- DEFINITIONS
- “elite Unified Payment Portal” or “eUPP” shall mean the facilities, solutions and services provided by Apar to Customer, which allow authorization and settlement facilities in respect of payment instructions initiated by Users for fees payment. Apar’s Payment Solution includes facilitating payment through either (a) net banking (b) Online Debit / Credit Card, (c) such other future payment method(s) as may be approved by applicable laws and enabled by Airpay.
- “Authentication” shall mean the process by which a Customer and Customer identification is authenticated in payment mechanism.
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“Authorisation” shall mean the process by which eUPP sends the payment request to bank / financial institutions and on receipt of payment response confirms to the Users whether the User has the requested Credit limit / funds (as the case may be) to make payment for the transaction with the Customer.
- “User or users” means any person enabled by the “Customer” to use Apar’s eUPP fee payment services.
- “Effective Date” means the date of execution of this Agreement as first above mentioned.
- “Per Transaction Cost” (PTC) shall mean the fees/service charges payable to Apar by Customer or Users for facilitating payment processing as hereinafter provided. PTC and fees are individually or collectively also referred to as ‘services charges’.
- “Products” means services / solutions offered by eUPP to the Customer.
- “Transaction Amount” shall mean the total amount payable by the Users / students of the Customer when paying fees for the services/courses provided by the Customer - as per the fees structure issued by Customer to the Users/students which may be inclusive of all taxes, service tax and such other statutory dues that may be applicable and imposed by the Customer and/or the Government. The final Transaction Amount shall include the PTC & taxes as explained above.
- “Settlement Amount” shall mean the transaction amount less the PTC and any other charges / applicable taxes.
- “Valid Card“ shall mean an unexpired card issued by any institution designated to issue Visa, Master card, Maestro, Amex or such other card as may be approved from time to time provided that the card is not listed in a current hotlist or warning or restricted card bulletins or notices and bears the signature of the User whose name is embossed on the card.
- “Valid / Active Account” shall mean an account assigned by the bank or financial institutions as may be approved by applicable laws from time to time to a Customer for financial transactions, whose name is registered with such bank or financial institution for the stated account.
- SCOPE OF THE AGREEMENT:
- The Customer is engaged in the business mentioned in Annexure 'A' of the agreement and wishes to allow its Users to pay the consideration of the fees by way of eUPP. The Customer has agreed to avail the services of Apar, which facilitates necessary infrastructure to enable the Customer to let its Customers make the payment through selected mode on eUPP
- Subject to the declarations, covenants, undertakings and indemnities of the Customer hereinafter contained and subject to the Valid Account and / or Valid Cards, Apar agrees to accept instructions from Customer & its Users duly authorized and authenticated by the Customer and it’s users through the eUPP specified in Annexure ‘A’ of the agreement to accept funds from the Users and transfer the Settlement Amount to Customer’s Account which will be provided by the Customer. eUPP from Apar processes the payments through an exclusive partnership with authorized payment gateway ‘Airpay’.
- In consideration of the rendering of the said services, the Customer shall pay to Apar the PTC as mentioned in Annexure 'B' of the agreement. Apar shall be entitled to, on mutual consent from the Customer, to modify the charges/fee payable by Customer from time to time. All such additions / modifications shall be binding on the Customer.
- COVENANTS OF APAR:
Apar hereby declares, assures and undertakes the covenants as under:
- Apar shall ensure that all licenses and registrations required for processing the transactions are in full force to enable Customer to carry on using the services of eUPP.
- Apar shall convey to the Customer and Users the information about the success or failure of the payment authorization.
- Apar shall provide the Customer with a facility to enable the Customers to query the status of the Transactions, as well as a facility for interacting with Apar for any questions, requests, cancellations, etc.
- In the event of any Customer complaining of any issue in the services of eUPP, Apar shall take such measures as may be reasonably required to rectify the same.
- Customer shall use Apar’s Payment System eUPP only for collecting Student’s fees unless agreed for any other fees or services. Customer shall not use Apar’s Payment System eUPP in any manner or in furtherance of any activity, which constitutes violation of any law or regulation or which may cause Apar to be subject to investigation, prosecution or legal action.
- In the event of any claim/dispute from the Users, Apar shall furnish to Customer forthwith upon request, access to information regarding the proof of transactions, receipts, or other records of the User (available with eUPP) pertaining to the claim/dispute by the User. Apar shall retain all such records for a period of 1 year for schools and for the student term which is normally 3 -4 years in case of Universities from the relevant date of transaction. Customer shall be entitled to inspect the records and other data relating to the transaction claim/dispute at any time whatsoever, within 3 working days from the date of Requisition to Apar.
- Apar shall duly fulfill all requirements in accordance with the agreed instructions between the Parties.
- COVENANTS OF CUSTOMER:
- Customer shall carry out all verifications for the Users as may be required on an independent basis without any liability on Apar.
- Customer has submitted certain details pertaining to its incorporation and business, as mentioned in Annexure ‘A’ of the agreement. Customer warrants authenticity of all the details produced by it herewith and any and all information stated in the document and in this Agreement are true and correct. Customer agrees that in the event of any flaw or discrepancy in the covenants & declarations of Customer and its details, Apar reserves the right to terminate this Agreement forthwith, without any liability towards Customer & Users. Customer further also agrees that all or any penalty levied on it by any financial institution / government / regulatory & statutory authority, shall be solely borne by the Customer.
- Customer shall be responsible for the accuracy of all information and/or validity of the fees structure and any other charges and/or other information relating to the Fees offered by Customer.
- While responding and interacting with Apar the Customer and Users shall adopt such standards as may be stipulated by Apar from time to time.
- Customer shall duly fulfill all requirements in accordance with the agreed instructions between the Parties.
- Customer agrees to deliver all required information as part of data collection and/or complete/execute/provide all required as expeditiously as possible and without any delay.
- Customer agrees to take on the risk associated with the transaction with respect to any losses incurred due to Customer repudiation, revocation etc. Customer shall remedy the issues occurred due to wrong data provided to Apar or wrong usage of the system, without any recourse to Apar.
- Customer assures, undertakes, and guarantees that no transactions shall be processed through Apar’s Payment System eUPP for purchase of products mentioned in Annexure ‘C’ of the agreement
- Customer maintains the direct relationship with the users and is responsible for: (i) acquiring appropriate consent to submit Charges through the Payment Processing Services on their behalf; (ii) providing confirmation or receipts to users for each Charge; (iii) verifying users’ identities; and (iv) determining a user’s eligibility and authority to complete Transactions. However, even authorized Transactions may be subject to a dispute. Apar shall not be responsible for or liable to the customer for authorized and completed Charges that are later the subject of a dispute, refund, or reversal, are submitted without authorization or in error, or violate any Laws.
- REFUND PROCEDURE:
- In the event, the User/financial institution requests Customer for a refund on any grounds whatsoever then Customer shall be liable to refund such amount to the financial institution. Apar shall not be liable to refund the transaction fees/PTC once the transaction has been made.
- In cases where Refund capability is specifically asked for by the Customer, Apar shall provide the capability only till the Amount has not been settled to the Customer’s Account. The Refund for the settlement amount will happen through Airpay. Once the amount has been settled to Customer’s Account, Apar shall not be responsible for any refund. It should be the sole responsibility of the Customer in such cases.
- CHARGE BACK:
Apar shall be entitled to refuse to make total or partial payment to the Customer and its Users or in case the payment has already been made by Apar, Apar shall be entitled to debit the Customer’s Account with such amount or to seek immediate reimbursement from the Customer in any of the following situations:
- The transaction is unlawful or unenforceable for any reason
- Any information presented electronically to Apar in respect of the transaction is not received in accordance with Apar’s requirements / policies.
- The Fee Items covered by the transaction are not right or the transaction or part thereof, is validly cancelled or terminated by a Customer or User or if the Customer or User fails to provide the Fee Structure or related User details according to the Customers Policies.
- The Customer or Users disputes fee item covered by the transaction.
- The Customer or Users dispute or deny the transaction, or the applicability of the fee item covered by the transaction with reasons.
- Transaction is posted more than once to Customer’s account.
- The transaction is doubtful or erroneously paid to the Customer;
- Any other event or circumstance, which Apar shall from time to time notify to the Customer in writing,
- CHARGE BACK REVERSAL:
In the event the Customer is able to prove that the fee structure, related fee items, fee amount and related User details are properly provided to Apar and that the same do not fall under the various categories of Charge Back, Apar shall be responsible to refund to the Customer the amount deducted by Apar as Charge Back.
- CARDHOLDER DATA AND SECURITY
- Security: Apar shall ensure that there are proper encryption and security measures on eUPP to prevent any hacking into the information pertaining to transactions contemplated under this Agreement. It shall be the obligation of the Customer and the Users to verify the IP address of the Apar product eUPP in the return/confirmation message URL.
- Security Requirements: Apar declares, assures and undertakes to abide by the relevant security standards/ regulations/ requirements/guidelines which would be applicable to the conduct of the transactions contemplated under this Agreement, including, without limitation, (a) regulatory provisions as may be applicable from time to time, (b) security measures and resultant hardware/ software upgrade consequent upon upgrade of Apar’s systems and procedures with a view to ensuring security of transactions, (c) maintenance, protection, confidentiality and such other requirements with respect to transaction data as may be imposed by any regulatory or standards authority including pursuant to PCI DSS.
- Personal Data Protection: Apar shall ensure that User personal data like account password or card details is secure as per the various regulatory provisions that may be applicable from time to time.
- APAR PAYMENT ASPECTS
The partner bank(s), payment service providers and Apar may from time to time upgrade, modify, alter, or perform maintenance services on eUPP (hereinafter collectively referred to as “Maintenance Services”). During the performance of such Maintenance Services, Apar shall use its best endeavor and work with relevant partner bank(s) / vendors/ service providers, to ensure that the processing mechanism is available for utilization as soon as may be possible.
With a view of enhancing the security of transactions, Apar shall be entitled to use hardware, software, and/or such other equipment as it deems necessary or appropriate for the provision of eUPP and the Customer agrees to comply with the directions and/or instructions issued by Apar in respect of the use of such hardware, software and/or equipment. The Customer also agrees to suitably modify/upgrade its systems to comply with the standards of the eUPP (then in force).
- TERMS OF PAYMENT
- Subject to the terms of this agreement, Apar shall pay the Customer a Settlement Amount for each transaction processed by eUPP on behalf of the Customer, pursuant to this agreement. The said payment shall be credited to Customer’s account as provided in Annexure ‘A’ of the Agreement.
- Payment by Apar shall be without prejudice to any claims or rights which Apar may have against the Customer and its Users and shall not constitute any admission by Apar as to the performance by the Customer of its obligations under this agreement and the amount payable to the Customer.
- Apar shall be entitled to deduct from any Settlement Amount due to the Customer in case of:
- any access or erroneous payment made by Apar to Customer due to computational errors or otherwise; and
- any other sums due from or payable by the Customer to Apar, including without limitation any charge backs herein;
- any commissions and charges payable to Apar.
- If Apar suspects, on reasonable ground, that Customer has committed a breach of this Agreement or has acted dishonestly or fraud has been committed against Apar or the Users or has in connivance with any other person done the same or assisted in the same, Apar shall be entitled to suspend all payment services under this Agreement to the Customer, pending enquiries.
- Withholding the Payment:
- MAINTENANCE OF APAR PAYMENT PLATFORM eUPP
- Apar may from time to time upgrade, modify, alter, or perform maintenance services on eUPP (hereinafter collectively referred to as “Maintenance Services”)
- Apar shall not be liable for any losses, damages and/or expenses incurred by the Customer in respect of any loss of access and/or use or interruption in the use of the eUPP System due to Maintenance Services being performed on the same subject to prior 24 (twenty-four) hour notice to the Customer.
- DISCLAIMERS AND LIMITATION OF LIABILITY:
- Apar shall not be responsible for any disputes arising out of the eligible fee & respective transaction fee collected from the Customer and its Users. All disputes regarding the same will be dealt with by and between Customer and the Users directly and Apar shall not be a party to such disputes, nor shall be responsible or liable for consequences of such disputes.
- In case of a “charge back”, repudiation of any transaction by a Customer, or a request for refund by any Customer for any reason whatsoever, Apar shall be entitled to cancel Authorization and refuse to make any payments to Customer. If there are insufficient funds available in the Customer’s account maintained with Apar; the Customer shall on receipt of the claim from Apar undertakes forthwith to pay to Apar, the amount of the refund/ charge back/ repudiation to the extent to which such funds prove inadequate within a period of 7 days from the date of claim.
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No Consequential Damages
Apar shall not be liable to Customer for any loss or damage caused arising directly or indirectly in connection with eUPP, including without limitation any: -
- Loss of data;
- Interruption or stoppage to the Customer’s access to and/or use of eUPP services.
- Any consequential loss or damage or loss of profit, business, revenue, goodwill, or anticipated savings arising out of the performance of the services or otherwise.
- NO WARRANTY
- Apar denies all warranties, express or implied, written, or oral, including but not limited to warranties of Customer’s ability and fitness for a purpose. Customer acknowledges that eUPP shall not be uninterrupted or error free.
- Apar’s sole obligation and Customer’s sole and exclusive remedy in the event of interruption to eUPP services or loss of use and/or access to eUPP shall be to use all reasonable endeavors to restore the services and/or access to eUPP, as soon as reasonably possible.
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c) Though it shall be the endeavor of Apar to maintain its services / solution / software / platform provided to Customer on best effort basis, Apar do not warrant that: -
(i) eUPP will be provided uninterrupted or free from errors or
(ii) is free from any virus or other malicious, destructive, or corrupting code, program, or macro.
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In no event shall Apar be liable to Customer or any other third party for any of the following:
(i) amounts due from Customer in connection with any fees paid by the User to the Customer;
(ii) any applicable taxes and Government levies applicable to Customer, Vendors, Users or and third party;
- INDEMNITY
- Customer hereby undertakes and agrees to indemnify always and hold harmless Apar from and against all actions, proceedings, claims, liabilities (including statutory liability), penalties, demands and costs, awards, damages, losses and/or expenses however arising directly or indirectly because of:
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any breach or non-performance by the Customer or of any of Customer’s
undertakings, warranties, covenants, declarations, or obligations under this Agreement; or
- any claim or proceeding brought by Customer’s Users, vendors, or any other person against Apar in respect of any fee collected by the Customer; or
- any act, neglect or default of Customer’s agents, employees, licenses, or Customers; or
- If Customer’s fees collection infringes any third-party rights including intellectual or Proprietary rights of that third party.
- To exercise such Indemnity, Apar shall be entitled to debit Customer's Account with Apar.
- FULL RECOURSE OF PAYMENT MADE TO CUSTOMER: -
The Customer agrees that payment made in respect of any Customer Online Payment Id, which proves to be uncollectible from the Customer and/or in respect of which the User raises a claim on Apar, it shall be payable entirely by the Customer to Apar.
The following payments shall be deemed to be uncollectible:
- Any payment, which the User refuses to honor or demands a refund of because the fee collected from the Customer were not as they were promised or were wrong, incomplete, and/or unsatisfactory for any reason whatsoever.
- Any charge/debit, which is a Suspect Charge, as defined above.
- Any charge/debit for Fees in an amount more than the eligible fees.
- Any charge/debit for fees which User is in eligible for.
- Any charge / debit arising out of any alleged hacking, breach of security or encryption (if any) that may be utilized by Apar, from time to time.
- CONFIDENTIALITY & DISCLOSURE
The Customer shall not at any time during or after the Term of this Agreement without the consent in writing of Apar disclose, reveal or make public any information of whatever nature in connection with the business or other affairs of Apar as well as information relating to Apar’s system / solution / product plans and strategies, processes, tools, customers and related non-technical business information which Apar considers to be confidential, the Services or the terms of this Agreement, all of which shall be treated by the Customer as strictly confidential.
- TERM & TERMINATION
- This Agreement shall become effective on the Effective Date and shall remain in full force for an initial Term of 2 (Two) years and shall be renewed automatically for a period of 2 (Two) years every time unless either Party delivers to the other Party a written notice of non-renewal 90 days in advance before expiry of the Term or successive Term, as the case may be.
- Either Party can terminate this Agreement for any reason whatsoever by providing advance notice of 90 days in writing.
- Notwithstanding anything contained herein, in the event Customer breaching any of the terms of this Agreement and fails to cure the breach within 30 days of intimation, then Apar shall have the right to terminate this Agreement forthwith. Provided that if Apar has reasonable ground to believe that the Customer has breached terms of this Agreement by involving in any prohibited activity or engages in fraud or other illegal or unethical activities or in case of any flaw or discrepancy in the covenants & declarations of Customer and it’s documents, Apar shall have right to terminate this Agreement forthwith without giving any prior written notice.
- Either Party may at its discretion terminate this Agreement with 7 days written notice, if the non-terminating Party is subject to any action or proceedings, whether administrative or judicial in respect of insolvency, winding up, dissolution or bankruptcy.
- Upon termination of the Agreement, the Customer shall continue to be liable to Apar for all amounts processed under this Agreement including but not limited to dues arising due to disputes, refund, penalties, or any other charges as may be applicable to Customer.
- INTELLECTUAL PROPERTY:
Apar and its licensors exclusively own all rights, title, and interest in the patents, copyrights (including rights in derivative works), moral rights, rights of publicity, trademarks or service marks, logos and designs, trade secrets, and other intellectual property embodied by, or contained in the API, Services, Dashboard, and Documentation (collectively, “Apar IP”) or any copies thereof. Apar IP is protected by copyright, trade secret, patent, and other intellectual property Laws, and all rights in Apar IP not expressly granted to customer in this Agreement are reserved.
Customer is granted a nonexclusive and non-transferable license to electronically access and use the Apar IP only in the manner described in this Agreement. Customer shall not: (i) claim or register ownership of Apar IP on your behalf or on behalf of others; (ii) sublicense any rights in Apar IP; (iii) import or export any Apar IP to a person or country in violation of any country’s export control Laws; (iv) use Apar IP in a manner that violates this Agreement or Laws; or (v) attempt to do any of the foregoing.
- FORCE MAJEURE:
Neither Party shall be eligible for liquidated damages or termination for default against the non-performing Party, if and to the extent that the delay in performance or other failure to perform its obligations under the contract is the result of an event of Force Majeure.
If a Force Majeure situation arises, the affected Party shall promptly notify the other Party in writing of such conditions and the cause thereof. The affected Party shall continue to perform its obligations under the Agreement as far as reasonably practical and shall seek all reasonable alternative means for performance not prevented by the Force Majeure event.
Notwithstanding what is stated hereinabove, the Party may terminate this contract, by giving a written notice of minimum 30 days to the affected Party (non-performing party), if as a result of Force Majeure, the affected Party being unable to perform a material portion of the services for a period of more than 60 days.
- GENERAL PROVISIONS
- Entire Agreement -This Agreement constitutes the entire agreement between Apar and Customer and supersedes all written or oral agreements between the Parties.
- Non-exclusivity - Nothing in this Agreement shall prohibit/restrict Apar from offering/rendering the services like those provided under this Agreement to any other Person (natural or non-natural).
- Assignment - Apar retains the right to assign the services by sending a written notice to Customer. The Customer cannot assign this Agreement to any person without the prior written consent of Apar.
- Notices - Any notice, direction or instruction given under this Agreement shall be in writing and delivered by hand delivery, registered post acknowledgement due and any reputed courier to the abovementioned addresses of the Parties.
- Independent Parties - The Parties to this Agreement are independent contractors and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other Party hereto. Neither Party shall make any representation that suggests otherwise.
- Severability - In the event that any part of this Agreement shall be held by a court of competent authority to be unlawful or otherwise unenforceable, the remainder of this Agreement shall remain in full force and effect to the maximum extent possible.
- Amendment - Any variations or amendment or introduction will become effective and binding on the other party only upon signed in acceptance by both the parties.
- Waiver - Failure to enforce any provision of this agreement, shall not mean waiver or prevent enforcement on later occasions.
- DISPUTE RESOLUTION - All differences, disputes, issues arising out of this Agreement shall be resolved by three Arbitrators, in accordance with the rules of the Arbitration and Conciliation Act, 1996 including any modification, amendment thereto. Both the Parties shall appoint one Arbitrator each and the two Arbitrators so appointed shall appoint the third Presiding Arbitrator. Both parties shall equally bear the costs of the Arbitration. The decision of the arbitrator shall be final and binding. The arbitration proceedings shall be in English. The venue of the arbitration proceedings shall exclusively be at Mumbai.
- Jurisdiction - This Agreement shall be interpreted, construed, and enforced in all respects in accordance with the laws of India. Subject to Arbitration, Courts of Mumbai, India shall have exclusive authority in any matter related with this Agreement.