These Terms form part of the Merchant Enrollment Form for TheWaala Platform ("Form") and constitute a legally binding agreement made between you, whether personally or on behalf of an entity (the "Merchant"), and Zuruwaala Private Limited and its affiliates (collectively, "TheWaala"), wherein the Merchant agrees to list and sell Products to the Customers via the TheWaala Platform.
1. Definitions:
a. "Calendar Month" means a month as named in the English calendar.
b. "Commission" means the amount payable by the Merchant to TheWaala, being a percentage (%) of Net Sales as set out in the Form.
c. "Customer" means users who place Orders through the Platform.
d. "Customer Application" means the proprietary online website and/or mobile based Order placement application of TheWaala available on the Platform, which enables the Customers to (a) place an Order with the Merchant for the purpose of purchasing Products; and (b) track the status of the Order placed by such Customer with the Merchant; and (c) facilitates a provision of payment by the Customer towards the Products purchased from the Store.
e. "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 located at https://www.thewaala.com/privacy.
f. “Declaration” means the Declaration for TheWaala Platform executed by the Merchant.
g. "Delivery Charges" means the delivery fee charged by the Logistics Personnel from the Customers on each Order delivered to the Customers.
h. "Electronic Payment Mechanism" means the online and mobile based payment mechanisms including the third party payment gateways, credit card/debit card/net banking transfer/UPI and/or e-wallets and/ or TheWaala credits that are available on the Platform for the purposes of facilitating the payment of the Order Value by the Customer.
i. "Execution Date" means the date of execution of Form.
j. "Form" means the Merchant Enrolment Form for TheWaala Platform executed by the Merchant.
k. "Information" means the information set out and provided along with the Form and includes any information which is supplied by the Merchant to TheWaala under these Terms such as the Store(s) name, establishment name, logo, list of Products and images of the Products, the Price lists for the Products, the Stock Quantity of the Products, opening hours of the Store operated by the Merchant, rates at which taxes are charged by the Merchant to the Customer, specific information the Merchant is under an obligation to supply to TheWaala (a) immediately on the Execution Date; or (b) within 1 (one) day from any change in such information.
l. "Logistics Personnel" means a third party service provider who shall be providing delivery services to the Customer and is connected for providing delivery services through the online technology Platform of TheWaala.
m. "Payment Mechanism Fee" means a fee as more specifically set out in the Form;
n. "Logistics Services" means services offered by TheWaala wherein TheWaala connects the Merchant with Logistics Personnel through its online technology platform, who shall pick Order(s) from the Store, and deliver the same to the Customers.
o. "Price" means the selling price of the Products as indicated on the Platform at the time of placing Order and as intimated by Merchant to TheWaala from time to time.
p. "Products" means the virtual page on the Platform, which lists out the food (either fresh or preserved) and beverage items including but not limited to groceries, fresh produce, fruits & vegetables, poultry, dairy, bakery items, Fast-Moving Consumer Goods (FMCG), Pre-Packed Goods, non-food items and other essential household items that are offered for sale by the Merchants to the Customers, on the Platform.
q. "Merchant Application" means the TheWaala developed online Order management application which provides Merchant the ability to (a) receive an Order for the Products; (b) accept or reject the Order within stipulated time, if applicable; (c) provide updates on the Customers Order and its status; and (d) place a request for Logistics Services, if applicable.
r. "Net Order Value" means Order Value received, less the Commission and any other additional amount, charges etc. that are due to TheWaala from the Merchant under these Terms or the Form.
s. "Net Sales" means the gross amount charged by the Merchant to any Customer that is attributable to any Order placed through the Platform, less all: (a) applicable taxes, (b) discounts being offered by the Merchant on the Platform, (if any);
t. "Optional Services" means the optional services offered to the Merchant by TheWaala from time to time.
u. "Order" means the placement of an order by the Customer with the Merchant for the purchase of Products via the Platform.
v. "Order Value" means the amount which is payable by the Customer upon placement of an Order with the Merchant on the Platform for the Products.
w. "Parties" means TheWaala and the Merchant.
x. "Platform" means the Website and Customer Application owned by TheWaala.
y. "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.
z. "Store" means a commercial establishment(s) for which the Merchant is executing the Form, and from where the Products are delivered to the Customer.
aa. "Merchant" means the entity/ individual being the legal owner / operator of the Store as mentioned in the Form.
bb. "Services" means the following services offered by TheWaala to the Merchant on and from the Execution Date, for the provision of sale of Products by the Merchant to the Customer through the Platform:
i. listing of the Products, Stock Quantity and the Price list supplied by the Merchant in respect of the Products on the Platform;
ii. Order placement mechanism for the purchase of Products by the Customer from the Merchant on a real time basis;
iii. a software to record sales, track inventory, generate sales reports, and manage customer information;
iv. a Mobile Application to process sales transactions using a mobile device such as a smartphone or tablet;
v. allowing customers to independently scan, bag, and pay for their purchases using self-service kiosks or mobile applications;
vi. payment mechanism for the payment of the Order Value by the Customer;
vii. Customer’s and Merchant complaint redressal services in respect of the functioning of the Platform; and
viii. Logistics Services.
cc. "Website" means www.thewaala.com (including the webpages contained or hyperlinked therein and owned or controlled by TheWaala), seller.thewaala.com and such other media or media channels, devices, mobile applications, software, or technologies as TheWaala may choose from time to time.
2. TheWaala’s Obligations:
a. TheWaala will (a) provide a Seller Panel to Merchants to list the Products, Stock Quantity and the Price list on the Platform; and (b) transfer to the Merchant`, the amounts received from the Customers in accordance with agreed Terms set out herein.
b. TheWaala will display on the Platform, on a best effort and as-is basis, all necessary information provided by the Merchant. However, TheWaala is not under any obligation to display any information until the Merchant provides all required information and such information is in compliance with TheWaala’s policies, guidelines and applicable laws.
c. TheWaala will transmit the Orders placed by the Customer with the Store as per below:
i. Orders through TheWaala point of sale system or a TheWaala provided web dashboard, Order transmission on a real time basis; or
ii. Merchant device having the Merchant Application if applicable.
d. TheWaala will redress the Customers and the Merchant’s complaints in respect of the functioning of the Platform
e. For the avoidance of doubt it is hereby expressly clarified that TheWaala is only responsible for providing the Platform to the Merchant to list, offer and sell the Products to the Customers TheWaala will not be responsible or liable for (i) the quality of the Products listed and advertised on the Platform; and/or (ii) the processing of the Orders which have been placed by the Customers with the Merchant on the Platform.
f. If applicable, TheWaala may suspend the Merchant’s account if the Merchant is found non-compliant with the Food Safety and Standards Act, 2006 , Consumer Protection Act, 2019, Legal Metrology Act, 2009 and any other applicable rules, regulations, licenses, standards and guidelines issued thereunder from time to time.
g. For the Logistics Services:
i. Merchant acknowledges and agrees that delivery will be made through a Logistics Personnel. Merchant understands and agrees that TheWaala shall not be responsible if the Logistics Personnel 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 or indulges in any vandalism activity against the Merchant and/or the Store. Please note that TheWaala uses its best endeavours to fulfil the Logistics Services opted by the Merchant. TheWaala has no control, in any manner whatsoever, with respect to the ratings or reviews received by the Merchant for Order delivered through the Logistics Personnel, as such ratings are dependent on multiple factors including but not limited to each Customer’s experience with the Merchant.
ii. The Merchant shall not hold TheWaala liable for any claims, raised by the Customer where the delay in handing over the Order to the Logistics Personnel is solely attributable to the Merchant and its staff.
iii. TheWaala may collect Delivery Charges from the Customer for delivery of the Order.
h. Merchant acknowledges and agrees that TheWaala for the purpose of Logistics Services, merely connects Logistics Personnel with the Merchants for delivery of Order(s) from the Store to the Customer and hence cannot be held liable for any illegal / unlawful activity of the Logistics Personnel.
3. Merchant’s Obligations:
a. Merchant will not discriminate while providing Products to Customers ordering via the Platform. Merchant will not provide any preferential treatment to customers ordering directly from the Merchant through its direct sales channels including its own websites.
b. Merchant 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 as per applicable laws.
c. Merchant will ensure that the Information provided to TheWaala is current and accurate, including but not limited to the Merchant name, geographic address, contact number, email ID, manager/contact person details, delivery times, opening hours, Products, Stock Quantity and , Price lists, taxes, service addresses, and any other relevant information that is required to be given as per applicable laws.
d. Merchant shall provide to TheWaala all relevant details pertaining to the Products offered for sale through the Platform to the Customers, including but not limited to the Products description, images, country of origin, information that is required to be given as per applicable laws and any other content which is necessary for enabling the Customer to make an informed decision before making any purchase (“Content”). For the purpose of these Terms, the Content will include any materials, catalogue images, catalogue information, product information, text or graphics that the Merchant has shared with TheWaala prior to the Execution Date of the Form. TheWaala hereby disclaims all liability with respect to usage of such Content.
e. Merchant will ensure that the Content pertaining to the Products, which is transmitted or submitted by the Merchant to TheWaala for displaying, is accurate and corresponds directly with the appearance, nature, packaging, quality, purpose and other general features of such Products.
f. Merchant shall process and execute the Order(s) promptly.
g. Merchant shall be obligated to turn off “Accepting Order” feature on its online ordering mechanism whenever the Merchant is unable to provide Products to the Customer via TheWaala Platform.
h. Merchant shall not reject any Order transmitted by TheWaala. In the event the Merchant rejects any Order, TheWaala reserves the right to suspend the Merchant from the Platform
i. Merchant shall inform TheWaala about any change or modification made to the Order by the Customer, directly with the Merchant
j. The Merchant warrants that the Products provided to Customers are:
i. of high merchantable quality, free from defects and/or deficiencies;
ii. compliant with Food Safety and Standards Act, 2006 and the rules, regulations, licenses, standards and guidelines issued thereunder (if applicable);
iii. compliant with all other relevant Indian legislation, including all applicable food industry regulations.
k. The Merchant hereby agrees that it shall in no manner offer any Products set out in Schedule H and H1 of the Drugs and Cosmetics Act, 1940 and rules and regulations thereunder, over the counter medicines and/or any other Product which require a medical prescription from a registered medical practitioner under the Drugs and Cosmetics Act, 1940 and rules and regulations thereunder, via the Platform.
l. Where the Merchant avails any Optional Services, the Merchant 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 TheWaala to the Merchant from time to time.
m. Merchant may 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.
n. The Merchant shall at all times be responsible to check the quality and quantity of the Products at the time of handing the Order to the Logistics Personnel. The Merchant agrees that TheWaala shall not be responsible for any deficiency, damage or claims as regards quality or quantity or packaging of the Products.
o. The Merchant hereby agrees to appoint a grievance officer to promptly redress the Customer complaints which have been referred by TheWaala to the Merchant in respect of the (a) quality, quantity and/or taste of the Products; and (b) failure on part of the Merchant 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. The Merchant shall ensure that its grievance officer acknowledges the receipt of any Customer complaint within forty-eight (48) hours and redresses the complaint within one (1) month from the date of receipt of such complaint.
p. The Merchant shall remove any/all such Products that are unavailable or out of stock with the Merchant from the Platform to ensure that the Customer is not able to place an Order for such unavailable/out of stock Product.
q. For the avoidance of doubt it is hereby expressly clarified that TheWaala is not responsible or liable to the Customer for the (a) quality of the Products listed and advertised on the Platform; and/or (b) processing of the Order; (c) misconduct / illegal activity of the Logistics Personnel. The Merchant acknowledges and agrees that it will be solely responsible and liable to the Customer for the (a) quality of the Products listed and advertised on the Platform; and/or (b) processing of the Order.
r. The Merchant shall be solely responsible for any warranty/guarantee of the Products sold to the Customer and in no event shall be the responsibility of TheWaala. Further, in case of imported Products, if any, the Merchant shall provide to TheWaala name and details of the importer along with guarantees related to the authenticity or genuineness of such imported Product.
s. The Merchant hereby agrees not to falsely represent itself as the Customer and post reviews about the Products or misrepresent the quality or the features of any Product.
t. The Merchant 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 understands that the Order will be in transit for the period of delivery from the Store to the Customer and the Merchant shall ensure that this is taken into consideration while accepting and processing the Order.
u. The Merchant shall pack the Order either in TheWaala provided packing material or other packaging material. However, under no circumstances shall the Merchant use third party branding in the packaging material used for the Order.
v. The Merchant shall address and resolve all Customer complaints received by TheWaala relating to the efficacy, quality or any other issues relating to the Products expeditiously within timelines prescribed by the Ministry of Consumer Affairs or any other authority from time to time. Further the Merchant shall be solely liable and bound to take action on complaints raised by the Customers pertaining to the Order(s).
w. Merchant acknowledges and agrees that it 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 TheWaala from time to time failing which, TheWaala reserves the right to delist the Merchant from the Platform and / or curtail it’s access from the Platform.
x. Where Merchant avails Logistics Services from TheWaala, Merchant shall ensure that it hands over all Orders to the TheWaala Logistics Personnel in a spill proof packaging.
y. The Merchant shall comply with all applicable laws on use of plastic and other materials. Any loss suffered by TheWaala or the Logistics Personnel due to use of plastic by Merchant, whether on account of any fine imposed by the authorities on TheWaala or Logistics Personnel or otherwise, shall be recovered from the Merchant by making deductions in accordance with the payment settlement process agreed under these Terms.
z. Furthermore, where TheWaala offers Logistics Services, Merchant shall indicate to TheWaala an indicative Order preparation/pickup and handover time. Merchant shall ensure that the Order is ready at the time the Logistics Personnel arrives to collect the Order. Where the Merchant fails to handover the Order to the Logistics Personnel within the indicated time, Merchant shall be responsible for any and all issues and costs associated with delayed delivery including costs associated with reimbursing the Customer.
aa. Merchant 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.
bb. Merchant except as required for the fulfilment of Order shall not use the Customer data for sending any unsolicited marketing message, announcements.
cc. Merchant shall not engage in any fraudulent activity or misuse any benefits extended by TheWaala to Customers and shall be liable to TheWaala in the event TheWaala becomes aware of any fraudulent activity undertaken by the Merchant.
dd. Merchant shall not charge any delivery charges from Customers on Orders where delivery is through a Logistics Personnel.
ee. Merchant shall ensure to update the Merchant Application as and when the latest version of the application is available and when applicable also ensure that WaalaPOS Software is well connected with a High Speed Internet always.
ff. The Merchant hereby agrees to accept the Products returned to it for reasons including but not limited to cancellation of the Order by a Customer, Customers unavailability to collect the Order, delivering a different Product. The Merchant hereby agrees that it shall not receive any payment for Orders where the same has been returned to it.
gg. If the Merchant has not complied with the delivery instructions (as set forth in this Order receipt) or has supplied bad quality/different Products to the Customer or has supplied Products which are not of the characteristics or features as advertised, whereby TheWaala has (pursuant to the Customer’s complaint) been constrained to refund the Order Value to the Customer ("Problem Order"), the Merchant acknowledges and agrees that the Merchant will not be paid for such Problem Order and that if the Merchant has already received the Order Value from TheWaala in respect of such Problem Order, TheWaala will have a right in accordance with these Terms to deduct or offset such amount from or against any monies that are owed by TheWaala to the Merchant (in respect of future Orders) under these Terms.
4. License:
a. Merchant grants to TheWaala an unrestricted, non-exclusive, royalty-free licence in respect of all Content (defined hereinabove) and Information provided to TheWaala by the Merchant 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’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 TheWaala (b) preparation of derivative works of, or incorporate into other works, all or any portion of the marketing materials which will be made by TheWaala for the purposes of its business.
b. Any Content, Information or material that the Merchant transmits or submits to TheWaala either through the Platform or otherwise shall be considered and may be treated by TheWaala as non-confidential, subject to TheWaala’s obligations under relevant data protection legislation.
c. The Merchant also grants to TheWaala 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. TheWaala may perform a variety of marketing activities to promote the Merchant and the Products; provided, however, that all such marketing activities will be determined in TheWaala’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.
d. The Merchant agrees that all Content, Information or material provided to TheWaala which is published on the Platform, may be relied upon and viewed by the Customers to enable them to make informed decisions before making any purchases stage.
5. Intellectual Property:
a. TheWaala is, and will remain, the owner of the Platform, or otherwise, and all patents, copyrights, trademarks, service marks, trade secrets and other proprietary intellectual property, whether registered, unregistered, associated with the Platform and except as expressly provided in these Terms, no right, title or interest therein or thereto will be transferred to the Merchant hereunder.
b. Merchant shall not use the name or any logo or trademark of TheWaala without TheWaala’s prior written consent.
6. Products and Price List:
a. TheWaala will display on the Platform the Products and Price list for the Merchant. The Merchant agrees that TheWaala reserves the right to modify and delete certain items from the Product 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 standards.
b. The Merchant shall ensure that the Pre-Packed Goods listed on the Platform shall have shelf life of thirty (30) percent or forty-five (45) days before expiry at the time of delivery to the Customers.
c. In the event Merchant displays and offers Pre-Packed Goods for sale to Customers through the Platform, the Merchant shall ensure to comply with the Legal Metrology (Packaged Commodities) Rules, 2011, as amended from time to time, for displaying such Pre-Packaged Goods and also share with TheWaala a legible and clear picture of the ‘principal display panel’ as well as the mandatory declarations as specified under the said rules, of such Pre-Packed Good(s) to be displayed on the Platform for viewing by the Customers. For the purpose of clarity, TheWaala is merely a facilitator and the responsibility of the correctness and accuracy of such declarations and Content shall lie with the Merchant.
d. The Merchant dealing in fresh produce shall provide an indicative image of the same produce to TheWaala to be displayed on the Platform to help the Customer recognise the Product.
e. TheWaala shall endeavour to update Price lists within 72 hours of being notified of changes (in writing) by a Merchant. Where the Merchant has a unilateral right to access Merchant admin panel or dashboard to edit and update the Information which is displayed on the Platform by TheWaala, the Merchant should ensure that it (i) keeps such information true, accurate and updated at all times; and (ii) complies with TheWaala’s internal terms and conditions of use in this regard.
f. For all products apart from those being listed at their printed Maximum Retail Price (MRP) the Merchant 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 by the Merchant through its direct channels including its websites. For the purpose of clarity, such parity is required to be maintained by the Merchant in Products sold via the platform and its quality, quantity and other charges that may be levied by the Merchant.
7. Payments Mechanism:
a. The Merchant acknowledges and agrees that the Platform will provide the following payment mechanisms to the Customers for the payment of the Order Value:
i. Cash on delivery;
ii. Electronic Payment Mechanism; and
iii. Redemption of vouchers and/or discount coupons (if any) approved by TheWaala.
8. Payment Settlement Process:
a. The Merchant acknowledges and agrees that any Order Value which is collected by TheWaala for, and on behalf of, the Merchant in accordance with these Terms, shall be passed on by TheWaala to the Merchant subject to the deduction of the following amounts (as applicable) by TheWaala from such Order amount:
i. Commission (For cash on delivery Orders and online paid Orders);
ii. Applicable taxes on Commission
iii. Payment Mechanism Fee
iv. GS-TCS and TDS & TCS under Income Tax, as applicable
v. any other amount(s) that are due to TheWaala under the Form or on account of other services availed by Merchant from TheWaala, to which specific consent of the Merchant is accorded.
b. The Parties acknowledge and agree that after the deduction of the aforementioned amounts, TheWaala shall remit the Order Value due to the Merchant within a period of 3 bank working days or on a weekly settlement basis, as opted by the Merchant in the Form, from the date the payment of the Order Value is received by TheWaala. If Merchant opts for weekly settlement of the Order Value, the Parties acknowledge and agree that after the deduction of the aforementioned amounts, TheWaala shall remit the Order Value due to the Merchant on a weekly basis after 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"). The Payment Settlement Day for Orders serviced from Monday to Sunday shall be on or before Thursday of the following week. If the Payment Settlement Day falls on a bank holiday it shall be the following working day.
c. Notwithstanding anything to the contrary contained in these Terms or the Form, the Merchant, on behalf of itself and all its affiliates, hereby unconditionally and irrevocably authorises TheWaala to set off, withhold and deduct any amounts owed by the Merchant or its affiliates to any TheWaala Group Company under any agreement, arrangement or understanding between the TheWaala Group Company and the Merchant or its affiliates, from the Net Order Value, and apply such amounts towards the dues owed by the Merchant or its affiliates to the TheWaala Group Company. Without prejudice to the other provisions of the Form or these Terms, and solely for the purposes of this Clause 8 (c), the Merchant 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 to TheWaala under the Form and these Terms. For purposes of the provisions of this clause 8(c), the term TheWaala Group Company shall be deemed to include any of TheWaala's current and former, direct and indirect, subsidiaries and/or controlled affiliates as well as any successor to TheWaala or all or any material portion of the businesses and/or assets of TheWaala or any successor thereto or any of its direct and indirect, subsidiaries and/or controlled affiliates.
d. From time to time, TheWaala may change the fees for the Services, including without limitation the Commission rates or include any additional charges/ fee, provided however, that TheWaala 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.
e. The Merchant acknowledges and agrees that TheWaala will provide the Merchant with a monthly invoice within a period of 7 (seven) days from the last date of the preceding month for the Commission, refund charges and other amounts, charges that is payable by the Merchant to TheWaala in respect of the applicable Orders.
f. Invoices will be sent to the Merchant by email. All invoices shall be issued from the respective office of TheWaala from where the Services are being performed by TheWaala in order to comply with the provisions of Goods & Services Tax (GST) laws applicable in India.
g. The Merchant acknowledges and agrees that all amounts that are payable to TheWaala under these Terms shall be exclusive of the applicable taxes and that all applicable taxes will be charged separately.
h. Taxes
i. Notwithstanding anything to the contrary herein, the Merchant 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 and the Merchant’s use of the Platform and Services. TheWaala may charge and collect applicable taxes from Customers on behalf of the Merchant in accordance with instructions provided by the Merchant and/or applicable law; and, in which case, TheWaala will collect such tax solely on behalf of the Merchant and shall pay such amount collected to the Merchant. The Merchant 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 delivery services by the Merchant. It is clarified that TheWaala will not be liable for payment of any taxes that the Merchant is liable to pay in connection with the Products which shall be provided by the Merchant to the Customers in accordance with these Terms and that the Merchant hereby undertakes to indemnify, defend and hold harmless, TheWaala 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 TheWaala on account of the non-payment of taxes by the Merchant under these Terms. Merchant will be required to deposit relevant taxes, including tax deducted at source (TDS) on the commission payable to TheWaala. However, in case where TheWaala withholds its Commission before remitting the settlement dues to the Merchant, TheWaala shall refund the TDS to the Merchant subject to submission of the TDS certificate on a quarterly basis within sixty (60) days from the end of the quarter
ii. Tax collected at source: W.e.f. 01st October, 2018, TheWaala is required to collect taxes at source against the Order Value excluding taxes, at such rates as required by the applicable tax laws (“TCS”). The TCS shall be collected on the date of acceptance of Order. Merchant shall be solely responsible to provide correct GSTIN details to TheWaala and reconcile the TCS with the tax statements provided by TheWaala from time to time, as required by applicable laws. TheWaala shall remit TCS to the respective Central Government and State Government/Union Territory and such remittance(s) shall be considered as complete fulfillment of TheWaala's obligations in this regard. The Merchant may be eligible to claim TCS credit on the basis of tax returns filed by it with the relevant government/statutory/tax authorities. Merchant acknowledges and agrees that in the event of any discrepancy between the tax returns/entries filed by Merchant and those filed by TheWaala, the tax returns/entries present and filed by TheWaala shall have a precedence over the tax returns/entries filed by Merchant. TheWaala shall share a monthly TCS statement along with an invoice with the Merchant to report transactions undertaken during the month in its applicable returns. W.e.f. 01st October, 2018, in accordance with the applicable tax laws, TheWaala is required to collect taxes from the amounts due and payable to the Merchant as tax collected at source (“TCS”). TheWaala shall share a monthly report with the Merchant for such TCS collected and shall file applicable monthly tax returns. To avail benefit of TCS in accordance with applicable tax laws, Merchant shall be solely responsible to provide correct GSTIN details as required for tax reporting by TheWaala. In the event Merchant does not receive the benefit of TCS due to incorrect particulars provided by Merchant to TheWaala, Merchant acknowledges and agrees that TheWaala shall not be held
iii. Tax Deducted at Source under Income Tax Act (‘TDS u/s 194-O’):
W.e.f. 01st October, 2020, TheWaala is required to deduct taxes at source from the amount for all Orders that are settled via TheWaala’s Platform. TDS u/s 194-O shall be applied on Gross Sales as per the applicable tax law on the rate as applicable and amended from time to time. TheWaala 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 shall be solely responsible to provide correct PAN details to TheWaala and reconcile the income tax deducted with the order transaction report and certificates provided by TheWaala from time to time. TheWaala shall remit income tax deducted to the respective Government account and report against the PAN as available on TheWaala records. Such remittance(s) and reporting shall be considered as complete fulfilment of TheWaala's obligations in this regard. TheWaala will share a quarterly TDS certificate with Merchant as per applicable tax law. The Merchant 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 acknowledges and agrees that it is the Merchant’s responsibility to reconcile and claim correct credit for the income tax deducted for which the Merchant may be eligible as per the applicable laws. Merchant also agrees that in the event of any discrepancy between the returns filed by the Merchant and those filed by TheWaala, the amount reported by TheWaala shall have a precedence over the tax returns filed by the Merchant. Any discrepancy identified at the time of reconciliation by the Merchant should be brought to the attention of TheWaala within a period of fifteen (15) days from the date of receipt of TDS Certificate. Any delay on this account will relieve TheWaala of any obligation to undertake a corrective action to resolve the discrepancy. Under no circumstances, TheWaala 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 agrees and acknowledges that TheWaala shall not be held liable in any manner in the event the Merchant does not receive the benefit of income tax deducted due to incorrect particulars provided by the Merchant to TheWaala.
9. Confidentiality:
a. Any confidential or proprietary information of either Party, whether of a technical, business or other nature, including, but not limited to consumer information/ Customer Data, trade secrets, know-how, technology and information relating to customers, business plans, promotional and marketing activities, finances and other business affairs, including but not limited to these Terms (collectively, “Confidential Information”) disclosed to the receiving Party by the disclosing Party, including Confidential Information disclosed before the date of signing the Form, will be treated by the receiving party as confidential and proprietary.
b. These Terms shall be considered TheWaala’s Confidential Information. Unless specifically authorized by the disclosing Party, the receiving Party will: (i) not use such Confidential Information except as authorized by the disclosing Party; (ii) not disclose such Confidential Information to any third party; and (iii) otherwise protect such Confidential Information from unauthorized use and disclosure to the same extent that it protects its own Confidential Information of a similar nature.
c. This clause will not apply to any information that: (i) was already known to the receiving Party, other than under an obligation of confidentiality, at the time of disclosure by the disclosing Party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclosure to the receiving Party; (iii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of the receiving Party in breach of these Terms; (iv) was disclosed to the receiving Party, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (v) was developed independently by the receiving party without any use of Confidential Information.
d. The Merchant shall restrict all Confidential Information of TheWaala to its authorised personnel on a “need to know” basis and apprise them of the confidentiality requirements. This obligation shall survive the termination of the arrangement.
e. Nothing in this clause will prevent TheWaala from disclosing Confidential Information of the Merchant where it is required to be disclosed by judicial, administrative, governmental or regulatory process in connection with any action, suit, proceeding or claim or otherwise by applicable law. In the event Merchant is required to disclose TheWaala’s Confidential Information pursuant to any judicial, administrative, governmental or regulatory process in connection with any action, suit, proceeding or claim or otherwise by applicable law, the Merchant shall uses efforts to provide notice of such disclosure to TheWaala and the opportunity for TheWaala to seek a protective order to guard the confidentiality of the disclosed Confidential Information. The Merchant hereby agrees and acknowledges that disclosure of any Confidential Information of the Merchant for the provision of Services shall not be a breach of these Terms.
10. Representations and Warranties:
a. During the subsistence of these Terms, the Merchant hereby unconditionally represents and warrants to remain in compliance with all applicable Indian laws and all other applicable legislation, regulations or standards.
b. Merchant warrants that it complies and will remain compliant with the Food Safety and Standards Act, 2006, Legal Metrology Act, 2009, Consumer Protection Act, 2019 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.
c. Merchant warrants to procure and keep valid during the subsistence of these Terms, all requisite consents, licenses and/or registrations thereunder and provide copy of such consents, licenses and/or registrations to TheWaala prior to availing the Services
d. Merchant warrants to abide by all the terms and conditions provided under the Declaration.
e. Merchant warrants that all the Content, Information or material provided by the Merchant to TheWaala is and shall at all times be true, correct, genuine and accurate and not misleading in any manner.
f. Merchant warrants that it is the sole author of, owns or otherwise controls all Content, Information or material provided to TheWaala or has been granted the right to use such Content, Information or material from the rights holder of such Content, Information or material and that it does not violate or infringe the rights of any third party or applicable laws.
g. Merchant warrants that it shall at all times be responsible to check the packaging, quality and quantity of the Products at the time of handing the Order to the Logistics Personnel.
h. The Merchant agrees and warrants that it shall be solely responsible for any deficiency, damage or claims as regards quality or quantity of the Products.
i. The Merchant hereby agrees that it shall in no manner offer any Products set out in Schedule H and H1 of the Drugs and Cosmetics Act, 1940 and rules and regulations thereunder, over the counter medicines, and/or any other Product which require a medical prescription from a registered medical practitioner under the Drugs and Cosmetics Act, 1940 and rules and regulations thereunder, via the Platform.
j. Merchant warrants that it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law.
k. By executing the Form, the authorised representative signing on behalf of the Merchant represents and warrants that: (i) he/she is of legal age to form a binding contract; (ii) he/she is an authorized representative of the Merchant or other entity with the authority to bind such party to these Terms, and (iii) all information provided within the Terms and the Form is true.
l. Merchant warrants that if the Merchant ceases to do business, closes operations for a material term or is otherwise unable to offer services to Customers it will inform TheWaala promptly.
m. TheWaala warrants that it will undertake its obligations with reasonable skill and care.
n. TheWaala does not guarantee or warrant that the Platform, Merchant Application software, hardware or Services will be free from defects or malfunctions. If errors occur, it will use its best endeavours to resolve these as quickly as possible.
11. Indemnity:
a. The Merchant agrees to indemnify and hold TheWaala (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:
i. by a Customer (or any party on whose behalf a Customer has been acting), for reasons not attributable to the Service;
ii. 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 to TheWaala, to be listed on the Platform
iii. in respect of, arising out of, or in connection with the Products;
iv. in respect of or connected to the collection or payment of applicable taxes in any way connected to these Terms or any matter or Products or Services under or arising from it;
v. in respect of quality of the Products provided by the Merchant;
vi. on account of any non-compliance of a condition under the license issued by any rule/regulation/statute.
vii. in respect of the representations and warranties provided by the Merchant under these Terms.
viii. infringement of any intellectual property right of the Party or any third party.
ix. relating to harm caused by the Merchant supplying any Product that is expired, defected or any inadequate instructions or warnings missing from the Products
x. brought either by TheWaala and/or third party on account of misuse, abuse, cheating, fraud, misrepresentation carried out by the Merchant;
xi. 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;
xii. for any misleading or incorrect or false information or data including images provided by the Merchant.
b. The Merchant acknowledges that it supplies certain rights to TheWaala to enable TheWaala to provide services to the Customer. TheWaala will not be liable for any applicable taxes liability in respect of transactions by which the Merchant provides Products to Customers and the Merchant hereby indemnifies TheWaala against any applicable taxes it may become liable for arising out of such transactions.
12. Customer Data:
a. The Merchant agrees that the Merchant will only use the Customer Data in fulfilling the applicable Customer Order and in complying with the Merchant’s obligations in the Form and/or the Terms, and the Merchant agrees that Customer Data will not be used to enhance any file or list of the Merchant or any third party. The Merchant 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 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 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 (and any other persons to whom the Merchant 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 (or otherwise on its behalf), the Merchant shall ensure that it (and any applicable third parties) adopts, posts, and processes the Customer Data in conformity with an appropriate and customary privacy policy. For purposes of the Form and the Terms, the restrictions set forth herein on the Merchant's use of Customer Data do not apply to: (a) data from any Customer who was a customer of the Merchant prior to the Merchant using the Platform or the Services, but only with respect to data that was so previously provided to the Merchant by such Customer; or (b) data supplied by a Customer directly to the Merchant who becomes a Customer of the Merchant and who explicitly opts in to receive communications from the Merchant for the purposes for which such Customer Data will be used by Merchant; and, provided in all cases, that the Merchant handles and uses such Customer Data in compliance with applicable laws and the Merchant’s posted privacy policy.
13. Term and Termination:
a. The arrangement between Parties shall commence from the Execution Date and unless terminated earlier as per these Terms, shall continue indefinitely.
b. Either Party may terminate the arrangement, with or without cause, at any time upon seven (7) days prior written notice to the other Party.
c. TheWaala may terminate the arrangement or suspend the Services of the Merchant with immediate effect if:
i. the Merchant fails to conduct its business in accordance with these Terms;
ii. upon the happening of any of the insolvency events such as bankruptcy, appointment of receiver, administrator, liquidator, winding up, dissolution;
iii. TheWaala identifies any alleged, threatened or actual fraudulent or suspicious activity on the Merchant’s account;
iv. The Merchant fails to comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption;
v. the Merchant fails to comply with applicable laws;
vi. in case TheWaala conducts any investigation to ensure Merchant’s compliance with the applicable law and/or these Terms.
d. The Merchant hereby agrees and acknowledges that in addition to the aforementioned right to terminate and/or suspend the Services, in accordance to sub- clause 13 (c)(iii), TheWaala shall also have the right to withhold any payments that may be due to the Merchant from TheWaala.
e. 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.
f. 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’s obligations to pay for Services availed in accordance with this Agreement.
14. Notice requirements:
a. Factors that prevent you from fulfilling your obligations towards TheWaala or the Customers should promptly be reported to TheWaala by contacting the account manager appointed by TheWaala or by writing an email to help@thewaala.com.
15. Disclaimers:
a. To the fullest extent permitted by law, TheWaala 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 Services and any use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. TheWaala makes no warranties or representations about the accuracy or completeness of the content and data on the Platform or the 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’s access to and use of the Platform and the Services, (c) any unauthorized access to or use of TheWaala' 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 Services, (e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the website or the TheWaala services by any third party, and/or (f) any errors or omissions in any Content, Information 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 TheWaala Services.
16. Limitation of Liability:
a. 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 the Form and/or the Terms, including liability expressly provided for under the Form and/or the Terms or arising by reason of the invalidity or unenforceability of any term of the Form and/or these Terms. TheWaala does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, TheWaala 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 TheWaala will use its best endeavours to ensure that the unintentional operational errors do not occur, TheWaala cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, TheWaala’s aggregate liability under the Form and the Terms shall not exceed the total value of the Order under which the claim arose.
17. Miscellaneous:
a. Governing Law and Dispute Resolution
The Form and these Terms shall be governed by the Laws of India, for the time being in force and the courts of Jamshedpur shall have the exclusive jurisdiction to preside over matters arising hereunder. Parties shall first endeavour 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.
b. Waiver
The failure of either Party to assert any of its rights under the Form and/or the Terms, 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. 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.
c. No third party rights
No term of the Form and/or these Terms shall be enforceable by a third party.
d. No assignment
The Merchant must not assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with this Form and/or the Terms or any right, benefit or interest under it, nor transfer, novate or sub-contract any of the Merchant’s obligations under it.
e. Independent contractors:
The Form and/or the Terms does not create any agency, employment, partnership, joint venture, or other joint relationship. TheWaala and the Merchant are independent contractors and neither has any authority to bind the other.
f. Change of control:
The Merchant acknowledges that the business and assets of TheWaala may be sold in the future and consents to the transfer or disclosure of its personal Information and these Terms and the Form to any purchaser of the business of TheWaala or its assets if that outcome occurs.
g. Acceptance to TheWaala’s Privacy Policy:
By signing the Form, the Merchant acknowledges and agrees to be bound by TheWaala’s privacy policy ( www.thewaala.com/privacy). Merchant will immediately notify TheWaala if it becomes aware of or suspects any unauthorized use or access to the Customer Data or any other Confidential Information of TheWaala, and shall co-operate with TheWaala in investigation of such breach and the mitigation of any damage.
18. Modification:
TheWaala may modify these Terms from time to time, and any such changes will (i) be reflected on the Platform, and (ii) be effective immediately upon the changes being reflected on the Platform. The Merchant agrees to be bound to any such changes or modifications and understands and accepts the importance of regularly reviewing these Terms as updated on the Platform.
19. Grievances
In the event You have any grievances relating to the Privacy Policy, please inform within 24 hours of occurrence of the instance from which the grievance has arisen, by writing an email to the Grievance Officer. In accordance with the IT Act, 2000, and the rules hereunder,
the name and contact details of the grievance officer are provided below:
Grievance Officer
Mr. Mohammad Shamsuddin