Terms and Conditions for Gold Pack Ad Program (“Terms”)

Terms and Conditions for Gold Pack (“Terms”)#

These Terms form part of the Service Request Form for Gold Pack (“SRF”) and constitute a legally binding agreement made between you, whether personally or on behalf of your entity (“the “Restaurant Partner”) and Zomato Limited (formerly known as Zomato Private Limited) and its affiliates (collectively “Zomato”), governing the use of service by the Restaurant Partner.

I. Definitions#

“Advertisement” shall mean promotional advertisement that is displayed on online and/or offline channels, as set out in the SRF, for the purpose of publicizing the Restaurant.
“Campaign Duration” shall mean the duration commencing from the Start Date to the End Date of the Services.
“Effective Date” shall mean the date on which the SRF is executed between Zomato and the Restaurant Partner.
“End Date” shall mean the date as set out in the SRF on which the Services will end.
“Fee” shall mean a service charge, which shall be payable by the Restaurant Partner to Zomato for the Service, as mentioned in the SRF.
“Parties” shall mean the Restaurant Partner and Zomato.
“Restaurant” shall mean a commercial establishment(s) for which the Restaurant Partner is executing the SRF, wherein food and beverage items are prepared and/or delivered to the customers.
“Restaurant Page” the dedicated restaurant listing of the Restaurant on the Zomato Platform.
“Services” shall mean the Advertisement services provided by Zomato through third-party service providers.
“Start Date” shall mean the date on which the Service will commence.
“Zomato Platform” shall mean the website of Zomato located at www.zomato.com and mobile application, owned and operated by Zomato.

Terms capitalized but not covered under the definition section above shall derive the meaning as provided under the online ordering terms and conditions available here.

II. Restaurant Partner’s Rights and Obligations#

The Restaurant Partner shall provide Zomato all information and content including artwork, creative(s), logo(s), picture(s), and write-up to be displayed by way of the Advertisement to Zomato (“Content”), in order to enable Zomato to provide the Service.
The Restaurant Partner acknowledges and agrees that the Advertisement once finalized and displayed by way of online or offline channels cannot be modified and/or stopped during the Campaign Duration of such Advertisement. However, after the Campaign Duration, the Restaurant Partner may request to modify or replace an Advertisement with a new Advertisement, after giving due notice to Zomato. For clarity, in the event the Campaign Duration is more than one (1) month, the Restaurant Partner may raise a request to modify and/or stop the Advertisement either at the completion of the first or second month.
The Restaurant Partner shall ensure that it has all rights, title, and interest in the Content that it has shared/will share with Zomato and that the Content is compliant with the Restaurant Partner’s internal branding guidelines and applicable laws. Zomato shall in no manner be liable for the Content displayed as Advertisement. The Restaurant Partner hereby agrees and acknowledges that Zomato and/or the third party service provider shall be authorized to use the logo and brand name of the Restaurant or the Restaurant Partner as the case may be, for the purposes of the Services.
The Restaurant Partner shall ensure to make timely payments of the Fees under these Terms.
In the event the Restaurant Partner has an ongoing collaboration with a third party and wishes to promote such collaboration by way of the Advertisement, the Restaurant Partner shall provide Zomato with a letter from such third party acknowledging the collaboration along with a no-objection letter from such third party (in a format acceptable to Zomato). It shall be the Restaurant Partner’s obligation to apprise the third party of the SRF and these Terms.
Except as expressly permitted by Zomato herein, the Restaurant Partner agrees to keep the contents of the SRF and these Terms confidential at all times.
Restaurant Partner shall provide Zomato with copies of its PAN, TIN, TAN, GSTIN, or any other document that may be requested by Zomato. Restaurant Partner shall be required to furnish a copy of these documents within five (5) days of signing the SRF failing which, Zomato reserves its right to not commence the Service on the Start Date and/or suspend the Service till such time Zomato receives such documents.

III. Zomato’s Rights and Obligations#

Upon execution of the SRF by the Restaurant Partner, Zomato shall commence the Services in accordance with these Terms read along with the SRF.
For the purpose of these Terms, the Restaurant Partner hereby grants Zomato the worldwide, non-exclusive, royalty-free right and license to use and reproduce, copy, distribute and display, in any medium now known or hereafter developed, the Content. Other than for formatting changes, in no event shall Zomato modify or alter the content, text or appearance of Content without Restaurant Partner’s prior written consent.
Unless otherwise agreed between the Parties in the SRF, Zomato shall be under no obligation to refund and/ or repay the Fee (full or part) received from the Restaurant Partner.
Zomato shall be under no obligation to amend and/ or alter the Start Date of the Service pursuant to a request received from the Restaurant Partner.
To the fullest extent permitted by law, Zomato shall exclude any liability with regard to the Content provided or approved by the Restaurant Partner and shall not be responsible for any action or claim initiated by any third party as a result of such Content on the Zomato Platform.
Zomato shall provide access to the Restaurant Partner to their statement of account(s) on the Restaurant Partner dashboard, on which the details for transaction will be available on a weekly basis.
The Restaurant Partner agrees and acknowledges that Zomato is merely facilitating the Services from third-party service providers and Zomato takes no responsibility and assumes no liability for posting/using the Content for which the usage rights have been granted by the Restaurant Partner.
Zomato shall not be liable to you for (i) special, incidental, exemplary, consequential or punitive damages, however, styled, including without limitation, lost profits or diminution in value or (ii) any losses due to forces beyond the control of Zomato.

IV. Payment#

The Restaurant Partner shall pay Zomato for the Services, as set out in the SRF (“Fee”). Zomato may revise the Fee payable for the Services with prior intimation to the Restaurant Partner.
The Fee charged shall be exclusive of applicable taxes. The Restaurant Partner shall be liable to pay all applicable taxes payments, fees, and any other liabilities arising under and/ or pursuant to executing the SRF.
The Restaurant Partner shall be solely responsible for verifying and filing the appropriate tax returns, and remitting the proper amount to the appropriate taxing authorities, where applicable. It is clarified that Zomato will not be liable for payment of any taxes that the Restaurant Partner is required to pay under the applicable laws.
Zomato shall raise tax invoices on the Restaurant Partner for the Fee in the manner as set out in the SRF. Unless otherwise set out in the SRF or otherwise in writing, any Fee (other than Advance Fee) shall be paid by the Restaurant Partner within thirty (30) days from the date of the invoice.
In the event Zomato requires the Restaurant Partner to make prepayment of Fee or a portion of the Fee for the Services (“Advance Fee”), the Restaurant Partner shall make payment towards the same at least ten (10) days prior to the Start Date.
In the event the Restaurant Partner fails to make timely payment of Fee or the Advance Fee for the Service, Zomato reserves the right to refuse/ suspend / discontinue the Service, as the case maybe. Upon receipt of payment (which is not later than fifteen (15) days from the applicable due date), Zomato may in its sole discretion, provide or reinstate the Service (as the case maybe) for remainder of the Contract Term or for periods commensurate to the time period for which the Service was delayed or suspended, without any written communication.
Furthermore, Zomato reserves the right to levy a penalty for the late payments / cheque getting dishonored. The penalty to be levied on the Restaurant Partner for cheque getting dishonored to Zomato shall be INR 500/-, and Zomato may modify such amount from time to time. The penalty levied on the Restaurant Partner for any late payments to Zomato shall be an interest at the rate of 18% per annum, that shall be calculated from the date such invoice became due and until the date the Restaurant Partner finally pays such invoice.
If any Advance Fee remains unutilized: a. Zomato may, in its sole discretion, extend the Service to the Restaurant Partner for upto a maximum of seven (7) days from the End Date (“Extension Period”). b. upon expiry of the Extension Period or when no Extension Period is provided by Zomato, such Advance Fee shall: i. be refunded to the Restaurant Partner; or ii. can be used by the Restaurant Partner to avail other services offered by Zomato within six (6) months from the End Date, failing which Restaurant Partner shall be required to raise a request for a refund of such unutilized Advance Fee with Zomato thereafter which Zomato shall refund such amount to the Restaurant Partner.
In cases where the Restaurant Partner is withholding any taxes under any applicable laws, the Restaurant Partner shall be obligated to provide Zomato with a copy of proof of such deduction within the time stipulated under the applicable law. In case of non-receipt of TDS credit, Zomato has a right to claim such TDS as recoverable from the Restaurant Partner against the invoice issued.
In order to comply with the provisions of Goods & Services Tax (GST) laws applicable in India, all invoices shall be issued by Zomato from its respective registered State office from where the Services are being rendered by Zomato. The list of respective state registered offices of Zomato across India is available at https://www.zomato.com/licences

V. Representations and Warranties#

Restaurant Partner’s representations and warranties: Restaurant Partner hereby represents and warrants to Zomato that:
i) Restaurant Partner has the power and authority to enter into and perform its obligations according to these Terms read along with the SRF; ii) Restaurant Partner has no restrictions that would impair its ability to perform its obligations and grant all rights contemplated by these Terms and the SRF; iii) Restaurant Partner has not and will not enter into any agreement that is inconsistent with its obligations hereunder; iv) none of the Content provided or approved by the Restaurant Partner will violate any rights of any third party including but not limited to intellectual property rights; v) none of the Content provided or approved by the Restaurant Partner will violate any applicable law; vi) none of the Content provided or approved by the Restaurant Partner will, when viewed or clicked on by a customer, cause such customer to download any software application; vii) Content provided by the Restaurant Partner will not be and/or link to any content that is defamatory, fraudulent, obscene, misleading or otherwise illegal; and viii) none of the Content will contain any viruses, trojan horses, trap doors, back doors, easter eggs, worms, time bombs, cancelbots or other computer programming routines that may potentially damage or interfere with Zomato.
Zomato’s Representation and Warranties: Zomato hereby represents and warrants to the Restaurant Partner that Zomato: i) has the power and authority to enter into and perform its obligations according to these Terms; and ii) has no restrictions that would impair its ability to perform its obligations contemplated by these Terms.

VI. Indemnity and Limitation of Liability#

Indemnification by the Restaurant Partner: The Restaurant Partner agrees and undertakes to indemnify and hold Zomato and its officers, directors, employees and agents, harmless against any and all losses, damages, liabilities, claims, costs and expenses, including attorneys’ fees, arising out of or in connection with any breach of Restaurant Partner’s representations and warranties or obligations set forth in these Terms.
Indemnification by Zomato: Zomato agrees and undertakes to indemnify and hold Restaurant Partner and its officers, directors, employees and agents, harmless against any and all losses, damages, liabilities, claims, costs and expenses, including attorneys’ fees, arising out of or in connection with any breach of Zomato’s representations and warranties or obligations set forth in these Terms.
Except in the case of indemnification set out in this clause VI, in no event shall either Party be liable for any direct, indirect, incidental, consequential, special, or exemplary damages, even if the Party has been advised of the possibility of such damages, cost, loss or expense of any nature suffered by the Restaurant Partner in execution of these Terms to the maximum extent allowed by the law.
Notwithstanding anything to the contrary herein contained, Zomato’s aggregate liability under the SRF and the Terms shall not exceed the payment received from the Restaurant Partner for the Services.

VII. Confidentiality#

Parties agree that any and all information, as present now or in the future, which is or may be a trade secret or of a confidential nature (in whatever media) regarding the operations, products, finance, marketing, customers, administration, maintenance, technology, research and development, future inventions and policies of either Party, including the existence and contents of these Terms and SRF, and all notes, memoranda, records and writings relating to the Services, shall be confidential information (together “Confidential Information”). Both Parties shall treat Confidential Information with the strictest confidence and secrecy and none of the Confidential Information shall be disclosed to any third party or used for purposes other than for the purposes of the Services.
The restrictions in sub-clause 1 of clause VII above do not apply to Confidential Information: (i) that is, or has, after disclosure to the receiving Party, entered into the public domain otherwise than as a result of a breach of confidentiality of the receiving Party; or (ii) that is properly and lawfully in the possession of the receiving Party prior to the time that it was disclosed by or acquired from, and was not acquired in any way directly or indirectly from, the disclosing Party or any of its or their respective directors, officers, employees or advisers (as evidenced by the written records or such person or persons) and provided that such information is not known to be subject to any other duty of confidentiality owed to or by the disclosing Party; or (iii) the disclosure of which is required by law or the rules of any applicable regulatory organization provided that, in such case, disclosure shall only be made to the extent reasonably necessary to comply with relevant law or rule and the disclosing Party shall be informed of the requirement such that the disclosing Party may apply for an injunction to prevent its disclosure; or (iv) that the disclosing Party has authorized the receiving Party in writing that the Confidential Information may be made public by the receiving Party.
The provisions of this clause shall survive the termination of these Terms and SRF and remain in force in perpetuity.

VIII. Termination#

Either Party may terminate the arrangement contemplated in the SRF and these Terms by giving the other Party a prior written notice of fifteen (15) days.
Zomato reserves the right to forthwith terminate the SRF and these Terms or suspend the Service on the Zomato Platform in the event the Restaurant Partner breaches any of the Terms set out herein or is in breach of any applicable laws. Zomato shall not return or refund any payment already paid by the Restaurant Partner for any termination due to breach of the Terms by the Restaurant Partner.

IX. Intellectual Property Rights#

The intellectual property rights in the Content provided by the Restaurant Partner hereunder shall vest solely with the Restaurant Partner. The Restaurant Partner agrees and acknowledges providing Zomato with an unrestricted, non-exclusive, royalty-free license in respect of all Content and information provided by the Restaurant Partner to Zomato.
Both Parties shall retain all rights in their individual intellectual property rights and upon executing the SRF and/ or accepting the Terms does not give either Party rights in the other Parties intellectual property rights, unless otherwise agreed in writing.

X. Governing Law and Dispute Resolution#

The SRF read along with these Terms shall be governed in accordance with the laws of India and the courts of New Delhi shall have exclusive jurisdiction to preside over any matters arising hereunder.

XI. Disclaimer#

To 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 SRF and these Terms, Zomato Platform and the Zomato services and any use thereof, including, without limitation, the implied warranties of Restaurant Partnerability, fitness for a particular purpose and non-infringement. Zomato makes no warranties or representations about the accuracy or completeness of the Zomato Platform or the Advertisement, content or the content of any other websites linked to the Zomato Platform, and assumes no liability or responsibility for any:

errors, mistakes, or inaccuracies of content and materials,
personal injury or property damage, of any nature whatsoever, resulting from the Restaurant Partner’s access to and use of the Zomato Platform,
any unauthorized access to or use of Zomato’s servers and/or any and all personal information and/or financial information stored therein,
any interruption or cessation of transmission to or from the website or otherwise with respect to the services,
any bugs, viruses, trojan horses, or the like which may be transmitted to or through the website by the Content of the Restaurant Partner,
click frauds, technological issues or other potentially invalid activity that affects the cost of service, and/or
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 Zomato Platform. Zomato does not warrant the results from use of service, and the Restaurant Partner assumes all risk and responsibility with respect thereto.

XII. Notices#

All notices, demands or consents required or permitted under these Terms shall be provided (i) by email provided by the other Party, or (ii) in writing and personally delivered or sent by telecopy, telegram or registered or certified mail, return receipt requested, or by a reputable overnight carrier to the address designated by the other Party and will be deemed to have been served when delivered, or if delivery is not accomplished by some fault of the addressee, when tendered. If to Zomato, such papers must be sent to legal@zomato.com to the attention of the legal team at Zomato. The Restaurant Partner agrees (i) to receive communications from Zomato in an electronic form, and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Zomato provides electronically satisfy any legal requirement that such communications would satisfy if they were in writing.

XIII. Modification#

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

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

XIV. General#

Assignment: These Terms shall not be assigned by the Restaurant Partner without the prior written consent of Zomato. Any purported transfer, assignment, or delegation without such prior written consent shall be null and void. Zomato may assign or transfer these Terms for any reason to any person and/ or to its affiliates. Subject to the foregoing, these Terms shall bind and inure to the benefit of each Party’s successors and permitted assigns.
Partial Invalidity: If any provision in these Terms is or becomes illegal, invalid or unenforceable in any respect under applicable law, neither the legality, validity nor enforceability of the remaining provisions will in any way be affected or impaired. Further, the Parties will negotiate, in good faith, a substitute, valid and enforceable provision, which most nearly affects the Parties’ intent in relation to the provision that has been held to be illegal, invalid or unenforceable.
Change of Control: The Restaurant Partner acknowledges that the business and assets of Zomato may be sold in the future and consents to the transfer or disclosure of its personal information and these Terms to any purchaser of the business of Zomato or its assets if that outcome occurs.
Acceptance to Zomato’s Privacy Policy: By signing the SRF, the Restaurant Partner acknowledges and agrees to be bound by Zomato’s privacy policy www.zomato.com/privacy. Restaurant Partner will immediately notify Zomato if it becomes aware of or suspects any unauthorized use or access to the user data or any other Confidential Information of Zomato, and shall cooperate with Zomato in investigation of such breach and the mitigation of any damage.
Independent Contractors: The relationship of Zomato and the Restaurant Partner is one of independent contractors, and nothing contained in these Terms will be construed to (i) give either Party the power to direct and control the day-to-day activities of the other, (ii) constitute the Parties as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking, or (iii) allow the Restaurant Partner to create or assume any obligation on behalf of Zomato for any purpose whatsoever. All financial obligations associated with Restaurant Partner’s business are the sole responsibility of the Restaurant Partner.

Last updated on October 14, 2022