Tnc_india.pdf

TERMS AND CONDITIONS FOR FOOD HYGIENE RATING SERVICES (“TERMS”) These Terms for Food Hygiene Ratings Services constitute a legally binding agreement made between you, whether personally or on behalf of an entity (the “Merchant”) and Zomato Media Private Limited and its affiliates (collectively, “Zomato”). The Merchant, hereby unequivocally agrees and accepts the following Terms: 1.

Subscription and Service: By signing up for the Services, the Merchant and/or the specific restaurants operated by the Merchant shall be able to receive Food Hygiene Rating Services (“Services”) via third party engaged by Zomato (hereinafter “Auditor”) to conduct Hygiene Audit (hereinafter “Audit”) at the Merchant’s Restaurant (“Restaurant”). Upon the receipt of the Merchant’s request for the Service, the Merchant agrees to the unannounced Hygiene Audit with respect to its Restaurant by the Auditor. Such Audit shall be in accordance with these Terms and FAQ's available at https://www.zomato.com/hygiene/, which may be amended by Zomato from time to time. The Merchant understands and agrees that the Auditor shall enter the designated Restaurant of the Merchant unannounced to conduct the Audit on any working day during the business hours. The Audit shall however not be conducted on any public holiday or when the designated Restaurant is closed or when a prior written intimation has been provided to Zomato in this regard.

2.

Right to access: Merchant hereby agrees and grants the Auditor the right to access the areas of the designated Restaurant, which includes without limitation, kitchen area, preparation area, assembly area, storage area for equipments, utensils, crockery and food material or other materials, eating area, washroom area, and all other areas within the Restaurant premises to make observations related to regular hygiene practices and other ancillary practices to ensure that conducive practices for maintaining hygiene and cleanliness are undertaken by the Merchant at its designated Restaurant.

3.

Merchant Obligations and Undertakings: a.

The Merchant shall extend its full cooperation and unhindered support to the Auditor while conducting the Audit at the Restaurant.

b. The Merchant shall not directly or indirectly contact or attempt to contact the Auditor before or after availing the Service. c.

The Merchant understands that for the purpose and basic essence of the Audit, it shall not, in any manner whatsoever, obstruct, prevent, influence, or engage in a physical or verbal spat or create any confrontation with the Auditor or do or cause to do any such act, which hinders the Auditor in performing the Audit. In the event if the Auditor reports any such observation, the Audit of the designated Restaurant of the Merchant shall be treated null and void and the Fee paid by the Merchant shall stand forfeited. Further, notwithstanding the above, the designated Restaurant of the Merchant shall be barred from future Audits, which will be resumed only at the sole discretion of Zomato.

4.

Fees and Payments: a.

In consideration of the Service, the Merchant shall pay Zomato a one-time non-refundable fee in advance (“Fee”). The Fee charged shall be subject to all applicable taxes. The Merchant shall be liable to pay all applicable taxes payments, fees, and any other liabilities arising under and/ or pursuant to signing up for the Service. The Merchant shall be solely responsible for verifying and filing the appropriate tax returns, and remitting the proper amount to the appropriate taxing authorities, where applicable. It is clarified that Zomato will not be liable for payment of any taxes that the Merchant is required to pay under the applicable laws.

b. Upon payment of the Fee, an invoice shall be provided to the Merchant sent via electronic mail to the designated email address of the Merchant. c.

In case where Merchant is withholding any taxes under any applicable laws, the Merchant shall be obligated to provide Zomato with a copy of proof of such deduction within sixty (60) days following the last date of the quarter for which such deductions are made.

d. The invoice shall be issued from the respective state registered office of Zomato from where the Services are being performed by Zomato in order to comply with the provisions of Goods & Services Tax (GST) laws applicable in India. The list of respective state registered offices of Zomato across India is herein below:

Name of the State/UT

State Registered Office Address

Chandigarh

SCO-201, Second Floor, Sector 7C, Inner Market, Chandigarh – 160019

Delhi

GF-12A, 94 Meghdoot, Nehru Place, New Delhi -110019

Gujarat

A-301/302, Krishna Complex, Block – A, Above Hyderabadi Biryani Restaurant, Bodakdev, Ahmedabad, - 380054

Haryana*

22nd Floor, One Horizon Center, Golf Course Road, DLF Phase - 5, Sector - 43, Gurgaon

Karnataka

#166, Ground and First Floor, 19th Main, HSR Layout, Sector – 4, Bangalore – 560102

Madhya Pradesh

Flat 202, Royal Platinum Building, Near BCM Heights, Vijaynagar, Indore – 452010

Maharashtra

Poddar Chambers, Mathuradas Mill Compund, Lower Parel W, Mumbai, Maharashtra, 400013

Name of the State/UT

State Registered Office Address

Rajasthan

S-3, Second Floor, 11, Mission Compound, Near Ajmer Road Flyover, C-Scheme, Jaipur – 302006 (Raj.)

Tamil Nadu

Bearing Door No. 2/41, Mc. Nichols Road, 2nd Lane, Chetpet, Chennai – 600031

Uttar Pradesh

Unit No-116, Tower-A, Corenthum, Sector - 62 Noida 201309s

West Bengal

Ray’s IT Park, 9th Floor EN-9, Sector – 5, Salt Lake, Kolkata - 700091

Kerala

7th Floor, Alapatt Heritage Building, MG Road, Kochi - 682035

Telangana

Plot No. 34B, Huda Heights, Near Lotus Pond, Banjara Hills, Hyderabad - 500034

*Corporate office address for the purpose of centralized billing.

5.

Hygiene Ratings: a.

The Merchant understands that the Hygiene Ratings of its designated Restaurant will only be displayed on the portal of Zomato subject to completion of the Audit to the satisfaction of Zomato and as per these Terms. In the event of any dispute between the parties with regard to the Hygiene Ratings, decision of Zomato shall be final and binding. For the purposes of clarity, the term ‘Food Hygiene Rating’ shall mean the ratings given by the Auditor on the scale of 1-5 on the basis of the Audit performed on the Restaurant.

b. The Merchant understands that, though the Hygiene Audit will be conducted in a professional manner, however the Hygiene Ratings given by Zomato Platform (as defined in Clause 8) is only for the general knowledge of the public at large and can under no circumstances be understood or taken as the conclusive proof of the Hygiene standards or practices being adopted by the Merchant. c.

The Merchant understands that in the event any dispute is raised by any customer due to the Hygiene Ratings displayed on the portal of Zomato with respect to the designated Restaurant of the Merchant, the same shall not be attributable to or regarded as being caused by Zomato and the Merchant undertakes to keep Zomato absolved and indemnified from any third-party claims at all times and in all respects.

d. The Hygiene Ratings of the Merchant shall remain displayed on the Zomato Platform and may be displayed by the Merchant on its Restaurant premises and/ or its digital platforms, only through the collaterals or materials provided by Zomato, as per the validity period stated in the Audit Report issued to the Merchant.

e.

6.

The Merchant shall be responsible and ensure that the Hygiene Ratings stickers, collaterals or materials are correctly displayed as per the guidelines and instructions provided by Zomato.

Representation and Warranties: a.

The Merchant understands that it has understood these Terms for the execution of the Service and agrees to abide by the same without any dispute, objection, or demur.

b. By signing up, the Merchant represents and warrants that: (i) it is of legal age to form a binding contract; (ii) it is an authorized representative of the Merchant or other entity with the authority to bind such party to these Terms, and (iii) all information provided by the Merchant is true. c.

7.

During the subsistence of these Terms, the parties hereby represent and warrant that each party has all authority, licenses, permits, consents and legal documentation necessary to enter into and perform its obligations hereunder, and will fully comply with all applicable laws, and regulations (including without limit those regarding the environment, labor and employment, data privacy).

Reschedule and Refund: Merchant understands that upon signing up for the Services, the amount paid by the Merchant shall not be refunded or adjusted under any circumstances. However, the Audit can be rescheduled in the event of any exigency on the part of the Merchant only if such exigency has been informed to Zomato in writing by giving at least fifteen (15) days in advance.

8.

Intellectual Property Rights: a.

The Audit Report and the data received by Zomato, pursuant to the Audit, shall at all times remain the property of Zomato. All ownership rights and intellectual property rights in the Audit Report, collaterals and other material created under these Terms shall vest solely with Zomato.

b. Zomato hereby grants to the Merchant an exclusive license limited to the validity period of the Audit Report to display the Hygiene Ratings at the restaurant premises and/or digital platform of the Merchant in the manner as set out in these Terms. Any disclosure or use of the findings of the Audit Report in any manner whatsoever by the Merchant shall be with the prior written approval of Zomato. c.

9.

Zomato is, and will remain, the owner of Zomato website, application for mobile and any other device (“Zomato Platform”), Service and any information collected from Merchant during the Merchant’s use of Zomato Platform or otherwise, and all patents, copyrights, trademarks, service marks, trade secrets and other proprietary intellectual property, whether registered, unregi stered, associated with the Zomato Platform and Service, and except as expressly provided in these Terms, no right, title or interest therein or thereto will be transferred to the Merchant hereunder.

Termination:

a.

Zomato may terminate the arrangement contemplated in these Terms by giving the other party a prior written notice of seven (07) days.

b. Zomato reserves the right to forthwith terminate these Terms and suspend the Service in the event the Merchant breaches any of the Terms set out herein or is in breach of any applicable laws. c.

Zomato shall not return or refund any Fee already paid by the Merchant for any termination due to breach of the Terms by the Merchant.

10. Indemnity: Merchant shall indemnify, defend, and hold harmless Zomato and its affiliates from and against any losses, claims, damages, liabilities, actions, penalties, fines, cost and expenditures including attorneys’ fees arising out of, (a) any action or omissions or breach of any provisions of these Terms by the Merchant; and/or (b) due to willful acts or omissions or carelessness or negligence of employee(s) of the Merchant; and/or (d) breach of any applicable laws by the Merchant; and/or (e) infringement of any intellectual property right of the Indemnified Party or any third Party. 11. Limitation of Liability: a.

Neither party shall be liable to the other party for any indirect, incidental, special or consequential damages (including without limit any damages for lost profits) incurred by either party or any third party, whether in an action in contract or tort, even if the other party has been advised of the possibility of such damages.

b. Notwithstanding anything otherwise set out herein, in no event will Zomato and its affiliates and subsidiaries’ total liability to Merchant for all damages, losses, and causes of action arising out of or relating to these terms (whether in contract or tort, including negligence, warranty, indemnification or otherwise) exceed the amount of INR 500/-. 12. Confidential Information: Any confidential or proprietary information of either party, whether of a technical, business or other nature, including, but not limited to User Information belonging to Zomato, 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 sign up, 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. 13. Publicity and Zomato Name: Zomato and its affiliates may use the name and logo(s) of the Merchant in a press release or advertising materials. Merchant shall not use the name or any logo or trademark of Zomato without Zomato’s prior written consent. The Merchant may market and promote its business or operation through use of the Zomato name or logo using advertising that has been reviewed and approved in writing in advance by Zomato and in compliance with Zomato’s trademark usage guidelines. However, the Merchant shall not advertise any connection with Zomato, nor use Zomato’s name, symbols, or other identifying marks or property nor make any representation, either express or implied, as to Zomato's promotion or endorsement of the Merchant or the Merchant's business, without prior written approval by Zomato. In any event, the Merchant agrees that it will not include the Zomato logo in any advertisement, or in close proximity to any advertisement, for any illegal products or services. 14. Notices: All notices, demands or consents required or permitted under these Terms shall be provided (i) by email, provided an authorized representative of the other party confirms receipt of the respective notice, demand or consent, 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 [email protected] 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 on the Merchant’s Site. 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. 15. Force Majeure: Except for the Merchant’s obligation to pay Zomato all amounts due and payable by the Merchant under these Terms, 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, civil disturbances, or similar causes. 16. Governing Law and Dispute Resolution: 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. Parties shall first endeavour to resolve their disputes amicably within fifteen (15) days from the date on which the dispute was first notified. Failing which, the dispute shall be referred to the courts. 17. General: a. Assignment: These Terms shall not be assigned by the Merchant without the prior written consent of Zomato. Notwithstanding anything contained in this clause, the Merchant may transfer its rights

and obligations under these Terms to a successor in connection with a merger, consolidation reorganization, reincorporation, or sale of all or substantially all of the Merchant’s busi ness as set out in and related to these Terms, provided that such successor agrees in writing to assume and be bound by all the provisions of the Terms. 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. Entire Agreement: These Terms together with the Process Form (including all exhibits, amendments, attachments which are hereby incorporated herein by reference, and other documents incorporated by reference) contains the entire agreement between the parties related to this subject matter. These Terms supersede any prior or contemporaneous agreements or understandings between the parties hereto. c. Partial Invalidity: If any provision in these Terms is or becomes illegal, invalid or unenforceable in any respect under applicable law, neither the legality, validity nor 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 that most nearly affects the parties’ intent in relation to t he provision that has been held to be illegal, invalid or unenforceable. d. Change of Control: 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. 18. Acceptance to Zomato’s Privacy Policy: By signing these Terms, the Merchant acknowledges and agrees to be bound by Zomato’s privacy policy (www.zomato.com/privacy). Merchant will immediately notify Zomato if it becomes aware of or suspects any unauthorized use or access to the user data or any other Confidential Information of Zomato, and shall co-operate with Zomato in investigation of such breach and the mitigation of any damage. 19. Modification: a.

Zomato may modify these Terms from time to time, and any such changes will (i) be reflected on the Zomato Platform (ii) be effective immediately from the date of change on the Zomato Platform (iii) not apply to any disputes arising prior to the effective date of such change. The Merchant agrees to be bound to any such changes or modifications and understands and accepts the importance of regularly reviewing these Terms as updated on the Zomato Platform.

b. Further, in the event Zomato upgrades, modifies or replaces the Services (“Service Modifications”) offered to the Merchant, Zomato will notify the Merchant prior to making the same and give the Merchant the opportunity to review and comment on the Service Modifications before continuing to use the Service or any alternate service offered by Zomato. The Service Modifications will also be reflected on the Zomato Platform. If the Merchant continues to use the Service or any alternate service offered by Zomato, following any notice of the Service Modifications, it shall constitute the Merchant’s acceptance of such Service Modifications.