How To Make Terms And Conditions of Food Delivery Platform?

Recently, the news regarding the acquisition of Uber eats by Zomato has been quite popular. Zomato has acquired the Indian operations of its competitor Uber Eats, the food delivery business run by Uber, for around $350 million with which the transaction marks the first big consolidation move in the cash-intensive online food-delivery market, led by Swiggy and Zomato. Nowadays, the concept of ordering food online is not an unusual thing. Food delivery applications are those applications which offer you to deliver you mouth-savoring delicacies with the same price charge as your favorite restaurant does with a minimal amount of delivery charges, which technically means you order your favorite meal, there is timely receipt of your order with the comfort of your home or at any place you would like to have your meal. Dominos, Foodpanda, Swiggy, Zomato, etc, some of the most popular apps among masses.

Thus, the development of modern technology has given an opportunity to the food industry to expand their horizons along with ineffective cost methods. In a true way, the popularity of India’s food-delivery applications is inspiring to make restaurants to think differently. So, even if you are a person considering to   start such an option as a business for your own or even a customer, you will find it interesting to even know about: 

 Following are the important provisions for the relevance of the food  business in the  legal world:

a.    As per the recent key amendment in the Consumer Protection Act, 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. “Goods“  shall mean 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;”

Thus,   by widening the scope of the definition of Goods, the meteorically “Food Delivery Platforms” would come within the fold of CPA, 2019. It also makes it important for the food business operators to be aware of the rights of consumers under the legislation and comply with its obligation accordingly.

WHAT SHOULD BE THE TERMS AND CONDITIONS OF A FOOD DELIVERY APP?

Defining the business and business objective.

Food delivery is a retail business whereby the “Goods” are sold to the public through E-commerce is 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 that 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 the 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 goods or services including digital products over a digital or electronic network.

•    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 above-provided 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. 

1.    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.

2.    Compliance of Law: 

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 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.

3.    Legal implications of online food ordering: 

Every 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”). Users can access the list of food and beverages of the Restaurant Partners listed on FDP and place orders against the Restaurant Partners through Food Delivery Platform which the Restaurant Partner may or may not accept at its absolute discretion. 

4.     TERMS OF SERVICE OF FDP:

1)    The FDP shall make it clear that it is not either a  manufacturer or a seller or distributor of food or beverages but only places an order against the partner restaurant on behalf of the User customer pursuant to the aforesaid contract and facilitate the sale and purchase of food and beverages between the two, under the contract for sale and purchase of food and beverages.

2)    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 is taken to prepare or deliver the order, etc. 

3)    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 towards the seller/owners, vendors, Restaurant Partners, importer or manufacturers of the food products. 

4)    The FDP must provide a disclaimer in respect of some of the food that may be suitable for certain ages only. It must be the responsibility of Users to check the food they are ordering and read its description, if provided, before placing an order on FDP.  Food Delivery Platform shall not be liable in the event food ordered by User does not meet User’s dietary or any other requirements and/or restrictions. 

5)    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 legislation, between the User and the Delivery Partner, to which again food Delivery Platform is not a party. 

6)     The 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.

7). 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.

8)     The FDP shall reserve it’s right that at any time and without prior notice, the Food Delivery Platform 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.

9)    Intellectual & Proprietary Rights: The Food Delivery Platform shall declare in the form of a clause its ownership of FDP content and Proprietary Rights in detail every user must agree to protect FDP’S IPR and proprietary rights.

10)    Use of License aspects: Food Delivery Platform 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 shall  agree not to use the services for any illegal purpose or in any manner inconsistent with the terms and conditions of this Agreement

11)    Review and Ratings: The review or ratings for a restaurant by Users do not reflect the opinion of FDP. Food Delivery Platform 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 are the personal views of the User. 

12)    On-Time Delivery: The User may opt for on-time delivery services offered by the Food Delivery Platform, 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 up to INR 200, whichever is lower. 

The Coupon is required to be claimed within such time as provided 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 Food Delivery Platform fails to deliver such Order within the time provided for unforeseen reasons beyond the control of the food Delivery Platform eg. Strikes, natural disaster, etc.

13)    Price List: FDP shall take care 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 a 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 for the Delivery Charge of Food Delivery Platform. 

The total price for food ordered, including the Delivery Charges and other charges, will be displayed on the Food Delivery Platform when you place your order, which shall be rounded up to the nearest rupee.  The User shall make full payment towards such food ordered via the FDP. Any amount that may be charged to the User by Food Delivery Platform over and above the order value shall be inclusive of applicable taxes. 

14)    Delivery periods/Pickup time quoted at the time of ordering are approximate only and may vary depending upon the situation.  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. 

15)    Personal Promo Code/offers/memberships can be used by the User subject to such terms and conditions set forth by the Food Delivery Platform 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.

5.    TERMS OF USE FOR CUSTOMER :  

1.     The User shall 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, once 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 the Food Delivery Platform shall not be a party. 

2.    The User must warrant that while placing an order the details like contact number, delivery address, etc. are accurate and correct. By providing these details, the User expresses his/her acceptance of FDP’s terms and conditions and privacy policies. 

3.    The User shall not resell food purchased via FDP. 

4.    The User shall be charged a delivery fee for delivery of the order by the Delivery Partner or Restaurant Partner as the Delivery Partner or Restaurant Partner may determine (“Delivery Charges”). The User must agree that the Food Delivery Platform 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.

6.    CANCELLATION OF ORDER

•    The User must acknowledge that any cancellation or attempted or purported cancellation of an Order shall amount to a breach of User’s unconditional and irrevocable authorization in favor of the Food Delivery Platform to place that Order against the Restaurant Partners on User’s behalf (“Authorization Breach”). 

•    In the event the User commits 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 liquidating damages through such means as Food Delivery Platform may determine in its discretion, including without limitation, by deducting such amount from the 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, the refund amount will reflect in User’s account based on respective bank policies.

7.    ACCOUNT REGISTRATION ON THE PLATFORM

i.    One shall have the access to the Platform by registering to create an account for the(Food Delivery Platform") and become a member; or shall be able register to himself join by logging into your account with certain third-party social networking sites (" SNS") (including, but not limited to, Facebook); each such account, a " Third Party Account", via our Platform.

ii.    The Membership is limited for the purpose and are subject to the terms, and strictly not transferable. As part of the functionality of the Platform services, one shall be able to may link FDP   Account with Third-Party Accounts, by either:

i.    Providing your Third Party Account login information to us through the Platform; or

ii.    Allowing us to access their Third-Party Account, as is permitted under the applicable terms and conditions that govern your use of each Third-Party Account.

iii.    The user shall represent that you are entitled to disclose your Third Party Account login information to us and/or grant the FDP access to your Third-Party Account (including, but not limited to, for use for the purposes described herein), without breach of any of the terms and conditions that govern your use of the applicable Third-Party Account and without obligating them to pay any fees or making us subject to any usage limitations imposed by such third-party service providers.

iv.    By granting us access to any Third Party Accounts, the Food Delivery Platform shall be able to access, make available and store (if applicable) any content or information that the user shall provide to and stored in your Third-Party Account so that it is available on and through the Platform via your Food Delivery Platform Account. Unless otherwise specified in these Terms of Use, all provided information if any will be considered to be your content for all purposes of these Terms of Use.

v.    Depending on the Third-Party Accounts, the user shall choose, and subject to the privacy settings that the user has set in such Third-Party Account shall be personally identifiable information that you post to your Third-Party Accounts will be available on and through your Food Delivery Platform Account on the Platform.

vi.    Every user shall have access to only one FDP account and shall not be permitted to create multiple accounts. On finding multiple accounts of any user,   the FDP reserves the right to suspend such multiple accounts without being liable for any compensation.

vii.    Every user shall provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete.

viii.    The FDP shall   reserve the right to suspend or terminate your Food Delivery Platform Account and your access to the Services in the event ;

a)  if any information provided during the registration process or thereafter proves to be inaccurate, not current or incomplete; 

b)   if it is believed that a user’s actions may cause legal liability for the Food Delivery Platform or the user; or for both.

c)   if the user is found to be non- compliant with the Terms of Use.

ix)    Every user shall be responsible for safeguarding his/her password. The user shall not disclose his/her password to any third party and it will be their sole responsibility for any activities or actions under your FDP  Account, whether or not you have authorized such activities or actions. Goods and services purchased from the Platform are intended for your personal use and you represent that the same are not for resale or you are not acting as an agent for other parties.

8.    PAYMENTS & REFUNDS

I.    Refunds

A.    The user  shall be entitled to a refund only if you pre-pay for your order at the time of placing your order on the Platform and only in the event of any of the following circumstances:

1.    The  order packaging has been tampered or damaged at the time of delivery;

2. The user cancels the order due to: 

 (a) Your delivery location following outside our designated delivery zones;

 (b) Failure to contact you by phone or email at the time of confirming the order booking; or 

(c) Failure to contact you by phone or email at the time of confirming the order booking, or

(d) Where the user cancels the order at the time of confirmation due to unavailability of the items you ordered for at the time of booking.

B) The decision on refunds shall be at the sole discretion of the Food Delivery Platform and shall be final and binding.

C) All refund amounts shall be credited to your account within 3-4 business days in accordance with the terms that may be stipulated by the bank which has issued the credit/debit card.

II.    PAYMENTS: 

In case of payment at the time of delivery, the user shall not be required to pay for:

a)    Orders where the packaging has been tampered or damaged by us;

b)    Wrong order being delivered; or

c)    Items missing from your order at the time of delivery.

9.    OTHER TERMS & CONDITIONS  

i.    Statutory Compliances by Restaurant Partners: The User acknowledges that the Food Delivery Platform 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. 

ii.    Limitation of Liability: The Food Delivery Platform 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 is 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 Food Delivery Platform solely.

iii.    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.

iv.    Food hygiene audit of Restaurant Partners:  The FDP shall undertake to initiate food hygiene auditing of Restaurant Partners in partner with certified auditors

v)    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 Food Delivery Platform, 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 Food Delivery Platform 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. 

vi)    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. 

vii)    Advertisement : 

The User must agree to the advertisements that may be placed by the Food Delivery Platform on the Service as some of the Services are supported by advertising revenue and may display advertisements and promotions. The Food Delivery Platform 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.

viii)    Limitation of liability: 

To the fullest extent permitted by applicable law, in no event shall the Food Delivery Platform 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. 

ix)    Indemnification: 

The User agree to indemnify, defend, and hold harmless the Food Delivery Platform 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. 

The User can delete his/her account at any time contacting the FDP via contact us link at the bottom of every page. The Food Delivery Platform 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 effected without prior notice and acknowledge and agree that FDP may immediately deactivate or delete the account and all related information and/or bar any further access to User’s account or the Services. Further, the 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.

 xi)    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 changed/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 upgrades provided to you by us under the term and conditions shall be considered part of the Services.

xii)    Other terms:

Such as Interpretation, Waiver, Entire Agreement, Severability, Partnership Agency, etc. Governing Law, Jurisdiction, Dispute Resolution, etc. shall form part of this Agreement.

Author:

eStartIndia Team