Terms and Conditions

This Sub-User Service Agreement (Hereinafter called “AGREEMENT”) is made between ISHMART TECHNOGLOBAL SERVICES PRIVATE LIMITED (hereinafter called “USER”) and M/S subuser name REGISTERED OFFICE AT: SUB USER ADDRESS (hereinafter called “SUB-USER”). This Agreement shall be effective as of the ……….. day of ……………., 20…… .

WHEREAS the USER is a private limited incorporated under the Companies Act, 1956, having its registered office at 3556, GALI NO 09, REGHAR PURA KAROL BAGH, CENTRAL DELHI, DELHI, INDIA, 10005. The USER is an authorized user/facilitator for the purpose of receiving and/or delivering small value remittances through Aadhar-based payments or through any other payment instruments and also engaged in the business of Prepaid Recharges and Bill Payments that may be mutually agreed upon from time to time as per applicable regulatory guidelines.

WHEREAS the USER which is a neo-banking platform delivering full-stack banking services to individuals and businesses of all sizes.

The Client has approached ISHMART TECHNOGLOBAL SERVICES PRIVATE LIMITED are hereinafter collectively referred to as “ISHMART” to avail Services to enable Customers to make payments to the Client and ISHAMRT has agreed to provide Services in accordance with the terms and conditions of this Agreement.

Now, therefore, in consideration of the mutual covenants contained herein and intending to be legally bound hereby, the parties agree as follows:

Certain Definitions (Defined Terms)

In this Agreement, in addition to the terms defined elsewhere, the following terms, when capitalized, shall have the meanings set forth below, unless repugnant or contrary to the context hereof:

“Agreement” shall mean and include this agreement, all its schedules, amendments thereto made from time to time, and all related documents in connection with the transactions contemplated herein.

“Applicable Law” includes all applicable Indian statutes, enactments, acts of the state legislature or parliament, laws, ordinances, rules, bye-laws, regulations, notifications, guidelines, directions, directives, and orders of any governmental authority, statutory authority, board, recognized stock exchange, as may be applicable including but not limited.

“Chargebacks” shall mean and include reversal of any transaction made by Service Provider’s Subscriber / Customer inter alia, on account of, including but not limited to (i) any alleged forgery of his or her card or other details (ii) any charge/debit made on a card that has been listed as a hot listed card or otherwise listed on the card association warning bulletins (iii) duplicate processing of the transaction; (iv) any amount required to be refunded due to, denial of a transaction by the subscriber/ valid card holder as wrongly charged payment/ extra payments and/or due to the fraudulent use/misuse of the personal and financial information of the Service Provider’s Subscriber by any unauthorized person and/or any other reason as required/approved by the concerned banks, as the case may be.

“Customer(s)” shall mean persons, including all body corporate, partnerships, and limited liability partnerships, who are availing services, either as a consumer or otherwise, rendered by a Service Provider through the SUB-USER using USER’s products or services.

“Compliance” means compliance with - regulatory requirements, applicable laws, ethical business practices, know your customer (KYC) regulations, anti-money laundering and countering terrorism (AML) finance regulations, and policies of the Payment Service Providers and Financial Partners.

“Effective Date” shall mean the date of signing of this Agreement by the Parties.

“Intellectual Property” shall mean all intellectual property used for the purpose of or in association with or in relation to the performance of this Agreement, and includes without limitation, (a) Software, operating manuals, software code, program, instructions, specifications, processes, input methods, data or information used in relation to, or in association with, or for the operation of the software installed by the Parties, (b) the trademarks, service marks, trade names, business names, logos, symbols, styles, colour combinations used by the Parties during the course of their business and all depictions, derivations and representations thereof, (c) all promotional material including without limitation, advertisements, literature, graphics, images, content and the ‘look and feel’ of all of the above, (d) all information, data or material in whatever form, whether tangible or not, provided by each party to the other party during the course of the Agreement; and (e) all techniques, formulae, patterns, compilations, processes, inventions, practices, methodology, techniques, improvement, utility model, procedures, designs, skills, technical information, notes, experimental results, service techniques, samples, specifications of the products or services, labeling specifications, rights on software, and any other knowledge or know-how of any nature whatsoever.

“Product” shall mean a set of services, developed by the ISHAMRT , permitting money transfer within India, and other value-added services using various channels like POS, Mobile Apps, and Internet etc. (hereinafter known as the “Products”).

“Force Majeure” means accidents; acts of war or terrorism; labor, civil or military unrest; nuclear or natural catastrophes or acts of God; interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; adverse change in laws or regulations; significant dislocation in the prices of assets, goods or services; public health risks or epidemics; delay of essential materials or services; Major Breach or any significant adverse event that is beyond anybody’s control.

“Fraud” means all types of frauds such as theft or deliberate falsification of identity, accounts and account credentials, data, documents, description of actual events, collusion etc.

“Service Charge” shall mean the charges paid to the SUB-USER for the services rendered by the SUB-USER appointed by the USER in terms of this Agreement.

“Software” shall include custom-built software that is owned by the ISHMART, or software that has been licensed from third-party suppliers by the ISHMART and in relation to which the ISHMART has obtained the right to sublicense from such third-party suppliers.

“Transactions” shall mean and include transactions taking place between a Service Provider and its Subscribers including, but not limited to, Domestic Money Transfers and other services of a like nature provided by the Service Provider through the ISHAMRT’s Platform.

“Sub-Users” shall mean individuals and/or entities appointed by the User who is either availing the product for consumption or on whose premises/outlets the Products shall be disbursed to the subscribers as the case may be, for and on behalf of the Service Providers, to facilitate completion of transactions initiated by such subscribers, through the User and do not have existing direct relationship with the ISHMART for the provision of any Product.

SCOPE OF SERVICES

• With effect from the Effective Date and subject to the provisions of this Agreement, the USER hereby agrees to facilitate the services of ISHMART to the SUB-USER and the SUB-USER hereby agrees to avail the Services from the USER. Provided, however, the SUB-USER will not undertake any activity that in any way violates any provision of law.
• The SUB-USER shall primarily act as Sub-User for the purpose of receiving and/or delivering small value remittances through Aadhar-based payments or any through any other payment instruments that may be mutually agreed from time to time as per applicable regulatory guidelines.
• The SUB-USER agrees to undertake and perform the roles, responsibilities, operations, duties, and functions specified in respect of Services under this Agreement. USER reserves the right to change/vary/the Services by advising the same to the User in writing and upon such advice, such amended Services shall become effective.
• The SUB-USER shall exercise high standards of Service, and utilize the necessary standard of care, due skill, and diligence, in performing its Services as specified by the USER.

Patents, Markings, Trademarks, Trade Names, and Other Intellectual Property:

• Intellectual property rights to Technology and Copyrights existing will remain the property of ISHMART. Trademarks existing on the Effective Date only belong to ISHMART. USER and SUB-USER acknowledge that it does not have any rights or any title whatsoever in or to ISHMART, trade name or in or to any of ISHMART trademarks, except as provided under this Agreement.
• ISHMART’s services and the Site are owned and operated by ISHMART only. The visual interfaces, graphics, design, compilation, information, computer code (including source code and object code), products, software, services, and all other elements of the ISHMART’s services and the Site provided by the ISHMART (the “Materials”) are protected by the Applicable Laws. All Materials and ISHMART’s Intellectual Property are the property of ISHMART. Sub-User agrees not to remove, obscure, or alter the ISHMART or any third party's copyright, patent, trademark, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the ISHMART’s services. Except as expressly authorized by the ISHMART, the SUB-USER agrees not to sell, license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make unauthorized use of the Materials or ISHMART’s Intellectual Property. USER and SUB-USER do not accrue any rights or interest in the other Party’s Intellectual Property and use of any Intellectual Property by either User or the ISHMART shall be strictly in for the fulfillment of and in compliance with the terms of the agreement between such User and the ISHMART. SUB-USER undertake that they shall not, nor will they allow others to, reverse engineer or disassemble any parts of the other’s Intellectual Property.
• The USER and SUB-USER undertake that:
• they shall use the Intellectual Property of ISHMART solely for the discharge of their duties under the Agreement,

PAYMENT MECHANISM

• SUB-USER hereby agrees and acknowledges that all payments and settlements between the parties shall be made in accordance with the schedule of charges as agreed between both parties.
• The SUB-USER acknowledges that the structure of this schedule of charges fluctuates from time to time due to changes in market conditions. USER will keep the SUB-USER informed of the change or amendment in the schedule of charges and may at its sole discretion, update this schedule from time to time.

SETTLEMENT

The payment mechanism for settlement of the fee payable by the User or SUB-USER as applicable shall be as follows:

The USER shall make available to the SUB-USER a report in electronic form setting forth the following information relating to each Transaction: The Transaction amount, date and time of the Transaction, Transaction serial number, Service Provider identification and response code ("MIS"). The MIS shall be made available to the SUB-USER via an online portal. The format and controls on the portal and process will be as provided by ISHMART and as updated from time to time.

The SUB-USER shall maintain sufficient balance with the USER so as to enable each Transaction to be carried out smoothly. The USER reserves the right to decline any Transactions done over and above the balance of SUB-USER available with the USER.

In case of any differences in relation to the settlement amount reflected in reports provided by the USER, the difference shall be settled through mutual investigation of the un-reconciled Transactions. Both Parties shall provide their best efforts to settle such disputed Transactions within 30 working days of the transaction.

The Parties hereto agree that any payment instructions for Transactions accepted by the SUB-USER as per the terms hereof which are subsequently disputed due to (a) the authorization by the SUB-USER of any Transaction with an amount exceeding the SUB-USER’s account balance or credit limit, or (b) the authorization by the SUB-USER of a fraudulent Transaction, shall always be the liability and responsibility of SUB-USER only.

The SUB-USER hereby acknowledges and agrees that USER is a facilitator for payment processing services which are requested and authorized by Users and/or Sub-Users and USER shall not be responsible for any unauthorized transaction done by any person including third party and amounting to infringement of another’s rights or any chargebacks claimed by the subscribers / customers. It will be the responsibility of SUB-USER to ensure due protection while transacting online or otherwise. USER will assist the SUB-USER in settling any queries related to the Services that arise between the Users, its Sub-Users and its subscribers /customers. However, USER shall bear no responsibility with respect to the dispute or query related to payment made by the Subscriber / customers to the SUB-USER or its further Sub-Users.

SUB-USER OBLIGATIONS AND DUTIES

• The SUB-USER shall ensure that its personnel, third-party, and representatives as may be appointed by the SUB-USER, subject to prior written approval from the USER. The SUB-USER shall provide the details of the third party as and when requested by the SUB-USER. The SUB-USER shall ensure that all the contracts entered between the SUB-USER and third party shall incorporate the terms and conditions contained herein and shall not have any clauses mentioned therein that are against the spirit of this Agreement and/or violative of the arrangement contained herein.
• The SUB-USER may, subject to prior written approval from the USER, appoint an independent third party. The SUB-USER shall perform the required due diligence on the third parties as may be requested or required by the USER. The SUB-USER will provide the USER with a list of proposed new third parties and an Instant report with the result of the SUB-USER’s due diligence review conducted as well as its recommendation to approve or reject any such applicant as a third party. Any further Sub-User appointed by the SUB-USER to provide the Services shall: (a) execute an agreement with the SUB-USER, which, among other things, shall require the Sub-User to adhere to all the relevant terms and conditions of this Agreement and Applicable Laws and regulations (b) be subject to the USER’s prior written approval, and subject to any due diligence materials reasonably requested by the USER; and (c) execute such other contracts, agreements, and documents and to take all actions necessary to comply with Applicable Laws and regulations to provide Services to the Sub-User.
• The SUB-USER shall forthwith furnish to the USER, the list of further Sub-Users along with their details taken at the time of their on-boarding and KYC documentation, upon such demand made by the USER to that effect.
• The SUB-USER shall be solely liable for all the acts of the further Sub-User(s) and any act done by the further Sub-User shall be construed as the act of the SUB-USER.
• The SUB-USER undertakes to manage cash on the field, in transit and its outlets and ensure availability of sufficient cash at its outlets, to enable Customer transactions as per the mutually agreed Service program. The SUB-USER hereby confirms that it assumes all the risks associated with the handling of cash at the ground level.
• The SUB-USER shall act prudently in accordance with the terms of this Agreement and shall exercise all due diligence in carrying out its duties and obligations under this Agreement. The SUB-USER agrees that they will preserve the data in accordance with the legal/regulatory obligations of the USER and as required under various circulars, guidelines, notifications etc. issued by the RBI and other regulatory authorities.
• The SUB-USER shall not exercise any lien or right of set off or appropriation on any of the assets, properties, documents, instruments or material belonging to the USER and / or the Customers and / or non-Customers in the custody of the User for any amount due or claimed to be due by the SUB-USER from the Bank.
• The SUB-USER shall not bundle the Services offered on behalf of the USER to the sale of any other product of any other person.
• The SUB-USER undertakes that any equipment or technology used by the SUB-USER shall comply with the industry standards and updated regularly.
• The SUB-USER shall ensure that any change in its constitution during the subsistence / validity of Agreement shall not impair or discharge the obligations of the SUB-USER under this Agreement.
• The SUB-USER undertakes that any Customer information taken shall be strictly as per the terms of this Agreement and the SUB-USER would not source any other personal sensitive information from the Customers.
• The SUB-USER undertakes to verify all its payment made by its customer, further sub-user or third party. USER will not be held responsible for any transactions made by the customer, further sub-user or any third party of SUB-USER.
• If any legal proceeding is instituted by any Customer, the SUB-USER shall immediately intimate the same to the USER in writing and provide all documents and information to enable the USER to take appropriate action. The USER shall not be liable for any dispute arising between the SUB-USER and any other entity / third party.
• SUB-USER will not engage in any activity that violates any Applicable Law pertaining to gaming, gambling, betting or wagering.
• SUB-USER will not provide any services to any customer are of a nature that may be construed as a competition/contest/game/sport/event (online or offline) whose outcome is based merely or preponderantly or predominantly on chance.
• SUB-USER will ensure that its Services are at all times in compliance with all Applicable Laws including those pertaining to restriction or prohibition on gambling, betting, wagering and gaming activities.
• SUB-USER will ensure that the Services to customers in the states of Nagaland and Sikkim (if so provided) are in accordance with the Applicable Laws of these states and You have obtained and hold all necessary and valid licenses and registrations to provide the Merchant Services in Nagaland and Sikkim.
• SUB-USER will provide no Services including facilitation, hosting or providing a platform for any competition/contest/game/sport/event (online or offline) for monies are rendered by it to (i) any customers in the states of Telangana, Odisha and Assam or (ii) any customers who are residents of the states of Telangana, Odisha and Assam.

LIMITATION OF LIABILITY

• USER (including its officers, directors, employees, representatives, affiliates, and providers) will not be responsible or liable for (a) any injury, death, loss, claim, act of God, accident, delay, or any direct, special, exemplary, punitive, indirect, incidental or consequential damages of any kind (including without limitation lost profits or lost savings), whether based in contract, tort, strict liability or otherwise, that arise out of or is in any way connected with (i) any failure or delay (including without limitation the use of or inability to use any component of the Website), or (ii) any use of the Website or content, or (iii) the performance or non-performance by Us or any Facility Provider, even if we have been advised of the possibility of damages to such parties or any other party, or (iv) any damages to or viruses that may infect Your computer equipment or other property as the result of Your access to the Website or Your downloading of any content from the Website.
• Notwithstanding anything under these Terms, USER’s aggregate liability and that of its affiliates, officers, employees and agents relating to the Service(s), will not exceed an amount equal to one (1) month fees paid by SUB-USER for the specific Service(s) giving rise to the liability. USER’s liability under or in connection with Terms will be proportionately reduced to the extent any loss or damage is contributed to SUB-USER or further Sub-users.

INDEMNITY

• SUB-USER agree to indemnify and hold USER (and its officers, affiliates, group company, directors, agents and employees) harmless from any and against all claims, whether or not brought by third parties, causes of action, demands, recoveries, losses, damages, fines, penalties or other costs or expenses of any kind or nature, including reasonable attorneys' fees, or arising out of or related to Your breach of these Terms, Your violation of any Applicable Laws or the rights of a third party, or Your use of the software or any disputes between SUB-USER and any third party.
• Notwithstanding any other provision of the General Terms of Use, SUB-USER shall indemnify and hold USER, its affiliates, and each of their directors, managers, officers, employees, and agents harmless from and against all losses (including any losses that are special, incidental, indirect, consequential, exemplary or punitive in nature) arising from claims, demands, actions or other proceedings as a result of or on account of (a) SUB-USER or his customer, further sub-user or any third party’s engagement in any activity that violates any Applicable Law pertaining to gaming, gambling, betting or wagering.

FORCE MAJEURE

If performance of Services/Website by USER is prevented, restricted, delayed or interfered with by reason of labour disputes, strikes, acts of God, epidemic, pandemic, floods, lightning, severe weather, shortages of materials, rationing, inducement of any virus, malware, trojan or other disruptive mechanisms, any event of hacking or illegal usage of the Website, utility or communication failures, earthquakes, war, revolution, acts of terrorism, civil commotion, acts of public enemies, blockade, embargo or any law, order, proclamation, regulation, ordinance, demand or requirement having legal effect of any government, regulatory or any judicial authority or representative of any such government, or any other act whatsoever, whether similar or dissimilar to those referred to in this clause, which are beyond the reasonable control of USER, then USER shall be excused and discharged from such performance to the extent of and during the period of such force majeure event, and such non-performance shall, in no manner whosoever, amount to a breach by USER of its obligations herein or incur any legal liability on USER.

ANTI BRIBERY AND SANCTIONS LAWS

You agree to comply with all applicable anti-bribery and anti-corruption laws which prohibit officials, representatives, agents or any other person associated with or acting on behalf of You from giving, offering, promising to offer, receiving/ accepting or acting in any other manner so as to induce a payment, gift, hospitality or anything else of value (either directly or indirectly) whether from within the country or from abroad to government officials, public servants, regulatory bodies, judicial authorities, persons in positions of authority, elected or contesting electoral candidates, political parties or office bearers thereof or any other third party or person in order to obtain an improper commercial/ business advantage of any kind. Government officials include any government employee, candidate for public office, an employee of government- owned or government–controlled companies, public international organisations and political parties. You also agree not to give, offer, pay, promise or authorise to give or pay, directly, indirectly or through any other person, of anything of value to anybody for the purpose of inducing or rewarding any favourable action or influencing any decision in Your favour.

FRAUDULENT TRANSACTIONS

• If USER is intimated, by a Facility Provider, that a customer has reported an unauthorised debit of the customer’s Payment Instrument (“ Fraudulent Transaction ”), then in USER shall be entitled to suspend settlements to You during the pendency of inquiries, investigations and resolution thereof by the Facility Providers.
• If the amount in respect of the Fraudulent Transaction has already been settled to You pursuant to these Terms, any dispute arising in relation to the said Fraudulent Transaction, following settlement, shall be resolved in accordance with the RBI’s notification DBR.No.Leg.BC.78/09.07.005/2017-18, dated July 6, 2017 read with RBI’s notification DBOD. LEG. BC 86/09.07.007/2001-02 dated April 8, 2002 and other notifications, circulars and guidelines issued by the RBI in this regard from time to time.
• Subject to Clause 12.2 above, if the Fraudulent Transaction results in a Chargeback, then such Chargeback shall be resolved in accordance with the provisions set out in the Terms.
• SUB-USER acknowledge that USER shall not be responsible for any liability arising in respect of Fraudulent Transactions whether it is an international or a domestic transaction.
• You shall be liable in the event of breach of the fraud amount thresholds as provided under the NPCI guideline on ‘Fraud liability guidelines on UPI transactions’ NPCI/2022- 23/RMD/001. You hereby understand and agree that the decision of the NPCI or the concerned acquiring bank, as the case may be, shall be final and binding.

SUSPENSION AND TERMINATION

• Notwithstanding anything to the contrary, USER shall have the right to immediately suspend Services and settlement of any monies or payments to You, without any liability to You, in the event of the following:
• SUB-USER breach any clause of these Terms.
• SUB-USER facilitate any transaction which is unlawful or in contravention with ‘Prohibited Products and Services’ listed below.
• USER receives instructions from Facility Providers or governmental authorities or law enforcement agencies to either suspend the Services, or part thereof, or directs to suspend the Services or part thereof regardless of whether there is pending investigation/enquiry into any alleged illegal/unlawful activities.
• These Terms are effective upon the date SUB-USER use the Services and continue until terminated by SUB-USER or USER. USER may terminate these Terms or close SUB-USER account at any time for any reason (including, without limitation, for any activity that may create harm or loss to the goodwill of USER). Where Applicable Laws requires advance notice of termination to be provided, we will, prior to termination, provide You with the required advance notice of termination.
• Termination does not immediately relieve SUB-USER of obligations incurred by SUB-USER under these Terms. In addition, upon termination SUB-USER understand and agree that USER will not be liable to SUB-USER for compensation, reimbursement, or damages related to SUB-USER use of the Services, or any termination or suspension of the Services or deletion of SUB-USER information or account data; and SUB-USER will still liable to USER for any fees or fines, or other financial obligation incurred by SUB-USER or through SUB-USER use of the Services prior to termination.