TERMS AND CONDITIONS OF MERCHANT PARTNER ENROLMENT FORM FOR ONLINE ORDERING SERVICES (“TERMS”)

These Terms form part of the Merchant Partner Enrolment Form for Online Ordering Services (“Form”) and constitute a legally binding agreement made between you, whether personally or on behalf of an entity (the “Merchant Partner”), and Bagsy (operating under the company R K Corporate Ventures Private Limited) and its affiliates (collectively, “Bagsy”), regarding use of Bagsy’s Platform (as defined below) for the provision of Merchant Services (as defined below) by the Merchant Partner to the Customers (as defined below).

1. Definitions

i. “Asset Handover Form” means the form shared by Bagsy, which includes details of the assets provided by Bagsy to the Merchant Partner and annexed to the Form.

ii. “Calendar Month” means a month as named in the English calendar.

iii. “Commission” means the amount payable by the Merchant Partner to Bagsy, being a % of Net Sales as set out in the Form.

iv. “Customer” means users who place Orders through the Platform.

v. “Customer Application” means the proprietary online website and/or mobile based Order placement application of Bagsy available on the Platform, which enables the Customers to (a) place an Order with the Merchant Partner for the purpose of availing Merchant Services; and (b) track the status of the Order placed by such Customer with the Merchant Partner; and (c) facilitates a provision of payment by the Customer towards the Merchant Services availed from the Merchant Partner.

vi. “Customer Data” means any and all identifiable information about Customer provided by the Customer via the Platform, including, but not limited to, Customer’s name, delivery addresses, email addresses, phone numbers, and Customer preferences, to be governed by the Privacy Policy.

vii. “Delivery Charges” means the delivery fee charged by the Delivery Partner from the Customers on each Order where Bagsy facilitates delivery of an Order to the Customers.

viii. “Delivery Surge” means an amount charged by the Delivery Partner from the Customers over and above the Delivery Charges on some Orders, determined on the basis of various factors including but not limited to order value, distance covered, time taken, demand for delivery, real time analysis of traffic and weather conditions, seasonal peaks or such other parameters as may be determined from time to time.

ix. “Electronic Payment Mechanism” means the online and mobile based payment mechanisms including the third party payment gateways, credit card/debit card/net banking transfer and/or e-wallets and/ or Bagsy credits that are available on the Platform for the purposes of facilitating the payment of the Order Value by the Customer.

x. “Execution Date” means the date of execution of Form.

xi. “Form” means the Merchant Partner Enrolment Form for Online Ordering Services executed by the Merchant Partner.

xii. “Gross Sales” means the gross amount charged by the Merchant Partner to any Customer that is attributable to any Order placed through Bagsy’s Platform including all applicable taxes less discounts being offered by the Merchant on Bagsy’s Platform (if any).

xiii. “Information” means the information set out and provided along with the Form and includes any information which is supplied by the Merchant Partner to Bagsy under these Terms such as Merchant Partner’s name, establishment name, logo, the Menu items and images for menu items, the price lists underlying the Menu, opening hours of the merchants operated by the Merchant Partner, rates at which taxes are charged by the Merchant Partner to the Customer, delivery areas serviced by the merchants and/or delivery terms, specific information the Merchant Partner is under an obligation to supply to Bagsy (a) immediately on the Execution Date; or (b) within 1 (one) day from any change in such information.

xiv. “Delivery Partner” means a third party service provider who collects order(s) from the Merchant and delivers it to the Customer location.

xv. “Logistics Services” means facilitation services offered by Bagsy wherein Bagsy would connect the Merchant Partner with Delivery Partner through its online technology platform, who shall pick Order(s) from the Merchant, and deliver the same to the Customers.

xvi. “Menu” means any document or virtual page, which lists out the items for sale offered by the Merchant Partner to the Customer, on the Platform.

xvii. “Menu Item Categorisation” means tagging with respect to food items between Merchant Service and Supply of Foods and Beverages Items (as defined below) as confirmed by the Merchant Partner to Bagsy.

xviii. “Merchant Application” means the Bagsy developed online Order management application which provides Merchant Partner the ability to (a) receive an Order for the Merchant Services; (b) allows the Merchant Partner to accept or reject the Order within stipulated time; (c) provide updates on the Customers Order and its status; and (d) place a request for Logistics Services, if applicable.

xix. “Multiple Outlet Entity” means the Merchant, which has more than one outlet under the same ownership providing Merchant Services.

xx. “Net Order Value” means Order Value received, less the Commission and any other additional amount, charges etc. that are due to Bagsy from the Merchant Partner under these Terms or the Form.

xxi. “Net Sales” means the Gross Sales less applicable taxes charged by the Merchant and packaging charge and any similar charges levied by the Merchant (if any);

xxii. “One Time Sign–Up Fee” means a one time non-refundable amount set out in the Form, payable by the Merchant Partner when availing the Services for the first time from Bagsy.

xxiii. “Optional Services” means the optional services offered to the Merchant Partner by Bagsy from time to time.

xxiv. “Order” means the placement of an order by the Customer with the Merchant Partner for the purchase of any item via the Platform.

xxv. “Order Value” means the amount which is payable by the Customer upon placement of an Order with the Merchant Partner on the Platform for the Merchant Services.

xxvi. “Parties” means Bagsy and the Merchant Partner.

xxvii. “Payment Mechanism Fee” means the amount payable by the Merchant Partner to Bagsy, being a % of Total Order Value including taxes paid by the customer, less any levies collected by Bagsy (at the rate mentioned in form);

xxviii. “Platform” means the Website and Customer Application owned by Bagsy.

xxix. “Pre-Packed Goods” means the food and beverages items packaged in such a manner that the contents cannot be changed without tampering it and which is ready for sale to the Customer and as may be defined under the Food Safety and Standards Act, 2006 from time to time.

xxx. “Merchant Partner Compensation Policy” applies to the compensation policy that is applicable to the Merchant Partner in the event an Order is canceled or rejected for reasons not attributable to the Merchant Partner. Our compensation policy depends on the status of the order, and whether it’s been picked up by the delivery agent.

 

In case customer cancels order or rejects order from acceptance when:

Order Status is “Scheduled” or “Pending“

–> Cancellation is 100% free and no compensation is provided to the Merchant Partner.

 

Order Status is “Preparing” and order has been accepted by Merchant Partner

–> Cancellation charges of 25% of the Cancellation Value are paid to Merchant Partner. No exchange of physical goods takes place

 

Order Status is “Ready” for pickup and Delivery Agent has not picked up the order
–> Cancellation charges of 40% of the Cancellation Value are paid to Merchant Partner. No exchange of physical goods takes place.

 

Order Status is “Enroute” and Delivery Agent has picked up the order

–> In the case where items picked up are returned back to Merchant Partner, 50% of Cancellation Value is paid to Merchant Partner.

–> In the case where items picked up are not returned back to Merchant Partner, 75% of Cancellation Value is paid to Merchant Partner.

 

If the Merchant Partner agrees to Order Cancellation via text, call, or via any other official interaction between the Customer and the Merchant Partner, or between Bagsy and the Merchant Partner, the Merchant Partner waives their right to any compensation and agrees to cancel the order at 0 cancellation charges.

 

 

xxxi. “Merchant” means a commercial establishment(s) for which the Merchant Partner is executing the Form, and from where the Merchant Services are made available to the Customer, moreover wherein the food and beverage items are prepared and/or delivered to the Customer.

xxxii. “Merchant Partner” means the entity/ individual being the legal owner of the Merchant as mentioned in the Form.

xxxiii. “Merchant Service” means supply by way of service of food and beverages items attracting tax under Section 9(5) of the Central Goods and Services Tax Act, 2017, listed on the Menu from time to time, sold by the Merchant, listed and advertised by the Merchant Partner on the Platform.

xxxiv. “Service Operator” means the Bagsy operated centralized system used for receiving Orders from Customers through the Customer Application and transmitting those to the Merchant Partner.

xxxv. “Services” means the following services offered by Bagsy to the Merchant Partner, on and from the effective date, for the provision of Merchant Services by the Merchant Partner to the Customer through the Platform: a. listing of the Menu and the price list supplied by the Merchant Partner in respect of the Merchant Services on the Platform;
b. Order placement mechanism for the purchase of Merchant Services by the Customer from the Merchant Partner on a real time basis;
c. payment mechanism for the payment of the Order Value by the Customer; and
d. Customer and Merchant Partner complaint redressal services in respect of the functioning of the Platform.
e. Logistics Services (if applicable).

xxxvi. “Single Outlet Entity” means the Merchant, which has only one outlet providing Merchant Services.

xxxvii. “Supported Order” means an Order wherein any assistance is provided by Bagsy to the Merchant Partner, which shall include but not be limited to: (a) call center support to transmit Orders received from the Customers to the Merchant Partner; or (b) support in case (i) the Order is delayed by the Merchant Partner and not delivered within the time assured to the Customer; or (ii) items missing from the Order; or (iii) the Merchant Partner fails to deliver the Order to the Customer; or (iv) the Merchant has provided poor quality Merchant Services to the Customer.

xxxviii. “Support Cost” means an amount, payable by the Merchant Partner to Bagsy towards Supported Orders.

xxxix. “Supply of Food and Beverages Items” means supply of any food and beverages items, made by the Merchant through the Platform, other than Merchant Service attracting tax under Section 9(5) of the Central Goods and Services Tax Act, 2017,

xl. “Website” means www.bagsy.in (including the webpages contained or hyperlinked therein and owned or controlled by Bagsy), and such other media or media channels, devices, mobile applications, software, or technologies as Bagsy may choose from time to time.

xli. “Bagsy Device” means a smart phone loaded with the Merchant Application.

xlii. “Cancellation Value” is the amount equivalent to the gross sale value of an order less value of pre-packaged goods, less any commission that was payable to Bagsy by the Merchant Partner on the order.

xliii. “Cancellation Charges” refers to the charges that are payable by Bagsy to the Merchant Partner in the event of an order cancellation, due to reasons not attributable to the Merchant Partner.

 

2. Bagsy’s Obligations:

i. Bagsy will 

(a) list Merchant Partner’s menu and the price list on the Platform; and 

(b) transfer to the Merchant Partner the amounts received from the Customers in accordance with agreed Terms set out herein.

ii. Bagsy will display on the Platform, on a best effort basis, all necessary information provided by the Merchant Partner. However, Bagsy is not under any obligation to display any information until the Merchant Partner provides all required information and such information is in compliance with Bagsy’s policies and guidelines.

iii. Bagsy will retain the right to change the rate of taxes on the Menu item list shared by the Merchant Partners for listing on the Platform.

iv. Bagsy will transmit the Orders placed by the Customer with the Merchant Partners as per below:

a. Merchant Partners having Tablet or Bagsy Device with pre-loaded Merchant Application or receiving Orders through a third party point of sale system or Bagsy API or a Bagsy provided web dashboard, Order transmission on a real time basis; or

b. Merchant Partner Device having the Merchant Application.

c. Merchant Partner using their own device, without Merchant Application to receive Orders: Order transmission through SMS and/ or phone call on an immediate basis through the Service Operator. In the event, the Merchant Partner fails to answer the phone calls over a period of two (2) minutes, Bagsy reserves the right to temporarily restrict/ deactivate Merchant Partner’s Online Ordering services to avoid any Customer complaints. Merchant Partner’s access shall be reinstated upon specific request made to Bagsy customer support center. Bagsy reserves the right to cancel any Order where Merchant Partner is unable to communicate its response within two (02) minutes on (a) acceptance/ rejection of the Customer Order and/ or (b) Order delivery timelines; or

d. Where transmission of Order is to the Merchant Partner owned device without Merchant Application, Bagsy’s Service Operator shall communicate Customer Order to the Merchant Partner (through SMS and/or phone call) and communicate Merchant Partner response with respect to (i) acceptance / rejection of Order; (ii) delivery time; (iii) no-response from Merchant Partner or any such information as may be made available by Bagsy from time to time; to the Customer through Customer Application. The Merchant Partner agrees that all communication undertaken by Bagsy with the Merchant Partner via phone call may be recorded.

v. Bagsy will redress the Customers and the Merchant Partner’s complaints in respect of the functioning of the Platform and/or the Tablet or Bagsy Device (as the case may be).

vi. For the avoidance of doubt it is hereby expressly clarified that Bagsy is only responsible for providing (i) a Platform to the Merchant Partner to list, offer and sell the Merchant Services to the Customers and/or (ii) Logistics Services (if applicable) and that Bagsy will not be responsible or liable for (i) the quality of the Merchant Services listed and advertised on the Platform; and/or (ii) the processing of the Orders which have been placed by the Customers with the Merchant Partner on the Platform; and/or (iii) any delay in preparation of the Order by Merchant Partner.

vii. Bagsy may suspend the Merchant Partner’s account if the Merchant Partner is found non-compliant with the Food Safety and Standards Act, 2006 and the rules, regulations, licenses, standards and guidelines issued thereunder from time to time.

viii. While providing Logistics Services:

a. Merchant Partner acknowledges and agrees that Bagsy shall not be responsible for quality or quantity (if the packet of the Order is not tampered with during delivery) of the Order and the Merchant Partner shall be solely responsible for the quality and quantity of the Order.

b. Merchant Partner acknowledges and agrees that delivery will be facilitated by Bagsy through a Delivery Partner. Merchant Partner understands and agrees that Bagsy shall not be responsible if the Delivery Partner indulges in theft of the Order or indulges in any illegal activity or misconduct against/with the Customer(s) and / or the staff of Merchant Partner or indulges in any vandalism activity against the Merchant Partner and/or the Merchant. Please note that Bagsy uses its best endeavors to fulfill the Logistics Services opted by the Merchant Partner, in a timely manner, and will not be held liable in case of any delays in delivery due to reasons outside of Bagsy’s control. Bagsy has no control, in any manner whatsoever, with respect to the ratings or reviews received by the Merchant Partner for the Logistics Services availed through Bagsy, as such ratings are dependent on multiple factors including but not limited to each Customer’s experience with the Merchant Partner and the Merchant Services.

c. The Merchant Partner shall not hold Bagsy liable for any claims, raised by the Customer where the delay in handing over the Order to the Delivery Partner is solely attributable to the Merchant Partner and its staff.

d. Bagsy may at its sole discretion charge Delivery Charges and Delivery Surge from Customer for delivery of the Order.

ix. Merchant Partner acknowledges and agrees that Bagsy is a mere facilitator in relation to the Logistics Services whereby Bagsy facilitates logistics services by connecting Delivery Partner with Merchant Partner for delivery of Order(s) from the Merchant(s) to the Customer and hence cannot be held liable for any illegal / unlawful activity of the Delivery Partner.

x. Bagsy shall provide the Merchant Partner with a web dashboard in the event the Merchant Partner has a designated device to access such web dashboard, high-speed internet connection and speakers.

 

3. Merchant Partner’s Obligations

i. The Merchant Partner will not discriminate while servicing Orders received from Customer ordering via the Platform. Merchant Partner will not provide any preferential treatment to customers ordering independently from the Merchant Partner (i.e. customers ordering directly from a Merchant Partner).

ii. Merchant Partner shall ensure that all mandatory information pertaining to taxes, levies, and charges applicable on the Order(s) are clearly visible to the Customers on their invoice issued for any supply other than Merchant Service, as per the applicable laws.

iii. Merchant Partner will ensure that the Information provided to Bagsy is current and accurate, including but not limited to the Merchant Partner name, address, contact telephone number, email, manager/contact person details, delivery times, opening hours, Menu(s), price lists, taxes, Menu Item Categorisation, service addresses, and other relevant information.

iv. Merchant Partner shall confirm to Bagsy its Menu Item Categorisation between Merchant Service and Supply of Foods and Beverages Items. Menu Item Categorisation as confirmed by the Merchant Partner shall be consumed by Bagsy for the purpose of undertaking necessary compliance with the applicable laws. In the event of a dispute in Menu Item Categorisation, the Merchant Partner undertakes to make good any losses incurred by Bagsy on account of any mis-declaration or mis-representation of facts.

v. Merchant Partner shall ensure that it is the sole author/owner of, or otherwise controls all the content / material, including but not limited to the Merchant Partner’s name, establishment name, logo, menu items, images of the food and beverages/ menu items, etc. transmitted or submitted by the Merchant Partner to Bagsy either through the Platform or otherwise (“Content”), or has been granted the right to use such Content from the rights holder of such Content and that it does not violate or infringe the rights of any third party or applicable laws;

vi. Merchant Partner shall process and execute the Order(s) promptly.

vii. The Merchant Partner shall be obligated to mark the store as “closed” in its online ordering mechanism whenever the Merchant Partner is unable to provide Merchant Services to the Customer.

viii. Merchant Partner acknowledges and agrees that in the event the Customer’s experience with the Merchant Partner and the Merchant Services is hampered on account of acts and omissions attributable to the Merchant Partner, including but not limited to, frequent rejection of Order(s), Bagsy reserves the right to take appropriate action in accordance with its policies, which may be amended from time to time.

ix. Merchant Partner shall inform Bagsy about any change or modification made to the Order by the Customer, directly with the Merchant Partner.

x. Merchant Partner hereby agrees that if it accepts the Order cancellation request raised by a Customer via the Platform for Merchant Partner, it shall not be eligible to receive any Order Value or amount for such canceled Order.

xi. Merchant Partner shall ensure that when a Customer pays online for an Order and the Merchant Partner is undertaking logistics, the Merchant Partner or its representative collects a signed receipt from the Customer upon delivery of the Order. In the event of a dispute in respect of whether the Merchant Partner is entitled to a payment by Bagsy in accordance with these Terms, Bagsy will not be required to make any such payment unless the Merchant Partner provides Bagsy with a copy of the signed receipt.

xii. Merchant Partner shall retain proof of delivery for a period of 180 days from the date of delivery.

xiii. In the event the Merchant Partner undertakes delivery of any Order, it shall ensure only trained personnel undertake such delivery and the safety of the food and beverage is not compromised at any time until the Order is received by the Customer. The Merchant Partner agrees to indemnify Bagsy for any claims that may arise on account delivery of Orders undertaken by the Merchant Partner.

xiv. The Merchant Partner warrants that the food and beverages provided to Customers are:

a. of high quality and fit for human consumption;

b. compliant with Food Safety and Standards Act, 2006 and the rules, regulations, licenses, standards and guidelines issued thereunder;

c. compliant with all other relevant Indian legislation, including all applicable food industry regulations.

xv. Where the Merchant Partner avails any Optional Services, the Merchant Partner will additionally be liable to abide with the terms and conditions of such Optional Services or any other terms and conditions pertaining to the Optional Services, communicated by Bagsy from time to time.

xvi. Contact a Customer if an Order cannot be processed as requested or to clarify the details of an Order, if required, post confirmation of the Order.

xvii. The Merchant Partner shall contact a Customer if an Order cannot be processed as requested or to clarify the details of an Order, if required, post confirmation of the Order.

xviii. To promptly redress the Customer complaints which have been referred by Bagsy to the Merchant Partner in respect of the (a) quality, quantity and/or taste of the food and beverage; (b) delivery of the Orders (where such delivery has been undertaken by the Merchant Partner and the delivery issues are attributable directly to the Merchant Partner); and (c) failure on part of the Merchant Partner to comply with the special requests / instructions of the Customers where such requests and/or instructions have been clearly communicated by the Customer at the time of the placement of Order.

xix. The Merchant Partner shall remove any/all menu items unavailable with the Merchant Partner.

xx. The Merchant Partner acknowledges and agrees that it will be solely responsible for delivering the Order placed by the Customers (where it is not availing Logistics Services) with the Merchant Partner on the Platform. Unless agreed to by the Merchant Partner in the Form, it is clarified that Bagsy will not provide any Logistics Services.

xxi. For the avoidance of doubt it is hereby expressly clarified that Bagsy is not responsible or liable to the Customer for the (a) quality of the Merchant Service advertised on the Platform; and/or (b) processing of the Order; (c) delivery of the Orders (unless Logistics Services are provided by Bagsy) that have been placed by the Customers with the Merchant Partner through the Platform; and (d) misconduct / illegal activity of the Delivery Partner. The Merchant Partner acknowledges and agrees that it will be solely responsible and liable to the Customer for the (a) quality of the Merchant Service listed and advertised on the Platform; and/or (b) processing of the Order and (c) timely delivery of the Orders (unless Logistics Services are provided by Bagsy) that have been placed by the Customers with it on the Platform.

xxii. The Merchant Partner shall ensure that the Order(s) are (a) in accordance with Order placed by the Customer; and (b) appropriately packed and adequately fastened to avoid any spillage during the transportation. Merchant Partner understands that the Order will be in transit for the period of delivery from the Merchant to the Customer and the Merchant Partner shall ensure that this is taken into consideration while accepting and preparing the same.

xxiii. Merchant Partner shall (a) undertake adequate police verification and background checks for its delivery personnel and maintain records of the same; (b) ensure that the delivery personnel are not intoxicated; (c) ensure that delivery personnel don’t misbehave with the Customer; (d) make timely payment of all applicable statutory dues; (e) maintain adequate insurances; and (f) provide proper training to its delivery personnel to ensure delivery personnel deliver the Order efficiently without any spillage or delay.

xxiv. Merchant Partner shall ensure, while making deliveries, it does not commingle the Order along with other orders it receives directly from customers or from third parties not using the Platform. Merchant Partner shall pack the Order either in Bagsy provided packing material or other packaging material. However, under no circumstances shall the Merchant Partner use third party branding in the packaging material used for the Order.

xxv. Merchant Partner shall address and resolve all Customer complaints received by Bagsy relating to the efficacy, quality or any other issues relating to the Merchant Services expeditiously within timelines prescribed by the Ministry of Consumer Affairs or any other authority from time to time. Further the Merchant Partner shall be solely liable and bound to take action on complaints raised by Customer pertaining to the Order(s).

xxvi. Merchant Partner acknowledges and agrees that Merchant Partner shall be required to furnish a copy of its PAN Card, TAN, GSTIN, FSSAI license and registration certificates and other details required as per law or for provision of Services, as maybe requisitioned by Bagsy from time to time failing which, Bagsy reserves the right to delist the Merchant Partner from the Platform and / or curtail it’s access from the Platform.

xxvii. Where Merchant Partner avails Logistics Services from Bagsy, Merchant Partner shall ensure that it hands over all Orders to the Bagsy authorized delivery personnel in a spill proof packaging.

xxviii. The Merchant Partner shall comply with the applicable law on the ban of single-use plastic and shall ensure that neither single-use plastic is used in packing any Order nor is any cutlery made from single-use plastic provided with the Order. Merchant Partner agrees and acknowledges that Bagsy shall reserve a right to cancel all Orders that are packed by the Merchant Partner using single-use plastic and any payment made to the Delivery Partner assigned to such orders or refund/compensation made by Bagsy to the Customers whose Orders are canceled shall be recovered from Merchant Partner in accordance with Bagsy’s cancellation policy. Further, any loss suffered by Bagsy or the Delivery Partner due to use of single-use plastic by Merchant Partner, whether on account of any fine imposed by the authorities on Bagsy or its Delivery Partner or otherwise, shall be recovered from the Merchant Partner by making deductions in accordance to the payment settlement process agreed under these Terms.

xxix. Furthermore, where Bagsy provides Logistics Services, the Merchant Partner shall ensure that the Order is ready at the time the Delivery Partner arrives to collect the Order. Where the Merchant Partner fails to handover the Order to the Delivery Partner within the indicated kitchen preparation time, Merchant Partner shall be responsible for any and all issues and costs associated with delayed delivery including costs associated with reimbursing the Customer.

xxx. Merchant Partner acknowledges and agrees that it shall not make any independent calls to the Customer and asks the Customer to make payments of amounts greater than what was agreed by the Customer at the time of placing the Order through the Platform.

xxxi. Merchant Partners except required for the fulfillment of Order shall not use the Customer data for sending any unsolicited marketing message, announcements.

xxxii. Merchant Partner shall not engage in any fraudulent activity or misuse any benefits extended by Bagsy to Customers and shall be liable to Bagsy in the event Bagsy becomes aware of any fraudulent activity undertaken by the Merchant Partner.

xxxiii. Merchant Partner shall not charge any delivery and/or Payment Mechanism Fee charges from Customers on Orders where Merchant Partner is not undertaking delivery itself.

xxxiv. Where Merchant Partner avail Logistics Services under Hybrid model and opts to not avail Logistics Services through Bagsy, Merchant Partner shall be responsible to deliver the Order to the Customer.

xxxv. Merchant Partner shall ensure to update the Merchant Application as and when the latest version of the application is available.

xxxvi. Merchant Partner acknowledges and agrees that any asset, such as POS machines/ credit card/debit card swipe machines, bags etc., provided by it to the Logistics Personnel, whether with or without the consent of Bagsy, shall be at its sole risk. Merchant Partner agrees and undertakes that it shall be solely liable if any such asset provided to the Logistics Personnel, is damaged, stolen or not returned by the Logistics Personnel,, and Bagsy shall not be liable to indemnify the Merchant Partner for the same and / or bear cost of the asset.

xxxvii. Merchant Partner shall ensure to protect and maintain the Customer experience on the Platform by accurately displaying the details of the Merchant including but not limited to item names & images in the Menu.

Merchant Partner understands and agrees that having similar item names and images in the Menu of two or more Merchant listings operating from the same location may cause confusion for the Customers and hamper their experience on the Platform.

It is further clarified that, in the event, the Merchant listings are found to be in violation of this term xxxix, then Bagsy shall notify the Merchant Partner by giving a 30 (thirty) day written notice to make the necessary changes and correct the Merchant listings. However, in case the Merchant Partner fails to correct the Merchant listings, then Bagsy reserves the right to take appropriate action, which may include removing all the duplicate listings from the Platform, in accordance with its policies and these Terms.

xl. Merchant Partner with Tablets and Bagsy Device (With Embedded Merchant Application):

a. Shall ensure it has a functional Tablet / Bagsy Device at all times in order to receive and confirm Customer Orders and provide estimates of delivery times or reject the Order through the Merchant Application;

b. may decline Orders through the Tablet / Bagsy Device provided however, Merchant Partner shall not use alternate means (phone/ emails) to connect with the Customer in parallel to take the same Orders and thereby circumventing the process;

c. Execute the Orders promptly and indicate the estimated time of delivery to process the Order delivery including updating the Order status (e.g. out for delivery etc.) through the Merchant Application.

xli. Merchant Partner with Merchant Partner Device (Without Embedded Merchant Application):

i. Ensuring it has a functional Merchant Partner Device at all times in Order to a) receive / reject Orders, b) provide estimates of delivery time, c) communicate with Service Operators through phone call and/or SMS.

ii. Merchant Partner may decline Customer Orders placed through the Service Operator however, Merchant Partner shall not use alternate means (phone/ emails) to connect with the Customer in parallel to take the same Orders and thereby circumvent the process.

xlii. Promotions

Where a Merchant Partner has agreed to extend Promotions (as defined below) to Customers on Order placed at the Merchant via the Platform the Merchant Partner agrees to the following terms and conditions (“Promotion Terms”):

a. These Promotion Terms apply to a Merchant Partner’s engagement in Promotions pursuant to which the Merchant Partner shall extend discounts or offers, as the case may be, to Customers on Order(s) placed with the Merchant Partner via the Platform.

b. These Promotion Terms do not alter in any way, the terms or conditions of any other agreement the Merchant Partner may have with Bagsy.

c. Unless the context otherwise requires, the capitalized terms used herein and not otherwise defined shall have the meaning assigned to them in the Terms.

d. By accepting to sign up for Promotions, the Merchant Partner hereby agrees to the below:

i. The Merchant Partner hereby acknowledges and agrees that it shall determine and make available Promotions to Customers at its sole discretion.

ii. For the purpose of these Promotion Terms, “Promotions” shall mean the discounts or offers determined and made available for Customers on Orders placed with the Merchant Partners via the Bagsy Platform. The Promotions are only valid on online ordering.

iii. The Merchant Partner hereby agrees that the cost of discount under the Promotions shall be completely funded by the Merchant Partner.

iv. The Merchant Partner at its sole discretion shall determine the details and validity period of the Promotions.

v. The Merchant Partner acknowledges and agrees that the Promotions once determined and made available via the Bagsy Platform cannot be modified during the validity period of such Promotions. However, the Merchant Partner may replace a Promotion with a new (modified) Promotion, after giving due notice to Bagsy.

vi. The Promotions during the validity period, may be suspended or revoked any time at the Merchant Partner’s sole discretion.

vii. The Merchant Partner can have any number of Promotions running at a given time.

viii. Unless otherwise specified, the Promotions can be combined with any other offers extended by the Merchant Partner or Bagsy or any other third party.

e. The Merchant Partner hereby agrees to indemnify and hold Bagsy and its directors, officers, agents, representatives and employees, harmless from and against any and all claims, suits, liabilities, judgments, losses and damages arising out of or in connection with (a) any claim or suit or demand on account of Merchant Partner failing to honor any Promotions; and/or (b) breach of any applicable law.

f. You hereby agree and acknowledge that Bagsy has no role or responsibility towards the Promotion(s) and will not be liable to the Merchant Partner or the Customer for any claim relating to the Promotion(s).

g. The Promotion(s) are subject to Bagsy’s approval. Bagsy reserves the right to reject or remove the Promotion(s) at any time, for reasons communicated to the Merchant Partner.

h. Bagsy will determine, in its sole discretion, the placement, and positioning of the Promotion(s) on the Bagsy Platform.

i. Bagsy does not guarantee the reach or performance of the Promotion(s).

j. The Merchant Partner is solely liable for compliance with all applicable laws relating to the Promotions.

k. The arrangement between the parties shall commence from the date of acceptance of these Promotion Terms by the Merchant Partner and shall be valid and binding unless terminated in accordance with these Promotion Terms.

l. The Merchant Partner may at any time opt out of Promotions without any prior notice to Bagsy.

m. Bagsy may terminate the arrangement at any time with a one (1) day prior written notice of termination to the Merchant Partner.

n. Notwithstanding anything to the contrary contained herein, Bagsy may forthwith suspend and/or terminate the Services if the Merchant Partner is in breach of these Promotion Terms and such breach has not been rectified within five (5) days of notice of breach.

o. Bagsy reserves the right to modify the Promotion Terms after prior notice and without liability to the Merchant Partner. Any such changes will be effective immediately upon the changes being reflected on the Terms.

p. Bagsy reserves the right to discontinue the Promotions at its own discretion at any time, without any notice or liability to the Merchant Partner if the same is necessitated due to legal or regulatory requirements. In case of occurrence of such discontinuance, the Merchant Partner will be provided with adequate reasons for discontinuation of Promotions in due course.

q. Termination of these Promotion Terms shall have no effect on these Terms.

r. All the rights, duties, liabilities and obligations of the respective parties under the Terms shall form an integral part of these Promotion Terms and shall remain unaltered by these Promotion Terms.

s. Except as provided herein and varied/modified, the Terms shall continue to have full force and effect.

t. For any help or queries with regard to Promotions, you may reach out via the help center on the Merchant Application.

u. For any promotions offered by Bagsy without prior intimation to the Merchant Partner, Bagsy will bear the cost of the promotion against its contractually agreed commission percentage with the merchant.

4. License

Merchant Partner grants to Bagsy an unrestricted, non-exclusive, royalty-free license in respect of all Content (defined hereinabove) and Information provided to Bagsy by the Merchant Partner for the purposes of inclusion on the Platform and as may be otherwise required under the Form. This includes, but is not limited to, (a) use of the Merchant Partner’s name in the context of Google adwords to support advertising and promotional campaigns to promote online ordering on internet which may be undertaken by Bagsy (b) preparation of derivative works of, or incorporate into other works, all or any portion of the marketing materials which will be made by Bagsy for the purposes of its business.

Any Content, information or material that the Merchant Partner transmits or submits to Bagsy either through the Platform or otherwise shall be considered and may be treated by Bagsy as non-confidential, subject to Bagsy’s obligations under relevant data protection legislation.

The Merchant Partner also grants to Bagsy a royalty-free, perpetual, irrevocable, non-exclusive license to use, copy, modify, adapt, translate, publish and distribute world-wide any Content, information or material for the purposes of providing Services under these Terms or to or for the purposes of advertising and promotion of the Platform. The Merchant Partner agrees that all Content , information or material provided to Bagsy that is published on the Platform, may be relied upon and viewed by Customers to enable them to make informed decisions at the prepurchase stage.

5. Merchant Partner Menu and Price List

i. Bagsy will display on the Platform the menu and price list for all of its Merchant Partners. The Merchant Partner agrees that Bagsy reserves the right to modify and delete certain items from the Merchant Partner’s menu list at its sole discretion, listed on the Platform, to ensure compliance with Food Safety and Standards Act, 2006, requirements or applicable law in the relevant State or Territory and all other applicable legislation, regulations or regulatory standards. Bagsy shall endeavor to update price lists within 48 hours of being notified of changes (in writing) by a Merchant Partner. Where the Merchant Partner has a unilateral right to access Merchant Partner admin panel or dashboard (subject to Bagsy’s written consent in this regard) to edit and update the Information which is displayed on the Platform by Bagsy, the Merchant Partner should ensure that it (i) keeps such information true, accurate and updated at all times; and (ii) complies with Bagsy’s internal terms and conditions of use in this regard and (iii) intimates to Bagsy about such change.

ii. Merchant Partner shall provide Bagsy with a separate list of all Pre-Packed Goods which form part of the Merchant Partner’s menu list, to be listed on the Platform, in the format acceptable to Bagsy.

iii. The Merchant Partner shall ensure that the Pre-Packed Goods listed on the Platform shall have shelf life of 30 percent or forty-five (45) days before expiry at the time of delivery to the Customers.

iv. The Merchant Partner will, at all times, maintain parity in the pricing for all products offered for sale to the Customers via the Platform as against that made available for sale through its Merchant locations or its other direct channels like websites etc. For the purpose of clarity, such parity is required to be maintained by the Merchant Partner in food and beverage items sold via the Platform and its quality, quantity and other charges that may be levied by the Merchant Partner.

v. The Merchant Partner shall not charge an amount over and above the maximum retail price (“MRP”) for all such food and beverage items which have MRP mentioned on them.

vi. The Merchant Partner acknowledges and agrees that Bagsy will use its best endeavors to ensure that the Platform is not misused by the Customers for the placement of erroneous/fraudulent Orders. In the event of an erroneous/fraudulent Order, the Merchant Partner undertakes to report such an erroneous/fraudulent Order to Bagsy through the Tablet or Bagsy Device or call Bagsy for Bagsy’s action and investigation.

vii. Bagsy may perform a variety of marketing activities to promote the Merchant Partner and the Merchant Partner’s menu; provided, however, that all such marketing activities will be determined in Bagsy’s sole and absolute discretion and the Platform may be modified or updated, without notice and from time to time, to reflect any such changes.

 

6. Payments Mechanism

i. The Merchant Partner acknowledges and agrees that the Platform will provide the following payment mechanisms to the Customers for the payment of the Order Value:

a. Cash on delivery (up-to a certain order value);

b. Electronic Payment Mechanism; and

c. Redemption of vouchers and/or discount coupons (if any) approved by Bagsy.

ii. The Merchant Partner acknowledges and agrees that Bagsy will provide the Merchant Partner with an invoice (an a request basis) within a period of 7 (seven) days from the date of request for the Commission, Payment Mechanism Fee, refund charges, One Time Sign Up Fee and other amounts, charges that is payable by the Merchant Partner to Bagsy in respect of the applicable Orders.

iii. Invoices will be sent to the Merchant Partner by email. All invoices shall be issued from the respective state registered office of Bagsy from where the Services are being performed by Bagsy in order to comply with the provisions of Goods & Services Tax (GST) laws applicable in India. The list of respective state Bagsy’s registered offices of Bagsy across India will be updated in the list below:
Uttar Pradesh – 15/45B Civil Lines, Kanpur. 208001

iv. The Merchant Partner acknowledges and agrees that all amounts that are payable to Bagsy under these Terms shall be exclusive of the applicable taxes and that all applicable taxes will be charged separately.

7. Obligations of Parties in Case of Online Payment Orders

i. The Merchant Partner must meet all of the following requirements when it receives an online payment Order:

a. ensure that it does not receive any additional payment from a Customer (including but not limited to payment by cash) when payment has been made online by a Customer;

b. follow all special instructions contained on the Order receipt or as communicated by Service Operator; and

c. obtain a signature from the Customer acknowledging receipt of the Order when the Merchant Partner undertakes delivery of the Orders independently or through third parties, other than Bagsy.

ii. If the Merchant Partner has not complied with the delivery instructions (as set forth in this Order receipt) or has supplied bad quality Goods to the Customer, whereby Bagsy has (pursuant to the Customer’s complaint) been constrained to refund the Order Value to the Customer (“Problem Order”) in any manner, the Merchant Partner acknowledges and agrees that the Merchant Partner will not be paid for such Problem Order and that if the Merchant Partner has already received the Order Value from Bagsy in respect of such Problem Order (subject to the appropriate reductions under Clause 10), Bagsy will have a right in accordance with these Terms to deduct or offset such amount from or against any monies that are owed by Bagsy to the Merchant Partner (in respect of future Orders) under these Terms.

iii. Merchant Partner shall disclose all relevant details pertaining to Problem Order(s) with Bagsy, if required by Bagsy.

iv. Bagsy will communicate promptly with its bank if it becomes aware of any fraud having been committed by a Customer.

8. Payment Settlement Process

i. The Merchant Partner acknowledges and agrees that any Order Value which is collected by Bagsy for, and on behalf of, the Merchant Partner in accordance with these Terms, shall be passed on by Bagsy to the Merchant Partner subject to the deduction of the following amounts (as applicable) by Bagsy from such Order amount:

a. Commission payable to Bagsy by the Merchant Partner;

b. Any Discounts/Offers provided by the Merchant Partner;

c. amount of tax collected by Bagsy in case of Merchant Service provided by Merchant Partner though the Bagsy Platform;

d. any platform fulfillment fees or surge charge fees charged to the customer at the discretion of Bagsy

e. any other amounts that are due to Bagsy under the Form or on account of other services availed by Merchant Partner from Bagsy, to which specific consent of the Merchant Partner is accorded.

ii. The Parties acknowledge and agree that after the deduction of the aforementioned amounts, Bagsy shall remit the Order Value due to the Merchant Partner on a monthly basis (or within 7 business days of the Merchant Partner raising a request from their bagsy device or website) ending on the last day of each month. For settlement of the Order Value, the Parties acknowledge and agree that after the deduction of the aforementioned amounts, Bagsy shall remit the Order Value due to the Merchant Partner allowing reasonable time for adjustments towards Orders for which the Customers have either refused to pay or have claimed a refund, as applicable (but in accordance with the guidelines prescribed by Reserve Bank of India for payment systems and nodal account) (“Payment Settlement Day”). If the Payment Settlement Day falls on a bank holiday it shall be the following working day.

iii. Notwithstanding anything to the contrary contained in these Terms or the Form, the Merchant Partner, on behalf of itself and all its affiliates, hereby unconditionally and irrevocably authorizes Bagsy to set off, withhold and deduct any amounts owed by the Merchant Partner or its affiliates to any Bagsy Group Company under any agreement, arrangement or understanding between the Bagsy Group Company and the Merchant Partner or its affiliates, from the Net Order Value, and apply such amounts towards the dues owed by the Merchant Partner or its affiliates to the Bagsy Group Company. Without prejudice to the other provisions of the Form or these Terms, and solely for the purposes of this Clause 10 (iii), the Merchant Partner hereby agrees, acknowledges and confirms that the amounts so set off, withheld and applied in the aforesaid manner shall be deemed to form part of the Commission payable by the Merchant Partner to Bagsy under the Form and these Terms. For purposes of the provisions of this clause 10(iii), the term Bagsy Group Company shall be deemed to include any of Bagsy’s current and former, direct and indirect, subsidiaries and/or controlled affiliates as well as any successor to Bagsy or all or any material portion of the businesses and/or assets of Bagsy or any successor thereto or any of its direct and indirect, subsidiaries and/or controlled affiliates.

9. Commission Structure

In consideration for the Services offered by Bagsy to the Merchant Partner, the Merchant Partner undertakes to pay to Bagsy commission at the rates set out in the Form, which commission amount may be determined by way of a percentage of the amount of the Net Sales (irrespective of the payments mechanism underlying the Order) (“Commission”).

From time to time, Bagsy may change the fees for the Services, including without limitation the Commission rates, Payment Mechanism Fee or include any additional charges/ fee, provided however, that Bagsy communicates such change(s) via email or any other modes of communication, seven (7) days prior to the date that such change(s) are to take effect.

10. Taxes

Notwithstanding anything to the contrary herein, the Merchant Partner is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with Customer Orders for supply other than Merchant Service and the Merchant Partner’s use of the Platform and Bagsy Services. Bagsy may charge and collect applicable taxes from Customers on behalf of the Merchant Partner in accordance with instructions provided by the Merchant Partner and/or applicable law; and, in which case, Bagsy will collect such tax solely on behalf of the Merchant Partner and shall pay such amount collected to the Merchant Partner. The Merchant Partner shall be solely responsible for verifying amounts collected, filing the appropriate tax returns, and remitting the proper amount to the appropriate tax authorities. Taxes shall include all applicable taxes due in relation to the sale of food and beverages, including pick-up and delivery services (if applicable), by the Merchant Partner. It is clarified that Bagsy will not be liable for payment of any Taxes that the Merchant Partner is liable to pay in connection with supply other than Merchant Services which shall be provided by the Merchant Partner to the Customers in accordance with these Terms and that the Merchant Partner hereby undertakes to indemnify, defend and hold harmless, Bagsy and each of its affiliates and (as applicable) all of their directors, officers employees, representatives and advisors against any tax liability that may arise against Bagsy on account of the non-payment of Taxes by the Merchant Partner under these Terms. Merchant Partner will be required to deposit relevant taxes, including tax deducted at source (TDS) on the commission payable to Bagsy. However, in case where Bagsy withholds its Commission before remitting the settlement dues to the Merchant Partner, Bagsy shall refund the TDS to the Merchant Partner subject to submission of the TDS certificate on a quarterly basis within sixty (60) days from the end of the quarter.

Tax paid by Bagsy on Merchant Service under GST laws (‘Tax u/s 9(5’) of Central Goods and Services Tax Act, 2017:

W.e.f. 01 January 2022, notwithstanding anything to the contrary herein, Bagsy is, and will be, responsible for payment and collection of taxes in connection with Customer Orders of Merchant Service. Bagsy will collect applicable taxes from Customers on behalf of the Merchant Partner in accordance with GST laws and deposit the same to the proper amount to the appropriate tax authorities. Taxes shall include all applicable taxes due in relation to the supply of Merchant Service including pick-up and delivery services (if applicable), by the Merchant Partner. Merchant Partner(s) will be required to deposit relevant taxes, including tax deducted at source (TDS) on the commission payable to Bagsy. However, in case where Bagsy withholds its Commission before remitting the settlement dues to the Merchant Partner, Bagsy shall refund the TDS to the Merchant Partner subject to submission of the TDS certificate on a quarterly basis within sixty (60) days from the end of the quarter.

For the purpose of clarification, as per Section 9(5) of Central Goods and Services Tax Act, 2017, with effect from 1 January 2022, tax on supply of specified Merchant Service supplied by Merchant(s) through e-commerce platform shall be paid by such e-commerce operators.

Tax collected at source:

W.e.f. 01st October, 2018, Bagsy is required to collect taxes at source on Gross Sales (less applicable taxes charged by Merchant(s) on Supply of Food and Beverages Items other than supply of Merchant Service, at such rates as required by the applicable tax laws (“TCS”). The TCS shall be collected on the date of acceptance of Order. The Merchant Partner shall be solely responsible to provide correct GSTIN details to Bagsy and reconcile the TCS with the tax statements provided by Bagsy from time to time, as required by applicable laws. Bagsy shall remit TCS to the respective Central Government and State Government/Union Territory and such remittance(s) shall be considered as complete fulfillment of Bagsy’s obligations in this regard. TheMerchant Partner may be eligible to claim TCS credit on the basis of tax returns filed by it with the relevant government/statutory/tax authorities. Merchant Partner acknowledges and agrees that in the event of any discrepancy between the tax returns/entries filed by Merchant Partner and those filed by Bagsy, the tax returns/entries present and filed by Bagsy shall have a precedence over the tax returns/entries filed by Merchant Partner.

Tax Deducted at Source under Income Tax Act (‘TDS u/s 194-O’):

W.e.f. 01st October, 2020, Bagsy is required to deduct taxes at source from the amount for all Orders that are settled via Bagsy’s Platform. TDS u/s 194-O shall be applied on Gross Sales (less applicable taxes charged by the Merchant) as per the applicable tax law on the rate as applicable and amended from time to time. Bagsy hereby clarifies that TDS u/s 194-O shall be deducted under the Payment Settlement Process set out in the Form and these Terms.

The Merchant Partner shall be solely responsible to provide correct PAN details to Bagsy and reconcile the income tax deducted with the order transaction report and certificates provided by Bagsy from time to time. Bagsy shall remit income tax deducted to the respective Government account and report against the PAN as available on Bagsy records. Such remittance(s) and reporting shall be considered as complete fulfilment of Bagsy’s obligations in this regard.

Bagsy will share a quarterly TDS certificate with Merchant Partner as per applicable tax law. The Merchant Partner may be eligible to claim credit of the income tax deducted on the basis of tax returns filed by it with the relevant government tax authorities. Merchant Partner acknowledges and agrees that it is the Merchant Partner’s responsibility to reconcile and claim correct credit for the income tax deducted for which the Merchant Partner may be eligible as per the applicable laws. Merchant Partner also agrees that in the event of any discrepancy between the returns filed by the Merchant Partner and those filed by Bagsy, the amount reported by Bagsy shall have a precedence over the tax returns filed by the Merchant Partner.

Any discrepancy identified at the time of reconciliation by the Merchant Partner should be brought to the attention of Bagsy within a period of fifteen (15) days from the date of receipt of TDS Certificate. Any delay on this account will relieve Bagsy of any obligation to undertake a corrective action to resolve the discrepancy. Under no circumstances, Bagsy shall entertain any discrepancy in the reported value after 31st July of the year following the financial year to which the transactions were undertaken and reported.

Merchant Partner agrees and acknowledges that Bagsy shall not be held liable in any manner in the event the Merchant Partner does not receive the benefit of income tax deducted due to incorrect particulars provided by the Merchant Partner to Bagsy.

11. Confidentiality

i. Other than for provision of Service(s) by Bagsy, Bagsy does not share any other information of the Merchant Partner with third parties unless requisitioned by government authorities.

ii. Other than for the purpose of availing Service(s) from Bagsy, the Merchant Partner must not disclose any confidential information about Bagsy, including but not limited to these Terms, its business strategies, pricing, revenues, expenses, Customer Data, and Order information to third parties.

12. Warranty and Indemnity

i. Merchant Partner warrants that if the Merchant Partner ceases to do business, closes operations for a material term or is otherwise unable to offer services to Customers it will inform Bagsy promptly. Where the Merchant Partner neglects to do so, whether by omission or fault, Bagsy will not be held responsible for any liabilities, whether financial or otherwise.

ii. Merchant Partner warrants that it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law.

iii. Bagsy warrants that it will undertake its obligations with reasonable skill and care.

iv. Bagsy does not guarantee or warrant that the Platform, Application, Tablet, Bagsy Device, software, hardware or services will be free from defects or malfunctions. If errors occur, it will use its best endeavors to resolve these as quickly as possible.

v. Merchant Partner warrants that it complies and will remain compliant with the Food Safety and Standards Act, 2006, Legal Metrology Act, 2009 and the applicable rules and regulations made thereunder and any other requirements or applicable law in the relevant State or Territory and all other applicable legislation, regulations or standards.

vi. Merchant Partner 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 Bagsy prior to availing the Services.

vii. The Merchant Partner agrees to indemnify and hold Bagsy (and its directors, officers, agents, representatives and employees) harmless from and against any and all claims, suits, liabilities, judgments, losses and damages arising out of or in connection with any claim or suit or demand:

a. by a Customer (or any party on whose behalf a Customer has been acting), for reasons not attributable to the Service;

b. By a Customer (or any party on whose behalf a Customer has been acting) or any third party In respect of, arising out of or relating to the Content, Information or material provided by the Merchant Partner to Bagsy, to be listed on the Platform.

c. in respect of, arising out of, or in connection with, Merchant Services (or any other services actually or purportedly offered in respect of or connected to the Merchant Services) and delivery of such Merchant Services when undertaken by the Merchant Partner;

d. 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);

e. in respect of quality of the Merchant Services provided by the Merchant Partner;

f. in respect of the warranties provided by the Merchant Partner in Clause 13 (Warranty and Indemnity) hereto;

g. relating to harm caused by the Merchant Partner supplying any unsafe Merchant Services, any product failure, defect or hazard in any Merchant Services supplied or sold by the Merchant Partner or inadequate instructions or warnings provided to Customers pertaining to any hazards arising from or associated with the use of any Merchant Services supplied or sold by the Merchant Partner;

h. brought either by Bagsy and/or third party on account of misuse, abuse, cheating, fraud, misrepresentation carried out by the Merchant Partner;

i. in respect of, arising out of or in connection of any use of the Customer Data, not in accordance with the Terms and/or the applicable law;

j. for any misleading or incorrect or false, information or data provided by the Merchant Partner;

k. misuse and/ or unauthorized or fraudulent use of SIM card provided along with Bagsy Tablet/ Bagsy Device;

l. damage or loss to the Tablet / Bagsy Device;

viii. The Merchant Partner acknowledges that it supplies certain rights to Bagsy to enable Bagsy to provide services to the Customer. Bagsy will not be liable for any applicable taxes liability in respect of Supply of Foods and Beverages Items other than Merchant Service by Merchant Partner to Customers and the Merchant Partner hereby indemnifies Bagsy against any applicable taxes it may become liable for arising out of such transactions.

13. Customer Data

The Merchant Partner agrees that the Merchant Partner will only use the Customer Data in fulfilling the applicable Customer Order and in complying with the Merchant Partner’s obligations in this Form, and the Merchant Partner agrees that Customer Data will not be used to enhance any file or list of the Merchant Partner or any third party. The Merchant Partner represents, warrants, and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose whatsoever. The Merchant Partner agrees it shall not use the Customer Data for sending any unsolicited marketing message, announcements and for feedback purposes, and shall be solely liable to ensure that any third party with whom Customer Data is shared complies with the restrictions set forth herein. The Merchant Partner agrees that it will not copy or otherwise reproduce any Customer Data other than for the purpose of fulfilling the applicable Customer Order. The Merchant Partner (and any other persons to whom the Merchant Partner provides any Customer Data) will implement and comply with reasonable security measures in protecting, handling, and securing the Customer Data. If any Customer Data is collected by the Merchant Partner (or otherwise on its behalf), the Merchant Partner shall ensure that it (and any applicable third parties) adopt, post, and process the Customer Data in conformity with an appropriate and customary privacy policy. For purposes of this Form, the restrictions set forth herein on the Merchant Partner’s use of Customer Data do not apply to: (a) data from any Customer who was a customer of Merchant Partner prior to the Merchant Partner using the Platform or the Bagsy Services, but only with respect to data that was so previously provided to the Merchant Partner by such Customer; or (b) data supplied by a customer directly to the Merchant Partner who becomes a customer of the Merchant Partner and who explicitly opts in to receive communications from the Merchant Partner for the purposes for which such Customer Data will be used by Merchant Partner; and, provided in all cases, that the Merchant Partner handles and uses such Customer Data in compliance with applicable Laws and the Merchant Partner’s posted privacy policy.

14. Term and Termination

The arrangement between parties shall start on the Execution Date and unless terminated earlier under this clause shall continue indefinitely. Either Party may terminate the arrangement, with or without cause, at any time upon seven (7) days prior written notice to the other party.

Bagsy may terminate the arrangement or suspend the Services of the Merchant Partner with immediate effect if:

a. the Merchant Partner fails to conduct its business in accordance with these Terms and /or in accordance with the information given to Bagsy, such as Merchant Partner proprietary rights, opening hours, delivery areas, delivery conditions, nature of food served or prices;

b. the user experience for the Merchant Partner is not found satisfactory as per the Bagsy standards;

c. for a continuous period of 14 days, the Merchant Partner fails to deliver Order(s) which are not fraudulent or unintentional;

d. upon the happening of any of the insolvency events such as bankruptcy, appointment of receiver, administrator, liquidator, winding up, dissolution;

e. Bagsy identifies any fraudulent or suspicious activity on the Merchant Partner’s account;

f. the Merchant Partner fails to comply with Applicable Law and/or these Terms,; and/or

g. in case Bagsy conducts any investigation to ensure Merchant Partner’s compliance with the Applicable Law and/or these Terms.

Parties may terminate their arrangement with immediate effect by notice in writing to the other party if the other party commits a material breach, which, in the case of a material breach capable of remedy, is not remedied within 14 days after written notice is given to the breaching party, specifying the default. Termination of the arrangement: (a) in accordance with its Terms, shall not affect the accrued rights or liabilities of the parties at the date of termination; and (b) shall have no effect on: (i) the validity of Services already issued to Customers; or (ii) Merchant Partner’s obligations to pay for Services availed in accordance with this Agreement.

Bagsy, at its sole discretion, reserves the right to suspend and/or terminate the Services immediately with a prior notice to the Merchant Partner on account of any alleged or threatened or actual (a) suspicious activity; and /or (b) breach of any intellectual property right of Bagsy or any third party by the Merchant Partner; and/or (c) any false misrepresentation by the Merchant Partner; and/or (d).fraudulent activity. The Merchant Partner hereby agrees and acknowledges that in addition to the aforementioned right to terminate and/or suspend the Services, Bagsy shall also have the right to withhold, set off and deduct any payments that may be due to the Merchant Partner from Bagsy. Without prejudice to the other provisions of the Form or these Terms, and solely for the purposes of this Clause, the Merchant Partner hereby agrees, acknowledges and confirms that the amounts so set off, withheld and applied in the aforesaid manner shall be deemed to form part of the Commission payable by the Merchant Partner to Bagsy under the Form and these Terms.

15. Notice requirements

Factors that prevent you from fulfilling your obligations towards Bagsy or Customers should promptly be reported to Bagsy by contacting the account manager appointed by Bagsy or by writing an email to mail@bagsy.in.

16. Disclaimers

To the fullest extent permitted by law, Bagsy 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 Platform and the Bagsy services and any use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. Bagsy makes no warranties or representations about the accuracy or completeness of the content and data on the Platform or the Bagsy services’ content or the content of any other websites linked to the website, 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 Partner’s access to and use of the Platform and the Bagsy services, (c) any unauthorized access to or use of Bagsy’ 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 Bagsy services, (e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the website or the Bagsy services by any third party, and/or (f) 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 website or the Bagsy Services.

17. Limitation of Liability

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 this Form, including liability expressly provided for under this Form or arising by reason of the invalidity or unenforceability of any term of this Form. Bagsy does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, Bagsy 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 Bagsy will use its best endeavors to ensure that the unintentional operational errors do not occur, Bagsy cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, Bagsy’s aggregate liability under this Form shall not exceed the total value of the Order under which the claim arose.

18. Miscellaneous

i. Governing Law and Dispute Resolution: This Form shall be governed by the Laws of India, for the time being in force and the courts of New Delhi shall have the exclusive jurisdiction to preside over matters arising hereunder. Parties shall first endeavor to resolve their disputes amicably within fifteen (15) days from the date on which the dispute was first notified. Failing which, the dispute shall be referred to court.

ii. Waiver: The failure of either party to assert any of its rights under the Form, including, but not limited to, the right to terminate the Form in the event of breach or default by the other party, will not be deemed to constitute a waiver by that party of its right thereafter to enforce each and every provision of the Form in accordance with these Terms.

iii. Invalidity or unenforceability of any provision of or right arising pursuant to these Terms shall not adversely affect the validity or enforceability of the remaining obligations or provisions.

iv. No third party rights: No term of this Form shall be enforceable by a third party.

v. No assignment: The Merchant Partner must not assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with this Form or any right, benefit or interest under it, nor transfer, novate or sub-contract any of the Merchant Partner’s obligations under it.

vi. Independent contractors: The Form does not create any agency, employment, partnership, joint venture, or other joint relationship. Bagsy and the Merchant Partner are independent contractors and neither has any authority to bind the other.

vii. Change of control: The Merchant Partner acknowledges that the business and assets of Bagsy may be sold in the future and consents to the transfer or disclosure of its personal Information and this Form to any purchaser of the business of Bagsy or its assets if that outcome occurs.

viii. Acceptance to Bagsy’s Privacy Policy: by signing the Form, the Merchant Partner acknowledges and agrees to be bound by Bagsy’s privacy policy. Merchant Partner will immediately notify Bagsy if it becomes aware of or suspects any unauthorized use or access to the user data or any other Confidential Information of Bagsy, and shall cooperate with Bagsy in investigation of such breach and the mitigation of any damage.

19. Modification

Bagsy may modify these Terms from time to time, and any such changes will (i) be reflected on the Website, and (ii) be effective immediately upon the changes being reflected on the Platform. The Merchant 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 Platform.

 

Further, in the event Bagsy upgrades, modifies or replaces the Services (“Service Modifications”) offered to the Merchant Partner, Bagsy will notify the Merchant Partner prior to making the same and give the Merchant Partner the opportunity to review and comment on the Service Modifications before continuing to use the Service or any alternative service offered by Bagsy. The Service Modifications will also be reflected on the Platform. If the Merchant Partner continues to use the Service or any alternate service offered by Bagsy, following any notice of the Service Modifications, it shall constitute the Merchant Partner’s acceptance of such Service Modifications.