SMARTSALEZ TERMS AND CONDITIONS
User Terms
These terms of use ("Terms of Use") mandate the terms on which users ("You" or "Your" or "Yourself" or "Users") interested in browsing or availing Smartsalez Services (defined below), and accessing the platform www.Smartsalez.in and the mobile application owned and operated by Moiter Workz Private Limited ("Smartsalez") collectively referred to as, the "Platform" connects with the merchants registered on the Platform (" Tied-up Merchants "), merchants not registered on the Platform ("Non-tied up Merchants") (together hereinafter referred to as "Merchants") and with delivery partners ("Delivery Partners") to avail the Smartsalez Services.
Please read the Terms of Use carefully before using the Platform or registering on the Platform or accessing any material or information through the Platform. By clicking on the "I Accept" button, You accept this Terms of Use and agree to be legally bound by the same.
Use of and access to the Platform is offered to You upon the condition of acceptance of all the terms, conditions and notices contained in this Terms of Use and Privacy Policy, along with any amendments made by Smartsalez at its sole discretion and posted on the Platform from time to time.
For the purposes of these Terms of Use, the term 'Smartsalez' or 'Us' or 'We' refers to Moiter Workz Private Limited. The term 'You' refers to the user or visitor of the Website and/or App. When You use our services, You will be subject to the terms, guidelines and Policy applicable to such service and as set forth in these Terms of Use. As long as you comply with these Terms of Use, We grant You a personal, non-exclusive, non-transferable, limited privilege to enter and use our Platforms and services.
PART A - GENERAL TERMS RELATING TO SMARTSALEZ SERVICES
1. Registration:
a. You shall be permitted to access the Platform, avail the Smartsalez Services and connect with Merchants and Delivery Partners on the Platform only upon creating an Account (as defined below) and obtaining a registration on the Platform. Your ability to continue using the Platform, Smartsalez Services is subject to Your continued registration on the Platform. You will be required to enter Your personal information including your name, contact details, valid phone number while registering on the Platform.
b. As a part of the registration, You may be required to undertake a verification process to verify Your personal information and setting up the Account.
Smartsalez shall have the right to display the information, feedback, ratings, reviews etc. provided by You on the Platform. You agree and accept that as on the date of Your registration on the Platform, the information provided by You is complete, accurate and up-to-date. In the event of any change to such information, You shall be required to promptly inform Smartsalez of the same, in writing, at least 1 (one) week prior to the date on which such change shall take effect. You acknowledge and accept that Smartsalez has not independently verified the information provided by You. Smartsalez shall in no way be responsible or liable for the accuracy or completeness of any information provided by You. If You provide any information that is untrue, inaccurate, not current or incomplete, or Smartsalez has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Smartsalez reserves the right to suspend or terminate Your Account (defined below) and refuse any and all current or future use of the Platform (or any portion thereof) at any time.
2. Smartsalez Services:
a. The Platform provides You with the following services (" Smartsalez Services "):
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i. It allows You to connect with Merchants and Delivery Partners;
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ii. It allows You to view the items/services ("Items") listed on the Platform by the Tied Up Merchants;
iii. It allows You to purchase Item(s) from the Tied Up Merchants listed on the Platform and allows You to get the Items delivered to You through Delivery Partners ("Purchase Services");
iv. It allows You to purchase Items from Non-Tied Up Merchants and get the same delivered to You by the Delivery Partners (" Delivery Services ");
v. It allows you to pick up- and drop off packages from 1 (one) location to the other through the Delivery Partner (" Pick Up and Drop Off Services ");
vi. It allows You to give ratings, write comments and reviews about Delivery Partners and Merchants;
vii. It facilitates improvement in the quality of the services provided by Smartsalez on the Platform based on User ratings, reviews and feedbacks provided on the Platform.
b. Once the Delivery Services/ Purchase Services/Pick-Up and Drop Off Services have been completed or delivered, as the case may be, You shall promptly notify the same on the Platform.
c. Smartsalez may, at its absolute sole discretion, add, modify, upgrade, extend, withdraw or alienate any of the Smartsalez Services listed above from time to time. Smartsalez does not provide any guarantee to You that the Smartsalez Services will be made available to You at all times.
d. You hereby agree and acknowledge that Smartsalez is only a facilitator between You, the Merchants and Delivery Partners (as the case maybe) and Smartsalez only provides You with access to the Platform to connect with Merchants and Delivery Partners for You to initiate transactions on the Platform. You hereby agree and acknowledge that Smartsalez will not be a party to any of the transactions that are initiated by You through the Platform and Smartsalez shall not be liable in any manner or incur any liability with respect to the services performed by the Merchants or the Delivery Partners, as the case may be. Further, You hereby agree and acknowledge that Smartsalez shall not be liable for the conduct, acts and omissions of the Merchants (including their employees and consultants) and Delivery Partners in the course of providing their services to You, or for any loss or damage to the Item or otherwise caused to You as a consequence of or in relation to the services being provided to You by the Merchants or the Delivery Partner, as the case may be.
e. You shall be eligible to avail the Smartsalez Services as per applicable laws. If You are purchasing any medicinal product, using the Platform, for which You are required to have a valid prescription from a medical practitioner, You shall, ensure that physician, as far as possible, prescribe drugs with generic names and he / she shall ensure that there is a clear prescription and will upload the same on the Platform, while initiating a transaction with respect to the same on the Platform. Failure to do the same, shall result in cancellation of the transaction. Only upon verification of the medical prescription, will You be able to avail the Smartsalez Services for purchasing the required medicines.
In case of Purchase Services, it is the duty of the Tied-Up Merchants to share the updated Item list along with its prices on the Platform. Smartsalez shall not be responsible for any inaccurate Item listing on the Platform. Further, You hereby agree and acknowledge that for certain Items (Items that are perishable in nature or Item whose price varies periodically), it may not be possible for the Tied-Up Merchants to list out the exact price or prices of such Items on the Platform. The above shall also be applicable to the provision of Purchase Services. In such cases, the Delivery Partner upon reaching the Merchant outlet shall intimate You about the Item price and You shall be required to confirm the purchase of the Item and you shall make the payment for the same to complete the transaction, however if You do not confirm the purchase of the Item and do not make payment for the Item, You shall pay such fees as may be communicated to You on the Platform for the efforts of the Delivery Partner.
f. You shall not initiate any transaction for any Item on the Platform which is illegal, immoral, unethical, unlawful, unsafe, contains harmful substance and is in violation of this Terms of Use and applicable laws. You specifically agree that You shall not initiate any transaction on the Platform for the purchase or delivery of any alcoholic beverages, narcotic drug or psychotropic substance, etc. Further, You hereby acknowledge and agree that Smartsalez shall not be liable for any indirect, direct damage or loss, cost, expense incurred by You in relation to the transactions initiated by You on the Platform.
g. Smartsalez does not check or verify the packages that are being picked up and dropped off on behalf of You or the Items that are being delivered to You by the Delivery Partner, and therefore Smartsalez shall have no liability with respect to the same. However, if it comes to the knowledge of Smartsalez that You have packaged any illegal or dangerous substance or availed the Pick- up and Drop Off Services using the Platform to deliver any illegal or dangerous substance, Smartsalez shall have the right to report You to the government authorities and take other appropriate legal actions against You.
h. You hereby acknowledge that Smartsalez shall not be liable for any damages of any kind arising from Your use of the Smartsalez Services, including, but not limited to direct, indirect, incidental, punitive, and consequential damages.
i. Smartsalez shall be entitled at any time without giving any reason terminate Your request for any Smartsalez Service.
j. You hereby agree that Smartsalez shall not be liable for any conduct or misbehaviour or actions of Delivery Partner with respect to any transactions initiated on the Platform. Further, You agree that Smartsalez has no control over the Items provided to You by the Merchants and therefore, Smartsalez shall not incur any liability with respect to such Items. However, keeping in mind the interests of the Users, We have informed our Merchants to ensure that Items are packaged properly to avoid any form of spillage or damage to the Item or any issues related to packaging
k. You hereby agree that scheduling and rescheduling a transaction on the Platform depends upon the availability of Delivery Partners around Your area at the time of such scheduling and re-scheduling a transaction. Should You choose to reschedule a transaction on the Platform at a later point of time, You shall cancel the current transaction on the Platform (if initiated) and initiate a new transaction on the Platform, as per Your convenient time.
l. If a transaction initiated by You on the Platform cannot be completed, Smartsalez shall notify You on the Platform.
m. You agree to provide as much information as possible on the Platform with respect to the Items/services You wish to purchase/avail, using the Platform.
n. Smartsalez shall use Your locationbased information that is captured by Smartsalez through global positioning system when You are using Your mobile device to request a Smartsalez Service on its m-app. Such location based information shall be used by Smartsalez only to facilitate and improve the Smartsalez Services being offered to You.
o. We can’t fulfil any tasks which are immoral or unlawful in nature. Smartsalez reserves the right to refuse to perform any tasks on the grounds of such tasks being immoral/unethical/unlawful/banned either by Smartsalez’s internal Policy or as per the independent discretion of Smartsalez. Smartsalez may also refuse to perform any task on the grounds that such task is prohibited under any contract to which we are party.
p. You understand and acknowledge that Smartsalez by itself does not sell or provide any such Items. Smartsalez is not responsible for the quality, merchantability or fitness of such Items. Accordingly, in the event of any grievances arising from the transaction initiated by You on the Platform pertaining to purchase or sale of any product from any Merchant, You may contact Smartsalez support for routing. your grievances to the Merchant through the Platform.
q. You hereby acknowledge that if You have any complaint with respect to the Smartsalez Services, You will first inform Smartsalez in writing within 24 (twenty four) hours of using such Smartsalez Services.
3. User Information
a. You are solely responsible for and in control of the information You provide to us. Compilation of User Accounts and User Account bearing contact number and e-mail addresses are owned by Smartsalez. Further, You understand and agree that certain information will be case sensitive and must be handled with a prudent care.
b. In the case where the Platform is unable to establish unique identity of the User against a valid mobile number or e-mail address, the Account shall be indefinitely suspended. Smartsalez reserves the full discretion to suspend a User's Account in the above event and does not have the liability to share any Account information whatsoever.
4. Payment Terms
a. Purchase Services: While initiating a request for a Purchase Service, You shall pay for the price of the Items You require the Delivery Partners to deliver to You from the Tied Up Merchant. The transaction for the Purchase Service will be initiated on the Platform once You have completed the payment for the same on the Platform. In certain exceptional circumstances, if the purchase price of the Item is not available on the Platform, You shall be required to pay the purchase price of the Item, through the Platform, as may be communicated to You by the Delivery Partner, prior to the Delivery Partner undertaking Purchase Service.
b. Delivery Services: While availing Delivery Service, You shall pay the purchase price of the Item through the Platform, as may be communicated to You by the Delivery Partner on behalf of the Non- Tied up Merchant. Only upon processing such agreed amount via Platform, shall the Delivery Partner purchase the Item on Your behalf.
c. Pick Up and Drop Off Services: While initiating a request for a Pick Up and Drop Off Service, You shall pay the service fees for availing the Pick Up and Drop Off Service, as may be displayed to You on the Platform. Only upon making such payment will the Delivery Partner initiate the Pick Up and Drop of Service.
d. Service Fees: With respect to Delivery Services and Purchase Services, You will be charged a separate service fees (" Service Fees "). The Service Fees shall be paid prior to availing any of the Smartsalez Services.
e. You agree that Smartsalez may use certain third-party vendors and service providers, including payment gateways, to process the payments made by You on the Platform.
5. Rating
a. You agree that: (i) after completion of a transaction on the Platform, the Platform will prompt the User with an option to provide a rating and comments about the Delivery Partner (with respect to the services performed by the Delivery Partner) and Merchants (with respect to the Items sold/provided by them); and (ii) the Delivery Partner and the Tied-Up Merchants may also be prompted to rate You on the Platform. Based upon such Delivery Partner and Merchant ratings, Your rating score on the Platform will be determined and displayed.
b. Smartsalez and its affiliates reserve the right to use, share and display such ratings and comments in any manner in connection with the business of Smartsalez and its affiliates without attribution to or approval of Users and You hereby consent to the same. Smartsalez and its affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Smartsalez’s or its affiliates’ content Policy.
c. Location: You acknowledge and agree that Your geo-location information is required for You to avail the Smartsalez Services and initiate transactions on the Platform. You acknowledge and hereby consent to the monitoring and tracking of Your geo-location information. In addition, Smartsalez may share Your geo-location information with Delivery Partners and Merchants (as the case maybe).
PART B - SPECIFIC TERMS FOR SMARTSALEZ SERVICES
6. Cancellation and Refund
a. Smartsalez shall confirm and initiate the execution of the transaction initiated by You upon receiving confirmation from You for the same. If You wish to cancel a transaction on the Platform, You shall select the cancel option on the Platform. It is to be noted that You may have to pay a cancellation fee for transactions initiated on the Platform for which work has already been commenced by the Delivery Partner or the Merchant, as the case may be. With respect to work commenced by Merchants the cancellation fee will be charged to You which will be in accordance with the cancellation and refund Policy of such Merchants.
b. Smartsalez may cancel the transaction initiated by You on the Platform, if:
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The designated address to avail the Smartsalez Services provided by You is outside the service zone of Smartsalez.
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Failure to get your response via phone or any other communication channel at the time of confirmation of the order booking.
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The transaction involves supply/delivery/purchase of any material good that is illegal, offensive or violative of the Terms of Use.
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[If the transaction involves the purchase of medicines for which a medical prescription prescribed by a medical practitioner is required and for which You have not provided such medical prescription or provided an invalid medical prescription.]
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Information, instructions and authorisations provided by You is not complete or sufficient to execute the transaction initiated by You on the Platform.
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If in case of tied-up Merchants, the Tied-Up Merchant outlet is closed.
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If a Delivery Partner is not available to perform the services, as may be requested.
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If any Item for which You have initiated the transaction is not in stock with the Merchant.
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If the transaction cannot be completed for reasons not in control of Smartsalez.
c. You shall only be able to claim refunds for transactions initiated by You only if You have already pre-paid the fees with respect to such transaction. Subject to relevant Merchant’s refund policy and in accordance therein, You shall be eligible to get the refund in the following circumstances:
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Your package has been tampered or damaged at the time of delivery, as determined by Smartsalez basis the parameters established by Smartsalez in its sole discretion.
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If the wrong Item has been delivered to You, which does not match with the Item for which You had initiated a transaction on the Platform.
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Smartsalez has cancelled the order because of any reason mentioned under Para 6 (b) above.
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All decisions with respect to refunds will be at the sole discretion of Smartsalez and in accordance with Smartsalez’s internal refund policy (Refund Metrix) and the same shall be final and binding. All refunds initiated by Smartsalez shall be refunded to the financial source account from which, You have initiated the transaction on the Platform.
7. Pick Up and Drop Off Services
i. As a part of the Smartsalez Services, Smartsalez also gives You an option to avail the Pick Up and Drop Off Services being provided by the Delivery Partners.
ii. You can initiate a transaction on the Platform by which You may (through the help of a Delivery Partner) send packages at a particular location. The Pick Up and Drop Off Services are provided to You directly by the Delivery Partner and Smartsalez merely acts as a technology platform to facilitate transactions initiated on the Platform and Smartsalez does not assume any responsibility or liability for any form of deficiency of services on part of the Delivery Partner.
iii. Upon initiation of a request for Pick Up and Drop Off Services on the Platform, depending upon the availability of Delivery Partner around Your area, Smartsalez will assign a Delivery Partner to You. The Delivery Partner shall pick up the Item from a location designated by You on the Platform and drop off the Items at a particular location designated by You. While performing the Pick Up and Drop off Services, the Delivery Partner shall act as an agent of You and shall act in accordance with Your instructions. You agree and acknowledge that the pick-up location and the drop off location has been added by You voluntarily and such information will be used for the Smartsalez Services and shall be handled by Smartsalez in accordance with the terms of its Privacy Policy.
iv. You agree that You shall not request for a Pick Up and Drop Off Services for Items which are illegal, hazardous, dangerous, or otherwise restricted or constitute Items that are prohibited by any statute or law or regulation or the provisions of this Terms of Use.
v. You agree that before requesting a Pick-up and Drop-off Service, You are well aware of the contents of the package sent or requested by You through registered Delivery Partner, and that such contents are legal and within limits of transportation under any applicable laws. Such contents shall not be restricted and/or banned and/or dangerous and/or prohibited for carriage (such items include, but are not limited to, radio-active, incendiary, corrosive or flammable substances, hazardous chemicals, explosives, firearms or parts thereof and ammunition, firecrackers, cyanides, precipitates, gold and silver ore, bullion, precious metals and stones, jewellery, semi-precious stones including commercial carbons or industrial diamonds, currency (paper or coin) of any nationality, securities (including stocks and bonds, share certificates and blank signed share transfer forms), coupons, stamps, negotiable instruments in bearer form, cashier's cheques, travellers’ cheques, money orders, passports, credit/debit/ATM cards, antiques, works of art, lottery tickets and gambling devices, livestock, fish, insects, animals, plants and plant material, human corpses, organs or body parts, blood, urine and other liquid diagnostic specimens, hazardous or bio-medical waste, wet ice, pornographic materials, contraband, bottled alcoholic beverages or any intoxicant or narcotics and psychotropic substances or any other prohibited material or material for the transportation of which specific authorisation/license is required under applicable laws).
vi. You are also aware that the Delivery Partner may choose to perform the Pick Up and Delivery Services requested by You.
vii. You also agree that, upon becoming aware of the commission any offence by You or Your intention to commit any offence upon initiating a Pick-up and Drop-off Service or during a Pick-up and Drop-off service of any Item(s) restricted under applicable law, the Delivery Partner may report such information to Smartsalez or to the law enforcement authorities.
8. Smartsalez Cash, Google Pay Offer, Paytm Offer and Amazon Pay Offer shall hereinafter be referred to as "Offer".
9. You hereby agree and acknowledge that the Offers are being extended by Smartsalez at its sole independent discretion and nothing shall entitle You to any of the Offers. You shall read the terms and conditions of the Offers carefully before availing them.
PART C: GENERAL TERMS OF USE
10. Eligibility to Use
a. The Smartsalez Services are not available to minors i.e. persons under the age of 18 (eighteen) years or to any Users suspended or removed by Smartsalez from accessing the Platform for any reason whatsoever. You represent that You are of legal age to form a binding contract and are not a person barred from receiving using or availing Smartsalez Services under the applicable laws.
b. Smartsalez reserves the right to refuse access to the Platform, at any time to new Users or to terminate or suspend access granted to existing Users at any time without according any reasons for doing so.
c. You shall not have more than 1 (one) active Account (as defined below) on the Platform. Additionally, You are prohibited from selling, trading, or otherwise transferring Your Account to another party or impersonating any other person for the purposing of creating an account with the Platform.
11. User Account, Password, and Security
a. In order to use the Platform and avail the Smartsalez Services, You will have to register on the Platform and create an account with a unique user identity and password ("Account"). If You are using the Platform on a compatible mobile or tablet, You will have to install the application and then proceed with registration.
b. You will be responsible for maintaining the confidentiality of the Account information, and are fully responsible for all activities that occur under Your Account. You agree to (i) immediately notify Smartsalez of any unauthorized use of Your Account information or any other breach of security, and (ii) [ensure that You exit from Your Account at the end of each session.] Smartsalez cannot and will not be liable for any loss or damage arising from Your failure to comply with this provision. You may be held liable for losses incurred by Smartsalez or any other User of or visitor to the Platform due to authorized or unauthorized use of Your Account as a result of Your failure in keeping Your Account information secure and confidential.Use of another User’s Account information for using the Platform is expressly prohibited.
12. Representations and Warranties
a. Subject to compliance with the Terms of Use, Smartsalez grants You a non-exclusive, limited privilege to access and use this Platform and the Smartsalez Services.
b. You agree to use the Platform only: (i) for purposes that are permitted by this Terms of Use; and (ii) in accordance with any applicable law, regulation or generally accepted practices or guidelines. You agree not to engage in activities that may adversely affect the use of the Platform by Smartsalez or Delivery Partner(s) or Merchants or other Users.
c. You represent and warrant that You have not received any notice from any third party or any governmental authority and no litigation is pending against You in any court of law, which prevents You from accessing the Platform and/or availing the Smartsalez Services.
d. You represent and warrant that You are legally authorised to view and access the Platform and avail the Smartsalez Services.
e. You agree not to access (or attempt to access) the Platform by any means other than through the interface that is provided by Smartsalez. You shall not use any 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 Platform, or in any way reproduce or circumvent the navigational structure or presentation of the Platform, materials or any Smartsalez Property, to obtain or attempt to obtain any materials, documents or information through any means not specifically made available through the Platform.
f. You acknowledge and agree that by accessing or using the Platform, You may be exposed to content from others that You may consider offensive, indecent or otherwise objectionable. Smartsalez disclaims all liabilities arising in relation to such offensive content on the Platform.
g. Further, You undertake not to:
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defame, abuse, harass, threaten or otherwise violate the legal rights of others;
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publish, post, upload, distribute or disseminate any inappropriate, profane, defamatory, infringing, disparaging, ethnically objectionable, obscene, indecent or unlawful topic, name, material or information;
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do any such thing that may harms minors in any way;
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copy, republish, post, display, translate, transmit, reproduce or distribute any Smartsalez Property through any medium without obtaining the necessary authorization from Smartsalez;
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conduct or forward surveys, contests, pyramid schemes or chain letters;
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upload or distribute files that contain software or other material protected by applicable intellectual property laws unless You own or control the rights thereto or have received all necessary consents;
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upload or distribute files or documents or videos (whether live or pre-recorded) that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Platform or another's computer;
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engage in any activity that interferes with or disrupts access to the Platform (or the servers and networks which are connected to the Platform);
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attempt to gain unauthorized access to any portion or feature of the Platform, any other systems or networks connected to the Platform, to any Smartsalez server, or through the Platform, by hacking, password mining or any other illegitimate means;
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probe, scan or test the vulnerability of the Platform or any network connected to the Platform, nor breach the security or authentication measures on the Platform or any network connected to the Platform. You may not reverse look-up, trace or seek to trace any information on any other User, of or visitor to, the Platform, to its source, or exploit the Platform or information made available or offered by or through the Platform, in any way whether or not the purpose is to reveal any information, including but not limited to personal identification information, other than Your own information, as provided on the Platform;
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disrupt or interfere with the security of, or otherwise cause harm to, the Platform, systems resources, accounts, passwords, servers or networks connected to or accessible through the Platform or any affiliated or linked sites;
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collect or store data about other Users, Merchants, Delivery Partner in connection with the prohibited conduct and activities set forth herein;
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use any device or software to interfere or attempt to interfere with the proper working of the Platform or any transaction being conducted on the Platform, or with any other person’s use of the Platform;
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use the Platform or any material or Smartsalez Property for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of the Company or other third parties;
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falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material contained in a file that is uploaded;
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impersonate any other User, Merchant, Delivery Partner or person;
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violate any applicable laws or regulations for the time being in force within or outside India or anyone’s right to privacy or personality;
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violate the Terms of Use contained herein or elsewhere;
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threatens the unity, integrity, defence, security or sovereignty of India, friendly relation with foreign states, or public order or causes incitement to the commission of any cognisable offence or prevents investigation of any offence or is insulting for any other nation; and
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reverse engineer, modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, or sell any information or software obtained from the Platform.
h. You agree and acknowledge that the use of the Smartsalez Services offered by Smartsalez is at Your sole risk and that Smartsalez disclaims all representations and warranties of any kind, whether express or implied as to condition, suitability, quality, merchantability and fitness for any purposes are excluded to the fullest extent permitted by law.
i. Without prejudice to the above, Smartsalez makes no representation or warranty that the Smartsalez Services will meet Your requirements.
j. "Content" or “Material” will include (but is not limited to) reviews, images, photos, audio, video, location data, nearby places, and all other forms of information or data. "Your content" or "User Content" means content that you upload, share or transmit to, through or in connection with the Services, such as likes, ratings, reviews, images, photos, messages, profile information, and any other materials that you publicly display or displayed in your account profile. "Smartsalez Content" means content that Smartsalez creates and make available in connection with the Services including, but not limited to, visual interfaces, interactive features, graphics, design, compilation, computer code, products, software, aggregate ratings, reports and other usage-related data in connection with activities associated with your account and all other elements and components of the Services excluding Your Content and Third Party Content. "Third Party Content" means content that comes from parties other than Smartsalez or its users and is available on the Services. You acknowledge and agree that the Material is made available for limited, non-commercial, personal use only. Except as specifically provided herein or elsewhere in our Platform, no Material may be copied, reproduced, republished, sold, downloaded, posted, transmitted, or distributed in any way, or otherwise used for any purpose other than the purposes stated under this Terms of Use, by any person or entity, without Smartsalez’s prior express written permission. You may not add, delete, distort, or otherwise modify the Material. Any unauthorized attempt to modify any Material, to defeat or circumvent any security features, or to utilize our Platform or any part of the Material for any purpose other than its intended purposes is strictly prohibited. Subject to the above restrictions under this Clause, Smartsalez hereby grants You a non-exclusive, freely revocable (upon notice from Smartsalez), non-transferable access to view the Material on the Platform.
13. Intellectual Property Rights
a. Ownership of Smartsalez Content and Proprietary Rights (" Smartsalez Property")
We are the sole and exclusive copyright owners of the Services and our Content. We also exclusively own the copyrights, trademarks, service marks, logos, trade names, trade dress and other intellectual and proprietary rights throughout the world (the "IP Rights") associated with the Services and Smartsalez Content, which may be protected by copyright, patent, trademark and other applicable intellectual property and proprietary rights and laws. You acknowledge that the Services contain original works and have been developed, compiled, prepared, revised, selected, and arranged by us and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and constitutes valuable intellectual property of us and such others. You further acknowledge that the Services may contain information which is designated as confidential by Smartsalez and that you shall not disclose such information without Smartsalez's prior written consent.
You agree to protect Smartsalez's proprietary rights and the proprietary rights of all others having rights in the Services during and after the term of this agreement and to comply with all reasonable written requests made by us or our suppliers and licensors of content or otherwise to protect their and others' contractual, statutory, and common law rights in the Services. You acknowledge and agree that Smartsalez (or Smartsalez's licensors) own all legal right, title and interest in and to the Services, including any IP Rights which subsist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated as confidential by Smartsalez and that you shall not disclose such information without Smartsalez's prior written consent. Unless you have agreed otherwise in writing with Smartsalez, nothing in the Terms gives you a right to use any of Smartsalez's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
You agree not to use any framing techniques to enclose any trademark or logo or other proprietary information of Smartsalez; or remove, conceal or obliterate any copyright or other proprietary notice or source identifier, including without limitation, the size, color, location or style of any proprietary mark(s). Any infringement shall lead to appropriate legal proceedings against you at appropriate forum for seeking all available/possible remedies under applicable laws of the country of violation. You cannot modify, reproduce, publicly display or exploit in any form or manner whatsoever any of the Smartsalez's Content in whole or in part except as expressly authorized by Smartsalez.
To the fullest extent permitted by applicable law, we neither warrant nor represent that your use of materials displayed on the Services will not infringe rights of third parties not owned by or affiliated with us. You agree to immediately notify us upon becoming aware of any claim that the Services infringe upon any copyright trademark, or other contractual, intellectual, statutory, or common law rights by following the instructions contained herein.
The trademarks, logos and service marks displayed on the Platform ("Marks") are the property of Smartsalez, except any trademark, logos and service marks of third parties available on the Platform. You are not permitted to use the Marks without the prior consent of Smartsalez or such third party as may be applicable.
14. Disclaimer of Warranties & Liabilities
You expressly understand and agree that, to the maximum extent permitted by applicable law:
a. The Platform and Smartsalez Property, Smartsalez Services are provided by Smartsalez on an "as is" basis without warranty of any kind, express, implied, statutory or otherwise, including the implied warranties of title, non-infringement, merchantability or fitness for a particular purpose. Without limiting the foregoing, Smartsalez makes no warranty that (i) the Platform, Smartsalez Services will meet Your requirements or Your use of the Platform will be uninterrupted, timely, secure or error-free; (ii) the quality of the Platform will meet Your expectations; or (iii) any errors or defects in the Platform will be corrected. No advice or information, whether oral or written, obtained by You from Smartsalez shall create any warranty not expressly stated in the Terms of Use.
b. Smartsalez will have no liability related to any User content arising under intellectual property rights, libel, privacy, publicity, obscenity or other laws. Smartsalez also disclaims all liability with respect to the misuse, loss, modification or unavailability of any User content.
c. Smartsalez will not be liable for any loss that You may incur as a consequence of unauthorized use of Your Account or Account information in connection with the Platform either with or without Your knowledge.
d. Smartsalez shall not be responsible for the delay or inability to use the Platform, Smartsalez Services or related functionalities, the provision of or failure to provide functionalities, or for any information, software, functionalities and related graphics obtained through the Platform, or otherwise arising out of the use of the Platform, whether based on contract, tort, negligence, strict liability or otherwise. Further, Smartsalez shall not be held responsible for non-availability of the Platform during periodic maintenance operations or any unplanned suspension of access to the Platform that may occur due to technical reasons or for any reason beyond Smartsalez's control. You understand and agree that any material or data downloaded or otherwise obtained through the Platform is done entirely at Your own discretion and risk, and that You will be solely responsible for any damage to Your computer systems or loss of data that results from the download of such material or data.
15. Indemnification and Limitation of Liability
a. You agree to indemnify, defend and hold harmless Smartsalez and its affiliates including but not limited to its officers, directors, consultants, agents and employees ("Indemnitees") from and against any and all losses, liabilities, claims, damages, demands, costs and expenses (including legal fees and disbursements in connection therewith and interest chargeable thereon) asserted against or incurred by the Indemnitees that arise out of, result from, or may be payable by virtue of, any breach or non-performance of any obligation, covenant, representation or warranty by You pursuant to these Terms of Use. Further, You agree to hold the Indemnitees harmless against any claims made by any third party due to, or arising out of, or in connection with, Your use of the Platform, Smartsalez Services, any misrepresentation with respect to the data or information provided by You in relation to the Account, Your violation of the Terms of Use, or Your violation of any rights of another, including any intellectual property rights.
b. In no event shall the Indemnitees, be liable to You or any third party for any special, incidental, indirect, consequential or punitive damages whatsoever, arising out of or in connection with Your use of or access to the Platform or Smartsalez Property on the Platform.
c. You indemnification obligation under the Terms of Use will survive the termination of Your Account or use of the Platform or Smartsalez Services.
d. Subject to applicable laws, in no event will Smartsalez or its employees aggregate liability, arising from or related to the Smartsalez Services or the use of the Platform shall not exceed INR 100 for any and all causes of actions brought by You or on behalf of You.
e. The Platform and the Smartsalez Services are only available to Users located in India. Users shall not access or use the Platform from any other jurisdiction except for India. If a User access or uses the Platform from any other jurisdiction except for India, the User shall be liable to comply with all applicable laws and Smartsalez shall not be liable for the same, whatsoever.
16. Violation of the Terms of Use
You agree that any violation by You of these Terms of Use will constitute an unlawful and unfair business practice, and will cause irreparable harm to the Company/Client, as the case may be, for which monetary damages would be inadequate, and You consent to the Company/Client obtaining any injunctive or equitable relief that they deem necessary or appropriate in such circumstances. These remedies are in addition to any other remedies that the Company/Client may have at law or in equity. If Company/Client takes any legal action against You as a result of Your violation of these Terms of Use, they will be entitled to recover from You, and You agree to pay, all reasonable attorneys’ fees and costs of such action, in addition to any other relief that may be granted.
17. Additional Terms
a. We may also require You to follow additional rules, guidelines or other conditions in order to participate in certain promotions or activities available through the Platform. These additional terms shall form a part of this Terms of Use, and You agree to comply with them when You participate in those promotions, or otherwise engage in activities governed by such additional terms.
18. Link to Third Parties
a. The Platform may contain links to other sites owned by third parties (i.e. advertisers, affiliate partners, strategic partners, or others). Smartsalez shall not be responsible for examining or evaluating such third party websites, and Smartsalez does not warrant the products or offerings of, any of these businesses or individuals, or the accuracy of the content of such third party websites. Smartsalez does not assume any responsibility or liability for the actions, product, and content of any such third party websites. Before You use/access any such third-party websites, You should review the applicable terms of use and Policy for such third party websites. If You decide to access any such linked third party website, You do so at Your own risk.
19. Term and Termination
a. The
Terms of Use will continue to apply until terminated by either You or
Smartsalez as set forth below. If You object to the Terms of Use or
are dissatisfied with the Platform, Smartsalez Services, Your only
recourse is to (i) close Your Account on the Platform by writing to
Us at accountdelete@Smartsalez.in; and/or (ii) stop accessing the
Platform. Smartsalez will make Your account dormant upon receipt of
request in writing.
Smartsalez may, in its sole discretion, bar
your use of the Smartsalez Services at any time, for any or no
reason. Even after your account with Smartsalez is disabled, dormant
or made inactive, the terms agreed by You at the time of registration
will remain in effect. This termination shall be effective only once
You have cleared all Your dues that You are liable to pay as per the
provisions of this Terms of Use.
b. The Company may delist You or block Your future access to the Platform or suspend or terminate Your Account if it believes, in its sole and absolute discretion that You have infringed, breached, violated, abused, or unethically manipulated or exploited any term of these Terms of Use or anyway otherwise acted unethically.
c. Notwithstanding anything in this clause, these Terms of Use will survive indefinitely unless and until Smartsalez chooses to terminate them.
d. You hereby agree and acknowledge, upon termination, Smartsalez shall have the right to retain all information pertaining to the transactions initiated by You on the Platform.
20. Governing Law
This Terms of Use shall be governed by and constructed in accordance with the laws of India without reference to conflict of laws principles and disputes arising in relation hereto shall be subject to the exclusive jurisdiction of courts, tribunals, fora, applicable authorities at Chennai.
21. Report Abuse
In the event You come across any abuse or violation of these Terms of Use or if You become aware of any objectionable content on the Platform, please report the same to the following e-mail id: support@duzo.in In case You have any queries with respect to the Terms or the Smartsalez Services, please write to Us at support@Smartsalez.in
22. Communications
You hereby expressly agree to receive communications by way of SMSs and/or e-mails from Smartsalez, or other third parties. You can unsubscribe/ opt-out from receiving communications through SMS and e-mail anytime by contacting us for the same. However, You may still receive communications from Your end with respect to Your use of the Smartsalez Service.
23. General
a. Amendments: Smartsalez reserves the unconditional right to modify or amend this Terms of Use without any requirement to notify You of the same. You can determine when this Terms of Use was last modified by referring to the " Last Updated " legend above. It shall be Your responsibility to check this Terms of Use periodically for changes. Your acceptance of the amended Terms of Use shall signify Your consent to such changes and agreement to be legally bound by the same.
b. Notice: All notices from Smartsalez will be served by email to Your registered email address or by general notification on the Platform.
c. Assignment: You cannot assign or otherwise transfer the Terms of Use, or any rights granted hereunder to any third party. Smartsalez’s rights under the Terms of Use are freely transferable by Smartsalez to any third party without the requirement of informing You or seeking Your consent.
d. Severability: If, for any reason, a court of competent jurisdiction finds any provision of the Terms of Use, or any portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties as reflected by that provision, and the remainder of the Terms of Use shall continue in full force and effect.
e. Waiver: Any failure by Smartsalez to enforce or exercise any provision of the Terms of Use, or any related right, shall not constitute a waiver by Smartsalez of that provision or right.
f. Integration: These Terms of Use together with Smartsalez’s Privacy Policy and any other legal notices, communications published by Smartsalez on its Platform, and any other agreements executed between You and Smartsalez shall constitute the entire agreement between you and Smartsalez concerning its Platform, Smartsalez Services and governs Your use of the Platform and Smartsalez Service, superseding any prior agreements between You and Smartsalez with respect to the Platform and Smartsalez Service
g. IP Infringement If You believe the Platform violates Your intellectual property, You must promptly notify Smartsalez in writing at [legalnotices@Smartsalez.in These notifications should only be submitted by the owner of the intellectual property or an agent duly authorized to act on his/her behalf. However, any false claim by You may result in the termination of Your access to the Platform. You are required to provide the following details in Your notice:
i. the intellectual property that You believe is being infringed;
ii. the item that You think is infringing and include sufficient information about where the material is located on the Platform;
iii. a statement that You believe in good faith that the item You have identified as infringing is not authorized by the intellectual property owner, its agent, or the law to be used in connection with the Platform;
iv. Your contact details, such as Your address, telephone number, and/or email;
v. a statement that the information You provided in Your notice is accurate, and that You are the intellectual property owner or an agent authorized to act on behalf of the intellectual property owner whose intellectual property is being infringed; and
vi. Your physical or electronic signature.
Smartsalez Cash - Terms and Conditions
The following terms and conditions are applicable to Smartsalez Cash ("Smartsalez Cash T&C"). These Smartsalez Cash T&Cs are in addition to and will be read with the User Terms and Conditions available here ("User Terms and Conditions"). The Smartsalez Cash T&C may be amended at the discretion of Moiter Workz Private Limited ("Smartsalez") and such amended terms will be posted here. Please review these Smartsalez Cash T&Cs from time to time.
1. Smartsalez Cash is a form of redemption points given by Smartsalez for its users on the Smartsalez App and is offered either at the time of joining Smartsalez App, through the referral programme (" Referral program ") or through any other mode as may be indicated by Smartsalez.
2. The quantum of Smartsalez Cash issued, the maximum amount of Smartsalez Cash that can be used per order and the validity of Smartsalez Cash may vary from time to time and will be indicated to a user on their respective Smartsalez App.
3. Smartsalez Cash cannot be converted into actual currency or be withdrawn or transferred to another user in any way.
4. Smartsalez Cash is to be used by users personally. Smartsalez Cash cannot be used for business or corporate purposes. Exploiting the use of Smartsalez Cash or assisting others to exploit Smartsalez Cash is strictly prohibited, and will result in suspension/termination from use of Smartsalez Cash and Smartsalez App. Users must not refer themselves or create multiple, fictitious or fake accounts with Smartsalez. In addition, users and their referees cannot (i) use Smartsalez Cash to violate any law, infringe or violate the rights of any third party, or otherwise act in a manner that is deemed unfair, disruptive, harassing, harmful, illegal; (ii) collect or harvest any personally identifiable information from the referral program; or (iii) use any system, bot or other device to participate or receive any benefit through the referral programme.
5. Smartsalez Cash may not be redeemed for cash. It is not transferable and may not be auctioned, traded, bartered or sold.
6. Smartsalez Cash may not be applicable for certain services and in certain geos, as per the independent discretion of Smartsalez. Currently, Smartsalez Cash cannot be redeemed against Pillion, Bike Pool, Pickup and Drop Services, Others task. Smartsalez shall notify to the users, in case of any updates to the services or geos that cannot be redeemed for Smartsalez Cash. Smartsalez Cash may also not be applicable on certain items made available by a Merchant. These restricted items will be indicated to the user on the Smartsalez App.
7. Smartsalez Cash cannot be clubbed with any other discount or offer run on the Smartsalez App.
8. In case of any issue pertaining to the quantum of Smartsalez Cash, usage of Smartsalez Cash etc., the independent decision made by Smartsalez shall be final and binding. Further, in the event, the Company has reasons to believe, that a user has acted fraudulently for availing Smartsalez Cash or has used Smartsalez Cash in a manner inconsistent with these Smartsalez Cash T&Cs, Smartsalez shall upon investigation have the right to suspend the user. Further, pending investigation, the user shall not be entitled to use Smartsalez Cash available with them.
9. Smartsalez reserves the right to terminate Smartsalez Cash or modify these Smartsalez Cash T&Cs and/or benefits at any point in time, without any reason or without notice to users. This wouldn’t affect the Smartsalez Cash already issued to users. Smartsalez reserves the right to disqualify any user at any time from using Smartsalez Cash if there are reasons to believe that such user has violated any of these Smartsalez Cash T&C or the User Terms and Conditions.
10. These Smartsalez Cash T&C shall be governed by and construed in accordance with the laws of India without reference to conflict of laws principles. Disputes arising in relation hereto shall be subject to the exclusive jurisdiction of courts at Chennai.
Smartsalez Referral Programme – Terms and Conditions
1. Smartsalez Referral Programme is a reward program initiated by Moiter Workz Private Limited (“Smartsalez”) for encouraging Eligible Users to refer the Smartsalez App to their friends and family against Smartsalez Cash.
2. Each Eligible User (“Referee”) is provided with a referral code, which he/she may choose to share with people known to them personally and have consented to receive such referral code.
3. Each new user (“Referred”) downloading the Smartsalez App shall receive Smartsalez Cash upon them entering the referral code shared by the Referee.
4. A Referee shall receive Smartsalez Cash upon the Referred using the Smartsalez App within the first 7 (seven) days of the Referred downloading the Smartsalez App for a task not less than INR 100 (Indian Rupees One Hundred only).
5. Each Referee can refer up to a maximum of 10 users.
6. Users must refer and distribute the referral codes only to people known to them personally and have consented to receive such referral code. Users must not send bulk and spam emails to distribute the referral code nor must users post it on any public platform for distribution to strangers. Any violation of these terms will immediately lead to disqualification of use of the Smartsalez App in addition to exposure to further legal action.
7. Upon a Referee reaching the maximum number of referrals, the referral code shall become invalid.
8. For the purpose of these terms and conditions “Eligible User” shall mean such users as may be indicated by Smartsalez from time to time.
9. In case of any issue pertaining to the eligibility to refer or be referred, the independent decision made by Smartsalez shall be final and binding. For any issue pertaining to receipt of Smartsalez Cash, please write to support@Smartsalez.in.
10. Company reserves the right to terminate the Smartsalez Referral Programme or modify these terms at any point in time, without notice to users. This wouldn’t affect the benefits already availed by such user.
11. These terms are in addition to and not a substitution for the terms and conditions on the Smartsalez App / website or other product(s) / service(s) specific terms and conditions. Further, these terms shall be governed by and constructed in accordance with the laws of India without reference to conflict of laws principles and disputes arising in relation hereto shall be subject to the exclusive jurisdiction of courts at Chennai.
Partner Terms
This Services Agreement (“Agreement”) constitutes a legal agreement between an independent company in the business of providing transportation and logistics services (“Customer”) and Moiter Workz Private Limited, a private limited company registered under the Companies Act, 2013, having its office at No.20/5 Subbarayan Street, Nungambakkam Chennai, TN 600034, (“Smartsalez”).
Smartsalez provides the Smartsalez Services (as defined below) for the purpose of providing lead generation to transportation and logistics services providers. The Smartsalez Services enables an authorized transportation and/or logistics provider to seek, receive and fulfil requests for item(s)/package(s) pick-up and drop, purchase of item(s) from outlets in the Territory or other person(s)/service provider(s), facilitate other logistic services, including transportation services from an authorized user of Smartsalez’s mobile application.
Customer is authorized to provide transportation and logistics services in the state(s) and jurisdiction(s) in which it operates, and it desires to enter into this Agreement for the purpose of accessing and using the Smartsalez Services to enhance its independent transportation and/or logistics business, as is applicable.
Customer acknowledges and agrees that Smartsalez is a technology services provider that does not provide transportation or logistics or delivery services, function as a transportation/logistics carrier, nor operate as an agent for the delivery of good(s)/item(s) purchased, logistic(s) services and/or transportation of passengers.
In order to use the Smartsalez Services, Customer must agree to the terms and conditions that are set-forth below. Upon Customer’s execution (electronic or otherwise) of this Agreement, Customer and Smartsalez shall be bound by the terms and conditions set-forth herein.
1. Definitions
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1.1. “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest, the majority of the voting rights of such entity, the ability of such entity to ensure that the activities and business of that Affiliate are conducted in accordance with the wishes of that entity or the right to receive the majority of the income of that Affiliate on any distribution by it of all of its income or the majority of its assets on a winding up.
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1.2. “City Addendum” means an addendum or supplemental information to this Agreement setting forth additional Territory-‐specific terms, as made available and as updated by Smartsalez from time to time.
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1.3. “Device” means an Smartsalez Device or Driver-‐Provided Device, as the case may be.
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1.4. “Driver” means a principal, employee or contractor of Customer: (a) who meets the then-‐ current Smartsalez requirements to be an active driver using the Smartsalez Services; (b) whom Smartsalez authorizes to access the Smartsalez Services to provide Transportation and/or Logistics Services on behalf of Customer; and (c) who has entered into the Driver Addendum.
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1.5 “Driver ID” means the identification and password key assigned by Smartsalez to a Driver that enables a Driver to use and access the Smartsalez Partner App.
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1.6. “Driver Addendum” means the terms and conditions that Customer is required to enter into with a Driver prior to such Driver providing Transportation and/or Logistics Services on behalf of Customer (as may be updated by Smartsalez from time to time).
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1.7. “Smartsalez Partner App” means Smartsalez’s mobile application that enables independent contractor couriers to access the Smartsalez Services for the purpose of seeking, receiving and fulfilling on-‐demand requests for on-demand delivery services by Users, as may be updated or modified by Smartsalez at its discretion from time to time.
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1.8. “Smartsalez Data” means all data related to the access and use of the Smartsalez Services hereunder, including all data related to Users (including User Information), all data related to the provision of Transportation and/or Logistics Services via the Smartsalez Services and the Driver App, and the Driver ID.
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1.9. “Smartsalez Device” means a mobile device owned or controlled by Smartsalez that may be provided to Customer or a Driver for the sole purpose of such Driver using the Driver App to provide Transportation and/or Logistics Services and for no other purpose whatsoever.
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1.10. “Smartsalez Services” mean Smartsalez’s electronic services rendered via a digital technology platform, being on-‐demand intermediary and related services that enable transportation and/or logistics providers to seek, receive and fulfil on-‐demand requests for transportation and/ or logistics services by Users seeking such transportation and/ or logistics services; such Smartsalez Services include access to the Driver App and Smartsalez’s related software, websites, payment services as described in Section 4 below, and related support services systems, as may be updated or modified by Smartsalez at its discretion from time to time.
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1.11. “Fare” has the meaning set forth in Section 4.1.
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1.12. “Logistics Services” has the meaning set forth in Section3.1
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1.13. “App On-boarding Fee” shall mean the one-time amount charged by Smartsalez on the Customer at the time of on-boarding onto the Smartsalez App.
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1.14. “Service Fee” has the meaning set forth in Section 4.4.
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1.15. “Transportation/Logistics Services” has the meaning set forth in Section3.1.
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1.16. “Territory” means the city or metro areas in the territory of India which Customer and its Drivers are enabled by the Driver App to receive requests for Transportation and/or Logistics Services.
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1.17. “Tolls” means any applicable road, bridge, ferry, tunnel and airport charges and fees, including inner-‐city congestion, environmental or similar charges as reasonably determined by the Smartsalez Services based on available information.
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1.18. “User” means an end user authorized by Smartsalez to use Smartsalez’s mobile application for the purpose of obtaining Transportation and/or Logistics Services offered by Smartsalez’s transportation and/or logistics provider customers.
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1.19. “User Information” means information about a User made available to Customer or a Driver in connection with such User’s request for and use of Transportation and/or logistics Services, which may include the User’s name, pick-‐up location, contact information and photo.
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1.20. “Vehicle” means any vehicle of Customer that: (a) meets the then-‐current Smartsalez requirements for a vehicle on the Smartsalez Services; and (b) Smartsalez authorizes for use by a Driver for the purpose of providing Transportation and/or Logistics Services on behalf of Customer.
2. Use of the Smartsalez Services
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2.1. Driver IDs. Smartsalez will issue Customer a Driver ID for each Driver providing Transportation and/or logistic Services to enable Customer and each Driver to access and use the Driver App on a Device in accordance with the Driver Addendum and this Agreement. Customer agrees that it will, and that it will ensure that its Drivers will, maintain Driver IDs in confidence and not share Driver IDs with any third party other than the Driver associated with such Driver ID for the purpose of providing Transportation and/or logistics Services. Customer will immediately notify Smartsalez of any actual or suspected breach or improper use or disclosure of a Driver ID or the Driver App.
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2.2. Provision of Transportation and/or Logistics Services. When the Driver App is active, User requests for Transportation and/or Logistics Services may appear to a Driver via the Driver App if the Driver is available and in the vicinity of the User. If a Driver accepts a User’s request for Transportation and/or Logistics Services, the Smartsalez Services will provide certain User Information to such Driver via the Driver App, including the User’s first name and pickup location. In order to enhance User satisfaction with the Smartsalez mobile application and Customer’s and Driver(s) Transportation and/or Logistics Services, it is recommended that the Driver wait at least ten (10) minutes for a User to show up at the requested pick-‐up location. It is also recommended that the Driver understands the local regulation(s), including the minimum age and purchase quantity condition(s) with respect to the purchase and/or delivery of alcoholic beverages, item(s) containing tobacco including any other restricted item(s) under applicable law. The Driver will obtain the destination and/or the purchase outlet detail(s) from the User, either in person upon pickup or from the Driver App if the User elects to enter such destination and/or the purchase outlet via Smartsalez’s mobile application. Customer acknowledges and agrees that once a Driver has accepted a User’s request for Transportation and/or Logistics Services, Smartsalez’s mobile application may provide certain information about the Driver to the User, including the Driver’s first name, contact information, Customer entity name, location, and the Driver’s Vehicle’s make, license plate number, as is applicable. Customer shall not, and shall ensure that all Drivers do not, contact any Users or use any User's personal data for any reason other than for the purposes of fulfilling Transportation and/or Logistics Services. As between Smartsalez and Customer, Customer acknowledges and agrees that: (a) Customer and its Drivers are solely responsible for determining the most effective, efficient and safe manner to perform each instance of Transportation and/or Logistics Services; and (b) except for the Smartsalez Services or any Smartsalez Devices (if applicable), Customer shall provide all necessary equipment, tools and other materials, at Customer’s own expense, necessary to perform Transportation and/or Logistics Services.
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2.3. Customer’s Relationship with Users. Customer acknowledges and agrees that Customer’s provision of Transportation and/or Logistics Services to Users creates a legal and direct business relationship between Customer and the User, to which Smartsalez is not a party. Smartsalez is not responsible or liable for the actions or inactions of a User in relation to the activities of Customer, a Driver or any Vehicle. Customer shall have the sole responsibility for any obligations or liabilities to Users or third parties that arise from its provision of Transportation and/or Logistics Services. Customer acknowledges and agrees that it and each Driver are solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all applicable laws) regarding any acts or omissions of a User or third party. Customer acknowledges and agrees that Smartsalez may release the contact and/or insurance information of Customer and/or a Driver to a User upon such User’s reasonable request. Customer acknowledges and agrees that, unless specifically consented to by a User, neither Customer nor Driver may transport or allow alongside any Vehicle individuals other than a User and any individuals authorized by such User during the performance of Transportation and/ or Logistics Services for such User. Customer acknowledges and agrees, and shall ensure that its Drivers agree, that all Users should be transported directly to their specified destination, as directed by the applicable User, without unauthorized interruption or unauthorized stops.
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2.4. Customer’s Relationship with Smartsalez. Customer acknowledges and agrees that Smartsalez’s provision to Customer of the Driver App and the Smartsalez Services creates a legal and direct business relationship between Smartsalez and Customer. Smartsalez does not, and shall not be deemed to, director control Customer or its Drivers generally or in their performance under this Agreement specifically, including in connection with the operation of Customer’s business, the provision of Transportation and/or Logisitics Services, the acts or omissions of Drivers, or the operation and maintenance of any Vehicles. Customer and its Drivers retain the sole right to determine when and for how long each of them will utilize the Driver App or the Smartsalez Services. Customer and its Drivers retain the option, via the Driver App, to attempt to accept or to decline or ignore a User’s request for Transportation and/or Logistics Services via the Smartsalez Services, or to cancel an accepted request for Transportation and/or the Logiatics Services via the Driver App, subject to Smartsalez’s then-‐current cancellation Policy. Customer acknowledges and agrees that it has complete discretion to operate its independent business and direct its Drivers at its own discretion, including the ability to provide services at any time to any third party separate and apart from Transportation and/or Logistics Services. For the sake of clarity, Customer understands that Customer retains the complete right to provide Transportation and/or Logistics services to its existing customers and to use other software application services in addition to the Smartsalez Services. Smartsalez retains the right to, at any time in Smartsalez's sole discretion, deactivate or otherwise restrict Customer or any Driver from accessing or using the Driver App or the Smartsalez Services in the event of a violation of this Agreement, a violation of a Driver Addendum, Customer‘s or any Driver’s disparagement of Smartsalez or any of its Affiliates, Customer’s or any Driver’s act or omission that causes harm to Smartsalez’s or its Affiliates’ brand, reputation or business as determined by Smartsalez in its sole discretion. Smartsalez also retains the right to deactivate or otherwise restrict Customer or any Driver from accessing or using the Driver App or the Smartsalez Services for any other reason at the sole and reasonable discretion of Smartsalez.
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2.5. Customer’s Relationship with Drivers. Customer shall have the sole responsibility for any obligations or liabilities to Drivers that arise from its relationship with its Drivers (including provision of Transportation and/or Logistics Services). Customer acknowledges and agrees that it exercises sole control over the Drivers and will comply with all applicable laws (including tax and employment laws) governing or otherwise applicable to its relationship with its Drivers. Notwithstanding Customer’s right, if applicable, to take recourse against a Driver, Customer acknowledges and agrees that it is at all times responsible and liable for the acts and omissions of its Drivers vis-‐à-‐vis Users and Smartsalez, even where such liability may not be mandated under applicable law. Customer shall require each Driver to enter into a Driver Addendum (as may be updated from time to time) and shall provide a copy of each executed Driver Addendum to Smartsalez. Customer acknowledges and agrees that Smartsalez is a third party beneficiary to each Driver Addendum, and that, upon a Driver’s execution of the Driver Addendum (electronically or otherwise), Smartsalez will have the irrevocable right (and will be deemed to have accepted the right unless it is rejected promptly after receipt of a copy of the executed Driver Addendum) to enforce the Driver Addendum against the Driver as a third party beneficiary thereof.
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2.6. Ratings.
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2.6.1. Customer acknowledges and agrees that: (a) after receiving Transportation Services, a User will be prompted by Smartsalez’s mobile application to provide a rating of such Transportation and/or Logistics Services and Driver and, optionally, to provide comments or feedback about such Transportation Services and Driver; and (b) after providing Transportation Services, the Driver will be prompted by the Driver App to provide a rating of the User and, optionally, to provide comments or feedback about the User. Customer shall instruct all Drivers to provide ratings and feedback in good faith.
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2.6.2. Customer acknowledges that Smartsalez desires that Users have access to high-‐quality services via Smartsalez’s mobile application. In order to continue to receive access to the Driver App and the Smartsalez Services, each Driver must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Smartsalez for the Territory, as may be updated from time to time by Smartsalez in its sole discretion (“Minimum Average Rating”). In the event a Driver’s average rating falls below the Minimum Average Rating, Smartsalez will notify Customer and may provide the Driver in Smartsalez’s discretion, a limited period of time to raise his or her average rating above the Minimum Average Rating. If such Driver does not increase his or her average rating above the Minimum Average Rating within the time period allowed (if any), Smartsalez reserves the right to deactivate such Driver’s access to the Driver App and the Smartsalez Services. Additionally, Customer acknowledges and agrees that repeated failure by a Driver to accept User requests for Transportation and/or Logistics Services while such Driver is logged in to the Driver App creates a negative experience for Users of Smartsalez’s mobile application. Accordingly, Customer agrees and shall ensure that if a Driver does not wish to accept User requests for Transportation Services for a period of time, such Driver will log off of the Driver App.
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2.6.3. Smartsalez and its Affiliates reserve the right to use, share and display Driver and User ratings and comments in any manner in connection with the business of Smartsalez and its Affiliates without attribution to or approval of Customer or the applicable Driver. Customer acknowledges that Smartsalez and its Affiliates are distributors (without any obligation to verify) and not publishers of Driver and User ratings and comments, provided that Smartsalez and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Smartsalez’s or its Affiliates’ content Policy.
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2.7. Devices.
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2.7.1. Smartsalez encourages Customer to use Driver-‐Provided Devices for providing the Transportation Services. Otherwise, Smartsalez will supply Customer upon request with Smartsalez Devices to each authorized Driver and provide the necessary wireless data plan for such Devices, provided that Smartsalez will require reimbursement from Customer for the costs associated with the wireless data plan of each Smartsalez Device and/or request a deposit for each Smartsalez Device. Customer acknowledges and agrees that: (a) Smartsalez Devices may only be used for the purpose of enabling Driver access to the Smartsalez Services; and (b) Smartsalez Devices may not be transferred, loaned, sold or otherwise provided in any manner to any party other than the Driver assigned to use such Smartsalez Device. Smartsalez Devices shall at all times remain the property of Smartsalez, and upon termination of this Agreement or the termination or deactivation of a Driver, Customer agrees to return to Smartsalez the applicable Smartsalez Devices within ten (10) days. Customer acknowledges and agrees that failure to timely return any Smartsalez Devices, or damage to Smartsalez Devices outside of “normal wear and tear,” will result in the forfeiture of related deposits.
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2.7.2. If Customer elects to use any Driver-‐Provided Devices: (i) Customer and/or its Drivers are responsible for the acquisition, cost and maintenance of such Driver-‐Provided Devices as well as any necessary wireless data plan; and (ii) Smartsalez shall make available the Driver App for installation on such Driver-‐Provided Devices. Smartsalez hereby grants the authorized user of any Driver-‐Provided Device a personal, non-‐exclusive, non-‐ transferable user right to install and use the Driver App on a Driver-‐Provided Device solely for the purpose of providing Transportation and/or Logistics Services. Customer agrees to not, and shall cause each applicable Driver to not, provide, distribute or share, or enable the provision, distribution or sharing of, the Driver App (or any data associated therewith) with any third party. The foregoing right shall immediately terminate and Driver will delete and fully remove the Driver App from the Driver-‐Provided Device in the event that Customer and/or the applicable Driver ceases to provide Transportation and/or Logistics Services using the Driver-‐Provided Device. Customer agrees, and shall inform each applicable Driver that: (i) use of the Driver App on a Driver-‐Provided Device requires an active data plan with a wireless carrier associated with the Driver-‐Provided Device, which data plan will be provided by either Customer or the applicable Driver at their own expense; and (ii) use of the Driver App on a Driver-‐Provided Device as an interface with the Smartsalez Services may consume very large amounts of data through the data plan. Smartsalez advises that Driver-‐Provided Devices should only be used under a data plan with unlimited or very high data usage limits, and Smartsalez shall not be responsible or liable for any fees, costs, or overage charges associated with any data plan.
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2.8. Location Based Services. Customer acknowledges and agrees that each Driver’s geo-‐location information must be provided to the Smartsalez Services via a Device in order to provide Transportation and/or Logistics Services. Customer acknowledges and agrees, and shall inform and obtain the consent of each Driver, that: (a) the Driver’s geo-‐location information will be monitored and tracked by the Smartsalez Services when the Driver is logged into the Driver App and available to receive requests for Transportation and/ or Logistics Services, or when the Driver is providing Transportation and/ or Logistics Services; and (b) the approximate location of the Driver’s Vehicle will be displayed to the User before and during the provision of Transportation and/ or Logistics Services to such User. In addition, Smartsalez may monitor, track and share a Driver’s geo-‐location information obtained by the Driver App and Device for safety, security, technical, marketing and commercial purposes, including to provide and improve Smartsalez’s products and services.
3. Drivers and Vehicles
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3.1. Driver Requirements. Customer acknowledges and agrees that each Driver shall at all times: (a) hold and maintain (i) a valid driver's license with the appropriate level of certification to operate the Vehicle assigned to such Driver, and (ii) all licenses, permits, approvals and authority applicable to Customer and/or Driver that are necessary to provide passenger transportation services to third parties in the Territory and/or logistic services, involving the purchase of item(s) third parties in the Territory; (b) possess the appropriate and current level of training, expertise and experience to provide Transportation and/or Logistics Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. Customer acknowledges and agrees that each Driver may be subject to certain background and driving record checks from time to time in order for such Driver to qualify to provide, and remain eligible to provide, Transportation and/or Logistics Services. In addition if Customer and/or Driver are using the Smartsalez App to provide Transportation and/or Logistics Services in conjunction with operating a vehicle which enables passenger(s) to be ferried (“Transportation and/or Logistics Services”), such Customer and/or Driver shall comply with all applicable laws with respect thereto. Customer acknowledges and agrees that Smartsalez reserves the right, at any time in Smartsalez's sole discretion, to deactivate or otherwise restrict a Driver from accessing or using the Driver App or the Smartsalez Services if Customer or such Driver fails to meet the requirements set forth in this Agreement or the Driver Addendum.
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3.2. Vehicle Requirements. Customer acknowledges and agrees that each Vehicle shall at all times be: (a) properly registered and licensed to operate as a passenger transportation vehicle and/or Vehicle to transport Item(s) purchased in the Territory; (b) owned or leased by Customer, or otherwise in Customer’s lawful possession; (c) suitable for performing the passenger transportation service and/or Vehicle to transport item(s) as contemplated by this Agreement; and (d) maintained in good operating condition, consistent with industry safety and maintenance standards for a Vehicle of its kind and any additional standards or requirements in the applicable Territory, and in a clean and sanitary condition.
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3.3. Documentation. To ensure Customer’s and each of its Drivers’ compliance with all requirements in Sections 3.1 and 3.2 above, Customer must provide Smartsalez with written copies of all such licenses, permits, approvals, authority, registrations and certifications prior to Customer’s and the applicable Drivers’ provision of any transportation services and/or logistic services. Thereafter, Customer must submit to Smartsalez written evidence of all such licenses, permits, approvals, authority, registrations and certifications as they are renewed. Smartsalez shall, upon request, be entitled to review such licenses, permits, approvals, authority, registrations and certifications from time to time, and Customer’s failure to provide or maintain any of the foregoing shall constitute a material breach of this Agreement. Smartsalez reserves the right to independently verify Customer's and/or any Driver’s documentation from time to time in any way Smartsalez deems appropriate in its reasonable discretion.
4. Financial Terms
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4.1. Fare Calculation and Customer Payment. Customer is entitled to charge a fare for each instance of completed Transportation Services provided to a User that are obtained via the Smartsalez Services (“Fare”), where such Fare is calculated based upon a base fare amount plus distance (as determined by Smartsalez using location-‐based services enabled through the Device) and/or time amounts, for the applicable Territory (“Fare Calculation”). Customer is also entitled to charge User for any Tolls, taxes or fees incurred during the provision of Transportation and/or Logistics Services, if applicable. Customer: (i) appoints Smartsalez as Customer’s limited payment collection agent solely for the purpose of accepting the Fare, applicable Tolls and, depending on the region and/or if requested by Customer, applicable taxes and fees from the User on behalf of the Customer via the payment processing functionality facilitated by the Smartsalez Services; and (ii) agrees that payment made by User to Smartsalez shall be considered the same as payment made directly by User to Customer. In addition, the parties acknowledge and agree that as between Customer and Smartsalez, the Fare is a recommended amount, and the primary purpose of the pre-‐arranged Fare is to act as the default amount in the event Customer does not negotiate a different amount. Customer shall always have the right to: (i) charge a fare that is less than the pre-‐arranged Fare; or (ii) negotiate, at Customer’s request, a Fare that is lower than the pre-‐arranged Fare (each of (i) and (ii) herein, a “Negotiated Fare”). Smartsalez shall consider all such requests from Customer in good faith. Smartsalez agrees to remit to Customer on at least a weekly basis: (a) the Fare less the applicable Service Fee; (b) the Tolls; and (c) depending on the region, certain taxes and ancillary fees. If Customer has separately agreed, other amounts may be deducted from the Fare prior to remittance to Customer (e.g., App On-boarding Fee(s) etc.), the order of those deductions from the Fare to be determined exclusively by Smartsalez. Notwithstanding anything to the contrary in this Section 4.1, if Customer is providing two-wheeler taxi Services, the following shall apply: (x) the Fare is calculated pursuant to local taxi regulations in the Territory; and (y) in some jurisdictions, Users may pay such Customer or Driver directly rather than through Smartsalez's mobile application (Smartsalez will notify Customer if (y) is applicable in its Territory).
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4.2. Changes to Fare Calculation. Smartsalez reserves the right to change the Fare Calculation at any time in Smartsalez’s discretion based upon local market factors, and Smartsalez will provide notice to Customer in the event of such change that would result in a change in the recommended Fare. Continued use of the Smartsalez Services after any such change in the Fare Calculation shall constitute Customer’s consent to such change.
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4.3. Fare Adjustment. Smartsalez reserves the right to: (i) adjust the Fare for a particular instance of Transportation Services (e.g., Driver took an inefficient route, Driver failed to properly end a particular instance of Transportation Services in the Driver App, technical error in the Smartsalez Services, etc.); or (ii) cancel the Fare for a particular instance of Transportation Services (e.g., a User is charged for Transportation Services that were not provided, in the event of a User complaint, fraud, etc.). Smartsalez’s decision to reduce or cancel the Fare in any such manner shall be exercised in a reasonable manner.
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4.4. Service Fee. In consideration of Smartsalez’s provision of the Smartsalez Services, the Customer may pay Smartsalez a service fee on a per Transportation and/or Logistics Services transaction basis calculated as a percentage of the Fare (regardless of any Negotiated Fare), as provided to Customer via email or otherwise made available electronically by Smartsalez from time to time for the applicable Territory (“Service Fee”). Unless regulations applicable to Customer’s Territory require otherwise, taxes will be calculated and charged on the Fare, and Smartsalez shall calculate the Service Fee based on the Fare inclusive of such taxes. Smartsalez reserves the right to change the Service Fee at any time in Smartsalez’s discretion based upon local market factors, and Smartsalez will provide notice to Customer in the event of such change. Continued use of the Smartsalez Services after any such change in the Service Fee calculation shall constitute Customer’s consent to such change. In addition, with respect to Taxi Services in the applicable Territory, Customer agrees to pay Smartsalez a booking fee in consideration of Smartsalez’s provision of the Driver App and the Smartsalez Services.
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4.5. Cancellation Charges. Customer acknowledges and agrees that Users may elect to cancel requests for Transportation and/or Logistics Services that have been accepted by a Driver via the Driver App at any time prior to the Driver’s arrival. In the event that a User cancels an accepted request for Transportation and/or Logistic Services, Smartsalez may charge the User a cancellation fee on behalf of the Customer. If charged, this cancellation fee shall be deemed the Fare for the cancelled Transportation and/or Logistics Services for the purpose of remittance to Customer hereunder (“Cancellation Fee”). The parties acknowledge that and agree that as between Customer and Company, this Cancellation Fee is a recommended amount, and the primary purpose of such Cancellation Fee is to act as the default amount in the event Customer does not negotiate a different amount. Customer shall always have the right to: (i) charge a cancellation fee that is less than the Cancellation Fee; or (ii) negotiate, at Customer’s request, a cancellation fee that is lower than the Cancellation Fee (each of (i) and (ii) herein, a “Negotiated Cancellation Fee”). If charged, the Cancellation Fee (regardless of any Negotiated Cancellation Fee) shall be deemed the Fare for the cancelled Transportation and/or Logistics Services for the purpose of remittance to the Customer hereunder.
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4.6. Receipts. As part of the Smartsalez Services, Smartsalez provides Customer a system for the delivery of receipts to Users for Transportation and/or Logistics Services rendered on the Smartsalez Platform. Upon the completion of Transportation and/or Logistics Services for a User by a Driver, Smartsalez prepares an applicable receipt and issues such receipt to the User via email on behalf of the Customer and applicable Driver. Such receipts are also provided via email or the online portal available to the Customer on the Smartsalez Services. Receipts include the breakdown of amounts charged to the User for Transportation and/or Logistics Services and may include specific information about the Customer and applicable Driver, including the Customer’s entity name and contact information, as well as a map of the route taken by the Driver. Customer shall inform Drivers that any corrections to a User’s receipt for Transportation and/or Logistics Services must be submitted to Smartsalez in writing within three (3) business days after the completion of such Transportation and/or Logistics Services. Absent such a notice, Smartsalez shall not be liable for any mistakes in or corrections to the receipt or for recalculation or disbursement of the Fare.
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4.7. Platform Advertisement; Marketing. Customer acknowledges and agrees that, for the mutual benefit of the parties, through advertising and marketing, Smartsalez and/or its Affiliates may seek to attract new Users to Smartsalez and to increase existing Users’ use of Smartsalez’s mobile application.
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4.8. Taxes. Customer acknowledges and agrees that it is required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of Transportation Services as required by applicable law; and (b) provide Smartsalez with all relevant tax information. Customer further acknowledges and agrees that Customer and each of its Drivers are responsible for taxes on their own income arising from the performance of Transportation and or Logistics Services. Notwithstanding anything to the contrary in this Agreement, Smartsalez may in its reasonable discretion based on applicable tax and regulatory considerations, collect and remit taxes resulting from Customer’s and/or any Driver’s provision of Transportation and/or Logistics Services and/or provide any of the relevant tax information Customer and/or any Driver has provided pursuant to the foregoing requirements in this Section 4.8 directly to the applicable governmental tax authorities on Customer’s and/or the applicable Driver’s behalf or otherwise.
5. Proprietary Rights; License
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5.1. License Grant. Subject to the terms and conditions of this Agreement, Smartsalez hereby grants Customer a non-exclusive, royalty-free, non-transferable, non-sub-licensable, non-assignable license, during the term of this Agreement, to use (and allows its Drivers to use) the Driver App in connection with the provision by Smartsalez of the Smartsalez Services solely for the purpose of providing Transportation and/or Logistics Services to Users and tracking resulting Fares and Fees. All rights not expressly granted to Customer are reserved by Smartsalez, its Affiliates and their respective licensors.
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5.2. Restrictions. Customer shall not, and shall not allow any other party to: (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise provide or make available to any other party the Smartsalez Services, Driver App or any Smartsalez Device in any way; (b) modify or make derivative works based upon the Smartsalez Services or Driver App; (c) improperly use the Smartsalez Services or Driver App, including creating Internet “links” to any part of the Smartsalez Services or Driver App, “framing” or “mirroring” any part of the Smartsalez Services or Driver App on any other websites or systems, or “scraping” or otherwise improperly obtaining data from the Smartsalez Services or Driver App; (d) reverse engineer, decompile, modify, or disassemble the Smartsalez Services or Driver App, except as allowed under applicable law; or (e) send spam or otherwise duplicative or unsolicited messages. In addition, Customer shall not, and shall not allow any other party to, access or use the Smartsalez Services or Driver App to: (i) design or develop a competitive or substantially similar product or service; (ii) copy or extract any features, functionality, or content thereof; (iii) launch or cause to be launched on or in connection with the Smartsalez Services an automated program or script, including web spiders, crawlers, robots, indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burden or hinder the operation and/or performance of the Smartsalez Services; or (iv) attempt to gain unauthorized access to the Smartsalez Services or its related systems or networks.
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5.3. Ownership. The Smartsalez Services, Driver App and Smartsalez Data, including all intellectual property rights therein, and the Smartsalez Devices are and shall remain the property of Smartsalez, its Affiliates or their respective licensors. Neither this Agreement nor Customer’s use of the Smartsalez Services, Driver App or Smartsalez Data conveys or grants to Customer any rights: (a) in or related to the Smartsalez Services, Driver App or Smartsalez Data, except for the limited license granted above; or (b) to use or reference in any manner Smartsalez’s, its Affiliates’, or their respective licensors’ company names, logos, product and service names, trademarks, service marks or other indicia of ownership. Additionally, Customer acknowledges Smartsalez’s rights in its SMARTSALEZ family of trademarks and names, including SMARTSALEZ, alone and in combination with other letters, punctuation, words, symbols and/or designs, the SMARTSALEZ Logo and/or the SMARTSALEZ Pillion (“SMARTSALEZ Marks and Names”). Customer agrees it will not, and it will ensure that its Drivers do not, try to register or otherwise claim ownership in any of the SMARTSALEZ Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark or name.
6. Confidentiality
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6.1. Each party acknowledges and agrees that in the performance of this Agreement it may have access to or may be exposed to, directly or indirectly, confidential information of the other party ("Confidential Information"). Confidential Information includes Smartsalez Data, Driver IDs, User Information, and the transaction volume, marketing and business plans, business, financial, technical, operational and such other non-‐public information of each party (whether disclosed in writing or verbally) that such party designates as being proprietary or confidential or of which the other party should reasonably know that it should be treated as confidential.
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6.2. Each party acknowledges and agrees that: (a) all Confidential Information shall remain the exclusive property of the disclosing party; (b) it shall not use Confidential Information of the other party for any purpose except in furtherance of this Agreement; (c) itshall not disclose Confidential Information of the other party to any third party, except to its employees, officers, contractors, agents and service providers ("Permitted Persons") as necessary to perform under this Agreement, provided Permitted Persons are bound in writing to obligations of confidentiality and non-‐use of Confidential Information no less protective than the terms hereof; and (d) it shall return or destroy all Confidential Information of the disclosing party upon the termination of this Agreement or at the request of the other party (subject to applicable law and, with respect to Smartsalez, its internal record-‐keeping requirements).
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6.3. Notwithstanding the foregoing, Confidential Information shall not include any information to the extent it: (a) is or becomes part of the public domain through no act or omission on the part of the receiving party; (b) was possessed by the receiving party prior to the date of this Agreement without an obligation of confidentiality; (c) is disclosed to the receiving party by a third party having no obligation of confidentiality with respect thereto; or (d) is required to be disclosed pursuant to law, court order, subpoena or governmental authority, provided the receiving party notifies the disclosing party thereof and provides the disclosing party a reasonable opportunity to contest or limit such required disclosure.
7. Privacy.
Subject to all applicable laws, Smartsalez may provide to a third party any information (including personal data and any Smartsalez Data) about Drivers provided hereunder if: (a) there is a complaint, dispute or conflict, including an accident, between a Driver and a User; (b) it is necessary to enforce the terms of the Agreement; (c) it is required, in Smartsalez’s or any Affiliate’s sole discretion, by applicable law or regulation; (d) it is necessary, in Smartsalez’s or any Affiliate’s sole discretion, to(1) protect the safety, rights, property or security of Smartsalez, the Smartsalez Services or any third party, (2) detect, prevent or otherwise address fraud, security or technical issues, and/or (3) prevent or stop activity which Smartsalez or any of its Affiliates, in their sole discretion, consider to be, or to pose a risk of being, illegal, unethical or legally actionable; or (e) it is required or necessary, in Smartsalez’s or any Affiliate’s sole discretion, for insurance or other purposes related to Customer’s and/or Driver’s ability to qualify, or remain qualified, to use the Smartsalez Services. Customer understands that Smartsalez may retain Customer’s and/or Driver(s) personal data for legal, regulatory, safety, and other necessary purposes after this Agreement is terminated. Smartsalez processes personal data (including that referenced in Section 2.8 above) in accordance with its privacy policy located at www.Smartsalez.in.
8. Insurance
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8.1 Customer agrees to maintain during the term of this Agreement on all Vehicles operated by Customer and its Drivers commercial automobile liability insurance that provides protection against bodily injury and property damage to third parties at levels of coverage that satisfy all applicable laws in the Territory. This coverage must also include any no-‐fault coverage required by law in the Territory that may not be waived by an insured.
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8.2 Customer agrees to maintain during the term of this Agreement commercial general liability insurance that provides protection against personal injury, advertising injury and property damage to third parties at levels of coverage required byall applicable laws in the Territory.
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8.3. Customer agrees to maintain during the term of this Agreement workers’ compensation insurance as required by all applicable laws in the Territory. If permitted by applicable law, Customer may choose to insure itself against industrial injuries by maintaining occupational accident insurance in place of workers’ compensation insurance. Customer’s subcontractors may also, to the extent permitted by applicable law, maintain occupational accident insurance in place of workers’ compensation insurance.
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8.4. Customer shall add Smartsalez (or any Affiliate which may be designated by Smartsalez from time to time) to Customer’s insurance Policy required in Sections 8.1 and 8.2 above as an additional insured, and shall, upon Smartsalez’s request, provide Smartsalez with a copy of such insurance certificate(s) within seven (7) days of such request.
9. Representations and Warranties; Disclaimers
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9.1. By Customer. Customer hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement 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 will not enter into, any agreement that would prevent it from complying with this Agreement; (d) it will comply with all applicable laws in its performance of this Agreement, including holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide(i) Transportation and/or Logistics Services using the Drivers and Vehicles pursuant to this Agreement, and (ii) passenger transportation services to third parties in the Territory generally; and (e) it shall require all Drivers to comply with the Driver Addendum, the applicable terms and conditions set forth in this Agreement and all applicable laws.
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9.2. Disclaimer of Warranties. Smartsalez provides, and Customer accepts, the Smartsalez Services, Driver App and the Smartsalez Devices on an "as is" and "as available" basis. Smartsalez does not represent, warrant or guarantee that Customer’s or any Driver’s access to or use of the Smartsalez Services, Driver App or the Smartsalez Devices: (a) will be uninterrupted or error free; or (b) will result in any requests for Transportation Services. Smartsalez functions as an on-‐demand lead generation and related service only and makes no representations, warranties or guarantees as tothe actions or inactions of the Users who may request or receive Transportation/Logistics Services from Customer or any Driver hereunder, and Smartsalez need not screen or otherwise evaluate Users. By using the Smartsalez Services and Driver App, Customer acknowledges and agrees that Customer or a Driver may be introduced to a third party (including Users) that may pose harm or risk to Customer, a Driver or other third parties. Customer and Drivers are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Smartsalez Services or Driver App. Notwithstanding Smartsalez’s appointment as the limited payment collection agent of Customer for the purpose of accepting payment from Users on behalf of Customer as set forth in Section 4 above, Smartsalez expressly disclaims all liability for any act or omission of Customer, any Driver, any User or other third party.
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9.3. No Service Guarantee. Smartsalez does not guarantee the availability or uptime of the Smartsalez Services or Driver App. Customer acknowledges and agrees that the Smartsalez Services or Driver App may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Smartsalez Services or Driver App may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Smartsalez is not responsible for any delays, delivery failures or other damages, liabilities or losses resulting from such problems.
10. Indemnification
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10.1. Customer shall indemnify, defend (at Smartsalez’s option) and hold harmless Smartsalez and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes arising out of or related to: (a) Customer’s breach of its representations, warranties or obligations under this Agreement; or (b) a claim by a third party (including Users, regulators and governmental authorities) directly or indirectly related to Customer’s provision of Transportation and/or Logistics Services or use of the Smartsalez Services.
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10.2. As between Customer and Smartsalez, Customer is and shall be solely responsible for its Drivers’ provision of Transportation Services. As such, Customer shall indemnify, defend (at Smartsalez’s option) and hold harmless Smartsalez and its Affiliates and their respective officers, directors, employees, agents, successors and assigns from and against any and all liabilities, expenses (including legal fees), damages, penalties, fines, social security contributions and taxes directly or indirectly arising out of or related to its Drivers’ provision of Transportation and/or Logistics Services or use of the Smartsalez Services.
11. Limits of Liability.
Smartsalez and its Affiliates shall not be liable under or related to this Agreement for any of the following, whether based on contract, tort or any other legal theory, even if a party has been advised of the possibility of such damages: (i) any incidental, punitive, special, exemplary, consequential, or other indirect damages of any type or kind; or (ii) Customer’s, Driver's or any third party’s property damage, or loss or inaccuracy of data, or loss of business, revenue, profits, use or other economic advantage. Except for Smartsalez’s obligations to pay amounts due to Customer pursuant to Section 4 above, but subject to any limitations or other provisions contained in this Agreement which are applicable thereto, in no event shall the liability of Smartsalez or its Affiliates under this Agreement exceed the amount of Service Fees actually paid to or due to Smartsalez hereunder in the six (6) month period immediately preceding the event giving rise to such claim. Customer acknowledges and agrees that any and all claims Customer has or purports to have against Smartsalez and/or its Affiliates should be notified to Smartsalez and/or its Affiliates within one (1) year after the event(s) that gave rise to such claim and that Customer forfeits all rights in respect of that claim if Customer fails to do so. These limitations do not purport to limit liability that cannot be excluded by applicable law.
12. Term and Termination
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12.1. Term. This Agreement shall commence on the date that the Agreement is executed by Customer (electronically or otherwise) and shall continue until terminated as set forth herein.
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12.2. Termination. Either party may terminate this Agreement: (a) without cause at any time upon seven (7) days prior notice to the other party; (b) immediately, without notice, for the other party’s material breach of this Agreement; or (c) immediately, without notice, in the event of the insolvency or bankruptcy of the other party, or upon the other party’s filing or submission of request for suspension of payment (or similar action or event) against the terminating party. In addition, Smartsalez may terminate this Agreement or deactivate Customer or a particular Driver immediately, without notice, with respect to Customer and/or any Driver in the event Customer and/or any Driver, as applicable, no longer qualifies, under applicable law or the standards and Policy of Smartsalez, to provide Transportation Services or to operate the Vehicle, or as otherwise set forth in this Agreement.
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12.3. Effect of Termination. Upon termination of the Agreement, Customer and all Drivers, as applicable, shall: (a) promptly return to Smartsalez all Smartsalez Devices; and (b) immediately delete and fully remove the Driver App from any applicable Driver-‐Provided Devices. Outstanding payment obligations and Sections 1, 2.3, 2.5, 2.6.3, 4.7, 4.8, 5.3, 6, 7, 9, 10, 11, 12.3, 13, 14 and 15shall survive the termination of this Agreement.
13. Relationship of the Parties
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13.1. Except as otherwise expressly provided herein with respect to Smartsalez acting as the limited payment collection agent solely for the purpose of collecting payment from Users on behalf of Customer, the relationship between the parties under this Agreement is solely that of independent contractors. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment relationship (including from a labor law, tax law perspective), between Smartsalez and Customer or Smartsalez and any Driver; and (b) no joint venture, partnership, or agency relationship exists between Smartsalez and Customer or Smartsalez and any Driver.
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13.2. Customer has no authority to bind Smartsalez and undertakes not to hold itself out, and to ensure that each Driver does not hold himself or herself out, as an employee, agent or authorized representative of Smartsalez or its Affiliates. Where, by implication of mandatory law or otherwise, Customer or any Driver may be deemed an employee, agent or representative of Smartsalez, Customer undertakes and agrees to indemnify, defend (at Smartsalez’s option) and hold Smartsalez and its Affiliates harmless from and against any claims by any person, entity, regulators or governmental authorities based on such implied employment, agency or representative relationship.
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13.3. Customer expressly acknowledges and agrees that by agreeing to the terms and conditions of this Agreement, Customer intends to perform Transportation Services in a non-‐incidental manner and, as such, Smartsalez will consider Customer and its Drivers to be taxable persons in accordance with all applicable VAT and indirect tax legislation.
14. Miscellaneous Terms
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14.1. Modification. Smartsalez reserves the right to modify the terms and conditions of this Agreement or the Driver Addendum at any time, effective upon publishing an updated version of this Agreement or the Driver Addendum, as applicable, on the online portal available to Customer on the Smartsalez Services. Smartsalez reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Customer hereby acknowledges and agrees that, by using the Smartsalez Services, or downloading, installing or using the Driver App, Customer is bound by any future amendments and additions to this Agreement, information referenced at hyperlinks herein, or documents incorporated herein, including with respect to Fare Calculations. Continued use of the Smartsalez Services or Driver App after any such changes shall constitute Customer’s consent to such changes.
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14.2. Supplemental Terms. Supplemental terms may apply to Customer’s and Driver’s use of the Smartsalez Services, such as use Policy or terms related to certain features and functionality and/or zero tolerance/shipping Policy, which may be modified from time to time (“Supplemental Terms”). Customer may be presented with certain Supplemental Terms from time to time. Supplemental Terms are in addition to, and shall be deemed a part of, this Agreement. Supplemental Terms shall prevail over this Agreement in the event of a conflict.
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14.3. Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the remainder of this Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of this Agreement.
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14.4. Assignment. Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the other party. Smartsalez may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement from time to time without consent.
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14.5. Entire Agreement. This Agreement, including the recitals and all Supplemental Terms, constitutes the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In this Agreement, the words “including” and “include” mean “including, but not limited to.” The recitals form a part of this Agreement.
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14.6. No Third-Party Beneficiaries. Except as otherwise set forth in Section 2.5 above, Customer acknowledges that there are no third-party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
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14.7. Notices. Any notice delivered by Smartsalez to Customer under this Agreement will be delivered by email to the email address associated with Customer’s account or by posting on the online portal available to the Customer on the Smartsalez Services. Any notice delivered by Customer to Smartsalez under this Agreement will be delivered by contacting Smartsalez on legal@Smartsalez.in and/or its support representatives. Additional Territory-‐specific notices may be required from time to time.
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14.8 Governing Law; Arbitration. This Agreement shall be governed exclusively by laws of India and the Parties expressly submit to the exclusive jurisdiction of the courts of Chennai. In the event of any dispute, claim or controversy arising under, or in relation to, this Agreement (“Dispute”), such Dispute shall be resolved by arbitration in accordance with the Arbitration and Conciliation Act, 1996. The Dispute shall be settled by a sole arbitrator, jointly appointed by the Parties. If the Parties are unable to appoint a sole arbitrator by way of mutual consent, then such arbitrator shall be appointed pursuant to the provisions of Section 11 of the Arbitration and Conciliation Act, 1996. The seat of arbitration shall be Chennai, India and the arbitration proceedings shall be governed by the provisions of the Arbitration and Conciliation Act, 1996, as amended from time to time. All arbitration proceedings shall be conducted in English. The arbitration award shall be final and binding on the Parties and shall be enforceable in any competent court of law, and the Parties agree to be bound thereby and to act accordingly.
By clicking “I accept” on the Smartsalez App or signing below (as such may be required by applicable law), Customer expressly acknowledges that Customer has read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that Customer agrees to be bound by the terms and conditions of this Agreement, and that Customer is legally competent to enter into this Agreement with Smartsalez.
DRIVER ADDENDUM TO SERVICES AGREEMENT
This Driver Addendum to Services Agreement (“Addendum”) constitutes a legal agreement between an independent company in the business of providing transportation/logistics services (“Transportation/Logistics Company”) and an independent, for-hire transportation/logistics provider (“Driver”).
Driver currently maintains a contractual or employment arrangement with Logistics/Transportation Company to perform passenger carriage services or logistics services, as the case may be, for the Transportation and/or the Logistics Company.
Transportation Company and Moiter Workz Private Limited (“Smartsalez”) have separately entered into a Services Agreement (“Agreement”) in order for Transportation/Logistics Company to access the Smartsalez Services (as defined below).
In addition to the transportation/logistics services it regularly performs pursuant to his or her contractual arrangement with Transportation/Logistics Company, Driver is interested in receiving lead generation and related services through the Smartsalez Services. Transportation/Logistics Company and Driver desire to enter into this Addendum to define the terms and conditions under which Driver may receive such lead generation and related services.
In order to use the Smartsalez Services, Driver and Logistics/Transportation Company must agree to the terms and conditions that are set forth below. Upon Driver’s execution (electronic or otherwise) of this Addendum, Driver and Logistics/Transportation Company shall be bound by the terms and conditions set forth herein.
1. Definitions.
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1.1. “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest, the majority of the voting rights of such entity, the ability of such entity to ensure that the activities and business of that Affiliate are conducted in accordance with the wishes of that entity or the right to receive the majority of the income of that Affiliate on any distribution by it of all of its income or the majority of its assets on a winding up.
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1.2. “Device” means an Smartsalez Device or Driver-Provided Device, as the case may be.
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1.3. “Driver App” means Smartsalez’s mobile application that enables transportation providers to access the Smartsalez Services for the purpose of seeking, receiving and fulfilling on-demand requests for transportation/logistics services by Users, as may be updated or modified by Smartsalez at its discretion from time to time.
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1.4. “Driver App ID” means the identification and password key assigned by Smartsalez to a Driver that enables a Driver to use and access the Driver App.
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1.5. “Smartsalez Data” means all data related to the access and use of the Smartsalez Services hereunder, including all data related to Users (including User Information), all data related to the provision of Transportation and/or Logistics Services via the Smartsalez Services and the Driver App, and the Driver ID.
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1.6. “Smartsalez Device” means a mobile device owned or controlled by Smartsalez that is provided to Transportation and/or Logistics Company or a Driver for the sole purpose of such Driver using the Driver App to provide Transportation and/or Logistics Services and for no other purpose whatsoever.
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1.7. “Smartsalez Services” mean Smartsalez’s electronic services rendered via a digital technology platform, being on-demand intermediary and related services that enable transportation/logistics providers to seek, receive and fulfil on-demand requests for transportation/logistics services by Users seeking transportation/logistics services; such Smartsalez Services include Smartsalez’s software, websites, payment services, and related support services systems, as may be updated or modified by Smartsalez at its discretion from time to time.
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1.8 “Logistics Services” means the provision of logistics services to Users via the Smartsalez Services in the Territory by Logisctics/Transportation Company and its Drivers using the Vehicles, which would include but not limited to purchase of item(s) to deliver to the User(s) and pick-up an item from one point to deliver to the User(s), which would exclude certain item(s) as enlisted and updated from time to time under the Shipping Policy available on www.Smartsalez.in.
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1.9. “Territory” means the city or metro areas in India, which Transportation/Logistics Company and its Drivers are enabled by the Driver App to receive requests for Transportation and/or Logistics Services.
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1.10. “Transportation Services” means the provision of passenger transportation services to Users via the Smartsalez Services in the Territory by Transportation Company and its Drivers using the Vehicles.
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1.11. “User” means an end user authorized by Smartsalez to use Smartsalez’s mobile application for the purpose of obtaining Transportation and/or Logistics Services.
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1.12. “User Information” means information about a User made available to Transportation/Logistics Company or a Driver in connection with such User’s request for and use of Transportation/Logistics Services, which may include the User’s name, pick-up location, contact information and photo.
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1.13. “Vehicle” means any vehicle of Transportation Company that: (a) meets the then-current Smartsalez requirements for a vehicle on the Smartsalez Services; and (b) Smartsalez authorizes for use by a Driver for the purpose of providing Transportation and/or Logistics Services on behalf of Transportation/Logistics Company.
2. Use of the Smartsalez Services.
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2.1. Driver App IDs. Driver will be issued a Driver App ID for providing Transportation Services to enable Driver to access and use the Driver App on a Device in accordance with this Addendum. Driver will maintain his or her Driver App ID in confidence and not share it with any third party unless called upon to do so under a lawful order or by the law enforcement authorities during the course of investigation, and will immediately notify Transportation/Logistics Company of any actual or suspected breach or improper use or disclosure of the Driver App ID or the Driver App.
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2.2. Provision of Transportation/Logistics Services. When the Driver App is active, User requests for Transportation/Logistics Services may appear to Driver via the Driver App if Driver is available and in the vicinity of the User. If Driver accepts a User’s request for Transportation/Logistics Services, the Smartsalez Services will provide certain User information to Driver via the Driver App, including the User’s first name and pickup location. In order to enhance User satisfaction with the Smartsalez mobile application and Driver’s Transportation Services, it is recommended that Driver waits at least ten (10) minutes for a User to show up at the requested pick-up location. Driver will obtain the destination from the User, either in person upon pickup or from the Driver App if the User elects to enter such destination via Smartsalez’s mobile application. Driver acknowledges and agrees that once he or she has accepted a User’s request for Transportation Services, the Smartsalez Services may provide certain information about Driver to the User, including Driver’s first name, contact information, Transportation Company entity name, photo and location, and Driver’s Vehicle make and license plate number. Driver shall not contact Users or use any User’s personal data for any reason other than for the purposes of fulfilling Transportation/Logistics Services. Driver agrees that his or her contact and/or insurance information may be released to a User upon such User’s reasonable request. Driver may not, unless specifically consented to by a User, transport or allow individuals other than a User and any individuals authorized by such User during the performance of Transportation Services for such User. Driver shall transport all Users directly to their specified destination or otherwise complete all logistics related tasks, as directed by the applicable User, without unauthorized interruption or unauthorized stops.
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2.3. Driver’s Relationship With Smartsalez. Smartsalez does not, and shall not be deemed to, direct or control Driver generally or in Driver’s performance of Transportation/Logistics Services or maintenance of any Vehicle(s). Driver acknowledges that Smartsalez does not control, or purport to control: (a) when or for how long Driver will utilize the Driver App or the Smartsalez Services; or (b) Driver’s decision, via the Driver App, to attempt to accept or to decline or ignore a User’s request for Transportation/Logistics Services, or to cancel an accepted request for Transportation/Logistics Services, via the Driver App, subject to Smartsalez’s then-current cancellation Policy. Driver may be deactivated or otherwise restricted from accessing or using the Driver App or the Smartsalez Services in the event of a violation of this Addendum or Transportation/Logistics Company’s violation of the Agreement, or Driver’s or Transportation/Logistics Company’s disparagement of Smartsalez or any of its Affiliates, or Driver’s or Transportation/Logistics Company’s act or omission that causes harm to Smartsalez’s or any of its Affiliates’ brand, reputation or business as determined by Smartsalez in its sole discretion. Smartsalez also retains the right to deactivate or otherwise restrict Driver from accessing or using the Driver App or the Smartsalez Services for any other reason at the sole and reasonable discretion of Smartsalez. Additionally, Driver acknowledges Smartsalez’s rights in the SMARTSALEZ family of trademarks and names, including SMARTSALEZ, alone and in combination with other letters, punctuation, words, symbols and/or designs, the SMARTSALEZ Logo (“SMARTSALEZ Marks and Names”). Driver agrees that he or she will not try to register or otherwise claim ownership in any of the SMARTSALEZ Marks and Names, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark or name.
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2.4. Ratings.
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2.4.1. Driver agrees that: (a) after receiving a request for Logistics/Transportation Services, a User will be prompted by Smartsalez’s mobile application to provide a rating of such Transportation Services and Driver and, optionally, to provide comments or feedback about such Transportation Services and Driver; and (b) after providing Transportation Services, Driver will be prompted by the Driver App to provide a rating of the User and, optionally, to provide comments or feedback about the User. Driver shall provide ratings and feedback in good faith.
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2.4.2. In order to continue to receive access to the Driver App and the Smartsalez Services, Driver acknowledges that he or she must maintain an average rating by Users that exceeds the minimum average acceptable rating established by Smartsalez for the Territory, as may be updated from time to time by Smartsalez in its sole discretion (“Minimum Average Rating”). In the event Driver’s average rating falls below the Minimum Average Rating, Driver may be provided a limited period of time to raise his or her average rating above the Minimum Average Rating. Driver agrees that if Driver does not increase his or her average rating above the Minimum Average Rating within the time period allowed (if any), Smartsalez may deactivate such Driver’s access to the Driver App and the Smartsalez Services. Driver agrees that repeated failure to accept User requests for Transportation Services while Driver is logged in to the Driver App creates a negative experience for Users of Smartsalez’s mobile application. Accordingly, Driver agrees that if they are logged in to the Driver App, they will strive to accept a substantial portion of User requests for Transportation/Logistics Services, and that if they do not wish to accept User requests for Transportation/Logistics Services for a period of time, they will log off of the Driver App.
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2.4.3. Smartsalez and its Affiliates reserve the right to use, share and display Driver and User ratings and comments in any manner in connection with the business of Smartsalez and its Affiliates without attribution to or approval of Driver. Driver acknowledges that Smartsalez and its Affiliates are distributors (without any obligation to verify) and not publishers of Driver and User ratings and comments, provided that Smartsalez and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws or Smartsalez’s or its Affiliates’ content Policy.
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2.5. Devices. If Driver receives any Smartsalez Device(s), Driver acknowledges that such Device(s): (a) are only to be used for the purposes of enabling Driver’s access to the Smartsalez Services; and (b) may not be transferred, loaned, sold or otherwise provided in any manner to any other party. If Driver elects to use any Driver-Provided Device(s), Driver acknowledges that Smartsalez is not responsible for the acquisition, cost or maintenance of any such Driver- Provided Device(s) or any necessary wireless data plan. Smartsalez shall make available the Driver App for installation on such Driver-Provided Devices. Driver agrees to not provide, distribute or share, or enable the provision, distribution or sharing of, the Driver App (or any data associated therewith) with any third party. Driver will delete and fully remove the Driver App from the Driver-Provided Device in the event that Transportation Company and/or Driver ceases to provide Transportation Services using the Driver- Provided Device. Driver agrees that: (i) use of the Driver App on a Driver-Provided Device requires an active data plan with a wireless carrier associated with the Driver-Provided Device, which data plan will be provided by either Transportation Company or Driver at their own expense; and (ii) use of the Driver App on a Driver-Provided Device as an interface with the Smartsalez Services may consume very large amounts of data through the data plan. Smartsalez advises that Driver-provided Devices only be used under a data plan with unlimited or very high data usage limits, and Smartsalez shall not be responsible or liable for any fees, costs or overage charges associated with any data plan.
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2.6. Location Based Services. Driver acknowledges and agrees that his or her geo-location information must be provided to the Smartsalez Services via a Device in order to provide the Transportation Services. Driver acknowledges and agrees that: (a) his or her geo-location information will be monitored and tracked by the Smartsalez Services when Driver is logged into the Driver App and available to receive requests for Logistics/Transportation Services, or when Driver is providing Logistics/Transportation Services; and (b) the approximate location of Driver’s Vehicle will be displayed to the User before and during the provision of Logistics/Transportation Services to such User. In addition, Smartsalez may monitor, track and share Driver’s geo- location information obtained by the Driver App and Device for safety, security, technical, marketing and commercial purposes, including to provide and improve Smartsalez’s products and services.
3. Driver Requirements
Driver agrees that he or she shall will at all times: (a) hold and maintain (i) a valid driver's license with the appropriate level of certification to operate the Vehicle assigned to them, and (ii) all licenses, permits, approvals and authority necessary to provide passenger transportation services to third parties in the Territory; (b) possess the appropriate and current level of training, expertise and experience to provide Transportation/Logistics Services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. Driver agrees that he or she may be subject to certain background and driving record checks from time to time in order to qualify to provide, and remain eligible to provide, Transportation and/or Logisitics Services. Driver may be deactivated from or otherwise restricted from accessing or using the Driver App or the Smartsalez Services if Driver fails to meet the requirements set forth in this Driver Addendum or if Transportation/Logistics Provider fails to meet the requirements set forth in the Agreement.
4. Modification.
From time to time, Driver may be required to enter into updated versions of this Addendum in order to continue to have access to the Driver App and the Smartsalez Services.
5. Privacy.
Subject to all applicable laws, Smartsalez may provide to a third party any information (including personal data and any Smartsalez Data) about Driver provided under the Agreement if: (a) there is a complaint, dispute or conflict, including an accident, between Driver and a User; (b) it is necessary to enforce the terms of the Agreement; (c) it is required, in Smartsalez’s or any Affiliate’s sole discretion, by applicable law or regulation; (d) it is necessary, in Smartsalez’s or any Affiliate’s sole discretion, to protect the safety, rights, property or security of Smartsalez, the Smartsalez Services or any third party; to detect, prevent or otherwise address fraud, security or technical issues; and/or to prevent or stop activity which Smartsalez or any of its Affiliates, in their sole discretion, consider to be, or to pose a risk of being, illegal, unethical or legally actionable; or (e) it is required or necessary, in Smartsalez’s or any Affiliate’s sole discretion, for insurance or other purposes related to Driver’s ability to qualify, or remain qualified, to use the Smartsalez Services. Driver understands that Smartsalez may retain Driver’s personal data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated. Smartsalez processes personal data (including that referenced in Section 2.6 above) in accordance with its privacy policy located at http://www.Smartsalez.in/.
6. Insurance.
Driver represents and agrees that he or she holds or is otherwise covered by a valid policy of liability insurance (in industry-standard coverage amounts) with respect to Driver’s operation of the Vehicle(s) under this Addendum.
7. No Third-Party Beneficiary.
The parties acknowledge that Smartsalez is a third-party beneficiary to this Addendum. Smartsalez will have the irrevocable right (and will be deemed to have accepted the right unless this is rejected promptly after receipt of a copy of the executed Addendum) to enforce the Addendum against Transportation/Logistics Company and Driver as a third-party beneficiary thereof.
By clicking “I accept” on the Smartsalez App or signing below (as such may be required by applicable law), Driver expressly acknowledges that he or she: (i) has read and understood this Addendum; (ii) has had the opportunity to consult with others (including an attorney) regarding this Addendum; (iii) agrees to be bound by the terms and conditions of this Addendum; and (iv) is legally competent to enter into this Addendum.
Pick Up and Drop Off Terms
These pick up and drop off terms (“PND Terms”) are published in accordance with the provisions of Rule 3 (1) of the Information Technology (Intermediaries guidelines) Rules, 2011 that require publishing the rules and regulations, privacy policy. In this case, these rules and regulations with respect to Moiter Workz Private Limited (“Smartsalez”) will include, (i) these PND Terms, (ii) Terms of Use (https://Smartsalez.in/terms), and the (iii) the Privacy Policy (https://Smartsalez.in/privacy), for access or usage of www.Smartsalez.in (“Website”) and the Smartsalez mobile application (“Smartsalez App”).
This document is an electronic record in terms of the Information Technology Act, 2000 and rules there under as applicable and the amended provisions pertaining to electronic records in various statutes as amended by the Information Technology Act, 2000.
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1. As agreed by you in the Terms of Use, Smartsalez enables a registered user of the Smartsalez App to connect with independent service providers (“Smartsalez Partner”), to fulfil tasks raised by such user. Such tasks could include, tasks to pick up and drop items from one location (“Pick-Up Location”) and to drop to another location (“Drop Location”) (such pick up and drop off tasks, “Pick-up/Drop-off Task(s)”).
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2. You understand and agree that the pick-up and drop service is provided to you by the Smartsalez Partner directly. Smartsalez merely acts as a technology platform to facilitate such tasks raised by you, and Smartsalez does not assume any responsibility or liability for any deficiency in the service on part of the Smartsalez Partner.
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3. You agree that if the Smartsalez Partner picks up certain item(s) from a Pick-Up Location on Your behalf, the Smartsalez Partner does so on your sole instructions under the task raised by you. Smartsalez is not a retail store, restaurant, food delivery service, merchandise delivery service, a courier or shipping service or food preparation entity.
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4. You acknowledge and agree that the Pick-Up Location and the Drop Location have been voluntarily added by you on the Smartsalez App. You agree that your location data is collected in accordance with Smartsalez’s Privacy Policy.
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5. You agree that you shall not request for a Pick-up/Drop-off Task on the Smartsalez App, for item(s) which are illegal, hazardous, dangerous, or otherwise restricted or constitute items which are prohibited by any statute or law or regulation.
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6. You agree that before initiating a Pick-up/Drop-off Task on the Smartsalez Platform, you are well aware of these contents of the package sent or requested by you through registered Smartsalez Partners, and that such contents are legal and within limits of transportation under any applicable law. Such contents shall not be restricted and/or banned and/or dangerous and/or prohibited for carriage ( such items include, but are not limited to, radio-active, incendiary, corrosive or flammable substances, hazardous chemicals, explosives, firearms or parts thereof and ammunition, firecrackers, cyanides, precipitates, gold and silver ore, bullion, precious metals and stones, jewelry, semi-precious stones including commercial carbons or industrial diamonds, currency (paper or coin) of any nationality, securities (including stocks and bonds, share certificates and blank signed share transfer forms), coupons, stamps, negotiable instruments in bearer form, cashier's cheques, travellers’ cheques, money orders, passports, credit/debit/ATM cards, antiques, works of art, lottery tickets and gambling devices, livestock, fish, insects, animals, plants and plant material, human corpses, organs or body parts, blood, urine and other liquid diagnostic specimens, hazardous or bio-medical waste, wet ice, pornographic materials, contraband, bottled alcoholic beverages or any intoxicant or narcotics and psychotropic substances ).
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7. You also agree that you shall not request for dispatch of item(s) which require a special transportation permit or require any special license under applicable law.
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8. You are also aware that the Smartsalez Partner may choose to not deliver item(s) for any reason whatsoever.
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9. You also agree that, upon becoming aware of the commission any offence or your intention to commit any offence upon initiating or during a Pick-up/Drop-off Task of any item(s) stipulated under paragraph 6 of these PND Terms or otherwise restricted under applicable law, the Smartsalez Partner may report such information to the law enforcement authorities.
Cancellations
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As a general rule you shall not be entitled to cancel your order once you have received confirmation of the same. If you cancel your order after it has been confirmed, Smartsalez shall have a right to charge you cancellation fee of a minimum INR 20 upto the order value.
Merchant Terms
Merchant (Pharmacy) Partner Terms of use
The Smartsalez Master Framework Letter (“Letter”) along with the Merchant Partner Terms of Use (“Terms”), represents and confirms our mutual Terms with respect to the Merchant Partner’s participation on the proprietary mobile platform currently made available by Moiter Workz Private Limited (“Smartsalez” or “us”) or its affiliates, from time-to-time, and referred to as the “Smartsalez App”. Upon signing by both parties, the Letter and the Smartsalez Merchant Terms of Use binding and enforceable legal contract between you and Smartsalez as of the date set forth above (“Effective Date”)
The Terms with you are as follows:
1. Structure of Terms
Our Terms shall consist of this Letter, together with the addenda (individually, an “Addendum”) addressing areas of collaboration agreed to by both of us (this Letter and any and all such Addenda are collectively the “Terms”). In connection with each Addendum, we will designate those actions, responsibilities and services to be respectively provided by each of us. In the event of a conflict, the terms contained in an Addendum will supersede conflicting terms contained in these Terms.
2. Intended Projects
We each agree to work in good faith with one another on certain collaborative projects, (as described below) or other projects as we mutually agree, in connection with the item(s), which include medicines, cosmetics, other licensed drugs and health products made available [each an “Item(s)”] via the Smartsalez App. Each project will be further specified in an Addendum, and any such project will only be undertaken once we mutually execute such Addendum.
3.
The suggested search term(s) or Merchant item(s) visible on the Smartsalez App is the general availability of Item(s) during the Merchant’s normal business hours. The Merchant’s customers (the “Buyers” and/or “Smartsalez App Users”/” User(s)”) may select Item(s) from the displayed search term(s)/listing(s) on the Smartsalez App.
4. Delivery
The “Smartsalez Web Dashboard” will be made available to the Merchant to access on-demand logistic services by Delivery Partners. For the sake of clarity, neither Smartsalez nor its affiliates provide any delivery or logistics services, but Smartsalez provides a platform for 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. “Delivery Partner” is defined as an independent contractor who intends to provide on demand delivery services using Smartsalez’s proprietary technology platform under license from Smartsalez or one of its affiliates. Smartsalez will not have any obligation to deliver the Item(s) as a platform provider. For purposes of delivery of the Items, Smartsalez and the Delivery Partners shall operate (i) under cover of any approval, license or permission required to operate your business at the Merchant Outlet and sell the Item(s) and (ii) under your control, as your agent (including but not limited to receipt agent of Item charges and based on your instructions, if applicable, apply the Item 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 and you maintain possession, control and care of the Items 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 Policy. Smartsalez will not be liable for any damage or loss incurred by the Users in relation to the delivery of the Items and will follow reasonable guidance you provide regarding the delivery of the Items.
5. Availability of Item(s)
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5.a. Item(s). Smartsalez will provide you reasonable advice regarding demand prediction, which you may use in connection with your determination of the quantity and type of Items made available via the Smartsalez App. You are fully responsible for quality, safety and delivery of the Items and you shall adhere to all applicable laws and regulations in relation to the preparation, provision, packaging and delivery of the Items. You will determine any quality, portion, size, ingredient or other criteria (including those of laws and regulations) that apply to the Items (“Criteria”) and you are solely responsible for ensuring that the Items meet such criteria when then are made available via the Smartsalez App. In the event of failing to provide Items that adhere to the Criteria (each, a “Substandard Item”), Smartsalez is under no obligation to make such Substandard Items available for sale via the Smartsalez App.
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5.b. Taxes. You are responsible for determining and setting the retail price (“Retail Price”) for each Item and duly informing Smartsalez from time to time, including any Item discount(s)/discounts on offer from time to time. You shall be the “retailer” or “seller” of all 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 Item shall include Indirect Tax, as applicable. You undertake that all applicable taxes on 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.
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5.c. Item Inventory. You maintain title to all Item inventory until each Item is delivered to a User. You are responsible for the costs of all Items. Whenever a User wishes to avail Items or Service as identified by the App, Smartsalez will notify the Merchant 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 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 Merchant Partner to process any order, the Merchant Partner must seek further information as required.
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5.d. Notwithstanding these Terms, Smartsalez reserves the right to temporarily discontinue Services or permanently terminate with immediate effect for material breach or non-compliance by the Merchant Partner which includes, but is not limited to, the following instances:
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(i). User/Buyer complaints received by Smartsalez which are directly or indirectly attributable to the quality of item(s) provided by the Merchant Partner either through poor ratings, as defined by Smartsalez, through calls placed with Smartsalez or through any other means;
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(ii). Sale of medicines requiring a prescription, without one to the User or the sale of medicines which are below the standard quality or prohibited from sale under any law;
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(iii). Breach of the provisions of the Drugs and Cosmetics Act, 1940 and the rules, including any other law applicable to the Merchant Partner;
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(iv). Breach of the representations and warranties of the Merchant Partner; or
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(v). Any other material breach of the terms.
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Notwithstanding anything contained under this Terms, Smartsalez has the right to immediately delist any of the item(s) from the Platform, which is not in compliance with applicable law or the rules or regulations, made thereunder.
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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 Partner, including but not limited to, User’s expectations not being met or User dissatisfaction in relation to, inter alia, the quality of the Item(s), undelivered Item(s), discrepancy in the Item(s) delivered which is not in accordance with the Item placed and/or those Item(s) for which User requests for a replacement. (“Disputed Orders”) Any such User(s) request a refund for any Item(s) (including, without limitation, any costs associated with retrieving any such Item(s), if applicable), for reasons that are considered by Smartsalez in its sole discretion as reasonable, for (i) request by the Users of refund or (ii) acceptance by the Delivery Partner of the request. Smartsalez may deduct refunds from the payment made to you under these Terms.
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5.f. It is clarified that Smartsalez shall not be liable to make any payment for a Disputed Order. Smartsalez shall reserve the right to recover from Merchant Partner, the amount paid to Users/Buyers as refund upto the order value.
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5.g. In case of complaints from the User pertaining to item quality, or any other such issues, Smartsalez shall notify the same to Merchant Partner and shall also redirect the Buyer to the consumer call center of the Merchant. Merchant Partner shall alone be liable for redressing and bound to take action on the complaints by the User. Smartsalez has the right to share with the Merchant Partner, the relevant information including the Merchant details to enable satisfactory resolution of the complaint. Smartsalez shall in the interest of satisfactory resolution of the Complaint, share with the User, relevant information pertaining to the Order along with Merchant details.
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5.h. Service Fee. In consideration for use of the Smartsalez App, Smartsalez 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.
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5.i. Smartsalez does not guarantee that you will be matched with the Delivery Partner at the time you wish to be matched. Smartsalez shall not be liable for any failure to match.
6. Promotional Activities
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6.a. Marketing. Smartsalez will each showcase the availability of the Items via the Smartsalez App through various promotional activities (e.g., our respective social media channels, websites, or blogs), as mutually agreed.
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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 Smartsalez, 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.
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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.
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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 agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of performing the services contemplated by this Terms. Merchant shall maintain the accuracy and integrity of any Personal Data provided by Smartsalez in its possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by Smartsalez solely by using the software and tools provided by Smartsalez.
7. Non-Exclusive
We each acknowledge and agree that, unless otherwise stated in a Letter/Addendum, our relationship is non-exclusive.
8. Confidential Information
“Confidential Information” means any confidential, proprietary or other non-public information disclosed by one party (the “Discloser”) to the other (the “Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information will not include that information that (a) was previously known to the Recipient without an obligation of confidentiality; (b) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (c) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties, or use in any way other than as necessary to perform this Terms, the Discloser’s Confidential Information. Each Recipient will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective of the Discloser as this Terms before such individual has access to the Discloser’s Confidential Information. Each Recipient will not, and will not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on disclosure of Confidential Information will not apply to the extent the Discloser has authorized such disclosure, nor to the extent a Recipient is required to disclose certain Confidential Information of the Discloser as a legal obligation based on the applicable laws and regulations or order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in filing petition of objection etc. prior to making such disclosure. Upon expiration or termination of this Terms and as requested by a Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
9. Representations and Warranties; Disclaimer
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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 item 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.
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9.b. The Merchant 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 Drugs and Cosmetics Act, 1940 and rules and regulations made thereunder, including any law applicable to its engagement of Delivery Partners.
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9.c. The Merchant further represents and warrants that the details of the tax registrations provided by the Merchant and Indirect tax to be levied on each item to be made available for sale via the Smartsalez App is as per Addendum II, forming integral part of this Terms. The Merchant further confirms and declares that the information provided in Addendum II and the copies of tax registrations, are true and correct, and assumes responsibility to intimate Smartsalez in case of any change in the provided information. The Merchant undertakes that all Indirect Tax applied on each Item and Delivery made available for sale via the Smartsalez App would be deposited with the Government Treasury within stipulated timelines.
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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
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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 wilful misconduct of the Indemnifying Party and its employees or agents (in your case, excluding Smartsalez 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 Smartsalez 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 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 Smartsalez or its employees, agents or Delivery Partners.
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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. Smartsalez does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, Smartsalez 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, Smartsalez will use its best endeavors to ensure that the unintentional operational errors do not occur, Smartsalez cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, Smartsalez’s aggregate liability under this Agreement and respective Terms of Use shall not exceed the total value of a Disputed Order.
12. Insurance
During the Term (as defined below) and for one (1) year thereafter, the Merchant shall maintain General Commercial Liability and, if required by law, Worker’s Compensation (or substantially equivalent) insurance. The General Commercial Liability insurance policy limits shall be the greater of (a) the limits required by applicable law or (b) the limits customarily maintained by companies in the merchant’s industry, in India. All Policy shall be written by reputable insurance companies in the jurisdiction. Such insurance shall be primary and non-contributing to any insurance maintained or obtained by the other party and shall not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon Smartsalez’s request, the Merchant shall provide evidence of the insurance required herein. In no event shall the limits of any policy be considered as limiting the liability of a Merchant under the Terms.
13. Term and Termination
Either Smartsalez or the Merchant Partner can terminate this contract providing 15 days’ prior written notice to the other. Smartsalez shall delist the Merchant Partner at the end of the 15th Day. Upon termination in accordance with the terms hereof, Merchant Partner shall only be required to service Item(s) already placed through Smartsalez prior to such expiry or earlier termination of these Terms, and Smartsalez shall be entitled to receive Service Fee for such Item(s).
14. No Waiver
No failure or delay by any Party in exercising any right, power or remedy under these Terms of Use or provided by law shall operate as a waiver thereof or affect that right, power or remedy. No waiver by any Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof.
15. Relationship
The Parties agree that nothing in this Terms shall be construed as creating the relationship of employer and employee, master and servant, or principal and agent, or a partnership, or a joint venture of any kind whatsoever between the Parties or between the parties and its respective contractors / employees.
16. Governing Law
This Terms of Use shall be governed by and construed in accordance with the laws of India. Any dispute arising out of or in connection with Services, which the Parties are unable to settle within 30 days, shall be referred to arbitration by a sole arbitrator appointed mutually by both Parties. The Arbitration shall be conducted in accordance with Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification thereof for the time being in force. The venue of the arbitration shall be Chennai and the arbitration shall be conducted in English language. Subject to the foregoing, the courts at Chennai shall have exclusive jurisdiction.
17. Severability
If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Terms of Use which can be given effect without the invalid provision shall continue in full force and effect and shall in no way be impaired or invalidated.
18. Notice
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All notices under these Terms shall be sent by registered post acknowledgment due, contemporaneous courier or email to the address mentioned below:
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Moiter Workz Private Limited having its office at No.20/5 Subbarayan Street, Nungambakkam Chennai, TN 600034
19.
If the Merchant Partner notices any discrepancy in the weekly settlement, the Merchant Partner may raise a ticket by writing an email to merchantsupport@Smartsalez.in and the same will be mutually resolved by both parties within 15 days from the date on which the ticket was raised.
20.
The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
21.
Any modification or amendment to this Terms shall be effective only if in writing and signed or sealed with print name by both parties. In the event any provision of this Terms is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Terms and each of the remaining terms and conditions contained herein) shall remain in full force and effect.
22.
Any delay in or failure by either party in performance of this Terms shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Terms. This Terms may not be assigned, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Terms, upon notice to the other party, to (a) an affiliate of Smartsalez (for Smartsalez), or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets. Subject to the foregoing, this Terms shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns. Nothing in this Terms shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as specifically set forth in Section 3 above), and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto. Each party shall be solely responsible for its employees and contractors used in connection with this Terms. This Terms contains the full and complete understanding and Terms between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and Terms, whether oral or written, relating such subject matter hereof. This Terms may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format or exchange by hard-copy, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.
Addendum I
Special Terms
1. Reporting
Smartsalez will give you information regarding the number of Items picked up by Delivery Partners and sold by you to the Users pursuant to the Terms. The Merchant Partner shall maintain such documents to record the proof of delivery of product or performance of service. Without prejudice to the generality of the aforesaid, Merchant shall routinely and at such time intervals provide such reports and in such formats as may be specified by the Company.
2. Payment
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2.a. Service Fee. In consideration for Smartsalez’s lead generation, demand prediction, payment processing and other related services provided via the Smartsalez App under the Terms, Smartsalez will charge you a service fee, agreed under the Letter and reiterated under the Addendum II (exclusive of Indirect Tax and withholding tax, if any) on Item Value, as defined under the Letter or (the “Service Fee”). This Service Fee is charged as consideration for expediting the Users’ orders via the Smartsalez App.
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2.b. Goods and services tax (“GST”). Collection by Smartsalez from Users on your behalf would be subject to tax deduction or collection at source in accordance with the applicable GST laws.
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2.c. Remittance. Smartsalez will remit to you the total (i) Item Payment (including any Indirect Tax collected on your behalf but reduced by the Service Fee, 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 Revenue”).
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2.d. Item Revenue received by Smartsalez from the User on behalf of the Merchant Partner will be settled into the Merchant Partner’s bank account, details of which are set forth in Addendum II. 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 Partner agrees to provide such documents and information necessary or as may be sought by a payment facilitator or bank to enlist the Merchant Partner as a payee of Smartsalez. The Merchant Partner agrees that for this purpose, information about and provided by the Merchant 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.
ADDENDUM II
TAX DETAILS OF THE MERCHANT
1. Details of Tax Registrations
Details of Registration |
Registration Number |
Permanent Account Number |
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Goods & Service Tax Registration |
2. Indirect Taxes to be levied on each Item enlisted on the Smartsalez App
Nature of Tax |
Percentage Levy |
Central Goods & Service Tax |
|
State Goods & Service Tax |
|
Integrated Goods & Service Tax |
3. Other Charges to be levied on each Item enlisted on the Smartsalez App
Nature of Charges |
Percentage / Amount |
Packaging Charges |
OTHER DETAILS
Name of Merchant Partner |
|
Effective Date |
|
Registered Address of the Merchant Partner |
|
Service Address, Email, Telephone numbers, User/Customer Complaint Redressal Number |
|
Merchant Partner contact person |
|
Service Fee |
% of the Item Value. |
Mode of Payment Settlement |
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Bank Account details of the Merchant Partner |
Merchant (Grocery) Partner Terms of use
The Smartsalez Master Framework Letter (“Letter”) along with the Restaurant/Merchant Partner Terms of Use (“Terms”), represents and confirms our mutual Terms with respect to the Restaurant/Merchant Partner’s participation on the proprietary mobile platform currently made available by Moiter Workz Private Limited (“Smartsalez” or “us”) or its affiliates, from time-to-time, and referred to as the “Smartsalez App”. Upon signing by both parties, the Letter and the Smartsalez Restaurant/Merchant Terms of Use binding and enforceable legal contract between you and Smartsalez as of the date set forth above (“Effective Date”)
The Terms with you are as follows:
1. Structure of Terms
Our Terms shall consist of this Letter, together with the addenda (individually, an “Addendum”) addressing areas of collaboration agreed to by both of us (this Letter and any and all such Addenda are collectively the “Terms”). In connection with each Addendum, we will designate those actions, responsibilities and services to be respectively provided by each of us. In the event of a conflict, the terms contained in an Addendum will supersede conflicting terms contained in these Terms.
2. Intended Projects
We each agree to work in good faith with one another on certain collaborative projects, (as described below) or other projects as we mutually agree, in connection with the food or packaged food item(s) or any grocery item(s) and/or beverages the Restaurant/Merchant makes available (each, a “Meal” or “Item(s)”, as interchangeably used under these Terms) via the Smartsalez App. Each project will be further specified in an Addendum, and any such project will only be undertaken once we mutually execute such Addendum.
3.
The suggested search term(s) or Restaurant/Merchant item(s) visible on the Smartsalez App is the general availability of Meals during the Restaurant’s normal business hours. The Restaurant/Merchant’s customers (the “Buyers” and/or “Smartsalez App Users”/” User(s)”) may select Meals from the displayed search term(s)/listing(s) on the Smartsalez App.
4. Delivery
The “Smartsalez Web Dashboard” will be made available to the Restaurant/Merchant to access on-demand logistic services by Delivery Partners. For the sake of clarity, neither Smartsalez nor its affiliates provide any delivery or logistics services, but Smartsalez provides a platform for restaurants/outlets like yours to connect with Delivery Partners for delivery services and to receive demand prediction, payment processing and related information services in connection with the sale of the Meals. “Delivery Partner” is defined as an independent contractor who intends to provide on demand delivery services using Smartsalez’s proprietary technology platform under license from Smartsalez or one of its affiliates. Smartsalez will not have any obligation to deliver the Item(s) as a platform provider. For purposes of delivery of the Meals, Smartsalez and the Delivery Partners shall operate (i) under cover of any approval, license or permission required to operate your business at the Restaurant/Merchant Outlet and sell the Meal and (ii) under your control, as your agent (including but not limited to receipt agent of meal charges and based on your instructions, if applicable, apply the meal charges collected on your behalf towards disbursal of the fee payable by you to Delivery Partner), and not employee. For the sake of clarity, you, through the services provided by Delivery Partners, are responsible for the delivery of Meals and you maintain possession, control and care of the Meals at all times. You shall have marketable legal right and title to sell the products or render the services. You shall not offer any products or services which are illegal, unlawful, expired and in violation of applicable laws and Policy. Smartsalez will not be liable for any damage or loss incurred by the Users in relation to the delivery of the Meals and will follow reasonable guidance you provide regarding the delivery of the Meals.
5. Availability of Meal(s)/Item(s)
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5.a. Meal(s)/Item(s). Smartsalez will 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 Smartsalez 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 Smartsalez App. In the event of failing to provide Meals/Items that adhere to the Criteria (each, a “Substandard Meal/Item”), Smartsalez is under no obligation to make such Substandard Meals/Items available for sale via the Smartsalez App.
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5.b. Taxes. You are responsible for determining and setting the retail price (“Retail Price”) for each Meal/Item and duly informing Smartsalez 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.
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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, Smartsalez will notify the Restaurant 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 Restaurant 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 Partner must seek further information as required.
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5.d. Notwithstanding these Terms, Smartsalez reserves the right to temporarily discontinue Services or permanently terminate with immediate effect for material breach or non-compliance by the Restaurant Partner which includes, but is not limited to, the following instances:
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(i). User/Buyer complaints received by Smartsalez which are directly or indirectly attributable to the quality of food provided by the Restaurant Partner either through poor ratings, as defined by Smartsalez, through calls placed with Smartsalez or through any other means;
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(ii). Breach of the provisions of the Food Safety and Standards Act, 2006 and the rules and regulations, made thereunder, by Restaurant Partner;
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(iii). Breach of the representations and warranties of the Restaurant Partner; or
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(iv). Any other material breach of the terms.
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Notwithstanding anything contained under this Terms, Smartsalez has the right to immediately delist any of the 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.
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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 Restaurant 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 Smartsalez in its sole discretion as reasonable, for (i) request by the Users of refund or (ii) acceptance by the Delivery Partner of the request. Smartsalez may deduct refunds from the payment made to you under these Terms.
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5.f. It is clarified that Smartsalez shall not be liable to make any payment for a Disputed Order. Smartsalez shall reserve the right to recover from Restaurant Partner, the amount paid to Users/Buyers as refund upto the order value.
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5.g. In case of complaints from the User pertaining to food efficacy, quality, or any other such issues, Smartsalez shall notify the same to Restaurant Partner and shall also redirect the Buyer to the consumer call center of the Restaurant. Restaurant Partner shall alone be liable for redressing and bound to take action on the complaints by the User. Smartsalez has the right to share with the Restaurant Partner, the relevant information including the Restaurant details to enable satisfactory resolution of the complaint. Smartsalez shall in the interest of satisfactory resolution of the Complaint, share with the User, relevant information pertaining to the Order along with Restaurant details.
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5.h. Service Fee. In consideration for use of the Smartsalez App, Smartsalez 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.
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5.i. Smartsalez does not guarantee that you will be matched with the Delivery Partner at the time you wish to be matched. Smartsalez shall not be liable for any failure to match.
6. Promotional Activities
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6.a. Marketing. Smartsalez will each showcase the availability of the Meals via the Smartsalez App through various promotional activities (e.g., our respective social media channels, websites, or blogs), as mutually agreed.
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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 Smartsalez, 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.
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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.
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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. Restaurant agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of performing the services contemplated by this Terms. Restaurant shall maintain the accuracy and integrity of any Personal Data provided by Smartsalez in its possession, custody or control. Restaurant agrees to retain Personal Data provided to Restaurant by Smartsalez solely by using the software and tools provided by Smartsalez.
7. Non-Exclusive
We each acknowledge and agree that, unless otherwise stated in a Letter/Addendum, our relationship is non-exclusive.
8. Confidential Information
“Confidential Information” means any confidential, proprietary or other non-public information disclosed by one party (the “Discloser”) to the other (the “Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information will not include that information that (a) was previously known to the Recipient without an obligation of confidentiality; (b) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (c) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties, or use in any way other than as necessary to perform this Terms, the Discloser’s Confidential Information. Each Recipient will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective of the Discloser as this Terms before such individual has access to the Discloser’s Confidential Information. Each Recipient will not, and will not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on disclosure of Confidential Information will not apply to the extent the Discloser has authorized such disclosure, nor to the extent a Recipient is required to disclose certain Confidential Information of the Discloser as a legal obligation based on the applicable laws and regulations or order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in filing petition of objection etc. prior to making such disclosure. Upon expiration or termination of this Terms and as requested by a Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
9. Representations and Warranties; Disclaimer
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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.
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9.b. The Restaurant 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.
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9.c. The Restaurant further represents and warrants that the details of the tax registrations provided by the Restaurant and Indirect tax to be levied on each meal to be made available for sale via the Smartsalez App is as per Addendum II, forming integral part of this Terms. The Restaurant further confirms and declares that the information provided in Addendum II and the copies of tax registrations, are true and correct, and assumes responsibility to intimate Smartsalez in case of any change in the provided information. The Restaurant undertakes that all Indirect Tax applied on each Meal and Delivery made available for sale via the Smartsalez App would be deposited with the Government Treasury within stipulated timelines.
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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
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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 wilful misconduct of the Indemnifying Party and its employees or agents (in your case, excluding Smartsalez 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 Smartsalez 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 Smartsalez or its employees, agents or Delivery Partners.
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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. Smartsalez does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, Smartsalez 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, Smartsalez will use its best endeavors to ensure that the unintentional operational errors do not occur, Smartsalez cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, Smartsalez’s aggregate liability under this Agreement and respective Terms of Use shall not exceed the total value of a Disputed Order.
12. Insurance
During the Term (as defined below) and for one (1) year thereafter, the Restaurant shall maintain General Commercial Liability and, if required by law, Worker’s Compensation (or substantially equivalent) insurance. The General Commercial Liability insurance policy limits shall be the greater of (a) the limits required by applicable law or (b) the limits customarily maintained by companies in the restaurant industry, in India. All Policy shall be written by reputable insurance companies in the jurisdiction. Such insurance shall be primary and non-contributing to any insurance maintained or obtained by the other party and shall not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon Smartsalez’s request, the Restaurant shall provide evidence of the insurance required herein. In no event shall the limits of any policy be considered as limiting the liability of a Restaurant under the Terms.
13. Term and Termination
Either Smartsalez or the Restaurant Partner can terminate this contract providing 15 days’ prior written notice to the other. Smartsalez shall delist the Restaurant Partner at the end of the 15th Day. Upon termination in accordance with the terms hereof, Restaurant Partner shall only be required to service Meal(s) already placed through Smartsalez prior to such expiry or earlier termination of these Terms, and Smartsalez shall be entitled to receive Service Fee for such Meal(s).
14. No Waiver
No failure or delay by any Party in exercising any right, power or remedy under these Terms of Use or provided by law shall operate as a waiver thereof or affect that right, power or remedy. No waiver by any Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof.
15. Relationship
The Parties agree that nothing in this Terms shall be construed as creating the relationship of employer and employee, master and servant, or principal and agent, or a partnership, or a joint venture of any kind whatsoever between the Parties or between the parties and its respective contractors / employees.
16. Governing Law
This Terms of Use shall be governed by and construed in accordance with the laws of India. Any dispute arising out of or in connection with Services, which the Parties are unable to settle within 30 days, shall be referred to arbitration by a sole arbitrator appointed mutually by both Parties. The Arbitration shall be conducted in accordance with Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification thereof for the time being in force. The venue of the arbitration shall be Chennai and the arbitration shall be conducted in English language. Subject to the foregoing, the courts at Chennai shall have exclusive jurisdiction.
17. Severability
If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Terms of Use which can be given effect without the invalid provision shall continue in full force and effect and shall in no way be impaired or invalidated.
18. Notice
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All notices under these Terms shall be sent by registered post acknowledgment due, contemporaneous courier or email to the address mentioned below:
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Moiter Workz Private Limited having its office at No.20/5 Subbarayan Street, Nungambakkam Chennai, TN 600034
19.
If the Restaurant Partner notices any discrepancy in the weekly settlement, the Restaurant Partner may raise a ticket by writing an email to merchantsupport@Smartsalez.in and the same will be mutually resolved by both parties within 15 days from the date on which the ticket was raised.
20.
The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
21.
Any modification or amendment to this Terms shall be effective only if in writing and signed or sealed with print name by both parties. In the event any provision of this Terms is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Terms and each of the remaining terms and conditions contained herein) shall remain in full force and effect.
22.
Any delay in or failure by either party in performance of this Terms shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Terms. This Terms may not be assigned, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Terms, upon notice to the other party, to (a) an affiliate of Smartsalez (for Smartsalez), or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets. Subject to the foregoing, this Terms shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns. Nothing in this Terms shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as specifically set forth in Section 3 above), and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto. Each party shall be solely responsible for its employees and contractors used in connection with this Terms. This Terms contains the full and complete understanding and Terms between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and Terms, whether oral or written, relating such subject matter hereof. This Terms may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format or exchange by hard-copy, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.
Addendum I
Special Terms
1. Reporting
Smartsalez will give you information regarding the number of Meals picked up by Delivery Partners and sold by you to the Users pursuant to the Terms. The Restaurant 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, Restaurant shall routinely and at such time intervals provide such reports and in such formats as may be specified by the Company.
2. Payment
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2.a. Service Fee. In consideration for Smartsalez’s lead generation, demand prediction, payment processing and other related services provided via the Smartsalez App under the Terms, Smartsalez will charge you a service fee, agreed under the Letter and reiterated under the Addendum II (exclusive of Indirect Tax and withholding tax, if any) on 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 Smartsalez App.
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2.b. Goods and services tax (“GST”). Collection by Smartsalez from Users on your behalf would be subject to tax deduction or collection at source in accordance with the applicable GST laws.
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2.c. Remittance. Smartsalez will remit to you the total (i) Meal Payment (including any Indirect Tax collected on your behalf but reduced by the Service Fee, 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 “Meal Revenue”).
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2.d. Meal Revenue received by Smartsalez from the User on behalf of the Restaurant Partner will be settled into the Restaurant Partner’s bank account, details of which are set forth in Addendum II. 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 Restaurant Partner agrees to provide such documents and information necessary or as may be sought by a payment facilitator or bank to enlist the Restaurant Partner as a payee of Smartsalez. The Restaurant Partner agrees that for this purpose, information about and provided by the Restaurant 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.
ADDENDUM II
TAX DETAILS OF THE RESTAURANT/MERCHANT
1. Details of Tax Registrations
Details of Registration |
Registration Number |
Permanent Account Number |
|
Goods & Service Tax Registration |
2. Indirect Taxes to be levied on each Item enlisted on the Smartsalez App
Nature of Tax |
Percentage Levy |
Central Goods & Service Tax |
|
State Goods & Service Tax |
|
Integrated Goods & Service Tax |
3. Other Charges to be levied on each Meal enlisted on the Smartsalez App
Nature of Charges |
Percentage / Amount |
Packaging Charges |
OTHER DETAILS
Name of Restaurant Partner |
|
Effective Date |
|
Registered Address of the Restaurant Partner |
|
Service Address, Email, Telephone numbers, User/Customer Complaint Redressal Number |
|
Restaurant Partner contact person |
|
Service Fee |
% of the Meal Value. |
Mode of Payment Settlement |
|
Bank Account details of the Restaurant Partner |
Merchant (Restaurant) Partner Terms of Use
The Smartsalez Master Framework Letter (“Letter”) along with the Restaurant/Merchant Partner Terms of Use (“Terms”), represents and confirms our mutual Terms with respect to the Restaurant/Merchant Partner’s participation on the proprietary mobile platform currently made available by Moiter Workz Private Limited (“Smartsalez” or “us”) or its affiliates, from time-to-time, and referred to as the “Smartsalez App”. Upon signing by both parties, the Letter and the Smartsalez Restaurant/Merchant Terms of Use binding and enforceable legal contract between you and Smartsalez as of the date set forth above (“Effective Date”)
The Terms with you are as follows:
1. Structure of Terms
Our Terms shall consist of this Letter, together with the addenda (individually, an “Addendum”) addressing areas of collaboration agreed to by both of us (this Letter and any and all such Addenda are collectively the “Terms”). In connection with each Addendum, we will designate those actions, responsibilities and services to be respectively provided by each of us. In the event of a conflict, the terms contained in an Addendum will supersede conflicting terms contained in these Terms.
2. Intended Projects
We each agree to work in good faith with one another on certain collaborative projects, (as described below) or other projects as we mutually agree, in connection with the food or packaged food item(s) or any grocery item(s) and/or beverages the Restaurant/Merchant makes available (each, a “Meal” or “Item(s)”, as interchangeably used under these Terms) via the Smartsalez App. Each project will be further specified in an Addendum, and any such project will only be undertaken once we mutually execute such Addendum.
3.
The suggested search term(s) or Restaurant/Merchant item(s) visible on the Smartsalez App is the general availability of Meals during the Restaurant’s normal business hours. The Restaurant/Merchant’s customers (the “Buyers” and/or “Smartsalez App Users”/” User(s)”) may select Meals from the displayed search term(s)/listing(s) on the Smartsalez App.
4. Delivery
The “Smartsalez Web Dashboard” will be made available to the Restaurant/Merchant to access on-demand logistic services by Delivery Partners. For the sake of clarity, neither Smartsalez nor its affiliates provide any delivery or logistics services, but Smartsalez provides a platform for restaurants/outlets like yours to connect with Delivery Partners for delivery services and to receive demand prediction, payment processing and related information services in connection with the sale of the Meals. “Delivery Partner” is defined as an independent contractor who intends to provide on demand delivery services using Smartsalez’s proprietary technology platform under license from Smartsalez or one of its affiliates. Smartsalez will not have any obligation to deliver the Item(s) as a platform provider. For purposes of delivery of the Meals, Smartsalez and the Delivery Partners shall operate (i) under cover of any approval, license or permission required to operate your business at the Restaurant/Merchant Outlet and sell the Meal and (ii) under your control, as your agent (including but not limited to receipt agent of meal charges and based on your instructions, if applicable, apply the meal charges collected on your behalf towards disbursal of the fee payable by you to Delivery Partner), and not employee. For the sake of clarity, you, through the services provided by Delivery Partners, are responsible for the delivery of Meals and you maintain possession, control and care of the Meals at all times. You shall have marketable legal right and title to sell the products or render the services. You shall not offer any products or services which are illegal, unlawful, expired and in violation of applicable laws and Policy. Smartsalez will not be liable for any damage or loss incurred by the Users in relation to the delivery of the Meals and will follow reasonable guidance you provide regarding the delivery of the Meals.
5. Availability of Meal(s)/Item(s)
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5.a. Meal(s)/Item(s). Smartsalez will 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 Smartsalez 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 Smartsalez App. In the event of failing to provide Meals/Items that adhere to the Criteria (each, a “Substandard Meal/Item”), Smartsalez is under no obligation to make such Substandard Meals/Items available for sale via the Smartsalez App.
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5.b. Taxes. You are responsible for determining and setting the retail price (“Retail Price”) for each Meal/Item and duly informing Smartsalez 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.
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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, Smartsalez will notify the Restaurant 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 Restaurant 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 Partner must seek further information as required.
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5.d. Notwithstanding these Terms, Smartsalez reserves the right to temporarily discontinue Services or permanently terminate with immediate effect for material breach or non-compliance by the Restaurant Partner which includes, but is not limited to, the following instances:
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(i). User/Buyer complaints received by Smartsalez which are directly or indirectly attributable to the quality of food provided by the Restaurant Partner either through poor ratings, as defined by Smartsalez, through calls placed with Smartsalez or through any other means;
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(ii). Breach of the provisions of the Food Safety and Standards Act, 2006 and the rules and regulations, made thereunder, by Restaurant Partner;
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(iii). Breach of the representations and warranties of the Restaurant Partner; or
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(iv). Any other material breach of the terms.
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Notwithstanding anything contained under this Terms, Smartsalez has the right to immediately delist any of the 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.
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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 Restaurant 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 Smartsalez in its sole discretion as reasonable, for (i) request by the Users of refund or (ii) acceptance by the Delivery Partner of the request. Smartsalez may deduct refunds from the payment made to you under these Terms.
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5.f. It is clarified that Smartsalez shall not be liable to make any payment for a Disputed Order. Smartsalez shall reserve the right to recover from Restaurant Partner, the amount paid to Users/Buyers as refund upto the order value.
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5.g. In case of complaints from the User pertaining to food efficacy, quality, or any other such issues, Smartsalez shall notify the same to Restaurant Partner and shall also redirect the Buyer to the consumer call center of the Restaurant. Restaurant Partner shall alone be liable for redressing and bound to take action on the complaints by the User. Smartsalez has the right to share with the Restaurant Partner, the relevant information including the Restaurant details to enable satisfactory resolution of the complaint. Smartsalez shall in the interest of satisfactory resolution of the Complaint, share with the User, relevant information pertaining to the Order along with Restaurant details.
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5.h. Service Fee. In consideration for use of the Smartsalez App, Smartsalez 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.
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5.i. Smartsalez does not guarantee that you will be matched with the Delivery Partner at the time you wish to be matched. Smartsalez shall not be liable for any failure to match.
6. Promotional Activities
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6.a. Marketing. Smartsalez will each showcase the availability of the Meals via the Smartsalez App through various promotional activities (e.g., our respective social media channels, websites, or blogs), as mutually agreed.
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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 Smartsalez, 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.
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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.
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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. Restaurant agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of performing the services contemplated by this Terms. Restaurant shall maintain the accuracy and integrity of any Personal Data provided by Smartsalez in its possession, custody or control. Restaurant agrees to retain Personal Data provided to Restaurant by Smartsalez solely by using the software and tools provided by Smartsalez.
7. Non-Exclusive
We each acknowledge and agree that, unless otherwise stated in a Letter/Addendum, our relationship is non-exclusive.
8. Confidential Information
“Confidential Information” means any confidential, proprietary or other non-public information disclosed by one party (the “Discloser”) to the other (the “Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information will not include that information that (a) was previously known to the Recipient without an obligation of confidentiality; (b) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (c) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties, or use in any way other than as necessary to perform this Terms, the Discloser’s Confidential Information. Each Recipient will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective of the Discloser as this Terms before such individual has access to the Discloser’s Confidential Information. Each Recipient will not, and will not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on disclosure of Confidential Information will not apply to the extent the Discloser has authorized such disclosure, nor to the extent a Recipient is required to disclose certain Confidential Information of the Discloser as a legal obligation based on the applicable laws and regulations or order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in filing petition of objection etc. prior to making such disclosure. Upon expiration or termination of this Terms and as requested by a Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
9. Representations and Warranties; Disclaimer
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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.
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9.b. The Restaurant 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.
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9.c. The Restaurant further represents and warrants that the details of the tax registrations provided by the Restaurant and Indirect tax to be levied on each meal to be made available for sale via the Smartsalez App is as per Addendum II, forming integral part of this Terms. The Restaurant further confirms and declares that the information provided in Addendum II and the copies of tax registrations, are true and correct, and assumes responsibility to intimate Smartsalez in case of any change in the provided information. The Restaurant undertakes that all Indirect Tax applied on each Meal and Delivery made available for sale via the Smartsalez App would be deposited with the Government Treasury within stipulated timelines.
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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
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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 wilful misconduct of the Indemnifying Party and its employees or agents (in your case, excluding Smartsalez 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 Smartsalez 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 Smartsalez or its employees, agents or Delivery Partners.
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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. Smartsalez does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, Smartsalez 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, Smartsalez will use its best endeavors to ensure that the unintentional operational errors do not occur, Smartsalez cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, Smartsalez’s aggregate liability under this Agreement and respective Terms of Use shall not exceed the total value of a Disputed Order.
12. Insurance
During the Term (as defined below) and for one (1) year thereafter, the Restaurant shall maintain General Commercial Liability and, if required by law, Worker’s Compensation (or substantially equivalent) insurance. The General Commercial Liability insurance policy limits shall be the greater of (a) the limits required by applicable law or (b) the limits customarily maintained by companies in the restaurant industry, in India. All Policy shall be written by reputable insurance companies in the jurisdiction. Such insurance shall be primary and non-contributing to any insurance maintained or obtained by the other party and shall not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon Smartsalez’s request, the Restaurant shall provide evidence of the insurance required herein. In no event shall the limits of any policy be considered as limiting the liability of a Restaurant under the Terms.
13. Term and Termination
Either Smartsalez or the Restaurant Partner can terminate this contract providing 15 days’ prior written notice to the other. Smartsalez shall delist the Restaurant Partner at the end of the 15th Day. Upon termination in accordance with the terms hereof, Restaurant Partner shall only be required to service Meal(s) already placed through Smartsalez prior to such expiry or earlier termination of these Terms, and Smartsalez shall be entitled to receive Service Fee for such Meal(s).
14. No Waiver
No failure or delay by any Party in exercising any right, power or remedy under these Terms of Use or provided by law shall operate as a waiver thereof or affect that right, power or remedy. No waiver by any Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof.
15. Relationship
The Parties agree that nothing in this Terms shall be construed as creating the relationship of employer and employee, master and servant, or principal and agent, or a partnership, or a joint venture of any kind whatsoever between the Parties or between the parties and its respective contractors / employees.
16. Governing Law
This Terms of Use shall be governed by and construed in accordance with the laws of India. Any dispute arising out of or in connection with Services, which the Parties are unable to settle within 30 days, shall be referred to arbitration by a sole arbitrator appointed mutually by both Parties. The Arbitration shall be conducted in accordance with Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification thereof for the time being in force. The venue of the arbitration shall be Chennai and the arbitration shall be conducted in English language. Subject to the foregoing, the courts at Chennai shall have exclusive jurisdiction.
17. Severability
If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Terms of Use which can be given effect without the invalid provision shall continue in full force and effect and shall in no way be impaired or invalidated.
18. Notice
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All notices under these Terms shall be sent by registered post acknowledgment due, contemporaneous courier or email to the address mentioned below:
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Moiter Workz Private Limited having its office at No.20/5 Subbarayan Street, Nungambakkam Chennai, TN 600034
19.
If the Restaurant Partner notices any discrepancy in the weekly settlement, the Restaurant Partner may raise a ticket by writing an email to merchantsupport@Smartsalez.in and the same will be mutually resolved by both parties within 15 days from the date on which the ticket was raised.
20.
The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
21.
Any modification or amendment to this Terms shall be effective only if in writing and signed or sealed with print name by both parties. In the event any provision of this Terms is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Terms and each of the remaining terms and conditions contained herein) shall remain in full force and effect.
22.
Any delay in or failure by either party in performance of this Terms shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Terms. This Terms may not be assigned, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Terms, upon notice to the other party, to (a) an affiliate of Smartsalez (for Smartsalez), or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets. Subject to the foregoing, this Terms shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns. Nothing in this Terms shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as specifically set forth in Section 3 above), and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto. Each party shall be solely responsible for its employees and contractors used in connection with this Terms. This Terms contains the full and complete understanding and Terms between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and Terms, whether oral or written, relating such subject matter hereof. This Terms may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format or exchange by hard-copy, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.
Addendum I
Special Terms
1. Reporting
Smartsalez will give you information regarding the number of Meals picked up by Delivery Partners and sold by you to the Users pursuant to the Terms. The Restaurant 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, Restaurant shall routinely and at such time intervals provide such reports and in such formats as may be specified by the Company.
2. Payment
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2.a. Service Fee. In consideration for Smartsalez’s lead generation, demand prediction, payment processing and other related services provided via the Smartsalez App under the Terms, Smartsalez will charge you a service fee, agreed under the Letter and reiterated under the Addendum II (exclusive of Indirect Tax and withholding tax, if any) on 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 Smartsalez App.
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2.b. Goods and services tax (“GST”). Collection by Smartsalez from Users on your behalf would be subject to tax deduction or collection at source in accordance with the applicable GST laws.
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2.c. Remittance. Smartsalez will remit to you the total (i) Meal Payment (including any Indirect Tax collected on your behalf but reduced by the Service Fee, 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 “Meal Revenue”).
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2.d. Meal Revenue received by Smartsalez from the User on behalf of the Restaurant Partner will be settled into the Restaurant Partner’s bank account, details of which are set forth in Addendum II. 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 Restaurant Partner agrees to provide such documents and information necessary or as may be sought by a payment facilitator or bank to enlist the Restaurant Partner as a payee of Smartsalez. The Restaurant Partner agrees that for this purpose, information about and provided by the Restaurant 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.
ADDENDUM II
TAX DETAILS OF THE RESTAURANT/MERCHANT
1. Details of Tax Registrations
Details of Registration |
Registration Number |
Permanent Account Number |
|
Goods & Service Tax Registration |
2. Indirect Taxes to be levied on each Meal enlisted on the Smartsalez App
Nature of Tax |
Percentage Levy |
Central Goods & Service Tax |
|
State Goods & Service Tax |
|
Integrated Goods & Service Tax |
3. Other Charges to be levied on each Meal enlisted on the Smartsalez App
Nature of Charges |
Percentage / Amount |
Packaging Charges |
OTHER DETAILS
Name of Restaurant Partner |
|
Effective Date |
|
Registered Address of the Restaurant Partner |
|
Service Address, Email, Telephone numbers, User/Customer Complaint Redressal Number |
|
Restaurant Partner contact person |
|
Service Fee |
% of the Meal Value. |
Mode of Payment Settlement |
|
Bank Account details of the Restaurant Partner |
Merchant (Pet Store) Partner Terms of Use
The Smartsalez Master Framework Letter (“Letter”) along with the Merchant Partner Terms of Use (“Terms”), represents and confirms our mutual Terms with respect to the Merchant Partner’s participation on the proprietary mobile platform currently made available by Moiter Workz Private Limited (“Smartsalez” or “us”) or its affiliates, from time-to-time, and referred to as the “Smartsalez App”. Upon signing by both parties, the Letter and the Smartsalez Merchant Terms of Use binding and enforceable legal contract between you and Smartsalez as of the date set forth above (“Effective Date”)
The Terms with you are as follows:
1. Structure of Terms
Our Terms shall consist of this Letter, together with the addenda (individually, an “Addendum”) addressing areas of collaboration agreed to by both of us (this Letter and any and all such Addenda are collectively the “Terms”). In connection with each Addendum, we will designate those actions, responsibilities and services to be respectively provided by each of us. In the event of a conflict, the terms contained in an Addendum will supersede conflicting terms contained in these Terms.
2. Intended Projects
We each agree to work in good faith with one another on certain collaborative projects, (as described below) or other projects as we mutually agree, in connection with the item(s), which include perishable/non-perishable goods including other item(s) or accessories produced for pets made available [each an “Item(s)”] via the Smartsalez App. Each project will be further specified in an Addendum, and any such project will only be undertaken once we mutually execute such Addendum.
3.
The suggested search term(s) or Merchant item(s) visible on the Smartsalez App is the general availability of Item(s) during the Merchant’s normal business hours. The Merchant’s customers (the “Buyers” and/or “Smartsalez App Users”/” User(s)”) may select Item(s) from the displayed search term(s)/listing(s) on the Smartsalez App.
4. Delivery
The “Smartsalez Web Dashboard” will be made available to the Merchant to access on-demand logistic services by Delivery Partners. For the sake of clarity, neither Smartsalez nor its affiliates provide any delivery or logistics services, but Smartsalez provides a platform for 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. “Delivery Partner” is defined as an independent contractor who intends to provide on demand delivery services using Smartsalez’s proprietary technology platform under license from Smartsalez or one of its affiliates. Smartsalez will not have any obligation to deliver the Item(s) as a platform provider. For purposes of delivery of the Items, Smartsalez and the Delivery Partners shall operate (i) under cover of any approval, license or permission required to operate your business at the Merchant Outlet and sell the Item(s) and (ii) under your control, as your agent (including but not limited to receipt agent of Item charges and based on your instructions, if applicable, apply the Item 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 and you maintain possession, control and care of the Items 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 Policy. Smartsalez will not be liable for any damage or loss incurred by the Users in relation to the delivery of the Items and will follow reasonable guidance you provide regarding the delivery of the Items.
5. Availability of Item(s)
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5.a. Item(s). Smartsalez will provide you reasonable advice regarding demand prediction, which you may use in connection with your determination of the quantity and type of Items made available via the Smartsalez App. You are fully responsible for quality, safety and delivery of the Items and you shall adhere to all applicable laws and regulations in relation to the preparation, provision, packaging and delivery of the Items. You will determine any quality, portion, size, ingredient or other criteria (including those of laws and regulations) that apply to the Items (“Criteria”) and you are solely responsible for ensuring that the Items meet such criteria when then are made available via the Smartsalez App. In the event of failing to provide Items that adhere to the Criteria (each, a “Substandard Item”), Smartsalez is under no obligation to make such Substandard Items available for sale via the Smartsalez App.
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5.b. Taxes. You are responsible for determining and setting the retail price (“Retail Price”) for each Item and duly informing Smartsalez from time to time, including any Item discount(s)/discounts on offer from time to time. You shall be the “retailer” or “seller” of all 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 Item shall include Indirect Tax, as applicable. You undertake that all applicable taxes on 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.
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5.c. Item Inventory. You maintain title to all Item inventory until each Item is delivered to a User. You are responsible for the costs of all Items. Whenever a User wishes to avail Items or Service as identified by the App, Smartsalez will notify the Merchant 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 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 Merchant Partner to process any order, the Merchant Partner must seek further information as required.
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5.d. Notwithstanding these Terms, Smartsalez reserves the right to temporarily discontinue Services or permanently terminate with immediate effect for material breach or non-compliance by the Merchant Partner which includes, but is not limited to, the following instances:
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(i). User/Buyer complaints received by Smartsalez which are directly or indirectly attributable to the quality of item(s) provided by the Merchant Partner either through poor ratings, as defined by Smartsalez, through calls placed with Smartsalez or through any other means;
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(ii). Breach of the provisions of the Prevention of Cruelty to Animals Act, 1960 and and the rules and regulations, made thereunder, by Merchant Partner;
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(iii). Breach of the representations and warranties of the Merchant Partner; or
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(iv). Any other material breach of the terms.
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Notwithstanding anything contained under this Terms, Smartsalez has the right to immediately delist any of the item(s) from the Platform, which is not in compliance with the Prevention of Cruelty to Animals Act, 1960 or the rules or regulations, made thereunder.
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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 Partner, including but not limited to, User’s expectations not being met or User dissatisfaction in relation to, inter alia, the quality of the Item(s), undelivered Item(s), discrepancy in the Item(s) delivered which is not in accordance with the Item placed and/or those Item(s) for which User requests for a replacement. (“Disputed Orders”) Any such User(s) request a refund for any Item(s) (including, without limitation, any costs associated with retrieving any such Item(s), if applicable), for reasons that are considered by Smartsalez in its sole discretion as reasonable, for (i) request by the Users of refund or (ii) acceptance by the Delivery Partner of the request. Smartsalez may deduct refunds from the payment made to you under these Terms.
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5.f. It is clarified that Smartsalez shall not be liable to make any payment for a Disputed Order. Smartsalez shall reserve the right to recover from Merchant Partner, the amount paid to Users/Buyers as refund upto the order value.
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5.g. In case of complaints from the User pertaining to item quality, or any other such issues, Smartsalez shall notify the same to Merchant Partner and shall also redirect the Buyer to the consumer call center of the Merchant. Merchant Partner shall alone be liable for redressing and bound to take action on the complaints by the User. Smartsalez has the right to share with the Merchant Partner, the relevant information including the Merchant details to enable satisfactory resolution of the complaint. Smartsalez shall in the interest of satisfactory resolution of the Complaint, share with the User, relevant information pertaining to the Order along with Merchant details.
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5.h. Service Fee. In consideration for use of the Smartsalez App, Smartsalez 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.
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5.i. Smartsalez does not guarantee that you will be matched with the Delivery Partner at the time you wish to be matched. Smartsalez shall not be liable for any failure to match.
6. Promotional Activities
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6.a. Marketing. Smartsalez will each showcase the availability of the Items via the Smartsalez App through various promotional activities (e.g., our respective social media channels, websites, or blogs), as mutually agreed.
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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 Smartsalez, 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.
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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.
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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 agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of performing the services contemplated by this Terms. Merchant shall maintain the accuracy and integrity of any Personal Data provided by Smartsalez in its possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by Smartsalez solely by using the software and tools provided by Smartsalez.
7. Non-Exclusive
We each acknowledge and agree that, unless otherwise stated in a Letter/Addendum, our relationship is non-exclusive.
8. Confidential Information
“Confidential Information” means any confidential, proprietary or other non-public information disclosed by one party (the “Discloser”) to the other (the “Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information will not include that information that (a) was previously known to the Recipient without an obligation of confidentiality; (b) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (c) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties, or use in any way other than as necessary to perform this Terms, the Discloser’s Confidential Information. Each Recipient will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective of the Discloser as this Terms before such individual has access to the Discloser’s Confidential Information. Each Recipient will not, and will not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on disclosure of Confidential Information will not apply to the extent the Discloser has authorized such disclosure, nor to the extent a Recipient is required to disclose certain Confidential Information of the Discloser as a legal obligation based on the applicable laws and regulations or order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in filing petition of objection etc. prior to making such disclosure. Upon expiration or termination of this Terms and as requested by a Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
9. Representations and Warranties; Disclaimer
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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 item 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.
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9.b. The Merchant 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 Prevention of Cruelty to Animals Act, 1960 and rules and regulations made thereunder, including any law applicable to its engagement of Delivery Partners.
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9.c. The Merchant further represents and warrants that the details of the tax registrations provided by the Merchant and Indirect tax to be levied on each item to be made available for sale via the Smartsalez App is as per Addendum II, forming integral part of this Terms. The Merchant further confirms and declares that the information provided in Addendum II and the copies of tax registrations, are true and correct, and assumes responsibility to intimate Smartsalez in case of any change in the provided information. The Merchant undertakes that all Indirect Tax applied on each Item and Delivery made available for sale via the Smartsalez App would be deposited with the Government Treasury within stipulated timelines.
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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
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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 wilful misconduct of the Indemnifying Party and its employees or agents (in your case, excluding Smartsalez 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 Smartsalez 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 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 Smartsalez or its employees, agents or Delivery Partners.
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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. Smartsalez does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, Smartsalez 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, Smartsalez will use its best endeavors to ensure that the unintentional operational errors do not occur, Smartsalez cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, Smartsalez’s aggregate liability under this Agreement and respective Terms of Use shall not exceed the total value of a Disputed Order.
12. Insurance
During the Term (as defined below) and for one (1) year thereafter, the Merchant shall maintain General Commercial Liability and, if required by law, Worker’s Compensation (or substantially equivalent) insurance. The General Commercial Liability insurance policy limits shall be the greater of (a) the limits required by applicable law or (b) the limits customarily maintained by companies in the merchant’s industry, in India. All Policy shall be written by reputable insurance companies in the jurisdiction. Such insurance shall be primary and non-contributing to any insurance maintained or obtained by the other party and shall not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon Smartsalez’s request, the Merchant shall provide evidence of the insurance required herein. In no event shall the limits of any policy be considered as limiting the liability of a Merchant under the Terms.
13. Term and Termination
Either Smartsalez or the Merchant Partner can terminate this contract providing 15 days’ prior written notice to the other. Smartsalez shall delist the Merchant Partner at the end of the 15th Day. Upon termination in accordance with the terms hereof, Merchant Partner shall only be required to service Item(s) already placed through Smartsalez prior to such expiry or earlier termination of these Terms, and Smartsalez shall be entitled to receive Service Fee for such Item(s).
14. No Waiver
No failure or delay by any Party in exercising any right, power or remedy under these Terms of Use or provided by law shall operate as a waiver thereof or affect that right, power or remedy. No waiver by any Party of any breach by any other Party of any provision hereof shall be deemed to be a waiver of any subsequent breach of that or any other provision hereof.
15. Relationship
The Parties agree that nothing in this Terms shall be construed as creating the relationship of employer and employee, master and servant, or principal and agent, or a partnership, or a joint venture of any kind whatsoever between the Parties or between the parties and its respective contractors / employees.
16. Governing Law
This Terms of Use shall be governed by and construed in accordance with the laws of India. Any dispute arising out of or in connection with Services, which the Parties are unable to settle within 30 days, shall be referred to arbitration by a sole arbitrator appointed mutually by both Parties. The Arbitration shall be conducted in accordance with Arbitration and Conciliation Act, 1996 or any statutory re-enactment or modification thereof for the time being in force. The venue of the arbitration shall be Chennai and the arbitration shall be conducted in English language. Subject to the foregoing, the courts at Chennai shall have exclusive jurisdiction.
17. Severability
If any provision of these Terms of Use is held by a court of competent jurisdiction to be invalid or unenforceable, the remainder of the Terms of Use which can be given effect without the invalid provision shall continue in full force and effect and shall in no way be impaired or invalidated.
18. Notice
-
All notices under these Terms shall be sent by registered post acknowledgment due, contemporaneous courier or email to the address mentioned below:
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Moiter Workz Private Limited having its office at No.20/5 Subbarayan Street, Nungambakkam Chennai, TN 600034
19.
If the Merchant Partner notices any discrepancy in the weekly settlement, the Merchant Partner may raise a ticket by writing an email to merchantsupport@Smartsalez.in and the same will be mutually resolved by both parties within 15 days from the date on which the ticket was raised.
20.
The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
21.
Any modification or amendment to this Terms shall be effective only if in writing and signed or sealed with print name by both parties. In the event any provision of this Terms is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Terms and each of the remaining terms and conditions contained herein) shall remain in full force and effect.
22.
Any delay in or failure by either party in performance of this Terms shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Terms. This Terms may not be assigned, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Terms, upon notice to the other party, to (a) an affiliate of Smartsalez (for Smartsalez), or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets. Subject to the foregoing, this Terms shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns. Nothing in this Terms shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as specifically set forth in Section 3 above), and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto. Each party shall be solely responsible for its employees and contractors used in connection with this Terms. This Terms contains the full and complete understanding and Terms between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and Terms, whether oral or written, relating such subject matter hereof. This Terms may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format or exchange by hard-copy, each of which shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.
Addendum I
Special Terms
1. Reporting
Smartsalez will give you information regarding the number of Items picked up by Delivery Partners and sold by you to the Users pursuant to the Terms. The Merchant Partner shall maintain such documents to record the proof of delivery of product or performance of service. Without prejudice to the generality of the aforesaid, Merchant shall routinely and at such time intervals provide such reports and in such formats as may be specified by the Company.
2. Payment
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2.a. Service Fee. In consideration for Smartsalez’s lead generation, demand prediction, payment processing and other related services provided via the Smartsalez App under the Terms, Smartsalez will charge you a service fee, agreed under the Letter and reiterated under the Addendum II (exclusive of Indirect Tax and withholding tax, if any) on Item Value, as defined under the Letter or (the “Service Fee”). This Service Fee is charged as consideration for expediting the Users’ orders via the Smartsalez App.
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2.b. Goods and services tax (“GST”). Collection by Smartsalez from Users on your behalf would be subject to tax deduction or collection at source in accordance with the applicable GST laws.
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2.c. Remittance. Smartsalez will remit to you the total (i) Item Payment (including any Indirect Tax collected on your behalf but reduced by the Service Fee, 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 Revenue”).
-
2.d. Item Revenue received by Smartsalez from the User on behalf of the Merchant Partner will be settled into the Merchant Partner’s bank account, details of which are set forth in Addendum II. 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 Partner agrees to provide such documents and information necessary or as may be sought by a payment facilitator or bank to enlist the Merchant Partner as a payee of Smartsalez. The Merchant Partner agrees that for this purpose, information about and provided by the Merchant 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.
ADDENDUM II
TAX DETAILS OF THE MERCHANT
1. Details of Tax Registrations
Details of Registration |
Registration Number |
Permanent Account Number |
|
Goods & Service Tax Registration |
2. Indirect Taxes to be levied on each Item enlisted on the Smartsalez App
Nature of Tax |
Percentage Levy |
Central Goods & Service Tax |
|
State Goods & Service Tax |
|
Integrated Goods & Service Tax |
3. Other Charges to be levied on each Item enlisted on the Smartsalez App
Nature of Charges |
Percentage / Amount |
Packaging Charges |
OTHER DETAILS
Name of Merchant Partner |
|
Effective Date |
|
Registered Address of the Merchant Partner |
|
Service Address, Email, Telephone numbers, User/Customer Complaint Redressal Number |
|
Merchant Partner contact person |
|
Service Fee |
% of the Item Value. |
Mode of Payment Settlement |
|
Bank Account details of the Merchant Partner |
Merchant Outlet Offer(s) and Sampling: Terms & Conditions
-
1. As a registered User, You understand that Smartsalez is merely a technology intermediary communicating a promotion on behalf of the Merchant and is not in any manner liable for the content hosted or otherwise the Offer extended through the Smartsalez App.
-
2. You acknowledge that the product is offered for sale or otherwise offered without any consideration, as the case maybe, by the Merchant and not Smartsalez.
-
3. You agree that any product/item procured/purchased by you from the Merchant shall be for your personal consumption.
-
4. All commercial/contractual terms are offered by and agreed to between User and Merchant(s) alone. The commercial/contractual terms include without limitation price, shipping costs, payment methods, payment terms, date, period and mode of delivery, warranties related to products and services and after sales services related to products and services. Smartsalez does not have any control or does not determine or advise or in any way involve itself in the offering or acceptance of such commercial/contractual terms between the Buyers and Sellers.
-
5. Smartsalez does not make any representation or Warranty as to specifics (such as quality, value, saleability, etc.) of the products or services proposed to be sold or offered to be sold or purchased on the Smartsalez App. Smartsalez shall not be liable in case the product sold by the Merchant is unfit for use or faulty or rendered unfit during carriage of the same from the point of pick-up to the drop-off point.
-
6. Smartsalez does not make any representation or warranty as to the item-specifics (such as legal title, creditworthiness, identity, etc) of any of its Users. You are advised to independently verify the bona fides of any particular Merchant that You choose to deal with on the Smartsalez App and use Your best judgment in that behalf.
-
7. Smartsalez does not implicitly or explicitly support or endorse the sale or purchase of any products or services on the Smartsalez App. Smartsalez accepts no liability for any errors or omissions, whether on behalf of itself or third parties.
-
8. Consistent with Smartsalez’s Privacy Policy, Smartsalez may share your information with third parties to manage, expedite and improve the Smartsalez App services provided to you or otherwise to carry out specific service requests, including any other reason(s) as covered under the Privacy Policy acknowledged by you.
-
9. Smartsalez is not responsible for any non-performance or breach of any contract entered into between Users and Merchants. Smartsalez shall not and is not required to mediate or resolve any dispute or disagreement between Users and Merchants.
-
10. At no time shall Smartsalez hold any right, title or interest over the products nor shall Smartsalez have any obligations or liabilities in respect of such contract.
-
11. Smartsalez is not responsible for unsatisfactory or delayed performance of services or damages or delays as a result of products which are out of stock, unavailable or back ordered.
-
12. You shall independently agree upon the manner and terms and conditions of delivery, payment, insurance etc. with the Merchant that you transact with.
Cancellations
-
As a general rule you shall not be entitled to cancel your order once you have received confirmation of the same. If you cancel your order after it has been confirmed, Smartsalez shall have a right to charge you cancellation fee of a minimum INR 20 upto the order value.
Insurance Terms
-
1. SMARTSALEZ had selected ICICI Lombard as its Insurance Partner for the deliveries of those goods which are raise through D4B dashboard by Merchants.
-
2. The Policy would be called as “ Moiter Workz Private Limited A/C all B2B merchants of Smartsalez”.
-
3. This Insurance covers the goods ordered by customers of merchants and transportation of these goods are assigned to SMARTSALEZ Delivery Partner.
-
4. The Policy would cover the Pickup, Transportation and delivery of the product ordered by a customer at a merchant’s store for which the merchant uses the services of SMARTSALEZ delivery partner for delivery.
-
5. This Policy would cover goods picked up and delivered in the city from anywhere to anywhere.
-
6. The rate pre delivery would be 0.09 % of the single product cost.[SM1]
-
7. It is also absolutely necessary that all the goods from a single merchant have to be included in the insurance program, selection of individual and particular deliveries would not be allowed.
-
8. The Insurance would start instantly the product is picked by Smartsalez Partner and would cease after elapse of 3 hours of product delivery.
-
9. If more than one product is packed in a single delivery, then that would be considered a single delivery, example 3 Books packed in a packet.
-
10. If more than 1 delivery is being done for a single address at one time than all the deliveries would be considered separate and excess on claims would be on each and every delivery.
-
11. Merchant has to check and insure that the product to be delivered is properly packed and hand over to Smartsalez Partner is according to the agreement.
-
12. It is ordained that before carrying out the deliveries, the Merchant has to declare these goods ( i.e. standard description )and value of the good on E Mail. ICICI Lombard would share the format which with SMARTSALEZ and the details of declaration would be required to be in this format.
-
13. Merchant can send a Maximum of Rs. 40,000 goods in a single delivery, Example 5 books worth 8000 Rs packed in a single packet and to be delivered to single address will be considered a single consignment. Whereas, a packet of book in one packet , a kitchen appliance in another packet to be delivered to same address would be considered two consignments.[SM2]
-
14. The policy would not cover the Return deliveries which had been delivered and the customer wants to return as per return policy of that particular merchant.
-
15. For all claims, the communication would be between the Merchant and ICICI Lombard and Marsh would act as a Broker in this Policy , intervening according to the duties and compliance as suggested by IRDA.
-
16. ICICI Lombard, would share this CD account with the frequency of 15 days and also whenever is demanded by the Merchant.
Community Guidelines
We’re passionate about ensuring cities are accessible to everyone, everywhere. During COVID-19, our mission resonated louder and clearer. At Smartsalez, we are committed to ensuring you have access to essentials, without leaving your house. We understand that you might have questions about how we’re navigating the COVID-19 epidemic. At Smartsalez, we’re doing our best to ensure that we’re following all preventive measures, and your safety and wellbeing is prioritized, always.
For everyone in our community
The World Health Organisation recommends we all remember the ‘Five’
-
1. HANDS Wash them often
-
2. ELBOW Cough into it
-
3. FACE Don't touch it
-
4. FEET Stay more than 3 feet apart
-
5. FEEL sick or unwell? Stay home
Please follow guidelines prescribed by WHO, Central Government, and local authorities. We can overcome this, but only if we do it together.
In light of COVID-19, we would like to take this time to put forth community guidelines for our users.
For our users
-
Smartsalez Services during COVID-19: During the containment of the COVID-19 virus, Smartsalez Partners will only deliver essential items as categorized by the local authorities. Essential products like medicines must be made through the “medicine” category and with a valid prescription only. Under no circumstances, will your partner deliver any non-essential items or habit-forming substances like cigarettes or tobacco. Please refrain from asking your partner to purchase something outside of the app.
-
Responsible Use of Smartsalez Services: You must use Smartsalez Services responsibly and in compliance with the law. Please ensure that you handover to the Smartsalez Partners only essential items/products that can be transported under the prevailing guidelines issued by central, state and local authorities. Your Partner can refuse to complete an order, if they feel otherwise, or can contact local authorities if they wish to. Note, if you misuse the platform, your partner can run into trouble as well. You must use the service responsibly.
-
Introducing No Contact Delivery: In order to limit contact, No Contact Delivery has been introduced. Please let your partner know via the in-app chat, or over a phone call to leave your order at a mutually decided spot. If you or a family member is unwell, please do opt for the no-contact delivery. Pro Tip: Leave a bag or a box at the door for your partner to drop your items off.
-
Item Restriction: Hygiene and essential items like sanitizers or groceries might be limited in number currently. Please be respectful and avoid hoarding of items, to ensure resources are adequately distributed amongst the community.
-
Tipping: Your Smartsalez partner is going the extra mile so that you can stay safe indoors. We have introduced Tipping, whereby you can show appreciation to your partner for being there for you. 100% of your tip will be provided to your Partner
-
Be Respectful: Your Smartsalez partners are doing their best to ensure you get your item delivered on time. Treat your partners the way you would like to be treated. Please be respectful, and know they’re doing their best so that you can stay indoors and be safe
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An inclusive Community: At Smartsalez, we celebrate inclusion and diversity amongst our large community of users, partners, merchants, and employees. Remember, when you use Smartsalez, you might interact with people who look or think differently from you. Promoting a respectful community is one of our key values and we do not support any form of discrimination, among our large community of users, partners, merchants and employees.
For your Partners
-
Containing Community Spread: All your partners are aware and following recommended preventive measures to ensure you and our community can stay safe.
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Insurance: All Smartsalez Partners are now COVID insured. If a partner does contract the virus, their account will be automatically placed on hold until they recover. They will be compensated for their time to recover through the insurance.
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COVID Partner relief Fund: We have set up a partner relief fund for our Partners and their families to overcome this difficult period. This time, we’re urging our community to deliver for the partners. Every little bit helps and will go a long way in ensuring your partners know we all have their back. Please do contribute here.
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Social Distancing at Stores: A tech solution to queue orders enables the Partners to keep a safe distance at stores and avoid overcrowding while ensuring orders are also fulfilled. Your partner will be standing in line and waiting his/her turn patiently. You must be patient as well.
-
Remote Onboarding: If you wish to sign up during this time to serve your city as a Smartsalez Partner, by ensuring essentials reach those who need it the most, please sign up here. You can be onboarded through our remote onboarding facility.
SMARTSALEZ FOR BUSINESS TERMS
THESE
TERMS OF USE ("TERMS OF USE") ARE ELECTRONIC RECORD
IN THE FORM OF AN ELECTRONIC CONTRACT FORMED UNDER THE INFORMATION
TECHNOLOGY ACT, 2000 AND RULES MADE THEREUNDER AND THE AMENDED
PROVISIONS PERTAINING TO ELECTRONIC DOCUMENTS/RECORDS IN VARIOUS
STATUTES AS AMENDED BY THE INFORMATION TECHNOLOGY ACT, 2000. THESE
TERMS OF USE DO NOT REQUIRE ANY PHYSICAL, ELECTRONIC OR DIGITAL
SIGNATURES.
THESE TERMS OF USE ARE A LEGALLY BINDING DOCUMENT
BETWEEN MERCHANT AND SMARTSALEZ (BOTH TERMS DEFINED BELOW). THESE
TERMS OF USE SHALL GOVERN THE RELATIONSHIP BETWEEN THE MERCHANTS
REGISTERED ON THE ‘SMARTSALEZ FOR BUSINESS’ PLATFORM (
“MERCHANT”
OR “YOU” OR “YOUR” OR “YOURSELF” OR “USER”
) AND
MANDATE THE TERMS ON WHICH THE MERCHANT AVAILS SMARTSALEZ SERVICES
AND ACCESSES THE PLATFORM (BOTH TERMS DEFINED BELOW).
PLEASE
READ THE TERMS OF USE CAREFULLY BEFORE USING THE PLATFORM, SMARTSALEZ
SERVICES (BOTH TERMS DEFINED BELOW) AND THE DASHBOARD THAT GIVES YOU
ACCESS TO INFORMATION RELATED TO THE SMARTSALEZ SERVICES (
“B2B
DASHBOARD”
). BY ACCESSING THE B2B DASHBOARD OR ACCEPTING THE
ELECTRONIC MAIL SENT TO YOU BY SMARTSALEZ (“DEFINED BELOW”)
CONTAINING THESE TERMS OF USE, AS APPLICABLE, YOU ACCEPT THESE TERMS
OF USE AND AGREE TO BE LEGALLY BOUND BY THE SAME. IF YOU DO NOT AGREE
WITH THESE TERMS, PLEASE DO NOT USE THE PLATFORM (DEFINED BELOW) OR
AVAIL ANY SMARTSALEZ SERVICES (DEFINED BELOW) BEING OFFERED THROUGH
THE PLATFORM (DEFINED BELOW).
SMARTSALEZ (DEFINED BELOW)
RESERVES THE RIGHT TO CHANGE THESE TERMS OF USE FROM TIME TO TIME. IT
WILL BE PRESUMED THAT MERCHANT HAS CONSENTED TO ANY SUCH CHANGES IF
AND WHEN MERCHANT ACCESSES THE PLATFORM OR AVAILS SMARTSALEZ SERVICES
(BOTH TERMS DEFINED BELOW). MERCHANT MAY DECLINE SUCH CHANGES BY
DISCONTINUING ACCESS TO THE PLATFORM OR BY NOT AVAILING SMARTSALEZ
SERVICES (BOTH TERMS DEFINED BELOW).
The B2B Dashboard, the
website www.Smartsalez.in and the mobile application ‘Smartsalez’
are technology platforms owned and operated by Moiter Workz Private
Limited (“Smartsalez”), that enables the Merchant to
connect with independent third-party logistics service providers
(“Delivery Partner”) to pick up and drop off packages for
the Merchant from one location to the other location through the
Delivery Partner. All of such properties are collectively referred to
as, the “Platform”. Smartsalez merely acts as a
technology platform which allows the Merchant to connect with the
Delivery Partner. You hereby agree and acknowledge that the role of
Smartsalez is limited to operating and managing the Platform and
providing Smartsalez Services (Defined Below). You hereby further
agree and acknowledge that Smartsalez does not in any manner provide
logistics service nor is the Delivery Partner an employee or an agent
of Smartsalez. The Delivery Partner is an independent third party
logistics service provider.
Use of and access to the Platform,
is offered to You upon the condition of acceptance of (i) these Terms
of Use, (ii) any agreement signed by You with Smartsalez (iii) the
Privacy Policy available at https://Smartsalez.in/privacy, and (iv)
any amendments made by Smartsalez at its sole discretion and posted
on the Platform from time to time.
THIS Distributor AGREEMENT is made on the _________________by and between Moiter Workz Pvt. Ltd, a Company incorporated under the Companies Act, 1956, and having its office at No.20/5 Subbarayan Street, Nungambakkam Chennai, TN 600034; hereinafter referred to as “Moiter Workz” or the company of the ONE PART, ___________________ a individual / HUF/ partnership firm / proprietorship / company incorporated under the laws of India, having its office at ___________________ and represented by _____________________________ hereafter referred to as “Distributor”; of the SECOND PART of this Agreement
WITNESS AS FOLLOWS;
WHEREAS:
a) MoiterWorkz is engaged in the business of Software based and has developed SmartSalez, through which retailers can launch their online and mobile stores within a day, subject to conditions, and start selling their products and services to their customers and earn an income. The First Party has appointed Distributor who has represented that he can appoint retailers under his Distributorship and can successfully promote SmartSalez.
b) The Distributor has approached and represented to MoiterWorkz that it has required interest, understanding, capability and infrastructure facilities and has adequate experience to market the SmartSalez successfully to known retailers in the Distributors neighbourhood area or known persons.
NOW THIS DISTRIBUTORAGREEMENT DOES WITNESS AS FOLLOWS: -
1. APPOINTMENT:
MoiterWorkzPvt. Ltd. hereby appoints the party of second part as its Distributor on a non-exclusive and non-transferable basis for SmartSalez in the territory of _______________basis on the terms and conditions as set out in this agreement and on payment of Rs. _______________towards registration, training and Distributor Dash Board set up charges and towards pre purchase of Retailer id setup fees of which shall be non-refundable.
2. The Distributor shall be eligible to commission on realisation of monthly license cum access fees paid by the retailers to Moiterworkz and the same shall be paid after deduction of taxes if any. Moiterworkz retains the right to make changes to the terms and conditions at any time based on market situations. The same shall be intimated either by way of email or through the Distributor Dashboard notice boards regularly.
3. TERMS AND CONDITIONS:
• The Distributor shall be responsible for the following conditions:
• To identify, explain, source, register, onboard and guide/provide service to a network of retailers under him in a timely manner to increase sales
• To carry on the marketing obligations under this agreement and to market the SmartSalez within the territory allotted and utilize Its best endeavours to distribute and market the product of MoiterWorkz namely SmartSalez extensively
• To maintain a qualified basic marketing person sufficient to carry out its obligations under this Agreement.
• To ensure that the distribution of SmartSalez and services provided by MoiterWorkz shall not be in violation of any provisions of the relevant state laws and regulations.
• To strictly abide by the mode of sales as stipulated under this Agreement hereof, and shall not engage in sales activities in any other forms that may compete with SmartSalez.
• To ensure that the entire process of distribution strictly abide by the price strategy as designated by MoiterWorkz, and shall not, without the consent of MoiterWorkz, raise the sale prices / margins of the products of MoiterWorkz and not to make use of the advantage of the prices/margins due to the distribution to its lower level Distributor to sell the products.
• To maintain accounts of transaction in due course of business and pay all the dues, levies, taxes etc; and ensure that no illegal activities are carried out which affects the business of MoiterWorkz.
• To ensure display of all marketing materials prominently at all the outlet of the Retailer under the Distributor.
• Shall make all payments in advance to SmartSalez and ensure sufficient credit limit is available to all agents under the Distributor.
• Shall collect feedback from time to time, closely monitor and ensure that all the agents under the Distributor maintain healthy business.
• Shall take responsibility for all transactions done through its control panel.
• Agrees to automatically opted in for promotions, schemes of company or 3rd party products and principals selected by the company.
• Agrees to work with the MoiterWorkz sales teams to a plan and show incremental growth.
• Agree to become a Distributor and ensure that all retailers under this Distributorship become sub-Distributors or distribution partners of MoiterWorkz' principals and automatically agree to be a signatory to their application form, terms and conditions and abide by them, where applicable.
• The Distributor and retailer related information may be shared by MoiterWorkz for purpose of KYC, statutory as well as availing services of certain principals of MoiterWorkz or to promote the Distributor and Retailer products to public and enterprises at large.
• Undertakes responsibilities to appoint retailers and activate retailer ids given to him within 3 months. MoiterWorkz shall not be responsible for appointing retailers under the Distributor. If the ids given are not utilized then they shall lapse after a cut off time as per prevailing company policy at that time.
4. The Distributor shall be responsible for the following conditions:
• To take the responsibility for reselling the retailer IDs (monthly license to give access to a retailer on the SmartSalez platform) pre-purchased.
5. RESPONSIBILITIES OF MoiterWorkz:
• To supply the marketing materials to the Distributor or his retailer as and when order is placed and to keep the track of distribution.
• To depute one or more Sales Supervisor to advise and assist the Distributor in training its/his sales personnel, at such time and for such duration as MoiterWorkz deems fit.
• To provide all necessary information with regard to the procedure for mode of Marketing and to support Distributor's operation.
• To review and update the standard operating procedure from time to time based on actual business requirements and feedback from the sales channel through Market Survey through agency or self.
6. INTELLECTUAL PROPERTY:
• The Distributor and his retailers acknowledge that Trade Mark and Use thereof: "SmartSalez", "SmartSalez" and "MoiterWorkz" are exclusive trademarks of MoiterWorkz and use of the same would require prior written permission of MoiterWorkz.
• The Distributor, his retailer(s) or any persons shall neither remove the trademarks and other Intellectual Properties of MoiterWorkz in any manner whatsoever nor misuse the trademarks, trade names of MoiterWorkz as the case may be and ensure that there is strict compliance of the same by all including the end customers.
• The Distributor and its retailers explicitly agree that all intellectual properties of MoiterWorkz and its technology products including SmartSalez are sole property of MoiterWorkz.
7. TERMINATION:
• Either party may terminate this Agreement at any time by giving not less than 30 (thirty) days notice in writing to the other with or without assigning any reason.
• MoiterWorkz shall be entitled to terminate this Agreement with immediate effect upon:
• Unauthorized increase of the price/margins of the Product.
• Any of the breach of the terms and conditions of this Agreement by the Distributor.
• If any material change occurs in the management or control of the business of the Distributor.
• If the Distributor markets the Products outside the territory mentioned in this Agreement.
• On complaint by the customer against poor service.
• Upon termination of this Agreement:
• The Distributor shall forthwith submit the accounts in respect of sales by the Distributor till the termination of the Agreement.
• If any amount due and payable by the Distributor to MoiterWorkz has remained unpaid for more than 15days from the due date then the Distributor agrees to MoiterWorkz blocking its Distributor Control Panel.
• The Distributor shall handover all the records, papers, Articles etc.; with regard to the Product supplied in this Agreement, which is in the custody of the Distributor to MoiterWorkz.
• Where fraud, material non-disclosure or other adverse activity or jeopardy to MoiterWorkz is suspected, MoiterWorkz may with immediate effect and without prejudice to the exercise of any rights to which it may be entitled suspend the Distributor's authority under this Agreement for such reasonable period as it thinks fit, pending a formal scrutiny and investigation. Such suspension will not render MoiterWorkz liable to the Distributor for any direct or indirect losses howsoever arising.
• In the event of the Distributor being disqualified to continue the Distributor-ship for any of the above reasons subsequent to the date of this agreement, this agreement shall stand terminated with immediate effect and the Distributor ceases to hold himself as an authorized Distributor. The retailers under him shall be continuing under the Company directly.
• Doing bad publicity of MoiterWorkz or misbehave with MoiterWorkz Employees.
• Failing down to complete documentation or any services asked by MoiterWorkz.
• Not doing any SmartSalez business for more than 6 months.
8. ASSIGNMENT:
• The Distributor shall not assign or delegate or transfer any right, duty, obligation, interest, or benefit under this Agreement without the prior written Permission from MoiterWorkz and any assignment, delegation or transfer without the written permission shall be null and void.
9. FORCE MAJEURE:
• Neither party shall be liable in the event of failure or delay in the performance of its obligations under this Agreement, as a result of extra ordinary circumstances beyond its reasonable control of the panices such as fire, storm, flood earthquake, explosion, accident, acts of a public enemy, war, insurrection, sabotage, epidemic, transportation embargoes or delays in transportation, labour disputes, acts of God, acts of any government whether national, municipal or otherwise or any count of law, or any agency thereof. (ii) If any such event should continue for more than three calendar months to prevent a party from performing its obligations under this agreement, the other party shall have the right to terminate this Agreement upon 30 (Thirty) days written notice to the other Party.
10. CONFIDENTIALITY:
• This Agreement shall be private and confidential and the Distributor does agree not to disclose or divulge any confidential information pertaining to the On Line schemes and the Products, to any third party without the prior written consent of MoiterWorkz.
11. DISCLAIMER OF WARRANTIES:
• The product viz. SmartSalez and other products including, its contents are provided on "as is" and "as available" without warranty of any kind, either expressed or implied. Without limitation of the foregoing, MoiterWorkz, specifically disclaims that under this Agreement, shall not be responsible for any business activities carried in the territory, where such activities are not permitted by the concerned state Government.
• MoiterWorkz shall not be responsible for any misuse of the SmartSalez terminal by anyone and the SmartSalez is not subject to replacement or any other claims. MoiterWorkz is not responsible for any theft, loss or damage to the SmartSalez terminals and the Distributor will be liable to pay damages to MoiterWorkz for any misuse or tampering of the SmartSalez terminal software.
12. LIMITATION OF LIABILITY:
• Under any circumstance or event, no MoiterWorkz, its directors, partners, affiliates, and successors and their respective officers, directors and employees will be liable / responsible to any party.
• For any defect in the product/merchandise/goods/services availed through SmartSalez , further MoiterWorkz does not warranty against any damage or defect.
• The parties shall not commit nor purport to commit the order to honour any obligation other than is specifically provided for by the Rules and Regulations as well as the Agreement.
• In the event of any breach of the intellectual property rights by the Distributor, MoiterWorkz has the rights to initiate action against the defaulting parry as per Trade Mark law/ Copyright Law and other applicable laws in India.
13. INDEMNIFY:
• The Distributor shall indemnify, defend and hold harmless MoiterWorkz and keep MoiterWorkz indemnified from and against all losses, claims, damages, charges, costs, expenses, liabilities, demands, proceedings and actions arising out of any breach of law or contravention of this Agreement by the Distributor. In particular, but without prejudice to the generality of the foregoing, MoiterWorkz will not be liable to any person in the event of force majeure, for the failure of, or damage or destruction to the central computer system or records, or any telecommunications, sudden withdrawal or changes in commissions for products and services sold through SmartSalez, non-provision of services or products or delay in provision of services and products by the 3rd party providers or other data transmission system for any delay resulting in nonreceipt of any entry for a particular transaction or on account of use or misuse of the SmartSalez by the Distributor or his retailer or his end customer on account of cancellation of services by the MoiterWorkz principals such as airlines or railways or such providers.
14. COMPLIANCE WITH LAW AND JURISDICTION:
• By executing this Agreement, Distributor agrees to comply with all relevant laws and / all regulations / guidelines/rules/regulations, local laws, company policy
• That may be applicable to the activity of sale of services through SmartSalez through the medium of Internet connectivity or any other means of connectivity.
• Company or its principals Terms & Conditions that may be applicable from time to time, which shall be communicated under Terms & conditions in the software.
• This Agreement shall also apply to such services/schemes as MoiterWorkz may introduce at a later date.
15. NON-COMPETE:
• The Distributor hereby agrees and undertakes that it shall not, during the term of this Agreement, directly or Indirectly, negotiate or engage In any business that Is similar to or competitive with MoiterWorkz business of SmartSalez and/or the Products including that of SmartSalez.
• Further the Distributor agrees that the terminals mapped under Distributor can be moved to other Distributor or direct company upon Distributor lithe Distributor is inefficient to provide top up services to agents or by signing up, either directly or indirectly, with competition as a Distributor for offering the same services to his agents who are doing SmartSalez and moving SmartSalez agents under him to competition. In addition to the above. MoiterWorkz has right to terminate his services or remove all his ids from his panel without any intimation.
16. NOTICES:
• Any notice, request or instruction required to be given hereunder shall be In writing and the same shall be sent through registered post or codified mail at the addressee of the parties mentioned herein above.
17. ARBITRATION:
• In the event of any dispute or difference arising at any time between the parties hereto as to the construction, meaning or effect of this Agreement or any clause or thing contained herein or the rights, duties, liabilities and obligations of the parties here to, the same shall be referred to the arbitration of a Sole Arbitrator (details are to be mentioned) appointed by MoiterWorkz whose decision shall be final and binding on the parties. The Arbitral Proceedings shall be In accordance with the Arbitration and Conciliation Act, 1996 and/or any statutory modification or re-enactment thereof for the time being in force. The venue of such arbitration shall be at Chennai only. The jurisdiction for the purpose of resolution of disputes under these presents will be at Chennai only. The language so used In the Arbitral proceedings shall be English.
18. JURISDICTION:
• This Agreement shall be governed by and interpreted according to the laws of India. Any legal actions pertaining to this Agreement shall be Instituted in the competent courts at Chennai only. This Agreement supersedes all previous Agreements, if any, entered by the Second Part with the First part.
19. PROPERTIES and TITLE:
• No property and title to the Products shall pass from the MoiterWorkz to the Distributor/Customer unless and until the fun and complete payment due is made.
20. ENTIRETY:
• This Agreement and the attached exhibits if any constitute the entire agreement between the parties with respect to this agreement and supersede any prior or contemporaneous understandings, oral or written, and all other communications between the parties.
21. PAYMENT TERMS:
• All the payments to the MoiterWorkz exclusive of tax shall be made by the Distributor in advance before the date of supply of the products, In respect of Product. received. Mode of payment shall be OD Payment or cheque (upon realization). Proof of delivery (POD) shall be maintained.
22. TAXES, CHARGES AND LEVIES:
• The Distributor agrees to beer all the taxes, charges, and fees payable to any Government Authorities, Local Authorities or any other Authorities established under any other Act In respect of the Products and further agrees to reimburse and / or refund or to pay any taxes, charges, levies In the event of the said Authorities revises the taxes or charges or levies retrospectively, whether during the tenure of this Agreement or thereafter
• In case any taxes become payable by MoiterWorkz the Distributor agrees to indemnify MoiterWorkz for any tax or levies imposed on the transactions conducted between the parties.
• Expressions MoiterWorkz and Distributor shall unless it be repugnant to the context or meaning thereof mean and include their affiliates, successors and assigns, heirs, executors, administrators.
23. THE DISTRIBUTOR SHALL BE RESPONSIBLE FOR THE FOLLOWING CONDITIONS:
• To take the responsibility for reselling the agency IDs purchased in a bulk.
TRIPARTITE AGREEMENT BETWEEN MOITER WORKS, DISTRIBUTOR AND RETAILER
This agreement is entered on ____________ of ______________ at Chennai between MoiterWorkzPrivate Limited (which expression unless it be repugnant to the context or meaning there of shall mean and include its successors and assigns unless the context otherwise excludes) of the First Party.
AND
M/s _____________________________________________________________ a Partnership firm / Proprietary concern/ HUF/ company having its office at _____________________________________________ herein after referred to as the RETAILER, (which expression unless it be repugnant to the context or meaning there of shall mean and include its successors and assigns unless the context otherwise excludes) of the Third Party
First Party has launched a product under the brand name, SmartSalez, through which retailers can launch their online and mobile stores within a day, subject to conditions, and start selling their products and services to their customers and earn an income. The First Party has appointed Distributor who can appoint retailers under his Distributorship to all those retailers who have shown interest and capability to use the SmartSalez for enhancing their business successfully.
1. You are authorized and licensed to use the SmartSalez platform for upload, exhibit and distributing your products and services
through the SmartSalez online and mobile platforms and you have been appointed as a Retailer under Distributor as long as you are fulfilling
the commercial requirements such as Set up fees and monthly licenses cum access fees:M/s___________________________________________________________________________________
2. The Retailer shall not have any right of ownership on SmartSalez properties including software and anyother software, intellectual property rights, processes, procedures provided by SmartSalez / MoiterWorkz. The Retailer should have a computing or a mobile computing device, printer, UPS, high speed internet access. The Retailer shall be responsible daily inventory of materials available in the store which can be easily uploaded or syncronised to the SmartSalez login of the Retailer etc. as per SmartSalez / MoiterWorkz specification to start using the SmartSalez platform. The Retailer and Distributor agree that the said software is a property of MoiterWorkz/ SmartSalez.
3. The Retailer shall not move his place of business to any other place other than the address mentioned in this agreement without prior approval of SmartSalez / MoiterWorkz. The Retailer shall provide and upload all photo ids, address proof for the place of business and business license.
4. The Retailer is solely responsible for getting all the required permission, approvals for any product or services made available through the SmartSalez platform. The retailer further undertakes not to sell any banned or expired products/ services through the SmartSalez platform. The retailer is liable for fulfillment of all the orders/ indents received from customers through the SmartSalez platform.
5. The Retailer agrees to provide his correct PAN card information to ensure enjoy the benefits of a lower TDS deduction as per IT norms.
6. The Retailer shall be provided with a basic marketing and CRM tool to communicate with his customers. He shall ensure that it is properly used and there is no misuse of the same. The Retailer takes responsibility for any communication sent through this marketing and CRM Tool.
7. The Retailer shall be responsible for the security of the software and will not allow any tampering of the same.The Retailer shall be liable to SmartSalez / MoiterWorkzfor any tampering or misusing of the software.
8. The Retailer shall ensure proper timely update of the following details in the SmartSalez platform like acknowledgement of all order received from customers, confirmation of availability of goods for delivery, intimation of partial/ full order not available, invoices for each order shall be uploaded either as an image or API and the amount entered against each order whenever the order is packed and kept ready for delivery or pick-up, and proof of delivery of goods, accept goods returned by customer due to any customer grievance, any other service that the customer may want from time to time.
9. The Retailer shall also indemnify SmartSalez / MoiterWorkzfrom and against any claim, losses, liability, cost and expenses which the customer / end user / any other party may suffer or incur by reason of the retailer or its employee’s actions.
10. On termination / withdrawal of SmartSalez terminal, the Retailer will allow SmartSalez / MoiterWorkzto remove the software from the system, failing which SmartSalez / MoiterWorkzwill initiate legal action and claim damages from the Retailer, if any.
11. The Retailer agrees to abide by the terms and conditions of SmartSalez / MoiterWorkzthat may be in effect from time to time.
12. The Retailer undertakes that the SmartSalez shall not be used for any promotion of any products or services which is considered illegal by the any administration or authorities either in the State or Central Laws.
13. The Retailer undertakes protect the intellectual property and other rights of SmartSalez/ MoiterWorkz.
14. SmartSalez/ MoiterWorkzshall hold all rights to suspend or withdraw the software license and access if the Retailer breaches any of the conditions and the decision of SmartSalez/ MoiterWorkzshall be final and binding on the Retailer.
15. The Retailer and the Distributor agree and indemnify SmartSalez/ MoiterWorkzthatSmartSalez/ MoiterWorkzare only the enablers of the sale of products and services and SmartSalez / MoiterWorkz cannot be held responsible for any problems that may arise out of the actions or inactions of the third party transport providers like Internet companies, Telecom, Utility and other principal companies, etc on whom SmartSalez/MoiterWorkz is dependent.
16. This letter of appointment contains the entire understanding with respect to the subject matter contained herein and supersedes all prior agreements and understanding both oral and written between the parties with respect to subject matter Henceforth this letter of appointment is and agreement made & entered between us.
17. This agreement shall be governed by the laws of India under Jurisdiction of Chennai High Court only.
18. The competent Court of Chennai shall have the exclusive jurisdiction power to entertain any dispute that may arise
19. This is an exclusive agreement between MoiterWorkz and the Retailer, and hence the Retailer shall not start/ register/ enter into contract or trade with a party in similar line of business or in competition with MoiterWorkz.