Terms and Conditions for Facilitation

The terms and conditions mentioned in this document is for facilitating a commercial and legal relationship between:
CAMDEN TOWN TECHNOLOGIES PRIVATE LIMITED, a company incorporated under the Companies Act, 2013, having its registered office at No.151, 3rd Floor, Moksha Mansion, Sarjapur Main Rd, 1st Block, Koramangala, Bengaluru, Karnataka 560034 (hereinafter referred to as “Zest”, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include its successors-in-interest and assigns), of the One Part; and,
Any Partner Retailer (referenced later in the document) by a Merchant (a brand or company incorporated under the Companies Act, [1956/2013], (hereinafter referred to as “Merchant”, which expression shall, unless it be repugnant to the context or meaning thereof, be deemed to mean and include its successors-in-interest and assigns)
for offering credit facilities to the Merchant’s or Partner Retailer’s customers
WHEREAS:

1. Zest is licensed to operate an online platform that facilitates banks, non-banking financial companies and other eligible institutions/entities in India partnering with Zest to offer rupee denominated loans to prospective borrowers, through a technology enabled solution;

2. The Merchant is engaged in the business of retailing consumer goods and/or services in partnership with the Partner Retailer(s) (as defined below);

3. Zest and the Merchant wish to enter into this Agreement to record the terms governing their relationship in connection with the facilitation of the provision of Credit Facilities from Lenders (as defined below) to the Customers (as defined below) through Zest.

NOW, THEREFORE, THE PARTIES AGREE AS FOLLOWS:

1. DEFINITIONS

1.1 Definitions: In this Agreement, unless the context otherwise requires, the following words and expressions shall bear the meanings ascribed to them below:

1.1.1 “Agreement” shall mean this Agreement, and include all appendices and schedules hereto;

1.1.2 “Account Holder” means an Applicant to whom the Credit Facilities have been facilitated by Zest;

1.1.3 “Affiliate(s)” means persons that Control (as defined below), are in the Control of, or are under common Control with a Party;

1.1.4 “Applicant” means any person who has completed an Application, whether or not accepted by Zest;

1.1.5 “Application” means an application to avail Credit Facilities from Zest in such form as provided by Zest to the Customer, or in such other form as may be delivered by or on behalf of a Customer and accepted by Zest;

1.1.6 “Basket Size” means the amount charged to the Customer for the supply of Services or Supplies after adjusting discounts, voucher amounts and / or credits given by the Merchant / Partner Retailer and any other amount already paid by the Customer to the Merchant / Partner Retailer and is inclusive of all taxes.

1.1.7 “Effective Date” means the date of this Agreement;

1.1.8 “Control” means the power to direct the management or policies of any persons, whether through: (i) the ownership of over 50% (fifty percent) of the voting power of such persons; (ii) the power to appoint more than half of the constitution of the board of directors or similar governing body of such persons; and/or (iii) contractual arrangements or otherwise;

1.1.9 “Confidential Information” means all information and data (including all oral and visual information and data recorded in writing or on a database (whether in eye, machine or electronic readable form) or in any other medium or by any other method) relating in any way to the terms of this Agreement or the Credit Facilities or the business and affairs of either Party hereto or their respective Group Companies including all formulae, designs, specifications, drawings, data, manuals and instructions and all customer lists, sales information, business plans and forecasts, and all technical or other expertise and all computer software and all accounting and tax records, correspondence, orders and enquiries;

1.1.10 “Credit Agreement” means an agreement to be entered into between the Account Holder and the Lender in connection with the Credit Facility availed through Zest in terms of this Agreement;

1.1.11 “Credit Facilities” means the credit facilities set out in Schedule 1 hereto and such other credit products and services as Zest may, through the Lenders, from time to time, facilitate to the Customers through the Partner Retailers;

1.1.12 “Customer(s)” means the customers of the Eligible Partner Retailers (as defined below) who wish to avail Credit Facilities from the Lender through Zest;

1.1.13 “Customer Data” means any data and/or information whatsoever, held by or on behalf of Zest, in any form, relating to past, present and/or future Applicants and Account Holders to the extent derived from or relating to such Customers being Applicants or Account Holders (whether provided directly by an Applicant or Account Holder or otherwise,) and shall include without limitation the following data and/or information (as appropriate) relating to each Applicant or Account Holder: (a) names, addresses (including email addresses) and telephone contact details; (b) basic employment detail codes (as available); (c) Credit Facilities supplied; (d) the date upon which the relevant Credit Facilities were provided; (e) the relevant payment and performance history; and (f) financial terms relating to the relevant Credit Facilities provided;

1.1.14 “Deed of Adherence” shall have the meaning ascribed to it in Clause 3.5 of this Agreement.

1.1.15 “Intellectual Property Rights” shall mean all rights in and in relation to all intellectual property rights subsisting in the products, services, etc., developed, being developed or proposed to be developed, including all patents, patent applications, trademarks, trade names, service marks, service names, brand names, internet domain names and sub-domains, inventions, processes, formulae, copyrights, works of authorship, business and product names, logos, slogans, trade secrets, processes, designs, database rights, methodologies, computer programs (including all source codes), technical information, engineering and technical drawings, know-how, rights relating to the protection of trade secrets and Confidential Information and all other intellectual property or similar proprietary rights of whatever nature (whether registered or not and including applications to register or rights to apply for registration) in each case anywhere in the world;

1.1.16 “Law(s)” shall mean all laws, ordinances, statutes, rules, orders, decrees, injunctions, licenses, permits, approvals, authorisations, consents, waivers, privileges, agreements and regulations of any governmental authority having jurisdiction over the relevant matter as such are in effect as of the Effective Date or as may be amended, modified, enacted or revoked from time to time hereafter;

1.1.17 “Lender” means a non-banking finance company or scheduled commercial bank which is holding a valid registration license granted by the Reserve Bank of India, partnering with Zest to offer rupee denominated loans to prospective borrowers through a technology enabled solution;

1.1.18 “Loan Amount” means the amount of Credit Facilities that has been facilitated by Zest to a Customer;

1.1.19 “Losses” shall mean and include all direct losses, expenses, claims, damages, liabilities, penalties, judgments, costs, expenses (including without limitation reasonable legal costs), charges, actions, proceedings and demands;

1.1.20 “Merchant’s Marks” mean trademarks, service marks, trade names, service names, brand names, brand marks, internet domain names, identifying symbols, logos, emblems, signs or insignia, owned by the Merchant, its Affiliates and licensors;

1.1.21 “Merchant’s Data” means any data and/or information whatsoever held by or on behalf of the Merchant in relation to the Partner Retailer, other than any data on Partner Retailers provided to the Merchant by Zest, which the Merchant would not have acquired by other independent means;

1.1.22 “Merchant Funded Fees” shall have the meaning ascribed to it in Clause 3.1 of Schedule 1 hereto.

1.1.23 “Merchant’s System” means all software and systems, internet domains, mobile applications, widgets, and other applications developed, owned, operated and controlled by the Merchant and its Affiliates/licensors and used by or on behalf of the Merchant in relation to the transactions contemplated under this Agreement;

1.1.24 “Parties” means Zest and Merchant collectively and the term “Party” means each of them individually;

1.1.25 “Partner Retailer(s)” means any person / entity appointed by the Merchant to sell the Services on behalf of the Merchant under an arrangement agreed to between them.

1.1.26 “Services” means the goods and services provided by the Partner Retailers to the Customers;

1.1.27 “Zest’s Marks” mean trademarks, service marks, trade names, service names, brand names, brand marks, internet domain names, identifying symbols, logos, emblems, signs or insignia, owned by Zest, its Affiliates and licensors;

1.1.28 “Zest Platform” shall mean and include www.zestmoney.in or any successor website, its sub-domains and all other internet domains, mobile applications, widgets, and other downloadable applications developed, owned, operated and controlled by Zest and its Affiliates/licensors, whether now existing or hereinafter developed, through which Zest provides the Zest Services;

1.1.29 “Zest Services” shall mean the services provided by Zest through the Zest Platform, which includes connecting Customers with the Lenders to avail Credit Facilities provided by the Lenders; and

1.1.30 “Zest System” means all software and systems owned or licensed by Zest and its Affiliates/licensors and used by or on behalf of the Zest in relation to the transactions contemplated under this Agreement, including the Zest Platform.

2. FACILITATION OF ZEST SERVICES AND CREDIT FACILITIES

2.1 The Parties agree that the Merchant will facilitate Zest in partnering with Partner Retailers in order for it to extend Zest Services to the Customers for the purposes of enabling them to avail the Services from the Partner Retailers. Towards this end, the Merchant and Zest will comply with process and procedures set out in Schedule 2 of this Agreement.

2.2 Zest shall reserve the right, at its discretion to accept, approve and facilitate the partnership with such Partner Retailers.

2.3 Upon the execution of this Agreement, the Merchant shall: (i) work with Zest in a mutually beneficial and cooperative fashion to facilitate the partnership between Zest and the Partner Retailer;(ii) perform, or cause its employees and agents to perform, any and all actions required to perform its obligations hereunder in an efficient and timely manner; (iii) allocate sufficient resources for the purposes of this Agreement; (iv) ensure that its employees, consultants, service providers, suppliers, agents and representatives are fully conversant with the business requirements and policies of the Merchant and Zest; (v) provide to Zest, on a timely basis, any and all information, which is reasonably necessary for it to provide the Zest Services; (vi) promptly respond to the queries submitted by Zest in connection with this Agreement; (vii) take ameliorative action to avoid the failure by Zest in the provision of Zest Services on account of any acts or omissions of the Merchant or third parties related to the Merchant; (viii) take all necessary and appropriate steps to avoid or prevent any circumstances which would expose Zest to any risks or liabilities; (ix) promptly inform Zest of any claims, actions and other circumstances and events that may have an impact on this Agreement; and (x) ensure that the Partner Retailers do not make unauthorised use of Zest Services, either directly or indirectly.

3. RESPONSIBILITIES OF THE MERCHANT

3.1 Approvals, Licenses & Authorizations: The Merchant shall obtain and maintain throughout the term of this Agreement, all registrations, permissions, approvals, consents, licenses, and other authorisations that may be required to be obtained under any contract, Law from a governmental authority and/or otherwise from any person or third party, including corporate approvals which are necessary for the Merchant to undertake and perform its obligations under this Agreement. The Merchant shall specifically obtain written consents from each Partner Retailer to permit it to: (i) share the Partner Retailer’s information and documents with Zest, including for the purposes set out herein; and (ii) receive emails and other communications from the Merchant and Zest, including the link that will enable to them to visit the Zest Platform.

3.2 Legal & Regulatory Compliance: The Merchant hereby agrees and undertakes that in performing the transactions contemplated by this Agreement, it shall strictly comply with all applicable present and future Laws. In the event and to the extent that such Laws impose stricter obligations on the Merchant than those imposed under this Agreement, then such Laws shall prevail to that extent.

3.3 Maintenance of Systems & Resources: The Merchant shall, at its sole cost and expense, maintain all systems, equipment, materials, resources and facilities as are necessary for the performance of its obligations under this Agreement.

3.4 Customer Relationship: The Merchant acknowledges that all agreements relating to the Services provided to the Customers shall be between the Customer and the Partner Retailers. The Merchant shall ensure that the Partner Retailers shall be solely responsible for all complaints, claims and other actions of the Customers in connection with or related to the Services. The Merchant shall further ensure that the Partner Retailers are solely responsible for and shall control the administration and resolution of all complaints and claims relating to the Services and shall use all reasonable endeavours to resolve such complaints or claims as soon as reasonably practicable. In no event shall Zest be liable and responsible for any complaints/claims made by the Customers in connection with the Services.

3.5 Execution of Deed of Adherence by the Eligible Partner Retailer: The Merchant shall, within two (2) days of the Partner Retailer being identified as an Eligible Partner Retailer as per the terms of this Agreement, and in any event, before availing of, or offering Customers the Zest Money Services, executes a Deed of Adherence, thereby binding them to the terms of this Agreement (“Deed of Adherence”). Further, the Merchant shall ensure that it, forthwith, provides a scanned copy of the duly executed Deed of Adherence to Zest and, in any event, no later than a period of one (1) day from the date of execution.

3.6 The Merchant shall ensure that the Eligible Partner Retailer does not transact through the Zest platform, unless the Deed of Adherence is duly executed and a scanned copy of the duly executed Deed of Adherence is provided to Zest. The standard form Deed of Adherence is annexed hereto as Annexure 1.

4. LICENSE OF MERCHANT’S MARKS

4.1 Subject to the terms and conditions set forth in this Agreement, the Merchant hereby grants to Zest, a non-exclusive, non-assignable, restricted, revocable, non-transferable and limited right and license to use and display the Merchant’s Marks solely for the purposes set out in this Agreement.

4.2 Zest acknowledges and agrees that the Merchant’s Marks: (i) must be used solely in connection with the purposes as stated in this Agreement; (ii) must be reproduced in the style, form and manner provided/approved by the Merchant; and (iii) shall comply with the guidelines, specifications, standards, policies, procedures and instructions provided by the Merchant from time to time.

4.3 The Merchant shall be and remain the sole and exclusive owner of all right, title and interest in the Merchant’s Marks. Except as stated above, nothing contained herein shall be deemed to grant Zest, either directly or by implication, estoppel or otherwise, any right or license in the Merchant’s Marks.

4.4 Zest further agrees that it shall not, during the term of this Agreement and thereafter: (i) contest, oppose or challenge the Merchant’s ownership of the Merchant’s Marks ; (ii) engage in any actions or omissions, either directly or indirectly, which will impair the Merchant’s ownership or rights in the Merchant’s Marks; (iii) misuse the Merchant’s Marks or take any action that would bring the Merchant’s Marks into public disrepute, or take any action that would tend to destroy or diminish the value or goodwill in the Merchant’s Marks; or (iv) use any marks confusingly similar to the Merchant’s Marks.

5. LICENSE OF ZEST’S MARKS

5.1 Subject to the terms and conditions set forth in this Agreement, Zest hereby grants to the Merchant, a non-exclusive, non-assignable, restricted, revocable, non-transferable and limited right and license to use and display the Zest’s Marks solely for the purpose of identifying Zest to the Partner Retailers.

5.2 The Merchant acknowledges and agrees that Zest’s Marks: (i) shall be used solely in connection with the purposes as stated above; (ii) must be reproduced in the style, form and manner provided/approved by Zest; and (iii) shall comply with the guidelines, specifications, standards, policies, procedures and instructions provided by Zest from time to time.

5.3 Zest shall be and remain the sole and exclusive owner of all right, title and interest in the Zest’s Marks. Except as stated above, nothing contained herein shall be deemed to grant the Merchant, either directly or by implication, estoppel or otherwise, any right or license in the Zest’s Marks.

5.4 The Merchant further agrees that it shall not, during the term of this Agreement and thereafter: (i) contest, oppose or challenge Zest’s ownership of the Zest’s Marks; (ii) engage in any actions or omissions, either directly or indirectly, which will impair Zest’s ownership or rights in the Zest’s Marks; (iii) misuse the Zest’s Marks or take any action that would bring the Zest’s Marks into public disrepute, or take any action that would tend to destroy or diminish the value or goodwill in the Zest’s Marks; or (iv) use any marks confusingly similar to the Zest’s Marks.

6. DATA PROTECTION AND DATA PROCESSING OBLIGATIONS

6.1 Each Party acknowledges that: (i) in connection with the transactions contemplated under this Agreement, it will receive and have access to data and information about the other Party, its customers, employees, officers and other individuals who have a relationship with such Party, including the Customers and Partner Retailers, which is proprietary, confidential, sensitive and personal (hereinafter “Sensitive Data”). Accordingly, with respect to the Sensitive Data, the Parties shall, at all times, and in the course of performing their respective obligations under this Agreement, comply with their respective data protection obligations as prescribed under the Information Technology Act, 2000, the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 and other applicable Laws (“Data Protection Legislation”).

6.2 Each Party shall implement and maintain all appropriate physical, technical, procedural and organizational security and confidentiality measures which are necessary to prevent, protect and/or identify unauthorized or unlawful access, use, misuse, transmission, dissemination, processing, alteration, modification and/or disclosure of the Sensitive Data.

6.3 Each Party agrees that it shall not, through any act or omission, put the other Party in breach of the Data Protection Legislation.

7. OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS

7.1 The Merchant acknowledges that the Zest Platform and the Zest Systems constitutes valuable trade secrets of Zest. All worldwide Intellectual Property Rights and other proprietary rights in and to Zest Platform and all improvements and developments in connection therewith shall be and remain the exclusive property of Zest.

7.2 Each of the Parties acknowledge that their respective Intellectual Property Rights are retained by themselves, and that any disclosure or license pursuant to this Agreement shall not convey any right or license to use such Intellectual Property Rights other than for the stated purpose.

7.3 Except to the extent expressly provided herein, nothing in this Agreement shall be construed to grant either Party, either directly or by implication, estoppel or otherwise, any right of any kind or nature with respect to the intellectual property of the other Party.

7.4 All Intellectual Property Rights and other proprietary rights whatsoever in and to the Customer Data and Zest Systems (“Zest IPR”) whether existing at or created following the Effective Date, shall be owned by and vest wholly in Zest or its licensors. Nothing in this Agreement shall have the effect of: (i) transferring or attributing to the Merchant any ownership rights whatsoever in or to the Customer Data; restricting Zest’s use of the Customer Data. To the extent that any such rights vests, by operation of law, in the Merchant, the Merchant hereby assigns to Zest, all its Intellectual Property Rights in the foregoing.

7.5 All Intellectual Property Rights and other proprietary rights whatsoever in and to the Merchant’s Data and Merchant Systems and all information contained therein (“Merchant IPR”), whether existing at or created following the Effective Date, shall be owned by and vest wholly in the Merchant or its licensors. The Merchant hereby grants to Zest, during the term of this Agreement, a non-exclusive, revocable, transferable, royalty free licence to use the Merchant’s IPR for the purposes of this Agreement.

8. INDEMNITY

8.1 Each Party (“Indemnifying Party”) hereby indemnifies and agrees to keep indemnified and hold harmless the other Party (“Indemnified Party”), from and against all Losses brought against or suffered by the Indemnified Party or any of their respective officers, directors, employees or agents, resulting from, arising out of or relating to: (i) a failure, breach or non-performance by the Indemnifying Party of any of its representations, warranties, obligations and covenants contained herein; (ii) a breach or non-performance by the Indemnifying Party of any applicable law; and/or (iii) any wilful misconduct or negligent acts by the Indemnifying Party or any of its officers, directors, employees or agents.

8.2 In addition to the above, the Merchant hereby agrees to indemnify, defend and hold harmless Zest, its Affiliates, and their respective officers, directors, employees, representatives and agents against any Losses arising from or related to: (i) the obligations and arrangements of the Merchant with Partner Retailers; (ii) any breach of obligations mentioned herein by the Partner Retailer; and (iii) any disputes between the Customers and the Partner Retailers and / or the Customer and Merchant.

9. LIMITATION OF LIABILITY

9.1 Notwithstanding anything stated elsewhere, in no event shall any Party be liable to the other Party for any indirect, incidental, consequential, special, exemplary or other damages, including but not limited to loss of profits, Loss of data, business interruption and the like, suffered by the other or any third party under or in pursuance of the terms hereof, howsoever arising, whether under contract, tort or otherwise, even if advised about the possibility of the same.

9.2 The Merchant specifically acknowledges and agrees that Zest is not involved in transactions between the Merchant and the Partner Retailers or the Customer and the Partner Retailers. The Merchant shall ensure that the Partner Retailers shall be solely responsible for obligations, risks and liabilities arising out of or in connection with their transactions with the Customers.

9.3 For all disputes arising between the Merchant and Partner Retailers and / or the Customer and the Partner Retailers, the Merchant shall ensure that the Partner Retailers shall and the Partner Retailers hereby do, forever release Zest, its Affiliates, officers, directors, agents and employees from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.

9.4 Zest shall not be liable to the Merchant for any Losses arising out or in connection with the breach or non-compliance by the Merchant of their agreements with the Partner Retailers.

10. CONFIDENTIALITY

10.1 Each Party acknowledges that in the course of the performance of this Agreement, each Party (the “Receiving Party”) may, from time to time, have access to, and acquire the Confidential Information of the other Party (the “Disclosing Party”) which is not accessible or known to the general public. Accordingly, the Receiving Party agrees that it shall: (i) take all reasonable steps to prevent disclosure of the Confidential Information and employ reasonable procedures for safeguarding the Confidential Information, which shall be at least as rigorous as the Receiving Party would employ for its own Confidential Information; and (ii) not, directly or indirectly, disclose, reveal, disseminate, report, publish or transfer any Confidential Information to any person, by any means whatsoever, except for the purposes and in the manner set out in this Agreement; and (iii) not, during the course of performing its obligations hereunder, use the Confidential Information in a manner that would have an adverse effect or impact on the Disclosing Party and its current and prospective business operations.

10.2 The Receiving Party may disclose the Confidential Information: (i) to its employees who have an absolute need to know the Disclosing Party’s Confidential Information for the purposes hereof; (ii) to any person to whom, and to the extent that, such information is required to be disclosed by any applicable law; (iii) to its lawyers, accountants, auditors and such other professional advisors for a bona fide purpose in connection with this Agreement (who shall be similarly bound by confidentiality obligations); and (iv) any person expressly permitted by the Disclosing Party.

10.3 The confidentiality obligations of the Receiving Party under this Agreement shall survive the termination or expiry of this Agreement, and remain in force as long as the Confidential Information retains its confidential nature.

11. NON-SOLICITATION

11.1 Each Party agrees that, in consideration of the benefits to be derived from this Agreement, the sufficiency whereof the Parties hereby acknowledge and shall not call into question in future, it shall not, during the term of this Agreement and for a period of 1 (one) year thereafter, either directly or indirectly cause, influence, solicit or induce any individual employed by, acting as a consultant to, or serving as a director or officer of, the other Party and its Affiliates, to leave/terminate/sever such position or engagement to become employed with such Party or its Affiliates. Zest further agrees that it shall not solicit an Eligible Partner Retailer to terminate the business relationship the Eligible Partner Retailer has with the merchant.

12. SUSPENSION OF SERVICES

12.1 Notwithstanding anything contained herein, Zest shall have the right to immediately suspend all its services to the Merchant under this Agreement, without any prior notice and costs/liabilities to the Merchant thereof: (i) if Zest has reasonable ground to believe at its sole discretion that the Merchant has breached terms of this Agreement; (ii) in the event the Merchant commits any fraud or mischief in the course of performing its obligations under this Agreement; (iii) if Zest receives significant amount of complaints from the Customers with respect to the Merchant or the Services; (iv) if Zest is adversely affected by any dispute between the Merchant and the Partner Retailers or between Partner Retailers and Customers; (v) if the Merchant circumvents or attempts to circumvent the provisions of this Agreement to derive benefits for itself, in each case, which is prejudicial to the interests of Zest; (vi) if Zest is restricted by a regulatory authority; (vii) if a restrictive court order is passed; and/or (viii) if any action of the Merchant or otherwise adversely affects the reputation of Zest. Zest shall be not be liable to the Merchant for Losses of any nature whatsoever as a result of suspension of services in accordance with the terms of this Clause 12. The foregoing right of Zest shall be in addition to any other rights and remedies available to Zest under this Agreement, in law and in equity.

13. REPRESENTATIONS AND WARRANTIES

13.1 Each Party hereby represents and warrants to the other as follows:

13.1.1 that it is an entity duly organized, validly existing and in good standing under the Laws of India and has full corporate power and authority to execute and deliver this Agreement and to complete the transactions contemplated hereby and that, the signatories to this Agreement have the respective power and authority from each Party for executing and delivering this Agreement;

13.1.2 to the best of its knowledge and except as provided herein, no filing with, and no permit, authorization, consent or approval of, any statutory or public body or any other third party is necessary to complete the transactions contemplated by this Agreement; and

13.1.3 the execution and delivery of this Agreement and completion of the transactions contemplated hereby or compliance by it with any of provisions hereof will not: (a) conflict or result in any breach of any provisions of its memorandum or articles of association; (b) result in a violation or breach of, or constitute a default or give rise to any right to termination under, any of the terms, conditions or provisions of any contract or obligation to which it is a party or by which it or any of its properties or assets may be bound; or (c) violate any order, writ, injunction, decree, statute, rule or regulation applicable to it.

14. TERM AND TERMINATION

14.1 This Agreement shall commence upon its execution and shall continue to be in full force and effect, unless terminated in accordance with the terms of this Agreement.

14.2 Either Party may terminate this Agreement without cause by giving 30 (thirty) days’ written notice to the other Party.

14.3 Each Party may terminate this Agreement immediately, for cause, in the event the other Party: (a) fails to perform any of the obligations imposed upon it under the terms of this Agreement, so as to be in default hereunder, and fails to cure such default within 30 (thirty) days after the receipt of written notice thereof; (b) becomes or is declared insolvent, or files an application to be adjudged as bankrupt; (c) admits in writing its inability to pay its debts as they mature; (d) makes an assignment for the benefit of its creditors; or (e) ceases to function as a going concern or to conduct its operations in the normal course of business.

14.4 Termination of this Agreement shall not affect the Credit Agreement entered into between the Lender and the Customer or the agreement between Zest and the Partner Retailer the same will continue to be in full force and effect until terminated in accordance with the terms thereof.

14.5 Termination of this Agreement in any manner whatsoever shall be without prejudice to the rights of Zest in connection with acts or matters or things done, committed, omitted, or suffered by Zest prior to the date of such termination.

14.6 Any provisions of this Agreement, which by their nature are meant to survive the termination of this Agreement or are specified as such, shall continue to be binding, notwithstanding such termination.

15. GOVERNING LAW, JURISDICTION AND DISPUTE RESOLUTION

15.1 This Agreement shall be governed by the Laws of India.

15.2 Subject to the provisions of Clause 15.3 below, the courts at Bengaluru, India shall have exclusive jurisdiction for all matters arising out of or in connection with this Agreement.

15.3 In the event a dispute, difference, claim or controversy arises in connection with this Agreement, the Parties shall attempt in the first instance to resolve such dispute through discussions/consultations. If the dispute is not resolved through discussions within 15 (fifteen) days from the date of commencement of discussions or such longer period as the Parties may mutually agree, the dispute shall be finally resolved by arbitration in accordance with the Arbitration and Conciliation Act, 1996 by a sole arbitrator mutually appointed by the Parties, failing which by an arbitral tribunal consisting of 3 (Three) arbitrators. Zest and the Merchant shall each appoint 1 (one) arbitrator. The 2 (two) arbitrators so appointed shall appoint the third arbitrator. The seat of arbitration shall be Bengaluru, India. All arbitration proceedings shall be conducted in the English language.

15.4 Nothing set out in this Clause shall preclude either Party from seeking interim or permanent equitable or injunctive relief, or both, from any court having jurisdiction to grant the same.

16. MISCELLANEOUS PROVISIONS

16.1 Non-exclusivity: This Agreement is entered into on a non-exclusive basis and Zest may enter into any arrangement or agreement with any third party similar to the arrangement under this Agreement, including the competitors of the Merchant.

16.2 Disclaimer of Warranties: It is hereby expressly provided that Zest does not warrant that the Zest Platform (including all content, software, functions, materials and information available or provided therein) or the Zest Services will be available in a timely, secure, uninterrupted or error free manner, and Zest will not be held liable for any service interruptions, including, but not limited to system failures or other interruptions.

16.3 Force Majeure: Neither Party shall be liable in the event it fails or is unable to fulfil any of its obligations or be liable to indemnify the other hereunder on account of force majeure.

16.4 Relationship between the Parties: It is clearly understood and accepted by the Parties that this Agreement and the contract between the Parties evidenced by it are on “principal to principal” basis. The Parties agree that they are acting as independent contractors and neither this Agreement nor any of its terms or conditions shall be deemed to: (a) create a partnership, agency, joint venture, franchise, sales representative, employment relationship or association of persons between the Parties; (b) allow a Party to claim, represent or hold itself out, to be an agent or representative of the other Party, or make or attempt to make any other commitments on behalf of the other Party; and (c) impose a liability on the other Party for any acts or omissions of one Party.

16.5 Notices: Any notices, requests and other communications required or permitted hereunder shall be in writing and shall be given by hand against written acknowledgement or receipt, or sent by registered mail, or by facsimile or email followed by a confirmation letter by registered mail, at or to each of the Parties at the addresses set forth first above. Any Party may, from time to time, change its address or representative for receipt of notices provided for in this Agreement by intimating such change to the other Party.

16.6 Assignment: This Agreement shall be binding upon and ensure to the benefit of the Parties hereto and their respective successors. No Party may assign and transfer any of its rights and/or obligations hereunder or otherwise deal with this Agreement, without the prior written consent of the other Party and any attempt to do so shall be void.

16.7 Amendment: This Agreement may not be amended, modified or supplemented except by a written instrument executed by both the Parties.

16.8 Waiver: No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument signed by the Party waiving such provision. No failure or delay by a Party in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of the same preclude any further exercise thereof or the exercise of any other right, power or remedy. Without limiting the foregoing, no waiver by a Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any prior, concurrent or subsequent breach of that or any other provision hereof.

16.9 Severability: Every provision contained in this Agreement shall be severable and distinct from every other such provision and if at any time any one or more of such provisions is or becomes invalid, illegal or unenforceable in any respect under any Law, the validity, legality and enforceability of the remaining provisions hereof shall not be in any way affected or impaired thereby. Furthermore, in lieu of each such illegal, invalid or unenforceable provision, the Parties shall add as a part of this Agreement, a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and be legal, valid and enforceable.

16.10 Independent Rights: Each of the rights of the Parties are independent, cumulative and without prejudice to all other rights available to them under applicable law, equity or otherwise, and the exercise or non-exercise of any such rights shall not prejudice or constitute a waiver of any other right of the Party, whether under this Agreement or otherwise.

16.11 Complete Agreement: This Agreement together with the annexures hereto, constitutes and contains the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all previous communications, negotiations, commitments, either oral or written between the Parties respecting the subject matter hereof.

16.12 Execution: This Agreement is executed in 2 (two) counterparts, with 1 (one) counterpart to be retained by each Party. Each counterpart shall be treated as an original and all the counterparts shall embody one and the same agreement.

COMMERCIAL ARRANGMENT
1. Zest Fee

1.1 Zest, the Merchant and the Partner Retailer agree that for every purchase of Goods by the Customers from the Eligible Partner Retailer though Credit Facilities extended by Zest, the Partner Retailer shall pay Zest a merchant discount rate (“MDR”) as a percentage of the Basket Size.

1.2 Zest, the Merchant and the Partner Retailer agree that a of the Basket Size shall be remitted to Zest by the Partner Retailer as MDR. The exact MDR percentage will be mentioned in the Merchant Agreement and the Deed of Adherence.

1.3 The MDR, along with applicable taxes, shall be deducted upfront from the Settlement Amount prior to the payment of the Settlement Amount to the Partner Retailer. “Settlement Amount” means the total amount payable to the Partner Retailer after deducting: (i) MDR; (ii) Merchant Funded Fees; and (iii) refunds, as permitted under this Agreement.

2. Settlement of Payments to Merchant

2.1 Zest shall process the Settlement Amount to the Partner Retailer by following the T+2 settlement cycle, where “T” refers to the confirmation of order by the Partner Retailer. Zest will enable the payment of the Settlement Amount via the Lender to the Partner Retailer’s Bank account.

2.2 The Settlement Amount shall be net of all applicable taxes.

2.3 If any amounts are payable by the Merchant or the Partner Retailer to Zest pursuant to the terms of this Agreement and Zest, at its discretion, elects to receive payment of such amount directly from the Merchant and not as part of the calculation of the Settlement Amount, the Merchant or the Partner Retailer shall pay such amounts to an account nominated by Zest within three (3) Business Days from the date of receipt of such request from Zest.

3. Refunds

3.1 In cases where the refund is requested by a Customer, subject to a period of 30 (thirty) days from the date of delivery of the Services or such shorter period as may be prescribed by the Merchant / Eligible Partner Retailer for refunds to be granted, and, such refund is approved by Merchant or Partner Retailer, Zest will, where any capital and interest repayments have become due, refund to the Account Holder, a pro-rata portion of the interest and Processing Fee that is applicable to the refunded amount.

3.2 In no event shall any refunds be provided to a Customer where the request for such refund is placed after completion of the period specified in Clause 4.1 above.

3.3 In no event shall the Merchant or Partner Retailer approve any refunds be provided to a Customer where the request for such refund is placed after the completion of 30 (thirty) days from the date of delivery of the Supplies.

3.4 Zest will: (i) refund the Processing Fee to the Customer; and (ii) refund the Zest Fee to the Merchant or Partner Retailer, in the event any proposal for the Credit Facility is rejected by Zest.

3.5 The Merchant or Partner Retailer shall: (i) immediately inform Zest, via the process agreed between the Parties that a refund has been requested and authorized by the Merchant/Partner Retailer; (ii) not inform the Account Holder that a refund has been approved until it has received, via the process agreed between the Parties, a ‘refund request accepted’ message from Zest; (iii) refund the value of such Supplies (or if greater, the amount financed by Zest under the Credit Agreement with respect to such Supplies) to Zest/Lender pursuant to the above commercial arrangement, if requested by Zest, by a separate payment made directly to Zest/Lender; (iv) not, under any circumstances, refund directly to the Account Holder (in cash, by credit note or any other means) the Loan Amount with respect to Supplies.

3.6 On refund of value of the Supplies to Zest/Lender, the Credit Facility will be cancelled and no further Zest Fees (interest or other fees) will accrue. The Account Holder and the Merchant will pay no further fees to Zest/Lender.

4. Taxes

4.1 All amounts payable pursuant to this Agreement are stated exclusive of goods and services tax (‘GST’) – State GST (SGST), Central GST (CGST), Union Territory GST (UTGST), Integrated GST (IGST) or any similar transaction taxes, levies or cesses. Such taxes, if applicable shall be payable by the Merchant and/or the Partner Retailer in addition to the Zest Fee or such amount. Such taxes shall be explicitly stated separately on the invoice issued by Zest and shall be payable by the Merchant and/or the Partner Retailer without any deductions. The Partner Retailer shall provide its GST registration number (GSTIN) and declare address / location of supply of services for correct invoicing and tax compliance purposes by Zest. The Merchant and/or the Partner Retailer shall pay or indemnify Zest for any taxes, levies, fines, penalties or such amounts imposed on Zest by the tax authorities as a result of any incorrect or incomplete declaration by the Merchant.

5. Withdrawal of Financing Offer

5.1 Where a Customer requests for a partial cancellation of an order for Supplies such that the Loan Amount goes below a limit specified by Zest, Zest shall have the right to withdraw the offer for financing to such Customer.

6. Provision of Settlement Sheet to Merchant

6.1 Zest will submit to the Merchant and Partner Retailer, on a daily basis, a statement setting out the calculation of the Settlement Amount (“Settlement Sheet”).

7. Failure of Lender to Pay Merchant

7.1 Zest will ensure that all amounts that are due and payable by the Lender to the Merchant or Partner Retailer will be paid by Zest in the event of any default by the Lender within 15 (fifteen) days from the date on which the Lender fails to make the payment as per the terms of this Agreement.

SCHEDULE 2

FACILITATION OF PARTNERSHIP WITH PARTNER RETAILER FOR ZEST SERVICES AND CREDIT FACILITIES

1. The Merchant shall approach Partner Retailers and inform them of the facility of providing Customers with the option of availing Zest Services and Credit Facilities to enable the Customers to avail Services from the Partner Retailer. The Merchant may send its executives to the Partner Retailer premises to convey and explain the accurate terms of the Credit Facilities to such Partner Retailers.
2. Zest shall receive from the Merchant an initial list of Partner Retailers who are interested in extending Zest Services to its Customers as an option in order to avail Services. Zest shall also receive Partner Retailer details including relevant verification details such as KYC data, bank account details etc. from the Merchant.
3. Zest, may, at its sole discretion, independently verify Partner Retailer details, carry out due diligence/KYC checks and if required, send its executive to the Partner Retailer premises to convey and explain the accurate terms of the Credit Facilities to such Partner Retailers if required. However, Zest’s decision not to do any of the aforesaid things or similar things shall not, in any manner, affect or relieve the Merchant or the Partner Retailer’s obligations under this Agreement.
4. Upon the verification by Zest of the Partner Retailer details, Zest will inform the Merchant of the Partner Retailers eligible to facilitate and extend Zest Services to their Customers to the extent that the Customers can choose to avail Zest Services for the Services. (“Eligible Partner Retailer(s)”).
5. The Merchant shall facilitate the consent from the Eligible Partner Retailer to offer the Zest financing services at their store(s) and that the Eligible Partner Retailer will abide by all the rules and terms laid out in this agreement.
6. The provisions or directions contained in any manual, order or communication issued by Zest, from time to time, in relation to this Schedule 2, shall bind the Merchant / Partner Retailer from the date of such issuance. The Merchant / Partner Retailer shall be deemed to have consented to by signing this Agreement / Deed of Adherence, as the case may be.

SCHEDULE 3

CUSTOMER APPROVAL PROCEDURE AND RELATED MATTERS

1. The Merchant and Partner Retailers shall inform the Customers about the option of availing Credit Facilities provided by Zest to enable them to avail the Services.

2. The Customer will then place an order with the Partner Retailer/Merchant through the ZestMoney process

3. The Merchant/Partner Retailer shall, upon confirmation of order, intimate Zest of the same by providing Zest with a computer generated invoice or API confirmation.

4. On receipt of the invoice and order confirmation for the Goods, Zest shall through the Lender, facilitate the settlement of the entire sale amount for the Services with the Merchant/Partner Retailer in a T+2 settlement cycle. In the event, if Zest fails to facilitate the settlement of the sale amount for the Services in the aforesaid manner, the payment mechanism of the sale amount to the relevant Eligible Partner Retailer shall solely lie with Zest.

5. The invoice should capture the following details:, Partner Retailers’ name, Customer name, Customer Phone Number, Customer Email Address, Product name and Product price.

6. The repayment of the Loan Amount by the Customer shall be in accordance with the repayment arrangement laid out in the Credit Agreement. It is hereby clarified, that in the event the Customer makes any default in repayment of the Loan Amount, Zest shall not be liable for the default and/or shall have no claim against the Merchant or the Eligible Partner Retailer

7. All amounts payable pursuant to this Agreement are stated exclusive of Services and services tax (‘GST’) – State GST (SGST), Central GST (CGST), Union Territory GST (UTGST), Integrated GST (IGST) or any similar transaction taxes, levies or cesses. Such taxes, if applicable shall be payable by the Merchant. Such taxes shall be explicitly stated separately on the invoice issued by Zest and shall be payable by the Merchant without any deductions. The Merchant shall provide its GST registration number (GSTIN) and declare address / location of supply of services for correct invoicing and tax compliance purposes by Zest. The Merchant shall pay or indemnify Zest for any taxes, levies, fines, penalties or such amounts imposed on Zest by the tax authorities as a result of any incorrect or incomplete declaration by the Merchant.

8. The provisions or directions contained in any manual, order or communication issued by Zest, from time to time, in relation to this Schedule 3, shall bind the Merchant / Partner Retailer from the date of such issuance. The Merchant / Partner Retailer shall be deemed to have consented to by signing this Agreement / Deed of Adherence, as the case may be.

SCHEDULE 4

MERCHANT’S OPERATIONAL OBLIGATIONS

1. MANAGEMENT INFORMATION

1.1 The Merchant shall supply the relevant management information of the Merchant to Zest, including details of contact persons, know your customer details, permanent account number, certificate of incorporation, cancelled cheque and such other information as may be required by Zest from time to time

2. TRANSACTION COMPLETION

2.1 Following the processing of an Application by Zest, the Merchant and the Partner Retailer will receive a notification from Zest that an Application has been provisionally approved or declined.

2.2 Following certain additional KYC checks, Merchant and the Partner Retailer will receive a notification from Zest that the Application has been completed. The Merchant/Partner Retailer shall provide the Supplies to the Customers only when the transaction has been completed and approved by Zest.

2.3 The Merchant/Partner Retailer shall not complete the transaction or inform the Account Holder that the transaction has been completed with Zest as a payment method until it has received the final written approval from Zest.

3. DELIVERY OF SUPPLIES AND CUSTOMER SERVICE

3.1 The Partner Retailer shall not request payment for Supplies financed by Zest under a Credit Agreement until, at Zest’s discretion: (a) the Supplies have been fully delivered (or in the case of multiple Supplies, all Supplies have been fully delivered) or performed and, where applicable, installed to the satisfaction of the Customer; or (b) 1 day following the date of delivery of the Supplies by the Partner Retailer to the Customer.

3.2 The Merchant and Partner Retailer shall retain, for a period of 285 (Two Hundred and Eighty Five) days, evidence of proper fulfilment of its responsibilities in relation to providing the Supplies to the Account Holders, including but not limited to a signed delivery receipt.

3.3 The Merchant/Partner Retailer shall ensure that, its customer service operation with regard to the sale or provision of Supplies is maintained at an appropriate and reasonable standard, with regard to resourcing, response times and overall level of customer satisfaction. The Merchant/Partner Retailer will provide Zest with specific customer service contact details with reasonable business hours availability.

4. OTHER OBLIGATIONS

4.1 The Merchant and Partner Retailer shall ensure that all licenses and registrations required by the Merchant and Partner Retailer are in full force and effect to enable the Merchant to carry on its business of selling/providing of the Supplies. The Merchant assures and guarantees to Zest, acquiring banks, card associations and facility providers that the Merchant shall comply with all rules, byelaws and standards set by the card associations, acquiring banks, the facility providers and Zest.

4.2 The Merchant and Partner Retailer shall ensure confidentiality of all card and bank account information submitted by the Customers to the Merchant or Partner Retailer.

4.3 In the event of any dispute between the Merchant and/or Partner Retailer and the Customer whether in relation to any deficient, improper or incomplete Supplies provided by the Merchant or the Partner Retailer or otherwise, Zest and the Lender shall not be made a party to any litigation, arbitration or other proceeding instituted in respect of such disputes.

4.4 Zest shall be entitled to require the Merchant to add to the Merchant Website such disclaimers, warranties and indemnities as may be required from time to time, in respect of the services provided by Zest. In this regard, the Merchant shall carry out the necessary modifications at the Merchant Website within 7 (seven) days of such request being intimated to it.

4.5 The Merchant and Partner Retailer shall not, without Zest’s prior written consent: (i) use Zest’s name or a description of the Credit Facilities to advertise the Credit Facilities and/or its Supplies (Zest’s prior written consent for this purpose shall require consent to the principle and to the proposed form of usage); (ii) offer any insurance, maintenance or warranty product in conjunction with any Credit Agreement; (iii) make any representations with respect to the Credit Facilities; and/or (iv) make any payment to the Lender Bank Account, either through Zest’s API or on the basis of the Settlement Sheet.