MERCHANT – TERMS OF SERVICE
1. Introduction
1.1 Eatselecta India Private Limited, having its registered office at 36/1 Golden Haven Apartments, Ground Floor, AD Block 10th Main Road, Anna Nagar, Chennai – 600 040(hereinafter referred to as "Eatselecta", "we", "us", or "our") provides the Platform Services (as defined hereunder) to vendor(s) registered with us as a Merchantin accordance with these Terms of Service.
1.2 All persons accessing and/or availing the Platform Services (or any of them) (hereinafter referred to as “you” or “your”, as the context requires) are requested to read these Terms of Services before accessing or using or availing any Platform Services or downloading or posting any content from or on our site, carefully, as they contain important information regarding legal rights, remedies and obligations. For accessing or using Platform Services, you would be required to confirm that you have read, and that you have understood and you agree to be bound by these terms and conditions, as may be modified by us from time to time, and further that you are competent to undertake to be bound by and adhere to these Terms of Services. Upon your acceptance of these terms, the same shall constitute a binding contract between ourself and yourself.Availing of the Platform Services is treated as acceptance of these terms.
1.3 Your ability to access or use or avail the Platform Services, is subject to your acceptance of these Terms of Services and any other terms and policies of Eatselecta (including the Privacy Policy, as notified from time to time), as applicable.
1.4 Any user who does not agree to these Terms of Services shall have no right to access or use the Platform Services or any part thereof.
1.5 At the time of accessing the Platform Services, you may be required to provide necessary information / declarations as to your competence and authorisation to undertake and comply with these Terms of Services. Your ability to access the Site and/or avail the Platform Services is subject to your providing authentic and accurate information in this regard.
2. Platform Services
2.1 Eatselecta is agreeable to provide the following services to vendor(s) registered with it as a Merchanton the terms and conditions set out in these Terms of Service:-
(a) Hosting of content (including menu) of the vendoron Eatselecta’s Online Platform (as defined below);
(b) Booking of customers’ orders , including customer instructions as to whether the order is for dine-in (where applicable), takeaway/ pick-up or delivery of the items so ordered;
(c) Providing data of customer orders; and
(d) Providing platform for customer reviews and feedback,(hereinafter, “Platform Services”).
2.2 The Platform Services will, inter alia enablevendor(s) registered with us as Merchant to sell their products to theircustomers (each, a “Customer”) via a designated online platform hosted by us (“Online Platform”), in consideration whereof, the Merchant restaurant shall pay the Eatselecta Fee, as described below
2.3 The Platform Servicesshall berenderedthrough the Online Platform which is accessible to the Merchant through accounts which will be created in accordance with Clause 3 below (hereinafter, “Merchant Accounts”) and to Customers through the webpages hosted by Eatselecta, exclusively for each Merchant, as well as any page linked to the Eatselecta App, which is dedicated to the Merchant (each such webpage/page is hereinafter referred to as the "Site").Eatselecta hereby permits the Merchant to place its content on the Site. Such permission is subject to Merchant remaining in compliance of the terms and conditions set out herein.
2.4 The Merchant is responsible at all times for the content on the Site. Customers will place orders placing reliance on the content (including availability and pricing) and Merchant must not put any erroneous, outdated, or misleading information on the Site. Merchant expressly indemnifies and holds Eatselecta harmless in respect of all content pertaining to the Merchant placed on the Site. Eatselecta has no obligation to verify the correctness or accuracy of such content.
2.5 The Site will contain appropriate terms and conditions binding persons who use the said Site
3. Merchant Accounts
3.1 A vendor that is desirous of accessing or availing the Merchant Services must enroll with Eatselecta in accordance with the procedure as may be prescribed by Eatselecta on its official website www.eatselecta.comfrom time to time.
Once a vendor complies with the enrolment procedure prescribed by Eatselecta, Eatselecta will check if the vendor is fully compliant with the terms and conditions of Eatselecta, and if so, will create an account for such vendor (hereafter referred to as “Merchant Account”), with Eatselecta. [The term “Merchant” shall be used hereinafter, to refer to a vendorthat is duly enrolled with Eatselecta as a Merchant and has a Merchant Account.]
3.2 A vendor’sability to register as a Merchant with Eatselecta, have a Merchant Accountor avail any Platform Services is conditional upon:
a. the vendorproviding current and accurate data required for its registration and creation of the Merchant Account (including without restriction the specific and accurate details of its online presence) and for Eatselecta to render the Platform Services in accordance with the terms hereof;
b. availability at vendor’send of the devices/hardware that is compatible with the Online Platform(as may be modified from time to time). Merchantshall be responsible for ensuring devices/hardware compatibility for the purposes of accessing the Online Platformin a safe and secure manner and we shall not be responsible/liable for the same;
c. vendor’s continued adherence to these Terms of Services at all times.
3.3 Merchant is solely responsible for protecting the confidentiality of the Merchant Account’s credentials viz. username and password. Any activity under a Merchant Account accessed through the use or application of such Merchant’s password will be deemed to have been done by such Merchant. At no point in time will Eatselecta be liable for any losses caused by any unauthorised access to or use of a Merchant Account, including uploading any content on the Site, and Merchant shall solely be liable for the losses caused to Eatselecta or others due to such unauthorised use, if any.
3.4 In the event Merchant provides Eatselecta with false/inaccurate information or we have a reasonable ground to believe that false and inaccurate information has been furnished, we hold the right to permanently suspend a Merchant Account and/or refrain from rendering any Platform Services to or in respect of such Merchant.
3.5 Without prejudice to the generality of the foregoing:
a. No portion of the Online Platform / Site or content thereof shall be reproduced, duplicated, copied, sold, resold, visited or otherwise exploited in any manner other than as specifically permitted under these Terms.
b. Merchant shall not frame or utilise framing techniques to enclose any trademark, logo, or other proprietary information (including images) of the whole or any portion of the content of the Online Platform / Site withoutEatselecta’sexpress written consent.
c. Merchant shall not use any meta tags or any other “hidden text” utilisingEatselecta’sname or trademarks withoutEatselecta’sexpress written consent.
d. Merchant shall not attempt to gain unauthorised access to any portion or feature of the Online Platform / Site, or any other systems or networks connected to the Online Platform / Site or to any server, computer, network or to any of the services offered on or through the Site, by hacking, ‘password mining’ or any other illegitimate means.
e. Merchant shall not allow any third parties to access its Merchant Account or otherwise disseminate any information which it may learn from the Online Platform / Site to any third parties.
4. Obligations
4.1 Hosting of Content
Merchant shall upload onto the Site the content, comprising of:-
(a) Items offered
(b) Price
(c) Description
(d) Photograph
(e) Location of Merchant
(f) Such other details as are requested by Eatselecta as are necessary or required for the purpose of rendering the Platform Services.
Eatselecta will not examine the correctness of the content, or accuracy of data provided, but may insist upon modification of content, so as to ensure that the description has the correct number of words, avoidance of offensive / improper language, usage of appropriate photographs, and completeness of information for Customer.Without prejudice to the generality of the foregoing, Merchant will be responsible to ensure that the pricing details uploaded are compliant with applicable regulations (including without restriction applicable tax rates) and we will not be liable for any discrepancies or inaccuracies in this regard.
Eatselecta will ensure that the webpage / App-page has the functionality to enable Customer to place orders for items notified by the Merchant on the Site, and remit payment in accordance with the content uploaded by the Merchant. Eatselecta shall also ensure that the placing of the order is communicated to the Merchant. The onus is on the Merchant to ensure that only available items are reflected on the webpage, and to respond to the Customer’s order and supply in accordance therewith.
Eatselecta takes no responsibility for delivery of the order, and this is a matter for the Merchant.
The Merchant shall not host, display, upload, modify, publish, transmit,store, update or share any information on the Site that is prohibited under law (including without restriction under Rule 3 (1) (b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021)to be hosted, displayed, uploaded, modified, published, transmitted,stored, updated or shared.
4.2 Placing of orders
Merchant hereby authorizes Eatselecta to enter into contractual arrangements with Razorpay or similar financial payment system entity (“Payment System Entity”), in order to receive payments from the Customers, and pass on the monies to the Merchant, after deducting their fees, and Eatselecta Fee. Merchant hereby authorizes Eatselecta to collect the Eatselecta Fee directly from the Payment System Entity.
Merchant hereby agrees to be bound by such covenants and conditions as Payment System Entity may impose in relation to netting of payments, refund policies, cancellation policies, and levy of charges.
Merchant shall agree to display such signage as Payment System Entity may require.
4.3 Customer Data
Merchant acknowledges that Eatselecta shall have the right to store and retain the information (“Data”) a Customer provides when browsing the Site, Eatselecta shall have the right to process all such Data, including personally identifiable information about the Customer, including details such as first and last name, email address, mobile phone number and other contact details, demographic profile other information about Customer behaviour while using theSite, as well as transaction-related information. Eatselecta may also:- (a) seek, collect and process information pertaining to preferences/choices of Customers; (b) exclusive rights in and over any studies, analysis, performance analytics (including meta data) pertaining to and/or based on information of the Customers.
4.4 Customer Reviews
Eatselecta will also enable a platform where Customers can directly communicate their feedback to the Merchant.Inasmuch as Eatselecta would not have access to any feedback / content therein provided by Customers, we have no responsibility for or in connection with any such feedback uploaded by Customers.
5. Eatselecta Fee
5.1 In consideration of rendition of the Platform Services, Eatselecta will be entitled to a fee as notified by Eatselecta on its official website www.eatselecta.comfrom time to time (“Eatselecta Fee”)
The Eatselecta Fee may be revised by Eatselecta from time to time by notification on its official website above. The Eatselecta Fee notified is final and non-negotiable. There shall be no reduction/waiver of the same. AMerchant’s continued use of the Platform Services will constitute acceptance of such revised Eatselecta Fee as notified by us.
5.2 The Eatselecta Fee is payable in accordance with the contractual arrangement with the Payment System Entity, and in priority to release of any sums to the Merchant in respect of any transaction. Goods and Services tax (as applicable) is payable by the Merchant.
5.3 A Merchant’s ability to avail the Platform Services is conditional upon and subject to timely and due realisation of the Eatselecta Fee by us. Accordingly, a Merchant’s access to the Platform Services (or any part thereof) in the event of default / non-realisation of the applicable Eatselecta Fee shall be liable to disabled or restricted, upon such default occurring, without any prior notice.
5.4 Notwithstanding anything to the contrary elsewhere, Eatselecta shall have no responsibility or liability for any issues pertaining to the outsourced third-party payment gateway. For any such issues pertaining to the Payment System Entity, third-party payment gateway (including multiple debits, whether successful or not etc.), Merchant may follow up with the Payment System Entity, the third-party gateway or the Customer’s bank/financial institution concerned.
6. Cookies
The Site may use cookies. A cookie is a small piece of data stored on the user’s computer or mobile device by the web browser. Eatselecta uses cookies to personalise the content that are seen on the Site. Most web browsers can be set to disable the use of cookies
7. Nature of relationship and obligations
7.1 Eatselecta is only a facilitative service provider providing the Platform Services to enable Merchant to sell their products to Customers and for Customers to purchase such products from Merchantthrough the Online Platform / Site, and we are neither party to nor privy to the underlying sale transaction conducted between Merchant and Customers.Accordingly:
a. Merchantwill be responsible for complying with all applicable laws and applicable industry standards in relation to their business and operations (including without restriction, with respect to items of food,the Food Safety and Standards Act, 2006).
b. The Merchant shall not use the Platform Services for sale or transfer of any products which is restricted or illegal or in contravention of any laws.
c. Merchant is solely responsible with respect to the products marketed by it.
7.2 We have no obligations or responsibilities with respect to the products marketed by the Merchants or the obligation of the Customer to make payment for any products purchased from the Merchant
7.3 We are not liable or responsible for any loss or damages suffered by the Merchantor Customer or any claims inter seMerchant and Customer, arising out of or in connection with the sale transaction undertaken between themselves.
8. Intellectual Property Rights
8.1 All the intellectual property rights in or related to the Online Platform / Site and Platform Services (including all the content on the Site, as well as the trade names, trademarks and logos of Eatselecta) and all data collected byEatselecta’sservers shall at all times remain solely under the ownership of Eatselecta.
8.2 Eatselecta grants to Merchant a limited, non-transferable, non-exclusive, non-sub-licensable, revocable license to access and use Online Platform / Sitefor so long as such the Merchant Account remains current and active. The Online Platform / Site, and all source code, copyrights and other intellectual property associated therewith, are and shall remain the sole and exclusive property of Eatselecta.
8.3 Merchant shall not decode, decompile, disassemble, recreate, render, reverse engineer or explore any of the Online Platform / Site, including other intellectual properties.
8.4 Merchant shall not use the Online Platform / Site for any other purpose other than as contemplated hereunder.
8.5 Merchant shall follow usability guidelines communicated to you by Eatselecta team verbally or in written form.
8.6 Eatselecta has the right to terminate the license granted hereby immediately in the event that Merchant breaches any terms or conditions set forth herein or the Merchant Account is otherwise terminated for any reason.
8.7 Except as set out hereinabove, nothing herein shall be construed as a grant to any user of any intellectual property rights, or a license to use such intellectual property rights, of Eatselecta.
9. Suspension and Termination
9.1 Eatselecta has the right to immediately terminate or suspend the Merchant Account and withhold/suspend any Platform Services (in addition to any legal remedy that), at any time, if (i) Merchantfails to comply with the terms hereof (ii) Merchant has provided inaccurate, fraudulent, outdated or incomplete information during the Merchant Account registration, (iii) Merchant has violated any applicable laws, regulations or third party rights, or (iv) there are repeated complaints from Customers about the content being incorrect, and Eatselecta believes that continued rendition of Platform Services will be erosive to Eatselecta’s goodwill.
9.2 Notwithstanding anything to the contrary elsewhere, the provisions of these Terms shall continue to govern the inter se rights and obligations of the Merchant and Eatselecta (as applicable) even after cessation of availment of the Platform Services by a Merchant.
10. Confidential Information
10.1 Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is "Confidential Information" of the disclosing party and will remain the sole property of the disclosing party. “Confidential Information” includes pricing information, margins, as well as the terms of this Agreement, and commercial understanding underlying the same.
10.2 Merchant and Eatselecta shall not disclose any Confidential Information pertaining to the other party, at any point of time. However, Eatselecta may use the results from the processing / analysis of Customerdata, for creating reports which may be given to third parties, provided that such reports shall not identity Merchants by name.
11. Governing Law and Dispute Resolution
11.1 These Terms of Service are governed and construed in accordance with the Laws of Union of India.
11.2 Any dispute or difference arising between the parties, arising out of or in relation to these Terms of Service, or any transactions entered into pursuant hereto, shall be resolved by way of arbitration. The arbitration shall be conducted only at Chennai, and by a single arbitrator, appointed mutually by Eatselecta and Merchant.
11.3 Subject to the above, theseTerms of Service are subject to the exclusive jurisdiction and venue of courts in Chennai.
12. Indemnification
12.1 Merchant does hereby indemnify and hold harmless Eatselecta, its directors, employees, officers, etc. from and against any claims, damages, losses, liabilities, costs, etc. arising out of:
a. The use of and access to the Online Platform /Site/or any content thereof /Platform Services, including without restriction violation or infringement of any third-party rights in this regard;
b. The violation by Merchant of theseTerms of Services or any applicable law.
12.2 Eatselecta indemnifies Merchantits directors, employees, officers, etc. from and against any claims, damages, losses, liabilities, costs, etc. arising out of the violation by Eatselecta of these Terms of Services.
12.3 Notwithstanding anything contained anywhere else, no party shall be liable to the other, for a sum in excess of the amount of fees paid by the Merchant to Eatselecta under the Agreement during the twelve (12) months preceding the date on which the claim occurredunder any circumstances, other than actual fraud.
13. Miscellaneous
13.1 Assignment: Merchant cannot assign or otherwise transfer its obligations under these Terms, or any right granted hereunder to any third party. Eatselecta’sinterest in these Terms are freely transferable by Eatselecta to any third parties without the requirement of seeking Merchant’s consent.
13.2 Relationship: Merchant acknowledge that it’s participation on the Online Platform / Site or use of the Platform Services does not make Merchant an employee or agency or partnership or joint venture or franchise of Eatselecta or vice versa.
13.3 No Waiver: No waiver by any party of any of its rights herein contained, shall by reason thereof, be deemed to be a waiver of any other right under theseTerms of Service.
13.4 If you face any issues with the Online Platform / Site (otherwise than in connection with any transaction between Merchant and Customer), you may email us at support@eatselecta.com or write to us at the following address: 36/1 Golden Haven Apartments, Ground Floor, AD Block 10th Main Road, Anna Nagar, Chennai – 600 040