Avoid These 5 Common Legal Mistakes Startup Founders Make

Starting a successful startup requires a lot of effort and consideration, especially in terms of legal issues for startups. While developing your product, finding the right team, and creating a proof of concept, it’s important to not overlook legal considerations. Establishing a strong legal foundation is essential for the longevity of your business.

To ensure your startup begins on the right legal foot, consider these five crucial factors related to legal issues for startups:

1. Selecting the correct legal structure: 

It’s important to choose the right legal entity when forming a new business, which is one of the most important legal issues for startups. Options include Registered Company (Public or Private), Sole Proprietorship or Partnership Firm, or a Limited Liability Partnership (LLP). Key factors to keep in mind are tax treatment, individual liability, legal expenses, and growth plans.

2. Having a formal written agreement with Co-Founders: 

In an environment where changes occur frequently, a Co-founders’ agreement can help avoid unnecessary legal hassles and related issues for startups. It should outline key roles and responsibilities, shareholding breakdown, intellectual property rights, remuneration, non-compete & non-solicit and exit clauses.

3. Protecting intellectual property: 

Protecting your intellectual property is crucial to ensure future growth and avoid potential legal issues for startups. Trademarks, patents, and copyrights are essential components of IP, and registering them will prevent infringement. This will allow startups to protect their innovation and compete against large players in the industry.

4. Complying with mandatory registrations and compliances: 

Startups are required to take several licenses and registrations, along with certain compliances which have a lot of legal issues for startups associated with them. These include income tax, GST, Food Safety and Standards, Udyog Aadhaar, and any other industry-specific registrations that may be applicable.

5. Importance of agreements: 

A start-up goes through several contracts with suppliers, employees, and others. It’s important that all such contracts are well drafted to protect the startup from any liability on a future date, and legal issues for startups that may arise. It’s best to engage an experienced legal counsel to help the startup in protecting its interests and capturing the correct language to ensure avoidance of unnecessary legal issues for startups at a later date.

Following these five steps related to legal issues for startups will ensure startups begin on a solid legal foundation and minimize legal risks.

E-Mobility Space in India

India’s Growing Focus on Electric Vehicles to Deal with Air Pollution and Oil Dependency

The move towards Electric Vehicles (EVs) has gained momentum in India, with significant demand and on-the-ground traction in recent years. The country’s need to combat rising air pollution levels and dependence on crude oil imports is driving the increase in EV demand.

India is one of the largest importers of fossil fuels globally, and according to the 2022 World Air Quality Report, the country ranks 8th on the list of worst air quality countries. As a result, EVs that reduce pollution levels and dependence on crude oil-based sources are becoming crucial for India’s transportation sector.

In response to India’s e-mobility initiatives for pollution-free transportation, several established automobile manufacturers and newcomers are beginning to manufacture EVs for the last mile connectivity and bulk short/long distance transportation segment. Startups also play a significant role in the evolving electric mobility sector, with charging infrastructure and mobility services offering potential business opportunities for digital technologies like charging location finders, reservation apps, online payments, and ride-sharing services.

India’s government has implemented various initiatives such as the National Electric Mobility Mission Plan 2020 (NEMMP), Production Linked Incentive (PLI) scheme, Vehicle Scrappage Policy, and National Mission on Transformative Mobility and Storage to support the EV transition.

NEMMP, under which the Faster Use and Manufacturing of (Hybrid &) Electric Vehicles in India (FAME India) scheme was introduced, provides a vision and strategy for the country’s rapid adoption of EVs and their manufacturing. The government aims to make EVs 30% of new cars and two-wheelers sales by 2030. FAME was launched in two phases, with FAME II currently ongoing.

PLI is a supply-side incentive scheme that rewards local manufacturers based on incremental revenue. It offers foreign corporations a chance to open factories in India, while domestic businesses are encouraged to expand or open new factories. Electric vehicles are eligible under this scheme.

The Vehicle Scrappage Policy aims to reduce environmental pollution and noise by phasing out old, unsafe, and unreliable vehicles and increasing the deployment of new fuel-efficient vehicles.

The National Mission on Transformative Mobility and Storage focuses on developing and implementing transformational mobility strategies and the Phased Manufacturing Program for electric vehicles, components, and batteries to encourage local production throughout the EV supply chain.

India’s EV transition has significant investment potential, with several opportunities for startups to enter the market and technology development. The government’s policies and initiatives offer much-needed support to suppliers and manufacturers wanting to shift towards EVs in the country.

India is witnessing a significant increase in the adoption of electric vehicles and states are also rolling out dedicated policies to promote the transition to EVs. Nearly 50% of the states in India have already approved or notified their EV policies to meet the growing demand for electric means of transportation.

Among the states, Uttar Pradesh, Delhi and Karnataka have emerged as the top three in EV registrations, which is a clear indication of the growing interest and demand for electric vehicles.

Several startups have been instrumental in driving the adoption of electric vehicles in India. Companies like Ather Energy, Yulu, and Tork Motors are pioneers in the EV mobility space, and they have the support of venture capitalists and mentorship from industry experts. The emergence of such startups is a positive sign for India’s EV industry and shows that the country has a vibrant startup ecosystem.

Furthermore, the government is taking several measures to encourage the transition to the EV ecosystem. The battery swapping policy and the recognition of energy or battery as a service will ensure development in the EV infrastructure and bolster the adoption of EVs in public transportation.

In conclusion, the awareness regarding fuel and energy efficiency is increasing globally, and the Indian government is taking appropriate measures to promote and develop the EV infrastructure across the country. The state policies, benefits to startups, and government initiatives are contributing significantly to the growth of the EV market in India.

Digital Payment Systems in India

Introduction

The digital payments ecosystem in India has seen an excellent growth in the past few years. The term “Digital Payments” comprises of different types of systems of online payment which cover transactions done through Real Time Gross Settlement (RTGS), National Electronic Fund Transfer (NEFT), Immediate Payment Service (IMPS), Digital Wallets and Unified Payments Interface (UPI). Of these, Digital Wallets and UPI have amplified their operations in the wake of demonetization in the November of 2016.

Payment systems are not only the lifeline of an economy but are increasingly being recognized as a means of achieving financial inclusion and ensuring that economic benefits reach the bottom of the pyramid.

Regulating the payment and settlement systems in the country enables businesses, companies, and consumers to manage their financial transactions and payments efficiently. Implementing fintech laws and regulations ensures safety and security to financial institutions, providing services and the customers using them.

The term “FinTech” is short for “financial technology” and could apply to any kind of technology that is used to drive a financial transaction or service, offered by any entity. However, in business and regulatory jargon, FinTech has come to mean the technology used by financial service providers that disrupt the traditional way of providing such services. Thus, businesses such as PayTM, PhonePe, RazorPay, MobiKwik, PayU are all classified as fintech businesses.

Key Fintech Offerings

Some of the key services that are offered by FinTech companies broadly fall within the ambit of either Digital Payments or digital lending.

PPI – Prepaid Payment Instruments (“PPIs”) are instruments that facilitate the purchase of goods and services including financial services, remittances etc. against a stored value on such instruments. PPIs may be issued under one of the three categories –

  1. Closed system PPIs – They are issued by an entity to a holder to facilitate the purchase of goods and services from the issuer itself. An ideal example of this type of a system would be a brand-specific gift card.
  2. Semi – closed system PPIs – These are used for purchase of goods and services, including financial services, remittance facilities, etc., at a group of clearly identified merchant locations or establishments which have a specific contract with the issuer to accept the PPIs as payment instruments. These instruments do not permit cash withdrawal, irrespective of whether they are issued by banks or non-banks.
  3. Open system PPIs – These PPIs are issued only by banks and are used at any merchant for purchase of goods and services, including financial services, remittance facilities, etc.

Each of these categories permits a different scope of transactions.

UPI Payments – UPI is a payment platform managed and operated by the National Payments Corporation of India (“NPCI”). The UPI enables real time, instant, mobile based bank to bank payments. It primarily relies on mobile technology and telecom infrastructure to offer easily accessible, low cost facilities to the users. UPI enabled payments constitute majority of the digital payment transactions in India.

Digital Lending – With expanding propels in innovation, technology, and telecommunications foundations, several Non-Banking Financial Institutions (NBFCs) in India have moved to advanced stages of digital platforms for credit items, especially to retail and Small and Medium Enterprises (SME) clients. They have developed intuitive applications and websites to empower end-to-end digital customer journeys. 

Payment Intermediaries/Aggregators and Payment Gateways – Payment intermediaries or aggregators are entities which simplify online sale and purchase transactions primarily on e-business platforms. They facilitate collecting electronic payments from customers and pool them and transfer them to the merchants. Payment Gateways provide technology infrastructure to route or facilitate processing of online payment transactions, without handling any funds.

P2P lending platforms – Peer-to-peer (P2P) lending platforms are online platforms that offer loan facilitation services between lenders registered on the platform and prospective borrowers. Under RBI regulations, P2P lending platforms may be operated by eligible Indian companies registered with the Reserve Bank of India (“RBI”) as NBFC.

Payment Banks – Payment banks are bodies authorized by the RBI to offer fundamental online banking services to their clients. These are allowed to accept small deposits (up to INR 100,000). However, they are not permitted to issue credit cards, give loans or offer any credit products

Laws and Regulations

The RBI is the primary regulator for most Fintech activities in banking, payments and lending. The jurisdiction of other regulators may also get attracted, depending on the nature of the services being offered, including of the Securities and Exchange Board of India (“SEBI”) when dealing in the securities market, the Insurance Regulatory and Development Authority of India (“IRDAI”) for the insurance sector, as well as the Ministry of Electronics and Information Technology (“MEITY”) and the Ministry of Corporate Affairs (“MCA”), as may be applicable.

Regulations governing Digital Payments

PPIs

Regulation

Master Direction on Issuance and Operation of Prepaid Payment Instruments (“Master Direction”) which was issued by the RBI by virtue of Section 18 read with Section 10(2) of the Payment and Settlement Systems Act, 2007 (“PSS Act”). PPIs can be issued as cards, wallets, and any such form / instrument which can be used to access the PPI and to use the amount therein. PPIs in the form of paper vouchers cannot be issued.

Eligibility

  1. All entities (both banks and non-banks), regulated by any of the financial sector regulators and seeking approval / authorisation from the RBI under the PSS Act, shall apply to Department of Payment and Settlement Systems (DPSS), RBI, Central Office, Mumbai along with a ‘No Objection Certificate’ from their respective regulator, within 45 days of obtaining such clearance.
  2. Non-bank entities applying for authorisation shall be a company incorporated in India and registered under the Companies Act 1956 / Companies Act 2013.
  3. The Memorandum of Association (MOA) of the applicant non-bank entity shall cover the proposed activity of operating as a PPI issuer.
  4. Banks which comply with the eligibility criteria, including those stipulated by the respective regulatory department of RBI, shall be permitted to issue semi-closed and open system PPIs, after obtaining approval from RBI.
  5. Non-bank entities which comply with the eligibility criteria, including those stipulated by the respective regulatory department of RBI, shall be permitted to issue only semi-closed system PPIs, after obtaining authorization from RBI.

Capital and other eligibility requirements

  1. All non-bank entities seeking authorisation from RBI under the PSS Act shall have a minimum positive net-worth of Rs. 5 crore as per the latest audited balance sheet at the time of submitting the application. Thereafter, by the end of the third financial year from the date of receiving final authorisation, the entity shall achieve a minimum positive net-worth of Rs. 15 crore which shall be maintained at all times.
  2. Newly incorporated non-bank entities which may not have an audited statement of financial accounts shall submit a certificate from their Chartered Accountants regarding the current net-worth along with provisional balance sheet.

Authorisation Process

  1. A non-bank entity desirous of setting up payment systems for issuance of PPIs shall apply for authorisation in Form A (available on RBI website) as prescribed under Regulation 3(2) of the Payment and Settlement Systems Regulations, 2008 along with the requisite application fees. The directors of the applicant entity shall submit a declaration in the enclosed format. RBI shall also check ‘fit and proper’ status of the applicant and management by obtaining inputs from other regulators, government departments, etc., as deemed fit. Applications of those entities not meeting the eligibility criteria, or those which are incomplete / not in the prescribed form with all details, shall be returned without refund of the application fees.
  2. In addition to the compliance with the applicable guidelines, RBI shall also apply checks, inter-alia, on certain essential aspects like customer service and efficiency, technical and other related requirements, safety and security aspects, etc. before granting in-principle approval to the applicants.
  3. Subject to meeting the eligibility criteria and other conditions, the RBI shall issue an ‘in-principle’ approval, which shall be valid for a period of six months. The entity shall submit a satisfactory System Audit Report (SAR) to RBI within these six months, failing which the in-principle approval shall lapse automatically. SAR shall be accompanied by a certificate from the Chartered Accountant regarding compliance with the requirement of minimum positive net-worth of Rs. 5 crore. An entity can seek one-time extension for a maximum period of six months for submission of SAR by making a request in writing, to DPSS, Central Office, RBI, Mumbai, in advance with valid reasons. The RBI reserves the right to decline such a request for extension.
  4. Pursuant to receipt of satisfactory SAR and net-worth certificate, the RBI shall grant final Certificate of Authorisation. Entities granted final authorisation shall commence business within six months from the grant of Certificate of Authorisation failing which the authorisation shall lapse automatically.
  5. The Certificate of Authorisation shall be valid for five years unless otherwise specified and shall be subject to review including cancellation of Certificate of Authorisation.
  6. Any takeover or acquisition of control or change in management of a non-bank entity shall be communicated by way of a letter to the Chief General Manager, DPSS, RBI, Central Office, Mumbai within 15 days with complete details, including ‘Declaration and Undertaking’ by each of the new directors, if any. RBI shall examine the ‘fit and proper’ status of the management and, if required, may place suitable restrictions on such changes.

KYC Requirements

The issuers can issue two types of semi-closed PPIs based on the level of their Know Your Customer (“KYC”) compliance, that is to say, on the level of identification-related information provided by the user. The first type can be issued with minimum or limited KYC. The minimum KYC details include the customer’s mobile number verified through One-Time-Pin (OTP), and a self-declaration of name and a government identification number to authenticate the account.

The amount of funds loaded in this type of an instrument, during any month, cannot exceed ten thousand rupees and the total amount loaded during the whole of financial year cannot exceed one lakh rupees. Only the purchase of goods and services is allowed and bank transfer and interoperability of the instrument is not permissible for PPIs with a limited KYC compliance.

These minimum-detail instruments are mandatorily required to be converted within 18 months into full-KYC compliant, semi-closed PPIs. On the other hand, the full KYC-compliant PPIs, apart from allowing for purchase of goods and services, offer the option of ‘fund transfer back to the source’, bank account transfers as well as transfer to beneficiaries of up to one lakh rupees per month.

Prevention of Money Laundering

The entity operating a digital payment system is required to adhere to the RBI Master Direction on Know Your Customer (KYC), 2016 for customer identification. These Master Directions have provided for a sound framework for the prevention of money-laundering and since the non-bank issuers are essentially in the business of operating a payment system, compliance with Prevention of Money Laundering Act, 2002 and the Prevention of Money-Laundering (Maintenance of Records) Rules, 2005 framed thereunder, is necessary.

Additionally, PPI issuers are required to maintain the log of all transactions for a period of ten years. This data shall be made available for scrutiny to RBI or any other agency / agencies as may be advised by RBI. PPI issuers are also required to file Suspicious Transaction Reports (STRs) to the Financial Intelligence Unit (FIU-IND).

Security of Payments

A strong risk management system is necessary for the PPI issuers to meet the challenges of fraud and ensure customer protection. PPI issuers shall put in place adequate information and data security infrastructure and systems for prevention and detection of frauds.

All PPI issuers shall put in place information security policy for the safety and security of the payment systems operated by them, and implement security measures in accordance with this policy to mitigate identified risks. PPI issuers shall review the security measures (a) on on-going basis but at least once a year, (b) after any security incident or breach, and (c) before / after a major change to their infrastructure or procedures.

Some of the mandatory requirements to be followed by the private entities to prevent fraudulent transactions are:

  1. If the PPI issuer provides the same login for its wallet and its other services, that information regarding the same has to be clearly conveyed to the holder.
  2. Restrictions on multiple invalid attempts to log in have to be placed.
  3. Every payment transaction has to be authenticated through customer consent and alerts should be sent out for every transaction.
  4. Overall, a suitable mechanism has to be put in place for preventing, detecting and restricting occurrence of fraudulent transactions.
  5. Increasing norms around customer protection and fraud prevention is going to have the effect of increasing customer confidence in the digital payments, thereby increasing its adoption and increasing business.
  6. As per the norms, a ‘cooling period’ for fund transfer is also a requisite whenever a new PPI account is opened, freshly loaded or a new beneficiary is added. In that time, alerts are sent to the customers to review the new additions and prevent erroneous transactions.

Interoperability

The ability of customers to use a set of payment instruments seamlessly with other users within the segment are based on adoption of common standards by all providers of these services so as to make them inter-operable. Accordingly, it has been decided to implement it in phases:

  1. In the first phase, PPI Issuers (both bank and non-bank entities) shall make all KYC-compliant PPIs issued in the form of wallets interoperable amongst themselves through Unified Payments Interface (UPI) within 6 months from the date of issue of the Master Direction. With Prepaid Payment Instruments (PPIs) – Guidelines for Interoperability released by the RBI in 2018, an attempt has been made to make the digital wallets operable with each other.
  2. In subsequent phases, interoperability shall be enabled between wallets and bank accounts through UPI.
  3. PPI Issuers shall ensure adherence to the technical and operational requirements for such interoperability, including those relating to safety and security, risk mitigation, etc.

UPI

UPI was developed by the NPCI and was launched in 2016. It facilitates inter-bank transactions in real-time which are processed either on web or a mobile platform. It also caters to the “Peer to Peer” collect request which can be scheduled and paid as per requirement and convenience.

How is it unique?

  • Immediate money transfers through mobile device round the clock 24*7 and 365 days.
  • Single mobile application for accessing different bank accounts.
  • Single Click 2 Factor Authentication – Aligned with the Regulatory guidelines, yet provides for a very strong feature of seamless single click payment.
  • Virtual address of the customer for Pull & Push provides for incremental security with the customer not required to enter the details such as Card no, Account number; IFSC etc.
  • Merchant Payment with Single Application or In-App Payments.
  • Utility Bill Payments, Over the Counter Payments, Barcode (Scan and Pay) based payments.
  • Raising Complaint from Mobile App directly.

NPCI Guidelines

For the functioning of UPI there is a Unified Payment Interface Guidelines by the NPCI. These guidelines are framed under the provisions of the Payment and Settlement of System Act, 2007. These guidelines are binding in nature and hence every member of UPI has to abide by them.

Membership Requirements

The Payment Service Provider/member should be a regulated entity by RBI under Banking Regulations Act 1949 and should be authorized by RBI for providing mobile banking service.

The member should comply with the Procedural Guidelines, certification requirements and efficiency and risk guidelines issued by NPCI from time to time.

Lastly, the bank should be live on Immediate Payment Service (IMPS).

Once the bank-enabled UPI agrees the entity can build their PSP (Payment Service Provider) which is well known as a third-party application. The partnered banks are entirely liable for all the financial and operation liability of these applications.

Other Requirements

The data of clients should be maintained by the banks, and the merchant app shouldn’t have access to it. The payment concerning the responsive data, credentials should by no means reach these merchant apps and only exist in the UPI system of the bank. It imposes accountability on the bank for the proper functioning of the apps and to make sure that the application assists supports all versions of Android and iOS.

These NPCI guidelines also offer freedom to the client for downloading any application as they want. Clients can have two applications in a single device, and no application should obstruct the working of the other while installing, operating or any function done by the application.

The present members can be suspended or terminated anytime from undertaking the functions by NPCI if the member fails to obey any UPI or NPCI product, procedural NPCI guidelines for UPI or any provisions by RBI or NPCI. It can further be terminated if the member’s RTGS account with the RBI is suspended. Moreover, in the case where the member bank is amalgamated or combined with another member bank, the membership is terminated or suspended. At last, if the RBI suspends the consent of the mobile application, then the also merchant stops being a member.

Obligation of PSP

Considering the sensitivity of these transactions, NPCI obligates the Third Party Application Provider (TPAP) as well as the PSPs certain requirements to be fulfilled to enable such transactions. Before initiating operations, the TPAP is mandated to seek a written permission from the NPCI and is required to give the names of the participating banks. The responsibility of the participating banks is immense as they are primarily responsible for providing security against any kind of breach of customer data that could happen through the third party apps. As the responsibility for storing payment sensitive data of the customers is with the PSP, they must perform an audit on the TPAP’s infrastructure to ensure that the integrity of such data is maintained and that the functioning of the app is secure. Along with the TPAP, the PSPs are also responsible for addressing the complaints of the consumers.

PSP should conduct due diligence on the potential technology service provider before selecting and entering into any form of outsourcing relationships. A bank should conduct an in-depth assessment of the third party’s ability to perform the said activities in compliance with all applicable laws and regulations and in a safe and sound manner. The PSP should consider the following during due diligence: a) Legal and Regulatory Compliance b) Financial Condition c) Business Experience and Reputation d) Qualifications, Backgrounds, and Reputations of Company Principals e) Risk Management f) Information Security g) Incident-Reporting and Management Programs h) Business Continuity Program.

Obligations of TPAP

The obligation on the third parties is to store only that customer data to which the customers have given their consent. A record of details like customer’s name, mobile number, gender, email id etc. can only be in an encrypted format and all the information exchange between the third party and the bank is to be done through a secure channel. As a caveat, it has also been provided that the third party shall not share the details of individual transactions with any other third party, including their holding company or subsidiary and the Indian Government or Intelligence without the prior consent of the PSP and NPCI.

Payment Gateways and Payment Aggregators

The RBI vide its Circular dated March 17, 2020, has issued the ‘Guidelines on Regulation of Payment Aggregators and Payment Gateways’ (the “Guidelines“) through which, the RBI has decided to (a) regulate in entirety, the activities of payment aggregators; and (b) provide baseline technology-related recommendations to payment gateways.

PAs are entities that facilitate e-commerce sites and merchants to accept various payment instruments from the customers for completion of their payment obligations without the need for merchants to create a separate payment integration system of their own. PAs facilitate merchants to connect with acquirers. In the process, they receive payments from customers, pool and transfer them on to the merchants after a time period.

PGs are entities that provide technology infrastructure to route and facilitate processing of an online payment transaction without any involvement in handling of funds.

Applicability

The Guidelines have been issued to regulate in entirety the activities of payment aggregators. In this regard, the RBI has also mandated payment aggregators to adopt the technology-related recommendations provided in the Guidelines. While the RBI has clarified that the domestic leg of import and export related payments facilitated by payment aggregators shall also be governed by these Guidelines, these Guidelines will not regulate Cash on Delivery (COD) payments.

The RBI, as a measure of good practice, has stated that PGs may adhere to the baseline technology-related recommendations provided in the Guidelines.

Authorization

The Guidelines provide that any entity seeking to make an application for authorization must be a company incorporated in India under the Companies Act 1956/ 2013 and shall ensure that the business activity of operating as a PA is covered under the scope of its memorandum of association.

Banks, however, provide PA services as part of their normal banking relationship and do not therefore require a separate authorisation from RBI. Non-bank PAs shall require authorisation from RBI under the PSS Act.

E-commerce marketplaces providing PA services shall not continue this activity beyond the deadline prescribed i.e. June 30, 2021. If they desire to pursue this activity, it shall be separated from the marketplace business and they shall apply for authorisation.

PGs shall be considered as ‘technology providers’ or ‘outsourcing partners’ of banks or nonbanks, as the case may be. In case of a bank PG, the guidelines issued by Reserve Bank of India, Department of Regulation (DoR) vide Managing Risks and Code of Conduct in Outsourcing of Financial Services by banks and other follow up circular(s) shall also be applicable.

Networth Requirements

PAs existing as on March 17, 2020 are required to achieve a net-worth of INR 15 crore by March 31, 2021, and a net-worth of INR 25 crore on or before March 31, 2023, which must be maintained at all times thereafter.

New PAs need to have a minimum net-worth of INR 15 crore at the time of application for authorisation and a net-worth of INR 25 crore by the end of third financial year of grant of authorization, which must be maintained at all times thereafter.

Non-bank PAs are required to annually submit a certificate to the RBI evidencing compliance with the applicable net-worth requirement.

Lastly, the Guidelines require that the net-worth consist only of paid-up equity capital, preference shares that are compulsorily convertible to equity (“CCPS“), free reserves, balance in share premium account and capital reserves representing surplus arising out of sale proceeds of assets but not reserves created by revaluation of assets adjusted for accumulated loss balance, book value of intangible assets and deferred revenue expenditure, if any. In this regard, the CCPS can be either non-cumulative or cumulative and the shareholder agreements should specifically prohibit any withdrawal of this preference capital at any time.

PAs shall submit a certificate in the specified format from their Chartered Accountants to evidence compliance with the applicable net-worth requirement while submitting the application for authorisation. Newly incorporated non-bank entities which may not have an audited statement of financial accounts shall submit a certificate in the enclosed format from their Chartered Accountants regarding the current net-worth along with provisional balance sheet.

Governance

The Guidelines provide a comprehensive governance framework for PA, key elements of which have been summarised below:

  1. PA should be professionally managed. To this extent, promoters of the PAs entity shall need to satisfy the fit and proper criteria prescribed by the RBI. RBI shall also check the ‘fit and proper’ status of the applicant entity and management by obtaining inputs from other regulators, government departments, etc., as deemed fit.
  2. Any takeover or acquisition of control or change in management of a non-bank PA shall need to be promptly communicated to the RBI, in order to ensure compliance with the fit and proper criteria of the management.
  3. PAs will now have to enter into direct agreements with all merchants, acquiring banks and other stakeholders, which will need to delineate the roles and responsibilities of the involved parties in sorting/ handling complaints, refund/ failed transactions, return policy, customer grievance redressal (including turnaround period), dispute resolution mechanism and reconciliation etc.
  4. PAs will need to have a Board approved policy for disposal of complaints/ dispute resolution mechanism/ timelines for processing refunds etc. as per the RBI instructions on Turn Around Time for resolution of failed transactions.
  5. PAs are required to appoint a nodal officer responsible for regulatory and customer grievance handling functions.
  6. Non-bank PAs shall maintain the amount collected by them in an escrow account with any scheduled commercial bank. An additional escrow account may be maintained with a different scheduled commercial bank at the discretion of the PA. For the purpose of maintenance of escrow account, operations of PAs shall be deemed to be ‘designated payment systems’ under Section 23A of the PSS Act.
  7. Amounts deducted from the customer’s account shall be remitted to the escrow account maintaining bank on Tp+0 / Tp+1 basis. The same rules shall apply to the non-bank entities where wallets are used as a payment instrument.
  8. Final settlement with the merchant by the PA shall be effected as under:
  • Where PA is responsible for delivery of goods / services the payment to the merchant shall be not later than on Ts + 1 basis.
  • Where merchant is responsible for delivery, the payment to the merchant shall be not later than on Td + 1 basis.
  • Where the agreement with the merchant provides for keeping the amount by the PA till expiry of refund period, the payment to the merchant shall be not later than on Tr + 1 basis.
  1. All credits for reversed and refund transactions shall be routed back through the same escrow account, unless the merchant is responsible for managing refunds under the merchant agreement and the customer is aware of this arrangement. The Guidelines list out the permissible credits into and debits from the escrow account. No interest shall be payable by the bank on balances maintained in the escrow account, except under certain circumstances outlined in the Guidelines. Importantly, the escrow account cannot be operated for ‘cash-on-delivery’ transactions, and settlement of funds with merchants must not be co-mingled with other business, if any, handled by the payment aggregator.
  2. All Pas shall submit certificate signed by the auditor, to the regional office of the RBI, where the registered office of the PA is situated, certifying that they have been maintaining the balance in the escrow account in compliance with the Guidelines.

Applicability of KYC/ AML/ CFT provisions

The KYC, anti-money laundering (AML)/ combating financing of terrorism (CFT) guidelines issued by RBI shall apply to all entities, along with Prevention of Money Laundering Act, 2002 and Rules framed thereunder.

Security, fraud prevention and risk management framework

All PAs are required to put in place adequate information and data security infrastructure and systems for prevention and detection of frauds, which must be aligned with its Board approved information security policy for safety and security of the payment systems operated by them. To this extent, PAs are required to comply with data storage requirements as applicable to payment system operators, which also includes obligations pertaining to data sovereignty.

PAs have additionally been directed not to store any customer card credentials within their database or server, which can be accessed by the merchant.

PGs

PGs have been considered as ‘technology providers’ or ‘outsourcing partners’ of banks and non-banks, as the case may be and have been advised to adopt the baseline technology-related recommendation provided in the Guidelines. To this extent, PGs may desire to adhere to the prescribed minimum standards in order to remain at power with similar IT and security standards adopted by non-bank PAs and other stakeholders in the digital payment ecosystem.

Bank PGs are further subject to RBI Guidelines on ‘Managing Risks and Code of Conduct in Outsourcing of Financial Services by banks.

Directors and Officers Liability Insurance

Directors and Officers (“D&O”) play a crucial role in running a company, making important decisions and bearing responsibilities towards various stakeholders. However, they are also susceptible to risks and personal liability for losses or harm suffered by the company arising out of the company’s acts during the course of their management. As a result, protecting such D&Os  from unnecessary claims is crucial.

References to D&O liability insurance (“D&O Insurance”) have been made under sections 197(13) and 149(8) read with Schedule IV of the Companies Act, 2013 (“Act”). However, obtaining a D&O Insurance has not been made mandatory under the Act.

Section 166 of the Act outlines the fiduciary duties of directors, including but not limited to (a) exercising due and reasonable care, skill, and diligence; and (b) not attempting to gain any undue gain or advantage. Failure of the D&Os to follow these duties could lead to several liabilities arising upon the company. The D&Os can also be held liable under other statutes, such as the Income Tax Act, 1961 (“IT Act”), the Goods and Services Tax Act, 2017 and other environmental and consumer protection laws.

The said D&O Insurance indemnifies D&Os against liabilities, except for those arising out of or in relation to fraud, wilful misconduct, bribery, insider trading, etc. Premiums paid by the company to the insurer shall not be considered to be a part of the D&Os’ remuneration, but if such D&Os are proven guilty of acting in contravention of the provisions of the Companies Act, 2013, it shall be considered to be  a part of their remuneration.

Under the IT Act, D&Os can be prosecuted with fines and imprisonment for (a) failure to deduct TDS(b) willful tax evasion; and (c) making false statements. The IT Act also imposes joint and several liabilities on every director of a private company for the recovery of tax dues.As per the provisions of the IT Act, directors who have either resigned or joined during the relevant previous year would be covered under the purview of the same.

Some of the specific exposures that make D&O Insurance necessary are:

  • Vulnerability to shareholder/stakeholder claims
  • Employment practice violations
  • Regulatory investigations
  • Accounting irregularities
  • Exposures relating to mergers and acquisitions
  • Corporate Governance requirements
  • Compliance with various legal statutes

Protecting D&Os through D&O Insurance is essential in today’s corporate environment, as companies and directors face increased risks and exposure to liability.

 

What are NFT’s ? Things you need to know.

Introduction

Non-fungible tokens (“NFTs”) are one-of-a-kind digital tokens that serve as proof of asset ownership and cannot be duplicated. NFTs use blockchain technology, which creates a digital record of all the NFT transactions over an extensive network of computers and cannot be exchanged with other items, unlike cryptocurrency. While NFTs can represent tangible assets such as property or artwork, the bulk of NFTs are used to describe digital collectables such as digital artwork, music, images, and videos. are cryptographic assets on a blockchain with unique identification codes and metadata that distinguish them from each other. Unlike cryptocurrencies, they cannot be traded or exchanged at equivalency. This differs from fungible tokens like cryptocurrencies, which are identical to each other and, therefore, can be used as a medium for commercial transactions.

NFTs are also known as nifties, representing real world objects like art, music, game items, and videos. NFTs are sold in digital card form. They are held on Etherum blockchain, primarily. An NFT has a unique owner at one time. While anyone can view a NFT, the buyer has the status of the official owner. They can be sold or transferred to another user via Blockchain technology. Due to this, the ownership can always be tracked.

How are NFTs created?

NFTs are created or ‘minted’ from objects that may represent tangible or non-tangible assets.These include:

  • Music
  • Art
  • Videos and Highlights
  • Video Game Skins and Avatars
  • GIFs
  • Collectables
  • Tweets

How To Buy NFTs?

To buy NFTs, a user needs to open a digital wallet that allows them to store cryptocurrency and NFT. In most cases, NFTs can only be bought for cryptocurrencies. The following steps shall be undertaken to buy NFTs:

  • First, you need to buy some cryptocurrency and store it in your wallet.
  • Then you can go to an NFT exchange and buy the NFT you like.

What Are The Risks?

Like cryptocurrencies, NFTs are largely unregulated. Anybody can create and sell an NFT and there is no guarantee of its value. Losses can stack up if the hype dies down.

In a market where many participants use pseudonyms, fraud and scams are also a risk.

Laws in India

Presently there is no law or legal framework that governs NFT in India. Their classification thus remains a tricky issue with the possibilities of how it can be defined. Under Indian law, NFTs are not yet categorised or recognised as “securities”, and no governmental organisation or authority regulates or recognises the trading platforms on which NFTs are traded. Some opine that NFTs fall under the ambit of mere contracts, whereas others consider NFTs to be a derivative based on their characteristics. The following shows how it can be dealt with under the existing legal framework.

Copyright

Many people believe that possessing an NFT is the same as owning the copyright to work; however, this is not the case. Owning an NFT involves holding a specific digital copy of the work, and it is a digital certificate filed on a blockchain that authenticates just the digital version. The property itself, artistic creation, is not transferred. This means that the underlying copyright typically stays with the work’s creator.

While it is possible for a copyright holder to transfer ownership rights to the purchaser of the NFT at the time of sale, the provisions of the Copyright Act 1957, require the contract for sale to provide for such assignment of rights explicitly, in writing.

Once the rights are assigned in compliance with the provisions of the Copyright Act 1957, an NFT holder would be treated as the owner of the copyrighted work. Accordingly, the rights of the parties to an NFT sale, and the extent of such rights, are determined by the governing sales contract.

Most NFT-related transactions take place through smart contracts, which may stipulate the terms of a licence, provide automatic royalties in case of resale transactions, set limits to the use of copyrights, and track subsequent purchases of an NFT. A smart contract is governed by the Indian Contract Act, 1872 and the Information Technology Act, 2000.

Cross Border Legal Implications

NFT’s have not yet been governed by any specific act in India but there are a few specific  Foreign Exchange Management Act of 1999 (“FEMA”) laws that do prevent crypto-trading. Even if allowed, the laws for crypto-trading or NFT’s would depend solely on how the assets in question have been treated in relation to ownership.

Chapter VIII of the Finance Act, 2016 contains the provisions relating to Equalisation Levy(“EL”). Section 165A of the Income Tax Act, 1961 charges an equalization levy of 2% on the consideration received by an ‘e-commerce operator’ from ‘e-commerce supply or services’ made or provided or facilitated by it. If a marketplace is classified as an e-commerce operator under the Finance Act, the EL of 2% may be applied to either the gross value of the NFT or the gas fee imposed by these marketplaces or both. In addition, cross-border NFT transactions will be subject to the FEMA.

GST

Section 9 of the Central Goods and Services Tax Act, 2017 (CGST Act) states that GST is levied on goods, services, or both. The Act’s definition of ‘goods’ covers all types of moveable property, while the definition of ‘services’ encompasses everything that isn’t a movable property. This opens the door to the possibility of imposing GST on NFTs. On the other hand, the definition of ‘supply’ requires that the transaction take place in the course or promotion of business. NFT developers will likely have to charge GST at the point of sale.

Security 

If an NFT represents an asset that is classified as a security under Indian securities regulations, it might be subject to such laws. NFTs are effectively derivatives under the Securities Contract (Regulation) Act of 1956 (SCRA), according to certain legal authorities. Derivates are defined as “a security derived from a debt instrument, share, loan, whether secured or unsecured, risk instrument, contract for differences, or any other form of security; a contract whose value is derived from the prices, or index of prices, of underlying securities”, according to the SCRA.

As a result, if a particular NFT relates simply to an existing asset and is offered as a guarantee of the asset’s authenticity, classifying it as a security (derivative) would be incorrect. Rather, it should be guided by contract rules in general. Fractional NFTs (which provide a partial ownership interest in the NFT), on the other hand, which have arisen as a result of exorbitantly priced NFTs that most market players cannot purchase, may be classified as a security. Furthermore, if promises of a return on investment are made, NFTs will appear to be a speculative investment rather than a digital collection, and hence could be classified as a security in India.

Conclusion

Trading NFTs is risky unless and until a definitive decision on the legality of cryptocurrencies in India is reached. A proposal for a Central Bank Digital Currency (CBDC) backed by the country’s banking regulator could be included in the Cryptocurrency Regulation bill set to be introduced soon.

Data Protection Laws in India

India’s Growth Brings Data Privacy and Protection into Focus: Understanding the Current Data Protection and Privacy Laws in India

India has rapidly grown in technology and economy, but this growth has also brought up the issue of data privacy and protection. Unfortunately, India has lacked any substantive legislative framework focusing primarily on data privacy and protection privacy laws in India. However, the government has formed a committee of experts to draft a data protection bill. The first bill in 2006 was based on the European data privacy directive, highlighting the need for stronger laws like the data protection laws in Europe.

Current Legislative Safeguards: IT Act and IT Rules

Data protection safeguards in India are mainly provided by the Information Technology (IT) Act, 2000, and IT Rules, which constitute inter-alia, the data privacy laws in India. These regulations provide the basic legislative safeguards for data security, privacy, and protection in India. The amendment of IT Act, 2008 added Sections 43A and 72A. Section 43 and 43A deal with unauthorized access of information and leakage of sensitive personal information while the Adjudicating officer (when claim or damages amounts upto 5 crores) or competent court (where claim exceeds beyond 5 crores) appointed under the Act can handle such cases and any appeal from such order passed shall lie with the Cyber Appellate Tribunals. Section 72 deals with disclosure of information in breach of contract and punishment for it, underlining the importance of data privacy regulations in India.

Judicial Safeguards After the AADHAR Judgment: The Need for Personal Data Protection

Data protection was first recognized by the Supreme Court in 2017 in the Aadhar Judgment, emphasizing the need for stronger data privacy laws. The court demanded the enactment of a proper legislation on data protection which should conform with the right to privacy of the individual, and the Personal Data Protection Bill, 2018 was created after this judgment. However, the same has been withdrawn and a new bill – Digital Personal Data Protection Bill, 2022 (2022 Bill) has been released in November 2022 for inviting comments from public. The 2022 Bill recognizes various rights and duties of the citizen and the obligations of the Data Fiduciary to use the collected data lawfully extending to include data collected for offshore/ cross border arrangements, and lays out the penalty for contravention.

Data Protection Bill 2022: The Need for Stronger Data Protection Laws

The committee of experts headed by retired Chief Justice BN Srikrishna had drafted the Personal Data Protection Bill in 2018. However, considering the ever evolving technology and data breaches and the increasing number of citizens using and relying on digital platforms, the Ministry of Electronics and Information Technology (MeitY) withdrew the 2018 Bill and replaced it with the comprehensive 2022 Bill. The Bill also defines a child (person under the age of 18 years) and states that parents’ consent is required for data collection from a child.

In Conclusion: Balancing Data Protection and Growth

According to the Supreme Court in the Puttaswamy judgment, the right to privacy is a fundamental right. The government policy on data protection must not dissuade framing any policy for the growth of the digital economy, to the extent that it doesn’t infringe on personal data privacy. India has one of the world’s largest population and a lot of sectors are unorganised and data is easily breached. As businesses operate in a globalized world, there is also a need to follow international data protection laws. Therefore, understanding right to privacy and data protection in India is crucial as we move towards a digitalized future. The establishment of a data protection authority and regularising how data is collected and used in India will go a long way in achieving this balance between data protection and growth.

FAQ’s

Q: Can personal data be shared without permission in India?

A: In India, sharing personal data without permission is not legal. The Information Technology (IT) Act, 2000, and IT Rules, 2011, provide the basic legislative safeguards for data security, privacy, and protection in India.

Q: Is data sharing legal in India?

A: Data sharing is legal in India, but only if the consent of the individuals whose data is being shared has been obtained prior. The Digital Personal Data Protection Bill, 2022, aims to enhance data protection in India by providing a framework for securing personal data, regulating its processing, and preventing misuse.

Q: Why is data privacy important?

A: Data privacy is important because it ensures that individuals have control over their personal information and can decide who can access it, how it is used, and for what purpose. Data privacy also plays an important role in preventing identity theft, fraud, and other forms of cybercrime.

Q: What are the 7 rules of data protection?

A: The 7 rules of data protection are transparency, accountability, purpose limitation, data minimization, accuracy, storage limitation, and security. Transparency involves informing individuals how their data is used, while accountability refers to taking responsibility for processing the data. Purpose limitation means that personal data collection and processing should only be done for specific, legitimate purposes. Data minimization aims to ensure that only the minimum amount of data is collected and processed. Accuracy involves ensuring that personal data is correct and up-to-date. Storage limitation refers to the idea that personal data should only be kept for as long as necessary. Finally, security involves protecting personal data against unauthorized access, loss, or damage.

How can a Foreign Company enter India?

Foreign companies can expand their operations to India by setting up a place of business, either by themselves or through agents, physically or electronically. To be considered a ‘Foreign Company,’ one must fulfill both criteria mentioned above.

The foreign company incorporation in India is divided into four categories: Project Offices (PO), Branch Offices (BO), Liaison Offices (LO), and Foreign subsidiaries. Each entry route has its set of conditions, rules and regulations that need to be followed.

Project Offices (PO)

If a foreign company plans to execute a specific project in India, it can set up a Project Office (PO) to represent its interests. Essentially, a PO is a branch office with a limited purpose of executing a specific project. Foreign companies engaged in construction or installation typically set up a PO for their operations in India.

Branch Offices (BO)

Branch Offices (BO) are suitable for foreign companies who wish to test and understand the Indian market with stringent control by the Reserve Bank of India (RBI). With BOs, companies can conduct business activities listed in the BO application.

An application from a person resident outside India for BO requires prior approval from the RBI. The AD Category-I bank forwards it to the General Manager, Reserve Bank of India, Central Office Cell, Foreign Exchange Department, 6, Sansad Marg, New Delhi – 110 001, who processes the application in consultation with the Government of India.

When applicants belong to certain countries such as Pakistan, Bangladesh, Sri Lanka, Afghanistan, Iran, China, Hong Kong, or Macau and apply for a BO in Jammu and Kashmir, North East region, and the Andaman and Nicobar Islands, the authority consults with the Government of India. Additionally, if the applicant’s principal business falls in the defense, telecom, private security, and information and broadcasting sector, government approval is mandatory.

Furthermore, entities such as Non-Government Organization (NGO) and Non-Profit Organization, Body/ Agency/ Departments of foreign governments, must obtain a certificate of registration as per the Foreign Contribution (Regulation) Act, 2010.

The non-resident entity for BO in India should have a financially sound track record of a profit-making track record during the preceding five financial years in the home country and net worth of not less than USD 100,000.

The general conditions for setting up a BO in India include registering with the Registrar of Companies under the Companies Act, 2013. BOs can open non-interest bearing current accounts in India, obtain Permanent Account Number (PAN) from Income Tax Authorities, transact through one designated AD Category-I bank, and acquire property following the guidelines issued under Foreign Exchange Management.

Liaison Office

A Liaison Office (LO) does not conduct commercial or trading activity; it’s a place of business to act as a communication channel between the principal place of business or head office and entities in India. LO maintains itself through inward remittances received from abroad through a normal banking channel.

Permitted Activities for LO in India of a person resident outside India

  • Representing the parent company/group companies in India.
  • Promoting export/import from/to India.
  • Promoting technical/financial collaborations between parent/group companies and India.
  • Acting as a communication channel between the parent company and Indian companies.

Applications from foreign companies for establishing an LO in India shall be considered by the AD Category-I bank as per the guidelines given by RBI. An application from a person resident outside India for opening an LO in India requires prior approval from RBI.

The non-resident entity applying for an LO in India should have a financially sound track record, viz: a profit-making track record during the immediately preceding three financial years in the home country and net worth of not less than USD 50,000 or its equivalent.

Steps in setting up an LO

There are two routes available under the Foreign Exchange Management Act 1999 (FEMA) for setting up an LO in India: Reserve Bank Approval Route and Automatic Route.

  • Designate a bank and branch where an account will be opened (post-approval of RBI) and an Authorized Dealer Bank (AD Bank) for LO in India.
  • Apply LO with all necessary documents to the RBI through the AD Bank.
  • Obtain approval of RBI.
  • Apply to the Registrar of Companies (ROC) to obtain a ‘Certificate of Establishment of Place of Business in India’ within 30 days of approval by RBI.
  • Apply for Permanent Account Number with Income Tax Authority.
  • Apply for TAN with the Income Tax Authority.
  • Open an account with the bank and obtain a bank account number.
  • Registration with police authorities if required.

Foreign Subsidiary in India

A foreign subsidiary company is any company where 50% or more of its equity shares are owned by a company incorporated in another foreign nation. In such a case, the said foreign company is called the holding company or the parent company.

To operate in India through a subsidiary company, any foreign company (parent company) registered/incorporated outside India must hold at least 50% of the shareholding of the subsidiary company. The subsidiary can be registered as either a public limited company or a private limited company in India, with the latter being the preferred mode.

The subsidiary company must comply with additional Reserve Bank of India (RBI) regulations since it receives foreign investment through Form FC-GPR and FC-TRS. Additionally, the subsidiary company must be compliant with FC-1, FC-3 & FC-4 forms.

The subsidiary company must have a registered office in India, and out of the minimum requirement of two directors, the company must have at least one Indian citizen (a person who has stayed in India at least 182 days in the previous year) as a Director.

The foreign subsidiary must be compliant with the Foreign Direct Investment policies filed through FC-TRS, which report the transfer of foreign subsidiary company shares between an Indian resident and a non-resident investor. Additionally, the foreign subsidiary must be compliant with FC-GPR which reports on the remittance received by the shareholders of the foreign subsidiary company.

Steps in brief

To set up a foreign subsidiary company in India, companies must:

  • Apply for the company’s name reservation in Spice+ Part A with the Registrar of Companies (ROC).
  • Post-approval of the company’s name, apply for incorporation of the company through Spice+ Part B, attaching the Memorandum and Articles of Association of the Company. ROC fees and Stamp duty must be paid online.
  • Post verification of documents, ROC will issue the Certificate of Incorporation (COI), PAN and TAN of the company simultaneously by the department.
  • The subsidiary must open a current account and bring share subscription money from all the shareholders.
  • Intimate RBI regarding the receipt of share subscription, which will be considered as FDI, and within 30 days must file e-Form FC-1.

Foreign subsidiaries are treated at par with any other Indian company. Therefore, general requirements pertinent to any private/public company follows. By following these guidelines, foreign companies can easily enter the Indian market and establish a subsidiary company. Compliance is key to meet all legal and regulatory requirements for each entry route, and compliance with the OPC annual compliance checklist can help ensure that all regulations are being adhered to.

As long as laws for foreign companies in India are adhered to, these subsidiaries are treated at par with any other Indian company. Whether via project office, branch office, liaison office or a foreign subsidiary, each mode of entry has its own advantages and disadvantages, hence the choice depends on the business’ objectives and requirements.

FAQs about Foreign Company Incorporation in India

Q: What documents are required to register a foreign company in India?

A: The documents required to register a foreign company in India include the Memorandum and Articles of Association of the company, attested by a notary public or Indian embassy/consulate. Other documents include a certificate of incorporation, a certificate of good standing, and a resolution from the board of directors of the foreign company authorizing the opening of a branch office in India. Additionally, the documents must be translated into English and notarized.

Q: What is the difference between an Indian company and a foreign company?

A: An Indian company is a company that is incorporated in India, according to the Companies Act, 2013. In contrast, a foreign company is a company that is incorporated outside India. Indian companies require registration with the Registrar of Companies in the state in which it is registered, while foreign companies can operate in India through various entry routes such as Project Offices (PO), Branch Offices (BO), Liaison Offices (LO), and Foreign Subsidiaries. Foreign companies are also subject to different regulations compared to Indian companies and must comply with additional regulations under the Foreign Exchange Management Act (FEMA) and the Companies Act, 2013.

Understanding Pros and Cons for setting up a LLP

Introduction

A Limited Liability Partnership (“LLP”) is an alternative business form that gives the benefits of limited liability of a company and the flexibility of a partnership. It has a separate legal entity distinct from that of its partners. It is capable of entering into contracts and holding property in its own name. Further, no partner is liable on account of the independent or un-authorized actions of other partners, thus individual partners are shielded from joint liability created by another partner’s wrongful business decisions or misconduct.

Mutual rights and duties of the partners within a LLP are governed by an agreement between the partners or between the partners and the LLP as the case may be. The LLP, however, is not relieved of the liability for its other obligations as a separate entity.

Since LLP contains elements of both ‘a corporate structure’ as well as ‘a partnership firm structure’ LLP is called a hybrid between a company and a partnership.

All LLP’s are governed by the Limited Liability Partnership Act, 2008 (“LLP Act”).

Features of LLP

  • It has a separate legal entity.
  • Each partner’s liability is limited to the contribution made such partner.
  • Less compliance and regulations.
  • No requirement of minimum capital contribution.

The minimum number of partners to incorporate an LLP is 2. There is no upper limit on the maximum number of partners of LLP. Among the partners, there should be a minimum of two designated partners who shall be individuals, and at least one of them should be resident in India.

The rights and duties of designated partners are governed by the LLP agreement. They are directly responsible for the compliance of all the provisions of the LLP Act 2008 and provisions specified in the LLP agreement.

Advantages

Separate legal entity:

An LLP is a separate legal entity. This means that it has assets in its own name and can sue and be sued in its own capacity. No partner is responsible or liable for any other partner’s misconduct or negligence.

No owner/manager distinction:

An LLP has partners, who own and manage the business. Just like a private limited company, whose directors may be different from shareholders. Primarily for this particular reason, venture capital funds do not invest in the LLP structure.

Flexible agreement:

The partners are free to draft the LLP agreement with respect to their rights and duties.

Limited liability:

The liability of the partners is limited to the extent of their contribution made to the LLP. At the time of winding up, only the LLP’s assets are used for the clearing of debts. The partners have no personal liabilities and hence are free to conduct the business in the best manner possible without the fear of attachment of their property.

Fewer compliance requirements:

An LLP is much easier and cheaper to run than a private limited company as there are only a few compliances per year. On the contrary a private limited company has a lot of compliances to fulfil along with conducting an audit or other such compliance requirements. The LLP is required to get an audit done when turnover  exceeds, in any financial year, forty lakh rupees, or when contribution exceeds twenty five lakh rupees. Other Compliances which are not required in LLP Vis-à-vis a private limited company are having no requirement of minimum number of board meetings in the financial year, no requirement to distribute dividend and no payment of dividend distribution tax. However the tax compliances for both a private limited company and a LLP is similar. A LLP is charged a flat rate of 30% on its total income. The amount of income-tax shall be further increased by a surcharge at the rate of 10% of such tax, where total income exceeds one crore rupees.

Easy to wind-up:

Not only is it easy to start, it’s also easier to wind-up an LLP, as compared to a private limited company.

No requirement of minimum capital contribution: 

The LLP can be formed without any minimum capital. There is no requirement of having a minimum contribution before preparing an agreement. It can be formed with any amount of capital contributed by the partners.

Disadvantages

Difficulty in raising capital and funding:

The LLP does not have the concept of equity or shareholders like a company. Angel investors and venture capitalists can only invest in the form of partners in a LLP if they would want to. This would entail them to take up all the responsibilities of a partner. Thus, angel investors and venture capitalists prefer to invest in a company rather than an LLP making it difficult for the LLPs to raise capital. Also, Foreign Direct Investment (FDI) in LLP is more restrictive as compared to companies.

Public disclosure:

The documents filed through the MCA portal are public documents. Any person can pay a small fee and can access the copy of LLP’s incorporation documents other than the LLP agreement and financial statements. These documents are not accessible in the case of sole proprietorship or traditional partnership firm are not available for public viewership.

Non-Compliance is Expensive:

Even though the compliance requirements for an LLP are relatively low, it is essential to adhere to them, else it can lead to heavy penalties. In case of non-compliance, penalty of ten thousand rupees shall be levied and in case of continuing contravention, with a further penalty of one hundred rupees for each day after the first during which such contravention continues, subject to a maximum of one lakh rupees for the LLP and fifty thousand rupees for every partner of such LLP.

In the case of a proprietorship or traditional partnership firm, there is no such requirement to bear non-compliance expenses.

Who should prefer a LLP?

From the business perspective it is essential to understand the advantages and disadvantages of setting up a LLP in general, however it is also essential to understand if it is the best structure for your business.

To understand if setting up a LLP is the right start to your business journey it is also essential to view the below mentioned points from the point of view of taxation and the operations. Let us also look at these additional points.

  • If the business is engaged in manufacturing/ production and the dividend pay-out ratio will be relatively low: Incorporating a private company shall be beneficial as manufacturing companies can opt for lower taxation @ 20% as per section 115BAB of the Income-tax Act, 1961 and no deduction or allowance in respect of any expenditure or allowance shall be allowed in computing such income.
  • If the business is going to be engaged in trading a partnership firm / sole proprietorship would be a better choice as the benefit of presumptive taxation under section 44AD of the Income-tax Act can be taken. The total turnover or gross receipts can be charged to 6% or 8% tax, provided that total turnover doesn’t exceed INR 2 crores. Also the requirements to maintain formal books of accounts is not there in case of presumptive taxation.

Reporting under CARO 2020 vs. CARO 2016

  • Introduction

CARO 2020 is a new format for the issue of audit reports (attachment to the primary report) in case of statutory audits of eligible companies under the Companies Act, 2013. CARO 2020 has included additional reporting requirements after consultations with the National Financial Reporting Authority (an independent regulatory body for regulating the audit and accounting profession in India) as compared to CARO 2016.

The primary aim of CARO is to enhance the overall quality of reporting and disclosure of overall material matters of the Company by the company auditors.

  • Effective date

CARO, 2020 is applicable for the Financial years commencing on or after 1st April 2020.

(earlier it was applicable from 1st April 2019)

  • Applicability

There are no changes proposed in the applicability section of CARO, 2020. It applies to all companies (including exceptions) as per the previous CARO, 2016. We have listed down below the category of such companies to have a ready reference.

CARO, 2020 applies to all companies including foreign companies, except:

  • Banking company;
  • Insurance company;
  • Company licensed to operate under Section 8 of Co. Act, 2013;
  • Small Company;
  • Private Limited Company, not being a subsidiary or holding of public company, having:
    • Paid up capital and Reserves & surplus not more than 1 Crore as on balance sheet date;
    • Borrowing not exceeding 1 Crore from bank/financial institution at any point of time during financial year;
    • Revenue not exceeding 10 Crore during financial year as per the financial statements
  • Comparative Clauses

There are in total 21 clauses in CARO 2020 as compared to the existing CARO 2016 that has 16 clauses.

  • Key Changes/ Highlights between CARO, 2020 and CARO, 2016

Let’s analyze the proposed changes clause-wise between CARO 2020 and CARO 2016.

Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife
Reporting under CARO 2020 vs. CARO 2016 - Treelife

Intermediary Guidelines 2021

The Ministry of Electronics and Information Technology (“MeitY”), on 25 February 2021, had notified the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 (“Intermediary Guidelines”) which superseded the Information Technology (Intermediary Guidelines) Rules, 2011 (“Intermediary Guidelines, 2011”) and brought under their scope numerous online entities by introducing broad new terms and definitions.

The Intermediary Guidelines 2021 have been amended recently vide the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Amendment Rules, 2022 published and notified in the Gazette dated October 28, 2022 (“Amending Rules”).

Intention of the Ministry

The lack of transparency, accountability of intermediaries and social platforms on the internet and violation of rights of users of digital media had been a growing concern for the nation in the changing and ever-advancing technology and digital media space. Considering the need of the hour, the MeitY issued the Intermediary Guidelines, 2021 covering many issues related to use of digital media and defining the responsibilities of the  intermediaries, including social media intermediaries, and also providing a code of ethics to be followed and outlining grievance redressal mechanisms to be followed.

The Intermediary Guidelines sought to address all the issues faced by social media and internet users and to regulate the following categories of intermediaries and digital media entities:

  1. Intermediaries including social media intermediaries and significant social media intermediaries;
  2. Publishers of news and current affairs content, including news aggregators, news agencies, and individual news reporters to the extent they are transmitting content in the course of a commercial activity
  3. Publishers of online curated content, including individual creators transmitting content in the course of a systematic business, professional or commercial activity.

This has been a major step forward in today’s digital world, establishing a practice of regulating a critical sphere of our lives and also the nation’s economy.

Further, in its press release, the MeitY stated that the Amending Rules were being notified in view of the complaints against  the intermediaries due to their action/inaction regarding user grievances regarding objectionable content or suspension of their accounts

Definitions

The Intermediary Guidelines provided the following definitions:

  • News Aggregator (Rule 2(o))
    An entity who, performing a significant role in determining the news and current affairs content being made available, makes available to users a computer resource that enables such users to access the news and current affairs content which is aggregated, curated and presented by such entity.
  • Publisher of news and current affairs content (Rule 2(t))
    An online paper, news portal, news aggregator, news agency and such other entity called by whatever name, which is functionally similar to publishers of news and current affairs content but shall not include newspapers, replica e-papers of the newspaper and any individual or user who is not transmitting content in the course of systematic business, professional or commercial activity.
  • Publisher of online curated content (Rule 2(u))
    A publisher who, performing a significant role in determining the online curated content being made available, makes available to users a computer resource that enables such users to access online curated content over the internet or computer networks, and such other entity called by whatever name, which is functionally similar to publishers of online curated content but does not include any individual or user who is not transmitting online curated content in the course of systematic business, professional or commercial activity.
  • Significant social media intermediary (Rule 2(v))
    social media intermediary having a number of registered users in India above such threshold as notified by the Central Government. This threshold has been set at fifty (50) lakh users.
  • Social media intermediary (Rule 2(w))
    An intermediary which primarily or solely enables online interaction between two or more users and allows them to create, upload, share, disseminate, modify or access information using its services.

Other important definitions include communication link, news and current affairs content and online curated content which together fulfill the government’s purpose of regulating numerous kinds of information available on the internet.

The Intermediary Guidelines are divided into two parts:

  • Due diligence obligations applicable to intermediaries and grievance redressal, and
  • Code of ethics and related safeguards and procedures applicable to entities in the digital media space

It must be noted here that; Rule 3 of the Intermediary Guidelines require an intermediary to observe due diligence while discharging its duties. If this mandate of due diligence is not complied with, such an intermediary shall not qualify for ‘safe harbor’ protection, as granted under Section 79 of the Information Technology Act, 2000 (“IT Act”). The due diligence obligations include publishing, in a prominent manner, the rules and regulations, privacy policy and user agreement for access or usage by any person (these shall, thereafter, be collectively referred to as “Access Policy”). The Amending Rules require such Access Policy to be in English or any of the official languages of India as specified in the Eighth Schedule to the Constitution so that it can be understood by the users in the country easily. The Access Policy must also inform the user to not host, display, upload, modify, publish, transmit, store, update or share any prohibited information. After the Amending Rules were enforced, there are nine categories of such prohibited information ranging from unauthorized information as a consequence of it belonging to another person to information which threatens the unity, integrity, defense, security or sovereignty of India.

As part of its due diligence obligations, an intermediary must also do the following:

  1. Periodically inform its users that their non-compliance with the Access Policy allows the intermediary a  right to terminate such users’ right to access or usage of the intermediary’s website or mobile application (hereinafter collectively referred to as “Platform”).
  2. Not host, store or publish any unlawful information, or if so done, the intermediary shall remove or disable access to such information at the earliest but not later than thirty-six (36) hours of having received actual knowledge of the unlawfulness of the impugned information. A similar obligation was placed upon an intermediary under the Intermediary Guidelines, 2011; however, an intermediary was also required in case it obtained knowledge of such information by itself and not necessarily by actual knowledge. An intermediary was also required to work with the user or owner of such information to disable it. The Intermediary Guidelines, 2021, on the other hand, limit the obligation to receiving actual knowledge in the form of an order by a competent court or on being notified by the government or its agency.

While, prima facie, this step shall ensure that only information that has been verified to be unlawful shall be subject to not being hosted, stored or published, or removed or disabled accessed to, it does not keep any person from having such information on display on an intermediary’s platform till the time a court or an appropriate government acts upon it.

An exception is made to this rule, wherein, an intermediary, within twenty-four (24) hours from the receipt of a complaint made by an individual (or on behalf of such individual), with regard to any content which, prima facie, depicts nudity, sexual conduct or impersonation of such individual, must take such content down.

  1. Any information, which has been removed or to which access is disabled, shall be preserved, without vitiating evidence, up to one hundred and eighty (180) days or more, as may be required by a court or (lawfully authorized) government agency.
  2. Any information collected from a user upon his/her registration shall be retained for one hundred and eighty (180) days after cancellation and/or withdrawal of his/her registration.
  3. Reasonable security measures must be implemented to protect the Platform, its users and the information contained therein, compliant with the reasonable security practices and procedures as prescribed in the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Information) Rules, 2011
  4. Co-operate with any government agency lawfully authorized to perform investigative, protective or cyber security activities and provide any related information under the control or possession of the intermediary within seventy-two (72) hours of receipt of an order to do so.
  5. The intermediary must not, knowingly deploy, install or modify its Platform’s technical configuration or become a party to an act which may result in such consequence. It is also required to report cyber security incidents and share related information with the Indian Computer Emergency Response Team.
  6. The intermediaries are required to respect the rights guaranteed to users under the Constitution, including a reasonable expectation of due diligence, privacy and transparency. This obligation was inserted via the Amending Rules.

Furthermore, Significant Social Media Intermediaries are required to observe additional due diligence which includes:

  1. Appointment of a Chief Compliance Officer.
  2. Appointment of a nodal contact person (other than the Chief Compliance Officer) for full time coordination with law enforcement agencies and officers.
  3. Appointment of a Resident Grievance Officer.
  4. Publishing of monthly compliance reports containing details of complaints received and actions taken.

If a Significant Social Media Intermediary provides services primarily in the nature of messaging, it must enable the identification of the first originator of the information available on such platform, as may be required by a judicial order passed by a competent court or an order passed under Section 69 of the IT Act and applicable rules, by a competent authority.

To curb the abuse of this Rule, it has been provided that such orders shall only be passed for prevention, detection, investigation, prosecution or punishment of an offence and only if other means, not as intrusive, cannot be employed. It is further provided that the contents of any electronic message or other such information relating to the first originator needn’t be disclosed. Thus, an attempt has been made to balance public or national interests and the protection of individual privacy.

  1. Significant Social Media Intermediaries are also required to endeavour to adopt technology-based measures to proactively identify information depicting the act or simulation of rape, child sexual abuse or other such conduct, or any information which was previously removed or the access to which was disabled, and to display notice to users attempting to access such information.
  2. Here, it has been provided that interests of free speech and expression, user privacy and so on, must be duly regarded and measures must be proportionate. Appropriate human oversight of such measures, including periodic reviews evaluating their accuracy and fairness, must also be deployed to ensure their proper functioning.
  3. Significant Social Media Intermediaries are also required to have a physical contact address in India which must be published on their Platform.
  4. A grievance redressal mechanism must be implemented which must enable aggrieved users to track the status of their complaint via a unique ticket number. Moreover, the complainants must be provided with reasons for why the Significant Social Media Intermediary acted or did not act upon their complaint to a reasonable extent.
  5. Enable users to voluntarily verify themselves and provide a demonstrable and visible mark of verification to such users. The information provided by any user, in furtherance of this, shall not be used for any other purpose, unless expressly consented to.
  6. Before removal or disabling access to information, which is unlawful, on its own accord, a Significant Social Media Intermediary must notify the user who has created or uploaded such information and provide an adequate and reasonable opportunity to such users to dispute the action.

In addition to the above, an intermediary in relation to news and current affairs content shall publish on its Platform, at an appropriate place, a clear and concise statement informing publishers therein, to furnish details of their user accounts on the services of such intermediary to MeitY. Such publishers must be provided a demonstrable and visible mark of verification.

Grievance Redressal Mechanism

An intermediary is required to prominently publish the name and contact details of the Grievance Officer along with the redressal mechanism, including for receipt of complaints, on the Platform. The Grievance Officer shall

  1. Acknowledge the complaint within twenty-four (24) hours and dispose it of within a period of fifteen days from the date of its receipt,
  2. Receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.

An intermediary must, within 24 hours of receipt of a complaint made individual (or on behalf of such individual), with regard to any content which, prima facie, depicts nudity, sexual conduct or impersonation of such individual, must take all reasonable and practical measures to remove or disable access to such content.

The Amending Rules have inserted the definition of a Grievance Appellate Committee under section 2(ka), and also directed the Central Government to establish one or more Grievance Appellate Committees within three months from notification of the Amending Rules under newly inserted Section 3A of the Rules. Section 3A also provides for appointment of the committee members and its purpose. The Appellate Committee shall consist of three members headed by a chairperson, where two of such members shall be independent and one will be an ex-officio member. It is for enabling any aggrieved person to appeal to the Committee when he is not satisfied with the decision of the Grievance Officer and such appeal shall be disposed expeditiously within 30 calendar days from filing of the appeal

Code of Ethics

A three-tier code of ethics (“Code”) has been implemented which is largely self-regulatory in nature. This includes self-regulation by publishers of not only online curated content but also of news and current affairs content, operating in India and conducting the systematic business activity of making their content available here.

Level I provides for self-regulation by the publishers.

  • Publishers are required to establish a grievance redressal mechanism and appoint a Grievance Officer. Moreover, publishers of online curated content are required to classify such content based on appropriateness and suitability for persons of various age groups while having regard for context, theme, tone and impact and target audience. Other concerns such as the display or use of discrimination, psychotropic substances, liquor, smoking and tobacco, imitable behavioral, offensive language, nudity, sex and violence must also be duly accounted.

Such classification or rating must be displayed prominently and viewer discretion, if required, must be advised. Display ratings of the Online Curated Content such as ‘U’, or ‘U/A 7+,’ or ‘U/A 13+’, or ‘U/A 16+’, or ‘A’ prominently to its users in a manner that will ensure that the users are aware of the ratings before accessing such content.

  • Publishers must also make reasonable efforts to improve accessibility of online curated content to persons with disabilities by implementing appropriate access services.

Additionally, a publisher shall not transmit or publish any content which is prohibited by law or by a competent court and must also take into consideration national interests and India’s diversity while exercising due caution and discretion in featuring activities, beliefs, practices or views of any racial or religious group.

Level II provides for the establishment of one or more independent and self-regulating bodies of publishers or their associations.

Such a body shall be headed by a retired judge of the Supreme Court or High Court, or an independent eminent person from the field of media, broadcasting, entertainment, child rights, human rights or such other relevant field and up to six other members who are experts in one or more of the aforementioned fields. The body must register itself with MeitY within thirty days of the date of notification of these rules or, if constituted after this period, within 30 days of its constitution.

The regulatory body shall:

  1. Oversee and ensure adherence, by all publishers, to the Code
  2. Provide guidance to publishers on the Code
  3. Address grievances which remain unresolved by publishers even after the fifteen (15) day period
  4. Hear appeals against decisions of publishers

The body can also issue guidance or advisories to publishers while disposing of a grievance or an appeal. It can also refer a matter to MeitY if it believes it necessary. If the body concludes there is no violation of the Code, such a decision must be conveyed both to the complainant and the publisher. Finally, in cases of non-compliance of a guideline or advisory, issued by the body, by a publisher, the matter may be referred to the Oversight Mechanism within 15 days of the period in which such compliance was required by such publisher.

Level III provides for an oversight mechanism which shall fall under the purview of MeitY, who shall, in turn, coordinate and facilitate adherence, by publishers, to the Code.

MeitY is required to do the following, as part of the oversight mechanism:

  1. Publish a charter for self-regulating bodies, including Codes of Practices
  2. Establish an Inter-Departmental Committee for hearing grievances or appeals to decisions made by the self-regulating body or complaints or references made regarding violation of the Code
  3. Issue guidance and advisories to publishers
  4. Issue orders and directions to publishers for maintenance and adherence to the Code

Analysis of Intermediary Guidelines 2021

The Intermediary Guidelines, 2021 seem to be a necessary step allowing the law to catch up with the constantly evolving and disruptive technology. With these Rules encouraging self-censorship, it is evident that the Executive recognizes how important it is to allow intermediaries freedom in their operation. However, it also uploads the need to protect individuals using such intermediary platforms and urges intermediaries to work in a conscious and ethical manner. The increase in compliance requirements is likely to result in higher volumes of complaints and access requests by government agencies, making it difficult to address the complaints in a short time frame as provided under the rules that is to say it may not be practical to take down content within these timelines. Provisions such as permitting the tracing of originators of the information drastically undermines the privacy of individuals. The local presence requirement as seeked under the new guidelines may also lead to increased operational costs.

As the Intermediary Guidelines are still in its early stages, it is crucial that while regulating the ever-changing and dynamic digital space, the Government and bodies responsible for enforcing and monitoring compliance under the Intermediary Guidelines, 2021, strike a balance between upholding the protections which individuals are entitled under the Indian Constitution or under any other law and to allow intermediaries to operate in India with limited restrictions, thereby, curbing any abuse while also helping the country’s digital economy to flourish.

Are Trademark and Brand Name two sides of the same coin?

Importance of Trademarks and Brand Names for Your Business:

Understanding the Differences Between a Brand & a Trademark

If you own a business, you have probably heard of the terms “brand” and “trademark.” While these words are often used interchangeably, they have distinct meanings. In this post, we will discuss the differences between a brand and a trademark, as well as the importance of each.

First, let’s define what brands and trademarks are. A ‘brand’ is a collection of features and elements that create a company’s identity in association with certain product(s) or service(s) that helps create brand value of the entity. This includes the brand name, logo, image, goodwill, personality, culture, and reputation.

On the other hand, a Trademark is defined in the Trademark Act, 1999 as, “a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include the shape of goods, their packaging and combination of colors.” A trademark is the intellectual property of a business. A trademark can be a visual symbol, logo, design, word, slogan, tagline, jingle or combination of these elements, created in relation to a particular brand. It differentiates a company’s products and services from competitors in the market.

Similarly, a brand name is the primary name of a company under which the company markets and sells its products or services, while a trademark is a representation in the form of logo or symbol or word or their combination for that brand name. A registered trademark allows a company to take legal action against those who copy or use the brand name or such trademark without permission in relation to the same goods or services. Trademarks often act as a distinguisher between two brands with similar names.

Registration of a trade mark is not mandatory, however, it is also not an inherent right available to the creator like is the case in copyright. Hence, it is important to protect your brand and intellectual property from infringement and misuse in the market and to secure your trademark’s creation, by opting for trademark registration. A registered trademark creates a niche in the industry, thus safeguarding your brand value and maintaining your position in the market. It also helps customers identify fraudsters trying to dupe them by using your mark. A brand value is one of the most important criteria that hold a company together and continuous usage of a certain trademark in relation to one’s brand helps build that brand value.

In summary, while brand and trademark are closely linked, they are separate concepts. A brand creates awareness and trust in a company, while a trademark provides a symbolic or graphic representation, and protection if it is registered to prevent theft or misuse of intellectual property.

FAQ’s

Q: What are examples of trademarks and brand names?

A: Some examples of trademarks include the Nike swoosh, the Apple logo, and the McDonald’s golden arches of ‘M’, or Coca-Cola in its unique italics font. Brand names include Coca-Cola, Google, and Amazon.

Q: What is the difference between brand, trademark, and copyright?

A: A brand is a collection of features that create a company’s identity, including the brand name, logo, image, personality, culture, and reputation. A trademark is a mark symbolizing that brand of a company and constitutes as its intellectual property, such as symbols, graphic representation, logos, designs, words, slogans or colors or combination. Copyright protects original works of authorship, including literary, artistic, cinematographic and musical works, and grants exclusive rights to the creator of the original work.

B2B SaaS – How Sales can be driven efficiently?

Unlock the Secrets to Efficiently Drive B2B SaaS Sales – Boost Your Revenue Now

B2B SaaS or Business to Business Software as a Service is a cloud-based software distribution model that allows companies to sell access to their software to other businesses. Rather than downloading software to a desktop PC, businesses can access SaaS products through an internet application or web browser. B2B SaaS products can include any kind of software such as office management, customer support or communication software used within a business.

Here are some advantages of B2B SaaS that make it valuable to a business:

  • Accessibility: B2B SaaS products can be accessed from any web browser, allowing businesses to manage operations effectively without the need to be at a specific location or operating system.
  • Automatic updates: As a cloud-based service, B2B SaaS businesses can automatically update the product without impacting the user’s operations. Additionally, with cloud-based applications, there is no requirement for storage or hardware on the end-users side.
  • Data capture and analytics: Since B2B SaaS software is centralized and automated, it is easier to capture data and provide in-depth analytics.
  • Cost-effective: B2B SaaS eliminates the need for businesses to own products, systems, and hardware that can be costly.
  • Efficient operations: B2B SaaS allows businesses to automate internal functions and operations at a relatively low cost.

Examples of some B2B SaaS Companies are:

  • HubSpot: A cloud-based inbound marketing and sales platform that provides tools for CRM, web analytics, content management, SEO, and social media analytics.
  • Google: Famous for its search engine, Google also owns and operates more than 130 different SaaS products. Some of Google’s services include a search engine, online advertising, document creation, digital analytics, and other services.

While B2B SaaS and B2C SaaS sales and marketing share the same end goal of helping customers, there are many differences in the process that make the need for a strong sales strategy important.

The B2B SaaS sales cycle is much longer and more complex than the B2C SaaS sales cycle. Businesses generally have more than one buyer on a team communicating with many sales reps and maybe even sales teams, where consumer purchases are usually done between one customer and one sales rep. With B2C SaaS, a user can directly input their credit card information and start using the product, while a B2B SaaS deal often requires a demo and onboarding process.

As B2B SaaS companies grow, they usually deploy an enterprise sales team that enables them to effectively target enterprise-sized companies who have unique needs.

B2B SaaS Selling Tactics

For startups finding the right marketing strategy that will attract new sales and build brand awareness can be challenging. From targeting the right audience to preparing sales teams for a competitive market, marketers may find it challenging to get their SaaS product in customers’ hands.

Some of the sales tips and marketing strategies used in B2B SaaS sales that can help any startup succeed are:

  • Position your software around competitor brands: The SaaS market is incredibly competitive. To meet company sales goals, marketers need to elevate their company above the competition. To do so, this often requires positioning your software above and against your competitors. Use data-based metrics to prove why your SaaS products are the superior choice for meeting your client’s needs. This could mean using case studies or conducting surveys.
  • Focus on customer retention: As business needs and software solutions are constantly changing, building a strategy that includes customer retention could set your business apart from others. To ensure that your business is well-positioned, continue to prove to customers why your software fits their needs. To encourage customer retention, SaaS sales reps

Best Practices for Selling B2B SaaS Effectively

Curate a Targeted Portfolio

In a digital marketplace flooded with too many options, B2B SaaS buyers can quickly become overwhelmed. To effectively address their pain points and boost revenue, start small with software that is highly targeted to potential customers. By curating the choices buyers have, you act as an expert advisor, steering them to solutions that will work best for them. As your software ecosystem evolves with services targeted to different buyer segments, you can significantly increase your marketplace’s revenue.

Highlight the Value of Your App

Never assume potential buyers understand the value of your app. To stand out from the competition, clearly communicate how your B2B SaaS offerings are relevant and different. Don’t overlook the obvious benefits your app provides, as these may not be as clear to potential buyers as they are to you.

Bundle Apps with Core Services

While buyers love a good deal, multi-app bundles can complicate the sales message and cycle in B2B SaaS. Instead, package apps with your core services. For instance, a telecom provider bundled a mobile broadband subscription with a tablet device and Microsoft Office 365, generating 1,500 active users in just a few months. Avoid attempting to solve too many challenges simultaneously, which makes the offer too complex and the business use unclear.

Use a Human Touch to Sell

While consumer devices have programmed us to believe apps sell themselves, this isn’t the case with B2B SaaS. Buyers need human assistance to make informed decisions.

Sell Solutions

To effectively sell B2B SaaS, put potential customers and their challenges first. Sales teams need to adopt a different mindset and focus on how the SaaS product can help customers solve their issues, leading to further growth for both the customer and the company. By prioritizing solutions, instead of speeds and feeds, you can sell B2B SaaS effectively.

SaaS Contract Negotiation Checklist: Top Ten Considerations

While SaaS has simplified enterprise software in multiple ways, however, subscribing to an “enterprise-class” system still requires a fairly complex contract negotiation process. Here is a SaaS contract negotiation checklist that covers the top ten crucial factors to consider when negotiating your SaaS Agreement:

1. Commercials

Usually discussed by the sales and/or the business teams and are negotiated before commencing the legal negotiation process. Pricing, payment terms, taxes, and billing methods should be negotiated with the sales or business teams before legal negotiation.

2. Liability Cap

The liability cap is the most important clause for protecting parties in claims as it sets a limit on the liability brought. Usually incorporated in an agreement to safeguard a party from any potential liability that may arise and to safeguard from any unlimited liabilities.

3. Intellectual Property (IP) Rights

While negotiating SaaS agreement, IP rights are of integral importance. The IP clause determines who owns IP rights and ensures that the agreement covers areas such as indemnity if a third-party claims IP infringement.

4. Effect of Termination

It’s important to stipulate what happens to data after termination of the agreement and for how long the customer has access to the platform, data backup frequency, and procedures.

5. Term

If a vendor offers pricing discounts, subscription metrics and additional fees, in such cases extended contract terms may be required. Vendors prefer longer terms because it provides more predictability in their revenue forecasting. Terms can range from 30 days to five years.

6. Indemnities

Clarify when indemnification is required and if limitations of liability apply to an indemnification claim. Ensure the contract provides indemnification for data as well as for security breaches and IP infringement.

7. Service Level Agreements (SLAs)

The SLA is the vendor’s commitment to keeping the system up and running and is typically expressed as a percentage of “up time”. You will almost always see the SLA represented as 95 to 99.9% or thereabouts. However, there is a wide variation in how the vendor calculates system uptime. A breach of the up time can result in grant of service credits, or a proportionate extension of the subscription period.

8. Data Protection Provisions

Include a differentiation between processor and controller and respective obligations in the agreement and ensure that it is GDPR-compliant.

9. Data Export

Two key things for consideration:

(a) you must ensure that data ownership is retained; and

(b) that you know how to export data in case of migrating to another system or the vendor going out of business and you need access to your data even before you select a new system.

10. Warranties

Generally, cloud service contracts contain many of the following warranties:

(1) that the service will materially conform to the documentation,

(2) the services will be performed in a workmanlike and professional manner,

(3) the provider will provide the necessary training for the customer to use the services

(4) the provider has sufficient authority to enter into this agreement

Other important considerations include disclaimers of warranties, force majeure, survival clause, and confidentiality provisions. Always ensure the customer fully understands that the services provided always carry inherent risks.

By prioritizing these ten factors in your SaaS contract negotiation checklist, you can create a solid SaaS agreement that aligns with your business’ needs, protects your interests, and ensures a successful and stress-free implementation.

FAQs on Points of Negotiation for SaaS Agreements

Q: How to negotiate the price for SaaS?

A: When negotiating the price for SaaS, it’s important to understand the service you’ll be receiving and what it’s worth to your business. You can request a detailed breakdown of the pricing structure and compare it with other vendors on the market. Be prepared to discuss payment terms and negotiate for discounts or bundling options when possible.

Q: How do you politely negotiate a contract? 

A: When negotiating a contract, it’s important to approach the process with an open and collaborative mindset. Be clear about your needs and priorities, but also take the time to understand the vendor’s perspective. Listen carefully and ask questions when necessary, and seek common ground where possible. Ultimately, aim for a mutually beneficial agreement that meets both parties needs.

Q: What are the key points in a SaaS agreement? 

A: The key points in a SaaS agreement include commercial terms, liability cap, intellectual property rights, effect of termination, terms, indemnities, service level agreements, data protection provisions, data export provisions and warranties. These areas cover crucial aspects such as pricing, data protection, and vendor responsibilities, and should be negotiated and agreed upon before signing the contract.

Q: What are the payment terms for SaaS contracts?

A: Payment terms for SaaS contracts can vary depending on the vendor and specific agreement. Some vendors may require payment upfront or on a monthly or annual basis. Others may offer more flexible payment schedules or subscription models. It’s important to review and negotiate payment terms to ensure they align with your business’ budget and cash flow needs.

Determining the exercise price of a stock option

Exercise price or strike price is the price at which the holder of stock options has the right, but not the obligation, to purchase vested options within the term period.

ESOPs that have vested can be exercised. To do this, the employee has to reach out to the CHRO or the finance team, and initiate the process of exercising ESOPs. Note that the employee has to pay a tax while exercising ESOPs, and only after that he/she will receive the shares and then may choose to sell.

The strike price of options can be anything that is chosen by the company while giving out the ESOP grant letter. Some startups choose the exercise price as a nominal amount (say INR 10) while some startups choose the exercise price based upon the last round valuation of the company.

In the latter case, the difference in the company’s valuations between when the employee joined and the liquidity event in which he/she sells ESOPs, represents the money gained by the employee.

While there is no concrete formula to arrive at the ideal exercise price, we suggest founders set the exercise price at a nominal value (face value of shares at minimum). There are two advantages of a nominal exercise price:

  • Employee-friendly: Employees won’t have to pay a larger value for exercising their ESOPs
  • Independent of Valuation: If the valuation of the startup goes down significantly, employees might end up losing money from the ESOPs they would have exercised

Let’s say the exercise price of ESOPs as per the last round valuation of the company is INR 80, and the employee was offered 100 ESOPs at an exercise price of INR 70. The company went on to raise another round of funding 3 years after ESOPs were granted to this particular employee. Assuming that the valuation of the company has gone down and the FMV of shares is INR 65 now, the employee will make a loss of INR 5 per share if he/she exercises and sells the shares on the present day.    

Now if the employee was granted ESOPs at a nominal exercise price of INR 10 each, the employee will make some money despite the decreased valuation.

How Convertible Notes make fundraising seamless for startups?

If you’re a seed or early-stage startup in need of funds for hiring and operations, you may find it difficult to determine a fair valuation. That’s where convertible notes come in.

A convertible note is a short-term debt instrument that startups can use to raise funding. It allows holders to convert their debt into equity in the company at a future date. The biggest advantage of convertible notes for early-stage startups is that they don’t need to determine the value of the company when issuing them.

Unlike traditional equity financing, issuing a convertible note is quick and efficient. There’s only one document to deal with, which saves time and money for both the company and investors.

Until 2016, convertible notes were not legally recognized in India. However, the Companies (Acceptance of Deposits) Rules, 2014 were amended to recognize them as a fundraising instrument for startups.

DPIIT-registered startups can now raise funding through convertible notes, subject to certain conditions. The investment amount must be at least INR 25 lakhs in a single note and converted within 10 years. The terms of conversion must also be determined upfront.

By linking convertible notes to expected returns instead of valuation and percentage of ownership, startups can avoid the valuation quagmire that often comes with very early-stage investments.

Post Incorporation Formalities for PLCs & LLPs

After incorporating a Private Company (“PLC”) or Limited Liability Partnership (LLP), specific regulations in the Companies Act, 2013 and the Limited Liability Partnership Act, 2008 (“LLP Act”) must be followed to ensure compliance with the law. Certain post-incorporation compliances must be met before starting business operations to avoid any issues during the process. These activities exist due to provisions outlined in the Act or state-level laws such as the Shops and Establishment Act, State Stamp Act, and Professional Tax.

LLPs are a unique organizational form with characteristics of both a partnership firm and company and are governed by the LLP Act, 2008. Both PLCs and LLPs are administered by the Registrar of Companies (ROC). The following compliances must be met after receiving a certificate of incorporation.

Incorporation of a Private Limited Company (PLC) is a significant step in starting a business in India. However, it is important to note that certain compliances must be met to avoid penalties and ensure a smooth start to operations. Here are the mandatory post-incorporation compliances for PLCs:

1. Hold the first Board Meeting

According to Section 173, sub-section (1) of the Companies Act 2013, the company must hold the first board meeting within 30 days from the date of incorporation. The meeting must discuss important agenda items such as annual disclosures from directors, authorisation of share certificates, appointment of statutory auditor and such other agenda items. Failure to comply with this can result in a penalty of INR 25,000 for every officer of the company responsible for giving notice.

2. File Form INC-20A

All companies with share capital incorporated on or after November 2, 2018 having share capital, must file Form INC-20A within 180 days of incorporation in order to commence business or borrow funds. Failure to do so can result in a penalty of INR 50,000 for the company and a penalty of INR 1,000 per day for each officer in default during which the default continues, up to a maximum of INR 1,00,000.

3. Issue share certificates to first subscribers

Section 46(1) and 56, (4)(a) of the Companies Act 2013 mandates PLCs to issue share certificates to first subscribers, duly signed by two directors of the company and the company secretary, wherever the company has appointed a Company Secretary, if any, within a period of two months from the date of incorporation. Failure to comply can result in a penalty of INR 50,000 for the company and every officer of the company who is in default.

4. Payment of stamp duty on the share certificates

PLCs are required to pay stamp duty on the total consideration amount mentioned in the share certificates within 30 days of issuance. Failure to do so can result in a penalty as suggested by the Collector or officer in charge.

5. Appointment of first statutory auditor

As per Section 139, sub-section 6 of the Companies Act 2013, PLCs must appoint their first auditor within 30 days of incorporation. However, in case the Board fails to appoint, the shareholders must appoint the auditor within 90 days at an extraordinary general meeting. While there is no fine or penalty for failure to file Form ADT-1 for appointment of the first auditor, it is advisable to do so.

6. Shops and Establishment Registration/License

PLCs are required to obtain Shop and Establishment Registration under respective State’s as applicable. Penalty amount varies from state to state.

7. Professional Tax Registration (PTEC and PTRC)

PLCs must enroll under registration called (PTEC) and pay an annual mandatory fee of INR 2,500. Companies employing people with salaries above a specified limit (which varies from State to State) must obtain Professional Tax – Employee Registration (PTRC) when they begin to employ staff. The penalty amount for non-compliance varies from state to state.

8. Goods and Services Tax Registration

Every business whose annual turnover exceeds Rs. 40 lakhs or Rs. 20 lakhs for service providers, Rs. 10 Lakhs for North-Eastern States, Himachal Pradesh and Uttarakhand and J & K is required to obtain GST Registration under the Goods and Services Tax Act, 2017 and rules. While it is not mandatory to obtain GST Registration immediately upon incorporation, failure to pay tax can result in a penalty of 10% of the tax amount due subject to a minimum of Rs.10,000. In cases of deliberate tax evasion, the penalty will be at 100% of the tax amount due.

9. Trademark Registration

PLCs are encouraged to secure their business name through trademark registration under Section 18 of The Trademark Act, 1999.

10. MSME/SSI Registration

PLCs can also register under the MSME Development Act to get benefits such as collateral-free bank loan, preference in government tenders, and tax rebates.

Starting a Limited Liability Partnership (LLP) in India is a crucial milestone, and it’s essential to ensure compliance to avoid penalties and smoothly operate the business. Let’s go through the post-incorporation compliances required for LLPs:

i. File Form 3

After incorporating the LLP, the partners need to execute the LLP Agreement and file it with the Registrar. The LLP agreement is mandatory, and even in the absence of a specific LLP Agreement, the default LLP agreement given in Schedule I of the LLP Act shall apply. The form must be filed within 30 days of incorporation, and the penalty for non-compliance is Rs. 100 per day with no ceiling on the maximum fine.

ii. Apply for a PAN Card

The Issuance of PAN is integrated with the LLP incorporation process in form FiLLiP.

iii. Open a Bank Account

LLPs must open a bank account and transfer their capital to conduct transactions. No penalty or due date exists for this compliance.

FAQs

Q: When can a private company commence business?

A: A private company can commence business after filing form INC-20A within 180 days of Incorporation..

Q: What is the procedure after incorporation of a company?

A: After the incorporation of a company, the following procedures need to be carried out:

  • Hold first Board Meeting
  • Open a bank account for the company and transfer initial subscription
  • Appoint first a statutory auditor
  • Issue share certificates to the shareholders and payment of stamp duty
  • Registration for Goods and Services Tax (GST) if applicable
  • Registration for Professional Taxes if applicable
  • Startup India and Angel Tax exemption, if required
  • Obtain such other necessary licenses and permits if required for the business

Q: Which forms need to be filed after incorporation of a company?

A: After the incorporation of a company, the following forms need to be filed:

  • Form INC-22: This form is for the notice of the situation or change of registered office of the company, if the Company has been incorporated with a correspondence address
  • Form INC-20A: This form is for the declaration of commencement of business.
  • Form ADT-1: It is advisable to file this form appointment of first auditor.

Q: What documents are required to be filed at incorporation stage?

A: The following documents are required to be filed at the incorporation stage:

  • Spice Part-B: This is the e-form for the incorporation of a company.
  • Form INC-33 (E-MOA): This form is for e-memorandum of association.
  • Form INC-34 (E-AOA): This form is for e-articles of association.
  • INC-35: Agile Pro:Application for Goods and services tax Identification number , employees state Insurance corporation registration pLus Employees provident fund organisation registration, Profession tax Registration, Opening of bank account and Shops and Establishment Registration
  • INC-9: Declaration by Subscribers and First Directors

Q: Which is the first meeting to be held after incorporation?

A: The first meeting to be held after incorporation is the board meeting. It shall be held within 30 days of incorporation and typically includes the following agenda items;

  • To place the Certificate of Incorporation before the meeting;
  • Noting of First Directors;
  • To take a note of the disclosure of interest under Section 184(1) and certificate under Section 164(2) of the Companies Act, 2013;
  • Authority to open the Bank Account;
  • To inform the place of Registered Office;
  • To decide the Financial Year of the Company;
  • Appointment of First Auditor;
  • Adoption of Share Certificates;
  • Approval of Pre-Incorporation Expenses;
  • Commencement of Business;
  • Books and Registers;
  • Allotment of Shares and issuance of share certificates to the subscribers of the Memorandum of Association;
  • To decide and maintain minutes in Loose Leaf Folder;
  • To decide and maintain the Books of Accounts

Implications of a Force Majeure Clause

Are you worried about force majeure events impacting your contract in India?

It’s crucial to understand the force majeure clause’s meaning and its legal definition. A force majeure clause in contract explicitly sets out the terms that excuses a party from performing its contractual obligations under certain force majeure conditions or events.

The recent COVID-19 pandemic has forced organizations to revisit their force majeure clauses, and it is essential to have a sample force majeure clause in your contract to avoid breaching the contract.

It is important to read the force majeure clause carefully, determine the force majeure event’s legal definition, and evaluate payment obligations under the clause. For instance, some contracts may have carve-outs for payment obligations, which may not be covered even if the force majeure event delays the performance of the contract.

In India, the government has declared the current situation of COVID-19 as a force majeure event, making it necessary for organizations to include a force majeure clause in their contracts to protect themselves during these uncertain times.

To give you a better force majeure clause example, suppose your business is bound by a contract to deliver goods to a customer, but a natural calamity occurs, resulting in the transportation means being shut down. In this case, the force majeure clause in your contract can protect you from breaching the contract due to non-performance.

In summary, understanding the force majeure clause meaning and having a sample force majeure clause in your contract is essential to protect your business during unprecedented events like the current COVID-19 pandemic.

Are you wondering how force majeure events like COVID-19 are affecting contractual obligations in India? 

As per the force majeure legal definition, the Force Majeure (FM) clause in contract allows parties to be excused from the contractual obligations in case of events beyond their control, such as pandemics, natural disasters, and government orders.

Due to the outbreak of COVID-19, labor shortages and shutdown of services have affected the physical and legal performance of contractual obligations in India. Parties that are unable to perform are taking help of FM clauses to avoid any contractual remedies for non-performance.

However, some FM clauses do not include pandemics, which can lead to possible disputes and even breach of contract. Hence, to avoid any discrepancies, it is essential to have a well-drafted sample force majeure clause that clearly defines force majeure events. A well-drafted FM clause can make both parties aware of which events are force majeure events and which are not, making it simpler and more effective to deal with force majeure conditions.

In summary, it is crucial to understand the force majeure clause meaning and have a strong FM clause in your contract, which includes pandemics, to avoid any disputes or breach of contract during force majeure events like COVID-19. So, make sure to evaluate payment obligations and seek good counsel while drafting a force majeure clause to protect yourself and your business during such uncertain times.

FAQs

Q: How to write the force majeure clause in a contract?

A: A force majeure clause is an essential section of any contract that outlines the terms that excuse a party from fulfilling its contractual obligations in certain force majeure events. Writing a force majeure clause in a contract involves a few key steps:

  1. Identify Force Majeure Events: You need to identify the force majeure events that would be covered under the clause. These events may include natural disasters, wars, pandemics, government orders, and other similar situations.
  2. Be Specific: The language of the clause should be specific and unambiguous. It should identify the events that would excuse the parties from fulfilling their obligations
  3. Evaluation of Payments: It is important to evaluate the payment obligations under the clause, as some contracts may have carve-outs for payment obligations, which may not be excused even if the force majeure event delays the performance of the contract.
  4. Review Applicable Laws: You also need to review applicable laws and regulations to ensure that the language in the clause is legally enforceable.
  5. Notice of Force Majeure: The clause should also include a notice of force majeure provision that requires the parties to inform each other when a force majeure event will delay or prevent performance of contractual obligations.

In summary, drafting a force majeure clause requires a careful and detailed approach. It is essential to identify force majeure events, be specific in the language, evaluate payment obligations, review applicable laws, and include a notice of force majeure provision. An experienced lawyer can help draft a comprehensive force majeure clause that protects your interests in case of a force majeure event.

Understanding SaaS or Software-as-a-Service

SaaS or Software-as-a-Service is a software distribution model in which a third-party provider hosts applications centrally and licenses them to customers over the internet on a subscription basis. It is one of the three main categories  of cloud computing-based services, alongside Infrastructure-as-a-Service (IaaS) and Platform-as-a-Service (PaaS).

Pros and Cons of SaaS

SaaS has turned out to be quite helpful to organizations in terms of flexibility and cost-effectiveness, enabling businesses to provide efficient software-based services to large customer bases, using the widespread and ubiquitous availability of the cloud. However, recent stories around hacking and data leaks have shed light on the vulnerability of centrally and cloud-hosted software systems. In this regard, it is essential for SaaS-based startups and businesses to have well-drafted agreements, like a SaaS contract or software-as-a-service agreement, as well as strong technical and procedural security safeguards, to protect legal responsibility and safeguard the distribution and subscription licensing of the offering.

B2B vs B2C

B2B SaaS companies offer cloud business management solutions (products and services) to other companies and businesses, while B2C SaaS businesses sell products and services to consumers directly. Both B2B and B2C are subscription-based and track customer acquisition cost, churn rate, and user lifetime value metrics. However, their marketing strategies and approaches are different.

The Importance of a SaaS Agreement

A SaaS agreement, also known as a software-as-a-service agreement, sets out the provision and delivery of software services to customers through the internet, eliminating the hassle around conventional software licensing models. SaaS agreements are serious undertakings that require careful consideration.  Once properly drafted, a SaaS agreement eliminates the hassle around conventional software licensing models. The terms in a SaaS agreement can be renewed when the subscription period expires. A properly drafted SaaS agreement is crucial to prevent disputes from arising.

Essentials of Every SaaS Agreement

Here are the essential elements that every SaaS agreement should include:

  • Subscription and grant of rights, services, and functionality: Specify the type of service that you render to the client under the agreement, as well as ensure access to the software provided to users, subject to conditions, on a case-to-case basis.
  • Data Protection: Include a clause that highlights the protection of data that will be transmitted to the providers and how they will further process that data.
  • Intellectual Property (IP) Rights: Outline the intellectual properties of all parties involved in the SaaS agreement.
  • Confidentiality Clause: Safeguard confidential and proprietary information that will be shared between the parties.
  • Indemnities: Parties involved in an agreement may suffer certain losses and/or damages for which they shall stand liable and indemnify the other party for all losses, including costs that will be incurred during the course of legal suits.
  • Disclaimer: Include a disclaimer specifying what will not hold the provider liable.
  • Limitation of Liabilities: Limit liabilities of the provider under the SaaS agreement.
  • Representations and Warranties: Include the representations and warranties of both parties in the SaaS agreement. Since the provider will usually be the data processor and the user is the data controller, both parties should have certain warranties set out in the agreement
  • Terms of Service: Set out the term based on the subscription that the user has subscribed for.
  • Force Majeure: This clause will include the course of action at the time of extreme events that can be termed as ‘act of god’ – including hurricanes, tornadoes, floods, etc.
  • Service Level Agreements (SLA): A SaaS agreement should always include an SLA that covers the provisions of technical and support services, including availability and penalties.

SaaS vs EULA

While a SaaS provides the provision and delivery of software services to customers through the internet, an End User License Agreement (EULA)  licenses the end user to use the software in a limited manner. Under SaaS applications, users do not get a copy of the software. SaaS is usually hosted and accessed through the internet, similar to other commonly-used subscriptions availed by consumers for media, gaming, and more. A well-drafted SaaS example can provide more clarity and help in avoiding legal disputes.

SaaSEULA
Full FormSoftware-as-a-ServiceEnd User License Agreement
OwnershipVendor offers the software and users access it on the internet on a subscription basis. Ownership of software is not transferred to the userSoftware is purchased by the end user. Users have all rights – including copyrights. The user can make copies of the software for personal use
Termination of UsageUser’s right to the software ends upon termination of the SaaS agreementUser owns the software and has the grant of copying, downloading and installing it but is not allowed to resell it
Licensing/AccessThe customer is usually granted an access to use the softwareThe customer is provided with the licensing of the product/software

FAQs about SaaS Agreements

Q: What is included in a SaaS agreement?

A: A SaaS (Software as a Service) agreement typically includes terms and conditions related to the usage, access, and hosting of software applications provided via the internet. Key provisions that may be included are payment terms, data privacy and security, intellectual property rights, warranty, indemnification, termination, and liability limitations.

Q: Why use a SaaS agreement?

A: A SaaS agreement is used to establish a legal relationship between the provider and the customer for the use of software programs provided as a service. It sets out the terms and conditions of use to protect the rights of both parties.

Q: What is the difference between a license agreement and a SaaS agreement?

A: A license agreement typically refers to an agreement for the use of software installed on a specific computer or server, while a SaaS agreement governs access to software that is hosted on the internet and accessed via a web browser.

Q: What is the IP clause in the SaaS agreement?

A: The IP (intellectual property) clause in a SaaS agreement addresses ownership and licensing rights related to the software and its components. It defines what proprietary material is considered to be part of the software, how the provider can utilize the software, and how the user can transfer or sublicense the software.

Q: What is the difference between a SaaS agreement and EULA?

A: A EULA (End User License Agreement) is a legal agreement between the software provider and the end-user that governs the use of software, while a SaaS agreement is a legal document that sets out the terms and conditions for the use of software hosted on the internet and accessed via a web browser.

Q: What is a SaaS agreement?

A: An SaaS agreement is a legal contract between a software provider and a customer that outlines the terms and conditions of usage and support of the provider’s software as a service.

Q: What is a SaaS reseller agreement?

A: A SaaS reseller agreement is a legal contract between the software provider and a reseller that outlines the terms and conditions of reselling the provider’s software as a service. It sets out the relationship between the provider, the reseller, and the end-user customers.

Q: How are SaaS contracts structured?

A: SaaS contracts are typically structured to include different levels of service, pricing, payment terms, constraints on usage, data privacy, warranties, and disclaimers. They may also include provisions for technical support, customization, upgrades, and the termination of the agreement. To ensure compliance with applicable legal requirements and best practices, it is important that SaaS contracts are drafted and reviewed by experienced legal professionals.

What Is An Income Statement?

An income statement helps business owners decide whether they can generate profit by increasing revenues, by decreasing costs, or both. It also shows the effectiveness of the strategies that the business set at the beginning of a financial period. The business owners can refer to this document to see if the strategies have paid off and they can come with the best solutions to yield more profit.

What is an Income Statement

An income statement is a financial statement that shows you the company’s income and expenditures. It also shows whether a company is making profit or loss for a given period. The income statement, along with balance sheet and cash flow statement, helps you understand the financial health of your business.

The income statement is also known as a profit and loss statement, statement of operation, statement of financial result or income, or earnings statement.

Components of an Income Statement

While all financial data helps paint a picture of a company’s financial health, an income statement is one of the most important documents a company’s leadership team and individual investors can review, because it includes a detailed breakdown of income and expenses over the course of a reporting period. This includes:

  • Revenue: The amount of money a business takes in during a reporting period
  • Expenses: The amount of money a business spends during a reporting period
  • Income before taxes: All revenue less expenses but before taxes
  • Net income: Income before taxes less taxes
  • Earnings per share (EPS): Division of net income by the total number of outstanding shares

Above categories may be further divided into individual line items, depending on a company’s policy and the granularity of its income statement.

Analysis of an Income Statement

There are two methods commonly used to read and analyze an organization’s financial documents: vertical analysis and horizontal analysis. The difference between the two is in the way a statement is read and the comparisons you can make from each type of analysis.

Upright Analysis It refers to the method of financial analysis where each line item is listed even as a percentage of a base figure. In short, it’s the process of reading down a single column of data in a financial statement, determining how individual line items relate to each other (e.g., showing the relative size of different expenses, as line items may be listed as a percentage of operating expenses). This type of analysis makes it simple to compare financial statements across periods and industries, and between companies, because you can see relative proportions. It also helps you analyze whether performance metrics are improving.

Parallel Analysis It reviews and compares changes in the amounts in a company’s financial statements over multiple reporting periods. It’s frequently used in absolute comparisons, but can be used as percentages, too. Horizontal analysis makes financial data and reporting consistent along with growth comparison to it’s competitors.

Conclusion

In conjunction with the cash flow statement, balance sheet, and annual report, income statements help company leaders, analysts, and investors understand the full picture of a business’s operational results so they can determine its value and efficiency and, ideally, predict its future trajectory. Financial analysis of an income statement can reveal that the costs of goods sold are falling, or that sales have been improving, while return on equity is rising. Income statements are also carefully reviewed when a business wants to cut spending or determine strategies for growth.

We simplify your business so that you can spend time on things that matter.

Tax Calculator for Tax Regime – Old vs New

Are you wondering which tax regime you should opt for? While there is no clear-cut solution to the same, this blog post may go some ways in providing some clarity to this question. We shall detail the new tax regime and have shared the download link to a simple tax calculator prepared by us.

The Budget 2020 has brought a unique concern to the taxpayers through announcement of a new tax regime. It offers more tax slabs and lower tax rates. This was long demanded by most taxpayers, but it came with the catch of removal of all the deductions and exemptions available.

To add to this confusion, the finance minister gave taxpayers a choice between the new regime and existing one, leaving it to the citizens to decide on the basis of their preference. Instead of providing simplicity, understanding the tax regime in India may have become more complex.

Let us understand the new tax regime and what does it bring as a package.

Applicability:

The New tax regime is applicable to resident Individuals and HUF (“Hindu Undivided Family”), from the Financial Year 2020-21.

Proposed Tax Rates:

Health and Education Cess and Surcharge provision remains the same irrespective of the option chosen.

Point to Choose:

Tax payers can either choose to continue with existing tax system or select the new tax regime.

Tax Calculator for Tax Regime - Old vs New
Tax Calculator for Tax Regime – Old vs New

What benefit does it offer?

There are various benefits to this, some of them listed below:

  • It provides an opportunity to increase the take home salary to the taxpayers;
  • No need to worry about investments/deductions every year;
  • Reduced compliances/paperwork as deductions/exemptions are not available;
  • Easy and Self-competent payment of taxes and filing of returns;
  • A good scheme for small taxpayers for a moderate class income range

What is there to lose:

Under this scheme, there is a list of exemptions/ deductions that have been withdrawn. Here is the list of exemptions/deductions not available anymore – Click.

Currently, under the old regime, the exemptions/ deductions allow you to lower your tax amount by investing, saving, or spending on specific items. However, it also means every year you have to find ways to optimize your salary and savings/investments so as to keep your taxable income to the minimum.

The Choice:

So basically, every person will have his own unique New Tax Slab Vs Old Tax Slab calculations as the deductions claimed by the person may be unique to him. Each individual tax payer ideally has to do their own calculations and depending on the amount of deductions/ exemptions being claimed, it is better to pick the better one between the two.

Here are steps you can follow:

  • Ascertain your income under each head;
  • Determine your exemptions/ deductions;
  • Calculate the tax liability using the tax calculator given below;
  • Decide where do you pay less

Tax Calculator:

We have created a simple tax calculator which will help you to determine your tax liability under both the tax regime considering the steps above.

You can access the calculator here – Download Tax Calculator

Our Support:

We care for the challenges and troubles that you face. We simplify your business so that you can spend time on things that matter. Please refer the “Resources” tab above to find more useful things.

Telemedicine Guidelines – Indian Laws for Tech Platforms

Telemedicine is changing the way healthcare services are delivered. As more and more patients opt for virtual healthcare, it’s crucial for med-tech platforms to comply with telemedicine requirements.

The Notification of the Telemedicine Practice Guidelines (“Telemedicine Guidelines”/ “Guidelines”) as a part of Appendix 5 of the Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations, 2002 (“MCI Code”), has made: (a) the practice of the medical profession; and (b) provision of medical care over technology platforms, legal and regulated. These Guidelines impact a cross-section of stakeholders, such as medical professionals (“MP”), registered medical practitioners (“RMPs”), patients, caregivers and med-tech platforms.

While med-tech platforms are primarily responsible for ensuring that the MPs providing services comply with the ethical and legal aspects of telemedicine, they must also abide by the relevant laws and regulations. The Guidelines are for guidance purposes, laying out the primary principles, i.e. the contours within which telemedicine practice in India is to be followed. However, the Guidelines need to be read in conjunction with other applicable laws.

The laws that med-tech offering telemedicine services in India must comply with include: (a) the Indian Medical Council Act, 1956 (MCI Act) and the MCI Code; the Drugs and Cosmetics Act, 1945 and Rules made thereunder (D&C Act); the Telecom Commercial Communication Customer Preference Regulations, 2018 (TCCP Regulations); the Consumer Protection Act, 2019 (CPA); and the Foreign Exchange Management Act, 1999 (FEMA).

In conclusion, while the Guidelines are crucial, the med-tech platforms offering telemedicine services must comply with the necessary ethical and legal aspects of telemedicine in order to avoid penalties and potential liabilities. Before implementing tech-based solutions for telemedicine, businesses should evaluate the mandatory requirements and ensure compliance with relevant laws and regulations, in order to reduce potential liabilities

FAQ’s

Q: How to start a telemedicine service in India?

A: Before starting telemedicine services in India, med-tech platforms must comply with telemedicine requirements laid out by the Ministry of Health and Family Welfare and NITI Aayog. They must evaluate the nature of services and ensure compliance with the relevant laws and regulations, such as the Indian Medical Council Act, 1956 and the Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations, 2002 the Drugs and Cosmetics Act, 1945 and Rules made thereunder; the Telecom Commercial Communication Customer Preference Regulations, 2018; the Consumer Protection Act, 2019; and the Foreign Exchange Management Act, 1999.

Q: What are the requirements of telemedicine standards?

A: The requirements of telemedicine standards in India contain a set of Telemedicine Practice Guidelines (“Guidelines”) as part of Appendix 5 of the Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations, 2002, which outlines the legal and regulatory aspects with respect to the practice of medical professionals through med-tech platforms, for medical care and consultations. These guidelines provide legal and ethical frameworks and impact various stakeholders like medical professionals, registered medical practitioners, patients, caregivers, and med-tech platforms.

Q: What are the protocols used in telemedicine services? 

A: Telemedicine services transmit medical information from the patient to the doctor via telecommunication technology as per the applicable laws. The protocol used in telemedicine services depends on the type of service provided, including audio-only consultation, video consultation, or text-based services. These protocols combine the use of equipment such as smartphones, tablets, laptops, and medical devices to assist edical professionals in providing the necessary healthcare services.

Q: Are telemedicine services legal in India? 

A: Yes, telemedicine services are legal in India provided that the businesses offering med-tech platforms comply with the Telemedicine Practice Guidelines (“Guidelines”) as a part of Appendix 5 of the Indian Medical Council (Professional Conduct, Etiquette & Ethics) Regulations, 2002, in addition to other relevant applicable laws and regulations. Med-tech platforms offering telemedicine services must evaluate the nature of services and comply with necessary legal and ethical aspects of telemedicine, in order to reduce potential liabilities and ensure better and qualitative healthcare.

Data Privacy for Telemedicine Platforms

Telemedicine Platforms are those that provide a technology platform (website or an app) to facilitate online medical care, through audio, visual and text based means.

Such Telemedicine Platforms must be cognisant of: (a) their practices relating to handling data of patients, Medical Professional(s) (“MP(s)”) and other caregivers (hereinafter referred to as “User Data”); and (b) what impact mishandling of such User Data would have.

In India: (a) the Information Technology Act, 2000 (“IT Act”); (b) the Information Technology (Reasonable security practices and procedures and sensitive personal data or information) Rules, 2011 (“Data Protection Rules”); and (c) the Information Technology (Intermediaries Guidelines) Rules, 2011 (“Intermediary Guidelines”), presently regulate how Platforms providing telemedicine services handle the data of its users.

Platforms which: (a) provide services that enable recording of Sensitive Personal Data or Information (“SPDI”); and (b) place cookies to record user behaviour,  could become liable under the  IT Act, the Data Protection Rules and the Intermediary Guidelines.

Given the sensitivity of health care data, the Indian Government proposed the Digital Information Security in Healthcare Act (“DISHA“) in the year 2018, and has been deliberating upon the establishment of a National e-health Authority (“NeHA”) since 2015 with a goal to ensure the development of an e-health ecosystem and enable people centric health services in a cost-effective manner. DISHA aims to establish NeHA and State e-health Authorities (SeHA). Moreover, the enactment of the Digital Personal Data Protection Bill, 2022 (“DPDP Bill”), and its consequent effect will be something that would impact how Platforms provide their services.

Role of Platforms as Intermediaries: Active or Passive?

The applicability of the IT Act is slightly different for Platforms which are set up to only facilitate the interaction between the patient and the MP, and are not directly involved in the provision of medical care. In such cases the Platform would be considered as an ‘Intermediary’ under the IT Act and the Intermediary Guidelines. Under the Indian legal framework, Intermediaries are exempt from many of the liabilities/obligations placed by the IT Act on entities processing personal data.

As per section 79 of the IT Act, an Intermediary is not liable for any third party information, data, or communication link made available or hosted by it. This exemption applies only if:

  1. the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted;
  2. the intermediary does not – initiate the transmission; select the receiver of the transmission AND select or modify the information contained in the transmission; and
  3. the intermediary observes due diligence (as prescribed under the Intermediaries Guidelines) while discharging its duties under the IT Act.

One of the key elements of section 79 of the IT Act is that a Platform must not, (a) initiate the transmission of communication/data by, between its users; and (b) select the receiver of the transmission; and (c) select or modify the information contained in the transmission.

The manner in which a Telemedicine Platform provides its services, would more often than not, require it to facilitate a transaction and/or transmission of data initiated by their users (i.e. MPs and patients), and thereby, many a times, placing more responsibility on a Telemedicine Platform than would be applicable to an Intermediary, under the IT Act. Since a Platform would need to build their tech framework in a manner that facilitates transactions/transmissions, this circumstance may seem harsh.

However, when it comes to initiating a transmission, selecting the receiver of a transmission or selecting or modifying the information contained in the transmission, the Courts in India have laid down the test of passivity.

Essentially, the following are the factors that could determine that a Telemedicine Platform is playing a passive role in the ecosystem, and is therefore granted the protection of an Intermediary:

  1. Whether the role played by that service provider is neutral, in the sense that its conduct is merely technical, automatic and passive, pointing to a lack of knowledge or control of the data which it stores;
  2. Whether the platform is responsible for initiating the transmission, i.e., placing the listing on the website (for Platforms the important question would be whether there is any active uploading, suggesting or placing on such Tech Platform, the services of an MP);
  3. Whether the platform is involved selecting the persons who receive the information (for Platforms this would mean whether they choose/have a say (apart from legally mandated due diligence requirements on MPs) in who/what gains access to their services); and
  4. Does the entity controlling the platform have the power to select or modify the information that is being exchanged on its platform.

Thus, Platforms would only be considered as Intermediaries if their conduct is passive, technical and automatic in their facilitation of Telemedicine based care.

Privacy related Protocols to be followed by Telemedicine Platforms

1.    A Platform would be required to have in place a set of rules and regulations in place that determine how data of users of its Platform will be used. This would require the publishing of a privacy policy, user agreement, terms and conditions et al. that determine the terms of access and use of the service provided by the Platform.

2.    The privacy policy and terms of use/user agreement of a Tech Platform, should be designed and stated in such a way that the patients using the Platform, are aware of the type of SPDI collected, the purpose for which the same is done, the intended recipients of the SPDI and the requirement and the persons/parties to whom SPDI will be disclosed to.

3.    Before the SPDI of a patient/user is disclosed to a third party, or before the same is transferred, consent of such patient/user must be acquired.

4.    The Platform shall be required to have in place a grievance officer, the details of which are provided on the user agreement/privacy policy of the Platform, and such an officer shall be required to deal with the grievances of the patients/users in relation to their processing of the SPDI.

5.    The Platform shall be required to comply with ‘reasonable security procedures and practices’ under the IT Act. A Platform will be deemed compliant with such procedures and practices if it implements the data security standard afforded by the IS/ISO/IEC 27001 on “Information Technology– Security Techniques – Information Security Management System – Requirements” or similar standards, in order to protect the SPDI.

Implementing ‘POSH’ (Policy on Sexual Harassment) at Workplace – Complaints & Compliance

 

Introduction:

Learn how start-ups and small businesses can effectively implement the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (POSH Act). This legislation gained global attention due to the significant impact of the ‘MeToo’ movement, emphasizing the importance of protecting women against sexual harassment, particularly in the workplace. Sexual Harassment at workplace is an extension of violence in everyday life and is discriminatory and exploitative, as it affects women’s right to life and livelihood. In India, for the first time in 1997, a petition was filed in the Supreme Court to enforce the fundamental rights of working women, after the brutal gang rape of Bhanwari Devi a social worker from Rajasthan. As an outcome of the landmark judgment of the Vishaka and Others v State of Rajasthan the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, was enacted wherein it was made mandatory for every employer to provide a mechanism to redress grievances pertaining to workplace sexual harassment and enforce the right to gender equality of working women. The Act is also unique for its wide ambit as it is applicable to the organized sector as well as the unorganized sector.

What is POSH and why was it enacted?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, popularly known as POSH Act, is a landmark legislation in India enacted on December 9, 2013. It aims to protect women from sexual harassment at their workplace and provide a safe and respectful working environment for them.

The POSH Act defines sexual harassment as any unwelcome sexual advances, requests for sexual favours, or other verbal or physical conduct of a sexual nature that:

  • Affects the dignity of a woman employee.
  • Creates a hostile work environment for her.
  • Interferes with her work performance.
  • Leads to her intimidation or humiliation.

The Act applies to all workplaces in India, regardless of their size or nature, whether public or private. It covers not only employees but also interns, trainees, apprentices, and domestic workers.

Prior to the POSH Act, there was no specific law addressing sexual harassment at workplaces in India. This often led to underreporting of incidents and inadequate grievance redressal mechanisms. The POSH Act was enacted to address this gap and ensure effective prevention, prohibition, and redressal of sexual harassment at workplaces.

Popular Sections of POSH Act are:

  • Section 3: Defines sexual harassment and its various forms.
  • Section 4: Mandates every employer to constitute an Internal Complaints Committee (ICC) to investigate complaints of sexual harassment.
  • Section 5: Outlines the composition and functions of the ICC.
  • Section 6: Defines the procedure for filing a complaint of sexual harassment.
  • Section 7: Specifies the powers of the ICC to investigate complaints and recommend appropriate action.
  • Section 8: Provides for penalties for sexual harassment, including dismissal from service.
  • Section 9: Mandates employers to organize awareness programs on sexual harassment for all employees.

Who is responsible for implementing POSH policies in the workplace?

In the workplace, the ultimate responsibility for implementing and enforcing POSH (Prevention of Sexual Harassment) policies falls squarely on the employer’s shoulders. This legal obligation, often mandated by national and regional regulations, requires employers to take proactive steps to foster a safe and respectful work environment for all employees. This encompasses various tasks, including crafting a comprehensive POSH policy outlining prohibited behaviors, establishing a dedicated Internal Complaints Committee (ICC) to handle harassment reports, conducting regular training sessions for employees and managers on recognizing and preventing sexual harassment, and ensuring prompt and fair investigation and resolution of any reported incidents. By taking ownership of POSH implementation, employers demonstrate their commitment to creating a workplace free from harassment and discrimination, fostering a culture of mutual respect and dignity for all.

Applicability of the Act:

The Act applies to all employers, whether in public or private establishments, including institutions, organizations, and establishments with contractual obligations towards their employees.

Key Compliance Steps to be followed for POSH:

  1. Establish an Internal Policy: Formulate and widely disseminate an internal policy outlining workplace guidelines, defining sexual harassment, explaining the grievance and complaints redressal mechanism, and providing details about the Internal Committee and Local Committee. The Policy must be notified or displayed prominently at a common place and employees must be aware of it and should have ready access to it at all times.
  2. Set up an Internal Committee: Create an Internal Committee and inform employees about its existence in writing. The committee should consist of a Presiding Officer (a senior-level woman employee), at least two members with social work or legal knowledge, and one member from an NGO or someone familiar with sexual harassment issues. Ensure that at least half of the committee members are women. Tenure of each member of the Internal Committee shall be maximum 3 years.
  3. Raise Awareness: Conduct workshops and seminars at the workplace to promote general awareness of sexual harassment, its prevention, and the Act’s provisions.

Importance of Internal Complaints Committee for POSH 

If your organization has more than 10 employees, it is mandatory to establish an Internal Complaints Committee.

A. Structure

This committee consists of –

  • Chairperson/Presiding Officer: Women who hold top positions in the company’s workforce shall serve in these roles.
  • Two Members: They must be staff members and ideally dedicated to the advancement of women’s rights, possess social work expertise, or be knowledgeable about the law.
  • External Member: NGOs that oppose women’s rights, physicians, and advocates are examples of external members. They also provide external member empanelment and capitalize on tax refunds where applicable

B. Responsibilities

The Internal Complaints Committee is essential to the operation of the Act’s provisions and the accomplishment of the Internal Complaints Committee Policy’s goals. Therefore, the Internal Complaints Committee’s primary duty is:

  • Putting into practice the internal complaints committee’s anti-sexual harassment policy. addressing grievances filed by parties in accordance with the Internal Complaints Committee Policy.
  • Advising the Employer to take certain measures
  • This committee serves as an internal platform for addressing and resolving sexual harassment complaints. It provides immediate accessibility to the victim to report to the internal committee within the organization and ensures timely actions can be taken. The Internal Committee and the parties involved in each case are required to maintain absolute confidentiality about the case and proceedings.

C. Authority

The Internal Complaints Committee is essential to the operation of the Act’s provisions and the accomplishment of the Internal Complaints Committee Policy’s goals. 

  • In accordance with the Internal Complaints Committee Policy, it has the authority to open an investigation into a complaint of sexual harassment at work.
  • IC has the authority to call parties and witnesses to testify before the committee.
  • It has the authority to call witnesses for examination at its discretion if the Committee members think it essential.

According to POSH law, every organization must post the names and contact information of its current IC members on its official website and in conspicuous locations within the building.

D. Principal Duties of Internal Complaints Committee:

  • Get reports on workplace sexual harassment
  • Launch and carry out a probe in accordance with the business protocol.
  • Provide the results and suggestions of any such investigations.
  • Work together with the Employer to adopt the necessary measures.
  • Observe complete secrecy throughout the procedure in accordance with the Internal Complaints Committee Policy’s stated requirements.
  • Send in yearly reports using the format specified.
  • It is necessary for the Internal accusations Committee to remain watchful in order to address and promptly handle any accusations of sexual harassment.

Role of the Local Committee in POSH

In the absence of an Internal Complaints Committee, victims can approach the Local Committee, established by the Government for each district, to file complaints against their employers.

Compliance Requirements

Employers covered under the Act must submit an annual report at the end of each calendar year to the local District Officer, providing details of complaints received, actions taken, pending and resolved complaints, current committee members and details of awareness workshops conducted during the year.

Penalties for Non-compliance to POSH

Failure to comply with the Act may result in a fine of up to Rs. 50,000/- and potential cancellation of the business license for repeated violations.

Relief Provided by the POSH Act

Any woman who experiences sexual harassment can lodge a complaint with either the Internal Committee or the Local Committee within three months of the incident. A legal heir or authorized person of the victim can also file the complaint as prescribed by the POSH Act.

Step by Step Redressal Process for POSH Complaints

1.) Procedure for Conciliation:

In the event that the Complainant submits a written request, the Internal Complaints Committee may attempt to resolve the issue through conciliation before opening an investigation. Such conciliation cannot be predicated on a monetary settlement. If a settlement has been reached, the IC will document it and send it to the company so that it can proceed with the actions outlined in the IC’s recommendation. Additionally, copies of the settlement as recorded shall be given to the Respondent and the Complainant by the Internal Complaints Committee. In the event that conciliation is achieved, the IC won’t have to carry out any more investigation. Complainant may file a formal complaint with the IC to request that the matter be looked into if they believe the Respondent is not abiding by the conditions of the Settlement or that the Company has not taken any action.

2.) Inquiry

When conciliation fails to produce a settlement or could not be reached, the investigation process starts, and the Internal Complaints Committee is required to look into the complaint. If the aggrieved party notifies the IC that the respondent has not followed any of the provisions of the settlement, an investigation may also be opened. After receiving the complaint, the Internal Complaints Committee will send one copy to the respondent and request a response within seven working days. Within ten working days after receiving the complaint, the responder must file a response that includes the names and addresses of all witnesses as well as a list of supporting documents. It must not be permitted for either the complainant or the responder to have a lawyer represent them. Throughout the whole process of the IC proceedings, neither the respondent nor the complainant may have a lawyer represent them.

The complainant and respondent will be heard by the Internal Complaints Committee on the date(s) that have been communicated to them beforehand, and natural justice principles will be upheld. The Independent Commission (IC) may halt the investigation process or provide an ex-parte ruling if the complainant or respondent misses three consecutive personal hearings without good reason. However, the IC must give written notice to the party or parties 15 days prior to any such termination or ex-parte order. The Internal Complaints Committee has ninety days from the date of complaint receipt to conclude the investigation. Within ten days of the inquiry’s conclusion, the IC will transmit its findings and recommendations to the relevant authorities, the complainant(s), and the respondent(s).

3.) Interim Relief

In accordance with the Internal Complaints Committee Policy, in the event that the complainant submits a written request, the Internal Complaints Committee may suggest to the employer, while the investigation is still pending: To transfer the responder or the resentful party to a different place of employment. To allow the resentful party to take leave for a maximum of three months; however, this must be in addition to any leave to which she would otherwise be entitled. To provide the harmed party with any further remedy that is deemed suitable. To prevent the respondent from providing information regarding the complainant’s performance.

4.) Compensation

According to Internal Complaints Committee policy, IC’s remuneration will be decided upon by taking into account:

  • The emotional agony, grief, suffering, and mental damage inflicted upon the resentful employee;
  • The loss of a professional chance as a result of the sexual harassment occurrence;
  • The victim’s out-of-pocket costs for medical and/or psychological care;
  • The accused person’s earnings and social standing; and Whether such payment might be made in full or in installments.

Conclusion

The acronym “POSH” might bring culinary delights to mind, but in India, it stands for something far more crucial: the Prevention of Sexual Harassment (POSH) Act, 2013. This landmark legislation has brought about a seismic shift in safeguarding women’s right to a safe and dignified workplace. While challenges remain, the impact of POSH cannot be understated.

  • Sexual Harassment: The Act defines and prohibits various forms of unwelcome sexual conduct, empowering women to speak up and seek redressal.
  • Workplace: POSH applies to all organizationspublic and private, creating a safer environment across sectors.
  • Internal Complaints Committee (ICC): This mandatory body within organizations investigates complaints and recommends action, ensuring internal accountability.
  • Awareness and Training: POSH mandates sensitization programs for employers and employees, fostering a culture of respect and equality.
  • Penalties: Non-compliance with POSH provisions attracts penalties, deterring misconduct and encouraging adherence.

Progress and Challenges:

  • Increased Reporting: POSH has led to a surge in reported cases, indicating greater awareness and confidence in the system.
  • Empowered Women: The Act has provided women with a legal framework to challenge harassment and seek justice.
  • Shifting Norms: POSH has sparked important conversations about gender equality and acceptable workplace behavior.

Challenges Remain:

  • Implementation Gaps: Ensuring effective implementation across organizations, especially smaller ones, requires ongoing efforts.
  • Victim Blaming: Societal attitudes and victim-blaming tendencies can still deter reporting.
  • Timely Redressal: Ensuring swift and fair investigations and outcomes remains crucial.

Looking Ahead:

POSH has been a game-changer in creating safer workplaces for women in India. Continued awareness campaigns, robust implementation, and addressing cultural nuances are key to fully realizing its potential. As this journey progresses, POSH holds the promise of a future where workplaces are truly respectful and equitable for all.


FAQs about POSH Policy

Q. What is POSH? 

POSH stands for Prevention of Sexual Harassment. It’s a law in India mandating organizations to create a safe work environment free from sexual harassment. 

Q. Who is covered under POSH? 

Any woman working or visiting a workplace, including permanent, temporary, interns, trainees, and visitors can file a complaint under POSH.

Q. What constitutes sexual harassment? 

POSH broadly defines it as unwelcome sexual advances, requests for sexual favors, verbal or physical conduct of a sexual nature, creating a hostile work environment, and retaliation for reporting harassment.

Q. Is POSH applicable to my organization? 

YES. The POSH Act applies to all organizations in India, regardless of size or industry, with 10 or more employees.

Q. What are my organization’s responsibilities under POSH?

You must form an Internal Complaints Committee (ICC) to investigate complaints, provide training on POSH awareness, and maintain records.

Q. How do I form an ICC? 

The ICC requires at least one external member, preferably a woman, and internal members from different departments. Training and orientation are crucial.

Q. What is the complaint process?

 An aggrieved woman can file a written or verbal complaint with the ICC, who then conduct an inquiry and recommend appropriate action.

Q. What are my options if I experience sexual harassment? 

You can file a complaint with the ICC or directly approach the Local Complaints Committee (LC) set up by the government. Legal action is also an option.

Q. What are some resources available for understanding and implementing POSH?

The Ministry of Women & Child Development website offers extensive information, including FAQs, guidelines, and training modules. Several NGOs and legal resources also provide support.

Q. Where can I get further help? 

If you have specific questions or require assistance, consider contacting a lawyer specializing in women’s rights or reach Treelife. Additionally you may gain more insights on POSH policy via this Official Handbook from Govt. of India

https://wcd.nic.in/sites/default/files/Handbook%20on%20Sexual%20Harassment%20of%20Women%20at%20Workplace.pdf 

STAY SAFE, KNOW YOUR RIGHTS!

For Customer Support

Mumbai | Delhi |
Bangalore | GIFT City

Speak to Us!

We respond within 60 minutes.

    Your information is confidential and secure