Merchant Agreement

MERCHANT TERMS AND CONDITIONS

Your access to the range of Services provided by Hashtag Loyalty Private Limited, is subject always to your acceptance to and adherence with the legally binding terms and conditions set out in these terms of service agreement (referred to herein as the “Agreement”).

Throughout the Agreement, “You”, “Your” or “Merchant” will refer to the Merchant who desires to obtain the Services, and “We”, “Us”, “Our” or “Hashtag” shall refer to Hashtag Loyalty Private Limited.

DEFINITIONS AND INTERPRETATIONS

In the Agreement, unless the contrary intention appears and/or the context otherwise requires, capitalized terms defined by: (i) inclusion in quotations and/ or parenthesis have the meanings so ascribed; and (ii) the following terms shall have the meanings assigned to them herein below:

“Business Day” shall mean any day other than Saturday, Sunday or any other public holiday as designated in Mumbai.

“Intellectual Property” shall mean shall include collectively or individually, the following worldwide intangible legal rights, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (i) patents, patent disclosures, patent rights, know-how, including any and all divisions, re-issues, re-examinations, utility, model and design patents/ rights or any extensions thereof; (ii) software codes, internet domain names, trademarks, service marks, trade names, logos and corporate names; (iii) rights associated with works of authorships, including without limitation, copyrights, moral rights, copyright applications, copyright registrations; (iv) rights relating to the protection of trade secrets and confidential information; (v) all other intellectual property rights anywhere in the world including rights of privacy and publicity, whether or not requiring registration and whether or not such registration has been obtained; (vi) goodwill symbolized by or associated with any of the foregoing rights; and (vii) proprietary information, proprietary processes, software, technical information, data, databases (including but not limited to data or information of the Users, sales data, etc.), process technology, plans, formulae, algorithms and blue prints.

“Marketing Suite” shall mean the marketing solutions provided by Hashtag to You.

“Order” shall mean the placement of an order by a User with You for the purchase of any item via the Platform.

“Parties” shall mean the Merchant and Hashtag.

“Party” shall mean the Merchant or Hashtag.

“Platforms” shall mean and include the Thrive Consumer App Platform and Thrive Direct Ordering Platform.

“Services” shall mean and include the services provided through the Thrive Consumer App Platform, the services provided through the Thrive Direct Ordering Platform and the Marketing Suite services, as more particularly specified under Schedule I.

“Thrive Direct Ordering Platform” shall mean the direct ordering platform of Hashtag, which allows the merchants to accept and manage orders from their Users.

“Thrive Consumer App Platform” shall mean the online food ordering and delivery software of Hashtag, which acts as an intermediary between the Users who wish to place Orders with the merchants who have listed themselves on the Platform.

“Total Amount” shall mean the total bill amount of the Order including discount and packaging charges, and excluding taxes and delivery charges.

“User” shall mean and include the users or customers, in respect of whom, the Merchant intends to avail the Services.

“User Data” shall mean and include the name, age, email address, mobile number, address and other personal information of the User who creates an account and registers themself on the Thrive Consumer App Platform.

SERVICES

In consideration of payment of a commission (as provided under Schedule I) by You, We hereby grant to You, a limited, non-exclusive, non-transferable and royalty-free right to use and access the Services, as opted by You.

OBLIGATIONS

Each Party hereby agrees that this Agreement is strictly an agreement regarding the usage of the Platform and the Services, and not a business promotion agreement, or a User 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 3.

Hashtag hereby agrees and acknowledges that:

it shall comply with all the applicable laws in connection with the provision of the Services and shall obtain and maintain in full force and effect all approvals and registrations required under applicable laws for the operation and provision of the Services;
it will display on the Thrive Consumer App Platform, on a best effort basis, all necessary information provided by You. Provided however, Hashtag shall not be under any obligation to display any information until You provide all required information and such information is in compliance with Hashtag’s policies and guidelines.
in case of transmission of Order placed by the User, Hashtag shall communicate the details of the Order to You (through web or mobile Platform, SMS, WhatsApp or phone call) and communicate Your response with respect to (i) acceptance / rejection of Order; (ii) delivery time; (iii) no-response from Merchant or any such information, as may be made available by Hashtag from time to time, to the User, through Thrive Consumer App Platform.
it will redress the Users’ and Your complaints in respect of the functioning of the Platform.

You hereby agree, acknowledge and undertake that:

You will not discriminate while servicing Orders received from any User via the Thrive Consumer App Platform;
In case of issuance of invoice to the User, You will ensure that all mandatory information pertaining to taxes, levies, and charges applicable on the Order(s) are clearly visible to the Users on the invoice issued for any supply other than Your service, as per the CGST Act, 2017;
You have the sole responsibility to ensure that all the information, data/Intellectual Property and other contents supplied by You to Us, directly or indirectly, within the terms of this Agreement and that are meant to be included in the communication or otherwise communicated by You: (i) are correct in terms of their contents, (ii) corresponds to the applicable legal regulations, including but not limited to, applicable data protection laws, and (iii) do not offend the rights of third parties;
You are, in particular, solely responsible for the form and contents of Your promotional measures performed within the frame of the digital menus, loyalty program, feedback management system and User engagement;
You will not, fully or partially, copy, decode, decompile, disassemble, recreate, render, reverse engineer or explore the Platforms and Services, including other Intellectual Properties of Hashtag;
You will not use the Services and/or the Platform for any purpose other than for the purpose it is provided to You by Hashtag;
You will follow usability guidelines communicated to You by Hashtag, verbally or in written form, during installation of the Thrive Direct Ordering Platform;
You will provide the menu and all other details required for setting up digital menus;
You have the sole responsibility to accept, deny or fulfill Users’ Orders;
You will, if opting for delivery services through a Service Provider (as described below), adhere to the terms and conditions of the Service Provider as mentioned under Clause 6.
You will, if opting for Marketing Suite services, provide rewards via the loyalty program, including any goods and services;
You are also responsible for all the User communication sent via Your dashboard;
You will ensure that the information provided to Us is current and accurate, including but not limited to Your name, address, contact telephone number, email, manager/contact person details, delivery times, opening hours, menu(s), price lists, taxes, service addresses, and other relevant information;
You will process and execute the Order(s) timely;
You will be obligated to turn off “accepting order” feature on the relevant Platform whenever You are unable to provide Your services to the Users. You acknowledge and agree that in the event the User’s experience with You and Your services is hampered on account of acts and omissions attributable to You, including but not limited to, frequent rejection of order(s), Hashtag reserves the right to take appropriate action in accordance with its policies, which may be amended from time to time.;
You will contact a User if an Order cannot be processed as requested or to clarify the details of an Order, if required, post confirmation of the Order;
You will promptly redress the Users’ complaints which have been referred by Hashtag to You in respect of the (a) quality, quantity and/or taste of the food and beverage or any other issues relating to Your services expeditiously within timelines prescribed by the Ministry of Consumer Affairs or any other authority from time to time; (b) delivery of the Orders (where such delivery has been undertaken by You and the delivery issues attributable directly to You); and (c) Your failure to comply with the special requests / instructions of the Users, where such requests and/or instructions have been clearly communicated by the User at the time of placement of the Order;
You will remove any/all menu items, unavailable with You;
You will furnish a copy of Your PAN Card, TAN, GSTIN, FSSAI license and registration certificates and other details required as per law or for usage of Services, as maybe requisitioned by Hashtag from time to time failing which, Hashtag reserves the right to delist You from the Thrive Consumer App Platform and / or curtail Your access to the Platforms;
You will not make any independent calls to the User and ask the User to make payments of amounts greater than what was agreed by the User at the time of placing the Order through the Thrive Consumer App Platform; and
You will not engage in any fraudulent activity or misuse any benefits extended by Hashtag to Users and will be liable to Hashtag in the event Hashtag becomes aware of any fraudulent activities.

In the event You fail to meet any of Your obligations set out in this Clause 3, it shall be treated as a material breach of Your obligations under this Agreement and Hashtag shall be entitled to terminate this Agreement, in the manner specified in Clause 10.

You hereby agrees and acknowledges that You shall at all times comply, and shall be responsible to ensure that Your Users (to the extent applicable) are aware that You comply with the terms of service of Hashtag available at https://about.thrivenow.in/terms-of-service and the privacy policy available at https://about.thrivenow.in/privacy-policy.

RIGHTS AND RESPONSIBILITIES

We retain the right to change the rate of taxes on the menu item list shared by You, as per applicable laws, for listing on the Thrive Consumer App Platform.

For the avoidance of doubt, it is hereby expressly clarified that We are only responsible for providing (i) the Thrive Direct Ordering Platform (if applicable) to You to manage Your orders, inventory, menu and for other delivery services and/or (ii) the Thrive Consumer App Platform (if applicable) to list, offer and sell Your services and products to the Users, and for other delivery services and/or (iii) Marketing Suite services (if applicable).

We reserve the right to suspend Your account if You are 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.

For the avoidance of doubt, it is hereby expressly clarified that Hashtag is not responsible or liable to the User for the (a) quality of its service advertised on the Platform; (b) processing of the order; or (c) any delay, attributable to You, in preparation of the Order.

When You provide Your payment information to Us, it shall be deemed that You are providing Us with an authorization to process any and all payments as outlined in this Agreement.

REPRESENTATIONS AND WARRANTIES

Each Party hereby represents and warrants to the other Party that:

it is in good standing under the laws of its incorporation or in the jurisdiction in which it does business and has full authority to enter into this Agreement and to perform all the obligations hereunder according to the terms hereof.
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.
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.
it has obtained and will continue to maintain, during the Term of the Agreement, a valid license under the Food Safety and Standards Authority of India (FSSAI) and is compliant with all the rules and regulations provided thereunder.

You hereby represent and warrant that the food and beverages provided to Users 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; and (c) compliant with all other relevant Indian legislation, including all applicable food industry regulations.

DELIVERY SERVICES

If You have opted for the Thrive Direct Ordering Platform, You shall have the option to undertake delivery of any Order. You, in such case, shall ensure that trained personnel undertake such delivery and shall ensure that the safety of Order is not compromised at any time, until the Order has been received by the User. You agree to indemnify Us for any claims that may arise on account delivery of Orders undertaken by You.

In case delivery services have been opted by You under the Thrive Direct Ordering Platform or the Thrive Consumer App Platform, the obligations under Clauses 6.3 to 6.11 shall be applicable to You.

We will endeavor to ensure that the delivery service provider engaged by Hashtag (“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 circumstances and in accordance with the applicable laws.
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.
observe all applicable laws, rules and regulations, as may be prescribed by the government and authorities in relation to the delivery services.
perform its obligations as per the mutually agreed terms under this Agreement.
collect the Order from the concerned restaurant of the Merchant and once handed over by the Merchant, shall deliver the same to the prescribed address as per Order placed by the User in time bound manner and shall be responsible for all loss & damages for delay in delivery or incorrect (delivery at incorrect address and / or interchange of Order) delivery due to cause attributable to it.
subject to Clauses 6.4.7 and 6.4.8, be solely be responsible for any mishap / accident occurring during transit for delivery of Order and the Merchant shall not in any case be responsible for the same.
Hashtag Loyalty shall include adequate provisions in the agreement with its Service Provider to ensure compliance with the above requirements. Hashtag shall be responsible to ensure that the Service Provider complies with and adheres to the provisions set out in this Clause 6.3, as may be relevant for the delivery services.

You hereby agree, acknowledge and undertake that:

The Merchant acknowledges that, Hashtag facilitates delivery services through the Service Provider for delivery of order(s) from the Merchant(s) to the User, and does not employ any personnel for the delivery services.
The delivery personnel engaged by the Service Provider will only be responsible to tally the number of items ordered against the Order collected by the delivery personnel from the Merchant. You acknowledge and agree that You shall be solely responsible for the quality and quantity of the Order collected by the delivery personnel.
We will be responsible for initiating a refund to the User as per limits prescribed in the Our refund policy in the following events: (a) Order is not delivered to the User or some Order items are missing, due to reasons attributable solely to the Service Provider; and/or (b) the Order has been damaged, lost, or destroyed solely because of the acts or omissions of the Service Provider.
Hashtag has no control, in any manner whatsoever, with respect to the ratings or reviews received by You for the delivery services availed through Hashtag.
You shall be responsible in the event of any delay or mistake in handing over the Order to the delivery personnel of the Service Provider for reasons solely attributable to You and Your staff or if the Order has been damaged or spilled due to Your acts or omissions, including but not limited to poor packaging.
In the event of any criminal acts or misconduct of the Service Provider or its delivery personnel, Hashtag may take such reasonable actions and provide such support to You, as may be necessary and commercially feasible, to mitigate, limit, prevent and/or remedy any adverse impacts or other consequences incurred by the Parties.
You will not book / handover or allow to be handed over any Order 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 You hand over or provide the aforesaid Order(s) to the Service Provider, then the Service Provider shall not be responsible and liable for any loss, damage, theft or misappropriation of such Order(s), 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.
You will ensure that the packaging of the Order(s) is safe, proper and adequate to withstand the normal transportation and environmental hazards and in compliance with applicable laws. Hashtag shall not be liable or responsible for any loss or damages to You if You are not in strict compliance with this Clause.
You will provide all regulatory/ statutory approvals in electronic/ physical format as required to perform delivery services under this Agreement.

Said To Contain Basis & Inspection: It is expressly understood by and between the Parties that all Orders agreed to be delivered by the Service Provider are on “SAID TO CONTAIN BASIS” i.e., neither Hashtag nor the Service Provider shall be under an obligation and are not expected to verify the description and contents of the Order(s) declared by You on the docket and as such, You shall undertake and ensure to make a proper, true, fair, correct and factual declaration on the docket regarding description and value of Orders. Further, Hashtag and the Service Provider are not responsible in any way whatsoever for the merchantability of the Order(s).

You 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. You agree and acknowledge that Hashtag shall reserve a right to cancel all Orders that are packed by You using single-use plastic and any payment made to the Service Provider assigned to such Orders or refund/compensation made by Hashtag to the Users whose Orders are cancelled shall be recovered from You in accordance with Hashtag’s cancellation policy. Further, any loss suffered by Hashtag or the Service Provider due to use of single-use plastic by You, whether on account of any fine imposed by the authorities on Hashtag or its Service Provider or otherwise, shall be recovered from You by making deductions in accordance with the terms of this Agreement.

Notwithstanding anything contained in this Agreement, the Service Provider has the right however, not an obligation, to inspect any shipment consigned by You 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 Order to be delivered is capable of carriage without infringing the law of any state of the country from/ to or through which the Order(s) may be carried. The Service Provider reserves the right to refuse to deliver the Order(s) that do not conform to these terms and conditions without assigning any reasons whatsoever.

You understand, agree and acknowledge that the Service Provider is a mere bailee of the Order(s) and cash collected (if any) and in the event of any default or failure by the Service Provider (or its personnel) to collect and/or transfer the Order or cash collected, Hashtag shall be liable to adequately compensate the User and / or the Merchant, as the case may be.

You are advised against providing the contact number/details/information of the Users in the physical invoices furnished for the Orders during pick-up in order to safeguard/prevent any kind of misuse of such details by the Service Provider or delivery personnel.

You hereby agree and acknowledge that, subject always to and in accordance with applicable law, the delivery of the Order constitutes service availed from the Service Provider under the Consumer Protection Act, 2019 and its successor legislations.

You agree that Hashtag is authorized to collect, on behalf of You or the Service Provider, the delivery charges or delivery surge charges for the delivery service provided by You or the Service Provider, as the case may be. The delivery charges or delivery surge charges may vary from order to order, which may be determined by multiple factors which shall include without limitation, Total Amount, distance and time of the day.

Hashtag shall take best efforts to ensure the skill, experience and quality of the services of the Service Provider meets industry standards, and shall endeavor to remedy any default, breach, negligence, delinquency and/or lack of skill, care and professionalism on the part of Service Provider.

INTELLECTUAL PROPERTY RIGHTS

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) Platform and Services, (b) marketing material, (c) all trade names, trademarks and logos of Hashtag, and (d) all data collected by Hashtag’s servers, shall at all times remain solely under the ownership of Hashtag. You acknowledge that Hashtag is the sole owner of the Hashtag’s Intellectual Property, and is entitled to display, sublicense, modify, change or otherwise use such Intellectual Property in any way and form or format as may be deemed fit by Hashtag.

You hereby grant Hashtag a limited, non-transferable, non-exclusive, non-sub-licensable, revocable license to access and use Your Intellectual Property, including Your license or registration under FSSAI and hygiene grading, for the limited purpose of performing Your obligations under this Agreement, including but not limited to displaying the same on the Thrive Consumer App Platform.

Furthermore, Hashtag acknowledges Your Intellectual Property rights and agrees that You are the sole owner of Your Intellectual Property, including Your name and logo, and are entitled to display, sublicense, modify, change or otherwise use such Intellectual Property in any way and form or format at Your own discretion.

Hashtag hereby, during the Term of this Agreement, grants You a limited, non-transferable, non-exclusive, non-sub-licensable, revocable license to access and use the Platforms (as opted) for internal business purposes. You hereby agree that You are solely responsible for protecting Your account password and for any authorized or unauthorized use made of the password. You shall refrain from permitting any third party to use Your password or otherwise access the Platform. Hashtag shall have the right to suspend Your access to the Platform immediately in the event You breach any terms or conditions set forth in the Agreement.

Except as set out hereinabove, nothing herein shall be construed as a grant, assign or transfer any Intellectual Property rights, or a license to use such Intellectual Property rights.

PRICING AND PAYMENT TERMS

In consideration of the Services to be rendered during the Term of this Agreement by Hashtag, You shall pay to Hashtag such commission or charges, as provided in Schedule I of this Agreement, in accordance with the terms specified thereunder.

Hashtag reserves the right to change its pricing and payment terms as specified under Schedule I.

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 You. It is clarified that Hashtag will not be liable for payment of any taxes that You are liable to pay in connection with supply other than restaurant services which shall be provided by You to the Users in accordance with the terms of this Agreement and that You hereby undertake to indemnify, defend and hold harmless, Hashtag 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 Hashtag on account of Your non-payment of taxes under this Agreement.

DISCOUNTS

In case the entire discount is offered and sponsored by You, the same shall be reduced from the invoice value raised by You. In such a case, We will be liable to pay GST @5% under Section 9 (5) of the CGST Act on the net taxable value, i.e., Total Amount minus the discount offered by You.

In case the entire discount is offered and sponsored by Us, We will be liable to pay GST @5% under Section 9 (5) of the CGST Act on the Total Amount.

In case the discount offered is shared between the Parties, the discount borne by You shall be reduced from the invoice value raised by You. In such a case, We will be liable to pay GST @5% under Section 9 (5) of the CGST Act on the net taxable value, i.e., Total Amount minus the total discount offered by You. Thereafter, We will reimburse to You, the value of the discount offered solely by Us.

TERM AND TERMINATION

This Agreement shall be effective from the date of Your acceptance of this Agreement and shall remain valid and binding on the Parties for a period of 1 (one) year and shall be automatically renewed for successive periods of 1 (one) year, unless terminated earlier by either Party in accordance with the terms provided herein below (“Term”).

Each Party reserves the right to terminate this Agreement with a prior written notice of 30 (Thirty) days to the other Party.

Each Party shall have the right to terminate the Agreement forthwith, upon written notice to the other Party: (i) if the other Party materially breaches or is in default of any material obligation under this Agreement and such default has not been cured within fifteen (15) calendar days after receipt of written notice by the non-breaching Party; or (ii) 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; or (iii) upon the making of an assignment for the benefit of creditors by the other Party; or (iv) upon the dissolution of the other Party.

Notwithstanding the foregoing, Hashtag may (without notice) terminate the Agreement and/or Your access to the Platforms (if applicable), in the event You fail to clear the outstanding dues within the stipulated time periods for Services, as provided under Schedule I.

Effect of termination:

All rights granted to each Party herein shall forthwith revert to the other Party, including without limitation the right to use and/or access the Services and/or Platform;
Any amounts payable in terms of this Agreement, including without limitation the amounts, accrued but not paid to Hashtag, will become immediately due and payable by You;
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, dispute resolution and limitations of liability.

DISCLAIMER OF WARRANTIES

Hashtag shall use reasonable efforts to maintain the Services and Platform in a manner that minimizes errors and interruptions. HOWEVER, THE SERVICES AND PLATFORM ARE INHERENTLY PRONE TO POTENTIAL ERRORS AND INTERRUPTIONS, AND HASHTAG DOES NOT WARRANT THAT THE SERVICES AND/OR THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES AND/OR PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN THIS CLAUSE, THE SERVICES AND PLATFORM ARE PROVIDED “AS IS” AND HASHTAG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT

CONFIDENTIAL INFORMATION

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.

Parties agree that all information generated or collected on the Thrive Customer App Platform is the Intellectual Property of the Company and will constitute Confidential Information of the Company. The Company and the Merchant may independently process the, data and information of the Users, generated/obtained using the Thrive Direct Ordering Platform and the results of such processing will constitute the Intellectual Property of the Party carrying out such processing.

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 Clause 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 or required to be disclosed for the performance of obligations under the Platforms; (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, wherever reasonably possible, 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.

Notwithstanding anything contained herein, You hereby agree and acknowledge that Hashtag shall retain ownership of all Intellectual Property rights in User Data, including any personal data and other information which has been collected or transferred to You or Your affiliates, prior to or after the Effective Date of this Agreement, and shall grant You, a non-exclusive, non-sublicensable, non-transferable, revocable, royalty-free license to access, process, store, transmit, and otherwise make use of the User Data, as necessary, to perform obligations under this Agreement. Provided however, You shall be solely responsible and liable for the security and protection of the User Data, including any personal data or other information which has been collected or transferred to You or Your affiliates after the Effective Date of this Agreement, once the same has been supplied or transferred to You by Hashtag.

INDEMNIFICATION

You agree to 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, or of any applicable laws, or unauthorized use or misuse of any Services.

LIMITATION OF LIABILITY

Except as provided in this Agreement, neither Party shall not be liable to the other Party for any claims whatsoever including but not limited to those arising from loss of profits, data, 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 Services. In particular, We do not accept any responsibility or liability for claims from Users. We neither exclude nor limit Our liability for death or personal injury caused by Our own negligence or any other liability, the exclusion or limitation of which is expressly prohibited by law.

Notwithstanding anything contained herein, Our 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 commission (in case of Platforms) or charges (in case of Marketing Suite services), paid by You under the Agreement during the three (3) months preceding the date on which the claim occurred.

MARKETING SUITE SERVICES AND TERMS OF USE

The following terms shall, in addition to the other applicable terms set forth in this Agreement, govern Your use of Hashtag’s Marketing Suite services (the "Marketing Campaign Platform"), which, at a general level, allows You to communicate with the Users.

General Rules: You shall, as a condition to making any use of the Marketing Campaign Platform, be required to adhere to the following rules:

You shall not send Spam! While You are responsible for making Yourself 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 Users, a mass email without their permission, You are spamming.
You shall not violate the guidelines under this Clause. If You violate any of these rules, Hashtag, in addition to any other remedies that it may have hereunder or otherwise, may suspend Your access to the Marketing Suite services and/ or terminate Your account.

You hereby acknowledge that 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 Your communication.

Compliance with Laws

You represent and warrant that Your use of the Marketing Campaign Platform, which includes communication through (a) emails (b) SMSs/WhatsApp (including other similar online messaging platforms), and/or (c) social media platforms such as Instagram and Facebook, will be compliant with all applicable laws and regulations. You also acknowledge and agree that You shall be solely liable and responsible for the promotional messages/emails sent by You directly. You further agree and acknowledge that We shall not, under any circumstance, be held liable, responsible or answerable for any form of communication, communicated between You and the User, 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 expressly acknowledge and agree 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 shall be obtained and maintained by You.

Restrictions: You shall refrain from using the Marketing Campaign Platform to: (a) share offensive content; (b) harass any User; (c) share pornography or other sexually explicit content; (d) share content offering to sell illegal goods or services; and (e) share content that violates Information Technology Act, 2000 or any other applicable laws or regulations.

Prohibited Actions: You hereby undertake and covenant that You shall not:

violate the guidelines provided under this Clause 15;
share account password or provide unauthorized access to Your account;
use any of the Marketing Campaign Platform to create a competing product;
import or incorporate any of this information into any lists, emails or upload to Hashtag’s servers, passwords, security credentials, or sensitive personal information of any kind; and
use an outside unsubscribe process.

THRIVE PROMISE

If You have (a) listed Yourself exclusively on the Thrive Consumer App Platform or (b) listed Your menu pricing on the Thrive Consumer App Platform, at a discount of at least 10% (ten percent) as compared to Your menu pricing on other aggregator platforms, You shall be eligible to be a “Thrive Promise Merchant”. Subject to Our sole discretion, Thrive Promise Merchant shall be entitled to exclusive benefits, as provided under the Schedule I.

FORCE MAJEURE

Any delay or failure in the performance of obligations under this Agreement by either Party shall be excused if and to the extent caused by the occurrence of any event beyond such Party’s control. “Force Majeure” event means and includes circumstances that either 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). Non-performance on account of aforesaid reasons shall not be deemed to constitute a breach of this Agreement. The Party invoking this Clause shall give the other Party, notice and full particulars of such Force Majeure event as soon as possible after the occurrence of the cause upon which the said Party is relying. Provided that, such Party shall have used all reasonable endeavors in the circumstances to avoid or minimize the effects of any such delay or failure and to perform its obligations. If the Force Majeure event continues for a period beyond one (1) month, then, Hashtag shall have a right to terminate the Agreement by giving 15 (fifteen) days’ notice. Nothing in this Clause shall prejudice the right of either Party contained elsewhere in this Agreement.

GENERAL

Independent Contractors: You and Hashtag are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. You shall be responsible for the fulfilment of their respective liabilities to Your vendors or employees and this Agreement in no way permits Your vendors or employees to raise any claim against Us.

Notices: Notice to the Parties shall be in writing and shall be sent at the addresses provided at the time of registration. In case, there is any change in the addresses of a Party, the same shall be communicated immediately (not later than 10 days) to the other Party, failing which any notice sent to the earlier address of the said Party shall be deemed to be a valid service of such notice.

Assignment: The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective successors, permitted assigns and affiliates. You shall assign or otherwise transfer this Agreement or any of Your rights and obligations hereunder whether in whole or in part, without Our prior consent.

Severability: 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.

Governing Law: This Agreement is governed and construed in accordance with the laws of India, without giving effect to conflict of laws. You hereby irrevocably consent 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 Services.

Dispute Resolution: If any dispute arises between the Parties, in connection with the validity, interpretation, implementation or alleged breach of any provision of this Agreement, the dispute shall be referred to a sole arbitrator, appointed by both the Parties mutually. The seat and venue 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 the Arbitrator fee and his expenses shall be borne by the Parties equally. All other expenses of attorney fees and other expenses shall be borne by the respective Parties.

No Third-Party Rights: Each Party acknowledges and agrees 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.

Amendments: You hereby recognize and acknowledge that we may amend the terms of this Agreement from time to time, in which case the new Agreement will supersede prior versions. We will notify You of any material revisions ten (10) days prior to the effective date of any amendments to this Agreement. Your continued use of the Services following the effective date of any such amendment may be relied upon by Us as Your acceptance of any such amendment. You can review the most current version of the Agreement at any time by visiting this page.

Entire Agreement: This Agreement sets forth the entire understanding and agreement between the Parties with respect to the subject matter hereof.

SCHEDULE I

THRIVE CONSUMER APP PLATFORM

Scope of Services

The Thrive Consumer App Platform is a mobile application, where Users can place orders from their favourite restaurants and engage with a community of foodies on the said platform to discover new places and dishes.

The merchants can list themselves on the Thrive Consumer App Platform and accept orders from new and existing Users.

The services provided through the Thrive Consumer App Platform include:

Listing on the Thrive Consumer App Platform
Complete access to User Data
Digital catalogue
Menu management
Order Dashboard
Inventory settings
Third party delivery integrations
Payment gateway integration
Order notifications
Coupons / Offers
Reporting & analytics

Pricing Plan for Thrive Consumer App Platform

COMMISSION

14% (Fourteen Percent) commission (exclusive of GST and inclusive of payment gateway charges as provided under Annexure A) on the Total Amount of the Order placed by a New User through the Thrive Consumer App Platform.

10% (Ten Percent) commission (exclusive of GST and inclusive of payment gateway charges as provided under Annexure A) on the Total Amount of the Order placed by a Repeat User through the Thrive Consumer App Platform.

“New User” shall mean any User who has placed an Order with the Merchant for the first time or after a period of 60 (sixty) days from the last Order.

“Repeat User” shall mean any User who has placed an Order with the Merchant within a period of 60 (sixty) days from the last Order.

Notwithstanding the above, if the Merchant is a Thrive Promise Merchant in accordance with terms of Clause 16 of the Agreement, the following charges shall be applicable:

12% (Twelve Percent) commission (exclusive of GST and inclusive of payment gateway charges as provided under Annexure A) on the Total Amount of the Order placed by a New User through the Thrive Consumer App Platform.

8% (Eight Percent) commission (exclusive of GST and inclusive of payment gateway charges as provided under Annexure A) on the Total Amount of the Order placed by a Repeat User through the Thrive Consumer App Platform.

Payment Timeline

Thrive Consumer App Net Receipts shall be credited to the Merchant’s bank account (as provided during onboarding) in T+3 Business Days (“T” shall be the date on which the Total Amount has been received).

For COD transactions, settlement durations may vary between 7 - 15 Business Days depending upon the delivery service provider.

“Thrive Consumer Platform Net Receipts” shall mean the Total Amount minus commission and delivery charges.

Other Terms

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 Orders for supply other than restaurant service and the Merchant’s use of the Platform and Services.

Hashtag may charge and collect applicable taxes from Uses on behalf of the Merchant in accordance with instructions provided by the Merchant and/or applicable law; and, in which case, Hashtag 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.

Goods and Services Tax (GST) @5% in case of restaurant services, or such other rate as may be revised by the concerned government authority, is levied as per government directives and is payable by the Merchant. In view of Section 9(5) of Central Goods and Services Tax Act, 2017 (‘CGST Act’), read with Notification 17/2017 – Central Tax (rate) dated 28 June 2017 and Notification 17/2021 – Central Tax (rate) dated 18 November 2021, with effect from 1^st January 2022, GST on supply of restaurant services supplied by Merchant(s) through Hashtag Loyalty shall be paid by Hashtag Loyalty. For such purpose, Hashtag Loyalty will collect applicable taxes from Users on behalf of the Merchant in accordance with the law and deposit the same to the authorities. Taxes shall include all applicable taxes due in relation to the supply of restaurant service including pick-up and delivery services (if applicable), by the Merchant.

The Merchant shall take all necessary steps to assist Hashtag Loyalty in effective collection of taxes as per the recent amendments mentioned hereinabove. For such purposes, item level tagging will be required for determining the tax liability and invoicing as per law. Accordingly, the Merchant shall bifurcate the supplies made by it on Hashtag Loyalty’s platform into different taxable groups as provided by law and take all other necessary steps for the implementation of the law.

Tax Deduction at Source (TDS) @1% shall be deducted by Hashtag for all Merchant’s restaurant services.

W.e.f. 01st October, 2020, Hashtag is required to deduct taxes at source from the amount for all Orders that are settled via Hashtag’s Platform. TDS u/s 194-O shall be applied on the Total Amount (less applicable taxes charged by the Merchant) as per the applicable tax law on the rate as applicable and amended from time to time.

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

Merchant will be required to deposit relevant taxes, including tax deducted at source (TDS) on the commission payable to Hashtag. However, in case where Hashtag withholds its commission before remitting the settlement dues to the Merchant, Hashtag shall refund the TDS to the Merchant. Hashtag may, at the request of the Merchant, 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 Hashtag, the amount reported by Hashtag 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 Hashtag within a period of fifteen (15) days from the date of receipt of the TDS Certificate. Any delay on this account will relieve Hashtag of any obligation to undertake a corrective action to resolve the discrepancy. Under no circumstances, Hashtag shall entertain any discrepancy in the reported value after 30^th April of the year following the financial year to which the transactions were undertaken and reported.

Merchant agrees and acknowledges that Hashtag 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 Hashtag.

Tax Collection at Source (TCS) @ 1% for non-restaurant services, or such other rate as may be revised by the concerned government authority, is levied as per government directives and is payable by the Merchant.

W.e.f. 01st October, 2018, Hashtag is required to collect taxes at source on Total Amount (less applicable taxes charged by Merchants on supply of food and beverages items other than supply of restaurant services), at such rates as required by the applicable tax laws. The TCS shall be collected on the date of acceptance of the Order.

The Merchant shall be solely responsible to provide correct GSTIN details to Hashtag and reconcile the TCS with the tax statements provided by Hashtag from time to time, as required by applicable laws. Hashtag shall remit TCS to the respective Central Government and State Government/Union Territory and such remittance(s) shall be considered as complete fulfillment of Hashtag'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. The Merchant acknowledges and agrees that in the event of any discrepancy between the tax returns/entries filed by Merchant and those filed by Hashtag, the tax returns/entries present and filed by Hashtag shall have a precedence over the tax returns/entries filed by the Merchant.

Hashtag shall share a monthly TCS statement along with invoice with Merchant to report transactions undertaken during the month in its applicable returns.

GST @ 12% / 18% / 28% (as applicable) is levied as per government directives and is payable by the Merchant. on the Merchant in case of non-restaurant services.

THRIVE DIRECT ORDERING PLATFORM

Scope of Services

The Thrive Direct Ordering Platform is a direct ordering platform which enables the merchants to accept and manage orders from their Users.

The services provided through the Thrive Direct Ordering Platform include:

Digital catalogue
Menu management
Order Dashboard
Inventory settings
Third party delivery integrations
Payment gateway integration
Facebook / Google Integrations
WhatsApp Order notifications
Abandoned cart notifications
Coupons / Offers
Reporting & analytics

Pricing Plan for Thrive Direct Ordering Platform

COMMISSION

3% (Three Percent) commission (exclusive of GST) on the Total Amount of the food being ordered by the User.

DELIVERY CHARGES

Delivery charges are on delivery services availed of. The delivery services and charges are as per actuals and at discretion of the delivery service provider.

PAYMENT GATEWAY CHARGES

Payment Gateway charges shall be applied on various payment methods are as provided under Annexure A.

Payment Schedule

The Thrive Direct Ordering Platform Net Receipts shall be credited into the Merchant’s bank account (as provided during onboarding) in T+3 Business Days (“T” shall be the date on which the Total Amount has been received).

For COD transactions, settlement durations may vary between 7 - 15 Business Days depending upon the delivery service provider.

“Thrive Direct Ordering Platform Net Receipts” shall mean the Total Amount minus Commission, payment gateway charges (as provided under Annexure A) and delivery charges.

Other Terms

Goods and Services Tax (GST) @5% in case of restaurant services, or such other rate as may be revised by the concerned government authority, is levied as per government directives and is payable by the Merchant. In view of Section 9(5) of Central Goods and Services Tax Act, 2017 (‘CGST Act’), read with Notification 17/2017 – Central Tax (rate) dated 28 June 2017 and Notification 17/2021 – Central Tax (rate) dated 18 November 2021, with effect from 1^st January 2022, GST on supply of restaurant services supplied by Merchant(s) through Hashtag Loyalty shall be paid by Hashtag Loyalty. For such purpose, Hashtag Loyalty will collect applicable taxes from Users on behalf of the Merchant in accordance with the law and deposit the same to the authorities. Taxes shall include all applicable taxes due in relation to the supply of restaurant service including pick-up and delivery services (if applicable), by the Merchant.

Tax Deduction at Source (TDS) @1% shall be deducted by Hashtag for all Merchant’s restaurant services.

Tax Collection at Source (TCS) @ 1% for non-restaurant services, or such other rate as may be revised by the concerned government authority, is levied as per government directives and is payable by the Merchant.

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. The Merchant acknowledges and agrees that in the event of any discrepancy between the tax returns/entries filed by the Merchant and those filed by Hashtag, the tax returns/entries present and filed by Hashtag shall have a precedence over the tax returns/entries filed by Merchant.

Hashtag shall share a monthly TCS statement along with invoice with Merchant to report transactions undertaken during the month in its applicable returns.

GST @ 12% / 18% / 28% (as applicable) is levied as per government directives and is payable by the Merchant. on the Merchant in case of non-restaurant services.

MARKETING SUITE

Scope of Services

Thrive Marketing Suite allows restaurants to engage with customers using different retention features.

The services provided under the Marketing Suite include:

Loyalty program
Feedback system
Manual campaigns via Email, SMS, and WhatsApp
Automated/smart campaigns
Referral program
Sales Intelligence

Pricing and Payment Terms

As per the subscription plan availed by the Merchant on such terms as may be provided by Hashtag at the time of purchase of such plan.

ANNEXURE A

PAYMENT GATEWAY CHARGES

PAYMENT GATEWAY

CHARGES (EXCL. GST)

Credit Card (Visa/ Master/ RuPay) ----- 2%

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Debit Card (Visa/Master) < 2000, Debit Card (Visa/Master) > 2000, Debit Card (RuPay) ----- 2%

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UPI, Net Banking [Flat all banks], Wallet ------ 2%

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AMEX and other International Cards ----- 3%

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PayLater ----- 3%

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CRED ----- 3%

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