Fave Engage Merchant Agreement
- Pine Labs is engaged in the business of providing technology solutions which inter alia include technology and software solutions, gift card and prepaid, petro automation, credit card and cash payment;
- Pine Labs is now also introducing a CRM product via its Fave Engage product on the Fave Biz website which a merchant can use to create campaigns and send communications to its user’s base (“CRM”);
- MERCHANT is engaged in the business of operating its retailing business relating to various products and services in India;
- MERCHANT wishes to avail services from Pine Labs related to the CRM at the Merchant Outlets.
NOW IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES AS FOLLOWS:
2. SCOPE OF THE AGREEMENT
3. OBLIGATIONS OF MERCHANT
3.1 It is agreed that MERCHANT’s obligations under this Agreement, shall include but are not be limited to the following:
i) To abide by the terms of this Agreement and the relevant Purchase Order issued by Pine Labs;
ii) Merchant is solely responsible for providing the Merchant Goods and services including but not limited to, the supply or delivery of the Goods and services, Customer service, after-sales-service and return management.
iii) Merchant is solely responsible for engaging with their billing POS and application providers and obtaining their necessary consents to enable integration and data transfer on the Fave Biz website to be used for sending out communication to their customer base. Pine Labs shall have no role or liability towards the same. Merchant is responsible for initiating the communication between Billing POS and application providers and Fave Engage
iv) Merchant acknowledges and provides its express consent to Pine Labs to collect, share or transfer certain personal sensitive information strictly in accordance with the applicable law and for the sole purpose of providing Services under the Agreement. Merchant shall ensure that wherever applicable for the purpose of the Agreement, it shall procure similar consent from its Customers prior to sharing the Customer’s personal information with Pine Labs.
v) Merchant also acknowledges and agrees that:
(a) it shall have no objection to use of data or transfer of data to third parties for performance of services as agreed under this Agreement;
(b) it shall comply with all necessary data security measures and applicable laws including DND scrub etc; while using the CRM and Services to send communications to Customers as agreed under this Agreement; and
(c) it shall ensure that its employees and staff members utilize such transferred data available on CRM only for the purposes allowed under this Agreement.
4. OBLIGATIONS OF PINE LABS
Subject to the terms in this Agreement, Pine Labs agrees to:
a. Provide MERCHANT with access to standardized reports regarding performance of their campaigns on the Fave Engage dashboard on the Fave Biz website as per applicable law;
b. Provision of any additional service, over and above the Services rendered by Pine Labs under this Agreement shall be mutually discussed and agreed in writing by the Parties.
c. Pine Labs receives data from the MERCHANT’s Billing POS or application, or a CSV upload with their customer data, so that the Merchant can send communication to the Customers. MERCHANT further agrees that Pine Labs will have no control or role over the communication sent to customers and shall not be responsible for the same in any manner and under any circumstances whatsoever.
5. CONSIDERATION AND PAYMENT TERMS
a) Pine Labs shall be entitled to payment of fee and to collection of additional charges for communication units purchased, and on the number of users as per terms set out in the Purchase Order (“Fees”) as given under Annexure A of this Agreement.
b) Pine Labs has the below payment options available for the Merchant to make payment of the Fees. The option applicable to a Merchant will be as agreed via the Purchase Order and Annexure A.
c) Any payment made by Pine Labs to the Merchant shall be without prejudice to any claims or rights which Pine Labs may have against the Merchant.
d) Default Interest: If any of the Fees or other sums payable under this Agreement shall not be paid when due, the Merchant shall pay to Pine labs interest on them calculated on a daily basis and compounded quarterly from the due date until payment at the rate of 2% per month.
e) Timely payments of invoices raised by Pine Labs is a precondition to ensure continuity of Services. All fee and charges are due and payable by Merchant in full within ten (10) days from the invoice date or as otherwise stated anywhere in the Agreement.
f) Bounce charges of Rs 500 per instance would be charged if applicable.
g) Deactivation notice of minimum 60 days to be given by Merchant to Pine labs.
6. GST and Invoices
a) Pine Labs shall account for the amount of GST for which it is liable, under the laws applicable to this Agreement. The Merchant shall account for the amount of GST for which it is liable, under the laws applicable to this Agreement. If applicable GST laws change such that Pine Labs becomes liable to account for GST which was previously liable to be accounted for (or was scheduled to be so liable to be accounted for by) to the Merchant, the Merchant agrees that Pine Labs may unilaterally vary the financial provisions of this Agreement to produce the result which would have been achieved had the change in GST laws not occurred.
b) Pine Labs shall send an invoice, where applicable to the Merchant on its Fee in compliance with applicable law.
c) In case Pine Labs does not receive GST details with the Purchase Order, it will be assumed that Merchant is not registered under GST and Pine Labs will raise an invoice accordingly. For the details received at a later date impact will be taken from the next billing cycle only.
d) Any addition/ modification in the aforesaid list of GSTINs, can be made by way of an addendum or written communication to Pine Labs, however, the addition/ modification in GSTINs will be applicable prospectively. Therefore, any invoice issued prior to addition/ modification shall not be amended to capture the new/ modified GSTINs
e) The Merchant shall provide the Customer with an invoice in compliance with applicable law.
f) For determining the GST liability to be charged from Merchant on Pine Labs invoice, the State in which Pine Labs services are consumed is of prime importance, in case no GST registration details are provided to Pine Labs for such state, Pine Labs will raise invoices as per the GST details provided by Merchant.
g) Pine Labs is rendering all our services from Noida, so the place of invoicing will be from Noida, Uttar Pradesh (U.P.) and thus GST Liability (IGST, CGST/SGST, UTGST) will be decided from U.P, India.
h) Merchants are advised to verify the correctness of invoice with regard to amount charged to them and GSTIN detail printed on invoice. In case of any correction Merchant has to inform at email@example.com with in 15days from the date of invoice
i) Merchant shall be responsible to reconcile the details as stated on the invoice raised by Pine Labs with the details appearing in auto-populated GSTR 2A of on the GSTN portal. In case of any mismatch, Merchant should communicate such mismatch to Pine Labs within one month from the date of invoice. In the absence of such communication, Pine Labs shall not be held responsible or liable to compensate for the credit loss or any interest or penalty or any other cost payable, by the Merchant, on account of such mismatch.
7.1 Each Party will, at all times, maintain confidentiality regarding the contents of this Agreement and any information that it receives, in any manner or form whatsoever, from the other Party (“Disclosing Party”), including business, technical or financial information, and any other material information that would be understood by the receiving Party, exercising reasonable business judgment, to be confidential.
7.2 For the purposes of this Agreement, “Confidential Information” includes all information designated as “confidential” or “proprietary” or which a party should reasonably know to treat as confidential relating to the trade secrets, operations, processes, plans, intentions, product information, know-how, designs, market opportunities, transactions, affairs and/or business of any Party actually disclosed or provided to the other Party.
7.3 For purposes of this Agreement, the term “Confidential Information” shall not include (i) information already known or independently developed by the recipient without the use of any confidential and proprietary information, or (ii) information known to the public through no wrongful act of the recipient.
7.4 This clause shall continue in force despite the expiry or termination of the Agreement, whatever the reason for termination.
7.5 Except as provided for herein, MERCHANT shall not use, reproduce, reverse engineer, resell, and/or disseminate any Pine Labs’ platform including the CRM without obtaining prior, written authorization from Pine Labs. Pine Labs grants MERCHANT a non-exclusive, non-transferable, limited, perpetual license to install and use Pine Labs India’s Mobile and Web Application for CRM software on MERCHANT designated equipment.
7.6 The Parties expressly agree that MERCHANT shall retain ownership in, and is liable for, any and all content that MERCHANT and/or its agent(s) provides, uploads or imports into the CRM via any of its applications during the term of this Agreement. Both Parties shall honour the intellectual property rights of the other and not breach it.
7.7 Upon Agreement expiration or cancellation, Pine Labs shall migrate all MERCHANT data to MERCHANT within sixty ( 60) days of such expiration or termination. All migration efforts shall be billed to MERCHANT at the rate of INR 4000 flat.
7.8 Support: Pine Labs shall respond to any query or complaint raised at firstname.lastname@example.org within twenty-four (24) hours of notification without additional cost. Pine Labs shall also provide (i) necessary training to MERCHANT staff and administration to ensure proper, and full capacity usage of the CRM and its Services and (ii) maintenance and support for the CRM during the term of the Agreement.
8. INDEMNITY AND LIMITATION OF LIABILITY
8.1 Parties agrees to indemnify, defend and hold harmless each other’s, affiliates, directors, officers, employees and agents (collectively, the “Indemnified Persons”), from and against any and all claims, actions, suits, proceedings, costs, damages, amounts paid in settlement and expenses (including without limitation reasonable attorneys’ fees and reasonable disbursements at actual) (collectively, “Loss”) asserted against or incurred by the Indemnified Persons, to the extent directly suffered (excluding consequential or special losses), as a result of, arising from, or in connection with, or any breach or inaccuracy of any representation, warranty, covenant or agreement made or failure to perform (whether in whole or part) any obligation required to be performed by them under this Agreement or non-observance / non-compliance of any applicable laws, rules and regulations.
8.2 Merchant agrees to indemnify, defend and hold harmless Pine Labs, its affiliates, directors, officers, representatives, employees and agents from and against any and all claims, Loss due to any claim by a Customer or anyone else arising out of or in connection with the Merchant offering (or any goods and/or services actually or purportedly offered in respect of or in connection to a cashback/any other offer/discount or any other goods and/or services offered by the Merchant, including, but not limited to, claims for personal injury, death, or property damages.
8.3 In no event will either Party be liable to the other Party for any loss of profits, loss of data, or for any special, indirect, incidental, consequential or punitive damages.
8.4 Pine Labs’ liability, if any arising from this Agreement, shall be limited to pro-rata Fees which becomes payable by MERCHANT to Pine Labs for the month when the claim arises.
9. TERMINATION AND CONSEQUENCES OF TERMINATION
9.1 Either Party reserves the right to terminate this Agreement for any reason by giving two (2) month’s written notice to the other Party. Parties agree that expiration or termination of this Agreement by Pine Labs will not relieve MERCHANT of any obligation accruing prior to such expiration or termination.
9.2 Parties shall have the right to terminate this Agreement with thirty (30) days written notice in case of any material breach of the Agreement and if the same is not cured within the notice period. In all events of termination, MERCHANT shall pay to Pine Labs all outstanding amounts, if any, and the said payment shall remain the continuing obligation of MERCHANT till all matters connected therewith are settled.
B. Consequences of expiry or termination
All amounts payable under this Agreement by MERCHANT including but not limited to the Fees shall become due and shall be settled within 5 days from termination. Termination of this Agreement in accordance with its terms shall not affect the accrued rights or liabilities of the Parties at the date of termination and shall have no effect on:
(i) the transactions already transacted prior to termination;
(ii) the Merchant’s obligations to provide the Merchant offering in respect of such transaction.
10. DISPUTE RESOLUTION
11. REPRESENTATIONS AND WARRANTY DISCLAIMER
Both Parties represents that:
a) they have all requisite power and authority to execute, deliver and perform its obligations under this Agreement and has been fully authorized by all requisite corporate actions to do so;
b) they hold and shall continue to hold all necessary statutory and regulatory permissions, approvals and permits for the running and operation of its establishment for the conduct of its business, and for compliance with this Agreement;
c) they shall comply at all times, with all laws, industry codes, applicable standards or other regulations or directions issued under the Applicable Law;
Merchant represents that :
a) it shall inform Pine Labs in writing immediately of any changes that could affect this Agreement;
b) all information provided by the Merchant and set out in this Agreement is accurate, complete and correct;
- MERCHANT agrees all intellectual property in the CRM and Services belongs to Pine Labs.
- The MERCHANT represents that they own all rights in their name, logo and/or trademark and hereby authorize Pine Labs to use the same in any promotional, marketing and/or publicity activities/material in any published, broadcast or electronic forum, and in any medium of advertising, publicity or trade or deploy any marketing material at Merchant Outlets.
- MERCHANT acknowledges and provides its express consent to Pine Labs to collect, share or transfer certain personal sensitive information strictly in accordance with the applicable law and for the sole purpose of providing services under the Agreement.
- MERCHANT shall ensure that wherever applicable for the purpose of the Agreement, it shall procure similar consent from its end customer prior to sharing any such end customer personal information with Pine Labs.
- MERCHANT shall ensure that it has adequate measures in place for security and privacy of customer data. Pine Labs/its external agencies/regulatory bodies shall have the right to review the MERCHANT’s security process and controls from time to time and MERCHANT shall promptly notify Pine Labs in the event of any security breach incidents.
- This Agreement is entered on a principal basis.
- All notices must be given at the principal place of address of Pine Labs as mentioned above.
- No waiver, by either party, of any provision of this Agreement shall, in any event, become effective unless the same shall be in writing.
- If any provision of this Agreement shall be found to be invalid or unenforceable, the invalidity or un-enforceability of such provision shall not affect the other provisions of this Agreement.
- This Agreement or rights and obligations herein cannot be assigned without express written approval of Pine Labs.
- If either party’s performance of any part of this Agreement, except for the payment of money owed when due under this Agreement, is prevented or delayed by a Force Majeure Event, that party will be excused from such performance to the extent it is necessarily prevented or delayed thereby. “Force Majeure Event” means an event beyond a party’s reasonable control, including without limitation, fire, flood, war or riot, acts of civil or military authority (including governmental priorities), severe weather, strikes or labor disputes.
- This Agreement will be governed under the laws of India.
- This Agreement constitutes the entire understanding between parties.
IN WITNESS WHEREOF, the Parties hereto have set and subscribed their hands through their respective duly authorized representatives as of the date first above written.
SIGNED and DELIVERED
By Pine Labs Pvt Ltd through its authorized
SIGNED and DELIVERED
By THE MERCHANT through its authorized
Merchant Terms and Conditions
These terms and conditions apply to the Cashback offered by the Merchant (“Cashback T&C”) via Fave App and forms an integral part of the Merchant Agreement (“Agreement”) entered into between Pine Labs Pvt. Ltd. (“Pine Labs”) and the Merchant whose particulars are set out in the Purchase Order (“Merchant”).
- be liable to return to the Merchant only upto 50% of the total Subscription Fee for remaining period of the Term for which the Fee has been paid, if any; and
- not refund any Communication Fee paid by the Merchant