HYPERPURE BY ZOMATO MERCHANT TERMS AND CONDITIONS ("TERMS")
These Terms form an integral part of the Merchant Enrolment Form for Hyperpure by Zomato ("Form") and constitute a legally binding agreement made between you, whether personally or on behalf of an entity (the "Merchant"), and Zomato Hyperpure Private Limited (formerly known as Zomato Internet Private Limited) and its affiliates (collectively, "Zomato"), regarding the use of Hyperpure Platform (as defined below) for the purchase of Goods (as defined below) by the Merchant from Zomato.
'Commencement Date' means the date on which the Merchant receives a confirmation email from Zomato upon successful completion of the sign-up process on the Hyperpure Platform or the date of execution of the Form, whichever is earlier.
'Credit Facility' means the option availed by the Merchant to place Order(s) on a credit basis during the Credit Period.
'Credit Limit' means the maximum amount that the Merchant is permitted to keep as outstanding during the Credit Period which may be revised by Zomato at its sole discretion without any prior intimation. This Credit Limit shall be communicated by Zomato to the Merchant in writing from time to time.
'Credit Period' means the period as communicated by Zomato to the Merchant, within which the Merchant shall clear all its outstanding dues.
'Goods' shall mean the goods available on the Hyperpure Platform.
'Hyperpure Platform' means the online technology platform owned by Zomato where the Goods are displayed and the Merchant can place Order(s) for the Goods.
'Logistics Partner' means third party logistics service provider, who delivers the Goods to the Merchant.
'Merchant' means the entity/individual being the legal owner/operator in the HORECA (hotel, restaurant or catering) sector as mentioned in the Form.
'Merchant Content' means any content including reviews, images, photos, audio, video, location data, nearby places, and all other forms of information or data provided on the Hyperpure Platform.
'Order(s)' means an order placed by the Merchant with Zomato for the purchase of Goods via the Hyperpure Platform or otherwise through offline assisted sales.
'Parties' means Zomato and the Merchant.
'Price' means the selling price of the Goods as indicated on the Hyperpure Platform and/or communicated by Zomato to the Merchant at the time of placing Order(s) and/or as intimated by Zomato to the Merchant from time to time.
‘Services’ means the services offered by Zomato to the Merchant through the Hyperpure Platform.
'Website' means www.hyperpure.com (including the webpages contained or hyperlinked therein and owned or controlled by Zomato), and such other media or media channels, devices, mobile applications, software, or technologies as Zomato may choose from time to time.
'Zomato Content' means the content that Zomato creates and makes available in connection with the Hyperpure Platform and the Goods 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 the activities associated with the Merchant’s account.
Zomato will list and display the Goods and the Prices on the Hyperpure Platform. The Merchant, upon signing up on the Hyperpure Platform, may use the Hyperpure Platform to browse, select and place Order(s) for purchase of the Goods.
Once the Order is placed, Zomato will indicate the tentative delivery time on the Hyperpure Platform and provide the Merchant with functionality to check for updates on the delivery status of the Order.
QUALITY STANDARDS; COMPLIANCE WITH APPLICABLE LAW:
Zomato will supply the Goods based on the description and specification of the Order(s) placed by the Merchant from time to time.
Parties shall conduct themselves in accordance with these terms and be in compliance with all applicable laws.
The Merchant understands and agrees that Zomato shall never be liable for manufacturing and/or manufacturing relating aspects of the Goods, as Zomato only sources the Goods from third-party manufacturers and supplies the Goods to the Merchant. It is hereby clarified that any issue concerning the manufacturing of the Goods including but not limited to quality, ingredients, shelf-life of the Goods, details on the packaging of the Goods etc., as may be required under applicable laws shall be the sole responsibility of the third party manufacturer and Zomato shall not form Party to such disputes. Zomato however shall extend its support to connect the Merchant with the third-party manufacturers. Further, Zomato disclaims its liability concerning deliveries of the Goods where the Goods are directly delivered from the third-party manufacturer to the Merchant’s location.
Term and Termination
The arrangement between the Parties shall start on the Commencement Date and unless terminated in accordance with this clause shall continue indefinitely ('Term').
Either party may terminate the arrangement, with or without cause, at any time by giving a seven (7) day prior written notice to the other party.
Zomato reserves the right to terminate the arrangement or suspend the access of Hyperpure Platform to the Merchant with immediate effect if:
Merchant defaults in making payment for two (2) consecutive times;
Upon the happening of any of the insolvency events such as bankruptcy, appointment of a receiver, administrator, liquidator, winding up, dissolution;
Zomato identifies any fraudulent and/or suspicious activity on the Merchant’s account;
The Merchant fails to comply with applicable laws and/or these Terms.
Termination of the arrangement: (a) in accordance with its Terms, shall not affect the accrued rights or liabilities of the Parties at the date of termination; and (b) shall have no effect on: (i) the validity of Goods already supplied to the Merchant; or (ii) Merchant’s obligations to pay for Goods already purchased and/or delivered in accordance with these Terms.
Pricing of Goods
Zomato agrees to sell the Goods to the Merchant at the Price as indicated on the Hyperpure Platform at the time of placing Order(s) or at such other price as mutually agreed between the Parties from time to time. Zomato reserves the right to revise the said Price at its sole discretion at any given time without prior notice to the Merchant prior to placing of Order(s).
Quality of Goods
It will be the responsibility of the Merchant to check the quality and quantity of the Goods at the time of delivery. In case the Merchant fails to raise any concerns related to quantity and/or quality of the Goods at the time of delivery, the Merchant will not have the right to raise a replacement request thereafter. The Merchant agrees that Zomato will not be responsible for any deficiency, damage, or claims as regards the quality or quantity of Goods after the Goods have been delivered to and accepted by the Merchant.
The Merchant will utilize the Goods ordered from the Hyperpure Platform before the specified expiry date, failing which, Zomato will not be held liable in any way for the quality of such Goods supplied.
Delivery TimelineOrder(s) placed by the Merchant through the Hyperpure Platform on any day will be delivered to the Merchant at the time-slot agreed at the time of placing the Order(s).
Obligations of Merchant
Merchant will make timely payment of invoices raised by Zomato for the sale of Goods in accordance with the Form and/or these Terms.
Merchant will accept the delivery of Goods once it arrives at the designated location of the Merchant, without causing any delay. Zomato will attempt delivery only once. In case, there is a delay of more than ten (10) minutes in accepting the delivery of the Goods, Zomato reserves the right to recall the Goods without refunding the payment for the Goods to the Merchant.
Merchant will provide all information and support that may reasonably be requested by Zomato to enable it to discharge its duties under these Terms.
If the delivery address of the Merchant requires delivery of the Goods on a higher floor (more than two (2) floors) of a building, it will be the Merchant’s sole responsibility to provide an elevator service/assistance to deliver the Goods to the designated address.
Merchant will ensure that the information provided to Zomato is current and accurate, including but not limited to the Merchant’s name, address, contact telephone number, email, manager/contact person details, delivery address, delivery times, and other relevant information.
Merchant may request Zomato to cancel the Order(s) placed through the Hyperpure Platform or through assisted offline sales, and based on such request, Zomato may reasonably review the possibility of canceling such Order(s). However, Zomato does not guarantee cancellation of the Order and/or return/refund of the Price once the Order has been placed.
The Merchant will be solely responsible for the non-delivery of the Goods, in case the Merchant fails to accept the delivery of Goods at the designated location and within the agreed timelines due to reasons attributable to the Merchant. Zomato further reserves the right to levy a penalty of INR 1500/- (Indian Rupees one thousand five hundred only) for the losses suffered by Zomato due to such failure in accepting the delivery within the agreed timeline.
Invoice and Payments
Zomato will deliver the Goods along with the relevant invoice.
In consideration for the Goods sold by Zomato, the Merchant shall be liable to pay Zomato the Price, as reflected on the Invoice shared at the time of delivery of Goods to the Merchant.
Merchants availing the Credit Facility:
Merchants who are eligible and avail the credit facility from Zomato, agree to be bound by the following terms;
They will clear the Invoices within the Credit Period as informed by Zomato to the Merchant from time to time, failing which Zomato reserves the right to disable the Merchant from placing any further Order(s) via Hyperpure Platform till such time the Merchant clears its outstanding dues in addition to taking appropriate legal action against the Merchant that may be available to Zomato under these Terms or as per applicable laws. Zomato, also reserves the right to, at its own discretion, levy an interest at the rate of 18% per annum for each day of overdue till the time the Merchant clears its outstanding dues.
Notwithstanding anything contrary contained in these Terms or the Form, the Merchant, on behalf of itself and all its affiliates, hereby unconditionally and irrevocably authorizes Zomato and all Zomato Group Companies to withhold and deduct any amounts payable to the Merchant under any agreement, arrangement or understanding between the Merchant and any Zomato Group Company, and apply such amounts to set off any amounts owed by the Merchant to Zomato under, or in connection with the Form and/or Terms. For the provisions of this clause, the term “Zomato Group Company” shall be deemed to include its parent company (i.e. Zomato Limited) and any of its affiliates and subsidiaries.
The Merchant will provide Goods and Service Tax Identification Number ('GSTIN'), Permanent Account Number ('PAN'), and such other documents as may be required by Zomato for the purpose of generating appropriate Invoices and for settlement of payments.
Zomato will raise the Invoice to the Merchant at the time of delivery of Goods containing such particulars as may be prescribed under the GST act and rules thereunder, as amended from time to time for the cost of Goods plus applicable taxes ('Invoice').
The tax collected at source under (“TCS”) u/s 206C(1H) of the Income Tax Act, 1961:
Zomato is required to collect tax at source against consideration collected above the threshold limit prescribed under the Income Tax Act, 1961 at the applicable rate. Zomato hereby clarifies that TCS u/s 206C(1H) of the Income Tax Act, 1961 will be levied on the Invoice at the time of placing the Order(s) by the Merchant and on the full value as provided in the Invoice.
Zomato will remit the collected TCS u/s 206C(1H) of the Income Tax Act, 1961, to the respective government account and report against the PAN as available on Zomato records. Such remittances and reportings will be considered as complete fulfillment of Zomato's obligations in this regard. Zomato will share a quarterly TCS certificate with the Merchant within the time stipulated under the Income-tax Act.
The Merchant will be solely responsible to provide correct PAN details to Zomato and reconcile TCS u/s 206C(1H) of the Income Tax Act, 1961, with the tax statements and certificates provided by Zomato from time to time.
The Merchant may be eligible to claim credit of the TCS u/s 206C(1H) of the Income Tax Act, 1961, on the basis of tax returns filed by it with the relevant government tax authorities. Merchant acknowledges and agrees that it is the Merchant’s responsibility to reconcile and claim correct credit for the TCS u/s 206C(1H) of the Income Tax Act, 1961, for which the Merchant may be eligible. Merchant also agrees that in the event of any discrepancy between the returns filed by the Merchant and those filed by Zomato, the values reported by Zomato shall have precedence over the tax returns filed by the Merchant.
Any discrepancy identified at the time of reconciliation by the Merchant should be brought to the attention of Zomato within a period of fifteen (15) days from the date of receipt of the TCS certificate. Any delay on this account will relieve Zomato of any obligation to undertake corrective action to resolve the discrepancy. Under no circumstances, Zomato shall entertain any discrepancy in the reported value after 31st July of the year following the financial year to which the transactions were undertaken and reported.
Merchant agrees and acknowledges that Zomato shall not be held liable in any manner in the event the Merchant does not receive the benefit of TCS due to incorrect particulars provided by the Merchant to Zomato.
Effect of TerminationIn case of termination of this arrangement, all pending undisputed Invoices will be paid by the Merchant to Zomato, within a period of seven (7) days from the date of such termination, failing which, Zomato will levy an interest at the rate of 18% per annum for each day of overdue till the time the Merchant clears its outstanding dues in addition to taking appropriate legal action against the Merchant that may be available to Zomato under these Terms or as per applicable laws..
Ownership of Zomato Content and Proprietary Rights
Zomato solely and exclusively owns the Zomato Content and all the copyrights, trademarks, service marks, logos, trade names, distinctive brand features, and other intellectual and proprietary rights throughout the world associated with the Hyperpure Platform and Zomato Content (the 'IP Rights'), which may be protected by applicable intellectual property and proprietary rights and laws. The Merchant acknowledges that the Hyperpure Platform contains original works and has been developed, compiled, prepared, revised, selected, and arranged by Zomato through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money, and constitutes the valuable intellectual property of Zomato.
Merchant agrees to protect Zomato's IP Rights and the proprietary rights of all others having rights in the Hyperpure Platform during and after the Term and to comply with all reasonable written requests made by Zomato or its suppliers and licensors of content or otherwise to protect their and others' contractual, statutory, and common law rights in the Hyperpure Platform. Merchant acknowledges and agrees that Zomato (or Zomato's licensors) own all legal rights, titles, and interests in and to Hyperpure Platform, including any IP Rights which subsist in the Hyperpure Platform (whether those rights happen to be registered or not, and wherever in the world those rights may exist). Unless the Merchant has agreed otherwise in writing with Zomato, nothing in these Terms gives Merchant a right to use any of Zomato's IP Rights.
Merchant agrees not to use any framing techniques to enclose any trademark or logo or other proprietary information of Zomato; 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 IP Rights and/or any other proprietary mark(s). Any infringement will lead to appropriate legal proceedings against the Merchant at the appropriate forum for seeking all available/possible remedies under applicable laws of the country. Merchants cannot modify, reproduce, publicly display or exploit in any form or manner whatsoever any of Zomato Content in whole or in part except as expressly authorized by Zomato.
ConfidentialityParties shall strictly protect the confidentiality of all information related to the other party, its affiliates, customers, or customers of affiliates including information relating to business plans, formulations, suppliers or Merchants, product details, packaging information, commercial details, and the facts and contents of these Terms, disclosed by either party or becoming known to either party during the term of these Terms, whether or not in writing and whether or not designated to be confidential ('Confidential Information'). Confidential Information does not include information that is or was, at the time of the disclosure: generally known or available to the public.
Generally known or available to the public;
received by the receiving Party from a third party;
already in receiving Party’s possession prior to the date of receipt from disclosing Party; or
independently developed by the receiving Party without the use of the other Party’s Confidential Information.
Merchant will immediately notify Zomato if it becomes aware of or suspects any unauthorized use or access to the data or any other Confidential Information of Zomato, and shall cooperate with Zomato in investigation of such breach and the mitigation of any damage
DisclaimersTo the fullest extent permitted by law, Zomato and its affiliates, and each of their respective officers, directors, members, employees, and agents disclaim all warranties, express or implied, in connection with the Form, these Terms, and the Hyperpure Platform, and any use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Zomato makes no warranties or representations about the accuracy or completeness of the content and data on Hyperpure Platform or the Zomato content or the content of any other websites linked to the website, and assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content and materials, (b) personal injury or property damage, of any nature whatsoever, resulting from the Merchant's access to and use of Hyperpure Platform, (c) any unauthorized access to or use of Zomato's servers and/or any and all personal information and/or financial information stored therein, (d) any interruption or cessation of transmission to or from the Hyperpure Platform (e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Hyperpure Platform by any third party, and/or (f) any errors or omissions in any content and materials or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available via the Hyperpure Platform.
IndemnityThe Merchant hereby undertakes to indemnify, hold harmless, and defend Zomato against any and all claims, costs, damages and losses that may arise on account of breach of any Merchant obligation and/or any act or omission of the Merchant or its employees, provided such claim, cost, damage, or loss has not resulted from any gross negligence or wilful misconduct directly and solely attributable to Zomato.
Limitation of LiabilityUnder no circumstances shall either party be liable for incidental, special, or consequential damages (however arising), including, but not limited to, loss of profit, loss of use or loss of revenue, or damage to business or reputation arising hereunder, whether or not such Party has been made aware of the possibility of such loss.
NoticesAll notices will be given in writing by registered post, hand delivery, or by way of email to the following addresses:
Governing LawThe Form and/or these Terms shall be governed by, and construed in accordance with, the laws of India, without regard to the principles of conflict of laws. The Parties hereto consent to and agree to submit to the exclusive jurisdiction of the courts of New Delhi for any action or proceeding arising under or by reason of the Form and/or these Terms and to the venue of such action or proceeding in such courts.
SeverabilityIf any part or any provision of the Form and/or these Terms is or becomes illegal, invalid, or unenforceable, that part or provision shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the validity or enforceability of the remaining parts of said provision or the remaining provisions of Form and/or these Terms. The Parties hereby agree to attempt to substitute any invalid or unenforceable provision with a valid or enforceable provision, which achieves to the greatest extent possible the economic, legal, and commercial objectives of the invalid or unenforceable provision.
WaiverEach Party agrees that any delay or omission on the part of the other party to exercise any right, power, or remedy under the Form and/or these Terms will not automatically operate as a waiver of such right, power, or remedy or any other rights, powers, or remedies and no waiver will be effective unless it is in writing and delivered to the other party in the manner. Further, the waiver or the single or partial exercise of any right, power, or remedy by either party hereunder on one occasion shall not be construed as a bar to a waiver of any successive or other rights, powers, or remedies on any other occasion.
Entire AgreementForm and/or these Terms, together with the other documents specifically attached to the Form or referred to herein, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior understandings, promises, representations, agreements, and negotiations between the Parties, oral or written. These Terms are an electronic record and do not require any physical or digital signature, as per the Information Technology Act, 2000.
No Third Party RightsNo term of the Form and these Terms shall be enforceable by a third party.
No AssignmentThe Merchant must not assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with the Form or any right, benefit or interest under it, nor transfer, novate or sub-contract any of the Merchant’s obligations under it.
Independent contractorsThe Form does not create any agency, employment, partnership, joint venture, or other joint relationship. Zomato and the Merchant are independent contractors and neither has any authority to bind the other.
ModificationZomato may modify these Terms including upgrading, modification, or replacement of the Services from time to time, and any such changes will (i) be reflected on the Hyperpure Platform and the Website, and (ii) be effective immediately upon the changes being reflected on the Hyperpure Platform and the Website. The Merchant agrees to be bound by any such changes or modifications and understands and accepts the importance of regularly reviewing these Terms as updated on the Hyperpure Platform and the Website from time to time.
Loans through third parties for OrdersIf the Merchant uses any third party credit facility, whether directly made available by any bank or financial institution either directly or through a lending service provider (“Lender”) for the purchase of any Goods on the Hyperpure Platform (“Loan”), the Merchant acknowledges and agrees that:
the Merchant shall be solely responsible for the repayment of the Loan at all times (including in case of termination of the arrangement, if any, between Zomato and such bank/ financial institution/ lending service provider);
the Merchant shall deal with the lending service provider and/or their lending partners directly for all queries/ grievances in relation to the Loan;
if any Loan is availed by the Merchant, and the Merchant defaults in its repayment obligations in relation to such Loan as communicated by the Lender or its representatives, Zomato may, in its sole discretion, restrict the Merchant’s ability to make further purchases on the Hyperpure Platform. Zomato shall not be responsible or held liable in any manner whatsoever for the same;
Zomato and its affiliates are not and shall not be deemed to be a lender, a digital lending application or a lending service provider with respect to the Loan, as per the Guidelines on Digital Lending dated September 2, 2022, as amended from time to time.