TERMS AND CONDITIONS OF CUSTOMER ENROLMENT FORM#
These Terms form part of the Customer Enrolment Form for Zomato Celebrations Services ("Form") and constitute a legally binding agreement made between you, whether personally or on behalf of an entity (the "Customer"), and Zomato Limited (Formerly known as Zomato Private Limited and Zomato Media Private Limited) and its affiliates (collectively, "Zomato"), regarding use of Services (as defined hereinafter).
1. Definitions#
a) "Agreement" means a contract between Zomato and the Customer governed by the terms and conditions set out in the Form read with these Terms.
b) "Code" means the digital promotional code provided by Zomato to the Customer.
c) "Eligible Users" means users who place Orders through the Zomato Platform using the Code.
d) "Effective Date" refers to the effective date of the Form.
e) "Facilitation Fees" means the non-refundable amount set out in the Form, payable by the Customer when availing Services from Zomato.
f) "Order" means the placement of an order by the Eligible User for the purchase of food and beverage items via the Zomato Platform.
g) "Order Value" means the amount which is payable by the Customer upon placement of an Order with the restaurant partners listed on the Zomato Platform.
h) "Parties" means Zomato and the Customer.
i) "Promo Discount" means the face value of the promo code provided by Zomato to the Customer by way of Codes.
j) "Sensitive Personal Data or Information" shall have the meaning ascribed to such term in the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011, or any other applicable law, as amended from time to time, which as on the date of these Terms means such personal information that relates to the Eligible User, which, either directly or indirectly, in combination with other information available or likely to be available with the Customer is capable of identifying such Eligible User and which consists of information relating to: (i) passwords; (ii) financial information such as credit card details; (iii) physical, physiological and mental health condition; (iv) sexual orientation; (v) medical records and history; (vi) biometric information; (vii) any detail relating to the above types of data provided to a body corporate for providing services; and (viii) any information received under any of the above heads by a body corporate for processing or storing under a lawful contract or otherwise.
k) "Services" means the Zomato Celebrations services offered by Zomato to the Customer. l) "Zomato Platform T&Cs" means the online terms and conditions agreed between Eligible User and Zomato governing the access and use of the Zomato Platform, including the terms and conditions available at https://www.zomato.com/conditions.
m) "User Data" means any and all identifiable information about Eligible User provided by the Customer, including, but not limited to, Sensitive Personal Data or Information, Eligible User’s name, delivery addresses, email addresses, phone numbers, and preferences, to be governed by the privacy policy located at https://www.zomato.com/privacy.
n) "Zomato Platform" means Zomato’s (i) website accessible at www.zomato.com; (ii) mobile site and/or (iii) mobile application, which enables the Eligible Users to (i) place an Order for the purpose of purchasing food and beverage items; and (ii) track the status of the Order placed by such Eligible User; and (iii) facilitates a provision of payment by the Eligible User towards the food and beverage items purchased through these platforms.
2. Scope#
a) Zomato shall provide the Codes to Customer which shall be communicated by Customer to the Eligible Users.
b) The Eligible Users shall be entitled to use the Code on the Zomato Platform to avail discounts upto the face value of the Promo Discounts on their Orders.
c) The use of Zomato Platform by the Eligible Users shall be subject to the Zomato Platform T&Cs.
3. Zomato’s Obligations#
a) Zomato shall provide the Codes to the Customer which may be distributed by the Customer to the Eligible Users. The Customer shall be solely responsible to distribute the Codes to Eligible Users, and Zomato shall have no liability in this regard.
b) Within 24 (twenty four) hours from the date of receipt of the Change Notice (as defined in Clause 4 hereinbelow) by Zomato, Zomato shall (i) enable use of the Codes by such Eligible Users as notified by Customer in the Change Notice; and/or (ii) block usage of the Code for such Eligible Users as notified by Customer in the Change Notice.
c) Zomato shall not be required to perform any obligation not expressly set forth herein or in the Form.
4. Customer’s Obligations#
a) Codes shall not be sold or re-sold, directly or indirectly, by the Customer.
b) Customer shall provide the Code(s) to such Eligible Users as determined by the Customer at its sole discretion for the purpose of using such Codes on the Zomato Platform.
c) Customer shall be solely responsible for communicating the Code(s) to Eligible Users.
d) Customer shall provide Zomato a list of the Eligible Users who shall be entitled to avail the Code upto the Promo Discounts. If the Customer wishes to (a) add any new Eligible User to; and/or (b) delete any Eligible User from the existing list of Eligible Users who are entitled to receive the Code, Customer shall, through its Designated Representative identified in the Form, provide Zomato a three (3) days’ written notice (each, a “Change Notice”) containing the name, e-mail address, mobile number and such other details of the Eligible Users (as mutually agreed between the Parties from time to time) to be added to, or deleted from, the existing list of Eligible Users.
e) The Customer acknowledges and agrees that it shall pay the amount equivalent to Promo Discount for all the Code(s) received by the Customer from Zomato.
f) Customer shall be solely liable to obtain requisite consents from the Eligible Users for sharing User Data with Zomato.
5. Consideration and Taxes#
a) In consideration of the provision of the Code(s), the Customer shall pay Facilitation Fees (plus applicable taxes) and shall pay the Promo Discount at such duration as agreed between the designated representatives of the Parties set out in the Form. With respect to the amount received as advance for the cost of Promo Discount from the Customer, Zomato shall raise a commercial invoice (without GST).
b) Zomato shall raise invoices on the Customer for payment of Facilitation Fees as set out in the Form. Invoices raised by Zomato shall contain such particulars as prescribed under the GST Act and Rules thereunder, as amended from time to time for the Fees payable by the Customer. The details for Zomato's GSTIN information are available on www.zomato.com/licenses.
c) The Customer shall pay the tax invoices and commercial invoice within such period of time as set out in the Form. The Customer shall make payment of Facilitation Fees and commercial invoice of Promo Discount in accordance with data provided by Zomato or as mutually agreed between the Parties. Customer hereby acknowledges and agrees that the data provided by Zomato shall be final and binding on the Parties for the purpose of payment of Facilitation Fees and payment of Promo Codes Discount.
d) In the event of failure on part of the Customer to make payments to Zomato in a timely manner, Zomato reserves its right to take appropriate legal action against the Customer that may be available to it under the Agreement or as per applicable law. Any late payments to Zomato shall attract an interest at the rate of 2% per month from the date the invoice and commercial invoice became due and payable and until the date when such invoice and commercial invoice is finally paid.
e) If as per the applicable tax laws, the Customer is liable to deduct taxes at source (**“TDS”) on the Facilitation Fees paid to Zomato, Customer shall make payment of Facilitation Fees net of such TDS and shall provide a proof of such TDS deduction within time stipulated under applicable the tax laws. In case of non-receipt of TDS credit and TDS certificate, Zomato has a right to claim such TDS amount as recoverable from the Customer against the invoice issued.
f) Upon signing of the Form, the Customer shall provide GST Identification Number and such other documents as may be required by Zomato for the purpose of generating appropriate invoices and for settlement of payments.
6. Confidentiality#
a) Other than for provision of Services by Zomato, Zomato does not share any other information of the Customer with third parties unless requisitioned by government authorities.
b) Other than for the purpose of availing Services from Zomato, the Customer must not disclose any confidential information about Zomato, including but not limited to these Terms, its business strategies, pricing, revenues, expenses, User Data, and Order information to third parties.
7. Warranty and Indemnity#
a) Customer warrants that if the Customer ceases to do business, closes operations for a material term or is otherwise unable to perform its obligations, it will inform Zomato promptly. Where the Customer neglects to do so, whether by omission or fault, Zomato will not be held responsible for any liabilities, whether financial or otherwise.
b) Customer warrants that it complies and will remain compliant with the applicable laws, rules and regulations and any other requirements in the relevant State or Territory and all other applicable regulations or standards.
c) Customer warrants to procure and keep valid during the subsistence of these Terms, all requisite licenses and/or registrations thereunder and provide copy of such licenses and/or registrations to Zomato prior to availing the Services.
d) To the fullest extent permitted by applicable laws, the Customer agrees to indemnify and hold Zomato (and its directors, officers, agents, representatives and employees) harmless from and against any and all claims, suits, liabilities, judgments, losses, expenses and damages (including legal expenses) arising out of or in connection with any claim or suit or demand:
by an Eligible User for reasons not attributable to the Services;
in respect of or connected to the collection or payment of applicable taxes in any way connected to these Terms or any matter or goods or services under or arising from it (e.g. Services);
in respect of the warranties provided by the Customer in Clause 7 (Warranty and Indemnity) hereto;
brought either by Zomato and/or third party on account of misuse, abuse, cheating, fraud, misrepresentation carried out by the Customer;
in respect of, arising out of or in connection of any use of the User Data, not in accordance with the Terms and/or the applicable law;
for any misleading or incorrect or false, information or data provided by the Customer;
Resulting from violation of intellectual property rights of Zomato or any third party;
brought by an Eligible User against Zomato for an act or omission attributable to the Customer or its employees and representatives, including without limitation, non-obtainment of requisite consents from the Eligible User for sharing of his/her User Data with Zomato and processing of the same by Zomato;
resulting from breach of applicable laws by Customer and/or any of its employees and representatives, including without limitation, data protection laws; and
resulting from violation of any of the terms and conditions of the Agreement by Customer and/or any of its employees and representatives.
e) Zomato warrants that it will undertake its obligations with reasonable skill and care.
f) Zomato does not guarantee or warrant that the Zomato Platform or Services will be free from defects or malfunctions. If errors occur, it will use its best endeavours to resolve these as quickly as possible.
8. User Data#
a) The Customer agrees that the Customer will obtain explicit and requisite consents from the Eligible Users before sharing their User Data with Zomato. The Customer shall be solely liable to obtain consents from Eligible Users for processing of their User Data by Zomato. The Customer represents, warrants, and covenants that Zomato shall not be liable to obtain any consents from Eligible Users for processing the User Data of Eligible Users for the purposes of the Agreement. The Customer (and any other persons to whom the Customer provides any User Data) will implement and comply with reasonable security measures in accordance with the applicable laws, in protecting, handling, and securing the User Data. If any User Data is collected by the Customer (or otherwise on its behalf), the Customer shall ensure that it (and any applicable third parties) adopts, posts, and processes the User Data in conformity with an appropriate and customary privacy policy and processes and uses such User Data in compliance with applicable laws. The User Data shall be governed by the privacy policy located at https://www.zomato.com/privacy.
9. Term and Termination#
a) Zomato, at its sole discretion, reserves the right to suspend and/or terminate the Services immediately without any notice to the Customer on account of any alleged or threatened or actual (i) suspicious activity; and /or (ii) breach of any intellectual property right of Zomato or any third party by the Customer; and/or (iii) any false misrepresentation by the Customer; and/or (iv) fraudulent activity. The Customer hereby agrees and acknowledges that the aforementioned right to terminate and/or suspend the Services is without prejudice and in addition to any other right or remedy that Zomato may have under applicable laws.
10. Notice requirements#
a) Factors that prevent the Customer from fulfilling its obligations under the Agreement should promptly be reported to Zomato by contacting the account manager appointed by Zomato or by writing an email to foodatwork@zomato.com.
11. Disclaimers#
a) 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 this Form, the Zomato Platform and the Services 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 the Zomato Platform or the Services' content or the content of any other websites linked to the Zomato Platform, and assumes no liability or responsibility for any (i) errors, mistakes, or inaccuracies of content and materials, (ii) personal injury or property damage, of any nature whatsoever, resulting from the Eligible Users’ access to and use of the Zomato Platform and the Services, (iii) any unauthorized access to or use of Zomato' servers and/or any and all personal information and/or financial information stored therein, (iv) any interruption or cessation of transmission to or from the Zomato Platform or otherwise with respect to the Services, (v) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Zomato Platform or the Services by any third party, and/or (vi) 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 or the Services.
12. Limitation of Liability#
a) 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 the Form, including liability expressly provided for under the Form or arising by reason of the invalidity or unenforceability of any term of the Form.
b) Zomato does not exclude or limit liability for any Liability that cannot be excluded by law.
c) Subject to the preceding sentence, Zomato 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. Although Zomato will use its best endeavours to ensure that the unintentional operational errors do not occur, Zomato cannot provide any warranty or guarantee in this regard.
d) Notwithstanding anything to the contrary herein set out, Zomato’s aggregate liability under the Form shall not exceed the total amount of Facilitation Fees paid under the Form pursuant to which the claim arose. e) Acceptance to Zomato’s Privacy Policy: By signing the Form, the Customer acknowledges and agrees to be bound by Zomato’s privacy policy (www.zomato.com/privacy). The Customer 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. f) In case of any inconsistencies or conflicts between the Form and these Terms, these Terms, the Customer acknowledges that these Terms shall prevail.
13. Modification#
a) Zomato may modify these Terms from time to time, and any such changes will (i) be reflected on the Zomato Platform, and (ii) be effective immediately upon the changes being reflected on the Zomato Platform. The Customer 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.