Merchant Partner Terms of use

 

Addendum I

Special Terms

 

1. Reporting

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. Payment

3. Restrictions

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.

 

 

ADDENDUM II

 

The Merchant Partner Terms of Use (“Terms”), represents and confirms our mutual Terms with respect to the Merchant Partner’s participation on the proprietary mobile platform currently made available by Needs On Wheel Private Limited (“NOW” or “us”) or its affiliates, from time-to-time, and referred to as the “NOW App”. Upon signing by both parties, the Letter and the NOW Merchant Terms of Use binding and enforceable legal contract between you and NOW as of the date set forth above (“Effective Date”)

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.

 

3.

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.

 

4. Delivery

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)

6. Promotional Activities

7. Non-Exclusive

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

10. Indemnification

11. Limits of Liability

For the purposes of this clause, “Liability” means liability in or for breach of contract, negligence, misrepresentation, tortious claim, restitution or any other cause of action whatsoever relating to or arising under or in connection with these Terms, including liability expressly provided for under these Terms or arising by reason of the invalidity or unenforceability of any term under this contract. NOW does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, NOW shall not be under any Liability for loss of actual or anticipated profits, loss of goodwill, loss of business, loss of revenue or of the use of money, loss of contracts, loss of anticipated savings, loss of data and/or undertaking the restoration of data, fraudulent orders, any special, indirect or consequential loss, and such liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of any doubt, this clause shall apply whether such damage or loss is direct, indirect, consequential or otherwise. However, NOW will use its best endeavors to ensure that the unintentional operational errors do not occur, NOW cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, NOW’s aggregate liability under this Agreement and respective Terms of Use shall not exceed the total value of a Disputed Order.

 

12. Insurance

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

No failure or delay by any Party in exercising any right, power or remedy under these Terms of Use or provided by law shall operate as a waiver thereof or affect that right, power or remedy. No waiver by any Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof.

15. Relationship

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

This Terms of Use shall be governed by and construed in accordance with the laws of India. Any dispute arising out of or in connection with Services, which the Parties are unable to settle within 30 days, shall be referred to arbitration by a sole arbitrator appointed mutually by both Parties. The Arbitration shall be conducted in accordance with Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification thereof for the time being in force. The venue of the arbitration shall be Bengaluru and the arbitration shall be conducted in English language. Subject to the foregoing, the courts at Bengaluru shall have exclusive jurisdiction.

17. Severability

If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Terms of Use which can be given effect without the invalid provision shall continue in full force and effect and shall in no way be impaired or invalidated.

 

18. Notice

19.

If the Restaurant Partner notices any discrepancy in the weekly settlement, the Restaurant Partner may raise a ticket by writing an email to merchantsupport@needsonwheel.in and the same will be mutually resolved by both parties within 15 days from the date on which the ticket was raised.

 

20.

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.

21.

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.

22.

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.