1.1. These retailer standard terms and conditions shall be read in conjunction with the services agreement ("Services Agreement
") entered into between Swan (or the Service Provider) and the Retailer (collectively, the "Agreement
"). Capitalised terms used in these terms and conditions but not defined therein shall have the meaning ascribed to it under the Services Agreement
1.2 Definitions: Unless the context otherwise requires, the capitalized terms used in this Agreement shall have the meaning ascribed to them hereunder:API
: an application programming interface that upon integration into the Application, will allow the master data of products, description, pricing, barcodes, promotions etc. to be transferred to the Service Provider for ensuring efficient and effective working of the Application with the Users.Application
: Service Provider's proprietary application 'Swan'
a digital shopping application which enables users to shop at participating supermarkets, and which essentially connects such users with supermarkets, and offers a comprehensive solution including payment and delivery services.Commission
: the fee payable by the Retailer to the Service Provider, which shall be a percentage (plus VAT) of the total Purchase Amount.Convenience Fee
: the fixed fee plus VAT that the Service provider charges in respect of providing the delivery service to the User for each purchase made through the Application.Deliverables
: all documents, products and materials developed by the Service Provider or its agents, subcontractors and personnel as part of or in relation to the Services in any form, including without limitation computer programs, data, reports and specifications (including drafts).Delivering Party
: the Party responsible for delivering the Product as selected under clause 3 of the Services Agreement.Delivery Attempts
: the number of times the Delivering Party will attempt to deliver the Product to the User, as specified under clause 3 of the Services Agreement. Delivery Coverage
: the radius specified by the Delivering Party under clause 3 of the Services Agreement, for delivery of the Product to the User. Delivery Fee
: the fee, if any, charged by the Delivering Party to the User for delivering the Product. Delivery Hours
: the duration specified by the Delivering Party under clause 3 of the Services Agreement, during which the Delivering Party will deliver the Product to the User. Delivery Time
: the time taken by the Delivering Party to deliver the Product to the User. Intellectual Property Rights
: copyright, patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world. Minimum Order Value
: the amount of AED 15 as specified under clause 3 of the Services Agreement, which is the minimum Purchase Amount of a Product that a User purchases on the Application to qualify for free delivery of the Product. Online Transaction Fee
: the fee payable by the Retailer to the Service Provider in respect of all purchases of products made using a debit or credit card on the online Application, expressed as a percentage on the Purchase Amount, which percentage is set out under clause 3 of the Services Agreement.Picking Party
: the Party responsible for picking the Product at the Retailer's store in accordance with the order of the User, as selected under clause 3 of the Services Agreement.Product
: the products sold by the Retailer on the Application.Promotions:
the promotions / discounts offered to Users as set out under clause 13 of this Retailer Terms and Conditions Purchase Amount
: the total value of the Products purchased on the Application which shall be inclusive of 5% VAT.Receivable
: balance of payment due in favour of the Service Provider for the Services delivered, which payment is yet to be paid by the Retailer.Retailer Materials
: all materials, equipment and tools, drawings, specifications and data supplied by the Retailer to the Service Provider.Services
: the services, including without limitation any Deliverables, to be provided by the Service Provider pursuant to this Agreement.Supplier Materials
: all materials, equipment and tools, drawings, specifications and data supplied by the Service Provider to the Retailer.Term
shall have the meaning as ascribed to it under clause 3 of the Services Agreement.User
: The end users of the Application.VAT
: any value added tax in respect of transactions involving the sale or provision of goods and/or services and payable to any Governmental Authority in the United Arab Emirates in accordance with the VAT Law.
2. Supply of services
2.1 The Service Provider shall supply the Services to the Retailer from the Commencement Date setout under clause 3 of the Services Agreement. In consideration for the Services provided by the Service Provider, the Retailer shall pay the Service Provider the various fees, charges and Commission as set out under the Services Agreement.
3. Retailer's obligations
3.1 The Retailer shall provide such necessary information and such necessary co-operation as the Service Provider may reasonably request, so as to facilitate the provision of the Services.
4.1 The Receivable shall be determined post-reconciliation of the statement of accounts provided by each Party at the end of each month.
4.2 The Parties undertake to share the statement of account in relation to the Agreement at the end of each month. The statement of accounts, shared by the Parties for reconciliation, shall be solely restricted to the scope and objective of the Agreement.
5.1 The Parties shall generate an invoice (the "Invoice") to the other Party, post-reconciliation of the statement of accounts.
5.2 Unless otherwise provided in this Agreement, a Party shall pay each Invoice submitted to it by the other Party within seven (7) days of the date of Invoice.
6. Refund and Returns
6.1 The Retailer acknowledges that the User of the Application is enabled to raise a refund and / or return request. The refund request may be raised by the User, citing one of the reasons as listed in the Table below:Table : Description of the reason for the return of Product
Item 1 : Product received not as described in the Application i.e. wrong product
Item 2 : Product received is of the wrong quantity
Item 3 : Parcel damaged on arrival
Item 4 : Change of mind of the User
6.2 The Retailer undertakes to address the refund request raised by the User within 4 hours and to issue a cash refund, or a credit note to the User, in accordance with the Retailer's Policy.
6.3 For item 1 and 2 listed in the table above, the Picking Party shall be responsible and liable for ensuring the right product and right quantity is provided to the User. In the event of that the product is incorrect and/or of wrong quantity, the Picking Party shall replace or refund goods to the User in accordance with the Retailer's policy.
6.4 For item 3 contained in the above table, and in the event that there is any damage and / or loss to the products being delivered whilst on route to the User's location, the Delivering Party shall bear the cost of such damage and / or loss, and where possible, shall deliver new / replacement goods to the User at its own cost.
6.5 In respect of item 4 in the above table, the Retailer shall apply its refunds / returns policy.
6.6 For the avoidance of doubt, the payment made by the User and the refund made by the Retailer shall be subject of reconciliation in the statement of accounts shared by the Parties at the end of each month.
6.7 Depending upon the reason of the refund request, the Parties agree to interact with each other so as to facilitate a solution for the User.
7. IT Infrastructure and Integration
7.1 In the event the Service Provider is responsible for providing the IT Infrastructure under clause 3 of the Service Agreement, the Service Provider shall enable the pickers of the Retailer's stores in implementing the Application with IT infrastructure for the sole purpose of operating the Application and verifying the orders made by the Users of the Application at the Retailer's stores. In addition, the Service Provider shall provide the IT infrastructure as set out in clause 3 of the Service Agreement, which shall include and be limited to a 4G internet connection enabled Android device. One Android device shall be made available to each of the Retailer's stores implementing the Application.
7.2 The Retailer undertakes to exercise a standard of care over all IT infrastructure that is provided by the Service Provider and in the event the IT infrastructure is damaged or lost, the cost of the IT infrastructure shall be settled by the Retailer based on the market cost of the IT infrastructure.
7.3 In the event that this Agreement is terminated and / or expires, the Retailer shall return all IT infrastructure to the Service Provider within 2 days of termination and / or expiry and shall return all such IT infrastructure in the same and working condition as originally received.
7.4 In the event the Retailer purchases the IT infrastructure, then the ownership and title in the IT infrastructure shall pass on to the Retailer and the Retailer will be under no obligation to hand over any IT infrastructure back to the Service Provider.
8. Staff Training
8.1 The Service Provider shall provide 4 hours of training to the Retailer's staff operating the Application in relation to operating procedures of the Application such as know-how of user procedures of the Application, the procedure of verifying orders, and procedure of delivering digital ordering experience.
9.1 The Service Provider shall provide support to the staff of the Retailer who operates the Application, as and when needed. Depending upon the nature of support needed, the Service Provider shall provide the support, remotely or through an on-site visit.
10.1 The Service Provider shall endeavour to share an automated monthly sales report with the Retailer, for the Retailer to reconcile inventories of the Retailer's stores.
11.1 The Service Provider shall endeavour to make available the Application's retailer analytics dashboard to the designated staff of the Retailer, for review, with the following:
- Daily, weekly, monthly order
- Order payments settled till date and outstanding payments
- Various other customized metrics
11.2 The Retailer shall abide and comply with the terms and conditions of Confidentiality (clause 20) in using the reports and analytics provided by the Service Provider.
12. Products and Pricing Updates
12.1 The Retailer shall ensure that the product prices reflecting in the Application and the product prices in the physical stores are identical. The Retailer shall ensure to share on daily basis with the Service Provider in a form and in a manner that is acceptable to the Service Provider, a product price list along with any promotions. The Retailer shall notify the Service Provider in advance and not less than 3 hours prior to any change in the product pricing and any promotion at the Retailer's stores implementing the Application.
12.2 In the event the Retailer is responsible for providing an API integration under clause 3 of the Services Agreement, the Retailer shall provide an API integration that will allow the master data of products, description, pricing, barcodes, promotions etc. to be transferred to the Service Provider for ensuring efficient and effective working of the platform with the Users. The APIs shall operate as per the Retailer's standard operating procedure of updating product stock and pricing every 1 to 3 hours. In case of delays, the Retailer shall inform the Service Provider of such delays and provide alternative methods to keep stock and pricing updated.
12.3 In case the APIs are nonfunctional, the Retailer shall be responsible for providing the updated master data through alternative modes such as daily comma separated value files.
12.4 In the event the Retailer does not provide an API integration as set out under clause 3 of the Services Agreement, the Service Provider shall update the product prices and promotions upon receiving the product price list along with any promotions from the Retailer. The Retailer understands and acknowledges that the Service Provider requires at least 3 hours to update the product price and promotions in the Application, and that in the event that the Retailer provides the price list less than 3 hours from the time of any price change, that the Service Provider may not be able to update the Application timeously, and that the Retailer indemnifies the Service Provider for any loss / damages / claims that may arise from such circumstances.
12.5 The Retailer acknowledges and undertakes that the Service Provider shall not be liable for any claim and / or losses and / or damages arising out of any price difference of a product as reflected in the Application in the event the price difference is caused by the Retailer.
13.1 The Retailer and the Service Provider have agreed to three categories of discounts / promotions that may apply to the Users:
- Discount on prices of products which discount will be paid by the Service Provider;
- Discount on prices of products which discount shall be shared equally by the Parties in mutually agreed proportions; and
- Discount on prices of products which discount will be paid by the Retailer.
13.2 In each of the instances listed above, the Receivable shall be amended and updated accordingly.
The Service Provider shall, as deemed feasible, endeavour to:
14.1 undertake marketing activities to promote the Retailer's stores.
14.2 personalize the promotions to cater to the Users' requirements.
15. Title to Deliverables and Supplier Materials
15.1 Title to any Deliverables that are goods or in any physical media on which Deliverables are stored and title to any goods or materials transferred to the Retailer as part of the Services shall not pass to the Retailer and shall always remain the property of the Service Provider.
16. Intellectual property
16.1 All Intellectual Property of the respective Parties will remain unaffected as result of this Agreement or pursuant to it.
16.2 The Parties hereby grant to each other a revocable, non-transferable, limited and non-exclusive license to use their respective Intellectual Property solely for the purposes and execution of the provisions contained in this Agreement, and the Retailer agrees that the Service Provider may terminate such license at any time and without prior notice.
17. Term and Termination
17.1 The Agreement shall commence on the Commencement Date and shall continue until the expiry of the Term, unless terminated earlier in accordance with the terms contained hereunder. The Parties agree that the Term of this Agreement may be extended / renewed for such further period and on such terms and conditions as may be mutually decided between the Parties.
17.2 This Agreement is terminable, without any cause, by either Party upon providing a one (1) month's prior written notice. Provided that, in the event of termination of this Agreement by the Retailer prior to the expiry of the Term of this Agreement, the Retailer shall pay the Service Provider all the fees under this clause 3 that were waived off, i.e., the Catalog maintenance, Customer Service and Tech Support Fee (item xii of this clause 3), One-time Onboarding fee - Store and Catalog setup (item xiii of this clause 3), One-time Catalog photoshoot fee, if needed (item xiv of this clause 3), as well as the cost of all devices provided and total monthly cost of connectivity for all sim cards provided (item x of this clause 3).
17.3 The Parties agree that termination of this Agreement does not release either Party from making all payments due under this Agreement that arose during the Term of this Agreement, and the Parties undertake to make all such payments due to each Party within seven (7) days of termination of this Agreement.
17.4 In the event that this Agreement is terminated and / or expires, the Retailer shall return all IT infrastructure to the Service Provider within two (2) days of termination and / or expiry and shall return all such IT infrastructure in the same and working condition as originally received, unless the ownership and title in the IT infrastructure has passed on to the Retailer in accordance with clause 7.4 of this Retailer Standard Terms and Conditions.
18. Warranties and Undertaking
18.1 The Retailer undertakes to provide proper and adequate packaging in accordance with the best commercial practice, to ensure that the products being delivered to the Users will be free of damage. The packaging must be adequate to allow for, exposure to extreme temperatures, precipitation and / or some rough handling during transit.
18.2 The Retailer warrants that the products supplied to the Service Provider shall be new, merchantable, of agreed quality and description, in working order, fit for their intended purpose and free from contaminants, defects in materials, workmanship and design and shall be usable and durable for a reasonable period of time and / or as expected by the User of the Application.
19.1 The Retailer indemnifies and absolves the Service Provider from any claims, damages, losses and any other liability (whether jointly or individually) arising from any cause whatsoever or based on any ground of liability (including liability without fault) to the extent that such liability is attributable, whether wholly or in part, to any defect or deficiency in any of the products supplied by the Retailer or is due to the Retailer's failure to comply strictly with the provisions of this Agreement and / or applicable laws. This indemnity shall specifically apply in respect of any claims arising from unsafe, defective, contaminated, hazardous or deficient products brought against the Service Provider.
(a) Each Party undertakes that it shall not at any time during this Agreement, and for a period of two (2) years after termination of this Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other Party, except as permitted by clause 20(b)
(b) Each Party may disclose the other Party's confidential information:
- to its employees, officers, representatives, subcontractors, advisers, suppliers or brand distributors who need to know such information for the purposes of carrying out the Party's obligations under this Agreement. Each Party shall ensure that its employees, officers, representatives, subcontractors or advisers to whom it discloses the other Party's confidential information comply with this clause 20; and
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(c) Neither Party shall use the other Party's confidential information for any purpose other than to perform its obligations under this Agreement.
During the Term of the Agreement and for a period of twelve (12) months following the completion and / or termination date of the Agreement, the Retailer shall not, directly or indirectly, whether on their own account or jointly or as employee, agent, consultant, partner, associate or otherwise solicit or endeavour to entice away (or attempt to do so) from the Service Provider any person who was employed or engaged by the Service Provider or any of its group companies to terminate its employment, agency, contract or consultancy with the Service Provider or any of its group companies or to become the employee of the Retailer or any person or entity which is a competitor of the Service Provider22. Non-circumvention
22.1 The Retailer acknowledges and agrees that all Users introduced to the Retailer via the Application represent significant efforts and working relationships that are unique to, and part of, the work product and intellectual capital of the Service Provider. Therefore, the Retailer hereby irrevocably agrees not to (i) solicit or conduct business, directly or indirectly, with any User introduced by the Service Provider to the Retailer via the Application, and (ii) circumvent, avoid, bypass, or obviate, directly or indirectly, the intent of this Agreement, to avoid payment of fees due to the Service Provider in connection with transactions or orders placed via the Application by any User connected to the Retailer by the Service Provider.
22.2 In the event of breach of this clause, the Retailer shall be liable to pay the Service Provider a sum of AED 25,000. The Parties agree that quantifying losses arising from breach of this clause is inherently difficult insofar as breach may impact the Service Provider's competitive advantage, and further agree that the agreed upon sum is not a penalty, but rather a reasonable measure of damages, based upon the parties' experience in the industry and given the nature of the losses that may result from the breach. 23. Governing law and jurisdiction
The governing law of this Agreement shall be the laws of the emirate of Dubai and the federal laws of the United Arab Emirates. Any disputes arising out of the interpretation or execution of this Agreement shall be referred exclusively to Dubai Courts.