TERMS AND CONDITIONS FOR APPOINTMENT AS RETAILER/ DISTRIBUTOR/ SUPER
DISTRIBUTOR
These terms and conditions (Terms and Conditions) shall apply to and govern the commercial
arrangement between WISHBIN SOLUTIONS (herein after referred as
'WISHBIN') and the Retailer/Distributor/Super Distributor. These Terms and Conditions and
any attachments hereto represent the entire agreement between WISHBIN and the
Retailer/Distributor/Super Distributor and no changes to the same are binding unless they are in
writing and intimated by the authorized representative of WISHBIN.
WISHBIN is a digital financial facilitation service provider, a company
incorporated under the Companies Act, 2013 and having its registered office at G-18/19, Hampton
Court Business Park, Phase VIII, Focal Point, Chandigarh Road, Ludhiana, Punjab-141123
(hereinafter referred to as the Company/WISHBIN which
expression shall unless repugnant to
the context or meaning thereof mean and include its successors and permitted assigns).
OPERATION OF THE Retailer/Distributor/Super Distributor OUTLET :
During the Term, the Retailer/Distributor/Super Distributor shall render the
se“rvices
(Services”) of WISHBIN, by and through such of its officers, employees, agents,
representatives, and affiliates as it shall designate, from time to time.
Notwithstanding
anything contrary contained in these Terms and Conditions, WISHBIN shall have
the
right at
any time, to modify, alter and amend the lists of Services, including the manner,
procedure,
process in which the Retailer/Distributor/Super Distributor will be required to
perform
the
Services and the Retailer/Distributor/Super Distributor shall be bound by all such
modifications, alterations and amendments made by WISHBIN.
The Retailer/Distributor/Super Distributor shall only market, distribute sell or
promote such
WISHBIN Services as are permitted expressly by WISHBIN. The
Retailer/Distributor/Super
Distributor shall not automatically have the right to market, sell, distribute, or
promote any
product or service that may be provided by other retail outlets, whether in the
present or in
the future. In the event of any addition to the Services, WISHBIN may, at its
sole
discretion, intimate the Retailer/Distributor/Super Distributor that the
Retailer/Distributor/Super Distributor is entitled to sell, market, distribute and
promote such
product or service. WISHBIN shall also have the right to direct the
Retailer/Distributor/Super Distributor to discontinue providing any of the
WISHBIN Services
at the Retail Outlet without assigning any reason whatsoever.
WISHBIN shall specify to the Retailer/Distributor/Super Distributor, the
necessary infrastructure and equipment including but not limited to computer
terminals, peripherals attachments, internet and broadband connectivity, mobile
device and/or any such device with GPRS connectivity, HTML enabled, which is
compatible enough to run WISHBIN Software/Services etc, for effectively
providing the WISHBIN Services, which the Retailer/Distributor/Super Distributor
shall acquire at its sole expense. In case of the MPOS Application, the
Retailer/Distributor/Super Distributor shall be entitled to install the WISHBIN
Software on that particular mobile device and/or any such other device, which is
proposed to be registered with WISHBIN for availing WISHBIN Services, and no
other mobile/device of the Retailer/Distributor/Super Distributor shall have such
Software installed unless registered under the terms and conditions of this
Agreement. Further, the Retailer/Distributor/Super Distributor shall prominently
display the WISHBIN signage, signboards, logos, etc at a prominent place in the
Retail Outlet, strictly in accordance with the directions issued by WISHBIN in
this regard.
Upon satisfactory installation and operation of the necessary equipment and
peripherals, WISHBIN shall, subject to these Terms and Conditions, install the
necessary software and other WISHBIN Intellectual Property to enable the
provision of the Services. All Services shall be provided solely through the portal
of WISHBIN or are recorded therein and no offline transactions are permitted
and/or no such fake/false receipts should be issued by the
Retailer/Distributor/Super Distributor for the wilful fraud transaction done by the
Retailer/Distributor/Super Distributor which are not transacted through WISHBIN
Software/portal. However, if any Retailer/Distributor/Super Distributor is found
and/or discovered doing any such malicious/wrong/wilful/fraudulent acts and/or
offline transactions, it shall be liable and charged for such civil/penal and
criminal acts by and under but not limited to the Indian Penal Code 1860 and
Criminal Procedure Code 1973.
The Retailer/Distributor/Super Distributor shall obtain all necessary license(s),
permits and approvals for selling, distributing, marketing, and promoting the
Services from the Retail Outlet and shall bear all costs and incidental expenses
incurred in this regard, including without limitation all fees for application,
license fees, charges, and taxes.
The Retailer/Distributor/Super Distributor shall keep the Retailer/Distributor/Super
Distributor Outlet open for business during normal business hours, or as permitted
by law or such other time period as WISHBIN may specify from time to time.
The Retailer/Distributor/Super Distributor shall ensure that the Retail Outlet is
utilized for the purpose of rendering the Services in accordance with these Terms
and Conditions. The Retailer/Distributor/Super Distributor shall further ensure that
and shall not cause or permit (a) any material that may not be made available to the
public under applicable law, including without limitation any vulgar, obscene,
pornographic, misleading, defamatory, libellous, offensive, derogatory, threatening,
harassing, abusive or violent content, to be made available in the Retail Outlet or
(b) any activities that are proscribed under law or reasonably considered to be
immoral or against public interest.
WISHBIN may, at its sole discretion and with or without consideration, provide
training manuals, technology support, ongoing advice and assistance to the
Retailer/Distributor/Super Distributor and designated employees of the
Retailer/Distributor/Super Distributor, including, provision of brochures,
pamphlets, charts, signboards, signage and other materials for the purposes of
advertisement, promotion and marketing the Services. Any materials supplied by
WISHBIN shall be utilized solely in relation to the provision of Services and
the Retailer/Distributor/Super Distributor shall ensure that such materials are not
utilized for any other purpose.
The Retailer/Distributor/Super Distributor shall not encroach/poach upon the areas
of operation of other neighbouring Retailer/Distributor/Super Distributors appointed
by WISHBIN or act in any manner which will prejudice the business prospects of
neighbouring Retailer/Distributor/Super Distributors appointed by WISHBIN.
DEFINITIONS AND INTERPRETATION :
In this Terms of Use, unless the contrary intention appears and/or the context otherwise
requires, capitalised terms defined by: (i) inclusion in quotations and/ or parenthesis
have the meanings so ascribed; and (ii) the following terms shall have the meanings
assigned to them herein below:
Applicable Law
includes all applicable Indian statutes, enactments, acts of the state legislature
or parliament, laws, ordinances, rules, bye-laws, regulations, notifications,
guidelines, directions, directives and orders of any governmental authority,
statutory authority, board, recognized stock exchange, as may be applicable
including but not limited to Guidelines on Managing Risks and Code of Conduct in
Outsourcing of Financial Services by Banks, Business Correspondent Guidelines issued
by RBI from time to time, Payment & Settlement Systems Act, 2007, Payment &
Settlement Systems Regulations, 2008, Policy Guidelines on Issuance and operation of
Pre-paid Payment Instruments in India, and any other guideline in relation to
pre-paid cards issued from time to time by Reserve Bank of India and in each case,
any implementing regulation or interpretation issued thereunder including any
successor Applicable Law;
Applicant
shall mean You or any individual person above the age of [18 (eighteen)] years,
using an operational mobile phone connection, who applies either on his owner
approaches Retail Partner at the Retail Outlet locations and/or such other
locations, for availing the Company Services;
Company Rules
shall mean policies issued by the Company with respect to its strategic business
partners, retail partners, distributors, Consumers including but not limited to the
policy on the code of conduct and other sales and management policies as issued on
the Website, Platform and/ or otherwise and amended from time to time;
Consumer
shall mean an Applicant who upon submission of the CAF and upon completion of
necessary formalities, is found to be eligible by Company as per guidelines issued
by RBI (if any), to avail the Company Services and has opened a Membership Account;
Governmental Authority
means any nation, state, sovereign, or government, any federal, regional, state,
local or political subdivision and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
constitutionally established and having jurisdiction over any of the parties (to the
extent relevant to the transactions contemplated hereby) or the assets or operations
of any of the foregoing or the transactions contemplated hereby;
INR or RS
means Indian Rupees, the lawful currency of the Republic of India;
Intellectual Property
shall mean all intellectual property used for the purpose of or in association with
or in relation to providing the Company Services utilising the Platform and includes
without limitation, (a) Software, operating manuals, software code, program,
instructions, specifications, processes, input methods, data or information used in
relation to, in association with or for the operation of the software installed by
Company ; (b) the trademarks, service marks, trade names, business names, logos,
symbols, styles, colour combinations used by Company during the course of its
business and all depictions, derivations and representations thereof; (c) all
promotional material including without limitation, advertisements, literature,
graphics, images, content and the ‘look and feel’ of all of the above; and (d) all
techniques, formulae, patterns, compilations, processes, inventions, practices,
methodology, techniques;
Tax or Taxes
shall mean any and all taxes, GST, cess, levies, imposts, duties, charges, deposits,
fees, deductions or withholdings that are, or that are to be, imposed, levied,
collected, withheld or assessed, together with any and all interest, penalties,
claims or other liabilities arising under or relating thereto;
ACCEPTANCE AND APPOINTMENT AS RETAILER/DISTRIBUTOR/SUPER DISTRIBUTOR :
These Terms and Conditions shall come into force from the date (Effective Date) of
Retailer/Distributor/Super Distributor Application Form attached herewith. Within 30
(thirty) days from the date of acceptance by Retailer/Distributor/Super Distributor, the
Retailer/Distributor/Super Distributor shall commence business in accordance with these
Terms and Conditions.
The Retailer/Distributor/Super Distributor acknowledges that it has read and understood
these Terms and Conditions at the time of making an application to WISHBIN for
operation of a retail outlet to provide the Services (as defined herein) under the name
and s“tyle of WISHBIN” and that it has had sufficient time to evaluate the financial
requirements, equipment required to conduct the business, services applicable/ enable in
his area of operation and risks associated with the establishment and operation of the
retail outlet.
During the Term and subject to these Terms and Conditions, WISHBIN hereby appoints
the Retailer/Distributor/Super Distributor and the Retailer/Distributor/Super
Distributor hereby accepts the appointment as a WISHBIN Retailer/Distributor/Super
Distributor, to establish and operate a retail outlet at such address as specified in
the Retailer/Distributor/Super Distributor application form attached herewith for the
purpose of marketing, selling and providing the Se“rvices (Retail Outlet”). No changes
to the address as mentioned in the Retailer/Distributor/Super Distributor Application
form shall be permitted, except with the prior written consent from WISHBIN whereas
such consent shall be signed by the Authorized Representative of the level of Vice
President or above.
The appointment of the Retailer/Distributor/Super Distributor under these Terms and
Conditions shall remain valid up to the termi“nation (Term”). WISHBIN may exercise
its right of withdrawal by giving a notice in writing to the Retailer/Distributor/Super
Distributor 1 (one) month prior to withdrawal unless any breach of this agreement by the
Retailer/Distributor/Super Distributor.
The Retailer/Distributor/Super Distributor may describe himself as an 'authorized
Retailer/Distributor/Super Distributor' of WISHBIN but must not hold
[itself/himself] out as being entitled to bind WISHBIN in any way. The
Retailer/Distributor/Super Distributor shall not make, cause or permit, directly or
indirectly, any description or projection of itself as a partner or employee or officer
or representative of WISHBIN.
WISHBIN is in the business of facilitating/distributing/marketing/providing of
product(s)/service(s) of various service providers to enable them to expand the
distribution networks for the services provided by them
The Retailer/Distributor/Super Distributor has understood the business model and aware
that WISHBIN is just a facilitator and distributor of products and services and does
not own such services or products by itself. WISHBIN takes reasonable efforts to
make available the services and products, however, shall not be liable and responsible
for any deficiency of such services and products. WISHBIN further also takes
reasonable efforts to provide its best uninterrupted services at best quality; however,
technological systems are prone to interruption for upgradation, maintenance, breakdown
of either the systems of WISHBIN or that of the Service Providers’. The
Retailer/Distributor/Super Distributor shall be managing his business considering such
interruptions.
PAYMENTS AND COMMISSIONS :
Non-Refundable Registration Fee: The Retailer/Distributor/Super
Distributor shall deposit such an “amount (Registration Fees”) by way of a
non-refundable registration fee as per commercial terms defined by WISHBIN on or
before the Effective Date.
Working Capital: The Retailer/Distributor/Super Distributor shall
maintain and deposit with WISHBIN working c“apital (Working Capital”) in a bank
designated and intimated to the Retailer/Distributor/Super Distributor for this p“urpose
(Designated Bank”) which will be an interest free deposit. The Working Capital limit may
be increased from time to time by way of written intimation to the
Retailer/Distributor/Super Distributor. The Retailer/Distributor/Super Distributor shall
immediately deposit such further amounts to ensure that the Working Capital is
maintained at the aforementioned amounts at all times.
Working Capital Limit: The Retailer/Distributor/Super Distributor shall
be entitled to a credit limit equivalent to the Working Capital balance in the books of
MOB“ISAFAR (Credit Limit”). The Retailer/Distributor/Super Distributor may enter into
transactions up to the value of the existing Credit Limit. In the event the value of the
transactions exceed the Credit Limit, all further transactions exceeding the Credit
Limit shall automatically be blocked until the Credit Limit is sufficient to permit
further transactions. In the event the Retailer/Distributor/Super Distributor desires to
enter into transactions in excess of the Credit Limit, the Retailer/Distributor/Super
Distributor shall deposit the amount either with the Distributor or WISHBIN as the
case may be to increase its Credit Limit accordingly. The Distributor/ WISHBIN
shall, at their sole discretion, permit enhancement of the Credit Limit. If the amount
is deposited with the Distributor, the Retailer/Distributor/Super Distributor need to
obtain proper receipt and the limit gets enhanced from the Distributor. WISHBIN
shall not be responsible for any liabilities in such an event.
Commission: The Retailer/Distributor/Super Distributor shall be
entitled to commission,
which shall be adjusted on a daily basis/monthly basis/transaction basis, for the
provision of the Services at a rate to be intimated by WISHBIN to the
Retailer/Distributor/Super Distributor from time to time through its portal, either by
way of credit to the Working Capital or the Retailer/Distributor/Super Distributor may
deduct the commission due to it, prior to depositing the proceeds of a transaction in
the Current Account. The Retailer/Distributor/Super Distributor shall be regularly
updated on the Rates of Commission through the Portal. WISHBIN, at its sole
discretion shall decide the sharing of Gross Margin with the Retailer/Distributor/Super
Distributors and its decision will be final. It is presumed that the
Retailer/Distributor/Super Distributor has agreed to such commission / margin before the
transaction. Any dispute in this regards will not be admissible by WISHBIN.
Prices and discounts: All prices, charges, fees and discounts for all
WISHBIN Services shall be determined, and may from time to time be revised, by
WISHBIN at its sole discretion. The Retailer/Distributor/Super Distributor shall not
collect cash from the customers by offering discounts on the Services which do not have
WISHBIN's sanction. The Retailer/Distributor/Super Distributor shall also not
provide any incentives, subsidies or do any act/ omission or thing, which shall have the
effect of providing incentives or subsidies on the Services. The
Retailer/Distributor/Super Distributor acknowledges that WISHBIN has the right to
alter the prices or nullify any sales that have been entered in the portal.
Taxes: All current and/or future taxes or similar fees including
without limitation GST, value added tax, service tax and other local or municipal taxes
shall be payable by the Retailer/Distributor/Super Distributor. Such amounts shall not
be retained by the Retailer/Distributor/Super Distributor while retaining its
commission. Payments made to the Retailer/Distributor/Super Distributor shall be subject
to such withholdings as prescribed under applicable law. Subject to the aforesaid,
WISHBIN assumes no responsibility for the tax compliance of the
Retailer/Distributor/Super Distributor.
Costs: All costs and expenses for operation of WISHBIN Kiosk
including but not limiting to electricity, telephone, staff salary, traveling,
promotional activities and other similar out-of-pocket expenses incurred in the
performance of the Services shall be borne by the Retailer/Distributor/Super
Distributor.
Activity/Inactivity charges: A minimum monthly charges plus Taxes may
be levied by WISHBIN and the same shall be deducted from the
Retailer/Distributor/Super Distributor’s Working Capital balance. The
Retailer/Distributor/Super Distributor hereby agrees and acknowledges to pay such
charges as intimated to the Retailer/Distributor/Super Distributor from to time.
Set off: WISHBIN may, deduct sums due from the
Retailer/Distributor/Super Distributor under these Terms and Conditions from any sums
due to the Retailer/Distributor/Super Distributor under the same and the
Retailer/Distributor/Super Distributor hereby consents to such set off being made by
WISHBIN
EMPLOYEES :
The Retailer/Distributor/Super Distributor shall be solely responsible for all such
personnel employed by it, including payment of wages, making of contributions under
various labour laws, such as the Employees Provident Fund and Miscellaneous Provisions
Act, 1952, the Employees State Insurance Act, 1948, etc.
The Retailer/Distributor/Super Distributor acknowledges that it shall be responsible for
all acts and omissions of its employees, subordinates, agents, aforesaid assignees, or
other personnel engaged by the Retailer/Distributor/Super Distributor.
EXCLUSIVITY AND NON-COMPETE :
During the continuation Term of this agreement, the Retailer/Distributor/Super
Distributor shall not, directly or indirectly, through any other person, firm,
corporation or other entity (whether as an officer, director, employee, partner,
consultant, holder of equity or debt investment, lender or in any other manner or
capacity):
(a) market, offer and/or perform services similar to that being
developed, offered
or sold by WISHBIN;
(b) solicit, induce, encourage or attempt to induce or encourage
any employee or
consultant of WISHBIN to terminate his or her employment or consulting
relationship with WISHBIN, or to breach any other obligation to WISHBIN;
(c) solicit, interfere with, disrupt, alter or attempt to disrupt
or alter the
relationship, contractual or otherwise, between WISHBIN and any other person
including, without limitation, any consultant, contractor, customer, potential
customer, or supplier of WISHBIN;
(d) engage in or participate in any
business conducted under any name that shall be the same as or similar to the name
of WISHBIN or any trade name used by WISHBIN.
INTELLECTUAL PROPERTY :
No license under any patents, copyrights, trademarks, or any other intellectual property
rights of WISHBIN / its affiliates / its Service Provider(s) / third party(ies) is
granted to or conferred upon to the Retailer/Distributor/Super Distributor by virtue of
being the Retailer/Distributor/Super Distributor of WISHBIN. The
Retailer/Distributor/Super Distributor shall not acquire any interest and right on the
trademark(s), trade name(s), logo, etc. of other party including WISHBIN by virtue
of this Agreement and shall not use the logos, trademark of WISHBIN/owner of
intellectual property on including interalia the Retailer/Distributor/Super
Distributor’s Rubber stamps, letterheads, Visiting Cards, websites etc. and/or any such
material in whatsoever manner.
The Retailer/Distributor/Super Distributor agrees to protect the logo, trade name and
trademark of WISHBIN and not use the same, in any unauthorised manner, whatsoever,
including interalia as a tool for acknowledging payments accepted by the
Retailer/Distributor/Super Distributor/his representative, thereby creating false
impression about the authenticity of such acknowledgment / receipt. The
Retailer/Distributor/Super Distributor hereby undertakes to indemnify, defend and hold
WISHBIN harmless for all loss(es) / damage(s) arising due to infringement of this
clause.
The Retailer/Distributor/Super Distributor is aware of the consequences, if at all,
the Retailer/Distributor/Super Distributor and/or his representative are found in
unauthorized use of WISHBIN logo/ trade name(s) in any manner, then strict
action shall be taken against the Retailer/Distributor/Super Distributor, including
permanent deactivation of his Services, but not limited to any other legal action
which WISHBIN may deem fit and proper, under the provisions of law.
CONFIDENTIALITY AND SECURITY :
The Retailer/Distributor/Super Distributor agrees that all information disclosed by
WISHBIN or which the Retailer/Distributor/Super Distributor gets in the course of
negotiating this Agreement is confidential in nature and hence cannot be disclosed. Each
Party may disclose the existence of this Agreement, but agrees that the terms and
conditions of this Agreement will be treated as Confidential Information; provided,
however, that each Party may disclose the terms and conditions of this Agreement: (a) as
required by any court or other governmental body;
(a) as required by any court or other governmental body;
(b) as otherwise required by law;
(c) to legal counsel of the Parties;
(d) in confidence, to accountants, banks, and financing sources and
their advisors;
(e) in connection with the enforcement of this Agreement or rights
under this
Agreement;
(f) in confidence, in connection with an actual or proposed merger,
acquisition or
similar transaction.
The Retailer/Distributor/Super Distributor also agrees that on and from the date of this
Agreement all information, which the Retailer/Distributor/Super Distributor may obtain
from WISHBIN pursuant to this Agreement, shall be kept confidential by the
Retailer/Distributor/Super Distributor and shall not be disclosed to any third party,
save and except with the prior written consent of the WISHBIN
SECURITY OF CONFIDENTIAL USER INFORMATION :-
Security of POS User ID and Password: The Retailer/Distributor/Super Distributor shall
be solely, exclusively, and absolutely responsible and liable for safe-guarding and/or
securing the confidentiality of the user id and passwords relating to access of
WISHBIN Services and such other relevant information, in whatsoever name called
pertaining to the Retailer/Distributor/Super Distributor/User Account of the
Retailer/Distributor/Super Distributor.
Unauthorized Access: The Retailer/Distributor/Super Distributor shall take all necessary
precautions to prevent unauthorized and illegal use of WISHBIN services and
unauthorized access to the Retailer/Distributor/Super Distributor Accounts provided by
WISHBIN. The Retailer/Distributor/Super Distributor hereby agrees that WISHBIN
shall not be held liable and/or responsible for any wrong doings/ misappropriation/
misrepresentation/any leakage of passwords and for any liability arising due to
insufficient security maintained by the Retailer/Distributor/Super Distributor with
respect to the Retailer/Distributor/Super Distributor account. WISHBIN shall take
all commercially viable and/or reasonable care to, ensure the security of and to prevent
unauthorized access, using commercially viable and reasonable technology available to
WISHBIN.
Fraud/fake transactions: WISHBIN shall not be liable and/or responsible for any
fraud/fake transactions occurring from the Retailer/Distributor/Super Distributor id by
any third party. WISHBIN takes utmost care for encryption of the
Retailer/Distributor/Super Distributor’s personal details. However, WISHBIN cannot
control the misuse of the sensitive information like password/s once it is handed over
to the Retailer/Distributor/Super Distributor. Retailer/Distributor/Super Distributors
shall be responsible to follow standard guidelines for securing their id/password for
the WISHBIN Software.
WARRANTIES AND CONVENANTS OF THE RETAILER/ DISTRIBUTOR/ SUPER DISTRIBUTOR :
The Retailer/Distributor/Super Distributor hereby warrants, covenants and undertakes
that it shall
(a) Promptly, effectively, efficiently and professionally sell,
market, distribute and promote the Services and shall promptly respond to all
inquiries by any customer or potential customer in relation to the Services;
(b) at all times co-operate with WISHBIN's representative(s)
and promptly report to WISHBIN any complaints or customer feedback relating to
the Services which may come to the Retailer/Distributor/Super Distributor's
attention;
(c) Conduct its operations in compliance with applicable law, these
Terms and Conditions and all guidelines and instructions that may be provided by
WISHBIN from time to time;
(d) Promote WISHBIN's business interests;
(e) not do or omit, or cause to be done or omitted, any act, deed
or thing, directly or indirectly which may potentially result in any damage to, loss
of reputation of or any loss to WISHBIN in any manner whatsoever;
(f) employ sufficient number of personnel to provide the Services,
who shall be adequately trained to provide the Services;
(g) Ensure all personnel employed by it comply with these Terms and
Conditions and the Retailer/Distributor/Super Distributor shall be solely
responsible for all acts/omissions of such personnel;
(h) Not enter into any agreements with customers or any other third
parties which are contrary to law or to these Terms and Conditions;
(i) adhere to and shall cause its employees, subordinates, agents,
aforesaid assignees or other personnel engaged by the Retailer/Distributor/Super
Distributor to provide the Services to adhere to the dress code and professional
conduct and etiquette as prescribed by WISHBIN from time to time;
(j) ensure that none of the Services are denied to any person or
group of persons or to any customer save and except with the express written consent
and / or instructions of WISHBIN;
(k) not engage in any unfair or unethical trade or practice;
(l) not permit unauthorized persons entry into the Retail Outlet
and shall, under no circumstance, permit any unauthorized person to access the
computer/server located at the Retail Outlet or access to information, material,
accounts and records in relation to WISHBIN Services;
(m) not permit any other person whosoever, to conduct any business,
trade or profession of any nature at the Retail Outlet; and
(n) obtain and maintain all required necessary approvals, permits,
waivers, consents, registrations and licenses from the relevant authority to perform
all its obligations under these Terms and Conditions.
The Retailer/Distributor/Super Distributor agrees that it shall be solely liable and
responsible for any seizure of instruments provided by WISHBIN to it by any
governmental authority for its actual or alleged illegal and unlawful act.
The Retailer/Distributor/Super Distributor agrees that it shall be solely liable and
responsible for taking any type of Insurance including but not limited to Cash
handling/transit Insurance, in accordance to provide protection to WISHBIN business
accordingly from time to time.
The Retailer/Distributor/Super Distributor agrees and undertakes to ensure that the
contact details including phone number and/or any other credentials of the consumer/s
which needs to be captured on WISHBIN platform for acknowledging the transaction
done at WISHBIN network, should be genuinely of the customer and/or taken from the
customer/s and the Retailer/Distributor/Super Distributor shall not put his own or any
fake / wrong credentials on behalf of customer/s, in any manner whatsoever
The Retailer/Distributor/Super Distributor also agrees that it shall during the Term of
this Agreement, allow WISHBIN and/or any other statutory authority/ person of its
management, auditors, regulators and/or agents the opportunity of inspecting, examining,
auditing and/or taking copies of any records with the Retailer/Distributor/Super
Distributor in relation to the performance of the Services by the
Retailer/Distributor/Super Distributor.
The Retailer/Distributor/Super Distributor shall co-operate with such internal or
external auditors and/or as defined above to assure a prompt and accurate audit of the
Retailer/Distributor/Super Distributor’s records and data and shall also co-operate in
good faith and in best efforts basis with WISHBIN to correct any practices, which
are found to be deficient as a result of any such audit within a reasonable time.
The Retailer/Distributor/Super Distributor shall perform its responsibilities under
these Terms and Conditions diligently and shall strive to increase the sale of
WISHBIN Services to the best of its ability and shall always maintain a good
relationship with the specified Distributor and the customers and shall maintain total
transparency in relation to the same
REPRESENTATIONS AND WARRANTIES :
The Retailer/Distributor/Super Distributor represents and warrants that:
(a)it has had a full and adequate opportunity to read and review
this Agreement and to be thoroughly advised of the terms and conditions of this
Agreement by an attorney or other personal representative, and has had sufficient
time to evaluate and investigate the provision of Services under this Agreement and
the financial requirements and risks associated with the same;
(b)Neither the execution of this Agreement nor the performance of
the Retailer/Distributor/Super Distributor's obligations under this Agreement will
result in a violation or breach of any other agreement by which the
Retailer/Distributor/Super Distributor is bound;
(c)it has and will continue to have the power and authority to be
bound by these Terms and Conditions and to perform and fulfil all activities
contemplated herein and that no other person or entity is required to consent or
provide permission to the activities contemplated under these Terms and Conditions
and the Retailer/Distributor/Super Distributor is not subject to any agreement,
judgment or order inconsistent with these Terms and Conditions;
(d)the entry into and performance of these Terms and Conditions in
accordance therewith shall not result in a violation of applicable law, its charter
documents or any other agreement by which it is bound; and
(e)it is adequately insured for all liabilities specified herein.
The warranties provided herein by the Retailer/Distributor/Super Distributor are in
addition to and do not exclude any of the implied warranties under the applicable
law
with respect to the activities contemplated under these Terms and Conditions.
MISCELLANEOUS :
Governing Law: These Terms and Conditions shall be governed by, and
construed in
accordance with Indian law as such law shall from time to time be in effect, subject to
Delhi Jurisdiction courts only.
Dispute Resolution: The Parties shall try and resolve disputes, if any,
arising under
these Terms and Conditions amicably failing which the same shall be referred to
arbitration in accordance with the Arbitration and Conciliation Act, 1996 or any
modifications or re-enactments thereof. The arbitration shall be conducted by a sole
arbitrator agreed between both Parties. The venue of arbitration shall be New Delhi
Only. The arbitration proceedings shall be in English. The award shall be final and
binding on the Parties. A Retailer/Distributor/Super Distributor is a business
associate, and the relationship is created under this agreement. In no way the
Retailer/Distributor/Super Distributor is a customer of WISHBIN and shall not be
entitled to the remedy under consumer dispute Act. In the event of disputes between the
Retailer/Distributor/Super Distributor and any other operator of WISHBIN Retail
Outlet, such disputes shall be resolved by an officer of WISHBIN, whose decision
shall be final and binding.
Non-Exclusive Appointment: The Retailer/Distributor/Super Distributor
hereby
acknowledges that all of the rights provided under these Terms and Conditions including
area of operation, without limitation, the limited license to use WISHBIN
Intellectual Property are non-exclusive in nature and nothing herein shall be read to
prejudice any right that WISHBIN to any other person any other right or permission
to perform the activities contemplated under these Terms and Conditions.
Force Majeure: If WISHBIN is prevented from performing any of its
obligations under
this Agreement due to any cause beyond WISHBIN's reasonable control, including, but
without limitation to, any act of God, fire, flood, explosion, war, strike, embargo,
government authority / regulation, civil or military authority, acts or omissions of
carriers, transmitters, providers, vandals, or hackers, major system break down and data
loss beyond recover“able (a Force Majeure Event”) the time for WISHBIN's performance
will be extended for the period of the delay or inability to perform due to such
occurrence; provided, however that if WISHBIN is unable to cure that event within 30
(thirty) days of the Force Majeure Event ceasing, or such further time as may be granted
by WISHBIN, WISHBIN may terminate the Retailer/Distributor/Super Distributor's
appointment without any compensation or damages.
Injunctive Relief: WISHBIN shall be entitled to injunctive relief
in the event of
breach of the terms of these Terms and Conditions by the Retailer/Distributor/Super
Distributor to prevent or curtail any actual or threatened breach by the
Retailer/Distributor/Super Distributor of the express provisions of these Terms
Relationship: The Services rendered by the Retailer/Distributor/Super
Distributor under
this Agreement shall be provided to MOBIS“AFAR on Principle to Principle” basis, and
nothing in this Agreement creates or shall be deemed to
create the relationship of partners, a joint venture, employer-employee, or
principal-agent between the Parties. The Retailer/Distributor/Super Distributor shall
not, without WISHBIN's prior written approval, either on its invoices, letterheads
or any other place or by any other means, orally or in writing, make any statement or
representation, calculated or liable to induce others to believe that the
Retailer/Distributor/Super Distributor is the agent of WISHBIN or do any act, deed
or things to bind WISHBIN in any way in dealing with any third party (ies). The
Retailer/Distributor/Super Distributor is providing services to the customers and any
dispute with the consumer shall be sole responsibility of the Retailer/Distributor/Super
Distributor.
Notice: Any notice required to be provided hereunder by one Party to
the other shall be
given in writing and shall be delivered by
(i)personal messenger,
(ii)proof of delivery requested courier service or
(iii)facsimile. All notices shall be delivered to the address of
the Parties as provided in the Retailer/Distributor/Super Distributor Application
Form.
Assignment: The Retailer/Distributor/Super Distributor may not assign
or delegate any of
its rights or obligations hereunder without a prior written consent from WISHBIN.
Subject to the foregoing, the rights and obligations under these Terms and Conditions
shall ensure to the benefit of, and shall be binding upon, the heirs, legatees,
successors, representatives, and permitted assigns of the respective Parties.
For the purpose of this Agreement, the term Software” shall include custom built
software that is owned by WISHBIN, or software that has been licensed from third
party suppliers by WISHBIN and in relation to which WISHBIN has obtained the
right to sub license from such third party suppliers.
The Retailer/Distributor/Super Distributor shall not sublicense, assign or otherwise
transfer the said Software to any person and/or any third party and is expressly
prohibited from distributing, sublicensing, assigning, transferring or otherwise, the
Software, or other technical documentation /information pertaining thereto, or any
portions thereof in any form.
The Retailer/Distributor/Super Distributor shall not make any changes / modifications /
alterations in entire / any part of Software / Intellectual Property of WISHBIN.
Severability: If for any reason whatsoever any provision of these Terms
and Conditions is or becomes, or is declared to be, invalid, illegal or unenforceable
under applicable law, then the Parties will negotiate in good faith to agree on one or
more provisions to be substituted therefor, which provisions shall, as nearly as
practicable, leave the Parties in the same or nearly similar position to that which
prevailed prior to such invalidity, illegality or unenforceability. Such invalidity,
illegality or unenforceability shall not affect any other provisions of these Terms and
Conditions, and these Terms and Conditions shall be construed as if such invalid,
illegal or unenforceable provision had never been contained in these Terms and
Conditions, and the remaining provisions of these Terms and Conditions shall be given
full force and effect.
Amendment: No change, alteration, modification or addition to these
Terms and Conditions shall be valid unless in writing and properly executed by
WISHBIN.
Waiver: A waiver by WISHBIN in respect of a breach of a provision
of these Terms and Conditions by the Retailer/Distributor/Super Distributor will not be
deemed to be a waiver in respect of any other breach and the failure of WISHBIN to
enforce at any time a provision of these Terms and Conditions will in no way be
interpreted as a waiver of such provision.
Third Parties: Nothing in these Terms and Conditions, unless expressly
provided for herein, is intended to confer upon any person, other than the Parties
hereto and their permitted successors and assigns, any rights or remedies under or by
reason of these Terms and Conditions.
Further Actions: The Parties shall do or cause to be done such further
acts, deeds, matters and things and execute such further documents and papers as may be
reasonably required to give effect to the terms of these Terms and Conditions
Costs: The Retailer/Distributor/Super Distributor shall bear all taxes,
fees, levies and other expenses in relation to its appointment pursuant to these Terms
and Conditions.
Rights Cumulative: The rights, powers, privileges and remedies provided
in these Terms and Conditions are cumulative and are not exclusive of any rights,
powers, privileges or remedies provided by applicable law or otherwise. No failure to
exercise nor any delay in exercising any right, power, privilege or remedy under these
Terms and Conditions shall in any way impair or affect the exercise thereof or operate
as a waiver thereof in whole or in part. Similarly, no single or partial exercise of any
right, power, privilege or remedy under these Terms and Conditions shall prevent any
further or other exercise thereof or the exercise of any other right, power, privilege
or remedy.
CHANGE IN RETAILER/DISTRIBUTOR/SUPER DISTRIBUTOR :
If the Retailer/Distributor/Super Distributor is an individual, in the event of his/her
death, incapacity or inability to operate the Retail Outlet, his/her successor or
assignee shall continue to operate the Retail Outlet only after obtaining a prior
written consent from WISHBIN.
If the Retailer/Distributor/Super Distributor is a partnership or a company, in the
event of a change in control of the partnership or company, due to a change in the
partnership or change in management or majority shareholding of the company, as the case
may be, the successors in interest or permitted assigns of the partnership or the
company, as the case, may continue to operate the Retail Outlet only after obtaining a
prior written consent from WISHBIN.
TERMINATION :
These Terms and Conditions shall cease to have effect upon expiry of the Term.
Either Party hereto shall have the right to terminate the Agreement without cause by
written notice of 30 days to the other Party.
WISHBIN shall be entitled to terminate the appointment of the
Retailer/Distributor/Super Distributor by written notice of Thirty [30] days to the
Retailer/Distributor/Super Distributor in the following circumstances:
(a)the Retailer/Distributor/Super Distributor commits any breach of
any of the provisions of these Terms and Conditions and, in the case of a breach
capable of remedy, fails to remedy the same within 15 (fifteen) days after receipt
of a written notice giving particulars of the breach and requiring it to be
remedied;
(b)the Retailer/Distributor/Super Distributor at any time breaches
any obligation in relation to WISHBIN Intellectual Property;
(c)repeated failure to deposit the proceeds of transactions on a
daily basis;
(d)WISHBIN, subsequent to ascertaining the commercial viability
of continuing the appointment of the Retailer/Distributor/Super Distributor,
determines that the Retailer/Distributor/Super Distributor is not a fit person to
carry out the obligations imposed on it;
(e)the Retailer/Distributor/Super Distributor assigns its rights
and obligations under these Terms and Conditions in an unauthorized
manner; or
(f)immediately upon the occurrence of:
(g)the Retailer/Distributor/Super Distributor becomes the subject
of a voluntary petition in bankruptcy or any voluntary proceeding relating to
insolvency, receivership, liquidation, or composition for the benefit of creditors;
or
WISHBIN shall be entitled to terminate the Appointment without notice:
(a)if, by the acts or default of the Retailer/Distributor/Super
Distributor, WISHBIN suffers damage to its name and reputation;
(b)in the circumstance described in Clause 13.4 (Force Majeure);
(c)a change in control or management of the
Retailer/Distributor/Super Distributor;
(d)any event that would affect the ability of the
Retailer/Distributor/Super Distributor to perform its obligations;
(e)the Retailer/Distributor/Super Distributor is certified and
declared to be of unsound mind.
(f)any of the directors/partners/proprietor of the
Retailer/Distributor/Super Distributor are convicted of any criminal charge;
WISHBIN shall be entitled to terminate the appointment of the
Retailer/Distributor/Super Distributor by giving written notice of seven [7] days to the
Retailer/Distributor/Super Distributor, with or without assigning any reasons.
The right to terminate the appointment of the Retailer/Distributor/Super Distributor
under this Clause shall be without prejudice to any other right or remedy of WISHBIN
in respect of the breach concerned, if any, or any other breach.
Upon termination of appointment of the Retailer/Distributor/Super Distributor
(a)within Fifteen (15) days from the date of termination, should
clear all amounts due to WISHBIN under these Terms and Conditions;
(b)immediately return to WISHBIN all Confidential Information
provided to the Retailer/Distributor/Super Distributor under this Agreement;
(c)immediately return to WISHBIN all material provided to the
Retailer/Distributor/Super Distributor under this Agreement;
(d)immediately discontinue and cease to use the WISHBIN
Intellectual Property and shall immediately hand over any and all copies or
documentation of such Intellectual Property, including POPs and other manuals, the
terminal and software supplied by WISHBIN, if any;
(e)immediately and permanently remove the software or cause it to
be removed from all human and machine readable media (or other memory devices);
(f)return all originals and/or copies of the Confidential
Information, including the publicity and marketing materials in its possession;
(g)provide remote access to WISHBIN to disable any software
that WISHBIN had installed;
(h)remove all signboards, banners, glow signboards of WISHBIN
from its office and also all such material, which will indicate any association with
WISHBIN;
(i)cease to promote, market or advertise WISHBIN or its
products/services; and
(j)the Retailer/Distributor/Super Distributor shall grant
WISHBIN, its employees or agents, access to its information technology systems
for a period of Ninety (90) working days after termination.
Upon WISHBIN serving a notice of termination, or upon expiry of the Term, the
Retailer/Distributor/Super Distributor shall ensure that during the period of 1 (one)
month leading to the termination, all systems and procedures will be strictly adhered to
and all customers are handled properly. All enquiries from customers will be diverted to
WISHBIN.
Notwithstanding the above, the Retailer/Distributor/Super Distributor shall not, if so
directed by WISHBIN, discontinue the Services during the notice period and shall
continue to provide the Services as per these Terms and Conditions until indicated
otherwise by WISHBIN.
In the event of termination of these Terms and Conditions, the Parties shall settle all
claims existing between them, after reconciliation of the accounts. Thereafter, the
Retailer/Distributor/Super Distributor shall have no right or claim or entitlement of
any kind of compensation or any other payment and WISHBIN shall not, under any
circumstances, be liable or responsible, individually or collectively or fully or
partly, for any kind of loss or expenses incurred by the Retailer/Distributor/Super
Distributor including any loss of profits, opportunity cost.
INDEMNITY :
The Retailer/Distributor/Super Distributor hereby undertakes to indemnify, defend and
hold
harmless WISHBIN, its affiliates, officers, directors, employees, agents, successors
and
assignees (collectiv“ely the Indemnified Parties”) from and against all claims, damages
(special
or consequential), losses and expenses, including court costs and reasonable fees and
expenses
of attorneys, expert witnesses and other professionals, arising out of or resulting
from:
(a) any action by a third party against the Indemnified Parties that is
based on any negligent act, material omission or wilful misconduct of the
Retailer/Distributor/Super Distributor or its employees, personnel, officers or agents
and which results in:
(i) any bodily injury, sickness, disease or death;
(ii) any injury
or destruction to tangible or intangible property (including computer programs
and data)
or any loss of use resulting thereof; or,
(iii) any violation of any statute, ordinance,
or regulation;
(b)any loss, damage or prejudice suffered by any of the Indemnified
Parties due to the breach by the Retailer/Distributor/Super Distributor of any
applicable laws, by-laws, regulations and guidelines;
(c)any loss, damage or prejudice suffered by any of the Indemnified
Parties due to the Retailer/Distributor/Super Distributor representing/providing wrong
information to third parties in an unauthorized manner on behalf of WISHBIN;
(d)any loss, damage or prejudice suffered by reason of any claim or
proceeding by any third party against any of the Indemnified Parties due to the
infringement of WISHBIN Intellectual Property by the Retailer/Distributor/Super
Distributor during the provision of the Services;
(e)any loss, damage or prejudice suffered by any of the Indemnified
Parties due to any claim made by the Retailer/Distributor/Super Distributor's employees
against WISHBIN for non-compliance with any labour laws; and
(f)any misrepresentation of any representation or warranty of the
Retailer/Distributor/Super Distributor under these Terms and Conditions
Declaration :
I/We certify that the above information is correct and true to the best of my knowledge
and belief. I/We further confirm that I/We have read and understood all the terms and
conditions governing my engagement as Retailer/Distributor/Super Distributor. I/We shall
abide by these terms and conditions and do understand that these may be amended by the
Company from time to time and the same would be acceptable to me all the time as long as
I work as an Retailer/Distributor/Super Distributor. I/We confirm having received a copy
of these terms and conditions and have also perused these terms and conditions on the
website of the Company "https://www.WISHBIN.com/”. I/We shall keep myself abreast of
all the changes to be made by the Company in the terms and conditions from time to time
and the same would be obtained by me directly from the website of the Company. I/We have
fully understood that the one time registration fee paid by me is not refundable. No
cash has been paid by me to any employee of the Company.
I/we undertake to always display the rate list of the applicable charges on domestic
remittance and shall not overcharge the customers under any circumstances. I/we shall be
responsible for payment of all kinds of the taxes including the GST in respect of any
charges realised from the customers/Retailer/Distributor/Super Distributors/end users on
the domestic remittance.
I/We hereby undertake that I have resigned from all other BCs where ever I had worked
previously and am not working with any other BC or any money transfer agency
I/We further declare that I will exclusively work with WISHBIN, In respect of Money
Transfer till the pleasure of the WISHBIN Or till my services/association is
withdrawn/discontinued by the WISHBIN Or upto the time I resign from WISHBIN.
I have read and fully understood and hereby confirm to undertake, accept and abide by
the contents of these Terms and Conditions.
Communication Disclaimer:-
The Retailer/Distributor/Super Distributor hereby understands and agrees that being
a WISHBIN Retailer/Distributor/Super Distributor, WISHBIN may communicate
include communications including but not limited to voice, SMS, digital, video,
and/or any other mode of innovative communication method, as deemed fit and proper
by the Company and that these communications are considered as part and parcel of
the Services. The Retailer/Distributor/Super Distributor shall not be able to opt
out of receiving these messages and/or communication in any way whatsoever and the
Retailer/Distributor/Super Distributor hereby agrees to receive any communication
from the Company. The Retailer/Distributor/Super Distributor also understands that
the communication may include and contain advertisements.
I/we hereby also declare that I have also been apprised that these terms and
conditions
are also available on the website of the WISHBIN “–
https://wishbinsolutions.com/”
which have been duly perused by me on the website of the Company. I/We also
undertake
that and any change in the terms and conditions governing my/our appointment may not
be
notified by WISHBIN to me/us but shall be binding on me/us if the change in the
terms and conditions are made online by WISHBIN. I/We undertake to keep
myself/ourselves updated in respect of change in the Terms and Conditions
initiated/made
by WISHBIN in its Website-https://wishbinsolutions.com/.
