the courier, and if sent by facsimile, when sent (on receipt of a confirmation to the correct facsimile number).
  5. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all prior written agreements, understandings and negotiations, both written and oral, between the Parties with respect to the subject matter of this Agreement. No representation, inducement, promise, understanding, condition or warranty not set forth herein has been made or relied upon by any Party hereto.
  6. Neither this Agreement nor any provision hereof is intended to confer upon any Person other than the Parties to this Agreement any rights or remedies hereunder.
  7. In connection with this Agreement, as well as all transactions contemplated by this Agreement, Merchant agrees to execute and deliver such additional documents and to perform such additional actions as may be necessary, appropriate or reasonably requested to carry out or evidence the transactions contemplated hereby.
  8. The invalidity or unenforceable of any provisions of this Agreement in any jurisdiction shall not affect the validity, legality or enforceability of the remainder of this Agreement in such jurisdiction or the validity, legality or enforceability of this Agreement, including any such provision, in any other jurisdiction, it being intended that all rights and obligations of the Parties hereunder shall be enforceable to the fullest extent permitted by law.
  9. The captions herein are included for convenience of reference only and shall be ignored in the construction or interpretation hereof.
  10. The Agreement is on a principal-to-principal basis between the Parties hereto. Nothing contained in this Agreement shall be construed or deemed to create any association, partnership, or joint venture or employer-employee relationship or principal-agent relationship in any manner whatsoever between the Parties.