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| cellPAY User Agreement | |||||||||||||
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These are the terms and conditions governing the use of Cellnext’s mobile payment
platform “cellPAY” and constitute your binding obligations towards Cellnext Solutions
Limited (“Cellnext”). In addition, you also agree to be bound by the terms and conditions
of use of other merchants/third parties, if any, involved in delivering their respective
service(s). This Agreement is effective upon acceptance in registration for new
registering users. Cellnext may amend the User Agreement at any time by posting
the amended terms on its Website. All amended terms shall automatically become effective
immediately after posting thereof on the Website and any subsequent use of the platform
shall be governed by such amended terms.
The User Agreement was last revised on 31st October 2008. You are advised to regularly check for any amendments or updates to the terms and conditions contained in this User Agreement. If any clause of the User Agreement shall be deemed invalid, void or for any reason unenforceable, such clause shall be deemed severable and shall not affect the validity and enforceability of the remaining clauses of the User Agreement. You must read, agree with and accept all of the terms and conditions contained in this User Agreement and Cellnext’s Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference, before you may become a registered user. We strongly recommend that, as you read this User Agreement, you also access and read the information contained in the other pages and platform referred to in this document or posted on the Website of Cellnext, as they may contain further terms and conditions that apply to you as a Cellnext user. By using the Platform, you consent to the collection and use of the information you disclose on the cellPAY platform by Cellnext. Please note by accepting this User Agreement, you also agree that your use of the platform will be governed by the User Agreement and Privacy Policy posted on this website. |
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| 1 SERVICES OFFERED | |||||||||||||
| CellPAY is a mobile payment platform of Cellnext that enables end customers to make payments to registered Merchants using their mobile phones and various payment modes. This User Agreement enumerates the terms and conditions governing the use of “cellPAY” mobile payments service of Cellnext. cellPAY will facilitate customers for making payments to merchants for purchasing goods & services of respective merchants. | |||||||||||||
| 2. DEFINITIONS | |||||||||||||
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In this agreement the following words shall have the following meanings :
a ) “Agreement” shall mean this User Agreement. b) “Cellnext Site” shall mean the web-site with the domain name "www.cellpay.co.in” established by Cellnext for the purposes of enabling mobile payments by the Customers. c) “cellPAY” is a mobile payment platform of Cellnext that enables customers to make payments using their mobile phones and various payment modes such as credit card and bank account. The Customers can make payment via SMS using various payment modes. The transaction stated above can be done via SMS. d) “Charges” would mean any charges and fees levied by Cellnext to the registered customer for the use of the cellPAY service, a full list of such charges would be available on the Cellnext site, and may change from time to time. All registered users and merchants would be liable to pay these charges for using the cellPAY service. Cellnext will be entitled to recover the service charges and other dues at source from the Customer. The Customer will also be liable for any Government taxes or levies which may be payable on such service charges levied by Cellnext. e) “Customer”, ‘User’, ‘You’ and ‘Your’ shall mean the applicant holding a Valid Credit Card/Mobile Banking Account and who registers for cellPAY services and includes his/her heirs and assignees, be it a user, merchant or dealer and Customer who purchases goods or services from the Merchants and makes payment for the same over the mobile phone for making payment through Cellnext Platform “cellPAY” using a Valid Payment Mode. f) “Facility Providers” shall mean and include the mobile payment Facility Providers like the Acquiring Banks who have provided the Payment Gateway facility to Cellnext and such other payment facility providers as may be appointed by Cellnext, from time to time, for effective provisioning of the mobile payment facility by Cellnext to the Customers. g) "Force Majeure" shall refer to any circumstance beyond the reasonable control of a party, including without limitation and delay caused by any act or omission of the other party, acts of God, or fire, floods, storm, earthquake, explosion, accident, strike, lockout, industrial dispute, labour trouble, transportation embargo, imminence or the existence of any state of emergency, war, war like condition, civil commotion, riot, inability to obtain any material, refusal of license or imposition of sanctions and or any measures taken by the Government whatsoever which renders it impossible or impracticable for the party to perform its obligations. h) “Issuing Bank” in respect of a Customer, means the bank which has issued the Valid Credit Card to the Customer or facilitated the Customer with the Mobile Banking Services with which Customer makes the payment for the Products / Services. i) “Merchant” shall mean any person being an individual, a firm, an association of persons or a body corporate, having a physical presence and location, who wants to avail of the cellPAY services of Cellnext in order to facilitate receipt of payment from its own end customers/partners for goods & services only through mobile phone. j) “Order” means an order for the purchase of Product(s) / Services placed by the Customer through cellPAY Mobile Payment Platform. k) “Payments” through cellPAY include, but not limited to, payments by customers using credit card/direct bank debit for the following purposes:
l) “Payment Modes” as referred to in this MoU shall include payment made by Customers through cellPAY Mobile Payment Platform using one or more of the following modes of payment:
m) “Service” would mean the cellPAY mobile payment service of Cellnext availed of by the Customers using mobile phone and various payment modes that is made available by Cellnext, from time to time. n) “Service Provider” or “Cellnext” shall mean Cellnext Solutions Ltd. and shall include its successors and assignees. o) “Transaction” means every order that results in the Delivery by the Merchant to the Customer of the Product(s) / Services in respect of which the Order was placed. p) “Valid Credit Card” means a valid Visa or a MasterCard credit card or any other credit card, for which the mobile payment acceptance facility is provided by Cellnext. |
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| SCOPE OF SERVICES | |||||||||||||
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Service Provider has devised a mobile payment system to be known as “cellPAY” which
would be routed through the mobile phones and other mediums that may be made applicable
by Cellnext in the future. This system will consist of a closed user-customer group
to be known as Customer in which the vendors and suppliers of various goods and
services to be known as “Merchants” will participate. The Customer is one of such
Users. cellPAY is a service by the Service Provider to the Customers and the Merchants,
which will primarily provide convenience, and security to the Customers for making
payments through mobile phones. Through cellPAY, both, the Users and the Merchants
will be able to secure all kinds of payment transactions, including, but not limited
to payments specified in Clause 2.13 of this Agreement.
In consideration of the payment of money by the Customer to be made to Cellnext through cellPAY or to any of its authorised dealers or its retailers, using various payment modes, from time to time, the Service Provider will send acknowledgement through SMS to customers mobile phones. cellPAY is not and shall not be a domestic remittance service and as such no user will be entitled to redeem and/or cause to be redeemed the same for cash. Service Provide will from time to time, depending upon the necessities and the expediencies of the circumstances, add to and/or discontinue any of the, aforesaid modalities. It is hereby further agreed by and between the parties that the Customer will not under any circumstances be entitled to seek the refund of any of the payments made through cellPAY, it being clearly agreed and understood by and between the parties that Cellnext being only a one way service provider will recognize only the debit instructions to be given by its user, i.e. the Customer. CellPAY is being offered as a service using mobile phones using SMS, and will be offered by other methods as intimated to users over time. However, different mobile service providers may have made different restrictions / limitations in their packages offered to their mobile subscribers. Cellnext is not responsible for any such limited service offering from any Mobile service provider or for such differences in between any two or more such providers. You may be charged a fee for using SMS and mobile services by your mobile operator, and Cellnext is not responsible for such charges. |
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| SERVICES NOT OFFERED | |||||||||||||
Payment through cellPAY for following goods & services is not offered by Cellnext
and accordingly Customers will not be entitled make payments for such goods &
services:
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| TERMS AND CONDITIONS OF CELLPAY SERVICE | |||||||||||||
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cellPAY provides only the facility for transacting with other registered users and
merchants through Mobile phones.
Please note that once you register yourself, you are deemed to have agreed to the terms and conditions set forth below. If you do not agree with all these terms and conditions, you must not transact though cellPAY. By registering with cellPAY you have entered into a formal agreement with Cellnext for the purpose of all transactions using cellPAY. If you make payment for the first time, your mobile number is registered automatically in cellPAY and your individual account is created automatically. You will receive an SMS informing you of your automatic registration. Your continued use of cellPAY service means that you agree to the terms and conditions as set forth here. If you do not agree with these terms and conditions, you must not transact through cellPAY. If a user violates the terms and conditions of use, Cellnext reserves the right to deactivate all such user registrations without any notice or refund. Cellnext performance of this agreement is subject to existing laws and legal processes of Govt. of India, and nothing contained in this agreement is in derogation of Cellnext right to comply with law enforcement requests or requirements relating to your use of this service or information provided to or gathered by Cellnext with respect to such use. You agree that Cellnext may provide details of your use of the service to regulators or police or to any other third party, or in order to resolve disputes or complaints, which relate to the service, at Cellnext sole discretion. If any part of this agreement is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth herein, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of the agreement shall continue in effect. This agreement constitutes the entire agreement between the customer and Cellnext with respect to the cellPAY payment service and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral, or written, between the customer and Cellnext with respect to this service. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Each user may be issued a M-pin to enable use of cellPAY services and also for availing any privilege, benefit or service that may be offered by Cellnext or to make transactions using mobile phones and various payment modes. The M-Pin will be selected by user himself/herself during activation process, and will be used for payment transactions and other service related requests entirely at his/her risk, and shall not disclose the M-PIN to any person and shall take all possible care to avoid its discovery by any person. The user shall be liable for all transactions made with the use of the M-PIN, whether with or without the knowledge of the User. CELLNEXT reserves the right to refuse any transactions if it believes that M-PIN is being misused or being used without appropriate authorization DISCLAIMER a) Cellnext will act as co-ordinating agent between the Customer and the Merchants and all payments made by Customers using cellPAY Mobile payment service will constitute a valid discharge of the Customer obligation to pay directly to the merchants, supplying goods or services to the Customers. b) Cellnext does not warrant that Merchants provided goods and services meet the requirements of Customers as to its quality, performance, delivery, pricing etc. Any dissatisfaction regarding quality, pricing, delivery or non-delivery of goods and services and/or damage/defects in such goods & services shall be sought by Customers from the respective Merchants only. Cellnext will only facilitate mobile payments service and will not be liable for such problem on the part of Customers. c) Any chargeback of transactions done through cellPAY will be sought by Customers from respective Merchants only. d) If a Mobile is lost or stolen, the Customer must deactivate the Mobile / SIM card from its service provider of mobile services. In the event that Cellnext determines that the Customer has failed to take the steps as mentioned above in case of loss / theft / destruction of the Mobile and the same are questionable, financial liability on the lost, stolen or damaged Mobile would rest with the Customer. The Customer shall be fully liable for: (a) any unauthorised use of the Mobile; and/or (b) all authorised transactions on the Mobile. e) In case of any technical problem Cellnext will make its best endeavour to resolve the problem within the timeline normally followed by Cellnext. Refund policy Except as set forth in this User Agreement, all Payment Transactions processed through the cellPAY are non-refundable to Customer by Cellnext and are non-reversible by Customer through the cellPAY Service. You acknowledge and agree that your purchases of Products/Services using cellPAY mobile payment service are transactions between you and the Merchant and not with Cellnext or any of Cellnext's affiliates. Due to technical or any other reason, for which Customer is not liable to pay, the refund can be claimed by the customer from Merchants and such refund shall be governed by the respective Merchant's Refund Policy. It may happen that due to any technical reason, the Customer may not be able to avail the service of Recharge Vouchers after making payment using cellPAY. In such an event, Cellnext will grant refund to the Customer, provided such service is not actually availed by the Customer and not benefited from the Recharge Voucher. Decision of Cellnext in this regard shall be final and binding on the Customer WARRANTY We will always endeavour to provide the Services to the best of our ability. You are however aware that the Services will involve transmissions over various networks and that it will change to conform and adapt to the technical requirements of connecting networks and devices. There are also various other factors, which do not lie within our control. Under these circumstances then, we provide all Services "as is" and "as available"; and do not warrant or guarantee that any Service is free of errors or interruptions and will conform with your timelines; is always available and reliable; is secure; although we take appropriate security measures against unauthorized access to or unauthorized alteration, disclosure or destruction of data; is fit for any purpose; or does not infringe any third party rights. You furthermore acknowledge and accept that we may not encrypt any Content or communications from and to our Site. Content and advertisements provided as part of a Service: You understand that advertising plays an important role in the provision of this Service, and that we will display advertisements and other information adjacent to or as part of the Services, which you may use. We may periodically send promotional email/SMS to you about services offered by our advertisers and ourselves. Where we publish or provide Content or advertisements as part of a Service we do not: warrant or represent that the Content or advertisements are suitable, accurate, correct, complete, reliable, appropriate, or lawful; or endorse the Content or advertisements; and you will obtain independent professional advice at your own cost before you take any action based upon such Content or advertisements. Your correspondence or dealings with, or participation in promotions of advertisers through the Service, and any other terms, conditions, warranties or representations associated arising there from, lie between you and the advertisers. You agree that we shall not be liable for any loss or damage of any nature incurred as a result of any such interactions, or as a result of the presence of such advertisers on our Service. In many cases, we provide services of third parties, or our Services in conjunction with that of third parties. In those cases, the following conditions apply: We provide such services subject to the terms, conditions and limitations imposed by those third parties. If those third parties change, suspend or stop providing such services, we may similarly change, suspend or stop providing the Services to you without notice. We may nevertheless endeavour to provide such a Service in another way or by using another third party. You authorise us to provide any of your Personal Information (as defined in our Privacy Policy) to those third parties to the extent that it may be necessary to enable the third parties and ourselves to provide the services to you. To the extent that there is a conflict between the third party's Terms and Conditions and these Terms, these Terms will prevail. When you acquire goods, software or any other services from a third party through any of our Services, you understand and agree that: we are not a party to the contract between you and the third party; we are under no obligation to monitor the Third Party Service used by you; the third party will be responsible for all obligations under the contract including (without limitation) warranties or guarantees; you will evaluate the product, software or service and the applicable terms and conditions before acquiring the product, software or service; and you indemnify us against any damages incurred by Cellnext or any third party due to infringement of any Intellectual Property Rights(IPR) or breach of any of the terms of this Agreement howsoever arising from your acquisition and use of the goods, software or service. We also reserve the right to reject or refuse any Third Party Service used by you in conjunction with our Service. Cellnext will not liable to the Customers in case of happening of any Force Majeure events. |
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| MISCELLANEOUS | |||||||||||||
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Any costs incurred by Cellnext towards enforcement of its rights and recovery shall
be debited to your account.
Where Cellnext acts on good faith in response to any oral or electronic instruction or inquiry from you in respect of any matter in relation to your account, you will not be entitled to claim or allege any loss, damage, liability, expense etc., attributable, directly or indirectly, to any such good faith action of Cellnext and you agree to hold Cellnext harmless in respect thereof. Cellnext reserves the right to add to or change these terms and conditions and revise policies, benefits and features offered for this service at any time, without limitation to changes which affect finance charges or rates and methods of calculation. You will be notified of any such changes by SMS or email and would be required to view the modified changes terms posted in Cellnext Site. By keeping or using the service after notification, you are deemed to have agreed to the amendment/change. If you do not agree with any amendment of the terms and conditions you may cancel the service by informing in writing to Cellnext or closing your account. If required by law to do so or if considered necessary to do so for proper management of credit or business risk, Cellnext reserves the right to disclose any and all customer information, including default in any payments or misuse of the service, to any court of competent jurisdiction, quasi judicial authority, law enforcement agency, relevant wing of the Central Government or State Government, your employer, credit reference agency, financial institution or any company which is an affiliate or associate or parent or subsidiary of Cellnext. You hereby agree that the copies of all documents (whether written or electronic) submitted in support thereof and for the ongoing operation of the cellPAY Account by you to Cellnext are and shall remain the sole and exclusive property of Cellnext, and Cellnext shall not be obliged to return the same to you upon your request or upon termination of this Agreement. You agree to comply with all applicable laws and regulations from time to time, which govern or may be affected by the use of the service. The forbearance, delay or failure on the part of Cellnext to exercise any right under this Agreement shall not operate as waiver of such a right nor preclude any further exercise of that right. Without in any way limiting the above, Cellnext shall not be liable or responsible to you for any loss, damage, expense, claim or liability arising directly or indirectly out of any defect or deficiency in any goods and services purchased by you or availed as a benefit, privilege or facility attached to the service; refusal by or inability of a Merchant Establishment to honor or accept the service; handing over of the relevant access control/password/PIN by you to any unauthorised person; any injury to the credit, character and reputation of yours alleged to have been caused by the repossession of the service and/or request for its return. All the services to be availed of and /or the goods to be purchased /procured by the Customer from the third parties under the agreement herein, will be so purchased/procured by the Customer at his own risk and costs. The Service Provider shall not be liable and/or responsible in respect of the title, quantity, quality or any other aspect thereof and no guarantee, warranty or any indemnity shall be given or deemed to be given by the Service Provider in respect thereof. Cellnext is the sole and absolute owner of all and whatsoever the intellectual property rights in the trade mark cellPAY and the design in respect thereof and that the Service Provider will be entitled to take any legal action against any person invading and/or encroaching upon the said rights of the Service Provider. Cellnext, our parent, subsidiaries, employees and our suppliers provide our services "as is" and without any warranty or condition, express, implied or statutory. Cellnext, our parent, subsidiaries, employees and our suppliers specifically disclaim any implied warranties of title, merchantability, satisfactory quality, fitness for a particular purpose and non-infringement. In no event shall Cellnext, our parent, subsidiaries, employees or our suppliers be liable for lost profits or any special, incidental or consequential damages arising out of or in connection with our web site, our service, or this agreement (however arising, including negligence). Cellnext shall make reasonable efforts to ensure that requests for electronic debits and credits involving bank accounts, credit cards, and check issuances are processed in a timely manner and but Cellnext makes no representations or warranties regarding the amount of time needed to complete processing because our Service is largely dependant upon many factors outside of our control. You are aware of all security risks, including possible third party interception of any of your transactions and statements of account on the mobile and the contents of your transactions or statements of account becoming known to third parties. You agree and undertake that you shall not hold Cellnext liable therefore in any way. The use and storage of any information, including without limitation, the Card number, PIN, password, account information, transaction activity, account balances and any other information available on your mobile phone or on any media is at your own risk and responsibility. Any notice given by Cellnext hereunder will be deemed to have been received by you within 7 days of posting your address last notified in writing to Cellnext or, within 24 hours of sending the same via e-mail or SMS at the e-mail address specified by you or your registered mobile phone number. Any notice may also be sent by fax or communicated verbally and confirmed in writing by post or fax. Cellnext shall not be held accountable for delays in receipt of notices by post. In the event of any change in your e-mail and/or employment and/or office and/or residential address and/or telephone numbers, you shall inform Cellnext promptly in writing or by e-mail and must confirm the same by mail or fax. As your account ID is connected to your mobile number, it is your responsibility to inform Cellnext in case you terminate using the mobile number that corresponds to your account ID. The account ID corresponding to the mobile number you register with can be accessed by you only till the time you have access to the corresponding mobile number. It is your responsibility to transfer your account ID to a new mobile number if and when you change your number. Not doing so may give access to your confidential information to the new user of the same mobile number, and Cellnext will not be liable or responsible for the same. You are also liable for ensuring the security of your M-PIN. In case of loss of your mobile phone, you should intimate Cellnext in writing immediately. Cellnext shall make every attempt to block access to your cellPAY account under such circumstances, however, Cellnext shall not be liable for any losses a user may incur due to the above. The responsibility to safeguard the confidential information rests entirely with the user. By signing up for cellPAY services, you also allow Cellnext to send you emails and SMS alerts from time to time. Cellnext will be entitled to enter into any tie-up in terms of joint-venture or otherwise with any other institution engaged in the business of providing services analogous and/or similar to those herein contained. In such case, depending upon the modality and the mechanism as may be devised, the Customer will be provided with the services by the Service Provider jointly and/or severally with the party/ies in joint venture. Customer hereby gives his irrevocable consent and permission to such a tie-up. In the event of such a tie-up, the terms and conditions herein contained will, mutatis mutandis, become applicable in respect of such tie-up arrangement also. |
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GOVERNING LAW AND ARBITRATION |
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The Agreement shall be governed by the laws of India and the courts at New Delhi,
India will have jurisdiction.
Any dispute, difference and/ or claims arising out of in connection with or in relation to this Agreement, shall be settled by arbitration in accordance with the provisions of the Arbitration and Conciliation Act, 1996, by a sole arbitrator, whose appointment shall be made at the instance and discretion of Cellnext. The arbitrator appointed shall be competent to decide whether any matter or dispute or difference referred to the arbitrator falls within the purview of arbitration as provided for in this clause and/or should be decided under the Arbitration and Conciliation Act, 1996. Any arbitration award granted shall be final and binding on the Parties. The venue and seat of the Arbitral Tribunal shall be at New Delhi. This Clause shall survive termination of the user Agreement. |
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