Train Dhaba and the Vendor shall collectively be referred to as "Parties and individually as "Party, as the case may be.
WHEREAS Train Dhaba acts as an independent contractor of the Vendor who, through this agreement, grants Train Dhaba full authority to conclude and negotiate contracts with customers in the name and for the account of the Vendor, as well as for the offers of the vendor, made via Train Dhaba's online platform www.traindhaba.com in (the "Website") and a mobile application (where applicable). It is understood that Train Dhaba does not act on behalf of the customers.
WHEREAS Train Dhaba, as part of the Train Dhaba online platform, provides an online marketplace for a number of vendors, via which customers can order prepared food items directly from the vendors. Thereto, Train Dhaba receives the order of the customer online via the Train Dhaba platform, transmits it via a printer/ tablet / Vendor app installed by Train Dhaba or, in exceptional circumstances, by phone, to the a vendor and accepts the payment of the customer for this orders online. The payment is accepted by Train Dhaba in the name and for the account of the Vendor and transmitted to the Vendor, after deducting the fees already agreed upon by the Parties as per the Vendor Registration form.
WHEREAS in addition to the online marketplace, the Parties shall also agree on who shall deliver the food from the Vendor to the Customer once an order is placed via the Train Dhaba platform.
WHEREAS all contracts that are concluded by Train Dhaba in its function as agent on behalf of the Vendor with customers via Train Dhaba's online marketplace will be based on the General Terms and Conditions with the customers as found on the Website.
WHEREAS these terms and conditions (“Terms") together with the Vendor Registration Form, the agreement ("Agreement") under which Train Dhaba provides online food ordering to the Vendor, and, where applicable, delivery services to the Customer (together referred to an "Services") as detailed respectively on the Vendor Registration Form in the territory of India (the "Territory”)
1 Train Dhaba Rights and Obligations
In order to perform the Services, Train Dhaba shall:
have full right to remove or amend certain items from the Menu Information at its sole discretion, provided that no new or untrue information shall be made available, and shall not be required to inform Vendor of such changes;
have the right to influence the prices for the food items offered by the vendor on a case-by-case basis by offering discountsat Train Dhaba's sole cost, whereas Train Dhaba will not increase the prices provided by the Vendor;
not be obliged to, but may, provide and/or install one or more of the following: a printer; mobile/phone, tablet, vendor app at the Vendor;
in the event of Train Dhaba performing the delivery services:
- effect such deliveries in accordance with the delivery time indicated on the Website;
- ensure that the delivery time stated on the Website complies with the delivery time actually required;
- ensure that delivery personnel shall be at the Vendor premises to collect the order at the time stated when the order was transmitted to the Vendor.
- ensure that all orders will be delivered in a state that a customer would expect for that type of food, provided that Vendor complies with the obligation in clause 2.1.6;
Inform the Vendor in writing of any changes implemented to the procedures by Train Dhaba at least 2 days prior to the intended change taking place, and the vendor shall as such comply with at such change/s
have the right to alter, at its sole discretion, any services related to delivery, including delivery areas and operational timing, without prior notice; have the right to refuse the on boarding of customers in the event of customer verification measures being implemented by Train Dhaba (such as SMS verification of the customer when first registering on the platform) and Train Dhaba is not satisfied of the outcome of the verification. Additionally, Train Dhaba has the right to block customers from ordering in the event of a customer abusing any promotions or in any other case of fraud-like attempts by the customer on the account of Train Dhaba of the Vendor. Train Dhaba shall not require any consent from Vendor in order to affect the provisions of this clause.
2 Vendor Rights and Obligations
The Vendor shall ensure that it makes personnel available to receive the appropriate training from Train Dhaba in order for the Vendor to operate the system provided by Train Dhaba with ease;
provide Train Dhaba with all of the menu information as agreed on with Train Dhaba, including menu items; ingredients, minimum order values; promotions, discounts opening hours: times of delivery and areas of delivery of ( if applicable) ("Menu Information”) to be made available for display on the Website. Should the Vendor wish to change any of the Menu Information, it shall inform Train Dhaba in writing of any such suggested changes at least 2 business days before the intended change(s) take(s) place, together with an updated copy of the latest menu reflecting such changes. Such changes shall not occur more than once per month, barring exceptional circumstances;
provide Train Dhaba with a clear acceptance or rejection of all orders provided by Train Dhaba, no later than 2 minutes from the time the order was made available to the Vendor;
provide Train Dhaba, its employees, agents, consultants and subcontractors, with access to the Vendor's premises and other facilities as reasonably required by Train Dhaba to perform the Services.
comply with all local Laws and Regulations and obtain and maintain all necessary licenses, permissions and consents (including, without limitation, any food and beverage and/or health and safety legislation and/or regulations) which may be required in order to perform its obligations under this Agreement;
upon accepting an order, prepare and fulfill such order without delay, pack it in accordance with Train Dhaba standards and requirements as communicated from time to time, and at no less than the common standard of the Vendor, and transfer to the delivery person, as applicable together with the required cutlery;
in the event of Vendor Delivery:
- provide Train Dhaba with a realistic estimated delivery time at the same time as
providing the Menu Information;
- deliver to the customer all accepted orders within the time indicated at acceptance by Vendor;
- Immediately inform Train Dhaba of any delay in delivering the order according to the estimated delivery time;
- deliver the order in a state that a customer would expect for that type of food, with the appropriate packaging; AND
- Inform Train Dhaba about any cancelled, fake or any non-fulfilled orders within 48 hours from acceptance of the order.
in exceptional case of the vendor providing Train Dhaba with a rejection as per clause 2.1.3, the Vendor provides the reason no later than 2 mins from order be solely responsible and liable for any and all customer queries, claims and/or complaints in respect of the contents and quality of the food and orders and any consequential effects thereof;
ensure that it has available at all times sufficient capacity (including staff, food items and equipment) to process all orders received through Train Dhaba in accordance with the average delivery time provided to the customers; immediately inform Train Dhaba of any menu items that are not available at any given time and shall do so by accessing the Vendor App or the backend if available to Vendor, or by phone, if the Vendor App or backend access is not possible;
ensure that all portions provided to its indirect customers availing of Train Dhaba services shall be of the same size and quality as per the portions provided by the Vendor to its direct customers;
ensure that the prices, and minimum order values, offered to customers by Vendor, and set by Train Dhaba are consistently identical to the prices offered to customers by the Vendor when placing orders by phone, website, mobile app or any other platform which is operated by the Vendor. In particular, if the Vendor wishes to offer any lower prices through any promotions or discounts for orders received by phone, website, mobile app or any other platform which it operates, it shall inform Train Dhaba at least 7 days in advance. The Vendor shall clearly explain the conditions of the promotions or discounts and Train Dhaba shall have the right to provide the Vendor's promotions or discounts on its platform; and
shall perform its obligations under this agreement at all times in competent, professional and business like manner, within established industry standards, practices and principles and within the time deadlines set forth herein.
3 Penalties for Breach of Obligations
Vendor specifically acknowledges that it has read, understood and agrees with the provisions of clause 2 and also agrees that the application of the provisions of clause 1 shall be suspended until notification of applicability by Train Dhaba. Train Dhaba shall have the sole right to determine when the provisions of clause 3 shall apply, provided that Vendor is given a minimum of 7 days written notice.
In the event of the Vendor rejecting an order without justifiable reason in breach of the provisions of clause 2, the Vendor shall be liable to pay Train Dhaba the Agency Fee that would have been due on such rejected
order by way of contractual penalty. Provided that no penalty shall be due to Train Dhaba by the Vendor if the breach arose as a fault of Train Dhaba or due to a Force Majeure event.
Train Dhaba shall have the right to temporarily suspend the Vendor from the Website, without penalty, if;
the Vendor has failed to pay any Train Dhaba invoices that have become due; OR
in its reasonable opinion, the Vendor is in breach of any terms of this Agreement or may be negatively affecting Train Dhaba's business.
For the avoidance of doubt, any suspension shall not result in the termination of this Agreement, the provisions of which shall remain fully applicable.
5. Code of Conduct
Vendor will comply with the following Code of Conduct:
Vendor may not engage in any action or practice in violation of the laws or regulation of India. This includes, but is not limited to, laws and regulations related to labor, health and safety, and the environment
Child, indentured, involuntary, or prison labor must not be used or supported.
Workers may not be exposed to unreasonably hazardous, unsafe, or unhealthy conditions.
Workers at all times must be treated fairly, with dignity and respect.
Vendor may not engage in any conduct likely, intending, or appearing to improperly influence ay Train Dhaba Representative/s in the performance of their job responsibilities.
Vendor must refrain from engaging in any conduct that may appear improper or may result in a conflict of interest when viewed from Train Dhaba's point of view.
Vendor will not offer or provide money or anything else of value to any agent or representative of any government or government agency in order to obtain or retain business.
Vendor will act with reasonable diligence to ensure that any of its contractors, subcontractors, labor providers, agents, agencies, associations, distributors, partner organizations, suppliers, affiliated companies or subsidiaries, who are involved in business with Train Dhaba, also comply with this Code of Conduct.
Vendor will allow a reputable third-party auditor selected by Train Dhaba to audit Vendor's compliance with this Code of Conduct.
6. Indemnification from Third Party Claims
Vendor will, at its expense, defend any types of third-party claims brought against Train Dhaba, its directors, officers, agents (collectively, “Indemnitees”):
any claim that, if true, would constitute a breach of this Agreement by the Vendor, its employees, agents or representatives; any claim related to injury to or death of any person or damage to any property arising out of or related to the Vendor obligations arising out of this Agreement, or
any claim that otherwise arises from the negligence, acts, or failures to act, of Vendor, its employees, agents or representatives
Vendor will indemnify and hold harmless the Indemnities from any costs, losses, claims, damages and fees (including reasonable legal fees) incurred by any of them that are attributable to any such claim.
- Fees, Payment and Collection of Funds
The Vendor grants Train Dhaba authority to receive any funds in the name, and for the account, of the Vendor paid by the
customers, whether by online means or in cash.
In the event of cash payment by the customer at delivery, the Party making the delivery shall be responsible for collecting the cash payment, and reconciling with the other Party in accordance with the provisions of clause 7.
In the event of online payments, Train Dhaba shall collect money and reconcile in accordance with the provisions of clause 7
The Parties agree and accept that the Agency Fees will be calculated on total order value (as defined in Clause 7.8) and payable in the amount agreed to on the Vendor Registration Form and that no other fees or charges shall apply between the Parties or towards the customers, except as provided for in this Agreement. Vendor specifically accepts that, if applicable Train Dhaba may set- off the Agency Fee against the Restaurant Revenue. Any other changes, if mutually agreed, will be adjusted from weekly payments.
Train Dhaba's payment partner, or Train Dhaba, as the case may be, shall transfer the Transfer Amounts to the Vendor's bank account listed on the Vendor Registration Form, within 15 business days of acceptance of the Order Statement by the Vendor.
Saving the provisions of clause 3.1, in addition to the above mentioned invoice, Train Dhaba shall also issue the Vendor with an outline of penalties due by Vendor to Train Dhaba and/or Train Dhaba to Vendor (“Notification of Penalty”).
The Vendor shall have the right to appeal the Order Statement and Notification of Penalty in accordance with the below: Vendor shall object in writing within 7 business days of the issuing date of the relevant Order Statement or Notification of Penalty and shall clearly state all the reasons for the
appeal, including any supporting documentation;
Train Dhaba shall review the objection within 5 business days and;
- if agreed with, shall adjust the Order Statement or Notification of Penalty accordingly;
- if Train Dhaba disagrees with the Vendor, it shall inform Vendor of such and the Parties will attempt in good faith to resolve any dispute or claim arising out of or in relation to this Agreement through negotiations between a director of each of the Parties with authority to settle the relevant dispute.
If the dispute cannot be settled amicably within 14 days of receipt of the appeal will entitle either Party to apply the provisions of clause 26.2.
7.8 Total Order Value will be Restaurant Revenue which would mean gross amount of food items plus container charges plus Vendor Delivery Fee (if applicable) plus service fee (if applicable) plus any difference paid by the customer to reach the minimum order value (if applicable) minus vendor discounts minus vendor vouchers minus taxes collected from customers
- Commencement of Services
The Vendor shall only be listed on the Website after the receipt of all information requested by Train Dhaba, including, but not limited to the Menu Information; a logo and approved images. Train Dhaba shall inform the Vendor, in writing, of the starting date of the Services (“Commencement Date"), which notification shall be annexed to this Agreement.
- Marketing Materials and Intellectual Property The Vendor agrees that its name, address, a brief slogan and one or more images of the Vendor, including any logos or Insignia, may be published on the Website, mobile
application, Train Dhaba partner and affiliate platforms, so that Train Dhaba can be identified as an agent of the Vendor on such online platforms.
The Vendor furthermore permits Train Dhaba, at Train Dhaba's cost, to advertise the Vendor on the Website, mobile application, Facebook, Google and any other social media or relevant offline and online marketing channels and specifically authorizes Train Dhaba’s unlimited use to its intellectual property, including its logo, in doing so.
The Vendor, where practicable, is to display and distribute official Train Dhaba marketing materials such as, inter alia, business cards of Train Dhaba, and links to the Website, on a variety of online and offline tools, such as the Vendor website (if available) and any social media availed platform by Vendor, via a certificate picture and an "order now" button. Train Dhaba shall provide such material or images to produce such material, and Vendor shall not produce any marketing materials including reference to Train Dhaba, without the consent of Train Dhaba. The Vendor shall not bear any cost in respect of these marketing materials.
Train Dhaba may provide Vendor with offline marketing materials, such as stickers, and Vendor obliges itself to display such offline marketing materials as instructed by Train Dhaba.
All intellectual property rights in the marketing materials mentioned in clauses
9.3 and 9.4, and otherwise arising out of the Services shall remain the exclusive property of Train Dhaba.
It is hereby clarified that Vendor does not have any rights whatsoever to use or avail of any Intellectual Property rights of Train Dhaba, including any domains or similar domain names.
It is agreed that neither Party shall obtain any other rights to the Intellectual Property of the other Party except as catered for in these Terms.
- Partnering Platforms
Train Dhaba may display the Menu Information on any other platform owned by, operated by, or affiliated with Train Dhaba, and the terms of this Agreement apply for such platforms as well.
The Vendor represents, warrants and undertakes that the use by Train Dhaba of the name, logo and/or image of the Vendor on the Website and/or other marketing materials in accordance with clause 9 of these Terms shall not infringe the intellectual property rights of any third party.
During the Term, the Vendor shall obtain and maintain adequate Insurance at all times to cover any potential liability that it may incur under this Agreement.
A party (Receiving Party") shall keep in strict confidence all technical or commercial know- how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party ("Disclosing Party"), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party's business, its products and services which the receiving party may obtain. The Receiving Party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the Receiving Party's obligations under this Agreement, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to this Agreement. The Receiving Party may also disclose such of the Disclosing Party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 8 shall survive termination of this Agreement.
14. No Partnership
Nothing in this Agreement is intended to, or shall be deemed to establish any corporate partnership or joint venture between the Parties
Train Dhaba shall have the right to amend any section of this Agreement, provided that it shall inform Vendor of such amendments in writing by sending the full copy of the updated Terms and any changes being made to any section of the Vendor Registration Form, together with the effective date of such amendments, which shall not be shorter than fourteen days (14) days from date of notification.
In the event of Vendor disagreeing with such amendments he shall have the right to terminate this Agreement in accordance with the provisions of clause 20.1(a).
It is specifically agreed that all amendments shall be effective between the Parties with effect from the date notified by Train Dhaba in accordance with clause 14.1, without the need for any additional signatures or documentation, unless objected to in accordance with clause 14.2.
- Force Majeure
For the purposes of this Agreement, "Force Majeure Event” means an event beyond the reasonable control of either party including but not limited to acts of God; war; not; civil commotion or terrorist action.
Neither Party shall be liable to the other Party as a direct result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event.
If a Force Majeure Event prevents either Party from performing Its obligations under this Agreement for more than four weeks, ether Party shall, without limiting its other nights
or remedies, have the right to terminate this Agreement immediately by giving written notice to the other Party.
- Third Parties A person who is not a party to this Agreement shall not have any rights to enforce its terms
All notices under this Agreement shall be in writing, addressed to the agreed contact person/address as per this Agreement, and be deemed duly given: On the same day when delivered, If delivered by hand during normal
business hours of the recipient;
On the same day when sent, if transmitted by fax or e mail to the contact person on the Vendor Registration Form or any approved substitute thereof, and a confirmation of receipt or delivery is provided;
On the third business day following mailing, if sent by post.
Train Dhaba may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.
The Vendor shall not, without the prior written consent of TrainDhaba, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement.
A waiver of any right under this Agreement or law is only effective if it is in writing and shall not be deemed to
be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
- Term and Termination
This Agreement shall commence on the Commencement Date and will continue for an indefinite period, unless terminated earlier in accordance with this clause 20.1. This Agreement may be terminated: (a) by either Party for convenience upon giving the other Party not less than 5 days prior written notice (b) with immediate effect upon the provision of written notice by either party in the event of material breach of this Agreement by the other party; or (c) at any time by mutual written agreement between the Parties.
Train Dhaba shall have the right to terminate this Agreement, with immediate effect and without any liability, in the event of a breach of section 2.1.13 where Vendor has failed to remedy the breach within a maximum period of 2 business days from notification.
Upon termination of this Agreement for whatsoever reason:
Train Dhaba shall remove the Vendor from the Website and mobile application;
the Vendor is obliged to immediately return all Train Dhaba property in its possession, including in particular the assets loaned by Train Dhaba;
the Vendor must immediately remove any reference to Train
Dhaba and/ or any of Train Dhaba's intellectual property from its premises, website and/or marketing materials;
the accrued rights, remedies, obligations and liabilities of theparties as at expiry or termination shall be unaffected, including the right to claim damages in respect ofany breach of this Agreement which existed at or before the date of termination or expiry; and
clauses which expressly or by implication survive termination shall continue in full force andeffect.
Limitation of Liability
Nothing in this Agreement shall limit or exclude either Party's liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors
Subject to clause 21.1:
Neither Party shall be liable to the other Party, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss or damages arising under or in connection with this Agreement; and
Train Dhaba's total liability to the vendor in respect of all other losses arising under or in connection with this Agreement, whether incontract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Agency Fees paid in the preceding year at the time of the event giving rise to such liability.
This clause shall survive termination of this Agreement.
The Vendor guarantees that the prices offered to customers and set by Train Dhaba are consistently identical to the prices offered to customers by the Vendor when placing orders by phone, website, mobile app or any other platform which is operated by the Vendor. In particular, the Vendor shall not offer any lower prices through any promotions or discounts. If the Vendor wishes to offer any lower prices, promotions or discounts, the Vendor shall inform Train Dhaba atleast 7 days in advance The Vendor shall clearly explain the conditions of the promotions or discounts Train Dhaba has the right to provide the Vendor's promotions or discounts on its platform.
Penalties for Breach of Price Obligations
In the event of a breach of section 21 above, Train Dhaba may request the Vendor to remedy the breach within a maximum period of 2 business days. Should the Vendor fail to remedy such breach within this specified period, Train Dhaba has the right to terminate this Agreement with immediate effect and without any liability.
If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable, If such modification is not possible, the relevant provision or part- provision shall be deemed deleted. Any modification to or deletion of a provision or part provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
Governing Law and Jurisdiction
This Agreement, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non- contractual disputes or claims), shall be governed by, and construed accordance with the laws of India.
Each Party agrees that any dispute arising out this Agreement shall be subject to the non-exclusive jurisdiction of the courts of India who shall settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non- contractual disputes or claims). The courts of Vijayawada (Andhra Pradesh) shall have exclusive jurisdiction in connection with this agreement.
Performance of this Agreement shall continue during arbitration proceedings or any other dispute resolution mechanism pursuant to Clause 4.8. No payment due or payable by the Vendor, or amount to be transferred by Train Dhaba shall be with held on account of a pending Court dispute or other dispute resolution mechanism except to the extent that such payment is the subject of such dispute.