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Terms & Conditions for Merchants 0 0

Last updated on May 28, 2020 02:07 in For Merchants » Login / Registration
Posted ByGary Isse

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Thank you for using EatForCharity services, applications and associated software (collectively, “EFC Systems”). By accessing or using any of the EFC Systems, you are agreeing to the terms and conditions below. If there is a conflict between these terms and conditions and additional terms and conditions applicable to a given service, the additional terms and conditions will control for that conflict. Collectively, we refer to the terms and conditions below, any additional terms and conditions, terms and conditions within the accompanying documentation, and any applicable policies and guidelines as the “Merchant Terms and Conditions.” You agree to comply with the Merchant Terms and Conditions and that these Merchant Terms and Conditions control your relationship with us. So please read all the below Merchant Terms and Conditions carefully.

These EatForCharity Merchant Terms and Conditions (“Terms and Conditions”) apply to the service relationship between SHP Business Management & Marketing Consulting (深圳市高效能商务咨询有限公司), its subsidiaries and affiliates (collectively, “EatForCharity” or “EFC”) and the business (“Merchant”) signing up to use EFC. These Terms and Conditions will be referred to as the “Agreement.” The Agreement is entered into as of the date the Merchant applies to use EFC services at https://eatforcharity.cn/merchantsignupselection.

THE SECTION BELOW ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS MERCHANT’S LEGAL RIGHTS.

By using EFC services, Merchant agrees to the terms of this agreement.

If the individual accepting this agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these terms, in which case the term "Merchant" shall refer to such entity and its affiliates. If the individual accepting this agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this agreement and may not use the services.

EFC will include Merchant on the Systems as provided herein and will enable the transmission of orders to Merchant for pickup or delivery (the “Marketing Services”). In connection with the provision of Marketing Services to Merchant, EFC, on behalf of Merchant, may respond to complaints by Merchant’s customers (“Customers”) about items sold by Merchant via EFC. For the avoidance of doubt, as between Merchant and EFC, EFC will retain sole and absolute control over the EFC Systems (and all elements of the user experience and user interface relating to the EFC Systems), including with respect to: (i) the personalization of the EFC Systems for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) adding, removing or otherwise modifying any feature or functionality made available through the EFC Systems to optimize reliability or efficiency of the EFC Systems.

1. Rights and Obligations of EatForCharity

1.1. Food Services

EFC will enable customers to purchase food and beverages from Merchant via (i) EFC’s proprietary ordering, advertising, delivery logistics and billing system at EatForCharity.cn and its associated web-based and mobile properties and apps (the “EFC Systems”); (ii) at EFC’s sole option, any other affiliated brand or Systems, including, without limitation, EatForCharity.cn, ShopShenzhen.cn, ShekouDaily.cn, ShekouDaily.com, ShenzhenMarketing.com and (iii) at EFC’s sole option, at any properties partnered with EFC (each, an “EFC Partner”). The EFC System, together with the systems of any EFC Partners, will be referred to herein as the “Systems.”

1.2. Marketing

EFC will include Merchant on the Systems as provided herein, and will enable the transmission of orders to Merchant for pickup or delivery (the “Marketing Services”). In connection with the provision of Marketing Services to Merchant, EFC, on behalf of Merchant, may respond to complaints by Merchant’s customers (“Customers”) about items sold by Merchant via EFC. For the avoidance of doubt, as between Merchant and EFC, EFC will retain sole and absolute control over the EFC Systems (and all elements of the user experience and user interface relating to the EFC Systems), including with respect to: (i) the personalization of the EFC Systems for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) adding, removing or otherwise modifying any feature or functionality made available through the EFC Systems to optimize reliability or efficiency of the EFC Systems.

1.3. Delivery Services

EFC provides technology services that both (i) enable Merchant to connect with Customers who may purchase items from Merchant and (ii) enable Merchants to fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services. Merchants perform their delivery services for (and are paid by) the Customers, and not EFC and have the option requesting and managing those delivery services using a third-party delivery service (Dada) that has been integrated into the EFC platform. Accordingly, EFC will not be liable or responsible for any delivery service providers or any errors or misrepresentations made by any third-party service provider. EFC has only provided a technical solution for the integration of the third party delivery services and solutions and any merchant that opts to use this feature on EFC does so on their own accord and accepts the terms and conditions laid out by the third party (Dada) for booking rules, charges, claims and delivery rules which will be facilitated by EFC. The Dada Terms & Conditions are available upon request. EFC will gladly submit any claims to Dada and will pass on recoupments accordingly.

1.4. Ownership

EFC owns all rights, titles, and interest in and to the EFC System and any content supplied by EFC, and will have sole editorial control over the EFC System, including the presentation of any content provided by Merchant (“Merchant Content”). Merchant Content may include, without limitation, menus, photographs, trademarks and logos. For the term of this Agreement and for six (6) months thereafter, Merchant hereby grants to EFC a royalty-free, worldwide, sub-licensable, transferable, fully paid-up, irrevocable right and license to use the Merchant Content on the Systems, and for marketing and promotional purposes via any means now known or hereinafter developed. Merchant owns all rights, titles, and interest in and to the Merchant Content, subject to the license granted to EFC herein. EFC may remove Merchant Content on the Systems at any time if it believes, in its sole discretion, that such Merchant Content violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Systems.

1.5. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THIS AGREEMENT, EFC AND ALL EFC PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE SYSTEMS, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER EFC NOR ANY EFC PARTNER WILL BE LIABLE TO MERCHANT FOR DAMAGES RESULTING FROM THE FAILURE OF THE SYSTEMS, SERVICES OR MERCHANT CONTENT. EFC WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO MERCHANT FOR INDIRECT, WILFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF D ATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EFC’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF COMMISSIONS EARNED BY EFC DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

2. Additional Rights and Obligations of Merchant

2.1. Confidentiality 

Merchant will maintain the confidentiality of all non-public information that it acquires in the course of performing the Agreement, including without limitation all Customer Data (as defined below), as well as the terms and conditions of the Agreement (collectively, the “Confidential Information”).

2.2. System Confidentiality

Merchant agrees to keep all details regarding EFC systems, including front end and back end, confidential at all times. 

Merchant will not disclose to any third parties, or use in any way other than as necessary to perform its obligations hereunder, EFC’s Confidential Information and/or systems. Merchant will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective as those set forth herein. Upon expiration or termination of the Agreement and as requested by EFC, Merchant will deliver to EFC (or destroy at EFC’s election) any and all materials or documents containing the Confidential Information, together with all copies thereof in whatever form.

Failure by Merchant to comply with the Confidentiality clause may result in the immediate termination and removal of said Merchant from all EFC systems/platforms. 

2.3. Customer Data

“Customer Data” means (i) any and all information about customers generated or collected by EFC or Merchant through the Systems or Services, including, but not limited to, customer’s name, delivery address(es), email address(es), phone number(s), and customer preferences and tendencies and (ii) any information that may otherwise be considered “personal data” or “personal information” under applicable law. Merchant acknowledges that all Customer Data is the sole and exclusive property of EFC (or, as applicable, the EFC Partner). Accordingly, Merchant will use Customer Data for the sole purpose of fulfilling applicable customer orders or otherwise satisfying Merchant’s obligations hereunder. Merchant (and any other persons to whom Merchant provides any Customer Data only as necessary to perform the Agreement) will implement and maintain comprehensive administrative, physical and technical safeguards in accordance with current best practices in Merchant’s industry in order to protect, handle, and secure Customer Data. Merchant will also be responsible for any breach of this provision by any third-party service provider engaged by Merchant. Merchant will notify EFC in a secure manner immediately upon a data security breach or any reasonable suspicion thereof or any other unauthorised disclosure of Confidential Information, and assist and cooperate with EFC concerning any remedial measures and any disclosures to affected parties, in each case as requested by EFC or required under applicable law.

2.4. Usage of Systems and Services

Merchant agrees that its use of the Systems and Services is subject to the EatForCharity Terms and Conditions as in effect at the time (available at https://eatforcharity.cn/support/knowledge/details/146/Terms%20%20Conditions%20for%20Merchants.html), and further agrees that’s access to and use of Customer Data will be subject to the EatForCharity Privacy Policy as in effect at the time (available at https://eatforcharity.cn/support/knowledge/details/141/EatForCharity%20Privacy%20Policy.html).

2.5. Temporary Disabling of Ordering and Shop Closures

Merchants on EFC have the ability to temporarily "disable ordering" if they get too busy to manage their online orders during a certain period of time. Additionally, Merchants may select the "close shop" option if there are any circumstances that require the business to close its doors temporarily, in order to let consumers know that the business is temporarily closed for any and all business. Both options are meant to be temporary solutions to be used for short periods of time. Remaining open or accepting orders on other online platforms while using these options on EatForCharity will result in merchant being notified to remedy the situation, failing which the said Merchant will be removed from EFC. Once merchant is removed and wishes to join EatForCharity again then said merchant will have to reapply to join EatForCharity.  

2.6. Claims, Actions, Proceedings and Damages

Merchant will indemnify and hold EFC (including its directors, employees, officers, agents) harmless from any and all claims, actions, proceedings and damages arising out of Merchant’s activities, including, without limitation, (i) any third-party transactions or financing arrangement; (ii) Merchant’s provision, calculation, reporting or remission of taxes; or (iii) any breach or alleged breach of the representations, warranties or covenants set forth in the Agreement. EFC will provide prompt notice to Merchant of any potential claim subject to indemnification hereunder. Merchant will assume the defense of the claim through counsel designated by it and reasonably acceptable to EFC, provided that EFC may use counsel of its choice at its own expense. Merchant will not settle or compromise any claim or consent to the entry of any judgment without the written consent of EFC, which will not be unreasonably withheld. EFC will reasonably cooperate with Merchant in the defense of the claim, at Merchant’s expense.

2.7. Item Availability 

Merchant will make Items available for purchase through the EFC Systems during its normal business hours. If, for any reason, any particular item(s) are not available (for example, are sold out), then Merchant shall immediately update the EFC System to reflect the unavailability of the item(s) so that Customers do not order unavailable item(s). Merchant will prepare, handle and store all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety ("Food Safety Standards"). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If Merchant fails to prepare Items in accordance with Food Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), EFC may, in its sole discretion, remove such Item from the EFC Systems. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the EFC Systems. Merchant represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the EFC Systems is, and at all times will remain, accurate. In addition, Merchant will ensure that the contents of its menu (including any notifications about ingredients, nutritional information, allergen information, etc.) are accurate and comply with all applicable laws and regulations.

2.8. Item Responsibility

Merchant acknowledges and agrees that EFC does not take title to any Item at any time. Notwithstanding, Merchant shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Merchant’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Merchant’s internal standards. EFC may, in its sole discretion, deduct reimbursement costs from the payment. To the extent required by applicable law, and only for the purpose of the expedited provision of Items. Items are sold to Customers under Merchant’s retail and food delivery license privileges.

2.9. Restrictions

In connection with the access to and use of the EFC Systems, Merchant will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide any EFC Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the EFC Tools or EFC Services (except as otherwise authorized by EFC. Merchant will not (and will not allow any third party to) use the EFC Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the EFC Systems to directly or indirectly compete with EFC. 

3. Fees

In consideration for Merchant’s access to EFC Systems, Merchant/s agree that they will be paid less 8% from the revenue collected via the EFC platform as specified below (collectively, the “Commissions”) of the order Sub Total; which does not include fees such as "delivery," "cutlery," "tips," "packaging," or "tax" (if tax is charged separately and not included in the individual Food Items price).

4. Pricing:

Merchants agree that all prices listed on EFC will never be more expensive or inflated compared to any other listing on any other platforms. Neither will merchants participate in price fixing while listed on EFC’s platform.

5. Charity Donations

EFC will donate a portion of the Commissions it receives from the proceeds of each order to charity.

5.1 Definition of Charity

EFC will invite charities ("Charity") to register on EFC System so that Customers may select them to be the beneficiary of the donated funds from their orders. This will be done just before the customer checks out his/her order.

EFC is not liable for any action/s taken by Charities and does not monitor or verify any activities of Charities. Charities are made available for Customers to select with customers choosing a Charity, at his/her own discretion, to donate to.

5.2. Charity Information
Information about the Charities that EFC customers may select as beneficiaries is provided by the Charities themselves and is not monitored, edited, verified or altered in any which way by EFC before being published across all EFC systems.

5.3. Donated Amount

A percentage of 2% will be deducted from Commissions charged to Merchants by EFC to donate to Charities selected by customers utilizing any EFC system.

5.4. Transparency

Donation amounts and statistics regarding donations made from orders to Merchant, can be viewed by Merchants in EFC System at https://EatForCharity.cn/merchant

6. Terms

The Agreement may be cancelled by either party for any reason (or no reason) upon three (3) days’ prior written notice to the other party.

7. Dispute Resolution

Merchant and EFC agree that all claims or disputes arising out of this Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the laws of the People's Republic of China and evidences a transaction involving commerce. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in Shenzhen, China, unless otherwise agreed, with arbitration taking place in either English or Mandarin Chinese. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein and/or the applicable rules, the interpretation, applicability or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator.

The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per applicable laws.

To the extent permitted by the applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.

8. Notices

All notices under the Agreement will be in writing and will be deemed to have been duly given if given on the earliest to occur of (i) upon delivery, or refusal of delivery, if personally delivered; (ii) on the third business day after deposit with China Post using tracking information; (iii) on the first business day after delivery to a nationally recognised overnight courier if sent by such a courier; and (iv) on the day transmitted, as indicated by the transmission confirmation, if given by email (however, any notice transmitted by email after 5:00 PM local time at the destination of the recipient or on a day other than a business day will be considered given on the next business day). All notices to Merchant will be sent to Merchant at the address provided on the Services Form under “Contact Information,” or such other address provided by Merchant and accepted by EFC in writing. All notices to EFC will be sent to the below, unless otherwise provided by EFC:

深圳市南山区蛇口海上世界广场英瑞商务3楼301
Email: info@eatforcharity.cn

9. General Terms

The territory of this Agreement is the People’s Republic of China ("Territory"), and all payments issued under this Agreement must be in Chinese Yuan. EFC and Merchant are independent contractors, and nothing herein may be construed to create any agency, partnership or joint venture between them. Notwithstanding anything to the contrary, neither party has any authority of any kind to bind the other party in any respect whatsoever. The Agreement is not intended to benefit, nor will it be deemed to give rise to, any rights in any third party. No ambiguity will be construed against any party based upon a claim that such party drafted the ambiguous language.

The Agreement and any other agreements or terms incorporated herein by reference, constitute the entire agreement between the parties and supersedes any prior understanding (written or oral) on the subject matter hereof. In the event of any conflict between the Agreement and any of the EFC Terms of Use, or the EFC Privacy Policy, the terms of the Agreement will control. EFC hereby reserves the right to update and modify these Terms at any time at its sole discretion. It is Merchant’s responsibility to review these Terms periodically to ensure compliance. The Agreement may not be amended by Merchant unless such amendment is signed by an authorised representative of EFC. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then that provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. In the event of a breach, in addition to any remedies at law or in equity, the non-breaching party will be entitled to seek specific performance and immediate injunctive relief. Failure by either party to require performance or claim breach will not be construed as a waiver. A party will not be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. Merchant may not assign the Agreement without the prior written consent of EFC, and if permission is secured, the assignor will provide EFC with advance written notice so that payment can be directed appropriately. Any assignment by Merchant in violation of this provision will be deemed a nullity. EFC may freely assign the Agreement. The Agreement will be binding on the parties’ permitted heirs, successors and assignees. Any dispute, controversy or proceeding arising out of or relating to the Agreement or the relationship between the parties hereto will be governed by in accordance with the terms of the Agreement. This Section 8, the customer data, ownership, confidentiality, Laws and Compliance/Governance), limitation of liability and arbitration provisions and any other terms required for the full interpretation of the Agreement following expiration or termination will survive any expiration or termination of the Agreement.

LAST UPDATED: May 22, 2020

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