food delivery app
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This article is written by Shivani Srivastava, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from Lawsikho.com and Amritha Priya, 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”.

Introduction

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.

Changes in Law 

Statutory flexibility is required to promote, encourage and allow the innovative minds towards business. The Indian government also felt the need of amending the existing laws and expanding the provisions so that it enables new establishments. Hence, the CONSUMER PROTECTION ACT, (AMENDMENT) 2019 is one the important aspects with regard to the food industry. By amending the meaning of “GOODS” defined in section 2(20) of the Act, which is inclusive of FOOD as per section 3(1)(j) of FOOD SAFETY AND STANDARDS ACT, 2016. Hence, food delivery platforms have come within the ambit of CPA, 2019. This has enabled investors towards such online food delivery businesses. These applications are designed keeping in mind the security concerns and they are User Friendly which enables more subscribers. 

Why Online Delivery of Food? 

  1. The customer need not wait in queues to eat his/her favourite food anymore. Nor do they have to wait for a weekend and make plans amidst the traffic. 
  2. With few simple diligent acts one can order food anytime and anywhere.
  3. Added advantage to the hotel owners, as it helps them understand the preferability and current market trends, and also enable CRM systems (customer relationship management).
  4. These apps are so designed that the customer need not wait for hours answering calls, the application procures all required information systematically right from specifications of food to delivery details. 
  5. Customers can also schedule their time of delivery, and place of delivery.
  6. Repayment clause if the food is not delivered on time and of specified quality at his/her doorstep.
  7. Cash back offers for using digital applications during payments, which could be used for buying again and also added credit points where those could be used elsewhere.
  8. Quality food at your doorstep, also the food availability details.
  9. Food is already reviewed which allows customers to buy the most delicious one on the menu.

Legal Requirements/ Approvals 

It is important that any business must have obtained approvals in order to maintain transparency. In this food business not only transparency but even safety standards are important. Thus, obtaining specific approvals are mandatory. 

  1. SHOP ACT LICENSE: This must be applied within 30 days after commencement of business. It is regulated by the Department of Labour. One has to approach the respected ministry in-charge of that particular state for such approval. 
  2. HEALTH TRADE LICENSE: In order to ensure safety standards this license is mandatory. To obtain this one must approach the Local Municipality of their City.
  3. FSSAI (Food Safety and Standards Authority of India) LICENSE: Responsible for safety and quality of food products. One must obtain permission from the Food Safety and Standards Authority of India. 
  4. TRADEMARK REGISTRATION: This is a visual representation attached to goods for the purpose of indicating their trade origin. Concerned patent officers and in-charge shall provide for such registration, but the registration shall be in accordance with the Trade Mark Act.
  5. GST REGISTRATION: it is mandatory under section 2(44) of CGST (Central Goods and Service Tax), irrespective of annual turnover any business must be registered. 
  6. SIGNAGE LICENSE: for employing various marketing strategies one needs a signage license which can be obtained in Local Municipal Corporation of their City.

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:

  1. Allow for easy search of restaurant nearby or wherever;
  2. Allows for home-delivery; and
  3. 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: 

  • Legal implications of online food orderingThe 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. 

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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.
  • Limitation of liability: To the fullest extent permitted by applicable law, in no event shall the FDP be liable to User for any damages resulting from aforementioned points no. (i) to (vii) including but not limited to liability arising out of the (i) disclosure of information pursuant to these terms or FDP’s Privacy Policy; (ii) if the User fails to keep his/her password or account details secure and confidential, and/or (iii) loss or damage which may be incurred by the User, including but not limited to loss or damage as a result of reliance placed by the User on the completeness, accuracy or existence of any advertising, or a result of any relationship or transaction between the User and any advertiser or sponsor whose advertising appears on the Services, and/or delay or failure in performance resulting from causes beyond FDP’s reasonable control. In no event shall the FDP Parties be liable to the User for indirect, incidental, special, punitive, exemplary or consequential damages whatsoever, however, caused and under any theory of liability, including but not limited to, any loss of profit (whether incurred directly or indirectly), any loss of goodwill or business reputation, any loss of data suffered, cost of procurement of substitute goods or services, or other intangible loss. 
  • 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.

Drafting a Legal Document for a Food Delivery App 

1) Recital Clause

In every contract/ agreement it is essential to know how and why such contract was entered into. This clause is also popularly known as WHEREAS clause. The clause always starts with the word WHEREAS. It can also be termed as Background of the contract. 

For example: ‘WHEREAS, the Hotel ABC wishes to collaborate with Swiggy/ Zomato for a period of 5 years from the effective date’. 

Or

‘Whereas, Bhushan power wishes to participate in the tender and enters into a pre-bid agreement with Acme solar for the supply of solar plant’.

2) Definition 

It is very important for one to understand how a specific term has to be interpreted in a contract. This is important because the general meaning of the term would be different from what the drafter intended to (to avoid ambiguity).

For example: “User” this term generally means the continued use or enjoyment of a right in law. But the term user for such agreement would be a person ‘who accesses or uses the services for the purpose of sharing, displaying, hosting, publishing, transacting or upholding information, views, pictures and includes other persons jointly participating in using the services including without limitation’.

The reason why this clause becomes important is, in case of any further dispute, the Judge or arbitrator (however specified in the contract) must come to a conclusion as to how a specific term must be read for the interpretation required in an agreement. 

3) Eligibility 

This is a special clause which is rarely used/ seen in other contracts. This is because in other contracts generally the terms and conditions are mutually agreed upon by parties. But in EULA (End User License Agreement), it is not practical that every user negotiates terms with the provider. So, in order to indemnify the provider of such services free from liability this clause is essential. As it is well known as per Sec 11 of THE INDIAN CONTRACT ACT, 1972 ‘a person who has attained majority, sound mind and has not been disqualified by law’ is competent to contract. This is why signing to the terms and conditions of such service provides an eligibility clause is important. It becomes the duty of the installer to read, analyse and accept the terms of such contract. 

For example: ‘You hereby represent and warrant that you are at lest 18 years of age and above and are fully able and competent to understand and agree the terms, conditions, obligations, affirmations, representations, and warranties set forth in these terms’.

4) Compliance with Laws 

Any contract/ agreement shall be in accordance with the laws of the nation. Otherwise they shall be held ultra-vires to law. Compliance with law becomes very important in order to run a business. The statutory requirements as mentioned above shall be complied, and necessary approvals shall be taken as a mandatory. Both the user and the food delivery platform must be in compliance with all laws and regulations in the country in which they live while accessing and using the services. 

For example: ‘You are in compliance with all laws and regulations in the country in which you live when you access and use the services. You agree to use these services only with compliance with terms and applicable law, and in a manner that does not violate our legal rights or those of any third parties’.

5) Translation of the Terms

Mostly all terms and conditions are in English, but they can also be accessed in any other required language of the user. This is because the subscriber/ user must understand the terms even before acknowledging the same. This is why when a person installs such application language preference is asked even before he can use the services. 

6) Terms Of Services of FDP

  1. Such applications make clear that they are not the manufacturer or seller or distributor but only receive orders from the customers and place orders against the Restaurant Partners. 
  2. The application sometimes will not guarantee the quality of food, because that is dependent on the restaurant partners. The restaurant partners will decide on the availability of food and prices of food, the platform shall have no right in the same. 
  3. Time taken to prepare a particular food is confirmed by the restaurant and not the service provider. 
  4. Any violation in the standards of food provided by the Restaurant partners shall be solely towards the seller/owner, vendors, licensor, manufacturer of such food products, and the company providing such services shall not be held liable.
  5. It is the duty of the application to intimate the buyer/ customer if such food could be consumed by children. Specifications regarding the same must be provided. For example: beverages with alcohol. 
  6. The acceptance to delivery food once the order is placed by the customer, shall be a contractual obligation on the delivery partner under the consumer protection act, 2019. It becomes an implied contract of service once he agrees to deliver the food.
  7. The FDP must also state that the services provided by them shall be charged, the user shall pay such additional charges. The user shall comply with such additional payment and shall not deny the payment stating that he wasn’t aware. 
  8. The FDP must also provide the mode of payment and availability on COD (cash on delivery). Discounts available for such services and polices thereof shall be mentioned and updated from time to time. 
  9. The FDP must make clear that it is an obligation on the customer to protect the IPR (Intellectual Property Rights) and proprietary rights of the Restaurant Partners. 
  10. Non-exclusive, Non-transferable license to access is provided for the user as specified in the terms set-forth.
  11. The reviews and ratings provided on every food in the platform are by the user and the company is not responsible for such reviews. 
  12. The FDP shall ensure that the price list provided by the Restaurant Partners is correct and change the rates as per the directions of the owner from time to time. 
  13. The total price of the food, along with delivery charges and GST shall be specified in the platform clearly before placing such orders. 
  14. Promo codes/ offers/ coupons etc are offers provided by the application and is not a liability of the restaurant partners. 
  15. The application in addition also provides for telephonic services to track the order and GPS (Global Positioning System) also enables the user to know about the arrival timing of such orders.
  16. The user shall also see if the restaurant has accepted his order placed through the platform, and also see the status of his order. 

7) Terms And Use For Customers

  1. The user/ customer would place their order on the platform, by allowing the FDP an unconditional and irrevocable authorisation to place such orders with their restaurant partners. 
  2. All the orders placed by the customers which later being accepted by the FDP and Restaurant partners shall constitute a separate contract under Sale of Goods Act, 1930 and Consumer Protection Act, 2019. 
  3. It is the duty/ obligation on the user to provide correct details of his residence, contact details, number of servings etc. 
  4. It is also the duty of the user/ buyer to not further resell the food and make undue profits out of the same. 
  5. It is also an obligation/ duty on the service provided not to sell food with infringed trademark, or cause loss to the Restaurant Partners.
  6. The user/ buyer is duty bound to pay the service charges. 

8) Cancellation of Order/ Modifications

  1. As the user had already acknowledged the application for an unconditional and irrevocable authorisation to place order on behalf of the customer, when the user cancels the order it would amount to breach of trust. So, the application/ service provided has a right to claim liquidated damages for the same. Such amount shall not exceed the order value. 
  2. The FDP before offering refunds/ replacements or any other resolution that would affect the business of the Restaurant partners must first seek prior permission from the Restaurant partners. The restaurant partners acknowledgement in such would become necessary. 
  3. Modification of orders will be accepted only if the restaurant partner agrees for the same. In an event where such modification is not accepted, the user shall not cancel the order. 
  4. The user can cancel order if:                                                                           
  • your location is outside the designated delivery zones;                         
  • failure to contact your phone or email;                                              
  • unavailability of food in the menu;                                                 
  • details provided is wrong;                                                             
  • wrong order being delivered;                                                                   
  • food so ordered has been destroyed packing is tampered during delivery;               
  • few items are missing from the order user had placed. 

For example: ‘Any request made for modification of the confirmed booking will be subject to acceptance of the same by the restaurant. Application will use its best endeavours to keep the user informed of the status of the booking. For bookings where booking fees is not available, the user shall cancel such booking 30 minutes in advance from the scheduled booking time. A confirmed booking for which booking fee has been charged from a user, modification option will not be available however the user is required to cancel the booking 24 hours prior to the scheduled booking. Unless, otherwise provided herein these terms, application shall refund booking fees to the user within 7 business days from the date of such cancellation.’

9) Account Registration on the Platform 

  1. By registering to services and acknowledging to the terms of the application one becomes a member. Such membership is limited to the terms set-forth in such contract and shall not be transferable. 
  2. Every user shall have one FDP account and cannot/ shall not be permitted to install number of accounts in his/her name.
  3. Every user must provide correct information required during the registration for such services.
  4. Every user shall be responsible for safeguarding their password. The user shall not disclose their password to a third party.
  5. The details of any financial institution shall not be saved as default in the application.

10) User Feedback

This is essential in the digitalised ordering of food. It is normal that we look into the review and feedback before placing such an order. But while sharing such feedback it’s necessary that the feedback shall not contain any confidential, secretive or proprietary information; shall be free to use the feedback on unrestricted basis; by providing feedback the user is granting the application a binding, non-exclusive, royalty-free, perpetual, global license, to use, modify, develop, publish, distribute the feedback, and the user irrevocably waives, against application and its users any claims. Whatsoever of nature, with regard to such feedback. 

11) Dispute 

In case of any dispute, the parties are bound to comply with the dispute procedure established in the contract. It is quite seen that these days parties prefer ADR (Alternative Dispute Resolution) method over court litigation, In case of any dispute if there is dispute clause referring to arbitration, then the same shall be complied. 

For example: ‘The parties hereby agree to resolve any dispute arising out the contract or in respect of any defined legal relationship associated therewith or derived therefrom, the parties agree to seek an amicable settlement of that dispute by conciliation procedure established under the Arbitration and Conciliation ACT, 1996. 

The parties hereby agree that, any dispute arising out of the contract or between any legal relationship in the contract, such dispute shall be settled only through arbitration. The venue is Bangalore. Both the parties would collectively appoint one sole arbitrator. The award passed by such arbitrator shall be final and binding on both the parties.’

12) Limited Liability 

The FDP shall not be liable for any in-person interactions with representatives or staff of the Restaurant Partners or for the members experience at the Restaurant Partners. The FDP is not liable if the Restaurant temporarily or permanently shuts down. 

For example: ‘Notwithstanding anything otherwise set out herein, application shall in no manner be liable in any way for any in-person interactions with the restaurant as a result of the booking or for the users experience at the restaurant or in the event of the booking or for the users experience at the restaurant or in the event a restaurant does not honor a booking. It is only a platform which connects the users and restaurant partners’.

13) Assignment

The FDP may assign its right obligations under these terms and conditions to any of its affiliates or any third party at any time.

14) Indemnification

The user agrees to indemnify and hold harmless the FDP parties from and against any third party claims, damages, actions, proceedings, demands, losses, liabilities, costs and expenses suffered or reasonably incurred by us arising as a result of or in connection with: 

  1. user’s content                                                                                                 
  2. users’ unauthorised use of the services                                                             
  3. user’s access to services                                                                               
  4. user’s violation of any rights of another                                                             
  5. user’s breach to any terms or conditions 

The user can anytime delete his/her account. Approval of the service provider or intimation of the same is not necessary. There is no obligation of survival clause. 

Sample FDP

This Agreement is made and entered into on 23rd March 2020 (hereinafter referred to as the effective date)

BY

ABC Hotel Ltd, having its registered office at ……, (hereinafter where ever required in this agreement shall be referred to as Restaurant Partner) on ONE PART;

AND 

XYZ Pvt Ltd, with CIN number A12..Y, having its registered office at …, (hereafter where ever required shall be referred to as FDP) on the OTHER SIDE;

Recital clause: establish the relationship between the parties, using ‘Whereas’.

Now this Deed furthur Witnesses as follows:

1) Definition clause

2) Eligibility clause

3) Compliance with laws clause

4) Terms and Conditions clause

5) Language clause

6) Use of service clause

7) User feedback clause 

8) Dispute clause 

9) Limited Liability Clause

10) Indemnity clause

11) Mode of Payment clause

12) Assignment clause

13) Registration of new partners clause

All these provisions are explained in detail hereinabove. Samples for each have also been provided.

Conclusion 

Although only the important terms are discussed hereinabove, this list is not exhaustive. Any clause should be drafted keeping in mind the public policy. One must also keep in mind the new trends in the market while drafting, as we know the methods of payment keep changing very often. Upgradation of apps with regard to such changes must be legal and user friendly, it must not create obligations/ problems to the end user.


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