Terms & Conditions for Usage of
Penguin Gateway Services and Website
Last updated: March 10, 2026
This document is an electronic record in terms of the Information Technology Act, 2000 and
rules thereunder as applicable and amended from time to time, including the Information
Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021. This
electronic record is generated by an electronic system and does not require any physical or
digital signatures.
By accepting the terms and conditions on the website of https://www.penguingateway.com/ (“Penguin Gateway Website”) or by accessing,
using, or availing any part of the Service, the users (“You”/ “Merchant”) expressly
agree to and consent to being irrevocably bound by these “Terms and Conditions” and all of
the terms set out herein. A reference to You shall also mean and include Your organisation,
as the case may be. If You do not agree with any of these Terms and Conditions, You must
immediately cease accessing and/or using the Penguin Gateway Website or other portals, or the
Services being provided under these Terms and Conditions. Your continued use of the Penguin Gateway
Website signifies Your confirmation to these Terms and Conditions. You may also review this
webpage periodically to be updated on the current version of the Terms and Conditions.
Your acceptance of these Terms and Conditions will operate as a binding agreement between You
and Penguin Gateway Payments India Private Limited, a company incorporated under the Companies Act,
2013 and having its registered office at Building No. 7, 10th Floor, Ecoworld, Sarjapur
Marathalli Outer Ring Road, Bellandur, Bengaluru, Karnataka, India, 560103 ("Penguin Gateway" or
“Us”) in respect of Your use of the Services.
Penguin Gateway’s
Privacy Policy is provided separately on the Penguin Gateway Website
and is an integral part of these Terms and Conditions. Thus, while accepting these Terms and
Conditions, You are confirming that you have read and unequivocally accepted our Privacy
Policy.
Registration
-
- Depending on the services to be availed, You may have to register on the
Penguin Gateway Website before accessing the complete dashboard made available to You
for the rendition of Services by Us to You.
- By using the Services, You represent and warrant that you are above the age of
18 (eighteen) years, are an Indian citizen, a legal resident of India or a
business entity authorised to conduct business in India, and are qualified to
enter into a legally binding contract, including the Indian Contract Act, 1872.
If you are not eligible to enter into any contract, then please discontinue use
of the Platform and leave now.
- You must disclose the exact business category(ies) for which you will be
utilising the Services.
- The registration on the Penguin Gateway Website does not in any event empower You to
use the Services unless You have accepted the appropriate agreement for
Services. The terms and conditions for the rendition of Services shall be
governed by another applicable appropriate agreement such as a payment
aggregation service agreement or a payout service agreement executed between You
and Us.
- However, for any reason whatsoever You choose to activate the Services without
first accepting the applicable appropriate agreement, it would be deemed that
You have also accepted the appropriate terms of the appropriate agreement
impliedly by Your conduct to accept the Services, and shall be bound by such
terms. We shall have all right, title, and interest in enforcing the terms and
conditions of such appropriate agreement. The terms of service are provided in
these Terms and Conditions, the General Terms and Conditions to Penguin Gateway
Services – Schedule A read with Special Terms and Conditions to the specific
services.
- The details that You have utilized for the creation of the login ID and password
are privy to You. We have no manner to access the details of Your Login ID or
Password. You would be solely responsible for sharing Your login ID or password
with anyone other than Yourself.
- The login ID and passwords are key to the Dashboard and acceptance of Services.
The access granted to a person through login ID and password will empower to
switch on and switch off the Services, move funds and pass on instructions to Us
which We would rely upon to process the transactions. In such a scenario, You
should ensure that the Login ID and Password are preserved and are shared with a
trustworthy person within the organization.
- You shall regularly update the passwords.
- The login ID can be used by the Merchant to interact/communicate with Penguin Gateway
and submit information/data to Penguin Gateway, including KYC.
- You shall also have the right to create new login IDs and password with Penguin Gateway
through the Dashboard or email.
Completion of KYC Details and Acceptance of Contract
-
- Your onboarding with Penguin Gateway shall take place in accordance with our internal
Merchant Onboarding and Know Your Customer Policy as well as guidelines
prescribed by the RBI or any other regulatory authority.
- You shall be required to submit to Penguin Gateway all the necessary documents and
details as may be required by Penguin Gateway to complete Your onboarding in accordance
with our internal Merchant Onboarding and Know Your Customer Policy as well as
guidelines prescribed by the RBI or any other regulatory authority.
- Your failure to share the required documents or details in accordance with our
internal Merchant Onboarding and Know Your Customer Policy shall entitle
Penguin Gateway to put Your onboarding on hold. Penguin Gateway may also refrain from
providing access to the Penguin Gateway Platform or Services in the event, You fail to
provide such documents as required by Us. Penguin Gateway may choose to on a
case-to-case basis activate certain Services in case the documents as sought by
Us are not provided by You. However, such an accommodation will not entitle You
to continue with the use of Services unless the KYC exercise is completed in
accordance with the applicable law.
- You shall be required to submit to Penguin Gateway all the necessary documents and
details as may be required by Penguin Gateway or the partner bank to complete KYC and
on-boarding. You undertake that all information, documents, and declarations
provided by You to Penguin Gateway are true, correct and with authorisation.
- You warrant that You or Your affiliates or your respective beneficial owners are
not politically exposed persons in accordance with the Master Direction – Know
Your Customer (KYC) Direction 2016, as amended from time to time.
- We may choose to call for further or additional documents or require You to
resubmit the document for verification of Your details during the course of the
rendition of Services.
- Failure to provide correct details or to not to provide relevant details or to
cheat Penguin Gateway to provide Services by providing false information, would entitle
Penguin Gateway to terminate the Services with immediate effect and without any notice
whatsoever. Penguin Gateway shall also be entitled to hold the settlement amount for a
period of at least 180 (one hundred and eighty) days from the date of
termination of Services or until such date that it deems fit and proper
whichever date is later.
- You agree that by using the Penguin Gateway Website and by availing the Services, You
have provided certain information and details, including any personal data or
sensitive personal data (“Merchant Information/Information”) to Penguin Gateway. You
hereby authorise Penguin Gateway to share Your Information and details with all
parties, including the Acquiring Banks, as may be necessary for providing the
Services or generally otherwise. You expressly agree that Penguin Gateway has the right
to share your Information to third parties, to exercise Penguin Gateway's rights and
obligations under contract or applicable law. You also agree to receive
communication through all written channels, from Penguin Gateway and/or third parties.
If You do not wish to accept such communication(s), You must notify Penguin Gateway of
the same, and such notification shall be applied prospectively, and shall not be
applicable in respect of Your information and details already shared based on
Your consent under this clause.
- You shall also accept the agreement and other terms and conditions of Services
that we require You to accept in respect of a Service or a transaction,
including those listed in the General Terms and Conditions, Annexures and
Schedules below.
- You shall not, in any event, undertake Services of Penguin Gateway for the business as
enlisted in Attachment A to these Terms and Conditions. You shall not use the
Services or permit anyone, including Customers, to use the Services for any
illegal or fraudulent transactions. You shall also not misrepresent that You
shall take Services for a line of business that is permitted and not disallowed
by Penguin Gateway but instead use the Services for a Negative, Risky and Restricted
Categories of business as enshrined in Attachment A. In case You showed any
indulgence by using the Services of Penguin Gateway for the Negative, Risky and
Restricted Categories of business, Penguin Gateway shall be free to take appropriate
legal remedy against You and all the necessary steps available to it in law.
Penguin Gateway shall be free to report Your indulgence in the Negative, Risky and
Restricted Categories of business to the relevant authorities for necessary
action.
- If You modify your business activities, the continued use of the Services will
not be construed as an implied acceptance by Penguin Gateway for providing Services for
Your modified business activities.
- You agree and accept that Penguin Gateway may, at its sole discretion, and at any time,
without any notice or liability, suspend, terminate or restrict Your access to
all or any component of the Penguin Gateway Website, Penguin Gateway Platform, Dashboard and/
or Services or any reason whatsoever.
- Access to Dashboard
- After You have registered on the Penguin Gateway Website, Penguin Gateway will provide you
with the access to Penguin Gateway Platform and the Dashboard. With access to
Dashboard, You would be able to activate and deactivate Services that You wish
to receive or no longer wish to receive from Us.
- The Dashboard will be accessible through the login ID and password. Anyone who
will have access to the login ID and password will be able to manage and control
the Services and the transactions. In such a case, You should determine who has
the access to the login ID and password to the Dashboard.
- We shall make the Services available through the Dashboard once We have received
all the KYC-related documents and You have accepted the terms and conditions to
the agreement in respect of the appropriate services.
- You may also send instructions and/or information to Penguin Gateway through the
Dashboard or Penguin Gateway Platform, and Penguin Gateway shall consider them to be valid and
legal instructions and/or information from You. Penguin Gateway shall not inquire
whether such instructions and/or information has been duly and validly issued to
Penguin Gateway by You. You shall not dispute the instructions and/or information so
issued.
- You shall be solely responsible to supervise the status of Transactions and
download reports from the Dashboard on a regular basis.
- Intellectual Property
- The contents of the Penguin Gateway Website are proprietary to Penguin Gateway and You will
not have any authority to claim any intellectual property rights, title, or
interest in the contents of the Penguin Gateway Website.
- The structure, colour, and other creative details of the Dashboard are
proprietary to Penguin Gateway and You will not have any authority to claim any
intellectual property rights, title, or interest in the creative details of the
user interface of the Dashboard.
- You and We acknowledge that any trademarks, copyrights or patents used or
adopted by a Party in the conduct of its business are the sole property of the
respective owners.
- Except as expressly set out no assignment of or license under any trademark or
service mark or any other Intellectual Property Right, whether registered or
not, owned or controlled by a Party is granted to the other under these terms
and conditions.
- You agree that Penguin Gateway may, during the subsistence of the Penguin Gateway services,
use the Merchant’s tradename, brand and/or logo as a part of its marketing,
promotional activities and sales presentations for the limited purpose of
indicating Your use of Penguin Gateway Services.
- No Party may, under any circumstances, seek to register any trademark, business
name, business processes, inventions, company name, or domain name using or
incorporating the Intellectual Property of the other Party.
- Each Party acknowledges that upon Penguin Gateway ceasing to provide the Services to
You, it shall have no right whatsoever in connection with the Intellectual
Property of the other Party.
- It is agreed between the Parties that during the Term any promotion or publicity
of the Service would always carry ‘Merchant’ and ‘Penguin Gateway’ service marks or the
appropriate Merchant and Penguin Gateway marks as may be agreed between the Parties.
- API Integration with Penguin Gateway
- You shall not integrate with Penguin Gateway for any Services or use any plugins or
other software development kits unless You have completed the KYC and entered
into an appropriate agreement with Us. In case You choose to integrate Services
without complying with this clause, Your Services would be liable for
termination by Penguin Gateway with immediate effect.
- Penguin Gateway has integrated the Penguin Gateway Platform with several financial
institutions. The integration of the Penguin Gateway Platform is done in accordance
with the documentation of the Application Programming Interface (‘API’)
so provided by the financial institutions.
- You may choose to integrate with the APIs provided by Penguin Gateway in accordance
with the documentation provided by Penguin Gateway for such integration. You shall be
responsible for such integration with the Penguin Gateway Platform.
- Penguin Gateway shall be responsible for the maintenance, development, and management
of the Penguin Gateway Platform. Penguin Gateway shall also ensure to secure the Penguin Gateway
Platform secure in accordance with the prescribed guidelines from time to time
by financial institutions or RBI or any other regulator. Penguin Gateway shall ensure
to take steps related to business continuity and disaster recovery of the
Penguin Gateway Platform in accordance with prescribed guidelines.
- You shall ensure that Your website or its web application is secured in
accordance with the prescribed guidelines issued by the RBI from time to time.
You shall not store any card data on Your website or web application. You shall
avail tokenization services for processing the transactions, and Penguin Gateway shall
not be responsible to procure tokenization serviced for You.
- An incident related to breach of data or breach of security shall be informed by
the Parties to each other within 24 (twenty-four) hours of such an incident.
- You shall take due steps to ensure that the transactions are monitored for fraud
and anti-money laundering activities in accordance with applicable law.
- You shall also take due steps to ensure that the there is no breach of security
of integrity of the link between the Merchant Site and the payment gateway of
Penguin Gateway and/or the Acquiring Bank as the case may be.
- You shall also ensure that there are proper encryption and robust security
measures to prevent any hacking into Customers information and other data.
- You shall ensure that it keeps logs of all the transactions and necessary
details about Your Customers that are availing goods or services from Your
platform in a manner prescribed by applicable laws, and it obtains proper
consent for use of such information about the Customer for delivery of goods and
rendition of services.
- Penguin Gateway may call upon You to share the relevant information about the
transactions with the Customer or the information gathered by You about the
Customer for Your internal audits, or in case such information is required to
undertake any investigation about fraud or illegal activity by a law enforcement
agency or the regulators.
- Penguin Gateway shall provide You the encryption key or an activation key for
activation of the Services. You shall not share the encryption key or an
activation key with any other person or use the activation key to activate
integration on a website or web application or any third party or website other
than the Your website.
- Fraudulent Transactions
- You shall not engage in any form of fraudulent transactions and use the Services
of Penguin Gateway for perpetrating a criminal offense in any manner thereof. Any
scheme or structure to defraud the Customer by You while using Services of
Penguin Gateway shall be reported to the relevant law enforcement authorities. Penguin Gateway
shall also keep a right to terminate such Services in such a case.
- In the event, Penguin Gateway is intimated, by the Acquiring Bank or a Card
Association, that a Customer has reported an unauthorized debit of the
Customer's payment instrument, then Penguin Gateway shall be entitled to suspend the
settlement of the amount associated with the fraudulent transaction during the
pendency of inquiries, investigations, and resolution thereof by the Acquiring
Bank or the Card Payment Network. If the fraudulent transaction results in a
Chargeback, then the Chargeback shall be resolved in accordance with the
provisions relating to Chargeback under these Terms and Conditions and the
appropriate agreement.
- Further, Penguin Gateway also reserves the right to close, suspend, limit or put on
hold the access to Your account with Penguin Gateway and/ or the funds available
therein, including Settlements Amount under any of the following scenarios:
- If such Your KYC credentials are found to be ingenuine or fake;
- If You make an incorrect or untrue disclosure of the nature of its
business, resulting in a merchant category code violation;
- For violation of any of the provisions of these Terms and Conditions;
- For violation of any of the provisions of any other agreement that the
You have entered into or might enter into with Penguin Gateway; or
- For violation of any of the applicable laws by You.
- Such right to close, suspend, limit or put on hold the Your access to the
account with Penguin Gateway shall continue till such time that You submit genuine KYC
documents or credentials to the satisfaction of the relevant authorities, as
well as to the satisfaction of Penguin Gateway without prejudice to any other legal
remedy that Penguin Gateway is entitled to prefer as per applicable law.
- It is agreed between the Parties that in the event any amount to be received
from You by Penguin Gateway due to excessive Chargeback or refund or any other issues
relating to any complaints of the Your Customers and is over and above the
amount which has been withheld by Penguin Gateway, Penguin Gateway shall have a right to raise
an invoice relating to such payments to be made and You agree to make payments
of such invoice within a period of 15 (fifteen) days of receiving the invoice.
Such unpaid amounts by You shall be subject to interest, chargeable at the rate
of 12% (twelve percent) per annum.
- Dormant Accounts
If You do not access the Dashboard or undertake any Transactions for a period of 3
(three) months, Penguin Gateway shall reserve the right to close your account and revoke
access to the Dashboard, Penguin Gateway Platform and/or Services.
- Representations & Warranties
- You represent, warrant, and undertake that:
- You are duly organized and validly existing under the laws of the
jurisdiction in which You are established.
- You have the requisite power and authority to execute, deliver and
perform Your obligations under these Terms and Conditions.
- Your obligations hereunder constitute a legal, valid, binding, and
enforceable obligations.
- The consummation of the transactions contemplated herein do not breach
Your organizational documents or any law, provisions of any contract or
order of court applicable to it and do not require any applicable
governmental approval.
- You are not engaged in any business which is outlined in the list of the
Negative, Risky and Restricted Categories of business as provided under
Attachment A to these Terms and Conditions and shall not during the term
of the Service indulge in business stated in the list of the Negative,
Risky and Restricted Categories of business.
- You shall not use the Penguin Gateway Website, Penguin Gateway Platform, Dashboard or
Services for any unlawful or illegal purpose.
- You shall comply with all applicable laws.
- You shall comply with all Card Association Rules.
- You hold informed consent of Customers to share their information with
Penguin Gateway in connection with the Services and/or for the purposes of
sharing with governmental authorities as and when demanded under
applicable laws, for the purpose of transaction tracking, fraud
prevention, or otherwise required pursuant to regulatory authorities'
orders and/or notices.
- You shall, within 2 (two) Business Days, or such shorter period
prescribed by any authority, provide all the information documents and
assistance as maybe required by Penguin Gateway for (a) its internal risk
assessment or ongoing due diligence; or (b) sharing with authorities
including law enforcement authorities.
- You are solely liable for (a) delivery of Merchant Services as per terms
agreed with the Customer; and/or (ii) any Chargeback, claim, dispute,
cost or liability which may arise in connection to Merchant Service or
be incurred by Penguin Gateway or Acquiring Bank in connection with the
Merchant Service.
- You must ensure that the Customers accept the Your terms, conditions and
privacy policy before availing the Merchant Services.
- You must display the price of the Merchant Services conspicuously and
clearly on the Merchant Site.
- You must maintain a fair return, cancellation or adjustment policy in
accordance with type of business.
- You must clearly disclose Your return or cancellation policy to
Customers at the time of purchase.
- You shall not provide Cash Refunds to Customers unless required under
applicable law.
- You shall not accept payments from any other place of business which are
not ratified by Penguin Gateway.
- You shall not discriminate against any specific Payment Instrument. It
is hereby clarified that promoting a specific payment instrument shall
not be deemed to be discriminating against other payment instruments.
- You have direct legal commercial arrangement with the authorized Bharat
Bill Payment Operating Units (BBPOUs) to offer bill/utility payment
services to the Customers.
- You shall not offer any wallet services, except strictly within the
scope of the bill/utility payments business.
- Confidentiality
- You acknowledge and agree that in connection with the Services, the You shall
not disclose to any third party, any Confidential Information of Penguin Gateway that
You may have access to during and in connection with Services hereunder.
- You shall ensure that neither the You or any of any of your employees (or of the
organisation) shall reverse engineer, decompile or disassemble any software
shared/disclosed by Penguin Gateway.
- You acknowledge that monetary damages may not be a sufficient remedy for
unauthorized disclosure of any Confidential Information and that Penguin Gateway shall
be entitled, without waiving any other rights or remedies, to such injunctive or
equitable relief as may be deemed proper.
- You will notify Penguin Gateway immediately upon discovery of any unauthorized use or
disclosure of Confidential Information or any other breach of these Terms and
Conditions. You will cooperate with the other party in every reasonable way to
help Penguin Gateway regain possession of such Confidential Information and prevent its
further unauthorized use.
- Indemnification
- You hereby undertake and agree to indemnify, protect against liability and hold
harmless Penguin Gateway, its affiliates, and their respective directors, employees,
officers, agents, representatives, contractors and sub-contractors against all
actions, proceedings, claims, liabilities (including statutory liabilities),
penalties, demands and costs (including without limitation, legal costs of
Penguin Gateway on a solicitor/attorney and own client basis), awards, damages, losses
and/or expenses, however, arising in relation to:
- any claim or proceeding brought by any banks or other partners in the
payments eco-system, law enforcement authorities and regulators, or any
other person against Penguin Gateway in respect of any act, deed, negligence,
omission, misrepresentation, default, misconduct, non-performance or
fraud by the You, Your employees, contractors, agents, Customers or any
other person in relation to services rendered or goods sold by You;
- any breach of these Terms and Conditions, the Privacy Policy, or any
other terms, conditions, policies or guidelines provided by Penguin Gateway,
any Card Association, or any bank;
- any business undertaken which is listed in the Negative, Risky and
Restricted Categories;
- any breach of Confidential Information;
- any actual or alleged violation of applicable laws or any Card
Association Rules;
- any wrongful or improper use of Services, Penguin Gateway Website or Penguin Gateway
Platform, APIs or any other Penguin Gateway Property; or
- any violation of the third-party rights.
- Limitation of Liability
- The aggregate liability of Penguin Gateway to You from any cause whatsoever shall not,
in any event, exceed the sum equivalent to the preceding 1 (one) month’s
aggregate Consideration earned by Penguin Gateway from the date of occurrence of such
liability. Penguin Gateway’s liability shall be proportionality reduced to the extent
any loss or damage is contributed to by You or any third-party providers.
- Provided that Penguin Gateway shall not be liable to You for any injury, death, loss,
claim, act of God, accident, delay, or any direct, damages of any kind
(including without limitation lost profits or lost savings), special, exemplary,
incidental, punitive, indirect or consequential or direct damages, damages,
whether based in contract, tort, strict liability or otherwise, that arise out
of or is in any way connected with:
- loss of profits or business opportunities even if You have been advised
in advance of the possibility of such loss, cost or damages;
- any failure or delay (including without limitation the use of or
inability to use any component of the Penguin Gateway Website);
- any use of the Penguin Gateway Website or content;
- any damages to or viruses that may infect Your computer equipment or
other property as the result of Your access to the Penguin Gateway Website or
Your downloading of any content from the Penguin Gateway Website;
- any error by You in submitting payment instructions;
- any incorrect instructions issued by You for debit or credit of amounts;
- You providing inadequate or incorrect information;
- any collection, use, process and share of Your information and details
with Your consent under these Terms and Conditions.
- In no event shall Penguin Gateway be liable to the Customers or any third party.
- In no event shall the Escrow bank or the Acquiring Bank be liable to You in
relation to this Terms & Conditions or in relation to any claim by a third
party.
- Penguin Gateway (including its affiliates and their directors, officers, employees,
agents, representatives, contractors and sub-contractors) shall not be liable
for any of the following: (a) about which it did not have any actual or
constructive knowledge; (b) shall not be liable for any Net Quantifiable
Financial Benefit that arises to You for any loss suffered. The term Net
Quantifiable Financial Benefit shall include an amount for which You would
otherwise have been accountable to be assessed for taxation is reduced or
extinguished because of the matter giving rise to such loss. (c) contingent
liability of You unless such liability becomes due and payable; (d) You shall
not be entitled to recover for the same event twice; (e) the amount that is
recoverable by You from an insurance policy or from third parties; and (f) the
amount for which provision, allowance, or reserve has been made.
- For any links included in the Penguin Gateway Website which re-direct to any
third-party websites, Penguin Gateway shall not be liable and/or responsible for
hosting such links, or for any content, advertisement, products or services
available on such third-party websites. You further agree and accept that You
shall not hold Penguin Gateway liable for any actions, proceedings, claims, liabilities
(including statutory liabilities), penalties, demands and costs (including
without limitation, legal costs of a solicitor/attorney and own client basis),
awards, damages, losses and/or expenses incurred due to use of such third-party
website for any reason whatsoever.
- Disclaimer
- Penguin Gateway will make all reasonable efforts to provide uninterrupted service
subject to downtime and regular maintenance. However, You acknowledge that
Penguin Gateway Website, Services, and the Acquiring Bank’s Services may not be
uninterrupted or error-free or free from any virus or other malicious,
destructive, or corrupting code, program, or macro and Penguin Gateway and the
Acquiring Bank disclaim all warranties, express or implied, written or oral,
including but not limited to warranties of merchantability and fitness of the
services for a particular purpose, and all services are provided on an “as is”
basis.
- You also acknowledge that the arrangement between one or more Acquiring Banks
and Penguin Gateway may terminate at any time and services of such Acquiring Banks may
be withdrawn. Penguin Gateway shall not be liable to You for any loss or damage
whatsoever or howsoever caused or arising, directly or indirectly, including
without limitation, because of loss of data; interruption or stoppage to the
Customer’s access to and/or use of the Merchant Site, Services, interruption or
stoppage of Penguin Gateway Website, hacking or unauthorized access to the Services,
non-availability of connectivity between the Merchant Site and Penguin Gateway Website,
etc.
- Penguin Gateway shall not be responsible for any losses sustained through (i) the use
of counterfeit or stolen bank cards, or stolen devices; (ii) fraudulent
electronic transactions; or (iii) quality and service-related claims pertaining
to the Merchant Services.
- In addition Penguin Gateway and/or Acquiring Banks shall have no liability for any
failure or delay in performing its obligations under this facility if such
failure or delay: (i) is caused by the Your acts or omissions; (ii) results from
actions taken by Penguin Gateway or the Acquiring Banks in a reasonable good faith to
avoid violating a law, rule or regulation of any governmental authority or to
prevent fraud on cardholders/accounts; or (iii) is caused by circumstances
beyond Penguin Gateway control, including but not limited to vandalism, hacking, theft,
phone service disruptions, Internet disruptions, loss of data, extreme or severe
weather conditions or any other causes in the nature of force majeure event.
- Penguin Gateway’s sole obligation and the Your sole and exclusive remedy in the event
of an interruption in Penguin Gateway Website, or loss of use and/or access to Penguin Gateway
Website, the Acquiring Banks Services, shall be to use all reasonable endeavours
to restore the Services as soon as reasonably possible.
- Force Majeure
- Force Majeure shall be any event or occurrence, whatever the origin, which
cannot be foreseen and is beyond the control of, and cannot be circumvented by
Penguin Gateway affected, and which renders the performance of the obligations
impossible, including but not limited to acts of governmental policy/authority,
fires, floods, earthquakes or other natural disasters, explosions, general
strikes, riots, war (declared and undeclared), rebellion, sabotage, computer
hacking, unauthorized access to computer data and storage devices, computer
crashes.
- In case of a Force Majeure event, Penguin Gateway shall not be liable to You for its
delay in the performance of, or non-performance, of its obligations or any part
thereof under these Terms and Conditions. You agree and accept that the
non-performance or discharge of performance of any obligation by Penguin Gateway
pursuant to any such Force Majeure event shall not be a breach of obligations by
Penguin Gateway, and shall not result in Penguin Gateway incurring any liabilities whatsoever.
- Data Protection
- You shall ensure such administrative, technical, physical safeguards and
processes, procedures, and checks including to secure the information which is
received from any Customer in relation to a card as may be required under
applicable law and which safeguards shall be equal to or better than:
- safeguards currently it has in place for its own data.
- generally accepted security standards in the financial services industry
- The administrative, technical, and physical safeguards, process, procedure and
checks as provided for in clause (Data Protection) shall be designed to:
- protect the security and confidentiality of the information of the
Customer in the Your possession;
- ensure protection against any anticipated threats or hazards to the
security or confidentiality of the Customer information;
- protection against unauthorized access to or use of the information of
the Customer or associated records which could result in substantial
harm or inconvenience to Penguin Gateway; and
- ensure the proper and secure disposal of such data;
- Without limiting the generality of the foregoing, You shall initiate all
measures that a prudent organization, in a similar situation would take to
secure and defend its systems that contain the information of the Customer,
against the ‘hackers’ and who seek without authorization, to modify or access
its system or the information of the Customer. You shall periodically test its
system for potential areas where it could be breached.
- You covenant that it shall take best efforts against:
- any unauthorized or unlawful processing or the alteration of the
information of the Customer in Your system.
- any resultant loss or destruction of, or damage to, the Customer
information due to unauthorized processing or alteration; and
- unauthorized and accidental access, processing, erasure, transfer, use,
modification, or other misuses of information of the Customer, and shall
ensure that only authorized personnel bound by adequate confidentiality
obligation shall have access to the information of the Customer on
strictly ‘need to know basis’.
- You shall ensure that the information of the Customer is not mixed or mingled
with information of other customers.
- You shall be vigilant to report any breach of this clause (Data Protection), all
violations of information security, any breaches in the security practice,
control process checks, and all suspected security events within 12 (twelve)
hours of such event or breach, to Penguin Gateway and shall also immediately intimate
all the concerned representatives and employees of Penguin Gateway which interact You
on regular basis.
- Anti-Bribery and Sanctions Laws
You shall not permit or engage in any unethical practices,
corruption, extortion, or bribery in any capacity; and irrespective of whether it is
working with government officials or solely in the private sector. You shall not
offer, give, or authorize any gift, loan, fee, reward, bribe, or other advantage to
any Customer, government official, government employee, or Penguin Gateway’s employee to
improperly influence any action or decision. Yous shall follow applicable national
and international anti-corruption laws, including the Prevention of Corruption Act,
1988, and U.S. Foreign Corrupt Practices Act.
- Miscellaneous
- Penguin Gateway may assign, in whole or in part, the benefits or obligations of under
these Terms and Conditions by providing a 30 (thirty) days prior intimation of
such assignment to You, which shall be binding on the Parties.
- You shall not assign, in in whole or in part, the benefits or obligations of
under these Terms and Conditions without prior written approval of Penguin Gateway.
- The failure of Penguin Gateway to exercise or delay in exercising a right or remedy
under these Terms and Conditions shall not constitute a waiver of the right or
remedy or a waiver of any other rights or remedies, and no single or partial
exercise of any right or remedy under shall prevent any further exercise of the
right or remedy or the exercise of any other right or remedy.
- The relationship between You and US are on a principal-to-principal basis.
Nothing contained herein shall be deemed to create any association, partnership,
joint venture or relationship of principal and agent or master and servant, or
employer and employee between us hereto or any affiliates or subsidiaries
thereof or to provide You with the right, power or authority, whether express or
implied to create any such duty or obligation on behalf of Penguin Gateway.
- You shall not describe Yourself as an agent of Penguin Gateway and/or the Acquiring
Bank.
- You shall not represent to any person that you have the right to offer any
products or services offered by Penguin Gateway.
- You shall not make any representations to the Customer or any third party, or
give any warranties which requires Penguin Gateway and/or the Acquiring Bank to
undertake to, or be liable for, whether directly or indirectly, any obligations,
duties, responsibilities and/or liabilities.
- Penguin Gateway reserves the right to make changes to the Penguin Gateway Website, these Terms
and Conditions, and the Privacy Policy at its sole discretion at any time. On
such changes, Your continued use of the Services and/or the Penguin Gateway Website
shall constitute acceptance of the changes, and an acceptance to be bound by
such changes. If at any time You do not agree to the changes, You may
discontinue Your use of the Penguin Gateway Website and/or the Services.
- By providing the intermediary services between You and the Customer, We are not
a (i) payment system provider under the Payment and Settlement Systems Act,
2007; (ii) a banking company under the Banking Regulation Act, 1949;and/or (b) a
non-banking financial company under the Reserve Bank of India Act, 1934.
Attachment A
List of Negative, Risky and Restricted
Categories of Business
- Negative Categories: Any services or products which are purchased/ offered for
sale by a user to third parties from time to time, using these services. Products shall
not include those banned products and services that are listed below:
- Adult goods and services which include pornography and other sexually suggestive
materials (including literature, imagery and other media); escort or
prostitution services.
- Alcohol which includes Alcohol or alcoholic beverages such as beer, liquor,
wine, or champagne.
- Body parts which include organs or other body parts.
- Bulk marketing tools which include email lists, software, or other products
enabling unsolicited email messages (spam).
- Cable descramblers and black boxes which includes devices intended to obtain
cable and satellite signals for free.
- Child pornography which includes pornographic materials involving minors.
- Copyright unlocking devices which include Mod chips or other devices designed to
circumvent copyright protection.
- Copyrighted media which includes unauthorized copies of books, music, movies,
and other licensed or protected materials.
- Copyrighted software which includes unauthorized copies of software, video games
and other licensed or protected materials, including OEM or bundled software.
- 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.
- Cryptocurrency Exchanges, platforms dealing in cryptocurrency trading
- Drugs and drug paraphernalia which includes illegal drugs and drug accessories,
including herbal drugs like salvia and magic mushrooms.
- Drug test circumvention aids which include drug cleansing shakes, urine test
additives, and related items.
- Endangered species which includes plants, animals or other organisms (including
product derivatives) in danger of extinction.
- Gaming/gambling which includes lottery tickets, sports bets,
memberships/enrollment in online gambling sites, and related content.
- Government IDs or documents which include fake IDs, passports, diplomas, and
noble titles.
- Hacking and cracking materials which includes manuals, how-to guides,
information, or equipment enabling illegal access to software,
servers,watomites, or other protected property.
- Illegal goods which includes materials, products, or information promoting
illegal goods or enabling illegal acts.
- Miracle cures which include unsubstantiated cures, remedies or other items
marketed as quick health fixes.
- Offensive goods which include literature, products or other materials that: a)
Defame or slander any person or groups of people based on race, ethnicity,
national origin, religion, sex, or other factors b) Encourage or incite violent
acts c) Promote intolerance or hatred.
- Offensive goods, crime which includes crime scene photos or items, such as
personal belongings, associated with criminals.
- Prescription drugs or herbal drugs which include drugs or other products
requiring a prescription by a licensed medical practitioner.
- Pyrotechnic devices and hazardous materials which includes fireworks and related
goods; toxic, flammable, and radioactive materials and substances.
- Regulated goods which includes air bags; batteries containing mercury; Freon or
similar substances/refrigerants, chemical/industrial solvents, government
uniforms, car titles or logos, 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.
- Securities, which includes stocks, bonds, or related financial products.
- Tobacco and cigarettes which includes cigarettes, cigars, chewing tobacco, and
related products.
- Traffic devices which include radar detectors/jammers, license plate covers,
traffic signal changers, and related products.
- Weapons which include firearms, ammunition, knives, brass knuckles, gun parts,
and other armaments.
- Wholesale currency which includes discounted currencies or currency exchanges.
- Live animals or hides/skins/teeth, nails and other parts etc. of animals.
- Multi Level Marketing collection fees.
- Ponzi schemes, pyramid and chain marketing.
- Matrix sites or sites using a matrix scheme approach.
- Drop-shipped merchandise.
- 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.
- The Merchant shall not sell, purchase, provide or exchange a cardholder’s name
or MasterCard / Visa account number information in any form obtained by reason
of a MasterCard/ Visa Card transaction to any third party other than its
MasterCard/ Visa acquiring Member-Citrus Pay, or pursuant to a government
/statutory or competent body’s request.
- Pyrotechnic devices, combustibles, corrosives and hazardous materials which
includes explosives, fireworks and related goods; toxic, flammable, and
radioactive materials and substances.
- Risky Categories: Merchants operating in the below segments would also be
considered high risk either due to the laws and regulations around their industries, or
the levels of transactions they process monthly. The following High-Risk Merchant
Category Code list describes many of the high-risk categories:
- Financial Services
- Pharmacy
- Tours and Travel
- Saas
- Jewelry
- Digital gold
- Precious metals
- Utilities
- Donations
- NGO
- Insurance
- Forex
- Gift cards
- DMT merchants
- Digital lending
- Stock market
- Mutual funds
- NBFC
- Online Gaming
- Chit Funds
- Restricted Categories: These are categories within high risk categories that
require further approvals from the risk team to be onboarded.List of restricted
categories
- Online Gaming
- Digital lending
- Chit funds
- DMT merchants
Schedule A
General Terms and Conditions to Penguin Gateway Services
The General Terms and Conditions that will govern the Penguin Gateway
Services. These General Terms and Conditions are to be read with the Terms and
Conditions provided at the top of this webpage and with Special terms and condition
mentioned under Schedule B, C, E, F and G.
- DEFINITIONS
These definitions are applicable to all terms capitalised in these
Terms and Conditions. Not all terms are defined in this clause, and may have been
appropriately defined across these Terms and Conditions.
- “Acquiring Banks” shall mean various banks, financial institutions, Card
Associations, payment system providers who are defined and licensed under the
Payment and Settlement Systems Act, 2007.
- “Acquiring Bank Services” shall mean the payment gateway system and
services provided by the Acquiring Banks such as to (i) route internet-based
Valid Card transactions; (ii) offer various facilities through the internet,
including Net Banking facilities; (iii) provide Authentication and authorization
from Card Associations or other third-party clearing houses; and (iv) provide
settlement facilities in respect of payment instructions initiated by the
Customers.
- “Authentication” shall mean the process by which the Customer’s
identification is authenticated by the Acquiring Banks.
- “Agreement” shall mean an agreement executed by and between Penguin Gateway and
the Merchant.
- “Beneficiaries” shall mean the individuals or businesses (i) to whom the
Merchant will make payment by using the Services; or (ii) whose account details
the Merchant wants to validate via the Verification Suite.
- “Business Days” shall mean any day on which Acquiring Banks are open for
business in India, other than Sunday and any days declared by Penguin Gateway and/or
Acquiring Bank as a holiday.
- “Penguin Gateway” shall mean Penguin Gateway Payments Services Private Limited, a
company incorporated in accordance with the provisions of the (Indian) Companies
Act, 2013.
- “Penguin Gateway Payout Account” shall mean an account held by Penguin Gateway with any
of the banks for the purpose of disbursing the monies maintained by the Merchant
to the Beneficiaries Payment Instrument on behalf of the Merchant.
- “Penguin Gateway Platform” shall mean a technology platform that connects
Acquiring Banks, Merchants, and Issuer Banks and facilitates initiation and
completion of the Services rendered by Penguin Gateway.
- “Card Association(s)” shall mean any of Visa, MasterCard, Visa Electron,
Maestro, Diners, American Express or any other card association as may be
specified by Penguin Gateway from time to time.
- “Card Association Rules” shall mean the rules, regulations, releases,
guidelines, processes, interpretations, and other requirements (whether
contractual or otherwise) imposed or adopted by any card associations like Visa,
MasterCard, Visa Electron, Maestro, Diners (part of Discover global network),
American Express, NPCI or any other card association.
- “Chargeback” shall mean an approved and settled Transaction that an
Issuer, upon receiving a chargeback request from a Customer, reverses to an
Acquiring Bank for the Transaction value to be ultimately reversed to the
Customer, subject to the Merchant being unable to provide an explanation along
with documentary evidence as to why the chargeback request should be rejected in
accordance with applicable laws.
- “Confidential Information” shall mean any and all written, oral or other
tangible or intangible form of information, discoveries, ideas, concepts,
know-how (whether patentable or copyrightable or not), research, development,
designs, drawings, blueprints, diagrams, models, samples, flow charts, data,
computer programs, disks, diskettes, tapes, algorithms, software programs,
marketing plans or techniques, technical, financial, or business information,
Platform Fee, trade secrets which includes but is not restricted to any portion
or scientific or technical or proprietary information, design, process,
procedure, formula or improvement which is not generally available to the public
as delivered by Penguin Gateway to the Merchant within the framework of these Terms and
Conditions or resulting therefrom.
- “Customer” shall mean any person who is availing services or products of
the Merchant using Services to make the payment/remittance.
- “Customer Bank Account” shall mean a bank account or credit/prepaid/cash
card account of the Customer with Issuer.
- “Customer Payment Amount” shall mean the total amount paid by the
Customer towards the Merchant Services which will include, inter alia, charges
and other taxes, duties, costs, charges, Platform Fee and expenses in respect of
the Merchant Services.
- “Credit Card” is a credit card issued by the bank and that bank is a part
of the Card Network.
- “Dashboard” shall mean the platform provided by Penguin Gateway to the Merchant
for provision of Service including (i) enabling, initiating, accessing, and
monitoring the Transaction; (ii) submitting documents and information to
Penguin Gateway; (iii) receiving communications from Penguin Gateway; and/or (iii) accessing
reports, invoices, and other data analytics. It is hereby clarified that
Dashboard is part of Penguin Gateway Platform.
- “Delivery” shall mean (i) in respect of a good, delivery of the good by a
courier/parcel service appointed by the Merchant or its vendors, to the Customer
within delivery due date at the address specified by the Customer in this
behalf; or (ii) in respect of a service, delivery or performance of provisions
of service within the delivery due date.
- “Designated Bank Account” shall mean a bank account designated by the
Merchant for settlement of funds.
- “Debit Card” is a debit card issued by the bank and that bank is a part
of the Card Network.
- “Disbursement/Disburse/Disbursing/Disbursal” shall mean the act of
Penguin Gateway of sending money to a Payment Instrument of the Beneficiaries at the
Instructions of and on behalf of the Merchant via the Services.
- “Effective Date” shall be the date on which the Merchant and Penguin Gateway
agreed to make the Agreement effective.
- “eMandate” shall mean the system which facilitates issuance and
confirmation of mandate by the Customers through alternate channels to
paper-based mandate. The mandate will be routed by the destination bank, after
due authentication, to the sponsor bank or by corporate through their sponsor
bank to the destination bank with the attributes of Customer authentication
depending upon the variant of eMandate. The objectives of eMandate are: 1.
Creation an authenticated mandate by the Customer himself through electronic
channels. 2. Shorter mandate acceptance cycle or auto acceptance of mandates. 3.
Secured and assured mandate acceptance e-mandates are initiated by the Customer
or his banker.
- “Escrow Account” shall mean an account maintained by Penguin Gateway with any of
the scheduled commercial banks for the purpose of pooling the monies collected
from Customers on behalf of the Merchant and facilitating the transfer of these
funds in final settlement to the Merchant in accordance with the Terms and
Conditions.
- “Instructions” shall mean the act of the Merchant done in the format
specified by Penguin Gateway (as per Penguin Gateway API) to Disburse money or perform actions
supported by Services.
- “Intellectual Property Right” shall mean any and all patents, copyrights,
trade secret rights, trademark rights, design rights, software code, and other
proprietary or similar rights in intellectual property, existing now or in the
future, including the rights to secure registrations, renewals, and extensions
thereof.
- “Issuer” shall mean a bank or financial institution or other legal
entity, with which the Customer has a Net Banking account and/or which has
issued the Valid Card to the Customers and/or which has provided loan facility
to the Customers (explanation: except for debit card or credit card
Transactions, the Issuer of the Customer and the respective Acquiring Bank will
be the same).
- “KYC” shall mean the process of validating the details of a Merchant per
the Know Your Customer Policy of Penguin Gateway and the Master Direction – Know Your
Customer (KYC) Direction 2016, Guidelines on Regulation of Payment Aggregators
and Payment Gateways, Payment and Settlement Systems Act, 2007, Prevention of
Money Laundering Act, 2002, Know Your Customer (KYC) / Anti-Money Laundering
(AML) / Combating Financing of Terrorism (CFT) guidelines issued by the RBI and
such other applicable laws.
- “Merchant” is an entity that would be party to the Agreement with
Penguin Gateway, or uses the Penguin Gateway Website, Penguin Gateway Platform, Dashboard, and/or
Services and is bound by the Terms and Conditions.
- “Merchant Site” shall mean the active website bearing the domain name as
specified in the Agreement and/or the mobile application, the contents of which
are controlled, operated, and owned by the Merchant and established for the
purposes of enabling the Customers to avail the services offered on the website
or mobile application for which the Merchant shall be availing Services.
- “Merchant Services” shall mean the services or products provided by the
Merchant through Merchant Site to its Customers, the remittance/payment for
which is to be made through the Customer/s valid accounts/card/s or bank
account, using Services.
- “Net Banking” shall mean the facility and internet account provided by
the Issuer to Customers holding a bank account or digital wallet account with
the Issuers. Provided that the bank account is not listed in current warning or
restricted bank account bulletins or notices.
- “Outstanding Amount” shall mean the amount payable by the Merchant to
Penguin Gateway, Acquiring Banks, and/or Customers for any losses, costs, damages,
penalties, Chargebacks, Refunds, overdraft or credit problems suffered or
incurred by the Customers, Penguin Gateway, and/or Acquiring Banks; any fees and other
payments owed to Penguin Gateway by the Merchant; and any claims or proceedings filed
against Penguin Gateway and/or Acquiring Banks by the Customers or any third party.
- “Order” shall mean Customer placing an order to purchase the
products/services offered for sale by the Merchant.
- “Partner” shall mean various banks, financial institutions, and other
entities engaged with Penguin Gateway to facilitate the Merchant to Disburse the Payout
Amount/payments to the Beneficiaries.
- “Payment Aggregation Services” shall mean the payments collection
services that are rendered by Penguin Gateway to Merchants by integrating the payments
solution on the website or web application of a Merchant.
- “Payout Services” shall mean the payment Disbursement services that are
provided to the Merchant to Disburse the Payout Amount from a specified bank
account to others.
- “Payout Amount” shall mean the amount maintained in Penguin Gateway Payout
Account in respect of Disbursement to be made to the Beneficiaries minus the
Platform Fee and any other charges/fees payable by the Merchant to Penguin Gateway.
- “Payment Instruments” shall mean (i) in case of payment aggregation
services, any instrument used for making payments by the Customer such as Debit
Card, Credit Card, Net Banking, UPI, eMandate, etc. and (ii) in case of Payout
Services, a bank account, UPI, or wallets of beneficiaries that can receive
money via Payout Services.
- “Platform Fee” shall mean the fee, including any applicable annual
maintenance charges, as specified at
https://www.penguingateway.com//payment-gateway-charges/ or as otherwise mutually
agreed upon between the Parties, charged by Penguin Gateway for the provision of its
services.
- “Refunds” shall mean the refund as provided for in the Terms &
Conditions.
- “RBI” shall mean the Reserve Bank of India.
- “Services” shall mean and include services in relation to the processing
of payments including Payment Aggregation Services and Payout Services or any
other ancillary and incidental services rendered thereto to the Merchant by
Penguin Gateway with or without the use of Penguin Gateway Platform.
- “Settlement Amount” shall mean Customer Payment Amount minus the Platform
Fee payable by the Merchant to Penguin Gateway.
- “Terms & Conditions” shall include the general terms and conditions
to the Services and special terms and conditions with regard to a particular
Service rendered by Penguin Gateway to the Merchant.
- “Token Amount” shall mean a transaction amount as decided between the
Parties credited to the Beneficiary’s Payment Instrument through Services.
- “Transaction” shall mean (i) every payment request/order placed by the
Customer on the Merchant Site for purchasing products/services from the
Merchant; or (ii) any Disbursement or Verification Services request placed by
the Merchant with Penguin Gateway.
- “Third Party” shall mean any entity/person who is not a party to the
Agreement.
- “Unified Payment Interface” or “UPI” is a payment system that
powers multiple bank accounts into a single payment network of any participating
bank which permits merging several banking features, seamless fund routing &
merchant payments into one hood.
- “Valid Card” shall mean any unexpired credit card or debit card which is
issued by an Issuer designated to issue a Visa, MasterCard, Visa Electron or a
Maestro or cash card, prepaid card, or other cards as may be specified by
Penguin Gateway from time to time. Provided that the card is not listed in current
warning or restricted card bulletins or notices and bears the signature of the
person in whose name the card is issued.
- “Verification Services” shall mean the act of verifying Beneficiaries
account or details using Verification Suite.
- “Verification Suite” shall mean and include verification services like
‘Bank Account Verification’, ‘PAN Verification’, ‘UPI Verification’, ‘IFSC
Verification’, ‘Aadhaar Verification’ and ‘GSTIN Verification’.
- “Wallet” is one such pre-paid payment instrument that facilitates the
purchase of goods and services against the value stored on these instruments.
The value stored on such instruments represents the value paid for by the
holders by cash, by debit to a bank account, or by credit card.
- SCOPE OF SERVICES
- Penguin Gateway shall render, and Merchant shall receive the Services for a Platform
Fee agreed in terms of the Agreement executed between the Parties.
- Penguin Gateway is not connected to, or has any interest in the Merchant Services.
Penguin Gateway does not have, and will not have any relationship with the Customers
with respect to Merchant Services. The Merchant is solely liable and responsible
for the Customers for Merchant Services, and shall keep Penguin Gateway indemnified at
all times in such matters.
- Penguin Gateway shall be responsible to resolve Customer’s query, feedback or
complaint, pertaining to the transactions they may have processed or attempted
to process using Penguin Gateway’s platform as per the Customer Grievance Redressal
Policy available at https://www.penguingateway.com//grievance-redressal-policy/.
- Penguin Gateway shall not monitor the use of payments modes by Customers to avail the
Merchant Services. The Customers shall use any payment mode as it may deem fit
at their sole option and risks, and Penguin Gateway shall not be held liable in this
regard. The Merchant shall keep Penguin Gateway indemnified at all times in such
matters.
- Penguin Gateway shall render services in accordance with the terms and conditions as
set out in this General Terms & Conditions of the Payments Services, Special
Terms and Conditions to Payments Aggregation Services and Special Terms and
Conditions to Payout Services as the case may be.
- The General Terms & Conditions to Payments Services, Special Terms, and
Conditions to Payments Aggregation Services, and Special Terms and Conditions to
Payout Services shall form an integral part of the Agreement between the
Parties.
- In case of conflict between the General Terms and Conditions to Payments
Services or Special Terms and Conditions as provided in various schedules to
these Terms and Conditions, the Special Terms and Conditions shall prevail over
the General Terms and Conditions to Payments Services.
- GRANT OF RIGHTS
- During the Term for which Penguin Gateway renders Service to the Merchant, Penguin Gateway
hereby grants to the Merchant a limited, for India, revocable, non-exclusive,
non-transferable, non-sublicensable, non-assignable right and license to access
and use application programming interface of Penguin Gateway access to which is made
available through Penguin Gateway Platform for a rendition of Services in accordance
with the Terms and Conditions set out herein.
- Except as expressly permitted under these terms and conditions or any other
license that may control the source code underlying the Services, Merchant must
not itself, not permit any third party to: (a) reproduce, modify, translate,
adapt or create derivative work based upon the Services; (b) reverse engineer,
decode, decompile, disassemble or otherwise attempt to access or derive the
source code or architectural framework of the Services; (c) access the Services
for purposes of benchmarking or developing, marketing, selling or distributing
any product or service that competes with or include features substantially
similar to the Servies; (d) take any action that imposes an unreasonable or
disproportionately heavy load on the Services or its infrastructure or that
negatively affects the ability of other to access or use the Services; (d) use
the Services in any way that does not comply with all applicable laws and
regulations; (f) access or use the Services in a way intended to avoid incurring
fees or exceeding usage limits or quotas; (g) attempt to disable or circumvent
any security mechanisms used by the Services; or (h) use the Services in a way
that poses a risk to Penguin Gateway or the Customer of the Merchant.
- Penguin Gateway may improve, modify, add or remove functions or features to or from the
Services from time to time, with or without notice to the Merchant.
- The Merchant will ensure that all of its employees and contractors who will be
using API are aware of and comply with these Terms and Conditions.
- Merchant will be liable and responsible for all acts and omissions of any person
to whom BaaS Merchant allows access to the Penguin Gateway APIs and Dashboard.
- Merchant is not permitted to use any application (including its updated and/or
any new version of it) in the production environment, unless and until Penguin Gateway
has reviewed and approved for moving such application to the production
environment and authorized with applicable API Key.
- MERCHANT ON-BOARDING
- The on-boarding of Merchant with Penguin Gateway shall take place in accordance with
the guidelines prescribed by the RBI or any other regulatory authority for the
time to time.
- The Merchant acknowledges and agrees that Penguin Gateway may use third-party tools for
web crawls/ scrape the Merchant Site in order to identify high-risk keywords,
collect the registered address, and verify the line of business of the Merchant
disclosed to Penguin Gateway among other things.
- COLLECTION AND SETTLEMENT OF FUNDS
- Penguin Gateway shall collect payments from the merchant’s customers into the Escrow
Account and settle such funds to the merchants within T+2 days, where “T”
represents the date of transaction (“Settlement cycle”); or as agreed
with the Merchant otherwise. In an event, where there is a delay from the bank,
Penguin Gateway shall settle such funds to the Merchant on the following day, of
receiving the same from the bank. The Settlement Cycle is subject to the
approval and availability of the bank and may vary depending on the transaction
type, business category/model, risk parameters, and other relevant factors.
- Penguin Gateway shall act only as an intermediary and collect monies from the bank
account of the Customer and settle it in accordance with prescribed guidelines
in the Designated Bank Account. Penguin Gateway shall not in any manner be responsible
for the quality of goods, quantity of goods, quality of services, or defect in
goods or deficiencies of services in any manner whatsoever. Merchant shall be
solely responsible to its Customer.
- In the event, Merchant has chosen to avail of the Payout Services then in that
event, Penguin Gateway shall transfer the funds on the instructions of the Merchant to
third parties. Penguin Gateway shall not be responsible in case funds are settled
incorrectly provided Penguin Gateway has followed the instructions of the Merchant
correctly,
- The settlement of funds shall be subject to certain deductions. Penguin Gateway shall
be entitled to deduct its Platform Fee for the rendition of Services, taxes on
such Services, Chargebacks, and Refunds from the settlement amount due to the
Merchant.
- CHARGEBACK
- Penguin Gateway provides a Penguin Gateway Platform to various Merchants (applications/
websites/ stores/ shops) for accepting money through multiple instruments like
UPI, Net Banking, Credit Card, Debit Card, Wallets, etc. In case the transaction
do not successfully go through and the funds are deducted from the Customer’s
account, in such case, Penguin Gateway shall support to resolving the disputes within
the prescribed turnaround time.
- The Chargeback shall be processed in the following manner:
- Customer to contact his/ her bank to file a dispute;
- On receipt of intimation from the Acquiring Bank, Penguin Gateway shall create
a dispute ID on behalf of the Acquiring Bank and send a communication to
the Merchant.
- Merchant shall log in to Penguin Gateway Platform to see all pending disputes.
- Merchant shall upload proof(s) against each new dispute ID within the
timelines given by acquiring bank.
- Penguin Gateway shall review the document and share them with the Acquiring
Bank on behalf of the Merchant.
- Basis the proof(s) submitted, the Acquiring Bank may choose to accept or
reject the claim.
- Acquiring Bank shall inform the Customer and Penguin Gateway about the final
result of the Dispute.
- Penguin Gateway shall mark the status of the dispute as ‘Won’/ ‘Lost’ as per
Acquiring Bank’s feedback, and shall debit the amount from the
respective Merchant if the dispute is lost.
- Debit against any lost dispute will be settled with Merchant’s upcoming
settlement.. However, no debit would be done if the dispute is defended
successfully.
- REFUNDS
- Refunds are reversal transactions wherein complete or partial money is moved
back to Customer’s source account (account from which actual payment was made)
with some exception cases as given below. A refund can only be created for a
successful or settled transaction only as per the refund policy of the
third-party merchants. A refund arises in the following scenarios:
- Customer has changed his mind about the consumption of product pre/ post
order delivery.
- Refund can be initiated by the Merchant in the following scenarios:
- Product/ service is out of stock
- Mismatch in transaction status between Penguin Gateway and Merchant
wherein transaction is failed state at Merchant's end but is
successful at Penguin Gateway's end
- The Customer/ Merchant can initiate complete refunds to the Customer’s source
account.
- The process followed for Refunds is as under:
- Merchant to initiate refund.
- Penguin Gateway validates the refund against the original order. These are
basic validations like a cumulative refund on this order i.e. order
value, the order is not more than a year old etc or as per the merchant
refund policy;
- Sync confirmation after validation of refund is provided in response to
the request.
- Once the refund is validated at Penguin Gateway’s end, Penguin Gateway deducts the
refund amount from the Merchant’s pending settlement amount.
- Penguin Gateway initiates the refund to the Bank. Apart from net banking
refunds as it is instant in nature, most of the net banking refunds are
file-based and hence, are sent to the Bank on the next working day.
- Once the Bank accepts the refund, Penguin Gateway sends the message ‘Success
Refund’ to the Merchant. This depicts that a refund has been initiated.
- Bank credits the Customer's source account with the refund amount.
- There are some exception cases where a refund is not processed in the
Customer source account/mode when source account/mode is closed, wallet
limit exhaust, Customer requested to get a refund in a different account
and when order is old and hence automatic refund couldn’t be processed
in the source.
- Penguin Gateway FEE
- Merchant shall pay and Penguin Gateway shall receive Platform Fee for Services rendered
in accordance with the terms of the Agreement. The Platform Fee shall be
deducted from the Settlement Amount or Penguin Gateway Payout Account (as applicable)
for the Transactions made using Services.
- The Platform Fee shall be exclusive of the tax applicable, including goods and
services tax, on such Platform Fee and such tax shall be charged in addition to
the Platform Fee by Penguin Gateway. Any variation in applicable taxes shall be borne
exclusively by the Merchant.
- The Platform Fee shall be deducted from the amount so collected on behalf of the
Merchant before the amount so collected from the Customer is settled in the
Designated Bank Account.
- In addition to the Platform Fee, Penguin Gateway shall be entitled to charge a penalty,
fine, or additional liability imposed by the law enforcement authorities
including tax authorities or regulators upon Penguin Gateway because of the act of the
Merchant.
- Penguin Gateway has the right to raise invoices for the amount due and payable by the
Merchant, and shall raise the monthly invoices every month for the Platform Fee
payable, which must be paid by the Merchant within 5 (five) days of receipt of
the invoice.
- If there is any delay in payment of the Platform Fee upon receipt of the invoice
from Penguin Gateway, the Merchant shall be liable to pay a late payment fee at the
rate of 24% (twenty-four percent) per annum (compounded annually) on any
outstanding amount.
- The Merchant shall be responsible to undertake reconciliation on a daily basis.
If the Merchant identifies any discrepancies, the same must be notified to
Penguin Gateway within 3 (three) days. However, if the Merchant fails to highlight any
issues within such 3 (three) days, then Penguin Gateway shall not be held liable for
not resolving any queries and/or concerns.
- The Merchant shall be responsible to pay all taxes under applicable law. The
Merchant shall indemnify Penguin Gateway for any liabilities incurred by Penguin Gateway for
failure of the Merchant to pay the applicable taxes within timelines specified
under applicable law.
- REDRESSAL
- The grievance of the Merchant and Customer shall be addressed in accordance with
Penguin Gateway’s Merchant and Customer Grievance Redressal Policy.
- In the event, a Customer grievance is raised through a legal enforcement agency,
then in that case, Penguin Gateway shall take steps as instructed by the legal
enforcement agencies to address the complaint. In the event, Penguin Gateway had to
reverse the transaction, it would adjust the said amount from the settlement
amount receivable by Merchant.
- REJECTION / CANCELLATION / WITHHOLDING
- Rejection
- Notwithstanding anything contained anywhere, the Merchant hereby fully
confirms and agrees that Penguin Gateway reserve the right to reject payments
prior to authorisation in the following situations:
- The Transaction is for any reason unlawful, unenforceable,
doubtful, or erroneous.
- Any Transaction made through a card outside the territory
authorized for the use of the card.
- Any Transaction cancelled due to a very high-risk score
discovered using Penguin Gateway fraud mitigations tools.
- The Transaction not having obtained a necessary
authorisation/Authentication as required to be obtained.
- The Customer’s name or account number or any other necessary
details is found to be omitted or incomplete.
- Penguin Gateway is of the opinion that there are suspicious
circumstances surrounding the Transaction.
- If the Transaction was not made in accordance with the
requirements API requirements of Penguin Gateway.
- Payments can be rejected by Acquiring Bank/Issuers post authorisation
and prior to settlement in the following circumstances:
- The second or subsequent debt amount in case Transaction is
debited more than once from Customer Bank Account.
- Authorisation cancelled Transaction.
- Withheld Transaction found to be fraudulent or invalid.
- Refund Transactions
- Cancellation
- Pre-Authorisation Cancellation: This is a paid service offered by
Penguin Gateway and shall be applicable only if this service is explicitly
enabled by the Merchant. This service implies the process of unblocking
the Transaction amount earlier blocked by the Acquiring Bank/Issuer from
the Customer Valid card/Bank Account before that amount is settled into
Escrow Account. Following are the situations where Pre-Authorisation
Cancellation may take place:
- Acquiring Bank initiated the Pre-Authorisation Cancellation for
any reason/cause whatsoever.
- Merchant initiated Pre-Authorisation Cancellation showing his
inability to make Delivery of the Products.
- Withholding
- All Settlement Amount due to the Merchant may be withheld or delayed
till such time as Penguin Gateway, the Acquiring Banks and/or Escrow bank deems
fit, if
- The Merchant or its Customer or a third party commits any fraud
or violates any applicable law or legal requirement;
- Penguin Gateway and/or the Acquiring Banks have reasons to believe that
a fraud has been committed against the Customers, Penguin Gateway,
Acquiring Banks or any third party by the Merchant, its
Customers, or any other third party; or has reason to believe
that the Merchant or the Customer has in connivance with any
other person done any fraud or assisted in the same; or any
transaction has been fraudulently initiated;
- The Merchant has excessive pending Chargebacks or poses high
Chargeback and/or refund Risk;
- Continuous non-delivery or delayed Delivery of Merchant’s
Services to Customers; or
- For any other reasonable reasons. In the event of suspended or
delayed payments mentioned above, Penguin Gateway shall promptly
intimate the same to the Merchant. Also, Penguin Gateway may impose
transaction limits either temporarily or permanently in order to
reduce reasonable apprehension of risk or loss under varying
circumstances.
- FRAUDULENT TRANSACTIONS
- In the event, that Penguin Gateway is intimated, by the Acquiring Bank or a Card
Association, that a Customer has reported an unauthorized debit of the
Customer's payment instrument or the Merchant has by way of fraud against the
Customer made the Customer do an unauthorized debit ('Fraudulent Transaction'),
then Penguin Gateway shall be entitled to suspend the settlement of the amount
associated with the Fraudulent Transaction during the pendency of inquiries,
investigations, and resolution thereof by the Acquiring Bank or the Card Payment
Network. If the Fraudulent Transaction results in a Chargeback, then the
Chargeback shall be resolved in accordance with the provisions relating to
Chargeback as set out under these Terms and Conditions.
- Further, Penguin Gateway also reserves the right to close, suspend, limit or put on
hold the Merchant’s access to the account with Penguin Gateway and/ or the funds
available therein, including Settlements Amount under inter alia the following
scenarios:
- If such Merchant’s KYC credentials are found to be ingenuine or fake.
- If the Merchant makes incorrect or untrue disclosure of the nature of
its business, resulting in a merchant category code violation.
- For violation of any of the provisions of the Terms and Conditions.
- For violation of any of the provisions of any other agreement that the
Merchant has entered into or might enter into with Penguin Gateway.
- For violation of any of the applicable laws by the Merchant.
- Such right to close, suspend, limit or put on hold the Merchant’s access
to the account with Penguin Gateway shall continue till such time that the
Merchant submits genuine KYC documents or credentials to the
satisfaction of the relevant authorities as per the extant rules,
regulations or guidelines with regard to KYC, as well as to the
satisfaction of Penguin Gateway without prejudice to any other legal remedy
that Penguin Gateway is entitled to prefer as per applicable law.
- DEDUCTIONS
- Penguin Gateway is hereby authorised and entitled to debit the Settlement Amount for
any Outstanding Amount payable by Merchant to Penguin Gateway (in short as
“Deductions”). The said payments shall not be dependent upon or
conditional to Merchant obtaining payment whether through Escrow bank or
otherwise from Customers in respect of the Merchant’s Services and/or
irrespective of whether Merchant complies with the Order placed by Customer with
Merchant. Merchant agrees and undertakes to execute all authorizations and
writings as may be required in this regard by Penguin Gateway from time to time and
shall ensure that there are always sufficient funds in the Merchant’s Account.
Penguin Gateway shall also debit the amounts erroneously paid in excess to the
Merchant.
- DISBURSEMENT
- Penguin Gateway shall enable Disbursement to the Beneficiary through api calls and such
api calls will be authorised by the Merchant.
- The Merchant acknowledges that for availing Services, Penguin Gateway may designate a
Merchant Payout Account where the Merchant shall maintain and provide sufficient
funds to liquidate payment obligations of the Merchant of Disbursing the monies
to the Beneficiaries or performing the Verification Services via the
Verification Suite. The Merchant shall be solely responsible for recharging and
maintaining sufficient funds in the Merchant Payout Account to enable Penguin Gateway
to provide Services. In the event the funds in the Merchant Payout Account for
the Disbursement falls deficit, Penguin Gateway shall not be liable to process any
Disbursement Instruction by the Merchant.
- Merchant shall Disburse the money to the Beneficiary through the Dashboard /
Penguin Gateway Platform made available to the Merchant after entering all the
necessary details of its Beneficiaries. The details of the Beneficiaries shall
be in such format as may be provided on the Dashboard / Penguin Gateway Platform.
Penguin Gateway in case of payouts acts as a mere technology service provider to the
Merchant.
- The Merchant shall process the Disbursement and/ or perform Verification
Services via the Verification Suite through the Dashboard or the Penguin Gateway
Platform. As Penguin Gateway does not interfere with the Dashboard or the Penguin Gateway
Platform, Penguin Gateway shall not be held liable for any error, omission, negligence,
or delay in connection with the details of the Beneficiaries and Instructions
provided by the Merchant.
- The Merchant agrees to conform to the prescribed authentication technologies and
security measures (as per Penguin Gateway’s API specifications) required for providing
operating the Dashboard and getting access to the Penguin Gateway Platform and
undertakes to take all reasonable steps to ensure that the accuracy,
completeness, authenticity, and security of the details provided is not tampered
or violated.
- The Penguin Gateway shall not be liable in case the Instructions provided on the
Dashboard or the Penguin Gateway Platform are incorrect and transaction does to go
through to the desirable beneficiaries. The Merchant agrees that record of such
Instructions on the Dashboard or the Penguin Gateway Platform and the contents thereof
shall be proof of the Merchant's Instruction and shall be binding on the
Merchant and the Merchant shall not contest or dispute the same in any manner
whatsoever. The Merchant shall keep Penguin Gateway indemnified against any loss or
damage that Penguin Gateway may suffer due to any such Instruction/ information or by
the action of another Party.
- The Merchant agrees that Penguin Gateway shall have an indisputable right to file a
funds reversal request with the Partners as per applicable law.
- Merchant through the Penguin Gateway Platform shall generate the unique cashgram link
for each beneficiary to Disburse the money (as applicable) and the Merchant
shall provide all the necessary details of its Beneficiaries on the Dashboard or
Penguin Gateway Platform.
- The Merchant shall ensure that it obtains an authorization/consent from each
Beneficiary for the Verification Services to be carried by Penguin Gateway in the due
course of providing the Services and based on the said representation by the
Merchant, Penguin Gateway has agreed to provide such services hereunder. Additionally,
the Merchant shall provide Penguin Gateway a copy of the consent or any other proof
evidencing each Beneficiary’s such grant of consent (in a form and manner,
prescribed under applicable law) as and when requested by Penguin Gateway. In case the
Merchant fails to provide proof of such Customer consent and consequently any
penalty is levied upon Penguin Gateway by any Partners, the Merchant hereby agrees to
fully indemnify Penguin Gateway for such penalty that may be imposed upon Penguin Gateway
which is solely attributable to the Merchant’s failure to provide proof of
Customer consent.
- AUDIT
- Except as required by applicable law, the Merchant shall be solely responsible
for: (a) compiling and retaining permanent records of all Transactions and other
data and (b) reconciling all Transaction information that is associated with its
Customers.
- The Merchant shall maintain records of such periodical checks in such manner as
may be specified by Penguin Gateway, Acquiring Banks and/or any regulatory authority.
Penguin Gateway, Acquiring Banks and/or the regulatory authorities shall be entitled to
check and audit records and statements of the Merchant to ensure compliance with
the Merchant’s obligations at such intervals or times as Penguin Gateway, Acquiring
Bank and/or the regulatory authorities may deem fit.
- The Merchant shall also permit the authorised representatives of Penguin Gateway, the
Acquiring Banks and/or the regulatory authorities to carry out physical
inspections of the place(s) of business or other facilities of the Merchant to
verify if the Merchant follows its obligations hereunder.
- The Merchant shall provide all cooperation with Penguin Gateway, the Acquiring Banks
and/or the regulatory authorities for any audit, inspection, or pursuant to any
other request.
- If the Merchant refuses such inspection or provides inaccurate, untrue, or
incomplete information, or fails to comply with the Terms and Conditions,
Penguin Gateway reserves the right to suspend or terminate the Services forthwith.
- Merchant shall comply with the required standards as prescribed under applicable
law relating to cyber security. Penguin Gateway or Acquiring Bank or the Regulator may
either on its own or through third party agencies undertake inspection of the
information technology infrastructure of the Merchant to the extend to ensure
that the Merchants information technology infrastructure complies with the
applicable law relating to cyber security.
- Penguin Gateway also the right to call upon periodic security assessment reports of the
Merchant.
- OBLIGATIONS OF MERCHANT
- The Merchant agrees to process returns of, and provide refunds and adjustments
for, Merchant’s Services sold and/or payment collected through its Merchant Site
in accordance with terms of the agreement signed with the Customer, the
Acquiring Banks instructions and Card Association Rules.
- The Merchant understands that all refunds must be routed through the same
Acquiring Bank payment gateway through which the Transaction was made. In the
event that the Merchant initiates refunds through any other mode, the Merchant
shall be fully liable for all Chargebacks raised in respect of the Transaction
refunded.
- The Merchant shall ensure that Penguin Gateway at all times have sufficient funds of
the Merchant to process refunds initiated. Penguin Gateway shall not be liable to
process any refund initiated in the event of insufficient funds.
- The Merchant understands that no refund shall be processed by Penguin Gateway after a
period of 180 (one hundred and eighty) days from the date of the Transaction.
- The Merchant shall:
- maintain a fair return, cancellation or adjustment policy in accordance
with type of business;
- disclose its return or cancellation policy to Customers at the time of
purchase,
- not give cash refunds to a Customer in connection with a card sale,
unless required by law, and
- not accept cash or any other item of value for preparing a card sale
refund.
- It is hereby agreed and acknowledged by the Parties that the Consideration
charged by Penguin Gateway in respect of a Transaction that has been confirmed shall
not be refunded or repaid by Penguin Gateway to the Merchant or any other person
irrespective of the Customer Payment Amount being rejected, Chargeback, refunded
or disputed.
- The Merchant is solely responsible for all Customer service issues relating to
the Transaction, Merchant’s Services sold on its Merchant Site including but not
limited to Customer Payment Amount, order fulfilment, order cancellation,
returns, refunds and adjustments, rebates, functionality and warranty, technical
support and feedback concerning experiences with its personnels, policies or
processes. In performing Customer service, the Merchant will always present
itself as a separate entity from Penguin Gateway.
- The Merchant agrees to notify Penguin Gateway of any Third-Party claim that the
Merchant’s use of the Services conflicts with or infringes upon or violates any
rights of such Third Party.
- Merchant agrees and acknowledges that Penguin Gateway is not bound to provide any
support services on termination of these Terms and Conditions.
- Merchant undertakes to provide all the information and assistance as is required
by Penguin Gateway or if the same is required to be provided to government or
judicial/quasi-judicial authorities by Penguin Gateway.
- Merchant undertakes not to offer any products, which are illegal or offensive or
prohibited as per the list provided in Annexure A and/or are not in compliance
with applicable laws, rules, and regulations prescribed by any regulatory
authorities in India.
- In addition, Merchant undertakes to comply with and shall ensure compliance by
the Customers with all applicable guidelines, rules, regulations issued by RBI
and our Acquiring Banks and/or Card Associations. Merchant agrees and
understands that Penguin Gateway reserves the right to suspend Settlement Amount and/or
Services until such time that Merchant does not discontinue selling such
prohibited products or does not conform to all applicable laws and regulations
in force from time to time. In addition, Penguin Gateway reserves the right to
terminate the relationship between the Parties without further notice in the
case of breach of this Clause by the Merchant.
- The Merchant agrees to fully comply with all programs, guidelines, requirements
that may be published and/ or mandated by the Card Association.
- Notwithstanding Penguin Gateway’s assistance in understanding the Card Association
Rules, the Merchant expressly acknowledge and agree that the Merchant assuming
the risk of compliance with all provisions of the Card Association Rules,
regardless of whether the Merchant is aware of or have access to those
provisions.
- MasterCard, Visa and American Express make excerpts of their respective rules
available on their internet sites.
- In the event of the Merchant’s non-compliance of Card Association Rules, results
in any fines, penalties or other amounts being levied on or demanded from
Penguin Gateway by a Card Association, then without prejudice to Penguin Gateway’s other
rights hereunder, the Merchant shall forthwith reimburse Penguin Gateway in an amount
equal to the fines, penalties or other amount so levied or demanded or spent by
us in any manner in relation to such fines, penalties and levies.
- The Merchant undertakes and agrees to be solely responsible for obtaining
permission from its sub-merchants, Customers or any clients for Penguin Gateway to
effect recurring billing and for debiting their respective accounts. It is
agreed between the Parties that Penguin Gateway shall not be responsible for any claims
from any of the Merchant’s sub-merchants, Customers or any claims against
Penguin Gateway for debiting their respective accounts in respect of the recurring
billing.
- The Merchant shall be solely responsible for the accuracy of all information
and/or validity of the prices and any other charges and/or other information
relating to the Merchant’s Services, which are offered on its Merchant Site.
- The Merchant shall resolve all customer grievance and disputes in line with
terms agreed with the Customer or Applicable Laws, whichever is earlier.
- The Merchant authorises Penguin Gateway to share KYC details collected from the
Merchant and Transaction data and Customer information (if any) with the
respective Acquiring Banks and Card Associations.
- The Merchant shall maintain and run the Merchant Site as a part of its business
and shall ensure that the Merchant Site does not contain libelous, defamatory,
obscene, pornographic or profane material or any instructions that may cause
harm to Penguin Gateway, the Acquiring Banks, Card Associations and/or any other Third
Party.
- The Merchant shall not require the Customer to provide the Merchant with any
details of the accounts held by it with Issuer. The Merchant shall not input any
data on behalf of the Customers on the Merchant Site or the Acquiring Bank,
failing which it will be considered as breach of trust of Penguin Gateway and/or of the
Acquiring Bank.
- The Merchant shall ensure to keep confidential, all information submitted by the
Customers on the Merchant Site. The Customer shall not be required or asked to
disclose any confidential or personal data, which may be prejudicial to
interests of the Customer.
- The Merchant shall not store/save any Customer’s card details/credentials and
such related data within its database or any other server accessed irrespective
of the Merchant being PCI-DSS compliant or otherwise. The Merchant shall be
liable to comply with existing data privacy regulations from time to time.
- The Merchant shall in writing inform Penguin Gateway of all changes in its
constitution, authorized signatory/directors/partners/trustees, or change in the
current addresses of each office, within 7 (seven) Business Days of such change
having taken place listing out the names and details of the personnel in charge
of the management and affairs of the Merchant. Such intimation shall be provided
on the Merchant’s letterhead signed by the authorized signatory of the Merchant.
- The Merchant shall not engage in activities that harm the business and/or brand
of Penguin Gateway, the Acquiring Banks and/or Card Associations and shall not have any
mala fide intention of duping Customers or do not sell fake/counterfeit
products.
- The Merchant hereby agrees that it shall bear and be responsible for the payment
of all relevant taxes, surcharge, levies etc. (including withholding taxes) in
relation to the Customer Payment Amount and Services.
- The Merchant agrees to provide to Penguin Gateway or Acquiring Banks all documents such
as invoice, purchase orders, delivery challan or any other proofs as may be
required to evidence the transactions carried out. Such documents shall be
provided by the Merchant within 24 (twenty-four) hours of Penguin Gateway / Acquiring
Banks requesting for the same. In the event the Merchant fails to provide such
documents, the Merchant agrees that Penguin Gateway shall have the right to withhold
the settlements to the Merchant, pending enquiries by the Acquiring Bank and
till the resolution of such issues.
- The Merchant shall ensure that appropriate cancellation policy, refund policy,
privacy policies, disclosures/disclaimers, terms of use pertaining to the
Merchant Site, the terms of the Merchant’s Services provided by the Merchant and
terms of paying the Customer Payment Amount are displayed conspicuously on the
Merchant Site (collectively “Merchant Terms and Conditions”).
- The Merchant shall prior to accepting any instructions from the Customers ensure
that the Customers are duly registered on the Merchant Site and the Customers
accepts all the Merchant Terms and Conditions. The Merchant undertakes and
agrees to adhere with applicable laws, rules and regulation prescribed for its
business activity.
- The Merchant shall prominently display in its Terms and Conditions about the
usage and applicability of its services according to the law of land for its
Customers. Penguin Gateway reserves the right to inspect the Merchant Terms and
Conditions at any times.
- The Merchant unconditionally agrees and undertakes that it is compliant with and
shall do/ undertake all acts necessary to continue to be compliant with the
provisions of all applicable laws of its specific jurisdiction, including but
not limited to the provisions of the RBI Guidelines on Regulation of Payment
Aggregators and Payment Gateways, issued on March 17, 2020 (PA Guidelines) read
with the Clarifications to the PA Guidelines issued on March 31, 2021, Payment
and Settlement Systems Act, 2007, Prevention of Money Laundering Act, 2002, FEMA
1999, Know Your Customer (KYC) / Anti-Money Laundering (AML) / Combating
Financing of Terrorism (CFT) guidelines issued by the Department of Regulation,
RBI etc., that may be applicable to the Merchant in connection with its business
and use of Services.
- The Merchant agrees that Penguin Gateway reserves a right to suspend the payment and/or
Services provided herein, forthwith, in event the Merchant fails to observe the
Terms and Conditions herein.
- The Merchant undertakes and agrees to be solely responsible for the accuracy of
all information and details of the Beneficiaries. It is agreed between the
Parties that Penguin Gateway shall not be responsible for any claims from any of the
Beneficiaries or Merchant due to any error, delay, omission by the Merchant with
respect to the Instructions and details/information of the Beneficiaries.
Penguin Gateway shall not be responsible to verify any information and details of the
Beneficiaries relating to the Services. Penguin Gateway shall assume that information
and details of the Beneficiaries are correct and accordingly Penguin Gateway shall
perform the Services.
- The Merchant authorises Penguin Gateway to share Customer information/data with the
Partners necessary to provide the Services.
- The Merchant undertakes to disclose to Penguin Gateway, at the time of onboarding and
on an ongoing basis, whether the Merchant, any of its directors, or authorized
signatories are classified as Politically Exposed Persons (PEPs) as per Master
Direction—Know Your Customer (KYC) Direction, 2016 (as amended time to time).
The Merchant further agrees to promptly notify the status of PEP to Penguin Gateway by
sending email on care@Penguin Gateway.com. Failure to disclose or update such
information may result in suspension or termination of services by Penguin Gateway.
- TERMINATION
- Penguin Gateway is entitled to terminate the Services, at its option by giving a notice
of 30 (thirty) days in writing to the Merchant.
- If there is a breach of these Terms and Conditions by the Merchant, Penguin Gateway may
give written notice of 15 (fifteen) days to the Merchant to cure the breach, if
such cure is possible, failing which Penguin Gateway shall forthwith terminate the
Services.
- Penguin Gateway shall be entitled at its option, to immediately terminate the Services
by giving written notice on that behalf, to the Merchant on the happening of any
of the following events:
- If the Merchant becomes or is declared bankrupt or goes in liquidation
voluntary or compulsory;
- If the Merchant ceases to carry on its business or suspends all or
substantially all of its operations;
- There is any material adverse change or any change in applicable law,
rules, regulations, directives or guidelines, which prevents the
continuing of the arrangement;
- If an event of any Force Majeure conditions continues for a period in
excess of one month;
- If the Merchant engages in fraud or other illegal or unethical
activities.
- In case a Merchant engages in a business listed in the list of the
Negative, Risky and Restricted Categories of business provided under
Attachment A to these Terms and Conditions.
- Termination shall not release the Merchant from the obligation to make payment
of all amounts then due and/or payable.
- Termination shall not affect any accrued rights or liabilities of either Party
nor shall it affect the coming into force or the continuance in force of any
provision of these Terms and Conditions which is expressly or by implication
intended to come into or continue in force on or after such termination.
- If there are reasonable grounds for Penguin Gateway or any of its Acquiring Bank to
suspect or upon receiving an intimation in written mode of communication from
the Acquiring Bank that a Transaction conducted on the Merchant platform in
suspicious manner which amounts to breach of these Terms and Conditions or as a
fraudulent Transaction, against the Acquiring Bank or any Customer, Penguin Gateway
shall be entitled to suspend its services immediately, terminate the Services
with immediate effect without having to give any notice of termination to the
Merchant and withhold the settlements to the Merchant, pending enquiries by the
Acquiring Bank and till the resolution of such issues. Penguin Gateway shall also have
the right to block any future payments in this regard.
- Penguin Gateway shall have the right to terminate the Agreement immediately in the
event Chargeback to Gross Transaction Value Ratio goes beyond 1%.
- The Merchant agrees and confirms that the Merchant shall remain solely liable
after the termination of the Services for all Chargebacks, refunds, penalties,
loss, damages or cost incurred by Penguin Gateway, and/or Customers and for all claims
and proceedings arising against Penguin Gateway. At the time of termination, Penguin Gateway
may retain such Settlement Amount payable to the Merchant (including Settlement
Amounts withheld) as may be determined by Penguin Gateway to cover chargeback risk,
refund risk or any potential loss, damages, penalties, cost that may be incurred
by Penguin Gateway and/or Customers for a period of 180 (one hundred and eighty)
Business Days. Subject to this Clause, all settlement to the Merchant after
notice of termination shall be done post-termination. In the event that such
retained amount is not sufficient to cover all Outstanding Amounts of the
Merchant post-termination, the Merchant shall ensure that it pays Penguin Gateway all
pending amounts within 10 (ten) days of receiving the demand notice and shall at
all times keep Penguin Gateway indemnified in this respect. This Clause survives the
termination.
Annexure 1
List of the Negative, Risky and Restricted
Categories of business
As already Provided under Attachment A to
these Terms and Conditions
Schedule B
Special Terms and Conditions to the
Payment Aggregation Services
In addition to the Terms and Conditions provided at the top of this webpage, the Payment
Aggregation Services shall be rendered in accordance with the following specific terms
and conditions:
- Penguin Gateway enables acceptance of domestic and international payments, through various
Payments Instruments. Merchant is provided either a pre-coded check-out integration or
customized payment flow. Merchant may also choose to use software development kits to
easily integrate its own mobile application or website to the gateway of Penguin Gateway. Such
integration will be done by the Merchant on its own and Penguin Gateway will not be required to
provide any support for such integration. Merchant may collect payments using various
Payments Instruments after such integration of application programming interface.
- Penguin Gateway shall also enable a Dashboard to the Merchant. The Dashboard shall enable the
Merchant to manage the payments, refunds, and settlements. The Dashboard will also
provide analytics from day-to-day business. For providing analytics, the Penguin Gateway shall
use the payments data so collected in relation to the business of the Merchant. The
payment data shall be used only to provide the analytics. Any consent for usage of the
data relating to the payments or transactions of the Customer shall be procured by the
Merchant.
- The Dashboard shall provide visibility of the timeline for each payment received,
beginning from the time the order was raised to the time it is completed. The Dashboard
will also provide details of the Refund.
- Penguin Gateway has made available software development kits for mobile applications, web
applications, and plugins for different partners. The Merchant may choose to integrate
their mobile application or a web application with the Penguin Gateway Platform on their own.
In the event, Merchant uses plugins to integrate the payment gateway on the platform of
a partner, the Merchant should have been abiding by the terms and conditions as stated
by the partner of Penguin Gateway for the use of its platform. Penguin Gateway shall not be
responsible for any defect or deficiency of services rendered by the partner of
Penguin Gateway.
- The integration will take place in accordance with the application programming interface
provided by Penguin Gateway and the documentation for such application programming interface
shall be available on website of Penguin Gateway Website.
- Penguin Gateway shall provide for the following reports: (i) transaction report; (ii)
settlement reconciliation report; (iii) settlement summary; (iv) refund report (v)
ledger report. Penguin Gateway shall not be required to provide any additional notice or report
regarding the transactions to the Merchant in any manner whatsoever. The Merchant shall
be solely liable for supervising the performance of its transactions. The Merchant
should be aware of the reports including the refunds processed, settlements made and
transactions carried out through the Penguin Gateway Platform.
- Penguin Gateway shall provide for several Payment Instruments after integrating with several
banks, payment aggregators, payment gateways and payment service operators. These
integrations will be managed and operated in accordance with the existing laws, and
guidelines issued by such partners and contracts with such partners. The Merchant at all
times be responsible to support Penguin Gateway in complying with the applicable laws,
guidelines issued by the partners and contracts entered between Penguin Gateway and such
partners on best efforts basis.
- Penguin Gateway shall facilitate e-commerce websites and Merchants to accept various Payments
Instruments from the Customers for completion of their payment obligations without the
need for Merchant to create a separate payment integration system of their own.
- Penguin Gateway shall facilitate the Merchants to connect with Acquirer Banks.
- Penguin Gateway shall collect funds from the Customer, pool such funds in an Escrow Account and
disburse such funds in accordance with the applicable law.
- The General Terms and Conditions to Services clearly delineate the roles and
responsibilities of the Merchant, Penguin Gateway, and Acquiring Banks in sorting/handling
complaints, refund / failed transactions, return policy, customer grievance redressal
including time for resolving queries, dispute resolution mechanism, reconciliation, etc.
- Penguin Gateway has a board-approved Merchant Grievance Policy and has appointed a nodal
officer for regulatory and customer grievance handling functions. The details of the
nodal website are provided on the Penguin Gateway Website.
- Penguin Gateway has a board approved Know Your Client / Anti Money Laundering Policy in terms
of which a Merchant is onboarded.
- Penguin Gateway shall undertake background and antecedent check of the Merchant. Penguin Gateway shall
ensure that the Merchant does not have any mala fide intention of duping Customers, does
not sell fake/counterfeit/prohibited products, etc.
- The website of the Merchant shall clearly indicate the terms and conditions of the
services or sale of goods. The website of the Merchant shall also provide a timeline for
processing returns and refunds as may be claimed by the Customer.
- Penguin Gateway shall be entitled to check payments card industry – data security standard and
payment application data security standard compliance of the infrastructure of the
Merchants that are on-boarded.
- The Merchant shall ensure that its website does not save Customer card and such related
data.
- Penguin Gateway may carry out a security audit of a Merchant to check compliance as and when
required.
- The Merchant shall ensure that the Customer Data or payments data or transaction data is
secured in accordance with applicable laws. The Merchant shall ensure that the privacy
of the Customer is protected in accordance with the applicable laws.
- The Merchant shall ensure that any incident relating to the breach of data or breach of
privacy is informed to the Penguin Gateway within a reasonable time.
- Penguin Gateway shall obtain periodic security assessment reports either based on the risk
assessment (large or small merchants) and/or at the time of renewal of contracts.
- Penguin Gateway shall maintain the amount collected by it in an Escrow Account with any
scheduled commercial bank. Penguin Gateway may operate two Escrow Account as permitted by the
applicable law.
- Penguin Gateway may shift the Escrow Account from one bank to another.
- Penguin Gateway may call upon the Merchant to pre-fund the Escrow Account.
- The Escrow Account shall not be operated for ‘Cash-on-Delivery’ transactions.
- The Escrow Account shall be credited or debited with the permitted transactions in
accordance with the applicable law.
- Penguin Gateway shall be free to share the details of the Merchant, notwithstanding the
confidentiality obligations, with the Acquiring Bank, legal enforcement agencies and
regulators. Penguin Gateway shall be free to share the details of the transactions,
notwithstanding the confidentiality obligations, with the Acquiring Bank, legal
enforcement agencies, and regulators.
- Penguin Gateway shall ensure that the payments are made only to eligible Merchants that have
not indulged in any fraudulent transactions and have shown responsible behavior.
Penguin Gateway shall settle the money to the Merchant only and only in case Merchant has
participated in a legible business.
- Penguin Gateway shall have a mechanism to prevent and detect fraud and in this regard, Penguin Gateway
may choose to monitor the behavior of the Merchant ongoing basis. Penguin Gateway shall also to
prevent fraud, monitor the daily transactions from time to time with the support of
information technology tools.
- Penguin Gateway shall monitor, handle, and follow-up cyber security incidents and breaches.
Penguin Gateway shall provide details regarding such cyber incidents and breaches immediately
to the RBI and CERT-IN.
- In the event, the Merchant is undertaking the business of market-based e-commerce, then
in that case, the Merchant shall be completely responsible for the fraudulent or
suspicious behavior of a Sub-Merchant onboarded on its platform. The Merchant shall
carry out due diligence of a Sub-Merchant in accordance with the guidelines issued by
the RBI for conducting KYC. The Merchant shall store the KYC-related documents with it
for a period of 10 (ten) years and shall update the KYC of its Sub-Merchant on a
periodic basis. The Merchant shall be under an obligation to provide the KYC-related
documents to Penguin Gateway within a period of 3 (three) Business Days of receipt of an
intimation for such documents. Failure to provide an updated KYC document to Penguin Gateway
shall entitle Penguin Gateway to recover the dues and damages from the Merchant due to the
unavailability of the Sub-Merchant.
- In the event, Penguin Gateway has offered payment solutions related to Payment Aggregator Cross
Border (‘PA-CB’) Scheme issued by the RBI, the Merchant shall comply with the guidelines
issued by RBI authorized modes of payments, settlement and reporting.
Schedule C
Special Terms and Conditions to Auto-Collect
- This Service enables collection of incoming bank transfers and UPI payments and track
and automatically reconcile payments. Also, Auto-Collect uses virtual account and
virtual UPI IDs to collect payments.
- Auto-Collect shall cover collections of monies through electronic mode and shall not be
extended to cover any other payments or receipts of any nature whatsoever. The monies
collected by Penguin Gateway through Auto-Collect will be credited to the Designated Bank
Account registered with Penguin Gateway.
- The Merchant acknowledges and agrees that the instructions for the Auto-Collect shall be
processed by Penguin Gateway only if the same are received on a Business Hours before the cut
off time.
- The Merchant shall ensure that instructions are delivered to Penguin Gateway for collections by
the Merchant or any person authorized by the Merchant. Penguin Gateway shall not be liable or
responsible for acting on such instructions by the Merchant or any other authorized
person.
- In the event, the Merchant’s title to the monies collected under Auto-Collect is found
to be fraudulent or the Merchant is found to have no title to the monies, then the
Merchant undertakes to refund monies/ cash (together with interest, if any) forthwith to
Penguin Gateway along with interest at the rate as stipulated by Penguin Gateway from the date of
credit till the date of payment. The Merchant in such cases shall defend any legal
action against Penguin Gateway by any third party at its own cost for alleged
conversion/misappropriation of monies/ cash.
Schedule D
Special Terms and Conditions to Payout Services
The Payout Services shall be rendered by the following specific terms and conditions:
- Penguin Gateway shall provide Payout Services to the Merchants by integrating a current account
managed by the Merchant with its bank. The Payout Services also facilitate payments into
the UPI or Wallet maintained by the beneficiary.
- Penguin Gateway shall route the transaction in case of UPI through banking partners, in case of
wallet through other pre-paid instrument issuers, in case of the bank through card
networks.
- Penguin Gateway shall provide a Dashboard that would enable the Merchant to actively disburse
the funds. The Dashboard also enables to effectively operate, automate and monitor the
account of the Merchant. The Merchant can use the dashboard to manage transfers and
reversals, handle disputes and gain insights into the overall disbursals of its
business. The Dashboard is completely managed by the Merchant and Penguin Gateway shall not
make any interference in the said Dashboard.
- A summary on the Dashboard shall provide high-level insights into the payout account of
the Merchant. The summary provides information about available balance and transferred
amounts. The summary also provides some statistics about your daily and weekly
transfers. The summary on the Dashboard also provides useful at-a-glance insight about
the payout disbursals of the Merchant related to its business.
- Merchant can create either an (i) Recharge; or (ii) Direct payout account. The payout
recharge account provides details of the payouts on the Dashboard once the account is
created by Penguin Gateway. Each Merchant has given an account number and an IFSC Code for its
payouts account. The merchant should add funds for disbursals to the recharge account.
The Merchant is at liberty to add funds to any bank account or UPI or Wallet from its
payout recharge account. Payout Direct permits a Merchant to make instant automated
payments directly from its bank account. Penguin Gateway is only responsible for integrating
the Penguin Gateway Platform with the bank account of the Merchant and acting as a technology
service provider to the Merchant. In the case of a payout direct account, the Merchant,
however, will not be able to make the disbursals using cards, UPI, and Wallet as a
Payment Instrument.
- In case a Merchant is utilizing both Payment Aggregation Services and Payout Services,
the Merchant may by way of a written intimation made to Penguin Gateway through its key account
manager, may direct Penguin Gateway to settle the funds into the payouts accounts. Once funds
are settled from the Escrow Account, such funds can be utilized for disbursals.
- The Merchant shall ensure that it deducts and performs all the compliances related to
tax regulations relating to either Goods and Services Tax or Income Tax about the
payments that are made to the beneficiary. The Merchant shall be willing to provide
proof or evidence of such compliance in case Penguin Gateway calls for such compliance.
- The merchant shall be responsible for opening, maintaining, funding, and managing the
current account.
- Penguin Gateway may provide for an account to pool the funds and disburse such funds on the
instructions of the Merchant.
- A merchant may take services of Penguin Gateway to seek validation of the account where
disbursement is made to confirm that such disbursement is to a verified account.
- In the event, such services are not availed, the Merchant shall be solely responsible
for any disbursements from either the pool account maintained by Penguin Gateway or the current
account of the Merchant as the case may be.
- Merchant shall be responsible for undertaking necessary steps to ensure to conduct a
background check of parties that would receive funds from the pool account or the
current account.
- Penguin Gateway shall not be privy of the transaction between the Merchant and the recipient in
any manner whatsoever, Penguin Gateway only performs Services as an intermediary between the
Merchant and the recipient of funds.
Schedule E
Special Terms and Conditions to Verification Services
The Verification Services shall be rendered in accordance with the following specific
terms and conditions:
- Penguin Gateway enables Verification of Beneficiaries details at the instruction of the
Merchant with or without disbursement of token amount in the Beneficiaries accounts. The
Merchant shall keep the Penguin Gateway Payout Account funded if the Verification Service is
provided by Disbursing the Token Amount in the Beneficiaries Payment Instrument.
- Penguin Gateway shall perform the Verification Service in accordance with the Instructions and
details of the Beneficiaries provided by the Merchant and Penguin Gateway shall not be held
liable for any error, omission, negligence, delay in connection with the details of the
Beneficiaries and Instructions provided by the Merchant.
- Penguin Gateway shall provide access to a Dashboard to the Merchant. The Dashboard shall enable
the Merchant to manage or initiate the Verification Services of the Beneficiaries. The
Dashboard shall also enable the merchant to check the status of the Verification
Services initiated by them.
- The General Terms and Conditions to Verification Services clearly delineate the roles
and responsibilities of the Merchant, Penguin Gateway, and Partners in reference to the
performance of their obligations.
- Bank Account Validation/ Verification
- UPI Verification
- IFSC Verification
- PAN Verification
- Aadhaar Verification
- GSTIN Verification
- Using this feature the Merchant can verify the Goods and Services Tax Identification
Number of the Beneficiary. To verify the Beneficiary’s GSTIN details the Merchant shall
share GSTIN of the Beneficiary with Penguin Gateway.
-
Steps for verifying the GSTIN:
- Go to Verification Suite
Dashboard > GSTIN >click Verify GSTIN.
- Enter the GSTIN you want to verify.
Schedule F
Special Terms and Conditions to Subscription Services
For Subscription/ Recurring Payment, the Merchant acknowledges, undertakes, and agrees
that:
- This Service facilitates issuance and confirmation of mandate by the Customers through
alternate channels to paper-based mandate.
- The Customer desirous of opting for e-Mandate/ recurring payment/ standing instructions
shall undertake one-time registration process as per Applicable Laws including
‘Additional Factor Authentication’ (AFA). An e-Mandate shall be registered only after
successful AFA validation (if any), in addition to the standard process by the Facility
Providers. The Merchant understands that any modification in the existing e-Mandate
shall entail AFA validation by the Customer. The Merchant agrees to share all relevant
information/ instructions with Penguin Gateway for effecting an e-Mandate from time to time.
- The Merchant shall send a pre-transaction notification to the Customer, at least 24
hours prior to the actual charge/ debit to the Payment Instrument. The Customer should
be given the facility to choose a mode of communication for receiving pre-transaction
notification, the facility of changing such mode of communication for receiving
pre-transaction notification shall also be available with the Customer.
- The pre-transaction notification shall at the minimum inform the Customer about the name
of the Merchant, Settlement Amount, date and time of debit, reference number of
Transaction/ e-Mandate, reason for debit etc.
- On receipt of pre-transaction notification, the Customer shall have the facility to
opt-out of the e-Mandate, such withdrawals can also be initiated by the Customer with
the Facility Provider.
- The Merchant shall be solely responsible for obtaining permission from its Customers for
Penguin Gateway to effect e-Mandate/ billing and for debiting their respective accounts/
Payment Instruments. It is agreed between the Parties that Penguin Gateway shall not be
responsible for any claims from any of the Merchant’s Customers or any claims against
Penguin Gateway for debiting their respective accounts/ Payment Instruments in respect of the
e-Mandate.
- Until the Customer or the Merchant terminates or cancels the e-Mandate instruction,
Penguin Gateway will continue to charge the Settlement Amount to the relevant Customer
according to the billing cycle. If the Customer revokes his/ her consent to the
e-Mandate instruction, the Merchant agrees to immediately notify Penguin Gateway in writing; if
intimation of revocation of e-Mandate is not made in a timely manner to Penguin Gateway,
Penguin Gateway shall not be liable if any e-Mandate are charged to the Customer.
- If the Customer's Payment Instrument does not have adequate funds, the Merchant
acknowledges and agrees that Penguin Gateway shall not be liable for processing any e-Mandate
instructions.
- Once the Merchant has set/ created the e-Mandate instruction, the Facility Provider may
take up to 1-2 Business Days to activate or execute the e-Mandate transaction.
Schedule G
Special Terms and Conditions to PA-CB – Payment Services
The PA-CB payment services shall be rendered in accordance with the special terms and
conditions stipulated under Schedule B (Special Terms and Conditions to the Payment
Aggregation Services) along-with the following specific terms and conditions:
- Merchant shall ensure that no transaction is related to, directly or indirectly, import
and/or export of any restricted / prohibited goods and services (not permissible under
the prevailing Foreign Trade Policy).
- In case per unit goods / services imported is more than ₹2,50,000 (Indian Rupees Two
Lakhs and Fifty Thousand), then Merchant shall provide the necessary documents, to
Penguin Gateway, required for undertaking due diligence of the Customer.
- In respect of import and export transactions processed by Penguin Gateway, the Merchant
acknowledges that the maximum value per unit of goods / services sold / purchased shall
be ₹25,00,000 (Indian Rupees Twenty-Five Lakhs) (or such other value as may be permitted
by RBI from time to time).
- Parties shall comply with the notification titled ‘Regulation of Payment Aggregator –
Cross Border (PA - Cross Border)’, dated October 31, 2023 (as amended), notified by the
RBI.
Schedule H
Special Terms and Conditions to Offline Payment Modes
You shall be provided with Penguin Gateway setup that includes an application or API
(“Penguin Gateway Setup”) that can be installed in your smartphone (“Device”) or
can be integrated with in-store systems to facilitate contactless in-store face to face
payments for the orders placed by the Customer with you (face-to face) using their UPI
app or card. The Penguin Gateway Setup shall enable you to accept payment via Dynamic QR,
Static QR, Tap to Pay, as enabled in your Device(“Offline Payment Modes”). The
terms and conditions for Offline Payment Modes are as follows:
-
1. Dynamic QR
- You shall generate unique Dynamic QR code via Penguin Gateway Setup for an order to
ensure accurate reconciliation and tracking of Transactions via Penguin Gateway Setup.
- You are responsible for determining the payment amount to be collected from the
Customer using the Dynamic QR code. You must accurately input the payment amount
in the Penguin Gateway Setup to collect payment from the Customer. Penguin Gateway shall not
be liable for any errors or discrepancies in the payment amount entered by you.
- You are responsible for generating the Dynamic QR code via Penguin Gateway Setup/ for a
specific order or bill. Post the successful payment, you can check the same in
the Dashboard available in the Penguin Gateway Setup.
- You agree and acknowledge that by scanning a Dynamic QR code and confirming the
payment, the Customer authorizes Penguin Gateway to initiate the Transaction on their
behalf. The Customer is responsible for verifying the payment details before
confirming.
-
2. Static QR
- You shall generate the Static QR code via Penguin Gateway Setup that shall be a unique
identifier for you.
- The Customers shall be needed to scan the Static QR code and enter the amount
while paying through the UPI app. You shall be responsible to check the amount
entered by the Customer. Penguin Gateway shall not be responsible for any discrepancy
in the amount entered by the Customer.
- Post the successful payment, you can check the same in the Dashboard available
in the Penguin Gateway Setup.
- You agree and acknowledge that by scanning a Static QR code and confirming the
payment, the Customer authorizes Penguin Gateway to initiate the Transaction on their
behalf. The Customer is responsible for verifying the payment details before
confirming.
-
3. Tap to Pay
- Tap to Pay allows you to use the Device to accept contactless payments from the
Customer’s contactless card through Penguin Gateway Setup. The Customer can pay under
Rs.5000/- (Indian Rupees Five Thousand) by tapping their card on your Device as
long as contactless payment functionality is enabled for that card. An amount
above Rs.5000/- will require PIN to be entered by the Customer in your Device.
This facility of transaction above Rs.5000/- (Indian Rupees Five Thousand) will
only be applicable for Visa and Master Cards and not for Rupay.
- After each payment is made, whether it’s successful or it failed, you will be
able to generate and send a receipt to the Customer.
- You are responsible for determining the payment amount to be collected from the
Customer. You must accurately input the payment amount in the Penguin Gateway Setup to
collect payment from the Customer. Penguin Gateway shall not be liable for any errors
or discrepancies in the payment amount entered by you.
- You are responsible for generating the Tap to Pay via Penguin Gateway Setup for a
specific order or bill. Post the successful payment, you can check the same in
the Dashboard available in the Penguin Gateway Setup.
- You agree and acknowledge that by accepting the Tap to Pay and confirming the
payment, the Customer authorizes Penguin Gateway to initiate the Transaction on their
behalf. The Customer is responsible for verifying the payment details before
confirming.
General Terms for Offline Payment
Modes:
- You undertake that you shall only use Offline Payment Modes for commercial purposes and
not for any personal, family or household purposes. Further, you undertake that you or
your authorised personnel shall not use the Offline Payment Modes for any online
transactions. For removal of ambiguity, any transactions that are not face-to-face where
you and/or Customer both are physically not present during the Transaction.
- You accept full responsibility for the behaviour of any authorised personnel you have
authorised to use Offline Payment Modes on its eligible devices.
- You shall not discriminate against certain types of cards when a Customer presents them
to you for payment.
- You shall not apply any surcharges on top of the amount of the Transaction just because
a Customer wants to use a particular card.
- In the event of order cancellation or a refund for a successful Transaction, you are
responsible for initiating a refund request.
- Penguin Gateway reserves the right to stop you from using the Offline Payment Modes by
disabling the account if Penguin Gateway suspects or becomes aware that you have breached the
terms of these Terms and Conditions.
- You shall be completely liable in case Offline Payment Modes are used for any other
purposes not in line with your business. Any direct or indirect financial liabilities
arising out of such activities will be borne by you and Penguin Gateway shall debit your
settlement amount for such transactions. Such liabilities can be in the form of
complaints or notices received from the regulators including RBI, NPCI or any other
government bodies.
- You will be completely liable in case Penguin Gateway receives complaints/notices for any
suspected frauds or chargebacks or cyber-crime complaints or any such complaints raised
by the regulators including RBI, NPCI and government bodies for transactions processed
by you. Any direct financial liabilities arising out of such complaints will be borne by
you and Penguin Gateway shall debit your settlement amount for such transaction.
Schedule I
Special Terms and Conditions to FlowWise Services
The FlowWise services shall be rendered in accordance with the following
specific terms and conditions:
-
Definitions
In this Schedule, the following definitions shall also apply:
- “Aggregate Data” shall mean numerical or non-numerical information that
is collected from multiple sources and/or on multiple measures, variables, or
individuals and compiled into data summaries or summary reports, typically for
the purposes of statistical analysis i.e., examining trends, making comparisons,
or revealing information and insights that would not be observable when data
elements are viewed in isolation.
- “Card Network(s)” shall mean any of payment card networks including but
not limited to Visa, MasterCard, Rupay, Visa Electron, Maestro, Diners, American
Express etc., which enables online card transactions.
- “Customer Data” shall mean all information, data and other content
generated from the end user of Merchant Services.
- “Documentation” shall mean the integration documents shared by Penguin Gateway
to proceed with integration.
- “FlowWise” shall mean unified layer or SaaS (Software as a service)
wrapper on top of the Merchant’s facility providers to process various payment
instruments.
- “Penguin Gateway Property” shall mean all ideas, concepts, inventions, systems,
platforms, software, interfaces, tools, utilities, templates, forms, techniques,
methods, processes, algorithms, know-how, trade secrets and other technologies
and information acquired, created, developed or licensed by Penguin Gateway, and any
improvement, modification, extension or other derivative works thereof and all
intellectual property rights thereto including without limitation the Service,
client libraries, documentation, Report Templates, and Aggregate Data. Penguin Gateway
Property excludes Customer Data.
- “Merchant Data” shall mean all information, data and other content
provided by Merchant in connection with its authorized use of the Service,
including, without limitation, all data and information transmitted to the
Service.
- “Report Template” shall mean a customer report template that Penguin Gateway may
share with the Merchant based on Merchant’s requirement on case to case basis.
-
Provision of Services
- Subject to this Annexure and the Agreement, Penguin Gateway shall provide the Merchant
with the technology for the purpose of processing payment of the Customers of
the Merchant.
- Merchant shall at all times comply with all applicable laws and guidelines of
RBI, Card Networks, Facility Provider, and acquiring banks with whom the
Merchant has collaborated for facilitating payments through its website or
application from time to time.
- Merchant shall provide reasonable level of customer support to its Customers and
Merchant shall be solely responsible for all issues relating to its products and
services, including pricing, order fulfilment, order cancellation, returns,
refunds and adjustments, chargebacks, rebates, functionality and warranty, and
technical support.
- Penguin Gateway maintains commercially reasonable administrative, technical and
physical procedures to protect all the personal information regarding the
Merchant and the Customers. FlowWise only transmits Customer’s card specific
sensitive information securely to Penguin Gateway's card locker in compliance with
Payment Card Industry Data Security Standards(“PCI-DSS”).
- The Merchant is fully responsible for the security of data collected, processed
or stored through the Merchant's website or otherwise in the Merchant's
possession. The Merchant agrees to comply with all applicable laws and
regulations governing the security, privacy, collection, retention of Customer
Data.
- The Merchant agrees to comply with all applicable laws and rules in connection
with the Merchant's collection, security, dissemination and destruction of any
personal, financial, card or transaction information of its end-user through the
Merchant's website.
- Merchant warrants that it has taken such precautions as are necessary to ensure
that Merchant’s server and electronic systems are secure from breach or
intrusion by unauthorized third parties. In the event that Merchant’s system is
breached, hacked or face any lapse in security and if an unauthorized third
party has access to or has accessed end-user data or transaction data, Merchant
shall notify Penguin Gateway promptly of such breach and shall take necessary steps to
investigate the breach incident and take necessary measures to mitigate the
risks.
- In case of data hosted on cloud, then the same shall be hosted on servers
located only within India and ensure compliance with applicable Indian legal and
regulatory circulars and Merchant shall take necessary measures to ensure that
it shall not host any Customer Data outside India under any circumstance.
- In addition to any other requirements or restrictions set forth in these Terms
and Conditions, the Merchant shall not: (i) submit any card transaction for
processing that does not arise from the Merchant's sale of goods or service to a
Customer, (ii) act as a payment intermediary or aggregator or otherwise resell
Penguin Gateway's service on behalf of any third party. (iii) send what the Merchant
believe to be potentially fraudulent authorizations or fraudulent card
transaction, or (iv) use FlowWise in a manner that Visa, MasterCard or any other
card brand reasonably believe to be a violation of Card Network rules.
- The Merchant shall own all right, title and interest (including all intellectual
property and other proprietary rights) in and to Merchant Data. Merchant hereby
grants Penguin Gateway a non-exclusive, royalty-free right and license to access, use,
copy, process and store the Merchant Data and/or Customer Data solely for the
purpose of providing Services.
-
List of inclusive Facility Providers that are pre-integrated with Penguin Gateway’s
FlowWise are as follows:
| Particulars |
Facility Providers |
| Payment Aggregators |
Penguin Gateway, CCAvenue, Easebuzz, TPSL, PayU,
PayTM, Razorpay, Phonepe, HDFC, Atom |
| Bank Payment Gateways |
Amex, HDFC (FSS, MIGS, Cybersource), ICICI
(IPG), Axis (MIGS & Cybersource), Kotak, SBI |
| Wallets |
Airtel Money, CredPay, Freecharge, JioMoney,
Mobikwik, PayTM, Ola Money |
| UPI acquiring banks |
Axis, ICICI, Kotak, HDFC, Indian Bank, Yes,
Indus |
| Payment Containers |
AmazonPay, Google Pay, PayPal, PhonePe |
| Credit Products |
Zestmoney, ePay Later, Ola Money Postpaid,
Simpl, Capital Float, Lazypay, HDFC PayLater, ICICI Pay Later,
Credit Card EMI and Debit Card EMI |
- Integration with a new Facility Provider, or feature enhancement or API
upgradation for existing Facility Provider will be done on best effort
basis as per Penguin Gateway’s business decision.
- Penguin Gateway constantly works towards adding new Facility Providers and
enhancing features, and such developments will be communicated to
Merchant so that merchants can utilize the same.
-
The Merchant hereby represents and warrants that it shall obtain consent of
the Customer and shall secure, a valid legal basis for processing and using
any data in order for Penguin Gateway:
- to comply with applicable laws;
- to provide Services;
- to conduct research and gain insights in to market trends and needs and
to develop or innovate technologies, products and services to meet such
market trends and needs;
- to use machine learning and artificial intelligence techniques to
conduct research to gain insights on market trends;
- to analyse Customer’s use of the Merchants website/application,
platform, products or services, etc.;
- to improve and personalize customer experience;
- to detect fraudulent or suspicious transactions and for risk management;
- for smart routing service;
- for providing recommendations, including recommendations on outage or
alternate payment method for increasing conversion rates;
- to do industry benchmarking for improvement of the payment success rate;
- for data analytics and/or;
- any other similar purposes.
-
Fees
The Parties agrees that the Merchant shall be liable to
Penguin Gateway for payment of fees in consideration of FlowWise services which shall
be in accordance with the service order form or any separate agreement executed
between the Parties.
-
Terms Of Flowwise Service
- “FlowWise” is a payment service that helps the Merchant process payment
instruments of the Customers in exchange for the Merchant's products and
services. The Merchant shall register for a service account with the
Facility Providers to use FlowWise. Parties agrees that card vault services
under FlowWise is dependent on mandates, instructions, policy and guidelines
of card schemes, RBI, banks and/or other regulatory authorities as may be
relevant from time to time. Any changes in mandates, instructions,
regulation or policies might impact complete functionality of card vault
services.
- Penguin Gateway provides APIs and other software to enable the Merchant to use the
FlowWise and Penguin Gateway reserves the right to require the Merchant to install
or update any and all software updates to continue using Penguin Gateway FlowWise.
However, if Merchant fails to install any update provided by Penguin Gateway within
6 (six) months of providing it, then Penguin Gateway shall not be responsible for
any degrade, impair or adverse effect caused to the Services and/or SLAs,
provided to the Merchant.
- By accepting these Terms and Conditions, Merchant authorizes Penguin Gateway to use
Merchant’s existing relationships with Facility Providers on Merchant’s
behalf, for the purpose of handling payment transactions which originates
from Merchant’s business website and/or mobile app.
- Penguin Gateway’s FlowWise supports processing of payment instruments that are
supported and enabled by Facility Providers with whom the merchant has
formal agreement and are configured in FlowWise. The Merchant is solely
responsible for verifying identity of users and of the eligibility of a
presented payment instrument used to purchase Merchant’s products and
services, Penguin Gateway does not guarantee or assume any liability for
transactions authorized and completed which may later be reversed or
disputed or charged back.
- Merchant’s Data and/or Customer Data will be shared with third parties that
is related to the activity of providing Services as defined in the
Agreement.
- List of data points generated and collected by the Service:
Merchant Data includes the following data points:
- Order identifier or transaction identifier assigned by the merchant
to uniquely identify the order
- Payment status of the transaction
- Any user defined data points that are optionally and explicitly
provided by the merchant
- Payment instrument type (like card or net-banking) and bank names of
the mode of payment
- Merchant API credentials with respective Payment Aggregators
Customer Data includes the below generic user behavior data points:
- Web page related data that includes url, title, page load time and
size of the page
- Any error messages generated during display of the page or during a
user interaction
- User action data that includes cancelling the transaction, clicking
any elements on the page.
- Event data that includes receipt of one-time password
- One-time password template data which explicitly removes all
sensitive information including all numeric digits
- Data around use of the features provided by the Penguin Gateway Service to
the Customer.
Schedule J
One Click Checkout: Terms and Conditions
One Click Checkout is a technology platform provided by Penguin Gateway to
its Merchants designed to enable a fast and efficient checkout experience for Customers.
This service allows Merchants to enable their Customers to securely save and reuse their
information when placing orders with any Merchants where such One Click Checkout is enabled.
The terms and conditions for access and use of One Click Checkout shall be governed by the
following terms:
-
Privacy and Data Protection
- Penguin Gateway has instituted robust security practices and procedures, aligning with
the sensitive nature of the information protected. We've implemented relevant
technical, operational, managerial, and physical security measures to safeguard
information in Penguin Gateway’s possession from loss, misuse, unauthorized access,
disclosure, alteration, and destruction.
- By utilizing One Click Checkout, you acknowledge and agree that Penguin Gateway may
collect, store, and use certain customer information, including personal data.
Penguin Gateway is committed to protecting this information and takes all reasonable
precautions to maintain its confidentiality. For the purpose of delivering One
Click Checkout, you understand and agree that Penguin Gateway has the right to collect,
store, and use Customers' personal data. This includes, but is not limited to,
name, email address, phone number, and residential/ office address, whether
provided by Customers to the Merchant or to Penguin Gateway, directly or indirectly, at
any time (including past submissions).
- The aforementioned information may be used by Penguin Gateway for:
- Providing One Click Checkout (including identity verification, payment
processing, purchase-related communications, and monitoring past
behaviour for fraud detection);
- Administrative, marketing, and customer support purposes;
- Offering other Penguin Gateway services.
- You represent and warrant to Penguin Gateway that:
- You will use One Click Checkout exclusively for providing goods or
services to your Customers;
- You will obtain all necessary consents from your customers, as required
under applicable law, before sharing Customer’s personal data with
Penguin Gateway.
Your use or access of One Click Checkout signifies your
acceptance of these Terms and the Privacy Policy. You confirm that you will obtain
valid Customer consent under applicable laws to share Customer’s personal data with
Penguin Gateway. Should you withdraw your consent or acceptance of these Terms (including
consent for Penguin Gateway's use of personal data pertaining to Customers) or breach your
representations and warranties, Penguin Gateway reserves the right, at its sole discretion,
to discontinue your access, in whole or in part, to the One Click Checkout,
associated features, and any current or future benefits. You also agree to promptly
inform Penguin Gateway if any Customer withdraws their consent to share personal data with
Penguin Gateway. You shall indemnify and hold Penguin Gateway, its directors, officers, employees,
and affiliates harmless from any and all claims, liabilities, losses, damages, and
similar expenses incurred by Penguin Gateway due to any breach of these Terms, including
your obligations hereunder.
For Any Queries / Details Users Can Contact:
Penguin Gateway PAYMENTS INDIA PRIVATE LIMITED,
Building No. 7, 10th Floor, Ecoworld,
Sarjapur Marathalli Outer Ring Road,
Bellandur,
Bengaluru, Karnataka 560103
Trust IQ Service Terms and Conditions
These terms and conditions (“Terms”) set out the manner
in which Penguin Gateway Payment India Private Limited, a company incorporated under the Companies
Act, 2013 having its registered office at Building No. 7, 10th Floor, Ecoworld, Sarjapur
Marathalli Outer Ring Road, Bellandur, Bengaluru, Karnataka, India, 560103 (hereinafter
referred to as “Penguin Gateway”, “We” or “Us”) utilises the information that we collect from you,
the user (hereinafter “You” or “Merchant”) or which we collect on Your Behalf and the
policies we adopt with respect to collection, storage, processing, disclosure or purging of
such data while accessing the Trust IQ Services.
If You do not agree with any of these Terms, we urge
You to withdraw the consent which is provided herein or request deletion or purging of any
of Your Data by writing an email to grievances@Penguin Gateway.com. You may also review
the Terms on Penguin Gateway Website at https://www.penguingateway.com//tnc/.
We may amend the Terms at any time by posting the updated
version on the link above. The updated version of the Terms shall take effect immediately
upon posting. It is Your responsibility to review these Terms periodically for updates /
changes. Your continued use of Penguin Gateway Trust IQ services following the posting of changes
will mean that You accept and agree to the revisions including additional Terms or removal
of portions of these Terms, modifications etc.
This document is an electronic record in terms of the
Information Technology Act, 2000 and rules thereunder as applicable and amended from time to
time, including the Information Technology (Intermediary Guidelines and Digital Media Ethics
Code) Rules, 2021. This electronic record is generated by an electronic system and does not
require any physical or digital signatures.
- DEFINITIONS
- “Confidential Information” shall mean any and all written, oral or other
tangible or intangible form of information, discoveries, ideas, concepts,
know-how (whether patentable or copyrightable or not), research, development,
designs, drawings, blueprints, diagrams, models, samples, flowcharts, data,
computer programs, APIs, disks, diskettes, tapes, algorithms, software programs,
marketing plans or techniques, technical, financial, or business information,
Platform Fees, trade secrets which includes but is not restricted to any portion
or scientific or technical or proprietary information, design, process,
procedure, formula or improvement which is not generally available to the
public.
- “Disclosing Party” shall mean the Party disclosing the Confidential
Information.
- “End Users” means the individual end users of the Merchant’s web-based
platforms or mobile applications, and their end users, to the extent applicable,
whose attributes are to be provided for the purposes of performing the Services.
- “Merchant Data” means the data shared by the Merchant including the
Transaction Date.
- “Provided Data” means any numerical insight or other data pertaining to
End Users that is provided by Penguin Gateway to the Merchant via the Service.
- “Receiving Party” shall mean the Party receiving the Confidential
Information.
About Trust IQ Service
TrustIQ Service (“TrustIQ”/ “Service”) is an analytics tool which
provides a numerical insight derived from transaction history of a user. The insights
derived on the basis of Trust IQ Services can be utilised by a Merchant to assess the
propensity of a customer to access and utilise Merchant’s services.
Trust IQ Merchant Program
Penguin Gateway operates a Merchant Program which is aimed and intended for
various Merchants to act as participants and receive the benefits of the Trust IQ
Services. The Trust IQ Merchant Program enables various Merchants to onboard with
Penguin Gateway to access and avail Trust IQ Services, receive the benefits of user analytics
and insights of Customers accessing and transacting on websites, mobile applications and
similar platforms which are onboarded for this service while maintaining the utmost
confidentiality and privacy of their end users.
Accessing and Availing Services
Merchants desirous of participating in the Trust IQ Merchant Program
are required to onboard themselves with Penguin Gateway. The services are available to only
such Merchants who are availing and accessing payment gateway / aggregation services
from Penguin Gateway. Please note that the terms as specified herein are over and above any
terms and conditions as may be accepted and agreed by the Merchant with respect to the
payment aggregation services. In case of any conflict
Grant of license
Subject to the Merchant’s ongoing compliance with the Terms, Penguin Gateway
hereby grants to the Merchant a non-exclusive, non-transferable, non-sublicensable,
revocable license within India to use the Trust IQ Service for its internal business
purposes only. The duration of such license on the on the Service Start Date as set
forth on the applicable Order Form and continue for the duration as specified therein
unless terminated by the Parties. For the avoidance of doubt it is clarified that the
insights generated by Penguin Gateway shall remain the intellectual property of Penguin Gateway and
nothing contained herein shall enable the Merchant accessing or availing the service to
reverse engineer, decompile or otherwise attempt to derive the source code of the
Insights.
Merchant grants a right to the transaction data for generation of such
Insights. Perpetual non-revocable non-exclusive transferable and sub-licensable right.
In addition to any specific purpose covered in the PG Agreement, can be used for
generation of any insights.
License to Merchant Data
The Merchant acknowledges that performance of the TrustIQ services
relies on insights derived from data collected from the Merchant and third-party data
sources. Penguin Gateway’s Services are based on its understanding of similar activities
observed while providing its services across other merchants opted for the Trust IQ
Services under their respective order form. The transaction-level details arising from
the use of the payment aggregation services (“Transaction Data”) may be collected,
anonymized, and analyzed by Penguin Gateway under Trust IQ services. Such anonymized insights
derived from aggregate Transaction Data may be shared across other participating
merchants under Trust IQ to aid in benchmarking, performance analytics, and industry
insights.
Accordingly, the Merchant grants Penguin Gateway a non-exclusive, irrevocable,
perpetual, royalty-free license to use its Transactional Data, including by combining
Merchant Data with other data, including data derived from third-party entities that
have signed the Order Form and utilizing machine learning and artificial intelligence
applications in order to operate, analyze, improve and provide the fraud services and
any related services requested by the Merchant under TrustIQ.
Restrictions on use of data by Merchant
- Use Restrictions. Merchant shall not, and will not allow directly or
indirectly, and shall not authorize any third party to:
- decompile, disassemble, reverse engineer, or otherwise attempt to derive the
source code, algorithms, or associated know-how of the Penguin Gateway results
provided in connection with the Services;
- sell, sublicense, transfer, assign, lease, rent, distribute, or grant a
security interest in the Penguin Gateway or any rights to any of the foregoing;
- without Penguin Gateway’s prior written consent, use the Service or Provided Data
in connection with its interactions with End Users in violation of any
applicable consumer protection law or regulation.
- Compliance. Merchant shall:
- ensure that its employees use of the Service complies with the Terms
- use commercially reasonable efforts to prevent and terminate any
unauthorized access to or use of the Service, and
- promptly notify Penguin Gateway of any unauthorized access to or use of the Service
of which it becomes aware.
- Consents and Disclosures. Merchant shall be solely responsible for:
- providing any and all legally required notices and disclosures to End Users;
- offering all legally required choices to End Users to enable them to
exercise any granted privacy rights, and
- for obtaining all informed consents from End Users required, to permit:
- Merchant to use the Penguin Gateway Technology and receive the Service, including;
- Merchant’s data utilised by Penguin Gateway under the Agreement.
- Purposes. Merchant will:
- only use the Provided Data and any results obtained from the use of the
Service solely in connection with the Services as it relates to operating
its business and not disclose Provided Data to any third party.
Confidentiality
- Receiving Party shall hold all Confidential Information in strict confidence and
with at least the same degree of care it uses to keep its own proprietary
information confidential, but in no event shall it use less than a reasonable degree
of care.
- Receiving Party shall not, without the prior written consent of the Disclosing
Party, disclose Confidential Information with any person for any reason at any time.
However, Receiving Party may disclose the Confidential Information with Receiving
Party’s representatives strictly on a need to know and confidential basis; if and
only if such Receiving Party ’s representatives are bound by confidentiality
obligations equivalent to or stricter than as set forth in this Agreement. It is
clarified that in any event, Receiving Party shall be liable for disclosure of
Confidential Information by such Receiving Party ’s representatives.
- The obligations set out hereunder shall not apply to Confidential Information that:
- is or becomes publicly known other than through a breach of the
confidentiality obligations as set out in this clause;
- is in possession of the Receiving Party prior to disclosure by the other
Party;
- is independently developed by the Receiving Party;
- needs to be disclosed to professional advisers or in accordance with the
order of a competent court or administrative authority or law enforcement
agencies;
- is hereafter rightfully furnished to such Receiving Party by a third party
without restriction by that third party on disclosure;
- is required by law, judicial court, recognized stock exchange, government
department or agency or other regulatory authority; or
- Confidentiality obligations of the Receiving Party shall continue for a period of 1
(one) year after the termination or expiry of this Agreement.
Data Security and Compliance
- Penguin Gateway shall (and shall ensure that its employees, agents and subcontractors
shall) be required to maintain such administrative, technical and physical
safeguards, and such processes, procedures and checks to secure the Merchant Data,
as may be required under Applicable Law and industry standards or regulations issued
by any government authority, which safeguards must be at least equal to generally
accepted security standards in the financial service industry.
- Penguin Gateway covenants that it shall take appropriate technical and organisational
measures against:
- any unauthorised or unlawful processing or alteration of the Merchant Data
in the systems or software of the Service Provider;
- any resultant loss or destruction of, or damage to the Merchant Data due to
unauthorised processing or alterations;
- and unauthorised or accidental access, processing, erasure, transfer, use,
modification, or other misuse of the Merchant Data and shall ensure that
only authorised personnel bound by adequate confidentiality obligations
shall have access to the Merchant Data and strictly on a ‘need to know’
basis.
- Merchant shall be responsible consents for use of Transaction Data for generation of
insights. Such consents should specifically cover:
- Use for generation of Insights
- Sharing of such insights with other Merchants forming part of the Trust IQ
program
- Sharing with service providers / third parties associated with the Trust IQ
program
PROPRIETARY RIGHTS
Intellectual Property Rights. The Merchant acknowledges that Penguin Gateway
owns and retains all rights, title, and interest, including all intellectual property
rights, in and to the Penguin Gateway Platform, including all technology, software, algorithms,
user interfaces, trade secrets, techniques, designs, inventions, works of authorship,
and other tangible and intangible material and information pertaining thereto or
included therein, and nothing under the Terms shall preclude or restrict Penguin Gateway from
using or exploiting any concepts, ideas, techniques or know-how of or related to the
Penguin Gateway technology. Other than as expressly set forth in the Agreement, no licenses or
other rights in or to the Penguin Gateway TrustIQ services are granted to the Merchant and all
such rights are hereby expressly reserved.
Term and Termination
- Term – The Term of the Order Form shall start on the Service Start Date and will
continue for a period as specified under the Order Form.
- Termination – Each Party shall have the right to terminate this Agreement, without
assigning any reason, with prior written notice of ten (10) days to the other Party.
- Either Party shall have the right to terminate this Term immediately on occurrence
of following:
- If the other Party may be declared bankrupt or goes in liquidation voluntary
or compulsory, except for the purpose of amalgamation or reconstruction;
- If other Party ceases to carry on its business or suspends a major portion
of its operations/ business;
- There is any material adverse change or any change in applicable law, rules,
regulations, directives or guidelines, which prevents the continuing of the
arrangement under this Agreement;
- If an event of Force Majeure conditions that continues for a period of more
than one month;
- If a Party believes that the other Party is engaged in fraud or other
illegal or unethical activities;
- and/or In case the Merchant engages in a business which falls under list of
negative lines of business as per Penguin Gateway.
- The expiry or termination of the Order Form shall be without prejudice to the
accrued rights and obligations of the Parties and all such accrued rights and
obligations shall remain in full force and effect and be enforceable notwithstanding
such expiry or termination.
INDEMNITY
In relation to the Order Form, each Party (“Indemnifying Party”) hereby
undertakes and agrees to indemnify, defend, hold harmless and protect the Facility
Provider and other Party, their directors, and employees (collectively “Indemnified
Party”) against all direct and actual, cost, proceedings, claims, liabilities (including
statutory liabilities), penalties and demands (including without limitation reasonable
legal costs), arising out of or in relation to –
- Gross negligence or wilful misconduct or fraud by Indemnifying Party;
- Breach of Applicable Laws by Indemnifying Party;
- Breach of third-party Intellectual Property rights by Indemnifying Party;
- and Penalties imposed by any governmental authority which are attributable to act or
omission of Indemnifying Party on a pro-rata basis.
LIMITATION OF LIABILITY
In no event will either party be liable for any indirect, special,
incidental, exemplary, punitive, or consequential damages arising out of or relating to
the Order Form and the Terms, however caused, and based on any theory of liability,
whether for breach of contract, tort (including negligence), or otherwise, even if a
party has been advised of the possibility of such damages. The total liability and
indemnity of Penguin Gateway under the Order Form and the Terms shall be limited to and not
exceed sum of Fees in the period of one calendar month prior to the cause of action.
Miscellaneous
FORCE MAJEURE: Notwithstanding anything stated in these Terms, a Party
affected by a Force Majeure event shall not be liable to the other Party for its delay
in the performance of, or non-performance, of its obligations or any part thereof under
the Terms. The Party affected by a Force Majeure event shall give notice of the Force
Majeure event to the other Party as soon as possible.
NOTICES: Any required notice shall be given in writing by customary
means with receipt confirmed at the address of each Party set forth above, or to such
other address as either Party may substitute by written notice to the other, or by
email. Notices will be deemed to have been given at the time of actual delivery in
person, 1 day after delivery to an overnight courier service, 3 days after deposit in
certified mail, or upon sending of an email.
ASSIGNMENT: Neither Party shall have the right to assign its rights or
obligations under the Terms without prior written consent of the other Party.
WAIVER: Unless otherwise expressly stated under the Terms, the failure
to exercise or delay in exercising a right or remedy under the Terms shall not
constitute a waiver of the right or remedy or a waiver of any other rights or remedies,
and no single or partial exercise of any right or remedy under the Terms shall prevent
any further exercise of the right or remedy or the exercise of any other right or
remedy.
SEVERABILITY & ENTIRE TERMS: If any provisions of the Terms are
held to be invalid or unenforceable, they are to that extent to be deemed omitted; and
the remaining provisions shall remain in full force and effect. This Terms constitutes
the entire agreement of the Parties hereto and supersedes all prior representations,
understandings, undertakings or agreements (whether oral or written and whether
expressed or implied) of the Parties with respect to the TrustIQ services.
Governing Law and Jurisdiction:
This Agreement and any dispute or claim in relation to this Agreement,
shall be governed by and construed in accordance with the laws of India. The Parties
agree that all disputes arising out of or in connection with this Agreement shall be
subject to the exclusive jurisdiction of the courts in Bengaluru, Karnataka.
