TERMS & CONDITIONS
QWK Convenience Private Limited, a private company incorporated and existing under the Companies Act, 2013 and having its office at Old No.9, New No.17, Seethammal Road,
Seethammal Colony, Alwarpet, Chennai – 600 018 (“Company”, “QWK” "We", "Us", "Our" and terms of similar meaning) operating with the application Qwk (“Platform”) to the user, viewer, end customer (“Customer(s)”) who register on the Platform to connect with Merchants registered with the Platform (“Merchant(s)”)(such end Customer and/or Merchant shall hereinafter be referred to as “You”, “Your” as applicable) subject to these terms and conditions of use as set out herein and as may be amended from time to time in the manner as set forth herein below ("Terms"). Please read these Terms carefully before using the Platform.
The Platform is a web and mobile based platform which facilitates End Customers to connect with Merchant(s) in the geographical vicinity of End Customer and/or at the delivery address that the End Customer chooses, to provide delivery of essentials including but not limited to food, groceries, pharmaceutical and healthcare products (“Products”) on such terms and conditions as may be agreed to between the End Customer and the Merchant. We are in the business of providing the following services through the Platform:
(collectively referred to as “Services”)
These Terms constitute a binding, legal agreement between You and the Company. In order to use the Platform and avail of the Services, You must agree to these Terms.
By accessing or using the Platform or by merely browsing the Platform or by using or receiving any Services supplied to You by QWK, You hereby expressly acknowledge and agree to be bound by these Terms, policies and guidelines incorporated by reference in these Terms and any future amendments and additions to these Terms as published from time to time on the Platform. If You do not agree with these Terms in their entirety, You are not entitled to use the Platform or avail the Services provided by Us.
By using the Platform, You represent and warrant that:
1. You are at least 18 years old;
2. You have the lawful authority and capacity to contract and be bound by these Terms;
3. If You are accepting these Terms on behalf of a company, limited liability partnership or other legal entity, You have the authority to bind such entity to these Terms and, in such event, “You” and “Your” as used in these Terms shall refer to such entity; and
4. You will comply with all applicable laws and regulations.
These Terms are subject to change at any time without notice. To make sure You are aware of any changes, please review these Terms periodically. Continued use of the Platform or Services after any such changes shall constitute Your consent to such changes.
A. IMPORTANT DISCLAIMERS
a. QWK does not in any manner endorse or guarantee the quality of the Products provided by any Merchant registered on our Platform.
b. The Customer(s) is solely responsible for and assumes all risk arising from his/her/its use of any such third party Merchant Products. The Customer(s) is responsible for understanding andcomplying with any agreement he/she/it may enter into with a Merchant with respect to Merchant Products accessed through or availed in connection with the Platform.
c. The Merchant is responsible for understanding and complying with any agreement entered into with aCustomer with respect to the Services accessed through or provided in connection with the Platform.
d. WE ARE NOT RESPONSIBLE FOR OR LIABLE IN ANY WAY FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS A RESULT OF YOUR DEALINGS WITH SUCH MERCHANTS INCLUDING BUT NOT LIMITED TO ANY LOSS OR DAMAGE ARISING DIRECTLY OR INDIRECTLY ON ACCOUNT OF LOSS OR DAMAGE WITH RESPECT TO MERCHANT PRODUCTS.
e. Your recourse in the event of any such claim with respect to any Merchant with respect to Merchant Products, including any third party content, is solely against the relevant Merchant. In no event will any agreement between You and any Merchant be binding on us or impose upon us any additional obligations, or any obligations inconsistent with these Terms.
f. QWK makes no warranties or representations about the accuracy or completeness of the content and data on the Platform or the Services' content or the content of any other websites linked to the Website, and assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content and materials, (b) personal injury or property damage, of any nature whatsoever, resulting from the Merchant’s access to and use of the Platform and the Services, (c) any unauthorized access to or use of QWK’s servers and/or any and all personal information and/or financial information stored therein, (d) any interruption or cessation of transmission to or from the website or otherwise with respect to the Services, (e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the website or the Companys services by any third party, and/or (f) any errors or omissions in any content and materials or for any loss or damage of any kind incurred as a result of the use of any content posted, transmitted, or otherwise made available.
g. Merchant acknowledges and agrees that QWK is a mere facilitator in relation to the logistics services whereby QWK facilitates logistics services by connecting logistics personnel with Merchant for delivery of order(s) from the store to the Customer and hence cannot be held liable for any illegal / unlawful activity of the logistics personnel.
h. The Merchant shall not hold QWK liable for any claims, raised by the Customer where the delay in handing over the order to the logistics personnel is solely attributable to the Merchant and its staff.
i. QWK shall not be held liable for any opinions, customer reviews or comments posted by any Customer on the Platform in respect of Merchant Products provided by the Merchant through the Platform.
If You register for a Customer Account or a Merchant Dashboard on the Platform, You agree to:
a. provide accurate, current and complete information as may be prompted by any registration forms on the Platform ("Registration Data");
b. maintain the security of Your password;
c. maintain and promptly update the Registration Data, and any other information You provide to QWK and to keep it accurate, current and complete;
d. accept all risks of unauthorized access to the Registration Data and any other information You provide to us. You are responsible for all activity on Your End-Customer Account or the Merchant Dashboard as the case maybe, and for any changes therein.
e. not authorize others to use Your Customer Account or the Merchant Dashboard as the case maybe.
f. You may not assign or otherwise transfer Your Customer Account or the Merchant Dashboard as the case maybe to any other person or entity.
g. QWK may suspend the Merchant’s account if the Merchant is found non-compliant with the Food Safety and Standards Act, 2006, Legal Metrology Act, 2009 and other rules, regulations, licenses, standards and guidelines issued thereunder from time to time.
a. EachMerchant registered with the Platform and the Company shall enter into a separate and individual agreement in writing either in a physical form or an electronic form (“FORM”).
b. The Customer (s) represents and warrants that (i)any credit information it supplies is true, accurate and complete in all respects and (ii) such Customer shall be responsible to be in compliance of applicable law including but not limited to payment of applicable taxes.
c. The Company may charge a convenience fee or levy other fees on the Customer for theServices availed by the Customer vide the Platform.
d. Any complaints or grievances in respect of the Products and any transaction involving refunds in respect of the same shall be solely between the Merchant and the Customer and under no circumstances shall the Company be liable to refund any amounts whatsoever.
A. PAYMENT PROCESS:
a. The payment options for the amount which is payable by the Customer upon placement of an order with the Merchant on the Platform for the Products (“Order Value”) shall include cash on delivery, electronic payment mechanisms and other forms of payment modes as deemed fit by QWK.
b. The Order Value shall be collected by QWK from the Customer and transferred to the Merchants bank account after the applicable deductions within 14 bank working days from date of payment of Order Value or as agreed upon by the Merchant in the Form.
c. Deductions from the Order Value shall include but not be limited to the following:
i. Commissions as applicable to the mode of payments
ii. Applicable taxes
iii. Any amount due to QWK
d. QWK shall provide monthly invoices within a period of 10 days from the preceding month for all the amounts payable by the Merchant to QWK and such invoices shall be sent to the email of the Merchant.
e. QWK reserves the right to change the fee/commission for the Services and information regarding such changes shall be disseminated through email or other means of communication, 7 days prior to such change(s).
f. Merchant agrees that all amounts payable to QWK under these Terms shall be exclusive of the applicable taxes and that all applicable taxes will be charged separately.
g. Merchant agrees and acknowledges that he will be responsible for all taxes, payments, fees, and any other liabilities dealing with taxes in connection with customer orders and the Merchant’s use of the Platform and Services.
h. QWK may charge and collect applicable taxes from Customers on behalf of the Merchant in accordance with instructions provided by the Merchant and/or applicable law;
i. The Merchant shall be solely responsible for verifying amounts collected, filing the appropriate tax returns, and remitting the proper amount to the appropriate tax authorities.
j. The Merchant hereby undertakes to indemnify, defend and hold harmless, QWK and its directors, officers, employees, representatives against any tax liability that may arise against QWK on account of the non-payment of taxes by the Merchant under these Terms.
k. QWK shall collect taxes at source against the Order Value excluding taxes, as required by applicable tax laws and shall remit such taxes to the respective Central Government and State Government/Union Territory. Merchant may be eligible to claim refund on the basis of tax returns filed by it with the relevant government/statutory/tax authorities. In the event of any discrepancy between the tax returns filed by Merchant and those filed by QWK, the tax returns filed by QWK shall have a precedence.
l. In the event Merchant does not receive the benefit of tax returns due to incorrect particulars provided by Merchant to QWK, Merchant acknowledges and agrees that QWK shall not be held.
D. ACCESS AND USE:
Your access and use of the Platformand Services is subject to the following representations and warranties:
a. You may only access the Platform or Services using authorized and lawful means;
b. QWK shall not be liable for any failure or default to provide access to the Platform or Services on account of any failure or delay by You to register with the Platform for such access;
c. Any configuration or set up of the Devices for access to the Platform and the Services shall be Your sole responsibility. “Device” means a device, usually electronic, that processes data according to a set of instructions, which may include workstations, personal computers, laptops, netbooks, personal digital assistants, tablets, and smartphones;
d. The Company reserves the right to prevent access should You be using the Platform, Service or Application with an incompatible or unauthorized Device;
f. You will not take any action that interferes with, degrades or adversely affects the Company and/or the Services and/or the Platform;
g. You will not use the Platform in a manner (i) that is prohibited by any law or regulation, or facilitates the violation of any law or regulation; or (ii) will disrupt a third parties’ similar use; (iii) violate or tamper with the security the Platform;
h. You will not use the Platform, or any portion thereof, to transmit, publish, post, upload, distribute or disseminate any inappropriate, harassing, abusive, defamatory, libellous, obscene, illegal or deceptive content;
i. You will ensure that the Platform is not used to upload, post, transmit, or otherwise make available any content that contains a virus or any other form of malicious code or data that is likely or intended to have an adverse impact on, or provide unauthorized access to, the Platform or any other software, hardware, services or data;
j. You will not attempt to gain unauthorised access to any accounts, computer systems or networks connected to the Platform, through hacking, or any other means, or obtain or attempt to obtain any materials or information through any means not intentionally made available to You;
k. You will not use the Platform to develop, or to assist anyone in developing a competitive product or service or for other competitive purposes;
l. You will refrain from taking any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to Platform or attempt to do so, or acquiesce, authorise or encourage any other party to do the same;
m. You shall be solely responsible for (i) procuring and maintaining Your network connections and telecommunications links from Your systems to Company’s data centres, and (ii) all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to Your network connections or telecommunications links or caused by the internet;
n. You acknowledge that from time to time, QWK may apply Upgrades (hereinafter defined) to the Platform, and that such Upgrades may result in changes the appearance and/or functionality of Platform. You may be required to install certain Upgrades or updates to the software in order to continue to access or use the Platform, or portions thereof. “Upgrades”means new versions of, and updates to, Platform whether for the purpose of fixing an error, bug or other issue in the Platform or enhancing the functionality of Platform.
E. MERCHANT OBLIGATIONS:
a. The Merchant warrant that the Products provided to the Customer through the Platform is in compliance with various applicable laws.
b. The Merchant shall ensure that all the details provided to QWK is accurate.
c. Merchant agrees to provide accurate bank account details to the e-mail id email@example.com which shall be used in the case of electronic fund transfer by QWK.
d. The Merchant warrants that the Products provided to the Customers through the Platform is of high quality and compliant with the required standards, free from defects.
e. The Merchant shall ensure that all information regarding the Product is accurately and clearly mentioned to the Customers on the Platform
f. The Merchant warrants not to discriminate while providing Products to Customers ordering via the Platform. No differential treatment shall be provided to Customer on the Platform compared to independent orders of the Merchant or via other service providers
g. The Merchants shall ensure that orders are promptly and accurately processed.
h. Merchants shall not reject any order transmitted by QWK. In the event the Merchant rejects an order, QWK can levy an amount upon the order value.
i. Merchant shall only use the platform to process order and not independently contact the customer. The Merchant can contract a Customer if an order cannot be processed as requested or to clarify the details of an order.
j. QWK shall not be liable in case of delay in handing over order to the logistics personnel by the Merchant.
k. Merchant shall promptly redress the Customer complaints in respect of the Products and shall be solely liable for the same.
l. Merchant acknowledges and agrees that QWK is a mere facilitator in relation to the logistics services whereby QWK facilitates logistics services by connecting logistics personnel with Merchant for delivery of order(s) from the store to the Customer and hence cannot be held liable for any illegal / unlawful activity of the logistics personnel
m. Merchant shall ensure that the orders are in accordance to the Customers requests and ensure that the Product is appropriately packed to avoid any damage during the transportation;
n. Merchant acknowledges and agrees that it shall furnish copies of applicable licenses, certificates and other details as required by law or as required by QWK from time to time, failing which QWK has the right to delist the Merchant from the Platform,
p. In the event the Merchant supplies incorrect or defective quality Products to the Customer or has not complied with the delivery instruction set forth in the order and QWK has been constrained to refund the order value to the Customer (“Refunded Order”), the Merchant agrees that the Merchant will not be paid for such Refunded Order and that if Merchant has already received the order value from QWK in respect of such order, QWK will have a right to deduct from the amount owed by QWK to the Merchant under these Terms.
q. Merchants may, from time to time offer various promotions to the Customers. In the event of promotional offers made, QWK shall transfer such discounted payments received from the Customers to the Merchants.
a. The Company expressly reserves all rights, title and interest in and to the Platform. It is acknowledged that all rights, title and interest in the Platform will remain the sole property of the Company;
b. You hereby acknowledge that any and all intellectual property rights (including but not limited to all trademark, copyright, patent, service marks, etc.) and other proprietary rights in and in relation to the Platform including without limitation any derivatives, improvements or modifications which ownership is directly attributable to the Company (expressly excluding any information which belongs to an Merchant, Customer, other third party) shall vest wholly completely and fully with the Company throughout the territory of the world and You shall have no right or claim to such intellectual property in any manner whatsoever.
a. By accepting these Terms and using the Platform, You agree that You shall defend, indemnify and hold the Company, its directors, shareholders, officers and other representatives harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorney’s fees and costs) arising out of or in connection with: (i) Your violation or breach of these Terms or any applicable law or regulation; (ii) Your violation of any rights of any third party, including Merchant connected through the Platform; (iii) Your use or misuse of the Platform or Service; or (iv) any and all third-party claims based upon the content of any communications transmitted by You.
b. QWK shall not be under any liability for loss of actual or anticipated profits, loss of goodwill, loss of business, loss of revenue or of the use of money, loss of contracts, loss of data and/or undertaking the restoration of data, fraudulent orders, any special, indirect or consequential loss, and such liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of any doubt, this clause shall apply whether such damage or loss is direct, indirect, consequential or otherwise. Although QWK will use its best endeavours to ensure that the unintentional operational errors do not occur, QWK cannot provide any warranty or guarantee in this regard.
H. SPECIFIC TERMS WITH RESPECT TO PURCHASE OF PHARMACEUTICAL PRODUCTS
a. Customers can use the Platform for purchase of various medicines and pharmaceutical products from the Merchant that requires a valid medical prescription issued by a medical expert/ doctor to be provided to a registered Merchant for the purpose of dispensing such medicines and pharmaceutical products (“Prescription Drugs”), offered for sale on the Platform. In order to purchase Prescription Drugs from the Merchant through the Platform, Customer is required to upload a scanned copy of the valid prescription on the Platform. The order would not be processed by the Merchant until a copy of a valid prescription is uploaded on the Platform, which shall be in turn shared with the Merchant. The Merchant will verify the prescription uploaded by Customer and in case of the Merchant observes any discrepancy in the prescription uploaded by Customer, the Merchant may reject the order.
b. The Customer shall provide the physical copy of the prescription if asked for at the time of delivery to the delivery agent with regard to healthcare services and the delivery agent shall verify the same and confirm such verification on the Platform
c. Customer understands and agrees that QWK’s Platform is merely a technology platform and the medicines and pharmaceutical products are sold by the Merchant. QWK shall not be held responsible in any manner for any error or omission or act committed on part of the Merchant.
d. Customer agrees and undertakes that he/she will not repeat the use of prescription for which drugs have already been dispensed. In case a Customer is found repeating the use of prescription, the Order will be cancelled immediately. In any event, QWK shall not be responsible for any adverse effects or harm caused to Customer.
I. SPECIFIC TERMS WITH RESPECT TO UTILITY PAYMENTS:
a. Utility payments offered by QWK under Bharat Bill Payments Services shall be enabled through its partner bank, ICICI Bank Ltd.
J. DISCLAIMER OF WARRANTIES
a. QWK hereby explicitly and specifically disclaims any and all representations, warranties or guarantees, whether written, oral, expressed or implied including, without limiting the generality of the foregoing, any warranty of merchantability, quality or fitness.
b. QWK does not warrant that the Platform: (i) will perform error-free or uninterrupted, or that QWK will correct all or any errors or defects (ii) will operate in combination with Your Devices, or with any other hardware, software, systems or data not provided by QWK, (iii) will meet Your requirements, specifications or expectations.
c. You further acknowledge that QWK does not control the transfer of data over communications facilities, including the internet, and that the Platform may be subject to limitations, delays, and other problems inherent in the use of such communications facilities; We are not responsible for any (i) delays, delivery failures, or other damages as a result; (ii) issues related to the performance, operation or security of the Platform that arise from the Your content or third party content.
d. QWK does not make any representation or warranty regarding the reliability, accuracy, completeness, correctness, or usefulness of third party content, and disclaims all liabilities arising from or related to third party content.
e. QWK warrants that it will undertake its obligations with reasonable skill and care.
f. Merchant warrants to procure and keep valid during the subsistence of these Terms, all requisite licenses and/or registrations thereunder and provide copy of such licenses and/or registrations to QWK prior to availing the Services;
g. Merchant warrants that it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law;
h. Merchant warrants that if the Merchant ceases to do business, closes operations for a considerable term or is otherwise unable to offer services to Customers it will inform QWK promptly.
K. CUSTOMER DATA:
a. The Merchant agrees that the Merchant will only use the all identifiable information about Customer provided by the Customer via the Platform, including, but not limited to, Customer’s name, addresses, email addresses, phone numbers, and Customer preferences (“Customer Data”) in fulfilling the applicable Customer order and in complying with the Merchant’s obligations in the Form and/or the Terms, and the Merchant agrees that Customer Data will not be used to enhance any file or list of the Merchant or any third party.
b. The Merchant represents, warrants, and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose whatsoever. The Merchant agrees it shall not use the Customer Data for sending any unsolicited marketing message, announcements and for feedback purposes, and shall be solely liable to ensure that any third party with whom Customer Data is shared complies with the restrictions set forth herein.
L. LIMITATION OF LIABILITY
a. Notwithstanding anything contained elsewhere in these Terms, in no event shall QWK be liable to You or anyone claiming under You for the cost or loss including but not limited to any special, exemplary, consequential, incidental, punitive or indirect damages on any theory of liability, whether in contract, tort (including withoutlimitation negligence), strict liability or otherwise. The limitations set forth in this section shall apply even if You are advised of the possibility of such damage.
b. In no event or circumstance will the Company be under any liability to make good any loss whether by way of any monetary payment or otherwise.
c. QWK may connect the Customer to the Merchant for the purposes of providing Products. We will not assess the suitability, legality or ability of any Merchant and Customer expressly waives and releases QWK from any and all any liability, claims or damages arising from or in any way related to the Merchant.
d. QWK will not be a party to disputes, negotiations of disputes including but not limited to payments between the Customer and any Merchant.
e. Responsibility for the decisions You make regarding availing the Products through a Merchant connected through the Platform, (with all its implications) rests solely with You.
f. The quality of the Merchant Products scheduled through the use of the Platform is entirely the responsibility of the Merchant who ultimately provides such Products to the Customer and that the Customer’s use of the Platform shall be at his/her/its own risk and costs.
g. QWK shall in no event be liable for any failure by the Customer to make payments to the Merchant for the provision of the Products by the Merchant to the Customer.
h. QWK or anyone else involved in administering, distributing or providing the Platform further explicitly disclaims any and all liability for any mistakes, omissions, interruptions, deletion of files or email, errors, defects, viruses computer viruses or other harmful, disabling computer code, computer instructions, circuitry or other technological means whose purpose is to disrupt, damage or interfere with any computer and communications facilities or equipment ("Harmful Code") that may be transferred to Your Devices when accessing the Platform. By way of clarification, Harmful Code shall include, without limitation, any code containing viruses, Trojan horses, worms or like destructive code or code that was intentionally written to self-replicate. You are advised to obtain and use appropriate anti-virus and security software and to take all other appropriate measures to safeguard the integrity of Your Devices.
a. To the extent that anything in or associated with the Platform is in conflict or inconsistent with these Terms, these Terms shall take precedence and prevail. Our failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. Our rights under these Terms shall survive any discontinuance of the access or use of the Platform.
b. No joint venture, partnership, employment, or agency relationship exists between any Merchant and the Company as a result of these Terms or use of the Platform. The Merchant shall not be permitted to enter into any contract (whether oral or in writing) which may impose any direct or indirect obligation or liability on the Company in respect of any third party including the Customer.
c. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law.
N. GOVERNING LAW
a. These Terms shall be governed and construed under the laws of India and the courts of Chennai, Tamil Nadu shall have exclusive jurisdiction.
O. TERM AND TERMINATION:
a. The arrangement between parties shall commence from the execution date of the Form and unless terminated earlier as per these Terms, shall continue indefinitely.
b. Either Party may terminate the arrangement, with or without cause, at any time upon ten (10) days prior written notice to the other party.
c. QWK may terminate the arrangement or suspend the services of the Merchant with immediate effect if:
i. Merchant breaches any of the Terms or applicable laws,
ii. Identification of incorrect or fraudulent or suspicious or unlawful activity on Merchants account,
iii. Upon insolvency of the Merchant;
d. The Merchant hereby agrees and acknowledges that QWK shall have the right to withhold payments that may be due to the Merchant from QWK in case of termination/ suspension of services.
e. A material breach of the Terms can lead to termination of the arrangement by notice in writing to the other party, in case the material breach is not remedied within 15 days after written notice has been served to the defaulting party.
a. Any deviation from fulfilling obligations towards QWK or the Customers should promptly be reported by writing an email to firstname.lastname@example.org from the merchant’s registered email address or from any other email address attaching the registered documents for verification of authenticity of the email.
Q. NO ASSIGNMENT:
The Merchant must not assign, transfer, charge or otherwise encumber or sub-contract this Form and/or the Terms or any right, benefit or interest under it.