Terms And Conditions

 

By reason of his subscription to any Service, Merchant hereby agrees to the application of the General Terms and Conditions, hereinafter referred to as the “T&Cs”, to his contractual relationship with EBS, to the exclusion of all other terms and conditions, including those of Merchant. Merchant acknowledges that it is entering into the agreement as a professional and not as a consumer.

In the T&Cs, as well as in the Merchant Contract, the following terms are defined as follows, when spelled beginning with a capital letter:

 

Commercial Proposal

The agreed commercial proposal duly signed by the parties

Customer

Any physical or moral person purchasing from Merchant products and/or services

EBS Account (or Merchant ID)

The account opened in the name of Merchant on the EBS Site, permitting Merchant to, in particular, configure his user parameters and the management of his transactions

Service(s)

The service(s) as selected by Merchant in the Agreement and described in the relevant annexes

EBS Site

The Internet site accessible at the Internet address http://www.ebs.in/or any other address of any subsidiary permitting access to the EBS Account

Financial Institutions

Every financial and/or banking organism chosen by the Merchant or EBS and to which the Merchant is affiliated in order to manage his payments. The above mentioned Financial Institutions are commonly referred to as “Acquirers”

Merchant

Any physical or moral person contracting with EBS for the supply of the Service(s)

Merchant Account

The EBS Account and/or the Ogone Account

Merchant personal data

The data introduced by Merchant in the Merchant Account, including, in particular, the postal and e-mail addresses used by EBS in communications with Merchant

Merchant Users

Employees of the Merchant likely to use the Service(s) or who may be concerned by its supply

Ogone Account (or PSPID)

PSPID is short for "Payment Service Provider ID” and is the unique, non-modifiable access code to the Ogone payment platform

Ogone Site

The Internet site accessible at the Internet address http://www.ogone.com/ or any other address of any subsidiary permitting access to the Ogone Account

Site

Either the EBS Site or the Ogone Site as applicable

Software

Any software designated as such by EBS, Ogone BVBA/SPRL or by a commercial partner of EBS or Ogone BVBA/SPRL, to the trade names for the products and services supplied, as well as any registered trademarks and other names

Solution Provider

A company, external to both Merchant and EBS, integrating the Service(s) into Merchant’s sales applications and website

Third Party(ies)

Any physical or moral person other than EBS, its employees, Merchant and Merchant Users

Where appropriate, a reference in the T&Cs to a person includes corporations, partnerships and other unincorporated bodies of persons.

Article 1 – Object

1.1. EBS, acting as payment service provider (PSP), provides Merchant with the Service(s) as selected in the Agreement.

1.2. The Services have for only purpose and include only the payment module selected by Merchant, to the exclusion of any other commercial or functional aspect linked to Merchant sales process, such as the creation and hosting of a product catalogue or the delivery of merchandise.

Article 2 – Address of the Merchant Account

The Merchant Account is accessible via the login option as specified on the Site. The options "login", “subscribe”, "open my account", "create an account", etc., represent clearly indicated links on the Site, the labels of which can change to the sole discretion of EBS or Ogone. The address of the sites as well as all the others addresses included in the T&Cs, are given for information purposes only, and are subject to change. In such event, Merchant will be advised of such change in writing with at least fifteen (15) calendar days advance notice.

Article 3 – Creation and management of the Merchant Account

3.1. Merchant, under his own responsibility creates his own Merchant Account by means of the “Create a test account” button on the Site. Merchant himself chooses his Merchant Account. If the Merchant Account chosen by Merchant is already used by another merchant, Merchant will be advised thereof by EBS during the process of creation of the EBS Account. Merchant will then be asked to choose another available Merchant Account. When Merchant has validly chosen his Merchant Account, and once agreed by EBS, he will receive his password by e-mail. Merchant hereby releases EBS from any liability in the event of interception or improper use by a Third Party of the password thus communicated. Merchant must change his password the first time it is used, and may then change it as many times as it wishes via the administration menu of his Merchant Account. The Merchant Account and the password enable Merchant, via the “Access to my Account” option on the Site, to follow the stages of configuration of his account.

Alternatively, Merchant confirms that creation and management of Merchant Account will be made by EBS on behalf of the Merchant.

3.2. Merchant acknowledges that it has freely selected the navigation software to access the Site and that EBS shall have no liability in respect thereof for any reason whatsoever.

Article 4 – Integration of the Service(s)

Merchant may utilise his Merchant Account in manual mode or may integrate the Service(s) into a distance sales application, for example, his e-commerce site. If he opts for an integration of the Service(s), a technical documentation is available on request, addressed to EBS, and/or may be downloaded on line, from the “Support” section of the Merchant Account. Merchant may also be helped with this task by a Solution Provider. Merchant acknowledges that the selection of one method over another is the free choice of Merchant and that EBS shall have no liability in respect of any problems relating to the bad integration of the Service(s) into the applications of Merchant.

Article 5 – Security and control of transactions

5.1. Merchant acknowledges the importance of respect of security rules. For complete information on the security rules to be respected, Merchant should refer to the PCI DSS (Payment Card Industry Data Security Standards) standards available on the websites of Visa, MasterCard for example or with the Financial Institutions and other applicable laws. 

Among other things, Merchant must at all time:

-  Ensure the application of security patches on all his machines, as well as the activation of secure configurations on the latter;

-  Never store sensitive information, such as credit card numbers or visual cryptograms (CVC/CVV), on any type of support;

-  Protect all passwords and change them regularly, in particularly, the EBS Account access password;

-  Protect access to all his servers and applications, as well as to his technical infrastructure in general, particularly, with the aid of a firewall and anti-virus;

-  Implement procedures for the development of secure applications.

5.2. EBS strongly recommends Merchants to set up as many mechanisms of control as possible, especially in the case of applications of electronic commerce, and EBS reserves the right to limit the financial capabilities of the EBS Account (types of allowed operations, maximum number of transactions per period, etc.), if it judges controls and/or follow-ups by Merchant to be insufficient. The creation of adequate follow-up measures and control mechanisms, as well as the implementation of security options made available by EBS, is to the free option of Merchant and EBS shall have no liability in respect thereof.

5.3. EBS agree that it shall settle the transactions as per guidelines and circulars issued by RBI from time to time.

5.4. Merchant agree that EBS shall have the right to withhold settlement of transactions in the event Merchant has not submitted its KYC documents to EBS.

Article 6 – Intellectual property rights over the Software and the Services – copyrights

6.1. As the author or valid licensee of the Software and the Service(s), EBS warrants that it holds all rights and permits necessary to allow Merchant to use both the Software and the Service(s). EBS shall hold Merchant harmless against any and all damages (including costs) that may be awarded to be paid in respect of any claim or action that the normal use or lawful possession of the Software or the Service(s) by Merchant infringes, in whole or in part, the intellectual property rights of a Third Party (an “Intellectual Property Infringement”) provided that Merchant:

(a) Gives notice to EBS of any intellectual property infringement forthwith and without delay upon becoming aware of the same; and

(b) Gives EBS the sole conduct of the defence to any claim or action in respect of an Intellectual Property Infringement and does not at any time admit liability or otherwise settle or compromise or attempt to settle or compromise the said claim or action except upon the express instructions of EBS; and

(c) Acts in accordance with the instructions of EBS and gives to EBS such assistance as it shall reasonably require in respect of the conduct of the said common defence including the transmission of all procedural documents and all relevant documentation.

In that case EBS shall bear all reasonable costs incurred in conducting such common defence.

EBS shall have no liability to Merchant in respect of the infringement of intellectual property rights of Third Parties if this results from any breach by Merchant of its obligations under the T&Cs.

6.2. All intellectual property rights in the Service(s) and/or the Software shall remain with EBS either as the exclusive owner or valid licensee.

6.3. Merchant undertakes to refrain from:

(a) Reverse compiling, copying or adapting, in whole or in part, the Software made available by EBS,

(b) Assigning, selling, transferring, leasing, dealing in or encumbering the Software, making it available to any Third Party or using the Service(s) on behalf of any Third Party,

(c) Making the Service(s) or the Software available on any file sharing service,

(d) Removing or altering any copyright or other proprietary notice on any of the Software or the Service(s), or

(e) Using the Software or the Service(s) for purposes other than those set forth in the Merchant Contract with EBS.

6.4. Merchant acknowledges that the entire technical documentation of EBS, available among others by download from the “Support” option of its Merchant Account is and shall remain at all times the exclusive property of EBS. It can only be used in the strict framework of the Merchant Contract. The transmission, disclosure or copying of this documentation, in whole or in part, as well as the use or disclosure of its content, in whole or in part, or its misuse without the explicit written consent of EBS is strictly prohibited

Article 7 – License on the Software and other intellectual property rights

7.1. EBS grants Merchant, who accepts the same, a non-exclusive license to use, to the extent strictly necessary for enabling it to create and manage the Merchant Account according to the selected formula and within the limits and conditions stated in the Merchant Contract: (i) the Software provided through the Site; and (ii) all other intellectual property rights relating to the Service(s).

EBS reserves the right to change or amend the Software at any time, to provide Merchant with a new version thereof, and to change the functionalities and characteristics of the Software.

7.2. The license set out in article 7.1 is personal to Merchant and cannot be assigned or sub-licensed without the prior written consent of EBS. The license does not transfer any property whatsoever, which rights shall remain owned entirely by EBS. The license provides no right to the source code or decompiled Software, except for the prerogatives conferred under national legislation relating to the legal protection of computer programmes. The Software shall be used by Merchant only, to the exclusion of any other person and excluding the sale, rental, sub-contracting, leasing, etc. of said Software or of the Service(s).

Article 8 – Hosting by EBS

8.1. EBS undertakes to host the Merchant Account.

8.2. Merchant shall provide EBS, without delay and exhaustively, with all information relating to any fact or circumstance relating to the hosting which might give rise to any action or complaint by a Third Party against EBS.

8.3. EBS can perform all the operations necessary to host and protect the Merchant Account, in particular: the creation of backup copies of its content.

8.4. In this context, EBS must comply with the restrictions imposed by the Financial Institutions. In particular, EBS shall be entitled to store sensitive information, such as credit card numbers only if Merchant elects to enable that service.

Article 9 – Liability, warranties and commitments

In case of breach of its contractual obligations, EBS’s liability can be withheld in the following conditions and within the limits set out hereafter:

(i) General limitation of liability: EBS shall only be liable for serious and repeated contractual breaches which can be directly imputed to it.

Online payment operations being complex and requiring the intervention of a number of parties, it is explicitly acknowledged that EBS shall only be held liable for facts originating in the infrastructure managed by EBS and over which EBS exercises power of control. EBS shall not be held liable for facts originating upstream or downstream. In particular, any loss resulting from upstream or downstream connectivity defect shall not engage the liability of EBS (for example residing in the fault of the Nodal Bank or Internet connectivity). No exception can be conceded to the present clause.

(ii) Exclusion of certain losses: EBS shall not be liable to Merchant in contract, tort, for breach of any statutory duty or howsoever otherwise arising and shall therefore not pay any compensation for any loss of profits, business, revenue or anticipated savings; or for any loss of goodwill or injury to reputation; or for any type of indirect or consequential or special loss or damage, or loss or damage as a result of any recourse, in particular where the occurrence and the evolution of the damage were beyond EBS’ control.

This exclusion shall apply regardless of whether or not the principle of the damage and its extent were foreseeable at the conclusion of the Merchant Contract, even if EBS was advised of the possibility that such damage could occur.

(iii) Limitation of the amount of liability – limitation of compensation: Any liability of EBS not excluded by the provisions of the T&Cs shall be limited to the amount of Merchant’s monthly invoice for the period immediately preceding the event giving rise to liability.

This limitation of liability is necessary in order to maintain the proportionality principle between the claimed damages on one hand and the prices invoiced by EBS as well as the breaches committed on the other hand.

(iv) Death, Personal injury and fraud: Nothing in the T&Cs shall limit EBS’ liability for death or personal injury; or gross negligence or for fraud.

Except where explicitly agreed otherwise and in writing, EBS’ liability is exclusively governed by the provisions set out herein.

9.1 Warranties relating to the hosting and functioning

9.1.1. EBS provides the hosting and ensures the functioning of the Service(s) using the hardware and software environment freely selected for the purpose of hosting the EBS Account.

9.1.2. The protection of the EBS Account is carried out with all appropriate and reasonable means chosen and implemented by EBS with an obligation of best efforts. Merchant, managing its EBS Account under its sole responsibility remains exclusively liable for the selection and management of the Merchant Account, the connection data (credentials) of Merchant Users (USERID) and related passwords.

Merchant acknowledges that it is technically impossible, given the current state of knowledge, to warrant an unfailing security of the data exchanged on the open network of the Internet. EBS declares that it has, on its side, taken all reasonable and necessary measures to assure a secure payment processing. For its part, Merchant remains responsible for the security of the data he transmits via the Internet. EBS cannot accept any liability for any losses or damages arising out of any defect or infringement of protection or integrity of the data required to make payment, regardless of who is responsible for said defect or infringement (except fraud or gross negligence from EBS or one of its employees). In this respect, Merchant shall indemnify and hold EBS harmless against any legal remedy instituted by a Third Party, including any Customer relating to or arising out of any defect or infringement of the protection or integrity of the data required to make payment.

9.1.3. Merchant manages its EBS Account under his sole responsibility and ensures its good administration. EBS shall not be held liable for any losses or damages of any kind incurred by Merchant (such as operating losses, data loss, etc.) caused by improper functioning of the Service(s) as a result of any change made to the same, whether or not voluntarily, by Merchant or any person other than EBS and the employees thereof, unless such change is carried out in total conformity with explicit instructions given by EBS.

9.1.4. Merchant bears sole liability for its EBS Account as regards other holders of EBS Accounts in relation to any loss generally, of any nature whatever, suffered by any other holder caused by fraud or serious negligence in the use of the EBS Account or any of the components thereof. The EBS log files tracing access to his http servers and his EBS servers shall prevail in this regard. Merchant shall be liable to EBS in the event of any action brought by a Third Party for any damage suffered by such parties in such regard, such as interruptions in, or access problems relating to, their EBS Account.

9.1.5. Without prior express and written authorisation by EBS, Merchant shall not permit any Third Party to use its EBS Account, in whole or in part.

9.1.6. EBS shall not be held liable for losses suffered by Merchant or any Third Party resulting from a case of force majeure or any event above and beyond the control of EBS.

9.2 Declarations and warranties relating to the content of the Merchant Account

9.2.1. With the exception of the elements supplied by EBS, Merchant is and remains fully liable for the content of its Account, including the configuration parameters of said Merchant Account, as well as the related financial transactions themselves (hereinafter referred to as the “Content”). Merchant undertakes to keep said Content up to date, as well as to keep said Content exact, complete and permanently updated.

9.2.2. Merchant warrants that (i) the Content is and will not be in violation of the intellectual property rights of any Third Party, or the right to protection of privacy, fundamental right of individuals, the right of representation or any other right of a Third Party; (ii) the Content is and will not be contrary to good morals, public order and any applicable codes of conduct; (iii) the software and files supplied by Merchant are free of viruses; (iv) the Content is and will not be in violation of the applicable laws or regulations, such as the laws relating to trade practices.

Furthermore, Merchant undertakes to comply with the applicable data protection legislation and warrants if necessary to declare any creation, conservation and use of files containing personal data.

9.2.3. Merchant acknowledges and accepts the compulsory communication by EBS of all personal and payment data to any Third Party, whose intervention is necessary for the good execution of the payment process, including the Financial Institutions. Merchant undertakes to inform the Customers thereof and he holds EBS harmless of all liabilities in this respect.

9.3 Warranties relating to Merchant – Commitments of Merchant

9.3.1. Merchant warrants that it possesses the legal capacity and all permits necessary to sell his products/services using the Merchant Account.

9.3.2. Merchant undertakes to use its Account solely for professional purposes and only for payments due and payable to said Merchant. Merchant hereby provides an assurance that he is not acting as an intermediary.

9.3.3. Prior to using the Merchant Account, Merchant undertakes to provide EBS with all necessary information for the processing of all transactions, for example, the Merchant Activity Code (MCC code) or transaction origin code (e-Commerce, recurrent payments, distance sales).

9.3.4. Merchant undertakes to implement efficient practices concerning security management, in conformity with article 5.1 above.

9.3.5. Merchant undertakes to exercise regular, efficient and sufficient control over all transactions, in conformity with article 5.2 above.

9.3.6. Merchant shall use the Service(s) according to the documentation supplied to it by EBS. It shall not disrupt the Service(s), for example by badly implementing the service or by using it for purposes which are not explicitly provided for under the Merchant Contract. Thus, e.g., systematic queries of the system to check its availability or useless repetitive queries to know the status of non-existing transactions or of transactions for which the status will not evolve anymore are forbidden.

Article 10 – Price – Payments

10.1. EBS shall charge Merchant as per the relevant annex and Commercial Proposal.

10.2. In the event of major late payment, i.e., more than 30 calendar days after the due date of invoice, litigation proceedings will be initiated. In this case, the EBS Account of Merchant may be cancelled by EBS immediately and without prior notice, the costs mentioned in article 11.3 and any debt recovery fees being calculated and invoiced by EBS. In all cases of delay in payment, Merchant will be charged interest at a rate of 12% per year from the date of invoice. Interest shall accrue daily and both before as well as after any judgment.

Article 11 – Duration and Termination

11.1. In the absence of indication to the contrary, the Merchant Contract enters into force upon from the last date of signature of the Agreement by the parties.

11.2. In the absence of indication to the contrary, the Merchant Contract is as from its date of entry into force concluded for a fixed initial term of two years. At the end of this initial term, the Merchant Contract will automatically renew for successive periods of one (1) year (each a “current period”) on the same terms and conditions as contained herein.

Unless agreed otherwise, the Merchant Contract can only be terminated by notice given in writing at least three (3) months prior to the end of the current period. To be valid, such notice must be given by registered post or fax on the commercial paper of the notifying party, bearing its original signature.

11.3. Any termination of the Merchant Contract outside the above mentioned term, shall imply the immediate collectability of the total fixed monthly charges remaining due, for the rest of the current period, reserving the right for EBS to charge Merchant any other costs of cancellation and/or costs of debt recovery suffered or incurred by EBS.

11.4. Termination for cause

11.4.1. Termination for non-use. EBS has the discretion to unilaterally terminate the Merchant Contract with immediate effect without any notice, if Merchant fails or neglects to use the Service for a continuous period of one-hundred eight (180) days. Merchant shall not have any recourse against EBS and no compensation is payable to Merchant. Provided that within (15) days of the such deactivation it can be reactivated subject to the approval of Payment Method Providers, request of Merchant in required format to EBS and the payment of nominal reactivation fees as may directed by EBS at the time of reactivations.

11.4.2. Termination for failure to upgrade software/hardware. EBS has the discretion to unilaterally terminate the Merchant Contract with immediate effect without any notice, if EBS requires Merchant to carry out an upgrade of the software/hardware pursuant to the provisions of this Merchant Contract and Merchant is unwilling or fails to do so with no valid justification.

11.5. The parties shall nevertheless be entitled to terminate the Merchant Contract with immediate effect without prior notice and without costs or compensation in the event of the following situations on the part of the other party:

11.5.1 The other commits any material breach of its obligations as agreed upon in the Merchant Contract and fails to remedy the breach within one month after being required by written notice to do so, or

11.5.2 If the other goes into liquidation, insolvency, becomes bankrupt, has a receiver appointed, makes a composition or voluntary arrangement with its creditors or enters administration, or a moratorium comes into force in respect of the other, or in case of protective seizure of Merchant in the hands of EBS, filed by a creditor of Merchant.

11.6. Consequence on termination. In the event that either of the parties serve a notice of termination of this Merchant Contract on the other party, EBS shall be entitled to withhold for a period of two hundred and ten (210) days from the date of termination, balance and amounts payable to Merchant or any balance thereof after making adjustments/deductions in terms of this Merchant Contract.

Article 12 – Confidentiality

12.1. All data, regardless of the medium and their nature, relating to Merchant, EBS or Customer and designated as being confidential, as well as all data not expressly designated as confidential but which should reasonably be deemed confidential by reason of the medium, nature or content is to be considered confidential. Each party remains the owner of all data made available to the other party.

12.2. Each party undertakes to take all necessary steps to protect the confidential nature of all confidential data under the terms of the present T&Cs, agreeing, in particular, to:

12.2.1 Only use the confidential information of the other for the purpose of fulfilling its obligations set out in the Merchant Contract and not for any other purpose whatsoever;

12.2.2 Communicate all such confidential data supplied within the framework of fulfilment of the Merchant Contract, in whole or in part, orally or in writing, solely to the personnel and representatives of the parties, who shall be informed thereof within the framework of the collaboration described in the Merchant Contract; such data may be made available to the legal authorities upon written request;

12.2.3 Refrain from making any such confidential information available to any Third Party without the prior written consent of the other party;

12.2.4 To return to the other party, upon request and without delay, all documents, copies, notes, recordings, memoranda or other documents issued by said other party which might contain confidential information.

12.3. The obligation of confidentiality as described in article 12 shall remain in effect throughout the entire lifetime of the Merchant Contract. It shall moreover subsist for five (5) years following the end of the test period or termination of the Merchant Contract, regardless of the grounds for termination.

12.4. The following data is to be considered confidential, without need for special mention: (i) all financial data; (ii) the terms and conditions of the Merchant Contract; and (iii) all user manuals and guides relating to Service(s).

Article 13 – General provisions

13.1. In the event of technical problems relating to the Merchant Account, Merchant can access the site for the purpose of on-line consultation of any available documentation and FAQ, use of the “Support Box” option appearing under the “Support” option in the menu of the Merchant Account to create an incident ticket, send e-mail messages to support@ebs.inThis email address is being protected from spambots. You need JavaScript enabled to view it. or contact the EBS Help Desk by telephone (the EBS telephone number is available on the EBS Site, on the “Contact” page) during opening hours: 9:00h – 17:00h IST. Saturday, Sunday and national Bank Holidays are not considered a working day.

Non-electronic support (telephone, meetings, etc.) is free under the following conditions:

- The type of subscription selected by Merchant shall not exclude said free support;

- Merchant shall master the Service(s) and shall first have attempted to find the cause of the problem in the available documentation;

- The problem must originate from the Service(s), and not from any system upstream or downstream;

- If the support request does not relate to a Merchant Account that is  still not activated  three (3) months after the first support request.

In the event of failure to fulfil the above conditions, Merchant may be invoiced for such support at the price of 5,000 INR/hour.

13.2 Force majeure

13.2.1. The parties shall not be held responsible for delays or failings in the fulfilment of the Merchant Contract if such delays or failings arise from facts or circumstances reasonably perceived to be above and beyond the control of either party, being unpredictable and inevitable.

The parties agree that the viruses or other defects resulting from unauthorized access to Software or non-authorised access to the EBS Site or any type of hacking, including in particular DOS attacks, shall be considered a case of force majeure.

13.2.2. The party invoking such facts or circumstances shall immediately inform the other party in writing and take all steps to avoid such cases of force majeure by reducing, insofar as possible, the duration thereof. Said party shall also inform the other party upon cessation of said facts or circumstances.

13.3 Administration of proof

13.3.1. EBS and Merchant agree that a communication shall be deemed validly sent by e-mail, in the absence of any stipulation to the contrary in the Merchant Contract.

13.3.2. EBS and Merchant agree that the information relating to communications and contracts recorded by EBS on a durable and non-modifiable support shall possess the force of proof, in the absence of evidence to the contrary.

13.3.3. EBS shall not be bound by any possible agreement concluded by Merchant, on or via the Internet, with service providers applying other methods of contractual proof.

13.4 Assignment of the account

13.4.1. EBS shall be entitled, at any time, to transfer the Merchant Contract to another company in the Ogone Group, i.e. a company with at least 50% the same shareholders, without the prior consent of Merchant.

13.4.2. Merchant shall not assign the rights and obligations arising from the present Merchant Contract concluded with EBS, in whole or in part, by assignment, merger, split or any other means of assignment, whether particular or universal, without the prior written consent of EBS. In the event of refusal on the part of EBS, EBS shall inform Merchant of the grounds for said refusal and shall be entitled to cancel the Merchant Contract without compensation or prior notice.

13.5 Clauses declared null and void and/or inapplicable

In the event that any provision in the Merchant Contract (including the T&Cs) shall be declared null and void and/or inapplicable, said provision shall be deemed non-existent, and all other provisions of the Merchant Contract (including the T&Cs) shall remain in effect. The parties undertake to take all steps to eliminate said provision declared null and void and/or inapplicable and to replace the same with a provision approaching, insofar as possible, the economic objective of the provision declared null and/or inapplicable.

13.6 Waiver

The failure of either party to exercise his rights at any time shall in no way imply a waiver of said rights.

13.7 Entirety of the agreement

13.7.1. The Merchant Contract contains all the commitments between the parties and replaces all other prior contractual commitments between the parties.

13.7.2. Each party confirms that any statement, representation or warranty agreed upon during the contract negotiations is included in the Merchant Contract.

13.8 Changes to the T&Cs

The current T&Cs are at all times available on the EBS internet Site.

Merchant will be informed of all modifications of the T&Cs of EBS via an obvious notice in its back office and on its relevant monthly invoice.

EBS can at any time change all or some of the present T&Cs, to the extent that such minor changes only concern non-essential clauses obligations of the conditions and do not affect material obligations of the parties. Such changes enter into force from the moment that Merchant has been informed thereof.

If changes relate to material obligations of the Merchant Contract, the T&Cs applicable at the time the proposed change is made available to Merchant continue to apply until the expiry of the term of the then current period. At that date, the Merchant Contract will be renewed with application of the new T&Cs. The changes thereto are deemed accepted by Merchant unless it terminates the Merchant Contract with a written notice period of one month, as from the reception of the communication notifying of the proposed changes. Such a termination occurs without costs.

Exceptionally, EBS can unilaterally change the essential elements and material obligations contained in the T&Cs with immediate effect, on the condition that EBS proves that:

- such changes are necessary as a result of new terms and conditions imposed upon EBS by a Third Party such as (i) a credit card company, a Financial Institution, a hardware or software supplier, etc. (the list is provided for information purposes and is in no way exhaustive) or (ii) a legal authority;

- Without such changes, the activity of EBS would have suffered a negative impact or been rendered impossible.

In such case, Merchant may terminate the Merchant contract as mentioned in the paragraph here above.

13.9 Client list and promotions

Merchant agrees that his name shall appear on the EBS client list. EBS shall be entitled to use said list freely in its commercial efforts. EBS shall furthermore be entitled to summarize, under a heading such as “What They Are Saying”, any non-confidential message sent by Merchant permitting EBS to conclude that Merchant is satisfied. EBS shall send Merchant a copy of the text which it intends to use, prior to making any actual use of said text. Failure on the part of Merchant to refuse within five (5) calendar days of said sending shall be deemed equivalent to Merchant consent to said use.

13.10 Audit

Merchant shall maintain in good order and as per generally accepted industry practices, its Site, books of account and other records and documents as required under or for this Merchant Contract. In case it is directed or required by Financial Institutions or other governmental authorities, Merchant shall allow the auditors appointed by EBS (whether internal or external) to act on its behalf and/or its regulators to enter upon the premises of Merchant and inspect, examine and audit Merchant’s operations and records and take copies as it deem fits in their absolute discretion to be relevant to the services carried out and/or arrangement entered into in terms of this Merchant Contract. Such audit shall not unreasonably disturb Merchant’s daily operations.

Article 14 – Applicable law

The Merchant Contract is governed by the laws of India.

Article 15 – Settlement of disputes

15.1. The parties undertake to take all steps to reach an amicable agreement to any dispute relating to the Merchant Contract.

15.2. In the absence of an amicable agreement, any dispute shall be submitted to the exclusive jurisdiction of the courts and tribunals competent of Mumbai.