This Noon Food (KSA) Services Agreement is by and between Noon E Commerce Solutions One Person Company LLC (“Noon Food”) and the legal owner/operator of a Restaurant (the “Merchant”) (the “Agreement”).
The Agreement shall consist of this Order Form and the Supplemental Terms (currently available at https://food.noon.com/ksa-en/terms). In the event of a conflict between this Order Form and the Supplemental Terms, the Order Form shall prevail. By signing this Order Form, Merchant declares that it has read, understood and agrees to the Order Form and the Supplemental Terms and has sought and obtained independent and separate advice prior to entering into the Agreement. If Merchant objects to any amended Supplemental Term, Merchant may terminate this Agreement in accordance with clause V of the Order Form. In accordance with clause 15(b) of the Supplemental Terms, any modification or amendment to this Order Form shall be effective only if in writing and signed by both parties. Capitalized terms used but not defined herein shall have the meanings given to such terms in the Definitions section of the Supplemental Terms.
I. Noon Food Services:
Noon Food and/or its Affiliates may make available to Merchant certain services (the “Noon Food Services”) to facilitate the marketing, sale and provision of food, beverages and/or other products (“Items”) by Merchant to its customers (“Customers”). In connection with the Noon Food Services, Noon Food and/or its Affiliates may make available to Merchant, on a royalty-free basis, a website, application and/or technology interface to access, select and use the Noon Food Services (collectively the “Noon Food Tools”). Noon Food may also make available to Customers, on a royalty- free basis, a website, application, or other technology interface to purchase items and, if applicable, delivery services from Merchant (the “Noon Food App”).
The Noon Food Services are as follows.
MARKETPLACE. This is the core service Noon Food offers. Noon Food shall make available to the Merchant the Noon Food App allowing the Merchant to (a) receive requests for Items from Customers; (b) sell such Items to Customers; and (c) receive payment from Customers for such Items (the “Marketplace Service”). In addition to this on-demand lead generation, the Marketplace Service includes additional support such as operational, payment processing, customer experience, and other ancillary support. For the avoidance of doubt, the Marketplace Service does not include delivery of Items to Customers by Noon Food. In consideration for the Marketplace Service, Noon Food will charge Merchant a Marketplace Service Fee of 12% of each Item sold by Merchant via the Noon Food App.
DELIVERY. Noon Food shall make available to Merchant delivery and logistic services allowing Items to be transferred from Merchant to Customer via Noon Food Delivery Partners (the “Noon Food Delivery Service”). Noon Food will charge Merchant a Delivery Service Fee of 5% of each Item sold by Merchant via the Noon Food App and delivered by Noon Food.
HYBRID: Noon Food may make available the capability for Merchants to have Orders delivered to Customers by Noon Food, by the Merchant (the “Restaurant Fulfilled Method”) or picked up from a restaurant with no involvement of a Delivery Partner (the “Pickup Method”). In this case, the Delivery Service Fee shall only be applicable on Orders delivered via the Noon Food Delivery Services.
Noon Food may offer a discount on the Marketplace Service Fee if the Merchant commits to exclusively using Noon Food as its third-party online ordering and take-away service provider, except as permitted in writing by Noon Food.
Exclusivity Commitment: Merchant acknowledges and agrees that it shall not, from the Effective Date, avail services substantially similar to the Noon Food Services from any Noon Food Competitor except as permitted in writing by Noon Food (the “Exclusivity Commitment”). In consideration of the Merchant’s Exclusivity Commitment, Noon Food shall discount the Marketplace Service Fee to 0% of each Item sold by Merchant via the Noon Food App for the first six (6) months from the Effective Date, and 5% for the remaining duration the Merchant honors the Exclusivity Commitment.
For the avoidance of doubt, if the Merchant does not honor the Exclusivity Commitment at any time, the Marketplace Service Fee will revert to the percentage listed in clause I of this Order Form. Noon Food reserves the right to charge the higher Marketplace Service Fee retroactively on all Items sold by Merchant via the Noon Food App from the date the Merchant breached the Exclusivity Commitment.
III. Additional Fees
The following Fees will apply:
DEVICE: If Merchant requires a device to access the Noon Food Tools, Merchant will pay to Noon Food an Device Fee of 600 SAR for each device required by the Merchant ("Device Fee"). The Device Fee will include a tablet that will be owned by the Restaurant. Merchant agrees that the Device Fee shall be payable by the Merchant via Cash, Cheque or Noon Food deducting from the Item Revenue, until Noon Food recovers the Device Fee.
PHOTOGRAPHIC CONTENT: If Merchant does not have photographic content that meets Noon Food’s requirements (as determined by Noon Food in its sole discretion), Merchant will pay to Noon Food a Photographic Content Fee of 1000 SAR per full Menu made available on the Noon Food App for Noon Food to arrange appropriate photographs (“Photographic Content Fee”). This Photographic Content Fee will be charged any time a Menu changes and the Merchant does not have pictures that meet Noon Food requirements. Merchant agrees that the Photographic Content Fee shall be payable by the Merchant via Cash or Cheque or Noon Food deducting from the Item Revenue, until Noon Food recovers the Photographic Content Fee.
CANCELLATION: In the event the Merchant cancels an order after it has been accepted via the Noon Food Tools, Noon Food will charge Merchant a Cancellation Fee of 2% of the cancelled Order.
Following the earlier of (a) the expiration of the Initial Term or (b) 1 March 2023, Noon Food may amend the percentages of any of the Fees listed in clauses I-III of this Order Form provided that Noon Food communicates such changes with Merchant at least thirty (30) days prior to the date such changes are to take effect.
IV. Supplemental Terms.
a. Merchant agrees to the Supplemental Terms (including the Definitions, General Supplemental Terms and the Specific Supplemental Terms), currently available at https://food.noon.com/ksa-en/terms as may be updated from time to time.
b. Noon Food may amend the Supplemental Terms from time to time, as allowed by Applicable Law, upon giving reasonable notice (the "Notice Period") and by Noon Food posting such amended Supplemental Terms at https://food.noon.com/ksa-en/terms or Noon Food otherwise making such amended Supplemental Terms available to Merchant. However, the Notice Period will not apply where an amendment is required by law or relates to the expansion or introduction of new services or functionalities to the existing Noon Food Services and/or Noon Food Tools or any other change which is effectively favorable to Merchant and does not reduce the scope of its rights or increase its responsibilities. Merchant’s continued access to or use of the Noon Food Services and/or Noon Food Tools after such amended Supplemental Terms become effective constitutes Merchant’s consent to be bound by the amended Supplemental Terms. If Merchant objects to any amended Supplemental Term, Merchant may terminate this Agreement in accordance with clause V of the Order Form.
d. By making use of any of the Noon Food Services, Merchant shall be deemed to agree to the Specific Supplemental Terms for such specified service or Method in addition to the terms of this Order Form, the Definitions and the General Supplemental Terms. If Merchant has not made use of a specific Noon Food Service or Method, the Specific Supplemental Terms for that service will not apply to Merchant.
V. Term and Termination.
This Agreement shall commence on the date that the Agreement is executed by the Merchant (electronically or otherwise) (the “Effective Date”) and, unless earlier terminated as provided below, will continue for a period of two (2) years from the Effective Date ("Initial Term") and will automatically renew for successive one (1) year periods (each, a "Renewal Term" and together with the Initial Term, the "Term"). Either party may terminate this Agreement in the event of a material breach by the other party if the breach is not cured by such party within fifteen (15) days’ written notice thereof by the non-breaching party. Either party may terminate this Agreement in its entirety at any time without cause by giving thirty (30) days’ prior written notice of termination to the other party. In addition, Noon Food may suspend (in accordance with clause 1(j) of the General Supplemental Terms) or otherwise terminate this Agreement with immediate effect if Noon Food deems it is reasonably necessary to do so, including in the event of a Brand Matter. A "Brand Matter" means an event that, in Noon Food’s reasonable judgement, causes it or its Affiliates to have concern for the reputation of its brand, including, but not limited to, high cancellation or non-acceptance rates (as determined by Noon Food) or matters related to the alleged violation of any Applicable Laws. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement and all payment obligations, will survive the termination of this Agreement.
VI. Governing Law and Jurisdiction.
This Agreement shall be governed by and construed in accordance with the laws of Kingdom of Saudi Arabia. Both parties irrevocably submit to the exclusive jurisdiction of the courts of KSA.
Any notice to Noon Food should be provided to Noon E Commerce Solutions One Person Company LLC Attention: legal, Address: Airport road, King Khalid International Airport, Riyadh Front, Unit No. 1, Riyadh 13414, Riyadh, Kingdom of Saudi Arabia; Email: email@example.com. Notices to the Merchant should be provided to the registered address and email address associated with the Merchant’s account or by posting on the Noon Food Tools. Notices shall be sent in accordance with clause 15(j) of the General Supplemental Terms.
This Agreement is made in English and Arabic. In the event of a dispute as to the terms of this Agreement, including with regards to the Supplemental Terms, the English version shall prevail.
IX. Electronic Acceptance
By clicking “I accept” or signing below, Merchant expressly acknowledges that Merchant has read, understood, and taken steps to thoughtfully consider the consequences of this Agreement, that Merchant agrees to be bound by the terms and conditions of this Agreement, and Merchant is legally competent to enter into this Agreement with Noon Food.
X. Additional Terms.