Welcome, and thank you for your interest in Thrive by Hashtag Loyalty. (“Hashtag Loyalty” ) and our website at thrivenow.in, along with our related websites, networks, applications, mobile applications, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and Hashtag Loyalty regarding your use of the Service.
Please read the following terms carefully.
NOW, THEREFORE, in consideration of the mutual agreements and promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree (in addition to the Merchant Terms and Conditions) as follows:
Merchant has opted for the Fixed Subscription Plan as per Annexure-A attached.(Please refer ANNEXURE-A for details)
a. Fixed fee per transaction for delivery or pickup: 3 % of each transaction
b. Fixed fee per transaction for dine-in: Rs.1 per order
c. Each transaction after the transaction fee is levied is credited into the Merchant’s bank account in 48 hours. Merchant bank account information is as per Annexure -
d. For COD transactions, settlement durations may vary between 7 - 15 days depending on delivery service provider.
e. The pricing above is valid until 31 December 2020. Any changes in pricing will be mutually agreed upon.
f. Additional Charges are on additional services availed of. The Additional services and charges are mentioned in ANNEXURE-A.
g. Delivery Charges are on delivery services availed of. The delivery services and charges are as per actuals and at discretion of the service provider. Delivery policies are mentioned in ANNEXURE-B.
h. Payment Gateway charges on various payment methods are as per actuals.
i. Goods & Services Tax is levied on the charges additionally as per government directives and is payable by the Merchant.
Each Party hereby agrees that this Agreement is strictly an agreement regarding the usage of a technology platform, and not a business promotion agreement, or a customer procurement agreement and is not based on any agreed milestones between the Parties. Each Party further agrees to strictly adhere to its respective obligations mentioned in this clause and recognises and acknowledges that Hashtag Loyalty may be required to amend/change the obligations set out herein, at any time and the Parties shall amend/change this clause to reflect the revised/new obligations.
Hashtag Loyalty – will assist the Merchant in building and managing their digital menus
will provide a complete solution to manage delivery or pickups and in-store orderingprovide a order dashboard to accept and manage orderswill assist the Merchant in building and managing the loyalty program, feedback management system andprovide a dashboard with different features to view and manage the sales data, customer insights and data and merchant’s customer engagement.
A. Hashtag Loyalty
a. will assist the Merchant in building and managing their digital menus
b. will provide a complete solution to manage delivery or pickups and in-store ordering
c. provide a order dashboard to accept and manage orders
d. will assist the Merchant in building and managing the loyalty program, feedback management system and
e. provide a dashboard with different features to view and manage the sales data, customer insights and data and merchant’s customer engagement.
a. the menu and all other details required for setting up digital menus
b. has the sole responsibility to accept, deny or fulfill customer orders
c. if opting for a delivery service provider service, will adhere to terms and conditions of the delivery service provider as mentioned in the ANNEXURE - B
d. will provide rewards via the loyalty program, including any goods and services so awarded by the Merchant;
e. is also responsible for all the customer communication sent via its dashboard;
f. shall bear any amounts due in the event a tax liability arises, whether raised against the Merchant or Hashtag Loyalty in connection with this Agreement. This clause shall survive the term of this Agreement for a period of (5) five years;
g. has the sole responsibility to ensure that all the information, data/intellectual property and other contents that Merchant supplies to Hashtag Loyalty directly or indirectly within the terms of this Agreement and that are meant to be included in the communication or otherwise communicated by the Merchant: (i) are correct in terms of their contents, (ii) corresponds to the applicable legal regulations (in particular of the competition law and the applicable data protection law), and (iii) do not offend the rights of third parties; and
h.is in particular solely responsible for the form and contents of Merchant’s promotional measures performed within the frame of the digital menus, loyalty program, feedback management system and customer engagement.
In the event the Merchant fails to meet any of its obligations set out in this Clause 4, it shall be treated as a material breach of the Merchant’s obligations under this Agreement and Hashtag Loyalty shall be entitled to terminate this Agreement, at its discretion in the manner specified in Clause 6 of the Merchant Terms and Conditions.
The Merchant hereby agrees that it shall at all times comply with all the provisions contained in the ‘MERCHANT TERMS AND CONDITIONS’ annexed to this Agreement or as available on the website www.thrivenow.in (and as amended from time to time). The Merchant hereby agrees that the provisions of the Merchant Terms and Conditions that govern Confidentiality, Governing Law, Termination and Dispute Resolution shall apply mutatis mutandis to this Agreement.
The Merchant hereby undertakes, affirms, represents, warrants and agrees that:
4.1 It is in good standing under the laws of its incorporation or in the jurisdiction in which it is a resident and/ or does business and has full authority to enter into this Agreement and to perform all the obligations hereunder according to the terms hereof.
4.2 It has full power and authority to enter into this Agreement and to take any action and execute any documents required by the terms hereof; and that this Agreement, when entered into has been duly authorized, has been duly and validly executed and delivered, and is its legal, valid, and binding obligation of the Party, enforceable in accordance with the terms hereof.
4.3 All consents, approvals, authorizations, orders, registrations or qualifications of, or with, any court or regulatory authority or other governmental body having jurisdiction over such Party, the absence of which would adversely affect the legal and valid execution, delivery and performance of this Agreement or the documents and instruments contemplated hereby, are in place as required.
The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors and permitted assigns and Affiliates. The Merchant shall not assign or otherwise transfer this Agreement or any of its rights and obligations hereunder whether in whole or in part without the prior consent of Hashtag Loyalty.
If any provision of this Agreement shall contravene or be illegal, invalid or unenforceable under the laws of any state, country or jurisdiction in which this Agreement shall be performed or enforced, then such contravention, illegality, invalidity or unenforceability shall not invalidate the entire Agreement. Such provision shall be deemed to be modified to the extent necessary to render it valid, legal and enforceable, and if no such modification shall render it valid, legal and enforceable, then the Agreement shall be construed as if not containing the provision held to be invalid, and the validity, legality and enforceability of the provisions or covenants of this Agreement shall be unaffected, and the rights and obligations of the parties shall be construed and enforced accordingly.
CRM includes Customer Tagging, Loyalty, Feedback Management System, Campaigns, Auto Campaigns and Referrals.
The above costs are subject to change. Hashtag Loyalty reserves the right to change its pricing and payment terms at its sole discretion. Hashtag Loyalty will give the Merchant a seven (7) days notice before putting such change in effect. The Merchants continued use of Hashtag Loyalty’s services will constitute acceptance of such revised terms.
Goods and Services tax is levied as per government directives and is payable by the Merchant.
1.The Service Provider shall provide the Delivery Services with reasonable skill and care and as a man of ordinary prudence would take of his own goods of the same bulk, quantity and value under similar circumstance and in accordance with the applicable laws.
2. The Service Provider shall immediately remove a Delivery Personnel from providing Delivery Services under the Agreement if such Delivery Personnel is in the reasonable opinion of the Service Provider and the Merchant, found unfit to provide the Delivery Services in a proper and professional manner.
3. The Service Provider shall observe all applicable laws, rules and regulations as may be prescribed by the government and authorities in relation to the Delivery Services.
4. The Service Provider agrees that it shall perform its obligations as per the mutually agreed terms under this Agreement.
1. The Merchant shall not book / handover or allow to be handed over any Product which is banned, restricted, illegal, prohibited, stolen, infringing of any third party rights, hazardous or dangerous or in breach of any tax laws. In the event Merchant hands over or provides the aforesaid Products to the Service Provider then the Service Provider shall not be responsible and liable for any loss, damage, theft or misappropriation of such Products even if the Service Provider or Delivery Personnel has the knowledge of the same and even if such loss, damage, theft or misappropriation is caused due to any reason attributable to the Service Provider or Delivery Personnel.
2. The Merchant shall ensure that the packaging of the Products is safe, proper and adequate to withstand the normal transportation and environmental hazards and in compliance with applicable laws. The Service Provider shall not be liable or responsible for any loss or damages to the Merchant if the Merchant is not in strict compliance with this clause.
3. Said To Contain Basis & Inspection: It is expressly understood by and between the Parties that all Products agreed to be delivered by the Service Provider are on “SAID TO CONTAIN BASIS” i.e. the Service Provider shall be under no obligation and is not expected to verify the description and contents of the Products declared by the Merchant on the docket and as such, the Merchant shall undertake and ensure to make proper, true, fair, correct and factual declaration on the docket regarding description and value of Products. Further, the Service Provider is not responsible in any way whatsoever for the merchantability of the Product.
4. Notwithstanding anything contained in this Agreement, the Service Provider has the right however, not an obligation, to inspect any shipment consigned by the Merchant to ensure that all the items are capable of carriage to the destination within the standard operating procedure and handling methods. At no point in time does the Service Provider warrant that any particular Product to be delivered is capable of carriage without infringing the law of any state of the country from/ to or through which the Product may be carried. The Service Provider reserves the right to refuse to deliver the Products that do not conform to these terms and conditions without assigning any reasons whatsoever.
5. The Merchant understands, agrees and acknowledges that the Service Provider is a mere bailee of the Products, cash and demand draft and is not an insurer of the same. Merchant hereby expressly and specifically waives all its rights and claims against the Service Provider arising out of or in relation to the principles of insurance.
6. The Merchant shall provide all regulatory/ statutory approvals in electronic/ physical format as required by the Service Provider to perform Delivery Services under this Agreement.
7. The Merchant is advice against providing contact number/details/information of the customers in the invoices furnished for the Products ordered during pick-up in order to safeguard/prevent against any kind of misuse of such details by the Delivery Personnel. However, the Service Provider shall in no manner whatsoever be held liable for any such information being shared by the Merchant to the Delivery Personnel and in such event, the Merchant shall be solely responsible/accountable for any misuse of such details/information.
In this document Hashtag Loyalty is referred to as "Hashtag", "we" or "us" and End User Customer as "user", "users”, Merchants are referred to as "merchant" or "you". "Points" means the points awarded by merchants.
Neither Party shall use the Intellectual Property of the other Party in any manner except as permitted hereinafter.Hashtag Intellectual Property: all the intellectual property rights in or related to , (a) Hashtag mobile application, (b) Hashtag website, (c) Hashtag marketing material, (d) Hashtag services, (e) all trade names, trademarks and logos of Hashtag card, (f) all data collected by Hashtag’s servers shall at all times remain solely under the ownership of Hashtag. Hashtag reserves the right to amend the intellectual property right at any given time without any prior notice. You acknowledge that Hashtag is the sole owner of the Hashtag Intellectual Property, including its name and logo, and is entitled to display, sublicense, modify, change or otherwise use such intellectual property in any way and form or format and any and all communication at its own discretion.
Hashtag hereby grants to you a limited, non-transferable, non-exclusive, non-sub-licensable, revocable license to access and use Hashtag’s hosted Merchant Web or App Portal for internal business purposes so long as your account with Hashtag remains current and active. If Hashtag provides you with a password to access the Portal, you are solely responsible for protecting the password and for any authorized or unauthorized use made of the password. The Portal, and all source code, copyrights and other intellectual property associated therewith, are and shall remain the sole and exclusive property of Hashtag. You shall refrain from permitting any third party to use your password or otherwise access the Portal. Hashtag shall have the right to terminate the license granted hereby immediately in the event that you have breached any terms or conditions set forth in the Agreement or your Hashtag account is otherwise terminated for any reason.
Except as set out hereinabove, nothing herein shall be construed as a grant to you of any intellectual property rights, or a license to use such intellectual property rights, of Hashtag.
The intellectual property rights are also applicable to any Hashtag application (web based or native) that is accessed on any a merchant owned hardware.
You agree to comply with following terms: merchants agree not to decode, decompile, disassemble, recreate, render, reverse engineer or explore any of the Hashtag system, including other intellectual properties. You agree not to use the Hashtag system for any other purpose other than for the purpose it is supplied to you by Hashtag. You agree not to copy any part of Hashtag System offline or online, fully or partially. You agree to follow usability guidelines communicated to you by Hashtag team verbally or in written form during installation of the Hashtag system at your business premises.
(i) Hashtag’s current fees for the Hashtag Programs and its services are set forth in the Merchant Agreement. Hashtag reserves the right to amend the fees payable for the Hashtag Programs at any time upon thirty (30) days’ prior notice to you; provided, however, that such amendment to the fees will not be applicable until the beginning of the next Subscription Period.
(ii) When you provide your payment information to Hashtag, you are providing Hashtag with an authorization to process any and all payments as outlined in this Agreement.
(iii) Hashtag reserves the right to increase the Subscription fees payable for the Hashtag Programs and its services upon renewal or extension of the Subscription Plan beyond the period of Agreement.
(iv) You will be responsible for any sales, use, value-added or import taxes, customs duties or similar taxes assessed in accordance with applicable law with respect to the provision of the Hashtag.(vi) Notwithstanding anything herein to the contrary, Hashtag, in its sole discretion, may suspend or terminate the Agreement and corresponding access and right to use all or any portion of the Hashtag Programs, at any time, upon electronic or other notice to you, if you have not paid all amounts due on or before the payment due date, or for any other breaches of the Merchant Agreement, these Terms and Conditions, or any other exhibits, addenda or attachments to these Terms and Conditions including any links contained in the Merchant Agreement or these Terms and Conditions, which are incorporated by reference herein. You are responsible for amounts that remain outstanding as of the date of such termination including early cancellation fees. You agree to pay reasonable attorneys’ fees and court costs incurred by Hashtag to collect any unpaid amounts owed by you.
Hashtag reserves the right to terminate the Service and/or your use of the Service at its discretion without notice. Hashtag will refund you for the balance of any amount due minus any debts due by you to Hashtag.
The Agreement will remain in full force specified in the Merchant Agreement. At the end of any Subscription Plan, unless you select a new Subscription Plan, your Subscription Plan will automatically renew. This will be ongoing until you select a new Subscription Plan or provide at least thirty (30) days’ written cancelation notice, at which time you may be charged a termination fee. Each party shall have the right to terminate the Agreement upon providing at least thirty (30) days’ written notice to the other party. Each party shall have the right to terminate the Agreement upon written notice to the other party: (i) upon the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party that is not otherwise dismissed within sixty (60) days of such institution; (ii) upon the making of an assignment for the benefit of creditors by the other party; or (iii) upon the dissolution of the other party. Notwithstanding the foregoing, Hashtag may (without notice) terminate the Agreement and/or your access to one or all Hashtag Programs in the event you fail to remain current in all fees due and owing to Hashtag or in the event you breach any of your obligations under the Agreement.
Hashtag makes no representations or warranties, express or implied, regarding the service and all representations, undertakings, warranties, terms and conditions whether express or implied by statute, common law or otherwise are excluded to the fullest extent permitted by law. Except as provided in this Agreement, Hashtag shall not be liable to you for any claims whatsoever including but not limited to those arising from loss of profits, business, revenue, goodwill, anticipated savings and/or any other indirect, special or consequential loss or damage whether arising under contract, negligence or otherwise out of or in connection with the Service. In particular, Hashtag accepts no responsibility or liability for claims from customers. Hashtag neither excludes nor limits its liability for death or personal injury caused by its own negligence or any other liability the exclusion or limitation of which is expressly prohibited by law.
Any information that a receiving party knows or has reason to know (either because such information is marked or otherwise identified by the disclosing party orally or in writing as confidential or proprietary, has commercial value, or because it is not generally known in the relevant trade or industry) is "Confidential Information" of the disclosing party and will remain the sole property of the disclosing party. Such Confidential Information includes but is not limited to data, information (including personally identifiable information), ideas, materials, specifications, procedures, schedules, software, technical processes and formulas, source code, product designs, sales, cost and other unpublished financial information, product and business plans, advertising revenues, usage rates, advertising relationships, projections, marketing data and other similar information provided by a party. For avoidance of doubt, Customer Data, generated/obtained by merchants, shall be deemed Confidential Information of Hashtag and Merchants. Each party agrees that it will not disclose, use, modify, copy, reproduce or otherwise divulge such Confidential Information to any third party without the prior written approval of the disclosing party except that the receiving party shall have the right to disclose such Confidential Information to the extent required by applicable law or to the directors, officers or employees of the receiving party who have a need to know such Confidential Information in order to perform its obligations under the Agreement and to the extent such directors, officers or employees are subject to obligations of confidentiality and non-disclosure that are substantially similar to the obligations set forth in the Agreement. The prohibitions contained in this Section will not apply to information (i) already lawfully known to the receiving party prior to such disclosure by the disclosing party; (ii) independently developed by the receiving party without access to or use of the disclosing party’s Confidential Information; (iii) disclosed in published materials; (iv) generally known to the public; or (v) lawfully obtained from any third party. In addition, a party will not be considered to have breached its obligations under the Agreement to the extent Confidential Information is required to be disclosed by any governmental authority, provided that, to the extent legally practicable, the receiving party advises the disclosing party prior to making such disclosure in order that the disclosing party may object to such disclosure, take action to ensure confidential treatment of the Confidential Information, or take such other action as it considers appropriate to protect the Confidential Information.
This agreement is governed and construed in accordance with the Laws of Union of India. Merchant hereby irrevocably consents to the exclusive jurisdiction and venue of courts in Mumbai, Maharashtra, India, in all disputes arising out of or relating to the use of the Hashtag products/sites/services. Use of the Hashtag software services is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions, including without limitation this paragraph.
You will defend, indemnify, and hold Hashtag and its affiliates and their respective directors, officers, employees, agents and representatives harmless from and against any third party suit, proceeding, assertion against any damages, judgments, liability, costs and expenses (including without limitation any reasonable attorneys’ fees) incurred arising from your breach of this Agreement, your breach of any applicable laws, your unauthorized use or misuse of the Hashtag Programs or any unauthorized combination of any Hashtag Program with any hardware, software, products, data or other materials not specified or provided by Hashtag.
Hashtag’s aggregate liability for all claims (including claims for indemnification of third party damages) arising out of the Agreement, whether in contract, tort or otherwise, will not exceed the amount of fees paid by you to Hashtag under the Agreement during the twelve (12) months preceding the date on which the claim occurred. To the maximum extent permitted by applicable law, in no event will Hashtag be liable for any loss of business profits, business interruption, loss of data or any special, indirect, exemplary, incidental or consequential damages arising from or in relation to the Agreement or the use of the Services, however caused and regardless of theory of liability. In addition, Hashtag will not be liable for damage (physical or otherwise) incurred by you upon any asset or property from the installation or removal of any Hashtag product or add-on in-store and will not be responsible for replacement or cost of repair if damages occur. This limitation will apply even if such damages were foreseeable and you have been advised or are aware of the possibility of such damages.
The following terms shall, in addition to all of the other terms set forth in this Agreement, govern your use of Hashtag’s "Marketing Campaign" platform (the "Marketing Campaign Platform"), which, at a general level, allows you to communicate with Hashtag members.
You shall, as a condition to making any use of the Marketing Campaign Platform, be required to follow these rules:
1. You won’t send Spam! While you are responsible for making yourself of aware of current anti-SPAM and similar regulations that may be in effect from time to time, as a general rule, you should assume that if you send people mass email without their permission, you’re spamming.
2. You won’t violate Hashtag’s Acceptable Use guidelines, established below, as it may be in effect from time to time, which is part of this Agreement. If you violate any of these rules, Hashtag, in addition to any other remedies that Hashtag may have hereunder or otherwise, may suspend or terminate your account.
3. Hashtag complies with the current TRAI regulations (Telecom Regulatory Authority of India Act, 1997) and under no circumstances will it violate any of the applicable regulations with respect to Merchant communication.
Compliance with Laws
You represent and warrant that your use of the Marketing Campaign Platform, which includes communication through emails and SMSs will comply with all applicable laws and regulations. You also acknowledge and agree that the promotional messages/emails sent by You directly is only your liability, responsibility and that Hashtag is not liable/responsible or answerable for any form of communication, communicated between You and the customer, directly or indirectly. You agree that all claims, queries and complaints arising out of such communication, shall be directly addressed and resolved by you.
You shall refrain from using the Marketing Campaign Platform to send anything offensive, to promote anything illegal, or to harass anyone. Not in limitation of the foregoing, you may not send:
1. Pornography or other sexually explicit Emails or SMS
2. Emails or SMS offering to sell illegal goods or services
3. Emails or SMS that violate Information Technology Act, 2000 or any other applicable laws or regulations
Acceptable Use - Prohibited Actions
Hashtag works hard to keep its system clean, but Hashtag also counts on its customers to pitch in. As such, you may not:
1. Send Spam (as noted above).
2. Share your password.
3. Use any of the Marketing Campaign Platform to create a competing product.
4. Import or incorporate any of this information into any lists, emails or uploads to our servers: Passwords, security credentials, or sensitive personal information of any kind.
5. Send any messages through the Marketing Campaign Platform that are not appropriate for its intended use.
6. Use an outside unsubscribe process.
13. FORCE MAJEURE
Any delay or failure in the performance by either Party hereunder shall be excused if and to the extent caused by the occurrence of a Force Majeure event. Hashtag cannot be held liable or guilty for not able to deliver its usual services or business activity during emergency, natural calamity or situation which is beyond control. “Force Majeure” event mean circumstances that the concerned Party cannot influence, foresee or advert and that significantly obstruct the deliverables and services of either of the Parties or make them impossible (temporarily or finally).
Merchants agree that Hashtag has absolute authority to modify or change the terms and conditions of the agreement without Merchant's consent and the modified terms and conditions can be kept in Hashtag’s website and no separate notice is required to be issued to Merchant.
Merchant shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding Merchant's use of the Software and the Services.
Merchant and Hashtag are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Each Party shall be responsible for the fulfilment of their respective liability to their vendors or employees and this contract is no way allows the one party’s vendors or employees to raise any claim against the other Party. It is expressly acknowledged and agreed that Hashtag is only providing technology services hereunder, and is not issuing, managing, or dealing in the issuance or management of any other goods, services or pre-paid payment instrument. Any registrations and compliance required under applicable law for the issuance and management of pre-paid payment instruments have been/will be obtained by the Merchant, as may be applicable.
Except as explicitly stated otherwise, Hashtag may give Merchants notice by certified mail, postage prepaid and return receipt requested, to the address provided to us during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing. Alternatively, Hashtag may issue the notice to the email address Merchants provide to us during the registration process. Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Any notice Merchant issues can be given by postal mail to Hashtag Loyalty, Flat no. 12, Skylark, Off Union Park, Khar West, Mumbai - 400052.
If any dispute arises between Merchant and Hashtag during Merchant's use of the software/services or thereafter, in connection with the validity, interpretation, implementation or alleged breach of any provision of the User Agreement, the dispute shall be referred to a sole Arbitrator appointed by Hashtag. The place of arbitration shall be Mumbai. The Arbitration & Conciliation Act, 1996, shall govern the arbitration proceedings. The arbitration proceedings shall be in the English language. All expenses with respect to Arbitrator fee and his expenses shall be borne by the Parties equally. All other expenses of Lawyers fees and other expenses shall be borne by the respective parties. You acknowledge and agree that nothing herein, express or implied, is intended to nor shall be construed to confer upon or give to any person, other than the parties, any interests, rights, remedies or other benefits with respect to or in connection with any agreement or provision contained herein or contemplated hereby.
Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. When used in this Agreement, the term "including" means "including without limitation," unless expressly stated to the contrary.
This Agreement sets forth the entire understanding and agreement between Merchant and Hashtag with respect to the subject matter hereof.