These terms and conditions (“Terms”) form part of the Food Merchant Enrolment Form for Cafeteria Management Services along with any Schedule(s) entered into between the Parties (“Form”) and constitute a legally binding agreement made between you, whether personally or on behalf of an entity (the "Food Merchant"), and TongueStun Food Network Private Limited and its affiliates (collectively, "TongueStun"), regarding provision of Cafeteria Management Services by the Food Merchant to the Customers (as defined below) whether by use of TongueStun Platform (as defined below) or otherwise.
“Agreement” means these Terms read together with the Form and the Schedule(s) entered into between the Parties from time to time.
"Asset Handover Form" means the form shared by TongueStun, which includes details of the assets provided by TongueStun to the Food Merchant and annexed to the Form.
“Cafeteria” means the premises to which access has been provided by TongueStun Clients to TongueStun wherein Food Merchant shall provide Cafeteria Management Services in accordance with the terms of the Agreement.
"Calendar Month" means a month as named in the English calendar.
"Fees" means the amount payable by the Food Merchant to TongueStun, being a % of Net Sales as set out in the Form.
"Customer" means users who place Orders through the Platform or otherwise.
"Customer Application" means the proprietary online website and/or mobile based Order placement application of TongueStun available on the Platform, which enables the Customers to (a) place an Order with the Food Merchant for the purpose of availing Cafeteria Management Services; and (b) track the status of the Order placed by such Customer with the Food Merchant; and (c) facilitates a provision of payment by the Customer towards the Cafeteria Management Services availed from the Food Merchant.
"Electronic Payment Mechanism" means the online and mobile based payment mechanisms including the third party payment gateways, credit card/debit card/net banking transfer and/or e-wallets and/ or TongueStun credits that are available on the Platform for the purposes of facilitating the payment of the Order Value by the Customer.
"Execution Date" means the date of execution of Form.
"Form" means the Food Merchant Enrolment Form for Cafeteria Management Services executed by the Food Merchant.
"Information" means the information set out and provided along with the Form and includes any information which is supplied by the Food Merchant to TongueStun under these Terms including without limitation, the Menu, the price lists underlying the Menu, opening hours of the cafeteria to be operated by the Food Merchant, rates at which taxes are charged by the Food Merchant to the Customer, specific information the Food Merchant is under an obligation to supply to TongueStun (a) immediately on the Execution Date; or (b) within 1 (one) day from any change in such information.
"Menu" means any document or page, whether online or otherwise, which lists out the Cafeteria Management Services offered for sale by the Food Merchant to the Customer, on the Platform.
"Merchant Application" means the TongueStun developed online Order management application pre-loaded in the Tablet and/ or TongueStun Device which provides Food Merchant the ability to (a) receive an Order for the Cafeteria Management Services; (b) allows the Food Merchant to accept or reject the Order within stipulated time; and (c) provide updates on the Customers Order and its status.
Food Merchant "Net Order Value" means Order Value received, less the Fees and any other additional amount, charges etc. that are due to TongueStun from the Food Merchant under these Terms or the Form.
"Net Sales" means the gross amount charged by the Food Merchant to any Customer that is attributable to any Order placed by the Customer, less all: (a) applicable taxes, and (b) discounts being offered by the Food Merchant on the TongueStun Platform, (if any);
"One Time Sign–Up Fee" means a one-time non-refundable amount set out in the Form, payable by the Food Merchant signing up the Form for providing Cafeteria Management Services.
“Optional Services" means the optional services offered to the Food Merchant by TongueStun from time to time.
"Order" means the placement of an order by the Customer with the Food Merchant for the purchase of Cafeteria Management Services whether or not via the Platform.
"Order Value" means the amount which is payable by the Customer upon placement of an Order with the Food Merchant for the Cafeteria Management Services.
"Parties" means TongueStun and the Food Merchant.
“Party” means either TongueStun or Food Merchant.
"Payment Mechanism Fee" means a fee as more specifically set out in the Form;
"Platform" means the Website and Customer Application owned by TongueStun.
"Pre-Packed Goods" means the food and beverages items packaged in such a manner that the contents cannot be changed without tampering it and which is ready for sale to the Customer and as may be defined under the Food Safety and Standards Act, 2006 from time to time.
"Base Kitchen" means a commercial establishment(s) for which the Food Merchant is executing the Form, and wherein the food and beverage items are prepared and/or stored for sale to the Customer.
"Food Merchant" means the entity/ individual being the legal owner / operator of the Base Kitchen as mentioned in the Form.
"Cafeteria Management Services" means the food and beverages items, listed in the Menu from time to time, sold by the Food Merchant, listed and advertised by the Food Merchant either on the Platform or at the Cafeteria.
“Schedule” means a schedule entered into between the Parties containing the details of the arrangement with respect to Cafeteria Management Services and TongueStun Services.
"Service Operator" means the TongueStun operated centralized system used for receiving Orders from Customers through the Customer Application and transmitting those to the Food Merchant.
“TongueStun Client” means the customers of TongueStun who shall provide access to the Cafeteria to TongueStun for the purpose of availing certain services agreed between the TongueStun Client and TongueStun.
"TongueStun Services" means the following services offered by TongueStun to the Food Merchant, on and from the Effective Date, for the provision of Cafeteria Management Services by the Food Merchant to the Customers:
“Supported Order” means an Order wherein any assistance is provided by TongueStun to the Food Merchant, which shall include but not be limited to: (a) Food Merchant support in case (i) the Order is delayed and not delivered within the time assured by the Food Merchant; or (ii) items missing from the Order; or (iii) the Food Merchant fails to deliver the Order to the Customer; or (iv) the Base Kitchen has provided poor quality Cafeteria Management Services to the Customer.
"Tablet" means an electronic Order placement Tablet device preloaded with the TongueStun Application.
"Website" means www.tonguestun.com (including the webpages contained or hyperlinked therein and owned or controlled by TongueStun), and such other media or media channels, devices, mobile applications, software, or technologies as TongueStun may choose from time to time.
"TongueStun Device" means any device loaded with the TongueStun Application provided to Food Merchant pursuant to these Terms.
TongueStun will (a) list Food Merchant’s menu and the price list on the Platform; and (b) transfer to the Food Merchant, the amounts received from the Customers in accordance with agreed Terms set out herein.
TongueStun will display on the Platform, on best effort basis, all necessary information provided by the Food Merchant. However, TongueStun is not under any obligation to display any information until the Food Merchant provides all required information and such information is in compliance with TongueStun’s policies and guidelines.
TongueStun will transmit the Orders placed by the Customer with the Food Merchants as per below:
TongueStun Application: TongueStun will redress the Customers and the Food Merchant’s complaints in respect of the functioning of the Platform and/or the Tablet or TongueStun Device (as the case may be)
For the avoidance of doubt it is hereby expressly clarified that TongueStun is only responsible for providing (i) a Platform to the Food Merchant to list, offer and sell the Cafeteria Management Services to the Customers and that TongueStun will not be responsible or liable for (i) the quality of the Cafeteria Management Services listed and advertised on the Platform; and/or (ii) the processing of the Orders which have been placed by the Customers with the Food Merchant on the Platform; and/or (iii) any delay in preparation of the Order by Food Merchant.
TongueStun may suspend the Food Merchant’s account if the Food Merchant is found non-compliant with the Food Safety and Standards Act, 2006 and the rules, regulations, licenses, standards and guidelines issued thereunder from time to time.
TongueStun shall provide the Food Merchant with a web dashboard in the event the Food Merchant has a designated device to access such web dashboard, high-speed internet connection and speakers.
TongueStun shall be responsible to perform such other obligations as set forth in the Schedule(s).
Food Merchant shall comply with the rules, regulations and policies applicable to Food Merchant during the course of performing its obligations hereunder ("Applicable Policies”), including without limitation, the Applicable Policies of TongueStun and/or TongueStun Client.
Food Merchant shall procure and keep valid during the subsistence of the Agreement, all requisite licenses and/or registrations thereunder and provide copy of such licenses and/or registrations to TongueStun prior to providing the Cafeteria Management Services.
Food Merchant will not discriminate while providing Cafeteria Management Services to Customers and in servicing Orders received from Customer. Food Merchant will not provide any preferential treatment to Customers ordering independently from the Food Merchant, or via other service providers (i.e. Customers ordering without using the Platform).
Food Merchant shall ensure that all mandatory information pertaining to taxes, levies, and charges applicable on the Order(s) are clearly visible to the Customers on their invoice as per the applicable laws.
Food Merchant will ensure that the Information provided to TongueStun is current and accurate, including but not limited to the Food Merchant name, address, contact telephone number, email, manager/contact person details, opening hours, menus, price lists, taxes, service addresses, and other relevant information.
Food Merchant shall process and execute the Order(s) promptly.
The Food Merchant shall be obligated to turn off “Accepting Orders” feature on its online ordering mechanism whenever the Food Merchant is unable to provide Cafeteria Management Services to the Customer.
Food Merchant shall inform TongueStun about any change or modification made to the Order by the Customer, directly with the Food Merchant.
While providing Cafeteria Management Services, Food Merchant shall ensure only trained personnel undertake provision of such services and the safety of the food and beverages provided pursuant to the said services is not compromised at any time until the Order is received by the Customer. The Food Merchant agrees to indemnify TongueStun for any claims that may arise on account of Orders undertaken by the Food Merchant.
The Food Merchant warrants that the food and beverages provided to Customers under the Cafeteria Management Services are:
Where the Food Merchant avails any Optional Services, the Food Merchant will additionally be liable to abide with the terms and conditions of such Optional Services or any other terms and conditions pertaining to the Optional Services, communicated by TongueStun from time to time.
Contact a Customer if an Order cannot be processed as requested or to clarify the details of an Order, if required, post confirmation of the Order.
Food Merchant shall only accept Orders for food, non-alcoholic beverages and accompaniment (if made available) mutually agreed between the Parties and reject any other items.
To promptly redress the Customer complaints which have been referred by TongueStun to the Food Merchant in respect of the (a) quality, quantity and/or taste of the food and beverage; (b) failure on part of the Food Merchant to comply with the special requests / instructions of the Customers where such requests and/or instructions have been clearly communicated by the Customer at the time of the placement of Order.
The Food Merchant shall remove any/all Menu items unavailable with the Food Merchant.
The Food Merchant acknowledges and agrees that it will be solely responsible for delivering the Cafeteria Management Services to the Customers for Orders placed by the Customers with the Food Merchant.
For the avoidance of doubt it is hereby expressly clarified that TongueStun is not responsible or liable to the Customer for the (a) quality of the Cafeteria Management Services advertised on the Platform; and/or (b) processing of the Order; (c) fulfilment of the Orders that have been placed by the Customers with the Food Merchant; and (d) misconduct / illegal activity of the personnel of Food Merchant. The Food Merchant acknowledges and agrees that it will be solely responsible and liable to the Customer for the (a) quality of the Cafeteria Management Services listed and advertised on the Platform; and/or (b) processing of the Order and (c) timely fulfilment of the Orders that have been placed by the Customers.
The Food Merchant shall ensure that the Order(s) are (a) in accordance with the specifications of the Order placed by the Customer; and (b) appropriately packed and adequately fastened to avoid any spillage during fulfilment.
Food Merchant shall (a) undertake adequate police verification and background checks for its personnel and maintain records of the same; (b) ensure that its personnel are not intoxicated; (c) ensure that its personnel don’t misbehave with the Customer; (d) make timely payment of all applicable statutory dues; (e) maintain adequate insurances; and (f) provide proper training to its personnel to ensure that its personnel fulfil the Order efficiently without any spillage or delay.
Food Merchant shall ensure, while fulfilling Orders, that it does not commingle the Order received from one Customer with orders received from other Customers. Food Merchant Under no circumstances shall the Food Merchant use third party branding in the packaging material used for the Order, if any.
Food Merchant shall address and resolve all Customer complaints received by TongueStun relating to the efficacy, quality or any other issues relating to the Cafeteria Management Services expeditiously within timelines prescribed by the Ministry of Consumer Affairs from time to time. Further the Food Merchant shall be solely liable and bound to take action on complaints raised by Customer pertaining to the Order(s).
Food Merchant shall be solely responsible and liable in the instances of Customer complaints for reasons attributable to Food Merchant, including but not limited to (a) Food Merchant not complying with the Order placed by the Customer, (b) has provided poor quality Cafeteria Management Services to the Customer, or (c) any food and beverage item are missing from the Order, or (d) severe delay in preparation and/or fulfilment of Order, or (e) food and beverage item being damaged or wasted on account of packaging or spillage. Further, TongueStun shall not be liable to compensate the Food Merchant for the same and TongueStun shall deal with such instances on a case to cases basis, and the decision of TongueStun shall be final and binding on the Food Merchant.
Food Merchant acknowledges and agrees that Food Merchant shall be required to furnish a copy of its PAN Card, TAN, GSTIN, FSSAI license and registration certificates and other details required as per law or for provision of Cafeteria Management Services, as maybe requisitioned by TongueStun from time to time failing which, TongueStun reserves the right to delist the Food Merchant from the Platform and / or curtail its access from the Platform.
Food Merchant acknowledges and agrees that it shall not make any independent calls to the Customer and asks the Customer to make payments of amounts greater than what was agreed by the Customer at the time of placing the Order through the Platform.
Food Merchant except required for the fulfilment of Order shall not use the Customer data for sending any unsolicited marketing message, announcements.
Food Merchant shall not engage in any fraudulent activity or misuse any benefits extended by TongueStun to Customers and shall be liable to TongueStun in the event TongueStun becomes aware of any fraudulent activity undertaken by the Food Merchant.
Food Merchant shall ensure to update the TongueStun Application as and when the latest version of the application is available.
Food Merchant acknowledges and agrees that any asset, such as POS machines/ credit card/debit card swipe machines, bags etc., provided by it to its personnel, whether with or without the consent of TongueStun, shall be at its sole risk. Food Merchant agrees and undertakes that it shall be solely liable if any such asset provided to its personnel is damaged, stolen or not returned by its personnel, and TongueStun shall not be liable to indemnify the Food Merchant for the same and / or bear cost of the asset.
Food Merchant shall be responsible to perform such other obligations as set forth in the Schedule(s).
Food Merchant grants to TongueStun an unrestricted, non-exclusive, royalty-free licence in respect of all content and information provided to TongueStun by the Food Merchant (including without limitation the Food Merchant’s name, establishment name, logo, menu items, marketing & branding materials and price list for the menu item) for the purposes of inclusion on the Platform and as may be otherwise required under the Form. This includes, but is not limited to, (a) use of the Food Merchant’s name in the context of Google adwords to support advertising and promotional campaigns to promote online ordering on internet which may be undertaken by TongueStun (b) preparation of derivative works of, or incorporate into other works, all or any portion of the marketing materials which will be made by TongueStun for the purposes of its business. Any material the Food Merchant transmits or submits to TongueStun either through the Platform or otherwise ("Material") shall be considered and may be treated by TongueStun as non-confidential, subject to TongueStun’s obligations under relevant data protection legislation. The Food Merchant also grants to TongueStun a royalty-free, perpetual, irrevocable, non-exclusive license to use, copy, modify, adapt, translate, publish and distribute world-wide any Material for the purposes of providing services under these Terms or to or for the purposes of advertising and promotion of the Platform. The Food Merchant agrees that all information provided to TongueStun that is published, may be relied upon and viewed by Customers to enable them to make decisions and constitute a legally binding contract.
Each Party shall retain their respective rights, title and interest in their patents, copyrights, trademarks, proprietary marks and/or licensed software, service marks, trade secrets and any other form of intellectual property ("Intellectual Property Rights"). All Intellectual Property Rights developed, conceived, created and/or generated pursuant to the Agreement (“Generated IPR”) shall be owned by TongueStun, unless agreed otherwise in writing. Food Merchant hereby irrevocable waives all rights and claims in the Generated IPR, including without limitation, rights of title, license, interest etc.
The Parties further agree that neither Party shall acquire any right whatsoever, through use in commerce or otherwise, in the Intellectual Property Rights of the other Party on account of the limited permitted use as per the terms of this Agreement. All such rights pertaining to use and title of all Intellectual Property Rights of TongueStun and Service provider shall exclusively vest with TongueStun and Food Merchant respectively.
No Party may, under any circumstances, seek to register any trademark, business name, business processes, inventions, company name, domain name using or incorporating the Intellectual Property of the other Party and each Party acknowledges that upon expiry or termination of this agreement, it shall have no right whatsoever in connection with the Intellectual Property Rights of the other Party.
TongueStun will display on the Platform the Menu and price list for all of its Food Merchants. The Food Merchant agrees that TongueStun reserves the right to modify and delete certain items from the Food Merchant’s menu list at its sole discretion, listed on the Platform, to ensure compliance with Food Safety and Standards Act, 2006, requirements or applicable law in the relevant State or Territory and all other applicable legislation, regulations or standards. TongueStun shall endeavour to update price lists within 48 hours of being notified of changes (in writing) by a Food Merchant. Where the Food Merchant has a unilateral right to access Food Merchant admin panel or dashboard (subject to TongueStun’s written consent in this regard) to edit and update the Information which is displayed on the Platform by TongueStun, the Food Merchant should ensure that it (i) keeps such information true, accurate and updated at all times; and (ii) complies with TongueStun’s internal terms and conditions of use in this regard.
Food Merchant shall provide TongueStun with a separate list of all Pre-Packed Goods which form part of the Food Merchant’s Menu list, to be listed on the Platform, in the format acceptable to TongueStun.
The Food Merchant must not display or offer to Customers different menu prices for Orders placed offline versus Orders placed through the TongueStun Platform.
The Food Merchant acknowledges and agrees that while TongueStun will use its best endeavours to ensure that the Platform is not misused by the Customers for the placement of erroneous/fraudulent Orders, it is the ultimate responsibility of the Food Merchant to determine whether an Order is erroneous or not. In the event of an erroneous Order, the Food Merchant undertakes to report such an erroneous Order to TongueStun through the Tablet or TongueStun Device or call TongueStun for TongueStun’s action and investigation. In this regard, TongueStun provides a built-in feature(s) in the TongueStun Application and web dashboard access that will allow the Food Merchant to report erroneous Orders.
TongueStun may perform a variety of marketing activities to promote the Food Merchant and the Food Merchant's Menu; provided, however, that all such marketing activities will be determined in TongueStun’s sole and absolute discretion and the Platform may be modified or updated, without notice and from time to time, to reflect any such changes.
In the event TongueStun provides the Food Merchant with the Tablet or TongueStun Device, the Tablet or TongueStun Device shall be used by the Food Merchant solely for the purpose of (a) confirming, cancelling and accessing the Order; (b) reviewing the particulars underlying the Orders; (c) updating the Order status; (d) communicating with TongueStun; (e) reporting erroneous Orders; (f) availing TongueStun Services and/or (g) any other use that may be prescribed in writing by TongueStun in this regard.
The Food Merchant undertakes to use the Tablet or TongueStun Device in compliance with the instructions for use that may be issued by TongueStun from time to time in this regard. In particular, the Food Merchant shall not remove the preloaded SIM Card from the Tablet or TongueStun Device and/or make/receive calls, text messages etc. using the SIM Card under any circumstances whatsoever. It is clarified that the SIM Card has been issued to TongueStun (in TongueStun’s name) by a third party telecom service provider and that TongueStun has in turn transferred to the Food Merchant a limited right to use this SIM Card, for the duration specified in the Form, exclusively for the purposes of confirming or declining the placement of Orders.
The Food Merchant acknowledges and agrees that any unauthorized use or misuse of the SIM Card by the Food Merchant (i) shall be considered as a material breach of these Terms; and/or (ii) will render the Food Merchant liable for action under the relevant applicable laws.
On the delivery of the Tablet or TongueStun Device by TongueStun to the TongueStun Device, the Food Merchant will be required to acknowledge the receipt of the Tablet or TongueStun Device in writing by executing an Asset Handover Form in the format annexed to the Form.
The Food Merchant acknowledges and agrees that these Terms envisage the grant of a limited, non-exclusive, non-transferable, royalty free license from TongueStun to the Food Merchant for the use of the Tablet or TongueStun Device together with the TongueStun Application embedded in the Tablet or TongueStun Device (only during the subsistence of these Terms). The Food Merchant undertakes to and shall use the TongueStun Application and the Tablet or TongueStun Device only for the purposes prescribed under these Terms and that the Food Merchant should not violate the intellectual property rights of TongueStun over and in respect of the Tablet and the TongueStun Application at any point in time.
In the event the Food Merchant or its employees or representatives damage the Tablet or TongueStun Device or any of its accessories provided by TongueStun, TongueStun shall replace the same at additional cost to the Food Merchant and/or charge the Food Merchant for such loss.
The Food Merchant undertakes to return the Tablet or TongueStun Device along with the accessories (in a full working condition) to TongueStun immediately upon the termination of these Terms or when requested by TongueStun. The Tablet or TongueStun Device will be collected by TongueStun from the Food Merchant through its authorized representatives specifically designated by TongueStun to collect the same from the Food Merchant. The Food Merchant acknowledges and agrees that any failure on part of the Food Merchant in returning the Tablet or TongueStun Device (whenever requisitioned by TongueStun or upon the termination of these Terms) will make the Food Merchant liable to pay TongueStun towards such failure or appropriate action under applicable laws.
The Food Merchant acknowledges and agrees that TongueStun is not the manufacturer of the Tablet or TongueStun Device provided hereunder. Therefore, TongueStun cannot provide any warranties or guarantees viz-a- viz the quality, merchantability, durability of the Tablet or TongueStun Device. The Food Merchant acknowledges using the Tablet or TongueStun Device keeping the aforementioned information in mind.
The Food Merchant agrees that TongueStun shall be entitled to recover from the Food Merchant, all amounts towards lost and/ or damaged TongueStun Device and/ or Tablet and associated accessories provided to the Food Merchant by TongueStun. The Food Merchant acknowledges and agrees that TongueStun shall be entitled to recover:
The Food Merchant acknowledges and agrees that the Platform will provide the following payment mechanisms to the Customers for the payment of the Order Value:
Electronic Payment Mechanism; and
Redemption of vouchers and/or discount coupons (if any) approved by TongueStun.
Name of the State/UT
State Registered Office Address
12, BALAJI RESIDENCY, 25 FEET ROAD,SARASWATHIPURAM, HALASURU, BANGALORE - 560008
31A, CATHDRAL GARDEN ROAD, NUNGAMBAKKAM,Chennai, Tamil Nadu, 600034
NO.202, PLOT NO.467, GOWRI SHANKAR NILAYAM,AYYAPPA SOCIETY, MADHAPUR, Hyderabad, Telangana
1st Floor, Block II, Vatika Business Centre, Sector 49, GautamBudha Nagar Post, Gurgaon, Gurgaon, Haryana, 122018
1st and 2nd Floor, Plot no 175, Kagalwal house, Behind Metro House, CST Road, Santacruz East, Mumbai City, Maharashtra - 400098
NO.5 A 4 AND A5, BUSINESS CENTRE, SECTOR 16, NOIDA,Gautam Buddha Nagar, Uttar Pradesh, 20130
The Food Merchant must meet all of the following requirements when it receives an online payment Order:
If the Food Merchant has not complied with the Order instructions or has supplied bad quality Cafeteria Management Services to the Customer, whereby TongueStun has (pursuant to the Customer’s complaint) been constrained to refund the Order Value to the Customer ("Problem Order"), the Food Merchant acknowledges and agrees that the Food Merchant will not be paid for such Problem Order and that if the Food Merchant has already received the Order Value from TongueStun in respect of such Problem Order (subject to the appropriate reductions under Clause 10), TongueStun will have a right in accordance with these Terms to deduct or offset such amount from or against any monies that are owed by TongueStun to the Food Merchant (in respect of future Orders) under these Terms.
Food Merchant shall disclose all relevant details pertaining to Problem Order(s) with TongueStun, if required by TongueStun.
TongueStun will communicate promptly with its bank if it becomes aware of any fraud having been committed by a Customer.
The Parties acknowledge and agree that after the deduction of the Fees, TongueStun shall remit the Order Value due to the Restaurant Partner on a weekly settlement basis from the date the payment of the Order Value is received by TongueStun, after allowing reasonable time for adjustments towards Orders for which the Customers have either refused to pay or have claimed a refund, as applicable (but in accordance with the guidelines prescribed by Reserve Bank of India for payment systems and nodal account) ("Payment Settlement Day"). The Payment Settlement Day for Orders serviced from Monday to Sunday shall be on or before Thursday of the following week. If the Payment Settlement Day falls on a bank holiday it shall be the following working day.
The Food Merchant acknowledges and agrees that any Order Value which is collected by TongueStun for, and on behalf of, the Food Merchant in accordance with these Terms, shall be passed on by TongueStun to the Food Merchant subject to the deduction of the following amounts (as applicable) by TongueStun from such Order amount:
The Parties acknowledge and agree that after the deduction of the aforementioned amounts, TongueStun shall remit the Order Value due to the Food Merchant within a period of 3 bank working days or on a weekly settlement basis, as opted by the Merchant in the Form, from the date the payment of the Order Value is received by TongueStun. If Food Merchant opts for weekly settlement of the Order Value, the Parties acknowledge and agree that after the deduction of the aforementioned amounts, TongueStun shall remit the Order Value due to the Food Merchant on a weekly basis after allowing reasonable time for adjustments towards Orders for which the Customers have either refused to pay or have claimed a refund, as applicable (but in accordance with the guidelines prescribed by Reserve Bank of India for payment systems and nodal account) ("Payment Settlement Day"). The Payment Settlement Day for Orders serviced from Monday to Sunday shall be on or before Thursday of the following week. If the Payment Settlement Day falls on a bank holiday it shall be the following working day.
From time to time, TongueStun may change the fees for the TongueStun Services, including without limitation the Fees rates, Payment Mechanism Fee or include any additional charges/ fee, provided however, that TongueStun communicates such change(s) via email or any other modes of communication, seven (7) days prior to the date that such change(s) are to take effect.
In consideration for the TongueStun Services offered by TongueStun to the Food Merchant, the Food Merchant undertakes to pay to TongueStun fees at the rates set out in the Form, which commission amount maybe determined by way of a percentage of the amount of the Net Sales (irrespective of the payments mechanism underlying the Order) ("Fees").
Notwithstanding anything to the contrary herein, the Food Merchant is, and will be, responsible for all taxes, payments, fees, and any other liabilities associated with the computation, payment, and collection of taxes in connection with Customer Orders and the Food Merchant’s use of the Platform and TongueStun Services. TongueStun may charge and collect applicable taxes from Customers on behalf of the Food Merchant in accordance with instructions provided by the Food Merchant and/or applicable law; and, in which case, TongueStun will collect such tax solely on behalf of the Food Merchant and shall pay such amount collected to the Food Merchant. The Food Merchant shall be solely responsible for verifying amounts collected, filing the appropriate tax returns, and remitting the proper amount to the appropriate tax authorities. Taxes shall include all applicable taxes due in relation to the sale of food and beverages by the Food Merchant. It is clarified that TongueStun will not be liable for payment of any Taxes that the Food Merchant is liable to pay in connection with the Cafeteria Management Services which shall be provided by the Food Merchant to the Customers in accordance with these Terms and that the Food Merchant hereby undertakes to indemnify, defend and hold harmless, TongueStun and each of its affiliates and (as applicable) all of their directors, officers employees, representatives and advisors against any tax liability that may arise against TongueStun on account of the non-payment of Taxes by the Food Merchant under these Terms. Food Merchant will be required to deposit relevant taxes, including tax deducted at source (TDS) on the commission payable to TongueStun. However, in case where TongueStun withholds its Fees before remitting the settlement dues to the Food Merchant, TongueStun shall refund the TDS to the Food Merchant subject to submission of the TDS certificate on a quarterly basis within sixty (60) days from the end of the quarter. If under the applicable GST Law, TongueStun is required to collect taxes at source against the Order Value excluding taxes, at such rates as required by the applicable tax laws (“TCS”). The TCS shall be collected on date of acceptance of Order. Food Merchant shall be solely responsible to provide correct GSTIN details to TongueStun and reconcile the TCS with the tax statements provided by TongueStun from time to time, as required by applicable laws. TongueStun shall remit TCS to the respective Central Government and State Government/Union Territory and such remittance(s) shall be considered as complete fulfilment of TongueStun's obligations in this regard. Food Merchant may be eligible to claim TCS credit on the basis of tax returns filed by it with the relevant government/statutory/tax authorities. Food Merchant acknowledges and agrees that in the event of any discrepancy between the tax returns/entries filed by Food Merchant and those filed by TongueStun, the tax returns/entries present and filed by TongueStun shall have a precedence over the tax returns/entries filed by Food Merchant. In the event Food Merchant does not receive the benefit of TCS due to incorrect particulars provided by Food Merchant to TongueStun, Food Merchant acknowledges and agrees that TongueStun shall not be held liable in any manner. TongueStun shall share a monthly TCS statement along with invoice with Food Merchant to report transactions undertaken during the month in its applicable returns.
Tax Deducted at Source under Income Tax Act (“TDS u/s 194-O”):
With effect from 01st October, 2020, Tonguestun is required to deduct taxes at source from payment settlement for orders from Platform. TDS u/s 194-O shall be applied on Net Sales as per the provision of the tax law on the rate as applicable and amended from time to time. Tonguestun hereby clarifies that TDS u/s 194-O shall be deducted from the amounts payable to Food Merchant as set out in the Form.
The Food Merchant shall be solely responsible to provide correct PAN details to Tonguestun and reconcile the income tax deducted with the order transaction report and certificates provided by Tonguestun from time to time. Tonguestun shall remit income tax deducted to the exchequer and report against the PAN as available on Tonguestun records. Such remittance(s) and reporting shall be considered as complete fulfilment of Tonguestun's obligations in this regard.
Tonguestun will share a quarterly TDS certificate with Food Merchant as per below schedule.
|Quarter||Certificate (Form 16A)|
April – June
July – September
October – December
January - March
The Food Merchant may be eligible to claim credit of the income tax deducted on the basis of tax returns filed by it with the relevant government tax authorities. Food Merchant acknowledges and agrees that it is the Food Merchant’s responsibility to reconcile and claim correct credit for the income tax deducted for which the Food Merchant may be eligible as per the applicable laws. Food Merchant also agrees that in the event of any discrepancy between the returns filed by Food Merchant and those filed by Tonguestun, the values reported by Tonguestun shall have a precedence over the tax returns filed by the Food Merchant.
Any discrepancy identified at the time of reconciliation by the Food Merchant should be brought to the attention of Tonguestun within a period of 15 days from the date of receipt of TDS Certificate. Any delay on this account will relieve Tonguestun of any obligation to undertake a corrective action to resolve the discrepancy. Under no circumstances shall Tonguestun entertain any discrepancy in the reported value after 31 July of the year following the financial year to which the transactions were undertaken and reported.
In the event Food Merchant does not receive the benefit of income tax deducted due to incorrect particulars provided by the Food Merchant to Tonguestun, Food Merchant acknowledges and agrees that Tonguestun shall not be held liable in any manner.
Other than for provision of Service(s) by TongueStun, TongueStun does not share any other information of the Food Merchant with third parties unless requisitioned by government authorities.
Other than for the purpose of availing Service(s) from TongueStun, the Food Merchant must not disclose any confidential information about TongueStun, including but not limited to these Terms, its business strategies, pricing, revenues, expenses, Customer Data, and Order information to third parties. The obligations of Food Merchant under this section of these Terms shall survive termination of these Terms.
Food Merchant warrants that if the Food Merchant ceases to do business, closes operations for a material term or is otherwise unable to offer services to Customers it will inform TongueStun promptly. Where the Food Merchant neglects do so, whether by omission or fault, TongueStun will not be held responsible for any liabilities, whether financial or otherwise.
Food Merchant warrants that it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, or any other item prohibited by law.
TongueStun warrants that it will undertake its obligations with reasonable skill and care.
TongueStun does not guarantee or warrant that the Platform, Application, Tablet, TongueStun Device, software, hardware or services will be free from defects or malfunctions. If errors occur, it will use its best endeavours to resolve these as quickly as possible.
Food Merchant warrants that it complies and will remain compliant with the Food Safety and Standards Act, 2006, and the applicable rules and regulations made thereunder and any other requirements or applicable law in the relevant State or Territory and all other applicable legislation, regulations or standards.
Food 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 TongueStun prior to availing the TongueStun Services.
The Food Merchant agrees to indemnify and hold TongueStun (and its directors, officers, agents, representatives and employees) harmless from and against any and all claims, suits, liabilities, judgments, losses and damages arising out of or in connection with any claim or suit or demand:
The Food Merchant acknowledges that it supplies certain rights to TongueStun to enable TongueStun to provide services to the Customer. TongueStun will not be liable for any applicable taxes liability in respect of transactions by which the Food Merchant provides Cafeteria Management Services to Customers and the Food Merchant hereby indemnifies TongueStun against any applicable taxes it may become liable for arising out of such transactions.
The arrangement between the Parties shall start on the Execution Date and unless terminated earlier under this clause shall continue indefinitely. Either Party may terminate the arrangement, with or without cause, at any time upon thirty (30) days prior written notice to the other Party. TongueStun may terminate the arrangement or suspend the TongueStun Services and/or Cafeteria Management Services of the Food Merchant with immediate effect if:
the Food Merchant fails to conduct its business in accordance with these Terms and /or in accordance with the information given to TongueStun, such as Food Merchant proprietary rights, opening hours, nature of food served or prices;
the Food Merchant engages in or conducts any act or omission, which in the opinion of TongueStun, impacts or is likely to impact the goodwill of TongueStun directly or indirectly, TongueStun shall be entitled to terminate the Agreement forthwith, without prejudice and in addition to any other remedy that it may have under applicable laws;
the user experience for the Food Merchant is not found satisfactory as per the TongueStun standards;
for a continuous period of 14 days, the Food Merchant fails to fulfil Order(s) which are not fraudulent or unintentional;
upon the happening of any of the insolvency events such as bankruptcy, appointment of receiver, administrator, liquidator, winding up, dissolution;
TongueStun identifies any fraudulent or suspicious activity on the Food Merchant’s account;
the Food Merchant fails to comply with Applicable Law and/or these Terms; and/or
in case TongueStun conducts any investigation to ensure Food Merchant’s compliance with the Applicable Law and/or these Terms.
If Food Merchant engages in or conducts any act or omission, which in the opinion of TongueStun, impacts or is likely to impact the goodwill of TongueStun directly or indirectly, TongueStun shall be entitled to terminate the Agreement forthwith, without prejudice and in addition to any other remedy that it may have under applicable laws.
Either Party may terminate their arrangement with immediate effect by notice in writing to the other Party if the other Party commits a material breach, which, in the case of a material breach capable of remedy, is not remedied within 21 days after written notice is given to the breaching Party, specifying the default. Termination of the arrangement: (a) in accordance with its Terms, shall not affect the accrued rights or liabilities of the Parties at the date of termination; and (b) shall have no effect on: (i) the validity of Cafeteria Management Services already provided to Customers; or (ii) Food Merchant’s obligations to pay for TongueStun Services availed in accordance with this Agreement. TongueStun, at its sole discretion, reserves the right to suspend and/or terminate the TongueStun Services and/or Cafeteria Management Services immediately without any notice to the Food Merchant on account of any alleged or threatened or actual (a) suspicious activity; and /or (b) breach of any intellectual property right of TongueStun or any third party by the Food Merchant; and/or (c) any false misrepresentation by the Food Merchant.
Factors that prevent Food Merchant from fulfilling its obligations towards TongueStun or Customers should promptly be reported to TongueStun by contacting the account manager appointed by TongueStun or by writing an email to email@example.com.
To the fullest extent permitted by law, TongueStun and its affiliates, and each of their respective officers, directors, members, employees, and agents disclaim all warranties, express or implied, in connection with this Form, the Platform, TongueStun Services and any use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. TongueStun makes no warranties or representations about the accuracy or completeness of the content and data on the Platform or the TongueStun 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 Food Merchant's access to and use of the Platform and the TongueStun Services, (c) any unauthorized access to or use of TongueStun' 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 TongueStun Services, (e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Website or the TongueStun 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 via the website or the TongueStun Services.
For the purposes of this clause, "Liability" means liability in or for breach of contract, negligence, misrepresentation, tortious claim, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Form, including liability expressly provided for under this Form or arising by reason of the invalidity or unenforceability of any term of this Form. TongueStun does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, TongueStun 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 anticipated savings, 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 TongueStun will use its best endeavours to ensure that the unintentional operational errors do not occur, TongueStun cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, TongueStun’s maximum aggregate liability for losses, damages and claims under this Form shall not exceed the total value of the Order under which the claim arose.
TongueStun may modify these Terms from time to time, and any such changes will (i) be reflected on the Website, and (ii) be effective immediately upon the changes being reflected on the TongueStun Platform. The Food Merchant agrees to be bound to any such changes or modifications and understands and accepts the importance of regularly reviewing these Terms as updated on the Platform. Further, in the event TongueStun upgrades, modifies or replaces the TongueStun Services ("Service Modifications") offered to the Food Merchant, TongueStun will notify the Food Merchant prior to making the same and give the Food Merchant the opportunity to review and comment on the Service Modifications before continuing to use the Service or any alternative service offered by TongueStun. The Service Modifications will also be reflected on the TongueStun Platform. If the Food Merchant continues to use the TongueStun Services or any alternate service offered by TongueStun, following any notice of the Service Modifications, it shall constitute the Food Merchant’s acceptance of such Service Modifications.