These terms and conditions forms an integral part of the Restaurant Information Form mentioned in Order Form and constitute a legally binding Agreement made between you, whether personally or on behalf of an entity (the "Restaurant"), and Times Internet Limited for its business division- Inresto ("Inresto"), wherein the Restaurant agrees to avail the services of Inresto.
Restaurant, as detailed further in Order Form;
(“Inresto” and “Restaurant” are hereinafter individually referred to as a “Party” and collectively as “Parties”.)
A. INRESTO is the ISO/IEC 27001: 2013 certified service provider of certain Software solutions and web software’s.
B. Restaurant interalia is engaged in the business of running food and beverages services at its premises for its various customers.
C. Restaurant is desirous of availing various Services as specified in Order form and based upon the representation made by the Restaurant, Inresto has agreed to provide the Services to the Restaurant on the terms and conditions more specifically provided in this Agreement.
NOW THEREFORE, the Parties hereto agree as under:
Inresto is a cloud-based software which enables Restaurant to manage their back-end and front-end operations specifically described in Order Form
2.1. In consideration of the relevant Services, Restaurant shall be liable to pay the commission as specified in Order Form and such fee shall be exclusive of any indirect taxes as per applicable law.
2.2. Restaurant authorizes Inresto to deduct commission for using service as identified in Order from Inresto, if applicable.
2.3. Inresto will raise monthly invoice of commission with detailed MIS every month.
2.4. Restaurant shall be the custodian of all the original “Invoice” and shall share with Inresto within 24 hours of notice given by Inresto.
2.5. Restaurant shall be solely responsible towards the Goods and Services Tax (GST) and/or other taxes/levis applicable on the Invoice Value. The Restaurant shall timely deposit the said Goods and Services Tax (GST) and/or other Taxes/levis with the appropriate Authority.
2.6. The Restaurant shall cooperate with Inresto in submitting the relevant copies of receipts/invoice/returns/any other documents towards deposit of aforementioned Goods and Services Tax (GST) and/or Other taxes/levis. Inresto can demand the copy of bill/invoice for the end-user for whom the booking been done via Inresto and copies of any Returns / Challans / receipts / invoices can be demanded by Inresto.
2.7. Restaurant can deposit the TDS on commission invoice and Inresto will remit the same amount after receiving the TDS certificate.
2.8. Further, Restaurant shall bear the cost of Chargeback that is levied/deducted/adjusted by the Payment Gateway Service Provider for any Invoice in question. For the purposes of this clause “Chargeback” shall mean any amount deducted by the Payment Gateway Service Provider for the respective Invoice in question; Chargeback shall be only in case if Customer pays excess of the invoice amount, double amount paid or paid for wrong restaurant then the transaction charges and amount will be deducted as charge back.
2.9. In case of a “dispute”, “repudiation” of any service to Customer, or a request for refund by any Customer for genuine reason Inresto shall be entitled to cancel and refuse to make any payments to Restaurant. If payments for any such transaction has been transferred to the Restaurant’s Account the same will either be debited from the next scheduled payment or the Restaurant shall on receipt of such claim from Inresto undertakes forthwith to pay to Inresto, the amount of the refund/ charge back/ repudiation.
2.10. Notwithstanding anything to the contrary, Inresto may, at its sole discretion, withhold Services if there are any outstanding payments to be made by the Restaurant, without any liability.
2.11. In addition to aforesaid right, Inresto may instead choose to either (a) offset any amounts including tax that are payable by Restaurant to Inresto against any other payments, Inresto may make to Restaurant, (b) Inresto can raise the invoice for amounts (including taxes) due to us, in which case you will pay the invoiced amounts and taxes upon receipt of the invoice; or (c) seek payment by any other lawful means.
2.12. Consideration for Whatsapp and SMS services (if applicable)
2.13. In consideration of the Whatsapp and SMS Services, Restaurant shall be liable to pay the monthly cost and Top up amount as specified in Order Form. Restaurant shall be responsible for payment of invoice within 7 days from the receipt of invoice raised by Inresto.
Subject to the terms and conditions of this Agreement, including timely payment of Service fee as detailed in Order Form and other amounts payable as per the terms of this Agreement by the Restaurant to Inresto, Inresto grants to the Restaurant a non-exclusive, non-transferable, non-assignable, revocable, limited license to install and use the Inresto exclusively at the Restaurant location agreed in Order Form, eﬀective from the installation date and valid during the Term.
Each Party and its representatives hereby undertake, affirms and agrees that:
4.1. It is in good standing and that it has full authority to enter into this Agreement and has been duly and validly executed and delivered, and is a legal, valid, binding and enforceable obligation in accordance with the terms hereof and has obtained the necessary approvals under the applicable law, to perform its obligations hereunder according to the terms hereof.
4.2. Restaurant shall take adequate precautions not to breach the privacy of the Customers (defined hereinafter) during performance of its obligations herein. For the purpose of the Agreement, Customer are the end user of the software.
5.1. Restaurant shall not, directly or indirectly, use (or permit, facilitate or enable the use) of the Inresto at any location/branch/outlet (including any managed, outsourced or franchised operations) other than the location agreed upon, except with the prior written consent of the INRESTO and subject to execution of any additional documentation and payment of applicable costs and fees, as may be required by the INRESTO in this regard. In such a case, unless expressly agreed otherwise (in writing), the Restaurant will be solely responsible for ensuring that all terms and conditions of this Agreement (as well as any additional terms and conditions as may be agreed between the Parties in this connection) are complied with in spirit and practice, as it is intended to between the Parties to this Agreement, in respect of use of the Inresto such other persons or in such other location.
5.2. Inresto does not come bundled with any operating system, database, report writer, ﬁrewall, email, anti-virus, and/or any other third-party software or programmes of any nature whatsoever.
5.3. Restaurant shall: (a) notify Inresto immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Inresto immediately and use reasonable efforts to stop any unauthorized use of the Inresto that is known or suspected by Restaurant and (c) not provide false identity information to gain access to or use the Inresto.
5.4. Restaurant shall be solely responsible for all its acts and omissions while using the Inresto. Inresto shall not be liable for any loss of data or functionality caused directly or indirectly by the act of Restaurant.
5.5. Restaurant will not hold Inresto responsible for any issues or errors originating from items (including those facilitated through Inresto) such as computer hardware and computer peripherals, electrical equipment, cabling, operating system, database administration, client network including bandwidth, email services, support software and consumable whether because of manufacturing defects or improper installation and poor maintenance of same or otherwise.
5.6. Restaurant will not hold Inresto responsible for any problems originating out of malware, adware, virus attacks, worms and denial of service attacks on the central and unit level application, database, mail servers and any such problems will be the sole responsibility of the Restaurant.
5.7. Notwithstanding anything to the contrary the Restaurant has all the relevant consents and permissions from end user data for , Inresto to have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the Inresto and related systems and technologies (including, without limitation, information concerning end user data and data derived therefrom), and Inresto will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the services and other offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.
5.8. Restaurant agrees that Inresto does not warrant that the services including Inresto will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Inresto. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6.1. Restaurant agree to use the Inresto exclusively for authorized and legal purposes, consistent with all applicable laws, regulations, and the rights of others, including privacy laws such as the privacy rules of and regulations under the (Indian) Information Technology (Reasonable Security Practices & Procedures & Sensitive Personal Data or Information) Rules, 2011 under the (Indian) Information Technology Act, 2000 (“IT Act”).
6.2. The Restaurant shall be solely responsible for obtaining all relevant consents and permissions from its end user and specify the use of the same by the Restaurant as per applicable laws.
6.3. Restaurant will not (a) use the Inresto to transmit, publish, or distribute any material or information that infringes, violates, or misappropriates the intellectual property rights of any third party; (b) that contains a computer virus or other code, files, or programs designed to disrupt or interfere with the functioning of the Inresto; or (c) that is or that may reasonably be perceived as being harmful, threatening, offensive, obscene, or otherwise objectionable. In addition, you will not (d) attempt to interfere with or disrupt the Inresto or any underlying software; (e) attempt to gain access to any systems or networks that connect thereto except for the express purpose of using the Inresto for its intended use; (f) attempt to scan or probe, hack, defeat, or otherwise compromise any security measures of the Inresto or any systems or networks operated by INRESTO; (g) allow access to the Inresto by third parties; (h) copy, modify, create a derivative work of, or distribute any portion of the Inresto or software; (i) rent, lease, sublicense, resell, or provide access to the Inresto on a time-share or service bureau basis; or (k) attempt to reverse engineer, decompile, or otherwise analyze the computer code of the Inresto, including the scripts / logic contained in the web pages downloaded to your web browser, and the URLs transmitted to and from your web browser.
7.1. The Agreement shall be valid for the ‘Term’ as stated in Order Form, which shall commence from the Effective Date, and can be further extended by giving written notice to the other Party.
7.2. Parties may, at its sole discretion, terminate this Agreement with 30 (thirty) days’ notice to the other party anytime during the Term of this Agreement for its convenience.
7.3. InResto may terminate this Agreement forthwith, if the Restaurant fails to notify Inresto for any of the following (a) change in ownership or constitution of the entity or/and (b) change of bank account details and the above-mentioned clause will be treated as material breach.
7.4. In addition, either Party may terminate this Agreement with immediate notice for material breach of the terms of this Agreement by the other Party or for any statutory reasons; in case of a breach by a Party capable of being cured, the other Party may terminate this Agreement with immediate notice if the former Party fails to cure the breach within 15 (fifteen) days’ from the date the latter Party notifies the breach. However, the accrued obligations of the Parties prior to the termination will continue to be fulfilled post termination.
8.1. The Restaurant acknowledges and accepts that at all times all rights and ownership over any intellectual property along with any improvements, modiﬁcations, customizations made thereto, from time to time, will vest exclusively with the INRESTO. This Agreement does not transfer from INRESTO to Restaurant any ownership of underlying technology, or any right, title and interest in software including intellectual property rights and such rights shall remain solely with Inresto. Restaurant agrees that it will not directly or indirectly, reverse engineer, recompile, disassemble or otherwise attempt to derive source code or other trade secrets from Inresto to create any derivative works nor will it try to make extra copies of the software to use at any other business unit or other location (or permit any such action by any other Person) other than through the system in which was installed by the Inresto at the Restaurant Location. The Restaurant shall also not sell or attempt to sell or use the software for any other purpose including advertisement, education, whether for a commercial or non-commercial purpose.
8.2. The Restaurant agrees that if, in the course of performing the service(s) envisaged under this Agreement, it is necessary for Inresto to access Restaurant equipment/hardware and use Restaurant technology company shall in such cases be permitted and shall have a non-exclusive, royalty-free license, during the Term of this Agreement, to use the Restaurant technology solely for the purposes of delivering the service(s) to Restaurant. Inresto shall have no right to use the Restaurant equipment/hardware and Restaurant technology for any purpose other than providing the service(s) under this Agreement.
8.3. Inresto does not assign to Restaurant any right, title and interest, including any and all intellectual property rights shall always only and always remain with Inresto exclusively.
9.1. For the purpose of this Agreement, Confidential information (“Confidential Information”) shall mean and include a) all tangible and intangible information including pricing, customer/ clients lists, technical data/information or know-how, including, but not limited to, that which relates to research, products, services, business plans, customers, markets, software (including source and object code), graphic user-interface, computer programs, algorithms, hardware configuration, developments, inventions, processes, policies, designs, drawings, engineering, marketing or finances- whether such information is in writing or shared orally during or before the Term of this Agreement by Inresto or its employees, agents, representatives, directors, officers, etc. and also includes without limitation any information pertaining to Inresto’s associates, affiliates, group companies; (b) the fact that discussions and negotiations are taking place concerning the proposed business relationship and the status of those discussions and negotiations; and (c) the terms of this Agreement or any agreement entered into between the Parties and the discussions, negotiations and proposals related thereto.
9.2. Confidential Information shall not include any information that Parties can prove is a) lawfully available at the time of disclosure without any obligation to keep the same confidential; b) or becomes, through no fault of the disclosing Party, known or available to the public; c) independently developed by Restaurant without use or reference to such Confidential Information prior to ; or d) rightfully disclosed to Restaurant by a third party without any restrictions on disclosure.
9.3. Restaurant will hold all Confidential Information in trust and confidence for Inresto and shall not disclose or use the same, except as set forth in this Agreement or as authorized by Inresto in writing and will not disclose to any person, firm or enterprise, or use (other than to exercise its rights or perform its obligations under this Agreement) any part of the Confidential Information. Restaurant will treat Confidential Information with the same degree of care that it treats its own confidential or proprietary information, but in no event using less than a reasonable standard of care.
Restaurant undertakes to fully indemnify and shall keep indemnified and hold harmless, Inresto, its parent, affiliates, associates and group entities, and their respective directors, officers, employees and representatives from and against any and all claims (including third party claims), demands, damages, losses, liabilities, costs and expenses,obligations, actions, suits, judgments, awards, fines, penalties, taxes, fees, settlements and proceedings, fines, costs, expenses, royalties, deficiencies, damages, charges, attorney’s fees, punishments, consequences and other liabilities arising out of or as a consequence of:- (a) breach of any obligations, representations, warranties (b) failure to comply with any applicable Laws; (c) any third party claims or infringement claims arising due to provision of Restaurant services and/ or deliverables.
11.1. Except for any liability which cannot by law be excluded or limited, neither Party shall be liable for indirect, incidental, special, punitive or consequential damages, including without limitation, damages for loss of profits ,loss of goodwill or unauthorized access to information incurred by the other party arising out of, or relating to the use of the services and, whether framed as a breach of warranty, in tort, contract, or otherwise even if a Party has been advised of the possibility of such damages.
11.2. Notwithstanding anything stated under this Agreement, the aggregate liability of Inresto to the Restaurant from any case whatsoever shall not in any event exceed the sum equivalent to five thousand rupees.
INRESTO will make all reasonable efforts to provide uninterrupted services subject to down time and regular maintenance. However, notwithstanding anything in this Agreement Inresto disclaim all warranties, express or implied, written or oral, including but not limited to warranties of merchantability and fitness for a particular purpose. Restaurant acknowledges that Inresto, services may not be uninterrupted or error free or free from any virus or other malicious, destructive or corrupting code, program or macro.
13.1. Entire Agreement - This Agreement constitutes the entire agreement between Inresto and Restaurant pertaining to the subject matter hereof and supersedes in their entirety all written or oral agreements between the Parties.
13.2. Restaurant shall also permit the authorized representatives of Inresto to carry out physical inspections during normal business hours of the documents and records at the place(s) of business or other facilities of Inresto to verify if the Restaurant is in compliance with its obligations hereunder upon not less than five (5) days with prior written notice, and in a manner that does not unreasonably interfere with the Restaurant’s operations. If Restaurant refuses such inspection or provides inaccurate, untrue, or incomplete information, or fails to comply with the terms and conditions of this Agreement, Inresto reserves the right to suspend or terminate this Agreement forthwith. Inresto shall be entitled to conduct audits on the Restaurants whether by its internal or external auditors or by agents appointed to act on its behalf and Restaurants shall comply with such audit requirement as may be framed for the purpose of such audit.
13.3. Relationship between Parties - The Parties to this Agreement are independent contractors and nothing in this Agreement shall make them joint ventures, partners, employees, agents or other representatives of the other Party hereto. Neither Party shall make any representation that suggests otherwise.
13.4. Severability - If any part of this Agreement shall be held by a court of competent jurisdiction to be unlawful or otherwise unenforceable, the remainder of this Agreement shall remain in full force and effect to the maximum extent possible.
13.5. Variations of Agreement - The Parties to this Agreement reserves the right at all times to vary or amend these terms and conditions or to introduce new terms and conditions. Any such variations or amendment or introduction will become effective and binding only if mutually agreed between the Parties in writing.
13.6. Assignment: Rights and obligations arising out of or under this Agreement are not assignable by Restaurant without prior written consent of the Inresto. Inresto may assign the rights and obligations in its sole discretion.
13.7. Waiver - All rights and remedies hereunder shall be cumulative and may be exercised singularly or concurrently. If any legal action is brought to enforce any obligations hereunder, the prevailing Party shall be entitled to receive its attorney’s, fees, court costs and other collection expenses, in addition to any other relief it may receive. If either Party fails to perform its obligations under any provision of this Agreement or the other Party does not enforce such provision, failure to enforce on that occasion shall not prevent enforcement on later occasions.
13.8. Survival of Provisions - Notwithstanding any other provision to the contrary herein, terms which by their nature survive termination or expiration of this Agreement especially payments and/or any revenue sharing between both Parties shall make both Parties liable and they will be bound accordingly.
13.9. Liability Upon Expiration - Neither Party shall be obligated to extend or renew this Agreement.
13.10. Jurisdiction -This Agreement shall be interpreted, construed and enforced in all respects in accordance with the laws of India without regard to any principles of conflicts of laws thereof. Any disputes arising out or in relation to this Agreement shall be subject to the exclusive jurisdiction of Courts at New Delhi.
13.11. Headings and Sub Headings - The headings and sub headings in this Agreement are for convenience only and do not affect the meaning of the relative section / clause.
a) Any notice, direction or instruction given under this Agreement shall be in writing and delivered by hand delivery, registered post acknowledgement due and any reputed courier to the abovementioned addresses of the Parties or to such other address as a Party notifies to other in writing, from time to time. Notice will be deemed given (i) In the case of hand delivery on delivery; (ii) In case of registered post acknowledgement due in 2 calendar days after posting; (iii) In case of Courier in 3 calendar days after posting. Provided that in case of the date of receipt not being a business day, notice shall be deemed to have been received by the receiving Party on the next business day.
b) Nothing in the aforesaid clauses shall affect any communication given by way of the internet or other electronic medium as otherwise provided in this Agreement for the purpose of rendering the services.
13.13. Counterparts–This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, is an original, but all the counterparts taken together shall constitute one document.
13.14. This Agreement may be executed in one or more counterparts, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement. The facsimile, email or other electronically delivered signatures of the parties shall be deemed to constitute original signatures, and facsimile or electronic copies hereof shall be deemed to constitute duplicate originals.