CART PAY offers payment gateway services over the Internet through access to its Internet Servers; WHEREAS, Merchant seeks to utilize our merchant account services to process payments
WHEREAS, the parties acknowledge that the Internet is neither owned nor controlled by any one entity; therefore, Cart Pay can make no guarantee that any given Internet user shall be able to access gateway at any given time, nor does Cart Pay, make any explicit or implied service performance guarantees that credit or debit card will be processed without any hassle. Cart Pay, represents that it shall make good faith effort to ensure that its servers and network are available as widely as possible and with as little service interruption as possible; NOW THEREFORE, in consideration of the mutual promises contained herein, the parties agrees to abide the rules and regulations drafted on this agreement.
Gateway Service means any CART PAY service using a payment gateway integrated into (but not necessarily Gateway Service means any CART PAY service using a payment gateway integrated into (but not necessarily hosted on) the Merchant Website for receiving payment instructions from a customer;
Manual means any of the technical manuals applicable to the CART PAY Services, lading but not limited to the CART PAY Gateway Manual and the Automated Payments Interface Manual, each as amended from time to time and published on the CART PAY Website, (www.cartpayinc.com) or, in case of a merchant integration through a third party service provider, any third party integration instructions or manuals; <
Merchant means the Person who has entered into this Agreement for Cart Pay merchant Services;
1. OBLIGATIONS OF CART PAY.
1.1 Agreement to Provide Services.
Subject to the terms of this Agreement, CART PAY agrees to
(i) Provide to Merchant gateway Services, as requested by Merchant (the "Services"), or
(ii) Establish and/or maintain an appropriate connection between
(a) The Merchant
(b) Merchant's Authorization Provider (as defined below) (the "Connection"). For purposes of this Agreement, the term "Authorization Provider(s)" mean(s) Bank which has agreed to provide a merchant account and payment authorization services to Merchant. CART PAY will have no obligation to provide the Services to Merchant until such time as Merchant has completed the merchant registration procedure with CART PAY and Merchant has established a merchant account with an Authorized Provider that authorizes Merchant to do online payment transactions. CART PAY may modify the Services from time to time and CART PAY agrees to notify Merchant of any modifications which would materially affect Merchant's use of the Services, lading modifications which
(i) Affect the integration of Merchant's Web Site (as defined below) with the Services and
(ii) The format or content of the data transmitted by Merchant to CART PAY. CART PAY will use commercially reasonable efforts to notify Merchant in advance if CART PAY becomes aware of or plans any system shutdowns/Up gradations or outages or other events which CART PAY believes are likely to interrupt Merchant's access to or CART PAY performance of the Services. If the performance of the Services or the Connection is interrupted and the interruption is within the control of CART PAY, CART PAY will use commercially reasonable efforts to restore the Connection and/or the Services as promptly as possible. CART PAY will not be liable to Merchant in the event of any such interruption. No settlement will be done during such outage period and CART PAY does not take any responsibility for any payment delay due to outage or system up gradations.
1.2 Security for the Transmission of Data.
CART PAY. has implemented and will maintain security systems for the transmission of Merchant’s information and transaction information (i.e. information related to the purchase of goods and services from Merchant by a third party (a "Transaction")) and such systems will consist of encryption and "firewall" technologies which are understood in the industry to provide adequate security f or the transmission of information over the Internet. CART PAY may from time to time, in its discretion, modify or replace such security systems, provided that such modifications or replacements are intended to maintain or enhance the level of security provided f or the transmission of data over the Connection.
1.3 Access to Reports.
CART PAY will use commercially reasonable efforts to provide Merchant with access to a designated web site (the "Reporting Site"), which will lade
(a) Certain details regarding Merchant's Transactions processed using the Services ("Transaction Details") and
(b) CART PAY will restrict access to the Reporting Site, through the use of a password protection mechanism, to Merchant, CART PAY ., and any third party to whom the parties may agree to permit access. CART PAY will retain Transaction Details regarding a particular Transaction on the Reporting Site for at least ninety (90) days following the date on which the data relating to the Transaction was first received by CART PAY. CART PAY may change the Transaction Details and reporting tools from time to time in its reasonable discretion.
CART PAY agrees to use commercially reasonable efforts to provide support to Merchant. As of the date of this Agreement, such standard support consists of
(i) Unlimited technical support via CART PAY merchant account ticketing system.
(ii) E- mail support during the hours of 9 a.m. through 6 p.m. Monday through Friday (PST)
CART PAY will not be responsible for providing support to Merchant's customers.
Merchant will be solely responsible for the following:
2.1 Establishing, hosting and maintaining its web site(s), as applicable (the "Merchant Web Site(s)") and fulfilling all orders f or products and services sold by Merchant to its customers on the Merchant Web Sites or otherwise;
2.2 Establishing and maintaining the appropriate and necessary connection between the Merchant Web Site(s) and the CART PAY, Web Site, loading without limitation transmitting Merchant's registration information and transaction data to CART PAY servers via the CART PAY Web Site and ensuring that the data transmitted in conjunction with the Services is accurate, complete and in the form as requested by CART PAY.
2.3 Establishing and maintaining a merchant banking relationship with one or more Authorization Providers; and
2.4 Supplying to CART PAY certain identification and account information sufficient to enable CART PAY to establish and maintain the Connection to the Authorization Provider(s).
2.5 Payment is restricted for products or services that constitute relate to or are ancillary to, in whole or in part:
I. Pornographic or illicit material or activities of any type;
II. Escort services;
III. Gambling operations like “virtual casinos”;
IV. Merchant engaging in “receipt of payment in advance” operation module;
V. Pyramid selling or multi-levels commission earning structure;
VI. Goods, products, services or distributions prohibited by any applicable law or under the rules, regulations or directives of any Card Association; or goods, products, services or distributions of any class or type, whether or not similar to those specified above, which (CART PAY) may in its absolute discretion (but shall not be under any duty to) designate, from time to time, as being subject to this definition and notice thereof being given to Merchant.
2.6 Not engage in any money laundering activities or any other illegal activities. Notwithstanding any of the provisions herein contained to the contrary and without prejudice to any other rights CART PAY may have, CART PAY may forthwith terminate this Agreement without notice to the Merchant if any of the following events shall occur if the Merchant engages in any money laundering activity or any other illegal activity or if CART PAY in its absolute discretion, suspects that the Merchant has engaged in any money laundering activity or any other illegal activity.
Merchant acknowledges that,
3.1 CART PAY is responsible only for providing data transmission for Merchant and is not responsible for the results of any credit inquiry, the operation of web sites hosted by Merchant, ISPs or Authorized Providers, the availability or performance of the Internet, Merchant or Merchant's customer's connection to the Internet or the actions or inaction of any other person or entity, engaging any Authorization Provider or any ISP.
3.2 CART PAY does not guarantee the security of the Services or Transaction data, and CART PAY will not be responsible in the event of any infiltration of its security systems, provided that CART PAY has used commercially reasonable efforts to prevent any such infiltration.
3.3 CART PAY will, in providing the Services, rely upon information, instructions and services from Merchant, its employees and agents, financial and credit institutions, and other third parties. Merchant fully assumes the risk associated with errors in such information, instructions and services provided that CART PAY has accurately transmitted data and/or complied with authorized instructions in performance of the Services.
3.4 The terms and conditions of Merchant's relationship with Authorization Providers will be determined solely by Merchant and the Authorization Providers, and will not necessarily reflect or operate terms that CART PAY may have separately and independently negotiated with Authorization Providers, without limitation any interbank exchange rates or fees charged by Authorization Providers. Cart Pay in only liable for making payments to the merchant for the successful transactions with 14 days arrear. 14 days arrear is defined as the days where the merchant processed the transaction. Any transaction which is been dispute by bank/Issuing bank/acquiring bank/customer will be on hold until and unless the transaction is been supported by any substantial document by the merchant. In case of batch bank retrieval, merchant needs to submit the social security number or any Government ID of the customer to release the payment from the acquiring bank. In case, Merchants fails to furnish such documents, the payment will be refunded back to the customer not less than 45days from the day of bank retrieval.
3.5 Honoring Cards.
A. Without Discrimination. You will honor, without discrimination, any Card properly tendered by a Cardholder. Cardholder" means a person possessing a Card and purporting to be the person in whose name the Card is issued. You will not establish a minimum or maximum transaction amount as a condition for honoring Card.
B. Cardholder Identification. You will identify the Cardholder and check the expiration date and signature on each Card. You will not honor any Card if:
(i) The Card has expired,
(ii) The signature on the sales draft does not correspond with the signature on the Card, or
(iii) The account number embossed on the Card does not match the account number on the Card's magnetic strip (as printed in electronic form) or the account number listed on a current Electronic Warning Bulletin file. You may not require a Cardholder to provide personal information, such as a home or business telephone number, a home or business address, or a driver's license number as a condition for honoring a Card unless permitted under the Laws and Rules
C. Card Recovery. You will use your best efforts to retain any Card:
(i) On Visa Cards if the printed four digits below the embossed account number do not match the first four digits of the embossed account number;
(ii) If you are advised by Bank (or a designee) the issuer of the Card or the designated voice Authorization center to retain it:
(iii) if you have reasonable grounds to believe the Card is counterfeit, fraudulent or stolen, or not authorized by the Cardholder; or
(iv) If, for MasterCard Cards, the embossed account number, indent printed account number and encoded account number do not match or the Card does not have a MasterCard hologram on the lower right corner of the Card face.
D. Surcharges. You will not add any amount to the posted price of goods or services you offer as a condition of paying with a Card, except as permitted by the Rules. This paragraph does not prohibit you from offering a discount from the standard price to induce a person to pay by cash, check or similar means rather than by using a Card.
E. Return Policy. You will properly disclose to the Cardholder, at the time of the Card transaction and in accordance with the Rules, any limitation you have on accepting returned merchandise.
F. No Claim Against Cardholder. You will not have any claim against or right to receive payment from a Cardholder unless Bank refuses to accept the Sales Draft (as defined in Section 3) or revokes a prior acceptance of the Sales Draft after receipt or a chargeback or otherwise. You will not accept any payments from a Cardholder relating to previous charges for merchandise or services landing in a Sales Draft, and if you receive any such payments you promptly will remit them to Bank.
G Disputes With Cardholders. All disputes between you and any Cardholder relating to any Card transaction will be settled between you and the Cardholder. Neither Cart Pay nor Bank bear any responsibility for such transactions. "
CART PAY doesn’t provide warranty of any kind, express, implied or statutory, regarding the services or CART PAY software used in conjunction with the services ("software"), and all such warranties, landing without limitation the implied warranties of merchant ability, fitness for particular purpose and non-infringement are hereby expressly disclaimed by CART PAY. Merchant acknowledges that CART PAY has not represented or warranted that the Services will be uninterrupted, error free or without delay. Merchant may not rely upon any representation or warranty regarding the Services or Software by any third party, without limitation, representations or warranties by an ISP or a CART PAY authorized reseller of the Services.
Merchant shall pay to CART PAY such fees as set out in Annexure A here to in respect of the services provided by CART PAY hereunder.
Merchant will indemnify, defend and hold harmless CART PAY its officers, directors, agents, employees, and other representatives, from and against
(i) The breach of this Agreement by Merchant,
(ii) The sale or use of any product or services sold by Merchant or
(iii) Claims brought or damages suffered by any Authorized Provider, customer, or prospective customer of Merchant relating to Merchant's or its agents' operation of the Services.
7. LIMITATION OF LIABILITY.
In no event will CART PAY liability arising out of this agreement exceed the lesser of the fees paid to CART PAY by merchant under this agreement within the 12 month period prior to the event which gave rise to the claim for damages or US $5000. In no event will CART PAY or its licensors have any liability to merchant or any other party for any lost opportunity or profits, costs of procurement of substitute goods or services or for any indirect consequential, punitive or special damages arising out of this agreement, under any cause of action or theory of liability (negligence), and whether or not CART PAY has been advised of the possibility of such damage. These limitations will apply not withstanding any failure of essential purpose of any limited remedy. In case the charge back percentage as prescribed by the card schemes exceeds more than 1.5%, CART PAY reserves the right to confiscate the complete roll reserve amount to pay the fines and penalties imposed by the card schemes. Merchant warrants that merchant don’t have any right to claim the forfeited roll reserve amount in case merchants exceeds the charge back percentage of 1.5%(ECP Visa/ECP Master/ECP Others). ECP is visible on the footer section of dashboard and on the BIARO tab of the merchant account. CART PAY also reserves the right to ensure that all settlement must occur after deduction of all the chargebacks imposed till the date of the occurrence of the settlement event and settlement must occur only if the merchant have a reasonable balance left as pending on his merchant account which must cover the risk factor. By default, risk factor is considered as 2 (Double).
Definition of Risk Factor: Risk factor is defined as the potential risk Cart pay and its banking partner may have due to the processing of high-risk business of merchants. The risk factor is marked as double (2) during the initial sign up however this may exceed in case merchant receives the chargeback, which is more than 1.5%. All merchants are fully liable for all transactions returned for whatever reason, otherwise known as chargebacks". You will pay on demand the amount of all chargebacks. Authorization is granted to offset from occurring of a transactions and to debit the Designated Account, the Reserve Account or any other account held at Bank or at any other financial institution the amount of all chargebacks. You will fully cooperate in complying with the Rules regarding chargebacks. C. Excessive Activity. Your presentation to Bank of Excessive Activity will be a breach of this Agreement and cause for immediate termination of this agreement. "Excessive Activity" means, during any monthly period: (i) the dollar amount of chargebacks and/or retrieval requests in excess of 1% to 1.5% of the average monthly dollar amount of your Card transactions; (ii) sales activity that exceeds by 10% of the dollar volume indicated on the Application; or (iii) the dollar amount of returns equals 20% of the average monthly dollar amount of your Card transactions. You authorize, upon the occurrence of Excessive Activity and Bank to take any action they deem necessary but not limited to, suspension of processing privileges and establishment or release in the amount allocated to the Reserve Account and a reduction in the amount of provisional credit remitted to you in accordance with this Agreement. You will not submit a credit memorandum relating to any Sales Draft not originally submitted to Bank, nor will you submit a credit memorandum that exceeds the amount of the original Sales Draft. You will within the time period specified by the Rules, provide a credit memorandum or credit statement for every return of goods or forgiveness of debt for services, which were the subject of a Card transaction. ii. Revocation of Credit. Bank may refuse to accept any Sales Draft, and Bank may revoke prior acceptance of a Sales Draft in the following circumstances: (a) the transaction giving rise to the Sales Draft was not made compliance with this Agreement, the Laws or the Rules; (b) the Cardholder disputes his liability to Bank for any reason, but not limited to a contention that the Cardholder did not receive the goods or services, that the goods or services provided were not as ordered, or those chargeback rights enumerated in the Rules; or (c) the transaction giving rise to the Sales Draft was not directly between you and the Cardholder. You will pay Bank any amount previously credited to you for a Sales Draft not accepted by and Bank or where accepted, is revoked by Bank. E. Reprocessing. Notwithstanding any authorization or request from a Cardholder, you will not re-enter or reprocess any transaction, which has been charged back. F. Miscellaneous. You will not present for processing or credit, directly or indirectly, any transaction not originated as a result of a Card transaction directly between you and a Cardholder or any transaction you know or should know to be fraudulent or not authorized by the Cardholder. You will not sell or disclose to third parties Card account information other than in the course of performing your obligations under this Agreement. "
Certain of the technology and Software are proprietary to CART PAY. CART PAY hereby grants to Merchant a non-exclusive, non-assignable, limited license to use the Software provided to Merchant in connection with the provision of the Services for the sole and exclusive purpose of receiving the Services from CART PAY. Merchant agrees that it shall not modify, reverse engineer, decompile, disassemble or otherwise discover the source code for the Software; or in any way sell, lease or rent the Software or license, sublicense or otherwise distribute any components of the Software on a standalone basis or other than as part of the Services. All rights, title and interest in and to the Software will remain the sole and exclusive property of CART PAY. and its licensors. Merchant shall not utilize any CART PAY intellectual property, any trademarks, in any manner except as set forth herein without the prior written consent of CART PAY . In addition, Merchant agrees it shall not remove, alter or destroy any proprietary, trademark or copyright markings or notices placed upon or contained within the Software or related documentation.
This Agreement will commence on the date on the Effective Date and will continue for a period of one (1) year, unless terminated earlier or suspended according to the provisions of this Agreement. The Agreement will thereafter automatically renew for successive twelve (12) month terms, unless either party gives the other party written notice of its intention not to renew the Agreement at least thirty (30) days prior to the end of the then-current term or renew al term.
9.2 Terminations and Effect of Termination.
Either party may terminate this Agreement for convenience upon 7 days written notice to the other party. Notwithstanding the foregoing, CART PAY may terminate this Agreement or suspend the performance of the Services on 1 day written notice to Merchant in the event of non-compliance of the terms and condition of CART PAY. If the merchant exceeds the prescribed chargeback percentage of 1.5%, CART PAY reserves the right to terminate the agreement with an immediate effect. Upon the expiration or termination of this Agreement for any reason, Merchant's rights to use the Services, Software and any other rights granted hereunder shall immediately cease; and each party will be released from all obligations and liabilities to the other occurring or arising after the date of such termination, except that any termination of this Agreement will not relieve CART PAY or Merchant from any liability arising prior to the termination of this Agreement.
All payments will be paid to the merchant after deducting the charge back amount and other miscellaneous charges after 180 Days, which is the cooling off period of Card Schemes presently. In case the rule for card scheme changes for the cooling off period, CART PAY will intimate the merchant accordingly.
9.3 Miscellaneous Terms.
(a) Force Majeure. Except for payment and indemnity obligations hereunder, neither party will be liable for any failure or delay in performing any obligation under this Agreement that is due to causes beyond its reasonable control, such as natural catastrophes, governmental acts or omissions, laws or regulations, labor strikes or difficulties, communications systems breakdowns, hardware or software failures, transportation stoppages or slowdowns or the inability to procure supplies or materials.
(b) Entire Agreement and Modification. The terms in this Agreement constitute the entire agreement between CART PAY and Merchant regarding its subject matter and its terms supersede any prior or simultaneous agreement or terms, whether written or oral. Except as otherwise provided f or herein, any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by the parties herein.
(c) No Waiver and Severability. No failure or delay on the part of either party in exercising any right or remedy hereunder will operate as a waiver thereof; nor will any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or of any other right or remedy. No provision of this Agreement may be waived except in writing signed by the party granting such waiver. In the event that any provision of this Agreement is unenforceable or invalid such unenforceability or invalidity will not render this Agreement unenforceable or invalid as a whole, and in such event, such provision will be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law or applicable court decisions.
(d) No Assignment: Merchant may not assign this Agreement without the prior written consent of CART PAY.
(e) This Agreement shall be governed and construed in accordance with the laws of United States of America(USA). Both parties agree that any dispute arising out of this Agreement, or any relationship between the parties will be resolved only in the courts in United States of America(USA) and in no other jurisdiction. Each party submits to personal jurisdiction in the trial court of United States of America(USA), Delhi where the company is registered.
(f) Export Restrictions. Merchant acknowledges and agrees that it shall not import, export, or re-export directly or indirectly, any commodity, Merchant's products or using any CART PAY products, to any country in violation of the laws and regulations of any applicable jurisdiction.
A. In consideration of the Company agreeing to enter into this Agreement, the Merchant hereby represents warrants and undertakes to and with the Company (and its successors in title) that each of the Warranties is, as at the date hereof and will ensure that at all times during the subsistence of this Agreement are, true, accurate and not misleading in all respects and the Warranties shall be deemed to be repeated and given on each date during the subsistence of this Agreement.
B. Each of the Warranties given under this Agreement or pursuant hereto shall remain in full force and effect notwithstanding termination of this Agreement.
C. The Merchant acknowledges that so far as the Warranties relate in whole or in part to all the matters relating to any of the Products, such Warranties shall also be deemed to constitute fundamental representations upon the faith of which the Company has entered into this Agreement.
D. Roll Reserves: Cart Pay reserves the right to hold complete roll reserve if the merchant exceeds the chargeback percentage of 1.5% which is permissible by the card schemes from Visa, Master, Amex and Discover. Additionally, Cart Pay also has full authority to penalize a merchant if the card Scheme Company or bank raise a financial penalty for exceeding the charge back percentage. The roll reserve amount will be completely forfeited if the chargeback exceeds 1.5%
E. The Merchant acknowledges and accepts that the Company is entering into this Agreement in reliance of each of the Warranties and the provisions contained therein.
F. For the avoidance of doubt, the Warranties shall be separate and independent and save as expressly provided shall not be limited by reference to any other clause or anything in this Agreement or its schedules.
G. The Merchant undertakes with the Company that it shall not do allow or procure any act or omission during the subsistence of this Agreement which would or be likely to constitute a breach of any of the Warranties as if they were given on each date during the subsistence of this Agreement or which would make any of such Warranties inaccurate or misleading if they were so given.
H. The Merchant undertakes with the Company that it will promptly disclose in writing to the Company any event or circumstance, which may arise or become known to them at any time which is consistent with any of the Warranties or which would have constituted a breach of the Warranties.
In consideration of the Company entering into this Agreement, the Guarantor hereby unconditionally and irrevocably guarantee to the Company the due and punctual performance and observance by the Merchant of all its obligations under or pursuant to this Agreement and shall indemnify the Company against all losses, damages, costs and expenses (legal costs and expenses) which the Company may suffer through or arising from any breach by the Merchant of any of such obligations. The liability of the Guarantor as aforesaid shall not be released or diminished by any arrangements or alterations of terms (whether of this Agreement or otherwise) or any forbearance, neglect or delay in seeking performance of the obligations hereby imposed or any granting of time for such performance.