Terms for Sponsored Listing Service Request Form (“Terms”)#
These Terms form part of the Sponsored Listing Service Request Form ("Form") and constitute a legally binding agreement made between you, whether personally or on behalf of an entity (the "Restaurant Partner"), and Zomato Limited and its Affiliates (collectively, "Zomato"), governing the use of the Service (as defined below) by the Restaurant Partner.
I. Definitions#
“Advertisement” shall mean promotional advertisement that is displayed on the Zomato Platform for the purpose of publicizing the Restaurant.
“Advertisement CV” shall mean the order value (including item value plus packaging charges minus merchant discount) generated through Advertisement orders
“Affiliates” shall mean Zomato Limited and any other entity that, directly or indirectly through one or more intermediaries, is controlled by, or is under common control with, Zomato Limited.
“Click” shall mean a customer either; (i) accessing a Restaurant Page; (a) by clicking on the Advertisement; or (b) within 24 hours from the last viewing Advertisement. OR (ii) viewing the full Advertisement being displayed on the Zomato Platform by clicking on any portion of the Advertisement prior to closing such Advertisement.
“Control” shall mean (a) the power to direct the management and policies of an entity whether through ownership of voting capital, by contract or otherwise; and (b) a holding company or subsidiary company of any entity shall be deemed to be an Affiliate of that entity.
“CPC” or “Cost Per Click” shall mean the fee payable by the Restaurant Partner to Zomato, for each Click.
“Customer Data” shall mean all information collected from customer using the Zomato Platform and owned by Zomato.
“Effective Date” shall mean the date on which the Form is executed between Zomato and the Restaurant Partner.
“End Date” shall mean the date as set out in the SRF on which the Service will end.
“Fee” shall have the meaning as defined in clause III of these Terms, which shall be payable by the Restaurant Partner to Zomato for the Service.
“Parties” shall mean the Restaurant Partner and Zomato.
“Restaurant” shall mean a commercial establishment(s) for which the Restaurant Partner is executing the Form, 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.
"Restaurant Partner" means the entity/individual being the legal owner of the Restaurant as mentioned in the Form.
“Return on Investment (ROI)” shall mean Advertisement CV divided by the Advertisement Spends.
“Service” shall mean the advertisement services provided by Zomato for promotion of the Restaurant on the Zomato Platform
“Form” shall mean the Service Request Form executed by the Restaurant Partner for availing the Service.
“Start Date” shall mean the date on which the Service will commence.
“Zomato Platform” shall mean the website located at, www.zomato.com; and mobile application, owned and operated by Zomato.
II. Restaurant Partner’s Rights and Obligations#
The Restaurant Partner shall provide all information and content including artwork, creative(s), logo(s), picture(s), and write-up to be displayed by way of the Advertisement on or before three (3) working days prior to the Start Date (“Content”) in order to enable Zomato to provide the Service.
If the Restaurant Partner requires any modification to the existing Content available with Zomato for the Advertisement on the Zomato Platform, the Restaurant Partner may send such modification request at priority@zomato.com (“Modification Request”). Zomato will use its best endeavours to update the Content within reasonable time from the receipt of such Modification Requests.
The Restaurant Partner shall ensure that it has all rights, title, and interest in (a) the Content it shares with Zomato; or (b) the Restaurant Partner’s content that is already available with Zomato and these are compliant with the Restaurant Partners internal branding guidelines and applicable laws. Zomato shall in no manner be liable for the Content displayed on the Zomato Platform, when such Content is provided by the Restaurant Partner or approved by the Restaurant Partner in advance. The Restaurant Partner hereby agrees and acknowledges that Zomato shall be authorised to use the logo and brand name of the Restaurant or the Restaurant Partner as the case may be for its promotions.
The Restaurant Partner shall ensure to make timely payments of the Fee under these Terms.
The Restaurant Partner agrees and acknowledges that Zomato does not guarantee any minimum or maximum number of clicks for the Advertisement Service.
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 Form and these Terms.
The Restaurant Partner hereby agrees that Zomato may provide a discount to the Restaurant Partner on the CPC at a daily level as per Zomato's sole discretion. For the avoidance of doubt it is hereby clarified that Zomato does not guarantee any minimum or maximum number of clicks and Advertisement CV under the Advertisement Service.
Zomato will provide the Restaurant Partner with an online Restaurant Partner dashboard access to track the Clicks on the Zomato Platform and/or send weekly auto generated reports by the online dashboard to the designated email address of the Restaurant Partner set out in the Form. The Restaurant Partner shall not share or disclose such dashboard access or any of its inbuilt features to any third party.
Except as expressly permitted by Zomato herein, the Restaurant Partner agrees to keep the contents of the Form 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 (05) days of signing the Form 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. Payment#
Zomato shall raise appropriate invoice(s) on the Restaurant Partner for the Clicks based on the CPC as set out in the Form (“Fee”). Payment for such invoice(s) will be settled by way of reduction from the weekly payouts of the Restaurant Partner. Amount deducted shall reflect separately and identifiable on the Restaurant Partner’s statement of account. The Restaurant Partner will not be charged Fee more than the agreed Campaign Budget between the Start Date and End Date unless otherwise agreed between the Parties in writing.
Payment against invoice(s) for the Fee will be settled by way of reduction from the weekly payouts made to the Restaurant Partner. Amount deducted shall reflect separately and identifiable on the Restaurant Partner’s statement of account.
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 Form. 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.
Where Restaurant Partner is liable to deduct tax (TDS) on the Service by Zomato, Restaurant Partner 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 Service pertains. In event of delay by the Restaurant Partner, 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.
IV. Zomato’s Rights and Obligations#
Upon execution of the Form by the Restaurant Partner, Zomato shall commence the provision of the Service on the Start Date in accordance with these Terms read along with the Form.
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/Advertisement without Restaurant Partner’s prior written consent.
Zomato will determine, in its sole discretion, the size, placement, and positioning of the Advertisement on the Platform.
Unless otherwise agreed between the Parties in the Form, 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.
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 Form;
(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 Form;
(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, regulation and/or code of conduct;
(vi) none of the Content provided or approved by the Restaurant Partner will, when viewed or clicked on by a customer, cause such customer’s computer to download any software application;
(vii) a 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 the terms of 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 Form and the Terms shall not exceed the Fee received from the Restaurant Partner for a Term set out in the Form, excluding any renewals thereof.
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 Form, and all notes, memoranda, records and writings relating to the Service, 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 provision of the Service.
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 Form and remain in force in perpetuity.
VIII. Termination#
The Parties agree that the Services shall commence from the Start Date and shall continue to be valid until terminated by either Party. The Restaurant Partner may at any time opt out of the Services with prior notice of thirty (30) days to Zomato.
Zomato reserves the right to discontinue the Services at its own discretion at any time, without liability, with prior intimation to the Restaurant Partner.
Zomato reserves the right to forthwith terminate the Form 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 Fee already paid by the Restaurant Partner for any termination due to breach of the Terms by the Restaurant Partner.
IX. Intellectual Property Rights#
As between the Parties, the Restaurant Partner hereby agrees that nothing in these Terms shall or may be construed as, a transfer or license of any rights or title in and to the Customer Data or any part thereof to the Restaurant Partner or any third party.
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 Form 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 Form 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 Form and these Terms, the 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 Service, content or the content of any other websites linked to the Zomato Platform, 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 Restaurant Partner’s access to and use of the Zomato Platform and the Service,
(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 website or otherwise with respect to the Service,
(e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the website by the Content of the Restaurant Partner,
(f) click frauds, technological issues or other potentially invalid activity that affects the cost of Service, and/or
(g) 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 Department. 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 Service 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 Service 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 Form, 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 co-operate 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.