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These “terms & conditions” are intended to make aware about the rights and responsibilities of user with respect to use of our website https://www.upcakedigital.com/ (the “Website”) and the Android application as “UpCake - Custom Cake Builder Cake Order Online” at Play Store and iOS application as “UpCake - Custom Cake Builder” at App Store, which will be used for availing the services provided by us (the “App”). The Website and the App are jointly referred to as the “Platform”.
Please read these Terms carefully. By accessing or using the UpCake Digital platform, you are agreeing to these Terms and concluding a legitimately binding with UpCake Digital You may not use the services if you do not accept the Terms & Conditions or are unable to be bound by the terms, of your use of this Platform is at your own risk.
In order to use the services, you must first agree to the terms. You can accept the terms by:
l Clicking to accept or agree to the terms, where it is made available to you by UpCake Digital in the user interface for any particular Service; or
l Actually using the Services. In this case, you understand and agree that UpCake Digital will treat your use of the services as acceptance of the terms from that point onwards.
This Platform is built, maintained and handled by -
UPCAKE DIGITAL PRIVATE LIMITED, a company incorporated under the laws of the Company Act, 2013. with CIN No. U72900GJ2021PTC120802, having its registered office at RAJKOT, GUJARAT, INDIA.
Having a branch in Canada as UPCAKE DIGITAL INC. with Incorporation certificate number 1000325239, having its office in BRAMPTON, CANADA.
Terms of Use:
Please read these Terms of Use carefully before you use the services or even merely using the Platform, you shall be contracting with UpCake Digital and you signify your acceptance to this Terms of Use and other policies (including but not limited to the Cancellation Policy, Refund Policy, Privacy Policy as posted on the Platform and amended from time to time) which takes effect on the date on which you download, install or use the Platform, and create a binding arrangement to abide by the same.
UpCake Digital (i.e. UpCake Digital Pvt. Ltd. as in India and UpCake Digital Inc. as in Canada) enables transactions on this Platform between participating Merchants (i.e. Cake Shops / Bakers) and Users(i.e. Cake Buyers / Customers), dealing in cake design, ordering, preparing, delivering, and receiving. Customers can choose and place an online order for a variety of Cakes and services listed
UpCake Digital constantly strives to provide you with accurate information on the Platform. However, in the event of an error, UpCake Digital may, as its sole discretion, contact you with further instructions.
Eligibility to use service:
You hereby represent and warrant that you are at least eighteen (18) years of age or above and are fully able and competent to understand and agree to the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms.
You are in compliance with all laws and regulations in the country in which you live when you access and use the Services. You agree to use the Services only in compliance with these Terms and applicable law, and in a manner that does not violate our legal rights or those of any third party(ies).
Ownership of UpCake Digital Content and Proprietary Rights:
You agree, undertake and confirm that your use of Platform shall be strictly governed by the following binding principles:
You shall not host, display, upload, download, modify, publish, transmit, update or share any information which:
l belongs to another person and which you do not have any right ;
l is grossly harmful, harassing, blasphemous, defamatory, obscene, pornographic, pedophilic, slanderous, criminally inciting or invasive of another's privacy, hateful, or racially, ethnically objectionable, disparaging, relating or encouraging money laundering or gambling, or otherwise unlawful in any manner whatsoever or unlawfully threatening or unlawfully harassing including but not limited to "indecent representation of women" within the meaning of the Act;
l is misleading or misrepresentative in any way;
l is patently offensive to the online community, such as sexually explicit content, or content that promotes obscenity, paedophilia, racism, bigotry, hatred or physical harm of any kind against any group or individual;
l harasses or advocates harassment of another person;
l involves the transmission of "junk mail", "chain letters", or unsolicited mass mailing or "spamming";
l promotes illegal activities or conduct that is abusive, threatening, obscene, defamatory or libellous;
l infringes upon or violates any third party's rights including, but not limited to, intellectual property rights, rights of privacy (including without limitation unauthorized disclosure of a person's name, email address, physical address or phone number) or rights of publicity;
l provides instructional information about illegal activities such as making or buying illegal weapons, violating someone's privacy, or providing or creating computer viruses;
l contains video, photographs, or images of another person (with a minor or an adult);
l tries to gain unauthorized access or exceeds the scope of authorized access to the Platform or to profiles, blogs, communities, account information, bulletins, friend request, or other areas of the Platform or solicits passwords or personal identifying information for commercial or unlawful purposes from other users;
l engages in commercial activities and/or sales without our prior written consent such as contests, sweepstakes, barter, advertising and pyramid schemes, or the buying or selling of products related to the Platform. Throughout these Terms of Use, UpCake Digital’s prior written consent means a communication coming from UpCake Digital’s Legal Department, specifically in response to your request, and expressly addressing and allowing the activity or conduct for which you seek authorization;
l solicits gambling or engages in any gambling activity which is or could be construed as being illegal;
l interferes with another user's use and enjoyment of the Platform or any third party's user and enjoyment of similar services;
l refers to any website or URL that, in our sole discretion, contains material that is inappropriate for the Platform or any other website, contains content that would be prohibited or violates the letter or spirit of these Terms of Use;
l harm minors in any way;
l infringes any patent, trademark, copyright or other intellectual property rights or third party's trade secrets or rights of publicity or privacy or shall not be fraudulent or involve the sale of counterfeit or stolen products;
l violates any law for the time being in force;
l deceives or misleads the addressee/users about the origin of such messages or communicates any information which is grossly offensive or menacing in nature;
l impersonate another person;
l threatens the unity, integrity, defence, security or sovereignty, friendly relations with foreign states, or public order or causes incitement to the commission of any criminal offence or prevents investigation of any offence or is insulting any other nation;
l is false, inaccurate or misleading;
l directly or indirectly, offers attempts to offer, trades or attempts to trade in any item, the dealing of which is prohibited or restricted in any manner under the provisions of any applicable law, rule, regulation or guideline for the time being in force; or
l creates liability for us or causes us to lose (in whole or in part) the services of our internet service provider or other suppliers.
l Further, any other act, which harm the benefit of general people and any other activity which is not beneficial for society at all.
We reserve the right, but have no obligation, to monitor the materials posted on the Platform. UpCake Digital shall have the right to remove or edit any content that in its sole discretion violates, or is alleged to violate, any applicable law or either the spirit or letter of these Terms of Use. Notwithstanding this right, YOU REMAIN SOLELY RESPONSIBLE FOR THE CONTENT OF THE MATERIALS YOU POST ON THE PLATFORM AND IN YOUR PRIVATE MESSAGES. Please be advised that such Content posted does not necessarily reflect UpCake Digitial Pvt. Ltd. views. In no event, UpCake Digitial Pvt. Ltd. shall assume or have any responsibility or liability for any Content posted or for any claims, damages or losses resulting from the use of Content and/or appearance of Content on the Platform. You hereby represent and warrant that you have all necessary rights in and to all Content which you provide and all information it contains and that such Content shall not infringe any proprietary or other rights of third parties or contain any libelous, tortious, or otherwise unlawful information.
Terms of Service
Access to the Platform, Accuracy and Security:
We do not warrant that the Platform will be compatible with all hardware and software which you may use. We shall not be liable for damage to, or viruses or other code that may affect, any equipment (including but not limited to your mobile device), software, data or other property as a result of your download, installation, access to or use of the Platform or you are obtaining any material from, or as a result of using, the Platform. We shall also not be liable for the actions of third parties. We do not represent or warrant that the information available on the Platform will be correct, accurate or otherwise reliable.
Privacy Policy
We ("UpCake Digital") are fully committed to respecting your privacy and shall ensure that your personal information is safe with us. This privacy policy sets out the information practices of www.upcakedigital.com ("Website") and Mobile Apps, including the type of information is collected, how the information is collected, how the information is used and with whom it is shared. Reference to "you" in this Privacy Policy refers to the users of this Website and Mobile Apps collectively as a “Platform”. By using or accessing this “Platform”, you agree to the terms and conditions of this Privacy Policy. You also expressly consent to our use and disclosure of your Personal Information in any manner as described in this Privacy Policy and further signify your agreement to this Privacy Policy and the Terms of Use (being incorporated by reference herein). If you do not agree with the terms and conditions of this Privacy Policy, please do not proceed further or use or access our “Platform”.
("TERMS & CONDITIONS") FOR CUSTOMER OF ONLINE ORDERING SERVICES :
1. UpCake Digital shall not be liable for any defects in Cake/Food, in terms of design, order processing, quality, and/or service.
2. All the prices and availability are made by the Merchants. Any extra charges applicable such as delivery charges, extra service/food charges, etc. are managed and controlled by the Merchants.
3. For now, UpCake Digital shall not deliver items. It is the Merchants, who provide delivery at their own fees and capacity. Merchants shall not deliver the items in areas which fall outside the scope of their service. While adding the delivery address, the App shall determine such delivery availability based on settings parameter set by Merchant under their control panel.
4. You shall undertake to provide accurate directions and information at the time of selecting the delivery option in at the App. If such delivery is not made within the required time due to the wrong information provided, then in such case UpCake Digital shall not be held responsible.
Account Registration:
A user shall be required to furnish the following details before using the Service/s of UpCake Digital. The user registers themselves from the App by providing the following details:
a. Name
b. Email (Login via Google/Facebook/Apple)
c. Phone
d. Address
1. Under the Account Tab in the App, the user can able to see their past Orders, manage Profiles and manage different delivery addresses.
2. UpCake Digital holds an exclusive right to terminate the account or block the account of the user at anytime. If the user uses the Platform for any other purpose then in such case the UpCake Digital account shall be terminated or blocked without giving any prior notice to the user.
3. A user can create only one account with the same email address, mobile number and user type (Google/Facebook/Apple).
4. UpCake Digital shall not be responsible for any late delivery/cancellation due to the wrong information provided by the user. If the user does not provide correct information, then in such case UpCake Digital can delete the account of such user.
1. A user can cancel the order using the “Cancel Order” button under Order Tab in the Account Section in the App. A user shall not be entitled to cancel any order after 60 minutes (this can vary and be controlled by UpCake Digital) from the order placed and/or it has been confirmed (i.e. marked as “Received”) by the Merchant.
2. UpCake Digital holds an exclusive right to cancel the order of the user in an unavoidable condition. Intimation of such cancellation shall be made by the customer executive of UpCake Digital through the mobile number provided in the Platform. In such a case, no cancellation fee will be charged and the user can place the order again.
3. If the order placed by the user is not available with the Merchant, then in such case UpCake Digital shall inform the about the same to the user and the user can either opt for a refund if the payment is already made or can modify the order. In case the user opts for a refund, the amount shall be sent to the source of a transaction within 7-10 working days. UpCake Digital might apply some processing fees and other unavoidable transaction loads.
Refund:
1. Other than Cancellation, No refund shall be generated in any situation.
2. The policy of refund shall only be applicable to the order in which payment is made through App.
3. UpCake Digital always would like to be neutral between Merchants and users. Though, in any undefined scenario or situation, the decision made by UpCake Digital remains final and acceptable to all.
Bookings and Financial Terms:
1. The Platform allows you to place/cancel your order. A user can place the order by selecting the Merchant and the item offered by them.
2. Every order shall be confirmed by the Merchants within an appox. 60 minutes (this can vary and be controlled by UpCake Digital) from placing the order.
3. A user shall not be able to cancel the order once it has been confirmed by the Merchant.
4. UpCake Digital accepts payments through debit card/credit card for now. UpCake Digital shall charge such transaction charge and other taxation applicable under any law for the time being in force.
Contact us:
You can contact us for any query regarding this Platform.
For query related to the App, please contact:
Email: support@upcakedigital.com
ü If any person or cake shop or business wants to register them with the Platform as cake seller or cake bakers, they need to register (“Become a Parther”) themselves via Website from under “Become A Partner” and provide all necessary information to the Platform.
ü All information, including but not limited to Name of the owner, Name of the cake shop, Logo, Address, Email, Phone, City, Working hours, Various cake offerings, Delivery options, GST/HST details, FSSAI details, Bank details etc.
ü Once the baker/cake shop (“Merchant Partner”) will be made available on the “Platform”, the menu and price listings have to be monitored and updated on a regular basis so as to achieve the best results. Moreover, the Commission Payments will be deducted byUpCake Digital on an Order amount basis.
ü These Terms & Conditions are part of the Merchant Partner Enrolment for Online Ordering Services("Become A Partner") and constitute a binding agreement, whether personally or on behalf of an entity (the "Merchant Partner"), and UpCake Digital and its affiliates (collectively,"UpCake Digital"), regarding use of UpCake Digital’s Platform for the provision of Merchant Services / Products (as defined below) by the Merchant Partner to the Customers (as defined below).
UpCake Digital’s Obligations:
i. UpCake Digital will (a) list Merchant Partner’s menu and the price list on the Platform, and (b) transfer to the Merchant Partner, the amounts received from the Customers in accordance with the agreed Terms set out herein.
ii. UpCake Digital will display on the Platform, on best effort basis, all necessary information provided by the Merchant Partner. However, UpCake Digital is not under any obligation to display any information which is not in compliance with UpCake Digital’s policies and guidelines.
iii. UpCake Digital will transmit the Orders placed by the Customer with the Merchant Partners as per below:
a. Merchant Partner having the Merchant Application (this is not introduced for now, may come later the date).
b. Merchant Partner using their own device, without Merchant Application to receive Orders: Order transmission through SMS and / or Email notification and / or Phone call on an immediate basis through the Service Operator. In the event, the Merchant Partner fails to answer the phone calls, UpCake Digital reserves the right to temporarily restrict/ deactivate Merchant Partner's Online Ordering services to avoid any Customer complaints. Merchant Partner's access shall be reinstated upon specific request made to UpCake Digital customer support center. UpCake Digital reserves the right to cancel any Order where Merchant Partner is unable to communicate its response (a) acceptance/ rejection of the Customer Order and/ or (b) Order delivery timelines;
c. Where transmission of Order is to the Merchant Partner owned device without Merchant Application, UpCake Digital’s Service Operator shall communicate Customer Order to the Merchant Partner (through SMS and/or phone call) and communicate Merchant Partner response with respect to (i) acceptance / rejection of Order; (ii) delivery time; (iii) no-response from Merchant Partner or any such information as may be made available by UpCake Digital from time to time; to the Customer through Customer Application. The Merchant Partner agrees that all communication undertaken by UpCake Digital with the Merchant Partner via phone call may be recorded.
Iv. For the avoidance of doubt it is hereby expressly clarified that UpCake Digital is only responsible for providing (i) a Platform to the Merchant Partner to list, offer and sell the Merchant Services / Products to the Customers and/or (ii) Logistics Services (if applicable) and that UpCake Digital will not be responsible or liable for (i) the quality of the Merchant Services / Products listed and advertised on the Platform; and/or (ii) the processing of the Orders which have been placed by the Customers with the Merchant Partner on the Platform; and/or (iii) any delay in preparation of the Order by Merchant Partner.
v. UpCake Digital may suspend the Merchant Partner’s account if the Merchant Partner 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.
vi. While providing Logistics Services:
a. UpCake Digital shall not be responsible or liable for the delivery of Orders or any issues associated therewith unless, Merchant Partner has contractually opted for Logistics Services from UpCake Digital. Further, where the Merchant Partner has opted for Logistics Services, UpCake Digital shall only be responsible to tally the number of items ordered against the Order received. Merchant Partner acknowledges and agrees that UpCake Digital shall not be responsible for quality or quantity (if the packet of the Order is not tampered with during delivery) of the Order and the Merchant Partner shall be solely responsible for the quality and quantity of the Order.
vii. UpCake Digital shall provide the Merchant Partner with a web dashboard in the event the Merchant Partner has a designated device to access such web dashboard.
viii. UpCake Digital is not responsible for any necessary food-related certificates required by the merchants/home bakers as per the law of the country.
Merchant Partner’s Obligations
I. Merchant Partner will not discriminate while providing Merchant Services / Products to Customers and in servicing Orders received from Customer ordering via the Platform. Merchant Partner will not provide any preferential treatment to customers ordering independently from the Merchant Partner (i.e. customers ordering directly from a Merchant Partner).
II. Merchant Partner shall ensure that all mandatory information pertaining to taxes, levies, and charges applicable to the Order(s) are clearly visible to the Customers on their invoice as per the applicable laws.
III. Merchant Partner will ensure that the information provided to UpCake Digital is current and accurate, including but not limited to the Merchant Partner name, address, contact telephone number, email, manager/contact person details, delivery times, opening hours, menus, price lists, taxes, service addresses, and other relevant information.
IV. Merchant Partner shall ensure that it is the sole author/owner of, or otherwise controls all the content/material, including but not limited to the Merchant Partner’s name, establishment name, logo, menu items, images of the Cake (food and beverage) / menu items, etc. transmitted or submitted by the Merchant Partner to UpCake Digital either through the Platform or otherwise (“Content”), or has been granted the right to use such Content from the rights holder of such Content and that it does not violate or infringe the rights of any third party or applicable laws;
V. Merchant Partner shall process and execute the Order(s) promptly.
VI. The Merchant Partner shall be obligated to turn off the “Accepting Delivery” feature on its online ordering mechanism whenever the Merchant Partner is unable to provide Merchant Services / Products to the Customer.
VII. Merchant Partner acknowledges and agrees that in the event the Customer’s experience with the Merchant Partner and the Merchant Services / Products is hampered on account of acts and omissions attributable to the Merchant Partner, including but not limited to, frequent rejection of Order(s), UpCake Digital reserves the right to take appropriate action in accordance with its policies, which may be amended from time to time.
VIII. Merchant Partner shall inform UpCake Digital about any change or modification made to the Order by the Customer, directly with the Merchant Partner.
IX. Merchant Partner hereby agrees that if it accepts the Order cancellation request raised by a Customer via the Platform for Merchant Partner, it shall not be eligible to receive any Order Value or amount for such cancelled Order.
X. Merchant Partner shall ensure that when a Customer pays online for an Order and the Merchant Partner is undertaking logistics, the Merchant Partner or its representative collects a signed receipt from the Customer upon delivery of the Order. In the event of a dispute in respect of whether the Merchant Partner is entitled to payment by UpCake Digital in accordance with these Terms, UpCake Digital will not be required to make any such payment unless the Merchant Partner provides UpCake Digital with a copy of the signed receipt.
XI. Merchant Partner shall retain the proof of delivery for a period of 180 days from the date of delivery.
XII. In the event the Merchant Partner undertakes delivery of any Order, it shall ensure only trained personnel undertake such delivery and the safety of the Cake (food and beverage) is not compromised at any time until the Order is received by the Customer. The Merchant Partner agrees to indemnify UpCake Digital for any claims that may arise on account delivery of Orders undertaken by the Merchant Partner.
XIII. The Merchant Partner warrants that the Cake (food and beverage) provided to Customers under the Merchant Services/Products are:
a. of high quality and fit for human consumption;
b. compliant with Food Safety and Standards Act (India), 2006 and the rules, regulations, licenses, standards and guidelines issued thereunder;
c. compliant with all other relevant legislation, including all applicable food/bakery industry regulations.
XIV. Where the Merchant Partner avails any Optional Services, the Merchant Partner will additionally be liable to abide by the terms and conditions of such Optional Services or any other terms and conditions pertaining to the Optional Services, communicated by UpCake Digital from time to time.
XV. The Merchant Partner shall 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.
XVI. To promptly redress the Customer complaints which have been referred by UpCake Digital to the Merchant Partner in respect of the (a) quality, quantity and/or taste of the Cake (food and beverage); (b) delivery of the Orders (where such delivery has been undertaken by the Merchant Partner and the delivery issues are attributable directly to the Merchant Partner); and (c) failure on part of the Merchant Partner 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.
XVII. The Merchant Partner shall remove any/all menu items unavailable with the Merchant Partner.
XVIII. The Merchant Partner acknowledges and agrees that it will be solely responsible for delivering the Merchant Services / Products to the Customers (In case of asked for delivery / where it is not availing Logistics Services) for Orders placed by the Customers with the Merchant Partner on the Platform. Unless agreed to by the Merchant Partner in the Form, it is clarified that UpCake Digital will not provide any Logistics Services.
XIX. For the avoidance of doubt it is hereby expressly clarified that UpCake Digital is not responsible or liable to the Customer for the (a) quality of the Merchant Service advertised on the Platform; and/or (b) processing of the Order; (c) delivery of the Orders (unless Logistics Services are provided by UpCake Digital) that have been placed by the Customers with the Merchant Partner through the Platform; and (d) misconduct / illegal activity of the Delivery Partner. The Merchant Partner acknowledges and agrees that it will be solely responsible and liable to the Customer for the (a) quality of the Merchant Service listed and advertised on the Platform; and/or (b) processing of the Order and (c) timely delivery of the Orders (unless Logistics Services are provided by UpCake Digital) that have been placed by the Customers with it on the Platform.
XX. The Merchant Partner shall ensure that the Order(s) are (a) in accordance with the Order placed by the Customer; and (b) appropriately packed and adequately fastened to avoid any spillage during the transportation. Merchant Partner understands that the Order will be in transit for the period of delivery from the Merchant to the Customer and the Merchant Partner shall ensure that this is taken into consideration while accepting and preparing the same.
XXI. Merchant Partner shall (a) undertake adequate police verification and background checks for its delivery personnel and maintain records of the same; (b) ensure that the delivery personnel are not intoxicated; (c) ensure that delivery 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 delivery personnel to ensure delivery personnel deliver the Order efficiently without any spillage or delay.
XXII. Merchant Partner shall ensure, while making deliveries, it does not commingle the Order along with other orders it receives directly from customers or from third parties not using the Platform. Merchant Partner shall pack the Order either in UpCake Digital provided packing material or other packaging material. However, under no circumstances shall the Merchant Partner use third-party branding in the packaging material used for the Order.
XXIII. Merchant Partner shall address and resolve all Customer complaints received by UpCake Digital relating to the efficacy, quality or any other issues relating to the Merchant Services / Products expeditiously within timelines prescribed by the Ministry of Consumer Affairs or any other authority from time to time. Further the Merchant Partner shall be solely liable and bound to take action on complaints raised by the Customer pertaining to the Order(s).
XXIV. Merchant Partner acknowledges and agrees that Merchant Partner 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 Services, as maybe requisitioned by UpCake Digital from time to time failing which, UpCake Digital reserves the right to delist the Merchant Partner from the Platform and/or curtail it’s access from the Platform.
XXV. Where Merchant Partner avails Logistics Services from UpCake Digital OR third party, Merchant Partner shall ensure that it hands over all Orders to authorized delivery personnel in a spill-proof packaging.
XXVI. The Merchant Partner shall comply with the applicable law on the ban of single-use plastic and shall ensure that neither single-use plastic is used in packing any Order nor is any cutlery made from single-use plastic provided with the Order. Merchant Partner agrees and acknowledges that UpCake Digital shall reserve a right to cancel all Orders that are packed by the Merchant Partner using single-use plastic and any payment made to the Delivery Partner assigned to such orders or refund/compensation made by UpCake Digital to the Customers whose Orders are cancelled shall be recovered from Merchant Partner in accordance with UpCake Digital’s cancellation policy. Further, any loss suffered by UpCake Digital or the Delivery Partner due to the use of single-use plastic by the Merchant Partner, whether on account of any fine imposed by the authorities on UpCake Digital or its Delivery Partner or otherwise, shall be recovered from the Merchant Partner by making deductions in accordance to the payment settlement process agreed under these Terms.
XXVII. Furthermore, when UpCake Digital provides Logistics Services, the Merchant Partner shall ensure that the Order is ready at the time the Delivery Partner arrives to collect the Order. Where the Merchant Partner fails to hand over the Order to the Delivery Partner within the indicated kitchen preparation time, the Merchant Partner shall be responsible for any and all issues and costs associated with delayed delivery including costs associated with reimbursing the Customer.
XXVIII. Merchant Partner 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. An exception can be the Custom Cake Shape ordering.
XXIX. Merchant Partners except required for the fulfilment of Order shall not use the Customer data for sending any unsolicited marketing message, or announcements.
XXX. Merchant Partner shall not engage in any fraudulent activity or misuse any benefits extended by UpCake Digital to Customers and shall be liable to UpCake Digital in the event UpCake Digital becomes aware of any fraudulent activity undertaken by the Merchant Partner.
XXXI. Merchant Partner shall not charge any delivery and/or Payment Mechanism Fee charges from Customers on Orders where Merchant Partner is not undertaking delivery itself.
XXXII. Where the Merchant Partner avails Logistics Services under the Hybrid model and opts to not avail of Logistics Services through UpCake Digital, Merchant Partner shall be responsible to deliver the Order to the Customer.
XXXIII. Merchant Partner shall ensure to update the Merchant Mobile Application as and when the (latest) version of the application is available.
XXXIV. Merchant Partner acknowledges and agrees that any asset, such as POS machines/credit card/debit card swipe machines, bags etc., provided by it to the Logistics Personnel, whether with or without the consent of UpCake Digital, shall be at its sole risk. Merchant Partner agrees and undertakes that it shall be solely liable if any such asset provided to the Logistics Personnel, is damaged, stolen or not returned by the Logistics Personnel,, and UpCake Digital shall not be liable to indemnify the Merchant Partner for the same and/or bear cost of the asset.
License:
ü Merchant Partner grants to UpCake Digital an unrestricted, non-exclusive, royalty-free licence in respect of all Content (defined hereinabove) and Information provided to UpCake Digital by the Merchant Partner 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 Merchant Partner’s name in the context to support advertising and promotional campaigns to promote online ordering on the internet which may be undertaken by UpCake Digital (b) preparation of derivative works of, or incorporate into other works, all or any portion of the marketing materials which will be made by UpCake Digital for the purposes of its business.
ü Any Content, information or material that the Merchant Partner transmits or submits to UpCake Digital either through the Platform or otherwise shall be considered and may be treated by UpCake Digital as non-confidential.
ü The Merchant Partner also grants to UpCake Digital a royalty-free, perpetual, irrevocable, non-exclusive license to use, copy, modify, adapt, translate, publish and distribute worldwide any Content, information or material for the purposes of providing Services under these Terms or to or for the purposes of advertising and promotion of the Platform. The Merchant Partner agrees that all Content, information or material provided to UpCake Digital that is published on the Platform, may be relied upon and viewed by Customers to enable them to make informed decisions at the pre-purchase stage.
Merchant Partner Menu and Price List:
I. UpCake Digital will display on the Platform the menu and price list for all of its Merchant Partners. The Merchant Partner agrees that UpCake Digital reserves the right to modify and delete certain items from the Merchant Partner’s menu list at its sole discretion, listed on the Platform, to ensure compliance with Food Safety and Standards Act, requirements or applicable law in the relevant State or Territory and all other applicable legislation, regulations or regulatory standards. Where the Merchant Partner has a unilateral right to access the Merchant Partner admin panel or dashboard to edit and update the Information which is displayed on the Platform by UpCake Digital, the Merchant Partner should ensure that it (i) keeps such information true, accurate and updated at all times; and (ii) comply with UpCake Digital’s internal terms and conditions of use in this regard.
II. Merchant Partner shall provide UpCake Digital with a separate list of all Pre-Packed Goods (i.e. Ready Made Cakes) which form part of the Merchant Partner’s menu list, to be listed on the Platform, in the format acceptable to UpCake Digital.
III. The Merchant Partner shall ensure that the Pre-Packed Goods listed on the Platform shall have shelf life before expiry at the time of delivery to the Customers.
IV. The Merchant Partner will, at all times, maintain parity in the pricing for all products offered for sale to the Customers via the Platform as against that made available for sale through its Merchant locations. For the purpose of clarity, such parity is required to be maintained by the Merchant Partner in Cake (food and beverage) items sold via the Platform and its quality, quantity and other charges that may be levied by the Merchant Partner.
V. The Merchant Partner acknowledges and agrees that UpCake Digital will use its best endeavours to ensure that the Platform is not misused by the Customers for the placement of erroneous/fraudulent Orders. In the event of an erroneous/fraudulent Order, the Merchant Partner undertakes to report such an erroneous/fraudulent Order to UpCake Digital.
VI. UpCake Digital may perform a variety of marketing activities to promote the Merchant Partner and the Merchant Partner's menu; provided, however, that all such marketing activities will be determined in UpCake Digital’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.
Payments Mechanism
I. The Merchant Partner 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
II. The Merchant Partner acknowledges and agrees that UpCake Digital will provide the Merchant Partner with a monthly invoice within a period of 7 (seven) days from the last date of the preceding month for the Commission, Payment Mechanism Fee, refund charges, One Time Sign Up Fee and other amounts, charges that are payable by the Merchant Partner to UpCake Digital in respect of the applicable Orders.
III. Invoices will be sent to the Merchant Partner digitally. All invoices shall be issued from the respective state registered office of UpCake Digital from where the Services are being performed by UpCake Digital in order to comply with the provisions of Goods & Services Tax (GST)/HST/Other Taxes by laws applicable.
IV. The Merchant Partner acknowledges and agrees that all amounts that are payable to UpCake Digital under these Terms shall be exclusive of the applicable taxes and that all applicable taxes will be charged separately.
Obligations of Parties in Case of Online Payment Orders
I. The Merchant Partner must meet all of the following requirements when it receives an online payment Order:
a. ensure that it does not receive any additional payment from a Customer (including but not limited to payment by cash) when payment has been made online by a Customer;
b. follow all special instructions contained on the Order receipt or as communicated by Service Operator; and
c. obtain a signature from the Customer acknowledging receipt of the Order when the Merchant Partner undertakes delivery of the Orders independently or through third parties, other than UpCake Digital.
II. If the Merchant Partner has not complied with the delivery instructions (as set forth in this Order receipt) or has supplied bad quality Goods to the Customer, whereby UpCake Digital has (pursuant to the Customer’s complaint) been constrained to refund the Order Value to the Customer ("Quality Issues") in any manner, the Merchant Partner acknowledges and agrees that the Merchant Partner will not be paid for such Problem Order and that if the Merchant Partner has already received the Order Value from UpCake Digital in respect of such Problem Order, UpCake Digital will have a right in accordance with these Terms & Conditions to deduct or offset such amount from or against any monies that are owed by UpCake Digital to the Merchant Partner (in respect of future Orders) under these Terms.
III. Merchant Partner shall disclose all relevant details pertaining to Problem Order(s) with UpCake Digital, if required by UpCake Digital.
Payment Settlement Process
I. The Merchant Partner acknowledges and agrees that any Order Value which is collected by UpCake Digital for, and on behalf of, the Merchant Partner in accordance with these Terms & Conditions, shall be passed on by UpCake Digital to the Merchant Partner subject to the deduction of the following amounts (as applicable) by UpCake Digital from the such Order amount:
a. commission
b. any other amount that are due to UpCake Digital under the Form or on account of other services availed by Merchant Partner from UpCake Digital, to which specific consent of the Merchant Partner is accorded.
II. The Parties acknowledge and agree that after the deduction of the aforementioned amounts, UpCake Digital shall remit the Order Value due to the Merchant Partner on a weekly settlement basis (mostly on every Monday,
i.e. for the Order/s which is/are Delivered during the previous week), after allowing a reasonable time for adjustments towards Orders for which the Customers have either refused to pay or have claimed a refund, as applicable.
Commission Structure
I. In consideration for the Services offered by UpCake Digital to the Merchant Partner, the Merchant Partner undertakes to pay to UpCake Digital commission at the rates set out by UpCake Digital, which commission amount may be determined by way of a percentage of the Order amount.
II. From time to time, UpCake Digital may change the fees for the Services, including without limitation the Commission rates, Payment Mechanism Fee or include any additional charges/ fee, provided however, that UpCake Digital communicates such change(s) via email or any other modes of communication, prior to the date that such change(s) are to take effect.
Confidentiality
ü Other than for the purpose of availing Service(s) from UpCake Digital, the Merchant Partner must not disclose any confidential information about UpCake Digital, including but not limited to these Terms & Conditions, its business strategies, pricing, revenues, expenses, Customer Data, and Order information to third parties.
Warranty and Indemnity
I. Merchant Partner warrants that if the Merchant Partner ceases to do business, closes operations for a material term or is otherwise unable to offer services to Customers it will inform UpCake Digital promptly. Where the Merchant Partner neglects to do so, whether by omission or fault, UpCake Digital will not be held responsible for any liabilities, whether financial or otherwise.
II. Merchant Partner warrants that it will not offer for sale any potentially hazardous food, alcoholic beverage, tobacco product, allergic product or any other item prohibited by law.
III. UpCake Digital does not guarantee or warrant that the Platform, Website, App, Software, Hardware or Services (including 3rd party services) will be free from defects or malfunctions. If errors occur, it will use its best endeavours to resolve these as quickly as possible.
IV. Merchant Partner warrants that it complies and will remain compliant with the Food Safety and Standards Act and the Laws, 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.
V. Merchant Partner 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 UpCake Digital prior to availing the Services. In case otherwise, UpCake Digital will not be responsible for any consequences.
VI. The Merchant Partner agrees to indemnify and hold UpCake Digital (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:
a. by a Customer (or any party on whose behalf a Customer has been acting), for reasons not attributable to the Service;
b. by a Customer (or any party on whose behalf a Customer has been acting) or any third party In respect of, arising out of or relating to the Content, Information or material provided by the Merchant Partner to UpCake Digital, to be listed on the Platform.
c. in respect of, arising out of, or in connection with, Merchant Services / Products (or any other services actually or purportedly offered in respect of or connected to the Merchant Services / Products) and delivery of such Merchant Services / Products when undertaken by the Merchant Partner;
d. in respect of or connected to the collection or payment of applicable taxes in any way connected to these Terms & Conditions or any matter or goods or services under or arising from it (e.g. Services);
e. in respect of quality of the Merchant Services / Products provided by the Merchant Partner;
f. in respect of the warranties provided by the Merchant Partner in Clause (Warranty and Indemnity) hereto;
g. relating to harm caused by the Merchant Partner supplying any unsafe Merchant Services / Products, any product failure, defect or hazard in any Merchant Services / Products supplied or sold by the Merchant Partner or inadequate instructions or warnings provided to Customers pertaining to any hazards arising from or associated with the use of any Merchant Services / Products supplied or sold by the Merchant Partner;
h. brought either by UpCake Digital and/or third party on account of misuse, abuse, cheating, fraud, misrepresentation carried out by the Merchant Partner;
i. in respect of, arising out of or in connection of any use of the Customer Data, not in accordance with the Terms & Conditions and/or the applicable law;
j. for any misleading or incorrect or false, information or data provided by the Merchant Partner;
k. the Merchant Partner acknowledges that it supplies certain rights to UpCake Digital to enable UpCake Digital to provide services to the Customer. UpCake Digital would like to follow the govt. rules to be liable for any applicable taxes liability in respect of transactions by which the Merchant Partner provides Merchant Services / Products to Customers.
The Merchant Partner agrees that the Merchant Partner will only use the Customer Data in fulfilling the applicable Customer Order and in complying with the Merchant Partner's obligations in this Form, and the Merchant Partner agrees that Customer Data will not be used to enhance any file or list of the Merchant Partner or any third party. The Merchant Partner represents, warrants, and covenants that it will not resell, broker or otherwise disclose any Customer Data to any third party, in whole or in part, for any purpose whatsoever. The Merchant Partner agrees it shall not use the Customer Data for sending any unsolicited marketing message, announcements and for feedback purposes, and shall be solely liable to ensure that any third party with whom Customer Data is shared complies with the restrictions set forth herein. The Merchant Partner agrees that it will not copy or otherwise reproduce any Customer Data other than for the purpose of fulfilling the applicable Customer Order. The Merchant Partner (and any other persons to whom the Merchant Partner provides any Customer Data) will implement and comply with reasonable security measures in protecting, handling, and securing the Customer Data. If any Customer Data is collected by the Merchant Partner (or otherwise on its behalf), the Merchant Partner shall ensure that it (and any applicable third parties) adopt, post, and process the Customer Data in conformity with an appropriate and customary privacy policy. For purposes of this Form, the restrictions set forth herein on the Merchant Partner's use of Customer Data do not apply to: (a) data from any Customer who was a customer of Merchant Partner prior to the Merchant Partner using the Platform or the UpCake Digital Services, but only with respect to data that was so previously provided to the Merchant Partner by such Customer; or (b) data supplied by a customer directly to the Merchant Partner who becomes a customer of the Merchant Partner and who explicitly opts in to receive communications from the Merchant Partner for the purposes for which such Customer Data will be used by Merchant Partner; and, provided in all cases, that the Merchant Partner handles and uses such Customer Data in compliance with applicable Laws and the Merchant Partner's posted privacy policy.
Terms for Termination
The arrangement between parties shall start on the registration date and unless terminated earlier under this clause shall continue indefinitely.
UpCake Digital may terminate the arrangement or suspend the Services of the Merchant Partner with immediate effect if:
a. the Merchant Partner fails to conduct its business in accordance with these Terms & Conditions and /or in accordance with the information given to UpCake Digital, such as Merchant Partner proprietary rights, opening hours, delivery areas, delivery conditions, nature of the food served or prices;
b. the User experience for the Merchant Partner is not found satisfactory as per the UpCake Digital standards;
c. for a continuous period of time, the Merchant Partner fails to deliver Order(s) which are not fraudulent or unintentional;
d. upon the happening of any of the insolvency events such as bankruptcy, the appointment of receiver, administrator, liquidator, winding up, dissolution;
e. UpCake Digital identifies any fraudulent or suspicious activity on the Merchant Partner’s account;
f. the Merchant Partner fails to comply with Applicable Law and/or these Terms, and/or
UpCake Digital, at its sole discretion, reserves the right to suspend and/or terminate the Services immediately with OR without a prior notice to the Merchant Partner on account of any alleged or threatened or actual (a) suspicious activity; and /or (b) breach of any intellectual property right of UpCake Digital or any third party by the Merchant Partner; and/or (c) any false misrepresentation by the Merchant Partner; and/or (d).fraudulent activity. The Merchant Partner hereby agrees and acknowledges that in addition to the aforementioned right to terminate and/or suspend the Services, UpCake Digital shall also have the right to withhold, set off and deduct any payments that may be due to the Merchant Partner from UpCake Digital. Without prejudice to the other provisions of the Form or these Terms & Conditions, and solely for the purposes of this Clause, the Merchant Partner hereby agrees, acknowledges and confirms that the amounts so set off, withheld and applied in an aforesaid manner shall be deemed to form part of the Commission payable by the Merchant Partner to UpCake Digital under the Form and these Terms & Conditions
Notice Requirement:
Factors that prevent you from fulfilling your obligations towards UpCake Digital or Customers should promptly be reported to UpCake Digital by contacting customer support via email at support@upcakedigital.com
Taxes
Notwithstanding anything to the contrary herein, the Merchant Partner 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 Merchant Partner’s use of the Platform and UpCake Digital Services. UpCake Digital may charge and collect applicable taxes from Customers on behalf of the Merchant Partner in accordance with instructions provided by the Merchant Partner and/or applicable law; and, in which case, UpCake Digital will collect such tax solely on behalf of the Merchant Partner and shall pay the such amount collected to the Merchant Partner. The Merchant Partner 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 Cake (food and beverage), including pick-up and delivery services (if applicable), by the Merchant Partner. It is clarified that UpCake Digital will not be liable for payment of any Taxes that the Merchant Partner is liable to pay in connection with the Merchant Services / Products which shall be provided by the Merchant Partner to the Customers in accordance with these Terms & Conditions and that the Merchant Partner hereby undertakes to indemnify, defend and hold harmless, UpCake Digital 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 UpCake Digital on account of the non-payment of Taxes by the Merchant Partner under these Terms. Merchant Partner will be required to deposit relevant taxes, including tax deducted at source (TDS) on the commission payable to UpCake Digital. However, in case where UpCake Digital withholds its Commission before remitting the settlement dues to the Merchant Partner, UpCake Digital shall refund the TDS to the Merchant Partner subject to submission of the TDS certificate on a quarterly basis within sixty (60) days from the end of the quarter.
In India, w.e.f. 01st October 2020, UpCake Digital is required to deduct taxes at source from the amount for all Orders that are settled via UpCake Digital Platform. TDS u/s 194-O shall be applied on Gross Sales as per the applicable tax law on the rate as applicable and amended from time to time. UpCake Digital hereby clarifies that TDS u/s 194-O shall be deducted under the Payment Settlement Process set out in the Form and these Terms.
In similar ways, in Canada, UpCake Digital is required to deduct taxes as per Province and Federal Government rules by law.
The Merchant Partner shall be solely responsible to provide the correct required details to UpCake Digital and reconcile the tax deducted with the order transaction report and certificates provided by UpCake Digital from time to time. UpCake Digital shall remit tax deducted to the respective Government account. Such remittance(s) and reporting shall be considered as complete fulfilment of UpCake Digital’s obligations in this regard.
UpCake Digital will share a quarterly TDS certificate with Merchant Partner as per applicable tax law. The Merchant Partner may be eligible to claim credit of the tax deducted on the basis of tax returns filed by it with the relevant government tax authorities. Merchant Partner acknowledges and agrees that it is the Merchant Partner’s responsibility to reconcile and claim correct credit for the tax deducted for which the Merchant Partner may be eligible as per the applicable laws. Merchant Partner also agrees that in the event of any discrepancy between the returns filed by the Merchant Partner and those filed by UpCake Digital, the amount reported by UpCake Digital shall have a precedence over the tax returns filed by the Merchant Partner.
Any discrepancy identified at the time of reconciliation by the Merchant Partner should be brought to the attention of UpCake Digital within a period of fifteen (15) days from the date of receipt of Tax/TDS Certificate. Any delay on this account will relieve UpCake Digital of any obligation to undertake a corrective action to resolve the discrepancy. Under no circumstances, UpCake Digital shall entertain any discrepancy in the reported value after 31st March of the year following the financial year to which the transactions were undertaken and reported.
Merchant Partner agrees and acknowledges that UpCake Digital shall not be held liable in any manner in the event the Merchant Partner does not receive the benefit of income tax deducted due to incorrect particulars provided by the Merchant Partner to UpCake Digital
Disclaimers:
To the fullest extent permitted by law, UpCake Digital 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 and the UpCake Digital services and any use thereof, including, without limitation, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. UpCake Digital makes no warranties or representations about the accuracy or completeness of the content and data on the Platform or the UpCake Digital services' content or the content of any other Website and/or App linked to the Website and/or App, and assumes no liability or responsibility for any (a) errors, mistakes, or inaccuracies of content and materials, (b) personal injury or property damage, of any nature whatsoever, resulting from the Merchant Partner's access to and use of the Platform and the UpCake Digital services, (c) any unauthorized access to or use of UpCake Digital's servers and/or any and all personal information and/or financial information stored therein, (d) any interruption or cessation of transmission to or from the Website and/or App or otherwise with respect to the UpCake Digital services, (e) any bugs, viruses, trojan horses, or the like which may be transmitted to or through the Website and/or App or the UpCake Digital 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 and/or App or the UpCake Digital Services.
Limitation of Liability:
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. UpCake Digital does not exclude or limit Liability for any Liability that cannot be excluded by law. Subject to the preceding sentence, UpCake Digital 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 UpCake Digital will use its best endeavours to ensure that the unintentional operational errors do not occur, UpCake Digital cannot provide any warranty or guarantee in this regard. Notwithstanding anything to the contrary herein set out, UpCake Digital’s aggregate liability under this Form shall not exceed the total value of the Order under which the claim arose.
Miscellaneous :
I. Governing Law and Dispute Resolution: The agreement is created and controlled by UpCake Digital in India and Canada. The laws of the respective country shall apply. Merchant Partner hereby irrevocably consents to the exclusive jurisdiction venue of courts in (Rajkot, Gujarat) India. In all disputes arising out of or relating to the use of the UpCake Digital use of the UpCake (“Platform”) is unauthorized in any jurisdiction that does not give effect to all provisions of these terms and conditions including without limitation this paragraph. You agree to indemnify and hold UpCake (“Platform”) its subsidiaries, affiliates, directors, officers and employees, harmless any claim, demand or damage including reasonable attorney fees, asserted by any third party due to arising out of your use of or conduction the UpCake (“Platform”).
II. Waiver: The failure of either party to assert any of its rights under the Form, including, but not limited to, the right to terminate the Form in the event of breach or default by the other party, will not be deemed to constitute a waiver by that party of its right thereafter to enforce each and every provision of the Form in accordance with these Terms.
III. Invalidity or unenforceability of any provision of or right arising pursuant to these Terms shall not adversely affect the validity or enforceability of the remaining obligations or provisions.
IV. No third party rights: No term of this Form shall be enforceable by a third party.
V. No assignment: The Merchant Partner must not assign, transfer, charge or otherwise encumber, create any trust over or deal in any manner with this Form or any right, benefit or interest under it, nor transfer, novate or sub-contract any of the Merchant Partner’s obligations under it.
VI. Independent contractors: The Form does not create any agency, employment, partnership, joint venture, or other joint relationship. UpCake Digital, the Merchant Partner and the Customer are independent and neither has any authority to bind the other.
VII. Change of control: The Merchant Partner acknowledges that the business and assets of UpCake Digital may be sold in the future and consents to the transfer or disclosure of its personal Information and this Form to any purchaser of the business of UpCake Digital or its assets if that outcome occurs.
VIII. Acceptance to UpCake Digital’s Privacy Policy: by accepting the Terms & Conditions, the Merchant Partner acknowledges and agrees to be bound by UpCake Digital’s Privacy Policy. Merchant Partner will immediately notify UpCake Digital if it becomes aware of or suspects any unauthorized use or access to the user data or any other Confidential Information of UpCake Digital, and shall co-operate with UpCake Digital in investigation of such breach and the mitigation of any damage.
Modification :
UpCake Digital may vary or amend or change or update these Terms, from time to time entirely at its own discretion. Merchant Partner shall be responsible for checking these Terms from time to time and ensure continued compliance with these Terms. Merchant Partner uses of UpCake Digital Platform after any such amendment or change in the terms shall be deemed as your express acceptance to such changed/amended terms and Merchant Partner also agree to be bound by such changed/amended Terms.