AGREEMENT
This ‘Agreement’ is
agreed and entered on the Effective Date
by and between:
·
MakeMyTrip
(India) Private Limited, a company registered under the Companies Act, 1956, with its principal
office at 19th Floor, Building No. 5, DLF Cyber City, Gurgaon,
122002 (hereinafter referred to as ‘MMT’) including its successors and assigns
thereof as first party;
·
Ibibo Group Private Limited, a company registered under the Companies Act, 1956, with its
principal office at 19th Floor, Building No. 5, DLF Cyber City,
Gurgaon, 122002 (hereinafter referred to as ‘IBIBO’) including its successors
and assignees thereof, and
·
The Cab Provider, as detailed further in Annexure 1.
MMT,
IBIBO & the Cab Provider are individually referred to as ‘Party’ and
collectively as ‘Parties’. MMT and IBIBO referred collectively as
‘Facilitators’.
PREAMBLE:
A.
The Facilitators are engaged in the business of
providing travel and tourism related services.
B.
The Cab Provider is engaged in the business of
providing passenger transportation services using vehicles (“Cab
Transportation Services”). The Cab Provider has represented to Facilitators
that it has the necessary legal, technical, and business setup to procure the facilitation
services as defined in this Agreement.
C.
The Facilitators and Cab Provider desire to enter into
this Agreement to bind themselves with their mutual obligations as prescribed
hereunder.
NOW THEREFORE THE PARTIES HERETO AGREE TO THIS AGREEMENT TERMS AS
FOLLOWS:
1.
SCOPE
OF SERVICES
1.1.
The Cab Provider will provide to the Facilitators information with
respect to the availability of Cab Transportation Services and their “Gross
Rate” to Facilitators on a direct connection
(API Linking), or through any other mode as may be decided between the Parties.
1.2.
Facilitators may then host the availability of the Cab
Transportation Services on the websites and other online and offline sales
channels (including mobile applications or browsers, branch offices, b2b
partners etc.) of the Facilitators and their Affiliates.
1.3.
MMT and IBIBO would be rendering
services as a facilitator arranging booking of the Cab Transportation Services
between Cab Provider and customers. Accordingly, only the Cab Provider shall be
responsible for provision of transportation services to the customers booking
the Cab Transportation Services through Facilitators.
2.
COMMERCIAL
TERMS
2.1.
GROSS RATE
2.1.1.
“Gross Rate”
is the rate notified by the Cab Provider to Facilitators
as the listing price of the Cab Transportation Services excluding any
applicable government taxes and Goods and Services Tax (“GST”) unless otherwise
stated, at which the customer would confirm the Cab Transportation Services
through Facilitators.
2.1.2.
Facilitators shall not alter the Gross Rate notified by the Cab
Provider.
2.1.3.
Unless explicitly provided otherwise in this Agreement, Facilitators shall provide customer reservations at
the Gross Rate along with applicable taxes (subject to any promotional scheme
under clause 2.2).
2.2.
PROMOTIONAL
SCHEMES
2.2.1.
If the Cab Provider is offering any promotional sales of Cab
Transportation Services at discounted prices compared to usual Gross Rate, the Cab
Provider shall ensure that the same discounted prices shall be offered to the
customers booking through Facilitators.
2.2.2.
The Facilitators may, at its sole
discretion, offer certain promotions to the customers, except on any specific
dates duly informed by the Cab Provider to Facilitators
at least 5 (five) working days in advance.
2.3.
COMMISSION
2.3.1.
The Parties may agree on the “Commission” for any transaction or
set of transactions. Such Commission shall be payable by the Cab Provider to
the Facilitator, and shall always be calculated as a percentage of the Gross
Rate or as mutually agreed between the Parties. Any promotional offers of the
Facilitators shall not be reduced from the Gross Rate for the purpose of
calculation of Commission.
2.3.2.
The Commission shall be paid as a separate payment to
Facilitators, or may be set-off from payment collected from the customer, as
may be decided by the Parties.
2.4.
EMAIL AGREEMENT OF THE COMMERCIAL TERMS
The Parties
can agree over email the above mentioned commercial terms regarding Gross Rate,
Commission and promotional schemes, on time to time basis. Any other amendments
to this Agreement shall be as done as per clause 11.7.
3.
RIGHTS AND
OBLIGATIONS OF THE CAB PROVIDER
The Cab
Provider shall:
3.1.
Ensure the availability of information with respect to Cab
Transportation Services on real-time basis.
3.2.
Be responsible for rates made available to the Facilitator.
3.3.
Shall ensure rate parity, and service availability parity between Facilitators and other travel agents, other sales
channels of third parties and the Cab Provider itself.
3.4.
Act in good faith and shall not in any way commit acts prejudicial
to the interest of Facilitators or the customers booking through Facilitators
including without limitation, acts which in Facilitators sole discretion may
amount to defrauding Facilitators or its customers.
3.5.
Ensure that cancellation policy provided in respect of bookings
made through Facilitators shall be no less favourable than the policy provided
by the Cab Provider in respect of booking through any other third party or the Cab
Provider itself.
3.6.
Submit the necessary KYC documents as may be required by the
Facilitators from time to time.
3.7.
Not solicit reservations directly from those customers booked
through the Facilitators, and shall not market the Cab Transportation Services
to those customers directly.
3.8.
Resolve all customer grievances directly with the customer. Facilitators may at its discretion operate a
customer service facility to resolve the grievances of the customers over phone
and by co-ordinating with the Cab Provider, but in all cases the ultimately
responsibility remains with the Cab Provider to resolve the grievances.
3.9.
Not charge any additional charges, taxes or levies (except where
there is a statutory change in the tax rate or any legislation governing
taxation laws), over and above the Gross Rate specified at the time of
confirming the Cab Transportation Services.
3.10.
Provide services to the customers booking through Facilitators as per best industry practice.
3.11.
It shall liable for ensuring that the provisions of this Agreement
including but not limited to the obligations of Cab Provider shall be complied
‘as is’ by any driver(s) operating the vehicles on behalf of the Cab Provider.
4.
RIGHTS AND
OBLIGATIONS OF THE FACILITATOR
4.1.
The Facilitators will be liable
to pay to the Cab Provider only for those bookings which are booked by the
customers through Facilitators for genuine
utilization by the customers, and for which Gross Rate is collected from the
customers on behalf of the Cab Provider. The Cab Provider will not engage in
fictitious booking of its Cab Transportation Services for the purpose of unduly
enriching itself with the promotional schemes of Facilitators.
4.2.
The Facilitators can issue vouchers confirming the booking of Cab
Transportation Services, issue invoice (s) to the Cab Provider for the
Facilitator’s commission, receive booking confirmation for the Cab
Transportation Services from the Cab Provider, and collect the Gross Rate for Cab
Transportation Services on behalf of the Cab Provider.
4.3.
The Facilitators, at their sole discretion, may translate the
information about the Cab Transportation Services into any regional language
and use the same for the Facilitator’s business purposes. Such translated data
will be the exclusive property of the Facilitators.
4.4.
Facilitators may at their sole discretion solicit reviews of the Cab
Transportation Services provided by the Cab Provider from customers who have utilised
the Cab Transportation Services booked through Facilitators,
and may publish these comments and associated rankings on the websites of each Facilitator and its Affiliates. Facilitators will use their best efforts to monitor
reviews with respect to certain reasonable criteria of genuineness and proper
language, and further reserves the right to remove these reviews. Facilitators will not enter into any discussion,
negotiation or correspondence with the Cab Provider in respect of the content
or consequences of the publication or distribution of the customer reviews.
However, the Facilitators will use all
reasonable methods to procure removal from the website(s) of any comments about
the Cab Provider which have been already posted provided that the Cab Provider
can show by reasonable evidence that such comments are false or are not a
genuine expression of that customer’s opinion. The Cab Provider acknowledges
that Facilitators are the distributor and not
the creators of such comments. All liability for the content of any such
comments is excluded to the extent permitted by law.
4.5.
Facilitators will provide the customer information to the Cab Provider ‘as is’
in the form and content provided by the customer. Facilitators
do not warrant the accuracy or completeness of such information as that
is provided by a third person outside the control of Facilitators.
Such information shall always be the property of the Facilitators.
4.6.
The Facilitators may at their sole discretion bundle the Cab
Transportation Services with other services made available by the Facilitators
and distribute the bundled package on their platform.
4.7.
The Facilitators is entitled to display
the name, brand name, logo, trademark and any other information of the Cab
Provider, as supplied by the Cab Provider, to enable the Facilitators fulfil their rights and obligations
under this Agreement.
4.8.
Facilitators at their own discretion can charge the customer booking through Facilitators a “Service Fee” for its
services, over and above the Gross Rate.
5.
GENERAL OBLIGATIONS
OF THE PARTIES
5.1.
Bookings of the Cab Transportation Services made against the
customer confirmations communicated by the Facilitators will be purely at the
choice of the customers and will be as per the “user agreement” available at
the website of the respective Facilitator. Such user agreements form an
integral part of this Agreement and are incorporated in this Agreement by
reference. The Parties agree to deliver their obligations accordingly.
5.2.
The amount refundable to the customers in case of cancellation of
booking shall be as per the cancellation policy as informed by the Cab Provider
to Facilitators from time to time. No cancellation retention shall be payable
to the Cab Provider in case of cancellation of Cab Transportation Services due
to Force Majeure events.
5.3.
The description of the Cab Transportation Services at Cab Provider’s
website should be consistent with the information as provided by Cab Provider
pursuant to this Agreement and such Cab Transportation Services should be
actually provided for by the Cab Provider in line with the description. In case
the specified Cab Transportation Services (as per the specification shared by
the Cab Provider) are not provided by the Cab Provider, the Cab Provider shall
be solely responsible to the customer for any complaint in respect of the same.
5.4.
Any adverse change(s) in the confirmation terms as provided by the
Cab Provider, including the cancellation policy, refund policy etc. shall only be
applicable with prospective effect for bookings made after the implementation
of the revised terms.
6.
TERM AND
TERMINATION
6.1.
The Agreement shall commence from the Effective Date and be
continue to be valid unless terminated by either Party with 30 (thirty) days’
notice to the other Party anytime during the term of this Agreement.
6.2.
In addition, either Party may terminate this Agreement with
immediate notice for material breach of the terms of this Agreement by the
other Party or for any statutory reasons; in case of a breach by a Party
capable of being cured, the other Party may terminate this Agreement with
immediate notice if the former Party fails to cure the breach within 15
(fifteen) days’ from the date the latter Party notifies the breach.
6.3.
The accrued obligations of a Party prior to termination of this
Agreement, for any reason whatsoever, shall continue to be binding on that
respective Party those are completely discharged. The Cab Provider shall
continue to provide the Cab Transportation Services for the confirmations accepted
by it prior to the date of termination.
7.
INDEMNITY
7.1.
Pursuant to assurance of Cab Provider, once cab booking has been
confirmed to the customer booking through Facilitators, the Cab Provider will honor the booking without fail. In the extreme cases where
the Cab Provider fails to honor the booking for any
reason whatsoever, the Cab Provider may directly arrange or authorise the
Facilitators (at the Cab Provider’s expense) to arrange, an alternate transportation
option, in same or better vehicle category. In the event no alternate option is
provided to the customer or if the customer requests for a refund, the Cab
Provider authorizes the Facilitators to refund the Sell Rate along with
compensation (1) extending up to 100% of the Gross Rate, or (2) above 100% of
the Gross Rate with Cab Provider’s approval. The Cab Provider further
authorizes the Facilitators to pay any cost as may be incurred by the
Facilitators to settle the customer’s issue (including legal and litigation
costs) in all cases where either a refund was processed or an alternate transportation
was provided to the customer under this Clause.
7.2.
Each Party agrees to indemnify and hold the other Party, its
officers, directors, employees, successors, and assigns harmless against all
losses, damages, liabilities, costs or expenses of whatever form or nature,
including, without limitation, attorney's fees and expenses and other costs of
legal defence whether direct or indirect, that they, or any of them, may
sustain or incur as a result of any acts or omissions of the former Party or
any of its directors, officers, employees, or agents, including, but not
limited to (1) breach of any of the provisions/obligations of this Agreement,
(2) negligence, misconduct or other tortuous conduct, or (3) misrepresentations
made herein.
7.3.
Neither Party shall be liable to the other for any indirect,
incidental, punitive, special or consequential damages or losses (including
without limitation loss of profit or revenue etc.), whether under contract or
in tort, and even if the other party had been advised of the possibility of
such damage or loss. Notwithstanding anything to the contrary in this contract,
in case of any dispute (including third party claims) the maximum liability of Facilitators
under this Agreement is limited to the commission paid to Facilitators by the Cab
Provider during the period of 12 months preceding the date of dispute for that
specific Cab Transportation Service of the Cab Provider which is the subject of
the dispute.
8.
REPRESENTATIONS
AND WARRANTIES
8.1.
Each Party represents and warrants to the other Party that:
8.1.1.
It has full legal right, power and authority to carry on its
business and to enter into this Agreement and perform all of its obligations,
terms and conditions hereunder; and
8.1.2.
Neither the execution nor delivery of this Agreement, nor the
fulfilment nor compliance with the terms and provisions hereof, will conflict
with, or result in a breach of terms, conditions or provisions of, or
constitute a default under, or result in any violation of its charter documents
or by laws, if any, or any agreement, restrictions, instrument, order,
judgment, decree, statute, law, rule or regulation to which it is subject, or
require any consent, approval or other action by any court, tribunal,
administrative or governmental body.
8.1.3.
The information they have disclosed pursuant to the Agreement
including the Annexures is true, accurate and complete.
8.2.
The Cab Provider additionally represents and warrants that:
8.2.1.
It is operating in compliance with all the applicable laws,
regulations and statutes, and it has the requisite licenses in place to operate
its business;
8.2.2.
It has full right, title and interest in and to all trade names,
trademarks, service marks, logos, symbols, proprietary marks and other
intellectual property marks ("IPR")
which it provides to Facilitators, for use
related to the Services, and that IPR does not infringe the rights of any third
party; and
8.2.3.
It shall at all times be subject to compliance with
the requirements set out in Annexure 2.
8.2.4.
It further warrants that it has obtained necessary authorizations
to act for and on behalf of such driver(s) operating the vehicles on behalf of
the Cab Provider as per the applicable laws.
9.
TAXES
9.1.
Each Party with respect to the services
rendered in its individual capacity, would be solely responsible for the
compliance of all applicable laws including but not limited to legislations
regarding GST, central, state or local levies with respect to payment of tax,
duties, levies, charges, cess, etc.
9.2.
The Cab Provider authorizes Facilitators
to collect the taxes (under the Applicable Laws) on behalf of Cab Provider from
customers booking through Facilitators’ Portals. Such tax collected by Facilitators
shall be remitted to the Cab Provider and it shall be the responsibility of Cab
Provider to deposit the same to the concerned authority under applicable law.
Facilitators shall not be liable to deposit such amount of tax unless
specifically mandated by law. In cases where the Applicable Law requires Facilitators
to deposit tax, the Cab Provider shall not be eligible to collect such tax from
the customer through Facilitators.
9.3.
Facilitators maintain and operate an
online web platform to facilitate reservation of cabs, therefore, and each of
them qualify as an “ecommerce operator” under the provisions of Indian GST
laws:
9.3.1. As per GST Laws, Facilitators are responsible as a supplier and liable
for charging, paying and depositing applicable GST on amount charged for the
cab service booked by customers through Facilitators.
9.3.2. Accordingly, the Cab Provider would not be supplier and therefore, is
not liable to charge, pay and deposit GST on amount collected by Facilitators
from the customers booking cab services through Facilitators.
9.3.3. Facilitators would be responsible for issuing GST invoices towards the amount
collected along with applicable GST from the customers booking cab services
through Facilitators.
9.4.
For the service fee (if any) charged by
Facilitators, Facilitators shall issue tax invoice on the customers for the
amount of service fee along with applicable taxes.
9.5.
All payments under contract will be
subject to applicable withholding tax provisions. The Party withholding the tax
would be responsible for providing appropriate proof, certificate, documents,
etc. to enable the other Party claim the benefit of the same.
9.6.
The Commission payable to the Facilitators
will be exclusive of taxes. The Facilitators shall raise periodic invoice on the
Cab Provider for the amount of Commission along with GST at applicable
rate.
9.7.
The Parties would be responsible for their
own tax assessments, audits, inquires, etc. and would keep the other Party
indemnified from any additional tax demand arising out of the same.
9.8.
Each Party undertakes to provide the other
Party with necessary documents, as may be required by law from time to time, to
prove such Party’s compliance with the applicable tax laws with respect to this
Agreement including its obligations to deposit the necessary taxes with the
authorities. Any interest, penalties or recoveries from the either Party by any
authority on account of default by the other Party will be solely borne by the
other Party on its own account.
10.
CONFIDENTIALITY
10.1. The Parties agree that
any information (including any written, tangible or intangible information)
exchanged between or disclosed by either Party to the other Party from time to
time, which by its inherent nature is confidential or is specifically mentioned
as confidential, shall be the confidential information of the said Party and
either Party shall not disclose the same to the public without taking the prior
written approval of the other Party.
10.2. The obligation of confidentiality contained
under this clause shall not apply to information which:
10.2.1. At the time
of the disclosure is or already was in the possession of the other Party as
evidenced by written documents; or
10.2.2. At the time
of the disclosure was already in the public domain as evidenced by written
documents; or
10.2.3. After the
disclosure became generally available to the public through no fault of the
other Party; or
10.2.4. Was
subsequently disclosed to the other Party by a third party having a lawful
right to disclose the information and being under no obligation of
confidentiality with regard to a Party; or
10.2.5. Has been
developed by the other Party independently on its own and without reliance on
any information provided by the disclosing Party; or
10.2.6. Is required
to be disclosed by a Party to comply with applicable laws or governmental
regulations, provided that the said Party provides prior written notice of such
disclosure to the other Party and takes reasonable and lawful actions to
minimize the extent of such disclosure.
11.
GENERAL
11.1.
All benefits and rights under the Agreement will be available to
each Affiliate of the Facilitator as if the Affiliate is a contracting party to
the Agreement. Affiliates includes persons which are Controlled by the
Facilitator, or under common Control of a person who is controlling the
Facilitator. Control means ability to, directly or indirectly, direct or cause
the direction of the management or policies of a person, whether through the
ownership of voting securities, by contract or otherwise.
11.2.
The Cab Transportation Services will be made available on the
platform of the Facilitators at the sole discretion of Facilitators; and the Cab Provider shall not
have any rights to insist specific performance by Facilitators.
11.3.
This Agreement is
governed by the laws of India and Parties agree to the exclusive jurisdiction
of courts of New Delhi, India.
11.4.
The waiver of any right in this Agreement shall be in writing and
signed by the Party against whom enforcement is sought, and shall not be a
waiver of any other right in this Agreement.
11.5.
The Cab Provider shall not assign this Agreement to any other
person without the Facilitator’s prior written consent.
11.6.
Any notices under this Agreement by a Party to the other Party
shall be issued to the respective Party’s address mentioned in this Agreement.
11.7.
Modifications to this Agreement may be done by means of a separate
amendment as an agreement signed by
both Parties, by means of a revised link sent by Facilitators and acceptance of
the same by the Cab Provider or by means of a written communication via email or
otherwise by Facilitators which shall be deemed as acceptance by means of
conduct by the Cab Provider.
11.8.
Unless as otherwise specified in the Agreement, neither Party
shall be responsible for any failure to comply with its respective obligations
under this Agreement, where such failure or delay is due to events of Force Majeure (as defined below) provided that the
affected Party notifies the non-affected Party within reasonable time of the
commencement of the event of Force Majeure. Force Majeure events shall mean any
circumstances beyond the reasonable control of Parties like war, riot, flood,
fire, Acts of God, epidemic, explosion, disease, earthquake, hijacking,
sabotage, crime.
11.9.
This Agreement and Annexures constitute the complete and exclusive
statement of the Agreement between the Parties,
and supersedes all proposals, and all other prior or contemporaneous
communications between the Parties relating to the subject matter hereof,
whether written or oral.
11.10.
The Parties acknowledge and agree that the relationship between
them is that of principal and agent to the limited extent of collection of
payment by the Facilitators from the customers on behalf of the Cab Provider
for further remittance by the Facilitators to the Cab Provider. Subject to the
above exception, the Parties are operating independently and nothing in this
Agreement is to be construed as employer/employee, franchise/franchisee,
partners, joint ventures, co-owners, or otherwise participants in joint or
common undertaking. The Facilitators shall be responsible for collecting the
concerned amount from the customer as an intermediary in the fiduciary
capacity, which amount shall be duly remitted to Cab Provider as per the
arrangement contained in this Agreement.
11.11.
This Agreement shall be signed by the Cab Provider through filling
the online form with its details, and agreeing to these terms and agreements
with Facilitators as a click wrap agreement. Accordingly, this Agreement is
legally valid between the Parties by virtue of their online acceptance.
Annexure 1
1.
Effective Date : [.]
2.
Details of the Cab Provider :
|
Business name |
[.] |
|
Legal entity |
[.] |
|
Address |
[.] |
|
Contact person |
[.] |
|
Phone |
[.] |
|
Email ID |
[.] |
Annexure 2
The Cab
Provider confirms the following:
1.
Any
dispute pertaining to billing shall be raised by the Cab Provider latest by 15th
of subsequent month.
2.
The
Facilitators shall only be liable for remitting the Gross Rate for all utilised
bookings of the customers booking through the Facilitators.
3.
The Cab
Provider shall be liable for ensuring that the driver(s) operating the vehicles
on behalf of the Cab Provider
shall:
3.1.
Take
all precautions (including but not limited driving in a rash or negligent
manner), follow traffic rules under applicable laws and maintain adequate
safety measures during the provision of Cab Transportation Services;
3.2.
Have a
clean record without any criminal history;
3.3.
Ensure
that vehicle used is clean and well maintained;
3.4.
Behave
in an orderly manner and do not misbehave or harass the passengers;
3.5.
Wear
the prescribed uniform;
3.6.
Reach
the pick-up point before the designated pick-up time; and
3.7.
Stay
logged in the Facilitator application at all times during the provision of Cab
Transportation Services.
4.
The Cab
Provider shall be liable for ensuring:
4.1.
It imparts
training to the driver(s) on a regular basis;
4.2.
It has
a comprehensive insurance policy for the vehicle;
4.3.
Only
commercial vehicle(s) are used in the provision of Cab Transportation Services;
4.4.
Vehicle
and driver details are shared with the customer before the trip;
4.5.
The
assigned driver and the designated vehicle are used in the provision of Cab Transportation
Services;
4.6.
Resolution
any disputes by the customer/Facilitators, if raised (i) after the trip within
24 (twenty four) hours; and (ii) on-trip within 30 (thirty) minutes;
4.7.
The
driver(s) are medically fit.
