The ODIFA Vendor Agreement(“Letter”) along with the Merchant/Restaurant/Pharmacy Store/Service Provider Partner Terms of Use (“Terms”), represents and confirms our mutual Terms with respect to the Merchant/Restaurant/Pharmacy Store/Service Provider Partner’s participation on the proprietary mobile platform currently made available by Klantech Business Solutions Pvt Ltd (“ODIFA” or “us”) or its affiliates, from time-to-time, and referred to as the “ODIFA App”. Upon signing by both parties, the Letter and the ODIFA Merchant/Restaurant/Pharmacy Store/Service Provider Terms of Use binding and enforceable legal contract between you and ODIFA as of the date set forth above (“Effective Date”)
The Terms with you are as follows:
Definition’s: -
A) Merchant: - A “Merchant” will be an owner or an authorized representative of a store for e.g., Grocery, Fruits & Vegetables, Stationery & Gifts, Pet Care Products etc.
B) Services: - A “Service Provider” will an individual or a team who will be providing catered services such as Pest Control, Plumber, Electrician, Saloon Services, Pet Grooming Car Mechanic etc.
C) Restaurants: - A “Restaurant” will be a provider who will provide cooked food & meal items.
D) Pharmacy Store: - A “Pharmacy Store” will be a retail shop which provides pharmaceutical drugs, among other products
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) Service(s) and/or beverages the Restaurant/Merchant/Services Provider makes available (each, a “Services” “Meal” or “Item(s)”, as interchangeably used under these Terms) via the ODIFA 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. Hours of Operation
The suggested search term(s) or Restaurant/Merchant/ Service Provider item(s) visible on the ODIFA App is the general availability of Meals during the Merchant’s / Restaurant’s/ Service Provider normal business hours. The Restaurant/Merchant’s/ Service Provider customers (the “Buyers” and/or “ODIFA App Users”/” User(s)”) may select Meals or Items from the displayed search term(s)/listing(s) on the ODIFA App.
4. Delivery
The “ODIFA Web Dashboard” will be made available to the Restaurant/Merchant/ Service Provider to access on-demand logistic services by Delivery Partners. For the sake of clarity, neither ODIFA nor its affiliates provide any delivery or logistics services, but ODIFA provides a platform for merchants/restaurants/ Service Provider 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 Items/Meals. “Delivery Partner” is defined as an independent contractor who intends to provide on demand delivery services using ODIFA’s proprietary technology platform under license from ODIFA or one of its affiliates. ODIFA will not have any obligation to deliver the Item(s) as a platform provider. For purposes of delivery of the Items/Meals, ODIFA and the Delivery Partners shall operate (i) under cover of any approval, license or permission required to operate your business at the Restaurant/Merchant/ Service Provider Outlet and sell the Meal and (ii) under your control, as your agent (including but not limited to receipt agent of Items/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 Items/Meals and you maintain possession, control and care of the Items/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. ODIFA will not be liable for any damage or loss incurred by the Users in relation to the delivery of the Items/Meals and will follow reasonable guidance you provide regarding the delivery of the Meals.
5. Availability of Meal(s)/Item(s)/Service(s)
• 5.a. Meal(s)/Item(s)ODIFA may 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 ODIFA 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 ODIFA App. In the event of failing to provide Meals/Items that adhere to the Criteria (each, a “Substandard Meal/Item”), ODIFA is under no obligation to make such Substandard Meals/Items available for sale via the ODIFA App.
• 5.b. Taxes. You are responsible for determining and setting the retail price (“Retail Price”) for each Meal/Item and duly informing ODIFA 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, ODIFA will notify the Merchant /Restaurant/ Service Provider 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 Merchant/Restaurant/ Service Provider 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 Restaurant/Merchant Partner to process any order, the Restaurant/Merchant/ Service Provider Partner must seek further information as required.
• 5.d. Notwithstanding these Terms, ODIFA reserves the right to temporarily discontinue Services or permanently terminate with immediate effect for material breach or non-compliance by the Merchant / Restaurant/ Service Provider Partner which includes, but is not limited to, the following instances:
(i). User/Buyer complaints received by ODIFA which are directly or indirectly attributable to the quality of Item’s/food provided by the Merchant/Restaurant/ Service Provider Partner either through poor ratings, as defined by ODIFA, through calls placed with ODIFA 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 Merchant/Restaurant/ Service Provider Partner;
(iii). Breach of the representations and warranties of the Merchant/Restaurant/ Service Provider Partner; or
(iv). Any other material breach of the terms.
Notwithstanding anything contained under this Terms, ODIFA has the right to immediately delist any of the Items/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 Merchant/Restaurant/ Service Provider 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 ODIFA in its sole discretion as reasonable, for (i) request by the Users of refund or (ii) acceptance by the Delivery Partner of the request. ODIFA may deduct refunds from the payment made to you under these Terms.
• 5.f. It is clarified that ODIFA shall not be liable to make any payment for a Disputed Order. ODIFA shall reserve the right to recover from Merchant/Restaurant/ Service Provider Partner, the amount paid to Users/Buyers as refund up to the order value.
• 5.g. In case of complaints from the User pertaining to Item/food efficacy, quality, or any other such issues, ODIFA shall notify the same to Merchant/Restaurant/ Service Provider Partner and shall also redirect the Buyer to the consumer call center of the Merchant/Restaurant/ Service Provider. Merchant/Restaurant/ Service Provider Partner shall alone be liable for redressing and bound to take action on the complaints by the User. ODIFA has the right to share with the Merchant/Restaurant/ Service Provider Partner, the relevant information including the Merchant/Restaurant/ Service Provider details to enable satisfactory resolution of the complaint. ODIFA shall in the interest of satisfactory resolution of the Complaint, share with the User, relevant information pertaining to the Order along with Merchant/Restaurant/ Service Provider details.
5.h. Service Fee.• In consideration for use of the ODIFA App, ODIFA 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. ODIFA does not guarantee that you will be matched with the Delivery Partner at the time you wish to be matched. ODIFA shall not be liable for any failure to match.
6. Promotional Activities
• 6.a. Marketing.
ODIFA will each showcase the availability of the Items/Meals via the ODIFA 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 ODIFA, 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. Merchant/Restaurant/ Service Provider agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of performing the services contemplated by this Terms. Merchant/Restaurant/ Service Provider shall maintain the accuracy and integrity of any Personal Data provided by ODIFA in its possession, custody or control. Merchant/Restaurant/Pharmacy Store/Service Provider agrees to retain Personal Data provided to Merchant/Restaurant/Pharmacy Store/Service Provider by ODIFA solely by using the software and tools provided by ODIFA.
7. Non-ExclusiveWe 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 Merchant/Restaurant/Pharmacy Store/Service Provider 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 Merchant/Restaurant/Pharmacy Store/Service Provider further represents and warrants that the details of the tax registrations provided by the Merchant/Restaurant/Pharmacy Store/Service Provider and Indirect tax to be levied on each meal to be made available for sale via the ODIFA App, forming integral part of this Terms. The Merchant/Restaurant/Pharmacy Store/Service Provider further confirms and declares that the information provided and the copies of tax registrations, are true and correct, and assumes responsibility to intimate ODIFA in case of any change in the provided information. The Merchant/Restaurant/Pharmacy Store/Service Provider undertakes that all Indirect Tax applied on each Meal and Delivery made available for sale via the ODIFA 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. Indemnification
• 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 willful misconduct of the Indemnifying Party and its employees or agents (in your case, excluding ODIFA 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 ODIFA 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 ODIFA 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
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. ODIFA does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, ODIFA 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, ODIFA will use its best endeavors to ensure that the unintentional operational errors do not occur, ODIFA cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, ODIFA aggregate liability under this Agreement and respective Terms of Use shall not exceed the total value of a Disputed Order.
12. Term and Termination
Either ODIFA or the Merchant/Restaurant/Pharmacy Store/Service Provider Partner can terminate this contract providing 15 days’ prior written notice to the other. ODIFA shall delist the Merchant/Restaurant/Pharmacy Store/Service Provider Partner at the end of the 15th Day. Upon termination in accordance with the terms hereof, Merchant/Restaurant/Pharmacy Store/Service Provider Partner shall only be required to service Meal(s) already placed through ODIFA prior to such expiry or earlier termination of these Terms, and ODIFA shall be entitled to receive Service Fee for such Items/Meal(s).
13. 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.
14. 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.
15.
If the Merchant/Restaurant/Pharmacy Store/Service Provider Partner notices any discrepancy in the weekly settlement, the Merchant/Restaurant/Pharmacy Store/Service Provider Partner may raise a ticket by writing an email to support@odifa.in and the same will be mutually resolved by both parties within 15 days from the date on which the ticket was raised.
16
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.
Addendum I
Special Terms
1. Reporting
ODIFA will give you information regarding the number of Items/Meals picked up by Delivery Partners and sold by you to the Users pursuant to the Terms. The Merchant/Restaurant/Pharmacy Store/Service Provider Partner shall maintain such documents to record the proof of delivery of product or performance of service. Without prejudice to the generality of the aforesaid, Merchant/Restaurant/Pharmacy Store/Service Provider shall routinely and at such time intervals provide such reports and in such formats as may be specified by the Company.
2. Payment
2.a. Service Fee.• In consideration for ODIFA’s lead generation, demand prediction, payment processing and other related services provided via the ODIFA App under the Terms, ODIFA will charge you a service fee of INR 500/Month for Pharmacy Store/Merchants & Service Providers & INR 1000/Month for Restaurants , agreed under the Letter (exclusive of Indirect Tax and withholding tax, if any) on Item/Meal Value, as defined under the Letter or (the “Service Fee”). This Service Fee is charged as consideration for expediting the Users’ orders via the ODIFA App.
• 2.c. Remittance. ODIFA will remit to you the total (i) Item/Meal Payment (including any Indirect Tax collected on your behalf but reduced by the, 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/Meal Revenue”).
• 2.d. Item/Meal Revenue received by ODIFA from the User on behalf of the Merchant/Restaurant/Pharmacy Store/Service Provider Partner will be settled into the Merchant/Restaurant/Pharmacy Store/Service Provider Partner’s bank account, details. 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/Restaurant/Pharmacy Store/Service Provider Partner agrees to provide such documents and information necessary or as may be sought by a payment facilitator or bank to enlist the Merchant/Restaurant/Pharmacy Store/Service Provider Partner as a payee of ODIFA. The Merchant/Restaurant/Pharmacy Store/Service Provider Partner agrees that for this purpose, information about and provided by the Merchant/Restaurant/Pharmacy Store/Service Provider Partner will be shared with a payment facilitator or bank.
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.