|Schedule 1 - Supplemental Terms (English Edition)|
|1. Definitions and Interpretation.|
|“Affiliate” means, with respect to a party to the Agreement, an entity that is directly or indirectly controlling, controlled by or under common control with, such party, where control is defined as the possession to direct the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.|
|“Aggregate Data” means aggregate, anonymized data related to Merchant's transactions in connection with the Noon Food Services.|
|“Anniversary Date” means each anniversary of the Effective Date;|
|“Applicable Law” shall mean all applicable laws, statutes, regulations and codes from time to time in force in the Territory.|
|“Cancelled Order” means an Order cancelled by Merchant after it has been accepted via the Noon Food Tools.|
|“Cancellation Fee” means an amount equal to the Core Service Fee payable by Merchant for each Cancelled Order as set forth in the Order Form or otherwise.|
|“Cash on Delivery” means the payment mechanism whereby the Customer pays for the Order in cash.|
|“Cash on Delivery Fee” means the fee charged by Noon Food for providing Cash on Delivery service and as set forth in the Order Form or otherwise.|
|“Core Services” means the Marketplace Services and Noon Food Delivery Service made available by Noon Food.|
|“Core Service Fee” means a Fee paid by Merchant to Noon Food in consideration for the use of the Core Services and as set forth in the Order Form or otherwise.|
“Confidential Information” means any information that is considered confidential, proprietary or any other non-public information disclosed by one of the parties in person or on behalf (the “Disclosing Party”) to the other party (the “Receiving Party”), whether it is disclosed orally or in writing or by examining tangible things, and includes Without limitation, transaction information or data, operation, performance, and other information or data (including Noon Food data, customer information, packaging information, transaction volume, marketing plans, business, business activity, financial, technical, and operational information) and/or those relating to the sale of merchant goods to customers via the Noon Food application and the terms and conditions of this Agreement. Do not include confidential information. that:
(i) was previously known to the receiving party without an obligation of confidentiality;
(ii) was obtained by the receiving party without any obligation of confidentiality from a third party and was entitled to disclose it in such a manner; or
(iii) was or became publicly available without notice. error on the receiving end.
|“Criteria” means any quality, portion, size, ingredient, allergen, origin or nutritional information or rules and regulations that govern the adequacy of Items.|
|“Customer” means a customer who places Order(s) through Noon Food App.|
|“Customer Feedback” means information provided by a Customer in response to prompting by the Noon Food App, including rating of Item(s) and comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the Noon Food App, and/or the Noon Food Delivery Services.|
|“Delivery Charge” means a delivery charge collected by Noon Food from Customer.|
|“Device Fee” means a fee paid by Merchant for obtaining a device to access the Noon Food Tools, as set forth in the Order Form or otherwise.|
|“Discloser” means the party disclosing the Confidential Information.|
“Fees” means any applicable fees charged by Noon Food to Merchant as set forth in the Order Form or otherwise, including
(i) Core services Fee,
(ii) Payment Gateway Fee,
(iii) Cash on Delivery Fee,
(iv) Cancellation Fee,
(v) Device Fee,
(vi) Photographic Content Fee, or
(vii) or any other fee introduced/amended by Noon Food from time to time.
|“Feedback” means information provided by Merchant to Noon Food including feedback, suggestions, comments, ideas, or other concepts relating to Noon Food’s products and services.|
|“Force Majeure Event” means occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, pandemics, epidemics, flooding, earthquakes, strikes, work stoppage or other labor disturbances, war or sabotage.|
|“Go Live Date” means the date when Merchant receives the first Order on Noon Food App.|
|“Indemnified Party” means the party entitled to the benefit of an indemnity under the Agreement.|
|“Indemnifying Party” means the party required to provide indemnification in accordance with the Agreement.|
|“Item” means each product made available by Merchant via the Noon Food App.|
“Item Revenue” means the gross amount charged by the Merchant to any Customer that is attributable to any Item(s) placed through Noon Food Platform, less all,
(i) discounts being offered by the Merchant on the Noon Food Platform, (if any) and
(ii) packaging, delivery and any other charges levied by the Merchant.
|“Item Payment” means the Retail Price of the Item(s) sold by Merchant via the Noon Food Platform (including any VAT or other sales tax).|
|“Losses” means any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees).|
|“Marks” means the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia owned by or licensed to the applicable party or its Affiliates.|
|“Marketplace Service” means provision of access to Noon Food App to the Merchant to facilitate the marketing, sale and provision of Item.|
|“Menu” means a catalogue detailing Items made available by the Merchant via the Noon Food App.|
|“Merchant” means the party who entered into the Agreement as identified in the Order Form.|
|“Merchant Marketing Materials” means videos, still images or other materials provided by Merchant to Noon Food for use in connection with the display on the Noon Food App.|
|“Noon Food App” means a website and/or mobile application made available by Noon Food.|
|“Noon Food Data” means all data related to the access and use of the Noon Food Services and Noon Food Tools, including all Personal Data related to Merchant and Customers.|
|“Noon Food Delivery Partner” means an employee, contractor, third party service provider, worker or agent of Noon Food who intends to provide on demand delivery services on a Merchant’s behalf using the Noon Food App.|
|“Noon Food Delivery Service” means the delivery and logistic services that Noon Food may make available to the Merchant via Noon Food Delivery Partners.|
|“Noon Food Marketing Materials” means videos, still images or other materials provided by Merchant to Noon Food for use in connection with the display of Merchant’s Item on Noon Food App.|
|“Noon Food Services” means the services agreed in the Order Form or otherwise and made available by Noon Food to Merchant.|
|“Noon Food Tools” means a technology interface tool including web dashboard, onboarding tool, restaurant management tool etc.|
|“Offer” means a promotional offer that is created by Merchant that is intended to stimulate Customer demand through the Noon Food App.|
|“Offer Costs” means the amount spent by Merchant on an Offer.|
|“Offer Materials” means, with respect to an Offer, any material to be provided by Merchant, including Merchant’s Marks.|
|“Offer Tools” means proprietary, automated tools provided by Noon Food which allow the Merchant to create and provide Offers to Customers.|
|“Order” means Item(s) ordered by the Customer via Noon Food App.|
|“Payment Gateway” means the service of online payment collection from Customers provided by Noon Food.|
|“Payment Gateway Fee” means the fee paid by Merchant to Noon Food for availing services of Payment Gateway as set forth in the Order Form or otherwise.|
|“Personal Data” means every data – of whatever source or form – that would lead to the identification of the individual specifically or make it possible to identify him directly or indirectly, including name, personal identification number, addresses, contact numbers, license numbers, records, personal property, bank account and credit card numbers, fixed or moving pictures of the individual, and other data of personal nature.|
|“Photographic Content Fee” means a fee paid by Merchant to Noon Food in consideration for the photography of a Merchant’s Menu for use on the Noon Food App as set forth in the Order Form or otherwise.|
|“Pre-Paid Orders” means an Order where Customer pays the Item Payment and other applicable fees or charges, through one of the various payment processing methods offered by Noon Food electronically|
|“Recipient” means the party receiving the Confidential Information.|
|“Representatives” means with respect to a party, it’s or its Affiliates’ respective officers, directors, employees or agents.|
|“Required Documentation” means all documentation required by Noon Food from Merchant, including business registration, documents relating to identification of authorized signatories, tax identification documents, banking documentation, preferred method or payment, etc.|
|“Retail Price” means the original listed price determined by Merchant for each Item to be made available for sale via the Noon Food App prior to any discounts or promotions.|
|“Revenue Transfer” means the calculation of Item Revenue to be transferred from Noon Food to Merchant.|
|“Substandard Item” means any Item that fails to meet the Criteria or standards required by Applicable Laws.|
|“Tax/Taxes” means the applicable values added tax (VAT), withholding tax or any other taxes payable by Merchant in accordance with the Applicable Law.|
|“Territory” means Kingdom of Saudi Arabia.|
|B. Rules of Interpretation.|
1. References to clauses are to the clauses of the Agreement.
2. A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes any subordinate legislation made under that legislation or legislative provision.
3. In the event of any conflict or inconsistency between the Arabic edition and the English edition of this Agreement, the Arabic edition shall prevail.
4. Any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them.
5. A reference to writing or written includes fax, registered post, and email.
6. Each and every provision of this Agreement shall be construed as though parties participated equally in the drafting of same, and any rule of construction that a document be construed against the drafting party, shall not be applicable to this Agreement.
|2. Noon Food obligations.|
|A. Payment Collection.|
1. Merchant hereby appoints Noon Food as Merchant’s limited payment collection agent solely for the purpose of:
(i) accepting Item Payments on Orders, and
(ii) deducting the Fees and transferring the remaining Item Revenue to the Merchant as per clause 4 below.
2. Merchant agrees that payment collected by Noon Food on Merchant’s behalf will be considered the same as payment made directly to Merchant by Customers. Merchant agrees to defend, join, and indemnify Noon Food for any losses in case of any violation of this provision, including any assessment or lawsuit lodged against Noon Food by the Zakat Tax & Customs Authority to the contrary.
3. Merchant authorizes Noon Food to collect tips (if any) that are paid on the Noon Food App voluntarily by Customers for Noon Food Delivery Partners. For deliveries made via the Noon Food Delivery Service, Merchant agrees that Noon Food may remit the full value of such tips directly to Noon Food Delivery Partners.
4. Noon Food may adjust the transfer of Item Revenue collected on Merchant’s behalf for reasons including Cancelled Orders, failure to fulfil the provision of an Item as ordered, and failure to timely prepare an Order. Merchant may dispute any such adjustments through the Noon Food Tools within fourteen (14) calendar days of Merchant being notified of such adjustment. Noon Food reserves the right to, and Merchant authorizes Noon Food to, collect the amount of such adjustments via a deduction from the Item Revenue collected on Merchant’s behalf, or by debiting Merchant’s payment method on record, or otherwise seeking reimbursement from Merchant.
5. Noon Food reserves the right to temporarily or permanently cancel or suspend a payment to Merchant for reasons including:
(i) any legal or regulatory risk or potential breach of Applicable Laws associated with the transfer of such payments to the Merchant
(ii) the actual or expected initiation of insolvency or bankruptcy proceedings against Merchant (iii)as required to reimburse Noon Food in relation to any harm or damage suffered by Noon Food as a result of the Merchant’s breach of any provision of the Agreement, and/or
(iv) any failure by Merchant to provide the Required Documentation in accordance with clause 3 (C) below.
6. Noon Food may request information from Merchant to confirm Merchant’s identity as may be necessary before transferring any payments to Merchant. Noon Food may refuse to process payments owed to Merchant if there exists a legal or regulatory risk or potential breach of law or regulation associated with such transfer to Merchant.
|B. Limited license to use Noon Food Tools.|
|Noon Food may grant to the Merchant, a limited, non-exclusive, royalty-free, non-sublicensable, non-transferable, and revocable license to use the Noon Food Tools solely in connection with Noon Food Services. Noon Food Tools, including all intellectual property rights therein, are and shall remain the property of Noon Food and/or its respective licensors. Neither the Agreement nor Merchant’s use of the Noon Food Tools or Noon Food Data conveys or grants to Merchant any rights in or related to the Noon Food Tools or Noon Food Data, except for the limited license granted above.|
|C. Limited license to use Noon Food App.|
|Noon Food may grant to the Merchant, a limited, non-exclusive, royalty-free, non-sublicensable, non-transferable, and revocable license to use the Noon Food App solely in connection with Noon Food Services. Merchant acknowledges and agrees that once it has accepted a request for an order of Item(s), the Noon Food App may provide certain information about Merchant to the Customer, including Merchant’s name and contact number. As between Merchant and Noon Food, Noon Food will retain sole and absolute control over the Noon Food App (and all elements of the user experience and user interface relating to the Noon Food App), including with respect to|
1. the personalization of the Noon Food App for Customers;
2. the prioritization and display of options available to Customers;
3. the search functionality and results provided to Customers; and
4. adding, removing, or otherwise modifying any feature or functionality made available through the Noon Food App, whether to optimize reliability or efficiency on the Noon Food App or otherwise.
|D. No Service Guarantee.|
|Noon Food does not guarantee the availability or uptime of the Noon Food Tools and/or Noon Food App. Merchant acknowledges and agrees that the Noon Food Tools and/or Noon Food App may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, Noon Food Tools and/or Noon Food App may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Noon Food is not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems. In addition and without limiting the foregoing, the Merchant understands that Noon Food is entitled to suspend availability or uptime of the Noon Food Tools and/or Noon Food App for any reason, including but not limited to the unavailability or lack of a sufficient number of Noon Food Delivery Partners and/or reasonable difficulty to provide the Noon Food Delivery Service, and that the Merchant is not entitled to any claim or compensation against Noon Food for any reason.|
|In connection with the provision of Noon Food Services to Merchant, Noon Food, on behalf of Merchant, may respond to complaints by Customers about Items sold by Merchant via the Noon Food App.|
|Noon Food reserves the right to use, share, and display Customer Feedback in any manner in connection with the business of Noon Food without attribution to or approval of Merchant. Noon Food reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy laws and regulations or other Applicable Laws, or violate Noon Food’s content policies.|
|G. Disclaimer of Warranties.|
Noon Food provides, and Merchant accepts, the Noon Food Tools and/or Noon Food App on an "as is" and "as available" basis. Noon Food does not represent, warrant, or guarantee that Merchant’s access to or use of the Noon Food Tools and/or Noon Food App:
(i) will be uninterrupted or error free; or
(ii) will result in Merchant receiving any requests for Orders. Noon Food makes no representations, warranties, or guarantees as to the actions or inactions of Customers who may request or receive Item(s), and Noon Food does not screen or otherwise evaluate Customers. By using the Noon Food Tools, Merchant acknowledges and agrees that Merchant may be introduced to a third party that may pose harm or risk to Merchant, or other third parties. Merchant is advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Noon Food Services and Noon Food Tools. Noon Food does not represent, warrant, or guarantee the safety of any Items.
|3. Merchant and its affiliate’s Obligations.|
|A. Availability of Items.|
1. Merchant will make Items available for purchase through the Noon Food App during the Merchant’s normal business hours.
2. Merchant will prepare, handle, and store all Items in accordance with Applicable Laws, which shall include all laws, rules and regulations governing time or temperature controls required for food hygiene and safety.
3. Merchant will identify any Criteria that apply to each Item and Merchant is responsible for ensuring that the Item(s) meet the applicable Criteria as displayed to Customers in the Noon Food App. Noon Food, at its sole discretion, reserves the right to remove from the Noon Food App any Item for sale by Merchant deemed unsuitable for sale on the Noon Food App. Merchant shall also ensure that each Item is accompanied by a description of the Item in both Arabic and English. Merchant is solely responsible for each the Item(s) descriptions. Noon Food may remove an Item and/or its description for any reason, including if Noon Food believes that a description is incorrect or not compliant with the Agreement.
4. Merchant undertakes that it will
(i) accept or reject an Order made by a Customer via the Noon Food App within five (5) minutes of receiving the Order via the Noon Food Tools; and
(ii) Complete preparation of the Order within twenty (20) minutes of accepting the Order via the Noon Food Tools.
5. Failure to meet these standards may result in
(i) suspension or termination of Merchant’s access to the Noon Food Services and/or Noon Food Tools; and/or
(ii) a refund of the Item Payment to the Customer, at the sole cost and expense of the Merchant and with no liability to Noon Food.
|B. Item Inventory.|
1. Merchant acknowledges and agrees that neither Noon Food nor any Noon Food Delivery Partner takes title to any Item.
2. Merchant shall remain responsible for costs related to reimbursement to Customers in the event a refund is requested for Substandard Items or otherwise unsatisfactory Item(s) (including any costs associated with collecting from the Customer, such Substandard Items or otherwise unsatisfactory Item(s), if applicable). Noon Food may deduct such refunds from the Item Revenue transmitted to Merchant under the Agreement.
|Merchant will provide all Required Documentation. In case of any change in Documentation, Merchant shall communicate the same to Noon Food in a timely manner Merchant is solely responsible for providing Noon Food with, and maintaining, accurate bank account information.|
|Merchant will not, and will not allow any third party to use:|
1. Noon Food Services and/or the Noon Food Tools;
2. any other transactional, operational, performance or other data or information that is related to the sale of the Items; and/or
3. any information relating to the Fees, discounts offered to the Merchant or Offers mentioned in the Order Form or otherwise for the purposes of competing with Noon Food or to the detriment of Noon Food. Merchant will not and will not allow any of its Affiliates or third parties to reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Noon Food Services and/or Noon Food Tools; or provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Noon Food Services and/or Noon Food Tools (except as otherwise authorized by Noon Food in writing). Merchant shall not list any Items on the Noon Food App which are illegal or prohibited under the Applicable Law including alcohol, pork, weapons, explosives, flammables, etc., and/or anything that has the appearance of impropriety or resembles the foregoing, stolen goods, or any Items that Merchant does not have title to.
|4. Payment and Taxes.|
|A. Payment Terms.|
|1. Revenue Transfer.|
Item Revenue will be transferred fortnightly. Invoice for Fees will be generated to the Merchant on a bi-weekly basis. Noon Food reserves the right to
(i) settle owed amounts through subsequent revenue transfer till such amounts are recovered (ii) settle owed amounts through the revenue transfer of another Merchant branch or restaurant using the Noon Food Services,
(iii) direct a Noon Food Affiliate to settle owed amounts if Merchant has contracted with the Affiliate for services, and/or
(iv) suspend the Merchant’s access to the Noon Food Services. All payments under the Agreement will be paid in Saudi Arabian Riyals.
|2. Costs and Expenses.|
|Except as may be expressly set forth in the Agreement, Parties will be responsible for their own expenses and costs in connection with the Agreement.|
|In accordance with clause 5 below, Noon Food may invoice the Merchant for agreed costs for joint Offers or marketing campaigns.|
|4. Delivery Charge.|
|Noon Food may, in its sole discretion, charge a Customer a Delivery Charge. Merchant agrees that it has no claim or right to any Delivery Charge(s).|
|Noon Food may provide Merchant with information regarding the number of Items sold by Merchant to Customers. Noon Food will also provide information to Merchant regarding any refunds given to its Customers by Noon Food on Merchant’s behalf, including the date of the Order, the Item(s) refunded, the reason for the refund and any other information.|
|For the Orders received and accepted by the Merchant through Noon Food App, Merchant will be responsible for issuing invoice to the Customer. Noon Food will raise an invoice to the Merchant for the Fees.|
|B. Applicable Taxes.|
|1. Fees and taxes|
|All Fees payable pursuant to the Agreement shall be deemed to be exclusive of Taxes. If Taxes are chargeable on any Fees, the Merchant shall pay to Noon Food an amount equal to the amount of such Tax in addition to and at the same time as payment of the Fees. Noon Food may deduct the value of the Tax from Item Revenue transferred to Merchant. Fees shall be paid free and clear of and without deduction for or on account of withholding tax (if applicable). If Merchant is required to make such a deduction or withhold such tax, the sum payable by Merchant shall be increased to the extent necessary to ensure that Noon Food receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made.|
|2. Retail Price of Items and Taxes.|
Merchant is solely responsible for determining and setting the
(i) Retail Price for each Item. The Retail Price for each Item must include applicable Taxes;
(ii) all applicable taxes and identifying and informing Noon Food of the appropriate Tax amount for Noon Food to charge Customers on Merchant’s behalf for Items available on the Noon Food App. To the extent that applicable Tax rate is not determined by Merchant, Merchant expressly authorizes Noon Food to make such determination on its behalf and Merchant hereby acknowledges and agrees that Noon Food will have no liability for the accuracy of any such determination. Merchant expressly authorizes Noon Food, at Merchant’s direction, to collect such Tax on Merchant’s behalf; and
(iii) Merchant is solely responsible for the remittance of all applicable Taxes, sellers use, transaction privilege, privilege, general excise, gross receipts, meals tax and similar transaction taxes in connection with the sale of Items.
|5. Marketing and Promotional Activities.|
|1. Noon Food may showcase Merchant’s Items via the Noon Food App through various promotional activities including social media channels, websites, advertisements, blogs or other media available now or hereinafter created. Merchant agrees that Noon Food Marketing Materials are and will remain the sole and exclusive property of Noon Food. Additionally, Merchant may choose to provide Merchant Marketing Materials for use in connection with the display of Merchant’s Items on the Noon Food App. Merchant represents and warrants that Merchant owns or has authorized license, in the Merchant Marketing Materials and hereby grants Noon Food a non-exclusive, royalty free right to use, reproduce, adapt, represent, and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Noon Food Services, for the entire world, during the Term, using all means and media, and without any restriction other than as required by Applicable Law as regards exploitation methods, number of prints, dissemination or utilization.|
|2. Merchant acknowledges and agrees that, through advertising and marketing, Noon Food may seek to attract new merchants to Noon Food and to increase existing users of the Noon Food Services and Noon Food App. Merchant acknowledges and agrees such advertising or marketing does not entitle Merchant to any additional monetary amounts or compensation or goodwill remuneration or otherwise.|
|B. Noon Food Promotional Offers.|
|Noon Food may provide promotional Offers to Customers on the Merchant’s behalf through the Noon Food App. The scope of such Offers will be defined by Noon Food. If the Offer is entirely funded by Noon Food, Merchant acknowledges and agrees that Noon Food may discount Merchant’s Items at Noon Food’s discretion. If the Offer is at least partially funded by the Merchant, Noon Food may only make an Offer available to Customers with written consent of Merchant.|
|2. Service Fees.|
|When an Offer is funded entirely by Noon Food, the Core Service Fee will be calculated as described in the Agreement and will not change, regardless if the Offer is applied as a discount to the Retail Price of the Item or to the Noon Food Delivery Service.|
|C. Merchant Promotional Offers.|
|Noon Food may authorize Merchant to use certain automated tools that allow the Merchant to provide promotional Offers to Customers through the Noon Food App in accordance with the terms of the Agreement. Merchant agrees that it is solely responsible for fulfilling and, subject to technical and functional limitations of the automated tools, defining the Offers provided by Merchant to its Customers. Subject to the Agreement and any other guidelines or eligibility criteria for Offers that Noon Food may make available from time to time, Noon Food hereby authorizes Merchant to use the Offer Tools to create and provide Offers to Customers. Unless otherwise specified by Noon Food, Merchant will be solely responsible for defining each Offer (within the scope of functionality provided by the Offer Tools), including the start date, end date, and budget for each Offer. Each Offer will be subject to Noon Food’s written approval and sole discretion. Merchant is responsible for providing to Noon Food the Offer Materials in a format and within deadlines specified by Noon Food for such to be reproduced for the provision of the Offer to Customers.|
|2. Enhanced Promotional Placements.|
|Subject to Noon Food App functionality, Noon Food may provide enhanced promotional placement or other visual treatment for the Offers through the start and end date identified by Merchant. Merchant acknowledges that the time period of enhanced promotional placement for an Offer (if applicable) may vary due to a number of factors including Merchant’s budget, the start and end date for an Offer, and other Noon Food App functionality.|
|3. Merchant’s Responsibilities.|
|Merchant will honor and fulfill the terms of the Offer. Merchant represents and warrants that Merchant will run all Offers in accordance with all Applicable Laws which apply to the Offers and will defend and indemnify Noon Food from and against any actual or threatened harm or damage to Noon Food arising from the foregoing. Merchant represents and warrants that Merchant possesses all necessary authority, rights, licenses, consents and permissions to run the Offer For free or reduced Delivery Charge Offers, Merchant will be solely responsible for the reduction to the amount that Noon Food collects from Customers with respect to the Delivery Charge.|
|4. Reporting and Offer Costs.|
|Noon Food will use good faith efforts to provide Merchant with reasonable information regarding Merchant's Offers, which may include the Offer Costs and the number of Items sold in connection with an Offer. Noon Food, in its sole discretion, may highlight Offers and/or the results of Offers in its own marketing materials.|
|5. Service Fees.|
|For Items where a Merchant Offer has been applied as a discount to the Retail Price of the Item, Noon Food will charge Merchant a Core Service Fee based on the discounted Retail Price and not the full Retail Price. Merchant agrees that Merchant is solely responsible for Offer Costs and that Noon Food may deduct Offer Costs from Merchant's Item Revenue. If Merchant is paid for an Item, it is responsible for the Core Service Fee and relevant Offer Costs.|
|D. Modification, Suspension, Discontinuation.|
|Noon Food reserves the right, at any time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the Offer Tools or the ability for Merchant to provide Offers. Merchant agrees that neither Noon Food nor any of its Affiliates Noon Food shall not be liable to Merchant (or to any third party) for the Offer or the Offer Tools, including for any modification, suspension or discontinuance of the Offer or the Offer Tools or providing Merchant with the ability to provide Offers.|
|Except as may be expressly set forth in the Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to the Agreement or otherwise, without the prior written consent of such other party.|
|Subject to the Agreement, Merchant hereby grants to Noon Food a limited, non-exclusive and non-transferable, non-assignable license during the Term to use Merchant’s Marks, on a royalty free basis. In the event the Merchant does not have the right to license any Marks, the Merchant hereby expressly acknowledges and agrees that it will procure that the owner of the Marks will consent to use of the Marks by Noon Food in a manner agreed in the Agreement. Merchant agreed to defend and indemnify Noon Food from and against any liability that may arise due to Merchant’s inability to procure such authorization from the rightful owner of any such Marks. Such authorization procured by the Merchant shall also include the right to reproduce, adapt and represent (in connection with all or part of the activities related to the Agreement) the Marks for the entire world, using all means and media, and without any restriction of any kind as regards exploitation methods, number of prints, dissemination or utilization. Other than as specifically set forth in the Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party. Any use or display of Merchant’s Marks by Noon Food in connection with making Items available through the Noon Food App in the ordinary course of business will not require any such prior, express, written consent. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the party that owns (or is a licensee of, as applicable) such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Merchant agrees that it will not, and will ensure that Merchant’s Affiliates do not, try to register or otherwise use and/or claim ownership in any of the Noon Food Marks, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.|
|7. Confidential Information; Personal Data; Feedback.|
|A. Confidential Information.|
Confidential Information means any proprietary information disclosed by the Discloser to the Recipient, whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information (including, Noon Food Data, Customer’s information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational) and/or that is related to the sale of Merchant’s Items to Customers through the Noon Food App and the terms and conditions of the Agreement. Confidential Information will not include information that
(i) was previously known to the Recipient without an obligation of confidentiality;
(ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or
(iii) is or becomes publicly available through no fault of the Recipient.
|B. Third Party Disclosure.|
|Merchant acknowledges that Noon Food may share Merchant contact information (including name, address, email, and phone number) with third parties necessary for Merchant's onboarding on the Noon Food App, including logistics and/or delivery service providers (for the delivery of tablets or other equipment), as well as photography services (for any photography which may be provided by a third-party provider on behalf of Noon Food).|
|Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Noon Food Tools and related Noon Food Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.|
|D. Data Identification Restriction.|
|Without limiting any other provision of the Agreement, including any provision in this clause, Merchant will not merge any of the data collected or otherwise obtained in connection with the Agreement, including, any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with the Agreement, including any Personal Data, for the purpose of reidentification, targeted marketing, analytics or any other similar purpose.|
|Merchant may, but is not obligated to, provide or otherwise make available to Noon Food certain Feedback. However, to the extent that Merchant provides or otherwise makes available Feedback to Noon Food, Merchant hereby grants to Noon Food a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use, reproduce, adapt, represent and otherwise exploit such Feedback, during the Term, using all means and media, and without any restriction of any kind with regard to exploitation methods, number of prints, dissemination or utilization.|
|8. Representation and Warranties; Indemnification; Limitation of Liability.|
A. Each party hereby represents and warrants that:
(i) it has full power and authority to enter into the Agreement and perform its obligations hereunder;
(ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin;
(iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under the Agreement;
(iv) it will comply with all Applicable Laws in its performance of the Agreement; and
(v) the Marks, content, media and other materials used or provided as part of the Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party. Merchant represents and warrants that
(i) all nutritional and allergen information that is made available through the Noon Food App is, and at all times will remain, accurate and compliant with all Applicable Laws,
(ii) it is solely responsible for any liability arising from the purchase and consumption of Items by Customers or third parties, and
(iii) the individual(s) accessing and clicking to accept terms through the Noon Food Tools dashboards is/are authorized by Merchant to bind, and does hereby bind, Merchant to such terms. Merchant agrees and ensures that all food law requirements are fulfilled, in particular regarding allergens and/or origin of products of animal origin to the extent required by Applicable Laws.
B. The Indemnifying Party will indemnify, defend and hold harmless the Indemnified Party, its Affiliates and their respective directors, officers, employees and agents from and against any and all Losses with respect to any third party claim arising out of or related to:
(i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of the Agreement;
(ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in the Agreement;
(iii) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party; and
(iv) any breach by the Indemnifying Party of any of its obligations under the Agreement.
C. Merchant will indemnify, defend and hold harmless the Noon Food Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (i) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, and/or any claim for salary, benefits, wages, end-of-service award, overtime, or otherwise any claim whatsoever brought against Noon Food by any employee, agent, or contractor of the Merchant;
(ii) Merchant’s failure to determine the applicable VAT and other fees charged;
(iii) Merchant’s failure to apply correct VAT rates, including those rates adjusted by Noon Food on Merchant’s behalf;
(iv) VAT, other fees, penalties, interest and other costs related to Merchant’s obligations;
(v) Merchant copying, storing, retaining, removing from the Noon Food Tools or otherwise processing the Personal Data, except as permitted by clause 7(B) of these Supplemental Terms; (vi) any third party claim for actual or alleged infringement of a third party’s intellectual property or other proprietary rights arising out of or in connection with any Offer run by Merchant and use of Offer Materials; and/or
(vii) any third party claim arising out of or in connection with the manufacture, production, distribution, handling, advertising, consumption or use of, or otherwise relating to, any Offer run by Merchant, whether or not any claim arises during the Term of the Agreement, except in the case of each of (i)-(v) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of Noon Food or its employees, agents or Noon Food Delivery Partners. With respect to the indemnities in (vi) and (vii) above, approval by a Noon Food Party of any Offer or use of any Offer Materials shall not affect this right of indemnification.
|D. Each Indemnified Party will provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.|
E. Except for a party’s indemnification obligations or a breach of confidentiality obligations as set out in the Supplemental Terms:
(i) in no event shall either party be liable for any claim for indirect or consequential damages of any kind, including loss of business profits, or damages for loss of business of Merchant or any third party arising out of the Agreement, or loss or inaccuracy of data of any kind, or loss of, compensation for, or damage to goodwill, whether based on contract, tort or any other legal theory, even if such party has been advised of the possibility of such damages; and
(ii) Noon Food’s total cumulative liability of each and every kind under the Agreement shall not exceed the amount of Fees actually accepted by Noon Food from the Merchant. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies. Nothing herein limits or excludes (nor is intended to limit or exclude) any statutory rights that Merchant or Noon Food may have under Applicable Laws that cannot be lawfully limited or excluded.
|9. Governing Law and Jurisdiction.|
|The Agreement shall be governed by and construed in accordance with the laws of the Kingdom of Saudi Arabia. Both parties irrevocably submit to the exclusive jurisdiction of the courts in the Kingdom of Saudi Arabia.|
|The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.|
|If any provision of the Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, such provision or part thereof shall to that extent be deemed not to form part of the Agreement but the legality, validity and enforceability of the remainder of the Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid, or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of the Agreement.|
|C. Force Majeure Event.|
|Any delay in or failure by either party in the performance of the Agreement shall be excused if and to the extent such delay or failure is caused by a Force Majeure Event. The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under the Agreement.|
|Merchant may not assign or transfer the Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Noon Food. Noon Food may assign or transfer the Agreement or any or all of its rights or obligations hereunder, in whole or in part, under the Agreement without consent or notification. Noon Food shall be expressly discharged from all obligations and responsibilities arising after the assignment or transfer. Subject to the foregoing, the Agreement shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns.|
|E. Relationship between the Parties.|
The parties expressly agree that:
(a) the Agreement is not an employment agreement, nor does it create an employment or worker relationship (including from a labor law, tax law or social security law perspective), between Noon Food and Merchant or Noon Food and any Noon Food Delivery Partners; and
(b) no joint venture, partnership, or agency relationship exists between Noon Food (and/or Noon Food’s Affiliates) and Merchant. No party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party shall be solely responsible for its employees and contractors used in connection with the Agreement. Except as otherwise expressly provided herein with respect to Noon Food acting as the limited payment collection agent solely for the purpose of collecting payment from Customers on behalf of Merchant, the relationship between the parties under the Agreement is solely that of independent contractors.
|F. Entire Agreement.|
|The Agreement contains the full and complete understanding and agreement between the parties and supersedes all prior and contemporary understandings and agreements, whether oral or written.|
|G. Payment Processing Errors.|
|Noon Food reserves the right, in its sole discretion, to seek reimbursement from Merchant if Noon Food discovers payment processing errors. Noon Food may deduct from Merchant's Item Revenue, debit Merchant's payment method on file, or seek reimbursement from Merchant by any other lawful means to correct any errors. Merchant authorizes Noon Food to use any or all of the above methods to seek reimbursement.|
Unless otherwise expressly mentioned in the Agreement, any notice to the Merchant will be sent to the email address of the authorized signatory or registered address mentioned on the Order Form and/or by notification on Noon Food Tools. Such notice shall be deemed to have been duly served:
(i) immediately, if such notice has been communicated on Noon Food Tools;
(ii) upon actual delivery, if delivery is by hand;
(iii) three business days after being sent by overnight courier, charges prepaid; or
(iv) if sent by email, one (1) business day after such email being sent. All notices to Noon Food should be sent to firstname.lastname@example.org.
|2. Notice regarding revision of fees.|
|Any notice in relation to revision of Fees shall be communicated to Merchant via Noon Food Tools and/or by sending an email on the email address of the authorized signatory mentioned on the Order Form. Merchant undertakes to immediately advise Noon Food of any changes to such registered address or email address.|
|All references to days, dates, months, years, and otherwise the passage of time herein shall refer to the Gregorian calendar to the exclusion of the Hijri calendar.|
|Noon Food may suspend Merchant’s access to the Noon Food Services and/or Noon Food Tools if Noon Food knows or suspects that the Merchant has breached the applicable laws, the Agreement, any other agreement to which the Merchant or its Affiliates may be a party that has an effect on the Agreement, or if Noon Food otherwise consider suspension reasonably necessary taking account of all relevant circumstances.|
Either Party may terminate the Agreement on any Anniversary Date by giving to the other Party written notice of termination no later than thirty (30) days before any such Anniversary Date. In the event of persistent and material breach of this Agreement by Merchant, Noon Food may terminate this Agreement with immediate effect by providing the Merchant with written notice which, if capable of remedy, shall provide the Merchant a period of thirty (30) days to remedy the breach. Upon any termination or expiration of the Agreement for any reason, the Merchant shall: i) remove itself from the Noon Food Tools and Noon Food App and discontinue any Offers or acceptance of Orders; ii) settle all due and accrued Fees up to the date of termination or expiration; (iii) return or destroy all Confidential Information of Noon Food in its possession; iv) act in accordance with Applicable Law with respect to Personal Data; v) return any Noon Food devices or materials to Noon Food; and vi) remove and discontinue any use of the Noon Food Marks. No party shall be liable to the other party for any harm, loss, or damage arising solely from the termination of the Agreement, nor shall Merchant be entitled to any compensation for services or goodwill enjoyed by Noon Food during or after the Term.