1. Introduction
1.1 These Supplier standard terms and conditions shall be read in conjunction with the Subscription Agreement (“Subscription Agreement”) entered into between Cater Thumb and the Supplier (collectively, the “Agreement”). Capitalised terms used in these terms and conditions but not defined therein shall have the meaning ascribed to it under the Agreement.
1.2 Definitions: Unless the context otherwise requires, the capitalized terms used in this Agreement shall have the meaning ascribed to them hereunder:
Commission: the fee payable by the Supplier to Cater Thumb, which shall be a percentage of the Purchase Amount (plus VAT).
Convenience Fee: the fixed fee plus VAT that Cater Thumb charges in respect of providing the services 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.
Marketplace Services: the services of enabling users to purchase Products of the Supplier via the Application.
Online Transaction Fee: the fee payable by the Supplier to Cater Thumb in respect of all purchases of Products and/or Services made using a debit or credit card on the online Application, expressed as a percentage on the Purchase Amount.
Product: the Product sold by the Supplier on the Application.
Promotions: the promotions / discounts offered to Users by the Supplier.
Purchase Amount: the total value of the Products or Services purchased on the Application which shall be inclusive of 5% VAT.
Service: the Service sold by the Supplier on the Application.
Supplier Materials: all materials, equipment and tools, drawings, specifications and data supplied by the Supplier to Cater Thumb.
Supplier Materials: all materials, equipment and tools, drawings, specifications and data supplied by Cater Thumb to the Supplier.
Term: shall have the meaning as ascribed to it under the Subscription 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.
Application: Cater Thumb’s application, i.e., the e-commerce marketplace that connects suppliers with restaurants, hotels, and other buyers to facilitate the procurement of,
amongst others, food, beverages, non-food products, supplies, maintenance equipment, facility management services, and manpower.
2. Supply of services
2.1 Cater Thumb shall supply the Marketplace Services to the Supplier from the Effective Date set out under the Subscription Agreement. In consideration for the Marketplace Services provided by Cater Thumb, the Supplier shall pay Cater Thumb the various subscription fees, charges, and Commission as set out under the Subscription Agreement.
2.2 The Supplier shall provide such necessary information and such necessary co-operation as Cater Thumb may reasonably request, so as to facilitate the provision of the Marketplace Services.
3. Cater Thumb’s role
The Supplier acknowledges that Cater Thumb is not a party to any transaction between Users and the Supplier that originates from the Application and that Cater Thumb shall not be responsible or liable for any disputes or liabilities that may arise between the Supplier and the User, including any defect or deficiency in Supplier’s Products and/or Services.
4. Fees and Commission
4.1 In consideration for the Services provided by Cater Thumb, the Supplier shall pay the following fees and commission to Cater Thumb:
(i) Monthly Subscription Fee, as specified under the Subscription Agreement; and
(ii) Commission, as specified under the Subscription Agreement; and
5. User Payment Process
5.1 Cater Thumb shall collect the Purchase Amount, via online payment, on behalf of the Supplier. Cater Thumb shall pay to the Supplier after monthly reconciliation of the accounts an amount made up of the Purchase Amount less the Commission on the Purchase Amount and the Online Transaction Fee.
6. Monthly Reconciliation and Invoice
6.1 The Parties undertake to share the statement of account in relation to the Agreement at the end of each month, within 2 business days from 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.
6.2 A Party shall generate an invoice to the other Party, post-reconciliation of the statement of accounts every month.
6.3 Each Party shall pay the invoice submitted to it by the other Party within 7 days of receipt of such Invoice.
7. Products/Service and Pricing Updates
The Supplier shall ensure that the details and prices of the Product or Service reflecting in the Application and the prices otherwise offered to Users organically are identical. The Supplier acknowledges and undertakes that Cater Thumb shall not be liable for any claim and / or losses and / or damages arising out of any fee difference as reflected in the Application in the event the fee difference is caused by the Supplier.
8. Refunds
8.1 The Supplier acknowledges that the User of the Application is enabled to cancel a purchase and raise a refund request. Any such cancellations or refund shall be subject to the refunds and cancellation policy available on Cater Thumb’s website (insert link), which shall be updated from time to time. Cater Thumb may modify the refund and cancellation policy, for any reason at any time, by posting a new version on Cater Thumb’s website and the Application; these changes do not affect rights and obligations that arose prior to such changes. The Supplier’s continued use of the Application following the posting of the modified refund and cancellation policy will be subject to the policy in effect at the time of use.
8.2 In the event that there is any deficiency in the Supplier’s Products and/or Services or in the event that the Product and/or Service offered is not as described in the Application, the Supplier shall bear the cost of such deficiency, damage and / or loss, and where possible, shall deliver fresh / replacement services to the User at its own cost.
8.3 For the avoidance of doubt, the payment made by the User and the refund made by the Supplier shall be subject of reconciliation in the statement of accounts shared by the Parties at the end of each month.
8.4 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.
9. Promotions and Rebates
9.1 Cater Thumb and the Supplier have agreed that the Supplier shall offer rebates to Users on prices of Subscriber’s Products and Services from time to time. The Supplier shall be responsible for updating the rebate particulars on the Application and Cater Thumb shall not be liable for any discrepancy in such particulars owing to failure of the Supplier to update such details.
9.2 In the instance listed above, the monthly reconciliation statement shall be amended and updated accordingly.
10. Marketing
10.1 Cater Thumb may, as deemed feasible, offer marketing and promotional opportunities to its Suppliers to promote its Products or Services from time to time, for a marketing fee.
11. Supplier Warranties and Obligations
11.1 The Supplier warrants that the Products supplied to the Users shall be new, merchantable, of agreed quality and description, in working order, fit for their intended purpose and free from 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.
11.2 The Supplier 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.
11.3 The Supplier undertakes to (i) perform the Services in a professional and workmanlike manner and in compliance with UAE laws, (ii) maintain adequate hygiene standards in compliance with the relevant local regulations in the UAE, and (iii) ensure that it sends competent professionals along with the appropriate equipment and materials for the Services. Furthermore, the Supplier warrants that its personnel have the requisite skills and experiences to perform the Supplier’s Services as per the expectations of the Users
of the Application. For the avoidance of doubt, Cater Thumb shall not be liable for any deficiencies in the Company’s Services.
11.4 When using or accessing the Services, the Supplier agrees that the Supplier shall not:
(a) post, list or upload in any manner any information which is blasphemous, defamatory, obscene, libellous, 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;
(b) post, list or upload content or items in inappropriate or prohibited categories or areas on the Application;
(c) items that to the Supplier’s knowledge are defective, fake, damaged, false or misleading or that may through normal use harm another Site user’s interest or health;
(d) post counterfeit or stolen items;
(e) fail to deliver items sold by the Supplier, unless the Supplier has a valid reason as set out in any of Cater Thumb’s policies;
(f) use contact information provided to the Supplier during the course of a transaction on the Application to solicit additional sales offline or on another Application;
(g) manipulate the price of any item;
(h) interfere with any other Supplier’s listings;
(i) take any action that may undermine the Application’s feedback and ratings systems;
(j) post false, inaccurate, misleading, deceptive, defamatory or similar content;
(k) transfer the Supplier’s account to another party without Cater Thumb’s prior written consent;
(l) distribute or post spam, unsolicited or bulk electronic communications or similar;
(m) distribute viruses or any other technologies that may harm Cater Thumb’s Services or the interests or property of other users;
(n) infringe:
(i) the Intellectual Property Rights that belong to or are licensed to us; or
(ii) any Intellectual Property Rights that belong to third parties;
(iii) harvest or otherwise collect information about users without their consent; or
(iv) circumvent any technical measures we use to provide the Services.
12. Staff Training
12.1 Cater Thumb shall provide training to the Supplier’s staff operating the Application in relation to operating procedures of the Application such as know-how of booking procedures of the Application.
12.2 Cater Thumb shall provide support to the staff of the Supplier who operates the Application, as and when needed. Depending upon the nature of support needed, Cater Thumb shall provide the support, remotely or through an on-site visit.
13. Disclaimer of Warranties and Limitation of Liability
DISCLAIMER OF WARRANTIES. CATER THUMB DOES NOT WARRANT THAT THE APPLICATION (INCLUDING ITS SOFTWARE) AND/OR THE SUPPORT WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE. USER ACKNOWLEDGES THAT THERE ARE RISKS INHERENT IN INTERNET CONNECTIVITY THAT COULD RESULT IN THE LOSS OF USER’S PRIVACY, CONFIDENTIAL INFORMATION AND/OR CONTENT. CATER THUMB HAS NO
OBLIGATION TO PROVIDE SECURITY OTHER THAN AS STATED IN THIS AGREEMENT. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CATER THUMB PROVIDES THE APPLICATION (INCLUDING ITS SOFTWARE) AND THE SUPPORT AND RELATED SERVICES “AS IS”, WITHOUT WARRANTY OF ANY KIND AND DOES NOT GUARANTEE THAT THE APPLICATION (INCLUDING ITS SOFTWARE) WILL PERFORM ERROR-FREE OR UNINTERRUPTED, INCLUDED BUT NOT LIMITED TO EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. USER SHALL HAVE SOLE RESPONSIBILITY FOR THE ACCURACY, QUALITY, INTEGRITY, LEGALITY, RELIABILITY, APPROPRIATENESS AND OWNERSHIP OF ALL OF USER CONTENT.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, GOODWILL, DATA OR DATA USE) ARISING FROM THIS AGREEMENT, WHETHER UNDER THEORY OF CONTRACT, TORT OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, CATER THUMB WILL NOT BE LIABLE FOR: (A) USER’S INABILITY TO USE THE APPLICATION AND/OR THE SUPPORT, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR, (II) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE APPLICATION AND/OR SUPPORT AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; OR (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY USER IN CONNECTION WITH THIS AGREEMENT INCLUDING WITH THIRD PARTY SUPPLIERS OF PARTS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF USER’S CONTENT/SEARCH DETAILS; OR (E) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHICH MAY ARISE OUT OF ANY THIRD PARTY OR RESELLER SOFTWARE LICENSE AND / OR RELATED SERVICES, OR (F) FOR ANY SECURITY BREACHES RESULTING FROM COMPUTER HACKERS, UNLAWFUL ENTRY, UNAUTHORIZED ACCESS, THEFT, DISGRUNTLED USER EMPLOYEES AND OTHER FRAUDULENT ACTS. NONWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO PROVEN DIRECT DAMAGES CAUSED BY EITHER PARTY’S SOLE NEGLIGENCE IN AN AMOUNT NOT TO EXCEED THE FEES ACTUALLY PAID BY USER TO CATER THUMB UNDER THIS AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE DATE OF THE CLAIM.
14. Intellectual property
14.1 All Intellectual Property of the respective Parties will remain unaffected as result of this Agreement or pursuant to it.
14.2 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 Parties agrees that the other Party may terminate such license at any time and without prior notice.
15. Term and Termination
15.1 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.
15.2 This Agreement is terminable, without any cause, by either Party upon providing a one (1) month’s prior written notice.
15.3 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.
16. Indemnity
16.1 The Supplier indemnifies and absolves Cater Thumb 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 or Services supplied by the Supplier or is due to the Supplier’s failure to comply strictly with the provisions of this Agreement and / or applicable laws.
17. Confidentiality
(i) 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 12(ii).
(ii) Each Party may disclose the other Party's confidential information:
(i) 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 12; and
(ii) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
(iii) Neither Party shall use the other Party's confidential information for any purpose other than to perform its obligations under this Agreement.
18. Non-circumvention
18.1 The Supplier acknowledges and agrees that all Users introduced to the Supplier via the Application represent significant efforts and working relationships that are unique to, and part of, the work product and intellectual capital of Cater Thumb. Therefore, the Supplier hereby irrevocably agrees not to (i) solicit or conduct business, directly or indirectly, with any User introduced by Cater Thumb to the Supplier 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 Cater Thumb in connection with transactions or orders placed via the Application by any User connected to the Supplier by Cater Thumb.
19. Governing law and jurisdiction
The governing law of this Agreement shall be the laws of the Dubai International Financial Centre. Any disputes arising out of the interpretation or execution of this Agreement shall be referred exclusively to the Dubai international Financial Centre Courts.
20. Miscellaneous
20.1 The validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired if any provision of this Agreement is rendered void, illegal or unenforceable in any respect under any applicable law.
20.2 The Parties acknowledge that in addition to any remedy available to a Party, whether provided herein or conferred by statute, civil law, common law, custom, trade, or usage, such Party shall be entitled to obtain an injunction against the other Party from a civil court of competent jurisdiction.
20.3 No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless made in writing specifically referring to this Agreement and duly signed by each of the Parties.
20.4 Nothing in this Agreement shall be deemed to constitute a partnership between the Parties or constitute either Party the agent of the other for any purpose.
20.5 In the case of any discrepancy or conflict between the provisions of this Agreement and any other document executed pursuant to this Agreement, the provisions of this Agreement shall prevail.
20.6 This Agreement may be executed in any number of counterparts, all of which, taken together, shall constitute one and the same instrument, and any party (including any duly authorised representative of a party) may enter into this Agreement by executing a counterpart. Facsimile or electronic signatures shall be valid and binding to the same extent as original signatures.
20.7 The rights of each party under this Agreement (a) may be exercised as often as necessary, (b) except as otherwise expressly provided in this Agreement, are cumulative and not exclusive of rights and remedies provided by the applicable law, and (c) may be waived only in writing and specifically. Delay in exercising or non-exercise of any such right is not a waiver of that right.
20.8 All dates, periods and terms related to this Agreement shall be given and counted in accordance with the Gregorian Calendar.
20.9 This Agreement constitutes the entire agreement between the Parties relating to the subject matter of this Agreement, superseding all prior agreements or undertakings, oral or written.
20.10 Clauses 11 (Indemnity), 12 (Confidentiality) and 14 (Governing Law and Dispute Resolution) and all clauses by virtue of their nature shall survive the expiry or termination of this Agreement.