b) where such expression shall, unless repugnant to the context thereof, be deemed to include its respective representatives, administrators, employees, directors, officers, agents and their successors and assigns.
i) The term ‘You’ & ‘User’, shall mean any legal person or entity accessing or using the services provided on this App and/or Website, who is competent to enter into binding contracts, as per the provisions of the Indian Contract Act, 1872.
ii) ‘You’ where the context relates to ‘Business User’ & ‘Business User’ means a Merchant, who is any legal person or entity accessing or using the services provided on this App and/or Website such as having their products and services listed on the App and/or Website as displayed by the Company, who is competent to enter into binding contracts, as per the provisions of the Indian Contract Act, 1872.
iii) The terms ‘We’, ‘Us’, ‘Our’ shall mean the App and/or the Company, as the context so requires.
iv) The term ‘Services’ shall mean the business of providing a portal between Business Users and Users where Users can book tables and order food from restaurants listed on the App, where Business Users can list their restaurants and dishes, and where the App facilitates delivery of orders to customers.
v) The terms ‘Party’ &‘Parties’ shall respectively be used to refer to the User/Business User and the Company individually and collectively, as the context so requires.
d) The headings of each section in these Terms are only for the purpose of organizing the various provisions under these Terms in an orderly manner, and shall not be used by either Party to interpret the provisions contained herein in any manner. Further, it is specifically agreed to by the Parties that the headings shall have no legal or contractual value.
f) The User/Business User unequivocally agrees that these Terms and the aforementioned Policy constitute a legally binding agreement between the User/Business User and the Company, and that the User/Business User shall be subject to the rules, guidelines, policies, terms, and conditions applicable to any service that is provided by the Website/App, and that the same shall be deemed to be incorporated into these Terms, and shall be treated as part and parcel of the same. The User/Business User acknowledges and agrees that no signature or express act is required to make these Terms and the Policy binding on the User/Business User, and that the User/Business User’s act of visiting the any part of the App/Website constitutes the User/Business User’s full and final acceptance of these Terms and the aforementioned Policy.
g) The Company reserves the sole and exclusive right to amend or modify these Terms without any prior permission or intimation to the User/Business User, and the User/Business User expressly agrees that any such amendments or modifications shall come into effect immediately. The User/Business User has a duty to periodically check the terms and stay updated on its requirements. If the User/Business User continues to use the App/Website following such a change, the User/Business User will be deemed to have consented to any and all amendments/modifications made to the Terms. In so far as the User/Business User complies with these Terms, it is granted a personal, non-exclusive, non-transferable, revocable, limited privilege to access and use the App/Website. If the User/Business User does not adhere to the changes, You must stop using the Services at once. Your continuous use of the Services will signify your acceptance of the changed terms.
To fully avail the Services of the App and use of it, a one-time User registration is required to create a profile, for both the User and Business User. You may access the Services by signing in as User by providing the following information which shall include but not be limited to Name, Mobile Number, Email ID, and Street Address. This information is used to provide you with important services via e-mail, and for Users, information regarding the products available in their area.
Registration for this App is available only to those above the age of 18 years, barring those “Incompetent to Contract” which inter alia include insolvents. If You are a minor and wish to use the App, You may do so through Your legal guardian and the Company reserves the right to terminate Your account on knowledge of You being a minor and having registered on the App or availing any of its Services.
Further, at any time during Your use of this App, including but not limited to the time of registration, You are solely responsible for protecting the confidentiality of Your User name and password, and any activity under the account shall be deemed to have been done by You. In the case that You provide Us with false and/or inaccurate details or We have reason to believe You have done so, We hold the right to permanently suspend Your account. You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your account.
3. SERVICE OVERVIEW
The Website/App is a an food delivery portal where Users can buy products available from Business Users in their area, book tables, and obtain home delivery of products. The products include food prepared by Business Users who have registered themselves on the Website/App. The Company or the Business User (on a case-by-case basis) is responsible for the delivery of the food products, and the Website/App allows Users and Business Users to join a community of restaurants and customers. The App/Website also services Business Users to list their products, and/or advertise on the App/Website. Such listing/advertisement on the App/Website must first be approved by the Company before it is listed on the App/Website. For Business Users to be able to list/advertise on the App/Website, the Business User shall share their business details with the Company and We will get in touch with them as soon as possible.
The User/Business User represents and warrants that he/she is competent and eligible to enter into legally binding agreements and that he/she has the requisite authority to bind himself/herself to these Terms, as determined solely by the provisions of the Indian Contract Act, 1872. The User/Business User may not use the App if he/she is not competent to contract under the Indian Contract Act, 1872, or is disqualified from doing so by any other applicable law, rule or regulation currently in force.
All text, graphics, user interfaces, visual interfaces, photographs, trademarks, logos, sounds, music and artwork (collectively, "Content"), is generated/provided by a third party and We have no control and make no guarantees regarding the quality, the accuracy, integrity or genuineness of such Content.
The Business User is solely responsible for the integrity, authenticity, quality and genuineness of the products sold by the Business User on the App/Website and whilst complaints or feedback of Users shall be made via the App/Website, the App/Website bears no liability whatsoever for any complaints by the User made in respect of any of the products advertised/listed by the Business Users on the App/Website. Further, the App reserves its right to suspend the account of any Business User for an indefinite period to be decided at the discretion of the Business User, or to terminate the account of any Business User who is found to have displayed or sold products/services of inferior quality, or products that are not genuine in nature, or not sold products on time. The Business User shall be solely responsible for making good any financial or legal losses incurred through the display or purchase of products/services of inferior quality/not genuine in nature or not delivering products to Users on time.
The Users have a personal, non-exclusive, non-transferable, revocable, limited privilege to access the content on the App/Website. Users shall not copy, adapt, and modify any content without written permission of the Company.
These Terms shall continue to form a valid and binding contract between the Parties, and shall continue to be in full force and effect until the User/Business User continues to access and use the App.
A User/Business User may terminate his/her use of the App/Website at any time. The Company may terminate these Terms and close a User/Business User account at any time without notice and/or suspend or terminate a User/Business User’s access to the App at any time and for any reason, in its sole discretion. Such suspension or termination shall not limit our right to take any other action against you that we consider appropriate.
It is also hereby declared that the Company may discontinue the App/Website without any prior notice.
The Company reserves the right, in its sole discretion, to unilaterally terminate the User/Business User’s access to the Services, or any portion thereof, at any time, without notice or cause. The App/Website also reserves the universal right to deny access to particular User/Business Users, to any/all of its Services without any prior notice/explanation in order to protect the interests of the App/Website and/or other visitors to the App/Website. The App/Website reserves the right to limit, deny or create different access to the App/Website and its features with respect to different User/Business User(s), or to change any of the features or introduce new features without prior notice. The User/Business User shall continue to be bound by these Terms, and it is expressly agreed to by the Parties that the User/Business User shall not have the right to terminate these Terms till the expiry of the same.
By using this App, and providing his/her contact information to the Company through the App, the User/Business User hereby agrees and consents to receiving calls, auto dialed and/or pre-recorded message calls, e-mails, and SMSs from the Company and/or any of its affiliates or partners at any time, subject to the Policy. In the event that the User/Business User wishes to stop receiving any such marketing, special offers or promotional calls/email messages/text messages, the User/Business User may unsubscribe via email at [[email protected]
] or SMS at [insert number]. The User/Business User agrees and acknowledges that it may take up to fifteen (15) business days for the Company to give effect to such a request by the User/Business User.
The User/Business User expressly agrees that notwithstanding anything contained hereinabove, it may be contacted by the Company or any of its affiliates/partners relating to any service availed of by the User/Business User on the App or anything pursuant thereto and the User/Business User agrees to indemnify the Company from any and all harassment claims. It is expressly agreed to by the Parties that any information shared by the User/Business User with the Company shall be governed by the Policy.
Registration on this App/Website is free and this includes accessing the App/Website and the use of the services. However, We reserve the right to amend the charges for the services rendered. In case that happens, User/Business Users will be intimated of the same, and it will be up to you to decide whether or not you will continue with services offered by us. Such changes are effective as soon as they are posted on the App.
10. USER/BUSINESS USER OBLIGATIONS
The User/Business User agrees and acknowledges that he/she is a restricted User/Business User of this App, and that he/she:
a) Agrees to provide genuine credentials during the process of registration on the App. You shall not use a fictitious identity to register. We are not liable if the User/Business User has provided incorrect information. Agrees to ensure the email address, address and mobile number provided during account Registration are valid at all times and shall keep your information accurate and up-to-date. The User/Business User can update his/her details anytime.
b) Agrees that he/she are solely responsible for maintaining the confidentiality of your account password. You agree to notify us immediately of any unauthorized use of your account. We reserve the right to close your account at any time for any or no reason.
c) Understands and acknowledges that the data submitted is manually entered in to the database of the App/Website and all data in the App/Website should be backed by hard copies or appropriate evidence for the purpose of verifying the validity of the data. The User/Business User also acknowledges the fact that data so entered into the database is for the purpose of easy and ready reference alone.
d) Authorizes the App/Website to use, store or otherwise process Your personal information and product information for marketing and promotional purposes.
e) Agrees to use only Company-mandated packaging and branding for the packaging of products sold through the App/Website.
f) Agrees to inform the Company at least 48 hours in advance regarding any leave(s) to be taken (in the case of Business User) affecting the availability of regularly available products.
h) Is bound not to cut, copy, modify, recreate, reverse engineer, distribute, disseminate, post, publish or create derivative works from, transfer, or sell any information or obtained from the App/Website. Any such use/limited use of the App/Website will only be allowed with the prior express written permission of the Company. For the removal of doubt, it is clarified that unlimited or wholesale reproduction, copying of the content for commercial or non-commercial purposes and unwarranted modification of data and information contained on the App/Website is expressly prohibited.
i) Agrees not to access (or attempt to access) the App/Website and/or the materials or services by any means other than through the interface provided by the App/Website. The use of deep-link, robot, spider or other automatic device, program, algorithm or methodology, or any similar or equivalent manual process, to access, acquire, copy or monitor any portion of the App/Website or its content, or in any way reproduce or circumvent the navigational structure or presentation of the App/Website, materials or any content, or to obtain or attempt to obtain any materials, documents or information through any means not specifically made available through the App/Website will lead to suspension or termination of the User/Business User’s access to the App/Website, as detailed in Section 11 herein below. The User/Business User acknowledges and agrees that by accessing or using the App/Website or any of the Services provided therein, it may be exposed to content that it may consider offensive, indecent or otherwise objectionable. The Company disclaims any and all liabilities arising in relation to such offensive content on the App/Website.
j) The User/Business User expressly agrees and acknowledges that the products displayed on the App/Website are not owned by the Company, and that the same are the exclusive property of certain third parties (the Business Users) who have chosen to market their services through the Company’s App/Website, and that the Company is in no way responsible for the content of the same. The User/Business User may however report any offensive or objectionable content, which the Company may then remove from the App/Website, at its sole discretion.
k) The App/Website permits the User to post, or upload data/information as user submissions, and the User undertakes to ensure that such material is not offensive or objectionable, and is in accordance with applicable laws. The User expressly agrees that any such material that is deemed to be objectionable/offensive may be removed from the App/Website immediately and without notice, and further that the User’s access to the App/Website may also be permanently revoked, at the sole discretion of the Company.
The User/Business User further undertakes not to:
i. Abuse, harass, threaten, defame, disillusion, erode, abrogate, demean or otherwise violate the legal rights of any other person or entity;
ii. Engage in any activity that interferes with or disrupts access to the App/Website or the services provided therein (or the servers and networks which are connected to the App/Website);
iii. Impersonate any person or entity, or falsely state or otherwise misrepresent his/her affiliation with a person or entity;
iv. Disregard or violate any pre-determined timelines for creating the products (by the Business Users) leading to delays in delivery of the products;
v. Use a Business User’s account to place orders for product(s) sold by other Business Users;
vi. Use any products of the Business User for any purpose other than for personal consumption;
vii. Publish, post, disseminate, any information which is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, libelous, invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatever under any law, rule or regulation currently in force; or unlawfully threatening or unlawfully harassing including but not limited to "indecent representation of women" within the meaning of the Indecent Representation of Women (Prohibition) Act, 1986;
viii. Post or share any image/file/data with the company that infringes the copyright, patent or trademark of another person or legal entity;
ix. Upload or distribute files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the App/Website;
x. Download any file belonging to another User/Business User of the App/Website that the User/Business User is aware, or should reasonably be aware, cannot be legally distributed in such a manner;
xi. Probe, scan or test the vulnerability of the App/Website or any network connected to the App/Website, nor breach the security or authentication measures on the App/Website or any network connected to the App/Website. The User/Business User may not reverse look-up, trace or seek to trace any information relating to any other User/Business User of, or visitor to, the App/Website, or any other Customer of the App/Website, including any User/Business User account maintained on the App/Website not operated/managed by the User/Business User, or exploit the App/Website or information made available or offered by or through the App/Website, in any manner;
xii. Disrupt or interfere with the security of, or otherwise cause harm to, the App/Website, systems resources, accounts, passwords, servers or networks connected to or accessible through the App/Website or any affiliated or linked platforms;
xiii. Collect or store data about other User/Business Users of the App/Website.
xiv. Use the App/Website or any material or content therein for any purpose that is unlawful or prohibited by these Terms, or to solicit the performance of any illegal activity or other activity which infringes the rights of this App/Website or any other third party (ies);
xv. Violate any code of conduct or guideline which may be applicable for or to any particular service offered on the App/Website;
xvi. Violate any applicable laws, rules or regulations currently in force within or outside India;
xvii. Violate any portion of these Terms or the Policy, including but not limited to any applicable additional terms of the App/Website contained herein or elsewhere, whether made by amendment, modification, or otherwise;
xviii. Threaten the unity, integrity, defense, security or sovereignty of India, friendly relations with foreign states, or public Order, or cause incitement to the commission of any cognizable offence, or prevent the investigation of any offence, or insult any other nation.
xix. Publish, post, or disseminate information that is false, inaccurate or misleading;
xx. Directly or indirectly offer, attempt to offer, trade, or attempt to trade, any item the dealing of which is prohibited or restricted in any manner under the provisions of any applicable law, rule, regulation or guideline for the time being in force.
xxi. Commit any act that causes the Company to lose (in whole or in part) the services of its Internet Establishment ("ISP") or in any manner disrupts the services of any other supplier/service provider of the Company/App;
xxii. Engage in advertising to, or solicitation of, other User/Business Users of the App/Website to buy or sell any products or services not currently displayed on the App/Website. The User/Business User may not transmit any chain letters or unsolicited commercial or junk email/messages to other User/Business Users via the App/Website. It shall be a violation of these Terms to use any information obtained from the App/Website to harass, abuse, or harm another person, or to contact, advertise to, solicit, or sell to another User/Business User of the App/Website without the express prior written consent of the Company.
The User/Business User hereby expressly authorizes the Company/App to disclose any and all information relating to the User/Business User in the possession of the Company/App to law enforcement or other government officials, as the Company may in its sole discretion, believe necessary or appropriate in connection with the investigation and/or resolution of possible crimes, especially those involve personal injury and theft/infringement of intellectual property. The User/Business User further understands that the Company/App might be directed to disclose any information (including the identity of persons providing information or materials on the App) as necessary to satisfy any judicial Order, law, regulation or valid governmental request.
11. SUSPENSION OF USER/BUSINESS USER ACCESS AND ACTIVITY
Notwithstanding other legal remedies that may be available to it, the Company may in its sole discretion limit the User/Business User’s access and/or activity by immediately removing the User/Business User’s access credentials either temporarily or indefinitely, or suspend/terminate the User/Business User’s association with the App/Website, and/or refuse to usage of the App/Website to the User/Business User, without being required to provide the User/Business User with notice or cause:
a) If the User/Business User is in breach any of these Terms or the Policy;
b) If the User/Business User has provided wrong, inaccurate, incomplete or incorrect information;
c) If the User/Business User’s actions may cause any harm, damage or loss to the other User/Business Users or to the App/Company, at the sole discretion of the Company.
i. Your use of the App/Website,
ii. Any Discussions or Messages you provide;
iii. Your violation of these Terms and Conditions;
iv. Your violation of any rights of another;
v. Your conduct in connection with the App/Website;
vi. Your internal disputes amongst other Users/Business Users; or
b. You agree to fully cooperate in indemnifying Us at Your expense. You also agree not to reach a settlement with any party without Our consent.
In no event shall the Company/App be liable to compensate the User/Business User or any third party for any special, incidental, indirect, consequential or punitive damages whatsoever, including those resulting from loss of use, data or profits, whether or not foreseeable, and whether or not the Company/ App had been advised of the possibility of such damages, or based on any theory of liability, including breach of contract or warranty, negligence or other tortuous action, or any other claim arising out of or in connection with the User/Business User’s use of or access to the App and/or the services or materials contained therein.
13. LIMITATION OF LIABILITY
a. The Founders/ Promoters/ Associated people of the App/Website are not responsible for any consequences arising out of the following events:
i. If the App/Website is inoperative/non-responsive due to any connectivity errors associated with the internet connection such as but not limited to slow connectivity, no connectivity, server failure. ii. if the User/Business User has fed incorrect figures or data or for any deletion of data iii. if there is undue delay or inability to communicate through email iv. if there is a failure in the functioning of any other service provided by the App/Website.
b. The App/Website accepts no liability for any errors or omissions, whether on behalf of itself or third parties, or for any damage caused to the User/Business User, the User/Business User’s belongings, or any third party, resulting from the use or misuse of the App/Website or any product purchased or service availed of by the User/Business User through the App/Website. The service and any content or material displayed on the service is provided without any guarantees, conditions or warranties as to its accuracy, suitability, completeness or reliability. The App/Website will not be liable to you for the unavailability or failure of the App/Website.
c. User/Business Users may be held legally responsible for damages suffered by other User/Business Users, the App/Website or any third party as a result of legally actionable or defamatory comments, remarks, or other information or content posted to the App/Website.
d. User/Business Users are to comply with all laws applicable to them or to their activities, and with all Policies, which are hereby incorporated into this Agreement by reference.
e. The App/Website expressly excludes any liability for any loss or damage that was not reasonably foreseeable by the App/Website and which is incurred by you in connection with the App/Website, including loss of profits; and any loss or damage incurred by you as a result of your breach of these terms.
f. To the fullest extent permitted by law, the App/Website shall not be liable to You or any other party for any loss or damage, regardless of the form of action or basis of any claim. You acknowledge and agree that your sole and exclusive remedy for any dispute with us is to terminate your use of the App/Website.
14. INTELLECTUAL PROPERTY RIGHTS
Unless expressly agreed to in writing, nothing contained herein shall give the User/Business User a right to use any of the App/Website’s trade names, trademarks, service marks, logos, domain names, information, questions, answers, solutions, reports and other distinctive brand features, save according to the provisions of these Terms. All logos, trademarks, brand names, service marks, domain names, including material, designs, and graphics created by and developed by the App/Website and other distinctive brand features of the App/Website are the property of the Company. Furthermore, with respect to the App/Website created by the Company, the Company shall be the exclusive owner of all the designs, graphics and the like, related to the App.
The User/Business User may not use any of the intellectual property displayed on the App/Website in any manner that is likely to cause confusion among existing or prospective User/Business Users of the App/Website, or that in any manner disparages or discredits the Company/App, to be determined in the sole discretion of the Company.
The User/Business User is aware all intellectual property, including but not limited to copyrights, relating to said services resides with the owners, and that at no point does any such intellectual property stand transferred from the aforementioned creators to the Company, or to the User/Business User. The User/Business User is aware that the Company merely provides a App/Website through which the Users can purchase food products and book tables, and where Business Users provide the said products and the tables, and the Company/the App owns any of the intellectual property relating to the products and services displayed on the App, and carries out delivery of the said products from Business Users to Users.
The User/Business User is further aware that any reproduction or infringement of the intellectual property of the aforementioned owners by the User/Business User will result in legal action being initiated against the User/Business User by the respective owners of the intellectual property so reproduced/infringed upon. It is agreed to by the Parties that the contents of this Section shall survive even after the termination or expiry of the Terms and/or Policy.
15. DISCLAIMER OF WARRANTIES AND LIABILITIES
a) The User/Business User agrees and undertakes that they are accessing the App/Website and transacting at his/her sole risk and are that it is using his/her best and prudent judgment before availing any service listed on the App/Website, or accessing/using any information displayed thereon.
b) The User/Business User agrees that any kind of information, resources, activities, recommendations obtained/availed from App/Website, written or oral, will not create any warranty and the App/Website disclaims all liabilities resulting from these. You are solely responsible for your communication/interaction with other User/Business Users on the App/Website and the App/Website doesn’t make any warranty about the conduct of User/Business Users on the App/Website.
c) The Company/App does not guarantee that the functions, products and services contained in the App/Website will be uninterrupted or error-free, or that the App/Website or its server will be free of viruses or other harmful components, and the User/Business User hereby expressly accepts any and all associated risks involved with the User/Business User’s use of the App/Website.
d) The App/Website may avail services from third party to serve you better and these services will be provided on “as is” basis and the App/Website disclaims any liabilities resulting from these third party services. The App/Website will not be responsible for any internet delays and damages caused by such problems.
e) It is further agreed to by the Parties that the contents of this Section shall survive even after the termination or expiry of the Terms and/or Policy.
16. FORCE MAJEURE
Neither the Company nor the App/Website shall be liable for damages for any delay or failure to perform its obligations hereunder if such delay or failure is due to cause beyond its control or without its fault or negligence, due to Force Majeure events including but not limited to acts of war, acts of God, earthquake, riot, fire, festive activities sabotage, labor shortage or dispute, internet interruption, technical failure, breakage of sea cable, hacking, piracy, cheating, illegal or unauthorized.
17. DISPUTE RESOLUTION AND JURISDICTION
It is expressly agreed to by the Parties hereto that the formation, interpretation and performance of these Terms and any disputes arising there from will be resolved through a two-step Alternate Dispute Resolution (“ADR”) mechanism . It is further agreed to by the Parties that the contents of this Section shall survive even after the termination or expiry of the Terms and/or Policy.
a) Mediation: In case of any dispute between the parties, the Parties will attempt to resolve the same amicably amongst themselves, to the mutual satisfaction of both Parties. In the event that the Parties are unable to reach such an amicable solution within thirty (30) days of one Party communicating the existence of a dispute to the other Party, the dispute will be resolved by arbitration, as detailed herein below;
b) Arbitration: In the event that the Parties are unable to amicably resolve a dispute by mediation, said dispute will be referred to arbitration by a sole arbitrator to be appointed by the Company, and the award passed by such sole arbitrator will be valid and binding on both Parties. The Parties shall bear their own costs for the proceedings, although the sole arbitrator may, in his/her sole discretion, direct either Party to bear the entire cost of the proceedings. The arbitration shall be conducted in English, and the seat of Arbitration shall be the city of [Patna].
The Parties expressly agree that the Terms, Policy and any other agreements entered into between the Parties are governed by the laws, rules and regulations of India.
Any and all communication relating to any dispute or grievance experienced by the User/Business User may be communicated to the Company by the User/Business User writing an email to [[email protected]
19. MISCELLANEOUS PROVISIONS
a) Entire Agreement: These Terms, read with the Policy form the complete and final contract between the User/Business User and the Company with respect to the subject matter hereof and supersedes all other communications, representations and agreements (whether oral, written or otherwise) relating thereto.
b) Waiver: The failure of either Party at any time to require performance of any provision of these Terms shall in no manner affect such Party's right at a later time to enforce the same. No waiver by either Party of any breach of these Terms, whether by conduct or otherwise, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such breach, or a waiver of any other breach of these Terms.
c) Severability: If any provision/clause of these Terms is held to be invalid, illegal or unenforceable by any court or authority of competent jurisdiction, the validity, legality and enforceability of the remaining provisions/clauses of these Terms shall in no way be affected or impaired thereby, and each such provision/clause of these Terms shall be valid and enforceable to the fullest extent permitted by law. In such case, these Terms shall be reformed to the minimum extent necessary to correct any invalidity, illegality or unenforceability, while preserving to the maximum extent the original rights, intentions and commercial expectations of the Parties hereto, as expressed herein.
d) Contact Us: If you have any questions about this Agreement, the practices of the App, or your experience with the Service, you can e-mail us at [[email protected]
© Bytster Technologies 2018