This article is written by Shivani Srivastava, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com. Here she discusses “How will you draft the terms and conditions of a food delivery app”.
It is a strange thing to realize that contracts govern many aspects of our day-to-day lives. We engage ourselves in like dozen of activities governed by contract every day, usually without realizing the legal relationship we are entering into and engaged. Contract entered are either implied or expressed.
Similarly, when we order food through the food delivery platforms such as Zomato, Swiggy etc, by simply clicking on “Place Order” option, we enter into a contract with the Food Delivery Platforms. Through this article, we will learn about the various terms and conditions that a Food Delivery Platform should include in its Agreement.
Before discussing the topic further, it is important to understand the relevance of Food in legal world.
As per the recent key amendment in the Consumer Protection Act, 2019(hereinafter referred to as “CPA, 2019”) definition of “goods” under section 2(20) of the CPA, 2019 has been amended to include “food” as defined in the Food Safety and Standards Act, 2006. The amended section for easy reference is produced herein below:
(21) “goods“ means every kind of movable property and includes “food” as defined in clause (j) of sub-section(1) of section 3 of the Food Safety and Standards Act, 2006;”
By widening the scope of definition of Goods, the meteorically “Food Delivery Platforms” would come within the fold of CPA, 2019. The amendment would also make it important for the food business operators to be aware of the rights of consumers under the legislations and comply with its obligation accordingly.
What is Food Delivery Business?
Food delivery is a retail business whereby the “Goods” are sold to public through E-commerce in a relatively small quantity for consumption and from here the role of Food Aggregators or Food Delivery Platform begins. Food Aggregators or Food Delivery Platform are the companies which provide a platform for restaurants on their domain to reach out to the consumers online. These Food Aggregators provide or Food Delivery Platform its consumers mainly with the following services:
- Allow for easy search of restaurant nearby or wherever ;
- Allows for home-delivery
- Allow for its subscribers/members to go eat food in the restaurant itself at an extremely discounted price (inclusive of food and drink) means buying or selling of goods or services including digital products over digital or electronic network
Apart from amendments relating to food, another substantial change introduced in the CPA, 2019 is the inclusion of E-commerce industry. E-commerce is defined under section 2(16) of the CPA, 2019 as “buying or selling of goods or services including digital products over digital or electronic network”. Section 2(17) of the CPA, 2019 subsequently defines Electronic Service Provider “a person who provides technologies or processes to enable a product seller to engage in advertising or selling goods or services to a consumer and includes any online market place or online auction site. The CPA, 2019 efforts to include all the bodies that are engaged in the process of selling goods or service online. It is also crucial to take note of the definition of “consumer” under section 2(7) of the CPA, 2019. It is also important to note that the definition of “consumer” under section 2(7) of the CPA, 2019 makes a clear reference to online transactions. Besides, the definition of “services” the definition of “services” has been widened under section 2(42) of the CPA, 2019 and enumerate “transport” as one of the services. Hence, the Food Aggregators or Food Delivery Platforms are involved in the transportation of food will be said to provide services under the CPA, 2019. The consumers will thus approach the consumer forums for settlement of consumers’ disputes with the service providers. Since the services provided by the Food Aggregators or Food Delivery Platforms are consumer oriented, the said Food Delivery Platforms apart from the Food Safety and Standards Act, 2006 legislation comes under purview of Consumer Protection Act, 1986 as amended from time to time. As we are aware that consumer laws are for consumers’ protection of the interest and rights and same are imbibed in the CPA, 2019. The entry of e-commerce has expanded that scope of the CPA, 2019, enabling the consumers’ to hold Food Aggregators or Food Delivery Platforms liable for the violation of their rights. It is very evident that there is a shift from caveat emptor (buyer beware) to caveat venditor (seller beware).
In light of the aforenoted transition, any Food Delivery Platform (“hereinafter referred to as “FDP”) must bear in mind the following clauses, while drafting its terms and conditions for its food delivery business.
Indeed the terms and conditions bind the FDP and Consumer legally but there also exists an intention to make aware the consumers of their legal right and responsibilities with respect to access and use of the Food Delivery Platform, inform of its website and related mobile or software applications.
As done in any general contract, few important words are required to be defined in the definition clause for the purpose of better understanding. At the outset, the important words such as Services, User, Content, Restaurants and Delivery Charges etc. must be defined.
Broadly, the below mentioned terms and conditions will follow the definition clause:
- Eligibility: The User must undertake to adhere to the eligibility to enter into a contract in view of section 11 of The Indian Contract Act, 1872. The User shall agree to represent and warrant that the User is at the age of 18 or above and is fully able and competent to understand and agree the terms, conditions, obligations, affirmations, representation and warranties as set forth in this Agreement.
- Compliance of Law: Both the User and the FDP must be in compliance with all laws and regulations in the country in which they live while accessing and using the Service. The User must agree to use the Services only in compliance with terms & conditions, applicable law, and in a manner that does not violate legal rights or those of any third party/parties.
- Legal implications of online food ordering: The FDP shall state in its Agreement that it provides online food ordering services by entering into contractual arrangements with Restaurants on a principal to principal basis for the purpose of listing their food and beverages for online ordering by the Users on the FDP (“Restaurant Partners”). The Users can access the list of food and beverages of the Restaurant Partners listed on FDP and place orders against the Restaurant Partners through FDP which the Restaurant Partner may or may not accept at its absolute discretion.
User’s request to order food and beverages from a Restaurant Partner by clicking on ‘Place Order’ tab on the Restaurant Partner page on the FDP shall constitute an unconditional and irrevocable authorization issued in favor of FDP to place online orders for food and beverages against the Restaurant Partners on User’s behalf. An order, when placed on behalf of User by the FDP and accepted by a Restaurant Partner constitutes a separate contract of sale of goods under the Sale of Goods Act,1930 and the Consumer Protection Act, 2019 or any successor legislation between the Restaurant Partner and the User, to which FDP is not a party.
The FDP shall make it clear that it is not a manufacturer, seller or distributor of food or beverages and merely places an order against the Restaurant Partner on behalf of the User pursuant to the aforesaid contract and facilitate the sale and purchase of food and beverages between User and Restaurant Partners, under the contract for sale and purchase of food and beverages between the User and Restaurant Partners.
The FDP shall not be liable for any actions or omissions by the Restaurant Partners including deficiency in service, wrong delivery or order, quality of food, time taken to prepare or deliver the order etc.
The FDP must state that the liability of any violation of the Food Safety and Standards Act, 2006 and applicable rules and regulations made thereunder shall solely be of the seller/owners, vendors, Restaurant Partners, importer or manufacturers of the food products.
The FDP must disclaim in respect of some of the food that may be suitable for certain ages only. It must be the responsibility of User to check the food they are ordering and read its description, if provided, before placing order on FDP. The FDP shall not be liable in the event food ordered buy User does not meet User’s dietary or any other requirements and/or restrictions.
The User must warrant that while placing order the details like contact number, delivery address etc. are accurate and correct. By providing these details, the User expresses his/her acceptance to FDP’s terms and conditions and privacy policies.
The User shall not resell food purchased via FDP.
The FDP must state that Delivery of an order placed by the User through FDP may either be undertaken directly by the Restaurant Partner against who the User has place the order, or facilitated by the FDP through third-party (“Restaurant Partners”) who may be available to provide delivery services to User (“Delivery Partner”). In both cases, the FDP is merely acting as an intermediary between the User and the Delivery Partners, or the User and the Restaurant Partners, as the case may be.
The acceptance by a Delivery Partner of undertaking delivery of User’s order shall constitute a contract of service under the Consumer Protection Act, 2019 or any successor legislations, between the User and the Delivery Partner, to which again FDP is not a party.
FDP must clarify that FDP does not provide any delivery or logistics services and only enables the delivery of food and beverages ordered by the Users through FDP by connecting User with Delivery Partners or the Restaurant Partners, as the case may be.
The FDP shall not be liable for any acts or omissions on part of the Delivery Partner or Restaurant Partner including but not limited to deficiency in service, wrong delivery of order, delay in reaching order, order package tampering etc.
The User may be charged a delivery fee for delivery of order by the Delivery Partner or Restaurant Partner as the Delivery Partner or Restaurant Partner may determine (“Delivery Charges”). The User must agree that FDP is authorized to collect, on behalf of the Delivery Partner or Restaurant Partner, as the case may be. The Delivery Charges may vary from, order to order, which may be determined on multiple factors such as order value, demand during peak hours etc. The FDP must state that it will use reasonable efforts to inform the User of the Delivery Charges that may apply to the User, provided the User will be responsible for Delivery Charges incurred for User’s order regardless of User’s awareness of such Delivery Charges.
- Intellectual & Proprietary Rights: The FDP must declare its ownership of FDP content and Proprietary Rights in detail and the User must agree to protect FDP’S IPR and proprietary rights.
- License: FDP shall grant User a personal, limited, non-exclusive, and non-transferrable license to access and use the Services only as expressly permitted as per the terms and conditions of the Agreement. The user must agree not to use the services for an illegal purpose or in any manner inconsistent with the terms and conditions of this Agreement.
- FDP shall reserves it’s right that at any time and without prior notice, the FDP can remove, block, or disable access to any Content, for any reason or no reason, considered to be objectionable, in violation of the terms and conditions of this Agreement or otherwise harmful to the Services.
- Review and Ratings: The review or ratings for restaurant by User do not reflect the opinion of FDP. FDP gets many reviews or ratings for Restaurant by User, which reviews or ratings for Restaurants by Users, which shows the views of the User. It is important to state that every review or ratings posted on FDP is the personal view of the User.
- On-Time Delivery: The User may opt for on-time delivery services offered by the FDP, for an additional non-refundable cost, at selected Restaurants. The User shall however acknowledge that such services are offered by the FDP on a best effort basis, hence should the order fail to reach on or prior to the Promise Time, the User would be eligible to receive Coupon worth value or upto INR 200, whichever is lower. The Coupon is required to be claimed within 24 hours from the time such Order is delivered failing which the eligibility to receive Coupon expires. The User shall not be eligible to receive the coupon, if FDP fails to deliver such Order within Promise Time for unforeseen reasons beyond the control of FDP eg. Strikes, natural disaster etc.
- Price List: FDP take cares to keep all the prices listed are correct at the time of publication, and have been placed as received from the Restaurants. The final price charged to the User may change at the time of delivery. In the event of conflict between prices of the FDP and price charged by the Restaurant, the price charged by the Restaurant shall be deemed to be the correct price except Delivery Charge of FDP. The total price for food ordered, including the Delivery Charges and other charges, will be displayed on the FDP when you place your order, which shall be rounded up to the nearest rupee. User shall make full payment towards such food ordered via the FDP. Any amount that may be charged to the User by FDP over and above the order value shall be inclusive of applicable taxes.
- Delivery periods/Pickup time quoted at the time of ordering are approximate only, and may vary. When the User opts for Pickup at the time of placing the Order, and FDP shall not be liable in any manner in this regard.
- Personal Promo Code/offers/memberships can be used by the User subject to such terms and conditions set forth by FDP from time to time. The FDP can promote its new offers/membership plans etc. and the User will have to subscribe for the same. The subscribers will only be eligible for offers opted.
- Order cancellation: The User must acknowledge that any cancellation or attempted or purported cancellation of an Order shall amount to breach of User’s unconditional and irrevocable authorization in favor of the FDP to place that Order against the Restaurant Partners on User’s behalf (“Authorization Breach”). In the event the User commit an Authorization Breach, the User shall be liable to pay the liquidated damages of an amount equivalent to the Order Value. The User must undertake to authorize FDP to deduct or collect the amount payable as liquidate damages through such means as FDP may determine in its discretion, including without limitation, by deducting such amount from payment made towards User’s next order. The FDP shall not facilitate replacements/ refunds/ or any other resolution without Restaurant’s Partner permission. All refunds shall be processed in the same manner as they are received, unless refunds have been provided to the User in the form of credits, refund amount will reflect in User’s account based on respective bank policies.
- Statutory Compliances by Restaurant Partners: The User acknowledges that FDP bears no responsibility for the compliance with statutory rules, regulations and licenses by the Restaurant Partners. The User agrees that FDP shall not be liable in any manner if the User is unable to avail the offer(s) with a Restaurant Partners due to Restaurant Partner’s violation of any statutory rule, regulation and license.
- Limitation of Liability: The FDP shall in no manner be liable in any way for any in-person interactions with representatives or staff of the Restaurant Partners or for the member’s experience at the Restaurant Partners. The FDP in no manner be liable to the member if any outlet of Restaurant Partners temporarily or permanently shuts down its operations. The FDP will only take care of claims/liabilities arising out of offers/membership plans advertised by FDP solely.
- Assignment: The FDP may assign of its right obligations under these terms and conditions to any of its affiliates or any third party at any time.
- Food hygiene audit of Restaurant Partners: The FDP shall undertake to initiate food hygiene auditing of Restaurant Partners in partner with certified auditors.
- Disclaimer of warranties, limitation of liability and indemnification: Disclaimer of warranties: the User must acknowledge and agree that the Services are provided “as is” and “as available” and that the use of the Services shall be at the risk of User. To the fullest extent permitted by applicable law, the FDP, its affiliates and their respective officers, directors, employees, agents, affiliates, branches, subsidiaries and licensor (“FDP Parties”) disclaims warranties, express or implied, in connection with the Services including mobile apps and User’s use of them. To the fullest extent permitted by applicable law, the FDP parties makes no warranties or representations that the Services have been or will be provided with due skill, care and diligence or about the accuracy or completeness of the Services content and assume no responsibility for any (i) errors, mistakes, or inaccuracies of Content, (ii) personal injury of property damage, of any nature, whatsoever, resulting from User’s access to and use of the services, (iii) any unauthorized access to or use of FDP’s server and/or any and all personal information stored therein, (iv) any interruption or cessation of transmission to or from the Services, (v) any bugs, viruses, Trojan Horses, or the like which may be transmitted to or through the Services, through the action of an third party,(v) any loss of User’s data or Content from the Services and/or, (vii) an errors or omissions in any content or for any loss or damage of any kind incurred as a result of the use of any content posted, emailed, transmitted or otherwise made available via the Services.
Any material downloaded or otherwise obtained through the use of the Services is done at User’s own discretion and risk and the User will be solely responsible for any damages to User’s computer system or other device or loss of data that results from the download of any such materials. The FDP Parties will not be a party to or in any way be responsible for monitoring any transaction between the User and third party providers of products or services.
- Advertising: The User must agree to the advertisements that may be placed by the FDP on the Service as some of the Services are supported by advertising revenue and may display advertisements and promotions. The FDP will not be responsible or liable for any errors or omission, inaccuracy in advertising material or any loss or damage of any sort incurred as a result of any such dealings or a result of the presence of such other advertiser(s) on the FDP platform and mobile application.
- Indemnification: The User agree to indemnify, defend, and hold harmless the FDP Parties from and against any third party claims, damages (actual and/or consequential), actions, proceedings, demands, losses, liabilities, costs and expenses (including reasonable legal fees) suffered or reasonably incurred by us arising as a result of or in connection with (i) User’s Content (ii) User’s unauthorized use of the Services or products or services included or advertised in the Services (iii) User’s access to Service (iv) User’s violation of any rights of another (v) User’s breach of terms and conditions including but not limited to, any infringement by the User of the copyright or intellectual property rights of any third party. The FDP retain the exclusive right to settle, compromise and pay, without your prior consent, any and all claims or causes of action which are brought against the FDP. The FDP reserve the right, at User’s expense, to assume the exclusive defense and control of any matter for which User is required to indemnify FDP and the User agree to cooperate with FDP’s defense of these claims.FDP will use reasonable efforts to notify the User of any such claim, action or proceeding upon becoming aware of it.
- Termination by User and FDP: The User can delete his/her account at any time contacting the FDP via contact us link at the bottom of every page. The FDP may terminate User’s use of the Services and deny access to the Services in FDP’s sole discretion for any reason or no reason, including User’s: (i) violation of terms and conditions of this Agreement (ii) lack of use of the Services. The User must agree that any termination of User’s access to the Services may be affected without prior notice and acknowledge and agree that FDP may immediately deactivate or delete account and all related information and/or bar any further access to User’s account or the Services. Further, User must agree that FDP shall not be liable to the User or any third party for the discontinuation or termination of User’s access to the Services.
- Addendum: The Food Delivery Platform should be at the liberty vary or amend or change or update the terms and conditions, from time to time entirely at its own discretion. The User shall be responsible for checking the terms and conditions from time to time and ensure continued compliance with the said terms and conditions. User’s usage of Food Delivery Platform shall be deemed as express acceptance to such amended/changed terms and the User agrees to be bound by such changes/amended Terms and Conditions. The User may be required to install certain upgrades or updates to the software in order to continue access or use the Services, or portions thereof (including upgrades or updates designed to correct issues with the Services). Any updates or upgrade provided to you by us under the term and conditions shall be considered part of the Services.
- The general important clauses such as Interpretation, Waiver, Entire Agreement, Severability, Partnership Agency etc. Governing law, Jurisdiction, Dispute Resolution etc. shall form part of this Agreement.
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