MERCHANT TERMS AND CONDITIONS
These terms and conditions ("Terms") are entered into the "Merchant" which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors and assigns) of the ONE PART WITH OnEMI Technology Solutions Private Limited, a company incorporated under the Companies Act, 2013 and having its registered office at 10th Floor, Tower 4, Equinox Park, LBS Marg, Kurla West, Mumbai 400070, Maharashtra India (hereinafter referred to as "OnEMI", which expression shall, unless repugnant to the context or meaning thereof, be deemed to mean and include its successors and assigns) of the SECOND PART;
The Merchant and OnEMI shall individually be referred to as "Party" and collectively as "Parties".
- The Merchant is engaged in the consumer goods business.
- OnEMI is, inter alia, engaged in the business of (i) providing financial technology solutions to enable use of instant EMI / instalment solutions to consumers, and in providing the technology platform to enable the above, (ii) providing customer acquisition services and loan origination services to financiers/lending partners, including to Si Creva ("Financing Partner") who offer loans through the abovementioned technology platform and (iii) providing services of assessing the creditworthiness of potential customers of the Financing Partners; and uses its proprietary software and algorithm and credit marketplace platform in this regard on various channels, whether online, offline, on mobile phones, or otherwise ("OnEMI Business"). The OnEMI Business is carried out under the brand name "PaywithRing" and through its websites and web applications, i.e.https://www.paywithring.com/ and ("OnEMI Websites"). For the avoidance of doubt, it is clarified that as part of the OnEMI Business, OnEMI does not undertake any lending and/or financing activities of any nature whatsoever.
- Si Creva is a non-banking financial company registered with the Reserve Bank of India, and a wholly-owned subsidiary of OnEMI, which is, inter alia, engaged in the business of providing personal loans and financing consumer loans for purchase of goods and services ("Si Creva Business"). Si Creva is also one of the Financing Partners, and provides loans under the OnEMI Websites.
- OnEMI, as part of the OnEMI Business, sources and engages with various Merchants who sell products and services at their physical stores/outlets. Pursuant to the engagement with OnEMI, the Merchants will be onboarded onto the OnEMI Websites wherein the Financing Partners of OnEMI (including Si Creva also acting through the OnEMI Websites) will provide consumer loans/credit line ("Financial Assistance") to the Merchant’s customers so as to enable the customer to avail various goods and services from the Merchant. The Financial Assistance will be provided by the Financing Partners as per terms agreed between the customers and Financing Partners and will be disbursed directly to the Merchant. Apart from the above, OnEMI also envisages to facilitate UPI (united payment interface enabled) payments at the Merchant outlets through the unique QR codes allotted to the Merchants.
- In light of the above, the Parties are entering into these Terms in the form of a ‘Click Wrap Agreement’ to detail their respective roles and responsibilities in the context of facilitating Financial Assistance to consumers. It is hereby clarified that under these Terms.
THE PARTIES HERETO AGREE AS FOLLOWS:
The Merchant agrees to undertake the following:
- The Merchant agrees to be onboarded on OnEMI Websites to provide Financial Assistance services to its customers at its physical outlets.
- The Merchant agrees to provide all the details as required by OnEMI in the onboarding process so as to perform a successful verification of the Merchant and to register the Merchant with OnEMI to further provide its products to the customers of the Merchant.
- The Merchant agrees to receive the unique merchant id and respective QR codes from OnEMI for: 1. Facilitating UPI payments; and 2. For allowing the customers to avail the Financial Assistance by downloading the PaywithRing web application.
- The Merchant agrees to receive the marketing materials to display at its physical outlets as instructed by OnEMI.
- The Merchant agrees that OnEMI shall have the right to conduct events, training camps, customer acquisition programmes and such other events, in and around the Merchant’s stores to build brand awareness and enhance promotion of its products and services and the same shall be done with mutual discussion with the Merchants to ensure effective logistics.
- The Merchant unconditionally agrees to the usage of its brand name and images for promotional materials by OnEMI.
- The Merchant agrees to follow the instructions of OnEMI at all times while it is registered with OnEMI in respect of customer acquisition and promotion.
- The Merchant agrees to educate the customers regarding availing the Financial Assistance on the OnEMI Websites and handholding them through the entire process while availing such Financial Assistance and to provide them all the answers regarding the details of the Financial Assistance sought.
- The Merchant agrees that OnEMI does not guarantee any minimum sales or commercial gains to the Merchants and any inference in respect hereof shall be objected strictly by OnEMI.
- The Merchant agrees that OnEMI can promote its products any competing outlet of the Merchant in any area around the Merchant.
- The Merchant shall not provide any misleading or wrong information to the customer about OnEMI or the Financial Assistance facilitated.
- The Merchant shall inform OnEMI about any change in constitution, control and management, legal status, name, address, bank account and/ or nature of the business of the Merchant, within 2 (two) days of such change.
- The Merchant shall provide complete assistance to OnEMI and its Financing Partners for taking actions against defaults committed by any customer.
- The Merchant shall immediately provide an intimation through the OnEMI Websites, where a customer, who has purchased the commodity by virtue of a Financial Assistance, has approached the Merchant for replacement / exchange of such commodity.
- The Merchant shall immediately inform OnEMI if the Merchant knows about the criminal background of the customer, or inability of the customer to repay the Financial Assistance, or any other information that may impact the decision of Financing Partners of OnEMI to approve the Financial Assistance to the customer.
- Where any information and / or document is demanded by OnEMI either for the purpose of providing the service or for the settlement of accounts in terms of these Terms, the Merchant undertakes to provide true, complete and timely information / documents as required by OnEMI.
- The Merchant shall be solely liable for the commodities, product(s) and service(s) offered by it to the customer including but not limited to any deficiency in services and defects in products or commodities.
- The Merchant shall abide by confidentiality provisions and treat all the information received from the customers and OnEMI hereunder as strictly confidential. The Merchant agrees that any breach of confidentiality provisions hereunder shall attract legal implications and OnEMI has all the legal rights to pursue the legal remedies available against the Merchant under applicable laws. The Merchant shall destroy or hand over the confidential information to OnEMI as and when instructed by OnEMI. The Merchant agrees that for the purpose of these Terms confidential information shall mean and include all the information received by the Merchant hereunder either in writing or orally, whether the same be marked as confidential or not. The Merchant also agrees that this sub-clause will survive termination of these Terms.
REPRESENTATION AND WARRANTIES
The Merchant hereby represents and warrants that:
- It has the legal and statutory right and authority, and will maintain the legal right and authority for the duration of these Terms, to fulfill their respective obligations as contained in these Terms;
- The performance of obligations under these Terms, will not violate any applicable law, rule or regulation laid down by statutory and regulatory authorities;
- It is authorized and has completed all required corporate actions necessary to execute these Terms.
- It shall not breach or terminate its third-party contracts by virtue of entering into these Terms.
The Merchant also hereby represents and warrants that:
- The Merchant is legally competent, fully empowered and has the resources to execute these Terms and to perform its obligations arising under these Terms, and that the Merchant has obtained all the necessary registrations, approvals, sanctions and permissions from the competent authorities under the relevant laws required to carry on its business; and it shall maintain the same throughout the subsistence of these Terms.
- The Merchant is a bona fide taxpayer within the territory of India and has been preparing and maintaining its records, filing its returns and complying with the provisions of the applicable laws in India;
- The Merchant has the right, title and interest in respect of the Merchant’s premises to carry on the business and has exclusive control over the business with absolute power to take all decisions in respect of such business;
- The type and nature of the business carried on by the Merchant and disclosed herein is legal and permitted as per applicable laws.
- There is no dispute existing with any third party or any suit, action, litigation or claim is in process or pending against or relating to the Merchant, its business, commodities or the Merchant’s premises before any competent authority which would materially and adversely affect the transactions contemplated herein;
- The Merchant is not blacklisted with any of the manufacturers whose commodities, the Merchant intends to sell at its premises.
- The Merchant is financially solvent as per the applicable laws and has neither applied to any competent authority for declaring it as insolvent nor any order has been passed by any competent authority declaring it to be insolvent.
- The Merchant agrees that Financing Partners of OnEMI shall have the right of repossession of the product, commodity or service financed in case of default in the payments of EMIs and dues (if any) by a customer.
TERMINATION OF THE TERMS
- Notwithstanding anything contained in these Terms, these Terms can be terminated by either ONEMI or the Merchant without cause, upon giving a prior written notice of 30 (thirty) days to the other Party.
- OnEMI shall be entitled to terminate these Terms, without any notice or compensation to the Merchant, if the Merchant or any of its authorized personnel commits any breach of these Terms or fail to comply with any applicable laws.
The transaction amount(s) paid through QR by the Merchant’s customers using the UPI facility to the Merchant shall be settled within such number of days as may be mutually decided by the Parties and in case of transaction made by the customers by availing Financial Assistance by using the respective QR code, OnEMI shall facilitate the settlement of the amount to the account of the Merchant within such timelines as may be agreed mutually between the Parties.
RELATIONSHIP OF PARTIES
- The Merchant agrees that the relationship between the Parties is purely a business relationship based upon principal-to-principal arrangements and that they are independent parties and are not and / or shall not claim to be an agent / representative of the other Party. It is understood between the Parties that neither Party is the legal representative of the other Party. Nothing contained herein, shall be deemed to create any association, partnership, joint venture or relationship of principal and agent between the Merchant and OnEMI.
- The Merchant shall not act or attempt to act or represent itself directly or by implication as an agent / partner of OnEMI / Financing Partners or incur any obligation on behalf of or in the name of OnEMI / Financing Partners.
- The Compensation shall be in the form of rewards which shall be communicated to the Merchant by OnEMI’s representatives/sales executive on a time-to-time basis.
- Subject to verification criteria as may be decided by OnEMI, the Merchant shall be eligible to avail loans, financial assistance through OnEMI’s platform from various Financing Partners of OnEMI. The Merchant agrees that no Financing Partner of OnEMI shall be bound to provide any loan to the Merchants and the said facilitation is only to reward the Merchant for its registration with OnEMI’s platform.
- The intellectual property rights in the logo, names, brands, and all other intellectual property of either Party shall vest with the respective Party only. OnEMI shall have the limited right to use such intellectual property and confidential information, as shall be required in connection with these Terms and shall not be entitled to ownership of the same, in any manner, whatsoever.
- This Clause will survive termination of these Terms.
- The Merchant hereby agrees to indemnify and hold harmless OnEMI and its Financing Partners and, their respective directors, representatives and employees ("Indemnified Persons") promptly upon demand at any time and from time to time, from and against any and all losses, claims, taxes, damages (whether or not resulting from third party claims), demands, obligations, liabilities (including liability for willful infringement of a third party’s intellectual property rights), interest, actions, fines, penalties, royalties, costs (including reasonable attorneys’ fees and disbursements) and expenses but in all cases excluding any indirect or consequential losses (collectively, "Losses") to which any Indemnified Persons may become subject, insofar as such Losses arise out of, in any way relate to, or result from (i) any misstatement or any breach of any representation or warranty made by the Merchant, or (ii) failure of the Merchant to fulfil any covenant or condition contained in these Terms, or (iii) any claim or proceeding by any third party (including Governmental authority) against the Indemnified Persons arising out of any act, deed or omission by the Merchant, or (iv) any breach of or non-observance or partial observance of the rules, regulations, acts, notifications, other statutory declarations and judicial / quasi-judicial orders governing the services provided by the Merchant as stated in these Terms, and / or (v) disclosure of confidential information in an unauthorized manner by the Merchant.
GOVERNING LAW AND ARBITRATION
- The validity, performance and all matters relating to the effect of these Terms and any amendment hereto shall be governed by the laws of India.
- Any disputes or differences whatsoever between the Merchant and OnEMI hereunder, which cannot be settled by mutual discussions shall be referred to the arbitration of a sole arbitrator to be mutually appointed by both Parties under and in accordance with the provisions of the Arbitration and Conciliation Act, 1996 as reenacted or amended from time to time, and the proceedings will be conducted in English at Mumbai, and the decision of the arbitrator shall be final and binding on the Parties. Subject to this arbitration clause, Parties agree that all the judicial and/or legal proceedings relating to or arising out of these Terms as maintainable under law shall be filed in the competent courts situated at Mumbai (Maharashtra) only.
- The Courts at Mumbai shall have exclusive jurisdiction in respect of any dispute under these Terms or any arbitration award.
SERVICE OF NOTICE AND OTHER COMMUNICATION
Any notice or other formal communication to be given hereunder shall be in writing and signed by or on behalf of the Party giving it. It shall be delivered at the receiving Party’s address as provided 1st hereinabove within the below mentioned delivery time by hand or sent by registered post / speed post acknowledgement due, to the relevant address set out below (or as otherwise notified from time to time).
Mode of Delivery Delivery Time Notice to OnEMI By hand Immediately if duly acknowledged by any representative of OnEMI at such address. Registered Post / Courier Within 3 (three) working days of dispatch and duly acknowledged by the representative of OnEMI at such address. Notice to Merchant By hand Immediately if given to any representative at such address. Registered Post / Courier Within 3 (three) working days of dispatch by registered post / courier.
- Any forbearance, delay or indulgence by OnEMI in enforcing any of the terms and conditions of these Terms shall not prejudice or affect the rights and remedies of OnEMI hereunder, nor shall any waiver of any breach hereof operate as a waiver of any subsequent breach and no waiver or variation of any of the terms and conditions of these Terms shall be valid or have any effect unless the same be made in writing and signed by a representative of OnEMI authorized for the purpose on behalf of OnEMI.
- Should any term or provision of these Terms be declared by any court to be in conflict with the law or unenforceable, the validity and enforceability of the remainder of these Terms shall not be affected thereby. In such an event the relevant term or provision shall be deemed not to be part of these Terms and any resulting necessary consequential amendment shall be deemed to be incorporated in these Terms.
- These Terms, constitute and contain the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all previous communications, negotiations, commitments, either oral or written between the Parties respecting the subject matter hereof.
- Any provision of these Terms may be amended if and only if such amendment is mutually agreed and signed by the Parties.
- The terms and conditions of these Terms that by their nature and contents are intended to survive the performance hereof by any or all the Parties hereto shall so survive the completion and / or termination of these Terms.
- The Merchant shall not assign, or otherwise transfer its rights under these Terms or these Terms, in whole or in part, without OnEMI’s prior written consent. OnEMI may assign or otherwise transfer these Terms, in whole or in part, with prior written intimation to the Merchant. These Terms will be binding upon the Parties’ respective successors and permitted assigns.
- The event which is beyond the control of the Parties which prevents the performance of the Parties hereunder shall be recognized as a Force Majeure Event and if such event subsists for a period of continuous 60 (sixty) days, then these Terms shall be liable for termination at the will of OnEMI.
IN WITNESS WHEREOF, the Merchant hereby accepts these Terms electronically which shall be deemed to have been signed without an intent to perform any further act to this end and the offer by OnEMI to enter into these Terms shall be a valid acknowledgement of acceptance of the Terms by OnEMI