merchant-terms
9-EIGHTEEN MERCHANT TERMS
BY (1) ACCEPTING AN ORDER VIA THE SERVICES, TOOLS, OR THE 9-EIGHTEEN PLATFORM (AS DEFINED HEREIN); (2) CLICKING A BOX INDICATING MERCHANT’S ACCEPTANCE OF THESE TERMS; OR (3) EXECUTING AN ORDER FORM OR RELATED AGREEMENT THAT REFERENCES THESE TERMS, MERCHANT HEREBY ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “MERCHANT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES DESCRIBED HEREIN. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ACKNOWLEDGE AND AGREE TO THE COLLECTION, USE AND DISCLOSURE OF YOUR PERSONAL INFORMATION IN ACCORDANCE WITH OUR PRIVACY POLICY.
THESE MERCHANT TERMS AND CONDITIONS (Terms) GOVERN YOUR USE OF 9-EIGHTEEN SOLUTIONS (“we” or “us” or “our” or “9-Eighteen”, “918 Order” or “”918 Booking”), WHICH GOVERNS THE USE OF THE DOMAIN https://9-eighteen.com, https://918order.com or https://918booking.com (Website) AND ANY 9-EIGHTEEN MOBILE APPLICATIONS CURRENTLY AVAILABLE TO YOU OR WILL BE AVAILABLE IN THE FUTURE (9-Eighteen Platforms). THIS AGREEMENT APPLIES TO ALL VISITORS, USERS, AND OTHERS WHO ACCESS THE SERVICES (each, hereafter, a “User”).
1. GENERAL
1.1 Upon consent or acceptance as provided above, these Terms are an agreement (Agreement) between the company identified within the 9-Eighteen Platform sign up process (“Merchant” or “You”) and 9-Eighteen. Upon acceptance of these Terms, Merchant may request access to our Services (as defined herein). Such request(s) may require acceptance of additional addenda, terms or conditions, and/or terms of use by Merchant
1.2 9-Eighteen maintains sole discretion for initial and/or ongoing provision of any such Services. Merchant’s access to and use of the Services is subject to these Terms and may be modified or updated by 9-Eighteen from time to time, effective upon posting an updated version of these Terms on our Website. Merchant is responsible for updating contact information and regularly reviewing the Terms and any other applicable updated Terms or agreements. Continued use of the Services after any such modifications or updates shall constitute Merchant’s consent to such changes.
1.3 The term “Parties” as used herein refers to Merchant and any 9-Eighteen platform.
1.4 The term “Party” as used herein refers to either the Merchant or any 9-Eighteen platform.
1.5 The terms “article,” “clause,” or “provision” refers to every numbered article in these Terms. By means of example, “article 4” refers to “4. Restrictions on Items.”
2. SERVICES
2.1 9-Eighteen makes available certain proprietary technology services that facilitate the marketing, sale, and fulfillment of orders for items (Items) from Merchant to Consumers (who are end users or anyone connected to the Merchant through the 9-Eighteen Platforms), including, but not limited to, on-demand lead generation, order processing, marketing, advertising and promotional services, proprietary information services, operational and other support services (Services).
2.2 In connection with the Services, 9-Eighteen and its affiliates may also make available to Merchant the 9-Eighteen Platforms, which can consist of Websites, mobile application or other technology interface for Merchant to access and use the Services, which may include 9-Eighteen’s and its affiliates’ proprietary technology platforms, through which Merchant may, among other things, receive, accept and fulfill requests for Items from Consumers and receive insights and analytics regarding Merchant’s performance and history using the Services.
2.3 9-Eighteen and its affiliates may also make available to Consumers its proprietary technology that enables Consumers to purchase Items from Merchant and request delivery services for said Items from Delivery People (as defined herein), who retrieve such Items from Merchant and deliver such Items to such Consumers. Delivery People are independent contractors who are not employees of 9-Eighteen and/or its affiliates, and as such, they reserve the right to refuse to accept any Item in their sole discretion.
2.4 9-Eighteen and its affiliates may make available the applicable Services to Merchant, solely for use by Merchant at locations that are owned and operated by the Merchant (each, a “Location”). Merchant shall provide 9-Eighteen current and accurate Location information throughout the Term (as defined herein) of this Agreement. In connection with the provision of Services to Merchant, 9-Eighteen and its affiliates, on behalf of Merchant, may respond to complaints by Consumers about Items sold by Merchant the 9-Eighteen Platform. To clear doubt, as between Merchant and 9-Eighteen, 9-Eighteen will retain sole control over the 9-Eighteen Platform (and all elements of the Consumer experience and interface relating to the 9-Eighteen Platform), including: (i) the personalization of the 9-Eighteen Platform for Consumers; (ii) the prioritization and display of options available to Consumers; (iii) the search functionality and results provided to Consumers; (iv) the order fees charged to Consumers for the delivery services provided by Delivery People; and (v) adding, removing or otherwise modifying any feature or functionality made available through the 9-Eighteen Platform to optimize reliability or efficiency on, and of, the 9-Eighteen Platform.
2.5 Merchant agrees neither 9-Eighteen nor its affiliates provide any delivery services. Rather, 9-Eighteen provides technology services that both (i) enable Merchant to connect with Consumers who may purchase Items, or reserve and book services from Merchant and (ii) enable Delivery People to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Consumers seeking delivery services. Delivery People perform their delivery services for (and are paid by) the Merchant, and not 9-Eighteen).
3. MERCHANT OBLIGATIONS
3.1 Merchant will make Items and services available for purchase through the 9-Eighteen Platform (Available Items) during its normal business hours and ensure the information of Available Items (Display) are accurate. Merchant will prepare, handle, store, label and package all Items in accordance with applicable laws and regulations. If Merchant fails to prepare or supply Items or make available services in accordance with applicable laws and regulations, 9-Eighteen may, in its sole discretion, remove such Item or services from the 9-Eighteen Platform. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the 9-Eighteen Platform.
3.2 Merchant shall be responsible for any reimbursement costs related to Consumer refunds for Items or services not acceptable or other related issues within Merchant’s control (including any costs associated with retrieving any such Items or services or otherwise unsatisfactory Item(s), if applicable), including, by way of example, missing or incomplete Items or unavailable services. 9-Eighteen may, in its sole discretion, deduct reimbursement costs from the payment 9-Eighteen remits to Merchant. Merchant agrees that 9-Eighteen does not take title to any Item or service at any time.
3.3 In connection with the access to and use of the Services, Merchant shall not (and shall not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Services (except as otherwise authorized by 9-Eighteen); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by Canada and its government agencies. Merchant shall not (and shall not allow any third party to) use the Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Consumers through the 9-Eighteen Platform (collectively, “9-Eighteen Data”) to directly or indirectly compete with 9-Eighteen or its affiliates or the Services, including, without limitation, 9-Eighteen Data that Merchant receives from 9-Eighteen.
3.4 Unless stipulated in article 4, Merchant may sell any Item or service through the 9-Eighteen Platforms. If, however, the Merchant chooses to sell alcoholic or similar products controlled and regulated by the local, provincial, state or federal government, then the Merchant shall ensure that the Consumer is of legal consuming age in the place where the Item is to be delivered and or consumed. The Merchant hereby agrees that any lawsuits arising out of the Merchant’s failure to validate the Consumer’s age does not make 9-Eighteen liable and that the Merchant shall indemnify 9-Eighteen against any and all losses arising from such a lawsuit.
3.5 Merchant agrees to receive calls or SMS/MMS messages for 9-Eighteen regarding updates, features, and anything related to its Services to the number(s) provided. Message & data rates may apply.
4. RESTRICTIONS ON ITEMS
The following restricted Items may not be featured or sold via the 9-Eighteen Platforms: people or animals of any size, illegal items, fragile items, dangerous items (such as, but not limited to, weapons, explosives, flammables, etc.), stolen goods, items containing endangered species or any items that Merchant does not have permission to offer. 9-Eighteen may remove from—or otherwise limit your ability to post to—a Merchant’s Display any Items 9-Eighteen deems prohibited or inappropriate in its sole discretion.
5. FEES AND TAXES
5.1 9-Eighteen will deduct applicable fees (“Fees”) from Item Revenue remitted to Merchant as further described herein. 9-Eighteen will remit to Merchant the total Retail Price collected for all Items Merchant sells via the 9-Eighteen Platform (including any Sales Taxes collected on its behalf) less: (a) the applicable retained Fees; and (b) any refunds given to Consumers for Items or services deemed unacceptable (such final remitted amount being “Item Revenue”). All Item Revenue that is duly owed to Merchant will be remitted within fourteen (14) business days of the sale of the Item (for clarity, “business days” means days excluding Saturdays, Sundays, and other statutory holidays in British Columbia that are not on Saturdays or Sundays).
5.2 9-Eighteen reserves the right to suspend Merchant’s ability to make Items available for purchase by Consumers through the 9-Eighteen Platform if Merchant’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if a Delivery Person is unable to complete the delivery of such Item. Except as expressly agreed in this Agreement, each Party will be responsible for its expenses and costs during its performance under this Agreement. Unless other agreed to by Parties, Fees under this Agreement will be paid in US Dollars.
5.3 The Retail Price. Merchant agrees to pay 9-Eighteen such Services Fee in consideration for on-demand lead generation services, connecting Merchant’s Consumers, order processing (which may be referred to independently as the “Order Processing Fee”), marketing advertising and promotional services, and operational and other support related services. All applicable 9-Eighteen fees are billed month to month for a minimum of 6 months. All customers agree to a 6 month contract followed by month to month billing. All Merchants agree to be auto billed by credit card via Stripe.
5.4 Our Services connect you with Consumers who wish to purchase your Items. You are the “Merchant”, “Retailer”, or “Seller” of all Items and or services to be made available for sale via the 9-Eighteen Platform. As such, you are responsible for determining and setting the retail price for each Item (Retail Price). You are also responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Taxes.
5.5 Notwithstanding anything to the contrary in this Agreement, Merchant agrees that the Merchant will not make an Item available under this Agreement at a price higher than the amount Merchant is charging for similar Items through any comparable platform.
6. CHANGES TO TERMS
We may add, remove, modify or otherwise change any part of the Terms at any time. Changes will be effective when the changed Terms are posted on our Website. You should check the Terms frequently for changes. If any change to the Terms is not acceptable to you, you should discontinue your use of our Services forthwith. Your continued use of our Services after changes to the Terms are posted thereon will constitute acceptance of the changes.
7. CHANGES TO OUR SERVICES
We may terminate, change, suspend or discontinue any aspect of our Services at any time without notice. Without limiting the generality of the foregoing, we may change the availability of any features, institute new, or change existing, fees or charges for the use of our Services or any features thereof, add, remove, modify or otherwise change any content on our Website or Services, impose limits on certain features or restrict access to parts or all of this Website or Services. We reserve the right, but not the duty, to correct any errors or omissions in any portion of this Website or Services at any time without notice.
8. PRIVACY POLICY
8.1 Internet communications are subject to interception, loss or alteration and, as a consequence, you acknowledge and agree that information or data you provide by electronic means by accessing or using our Services are not confidential or exclusive, except to the extent required by applicable laws, and that communications by email may be intercepted, altered or lost.
8.2 For more information, please see our Privacy Policy. You agree that they constitute part of these Terms and by continuing to use our Services, you agree to the Privacy Policy in conjunction with these Terms. We may periodically update our Privacy Policy and when we do, we will notify you by posting them on our Website.
9. INTELLECTUAL PROPERTY
9.1 We grant you a limited, non-exclusive, non-transferable, and revocable license to use the Services for their intended purposes subject to your compliance with these Terms and our policies. You may not copy, modify, distribute, sell, or lease any part of the Services. You may only access the Services through the interfaces that we provide for that purpose (for example, you may not “scrape” the Services through automated means or “frame” any part of the Services), and you shall not interfere or attempt to disrupt the Services.
9.2 Some parts of the Services may allow you to upload or submit content (such as text, images, video, recipes, lists, links, and other materials). You retain all rights in any content that you upload or submit and are solely responsible for that content. You grant us a non-exclusive, royalty-free, worldwide, transferable, sub-licensable, perpetual license to use, store, publicly display, publicly perform, reproduce, modify, create derivative works from, and distribute any such content for the purposes of operating, providing, and improving the Services. We may, at our sole discretion, remove or take down any content that you upload or submit to the Services for any reason, including violation of these Terms or any other policies.
9.2 Some parts of the Services may allow you to upload or submit content (such as text, images, video, recipes, lists, links, and other materials). You retain all rights in any content that you upload or submit and are solely responsible for that content. You grant us a non-exclusive, royalty-free, worldwide, transferable, sub-licensable, perpetual license to use, store, publicly display, publicly perform, reproduce, modify, create derivative works from, and distribute any such content for the purposes of operating, providing, and improving the Services. We may, at our sole discretion, remove or take down any content that you upload or submit to the Services for any reason, including violation of these Terms or any other policies.
9.4 Merchant agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of fulfilling Items under this Agreement. Merchant will maintain the accuracy and integrity of any Personal Data provided by 9-Eighteen and in Merchant’s possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by 9-Eighteen solely by using the Services provided by 9-Eighteen (“Personal Data” means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural or fictitious person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers; and (iii) any information that may otherwise be considered “personal data” or “personal information” under applicable law).
10. USER ACCOUNTS, REGISTRATION AND PASSWORD
10.1 To access our Services, you may have to register for a user account or subscribe (User Account). If you choose to register or subscribe, you agree to provide accurate and current information about yourself as required by the relevant registration or subscription process, and to promptly update such information as necessary to ensure that it is kept accurate and complete. You agree that you will only use your account personally and will not attempt to use the Services under the name of another person. Unless specifically permitted, we only allow one account per person. If multiple accounts are created by the same person, access to these accounts may be restricted and deleted by 9-Eighteen. You agree to promptly update any information necessary to ensure that your account is kept accurate, current and complete. You will be responsible for preserving the confidentiality of your account password and will notify us immediately of any known or suspected unauthorized use of your account and agree to take any reasonable steps necessary to prevent any recurrence.
10.2 Although we will not be liable for your losses caused by any unauthorized use of your User Account, you shall be liable for our losses and/or losses to others who also use our Services and/or the 9-Eighteen Platform due to such unauthorized use.
10.3 If you have authorized a minor to use our Services, then you agree to be fully responsible for: (i) controlling the minor’s access to and use of our Services; and (ii) the consequences of any misuse by the minor. You acknowledge that some areas of our Services may include material that is inappropriate for minors.
10.4 Article 10 of the Terms applies to any loss caused to 9-Eighteen or the 9-Eighteen Platform by you regardless of whether the loss resulted from intentional or accidental or negligent conduct.
11. TERMINATION
At our sole discretion, we may terminate or suspend your access immediately without prior notice or liability for any reason whatsoever, including, without limitation, if you breach the Terms. Upon termination, your right to use our Services will immediately cease and all provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. Any such termination by us shall be in addition to and without prejudice to such rights and remedies as may be available to us, including injunctions and other equitable remedies.
12. DISCLAIMER
EXCEPT AS SET FORTH HEREIN, WE DO NOT MAKE ANY REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING OUR SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR COURSE OF PERFORMANCE.
13. LIMITATION OF LIABILITY
9-EIGHTEEN, ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR INCOME, PAIN AND SUFFERING, EMOTIONAL DISTRESS, OR SIMILAR DAMAGE, OR DAMAGE RESULTING FROM ANY (I) ERRORS OR OMISSIONS IN CONTENT; (II) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN; (III) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES; (IV) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY THIRD PARTY PROVIDERS; OR (V) FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF YOUR USE OF OUR SERVICES MADE AVAILABLE VIA THE 9-EIGHTEEN PLATFORM. AS DELIVERY PEOPLE ARE INDEPENDENT CONTRACTORS, MERCHANT HEREBY AGREES THAT 9-EIGHTEEN ITS EMPLOYEES, AGENTS, OFFICERS AND DIRECTORS SHALL NOT BE LIABLE FOR DELIVERY PEOPLE’S CONDUCT OR THE ITEMS THEY CARRY. IF AN ITEM BEING DELIVERED BY A DELIVERY PERSON IS LOST, 9-EIGHTEEN SHALL NOT BE LIABLE.
14. INDEMNITY
15. APPLICABLE LAW
15.1 9-Eighteen provides its Services from its offices within the Province of British Columbia in Canada. Our Services can be accessed from all provinces and territories of Canada, as well as from other countries around the world. As each of these jurisdictions has laws that may differ from those of the Province of British Columbia, all matters relating to access to, or use of, our Services shall be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein.
15.2 The Parties agree to attorn and submit to the exclusive jurisdiction of the courts of the Province of British Columbia, Canada, only after the mechanism stipulated in article 17 has been used and exhausted and waive any objection to such jurisdiction or venue.
16. TERM
This Agreement shall commence on the date the Merchant accepts the Terms (Effective Date) and will continue for a period of one (1) year from the Effective Date and will automatically renew for successive one (1) year periods.
17. DISPUTE RESOLUTION
17.1 Parties hereby agree to submit any disputes for resolution to arbitration in Kelowna, British Columbia, Canada. The arbitral tribunal will be composed of one (1) neutral arbiter, who will be appointed by 9-Eighteen.
17.2 However, before Parties formally submit their complaint to arbitration, the aggrieved Party shall first try to negotiate with the other Party and settle the matter. Therefore, you are required to contact us at info@9-eighteen.com within ten (10) business days (here, “business days” has the same meaning as that which is stipulated in article 5.1) of suffering the grievance and we will likewise contact you at the email address you have provided when creating your account. In the event a resolution cannot be reached through negotiation, Parties will submit their dispute to arbitration.
17.3 In the event that we cannot reach you by email by reasons of (i) a full inbox; (ii) our email was sent to your spam or junk folder; (iii) you have since closed or stopped using that email address; (iv) you don’t have access to the Internet; or (v) any other reason, then we will seek a summary judgment from the courts of British Columbia.
17.4 Any Party that wishes to submit their dispute to arbitration will notify the other Party in writing by providing a physical letter or through email within ten (10) business days (here, “business days” has the same meaning as that which is stipulated in article 5.1) of suffering the grievance.
17.5 The arbiter shall resolve the dispute and provide a peaceful resolution within sixty (60) days from hearing both Parties. If this is not possible due to unforeseen circumstances such as force majeure, disease, famine, flood, earthquake, wildfire, riot, strikes, elections, then the arbiter shall be granted an additional thirty (30) days to resolve the dispute.
17.6 9-Eighteen can unilaterally forgo the obligations placed under clause 17.2 at their discretion and directly opt for arbitration and is not bound by the ten (10) business-day period but is bound by other applicable statutory limits.
17.7 You agree to waive any right you may have to: (i) a trial by jury; and (ii) commence or participate in any class action against us related to these Terms and, where applicable, you also agree to opt out of any class proceedings against us. The foregoing does not mean that article 18 does not apply. Rather, Parties will only seek the recourse of courts after article 17 has been used and exhausted.
18. SUBMISSIONS AND POSTINGS
For any content that you upload, transmit, post, distribute or otherwise make available for inclusion on a site (your “Contributions”), you must be, or have first obtained permission from, the rightful owner of the Contributions that you post. You acknowledge and agree that you are solely responsible for any Contributions you make and any of your Contributions will be treated as non-proprietary and non-confidential. By submitting your Contributions, you represent and warrant that: (i) you own the Contributions or otherwise have the right to grant, and do grant, to 9-Eighteen a world-wide, royalty-free, perpetual, non-exclusive, irrevocable, fully sub-licensable and transferable license to use, distribute, reproduce, modify, compress, adapt, publish, translate, communicate, publicly perform and publicly display your Contributions, and to incorporate them into other works in any format or medium now known or later developed, without any further compensation to the author; and (ii) you waive all moral rights in those Contributions. We have the right, but not the obligation, to monitor or investigate any of your Contributions posted to the 9-Eighteen Platform. We may also access or preserve your Contributions to comply with legal processes in Canada or foreign jurisdictions, ensure compliance with these Terms or any policies, or protect ourselves, our customers and/or the public. We may, without notice or liability, move, remove, edit, delete or refuse to post any of your Contributions, in whole or in part, that we decide, in our sole discretion, is unacceptable, undesirable or in violation of any law and/or the Terms.
19. SEVERABILITY
Any provision of these Terms that is prohibited or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and shall be severed from the remainder of these Terms without affecting the remaining provisions of these Terms or affecting the validity or enforceability of such provision in any other jurisdiction.
20. WAIVER
Our failure to insist upon or enforce strict performance of any provisions of these Terms shall not be construed as a waiver of any of these Terms or our right to enforce these Terms.