Definitions

In this Agreement, unless the context otherwise requires, the following expressions shall have the meanings assigned to them below:

1. “Applicable Law” includes all statutes, enactments, acts of legislature or parliament, ordinances, rules, bye-laws, regulations, notifications, guidelines, policies, directions, directives and orders, requirement or other governmental restrictions or any similar form of decision of, or determination by, or any interpretation, policy or administration, having the force of law of any of the foregoing, of any government, statutory authority, tribunal, board, court having jurisdiction over the matter in question.
2. “Business(es)” shall mean the entities which onboard themselves on the Platform, for the purposes of availing Facilities, from time to time.
3. “Business Bank Account” shall mean the bank account which is submitted on the Platform by the Business as part of the Registration Process, for the purpose of acceptance of the Facility Amount, making repayments, etc. and/or any other banking transactions.
4. “Business Day” means, unless specified otherwise, a day (not being holiday declared by the Platform) on which the BillMart is open for business. For the purpose of settlement which requires involvement of bank personnel, business day means a day on which banks are generally open for business.
5. “Confidential Information” means all information (whether in written, oral, or electronic or other format) which relates to the operational, technical, financial and business affairs, customers, subscribers, Financer, Business, service providers, services, developments, operations, processes, data, trade secrets, design rights, intellectual property, methodologies, formulae, flow charts, know-how and personnel of the Parties which is disclosed to or otherwise learnt by the receiving Party in the course of or in connection with this Agreement (including without limitation such information received during negotiations, site visits and meetings in connection with this Agreement) and that should be reasonably understood by the receiving Party to be proprietary and confidential to the discloser, or to a third party which are not available in public domain or public at large.
6. “Deal” shall mean a transaction successfully undertaken and agreed by and between the parties like Business, the Financer, and such other parties, as the Transaction Documents may provide, in relation to the Facility pursuant to details provided / selected / accepted by the parties using features & functionalities on the Platform for the particular set of transactions including Facility Amount, tenure and such other details and specific terms of the Financer and in accordance with the terms of this Agreement and other Transaction Documents.
7. “Direct Fund Transfer” means the mechanism where the Financer and Businesses transfer their fund obligations in accordance with the Transaction Documents directly to each other.
8. “Facility” shall mean a facility being provided by the Financer to the Business through the Platform in accordance with the terms of this Agreement and includes supply chain financing, sales bill discounting, purchase Bill discounting, distributor financing, purchase order financing, or such other facilities which may be allowed by BillMart to be offered through the Platform.
9. “Facility Amount” shall mean the amount of Facility as per respective Transaction Documents.
10. “Facility Request” shall mean the request raised by a relevant Business on the Platform for availing a Facility by uploading relevant information and documents, wherever necessary, on the Platform or in such manner as specified in the relevant Facility Agreement.
11. “Financer” means such persons or entities registered with the Platform, engaged in providing Facility/ies through the Platform in accordance with the Terms and Conditions agreed to between Platform and Financer.
12. “Facility Agreement” shall mean an agreement, by whatever name called, executed between the Financer, Business, and such other parties as specified in the Transaction Documents, containing the general Terms and Conditions of the Facility.
13. “Financer Bank Account” shall mean the bank account, the details of which have been submitted on the Platform by the Financer including specific bank account for a relevant Business or group of Businesses as a part of the Registration Process, for the purpose of receiving repayments, etc. with respect to the Facility extended through the Platform.
14. “Governmental Authority” includes any nation or government, any state or other political subdivision thereof; any entity, authority or body exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to any government, including any government authority, agency, department, board, commission or instrumentality of any nation or any political subdivision thereof; any court, tribunal or arbitrator; and any self-regulatory organization; and includes the Securities and Exchange Board of India, recognized stock exchanges or quotation systems, and the Reserve Bank of India.
15. “Material Breach” shall have the meaning ascribed to the term in Clause 13.1 of this Agreement.
16. “Platform” shall have the meaning ascribed to such term in Recital A.
17. “Platform Service Charges” shall mean various fees payable to Platform by the Service Recipient for using the Services, as provided in the Registration Process, which may be modified by BillMart at its sole discretion from time to time and published on the Platform or as agreed between the parties.
18. “Privacy Policy” means the privacy policy of the Platform and BillMart, formulated in accordance with the Applicable Laws, as appearing in the Platform and as amended/updated by BillMart from time to time.
19. “RBI” shall mean the Reserve Bank of India.
20. “Registration Process” means the process of registration and onboarding on the Platform of the Service Recipient inter alia involving submission of the relevant information sought by the Platform, acceptance of the Platform Service Charges, uploading of required documents, approval of Service Recipient as per the eligibility criteria of the Platform and including execution of this Agreement.
21. “Sanction Letter” shall mean such letter issued by the Financer to the relevant Business indicating general Terms and Conditions for availing the Facility and as revised from time to time by the Financer.
22. “Services” shall mean such services offered by Platform to Business, including facility to create User Account on the Platform, to place Facility Requests for availing Facility/ies, and such other ancillary services provided by the Platform from time to time.
23. “Tax” means all forms of present and future taxes (including but not limited to indirect taxes such as goods and service tax, value added tax (if applicable) or other similar taxes), deductions, withholdings, duties, imposts, levies, cesses, fees, charges, social security contributions and rates imposed, levied, collected, withheld or assessed by any Governmental Authority or other taxing authority in India and any interest, additional taxation penalty, surcharge, cess or fine in connection therewith and “Taxes” shall be construed accordingly.
24. “Transaction Documents” means this Agreement, Sanction Letter, Facility Agreement, documents provided for raising Facility Request, Privacy Policy, Terms and Conditions, specific document submitted by the relevant Business as per requirement of the Financer, documents contemplated in this Agreement and such other document issued / identified as a transaction document by the Platform.
25. “User Account” shall have the meaning ascribed to the term in Clause 4.2.

Interpretation

In this Agreement, unless the context otherwise requires:

1. The term “Person” includes any individual, firm, limited liability partnership, corporation, government, state or agency of a state or any association, trust, joint venture, consortium or partnership (whether or not having separate legal personality) or two or more of the foregoing.
2. Words of either gender are deemed to include the other gender.
3. words using the singular and plural number also include the plural and singular number respectively.
4. the terms “hereof”, “herein”, “hereto” and derivative or similar words refer to this entire Agreement.
5. all references in this Agreement to Schedules, Clauses, Sub-Clauses, Paragraphs or Sub-paragraphs shall be construed as reference respectively to the Schedules, Clauses, Sub-clauses, Paragraphs and Sub-paragraphs of these presents.
6. headings, sub-headings and bold typeface are only for convenience and shall not affect the construction of this Agreement.
7. the term days, unless otherwise specifically referred to as the 'business days', shall means calendar days.
8. A reference to a right or obligation of any two or more persons confers that right, or imposes that obligation, as the case may be and as the context may require, jointly and severally.
9. “consent” of any Party shall always mean prior written consent.
10. Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by including the day on which the period commences and including the day on which the period ends and by extending the period to the next Business Day if the last day of such period is not a Business Day; and whenever any payment is to be made or action to be taken under this Agreement is required to be made or taken on a day other than a Business Day, such payment shall be made or action taken on the next Business Day.
11. Reference to any legislation or law or to any provision thereof shall include references to any such law as it may, after the date hereof, from time-to-time, be amended, supplemented or re-enacted, and any reference to a statutory provision shall include any subordinate legislation made from time to time under that provision, and
12. References to the word “include” or “including” shall be construed without limitation.

Scope of Services

In this Agreement, unless the context otherwise requires:

1. The Service Recipient hereto agrees to be registered and onboarded on the Platform subject to completion of the Registration Process and to avail the Services offered by BillMart in accordance with the Terms and Conditions of this Agreement.
2. Subject to Platform's review of the details and documents submitted by the Service Recipient during the Registration Process, BillMart shall register and onboard the Service Recipient on the Platform.
3. After completion of the Registration Process, BillMart shall provide the Services to the Business and in consideration of availing the Services, shall pay to BillMart, the Platform Service Charges, as applicable from time to time.
4. It is hereby expressly clarified and agreed that BillMart merely provides the Platform to facilitate providing and availing Facilities between the Financiers and Businesses.
5. The Service Recipient confirms that BillMart does not have any beneficial interest in such Facility.
6. It is hereby further clarified and agreed that BillMart is not underwriting / guaranteeing the performance of the obligations neither by any of the Businesses nor the Financer herein. The Service Recipient agrees that it shall have no recourse whatsoever against BillMart for any default / non-compliance by the relevant Businesses or Financers, as the case may be.

Conditions for use of platform and availing services

1. It is clarified that the continuity of registration of the Service Recipient on the Platform shall be subject to the Service Recipient fulfilling the due diligence and other requirements of BillMart from time to time. BillMart shall have the right to call upon the Service Recipient, at any time, to submit such information or documents as it may reasonably require to satisfy itself that the Service Recipient is entitled to be registered and continue to be registered on the Platform. It is hereby expressly clarified that BillMart shall be entitled to terminate this Agreement and the registration of the Service Recipient on the Platform in accordance with the provisions of Clause 11 in the event BillMart is of the opinion that the Service Recipient fails to satisfy the requirements for registration to the sole satisfaction of BillMart.
2. Pursuant to completion of the Registration Process, the Service Recipient shall be onboarded by BillMart on the Platform. The Service Recipient shall be provided with a unique online user account(s) associated with the Platform and access to such unique online user account(s) (“User Account”), in order to undertake the relevant actions for
3. All parts of the Platform are protected by copyrights, trademarks, and other proprietary rights, as a collective work or compilation, pursuant to laws and international conventions ("Intellectual Property Rights"). The Platform owns all right, title and interest in the Platform and any related improvements, enhancements, modifications and derivative works of them and all Intellectual Property Rights in all of them. Service Recipient rights to use the Platform are limited to those expressly granted in these Terms.
4. The Platform may from time to time modify the terms of this agreement and the changes will become effective on the date published or as notified.
5. The continued use of the Platform after the effective date of any change will be deemed acceptance of the modified Terms.
6. The Service Recipient agrees and confirms that, on being onboarded as above:
   1. The Service Recipient shall comply with the Privacy Policy of the Platform, which the Service Recipient hereby declares to have read and understood.
   2. The Service Recipient shall keep the User Account and all related details relating to the User Account including the user identification and the password secure and shall not share with any unauthorised person.
   3. The Service Recipient shall access the Platform only through the User Account provided to them for availing the Services. Any usage of the User Account by the Service Recipient shall be construed to have been undertaken by it through its authorised personnel.
   4. The Service Recipient agrees and acknowledges that BillMart shall, in no way, be held responsible or liable if the Service Recipient incurs any loss as a result of compromise of the User Account, including, in case of failure of the Service Recipient to follow this Agreement, the Privacy Policy and/or platform documents, generally accepted usage conditions for such platforms or transactions or in case of access by an unauthorized person.
   5. The Service Recipient further acknowledges that any action taken on the Platform using the User Account shall be deemed to be the act(s) of the Service Recipient alone and the Service Recipient shall solely be responsible for any losses arising out of any transaction using the User Account on the Platform and shall fully indemnify and hold BillMart harmless in respect of the same.
7. The Service Recipient shall pay Platform Service Charges at such rates, frequency and in such manner, as specified and displayed on the Platform which can be accessed by User Account or as agreed by the Parties in writing. The Service Recipient shall, at all times, be deemed to be aware of applicable Platform Service Charges being available on the Platform. If the Service Recipient delays the payment of Platform Service Charges, BillMart reserves the right to suspend the Services under this Agreement.

Provision/Availing of Facility

1. Service Recipient may avail one or more Facilities through the Platform, subject to the terms of this Agreement and respective Facility Agreement, by raising a Facility Request.
2. The Financer shall have the right to access the details of the Service Recipient available on the Platform, including the details of their owners/partners/directors/beneficial owners/ authorised representatives and other documents which enables the Financer to assess the creditworthiness of Service Recipient, in compliance with provisions of Applicable Laws and/or its due diligence. The Service Recipient hereby grants explicit consent for the same.
3. The Service Recipient may be required to submit additional information, documents, other formalities or pay additional fees to avail one or more Facility(ies) with the relevant Financer on the Platform.
4. The Service Recipient agrees that the Platform merely facilitates provision of Facility and thereby is involved in the transaction solely for the purpose of identification of Parties therein and identification of transaction details thereof executed on the Platform.
5. It is agreed by the Service Recipient that upon existence of or occurrence of a dispute between the Financer and the Service Recipient and/or its counterparty or otherwise, in relation to the Facility, Platform shall not be made a party to any legal proceedings initiated or pursued by any such party and that Platform shall have no liability whatsoever in relation to such disputes.

Flow of Money

1. Platform provides the facility of Direct Fund Transfer for the flow of money between the Financer and Service Recipient for the transactions carried out on the Platform.
2. The Direct Fund Transfer mechanism operates as follows:
   1. The bank details of the relevant Businesses that are submitted by Business on the Platform are shared with Financers for them to make the disbursement directly into the Business Bank Account.
   2. The bank details of the Financer that are submitted by Financer on the Platform are shared with relevant Businesses for them to make repayment directly into the Financer Bank Account.
   3. The Financer will, disburse the said amount directly into the Business Bank Account.
   4. The Business (or any other person on behalf of Business) shall repay the Facility Amount, relevant interest, delay charges, other charges and costs or any other amounts due as per the Facility Agreement and/or transaction documents directly in the Financer Bank Account and the Business acknowledges that there are no concerns on the same and shall raise no dispute on the same.
   5. Unless the Business intimates to the Platform otherwise, the disbursement amount will be deemed to be received by the Business. Unless the Financer intimates to the Platform otherwise, the repayment or any amount due will be deemed to be received by the Financer.
   6. In cases where disbursement amount is not fully received by the Business, the Business shall report non-receipt of the disbursement amount to the Platform. In such cases, the Platform shall intimate the Financer. In case Financer is not able to confirm the disbursement of the said funds, required actions can be carried out as per the Facility Agreement.
   7. In the cases where Financer reports the non-receipt of the repayment amount, the Platform shall intimate the Business. In case Business is not able to confirm the repayment of the said fund, the Financer may initiate the required actions as per the Transaction Documents and Facility Agreement.
3. In case Business is not able to make the repayment, Platform may mark the same Business as a default party on the Platform, shall inform other Financers, Businesses and restrict the access of such Business to the Platform.
4. The Platform shall issue invoice periodically for the relevant Platform Service Charges applicable to Service Recipient, subject to the applicable taxes and deduction and the same needs to be paid by the Service Recipient within 7 days of the invoice date to the Platform for the continuation of the Services.

Dispute Resolution Between Financer and Business

1. Any dispute between the Financer and Business shall be governed by the Facility Agreement and/or Transaction Documents between the parties.

Representation and Warranties

1. The Service Recipient hereby represents and warrants (which representation and warranty shall be valid throughout the Term of the Agreement) as follows:
   1. It is validly existing under the laws of India and has full right, power, capacity and authority to enter into this Agreement and perform its obligations set out herein.
   2. It has taken all necessary actions (corporate, statutory or otherwise) to authorize the execution, delivery and performance of this Agreement and it has obtained all the necessary permissions, consent and approvals as may be required under Applicable Law or otherwise for the execution, delivery and performance of this Agreement.
   3. It has full authority, capacity and all requisite permission, licenses, approvals, authority, consents, etc. to avail Facility on the Platform.
   4. That no order has been made / petition presented or meeting convened for bankruptcy, dissolution, its winding up or for the appointment of a provisional liquidator, corporate insolvency resolution professional and no receiver has been appointed in respect of the whole or any part of its property, assets and/or undertakings under any Applicable Laws, including but not limited to Insolvency and Bankruptcy Code, 2016 or in the event such order, petition, appointment or winding up exists, the same has been stayed, dismissed, struck out or discharged, as the case may be, prior to the execution of this Agreement.
   5. The obligations assumed under this Agreement are legally valid, binding and enforceable against it in accordance with the terms of this Agreement.
   6. That the Service Recipient shall, perform all obligations as captured in this Agreement and shall perform the other obligations set out in the Transaction Documents and that it shall be solely liable for any breach of this Agreement and that upon occurrence of such breach and/or Material Breach, the consequence of Material Breach as set out in this Agreement, as applicable to the Service Recipient shall apply.
2. The Business hereby further represents and warrants (which representation and warranty shall be valid throughout the Term of the Agreement) as follows:
   1. That it is not categorised/ declared as a Non-Performing Asset (NPA) or a wilful defaulter or non-co-operative borrower by the Reserve Bank of India (RBI) or entities regulated by the RBI, and no adverse action or debt-recovery action such as notice for enforcement of security interest, etc. has been initiated against the Business. It also undertakes and provides warranty that in case any such action is taken against Business in the future, it shall immediately stop availing Facility and duly inform the Platform.
   2. That it shall not avail Facility on the Platform in respect of any underlying transactions which are not genuine transactions in any regard or there exists any kind of dispute.

Undertaking and Obligations

The Service Recipient undertakes the following:

1. The Service Recipient confirms and undertakes that the transaction initiated and documents uploaded on the Platform to avail Facility is arising out of a bona fide and legal business undertaken by the Service Recipient. The Service Recipient further confirms that no agreement/arrangement outside the Platform in relation to the Facility requested has been made or any other loan/Facilities have been obtained against the Facility requested outside the Platform from any bank and/or financial institution and/or any other entity
2. The Service Recipient undertakes that it shall not solicit from any Financer, with which it transacts on the Platform, the Facilities that are offered by such Financer on the Platform or other facilities with similar features, Terms and Conditions.
3. The Service Recipient hereby acknowledges and undertakes that once the Facility is availed by the Service Recipient, it shall not dispute the aforesaid transactions undertaken through the Platform on the basis of quality, quantity of the underlying goods or services or otherwise or any other issue whatsoever. Further, the Service Recipient shall not be entitled to dispute the payment of amounts due to the Financers and that the Financers shall have and continue to have absolute charge on the underlying security interest, if any, until the discharge of the Service Recipient's obligations to pay the due amount to the Financers
4. The Service Recipient agrees to abide by all the terms of the Transaction Documents, including timely repayment of such amounts as may be due under any such documents.
5. The Service Recipient agrees to adhere to the process flow, timelines and procedures as set out by the Platform and the other Transaction Documents, for carrying out all the activities and further agrees to undertake all the actions as required to be undertaken in accordance with Transaction Documents and further authorizes Platform to undertake the actions as contemplated in this Agreement.
6. The Service Recipient represents and covenants not to use the Platform for placing Facility Request in relation to any of its related party, sister concern, affiliate or an entity which is part of the Business's group (“Associated Party”) or can be considered as related party or persons acting in concert as per the applicable laws without disclosing it to the Platform and/or Financer.
7. The Service Recipient agrees and acknowledges that the process and operations as set out in this Agreement and other Transaction Documents are just summary of the process/operations. The Service Recipient agrees that Platform shall be entitled to restructure/amend its Platform including any process, operations and other rules from time to time.
8. By continuing to access or use the Platform and the Services, the Service Recipient shall be deemed to agree to the conduct of BillMart with respect compliance with Applicable Laws in relation to Deal(s) undertaken through the Platform and that it shall be bound by the terms of this Agreement, amended Transaction Documents and/or other Transaction Documents. In case the Terms and Conditions contained in the Transaction Documents are amended in a manner unacceptable to the Service Recipient, the Service Recipient shall have the right to discontinue the arrangement with the Platform, on a prospective basis only, subject to payment of all outstanding Platform Service Charges, and other amounts due under this Agreement.
9. The Service Recipient hereby agrees to pay the Platform Service Charges as applicable and raised by the Platform.
10. The Service Recipient authorizes Platform, for the purpose of conducting/verifying the credit assessment of the Service Recipient, to check and/or verify the credit rating / grading / score of the Service Recipient with credit information companies such as TransUnion CIBIL Limited, CRILC, etc., in compliance with Applicable Laws.
11. Service Recipient hereby confirms that Platform may be required to collect, possess, store and process personal information of the Service Recipient and its directors/officers/employees, as the case may be for the purpose of conducting its operations as stated in this Agreement and to enable the Service Recipient to use the Platform. The Service Recipient, therefore, hereby gives explicit consent to Platform to collect, possess, store and process the relevant information (including personal information, as the case may be) of the Service Recipient and its directors/officers/employees, as the case may be, until the time such consent is expressly waived in accordance with Clause 9.12 below. Personal information would include details like name, contact details, address, financial information, etc. Further, the Service Recipient agrees and authorises the Platform to share the aforementioned details with regulators, Government Authorities having powers to seek such information, law enforcement agencies, investigating agencies and similar entities, in accordance with Applicable Laws.
12. The Service Recipient shall have the option to give or deny consent for use of specific data, restrict disclosure to third parties, data retention, revoke consent already granted to collect the personal data and if required, require Platform to delete or forget the data, with a reasonable notice to the Platform. The Platform, subject to satisfaction that the Service Recipient does not have any outstanding obligations under this Agreement and/or any Financing Documents, shall respond to the Service Recipient within a reasonable time. Service Recipient understands that continued use of the Platform by the Service Recipient is subject to continuing consent, and that denial or revocation of such consent may lead to discontinuation of services from the Platform to the Service Recipient.
13. Service Recipient hereby confirms that it has read and understood the Privacy Policy of the Platform, and agrees to the Terms and Conditions of this agreement
14. The Service Recipient hereby agrees and undertakes (a) that any and all the transaction(s) undertaken and/or approved by the User Account of the Service Recipient either through the Service Recipient directly or through any personnel / agent of the Service Recipient on the Platform shall be deemed to be undertaken by the consent and under the authority of the Service Recipient only; (b) to discharge all financial obligations relating to such transactions undertaken by the Service Recipient including repayment of Facility Amount or payment of other amounts under the Transaction Documents; and (c) that any action taken on the Platform by Service Recipient's representatives, shall be deemed to be acts of Service Recipient alone.
15. The Service Recipient hereby agrees and undertakes to immediately inform BillMart and/or Financers about any downgrade of its credit rating / grading or material negative change in credit score of the Business. Further it agrees to inform BillMart and/or Financers about any material negative change in credit score of its owner / partners / directors.
16. The Service Recipient hereby agrees and undertakes to immediately inform BillMart and/or Financers about any material change in line of business, change in ownership, partners / director change, going concern or any other natural or other risks affecting the Service Recipient.
17. The Service Recipient shall provide all such details as may be required by BillMart and/or Financer for the purpose of ensuring adequate KYC processes and due diligence.
18. The Service Recipient covenants that in case it is declared as an NPA or wilful defaulter or non-co-operative borrower by the RBI or any entity regulated by the RBI, it shall forthwith inform the Platform and/or relevant Financers with which the Service Recipient has executed a Facility Agreement.
19. The Service Recipient undertakes to not do or cause to be done any act whereby or by reason whereof the reputation and goodwill of BillMart and/or Financer is adversely affected in any manner whatsoever.
20. The Service Recipient shall ensure that they are compliant with the provisions of the Applicable Laws and shall ensure that they shall at all times conform to Applicable Laws. In the event the Service Recipient fails to comply with any Applicable Laws, Platform shall have the right to terminate this Agreement. Further, the Service Recipient undertakes that the Service Recipient shall indemnify Platform against all costs and losses which Platform may be required to incur as a consequence of Service Recipient's failure to comply with the Applicable Laws.
21. The Service Recipient shall fulfil its respective obligations under this Agreement and other Transaction Documents in a timely, diligent, competent and professional manner.
22. The Service Recipient shall observe and conform to standards of business ethics and honest business practices.
23. The Service Recipient shall only use the Platform through the User Account provided to the Service Recipient or communicate using the registered email ID. The Service Recipient is aware that electronic communications involve certain risks including unauthorized alteration of data and/ or unauthorized access by third parties thereof. BillMart may (but shall not be obliged to) act as per the actions on the Platform without inquiry as to the identity or authority of the Service Recipient or the authorized person giving or purporting to give any instruction or as to the authenticity of any electronic message and may treat the same as fully authorized by and binding on the Service Recipient, as the case may be. The Service Recipient shall indemnify BillMart and keep them at all times indemnified from and against all actions, suits, proceedings, costs, claims, demands, charges, expenses, losses and liabilities howsoever arising in consequence of or in any way related to them having acted or omitted to act in accordance with or pursuant to any instruction.
24. When using the Platform in conjunction with other third party services, Service Recipient will comply with the terms of service of such third party services including any separate fees or charges imposed by the provider of the third party service.
25. Service Recipient may be able to access and view third party websites / apps through Platform. The links are provided for your convenience only and may not be updated at all times.
26. Service Recipient agree that your access to any third party website is governed by the terms and conditions of that website and has no relation to the Terms of the Platform. Service Recipient agree and understand that it is your responsibility to comply with the Terms and Conditions of that website as well.
27. Service Recipient will not, and ensure that the Permitted Users of Service Recipient will not, use the Platform or user information for any use or purpose that:
    1. is obscene, libellous, blasphemous, defamatory, inciting hatred, terrorism, or any similar offence.
    2. infringes or misappropriates the intellectual property rights or violates the privacy rights of any third party (including without limitation, copyright, trademark, patent, trade secret, or other intellectual property right, moral right, or right of publicity).
    3. contains any data that You do not have a right to upload into the Platform.
    4. is in violation or may encourage any manner of acting that would violate any applicable local, state, national and foreign laws, treatises, and regulations, or
    5. may drive or encourage any third party to do any of the above.
    6. use the Platform for non-business related purposes or abuse the Platform.
    7. resell, transfer, grant others permission to use the Platform, pledge, lease, rent, or share Your rights under these Terms (including without limitation to any of your affiliates).
    8. modify, remove, or amend Company's name or logo, update, reproduce, duplicate, copy all or any part of the Platform.
    9. make any of the Platform or Your user information available to anyone other than your employees and consultants for use for your benefit as intended pursuant to these Terms, or use any Platform for the benefit of anyone other than You.
    10. use the Platform in any way that restricts or inhibits the use of the Platform.
    11. access or attempt to access any of the Company's systems, programs or data that are not made available for public use, or attempt to bypass any registration processes on the Platform or any of the Platform's security and traffic management devices, or
    12. attempt to decompile, disassemble, re-engineer or reverse engineer the Platform or otherwise create or attempt to create or permit, allow, or assist others to extract source code of the Platform, its structural framework or allow or facilitate a third party, to violate or infringe any rights of the Company.
    13. transmit any unnecessary information or unwanted electronic communication viz. spam to other users of the Platform.
    14. misuse your right to the Platform by introducing viruses, trojans, worms or other material likely to cause harm to the Platform.
28. If the Platform reasonably believes that a problem with the use of the Platform may be attributable to Service Recipient use of the Platform, Service Recipient must cooperate to identify the source of the error and resolve the same.
29. Service Recipient may not access or use the Platform if you are a direct competitor of the Company, or for monitoring the Platform's availability, performance, or functionality, or for any other benchmarking or competitive purposes.
30. Service Recipient acknowledge that third party services are available on the Platform. We may have formed partnerships or alliances with some of these third parties from time to time in order to facilitate the provision of certain services to you. However, you acknowledge and agree that at no time are we making any representation or warranty regarding any third party's services, nor will we be liable to you or any third party for any consequences or claims arising from or in connection with such third party including, and not limited to, any liability or responsibility for, death, injury or impairment experienced by you or any third party. Service Recipient hereby disclaim and waive any rights and claims you may have against us with respect to third party's services.

Material Breach and Consequences of Material Breach

1. The following actions or failure of action, as the case may be, shall be considered to be material breach of this Agreement (“Material Breach”):
   1. Breach by the Service Recipient for any of its representations and warranties and/or the undertakings and obligations mentioned in this Agreement.
   2. Revocation, termination or suspension of material license or authorization relating to the business activities of the Service Recipient.
   3. Compulsory acquisition, nationalization or expropriation of material assets of the Service Recipient.
   4. The Service Recipient has voluntarily or involuntarily become the subject of proceedings under any bankruptcy or insolvency law and/or the Service Recipient passes resolution for voluntary winding up.
   5. Further, the following shall also constitute Material Breach with reference to the Service Recipient:
      1. The Service Recipient enters into any agreement/arrangement in violation of this Agreement, specifically, Clauses 9.1 and 9.2 hereof
      2. Failure of the Service Recipient to comply with the terms of Transaction Documents.
      3. Failure to disclose any event leading to categorisation / declaration as Non Performing Asset (NPA) entity or wilful defaulter or non-cooperative borrower by the RBI or entities regulated by the RBI, or such other disclosures as may be mandated under this Agreement.
2. In case of a Material Breach by the Service Recipient, Platform shall have the right to take one or more of the following actions (“Consequence of the Material Breach”):
   1. restrict the access of such Service Recipient on the Platform, as per the Clause 11.1;
   2. seek indemnity and other liquidated damages from the Service Recipient for the losses suffered by Platform pursuant to such breach.
   3. without prejudice to the above, in case of Material Breach by a Business.
   4. cancel and/or withhold any and all undrawn Facility.
   5. accelerate and demand all such sums as due under and in terms any or all of the Transaction Documents.
   6. exercise such other remedies as permitted or available under the Transaction Documents and/or Applicable Laws.
3. Notwithstanding that the breach is not a Material Breach, the Service Recipient further undertakes to indemnify Platform against any damages or losses caused or likely to be caused from the breach of the Service Recipient to comply with the terms of this Agreement including the representations and warranties and the undertakings and obligations set out herein.

Termination

1. Termination by Platform: This Agreement may be terminated by Platform in such an event:
   1. Platform has elected to discontinue, with or without reason, access to the Platform, the Services or any part thereof, or
   2. The provision of the Services to the Service Recipient by Platform is, in the opinion of Platform, no longer commercially viable or in any way detrimental to Platform or its business, or
   3. The Service Recipient commits a Material Breach of any provision of this Agreement or any of the Transaction Documents.
2. Automatic termination: This Agreement shall terminate with immediate effect in the event Service Recipient is declared bankrupt or becomes the subject of proceedings for bankruptcy, dissolution or liquidation, or is unable to pay its debts and liabilities as they become due and a petition for winding up of Service Recipient is admitted by a court of competent jurisdiction and a provisional liquidator or liquidator is appointed by such court with respect to Service Recipient.
3. Notwithstanding any of the Clauses which may lead to termination of this agreement; the obligations and liabilities of the Service Recipient under this Agreement or any other Transaction Document, including the payment of Platform Service Charges in consideration of the Services rendered by Platform up to the date of termination with respect to ongoing Facilities shall continue to remain effective. Accordingly, this Agreement shall stay in force, to the extent required to ensure that the Service Recipient fulfil their obligations under ongoing Facilities. Further, termination of this Agreement shall not prejudice the Facility Agreement or any other document executed thereunder, unless to the extent explicitly provided under the concerned Facility Agreement.
4. Survival: The termination of this Agreement shall not affect those provisions hereof that by their nature are intended to survive such termination including, but not limited to Clause 6 (Flow of Money), Clause 11 (Termination), Clause 13 (Indemnity), Clause 14 (Confidentiality Obligations), Clause 15 (Governing Law and Jurisdiction), Clause 16 (Dispute Resolution) and Clause 17.2 (Notices).

Force Majeure

1. Neither Party shall be considered to be in default of performance of its obligations under the terms of this Agreement or for indemnification provided for hereunder, if such performance is prevented or delayed for any cause beyond the reasonable control of the Party affected, including war, hostilities, revolution, riots, civil commotion, strikes, lockouts, lockdowns, epidemic, pandemics, fire, explosion, act of God, any act of Government, espionage, network failure or failure of electronic transmission, default or failure of / by any third party or any other cause beyond the control of the concerned Party (the “Force Majeure Event”). The Party affected by Force Majeure Event shall continue to perform its respective obligations under this Agreement, which are not affected by the Force Majeure Event and may take steps as are reasonably necessary to remove the causes resulting in Force Majeure, if possible, within its control and to mitigate the effects/consequences thereof. Each Party shall inform the other Party of any occurrence, event or incident of which it becomes aware which might adversely affect its ability to perform its obligations under this Agreement, including without limitation, any Force Majeure Event which could reasonably be expected to adversely impact the day-to-day functioning or the business of the Party. In the event, the Force Majeure Event shall continue for a period more than 30 (thirty) days from the date of occurrence of such event, the Party affected by such Force Majeure Event shall be entitled to terminate this Agreement subject to Clause 11 (Termination). It is further agreed by the Business that its obligation related to Repayment Amount or Recourse Repayment Amount are not subjected to the Force Majeure Event and those obligations shall continue as per the Facility Agreement and Transaction Documents.

Indemnity

1. Service Recipient shall defend the Platform, its employees, directors, shareholders and affiliates and shall always keep and hold Platform harmless against any liabilities, costs, charges, expenses (including reasonable attorney fees), claims, demands, actions, direct damages or losses of any nature whatsoever which may, at any time, be incurred or suffered by or imposed on Platform as a result of any breach by the Service Recipient of the Terms and Conditions contained under this Agreement.

Confidentiality Obligations

1. The Parties agree that Platform's Confidentiality Obligations shall be as per the Privacy Policy of the Platform and as amended from time to time.
2. The Parties agree that notwithstanding Clause 14.1, Platform is allowed to use or share data, information, documents provided by Service Recipient and/or sourced from the third party or business partners, with Financers or any other third parties as may be required by the Platform as it is or with analysis, graphical or other representation, opinion, etc. for the purpose of providing Services on the Platform, in accordance with Applicable Laws.
3. The Parties shall not disclose the Confidential Information to or permit access by any third party without the prior written consent of the disclosing Party. The receiving Party shall be permitted to disclose the Confidential Information to its/their employees, agents, advisors, insurance agents, legal service providers, Financers, other service providers and sub-contractors (“Representatives”) on a need-to-know basis, provided the receiving Party ensures that the Representatives agree to be bound by similar non-disclosure obligations and sign a nondisclosure or similar agreement in content substantially similar to this Agreement. The receiving Party shall be responsible for any breach of this Agreement by its Representatives and further agrees to indemnify the disclosing Party at all times for any loss suffered on account thereof. The Parties shall not use any Confidential Information of the other Parties for any purpose other than as contemplated under this Agreement. The Parties shall take all reasonable measures to maintain the confidentiality of all such Confidential Information of the other Parties in its possession or control, which shall in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, the obligation of confidentiality shall not apply to any disclosure (i) of information that is in or enters the public domain other than by reason of a breach by a Party; or (ii) of information that was in the possession of the receiving Party prior to disclosure under this Agreement, as evidenced in writing, except to the extent that such information was unlawfully appropriated; or (iii) of information which has been independently developed as a result of the efforts of receiving Party and not as a direct or indirect result of the disclosure of Confidential Information by the disclosing Party; or (iv) of information that was rightfully disclosed to it by a third party, the disclosure of which to the receiving Party does not, violate any contractual or legal obligation such third party has to the disclosing Party with respect to such information that the receiving Party is aware of. The receiving Party may make disclosures required by law or court order provided the receiving Party uses diligent reasonable efforts to limit disclosure and has allowed the disclosing Party to seek a protective order or appropriate remedy. The provisions of this Clause shall survive termination of this Agreement and shall continue in full force and effect even after the termination of this Agreement.

Governing Law and Jurisdiction

1. This Agreement shall be governed by and construed in accordance with the laws of India.
2. The courts at Mumbai shall have the jurisdiction over disputes arising out of this Agreement.

Dispute Resolution

1. The Parties agree to negotiate in good faith to resolve any dispute between them arising out of or relating to this Agreement.
2. If, within 30 (thirty) Business Days after one Party has notified the other Party/ies in writing of such a dispute, the Parties are unable to resolve the dispute as aforesaid, the disputes or differences shall be referred to final and binding arbitration at the request of any of the disputing Parties upon written notice to that effect to the other Parties. In the event of such arbitration:
   1. The arbitration proceedings shall be conducted in accordance with the provisions of the (Indian) Arbitration and Conciliation Act, 1996 (“Arbitration Act”), in force at the relevant time (which is deemed to be incorporated into this Agreement by reference).
   2. All proceedings of such arbitration shall be in the English language and all documents submitted (including those submitted as filings, evidence or exhibits) shall be certified English translations if in a language other than English. The venue and seat of the arbitration shall be Mumbai.
   3. The arbitration shall be conducted by a sole arbitrator, who shall be appointed by the mutual consent of the disputing Parties. In the event the disputing Parties are unable to mutually decide on the sole arbitrator, the appointment of the arbitrator shall be in accordance with the Arbitration Act.
3. Nothing shall preclude a Party from seeking interim equitable or injunctive relief, or both, from any court having jurisdiction to grant the same. The pursuit of equitable or injunctive relief shall not be a waiver of the duty of the Parties to pursue any remedy for monetary losses through the arbitration described in this Clause of Dispute Resolution.

Disclaimer

1. The Platform may be under constant upgrades, and some functions and features may not be fully operational.
2. Service Recipient agree and understand that the information displayed on the Platform is for information purposes only and does not to amount to any advice.
3. We disclaim any liability arising due to the vagaries that can occur in the electronic distribution of information.
4. We do not, in any way, endorse any information or service offered or described herein. In no event shall we be liable to Service Recipient or any third party for any decision made or action taken in reliance on such information.
5. Service Recipient assume all responsibility and risk with respect to your use of the Platform. The services are available "as is," and "as available". Service Recipient further understand and agree that, to the fullest extent permitted by law, we disclaim all warranties, representations, and endorsements, express or implied, with regard to the Platform, including, without limitation, implied warranties of title, merchantability, non-infringement and fitness for a particular purpose.
6. We use reasonable efforts to make available the Platform for a continuous and uninterrupted use. We do not warrant or in any way guarantee, use of the Platform will be uninterrupted or error-free or that errors will be detected or corrected. We do not assume any liability or responsibility for any computer viruses, bugs, malicious code or other harmful components, delays, inaccuracies, errors or omissions, or the accuracy, completeness, reliability, or usefulness of the information disclosed or accessed through the services. Further, we may from time-to-time perform service maintenance and use reasonable efforts to schedule system down-time to off-peak hours to avoid service interruption and delays.

Notices

1. Any notice given by the Company under these Terms will be given (a) via email to the email address associated with Your account; or (b) any other method agreed upon the parties.
2. Service Recipient must direct notices arising out of any condition that requires a notice to be sent to the Company under these Terms the following: - Postal Address:1102, K P Aurum, Marol Maroshi Road, Marol Naka, Andheri (East), Mumbai - 400059

Miscellaneous

1. Publicity: The Service Recipient shall not issue any external communications, concerning this Agreement, any of the activities contemplated by this Agreement or the relationship between the Parties, without the prior written consent of BillMart, which consent shall not be unreasonably withheld. External communications shall include, without limitation, press releases, advertisements, articles appearing in any form of media, the Service Recipient’s website, as the case may be or other public announcements, other than as required under Applicable Laws. The Service Recipient hereby grants an irrevocable, royalty-free license to use the logos and name of the Service Recipient in advertising, media and such other means of publicity solely in connection with marketing of Platform and provision of Services by BillMart.
2. Assignment: The Service Recipient shall not assign this Agreement or their respective rights or obligations hereunder. Subject to the foregoing, this Agreement shall inure to bind the successors and assigns of the respective Parties.
3. Entire agreement: This Agreement, including the recitals and schedules, supersedes all prior discussions and agreements between the Parties in relation to the Services and the subject matter of this Agreement, and this Agreement, along with the Transaction Documents, contains the sole and entire agreement between the Parties hereto with respect to the subject matter hereof. It is hereby expressly clarified that pursuant to this Agreement, the Service Recipient and BillMart may further enter into additional agreements, which shall govern the rights and obligations of the Parties with respect to matters provided therein. In the event of any conflict in the provisions of this Agreement and any other Agreement, the provisions of this Agreement shall prevail. The Service Recipient further agrees and understands that the relevant Financer may require the Business to submit additional documents or enter into additional agreements and/or legally binding documents with relevant Financer based on the practice of such Financer, which shall govern the rights and obligations of the parties with respect to the matters provided therein. Such additional agreements or documents between the Service Recipient and relevant Financer shall be independent to this Agreement and the Platform shall have no role and obligations with respect to the said additional agreements.
4. No third party beneficiaries: This Agreement is for the sole benefit of the Parties and nothing herein express or implied shall give or be construed to give to any person, other than the Parties, any legal or equitable rights hereunder.
5. Severability: If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future Applicable Law, and if the rights or obligations under this Agreement of the Parties shall not be materially and adversely affected thereby, (a) such provision shall be fully severable; (b) this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof; and, (c) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid, or unenforceable provision or by its severance here from. Without prejudice to the foregoing, the Parties hereto shall mutually agree to provide a legal, valid and enforceable provision as similar in terms and effect to such illegal, invalid or unenforceable provision as may be possible.
6. Relationship between the Parties: This Agreement is being entered into on a principal-to-principal basis. Except as stated in this Agreement, nothing in this Agreement or in any document referred to in it shall constitute any of the Parties a partner of the other, nor shall the execution, completion and implementation of this Agreement confer on any Party any power to bind or impose any obligation on any other Party.
7. Disclaimers: This Agreement is being entered into on a principal-to-principal basis. Except as stated in this Agreement, nothing in this Agreement or in any document referred to in it shall constitute any of the Parties a partner of the other, nor shall the execution, completion and implementation of this Agreement confer on any Party any power to bind or impose any obligation on any other Party.
8. Independent Parties: The Platform and Service Recipient are independent parties, and the Terms is not to be construed to create a partnership, joint venture, agency, or employment relationship between us. Neither Service Recipient nor the Platform not any of our respective affiliates, officers, directors, or employees, is an agent of the other for any purpose or has an authority to bind the other.