NOW will give you information regarding the number of Items picked up by Delivery Partners and sold by you to the Users pursuant to the Terms. The Merchant Partner shall maintain such documents to record the proof of delivery of product or performance of service. Without prejudice to the πgenerality of the aforesaid, Merchant shall routinely and at such time intervals provide such reports and in such formats as may be specified by the Company.
2.a. Service Fee. In consideration for NOW’s lead generation, demand prediction, payment processing and other related services provided via the NOW App under the Terms, NOW will charge you a service fee, agreed under the Letter and reiterated under the Addendum II (exclusive of Indirect Tax and withholding tax, if any) on Item Value, as defined under the Letter or (the “Service Fee”). This Service Fee is charged as consideration for expediting the Users’ orders via the NOW App.
2.b. Goods and services tax (“GST”). Collection by NOW from Users on your behalf would be subject to tax deduction or collection at source in accordance with the applicable GST laws.
2.c. Remittance. NOW will remit to you the total (i) Item Payment (including any Indirect Tax collected on your behalf but reduced by the Service Fee, amounts remitted to Delivery Partners under your instructions and tax deduction/ collection at source) earned by you, (ii) less any refunds given to your customers or Users (such final remitted amount being the “Item Revenue”).
2.d. Item Revenue received by NOW from the User on behalf of the Merchant Partner will be settled into the Merchant Partner’s bank account, details of which are set forth in Addendum II. Settlement of transaction payments shall be within the time period as set forth by the guidelines of the Reserve Bank of India, where applicable. The Merchant Partner agrees to provide such documents and information necessary or as may be sought by a payment facilitator or bank to enlist the Merchant Partner as a payee of NOW. The Merchant Partner agrees that for this purpose, information about and provided by the Merchant Partner will be shared with a payment facilitator or bank.
Delivery Partners are independent service providers, and as such, they reserve the right to refuse to accept any item for delivery in their sole discretion. Any item that you do not have permission or license to sell or deliver may not be sold to Users.
The Terms with you are as follows:
1. Structure of Terms
Our Terms shall consist of this Letter, together with the addenda (individually, an “Addendum”) addressing areas of collaboration agreed to by both of us (this Letter and any and all such Addenda are collectively the “Terms”). In connection with each Addendum, we will designate those actions, responsibilities and services to be respectively provided by each of us. In the event of a conflict, the terms contained in an Addendum will supersede conflicting terms contained in these Terms.
2. Intended Projects
We each agree to work in good faith with one another on certain collaborative projects, (as described below) or other projects as we mutually agree, in connection with the food or packaged food item(s) or any grocery item(s) and/or beverages the Merchant makes available (each, a “Meal” or “Item(s)”, as interchangeably used under these Terms) via the NOW App. Each project will be further specified in an Addendum, and any such project will only be undertaken once we mutually execute such Addendum.
The suggested search term(s) or Merchant item(s) visible on the NOW App is the general availability of Meals during the Restaurant’s normal business hours. The Merchant’s customers (the “Buyers” and/or “NOW App Users”/” User(s)”) may select Meals from the displayed search term(s)/listing(s) on the NOW App.
The “NOW Web Dashboard” will be made available to the Merchant to access on-demand logistic services by Delivery Partners. For the sake of clarity, neither NOW nor its affiliates provide any delivery or logistics services, but NOW provides a platform for restaurants/outlets like yours to connect with Delivery Partners for delivery services and to receive demand prediction, payment processing and related information services in connection with the sale of the Meals. “Delivery Partner” is defined as an independent contractor who intends to provide on demand delivery services using NOW’s proprietary technology platform under license from NOW or one of its affiliates. NOW will not have any obligation to deliver the Item(s) as a platform provider. For purposes of delivery of the Meals, NOW and the Delivery Partners shall operate (i) under cover of any approval, license or permission required to operate your business at the Merchant Outlet and sell the Meal and (ii) under your control, as your agent (including but not limited to receipt agent of meal charges and based on your instructions, if applicable, apply the meal charges collected on your behalf towards disbursal of the fee payable by you to Delivery Partner), and not employee. For the sake of clarity, you, through the services provided by Delivery Partners, are responsible for the delivery of Meals and you maintain possession, control and care of the Meals at all times. You shall have marketable legal right and title to sell the products or render the services. You shall not offer any products or services which are illegal, unlawful, expired and in violation of applicable laws and policies. NOW will not be liable for any damage or loss incurred by the Users in relation to the delivery of the Meals and will follow reasonable guidance you provide regarding the delivery of the Meals.
5. Availability of Meal(s)/Item(s)
5.a. Meal(s)/Item(s). NOW will provide you reasonable advice regarding demand prediction, which you may use in connection with your determination of the quantity and type of Meals/Items made available via the NOW App. You are fully responsible for quality, safety and delivery of the Meals/Items and you shall adhere to all applicable laws and regulations in relation to the preparation, provision, packaging and delivery of the Meals/Items. You will determine any quality, portion, size, ingredient or other criteria (including those of laws and regulations) that apply to the Meals/Items (“Criteria”) and you are solely responsible for ensuring that the Meals/Items meet such criteria when then are made available via the NOW App. In the event of failing to provide Meals/Items that adhere to the Criteria (each, a “Substandard Meal/Item”), NOW is under no obligation to make such Substandard Meals/Items available for sale via the NOW App.
5.b. Taxes. You are responsible for determining and setting the retail price (“Retail Price”) for each Meal/Item and duly informing NOW from time to time, including any Meal/Item discount(s)/discounts on offer from time to time. You shall be the “retailer” or “seller” of all Meals/Items for the purpose of any indirect tax (such as value added tax, sales tax, service tax, goods and services tax) (“Indirect Tax”) and the responsible party for collection and remittance of applicable Indirect Tax. For the sake of clarity, the Retail Price for each Meal/Item shall include Indirect Tax, as applicable. You undertake that all applicable taxes on meal(s)/item(s) & delivery would be deposited by you with the government treasury within stipulated timelines. Except as may be expressly agreed in this Terms, each party shall be responsible for its expenses and costs during its performance under this Terms.
5.c. Meal/Item Inventory. You maintain title to all Meal/Item inventory until each Meal/Item is delivered to a User. You are responsible for the costs of all Meals/Items. Whenever a User wishes to avail Meals/Items or Service as identified by the App, NOW will notify the Restaurant Partner of the specifications and particulars of the order as is received from the User. Upon receipt of an order request from a User, the Restaurant Partner shall keep ready the product or provide any service as required by the User. In the event the specifications are not sufficient for the Merchant Partner to process any order, the Merchant Partner must seek further information as required.
5.d. Notwithstanding these Terms, NOW reserves the right to temporarily discontinue Services or permanently terminate with immediate effect for material breach or non-compliance by the Restaurant Partner which includes, but is not limited to, the following instances:
(i). User/Buyer complaints received by NOW which are directly or indirectly attributable to the quality of food provided by the Restaurant Partner either through poor ratings, as defined by NOW, through calls placed with NOW or through any other means;
(ii). Breach of the provisions of the Food Safety and Standards Act, 2006 and the rules and regulations, made thereunder, by Restaurant Partner;
(iii). Breach of the representations and warranties of the Restaurant Partner; or
(iv). Any other material breach of the terms.
Notwithstanding anything contained under this Terms, NOW has the right to immediately delist any of the food products from the Platform, which is not in compliance with the Food Safety and Standards Act, 2006 or the rules or regulations, made thereunder.
5.e. You are responsible for costs related to reimbursement to the Users in the event Users have either refused to pay for or have claimed partial or full refund, as applicable, for reasons that are attributable to Restaurant Partner, including but not limited to, User’s expectations not being met or User dissatisfaction in relation to, inter alia, the quality of the Meal(s)/Item(s), undelivered Meal(s)/Item(s), discrepancy in the Meal(s)/Item(s) delivered which is not in accordance with the Meal/Item placed and/or those Meal(s)/Item(s) for which User requests for a replacement. (“Disputed Orders”) Any such User(s) request a refund for any Meal(s)/Item(s) (including, without limitation, any costs associated with retrieving any such Meal(s), if applicable), for reasons that are considered by NOW in its sole discretion as reasonable, for (i) request by the Users of refund or (ii) acceptance by the Delivery Partner of the request. NOW may deduct refunds from the payment made to you under these Terms.
5.f. It is clarified that NOW shall not be liable to make any payment for a Disputed Order. NOW shall reserve the right to recover from Restaurant Partner, the amount paid to Users/Buyers as refund upto the order value.
5.g. In case of complaints from the User pertaining to food efficacy, quality, or any other such issues, NOW shall notify the same to Restaurant Partner and shall also redirect the Buyer to the consumer call center of the Restaurant. Restaurant Partner shall alone be liable for redressing and bound to take action on the complaints by the User. NOW has the right to share with the Restaurant Partner, the relevant information including the Restaurant details to enable satisfactory resolution of the complaint. NOW shall in the interest of satisfactory resolution of the Complaint, share with the User, relevant information pertaining to the Order along with Restaurant details.
5.h. Service Fee. In consideration for use of the NOW App, NOW will charge you a service fee as specifically set forth on each applicable Addendum as well as the Letter. All fees under these Terms shall be paid in Indian Rupees and are exclusive of any taxes, including Indirect Tax and withholding tax, if applicable.
5.i. NOW does not guarantee that you will be matched with the Delivery Partner at the time you wish to be matched. NOW shall not be liable for any failure to match.
6. Promotional Activities
6.a. Marketing. NOW will each showcase the availability of the Meals via the NOW App through various promotional activities (e.g., our respective social media channels, websites, or blogs), as mutually agreed.
6.b. Marks. Subject to the terms and conditions of this Terms, each party hereby grants to the other party (and, in the case of NOW, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use the such party’s respective Marks (as defined below), on a royalty-free basis, for the sole purpose of performing the promotional activities as set forth in an applicable Addendum. For purposes of this Terms, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party. All uses of a party’s marks by the other party will be in the form and format specified or approved by the owner of such marks. Except as expressly set forth herein, neither party will use the other party’s marks without the prior, express, written consent of the other party. All goodwill related to the use of a party’s marks by the other party shall inure to the benefit of the owner of such marks. Except as expressly set forth herein, neither party shall be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights.
6.c. Publicity. Except as may be expressly set forth in this Terms or an applicable Addendum, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Terms or otherwise, without the prior written consent of such other party.
6.d. Privacy. “Personal Data” means any information obtained in connection with this Terms (a) relating to an identified or identifiable natural person; (b) that can reasonably be used to identify or authenticate an individual, including but not limited to name, contact information, precise location information, persistent identifiers; and (c) any information that may otherwise be considered “personal data” or “personal information” under the applicable law. Restaurant agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of performing the services contemplated by this Terms. Restaurant shall maintain the accuracy and integrity of any Personal Data provided by NOW in its possession, custody or control. Restaurant agrees to retain Personal Data provided to Restaurant by NOW solely by using the software and tools provided by NOW.
We each acknowledge and agree that, unless otherwise stated in a Letter/Addendum, our relationship is non-exclusive.
8. Confidential Information
“Confidential Information” means any confidential, proprietary or other non-public information disclosed by one party (the “Discloser”) to the other (the “Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information will not include that information that (a) was previously known to the Recipient without an obligation of confidentiality; (b) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (c) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties, or use in any way other than as necessary to perform this Terms, the Discloser’s Confidential Information. Each Recipient will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective of the Discloser as this Terms before such individual has access to the Discloser’s Confidential Information. Each Recipient will not, and will not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on disclosure of Confidential Information will not apply to the extent the Discloser has authorized such disclosure, nor to the extent a Recipient is required to disclose certain Confidential Information of the Discloser as a legal obligation based on the applicable laws and regulations or order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in filing petition of objection etc. prior to making such disclosure. Upon expiration or termination of this Terms and as requested by a Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
9. Representations and Warranties; Disclaimer
9.a. Each party hereby represents and warrants that: (a) it has full power and authority to enter into this Terms and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it has not entered into, and during the Term (as defined below) will not enter into, any Terms that would prevent it from complying with or performing under this Terms (in your case, including without limitation, any exclusive Terms with any third parties for the availability of food via a technology platform); and (d) the content, media and other materials used or provided as part of this Terms shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party.
9.b. The Restaurant further represents and warrants that it will comply with all applicable laws and regulations in its performance of this Terms including, but not limited to, the Food Safety & Standards Act, 2006 and rules and regulations made thereunder, its engagement of Delivery Partners.
9.c. The Restaurant further represents and warrants that the details of the tax registrations provided by the Restaurant and Indirect tax to be levied on each meal to be made available for sale via the NOW App is as per Addendum II, forming integral part of this Terms. The Restaurant further confirms and declares that the information provided in Addendum II and the copies of tax registrations, are true and correct, and assumes responsibility to intimate NOW in case of any change in the provided information. The Restaurant undertakes that all Indirect Tax applied on each Meal and Delivery made available for sale via the NOW App would be deposited with the Government Treasury within stipulated timelines.
9.d. EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR PURPOSE OF THIS TERMS.
10.a. Indemnified Claims. Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (a) the negligence or wilful misconduct of the Indemnifying Party and its employees or agents (in your case, excluding NOW and Delivery Partners to the extent they are your agents pursuant to Section 3) in their performance of this Terms; (b) any claims that the Indemnifying Party breached its representations and warranties in this Terms; (c) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party; or (d) any breach and/or non-compliance with applicable data protection laws. In addition, you will indemnify, defend and hold harmless the NOW Indemnified Parties from and against any and all Losses with respect to any third-party claim arising out of or related to any harm resulting from your violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, except to the extent such harm was directly caused by the gross negligence or wilful misconduct of NOW or its employees, agents or Delivery Partners.
10.b. Procedure. Each Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
11. Limits of Liability
During the Term (as defined below) and for one (1) year thereafter, the Restaurant shall maintain General Commercial Liability and, if required by law, Worker’s Compensation (or substantially equivalent) insurance. The General Commercial Liability insurance policy limits shall be the greater of (a) the limits required by applicable law or (b) the limits customarily maintained by companies in the restaurant industry, in India. All policies shall be written by reputable insurance companies in the jurisdiction. Such insurance shall be primary and non-contributing to any insurance maintained or obtained by the other party and shall not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon NOW’s request, the Restaurant shall provide evidence of the insurance required herein. In no event shall the limits of any policy be considered as limiting the liability of a Restaurant under the Terms.
13. Term and Termination
Either NOW or the Restaurant Partner can terminate this contract providing 15 days’ prior written notice to the other. NOW shall delist the Restaurant Partner at the end of the 15th Day. Upon termination in accordance with the terms hereof, Restaurant Partner shall only be required to service Meal(s) already placed through NOW prior to such expiry or earlier termination of these Terms, and NOW shall be entitled to receive Service Fee for such Meal(s).
14. No Waiver
The Parties agree that nothing in this Terms shall be construed as creating the relationship of employer and employee, master and servant, or principal and agent, or a partnership, or a joint venture of any kind whatsoever between the Parties or between the parties and its respective contractors / employees.
16. Governing Law
All notices under these Terms shall be sent by registered post acknowledgment due, contemporaneous courier or email to the address mentioned below:
Needs On Wheel Private Limited
Reg Office: G-3/47B, Thappar Arcade, Kalu Sarai, Hauz Khas, New Delhi, Delhi -110016
If the Restaurant Partner notices any discrepancy in the weekly settlement, the Restaurant Partner may raise a ticket by writing an email to firstname.lastname@example.org and the same will be mutually resolved by both parties within 15 days from the date on which the ticket was raised.
The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
Any modification or amendment to this Terms shall be effective only if in writing and signed or sealed with print name by both parties. In the event any provision of this Terms is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Terms and each of the remaining terms and conditions contained herein) shall remain in full force and effect.
Any delay in or failure by either party in performance of this Terms shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Terms. This Terms may not be assigned, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Terms, upon notice to the other party, to (a) an affiliate of NOW (for NOW), or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets. Subject to the foregoing, this Terms shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns. Nothing in this Terms shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as specifically set forth in Section 3 above), and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto. Each party shall be solely responsible for its employees and contractors used in connection with this Terms. This Terms contains the full and complete understanding and Terms between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and Terms, whether oral or written, relating such subject matter hereof. This Terms may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format or exchange by hard-copy, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.