These Loyalty Terms and Conditions, as amended, modified, updated or restated from time to time govern the provision of Loyalty Services by PayU Payments Private Limited (“PayU”) to the Merchant. These Loyalty Services Terms and Conditions may be amended, modified, updated or restated from time to time by PayU and the same shall be applicable on the Merchant immediately upon such amendment, modification, updation or restatement. The Merchant shall be responsible for periodically referring to these Loyalty Services Terms and Conditions (as amended, modified, updated or restated from time to time) in order that the Merchant remains informed about the same.

By availing the Loyalty Services (or any part thereof), the Merchant expressly agrees to have read, understood and irrevocably provide its consent to be bound by all of the terms of these Loyalty Services Terms and Conditions, which constitutes a legally binding contract between PayU and the Merchant.

I. DEFINITIONS

(a) “Benefit” shall mean the benefit of a Loyalty Program/ Campaign by way of instant discounts made available to Customers in relation to any payment transaction or a Campaign Transaction under the applicable Loyalty Program and/or Campaign and “Benefits” shall be construed accordingly.

(b) “Campaign” shall have the meaning set out in clause 1.1 of paragraph II of these Loyalty Terms and Conditions and “Campaigns” shall be construed accordingly.

(c) “Customer” shall mean an individual who is entitled or otherwise enabled for the Benefits, while transacting at the Merchant Establishment(s), as per the terms of the Loyalty Program and/or the Campaign, as the case may be.
(d) “Campaign Customer” shall mean the classification of Customers, to whom a particular Campaign is made available.
(e) “Campaign Terms” shall mean the terms of any one or more Campaigns as agreed by the Parties under the applicable Campaign Order.
(f) “Campaign Transaction” shall mean a payment transaction undertaken by the Campaign Customer for the purchase of any Eligible Product on which a Benefit is applicable under a Campaign and “Campaign Transactions” shall be construed accordingly.
(g) “Card” shall mean a valid credit card or debit card issued by an issuer permitted to issue a Visa, MasterCard, Visa Electron, RuPay, Maestro, cash card etc. including any pre-paid card or other card as may be specified by PayU from time to time and “Cards” shall be construed accordingly.

(h) “Computer System” shall mean any electronic, magnetic, optical or other high-speed data processing device or system, communication system, software and/or hardware which performs logical, arithmetic, data storage and retrieval, communication control and other functions, and includes all input, output, processing, storage, computer software, hardware or communication facilities which are connected or related to computers in a computer system or computer network or Network Connections and “Computer Systems” shall be construed accordingly.
(i) “Customer Charge” shall mean the sale price of the product(s)/ service(s) purchased by the Customer plus the shipping charge (if any) and all other taxes, duties, costs, charges and expenses in respect of purchase of the Eligible Product(s) that are to be paid by the Campaign Customer.
(j) “Dashboard” shall mean PayU’s technology-based solution or platform (which may or may not include Network Connections) that enables the Merchant to create and manage – 1) the Loyalty Program and 2) the Campaigns. The Dashboard provides the Merchant a platform which can be used to (i) design the Loyalty Program whereby the customers can earn, redeem and manage the Loyalty Points, and otherwise monitor the Loyalty Points so earned and redeemed by its customers; and/ or (ii) design the Campaigns which shall enable the customers to avail the Benefit of the Campaigns. The Dashboard also provides the Merchant with a ledger system that keeps track of the Loyalty Program and the Campaigns, along with handling of refund, settlement and pricing.
(k) “Intellectual Property” shall mean all intellectual property of every nature and kind including, without limitation, trademarks, logos, service marks, copyrights, patents, designs, whether registered or applied for, and shall also include any business ideas, know-how, confidential information, trade and business names, trade secrets, software programs and specifications that are capable of legal protection, whether they be the subject matter of any statutory registration or not.
(l) “Loyalty Points” shall mean the benefit granted by the Merchant to its customers, that is redeemable against the Customer Charge.
(m) “Loyalty Program” shall mean the program designed by the Merchant on the Dashboard, by creating (i) configurations regarding the Loyalty Points structure; and (ii) rules regarding the manner of earning and burning/ redeeming the Loyalty Points, for one or more Campaigns.
(n) “Loyalty Service” shall have the meaning set out in clause 1.3 of paragraph II titled “Terms and Conditions” of these Loyalty Terms and Conditions and “Loyalty Services” shall be construed accordingly.
(o) “Network Connection” shall mean any integration or link between the Merchant’s Computer System, on the one hand, and that of PayU, on the other, as may be enabled by PayU in relation to the Loyalty Services and “Network Connections” shall be construed accordingly.
(p) “Party” shall mean either PayU or the Merchant as the context may require and “Parties” shall be construed accordingly.

 

II. TERMS AND CONDITIONS

 

1.1. PayU shall enable the Merchant to run one or more promotional campaign, offered by the Merchant, from time to time, as made available on the Merchant Establishment (each such arrangement hereinafter referred to as a “Campaign”). By availing the Loyalty Services of PayU, the Merchant irrevocably and unconditionally confirms and agrees as follows:
1.2. The Loyalty Services made available by PayU in terms of the Loyalty Agreement are in the nature of value-added services being provided by PayU to the Merchant, subject to the terms and conditions of the Loyalty Agreement of which these Loyalty Terms and Conditions are a part.
1.3. Loyalty services shall include: (a) PayU providing a Dashboard (b) PayU allowing access to the Dashboard so as to enable running of Loyalty Programs, either with or without Campaigns so curated by the Merchant, and (c) service in the nature of written communication (as determined by PayU) to the Customers of the status of their Loyalty Points, including the Loyalty Points earned or burnt and (collectively, “Loyalty Service”).

2. Loyalty Services

2.1. The following provisions shall be applicable to the Loyalty Services: (a) PayU hereby provides a non-transferable, non-exclusive and revocable license to the Merchant to access and use the Dashboard, solely for the purpose of enabling configuration of the Loyalty Program and, (b) PayU may, in its absolute discretion, refuse the Merchant or any other person access to any part or all of the Dashboard at any time and without assigning any reason.
2.2. The Merchant shall ensure that adequate security measures are implemented by the Merchant on its systems (including Computer Systems) which shall continue to be in place during the entire course of time Loyalty Services are provided by PayU. The Merchant shall also use and maintain systems (including Computer Systems) having sufficient quality and performance capabilities for using the Dashboard. The Merchant also undertakes to implement, use and run the Loyalty Services in accordance with any technical specifications as may be specified by PayU from time to time. The Merchant confirms that the Loyalty Services are being provided by PayU on an “as is where is” basis.
2.3. The Merchant confirms that the Dashboard is neither a marketplace nor is PayU providing any e-commerce platform. The use of the Dashboard by the Merchant is entirely voluntary.
2.4. Benefits will be made available to Customers under the Loyalty Program and as per the specific Campaign/s that will be run by the Merchant in accordance with the terms and conditions as agreed by the Customer and the Merchant under the terms applicable to the said Campaign.
2.5. The Merchant understands that PayU’s Loyalty Services are based on the information of the Customer (including phone number, email id etc. and for receiving messages) collected/ to be collected by the Merchant on behalf of PayU and shared with PayU. In order to process this information and render the Loyalty Services, it is essential for the Merchant to seek necessary consent and permissions of the Customer as per Applicable Law. The Merchant hereby acknowledges and confirms that the Partner has obtained such consent / permissions or has such rights, in accordance with Applicable Laws, from the Customer to process the information of the Customer for the purpose of PayU providing Loyalty Services. The Merchant hereby agrees to present such records of consents, acceptance or proof of seeking such rights from the Customer to PayU, as and when required by PayU. The Merchant further agrees to maintain such proof and logs during the tenure of this Loyalty Addendum and for a period of at least 3 years after the termination of the same.

 

3. Terms relating to process and funds flow

3.1. The Merchant shall ensure that the Campaign will clearly communicate any and all Benefits to Campaign Customers, at the time of such Campaign Customers making any Campaign Transactions at the Merchant Establishment.
3.2. Benefits from the redemption of the Loyalty Points, whether by itself or as part of a Campaign will be granted by the Merchant to the Customers, in the form of instant discount on the Customer Charge.
3.3. The Merchant understands and agrees that, the Customer Charge shall stand reduced instantly to the extent of the Benefits and the said reduced amount, that is the Payment Amount, shall then be remitted by the underluying payment aggregator to the Merchant. It is hereby clarified that the payment aggregator will transfer to the Merchant, the Customer Charge minus the Benefit (“Payment Amount”), as part of the payment aggregation services offered by such payment aggregator under the relevant service agreement.

 

4. Registration, Data Confidentiality and Verification:

4.1. In order to access the Dashboard, the Merchant will need to create one or more user accounts with PayU, register itself with PayU in accordance with the process specified by PayU and complete the authentication process through one of the methods of authorization specified by PayU in accordance with specifications issued by PayU. The Merchant shall at all times, provide correct and complete information.
4.2. The login data, including any usernames and passwords, will be intended solely for the Merchant’s use and therefore, are always to be kept confidential, secret and safe, and shall not be shared, transferred, assigned or otherwise disclosed by the Merchant to any third parties. PayU may, at any time, require the Merchant to certify and provide evidence indicating compliance with this requirement and/or to provide additional information of its users to verify their identity as a condition precedent to permitting access to the Dashboard or before PayU permits the Merchant to use the Dashboard.
4.3. The Merchant may only authorize its full-time employees engaged to work exclusively for the Merchant (and if so required by PayU, expressly authorized by way of a board resolution or other equivalent document of the Merchant) to access and use the Dashboard (“Authorized Representatives”).
4.4. Notwithstanding anything to the contrary in the Loyalty Agreement, any access and/or use by any person of the Dashboard using the login credentials of the Merchant shall be deemed to be access and use for and on behalf of the Merchant and the Merchant shall be deemed to be fully and solely responsible for the same including, without limitation, any liabilities arising therefrom. PayU has no responsibility to investigate the background, confirm the identity of the Merchants’ account users or verify the information provided by its account user.
4.5. With regard to the Loyalty Services, all services and information provided by PayU is on an “as is” and/ or “as available” basis, without any express or implied warranties of any nature including, without limitation, of merchantability, accuracy of information, fitness for a particular purpose and/ or non-infringement. Except as specifically provided to the contrary in these terms and conditions, PayU has not made any representations or warranties to the Merchant concerning the specific quality of performance of the Loyalty Services and Dashboard provided under these Loyalty Terms and Conditions. PayU will not be liable for any losses, damages, costs and/or other liabilities arising from or relating to the use of Loyalty Services by the Merchant or those arising from or relating to PayU’s reliance on any instructions, notices, documents or communications received by PayU and believed by PayU to be originating from the Merchant and/ or the Authorized Representatives. PayU reserves the right (but undertakes no duty) to require additional authentication, documentation and information from the Merchant, as and when deemed necessary by PayU.
4.6. Notwithstanding anything to the contrary in the Loyalty Agreement (including termination or expiry of these terms and conditions), the Merchant shall not directly or indirectly through the Authorized Representatives or otherwise, in relation to the Dashboard or otherwise the overall Loyalty Services:
(a) attempt to decipher, decompile, disassemble, derive or reverse engineer any of the source code for Dashboard, software or conduct any activity which compromises, interferes with or breaches PayU’s or another party’s Intellectual Property, or use the Dashboard to create a competing product.;
(b) take any action that imposes an unreasonable or disproportionately large load on the Dashboard’s infrastructure;
(c) use the Dashboard in any manner that would result in the Merchant breaching any applicable law or licensing obligations (including with respect to privacy) or any obligations the Merchant or PayU may owe to third parties;
(d) sell, share, reproduce, publish, distribute, transmit, modify, create derivative works, display, perform or otherwise use information available on the Dashboard or any of the Intellectual Property Rights for any commercial purpose or remove/ alter PayU’s or any other party’s copyright notices or other means of identification including any watermarks, as they appear on the Dashboard; or
(e) remove, circumvent, disable, damage, monitor, copy or otherwise interfere with security-related features of the Dashboard or features that enforce limitations on the use of the Dashboard.
4.7. The Merchant hereby acknowledges and confirms that the Loyalty Services being provided by PayU would not be used as the sole basis for taking any business decision, including deciding on offering Benefits to its Customers. PayU shall not be liable for any claim or any reason whatsoever arising out of the Merchant’s use of the Dashboard. The Merchant further agrees that for any recommendation/intervention shared by PayU to the Merchant with respect to providing an option for Benefits to the customer, PayU will merely be acting in the capacity of a technology service provider/ enabler and shall not be responsible for any consequence arising thereto, including for collection or setting off of any amount that is due to the Merchant from its customer or vice-versa. It is for the Merchant to obtain its independent assessment and determine the various payment options to be provided to the Customer. For the sake of clarity, PayU disclaims all liabilities in relation to any decision made by the Merchant in relation to any payment option visible to the Customer. Thus, the Merchant shall be fully responsible for all its dealings with its customer.
4.8. PayU shall not be liable for (i) any inaccuracy, incompleteness or other error in any information provided to the Merchant or (ii) any failure of provision of Loyalty Services by way of the Dashboard to achieve any particular result for the Merchant.
4.9. PayU in no way whatsoever warrants that Dashboard will be uninterrupted or error free and shall not be liable in any manner whatsoever for delays, interruptions, service failures or other problems inherent in the use of the internet and electronic communications. In case of any errors arising due to the functionality of Dashboard, PayU shall use its best endeavours to rectify such errors.

5. Rights and Obligations of PayU and Merchant

5.1. It is agreed that Merchant’s obligations under the Loyalty Addendum for availing Loyalty Services shall include, without limitation, the following:
(a) The Merchant shall comply with the applicable laws and all other documents issued and agreed between the Parties from time to time in writing in pursuance hereof;
(b) The Merchant indemnifying and keeping PayU indemnified and harmless in respect of any liabilities arising out of or in relation to using the Loyalty Services, including, without limitation, relating to Benefits or any other financial liabilities such as refunds, chargebacks, cancellations, paybacks, cashbacks, discounts and tax liabilities, customer grievance/ disputes, or any other third party claims etc.
(c) Merchant shall take all such steps, actions, issue necessary directions, execute documents including contracts as may be required by PayU to ensure that:
(i) Appropriate infrastructure is available with the Merchant and/or Merchant Establishment for connecting the Dashboard with the Merchant’s Computer Systems in relation to the Loyalty Services, and any infrastructure as may be reasonably required by PayU. The Merchant is responsible for acquiring and updating compatible hardware or devices necessary to access and use the Dashboard and any updates thereto. PayU does not guarantee that the Dashboard or any portion thereof, will function on any particular Computer System;
(ii) Merchant’s Computer Systems linked directly or indirectly to the Dashboard are only operated by Merchant’s Authorized Representatives in accordance with operating instructions, if any, issued by PayU from time to time;
(d) The Merchant shall take all steps and actions which may be necessary to safeguard the Network Connections and the Computer Systems of the Merchant from any loss, damage, unauthorized usage, misuse or theft and in any such event immediately notify PayU in writing in case of any such event; and
(e) The Merchant shall not remove, relocate, modify, decompile or in any way alter the Network Connections without the prior written consent of PayU.
(f) The Merchant understands that in order for PayU to provide the Loyalty Service to the Merchant, it is essential for the Merchant to seek the consent of its customer to share the customer’s information, collected by or available with the Merchant, with third parties for further processing, which includes for the purposes of providing services to the Merchant. The Merchant hereby acknowledges and confirms that the Merchant has obtained such consent or has such rights, in accordance with applicable laws, from its customers to process their information in the aforesaid manner and further provides its express consent to PayU to access, collect, share or transfer certain information, including personal and/or sensitive information, of the Merchant and of customers (including Campaign Customers) for the purposes of providing services to the Merchant in accordance with the Loyalty Agreement and applicable laws. The Merchant shall ensure that wherever applicable, it shall have procured similar consent from its end customers (including Campaign Customers) prior to sharing any such information with PayU for the purposes of the Loyalty Agreement.
(g) Notwithstanding anything contained in these terms, the Merchant shall exclusively ensure any Merchant data and its customer data made available to PayU hereunder is: (a) made available under applicable permitted legal basis, for the Merchant to obtain Loyalty Services; and (b) processed by PayU in accordance with applicable notification to data subjects, borne by Merchant (to the extent such notification is mandated under Applicable Laws). For clarity, PayU expressly relies on Merchant to comply with the foregoing obligations, in addition to any applicable legal obligation, in order to facilitate Merchant to receive Loyalty Service.
(h) The Merchant hereby agrees and acknowledges that the data received, collected, processed and stored by PayU pursuant to its use of the Dashboard is in accordance with PayU’s privacy policy and the Applicable Laws.
(i) The Merchant understands and acknowledges that it is being provided access to the Dashboard and any information contained therein only to avail the Loyalty Services and that access to the Dashboard and any information shared thereof, shall not be shared by the Merchant with any third party, except after seeking an explicit written consent from PayU and in accordance with Applicable Laws.
(j) The Merchant shall be solely responsible for the security, confidentiality and integrity of its account and access to the Dashboard and all messages and the content that it receives, access, transmits or stores through the use of the Dashboard.
(k) The Merchant shall be solely responsible for any unauthorized access to its account by any person or any unauthorized usage of the Dashboard using its account. The Merchant agrees to bear all responsibility for the confidentiality of its login credentials and for any acts and omissions that occur under its account or password. PayU shall not be held liable or responsible for fraud, breach of security or hacking of the Dashboard.
(l) The Merchant agrees that any material downloaded or otherwise obtained through the use of Dashboard is done at the Merchant’s own discretion and risk and that it will be solely responsible for any damage to its Computer Systems or loss of data that results from the download of any such material.
5.2. The Merchant confirms that PayU shall not have any liability with regard to the determination whether a customer is eligible under a Loyalty Program and/or a Campaign so as to be able to get the Benefits.
5.3. PayU shall not be liable in the event of any disputes regarding any Campaigns, Benefits or any Campaign Transactions and all such disputes, if any, shall be resolved by and between the Campaign Customers and the Merchant.
5.4. PayU shall not be liable for any loss, expenses or damage whatsoever caused by:
(a) any financial liabilities including without limitation, refunds, chargebacks, cancellations, paybacks, Benefits and tax liabilities,
(b) any failure for whatever reason of a payment mode or Network Connection or Computer System or any part thereof to function properly or at all in relation to the Loyalty Services described herein; or
(c) any unauthorized acquisition of information by any person through electronic or other interception of communications on any network.

6. Intellectual Property

6.1. PayU owns or is licensed to use all Intellectual Property in Dashboard. The Merchant may not use any of PayU’s Intellectual Property for any purpose other than as may be required to use Dashboard for availing the Services. All content, data and information in relation to Dashboard, including without limitation the text, software, scripts, source code, API, graphics, photos, sounds, music, videos and interactive features and the trademarks, service marks and logos contained therein (“PayU Content”), are owned by PayU in perpetuity. PayU Content is provided to the Merchant on an ‘as is’, ‘as available’ and ‘with all faults’ and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purposes other than as intended under these terms and conditions, without the express prior written consent of PayU. No right or license under any copyright, trademark, patent, or other proprietary right or license is granted by these terms and conditions unless expressly provided herein. PayU reserves all rights not expressly granted in and to the PayU Content, Dashboard, and these terms and conditions do not transfer ownership in or license or any interest in any of those rights.
6.2. The Merchant acknowledge that PayU is the sole and rightful owner of the Intellectual Property Rights in Dashboard and the PayU Content and the Merchant agrees not to register, use or file in its own name or in the name of any other person or company any trademarks same or similar or resembling in any manner the Intellectual Property in Dashboard and the PayU Content and not to associate the Intellectual Property with its or their businesses, except for the purposes as expressly specified in these terms and conditions.
6.3. This clause shall survive any expiration or termination of these terms and conditions.

7. Payment Terms:

7.1. PayU shall send an invoice for the Loyalty Service Fee to the Merchant every month either during the month or after the month in which the Loyalty Services have been rendered by PayU. The said monthly invoice shall be due and payable by the Merchant within 10 working days of receipt. Alternatively, PayU may deduct the Loyalty Service Fee from any settlements of the Merchant or any other amounts of the Merchant in the custody or control of PayU which the Merchant irrevocably and unconditionally confirms. PayU reserves the right to revise the Loyalty Service Fee and the mode of levying such Loyalty Service Fee by intimating the Merchant in writing of any such changes within a reasonable time from such revision having been effected.
7.2. The Loyalty Service Fee shall be payable irrespective of any refunds or chargebacks or cancellations and in a timely manner, to ensure continuity of the Loyalty Services. It is agreed that if any outstanding balance with regard to the Loyalty Service Fee or any other amount payable by the Merchant under this Loyalty Agreement remains unpaid for 60 calendar days from the date of the invoice, the Merchant shall be liable to pay an interest of 18 % (twelve percent) per annum over and above the outstanding balance from the date of the invoice until paid.
7.3. In case any Loyalty Service Fee or any other amounts under this Loyalty Agreement payable by the Merchant remains unpaid to PayU, the same shall be deemed to be an “Outstanding Amount” under the Service Agreement and PayU shall be entitled to exercise all rights and remedies pertaining to such Outstanding Amounts as provided under the Service Agreement in addition to any rights or remedies exercisable by PayU under the Loyalty Agreement.

 

8. Notices, Governing law, dispute resolution and jurisdiction

With regard to notices, governing law, dispute resolution and jurisdiction, the provisions of the Service Agreement shall be applicable as if expressly incorporated herein.

 

9. Miscellaneous

(a) Force Majeure: PayU shall not be obliged to provide any service or perform any of its obligations hereunder during the period a force majeure event occurs.
(b) General Representation and Warranty: Each party agrees and represents and warrants to each other that it has the full legal capacity to enter into these Loyalty Service Terms & Conditions and the same constitutes the valid and binding obligation of such party enforceable against it in accordance with its terms.
(c) Waiver: Unless otherwise expressly stated herein, the failure to exercise or delay in exercising a right or remedy hereunder shall not constitute a waiver of that right or remedy or a waiver of any other rights or remedies, and no single or partial exercise of any right or remedy under these Loyalty Services Terms & Conditions shall prevent any further exercise of that right or remedy or the exercise of any other right or remedy.
(d) Survival of Provisions: The terms and provisions of Loyalty Services Terms & Conditions that by their nature are intended to survive the termination hereof shall so survive.
(e) Severability: If any Court/Tribunal of competent jurisdiction or any other regulatory or governmental authority holds any of the provisions of Loyalty Services Terms & Conditions unlawful or otherwise ineffective, the remainder of Loyalty Services Terms & Conditions shall remain in full force and the unlawful or otherwise ineffective provision shall be deemed to have been deleted or omitted from Loyalty Services Terms & Conditions.
(f) Any breach or non-compliance of these Loyalty Services Terms & Conditions shall be considered or deemed to be a breach / non-compliance of the Agreement and to that extent, PayU shall be entitled to exercise its rights under the Loyalty Agreement.