N.B. This document is a translation and in the event of any discrepancies between
this version and the original Norwegian version, the Norwegian version shall apply.
GENERAL TERMS FOR PARTNER AGREEMENTS - RESTAURANTS (November 2023)
These general terms (the “Terms”) apply to the partner contracts
and/or agreements between Foodora Norway AS (reg. no.
996691349) (“foodora”), a part of the Delivery Hero group (“Delivery
Hero”), and foodora’s restaurant partners who through their place(s)
of business wish to make available food, drinks and other products
(“Products”) to foodora for marketing and sales on foodora’s online
platform (the “Platform”). Each partner is hereinafter referred to as a
“Partner”, and together with foodora jointly referred to as the
“Parties” (and each a “Party”).
The partner contract or other agreement between the Parties in
relation to sale of Products and services (the “Contract”), together
with these Terms and any other appendices thereto, is referred to as
the “Agreement”.
In the event of conflicting information between the documents and
appendices of the Agreement, the terms of any Contract and/or
specific appendices or other agreement in writing between the
Parties shall take precedence.
1 GENERAL
1.1The Platform is available at www.foodora.no and via foodora's
mobile app and enables businesses and individuals
(“Customer(s)”) to order Products from foodora for delivery or
pick-up directly from the Partner's place of business
(“Orders”).
1.2 By entering into the Agreement the Partner becomes a
commercial partner to foodora and agrees to foodora
marketing, purchasing and re-selling Products and any
delivery services provided by the Partner on the Platform,
including marketing of the Partner’s place(s) of business and
brand.
2 FOODORA'S SERVICES AND RIGHTS
2.1 Onboarding
2.1.1foodora makes general compliance checks of the Partner in
connection with the entering into the Contract and throughout
the term of the Agreement. This includes (but is not limited to)
foodora making searches and requesting general know-your-
customer (KYC) and credit information as well as evidence of
registrations, permits and licences applicable to the Partner’s
business and contacting relevant supervisory authorities
(including but not limited to in relation to Applicable
Regulations and Permits as defined in 3.5.1 below).
2.1.2 foodora has no obligation to onboard or offer any Products
from a Partner until and unless foodora is satisfied that the
Partner meets foodora’s compliance requirements, including
but not limited to in respect of any checks referred to in 2.1.1
above. Furthermore, foodora reserves the right to at any given
time remove, restrict or reject sale and marketing of Partners
and/or Products on the Platform which are unlawful (including
but not limited to The Norwegian Transparency Act (No.
Åpenhetsloven (2021-06-18-99)), or which foodora do not
consider to be aligned with foodora’s policies, values and
beliefs (including but not limited to Delivery Hero’s Acceptable
Use Policy and Supplier Code of Conduct) or if the Partner
otherwise do not comply with the terms of the Agreement.
2.1.3 When joining the Platform, foodora provides the Partner with
relevant hardware and/or software to enable Orders to reach
the Partner (“Technical Equipment”). The Partner is also
given access to foodora’s partner portal (the “Partner
Portal”), which gives the Partner continuous access to
information on sales, statistics, etc. Via the Partner Portal, the
Partner can order various marketing campaigns from foodora
to increase the visibility of the Partner and its Products made
available by foodora on the Platform (“Marketing Products”)
in accordance with clause 6.5 (Marketing Products), and can
also find more information on e.g., different features and
badges that can be earned based on overall performance
under this Agreement, as applicable.
2.1.4 foodora does not guarantee the availability or functionality of
the Platform or any Technical Equipment supplied and is not
liable for interruptions during the term of the Agreement.
foodora is not liable to pay compensation to the Partner for
any downtime or deficiencies /defects in the Platform or the
Technical Equipment.
2.1.5 foodora provides a system via Partner Service for support and
complaints, under which the Partner can e.g., request
support, report technical issues and submit complaints in
relation to the Platform and foodora’s services. The Partner
further has continuous access to the status of submitted
reports and/or reported issues, and any response and/or
actions taken by foodora. Partner Service is reached at
[email protected].
2.2 Ranking and visibility on the Platform
2.2.1Partners and Products available via the Platform are exposed
to the Customer in accordance with the Customer's search
filters and the generally applied principles for ranking of
Partners and Products on the Platform (“Ranking”). Ranking
is based primarily on paid placement, opening hours, prep-
time, and distance from the Customer. Ranking may also be
affected depending on the Partners’ performance (e.g., delays
and cancellations of Orders). Partners can influence Ranking
by way of Marketing Products and performance, however,
Marketing Products and performance does not restrict
Customers from being able to customise search filters and
foodora does not provide any guarantees in respect of
additional Orders by the use of Marketing Products.
2.2.2 foodora reserves the right to limit the number of Products
made available by a Partner on the Platform due to technical
and practical limitations, and to provide for a good customer
experience.
2.2.3 Partners, or selected Products or categories of products, may
be provided better visibility and ranking as part of foodora’s
own marketing campaigns and offers to Customers, including
marketing of newly added Partners on the Platform.
Furthermore, foodora may use and test different interfaces
and/or features on selected partners or its affiliates in order to
develop its services.
2.2.4 For Partners operating as a chain or under the same brand or
franchise (“Brand Partners”), the number of Brand Partners
visible to Customers on the Platform may be limited to display
the Brand Partner with the shortest overall delivery time to the
relevant delivery address selected by the Customer, taking
into account availability, distance and prep-time, as well as
the Brand Partners’ performance from time to time in order to
improve customer experience.
2.2.5 foodora is entitled to publish content that the Partner or a
Customer has posted on the Platform in the form of reviews,
comments, or other publication of material. foodora is further
entitled to edit or delete material that foodora considers to be
insulting or offensive, is unlawful, markets another supplier's
order platform or has no other connection to the Platform's
area of application in line with foodora’s review guidelines as
from time to time applicable.
2.2.6 foodora is entitled to unilaterally change domain names and
websites participating on the Platform.
2.3 Orders and receipts
2.3.1foodora performs quality controls on the Customer details
given for Order to avoid incorrect Orders being sent to the
Partner.
2.3.2 foodora issues receipts and invoices for all Orders placed on
the Platform. The Partner shall not provide the Customer or
foodora with any receipt or invoice for any Orders or Products
and the Partner shall not hold foodora liable for any damages
in relation to VAT or other tax penalties resulting from the
Partner’s issuance of receipts or invoice.
2.4 foodora Delivery
2.4.1foodora is a registered food company and when transporting
food as defined in Article 2 of Regulation (EC) No. 178/2002
of the European Parliament and of the Council, foodora
undertakes to comply with all applicable requirements
regarding food safety and hygiene under relevant food
legislation.
2.4.2 For Orders for which foodora provides delivery to the
Customer (foodora Delivery), foodora’s courier will pick up the
Order from the Partner’s place of business on or about the
time indicated in the Partner’s app for delivery to the
Customer. In the event of foodora’s courier being delayed,
whereby the Partner is required to re-cook or replace any
Products in the Order intended for immediate consumption,
foodora will purchase or otherwise compensate the Partner
with an amount corresponding to 40% of the Recommended
Price (as defined in clause 4.1.1 below) for the relevant
Products. Compensation will be paid as soon as possible but
not later than one (1) month after the relevant re-cooking is
reported, in connection with a payment as set out in clause
4.5 below.
2.4.3 foodora is responsible and compensates Customers for
damages caused to Products during deliveries carried out by
foodora.
3 THE PARTNER'S UNDERTAKINGS
3.1 Partner Information
3.1.1The Partner is responsible for ensuring that any information
provided by the Partner is complete and correct at all times
and undertakes to notify foodora of any changes in such
information or other changes in relation to information about
the Partner without undue delay.
3.1.2 The Partner shall ensure that foodora is informed of the
current opening hours for its place of business, during which
the Partner shall remain available via phone and/or chat. Any
changes to opening hours shall be communicated by no less
than three (3) days prior notice.
3.2 The Platform and the Technical Equipment
3.2.1The Partner shall use the technical equipment necessary to
access and manage the systems used by foodora (including
the Technical Equipment) and ensure that its staff has
relevant training and knowledge to operate the technical
systems and software used for accepting and completing
Orders and update the available Assortment on the Platform.
foodora is entitled to impose charges for misuse of the
Technical Equipment.
3.2.2 If technical or any other problems arise with the Platform or
the Technical Equipment that prevents the Partner from
performing its undertakings pursuant to the Agreement, the
Partner shall immediately notify foodora of this, in order for
foodora to remedy any problems.
3.3 Sale of Products
3.3.1During the term of the Agreement the Partner undertakes to
make the current offering of Products as agreed with foodora
from time to time (the “Assortment”) available for ordering via
the Platform in accordance with the terms of the Agreement.
3.3.2 The Partner is responsible for preparing and, if applicable,
delivering the Product(s) set out in the Order in accordance
with the Agreement. By accepting an Order, the Partner
concludes a binding contract with foodora for purchase of the
Product(s) and any applicable delivery services.
3.3.3 The Partner undertakes to keep a sufficient quantity of the
Products featured in the Assortment available for Orders on
the Platform, and to ensure that the Products are in good
condition and with applicable expiration dates.
3.4 Confirmation and completion of Orders
3.4.1The Partner must confirm receipt of an Order within 60
seconds of receiving it by accepting or declining the Order. If
the Partner does not confirm the Order, foodora can confirm
the Order automatically on behalf of the Partner after 60
seconds. If a Product is not available, the Partner must
immediately disable/mark the Product as unavailable directly
through the Technical Equipment, in app or otherwise notify
foodora by appropriate means, and decline the Order (unless
the Customer has accepted that the Order can be completed
without relevant unavailable Products or confirmed that this
may be changed to another Product).
3.4.2 For foodora Delivery Orders to be delivered by foodora’s
couriers, the Partner must, following receipt of an Order,
prepare and pack the Products for collection at the time stated
for the Order. The Partner shall ensure that the Products are
packed in a sufficient manner suitable for the means of
transport generally used by foodora’s couriers, or as
otherwise instructed by foodora from time to time. The
packaging must meet all applicable requirements for
packaging for the transport of foodstuffs. The packaging must
ensure that there is no risk of contamination or mixing of food,
drink or liquid during transport, and assume that transport
takes place by bicycle/car in containers where goods are not
physically separated from each other during transport save for
by the Partner’s packaging.
3.4.3 For Orders where the Customer has chosen to pick up the
Order directly from the Partner's place of business (Pick-Up),
the Partner must prepare and pack the Products for collection
by the Customer at the time specified for the Order.
3.4.4 If the Parties have agreed that the Partner shall deliver Orders
(“Marketplace Partners”) and an Order includes delivery, the
Partner shall prepare, pack, and deliver the Order directly to
the Customer at the time stated for the Order.
3.4.5 Use of delivery equipment branded by or with the trademarks
of any third party business is strictly prohibited for the delivery
of Orders, unless approved by foodora in writing.
3.4.6 The Partner is responsible to ensure that any delivery
equipment purchased or otherwise obtained from foodora
used by the Partner is maintained clean and kept in good
condition at all times.
3.5 Compliance and information provided to foodora and
Customers
3.5.1The Partner alone is responsible for ensuring that its business
is conducted in compliance with applicable laws, ordinances,
and other regulations in force from time to time, including
regulations and advisories issued by public agencies, as well
as self-implied requirements and self-control programs
(collectively “Applicable Regulations”). During the term of
the Agreement the Partner must at all times hold all permits,
licences and registrations (collectively “Permits”) applying to
its business, including any Permits necessary for foodora and
the Partner to offer, market, supply and/or deliver the
Products to Customers and is responsible for keeping foodora
informed at all times about Applicable Regulations governing
sale and delivery of its Products which may affect foodora. In
addition, during the term of the Agreement the Partner must
be registered for VAT. The Partner agrees that foodora may
at any given time contact relevant authorities to confirm that
the Partner complies with any Applicable Regulations and has
all necessary Permits for its business and for the sale of
Products on the Platform.
3.5.2 The Partner is responsible for ensuring that its Products, any
packaging used for Products, and the marketing of Products
meet Applicable Regulations. Hence, the Partner is
responsible to ensure (at all times) that: (i) its marketing of
Products is consistent with laws and regulations, and
generally accepted marketing practices; (ii) the Products meet
applicable product safety standards and are labelled and
packed in accordance with Applicable Regulations; (iii) the
Customer can be given all necessary information before an
Order is completed, including but not limited to necessary
information under current consumer protection regulations, by
way of foodora’s systems or implemented routines, or when
requested by the Customer directly; and (iv) all information
about the Products available on the Platform or otherwise
made available by the Partner to foodora or the Customer is
correct and compliant with Applicable Regulations, including
but not limited to information about nutrition, origin of meat,
and allergens in food in conjunction with the sale of food,
drink and other foodstuffs, as well as possible user manuals,
warranty information and instructions how to use the Products
(including advice on use of medicines in conjunction with the
sale of non-prescription medicines).
3.5.3 The Partner shall always provide foodora with updated and
accurate information about ingredients and allergens before
Products are marketed or sold through the Platform.
3.5.4 If a Partner refers or approves that foodora obtain information
about Products from an external database (“External
Database”) such as, e.g., Validoo, Anti-Allergen,
Tradesolution or GS1 as a source of information, the Partner
is responsible for ensuring that the information provided to
foodora from that External Database is true and correct.
3.5.5 The Partner shall provide foodora with correct and updated
information about the Partner's Products and Assortment and
is responsible for the accuracy of information concerning its
Products. The Partner shall inform foodora of any updates or
changes to the Products or Assortment, and if the information
displayed on the Platform differs from the information
provided by the Partner or otherwise is incorrect or dated, the
Partner shall notify foodora thereof immediately via the
Partner Portal, by e-mail to [email protected] or by
contacting foodora through its designated account manager.
foodora shall have no obligation to market any Products for
which information is missing or deficient.
3.5.6 Where applicable, the Partner is responsible for ensuring that
foodora has up to date contact details, including telephone
number, to its relevant place(s) of business to (where
applicable) display on the Platform for Customers to obtain
additional information in respect of the Partner’s Products
during times when these can be ordered via the Platform.
3.6 Specific obligations in relation to delivery of certain
Products
The Partner undertakes to inform foodora if specific
obligations exist in relation to foodora's delivery of certain
Products to Customers under the Applicable Regulations,
including but not limited to age restrictions (by law or as
applied by the Partner). foodora has no obligation to market or
sell such Products and is entitled to refuse delivery of a
Product if compliance with such obligation would entail
unreasonably burdensome or costly adaptations or in the
event of insufficient or unsatisfactory information as to
foodora’s obligations.
3.7 Complaints, returns and warranty claims
3.7.1The Partner undertakes to forward any feedback or
complaints from Customers and the Partner in relation to
Products, Orders or the use of the Platform to foodora without
delay.
3.7.2 The Partner is responsible for ensuring that the Products are
free of defects and otherwise in agreed condition, and that
each Product is delivered in accordance with the agreed and
accepted Order. The Partner shall accept any valid claims,
returns and/or refunds of faulty Products made by or on behalf
of foodora.
3.7.3 The Partner shall compensate foodora for any actual costs,
including applicable delivery costs, due to any faulty Products
provided by the Partner, and agrees that foodora may credit
issued invoice(s) in relation to self-billing in respect of such
costs and that these may be set off against future payments.
4 PRICES, CHARGES, INVOICING AND PAYMENT
4.1 Pricing
4.1.1The Partner shall provide recommended sale and comparison
prices (including statutory VAT) for its Products (referred to as
the “Recommended Price”).
4.1.2 foodora may object to offer any Product with a Recommended
Price which materially deviates from the price applied by the
Partner on websites, mobile apps or any other online
platforms operated by the Partner, in order to operate a viable
business, offering fair pricing and to prevent free-riding
effects.
4.1.3 Recommended Prices shall not be increased less than 30
days prior to any planned offers or campaigns which includes
promotional pricing for such Products. foodora reserves the
right to reject such changes and may revert the regular price
for any affected Products to the lowest non-promotional price
applied during such 30-day period.
4.1.4 foodora may set the price of the Products towards the
Customer at its own discretion and offer discounts in relation
to Products or Orders at the cost of foodora. Furthermore,
foodora may apply additional fees and minimum order value
(“MOV”) on Orders.
4.2 Charges and discounts
4.2.1foodora is entitled to charge the Partner for the following
charges, fees and discounts (collectively the “Charges”):
(a) Start-up fee covering onboarding and access to relevant
Technical Equipment and the Platform;
(b) Monthly fee covering i.a. (i) technical support, software
updates and troubleshooting for the Technical Equipment,
(ii) SIM card and telecommunication costs, as well as (iii)
the right to use the foodora partner portal including related
service improvements from time to time;
(c) Service fee applied as a discount to the total Purchase
Price in accordance with 4.3.2 below;
(d) Other charges and costs applicable from time to time as
agreed between the Partner and foodora (e.g., for sale of
goods, advertising and Marketing Products, licensing of
Product Photographs (as defined in 6.3.1 below), vouchers
or other offers made to Customers that are paid for by the
Partner); and
(e) Sanction fees as set out in 4.2.3 below, if, for example,
the Partner declines an Order that is not incorrect or
otherwise fails to perform its undertakings under the
Agreement in relation to ordering, quality or service
provided to a Customer.
4.2.2 foodora is not obliged to levy Charges pursuant to 4.2.1
above, and any failure or waiver on foodora's part to levy one
or more Charges from time to time does not constitute
forfeiture of the future right to levy such Charges (including
but not limited to sanction fees).
Sanction fees
4.2.3 In the event of repeated mistakes, deficient delivery, or
incorrect handling of Orders, foodora has the right to levy
penalty charges in the form of sanction fees in accordance
with the following:
(a) In the case of two (2) or more Orders during the Relevant
Period (as defined in clause 4.5.2 below) subject to the
following deficiencies or incorrect handling, a fee of NOK
50 per incorrect Order may be charged:
(i) incorrect Order (incl. wrong or faulty/defective
Products);
(ii) Product with short or expired best-before date;
(iii) missing Products of an Order; or
(iv) insufficient packaging.
(b) In the event of a delay of more than 15 minutes caused by
the Partner, a fee of NOK 50 may be charged for each
delayed Order.
(c) In case of two (2) or more declined Orders caused by the
Partner during the Relevant Period a fee of NOK 50 may
be charged.
foodora’s right to charge sanctions fees in accordance with
this clause 4.3.2 is in addition to any compensation foodora is
entitled to in respect of its costs in relation to actual costs for
delays, deficiencies and faulty Products as set out in 12.2
below.
4.2.4 In the event of the Partner’s breach of any licence for use of
Product Photographs according to clause 6.3 (Photographs of
the Products) below, foodora may require compensation from
the Partner of NOK 15,000. Upon such breach the Partner is
also responsible for economic damage or loss which foodora
suffers as a result of infringement of copyright or the assigned
licence.
4.2.5 Unless otherwise provided by the Agreement, all prices,
charges and amounts stated in the Agreement are exclusive
of VAT. Statutory VAT is added to all prices, charges and
amounts, when applicable.
4.3 Purchase Price
4.3.1The amount to be paid by foodora to the Partner for Products
and any delivery services provided by the Partner (the
“Purchase Price”) is calculated as a sum of the value (based
on the Recommended Price and taking into account
campaigns or other discounts applied at the cost of the
Partner and applicable container charges) for all correctly
delivered Products, any delivery services provided by the
Partner to foodora and, for Marketplace Partners, MOV,
during the Relevant Period after deducting the sum of any
refunds or compensation for faulty or missing Products,
returns or other adjustments to Orders during the Relevant
Period (the “Total Order Value”) excluding VAT less Service
Fee, as defined below.
4.3.2 The Service Fee is a discount in the percentage provided in
the Agreement, unless otherwise agreed with the Partner in
writing, calculated on the Total Order Value less container
charges and including VAT (the “Service Fee”). Promotions
or other price adjustments agreed between the Parties may
affect the amounts on which the Service Fee is calculated or
deducted from. However, any discounts, vouchers or deals
offered by foodora to the Customer are excluded when
calculating the Service Fee, unless otherwise agreed between
the Parties.
4.3.3 Statutory VAT charged on the Purchase Price and stated on
the self-billing invoice issued according to 4.4.1 below is fully
deductible for foodora.
4.4 Self-billing and invoicing
4.4.1The Partner authorises and approves that foodora issues
invoices on behalf of the Partner for sold goods and services
based on applicable Purchase Price (including statutory VAT)
during any given Relevant Period in accordance with The
Bookkeeping Regulation section 5-2-1 (3) e. (No. Forskrift om
bokføring (2004-12-01-1558)) as amended from time to time
(“self-billing invoice”). For the avoidance of doubt, any
container charges and rider tips pertaining to the Partner’s
sale to foodora during the relevant period are included in the
self-billing invoice.
4.4.2 foodora issues an invoice to the Partner for other agreed
Charges (including statutory VAT) and costs and amounts
which foodora is entitled to for the Relevant Period.
4.4.3 The Partner is deemed to have accepted any issued invoice
and/or self-billing invoice unless disputed by the Partner
within seven (7) days of receipt.
4.5 Payment
4.5.1Payment by foodora to the Partner is made up to four (4)
times a month to the bank account designated by the Partner
based on Orders placed during the following periods:
(a) from the 1st to and including the 7th day of the month;
(b) from the 8th to and including the 14th day of the month;
(c) from the 15th to and including the 21st day of the month;
and
(d) from the 22nd to and including the last day of the month.
4.5.2 Each period referred to under 4.5.1 is separately referred to
as the “Relevant Period”. In addition, foodora will pay out
compensation for each calendar month for missing orders
and/or reduce payments for adjusted orders, when applicable.
4.5.3 foodora pays out the self-invoiced amounts set out in 4.4.1
above after deductions for invoiced amounts set out in 4.4.2
and other debts that the Partner has to foodora, as reflected
in the invoices issued by foodora in accordance with clause
4.4 (Self-billing and invoicing) above no later than four (4)
banking days from the end of the Relevant Period.
4.5.4 If no remuneration is payable by foodora to the Partner for the
Relevant Period, foodora is entitled to invoice the Partner for
agreed Charges accrued during the Relevant Period for the
Partner's payment within 20 days after receipt of the invoice.
4.5.5 If the Partner is late in making payment, late payment interest
may be charged in accordance with The Norwegian Act
relating to Interest on Overdue Payments (No. Lov om renter
ved forsinket betaling m.m. (1976-12-17-100). In addition, a
reminder fee of NOK 25 may be applied for any reminders.
foodora is entitled to set off any due and unpaid amounts
invoiced against upcoming or future payments.
5 CONFIDENTIALITY
5.1The Parties undertake, without limitation in time, to not
disclose any information received by one Party from the other
to a third party, save for as set out in 5.2 below. The duty of
confidentiality includes that the Partner undertakes not to
share any information of the contents of the Agreement and
any further information received by foodora in respect of
foodora or its systems or services, or in respect of any third
party (including but not limited to other partners of foodora).
5.2 The duty of confidentiality does not include:
(a) information that at the time of disclosure is generally known
or has become generally known in a manner other than by
breach of the Agreement;
(b) information provided by either Party on non-confidential
basis;
(c) information that either Party is obliged to disclose, make
public, remit, retain or maintain by law or by order of a
regulatory or state agency (as interpreted by the receiving
Partner based on guidance available at the relevant time)
or by rules of any listing authority or stock exchange to
which the receiving Party is subject;
(d) information shared with any supplier or other partner of
foodora on an aggregated level in respect of sales on the
Platform;
(e) information in respect of a Brand Partner shared by
foodora with the relevant master franchise or franchisee,
group company or ultimate owner of such Brand Partner
(including but not limited to licensees of concepts or
similar) under and in accordance with any framework
agreement or arrangement covering this Agreement and/or
Orders or use of the Platform;
(f) information shared with foodora’s relevant cooperation
partners in respect of concepts owned and/or coordinated
by foodora or its affiliates; or
(g) aggregated information shared with other third parties in
respect of general marketing, sales or other activity on the
Platform; or
(h) information whose disclosure either Party has approved in
writing in advance.
5.3 For Brand Partners, information sharing may also include
access to the Partner Portal, subject to foodora or the relevant
master franchise, franchisee, owner or group company giving
the Partner notice thereof.
6 INTELLECTUAL PROPERTY RIGHTS AND MARKETING
6.1 Rights
6.1.1foodora or its licensors holds all rights, including intellectual
property rights, to the Platform and the Technical Equipment
and the software included therein. The same applies to
information developed by foodora on the Platform.
6.1.2 The Agreement shall not be construed to imply a transfer or
assignment of ownership, title, copyright or other intellectual
property rights to the Partner. The Partner may not use, copy,
modify or otherwise handle any intellectual property rights
belonging to foodora, nor transfer, assign or grant a third party
any rights to such intellectual property rights, except as
permitted in writing by foodora.
6.1.3 foodora is entitled to use texts, logotypes, images and other
material as directed by and/or made available by or on behalf
of the Partner for publication on the Platform or other
marketing purposes. Title to any material made available by
or on behalf of the Partner shall remain with the Partner. The
Partner is responsible for ensuring that its material, including
any trademark, name or brand used by the Partner, does not
infringe the rights of any third party (including but not limited
to any other contracting party to the Partner) or contravene
current legislation and shall indemnify and hold foodora
harmless of any costs or claims, including legal fees, resulting
from infringement of any intellectual property rights of a third
party or due to breach or non-compliance with current
legislation. In the event of any claims or allegations being
made to foodora in respect of the use of any trademark, name
or brand, foodora has the right to cease from using and
marketing such trademark, name or brand by, including but
not limited to, immediately suspending the relevant Partner(s)
or Product(s) from the Platform and/or take any other
reasonable action to mitigate such claims and giving the
Partner notice thereof as and if legally permissible.
6.2 Franchise and other Brand Partners
For any Partners operating under a specific franchise or
brand, the Partner is responsible to ensure that it, at all times,
has all the rights necessary to operate under such franchise
and/or brand and use the relevant trademarks and/or other
intellectual or other property for its business The Partner shall
ensure that such rights extend to marketing and sales on the
Platform and related marketing of the Platform and shall bear
any costs in connection therewith.
6.3 Photographs of the Products
6.3.1Where applicable, the Partner is to use its best efforts to
ensure that foodora, or a contractor engaged by foodora, is
given the opportunity to photograph the Products (the
“Product Photographs”). foodora is entitled to use the
Product Photographs for marketing purposes on the Platform
or otherwise for marketing under the Agreement. Copyright
and title to the Product Photographs shall vest with foodora,
and the Partner’s right to use Product Photographs does not
entail any ownership or other rights for the Partner other than
that explicitly stated herein.
6.3.2 In agreement with foodora, the Partner may obtain, in line with
that stated herein, a limited revocable, non-transferable and
non-exclusive licence (the “Licence”) to use the Product
Photographs on its own areas, including its own website,
other marketing material, such as flyers, analogue and digital
campaigns etc., in order to demonstrate what the Products
look like. By such use of the Product Photographs, the
Partner is obliged to credit foodora and the photographer of
the relevant Product Photographs. For the avoidance of
doubt, the Partner has no right to use Product Photographs
for marketing or sales through third parties.
6.3.3 In agreement with the Partner, foodora may charge the
Partner a fee for the Licence. foodora will invoice the Partner
the licence fee and may deduct such fees from amounts
payable by foodora.
6.3.4 Upon termination of the Agreement between foodora and the
Partner, the Licence will lapse with immediate effect, the
Partner must immediately cease using the Product
Photographs..
6.4 Marketing of the Platform
6.4.1In marketing the Platform, foodora is entitled but not obliged
to use the Partner's name and trademarks in various
marketing channels.
6.4.2 The Partner shall continuously market the Platform in and
outside its place(s) of business using stickers or other
marketing materials supplied by foodora. The Partner shall
also market the Platform in its own marketing materials in
consultation with foodora.
6.4.3 All marketing materials and signage produced by the Partner
in respect of foodora and/or the Platform, including but not
limited to images, texts, banners, advertisements, signs,
newspaper articles, advertising films, etc., whether in physical
or digital form, shall be approved by foodora prior to display of
the material. Such approval does not relieve the Partner from
its obligation to comply with all laws and regulations
applicable from time to time, including but not limited to
marketing, advertisement and copyright legislative framework
and the Partner undertakes to indemnify and hold foodora
harmless of any costs or claims, including legal fees, resulting
from infringement of any intellectual property rights of a third
party or due to breach or non-compliance with current
legislation.
6.4.4 foodora may at any time, at its sole discretion, demand that
the Partner cease the marketing of the Platform and any
eventual use of the foodora trademarks, whereupon the
Partner shall immediately end such use and return all
material, including but not limited to stickers and other
marketing materials, to foodora.
6.5 Marketing Products
6.5.1Marketing Products can be ordered by the Partner directly
through foodora or in the Partner Portal based on availability
and may be subject to separate terms.
6.5.2 The Partner is responsible for all orders of Marketing Products
made on or behalf of the Partner through the Partner Portal,
and is further responsible to ensure that only authorised
persons have access to the Partner Portal.
6.5.3 foodora will invoice the Partner the fees for any ordered
Marketing Products in accordance with 4.4 (Self-billing and
invoicing) and 4.5 (Payment) above, and may be deducted
from amounts payable by foodora.
6.5.4 Changes or cancellations of Marketing Products shall be
communicated by way of three (3) days’ prior written notice.
foodora further reserves the right to withdraw, suspend or
terminate the Partner’s right to use a Marketing Product with
immediate effect due to legal or technical limitations or
requirements. Upon cancellation by foodora of any Marketing
Products ordered and paid for by the Partner, foodora shall
compensate the Partner pro rata in respect of paid fees for
any cancelled Period (as and if applicable).
7 PERSONAL DATA
7.1In addition to the information presented on the Platform, the
Customer may be informed of the Partner's name, address,
VAT registration number and contact details on receipts, order
confirmation or otherwise.
7.2 When the Partner uses the Platform, foodora gains access to
personal data belonging to the Partner's employees, and also
other data relating to the Partner and its use of the Platform,
such as order information and Assortment. foodora processes
personal data in accordance with its privacy policy from time
to time in force.
7.3 In performing the Agreement and in order to carry out Orders,
the Partner gains access to personal data belonging to
foodora customers, e.g. the Customer’s name, telephone
number and address or other information provided by
Customers that are considered necessary to perform the
service of food delivery. The Partner is aware that it is
controller for its processing of personal data within the scope
of ordering and use of the Platform and the arrangement
under the Agreement and is responsible for acting in
accordance with the EU General Data Protection Regulation
2016/679 (GDPR), as well as other applicable data protection
legislation, and that the privacy policy on the Platform does
not permit the Partner to (a) carry out any processing for other
purposes than handling Orders; (b) use the Customer data for
marketing purposes; or (c) to contact the Customer directly or
indirectly other than for the purpose of fulfilling Orders.
foodora is controller for its own processing of personal data
within the scope of Orders, the use of the Platform and this
Agreement.
7.4 The Partner does not have access to any data of any other of
foodora’s Partners, not even in an aggregated form.
7.5 After termination of the Agreement, foodora processes
personal and other data provided by the Partner or generated
by the Partner's use of the Platform only at an aggregate
level.
7.6 In the event of a breach of any applicable data protection
legislation by the Partner or any employees, agents or
subcontractors of the Partner, the Partner hereby indemnifies
and shall hold harmless foodora against any claims made by
any authorities or third parties against foodora, including
attorney fees and the enforcement of this clause 7. The
Partner and foodora shall comply with article 33 of the GDPR.
7.7 The data shared pursuant to this clause 7 is subject to
confidentiality pursuant to clause 5 (Confidentiality).
8 TRANSFERS
8.1The Partner is not entitled to transfer or assign any of its
rights and/or obligations under the Agreement to another
party without foodora's written consent. If transfer or
assignment occurs without foodora's consent, foodora is
entitled to terminate the Agreement with immediate effect.
8.2 If the Partner's business is transferred to a third party (the
“Transferee”), the Partner must notify foodora no later than
two (2) weeks before the transfer whereby foodora may agree
to transfer the obligations, undertakings and rights under the
Agreement (including but not limited to right to payments) to
such Transferee. Such transfer may be subject to
administrative fees and the execution of a new Contract, and
conditional upon foodora conducting general searches in
respect of the Transferee as set out in 2.1.1 above. foodora
has no obligation to replace or enter into any agreement with
the Transferee and may terminate the agreement with
immediate effect upon transfer.
8.3 foodora is entitled, without the Partner's approval, to wholly or
partly transfer or assign the Agreement or any of its rights
and/or obligations under the Agreement to companies within
the foodora and Delivery Hero group or subcontract any
portion of its obligations under this Agreement to any third
party.
9 TERM OF THE AGREEMENT AND TERMINATION
9.1This Agreement is effective from the signing by all Parties of
the Contract and is valid until further notice subject to one (1)
month's notice of termination by either Party.
9.2 Notwithstanding the provisions of clause 9.1 above, foodora is
entitled to terminate the Agreement with immediate effect if:
(a) the Partner is in breach of its obligations under the
Agreement, for example by not complying with Applicable
Regulations, lacking necessary Permits for its business,
gives misleading or insufficient information about allergens
or ingredients, or having recurring deficiencies in ordering,
quality, delivery or service, and has not remedied this
within five (5) days of foodora notifying the partner of the
breach;
(b) the Partner has acted hostile towards foodora’s employees
or couriers;
(c) the Partner is declared bankrupt, enters into a composition/
voluntary arrangement, goes into liquidation or is otherwise
found to be insolvent
(d) foodora has reasonable grounds to suspect that the
Partner or its affiliates or representatives are or have been
engaged in illegal or criminal activities; or
(e) the Partner has transferred its business or relevant place(s)
of business.
foodora has the right to suspend Partners or Products from
the Platform while awaiting remedy by the Partner in
accordance with (a) above.
9.3 Notice of termination shall be given in writing (subject to that
neither Party shall be obliged to notify the other Party to the
extent legally restricted to do so).
9.4 Termination of the Agreement does not release either Party
from its obligation to pay debts incurred during the term of the
Agreement.
9.5 Start-up fee and any other charges and costs paid by the
Partner will not be refunded upon termination, transfer or
assignment of the Agreement.
9.6 The Parties may separately agree that the Partner shall not
be obliged to use the Platform during the notice period, and
foodora is not obliged to complete any onboarding process or
menu changes in relation to the Partner during the notice
period (subject to that the Partner shall have no obligation to
use the Platform if foodora chooses not to do so).
9.7 Following termination of the Agreement, the Partner must
without undue delay return any Technical Equipment
(including but not limited to any surf tablet and/or Wi-Fi
printer), and return (or, if expressly instructed by foodora,
destroy) all copies and images of the Product Photographs to
foodora.
If any Technical Equipment has not been returned within
seven (7) days from termination of the Agreement or upon
any replacement Technical Equipment being provided to the
Partner, foodora is entitled to charge the Partner NOK 2,000.
The sum will be invoiced and may be withheld and/or set off
against any remaining payment(s) pending receipt of the
Technical Equipment. Any charges made does not release
the Partner from its obligation to return the Technical
Equipment.
10 AMENDMENTS
10.1foodora is entitled to make amendments and/or supplements
to the Agreement and/or these Terms (including but not
limited to adjusting the Charges) by way of giving the Partner
no less than 15 days’ prior notice in accordance with clause
16 (Notices) below. If the Partner does not accept such
amendments and/or supplements, the Partner may terminate
the Agreement by way of notifying foodora thereof during the
notice period. foodora is not obliged to pay any compensation
due to termination.
10.2 Amendments and/or supplements which relates to changes in
laws and regulations or needed to address unforeseen and
imminent danger related to defending the use of the Platform
and arrangement under this Agreement, and/or consumers or
Partners from fraud, malware, spam, data breach or any other
cyber security risk, may be made with immediate effect.
10.3 If the Partner has not responded to the notification of
amendment and/or supplement communicated in accordance
with 10.1 above and/or submits Products and/or accepts
Orders during the notice periods referred to in clause 10.1
above the adjustment is deemed to have been accepted.
11 MISCELLANEOUS
11.1The Agreement constitutes the entire agreement between the
Parties relating to the subject matter of the Agreement.
11.2 If any provision of the Agreement or part thereof is found to be
invalid, this will not invalidate the whole Agreement. Instead,
to the extent the invalidity materially impacts a Party's gain or
performance under the Agreement, the Agreement is to be
reasonably adjusted.
11.3 foodora's failure to exercise any right or draw attention to any
situation under the Agreement does not imply that foodora
has waived its rights in that respect.
12 LIABILITY AND INDEMNIFICATION
12.1The Partner is responsible for the quality, nature and other
characteristics of the Products sold. The Partner is further
liable for any defects in the Product and/or harm which
foodora, any Customer and/or other third party incurs due to
Products sold via the Platform in accordance with this
Agreement and applicable product liability laws and
regulations.
12.2 In the event of complaints received by foodora concerning
food, drink, foodstuffs or other Products provided by the
Partner involving fresh produce (e.g. flowers), the Partner
agrees to compensate and/or reimburse foodora for any costs
incurred by foodora pursuant to any faults, deficiency or
defect in relation to the Products to the extent that the
deficiency or defect does not derive from foodora’s handling in
relation to any delivery services provided by foodora. Such
amounts may be deducted from any amount payable as
invoiced by foodora on behalf of the Partner in accordance
with clause 4.4 (Self-billing and invoicing) and 4.5 (Payment)
and does not limit foodora’s right to Charges (including
sanction fees) in relation to Orders. For Marketplace Orders,
where delivery is made by the Partner, or in the event of faulty
Products or Products which are damaged due to deficient or
faulty packaging, foodora reserves the right to compensate
the Customer at its own discretion and claim compensation
for such costs from the Partner in accordance with what is
otherwise set out in the Agreement.
12.3 The Partner shall defend and hold foodora harmless in
relation to all claims, damages, penalty charges, costs and
expenses (including reasonable expenses for engaging legal
counsel) that foodora incurs due to breach by the Partner of a
provision of the Agreement or current law or ordinance.
12.4 Except for breaches of clause 5 (Confidentiality), 9 (Personal
data) and the Partner's duty to indemnify foodora under
clause 12.3 above, each Party's liability under the Agreement
is limited to direct damage. Hence, the Parties are not liable
for indirect damage such as loss of trade profit, reduced
turnover/sales or loss of goodwill. foodora's total liability for
damages under the Agreement is not in any case to exceed
an amount equivalent to one “G-amount" (No. grunnbeløpet –
"G") under section 1-4 in the Norwegian Social Insurance Act
(Lov om folketrygd 1997-02-28-19 per calendar year. The
limitations of liability set out in this clause do not apply in
cases of criminal intent or gross negligence.
12.5 Any claims by the Partner against foodora must be made
within two (2) months from the harmful event.
13 FORCE MAJEURE
Neither of the Parties are to be obliged to perform their
respective undertakings in the Agreement if they are
prevented from doing so by a force majeure event, including
but not limited to epidemics, pandemics, industrial dispute,
strike, lockout, riot, insurrection, war, terrorist action, cyber-
attacks, fire, flood, embargo or by order of a public agency or
law or other circumstances beyond the Parties' control. If the
Parties' performance of their undertakings is delayed by more
than one (1) month as a result, either Party is entitled to
terminate the Agreement with immediate effect without
incurring any liability towards the other Party.
14 CONTRACTUAL LOYALTY
14.1The Parties undertake to act loyally towards each other in
order to maintain the credibility of the Parties in relation to the
public and each Party's customers, business partners and
other parties. Each Party must without delay notify the other
Party if there is a risk of detriment to such credibility.
14.2 The Partner is further expected to be loyal to foodora as a
contracting party and not take actions or make dispositions
that are disloyal and in conflict with foodora's interests.
foodora reserves the right to terminate the Agreement with
immediate effect if objectively acceptable grounds exist based
on disloyalty. Such disloyal acts may include, but is not limited
to: the Partner publicly referring to foodora in negative terms
instead of seeking to solve any differences directly with
foodora, the Partner using Orders or other Customer data
obtained from foodora for the purpose of marketing its own
online food ordering or delivery services or assisting third
parties to prepare or conduct marketing targeted against
foodora (including by providing flyers and/or contacting
Customers directly), or where foodora orders are given lower
priority or getting cancelled in favour of orders from third
parties or orders through competitors of foodora, or other
unfair or improper marketing in order to persuade customers
to use services that compete with foodora.
14.3 foodora reserves the right to suspend the Partner from the
Platform if there are grounds to suspect breach of the
contractual loyalty set out in this clause 14.
15 CONTACT
15.1The contact person specified by the Partner in the Contract
shall be the Partner’s representative in relation to all matters
and communications under this Agreement , unless otherwise
agreed in writing between the Parties. The Partner confirms
that such contact person has full authority to decide on
measures required for performance and completion of Orders
and information provided by or on behalf of the Partner on the
Platform. Any changes to the contact person shall be
communicated no later than one (1) week prior to such
change taking effect.
15.2 If the Partner has questions concerning foodora, the
Agreement, or the Platform, the Partner can contact foodora's
support function Partner Service, telephone number +47 23
96 33 42 or by e-mail at [email protected], or as otherwise
instructed by foodora.
16 NOTICES
Notices pursuant to the Agreement are to be delivered by
courier, registered letter or e-mail in accordance with clause
15 (Contact) above.
17 GOVERNING LAW AND DISPUTES
17.1The Agreement has been drawn up and is to be construed in
accordance with Norwegian law.
17.2 Any dispute between the Parties in connection with the
Agreement is to be finally settled by arbitration administered
by the Arbitration Institute of the Oslo Chamber of Commerce
(the “Institute”).
17.3 The Institute's Rules for Simplified Arbitrations are to apply
unless the Institute, in light of the difficulty of the case, the
value of the dispute and other circumstances, decides that the
Arbitration Rules of the Arbitration Institute of the Oslo
Chamber of Commerce are to apply instead. In that case, the
Institute is also to decide whether the arbitral tribunal is to
consist of one (1) or three (3) arbitrators. The arbitral
proceedings are to take place in Oslo and be held in the
Norwegian language.
17.4 Arbitral proceedings requested with reference to this
arbitration clause are subject to confidentiality. The
confidentiality extends to all information adduced during the
proceedings, as well as any ruling or award issued in
connection with the proceedings.
17.5 In all circumstances, foodora's clear and due claims for
compensation for non-payment may be collected by means of
an application for an order for payment to the authority
responsible for collecting claims or via a court of general
jurisdiction.
18 EFFECTIVE DATE
These Terms apply from and including 1 November 2023 and
supersede all earlier general terms and conditions applying to
agreements for the sale or marketing of products and services
from restaurants on foodora's Platform.