The Merchant Terms provided herein below are applicable to the Merchants registered with Apex and Merchants understand that once they click on the “I Accept” tab, the Merchant Terms are deemed to be accepted by them. These Merchant Terms should be read in conjunction with the Terms of Use and Privacy Policy available on Apex Website, and the Merchant Registration Form as signed and uploaded on this Portal.
a) “Account Bank” shall mean the Bank in which Apex has an Escrow Account.
b) “Affiliate” in relation to a Person, means any other Person, directly or indirectly controlling, controlled by, or under common control of or with, that Person or any Person or entity forming part of such Person. If such Person is an individual, the term Affiliate shall include a relative of such individual.
c) “Applicable Laws” means any law, statute, rule, regulation, order, circular, decree, directive, judgment, decision or other similar mandate of any applicable central, national, state or local governmental authority having competent jurisdiction over, or application to the Merchant or subject matter in question.
d) “Customer” shall mean an individual or legal entity, who purchases Products or Services offered by Merchant.
e) “Dashboard / Aspire / Max” is Apex owned and established electronic information management tool that visually tracks, displays and stores metrics and data points pertaining to Transactions.
f) “Virtual Account” shall mean the Virtual Account that the customers shall have in the Account Bank.
g) “Escrow Payment Service” shall mean the third-party payment service under which Merchant will receive payments from its Customer to the Escrow Account / virtual account with the Account Bank.
h) “Person” includes an individual, an association, a corporation, a partnership, a joint venture, a trust, an unincorporated organisation, a joint stock company, a bank, a non-banking financial company or other entity or organisation, including a government or political subdivision, or an agency or instrumentality thereof and / or any other legal entity.
i) “Personal Data” means ‘personal information’ and ‘sensitive personal data or information’ as defined under the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 as amended from time to time.
j) “RBI” means the Reserve Bank of India constituted under the Reserve Bank of India Act, 1934.
k) “Transaction” shall mean the purchase of any Products / Services by the Customer including the payment made by the Customer for such Products / Services through a Participating Bank.
l) “Transaction Amount” means the amount paid by the Customer in connection with Transaction.
m) “Participating Banks” shall mean the banks with whom the Customers maintain the accounts through which their payments are made in respect of the Transactions and from whom the Account Bank will receive monies for onward payment to the Merchants in the Escrow Account.
n) “Products and Services” shall mean goods and / or services offered for sale by the Merchants to the Customers.
o) “Escrow account” shall mean an account open with the Account Bank, where Apex receives the Transaction Amount from Customer.
p) “Force Majeure Event” means any act, occurrence or omission, as a direct or indirect result of which the party relying on it is prevented from or delayed in performing any of its obligations under this Agreement, and which is beyond the reasonable control of that party including but not limited to war, warlike operation, insurrection, riot, fire, explosion, accident, action or inaction by any Governmental Agency, industrial action, material control regulations or orders, act of God, act of the public enemy, epidemic etc.
a) Apex manages and operates an online technology platform viz. Apex SmartCollect (“Platform”). Apex through its Platform provides payment collection management services to its registered Merchant in association with the Account Bank (“Services”).
b) Apex is a facilitator providing a platform whereby Merchant will receive all the payments made by its Customers to its respective bank account by using the Services provided by Apex. Having the same bank account complicates the reconciliation process for businesses. Apex’s smart collect platform / product eliminates this by creating a virtual account for every registered Merchant, wherein the Merchant will receive payment from its Customer and same shall be transferred to its bank account as per transaction method agreed in the Merchant registration Form of respective Merchant.
c) Merchant agrees that the opening and maintenance of the virtual account and/or availing of the Services so offered by Apex are subject to rules and regulations introduced or amended from time to time by the Reserve Bank of India (“RBI”) or National Payments Corporation of India (“NPCI”) or any other regulatory or statutory authority.
d) The Merchant hereby agrees and understands that Apex reserves sole discretion to accept or reject the Merchant’s application for opening and maintenance of the account and / or for availing of Services so offered by Apex and that the Apex decision in this regard would be final.
e) The Merchant shall execute all necessary documents / forms and / or furnish all information and/or comply with all the regulatory requirements so communicated by Apex from time to time. With Apex\’s payment links or through QR Code or NEFT or RTGS or IMPS the Merchant is empowered to collect payments from Customers through the Platform. These links or QR Codes are shareable through SMS, email, WhatsApp and other social media. However, no payment made by customer through cheque to the Merchant will reflect in the report or information provided through the Platform to the Merchant. Merchant understands and acknowledges that the Services are valid and available in online modes of payment such as by using the QR Code, or by NEFT or link provided by Apex. The Services are not available in offline mode of payment such as by cheque or cash. Apex shall not be responsible for any non- payments received from cheque in Escrow Account.
f) Platform is merely a facilitator and only takes responsibility for providing the Services for the collection of the payment and transfer of the payment to Merchant’s bank account and providing its report, data.
a) Merchant’s registration for availing Services is subject to the acceptance of these Terms of the Platform.
b) Merchant understands and acknowledges that the information provided by it shall always be accurate, correct and complete. Merchant shall be responsible for maintaining the confidentiality of its account and password. Merchant agrees to accept responsibility for all activities that occur under its account. Merchant cannot change its profile information and any other details that it has shared with the Platform. In case the merchant wants to change or update the information shared with Apex, it shall need to follow a detailed procedure consisting of updating such details through a form whether online or offline, as specified by Apex. Merchant shall keep all the details updated in connection with its account to keep it accurate so that we can contact You. Merchant shall provide additional information as required by the Platform from time-to-time. Apex reserves all its right to refuse registration or delete accounts at its sole discretion. Merchant agreed to not to set up an account on behalf of another individual or entity unless authorized to do so.
c) Merchant agrees to abide by all Applicable Laws and regulations and are solely responsible for all acts or omissions committed by it or its personnel.
d) These Transactions are between Merchant, and its Customers and Apex is acting as an intermediary. Apex is NOT (i) a payment System Provider as defined under the Payment and Settlement Systems Act, 2007, (ii) a banking company as defined under the Banking Regulation Act, 1949 or (iii) a non-banking financial company as defined by the Reserve Bank of India Act, 1938.
The Apex Fees and the payments shall be as per the terms stated in the Merchant Registration Form.
Merchant understands, acknowledges and agrees that the Platform is based on the Tally software / application. Apex disclaims any warranty as to the working of the base software. In case Merchant fails to have a valid license of Tally software, the Platform may not be able to provide Services.
a) Apex hereby grant Merchant a personal, limited, non-exclusive, revocable, non-transferable license, without the right to sublicense or assign, to electronically access and use Apex Services solely to:
i) Receive and accept or make Payments.
ii) Manage the funds you so receive or paid.
iii) manage the accounting data, make accounting entries and accessing the same on the mobile phone.
b) Merchant shall be entitled to download updates to Apex Services, subject to any additional terms, if any. Apex shall use reasonable endeavours to give prior notice of any down-time in relation to Apex Services as a result of updates or preventative or reactive maintenance of the Services.
c) Merchant acknowledges that the arrangement between Account Banks and Apex may be terminated at any time and services by such Account Banks may be withdrawn.
a) Merchant shall be held responsible for all activities conducted through the Platform.
b) Merchant shall solely use the Services provided for the purpose mentioned in this Agreement and not for any other third party / entity.
c) Merchant shall not interfere with Apex’s Services or try to access that by using a method other than the interface and the instructions that Apex provide.
d) Merchant shall not alter, change, copy, modify or make derivative works based on the Service or content.
e) Merchant shall be responsible for all the actions and omissions on behalf of its Customers and shall not hold Apex liable in any manner whatsoever.
a) Merchant agrees that it shall not directly or through any third party do any of the following:
i) Access or monitor any material or information on any Apex system using any manual process or robot, spider, scraper, or other automated means unless Merchant has separately executed a written agreement with Apex referencing this Clause that expressly grants you an exception to this prohibition.
ii) Copy, reproduce, alter, modify, dismantle, create derivative works, publicly display, republish, upload, post, transmit, resell or distribute in any way material or information from Apex.
iii) Permit any third party to use and benefit from Apex Services via a rental, lease, timesharing, service bureau or other arrangement.
iv) Transfer any rights granted to you under this Agreement.
v) Violate the restrictions in any robot exclusion headers on Apex Services, work around, bypass, or circumvent any of the technical limitations of the Services, use any tool to enable features or functionalities that are otherwise disabled in the Services, or decompile, disassemble, decode or attempt to decode or reverse engineer the Services or to in any way override or break down any protection system integrated into the Services.
vi) Perform or attempt to perform any actions that would interfere with the proper working of the Services, prevent access to or use of the Services by our other users, or impose an unreasonable or disproportionately large load on our infrastructure.
vii) Create a derivative software program or otherwise use the Services except as expressly allowed under this Agreement.
viii) Provide unauthorised access or reverse engineer the Service in order to build a competitive product or service, build a product using similar ideas, features, functions or graphics of the service, or copy any ideas, features, functions or graphics of the Service.
ix) Provide all the required documents as per Apex’s instructions.
x) In case of any dispute between Merchant and Customer with respect to Products / Services of the Merchant, same shall be solely handled by Merchant and shall keep Apex indemnified from any claims, damages, cost and attorney fees.
Merchant represents and warrants that:
a) It is an entity duly constituted and validly existing under Applicable Law.
b) It holds valid and subsisting licenses, registrations, approvals and consents as may be required for conducting its business and performing its obligations under this Agreement.
c) It has the requisite power and authority to execute, deliver and perform its obligations under this Agreement.
d) The execution and performance of this Agreement do not breach its organizational documents or any Applicable Law, provisions of any contract or order of court or tribunal applicable to it and does not require any governmental approval.
e) It shall comply with all Applicable Law including but not limited to the Information Technology Act, 2000 and the Prevention of Money Laundering Act, 2002.
f) It shall not, directly or indirectly, make or offer any payment, gift or other advantage which is intended to, or does, influence or reward any Governmental Authority in breach of Applicable Law including the Prevention of Corruption Act, 1988.
Apex is using third party vendors, bank and hosting partners to provide the necessary hardware, software, storage and technology to run the Services and it does not guarantee that the Services will be bug-free, error free, uninterrupted although efforts would be taken to provide clean working environment.
Merchant agrees to comply with all applicable commercial and public anti-bribery laws (“ANTI-BRIBERY LAWS”) which prohibit corrupt offers of anything of value (either directly or indirectly) to Government Officials to obtain an improper commercial / business advantage. Government Officials include any government employee, candidate for public office; an employee of government – owned or government – controlled companies, public international organisation and political parties. Each Party agrees not to offer, pay, promise or authorise the payment, directly or through any other Person, of anything of value for the purpose of inducing or rewarding any favourable action or influencing or decision in favour of such Party.
a) All data, information, inventions, intellectual properties (including patents, trademarks, copyrights, design and trade secrets), “know-how”, new uses and processes, and any other intellectual property right, asset or form, including, but not limited to, analytical methods, procedures and techniques, research, procedure manuals, financial information, computer technical expertise, software (collectively referred to as “INTELLECTUAL PROPERTY”):
(a) related to the Services contemplated under this Agreement.
(b) pertaining to the Dashboard and Apex API that are
(i) pre-existing and / or
(ii) conceived, generated, derived, produced or reduced to practice, by Apex or any of its Affiliates, as a result of the Services performed by Apex or such Affiliate shall be and remain the exclusive property of Apex or such Affiliate. For the avoidance of any doubt, intellectual property created by Apex or its Affiliate in the course of undertaking its duties and obligations under or during the Term of this Agreement is presumed to be owned by Apex (or the Affiliate) unless otherwise stated in writing.
b) Apex hereby grants to Merchant, for the Term of the Agreement, a non-exclusive, non-assignable, non-sublicensable and revocable license to use Apex API, APP and Dashboard only during the term of this Agreement.
c) Except as specified in Clause 12(b), nothing contained in this Agreement shall be construed to grant any rights and title to the Merchant in the Intellectual Property.
d) Upon termination of this Agreement all rights relating to the Intellectual Property developed by Apex during the Term of this Agreement along with modifications thereto shall continue to vest with Apex and the Merchant shall not have any right whatsoever over such Intellectual Property.
Each Party shall retain the Confidential Information of the other Party. The Parties shall treat the provisions of this Agreement as Confidential and shall not disclose any information to third parties without written consent of other Party in writing, except to the extent required by law or judicial or for carrying on the purpose of this Agreement. The Parties shall ensure that their employees shall maintain complete secrecy and confidentiality about the Agreement and any information about the Company that they may know or receive during the course of this Agreement.
a) If Apex is intimated, by the Account Bank or Participating Bank, that a Customer has reported an unauthorised debit from the Customer’s bank account (“Fraudulent Transaction”), then Apex shall be entitled to suspend the settlement of the amount associated with the Fraudulent Transaction during the pendency of inquiries, investigations and resolution there of by the Account Bank.
b) Merchant is responsible for all actions of account. Therefore, Apex does not recommend that Merchant should disclose the password or unique id to any third party. If Merchant chooses to share its unique id or password or any Personal Information with third parties, Merchant shall be solely responsible for the same. If Merchant loses control of the unique id and password, You may lose substantial control over Your Personal Information and may be subject to legally binding action.
a) The Merchant hereby agrees to ensure that the Transactions do not facilitate the offer, sale and purchase of products and / or services enumerated in Schedule I below.
b) If the Merchant breaches Clause 15 (a), then Apex shall be entitled to suspend Services until the Merchant cures such breach.
c) The Merchant acknowledges and agrees that if Apex disables access to the account Merchant, Merchant may be prevented from accessing the Services, account details or any files or other content which is contained in the said account.
d) The Merchant acknowledges and agrees that while Apex may not currently have set a fixed upper limit on the number of Transactions, which Merchant may send or receive through the Services, such fixed upper limits may be set by Apex at any time, at Apex’s sole discretion.
a) The Merchant agrees and acknowledges that Apex shall not be liable and responsible for refunding any Transaction Amount received from Customer to the Merchant’s Bank account or any dispute related to the Transaction for any reason whatsoever.
b) Apex is not responsible for handling any claims of third party including but not limited to dispute regarding Transaction including quality of product and services delivered by Merchant to the Customer.
The Merchant shall indemnify and hold Apex, its directors, promoters, managers, officers, employees, agents, Merchants and banks (“Apex Representatives”) harmless from and against all losses and costs arising from claims, demands, actions or other proceedings as a result of:
i) Fraud, negligence, misuse of Services and wilful misconduct by the Merchant and/or Merchant Representatives in the performance of this Agreement.
ii) Violation of Applicable Law by Merchant and / or Merchant Representatives.’
iii) Breach of the Merchant’s or Merchant Representative’s obligations under this Agreement.
iv) Disputes raised by the Customer or any third party in relation to a Transaction where such dispute is not attributable to Apex Services.
v) Fines, penalties and charges imposed by any third party or any Governmental Authority on account of Transactions that are in violation of Applicable Law.
vi) Any legal proceeding or governmental or regulatory investigation brought against Merchant and / or Merchant Representatives.
a) Neither Party shall be liable for special, incidental, indirect, consequential, exemplary or punitive damages under any theory of contract, tort, strict liability, statute or under any other legal or equitable principle or otherwise, arising out of or in any manner connected with this Agreement and regardless of whether such Party has been informed of, or might have anticipated, the possibility of such damages.
b) In any case the aggregate liability of Apex under this Agreement shall not exceed an amount equal to the Fees received or receivable in respect of Transactions settled during the one (1) month period prior to the date of claim.
Apex shall have the right to review or to inspect or to have an outside auditor engaged by Apex or any regulatory authority to perform any such review or inspect Merchant’s books and records in case of any audits or inquiries by any statutory or regulatory bodies.
a) Apex may terminate this Agreement for its convenience without assigning / providing any reasons at any time during the subsistence of this Agreement by delivering not less than 30 days prior written notice of such termination to the Merchant.
b) Apex and Merchant shall be entitled to terminate this Agreement immediately by written notice on the occurrence of any of the following events:
i) The other ceasing to carry on business.
ii) The other going into liquidation otherwise than for the purposes of a bonafide amalgamation or reconstruction or
c) Termination of this Agreement is without prejudice to the rights, duties and liabilities of either party accrued prior to termination.
d) Effect of Termination of Agreement: Upon termination of the Agreement, the Merchant shall ensure clearance of all dues and claims of Apex.
a) Neither Party shall be in breach of its obligation hereunder if it is delayed in the performance of, or is unable to perform (whether partially or fully), such obligations as a result of the occurrence of a Force Majeure Event; provided that the Party affected by the Force Majeure Event shall give notice to the other Party of the occurrence of the Force Majeure Event as soon as reasonably practicable and in any case within seven (7) days from the date on which the affected Party knew or should reasonably have known of the occurrence of a Force Majeure Event.
b) Each Party shall make all reasonable endeavours to mitigate any delay or interruption to any part of the performance of this Agreement as a result of the occurrence of a Force Majeure Event.
c) If a Force Majeure Event which substantially impairs the performance by a Party of its material obligations under this Agreement occurs and such Force Majeure Event continues for a continuous period of more than ninety (90) days, then either Party may terminate this Agreement at any time thereafter by giving Thirty (30) days prior written notice to the other Party.
a) This Agreement shall be governed by and construed in accordance with the laws of India. The courts of Thane shall have jurisdiction in respect of any such disputes or claims.
b) All disputes, differences and / or claims arising out of this Agreement whether during its subsistence or thereafter shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996 (including any statutory modification(s) or re-enactment thereof) and shall be referred to a sole arbitrator nominated with the mutual consent of the Parties. The award given by such an arbitrator shall be final and binding on the Parties to this Agreement. The seat and venue of arbitration proceedings shall be Thane.
a) No Waiver: The Platform’s failure to insist on or enforce strict performance of any of the terms of these Terms of Use shall not be construed as a waiver of any provision or right unless the same is in writing.
b) Severability: If any part of these Terms of Use is held to be invalid or unenforceable by any law or regulation or final determination of a competent court or tribunal, that provision shall be deemed severable and shall not affect the validity and enforceability of the remaining provisions.
c) No Agency Relationship: Parties agree that no joint venture, employment, or agency relationship exists under the provisions of these Terms or from use of the Platform by Merchant.
d) Notices: All legal notices or demands to or upon Apex shall be made in writing and sent to Apex on its registered office personally, by registered post or email. The notices shall be effective when they are received by Apex in any of the above-mentioned manner.
e) Entire Agreement: These Terms constitute the entire agreement between Merchant and Apex relating to this subject matter and supersede any and all prior communications and/or agreements between Merchant and Apex relating to this subject matter.
(i) Adult goods and services which includes pornography and other sexually suggestive materials (including literature, imagery and other media); escort or prostitution services. Website access and/or Website memberships of pornography or illegal sites.
(ii) Alcohol which includes alcohol or alcoholic beverages such as beer, liquor, wine, or champagne.
(iii) Body parts which includes organs or other body parts.
(iv) Bulk marketing tools which includes email lists, software, or other products enabling unsolicited email messages (spam).
(v) Cable descramblers and black boxes which includes devices intended to obtain cable and satellite signals for free.
(vi) Child pornography which includes pornographic materials involving minors.
(vii) Copyright unlocking devices which includes Mod chips or other devices designed to circumvent copyright protection.
(viii) Copyrighted media which includes unauthorized copies of books, music, movies, and other licensed or protected materials.
(ix) Copyrighted software which includes unauthorized copies of software, video games and other licensed or protected materials, including OEM or bundled software.
(x) Counterfeit and unauthorized goods which includes replicas or imitations of designer goods. Items without a celebrity endorsement that would normally require such an association. Fake autographs, counterfeit stamps, and other potentially unauthorized goods.
(xi) Drugs and drug paraphernalia which includes illegal drugs and drug accessories, including herbal drugs like salvia and magic mushrooms.
(xii) Drug test circumvention aids which includes drug cleansing shakes, urine test additives, and related items.
(xiii) Endangered species which includes plants, animals or other organisms (including product derivatives) in danger of extinction.
(xiv) Gaming / gambling which includes lottery tickets, sports bets, memberships / enrolment in online gambling sites, and related content.
(xv) Government IDs or documents which includes fake IDs, passports, diplomas, and noble titles.
(xvi) Hacking and cracking materials which includes manuals, how-to guides, information, or equipment enabling illegal access to software, servers, website, or other protected property.
(xvii) Illegal goods which includes materials, products, or information promoting illegal goods or enabling illegal acts.
(xvii) Illegal goods which includes materials, products, or information promoting illegal goods or enabling illegal acts.
(xviii) Miracle cures which includes unsubstantiated cures, remedies or other items marketed as quick health fixes.
(xix) Offensive goods which includes literature, products or other materials that
(xx) Defame or slander any person or groups of people based on race, ethnicity, national origin, religion, sex, or other factors.
(xxi) Encourage or incite violent acts.
(xxii) Promote intolerance or hatred.
(xxiii) Offensive goods, crime which includes crime scene photos or items, such as personal belongings, associated with criminals.
(xxiv) Pyrotechnic devices, combustibles, corrosives and hazardous materials which includes explosives and related goods; toxic, flammable, and radioactive materials and substances.
(xxv) Regulated goods which includes air bags, batteries containing mercury, Freon or similar substances / refrigerants, chemical / industrial solvents, government uniforms, car titles, license plates, police badges and law enforcement equipment, lock-picking devices, pesticides, postage meters, recalled items, slot machines, surveillance equipment. Goods regulated by government or other agency specifications.
(xxvi) Securities which includes government bonds or related financial products.
(xxvii) Tobacco and cigarettes which includes cigarettes, cigars, chewing tobacco, and related products.
(xxviii) Traffic devices which includes radar detectors / jammers, license plate covers, traffic signal changers, and related products.
(xxix) Weapons which includes firearms, ammunition, knives, brass knuckles, gun parts, and other armaments.
(xxx) Wholesale currency which includes discounted currencies or currency exchanges.
(xxxi) Live animals or hides / skins / teeth, nails and other parts etc. of animals.
(xxxii) Multi-Level Marketing collection fees.
(xxxiii) Matrix sites or sites using a matrix scheme approach.
(xxxiv) Work-at-home approach and / or work-at-home information.
(xxxv) Drop-shipped merchandise.
(xxxvi) Any product or service which is not in compliance with all applicable laws and regulations whether federal, state, local or international, including the laws of India.
(xxxvii) The Merchant providing services that have the potential of casting the Payment Gateway Facilitators in a poor light and/or that may be prone to Buy & Deny attitude of the cardholders when billed (e.g. Adult material / Mature content / Escort services / friend finders) and thus leading to chargeback and fraud losses.
(xxxviii) Businesses or website that operate within the scope of laws which are not absolutely clear or are ambiguous in nature (e.g. Web-based telephony, Website supplying medicines or controlled substances, website that promise online match-making).
(xxxix) Businesses out rightly banned by law (e.g. Betting & Gambling / publications or content that is likely to be interpreted by the authorities as leading to moral turpitude or decadence or incite caste / communal tensions, lotteries / sweepstakes & games of chance.
(xxxx) The Merchant who deal in intangible goods / services (eg. Software download / Health / Beauty Products), and businesses involved in pyramid marketing schemes or get-rich-quick schemes. Any other product or Service, which in the sole opinion of either the Partner Bank or the Acquiring, is detrimental to the image and interests of either of them / both of them, as communicated by either of them / both of them to the Merchant from time to time. This shall be without prejudice to any other terms & conditions mentioned in this Agreement.
(xxxxi) Mailing lists.
(xxxxii) Virtual currency, Cryptocurrency, prohibited investments for commercial gain or credits that can be monetized, re-sold or converted to physical or digital goods or services or otherwise exit the virtual world.
(xxxxiii) Money laundering services.
(xxxxiiii) Database providers (for tele-callers).
(xxxxiv) Bidding / Auction houses.
(xxxxv) Activities prohibited by the Telecom Regulatory Authority of India.
(xxxxvi) Any other activities prohibited by applicable law.