- Contractual Relationship
Please read Partner Terms and Conditions carefully. These Terms and Conditions constitute a legally binding agreement together with the Enrollment Agreement between Partner, whether personally or on behalf of an entity, acting as a provider of Food and Beverages or other Goods (the “Partner” or “you”) and the OrderJet Legal Entity stated on the Enrollment Agreement or, where there is no OrderJet Legal Entity stated on the Enrollment Agreement, the OrderJet legal entity incorporated in the jurisdiction where the Partner is located and the Orders are to be made (“OrderJet”). For the purpose of the Agreement, references to “Affiliates” includes OrderJet’s administrators, successors-in-interest, permitted assigns and affiliates.
The (Partner Terms and Conditions) and the (Enrollment Agreement) shall hereinafter be referred to as the “Agreement”.
This Agreement governs Partner’s use of the OrderJet application, website, call center and technology platform (collectively, the “OrderJet Platform” or the “Platform”) which facilitates the listing, sale and serving of Goods (as defined below) to Customers (as defined below) (“Platform Services”).
IF PARTNER DOES NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, PARTNER MAY NOT USE OR ACCESS THE ORDERJET PLATFORM OR THE PARTNER APPLICATION.
Partner’s access and use of the OrderJet Platform and the Partner Application constitute Partner’s agreement to be bound by this Agreement, which establishes a contractual relationship between Partner and OrderJet. OrderJet may immediately terminate this Agreement with respect to Partner, or generally cease offering or deny access to the OrderJet Platform and the Partner Application or any portion thereof, at any time for any reason without notice.
OrderJet may amend these Terms and Conditions unilaterally and at its sole discretion from time to time. Amendments will be effective upon OrderJet’s posting of updated Terms and Conditions at this location. Partner’s continued access or use of the OrderJet Platform and/or the Partner Application after such posting constitutes Partner’s consent to be bound by these Terms and Conditions, as amended.
OrderJet may provide to a claims processor or an insurer any necessary information (including Partner’s contact information) if there is a complaint, dispute or conflict, which may include a death or injury, involving Partner, a Customer and/or a third-party provider and such information or data is relevant to the complaint, dispute or conflict.
“Applicable Law” means any national, state, local, municipal legislation, regulation, statutes, bylaw, consents and/or other law and any other instrument having the force of law as may be issued and in force from time to time (and any amendment or subordinate provisions) relating to or connected with the activities contemplated under this Agreement wherever so located or performed;
“Subscription Fees” means the fee paid by partner to OrderJet for their service package.
“Customer” means a third-party user who places Orders through the OrderJet Platform;
“Device” means an internet enabled mobile app or tablet device or Partner POS system capable of accessing the Partner Application;
“Effective Date” means the execution date of the Enrollment Agreement;
“Electronic Payment Mechanism” means the online and mobile based payment mechanisms including third party payment gateways, credit card/debit card/net banking transfer and/or e-wallets and/ or OrderJet credits that are available on the Platform for the purposes of facilitating the payment of the Order Value by the Customer;
“Enrollment Agreement” means the Partner Enrollment Agreement signed by Partner and OrderJet by which Partner agrees to be bound by the terms of this Agreement;
“Good Industry Practice” means the practices, methods and procedures and that degree of skill, diligence, prudence, foresight and judgment which would be expected to be observed by a skilled and experienced supplier engaged in the same or similar activities under the same or similar circumstances;
“Goods” means any food and beverage items or other products being sold by Partners to Customers through the OrderJet Platform as listed from time to time in a relevant Menu;
“Group” means in relation to any person, that person and any company which is from time to time a subsidiary or holding company of that person or a subsidiary of any such holding company;
“Information” means the information set out in, and to be provided in connection with, the Enrollment Agreement including any information which is supplied by Partner to OrderJet under or with respect to this Agreement such as the Menu, the price lists underlying the Menu, business operational hours, areas serviced by the Partner, and any other specific information the Partner is requested by OrderJet to provide;
“Intellectual Property Rights” means patents, inventions (whether patentable or not), copyrights, moral rights, design rights, trade-marks, trade names, business names, service marks, brands, logos, service names, trade secrets, know-how, domain names, database rights and any other intellectual property or proprietary rights (whether registered or unregistered, and whether in electronic form or otherwise) including rights in computer software, and all registrations and applications to register any of the aforesaid items, rights in the nature of the aforesaid items in any country or jurisdiction, any rights in the nature of unfair competition rights, and rights to sue for passing off;
“Menu” means any e-document or virtual page which sets out the Goods offered for sale by Partner to Customers together with related pricing and which is made available on the OrderJet Platform;
“Net Order Value” means the Order Value, less any applicable payment gateway fees and any other taxes or charges or commissions due under this Agreement or the Partner Enrollment Agreement;
“Order” means an order made by a Customer on the OrderJet Platform for the purchase of Goods;
“Order Value” means the total amount, which is payable by a Customer for the purchase of Goods with respect to each relevant Order;
“Parties” means OrderJet and Partner;
“Partner Application” means the OrderJet application (web-based or otherwise) which provides Partner with the ability to receive details and updates relating to Orders;
“Self-Pick-Up” has the meaning set out in the Enrollment Agreement;
“Service Operator” means a service operator working for OrderJet who is managing Orders received from Customers through the OrderJet Platform;
“Services” means the receipt of Orders from, and serving of related Goods to Customers by Partner; and
“Technical Standards” means all internationally recognizable technical standards applicable to the provision of the Services hereunder.
- OrderJet Obligations
3.1. OrderJet will display Information and Partner’s Menu on the OrderJet Platform at its discretion;
3.2. OrderJet will forward Orders placed by Customers to Partner via a OrderJet provided URL link and/or via the Partner Application on a real-time basis;
3.3. OrderJet will not be responsible or liable for the (a) quality, quantity, descriptive accuracy and/or taste of the Goods advertised on the Platform; and/or (b) processing of the Orders which have been placed by the Customers with the Partner on the OrderJet Platform; and/or (c) any failure on the part of the Partner to comply with the special requests / instructions of a Customer where such requests and/or instructions have been communicated by the Customer at the time of placing an Order; and/or (d) the Serving of the Goods to the Customer. The Partner agrees to take full liability and responsibility in respect of the foregoing;
3.4. OrderJet will handle any Customer and Partner complaints related to the OrderJet Platform, the Partner Application and/or the Device (in the event OrderJet has provided Partner with that Device);
3.5. OrderJet will deactivate the Partner’s account on the OrderJet Platform if the Partner is found non-compliant with any Applicable Law and may terminate this Agreement;
3.6. OrderJet will be responsible for the costs of any promotions offered by OrderJet with respect to Platform Services.
- Partner Obligations
4.1. Partner shall treat Orders received from Customer ordering via the OrderJet Platform with the same level of care, prep times, and attention, including providing the correct Good items as per the Customer Order and providing the right packaging to avoid spillage or destruction of Good items, as it treats Customer orders received via its own sales channels or via any third party;
4.2. Partner will ensure that the Information provided to OrderJet is up to date and accurate at all times;
4.3. Partner will use the Partner Application to make timely changes or updates to their Information, including but not limited to Available items, operating hours and any other Information. If these changes cannot be made via the Partner Application, Partner will notify OrderJet by email of any changes and will provide 48 working hours’ notice for OrderJet to reflect such changes on the OrderJet Platform. If Partner fails to do so, Partner shall pay to OrderJet the Commission Percentage-if any- on any Orders that could not be processed due to outdated Partner Information.
4.4. The Partner will not require a minimum value with respect to any Order, either for Dine-in or Self-Pick-Up;
4.5. Partner will accept all Orders placed by Customers within two minutes of the Order appearing on the Partner Application and, in the event that the Partner fails to do the same, it will be liable to pay to OrderJet the Commission Percentage-If any- on any Orders not accepted by the Partner;
4.6. Customers have the right to contact Partner to request any change or modification to an Order. For Orders subject to Self-Pick-Up, Partner shall deal directly with the Customer for queries relating to serving times.
4.7. The Partner warrants that the Goods provided to Customers are: (a) of high quality and fit for human consumption; and (b) comply with all Applicable Laws, including all applicable food industry regulations including all packaging and labeling requirements required for Goods of that type;
4.8. The Partner will contact the OrderJet customer care if an Order cannot be processed as requested or to clarify the details of an Order, if required, post confirmation of the Order;
4.9. Partner will ensure that the preparation time of an Order will not exceed 20 minutes from the acceptance time of the relevant Order;
4.10. Partner will be responsible for any and all issues and costs associated with delayed serving resulting from its failure to comply with such 20-minute preparation time period including costs associated with compensating the Customer, which shall be at OrderJet’s sole discretion;
4.11. Partner will not engage in any fraudulent activity or misuse any benefits extended by OrderJet to it or to Customers;
4.12. Partner will be responsible for the costs of any discounted promotion offered by the Partner with respect to Goods, as agreed from time to time via email;
4.13. Partner will not at any time offer, by way of any medium, a price for any Good items which is lower than the then-current price of the applicable item set out in the Menu and available through the OrderJet Platform;
4.14. If the Partner has not complied with the preparation instructions (as set forth in an Order) or has supplied poor quality or inaccurate Goods to the Customer, in the opinion of OrderJet, whereby OrderJet has (pursuant to the Customer’s complaint) refunded the Order Value to the Customer (“Problem Order”), the Partner acknowledges and agrees that the Partner will not be entitled to receive the Net Order Value and/or any Payments (defined below) for such Problem Order and that if the Partner has already received the Net Order Value from OrderJet in respect of such Problem Order (subject to any appropriate reductions hereunder), OrderJet will have a right to deduct or offset such amount from or against any monies that are owed by OrderJet to the Partner from time to time under this Agreement;
4.15. Partner shall disclose all relevant details pertaining to Problem Order(s) to OrderJet upon becoming aware of the same;
4.16. Partner will ensure that prices for Goods displayed on a Menu are at all times inclusive of applicable taxes and charges, including VAT; and
4.17. Partner shall perform its obligations and provide the Services hereunder in accordance with: (a) Good Industry Practice; (b) Technical Standards; (c) All applicable professional rules, code of conduct, regulations and associated guidelines; (d) Any timescales set out herein; and (e) Applicable Law.
4.18. Partner will ensure that no Order contains any Goods past their expiry and/or consumption date. In case any Customer informs OrderJet that the Customer has received any expired Good(s), Partner acknowledges and agrees that it will not be paid for such Order, and that if the Partner has already received any Payment (as defined below) from OrderJet in respect of such Order (subject to any appropriate reductions hereunder), OrderJet will have a right to deduct or offset such amount from or against any monies that are owed by OrderJet to the Partner from time to time under this Agreement
4.19. Partner warrants, represents and undertakes that prior to dispatch of any Goods, any such Goods have at all times been handled, stored and maintained in hygienic and sanitary conditions and in accordance with Applicable Law, Good Industry Practice and any instructions or requirements of the manufacturer and/or producer of the Goods;
4.20. THE PARTNER WARRANTS, REPRESENTS AND UNDERTAKES THAT IT HAS, AND WILL MAINTAIN, ALL NECESSARY LICENSES AND PERMITS REQUIRED FOR MARKETING (IN ALL CHANNELS), SALE AND SERVING OF THE GOODS IN ALL TERRITORIES WHERE THE SERVICES ARE PERFORMED. IF ANY SUCH LICENSE OR PERMIT IS REVOKED, EXPIRES OR IS TERMINATED FOR ANY REASON WHATSOEVER THEN THE PARTNER SHALL PROMPTLY NOTIFY ORDERJET IN WRITING;
In addition to the foregoing, the following terms and conditions will apply to Partners who opt for Self-Pick-Up in respect of an Order:
4.21. Partner shall be solely liable for serving of the Goods to a Customer and within the Time as defined in the Enrollment Agreement.
4.22. Partner will provide an invoice to a Customer for each Order and will use the OrderJet invoice format available on the Partner Application (or such other format mutually agreed to by the Parties) and also ensure that information pertaining to all charges (including VAT) are clearly visible to a Customer on an applicable invoice.
4.23. Partner will notify OrderJet that it intends to use Self-Pick-Up for a particular Order by selecting the Self-Pick-Up option on the Partner dashboard available on the Partner Application.
- The OrderJet Platform
OrderJet is a digital ordering and payment network which operates a software platform matching, amongst other things, Customers seeking to place Orders with Partners via the OrderJet Platform.
THE PARTNER ACKNOWLEDGES THAT NEITHER ORDERJET NOR ITS AFFILIATES PROVIDE DELIVERY OR TRANSPORTATION OF GOODS OR FUNCTION AS A TRANSPORTATION SERVICE PROVIDER OR OWN ANY VEHICLES FOR DELIVERY AND THAT ALL DELIVERY SERVICES -IF ANY- MUST BE HELD BY PARTNER OR A THIRD-PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY ORDERJET OR ANY OF ITS AFFILIATES.
Subject to Partner’s compliance with this Agreement, OrderJet grants the Partner a limited, non-exclusive, non-sub-licensable, revocable, non-transferrable license to: (a) access and use the OrderJet Platform and the Partner Application solely with respect to the Services; and (b) access and use any content, information and related materials that may be made available to the Partner through the OrderJet Platform, in each case solely to provide Services to Customers. Any rights not expressly granted herein are reserved by OrderJet and OrderJet’s licensors.
Partner may not: (a) remove any copyright, trademark or other proprietary notices from any portion of the OrderJet Platform or the Partner Application; (b) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the OrderJet Platform or the Partner Application except as expressly permitted by OrderJet; (c) decompile, reverse engineer or disassemble the OrderJet Platform or the Partner Application except as may be permitted by Applicable Law; (d) link to, mirror or frame any portion of the OrderJet Platform or of the Partner Application; (e) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the OrderJet Platform or of the Partner Application or unduly burdening or hindering the operation and/or functionality of any aspect of the OrderJet Platform or the Partner Application; or (f) attempt to gain unauthorized
access to or impair any aspect of the OrderJet Platform or the Partner Application or their related systems or networks.
The OrderJet Platform and the Partner Application and all rights therein are and shall remain OrderJet’s property or the property of OrderJet’s licensors. Neither this Agreement nor Partner’s use of the OrderJet Platform or of the Partner Application convey or grant to Partner any rights: (a) in or related to the OrderJet Platform or the Partner Application, as applicable, except for the limited license granted above; or (b) to use or reference in any manner OrderJet’s company names, logos, product and service names, trademarks or services marks or those of OrderJet’s licensors; or (c) except for the limited license granted above, to any Intellectual Property Rights that are owned by or licensed to OrderJet prior to the commencement date of this Agreement, which shall be owned by and remain the property of and vested in OrderJet and OrderJet’s licensors.
The Partner hereby assigns with full title guarantee, free of all encumbrances and in the case of copyright, by way of a present assignment of future copyright, all of the Intellectual Property Rights that arise, or are created or developed by OrderJet or are adapted from OrderJet’s Intellectual Property Rights in connection with this Agreement upon creation, together with the right to sue for past infringement of the Intellectual Property Rights.
The Partner hereby grants to OrderJet a worldwide, perpetual, non-exclusive, assignable, royalty-free license (with full right to sublicense) for the term of the Agreement to use, reproduce, publicly display, exploit, modify, alter or integrate its Intellectual Property Rights as are provided by the Partner to OrderJet (whether directly or indirectly) or are uploaded by the Partner onto the OrderJet Platform or Partner Application, from time to time, for the purpose of providing the Platform Services and any marketing campaigns it runs in relation to the Services. The Partner warrants, represents and undertakes that none of the content, information or related materials that it provides to OrderJet under this Agreement, or that are uploaded by Partner onto the OrderJet Platform or Partner Application, will violate or infringe any third party Intellectual Property Rights or any other third party rights.
5.4 Third Party Services and Content
Pursuant to the terms of the Enrollment Agreement, Partner may opt to work exclusively with OrderJet as Partner’s sole online ordering, take-away and/or Self-Pick-Up service provider (a “OrderJet Exclusive Partner”).
- Use of the OrderJet Platform
6.2. In the event OrderJet provides the Partner with a Device, the following terms and conditions shall apply:
6.2.1. The Device shall be used by the Partner solely for the purpose of (1) managing Orders; (2) reviewing the particulars underlying the Orders; (3) updating the Order status; (4) updating Partner Information; (5) communicating with OrderJet; (6) reporting erroneous Orders; (7) reviewing Partner’s performance and financial accounts relating to its business with OrderJet and/or (8) any other use that may be prescribed in writing by OrderJet.
6.2.2. OrderJet’s terms and conditions relating to Devices shall apply to any Device provided by OrderJet to the Partner;
6.2.3. The Partner undertakes to use the Device in compliance with the instructions for use that may be issued by OrderJet and/or the manufacturer in this regard;
6.2.4. On the delivery of the Device by OrderJet to the Partner, the Partner will be required to acknowledge the receipt of the Device in writing and the cost of the Device will be charged to the Partner pursuant to the terms of the Enrollment Agreement and Branch Information Form;
6.2.5. OrderJet grants a limited, non-exclusive, non-transferable, royalty free license to the Partner for the use of the Device solely until the termination of this Agreement;
6.2.6. The Partner undertakes to and shall use the Device only for the purposes prescribed under this Agreement and that the Partner should not violate the Intellectual Property Rights of OrderJet or any other third party while using the Device at any point in time;
6.2.7. The Partner acknowledges and agrees that: (i) OrderJet is not the manufacturer of any Device provided (ii) OrderJet cannot provide any warranties or guarantees with respect to the quality or durability of the Device and (iii) it uses the Device at its own risk.
6.2.8. In the event that the Device ceases to function and the Partner is unable to access the Partner Application through any other means, the Partner will immediately inform OrderJet and OrderJet will disable the Partner on the OrderJet Platform until the Device is functional again.
- Charges, Payments, Subscriptions and Commissions
7.1. The Partner acknowledges and agrees that while OrderJet will use its reasonable efforts to ensure that the OrderJet Platform is not misused by Customers for the placement of wrong Orders, it is the ultimate responsibility of the Partner to determine whether an Order is wrong or not. In the event of a wrong Order, the Partner undertakes to report such a wrong Order to OrderJet through the Device or call OrderJet for OrderJet’s action and investigation.
7.2. OrderJet may perform a variety of marketing activities to promote the Partner and the Partner’s menu; provided, however, that all such marketing activities will be
determined in OrderJet’s sole and absolute discretion and the OrderJet Platform may be modified or updated, without notice and from time to time, to reflect any such changes.
7.3. The Partner acknowledges and agrees that the OrderJet Platform will provide the following payment mechanisms to Customers for the payment of the Order Value: (a) Cash ; (b) Electronic Payment Mechanism; and (c) Redemption of vouchers and/or discount promotion (if any) approved by OrderJet.
7.4. In the event that any of the Partner or its employees irreparably damages or loses the Device or any of its accessories during the subsistence of this Agreement, OrderJet shall replace the same and the Partner shall be charged for the cost of replacement.
7.5. The Partner shall pay to OrderJet the monthly subscription fees in a monthly or yearly basis based on the package chosen by Partner. Also, Partner shall pay to OrderJet a Commission Percentage for all Orders where it may apply.
7.6. OrderJet will settle Net Order Value owed to Partner in accordance with the payment terms specified on the Enrollment Agreement (“Payments”). Partner agrees that OrderJet shall be entitled to set-off any amounts Partner owes to OrderJet hereunder (including the Commission Percentage-If any- and any applicable Payment Gateway Fees) from the Payments. Partner will be responsible for any taxes or charges payable on the Goods including collecting, paying and reporting such taxes to the appropriate authorities and providing Customers with compliant Tax Invoices where required under local laws for the Goods.
7.7. Partner acknowledges and agrees that OrderJet will provide the Partner with a monthly statement within a period of 14 (fourteen) business days from the last day of each month setting forth all of the Orders during such month and any amounts due to OrderJet in respect of Orders (including the Commission Percentage-If any- and any applicable Payment Gateway Fees). Such statements will be sent to the Partner using the email address specified in the Enrollment Agreement.
7.8. The Parties acknowledge and agree that Order ratings are entirely under the control of Customers and the Partner’s accumulated average rating displayed on the OrderJet Platform is calculated using the ratings which are given by the Customer in respect of each Order which is placed by such Customer with the Partner on the OrderJet Platform.
7.10. The Partner acknowledges and agrees that OrderJet reserves the right to review and modify the foregoing Commission Percentage-if any- and Payment Gateway Fees periodically upon sending an email notice to the Partner and that OrderJet’s decision in this regard shall be final and binding on the Partner.
- Restricted Activities
8.1. The Partner must meet all of the following requirements when it receives an online payment Order:
8.1.1. Ensure that it does not receive any additional payment from a Customer (including but not limited to payment by cash) when payment has been made online by a Customer; and
8.1.2. Follow all special instructions contained on the Order receipt or as communicated by Service Operator.
8.2. The Partner agrees that it will treat all information concerning this Agreement and the Enrollment Agreement (including their respective terms), OrderJet and its Group, the OrderJet Platform and all information concerning Customers which has been provided to it pursuant to the terms of this Agreement as confidential information (“Confidential Information”) and will not, except as provided in this Agreement, disclose, use or permit the disclosure or use of such information to any third party. The Partner further agrees that a breach of this provision would cause OrderJet to suffer irreparable harm and damage that could not be adequately remedied by payment of monetary damages and therefore, in addition to monetary damages and other legal remedies, the Partner agrees that OrderJet will be entitled to obtain equitable and injunctive relief as may be necessary to restrain any threatened, continuing or further breach by the Partner. The restrictions referred to in this Clause will not apply to any Confidential Information to the extent that such information: (a) is already known to the Partner, (b) is in or comes into the public domain otherwise than as a result of any breach of this Agreement or (c) is required to be disclosed by law.
8.3. Partner shall Process any Personal Information received from OrderJet or any Customer in accordance with Applicable Law and only for the purposes of discharging its obligations under this Agreement. For the purposes of this Clause, the following definitions shall apply: (a) “Personal Information” means any information relating to an identified or identifiable person who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity, and (b) “Process” means to collect, hold, use, transfer, destroy and otherwise deal in any with Personal Information.
- Disclaimers; Limitation of Liability; Indemnity
THE ORDEJET PLATFORM AND THE PARTNER APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE.” ORDERJET AND ITS AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, ORDERJET AND ITS AFFILIATES MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE ORDERJET PLATFORM OR OF THE PARTNER APPLICATION OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE ORDERJET PLATFORM OR THE PARTNER APPLICATION, OR THAT THE ORDERJET PLATFORM OR PARTNER APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER ORDERJET NOR ITS AFFILIATES GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF CUSTOMERS. THE PARTNER AGREES THAT THE ENTIRE RISK ARISING OUT OF THE PARTNER USE OF THE ORDERJET PLATFORM AND PARTNER APPLICATION, AND ANY SERVICE OR GOOD REQUESTED OR PROVIDED IN CONNECTION THEREWITH, REMAINS SOLELY WITH THE PARTNER, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
9.2. LIMITATION OF LIABILITY
THE PARTNER UNDERSTANDS AND ACCEPTS THAT ORDERJET DOES NOT PROVIDE TRANSPORTATION, DELIVERY OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION OR GOODS CARRIER AND THAT ALL SUCH TRANSPORTATION, DELIVERY OR LOGISTICS SERVICES -IF ANY- ARE PROVIDED BY PARTNER OR AN INDEPENDENT THIRD-PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY ORDERJET OR ANY OF ITS AFFILIATES. ORDERJET’S LIABILITY FOR ANY LOSS SUFFERED BY THE PARTNER ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED (BD 1,000) (OR THE EQUIVALENT AMOUNT IN THE RELEVANT LOCAL CURRENCY).
THE PARTNER AGREES THAT ORDERJET HAS NO RESPONSIBILITY OR LIABILITY TO THE PARTNER RELATED TO ANY DELIVERY SERVICES PROVIDED BY THE PARTNER TO CUSTOMERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THAT ORDERJET HAS NO RESPONSIBILITY OR LIABILITY TO THE PARTNER FOR THE ACTS OR OMISSIONS OF ANY DELIVERY.
The Partner agrees to indemnify and hold OrderJet, its Affiliates and their officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees) arising out of or in connection with: (a) the Partner’s use of the OrderJet Platform and Partner Application and the sale of Goods and serving services obtained through the Partner’s use of the OrderJet Platform and the Partner Application; (b) the Partner’s breach or violation of this Agreement or (c) the Partner’s violation of the rights of any third party.
9.4. Indirect Damages
OrderJet will not be liable to the Partner for any indirect or consequential losses (including loss of profit, opportunity and goodwill).
- Exclusions from Limitation of Liability
Notwithstanding the foregoing, nothing in this Agreement shall exclude or limit either party’s liability to the other in relation to:
- death or personal injury caused by negligence or willful or reckless misconduct of that party;
- any fraud or fraudulent misrepresentation of that party; and/or
- any liability which cannot be lawfully excluded by that party.
- Choice of Law and Dispute Resolution
10.1 Choice of Law
This Agreement is governed by and construed in accordance with the laws of the jurisdiction in which OrderJet is incorporated, without giving effect to any conflict of law principles, except as may be otherwise provided in supplemental terms applicable to Partner’s region.
Partner agrees that any dispute, claim or controversy arising out of or relating to this Agreement or the Enrollment Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the OrderJet Platform or the Partner Application or the Services (collectively, “Disputes”) will be settled by binding arbitration between Partner and OrderJet, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. Partner acknowledges and agrees that Partner and OrderJet are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both Partner and OrderJet otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Arbitration” section and the “Arbitration Process and Rules” section will be deemed void. Except as provided in the preceding sentence, this “Arbitration” section and the “Arbitration Process and Rules” section will survive any termination of this Agreement. This “Arbitration” section and the “Arbitration Process and Rules” section applies to all Disputes between Partner and OrderJet and/or any of its Affiliates.
10.3 Arbitration Process and Rules.
Any Dispute shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). The ICC Rules’ Emergency Arbitrator provisions are excluded. The Dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the ICC Rules. The place of both mediation and arbitration shall be in the city in which the applicable Affiliate with which you have a Dispute has its registered office. The language of the mediation and/or arbitration shall be English, unless you do not speak English, in which case the mediation and/or arbitration shall be conducted in both English and your native language. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the International Chamber of Commerce, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless: (i) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
- Other Provisions
11.1 Upon Expiry or Termination
In the event that this Agreement expires or is terminated for any reason, Partner will no longer be entitled to access and/or use the OrderJet Platform and the Partner Application and Partner shall return all Confidential Information it has received from OrderJet hereunder.
11.2 Claims of Copyright Infringement
Claims of copyright infringement should be sent to OrderJet at firstname.lastname@example.org
OrderJet may give notice by means of a general notice on the OrderJet Platform, electronic mail to Partner’s email address in the Partner Account, or by written communication sent to Partner’s address as set forth in the Enrollment Agreement. The Partner may give notice to OrderJet by written communication to OrderJet’s email address at email@example.com for any matter and will give 30 calendar days’ written notice with respect to terminating its use of the OrderJet Platform and the Partner Application.
The Partner may not assign or transfer its rights under this Agreement in whole or in part without OrderJet’s prior written approval. OrderJet may assign and/or transfer its rights and obligations under this Agreement in whole or in part, including to: (a) a subsidiary or affiliate; (b) an acquirer of OrderJet’s equity, business or assets; or (c) a successor by merger.
No joint venture, partnership, employment or agency relationship exists between the Partner, OrderJet, its Affiliates or any Customer as a result of the contract between the Partner and OrderJet or use of the OrderJet Platform or the Partner Application. OrderJet and the Partner are and shall remain independent parties. Neither party shall have, or represent itself to have, any authority to bind the other party or act on its behalf.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the other provisions in this Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of this Agreement. The Enrollment Agreement shall constitute an integral part of this Agreement.
These Terms and Conditions, together with the Enrollment Agreement, constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter.