Merchant Agreement (Non-Food)
Terms and Conditions
- Contractual Relationship
Please read these Terms and Conditions carefully. These Terms and Conditions constitute a legally binding agreement together with the Enrollment Agreement between you, whether personally or on behalf of an entity, acting as a provider of the Goods (the “Merchant” or “you”) and the GetBaqala Legal Entity as stated on the Enrollment Agreement (“GetBaqala”). These Terms and Conditions and the Enrollment Agreement shall hereinafter be referred to as the “Agreement”. For the purpose of the Agreement, references to “Affiliates”, includes GetBaqala’s administrators, successors-in-interest, permitted assigns and affiliates.
The Agreement governs your use of the GetBaqala or Baqalaat application, website, call center and technology platform (collectively, the “GetBaqala Platform” or the “Platform”) which facilitates the listing, sale and delivery of Goods (as defined below) to Customers (as defined below) (“Platform Services”).
IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MAY NOT USE OR ACCESS THE GETBAQALA PLATFORM OR THE MERCHANT APPLICATION.
Your access and use of the GetBaqala Platform and the Merchant Application constitute your agreement to be bound by the Agreement, which establishes a contractual relationship between you and GetBaqala. GetBaqala may immediately terminate the Agreement with respect to you, or generally cease offering or deny access to the GetBaqala Platform and the Merchant Application or any portion thereof, at any time and for any reason without notice to the Merchant.
GetBaqala may amend these Terms and Conditions unilaterally and in its sole discretion from time to time. Amendments will be effective upon GetBaqala’s posting of an updated Terms and Conditions at this location. Your continued access or use of the GetBaqala Platform and/or the Merchant Application after such posting constitutes your consent to be bound by these Terms and Conditions, as amended.
GetBaqala may provide to a claims processor or an insurer any necessary information (including your contact information) if there is a complaint, dispute or conflict, which may include a death or injury, involving you, a Customer and/or a third-party transport provider and such information or data is relevant to the complaint, dispute or conflict.
“Applicable Law” means any national, state, local, municipal legislation, regulation, statutes, by-law, consents and/or other law and any other instrument having the force of law as may be issued and in force from time to time (and any amendment or subordinate provisions) relating to or connected with the activities contemplated under this Agreement wherever so located or performed;
“Community Leader” means an individual, validly registered on the GetBaqala Platform, who is an independent contractor and is carrying out the sales, marketing, temporary product storage or delivery for Orders to Customers;
“Customer” means a user who place Orders through the GetBaqala Platform;
“Device” means an internet enabled mobile or tablet device capable of accessing the Merchant Application;
“Effective Date” means the execution date of the Enrollment Agreement;
“Electronic Payment Mechanism” means the online and mobile based payment mechanisms including third party payment gateways, credit card/debit card/net banking transfer and/or e-wallets and/ or GetBaqala credits that are available on the Platform for the purposes of facilitating the payment of the Order Value by the Customer;
“Enrollment Agreement” means the Merchant Enrollment Agreement signed by you and GetBaqala pursuant to which you agree to be bound by the terms of these Terms and Conditions;
“Good Industry Practice” means the practices, methods and procedures and that degree of skill, diligence, prudence, foresight and judgment which would be expected to be observed by a skilled and experienced supplier engaged in the same or similar activities under the same or similar circumstances;
“Goods” means any goods being sold by you to Customers as listed from time to time in a relevant Catalog;
“Group” means in relation to any person, that person and any company which is from time to time a subsidiary or holding company of that person or a subsidiary of any such holding company;
“Information” means the information set out in, and to be provided in connection with, the Enrollment Agreement including any information which is supplied by you to GetBaqala under or with respect to this Agreement such as the Catalog, the price lists underlying the Catalog, opening hours of the Merchant, delivery areas serviced by the Merchant and related delivery terms, information required under clause 4.1 of these Terms and Conditions, and any other specific information the Merchant is requested by GetBaqala to provide;
“Intellectual Property Rights” means patents, inventions (whether patentable or not), copyrights, moral rights, design rights, trade-marks, trade names, business names, service marks, brands, logos, service names, trade secrets, know-how, domain names, database rights and any other intellectual property or proprietary rights (whether registered or unregistered, and whether in electronic form or otherwise) including rights in computer software, and all registrations and applications to register any of the aforesaid items, rights in the nature of the aforesaid items in any country or jurisdiction, any rights in the nature of unfair competition rights, and rights to sue for passing off;
“Catalog” means any e-document or virtual page which sets out the Goods offered for sale by you to Customers together with related pricing and which is made available on the GetBaqala Platform;
“Merchant Application” means the GetBaqala application (web-based or otherwise), which provides you with the ability to receive details and updates relating to Orders;
“Merchant Commission” means the commission fee, including any applicable payment processing fees, with respect to each Order, payable by you to GetBaqala pursuant to the terms of the Enrollment Agreement;
“Net Sales Value” means the amount charged by the Merchant to any Customer that is attributable to an Order placed through the GetBaqala Platform, inclusive of any VAT payable in respect of the Goods, but net of all discounts being offered by the Merchant on the GetBaqala Platform;
“Order” means an order made by a Customer on the GetBaqala Platform for the purchase of Goods;
“Order Value” means the total amount, net of all discounts being offered by the Merchant or GetBaqala and including all taxes and charges, which is payable by a Customer for the purchase of Goods with respect to each relevant Order;
“Parties” means GetBaqala and you;
“Service Operator” means a service operator working for GetBaqala who is managing Orders received from Customers through the GetBaqala Platform;
“Services” means the receipt of Orders from, and if applicable, the delivery of related Goods to, Customers and related services; and
“Technical Standards” means all internationally recognizable technical standards applicable to the provision of the Services hereunder.
3. GetBaqala Obligations
3.1. GetBaqala will display Information and your Catalog on the GetBaqala Platform at its discretion;
3.2. GetBaqala will forward Orders placed by Customers to you via a GetBaqala-provided URL link and/or via the Merchant Application on a real-time basis;
3.3. GetBaqala will not be responsible or liable for the (a) quality, quantity, descriptive accuracy and/or taste of the Goods advertised on the Platform; and/or (b) processing of the Orders which have been placed by the Customers with the Merchant on the GetBaqala Platform; and/or (c) any failure on the part of the Merchant to comply with the special requests / instructions of a Customer where such requests and/or instructions have been communicated by the Customer at the time of placing an Order; and/or (d) the delivery of the Goods to the Customer including, but not limited to, the acts or omissions of any Community Leader. The Merchant agrees to take full liability and responsibility in respect of the foregoing.
3.4. Except in cases where delivery is conducted through the Merchant, GetBaqala will use Community Leaders to deliver Orders to Customers;
3.5. If an Order cannot be delivered to a Customer, for example if the Customer is not present to receive the Order, GetBaqala will use reasonable endeavours to have the Order returned to the Merchant. If the Order is returned to the Merchant within the same calendar day on which the Order was placed by the Customer, Merchant acknowledges and agrees that the Merchant will not be paid for such Order and that if the Merchant has already received the Net Sales Value and/or any other Payment from GetBaqala in respect of such Order (subject to any appropriate reductions hereunder), GetBaqala will have a right to deduct the Net Sales Value and/or the value of any other Payment made from or against any monies that are owed by GetBaqala to the Merchant from time to time under this Agreement;
3.6. Subject to Clause 4.11 below, GetBaqala will handle any Customer and Merchant complaint related to the GetBaqala Platform, the Merchant Application and/or the Device (in the event GetBaqala has provided Merchant with that Device);
3.7. GetBaqala will deactivate the Merchant’s account if the Merchant is found non-compliant with any Applicable Law;
3.8. GetBaqala will be responsible for the costs of any discounted promotions offered by GetBaqala with respect to Platform Services.
3.9. In the event that an Order is not delivered to a Customer as a direct result of the negligence or willful misconduct of a Community Leader, GetBaqala shall waive the Merchant Commission owed to it in relation to such Order and GetBaqala shall put forth its best commercial efforts to procure that such Community Leader re-pay Customer or Merchant the Net Sales Value if such amount was paid by Customer in advance.
4. Merchant Obligations
4.1. Before being onboarded onto the GetBaqala Platform and/or fulfilling any Orders, the Merchant must provide up-to-date and accurate Information to GetBaqala including, but not limited to, itemized lists of Goods and their availability, description of Goods and attributes (weight, volumes, etc.), prices for Goods including all applicable taxes and charges, operating hours of the Merchant, any recommended usage and dosage information as well as any possible side effects relating to the Goods (if Goods are of a medical nature), manufacturers’ instructions and allergy information for any Goods, and any other Information that is required to be shown to the Customer in respect of the sale of the Goods to Customers under Applicable Law;
4.2. Merchant will ensure that prices for Goods displayed on a Catalog are at all times inclusive of applicable taxes and charges, including VAT;
4.3. THE MERCHANT WILL NOT SELL ANY GOODS THROUGH THE GETBAQALA PLATFORM THAT REQUIRE A MEDICAL PRESCRIPTION, ARE NARCOTICS OR ARE A CONTROLLED MEDICATION;
4.4. Merchant is responsible for monitoring (through the Merchant Application), providing and maintaining up to date and accurate Information at all times. Merchant will use the Merchant Application to make timely changes or updates to their Information, including but not limited to Catalog items and their availability, item descriptions and attributes, item prices, operating hours and any other Information. If for any reason these changes cannot be made via the Merchant Application, Merchant will notify GetBaqala by email of any changes or new Information and will provide at least 48 working hours’ notice for GetBaqala to reflect such changes on the GetBaqala Platform. If Merchant fails to do any of the foregoing, Merchant shall pay to GetBaqala (i) the Merchant Commission or 5% of the Net Sales Value, whichever is higher, on any Orders placed by Customers that have to be cancelled due to outdated Information including, but not limited to, unavailability of all items in the Order; (ii) any compensation issued to Customers by GetBaqala for Orders that are cancelled or modified due to outdated Information; and (iii) any price difference GetBaqala has to pay to Customers due to outdated prices;
4.5. Where GetBaqala is required to make changes or updates to Information on behalf of the Merchant pursuant to clause 4.4, GetBaqala reserves the right to seek written confirmation from the Merchant of the changes or edits prior to uploading them, such confirmation shall be provided promptly by the Merchant and the time taken between any such request for confirmation submitted by GetBaqala and written confirmation being provided by the Merchant shall not count towards the 48 hour time period within which GetBaqala must reflect any changes as set out under clause 4.4;
4.6. The Merchant will send to GetBaqala, at least once a week, a stock update sheet for all Goods being sold on the GetBaqala Platform. The stock update sheet will necessarily contain the inventory count for each item or Stock Keeping Unit (SKU) and will reflect the most updated inventory status at the time of sending the update sheet;
4.7. Merchant will ensure that no Order contains any Goods past their expiry and/or consumption date. In case any Customer informs GetBaqala that the Customer has received any expired Good(s), Merchant acknowledges and agrees that the Merchant will not be paid for such Order, and that if the Merchant has already received any Payment (as defined below) from GetBaqala in respect of such Order (subject to any appropriate reductions hereunder), GetBaqala will have a right to deduct or offset such amount from or against any monies that are owed by GetBaqala to the Merchant from time to time under this Agreement;
4.8. The Merchant will not require a minimum value with respect to any Order;
4.9. Merchant will accept all Orders placed by Customers within two minutes of the Order appearing on the Merchant Application and, in the event that the Merchant fails to do the same, the Merchant’s ranking on GetBaqala’s customer-facing application for provision of the Services may decline and a higher expected delivery time may be shown to Customers for the Merchant. The Merchant will also be responsible for any and all issues and costs associated with delayed delivery resulting from its failure to comply with the two-minute order acceptance time, including costs associated with compensating the Customer;
4.10. The Merchant will contact the GetBaqala customer care team immediately – and before accepting the Order — if an Order cannot be processed as requested by the Customer or to clarify the details of an Order;
4.11. If Customer contacts Merchant to request any change or modification to an Order, Merchant will direct Customer to contact GetBaqala directly. Notwithstanding the foregoing, if a Customer has a question or issue in relation to any medical Good(s) or is seeking any medical advice then GetBaqala shall direct Customer to speak directly with the Merchant by calling the Pharmacy Contact Number provided in the Enrollment Agreement;
4.12. GetBaqala may communicate to the Merchant, expected Order preparation time or expected waiting time for the Community Leader at the Merchant. Where such times are not communicated, the standard order preparation time should be within 15 minutes. If the preparation time of an Order exceeds the communicated expected preparation time, or the waiting time for the Community Leader exceeds the communicated expected waiting time or, where these times are not communicated, the preparation time of an Order exceeds the standard order preparation time of 15 minutes, the Merchant’s ranking on GetBaqala’s customer-facing application for provision of the Services may decline and a higher expected delivery time will be shown to Customers for the Merchant. Merchant will also be responsible for any and all issues and costs associated with delayed delivery resulting from its failure to comply with the relevant preparation time or Community Leader waiting time (as stipulated above), including costs associated with compensating the Customer;
4.13. Merchant acknowledges that a Community Leader may not accept any Order from the Merchant if Community Leader deems that any of the Goods are not packaged correctly or are at risk of spillage, spoilage or destruction. If Community Leader does not accept the Order, Merchant will not receive the Net Sales Value and/or any Payment for such Orders. Notwithstanding the foregoing, it is not the responsibility of the Community Leader to inspect the Goods to ensure there will be no spillage, spoilage or destruction and this remains the sole responsibility of the Merchant;
4.14. Merchant shall treat Orders received from Customer ordering via the GetBaqala Platform with the same level of care, preparation times, delivery times if delivery is conducted by the Merchant, and attention, including providing the correct items as per the Customer order and providing the right packaging to avoid spoilage, spillage or destruction of items, as it treats Customer orders received via its own sales channels or via any third party;
4.15. Merchant warrants, represents and undertakes that prior to dispatch of any Goods, any such Goods have at all times been handled, stored and maintained in hygienic and sanitary conditions and in accordance with Applicable Law, Good Industry Practice and any instructions or requirements of the manufacturer and/or producer of the Goods;
4.16. Where the delivery is conducted by the Merchant, the Merchant will process, execute and deliver Orders (a) promptly and within 45 minutes from receipt of the relevant Order; and (b) in accordance with Good Industry Practice. In such case, the Merchant will be responsible for any and all issues and costs associated with any delayed deliveries, including costs associated with compensating the Customer;
4.17. In the event that the Merchant fails to fulfil and/or deliver (as the case may be) any accepted Orders the Merchant will not have the right to receive the Net Sales Value and/or any other Payments (defined below) for such Orders;
4.18. The Merchant warrants, represents and undertakes that the Goods provided to Customers are: (a) of high quality and fit for human consumption; (b) comply with all relevant local legislations, including all applicable industry regulations including all packaging and labeling requirements required for Goods of that type; and (c) will not contain any references to any third party which offers services that are identical or similar to the Services provided by GetBaqala under this Agreement;
4.19. THE MERCHANT WARRANTS, REPRESENTS AND UNDERTAKES THAT IT HAS, AND WILL MAINTAIN, ALL NECESSARY LICENSES AND PERMITS REQUIRED FOR MARKETING (IN ALL CHANNELS), SALE AND DELIVERY OF THE GOODS IN ALL TERRITORIES WHERE THE SERVICES ARE PERFORMED. IF ANY SUCH LICENSE OR PERMIT IS REVOKED, EXPIRES OR IS TERMINATED FOR ANY REASON WHATSOEVER THEN THE MERCHANT SHALL PROMPTLY NOTIFY GetBaqala IN WRITING;
4.20. Merchant will not engage in any fraudulent activity or misuse any benefits extended by GetBaqala to it or to Customers;
4.21. Merchant will be responsible for the costs of any discounted promotion offered by the Merchant with respect to Goods (a “Merchant Promotion”), as agreed from time to time via email;
4.22. Unless Merchant decides in its sole discretion to run a promotion or discount in respect of the Goods, Merchant will not at any time offer by way of any medium a price for any item which is lower than the then-current price of the applicable item set out in the Catalog, unless agreed in writing between the two Parties;
4.23. If the Merchant has supplied poor quality or inaccurate Goods to the Customer in the opinion of GetBaqala, or if applicable has not delivered the Goods in accordance with the terms and conditions stated in the Agreement, the Merchant will be responsible for any and all issues and costs associated with these Orders, hereinafter “Problem Orders”, including costs associated with compensating the Customer. Where GetBaqala has (pursuant to the Customer’s complaint) refunded the Order Value to the Customer for a Problem Order, the Merchant acknowledges and agrees that the Merchant will not receive the Net Sales Value and/or any other Payments (defined below) for such Problem Order and that if the Merchant has already received the Net Sales Value and/or any other Payments from GetBaqala in respect of such Problem Order (subject to any appropriate reductions hereunder), GetBaqala will have a right to deduct or offset such amount from or against any monies that are owed by GetBaqala to the Merchant from time to time under this Agreement;
4.24. Merchant shall disclose all relevant details pertaining to Problem Order(s) to GetBaqala upon becoming aware of the same; and
4.25. Merchant shall perform its obligations hereunder in accordance with: (a) Good Industry Practice; (b) Technical Standards; (c) All applicable professional rules, code of conduct, regulations and associated guidelines; (d) Any timescales set out herein; and (e) Applicable Law.
5. The GetBaqala Platform
GetBaqala is a digital sales and delivery network which operates a software platform matching, amongst other things, Customers seeking to place Orders with Merchants via the GetBaqala Platform.
THE MERCHANT ACKNOWLEDGES THAT NEITHER GETBAQALA NOR ITS AFFILIATES PROVIDE DELIVERY, TRANSPORTATION, FOOD, GROCERY, OR PHARMACEUTICAL SERVICES OR FUNCTION AS A TRANSPORTATION SERVICE PROVIDER OR OWN ANY VEHICLES FOR DELIVERY AND THAT ALL DELIVERY SERVICES ARE PROVIDED BY INDEPENDENT THIRD-PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY GETBAQALA OR ANY OF ITS AFFILIATES.
Subject to your compliance with this Agreement, and solely until termination of this Agreement, GetBaqala grants you a limited, non-exclusive, non-sub-licensable, revocable, non-transferrable license to: (a) access and use the GetBaqala Platform and the Merchant Application solely with respect to the Services; and (b) access and use any content, information and related materials that may be made available to the Merchant through the GetBaqala Platform, in each case solely to provide Services to Customers. Any rights not expressly granted herein are reserved by GetBaqala and GetBaqala’s licensors.
You may not: (a) remove any copyright, trademark or other proprietary notices from any portion of the GetBaqala Platform or the Merchant Application; (b) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the GetBaqala Platform or the Merchant Application except as expressly permitted by GetBaqala; (c) decompile, reverse engineer or disassemble the GetBaqala Platform or the Merchant Application except as may be permitted by Applicable Law; (d) link to, mirror or frame any portion of the GetBaqala Platform or of the Merchant Application; (e) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the GetBaqala Platform or of the Merchant Application or unduly burdening or hindering the operation and/or functionality of any aspect of the GetBaqala Platform or the Merchant Application; or (f) attempt to gain unauthorized access to or impair any aspect of the GetBaqala Platform or the Merchant Application or their related systems or networks.
5.3 Intellectual Property Rights
The GetBaqala Platform and the Merchant Application and all rights therein are and shall remain GetBaqala’s property or the property of GetBaqala’s licensors. Neither this Agreement nor your use of the GetBaqala Platform or of the Merchant Application convey or grant to you any rights: (a) in or related to the GetBaqala Platform or the Merchant Application, as applicable, except for the limited license granted above; or (b) to use or reference in any manner GetBaqala’s company names, logos, product and service names, trademarks or services marks or those of GetBaqala’s licensors; or (c) except for the limited license granted above, to any Intellectual Property Rights that are owned by or licensed to GetBaqala prior to the commencement date of this Agreement, which shall be owned by and remain the property of and vested in GetBaqala.
The Merchant hereby assigns with full title guarantee, free of all encumbrances and in the case of copyright, by way of a present assignment of future copyright, all of the Intellectual Property Rights that arise, or are created or developed by GetBaqala or are adapted from GetBaqala’s Intellectual Property Rights in connection with this Agreement upon creation, together with the right to sue for past infringement of the Intellectual Property Rights.
The Merchant hereby grants to GetBaqala a worldwide, perpetual, non-exclusive, assignable, royalty-free license (with full right to sublicense) for the term of the Agreement to use, reproduce, publicly display, exploit, modify, alter or integrate its Intellectual Property Rights as are provided by the Merchant to GetBaqala (whether directly or indirectly) or are uploaded by the Merchant onto the GetBaqala Platform or Merchant Application, from time to time, for the purpose of providing the Platform Services and any marketing campaigns it runs in relation to the Services.
The Merchant warrants, represents and undertakes that none of the content, information or related materials that it provides to GetBaqala under this Agreement, or that are uploaded by the Merchant onto the GetBaqala Platform or Merchant Application, will violate or infringe any third party Intellectual Property Rights or any other third party rights.
5.4 Third Party Services and Content
Pursuant to the terms of the Enrollment Agreement, you may opt to work exclusively with GetBaqala as your sole online ordering, take-away and/or delivery service provider (a “GetBaqala Exclusive Partner”).
6. Use of the GetBaqala Platform
6.2. In the event GetBaqala provides you with a Device, the following terms and conditions shall apply:
6.2.1. The Device shall be used by the Merchant solely for the purpose of (1) managing Orders; (2) reviewing the particulars underlying the Orders; (3) updating the Order status; (4) updating Information; (5) communicating with GetBaqala; (6) reporting erroneous Orders; (7) reviewing Merchant’s performance and financial accounts relating to its business with GetBaqala; and/or (8) any other use that may be prescribed in writing by GetBaqala in this regard;
6.2.2. GetBaqala’s terms and conditions relating to Devices shall apply to any Device provided by GetBaqala to the Merchant;
6.2.3. The Merchant undertakes to use the Device in compliance with the instructions for use that may be issued by GetBaqala in this regard;
6.2.4. On the delivery of the Device by GetBaqala to the Merchant, the Merchant will be required to acknowledge the receipt of the Device in writing by executing an Asset Handover Form in the format annexed to the Agreement, and the cost of the Device will be charged to the Merchant pursuant to the terms of the Enrollment Agreement;
6.2.5. GetBaqala grants a limited, non-exclusive, non-transferable, royalty free license to the Merchant for the use of the Device solely until the termination of this Agreement;
6.2.6. The Merchant undertakes to and shall use the Device only for the purposes prescribed under this Agreement and that the Merchant should not violate the intellectual property rights of GetBaqala over and in respect of the Device at any point in time;
6.2.7. The Merchant undertakes to return the Device along with all accessories (in a full working condition as determined by GetBaqala) to GetBaqala immediately upon the termination of this Agreement or when requested by GetBaqala. The Device will be collected by GetBaqala from the Merchant at the sole expense of GetBaqala. Upon the return of the Device along with all accessories by the Merchant, GetBaqala and the Merchant will be required to acknowledge the transfer of the Device in writing as instructed by GetBaqala;
6.2.8. The Merchant acknowledges and agrees that any failure on part of the Merchant in returning the Device (whenever requisitioned by GetBaqala or on the termination of this Agreement) will render the Merchant liable to pay for such unreturned Device including for an appropriate action under the Applicable Laws; and
6.2.9. The Merchant acknowledges and agrees that: (i) GetBaqala is not the manufacturer of any Device provided (ii) GetBaqala cannot provide any warranties or guarantees with respect to the quality or durability of the Device and (iii) it uses the Device at its own risk.
6.2.10. In the event that the Device ceases to function and the Merchant is unable to access the Merchant Application through any other means, the Merchant will immediately inform GetBaqala and GetBaqala will disable the Merchant on the GetBaqala Platform until the Device is functional again.
7. Charges, Payments and Commission
7.1. The Merchant acknowledges and agrees that while GetBaqala will use its reasonable efforts to ensure that the GetBaqala Platform is not misused by Customers for the placement of wrong Orders, it is the ultimate responsibility of the Merchant to determine whether an Order is wrong or not. In the event of a wrong Order, the Merchant undertakes to report such a wrong Order to GetBaqala through the Device or call GetBaqala for GetBaqala’s action and investigation.
7.2. GetBaqala may perform a variety of marketing activities to promote the Merchant and the Merchant’s Catalog; provided, however, that all such marketing activities will be determined in GetBaqala’s sole and absolute discretion and the GetBaqala Platform may be modified or updated, without notice and from time to time, to reflect any such changes.
7.3. The Merchant acknowledges and agrees that the GetBaqala Platform will provide the following payment mechanisms to Customers for the payment of the Order Value: (a) Cash on delivery; (b) Electronic Payment Mechanism; and (c) Redemption of vouchers and/or discount promotion (if any) approved by GetBaqala.
7.4. In the event that any of the Merchant or its employees irreparably damages or loses the Device or any of its accessories during the subsistence of this Agreement, GetBaqala shall replace the same and the Merchant shall be charged for the cost of replacement;
7.5. GetBaqala will settle Net Sales Value owed to Merchant in accordance with the payment terms specified on the Enrollment Agreement (“Payments”). Merchant agrees that GetBaqala shall be entitled to set-off any amounts Merchant owes to GetBaqala hereunder (including the Merchant Commission) from the Payments. Merchant will be responsible for any taxes or charges payable on the Goods including collecting, paying and reporting such taxes to the appropriate authorities and providing Customers with compliant Tax Invoices where required under local laws for the Goods.
7.6. The Parties acknowledge and agree that Order ratings are entirely under the control of Customers and a Merchant’s accumulated average rating is calculated using the ratings which are given by the Customer in respect of each Order which is placed by such Customer with a particular Merchant on the GetBaqala Platform.
8. Restricted Activities
8.1. The Merchant must meet all of the following requirements when it receives an online payment Order:
8.1.1. 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; and
8.1.2. Follow all special instructions contained on the Order receipt or as communicated to the Merchant by a Service Operator.
8.2. The Merchant agrees that it will treat all information concerning this Agreement and the Enrollment Agreement (including their respective terms), GetBaqala and its Group, the GetBaqala Platform and all information concerning Customers which has been provided to it pursuant to the terms of this Agreement as confidential information (“Confidential Information”) and will not, except as provided in this Agreement, disclose, use or permit the disclosure or use of such information to any third party. The Merchant further agrees that a breach of this provision would cause GetBaqala to suffer irreparable harm and damage that could not be adequately remedied by payment of monetary damages and therefore, in addition to monetary damages and other legal remedies, the Merchant agrees that GetBaqala will be entitled to obtain equitable and injunctive relief as may be necessary to restrain any threatened, continuing or further breach by the Merchant. The restrictions referred to in this Clause will not apply to any Confidential Information to the extent that such information: (a) is already known to the Merchant, (b) is in or comes into the public domain otherwise than as a result of any breach of this Agreement or (c) is required to be disclosed by law.
8.3. Merchant shall Process any Personal Information received from GetBaqala or any Customer in accordance with Applicable Law and only for the purposes of discharging its obligations under this Agreement. For the purposes of this Clause, the following definitions shall apply: (a) “Personal Information” means any information relating to an identified or identifiable person who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity, and (b) “Process” means to collect, hold, use, transfer, destroy and otherwise deal in any with Personal Information.
9. Disclaimers; Limitation of Liability; Indemnity
THE GETBAQALA PLATFORM AND THE MERCHANT APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE.” GETBAQALA AND ITS AFFILIATES DISCLAIM ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, GETBAQALA AND ITS AFFILIATES MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE GETBAQALA PLATFORM OR OF THE MERCHANT APPLICATION OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE GETBAQALA PLATFORM OR THE MERCHANT APPLICATION, OR THAT THE GETBAQALA PLATFORM OR MERCHANT APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER GETBAQALA NOR ITS AFFILIATES GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF CUSTOMERS. THE MERCHANT AGREES THAT THE ENTIRE RISK ARISING OUT OF THE MERCHANT’S USE OF THE GETBAQALA PLATFORM AND MERCHANT APPLICATION, AND ANY SERVICE OR GOOD REQUESTED OR PROVIDED IN CONNECTION THEREWITH, REMAINS SOLELY WITH THE MERCHANT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
9.2. LIMITATION OF LIABILITY
THE MERCHANT UNDERSTANDS AND ACCEPTS THAT GETBAQALA DOES NOT PROVIDE TRANSPORTATION, FOOD DELIVERY, GROCERY, PHARMACEUTICAL OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION OR GOODS CARRIER AND THAT ALL SUCH TRANSPORTATION, FOOD DELIVERY OR LOGISTICS SERVICES ARE PROVIDED BY INDEPENDENT THIRD-PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY GETBAQALA OR ANY OF ITS AFFILIATES. GETBAQALA’S LIABILITY FOR ANY LOSS SUFFERED BY THE MERCHANT ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED ONE THOUSAND BHD (BHD 1,000) (OR THE EQUIVALENT AMOUNT IN THE RELEVANT LOCAL CURRENCY).
THE MERCHANT AGREES THAT GETBAQALA HAS NO RESPONSIBILITY OR LIABILITY TO THE MERCHANT RELATED TO ANY DELIVERY SERVICES PROVIDED BY THE MERCHANT TO CUSTOMERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT.
The Merchant agree to indemnify and hold GetBaqala, its Affiliates and their officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees) arising out of or in connection with: (a) the Merchant’s use of the GetBaqala Platform and/or Merchant Application and the sale of Goods and delivery services obtained through the Merchant’s use of the GetBaqala Platform and the Merchant Application and/or any delivery services provided by the Merchant (if applicable); (b) the Merchant’s breach or violation of this Agreement; or (c) the Merchant’s violation of the rights of any third party, including Community Leaders.
9.4. Indirect Damages
GetBaqala will not be liable to the Merchant for any indirect or consequential losses (including loss of profit, opportunity and goodwill).
9.5. Exclusions from Limitation of Liability
Notwithstanding the foregoing, nothing in this Agreement shall exclude or limit either party’s liability to the other in relation to:
9.5.1. death or personal injury caused by negligence or wilful or reckless misconduct of that party;
9.5.2. any fraud or fraudulent misrepresentation of that party; and/or
9.5.3. any liability which cannot be lawfully excluded by that party.
10. Choice of Law and Dispute Resolution
10.1 Choice of Law.
This Agreement is governed by and construed in accordance with the laws of the jurisdiction in which GetBaqala is incorporated, without giving effect to any conflict of law principles, except as may be otherwise provided in supplemental terms applicable to your region.
You agree that any dispute, claim or controversy arising out of or relating to this Agreement or the Enrollment Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the GetBaqala Platform or the Merchant Application or the Services (collectively, “Disputes”) will be settled by binding arbitration between you and GetBaqala, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and GetBaqala are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and GetBaqala otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Arbitration” section and the “Arbitration Process and Rules” section will be deemed void. Except as provided in the preceding sentence, this “Arbitration” section and the “Arbitration Process and Rules” section will survive any termination of this Agreement. This “Arbitration” section and the “Arbitration Process and Rules” section applies to all Disputes between you and GetBaqala and/or any of its Affiliates.
10.3 Arbitration Process and Rules.
Any Dispute shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). The ICC Rules’ Emergency Arbitrator provisions are excluded. The Dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the ICC Rules. The place of both mediation and arbitration shall be in the city in which the applicable Affiliate with which you have a Dispute has its registered office. The language of the mediation and/or arbitration shall be English, unless you do not speak English, in which case the mediation and/or arbitration shall be conducted in both English and your native language. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the International Chamber of Commerce, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless: (i) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
11. Other Provisions
11.1 Upon Expiry or Termination
In the event that this Agreement expires or is terminated for any reason, Merchant will no longer be entitled to access and/or use the GetBaqala Platform and the Merchant Application and Merchant shall return all Confidential Information it has received from GetBaqala hereunder.
11.2 Claims of Copyright Infringement.
Claims of copyright infringement should be sent to GetBaqala at firstname.lastname@example.org.
GetBaqala may give notice by means of a general notice on the GetBaqala Platform, electronic mail to your email address in the Merchant Account, or by written communication sent to your address as set forth in the Enrollment Agreement. The Merchant may give notice to GetBaqala by written communication to GetBaqala’s email address at legal@GetBaqala.com for any matter and will give 5 calendar days’ written notice with respect to terminating its use of the GetBaqala Platform and the Merchant Application.
The Merchant may not assign or transfer its rights under this Agreement in whole or in part without GetBaqala’s prior written approval. GetBaqala may assign and/or transfer its rights and obligations under this Agreement in whole or in part, including to: (a) a subsidiary or affiliate; (b) an acquirer of GetBaqala’s equity, business or assets; or (c) a successor by merger.
No joint venture, partnership, employment or agency relationship exists between the Merchant, GetBaqala, its Affiliates or any Customer as a result of the contract between the Merchant and GetBaqala or use of the GetBaqala Platform or the Merchant Application. GetBaqala and the Merchant are and shall remain independent parties. Neither party shall have, or represent itself to have, any authority to bind the other party or act on its behalf.
If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the other provisions in this Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of this Agreement. The Enrollment Agreement shall constitute an integral part of this Agreement. This Agreement, together with the Enrollment Agreement, constitutes the entire Agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous Agreements or undertakings regarding such subject matter.