TERMS AND CONDITIONS FOR ZOMATO DINING EXPERIENCE PROGRAM
1. DEFINITIONS
a. “Bill” means the invoice raised for the Bill Value on the Customer by the Restaurant Partner towards the sale of Goods at the Restaurant.
b. “Bill Value” means the total amount in Indian Rupees set out in the Bill towards the Goods and services availed by the Customer at the Restaurant and shall include applicable taxes, service charge, and other charges as may be applicable.
c. “Commencement Date” shall mean the date set out in the Form or any other such date as notified by Zomato via email, whichever is later, from which the Merchant shall list the Deal(s) and/or Experience(s) (as defined below) for the Customer (as defined below) on the Zomato Application (as defined below).
d. “Customer” shall mean a user who purchases the Deal(s) (as defined below) through the Zomato Application for attending the Experience(s).
e. “Customer Data” shall mean any and all identifiable information about the Customer provided by the Customer via the Zomato Application, including, but not limited to, the Customer’s name, email addresses, phone numbers, and Customer preferences, to be governed by the privacy policy located at https://www.zomato.com/policies/privacy.
f. “Commission” shall mean the amount payable by the Merchant to Zomato, being a percentage (%) per Deal Value, plus applicable taxes as set out in the Form.
g. “Cover Charge” shall mean the amount payable by the Customer to Zomato on behalf of the Merchant for booking and reserving the table for the Experience(s), purchase of deals, packages, etc., listed and/or displayed on the Zomato Application which allows the Customer to access the Experience(s) hosted or curated by the Merchant, from time to time. For the avoidance of doubt, it is hereby clarified that the Cover Charge is collected by Zomato on behalf of the Merchant and the same shall be adjusted in the final bill the Customer is paying as a Transaction amount for the Experience(s) via the Zomato Application. For further details, please refer to clause 2(t).
h. “Deal(s)” shall mean the offerings including buffets, brunches, thalis, food and beverage packages and/or combos, party packages, vouchers, ladies night, happy hour deals, exclusive menu curation, chef tasting, or any other package listed and/or displayed on the Zomato Application which allows the Customer to access the Experience(s) hosted or curated by the Merchant, from time to time. Deal(s) will be reservations in an electronic form purchased by the Customer on the Zomato Application, which allows the Customer thereof to access the Experience(s) hosted by the Merchant for which such reservation is generated. Any Deal(s) offered or issued offline by the Merchant directly at its premises will not be treated as Deal(s) purchased via the Zomato Application.
i. “Electronic Payment Mechanism” shall mean the online and mobile-based payment mechanisms including third-party payment gateways, credit card/debit card/net banking transfer and/or e-wallets and/or any loyalty points that are available on the Zomato Application for the purposes of purchasing Deal(s) for the Experience(s), payable by the Customer.
j. “Experience(s)” shall mean the parties, lunches, events, experiences, plays, concerts, and other entertainment-related offerings, hosted or curated by the Merchant for which the Deal(s) will be listed on the Zomato Application.
k. “Experience Start Date” shall mean the date as set out in this Form from which the Merchant shall start the Experience.
l. “Experience End Date” shall mean the date as set out in this Form, from which the Merchant shall end the Experience.
m. “Information” shall mean the information set out and provided along with the Form, Zomato Dashboard and includes any information which is supplied by the Merchant to Zomato under the Terms such as the Deal(s), price list, starting hours of the Experience(s) hosted by the Merchant, rates at which taxes are charged by the Merchant to the Customer, specific terms and conditions pertaining to Deal(s), or any other information the Merchant is under an obligation to supply to Zomato (a) immediately on the Execution Date; or (b) within one (1) day from any change in such information.
n. “Merchant” shall mean the owner and/or organizer of the Experience(s) and/or the Deal(s) as mentioned in the Form.
o. “Net Sales” means the Bill Value payable by a Customer to the Merchant towards the Goods and services availed by the Customer at the Restaurant less the Offer(s) offered by the Restaurant.
p. “Offer(s)” shall include, but not be restricted to (i) percentage of discount that the Merchant agrees to extend to the Customers (including a Customer availing Zomato Gold membership), on the Bill Value for each Transaction; (ii) percentage of discount(s)/promotional offer(s) that the Merchant may extend to the Customers in partnership with banking institutions and/or third parties; or (iii) any other discount(s)/promotional offer(s) as may be agreed between the Parties from time to time.
q. “Parties” shall mean Zomato Limited and Merchant.
r. “Restaurant” means a commercial establishment(s) for which the Merchant is executing the Form.
s. “Services” shall mean the services offered by Zomato to the Merchant, on and from the Commencement Date, such as listing of the Experience(s) and/or Deal(s) on the Zomato Application and/or facilitation of purchasing of the Deal(s) by the Customers via the Zomato Application.
t. “Transaction” shall mean each instance where the Customer makes payments towards the Experience(s) via the Zomato Application. For the avoidance of doubt, the payment made for Cover Charge will be counted as a Transaction only upon the Customer paying the final bill for the Experience where the payment made for the Cover Charge shall be adjusted in the final bill via making the Transaction. Please note that the Cover Charge payment will not be counted as a Transaction if there is a no-show by the Customer and such payment of Cover Charge is divided between the Merchant and Zomato as mutually agreed between the Parties. The Merchant shall be liable for payment of the Commission to Zomato only upon payment of the Transaction amount.
u. “Zomato Application” means the mobile application, owned and operated by Zomato.
v. “Zomato Dashboard” means the Zomato-owned merchant interface platform, the access to which is provided by Zomato to the Merchant for curating and listing the Experience(s) on the Zomato Application.
2. MERCHANT COVENANTS
a. The Merchant hereby agrees to curate and list the Experience(s) for the Customers in accordance with the terms set out in the Form and these Terms on and from the Commencement Date.
b. The Merchant shall ensure that it has all rights, title, and interest in the content pertaining to the Experience(s) shared by the Merchant with Zomato including but not limited to any artwork(s), creative(s), logo(s), picture(s), video(s), music, and write-up(s), banner(s), image(s) to be displayed on the Zomato Application (“Content”). The Merchant hereby grants Zomato a non-exclusive, royalty-free, irrevocable and perpetual right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, upload and display the Content, on the Zomato Application.
c. The Merchant shall provide all the Content with respect to the Experience(s) to be used for the purpose of promotions and/or hosting on the Zomato Application.
d. The Merchant shall ensure that the Experience(s) and/or Content is compliant with the applicable laws and the content guidelines as set out in these Terms.
e. The Merchant acknowledges that Zomato shall in no manner be liable for the Content displayed on the Zomato Application, when such Content is provided by the Merchant. The Merchant hereby agrees and acknowledges that Zomato shall be authorised to use the logo and brand name of the Merchant as the case may be for the purpose of advertisement of the Experience(s).
f. The Merchant shall ensure that it possesses and shall continue to possess the necessary consents, permits, no-objection, approvals, rights, including the intellectual property rights from the relevant third-party(ies) including the chef or chef’s staff (“Chef”) or any person with whom the Merchant has entered into a collaboration for the Experience(s) including but not limited to person’s name and image. The Merchant hereby warrants that it has the necessary rights to further sub-license such intellectual property rights to Zomato, for enabling the Merchant to list and display the Experience(s) on the Zomato Application and/or for any marketing or promotional activity as agreed between the Parties, in writing (email sufficient).
g. The Parties agree that all Intellectual Property created and/or generated pursuant to this Form (including any marketing or promotional Content, creatives, advertising materials whether containing Zomato’s Intellectual Property or otherwise) (“Generated IP”) shall be owned by Zomato, unless agreed otherwise in writing. The Merchant hereby irrevocably waives all rights and claims in the Generated IP, including without limitation, rights of title, license, interest etc.
h. The Merchant grants to Zomato and its affiliates a non-exclusive, royalty-free, irrevocable, worldwide and perpetual right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, and display the Generated IP or any related promotional Content in any manner. It is clarified that Zomato shall be the sole owner of such Content for perpetuity and/or any Generated IP or any related promotional Content under this Form and Zomato shall have all rights, including the intellectual property rights in and connected to such Content and in such content that is generated by the Merchant in relation to this Form.
i. The Merchant hereby permits Zomato to advertise and extend the Experience(s) to the Customer on behalf of the Merchant.
j. The Merchant hereby authorizes Zomato to collect the Transaction amount from the Customer on behalf of the Merchant for the Experience(s).
k. The Merchant shall extend the Experience(s) to all the Customers through Zomato Application.
l. The Merchant permits Zomato to deduct the Commission from the Transaction amount and transfer such remaining amounts to the Merchant in accordance with the payment settlement process set out in the Form.
m. The Merchant will not charge any additional amount, over and above the Transaction amount, from the Customer purchasing the Experience(s) via the Zomato Application.
n. The Merchant hereby permits Zomato to contact the Merchant by phone, email, SMS, or other modes of communication, including whatsapp, for the purpose of facilitating purchasing the Experience(s) or any issue in connection with the Experience(s) or giving feedback.
o. The Merchant agrees and acknowledges that Zomato reserves the right to advertise the Experience(s) extended by other merchants as well, as a part of other services as well.
p. Notwithstanding anything otherwise set out herein, the Merchant shall, at all times remain, solely liable for (a) the goods and/or services, rendered to a Customer at the Experience(s); (b) any in-person interactions with the Customer by the Merchant and or its representatives; (c) payment of all applicable taxes and statutory dues with respect to the goods and services offered and charged by the Merchant at the Experience(s) to the Customer and compliance with all applicable laws; (d) the Customer’s experience at the Experience(s); and/or (e) in the event the Merchant or its representative do not honour the Experience(s) which a Customer desires to avail. Zomato reserves the right to contact the Customer telephonically or via email and/ or SMS or by any other means of communication regarding the Customer’s experience and such response of the Customer shall be communicated by Zomato to the Merchant.
q. The Merchant hereby represents to Zomato that it is in compliance with all rules and regulations prescribed by extant excise laws and that it has a valid license to sell liquor and/or alcoholic beverages at the Experience(s).
r. The Merchant hereby represents and warrants that it is in compliance with the applicable GST laws and other indirect tax laws and the requirements mentioned therein.
s. The Merchant has agreed that for the Term of the Form, the Merchant shall not list the Experience(s) on any third party platform.
t. The Merchant hereby agrees and acknowledges that in the event of no show on the day of the Experience(s), where Customer has paid the Cover Charge amount, such Cover Charge shall be distributed as mutually agreed between the Merchant and Zomato.
u. The Merchant hereby represents to Zomato that it has requisite FSSAI licence and/or any other applicable licences, permissions, consents required for the services and activities that will take place at the Experience(s) and Zomato shall not be liable for any non-compliance of such licences by the Merchant.
v. The Merchant warrants that the food and beverages provided to Customers are: (a) of high quality and fit for human consumption; (b) compliant with Food Safety and Standards Act, 2006 and the rules, regulations, licenses, standards and guidelines issued thereunder; (c) compliant with all other relevant Indian legislation, including all applicable food industry regulations; (d) The Merchant hereby agrees to fully indemnify, reimburse, defend and hold harmless Zomato, its affiliates and other officers from medical condition, illness, injury (including personal injury) or death caused due to the consumption of food or beverage prepared, served by Merchant.
w. The Merchant will ensure that the Information provided to Zomato is current and accurate. Where the Merchant has a unilateral right to access to Zomato Dashboard to edit and update the Information which is displayed on the Zomato Application for the Experience(s), the Merchant should ensure that it (i) keeps such information true, accurate and updated at all times; and (ii) complies with Zomato’s internal terms and conditions of use in this regard.
x. The Merchant hereby agrees and acknowledges that Zomato shall have the right to record the Experience(s) in such form of media as determined by Zomato at its discretion and shall use such recordings for the purpose of promotional/marketing activities.
y. The Merchant shall guarantee admission and fulfilment of services at the Experience(s) to the Customer. In case of any denial of admission or discrimination in fulfillment of service by the Merchant, Zomato reserves the right to levy a penalty on the Merchant, equivalent to an amount up to five (5) times the Transaction amount.
z. The Merchant acknowledges and agrees that the Experience(s) once determined and made available via the Zomato Platform may be modified by the Merchant, after giving due notice to Zomato. However, the listing of the Experience(s) is subject to Zomato’s approval in accordance with its guidelines. Zomato reserves the right to reject or remove the Experience(s) at any time, for reasons communicated to the Merchant.
aa. In the case of cancellation of the Experience(s), Zomato reserves the right to set off, withhold and/or deduct the amount of such refunds that may be issued by Zomato to the Customers on behalf of the Merchant, against any payments that are payable by Zomato to the Merchant under any other agreement or arrangement between Zomato and the Merchant or its affiliates. For clarity, the Merchant shall at all times be liable for the issuance of refund to the Customer in case of cancellation of Experience(s).
bb. The Merchant hereby agrees and acknowledges that Zomato has no role or responsibility towards the Experience(s) hosted by Merchant and shall not be liable to the Merchant or the Customer for any claim relating to the Experience(s).
cc. Zomato shall determine, in its sole discretion, the placement, and positioning of the Experience(s) on the Zomato Application and reserves the right to reject or remove the Experience(s) at any time, for reasons communicated to the Merchant.
dd. Zomato does not guarantee the reach or turnover or attendance of customers to the Experience(s) and shall not be responsible for any loss incurred to the Merchant due to any such reasons.
ee. The Merchant shall ensure that proper training is provided to its staff, its employees and other organisers empanelled with the Merchant for the purposes of the Experience(s), at the time of entry of the Customer at the Experience(s). The Merchant shall ensure that the Merchant, its staff, employees or any other organisers empanelled with the Merchant for the purposes of the Experience(s) shall be aware of the Experience(s) issued to the Customers via the Zomato Application.
ff. The Merchant shall be solely responsible for any loss, damage, or injury caused to third parties, including Customers, for any reason that is attributable to the Merchant.
gg. The Merchant shall be responsible for procuring all the relevant licences that are required to host an Experience(s) and Zomato shall not be liable to the Merchant or the Customer on account of any non-compliance by the Merchant at the Experience(s).
hh. Since Zomato acts only as a booking agent, it shall not be liable for any acts or omissions on part of the Merchant including deficiency in service, performance, quality of food, time taken to serve or any other experience of the Customer at the Experience(s).
ii. The Merchant shall at all times be responsible and liable, legally, financially or otherwise, for any risks or dangers incidental to, or in any way relating to the Experience(s) including but not limited to those arising from, or relating to the acts or omissions of third parties (including other customers, Merchant, operators, Merchant’s staff, employees or agents or any other representatives or affiliates of the Merchant), loss, theft or damage to any personal property, trauma, shock, stress, assault or personal injury sustained by a Customer, whether such injuries or manifestation of such injuries occur during or subsequent to the Experience(s). Zomato assumes no liability and shall have no legal obligation to mitigate any Customer potential or actual losses sustained during the Experience(s).
jj. The Content created by the Merchant while undertaking its marketing obligations (“Marketing Deliverables”) shall not be used for any other purpose including for personal use of the Merchant and shall not be used through any other medium, other than the platforms as agreed between the Parties and shall be used in accordance with applicable laws and in the format and on such terms as may be agreed between the Parties, in writing (email sufficient).
kk. For the purpose of displaying the marketing activities, if any permission, and/or permit is required under the law, it shall be the sole responsibility of the Merchant to acquire such permission and/or permit. If any person is featured in the Content, Merchant shall be solely responsible to take relevant consent from such a person.
ll. The Merchant acknowledges and agrees that the Experience(s) once determined and made available via the Zomato Application may be modified by the Merchant, after giving due notice to Zomato. However, the listing of the Experience(s) is subject to Zomato’s approval in accordance with its guidelines. Zomato reserves the right to reject or remove the Experience(s) at any time, for reasons communicated to the Merchant.
3. CONTENT GUIDELINES FOR ZOMATO DINING EXPERIENCE PROGRAM
a. For the purpose of the Zomato Dining Experience Program, the Merchant agrees to not post or transmit any Content pertaining to the Deal(s) and/or Experience(s) that:
i. is plagiarized;
ii. contains sexually explicit, defamatory, or obscene materials, or any unlawful materials;
iii. contains blurry or unclear photos.
iv. contains unpleasant photos that ruin people's experience;
v. contains Content, advertisement of which is prohibited by applicable laws;
vi. which is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, discriminatory, vulgar, profane, libellous, hateful or otherwise objectionable, invasive of another's privacy, relating or encouraging money laundering or gambling;
vii. constitutes an inauthentic or knowingly erroneous review, or does not address the goods and services, atmosphere, or other attributes of the business you are reviewing;
viii. violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
ix. accuses others of illegal activity, or describes physical confrontations or attempts to impersonate another person or entity;
x. Content which advertises for sale, any item prohibited by law, including potentially hazardous food or tobacco products.
xi. alleges any matter related to health code violations requiring healthcare department reporting;
xii. is illegal, or violates any central, state, or local law or regulation (for example, by disclosing or trading on inside information in violation of securities law);
xiii. constitutes a form of deceptive advertisement or causes, or is a result of, a conflict of interest;
xiv. includes spam, surveys, contests, pyramid schemes, postings or reviews submitted or removed in exchange for payment, postings or reviews submitted or removed by or at the request of the business being reviewed, or other advertising materials;
xv. asserts or implies that the Content is in any way sponsored or endorsed by Zomato;
xvi. falsely states, misrepresents, or conceals your affiliation with another person or entity;
xvii. distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
xviii. ‘hacks’ or accesses without permission our proprietary or confidential records, records of another Customer, or those of anyone else;
xix. violates any contract or fiduciary relationship (for example, by disclosing proprietary or confidential information of your employer or client in breach of any employment, consulting, or non-disclosure agreement);
xx. removes, circumvents, disables, damages or otherwise interferes with security-related features, or features that enforce limitations on use of the Zomato Application;
xxi. collects, accesses, or stores personal information about other Customers of the Services;
xxii. posted by a bot;
xxiii. harms minors in any way;
xxiv. threatens the unity, integrity, defense, security or sovereignty of India or of the country of use, friendly relations with foreign states, or public order or causes incitement to the commission of any cognizable offense or prevents investigation of any offense or is insulting any other nation;
xxv. modifies, copies, scrapes or crawls, displays, publishes, licenses, sells, rents, leases, lends, transfers or otherwise commercialize any rights to the Zomato Application or Zomato’s content; or
xxvi. is patently false and untrue, and is written or published in any form, with the intent to mislead or harass a person, entity or agency for financial gain or to cause any injury to any person.
b. The Merchant acknowledges that Zomato has no obligation to monitor your – or anyone else's – access to or use of the Zomato Application for violations of these Terms, or to review or edit the Content. However, Zomato reserves the right to do so for the purpose of operating and improving the services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of legal process, a court, consent decree, administrative agency or other governmental body.
c. The Merchant agrees to assure Zomato that the Zomato Application shall be used for lawful purposes only and that the Merchant will not violate laws, regulations, ordinances or other such requirements of any applicable central, state or local government or international law(s).
d. Any Content uploaded by the Merchant, shall be subject to relevant laws of India and of the state of use and may be disabled, or and may be subject to investigation under applicable laws. Further, if the Merchant is found to be in non-compliance with the laws and regulations, these Terms, or the privacy policy of the Zomato Platform, Zomato shall have the right to immediately block the Merchant’s access to usage of the Zomato Application and Zomato shall have the right to reject, remove, or delete the non-compliant Content posted by the Merchant and shall further have the right to take appropriate recourse to such remedies as would be available to it under various statutes.
4. ZOMATO COVENANT’S
a. Zomato will provide Electronic Payment Mechanism to the Customers to make payment towards purchasing the Deal(s) for the Experience(s).
b. Zomato shall provide the Merchant access to the Zomato Dashboard where Merchant shall list the Experience(s) for the Customers.
c. Zomato will transfer to the Merchant the Deal Value collected from the Customers, less the Commission, applicable taxes and/or any other amounts, charges (if any) that are due to Zomato.
d. Zomato will have the right to remove/suspend the Content pertaining to the Experience(s) hosted by the Merchant from the Zomato Application at any time at its sole discretion, with prior notice to the Merchant.
5. COMMISSION
a. In consideration to the Services, the Merchant shall pay to Zomato, Commission at the rates set out in the Form.
b. The Parties hereby agree that from time to time, Zomato may change the Commission rates or include any additional charges/ fee, provided however, that Zomato shall communicate any such change(s) via email or any other modes of communication to the Merchant with a prior intimation of forty-five (45) days.
6. Payment Settlement Process
a. The Merchant acknowledges and agrees that any Deal Value which is collected by Zomato for, and on behalf of the Merchant in accordance with these Terms, shall be passed on by Zomato to the Merchant subject to the deduction of the below mentioned amounts by Zomato:
i. Commission plus applicable taxes;
ii. Any other amounts or charges that are due to Zomato under the Form and/or the Terms.
b. Notwithstanding anything to the contrary contained in these Terms or the Form, the Merchant, on behalf of itself and all its affiliates, hereby unconditionally and irrevocably authorizes Zomato to set off, withhold and deduct any amounts owed by the Merchant or its affiliates to any Zomato Group Company under any agreement, arrangement or understanding between the Zomato Group Company and the Merchant or its affiliates, from the Deal Value, and apply such amounts towards the dues owed by the Merchant or its affiliates to the Zomato Group Company. Without prejudice to the other provisions of the Form or these Terms, and solely for the purposes of this clause, the Merchant hereby agrees, acknowledges and confirms that the amounts so set off, withheld and applied in the aforesaid manner shall be deemed to form part of the Commission payable by the Merchant to Zomato under the Form and these Terms. For purposes of the provisions of this clause), the term Zomato Group Company shall be deemed to include any of Zomato's current and former, direct and indirect, subsidiaries and/or controlled affiliates as well as any successor to Zomato or all or any material portion of the businesses and/or assets of Zomato or any successor thereto or any of its direct and indirect, subsidiaries and/or controlled affiliates.
c. The Parties acknowledge and agree that after the deduction of the aforementioned amount set out in clause 6(a) and 6(b), Zomato shall remit the Deal Value due to the Merchant as per the Payment Settlement Day set out in the Form.
d. If the Payment Settlement Day falls on a bank holiday/or a non -business day, the payment shall be processed on the next working day.
e. The Merchant acknowledges and agrees that Zomato will provide the Merchant with a monthly invoice within a period of 7 (seven) days from the last date of the preceding month for the Commission, Payment Gateway Fee and other amounts, charges that are due and payable by the Merchant to Zomato under the Forms and these Terms.
f. Invoices will be sent to the Merchant on dashboard access provided to the Merchant by Zomato. All invoices shall be issued from the registered office of Zomato in relevant State from where the services are being performed by Zomato in order to comply with the provisions of Goods and Services Tax (GST) laws applicable in India. The list of Zomato’s registered offices across India is available at https://www.zomato.com/licenses.
g. Notwithstanding anything to the contrary herein, the Merchant is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with the Experience(s) and the Merchant’s use of the Zomato Application. It is clarified that Zomato will not be liable for payment of any taxes that the Merchant is liable to pay in connection with the Experience(s) which shall be provided by the Merchant to the Customers in accordance with these Terms and that the Merchant hereby undertakes to indemnify, defend and hold harmless, Zomato and each of its affiliates and (as applicable) all of their directors, officers employees, representatives and advisors against any tax liability that may arise against Zomato on account of the non-payment of taxes by the Merchant under these Terms. The Merchant will be required to deposit relevant taxes, including TDS on the commission payable to Zomato. However, in case where Zomato withholds its Commission before remitting the settlement dues to the Merchant, Zomato shall refund the TDS to the Merchant subject to submission of the TDS certificate on a quarterly basis within time stipulated under the applicable law.
h. Notwithstanding the aforesaid, Zomato reserves the right to set off, withhold and/or deduct the payments that are due to Zomato under the Form against any payments that are payable by Zomato under any other agreement or arrangement between Zomato and the Merchant or its affiliates.
i. The Merchant warrants to comply with all necessary compliances arising due to organizing and conducting the Experience(s). Zomato shall not be responsible for any non-compliance by the Merchant for conducting the Experience(s) including obtaining necessary GST registrations, licenses etc.
j. The Merchant shall be responsible for generating the tax invoices (as per GST provisions) for sale of Experience(s) to Customers who purchase the Experience(s) through the Zomato Application for the Experience.
7. TERM AND TERMINATION
a. The arrangement between the Parties shall commence from the Commencement Date and shall be valid until the End Date, unless terminated earlier in accordance with these Terms (“Term”).
b. Either Party may terminate the Form and the Terms by issuing a seven (7) days prior written notice of termination to the other Party.
c. Notwithstanding anything contained herein, Zomato reserves the right to forthwith terminate the Form and these Terms or suspend the Service by stopping the display of the Experience(s) on the Zomato Application in the event the Merchant breaches any of these Terms or is in breach of any applicable laws or upon the happening of any of the insolvency events such as bankruptcy, appointment of receiver, administrator, liquidator, winding up, or dissolution. Zomato shall not return or refund any amount(s) paid by the Merchant, for any termination due to breach of these Terms by the Merchant.
d. In the event of termination of the Form and/or these Terms by the Merchant before the happening of the Experience(s), Zomato reserves the right to set off, withhold and/or deduct the amount of such refunds that may be issued by Zomato to the Customers on behalf of the Merchant, against any payments that are payable by Zomato to the Merchant under any other agreement or arrangement between Zomato and the Merchant or its affiliates. For clarity, the Merchant shall at all times be liable for the issuance of refund to the Customer in such cases.
e. The Merchant hereby agrees and acknowledges that Zomato shall exercise its right to terminate the Form and the Terms in accordance with this clause and the arrangement shall be deemed to be completed and fulfilled with the Merchant by Zomato without any liability to the Merchant under the Form and these Terms.
8. LICENSE
a. Merchant hereby grants Zomato an unrestricted, non-exclusive, royalty-free license in respect of the Content and/or Information provided to Zomato by the Merchant for the purposes of inclusion on the Zomato Application and as may be otherwise required under the Form. This includes, but is not limited to, a) use of the Merchant’s name in the context of Google ad words to support advertising and promotional campaigns to promote Experience(s) on internet which may be undertaken by Zomato b) preparation of derivative works of, or incorporate into other works, all or any portion of the marketing materials which will be made by Zomato for the purposes of its business. Any Content with respect to the Merchant to be used for the purpose of promotions on the Zomato Application which the Merchant transmits or submits to Zomato either through the Zomato Application or otherwise shall be considered and may be treated by Zomato as non-confidential, subject to Zomato’s obligations under relevant data protection legislation. The Merchant also grants to Zomato a royalty-free, perpetual, irrevocable, non-exclusive license to use, copy, modify, adapt, upload, translate, publish and distribute world-wide any Content for the purposes of providing Services under these Terms or to or for the purposes of advertising and promotion of the Zomato Application. The Merchant agrees that all information provided to Zomato that is published, may be relied upon and viewed by Customers to enable them to make decisions.
b. Zomato agrees and acknowledges that the intellectual property rights assigned by Merchant under Clause 2 and Clause 8 of this Agreement to Zomato shall continue to vest with the Merchant in perpetuity and will not lapse or revert to the Zomato, for any reason whatsoever, including whether Merchant exercises any or all the rights so assigned, at any point in time or for any duration of time.
c. Each party shall exclusively own its intellectual property and neither party will have any claim or right to the intellectual property of the other by virtue of the Form and the Terms or the performance of any activities hereunder except as otherwise provided herein. Neither party will take any action or make any claim to any intellectual property belonging to the other party, whether during the term of this Form or thereafter, which is inconsistent with this section.
d. For the purposes of this Agreement and to enable the Merchant to carry out the Marketing Deliverables as may be agreed between the Parties in writing, Zomato hereby grants the Merchant a limited, non-sublicensable, non-transferable and revocable license to use the Zomato’s name, trademark(s), service mark(s) and logo(s) (“Zomato IPR”) in accordance with the terms of this Agreement, (i) use, reproduce and display Zomato IPR in accordance with the brand usage guidelines displayed at https://www.zomato.com/blog/press-kit (“Brand Usage Guidelines”) and as instructed by Zomato, in writing, solely for purposes of performing the Merchant’s obligations or exercising its rights under this Agreement.
9. CONFIDENTIALITY
Any confidential or proprietary information of either party, whether of a technical, business or other nature, including, but not limited to consumer information/ Customer Data, trade secrets, know-how, technology and information relating to customers, business plans, promotional and marketing activities, finances and other business affairs, including but not limited to these Terms (collectively, “Confidential Information”) disclosed to the receiving party by the disclosing party, including Confidential Information disclosed before the date of signing the Form, will be treated by the receiving party as confidential and proprietary. These Terms shall be considered Zomato’s Confidential Information. Unless specifically authorized by the disclosing party, the receiving party will: (a) not use such Confidential Information except as authorized by the disclosing party; (b) not disclose such Confidential Information to any third party; and (c) otherwise protect such Confidential Information from unauthorized use and disclosure to the same extent that it protects its own Confidential Information of a similar nature. This clause will not apply to any information that: (i) was already known to the receiving party, other than under an obligation of confidentiality, at the time of disclosure by the disclosing party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving party in breach of these Terms; (iv) was disclosed to the receiving party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (v) was developed independently by the receiving party without any use of Confidential Information.
10. WARRANTY AND INDEMNITY
a. Merchant warrants that if the Merchant ceases to do business, closes operations for a material term, then the Merchant shall provide Zomato a thirty (30) days prior written notice, failing which the Merchant shall indemnify Zomato for any claims or dispute that may arise on account the aforementioned acts of the Merchant.
b. The Merchant hereby unconditionally represents to Zomato that it shall at all times be in compliance with the conditions imposed upon it by any license issued by any rule/regulation/statute.
c. Merchant will ensure that it complies with and remains in compliance with all applicable Indian laws and all other applicable legislation, regulations or standards.
d. The Merchant agrees to indemnify and holds Zomato harmless (and its directors, officers, agents, representatives and employees) from and against any and all claims, suits, liabilities, judgments, losses and damages arising out of or in connection with any claim or suit or demand: (i) on account of breach of these Terms by the Merchant; (ii) in respect of, arising out of, or in connection with the Experience(s) hosted by the Merchant; (iii) the services offered by the Merchant; (iv) the Content shared by the Merchant with Zomato and/or on the Zomato Application; (v) any statutory proceedings which may arise out of any acts of omission or commission by the Merchant in relation to the applicable excise laws;. (vi) on account of any non-compliance of a condition under the license issued by any rule/regulation/statute.
e. Zomato warrants that it will undertake its obligations with reasonable skill and care. Zomato does not warrant that the Zomato Application will be available on an uninterrupted or error-free basis, or that it shall be accessible by the Customers for any specified periods of time (number of days in week/month/year). The Merchant acknowledges that the Zomato Application may have interruptions on account of maintenance, technical outages, or similar constraints not within the control of Zomato. If errors occur, it will use its best endeavours to resolve these as quickly as possible.
11. CUSTOMER DATA
For the purposes of this Form, Zomato will share Customer Data with the Merchant for fulfilling the obligations of the Merchant under the Form and these Terms. It is clarified that the Customer’s phone number will be shared in a masked format. The Merchant agrees that the Customer Data will not be used to enhance any file or list of the Merchant or any third party. The Merchant represents, warrants, and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose whatsoever. The Merchant agrees that it will not copy or otherwise reproduce any Customer Data other than for the purpose of fulfilling its obligations under this Form and Terms. The Merchant (and any other persons to whom the Merchant provides any Customer Data) will implement and comply with reasonable security measures in protecting, handling, and securing the Customer Data. For purposes of hese Terms, the restrictions set forth herein on the Merchant's use of Customer Data do not apply to: (a) data from any customer who was a customer of Merchant prior to the Merchant using the Zomato Application, but only with respect to data that was so previously provided to the Merchant by such Customer; or (b) data supplied by a customer directly to the Merchant who becomes a customer of the Merchant and who explicitly opts in to receive communications from the Merchant for the purposes for which such Customer Data will be used by Merchant; and, provided in all cases, that the Merchant handles and uses such Customer Data in compliance with applicable Laws and the Merchant's posted privacy policy.
12. LIMITATION 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 and the Form, including liability expressly provided for under these Terms and the Form or arising by reason of the invalidity or unenforceability of any these Terms or the terms of the Form. Zomato does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, Zomato 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, 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. Although Zomato will use its best endeavours to ensure that the unintentional operational errors do not occur, Zomato cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, Zomato’s aggregate liability under these Terms and the Form shall not exceed the Deal Value under which the claim arose.
13. GENERAL
a. These Terms shall not be assigned by the Merchant without the prior written consent of Zomato. Any purported transfer, assignment, or delegation without such prior written consent shall be null and void. Zomato may assign or transfer these Terms for any reason to any person. Subject to the foregoing, these Terms shall bind and inure to the benefit of each party’s successors and permitted assigns.
b. These Terms shall be governed by the Laws of India, for the time being in force and the courts of New Delhi shall have the exclusive jurisdiction to preside over matters arising hereunder.
c. Neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including but not limited to acts of God, epidemics, earthquakes, strikes, lockdowns, civil disturbances, or similar causes.
d. All notices, demands or consents required or permitted under these Terms shall be provided (i) by email or (ii) in writing and personally delivered or sent by telecopy, telegram or registered or certified mail, return receipt requested, or by a reputable overnight carrier to the address designated by the other party and will be deemed to have been served when delivered, or if delivery is not accomplished by some fault of the addressee, when tendered. If, to Zomato, such papers must be sent to legal@zomato.com to the attention of the Legal Department. The communications between the Merchant and Zomato may employ electronic means, such as email or notifications provided by Zomato to the Merchant. The Merchant agrees (i) to receive communications from Zomato in an electronic form, and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Zomato provides electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
e. If any provision in these Terms is or becomes illegal, invalid or unenforceable in any respect under applicable law, neither the legality, validity nor the enforceability of the remaining provisions will in any way be affected or impaired. Further, the parties will negotiate, in good faith, a substitute, valid and enforceable provision which most nearly affects the parties’ intent in relation to the provision that has been held to be illegal, invalid or unenforceable.
f. The Merchant acknowledges that the business and assets of Zomato may be sold in the future and consents to the transfer or disclosure of its personal information and these Terms to any purchaser of the business of Zomato or its assets if that outcome occurs.
g. By signing the Form, the Merchant acknowledges and agrees to be bound by Zomato’s privacy policy (https://www.zomato.com/privacy). Merchant will immediately notify Zomato if it becomes aware of or suspects any unauthorised use or access to the user data or any other Confidential Information of Zomato, and shall cooperate with Zomato in investigation of such breach and the mitigation of any damage.
h. Zomato reserves the right to modify these Terms after prior notice and without liability to the Merchant. Any such changes will be effective immediately upon the changes being reflected on these Terms. In the event, Zomato modifies the Services or Terms and the Merchant does not wish to avail the Services, the Merchant reserves the right to terminate the Form and/or Terms in accordance with the provisions of these Terms.
i. Zomato reserves the right to discontinue the Zomato Dining Experience Program at its own discretion at any time, by providing a seven (7) days notice without liability to the Merchant.
j. The relationship of Zomato and the Merchant is one of independent contractors, and nothing contained in these Terms will be construed to (i) give either party the power to direct and control the day-to-day activities of the other, (ii) constitute the parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow the Merchant to create or assume any obligation on behalf of Zomato for any purpose whatsoever. All financial obligations associated with Merchant’s business are the sole responsibility of the Merchant.