Merchant Terms of Service

GENERAL TERMS

These General Terms, in conjunction with the Merchant Service Level Agreement, are an integral part of the Agreement and shall apply to any relationship between Kwikmart and the Merchant related to the use of the Kwikmart Food Platform. By signing up in the Kwikmart Merchant app or website, the Merchant agrees to the application and content of these General Terms and is informed about the processing of their personal data disclosed during registration and use of Kwikmart app on the conditions set out in these General Terms.
Should you have any questions or concerns relating to these Terms of Service, you can contact us at support@kwikmartapp.com.

1. DEFINITIONS

Admin Commission means the fee payable by the Merchant to Kwikmart per every event of sale of the Merchant’s Goods to a Customer through the Kwikmart Food Platform for the provision of marketplace services by Kwikmart to the Merchant.

Agreed Percentage is the percentage that serves as the basis for the calculation of the Admin Commission (14%) of the Order Subtotal.

Agreement means the agreement between Kwikmart and the Merchant which consists of these General Terms and any Merchant Specific Conditions that may be communicated by Kwikmart to the Merchant in writing via support@kwikmartapp.com.

Kwikmart Food Platform means the platform operated by Kwikmart which functions as the Marketplace that:
(i) enables Merchants to market Products with delivery option and enter into Sales Agreements for the sale of Products to Customers,
(ii) enables the Customers to place Orders of Products with the Merchant, enter into Sales Agreements as Customers and arrange the delivery of the Order by the Delivery Agent and
(iii) enables the Delivery Agent to offer delivery services to the Customers for the delivery of the Products and enter into Delivery Agreements with Customers.

Customer means any User of the Kwikmart Food Platform that has placed an Order and enters into a Sales Agreement with the Merchant and a Delivery Agreement with the Delivery Agent.

Confidential Information means know-how, trade secrets and other information of a confidential nature, including, without limitation, all proprietary, technical, industrial and commercial information, customers’ and suppliers’ data and techniques in whatever form held as well as any information regarding:
(i) the business; and
(ii) the contents of the Agreement.

Delivery Agent/Driver means any natural person who has been verified in the Kwikmart Driver app as a provider of the delivery service to Customers with respect to Orders placed through Kwikmart app.

Driver Terms means the terms and conditions applicable to the relationship between Kwikmart and the Delivery Agents in relation to the use of the Kwikmart and/or Kwikmart Driver app/s.

Delivery Agreement means the agreement between the Customer and the Delivery Agent for the delivery of the Orders concluded through Kwikmart app.

Products/Goods means any goods that the Merchant offers for sale through Kwikmart app.

Selling Price/Goods Price means the price (together with applicable value added, sales or other taxes where applicable) that the Customer has agreed to pay the Merchant for the ordered Products.

Trading Hours means the whole time period during which the Merchant accepts Orders and prepares Goods for pickup by Delivery Agents (the Opening Hours indicated in Kwikmart app may differ from the opening hours of the Merchant’s brick and mortar establishment).

Order means the order that the Customer has placed with the Merchant.

Order Total means the total amount that the Customer has agreed to pay for the Products and Delivery of the Order.

Merchant/Partner means the operator of any store that Kwikmart app has concluded an agreement with and where relevant, each and every establishment through which the operator conducts its business.

Merchant Specific Conditions means the variations from the General Terms and Schedules regarding the Merchant, communicated in writing by Kwikmart to the Merchant in writing via support@kwikmartapp.com.

Sales Agreement means the agreement between the Customer and the Merchant for the sale of Products in accordance with the Order Details.

Customer/User means any natural person that has registered a Customer account on Kwikmart app.

2. LEGAL FRAMEWORK

2.1. The Kwikmart app enables the Customer to order Goods from Merchants and arrange the delivery of the Orders to the Drop-Off Location.

2.2. For the sale of Goods through the Kwikmart app a Sales Agreement is concluded directly between the Customer and the Merchant. For the delivery of the Order, the Customer enters into a Delivery Agreement directly with the Delivery Agent. The Sales Agreement and the Delivery Agreement are deemed to be concluded from the moment that the Order is confirmed on the Kwikmart app.

2.3. By operating the Kwikmart app and the Marketplace, Kwikmart acts only as a provider of the information and is neither a party to the Sales Agreement or the Delivery Agreement. Kwikmart is not the manufacturer or seller of the Goods or provider of the delivery services and is not liable in any way for the performance of the Sales Agreement or the Delivery Agreement.

2.4. By operating the Kwikmart app, Kwikmart acts as the agent for the Merchants in relation to mediation of Sales Agreements between the Merchants and the Customers. Kwikmart also acts as the convoy for the Delivery Agents in relation to mediation of Delivery Agreements between the Delivery Agents and the Customers. As the agent, Kwikmart has been authorised by each Merchant and each Delivery Agent to receive payments from the Customers on behalf of the respective principal and allocate the received funds between the Merchants and the Delivery Agents.

3. PLACEMENT OF ORDERS THROUGH KWIKMART APP

3.1 When the Customer has placed an Order, the Merchant ensures that the confirmation of the Order ("Accept") will be decided within the time period provided in Schedule 1 (Merchant Service Level Requirements). Upon Order Confirmation, the Sales Agreement enters into force between the Merchant and the Customer.

3.2 In the event that the Merchant cannot provide the Goods as requested in the Order, the Merchant shall not confirm the Order in the Kwikmart Merchant app or dashboard and may contact the Customer in order to agree on changing the Order Details and ensure that the initial Goods Price would remain the same. If no agreement is reached, the Merchant shall not confirm the Order ("Reject") in the Kwikmart Merchant app or dashboard and the Order Total shall be immediately refunded in full to the Customer.

3.3 The Merchant shall ensure that the Orders are monitored in a constant manner during the agreed upon Trading Hours of the Merchant’s establishment, in accordance with the requirements in the Merchant Service Level Agreement.

3.4 The Customer must comply with applicable laws, including the requirements applicable upon purchase of alcohol, tobacco, energy drinks or any other products requiring age verification. In case the Customer wants to order products requiring age verification, they must confirm and/or prove their age on delivery. Furthermore, any Delivery Agent delivering the Order may refuse to hand over the products requiring age verification, if the Customer does not present a valid photo identification proving that they are old enough to legally purchase the products.

3.5 The Merchant must distinctively mark/label any Goods containing alcohol, energy drinks, or any other products requiring age verification under applicable laws.

3.6 The Merchant represents and warrants to possess all valid licenses for conducting its activities, including any further licenses needed for the case of sale of alcoholic beverages or otherwise restricted or licensed products.

4. FULFILMENT OF ORDERS

4.1 The Merchant shall be ready to launch the provision of services under the Kwikmart Food Platform from the time its registration and addition to Kwikmart app has been confirmed. The detailed requirements and guidelines for the handling of Orders are provided in the Merchant Service Level Agreement.

4.2 In the event that the Merchant is or is likely to become unable to fulfil Orders, the Merchant will cease to accept any further Orders and mark itself as offline/unavailable on the Kwikmart Food Platform until readiness to fulfil Orders is restored.

4.3 The Merchant shall ensure that the Goods prepared for delivery to the Customer complies to the Order Details of the Customer. The Merchant shall use its best endeavours to comply with specific instructions and requests of the Customer, if applicable.

4.4 The Order shall be ready for pickup by the Delivery Agent and/or the Customer, within the timeframe specified in the Merchant Service Level Agreement.

4.5 The Merchant shall ensure that the ordered Goods are properly packaged (incl. in accordance with all food safety requirements in case the Goods contain food or beverages), taking into account that the Delivery Agent will only be required to pick up the ready-packaged Order.

4.6 The Merchant shall ensure that the Goods prepared for delivery:
4.6.1 correspond to the description of the Goods on Kwikmart app (including indications that particular Goods are gluten or nut free or suitable for vegetarians or vegans or is Halaal or is Kosher in case the Goods contain food or beverages);
4.6.2 are not harmful to health or the environment;
4.6.3 have been properly cooked or prepared and are otherwise safe, of high quality, fit for transportation and consumption in case the Goods contain food or beverages;
4.6.4 comply with all applicable requirements and legislation for the preparation and packaging of food at all times (including as reasonably required to withstand the delivery process);
4.6.5 correspond to the greatest extent possible to the photography uploaded (if applicable) in Kwikmart app.

4.7 Kwikmart, or any third party delegated by Kwikmart, including but not limited to Delivery Agents, and "Secret Shoppers", shall have the right to inspect the process of the provision of services by the Merchants at any time.

5. USE OF KWIKMART MERCHANT DASHBOARD/APP BY MERCHANT

5.1 The Merchant will gain access to the Kwikmart Merchant dashboard/app through a Merchant account. Each Merchant will have one user account/login to use per store.

5.2 The Merchant shall ensure compliance with applicable laws upon performance of its services, including laws regarding the working conditions, protection and safety of employees and other members of the Merchant’s personnel.

5.3 All information regarding the Merchant, the Merchant’s establishment/s and their Catalogue is uploaded to Kwikmart app by Kwikmart on the basis of the information provided by the Merchant (see Product Catalogue Upload). All Merchants are displayed to the Customer in a ranked sequence mainly based on the category within which their offering falls, the proximity to the Customer, whether special discount or promotions are being offered to the Customer, and by any other criteria deemed reasonable by Kwikmart with the purpose of providing a personalised and efficient user experience for the Customer. All information provided by the Merchant, including in particular the information regarding the Merchant’s establishment, Catalogue, particular Goods, Goods Prices, photos of the Goods (if applicable) and Trading Hours shall be accurate. The onus is on the Merchant to keep this information current and correct. Kwikmart will not change any information provided by the Merchant regarding the Catalogue and/or Goods Prices unless the Merchant so instructs in writing. The Merchant shall also provide additional information regarding the Goods (ingredients, allergens, etc), if the Customer so requests by contacting the Merchant or Customer Support chat.

5.4 For accepting and processing Orders through the Kwikmart Food Platform, the Merchant shall possess a compatible device and/or a PC/laptop. 

5.5 Kwikmart is not liable for the proper functioning of the Kwikmart apps on any device. The Merchant undertakes to install and/or use all updates, upgrades or modules provided by Kwikmart via the app stores. Kwikmart is not liable for any damages or loss of profit resulting from the failure to perform the obligation set out in this Section 5.5.

5.6 The Customer may leave feedback and make complaints through the Kwikmart app customer support. If the complaint relates to particular Goods the Customer will be required to make such complaints within 7 days from the delivery of the Order. Kwikmart shall tend to the complaints at its own discretion and decide how to resolve them in line with the process and procedures detailed on these General Terms. Kwikmart acting reasonably, may resolve to refund the Goods Price, or the Order Total (or a part thereof), to the Customer at its own discretion on behalf of the Merchant and claim compensation for it from the Merchant. If the Merchant continues to receive complaints from Customers, Kwikmart has the right to temporarily or permanently suspend the Merchant from using the Kwikmart Food Platform as specified further below. Kwikmart has the right to establish a customer complaints and refund policy, that shall be a part of the General Terms and mandatory for compliance for the Merchants.

5.7 If the Merchant chooses to add images to their product catalogue, the Merchant shall utilise high quality and high resolution photos for the displaying of Goods on the Kwikmart Food Platform. In case such photos do not fulfil the above mentioned requirements Kwikmart reserves the right to refuse the uploading of the provided photos in the Kwikmart Food Platform and ask for replacements or upload equivalent or similar stock pictures at its own discretion.

5.8 The Kwikmart Food Platform and Merchant app are provided “as is” and Kwikmart cannot guarantee that the apps will not be subject to change, modification or be discontinued either temporarily or permanently at any given time.

6. FEES

6.1 In consideration for Kwikmart's services as the provider of the online intermediation services in relation to the brokerage of the Sales Agreements, the Partner shall pay the Admin Commission to Kwikmart with respect to
every Order of the Customer made through the Kwikmart Food Platform. The Admin Commission is calculated as the Agreed Percentage (14%) from the aggregate gross Goods Price (Subtotal Amount) charged by the Merchant for the Orders placed through Kwikmart app during a particular reference period, save where Merchant Specific Conditions apply.

6.2 Kwikmart has the right to establish additional fees and update the Admin Commission agreed percentage from time to time, by notifying the Merchant thereof at least thirty (30) days in advance (as specified below).

7. INVOICING AND PAYMENTS

7.1 The Merchant, shall either;
(i) prepare and issue to the Customer the invoice for the Goods Price on its own behalf or;
(ii) where the Customer is issuing cash register receipts for the Goods Price and the issued cash register receipts are transported to the Customer together with the Goods, it shall prepare and issue to the Customer informational receipt for the Goods Price on its own behalf; and accept the Customer’s payment for the invoice or cash register receipts.
The payment obligation of the Customer arising from the Sales Agreement is deemed to be fulfilled when the payment is credited into the bank account of Kwikmart.

7.2 Kwikmart undertakes to forward the Goods Price payments (less any fees due to Kwikmart) for all completed Orders made through the Kwikmart Food Platform to the Merchant for a given reference period. If any deductions are due in relation to complaints in accordance with Section 5.7 of these General Terms or otherwise, Kwikmart will render efforts to find the amicable solution with the Merchant beforehand.

7.3 Invoicing and payments under this Agreement between Kwikmart and the Merchant will be made after each reference period. The reference period shall be one calendar week. If any reconciliation payments are required with respect to the reference period thereafter, the parties will communicate such need and, if necessary, make the relevant reconciliation payments in connection with the payments related to the next reference period.

7.4 All payments between Kwikmart and the Merchant will be settled by way of set-off to the maximum extent possible. All other payments between Kwikmart and the Merchant that cannot be set off will be made by way of EFT.

8. TERM, TERMINATION AND SUSPENSION OF USE

8.1 The Agreement is entered into for an unspecified period of time (without term).

8.2 The Merchant has the right to terminate the Agreement at any time by giving notice at least 14 days in advance.

8.3 Kwikmart has the ordinary right to terminate the Agreement at any time by giving notice at least 14 days in advance. The notice period shall not apply and the termination shall produce immediate effect, if Kwikmart:
(i) has a legal or regulatory obligation to terminate this agreement in a manner which does not allow it to respect that notice period; or
(ii) exercises a right of termination under an imperative reason pursuant to law;
(iii) can demonstrate that the Merchant has repeatedly infringed any of the applicable terms and conditions (including those requirements provided under the Merchant Service Level Agreement herein).

8.4 If the Merchant breaches any of its obligations under the Agreement, Kwikmart has the right to restrict or suspend the Merchant from using the Kwikmart Food Platform and/or Kwikmart Merchant app without any obligation to compensate for the loss of profit as specified below.

8.5 If Kwikmart temporarily or permanently restricts, suspends or terminates the Merchant from using the Kwikmart Food Platform and/or Kwikmart Merchant app, it may provide the latter with a statement of reasons, prior to or at the time of the restriction or suspension taking effect or at the time of termination notice.
The statement of reasons may contain the specific facts or circumstances, including contents of third party notifications, that led to the suspension or termination, as well as a reference to the applicable grounds referred to in point 8.3. and 8.4. Kwikmart does not have to provide a statement of reasons where it has a legal or regulatory obligation not to provide it, or where Kwikmart can demonstrate that the Merchant has repeatedly infringed the applicable terms and conditions, resulting in termination of the agreement with immediate effect (including in case of material breach).

8.6 The termination of the Agreement will not affect any accrued rights of either party, including any right to receive any payments due but unpaid before the termination.

8.7 In the event that after the extraordinary termination of the Agreement there is an ongoing marketing campaign featuring (among others) the Merchant or any of the Merchant’s related products and/or establishments, then Kwikmart is entitled to refrain from making any changes to the campaign materials regarding the Merchant or the Merchant’s products and/or establishments

9. LICENSING, DATA PROCESSING AND INTELLECTUAL PROPERTY RIGHTS

9.1 Kwikmart grants a revocable, non-exclusive, non-transferable, non-sublicensable license to the Merchant for the sole purpose of using the Kwikmart Food Platform to sell Goods through the Kwikmart app.

9.2 By concluding the Agreement, the Merchant grants a license to Kwikmart for displaying on the Kwikmart app and using in its marketing all materials (including, but not limited to branding material, product images, promotional imagery) sent to Kwikmart by the Merchant. The license is valid for the entire period of the Agreement. The Merchant represents that all material to be uploaded in the Kwikmart Food Platform by Kwikmart (including, but not limited to product images) is free from third party rights.

9.3 All intellectual property rights regarding the software, documentation or information used or developed by or on behalf of Kwikmart during the provision of services under the General Terms (including the Kwikmart Food Platform, Confidential Information and where relevant, photos of Goods), as well as all data and statistics about the sales made through the Kwikmart Food Platform belong to Kwikmart. The Merchant shall not copy, modify, adapt, reverse-engineer, decompile or otherwise discover the source code of the Kwikmart Food Platform, Kwikmart Merchant app or any other software/app used by Kwikmart.

9.4 The Merchant agrees that Kwikmart may use the name, and/or branding/logo and/or product images of the Merchant in Kwikmart’s marketing materials during the entire period of the Agreement.

10. CONFIDENTIALITY

10.1 During the term of the Agreement and for a period of five years following the expiry or termination of the Agreement, Kwikmart and the Merchant shall not disclose and shall maintain the confidentiality of all Confidential Information of the other party.

10.2 Confidential Information of the other party may be disclosed to third parties only subject to a prior written notice of the other party. Notwithstanding the above, Confidential Information may be disclosed to the party’s attorneys, auditors, accountants, consultants and subcontractors, provided that such persons perform their obligations in connection with the Agreement if subject to an identical or essentially identical confidentiality obligation.

11. LIABILITY AND INSURANCE

11.1 Kwikmart is not liable for the performance of the Sales Agreement nor for any claims presented under the Sales Agreement, including in the case of sale of alcoholic beverages or any Goods to Clients who are below the required age under applicable laws.

11.2 Kwikmart is not liable for any indirect damage or loss of profit that the Merchant may bear due to possible interruptions of availability or functioning of the Kwikmart Merchant dashboard/app and/or Kwikmart Food Platform.

11.3 The Merchant shall indemnify, defend and hold Kwikmart harmless from and against any and all claims (including any claim filed by a Customer due to the breach of the Sales Agreement), suits, actions or administrative proceedings, demands, losses, damages, costs, and expenses of whatsoever nature, including attorney’s fees and expenses in respect of or resulting from the performance of the services by the Merchant under the General Terms.

11.4 The Merchant shall indemnify to Kwikmart, all extra costs that Kwikmart, may incur due to the Merchant's breaching its obligations under the Agreement (e.g. and not limited to the costs of having the Delivery Agent return to the Merchant before delivery of the Order to the Customer, to retrieve Goods that the Merchant initially failed to include in the Order).

12. MISCELLANEOUS

12.1 If there is a conflict between the Merchant Specific Conditions, the General Terms, Schedules, or any other document incorporated by reference into the Agreement, then precedence shall be given first to the Merchant Specific Conditions, second to the General Terms, third to the Schedules and fourth to any other document incorporated by reference into the Agreement.

12.2 Kwikmart reserves the right to update the Agreement anytime, by uploading the revised version on the General Terms on this webpage or by notifying the Merchant of Merchant Specific Conditions.

12.3 The Merchant may not assign any of the rights or obligations under the Agreement either in whole or in part.