Terms and Conditions for Sponsored Listing Service Request Form for Visit Pack Ads (“Terms”)

Terms and Conditions for Sponsored Listing Service Request Form for Visit Pack Ads (“Terms”)#

These Terms form part of the Sponsored Listing Service Request Form ("SRF") and constitute a legally binding agreement made between you, whether personally or on behalf of an entity (the "Merchant"), and Zomato Limited (Formerly known as Zomato Private Limited) (a registered company in India) and its Affiliates (collectively, "Zomato"), governing the use of the Service (as defined below) by the Merchant.

1. Definitions#

a. "Advance Fee" shall have the meaning as defined in clause III. 3 of these Terms. b. "Advertisement" shall mean promotional advertisement that is displayed on the Zomato Platform for the purpose of publicizing the Restaurant. c. "Affiliates" shall mean Zomato Limited (Formerly known as Zomato Private Limited and Zomato Media Private Limited) and any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, Zomato Limited (Formerly known as Zomato Private Limited and Zomato Media Private Limited). d. "Control" shall mean i. the power to direct the management and policies of an entity whether through ownership of voting capital, by contract or otherwise; and ii. a holding company or subsidiary company of any entity shall be deemed to be an Affiliate of that entity. e. "End Term" shall mean the Term and the Renewal Term (as may be defined under the SRF) (if applicable). f. "CPV" or "Cost Per Visit" shall mean the fee payable by the Merchant to Zomato, for each Visit. g. "Customer Data" shall mean all information collected from customer using the Zomato Platform and owned by Zomato. h. "Deliverables" shall mean the estimated number of Visits, as set forth in the SRF. i. "Effective Date" shall mean the date on which the SRF is executed between Zomato and the Merchant. j. "End Date" shall mean the date as set out in the SRF on which the Service will end. k. "Fee" shall have the meaning as defined in clause III. 1 of these Terms, which shall be payable by the Merchant to Zomato for the Service. l. "Parties" shall mean the Merchant and Zomato. m. "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. n. "Restaurant Page" the dedicated restaurant listing of the Restaurant on the Zomato Platform. o. "Service" shall mean the advertisement services provided by Zomato for promotion of the Restaurant on the Zomato Platform. p. "SRF" shall mean the Sponsored Listing Service Request Form executed by the Merchant for availing the Service. q. "Start Date" shall mean the date on which the Service will commence. r. "Zomato Platform" shall mean the website located at, www.zomato.com; and mobile application, owned and operated by Zomato. s. "Visit" shall mean a user either; i. accessing a Restaurant Page; a. by clicking on the Advertisement; or b. within 24 hours from 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.

2. Restaurant Partner’s Rights and Obligations#

a. The Merchant 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.

b. If Merchant requires any modification to the existing Content available with Zomato for the Advertisement on the Zomato Platform, the Merchant 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 Request.

c. The Merchant shall ensure that it has all rights, title, and interest in (a) the Content it shares with Zomato; or (b) the Merchant’s content that is already available with Zomato and these are 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, when such Content is provided by the Merchant or approved by the Merchant in advance. 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.

d. The Merchant shall ensure to make timely payments of the Fees under these Terms.

e. In the event the Merchant has an ongoing collaboration with a third party and wishes to promote such collaboration by way of the Advertisement, the Merchant 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 Merchant’s obligation to apprise the third party of the SRF and these Terms.

f. Zomato will provide the Merchant with an online Merchant dashboard access to track the Deliverables on the Zomato Platform and/or send weekly auto generated reports by the online dashboard to the designated email address of the Merchant set out in the SRF. The Merchant shall not share or disclose such dashboard access or any of its inbuilt features to any third party.

g. Except as expressly permitted by Zomato herein, the Merchant agrees to keep the contents of the SRF and these Terms confidential at all times.

h. 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 (05) 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.

3. Payment#

a. The Merchant shall pay Zomato for the Deliverables (“Fee”). However, the Merchant shall not be charged any Fee for Visits greater than the Deliverables as set out in the SRF.

b. The Fee charged shall be exclusive of applicable taxes. 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.

c. Zomato shall raise invoices on the Merchant for the Fee in the manner as set out in the SRF. Unless otherwise set out in the SRF, any Fee (other than Advance Fee) shall be paid by the Merchant within thirty (30) days from the date of the invoice.

d. In the event Zomato requires the Merchant to make prepayment of Fee or a portion of the Fee for the Deliverables (“Advance Fee”), the Merchant shall make payment towards the same at least ten (10) days prior to the Start Date.

e. In the event the Merchant 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 End Term or for periods commensurate to the time period for which the Service was delayed or suspended, without any written communication.

f. Furthermore, Zomato reserves the right to levy a penalty for the late payments / cheque getting dishonored. The penalty to be levied on the Merchant 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 Merchant 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 Merchant finally pays such invoice.

g. If any Advance Fee remains unutilized: a) Zomato may, in its sole discretion, extend the Service to the Merchant 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 Merchant; or ii) can be used by the Merchant to avail other services offered by Zomato within six (6) months from the End Date, failing which such Advance Fee shall be refunded to the Merchant.

h. In case where Merchant is withholding any taxes under any applicable laws, the Merchant shall be obligated to provide Zomato with a copy of proof of such deduction within forty five (45) days following the last date of the quarter for which such deductions are made.

i. 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/licenses

j. Zomato may from time to time revise the rate of CPV for the Renewal Term(s) with prior intimation and consent of the Merchant. Such revision shall be communicated to the Merchant by way of written communication (email sufficient).

k. In the event of under-delivery of visits, the system may over-deliver up to five times the daily visits in the coming days/week up to the total visits fixed.

4. Zomato’s Rights and Obligations#

a. Upon execution of the SRF by the Merchant, Zomato shall commence the provision of the Service on the Start Date in accordance with these Terms read along with the SRF.

b. 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/Advertisement without Merchant’s prior written consent.

c. Zomato will determine, in its sole discretion, the size, placement, and positioning of the Advertisement on the Platform. It is hereby clarified that the ‘Business Zone(s)’ and ‘Category’ mentioned in the SRF are for indicative purposes only and Zomato reserves its right to make any modifications to these ‘Business Zone(s)’ and ‘Category’ at any time, at its sole discretion, without notice to the Merchant.

d. 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 Merchant.

e. Zomato shall be under no obligation to amend and/ or alter the Start Date of the Service pursuant to a request received from the Merchant.

f. 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.

g. Notwithstanding the aforesaid, in the event, Merchant fails to make the payment to Zomato within fifteen (15) days from the due date, Zomato reserves the right to set off, withhold and/or deduct the payments that are due to Zomato under the SRF against any payments that are payable by Zomato to the Merchant under any other agreement or arrangement between Zomato and the Merchant or its affiliates.

5. Representations and Warranties#

a. 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, regulation and/or code of conduct; vi. none of the Content provided or approved by the Merchant 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 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.

b. 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 the terms of these Terms; and ii. has no restrictions that would impair its ability to perform its obligations contemplated by these Terms.

6. Indemnity and Limitation of Liability#

a. 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.

b. 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.

c. 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.

d. Notwithstanding anything to the contrary herein contained, Zomato’s aggregate liability under the SRF and the Terms shall not exceed the Fee received from the Merchant for a Term set out in the SRF, excluding any renewals thereof.

7. Confidentiality#

a. 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 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.

b. The restrictions in sub-clause a. of clause 7 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.

c. The provisions of this clause shall survive the termination of these Terms and SRF and remain in force in perpetuity.

8. Termination#

a. Either party may terminate the arrangement contemplated in the SRF and these Terms by giving the other party a prior written notice of thirty (30) days. Zomato shall not be required to return or refund any Advance Fee paid by the Merchant for termination of the SRF and these Terms by the Merchant under this sub clause 1 of clause VIII. However, Zomato reserves the right to let the Merchant use such Advance Fee for availing other services offered by Zomato within a period of 6 months from the date the services are terminated, failing which such Advance Fee shall be forfeited by Zomato.

b. Zomato reserves the right to forthwith terminate the SRF and these Terms or suspend the Service by stopping display of a Advertisement on its 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 Fee already paid by the Merchant for any termination due to breach of the Terms by the Merchant.

9. Intellectual Property Rights#

a. As between the Parties, the Merchant 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 Merchant or any third party.

b. 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.

10. 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.

11. 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, the 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 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 Merchant’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 Merchant, (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 Merchant assumes all risk and responsibility with respect thereto.

12. 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.

13. 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 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 Service 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 Service 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.

14. General#

a. 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.

b. 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.

c. 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.

d. 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 co-operate with Zomato in investigation of such breach and the mitigation of any damage.

e. 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.