Terms and Conditions for Extra Inventory Ad Program (“Terms”)#
These Terms form part of the Service Request Form (“SRF”) and constitute a legally binding agreement made between you, whether personally or on behalf of your entity (“the “Merchant”) and Zomato Limited (formerly known as Zomato Private Limited) and its affiliates (collectively “Zomato”), governing the use of Extra Inventory Ad Program (“Program”) service by the Merchant.
I. DEFINITIONS#
“Advertisement” shall mean promotional advertisement that is displayed on the Zomato Platform for the purpose of publicizing the Restaurant.
“Advertisement Spends” shall mean the percentage (%) of Net Sales that the Merchant spends during the Campaign.
“Advertisement CV” shall mean the order value (including item value plus packaging charges minus merchant discount) generated through Advertisement orders.
“Campaign” shall mean the promotional campaign for the Merchant’s Restaurant.
“Effective Date” shall mean the date on which the SRF is executed between Zomato and the Merchant.
“Form” shall mean the Service Request Form for the Program.
“Party(ies)” shall mean the Merchant and Zomato.
“Restaurant” shall mean a commercial establishment(s) for which the Merchant is executing the SRF, wherein food and beverage items are prepared and/or delivered to the customers.
“Return on Investment (ROI)” shall mean Advertisement CV divided by the Advertisement Spends.
“Start Date” shall mean the date on which the Campaign is taken live.
“Zomato Platform” shall mean the website of Zomato located at, www.zomato.com; and mobile application, owned and operated by Zomato.
II. Merchant’s Rights and Obligations#
The Merchant shall set, at their own discretion, the Start Date of the Campaign.
The Merchant agrees and acknowledges that for the purpose of this Program, Advertisement order attribution is twenty-four (24) hours from last viewing of the Advertisement of the Restaurant.
The Merchant shall ensure that it has all rights, title, and interest in the content, including the artwork, creative(s), logo(s), picture(s), and write-up to be displayed by way of the Advertisement that it has shared/will share with Zomato (“Content”) and that the Content is compliant with the Merchant’s internal branding guidelines and applicable laws. Zomato shall in no manner be liable for the Content displayed on the Zomato Platform. The Merchant hereby agrees and acknowledges that Zomato shall be authorised to use the logo and brand name of the Restaurant or the Merchant as the case may be, for its promotions.
If the Merchant requires any modification in the Content of the Advertisement on the Zomato Platform, the Merchant may send such modification request at priority@zomato.com (“Modification Request”). Zomato will use its best endeavors to update the Content within a reasonable time from the receipt of such Modification Request.
The Merchant agrees and acknowledges that Zomato does not guarantee any minimum or maximum number of impressions, clicks and Advertisement CV under the Program.
Except as expressly permitted by Zomato herein, the Merchant agrees to keep the contents of the SRF and these Terms confidential at all times.
Merchant shall provide Zomato with copies of its PAN, TIN, TAN, GSTIN, or any other document that may be requested by Zomato. Merchant 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 Campaign on the Start Date and/or suspend the Campaign till such time Zomato receives such documents.
III. Zomato’s Rights and Obligations#
Upon execution of the SRF by the Merchant, Zomato shall commence the Campaign on the Start Date in accordance with these Terms read along with the SRF.
For the purpose of these Terms, the Merchant 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 Merchant’s prior written consent.
To the fullest extent permitted by law, Zomato shall exclude any liability with regard to the Content provided or approved by the Merchant 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 Merchant to their statement of account(s) on the merchant dashboard, on which the details for transaction will be available on a weekly basis.
Zomato shall at all times ensure that the Advertisement Spends as agreed with the Merchant during the Campaign do not exceed the limit as set by the Merchant in the SRF.
IV. Payment#
Zomato shall raise appropriate invoice(s) on the Merchant for the Campaign based on percentage (%) of Advertisement CV, as set out in the Form. Payment for such invoice(s) will be settled by way of reduction from the weekly payouts of the Merchant. Amount deducted shall reflect separately and identifiable on the Merchant’s statement of account.
Payment against Advertisement invoice(s) will be settled by way of reduction from the weekly payouts made to the Merchant. Amount deducted shall reflect separately and identifiable on the Merchant’s statement of account.
The Merchant shall be liable to pay all applicable taxes, payments, fees, and any other liabilities arising under and/ or pursuant to executing the SRF. The Merchant shall be solely responsible for verifying and filing the appropriate tax returns, and remitting the proper amount to the appropriate taxing authorities, where applicable. It is clarified that Zomato will not be liable for payment of any taxes that the Merchant is required to pay under the applicable laws.
Where Merchant is liable to deduct tax (TDS) on the Advertisement services by Zomato, Merchant shall pay such TDS to the government account and provide a TDS certificate for Zomato to reimburse within ninety (90) days from the end of quarter to which the Campaign pertains. In event of delay by the Merchant, Zomato reserves its right to deny refund, unless tax benefit for the such TDS was claimed in the Income tax returns filed for the relevant period.
V. Representations and Warranties#
“Merchant’s representations and warranties:” Merchant hereby represents and warrants to Zomato that:
i. Merchant has the power and authority to enter into and perform its obligations according to these Terms read along with the SRF;
ii. Merchant has no restrictions that would impair its ability to perform its obligations and grant all rights contemplated by these Terms and the SRF;
iii. Merchant 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 Merchant 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 Merchant will violate any applicable law;
vi. none of the Content provided or approved by the Merchant will, when viewed or clicked on by a customer, cause such customer to download any software application;
vii. Content provided by the Merchant 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 Merchant 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 Merchant:” The Merchant 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 Merchant’s representations and warranties or obligations set forth in these Terms.
“Indemnification by Zomato:” Zomato agrees and undertakes to indemnify and hold Merchant 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 Merchant 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 Merchant for the Campaign set out in the SRF.
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 Campaign, 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 Campaign.
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. Term and Termination#
The Parties agree that the Campaign shall commence from the Start Date and shall continue to be valid until terminated by either Party. The Merchant may at any time opt out of the Extra Inventory Ad Program with prior notice to Zomato.
Zomato reserves the right to discontinue the Program at its own discretion at any time, without liability, with prior intimation to the Merchant.
Zomato reserves the right to forthwith terminate the SRF and these Terms or suspend the Service on the Zomato Platform in the event the Merchant 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 Merchant for any termination due to breach of the Terms by the Merchant.
IX. Intellectual Property Rights#
The intellectual property rights in the Content provided by the Merchant hereunder shall vest solely with the Merchant. The Merchant agrees and acknowledges providing Zomato with an unrestricted, non-exclusive, royalty-free license in respect of all Content and information provided by the Merchant 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 merchantability, 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 Campaign, 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 Merchant’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 Merchant,
- 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 Merchant 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 Department. The Merchant agrees (i) to receive communications from Zomato in an electronic form, and (ii) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Zomato provides electronically satisfy any legal requirement that such communications would satisfy if they were in writing.
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 Merchant agrees to be bound to any such changes or modifications and understands and accepts the importance of regularly reviewing these Terms as updated on the Zomato Platform.
Further, in the event Zomato upgrades, modifies or replaces the Zeus services (“Service Modifications”) offered to the Merchant, Zomato will notify the Merchant prior to making the same and give the Merchant the opportunity to review and comment on the Service Modifications before continuing to use the Zeus services or any alternate service offered by Zomato. The Service Modifications will also be reflected on the Zomato Platform. If the Merchant continues to use the Zeus services or any alternate service offered by Zomato, following any notice of the Service Modifications, it shall constitute the Merchant’s acceptance of such Service Modifications.
XIV. General#
“Assignment:” These Terms shall not be assigned by the Merchant 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 Merchant acknowledges that the business and assets of Zomato may be sold in the future and consents to the transfer or disclosure of its personal information and these Terms to any purchaser of the business of Zomato or its assets if that outcome occurs.
“Acceptance to Zomato’s Privacy Policy:” By signing the SRF, the Merchant acknowledges and agrees to be bound by Zomato’s privacy policy (www.zomato.com/privacy). Merchant will immediately notify Zomato if it becomes aware of or suspects any unauthorized use or access to the user data or any other Confidential Information of Zomato, and shall cooperate with Zomato in investigation of such breach and the mitigation of any damage.
“Independent Contractors:” The relationship of Zomato and the Merchant 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 Merchant to create or assume any obligation on behalf of Zomato for any purpose whatsoever. All financial obligations associated with Merchant’s business are the sole responsibility of the Merchant.
Last updated on January 31st, 2023