PEPSA MERCHANT AND E-STORE AGREEMENT
EFFECTIVE FROM
22ND DECEMBER 2022.
PLEASE CAREFULLY READ THESE
TERMS AND CONDITIONS (“AGREEMENT”). IT CONSTITUTES A LEGAL AGREEMENT
BETWEEN YOU AND PEPSA TECH AND INVESTMENT LTD, ITS SUBSIDIARIES AND AFFILIATED
COMPANIES, (COLLECTIVELY, “PEPSA,” “WE,” “US,” OR “OUR”).
This
Agreement (“Agreement”) is made and entered into by and between you, the undersigned
Designate (“MERCHANT”), an independent merchant, sellers, stores, restaurants,
pharmacies, or other entity engaged in the business of selling or providing
services to customers as contemplated by this Agreement, and Pepsa Tech and
Investment Ltd. (“PEPSA” or “COMPANY”). MERCHANT may enter this Agreement
either as an individual or as a corporate entity. This Agreement will become
effective on the date it is accepted regardless of whether you are eligible to,
or ever do, perform any Sales activities.
1.
Definition and Scope
a. “Pepsa Tech and Investment Ltd” (also referred to as Pepsa) is the
company that provides an online marketplace platform using web-based technology
that connects (customers) with independent merchants (stores, restaurants,
grocery stores, supermarkets, and pharmacies) and delivery contractors using
web-based technology (“PEPSA platform” or “platform”). PEPSA’s software permits
registered users (customers) to order goods and services from various Merchants
to be delivered either by pickup,
merchant delivery and/or Pepsa Dispatch. In the case Pepsa Dispatch, our system
notifies independent contractors that a delivery opportunity is available and
the PEPSA software facilitates completion of the delivery. Our system also
enables users (customers and merchant) to facilitate other delivery tasks
opportunity to independent contractor through our platform. Pepsa is not a
merchant or delivery service agent.
b. “Pepsa Platform” is a web-based technology including
but not limited to Pepsa-marketplace, e-Store, and Pepsa-Dispatch. The
platforms is currently provided on the website www.pepsa.com.ng, but may be provided on different
websites, software, and/or applications.
c.
“Pepsa-Marketplace” means Pepsa’s copyrighted online
platform where Customers can view and search for the product or menu of Merchants
and/or place an order via the Pepsa website or mobile application for customer-pick-up,
merchant delivery, or by a Shopper (Dispatch contractor) to the Customer.
d.
“e-Store” is an online platform through
which Merchants may and regularly should review and confirm its transactions, fees,
and account on the Pepsa Platform.
e.
“Pepsa-Dispatch and API” means the delivery service
application programming interface (API) that allows Users (Customers and/or Merchant)
to communicate information with independent dispatch contractors.
f.
“Customer” means the buyer who places an order for Merchant Products
through the Pepsa-Marketplace Platform.
g.
“Merchant” means the sellers, stores,
restaurants, pharmacies, or other entity that has agreed on the Pepsa platform.
h.
“Independent Contractor” means independent service
providers including but not limited to “Logistic Vendor” and/or “Dispatcher”
who engages in the monitoring and delivery activities from pickup address to
delivery address.
i.
“Logistic Vendor” means the
individual or business that engages in the activity of onboarding, monitoring
and supervising the activity of Dispatcher.
j.
“Dispatcher” means individual rider, drivers
etc. registered by a Logistic Vendor to accept, pick item from a location and
deliver another location on behalf Logistic Vendor.
k.
“Store Address” means the store location operated by Merchant on the Pepsa-Marketplace
platform includes but is not limited to: (i) Merchant Stores owned and operated
by Merchant or its affiliates, and/or (ii) Merchant Stores owned and operated
by Franchisees of Merchant or its affiliates.
l.
“Pepsa Services” means the services offered through the Pepsa Platforms.
m.
“Merchant Products” includes all products offered for
purchase and/or delivery, including Merchant’s brand or retailed either
provided by Merchant or adopted from Pepsa database.
n.
“Contactors’ Service” includes, but is not limited to
monitoring, order pickup, delivery, or/and shopping by contractors through the
Pepsa platform.
o.
“Customer Pickup” means pickup of orders for
Merchant Products through the Pepsa platform from merchant store address by
customer or customer’s representative.
p.
“Pepsa Dispatch Order” means order placed by a customer or
merchant for delivery fulfillment through the Pepsa platform.
q.
“Merchant delivery” means delivery of orders for
Merchant Products through the Pepsa platform to the Customer.
r.
“Pepsa Data” shall mean any information generated, provided, or made
accessible to Merchant through any of the Pepsa platforms, including without
limitation Personal Information.
s.
“Marketplace Order” means orders for Merchant Products
through the Pepsa Platform from Customers for delivery or pickup.
t.
“Order” means a Marketplace Order, a
Pickup Order, delivered by Merchant or a Dispatch Order, as applicable.
u.
“Order Program” means Customers can view and search for the products,
items or menus of Merchants and place an order for Merchant Products via the
Pepsa platform.
v.
“Order Equipment” means and includes any equipment
reasonably required by Pepsa Platform for Merchant to receive and process
Orders, including, without limitation to a mobile phone, tablet, desktop
computer, laptop, Bar/QRcode scanner, internet facility, or other automated
electronic means of receiving Orders.
w.
“Dispatch Term” means the term of the agreement
between Pepsa, customer, and Merchant for dispatch service.
x.
“Marketplace Term” means the term of the agreement
between Pepsa and Merchant for the Pepsa Platform.
y.
“Commission Rate” means the commission fees collected
by Pepsa in exchange for merchant delivery charge, promoting and featuring the
Merchant and Merchant Store(s) on the Pepsa Platform, which is charged as a
percentage of revenues transacted on the Pepsa Platform calculated on a pre-tax
basis.
z.
“Personal Information” shall mean any information
exchanged under this Agreement that (i) identifies or can be used to identify
an individual (including without limitation, names, telephone numbers,
addresses, signatures, email addresses, or other unique identifiers); or (ii)
that can reasonably be used to authenticate an individual (including without
limitation, name, contact information, precise location information, access
credentials, persistent identifiers and any information that may be considered
‘personal data or ‘personal information under applicable law).
aa.
“Schedule Order”
shall mean an Order to be fulfilled at a particular time later in the same day
or at a later date.
bb.
“Terms”
means the provisions herein.
cc.
“Third Party Platform”
means a technology interface, such as a middleware technology platform that supports
and enables Customers to request Merchant products and You to request
Contractor’s Service, delivery fulfillment, purchase of VTU-services,
payment-services and provide information necessary to enable such delivery
fulfillment.
2.
The Parties' Relationship
i.
Pepsa is not a
merchant, store owner, brand owner, the seller of goods, or delivery service;
it is an online connection platform. The service provided by Pepsa is limited
to referring customers to the merchant and accepting orders, payments on their
behalf, and networking delivery agents.
ii.
In addition, it is
Pepsa's discretion to provide the merchant with analytics about the performance
of the merchant’s products and additional marketing support. This support may
be reflective of the agreed level of commission.
iii.
Merchant and Pepsa
agree they are independent businesses whose relationship is governed by these
Terms, and any applicable terms between the Parties. Nothing in the
Parties' agreements, relationship, or transactions shall create or be construed
as creating any agency, partnership, fiduciary or joint venture relationship
between Pepsa and Merchant (or Merchant's employees, representatives, or
locations), Pepsa and Dispatcher, or Pepsa and Customers. Except as
expressly set in these Terms, and any applicable terms between the Parties,
each Party shall be responsible for its expenses, tax, profits, and losses.
iv.
Pepsa may carry out
changes to the website, application, or service, or suspend the service,
without notice. Pepsa shall hold the right to review, commission, or monetize
any part of the platform at any time and interval with or without notice.
v.
To maintain its
reputation for quality and high standard of service, Pepsa reserves the right
to terminate the relationship with the merchant if the merchant repeatedly
receives bad reviews or complaints, or fails to comply with our
recommendations.
vi.
The merchant authorizes
Pepsa to accept orders from customers on behalf of the merchant.
3.
The Parties' Responsibilities and Right
a. Pepsa’s Responsibilities and Rights: Pepsa will promptly:
i.
Provide the Pepsa Marketplace, e-store, and Pepsa Dispatch
API using web-based technology that connects Customers, Merchants, and
Dispatchers, as described in these Terms for Pepsa Platform.
ii.
May from time to time
enlist Merchant on the e-store and may grant Merchant the opportunity to
display and sell the Pepsa Marketplace platform.
iii.
Display Merchant’s logo; a listing of the Merchant Stores;
and Merchant Products on the Pepsa Platform;
iv.
Accept Marketplace Orders from Customers and forward the
order to the merchant through the Pepsa Marketplace.
v.
Forward each
marketplace order to Dispatcher when requested by Customers, so that Dispatcher
can pick up the applicable Merchant Product(s) from Merchant Store Address to
deliver to Customer.
vi.
Pay the Merchant in
accord with the Parties' agreements, deduct the applicable Commission Rate,
marketing fees (for identifiable orders), subscription fees, Activation
Fees, and any other fees (in each case, as may be adjusted by Pepsa as required
by any applicable statute, regulation, executive order, or another legal
requirement that is either temporary or permanent).
b.
Merchant’s Responsibilities and Rights: Merchant
will promptly:
i.
Provide Pepsa with all
the information necessary when listing Merchant Store, Merchant’s Product(s) on
Pepsa Marketplace. This should include but is not limited to, Merchant Store
name, address, time-of-opening, Merchant’s delivery price, a detailed title and
description of the product(s), bar/reference code, products sales price,
quantity-in-stock, product brand, picture, and other relevant details;
ii.
Monitor Merchant’s
product(s) and store information on the Pepsa Platform, promptly make updates
via the e-Store Portal to reflect the most up-to-date products, pricing, and
other information, or immediately notify Pepsa of any changes or errors in
writing;
iii.
Guarantees that the
information provided by him does not violate any third party's copyright;
iv.
Will never knowingly
deceive a potential customer by misrepresenting Merchant’s store or/and
Merchant’s product(s);
v.
Accept and confirm all
Marketplace Orders placed on Pepsa from Merchant’s stores;
vi.
Prepare the Merchant
Products for each Marketplace Order for pickup by the Customer or Dispatcher at
the designated time;
vii.
Process Marketplace
Orders in the order in which they are received;
viii.
Timely update of any
changes to the pricing, availability, description, or other characteristics of
the Merchant Products on e-Store portal;
ix.
Update its days and
hours of operation, and remain open for business on Pepsa the same days and
hours of operation as Merchant’s in-store business;
x.
Notify all Merchant
store staff members of the relationship with Pepsa immediately upon execution
of this Agreement;
xi.
On an ongoing basis,
review and confirm the transactions, fees on orders via the Merchant Portal,
and promptly communicate to Pepsa any inaccuracies;
xii.
Will only contact the
customers no more than is necessary for processing the transactions referred by
Pepsa. In particular, the merchant will not send any advertising email, call,
messages, or other commercial advertisements to the customer without prior
agreement from Pepsa or the expressed wish of the customer. When delivering
products sold via Pepsa, the merchant will not advertise any of Pepsa's
competitors.
xiii.
Will process orders and
arrange delivery (only where Merchant’s delivery applies) with all reasonable
care the moment receipt of confirmation of sale is received through the e-Store
portal. The delivery options and time selected by the Customer are binding,
orders should be fulfilled within the timeframe provided.
xiv.
Repeated stock-outs and
order cancellations will result in the removal of the merchant and all their
products from the Pepsa Marketplace platform.
xv.
If the merchant cannot
fulfill an order submitted to him, the Merchant must notify the Customer as
soon as possible, and within 1 hour of receiving the order at the latest.
xvi.
Guarantees that there
are no ongoing criminal, bankruptcy or tax proceedings, or other penalties
outstanding about the products they are selling through the platform.
xvii.
Guarantees to take
great care to keep up-to-date his range of products, stock count, prices, and
associated terms and conditions, like delivery fees.
xviii.
Merchant agrees that Merchant
holds title to the goods or products that Merchant provides through the
Platform until the goods are picked up from Merchant, and that title passes
from the Merchant to the Customer upon pickup at the Merchant’s location.
Merchant agrees that neither the Pepsa nor Dispatcher holds title to or
acquires an ownership interest in any goods or products that Merchant prepares
or provides through the Platform.
xix.
Notify Customers of the
cart, ready, dispatched fulfilled, and cancelled order(s);
xx.
In the case of Merchant
delivery, the Merchant shall notify the Customer before sharing telephone
numbers and other personal contact information with delivery personnel, any
courier agent or individual, request the Customer’s consent to receive delivery
status updates by e-mail, text messages, and telephone calls from Dispatchers
or another delivery contractor.
xxi.
The merchant
representative will provide the Customer and Pepsa with a copy of his/her valid
Identity Card at the contract signature.
xxii.
Mediation between
Merchant and Customer will be from time to time the sole right and
responsibility of Pepsa. Merchant shall be binding by the reasonable discretion
of Pepsa in matters relating but not limited to customer services, sales,
delivery, quality of the product(S) displayed or sold, cost of products or
services, payment, return and refund.
4.
Commission
i.
The Merchant agrees that Pepsa may add a pre-fixed
percentage commission to the merchant’s provided product sales price before displaying
the price to customers. Depending on the sub-category, there will be different commission
percentages for certain items or product sub-categories.
ii.
The Merchant agrees to pay Pepsa the fixed percentage
commission on any sales and the fixed commission on delivery made through the
Pepsa platform.
iii.
Pepsa may start charging additional fees for store lists,
store-type, and the sale of goods through the Pepsa platform at any point.
These may include but are not limited to, listing fees, multiple branch locations,
locational store-type, multiple photos fees, and enhanced marketing fees.
iv.
Pepsa reserves the right to adjust the percentage
commission, providing suitable notice is served in advance to the merchant. Pepsa
will give the merchant adequate notice of any commission changes, in writing.
This does not cover adjustments that constitute a material change of the
contract terms, which may require an additional agreement on the change.
5.
Order Equipment
Concerning
the Pepsa Platform, the Merchant will install any equipment reasonably required
by Pepsa for Merchant to receive and process Orders (including, without
limitation, mobile phone, tablet, desktop computer, laptop, Bar/QRcode scanner,
internet facility, or other automated electronic means of receiving Orders)
(“Order Equipment”). If any Order Equipment is provided by Pepsa, Merchant will
pay Pepsa an Order Equipment Fee, as outlined in the Sign-Up Sheet, in exchange
for the right to use the Order Equipment to access the Pepsa Platform to
receive, process, and accept Marketplace and fulfill Orders. Any Order
Equipment provided by Pepsa will remain Pepsa’s sole property and may be used
solely for purposes related to fulfilling Merchant’s responsibilities under
this Agreement. Merchant will inspect all hardware and shall notify Pepsa in
writing if any Order Equipment is missing or was damaged as soon as practicable
after discovering such damage. Pepsa may restrict or rescind Merchant’s right
to use the Pepsa Platform at any time by giving notice. Merchant will be
responsible for any damage to or loss of any Order Equipment provided by Pepsa
(including ordinary wear and tear).
6.
Customer online payment
Merchant grant Pepsa the right to collect
payment for relevant order and transaction fees in Pepsa's name on behalf of
the merchant, and pays it out to the merchant according to the invoicing
agreement. The merchant will keep receipts of Merchant Delivery to customers
for at least 15 months and make those available on request. In case of problems
that may cause the order to be withdrawn, or in case of a delivery failure, the
merchant must immediately notify Pepsa by email and/or phone so that the
payment may be canceled
7. Payment,
Process, Fees, and Taxes.
i.
Pepsa will deposit into
Merchant wallet payment for Merchant Product and Merchant Delivery fulfilled by
Merchant within 48 hours after delivery (except stated otherwise), subject to
change with no less than 10 days’ notice to Merchants by email or service
notification. Pepsa shall be entitled to deduct from such payments Pepsa’s
Commission Rate, marketing fees (for identifiable orders), Activation Fees,
subscription fees, and any other fees which Pepsa may notify you regarding with
at least 7 days advance written notice. If Merchant has opted for Pepsa to
provide Order Equipment, Pepsa will also deduct a weekly Order Equipment Fee,
as may be set forth outlined in Equipment term Sheet, in exchange for the
Merchant’s right to use the Order Equipment to access the Pepsa Platform to
receive, process, and accept Orders. Merchant agrees that Pepsa and/or its third-party
partners may charge the Customer fees, including but not limited to a Delivery
Fee, Service Fee, Surcharge Fee, and Small Order Fee where applicable in Pepsa's
sole discretion. Merchant shall be responsible for all taxes, duties, and other
governmental charges on the sale of Merchant Products and for remitting such
taxes, duties, and other governmental charges to the appropriate authorities. If
the Merchant raises the price for a Product(s) item, Pepsa shall not be
required to remit the higher price to the Merchant until 3 business days after
the Merchant first provides notice to Pepsa of such pricing change.
ii.
Payment processing
services for Merchants on the Pepsa Platform are provided through the
Pepsa-Wallet and/or by a third-party payment processor and are subject to related
agreements. By agreeing to these Terms, Merchant agrees to be bound by the Pepsa-Wallet
and Third-party service Agreement, as the same may be modified by parties from
time to time. As a condition of Pepsa enabling payment processing services
through a third-party payment processor, Merchant agrees to provide Pepsa
accurate and complete information about Merchant’s representative and its
business, and Merchant authorizes Pepsa to share it and transaction information
related to Merchant’s use of the payment processing services provided by the
third-party payment processor. Upon account creation, Merchant shall be solely
responsible for the accuracy and integrity of the information associated with
their account(s). Pepsa will not be responsible for making additional payments
to Merchants due to missing or inaccurate information.
(a) You can deposit the funds
into your Account with one of the payment methods made available by Pepsa. If
you deposit funds using a payment method (bank account, Pay later loan, credit
or debit card) that is not registered or issued in your name, and without
limiting our rights, we may
i.
suspend your Account and/or
ii.
request from you additional information and documentation we may deem
necessary to demonstrate that you are authorised to use the respective payment
method. Your Account may remain suspended until you provide and we verify the
information and/or documentation requested. Any bank account you register under
the Account, at Account registration or otherwise, must be operated by a Nigerian-licensed
bank and registered only in your name. In no way does this limit the other
remedies that may be available to us in the event that you did not have
permission and authorisation to use another person’s payment method or if any
of the Services require the deposit(s) to be made from the payment method that
is issued or registered in your name. Pepsa does not charge fees for deposits
made by bank transfers, credit or debit cards however, your payment provider’s
charges may apply. Any deposits that are subject to the bonus promotion offer
will be regulated by the bonus promotion rules and may not be available for
withdrawal.
(b) The Account is provided to
you solely to enable you to use the Services and pursuant to the Terms of Use
only. Your Account should not be used as a banking facility and will not
generate any interest. Deposits should only be made with a view to using the
funds to place orders or perform commerce base transactions. If you, for
whatever reason, appear to be depositing or withdrawing money without genuine order
or transactions, Pepsa reserves the right to suspend or restrict your Account
and to investigate the relevant activity. This may result in the Account being
terminated. In such circumstances, we reserve the right, in addition to
any other rights we have, to set off from your Account, without prior notice,
any bank charges we have incurred.
(c) Pepsa reserves the right to
change the payment methods we accept from time to time. Furthermore, in our
absolute discretion and without giving reason, we reserve the right to refuse
to accept any type of payment method presented to us irrespective of whether we
have previously accepted such payment method type from you or would usually
accept that payment type from any User.
(d) The User may withdraw the
available cash balance of the Account (this will include any transaction income
or bank deposit) by making a withdrawal request. The withdrawals can be made only
into the bank account registered with Pepsa.
(e) Pepsa reserves the right to
reject any withdrawal of funds if it appears to be linked with the transactions
predominantly performed with the purpose of allowing the transfer of money from
one payment method to another, including, without limitation un-used deposits
withdrawals and in the event the User cannot provide satisfactory evidence of
the payment method ownership.
(f) Pepsa may undertake any
verification checks at withdrawal as may be required by Pepsa or by third
parties (including, but not limited to, regulatory bodies). Pepsa may suspend
the availability of any withdrawal method and/or the withdrawal function
available under the Account until the completion of the verification checks
and/or suspend the Account and/or any of the Services availability. Upon withdrawal
request initiated by you, Pepsa may request you to send us a copy of your ID
(front/rear) and any or all of the following documents:
i.
In the case of credit card
transactions, a copy of the card used to make the payment, showing the last 4
digits only;
ii.
A copy of an official document
(bank statement, debit card statement etc.) no older than one calendar month,
showing your name, billing address, bank account number and Pepsa-related
transactions where applicable;
iii.
Any other document that may
be relevant in order to complete the check.
Your cooperation and compliance with our requests will speed up the
verification process.
(g)
The withdrawals are generally processed within 2 banking days, subject
to a verification process which may apply. Pepsa does not accept any liability
for any delays which may be due to the payment provider.
(h)
The User shall not attempt any charge-backs, reversals or otherwise
cancel any deposit previously made into the Account. If we incur any
charge-backs, reversals or other charges in respect of your Account, we reserve
the right to charge you for and/or set off from your Account balance the
relevant amounts incurred.
(i)
We reserve the right to withhold payment and to declare transaction, tips
or deposit void if we reasonably believe you have breached these Terms of Use,
including, without limitation, pursuant to the terms and conditions applicable
to any specific Services, you buy or sell items, or you were under the age of 16 when you
registered the Account, another person made deposits into or withdrawals from
your Account, we have not been able to verify your identity of any of the
statements you make in the course of the use of your Account or when requested
by Pepsa. If you owe any money to us or our partners for any reason, we have
the right to offset the amount owed against money in your Account (including in
any identified duplicate Account), as may be applicable, or money that you have
otherwise earned, before making any further payments to you or permitting you
to withdraw any funds from your Account
(j)
You are responsible for reporting your transaction income to the tax
and/or other authorities as may be applicable from time to time.
9.
Refunds and Re-Orders
Refunds and re-orders will be addressed
as follows:
a. Marketplace Order
Refunds
If
Pepsa, in its sole reasonable discretion, has to issue a refund, credit, or
re-order on a Customer’s Order, Merchant will prepare the products to the same
specifications as the original Order (in the case of a re-order) and bear the
full cost of that refund, credit or re-order, as applicable, unless the refund,
credit or re-order is due to the fault of the Pepsa or Dispatcher.
b. Dispatch Order Refunds
Merchant
acknowledges and agrees that Pepsa shall be responsible only for facilitating
the delivery of Merchant Product(s) to Customers. Merchant shall be solely
responsible for any customer complaints regarding Merchant Product(s),
including without limitation, complaints regarding the nature, quality,
content, number, or packaging of Merchant Product(s). Merchant agrees not to
refer any Customer complaints directly to Pepsa. Any complaints regarding the
timeliness or quality of a Dispatcher’s delivery service shall be reported by the
Merchant to Pepsa. If the completion of a Dispatch Order is more than 2 hours late
and due to the fault of Pepsa, Pepsa will reimburse Merchant for all or a
portion of the delivery cost of the applicable Dispatch Order. If Merchant
elects to refund a Customer for any reason, such an election shall not obligate
Pepsa to provide a corresponding reimbursement to Merchant. If a Merchant
Product has been visibly damaged with proof from Customer, Pepsa may reimburse
Merchant for all or a portion of the order subtotal. For this agreement,
“Merchant Product” is the actual grocery items, food or beverage item, and/or
other items captured in subcategories of the e-Store portal, not the packaging
that contains the Merchant Product. In no event shall Pepsa be obligated to
issue any refunds directly to Customers.
c. Customer
Pickup and Merchant Delivery Refunds
Pepsa shall be responsible for
customer support issues relating to the ordering of Merchant Products and
issues relating to the Customer’s Pepsa account. All other customer issues or
complaints will be Merchant’s sole responsibility. If Pepsa, in its sole
discretion, determines to issue a refund, credit, or re-order for a Customer’s
Order, Merchant will make available the same order according to specifications
as the original Customer Pickup or Merchant Delivery Order (in the case of a re-order)
and bear the full cost of that refund, credit or re-order.
10.
Merchant Content and Trademark; Photographs of Products
Items
i.
During the Marketplace
Term, Merchant grants Pepsa a royalty-free, non-exclusive, limited, revocable,
and non-transferable right and license to use and display the Merchant Content
in the provision of services to Merchant, including, where applicable, listing
Merchant as a merchant on the Pepsa Platform(s), referencing Merchant as a Pepsa
partner, promoting Pepsa’s products and services, and sharing Merchant Content
with third parties, including third-party services which enable Pepsa Customers
to access the Pepsa Platform (including its web pages) for Orders. As used
herein, “Merchant Content” includes, without limitation, Product, photographs
(either provided by Merchant or adopted data), business information and
Merchant Product descriptions (either provided by Merchant or adopted data),
trademarks, logos, Merchant name, location, URL, phone number, and other materials
provided by Merchant to Pepsa.
ii.
If photographs of
Merchant’s Product items are not available or if they do not meet Pepsa’s
requirements, as reasonably determined by Pepsa, then Merchant consents to Pepsa
(i) engaging a professional photographer to take photographs of Merchant’s products
items or other products, (ii) enhancing the quality of Merchant’s existing
photographs, (iii) using stock photographs of the menu item or other products,
or (iv) using photographs from Merchant’s website or social media channels, and
displaying such photographs on the Pepsa Platform as representations of
Merchant’s Product items; provided that Merchant may contact Pepsa support to
have such photographs removed from the Merchant’s store listing and, in such
event, Pepsa will comply promptly.
11.
Liability
i.
The merchant indemnifies Pepsa from all claims arising about
matters outside Pepsa's control, including but not limited to the quality of
goods and services provided by the Merchant. The merchant further indemnifies Pepsa
from third parties' claims resulting from any violation of laws and regulations
by the seller.
ii.
Pepsa cannot guarantee that its service will be free from
all malfunctions, but will exercise all reasonable care and skill to resolve
any such case.
iii.
VAT liability rests with the Merchant and Pepsa will not be
responsible for any VAT issues.
12.
Privacy
i.
Both parties are obliged to treat confidentially the content
of this agreement, as well as all other information and data they acquire in
connection with the partnership, and not use it for purposes outside the scope
of this contract or pass it on to third parties. This obligation is in force
for 1 year after the termination of the contract. Both parties are obliged to
follow privacy laws and handle accordingly all data related to customers,
suppliers, and business partners.
ii.
Merchant agrees not to access, collect, store, retain,
transfer, use, disclose, or otherwise process in any manner Pepsa Data,
including without limitation Personal Information, except as required to
perform under this Agreement. Merchant shall keep Pepsa Data secure from
unauthorized access and maintain the accuracy and integrity of Pepsa Data in
Merchant’s custody or control by using appropriate organizational, physical,
and technical safeguards. If Merchant becomes aware of any unauthorized access
to Pepsa Data, Merchant will immediately notify Pepsa, consult and cooperate
with investigations and potentially required notices, and provide any
information reasonably requested by Pepsa.
iii.
Merchant agrees to implement and use security procedures, protocol,
or access credentials as reasonably requested by Pepsa and will be responsible
for damages resulting from Merchant’s failure to comply. Merchant will not
allow any third party to use the Pepsa Platform and will be responsible for
damages resulting from sharing Merchant’s login credentials with unauthorized
third parties or otherwise permitting unauthorized access to Merchant’s
account. Merchants may not allow any third party to copy, modify, rent,
lease, sell, distribute, reverse engineer, or otherwise attempt to gain access
to the source code of the Pepsa Platform; damage, destroy or impede the
services provided through the Pepsa Platform; transmit injurious code; or
bypass or breach any security protection on the Pepsa Platform.
13.
License
i.
Pepsa has the right to freely maintain the merchant's
listing and its ranking on its various Platforms. Pepsa offers customers the
opportunity to give ratings and reviews of the merchant's goods and services on
the website, and has the right but not the obligation to publish these online
and make them visible to all customers.
ii.
Pepsa reserves the right to delete, rate and reviews your
account, products and activities. Pepsa may scan, transcribe, and publish
online the merchant's listings, logos, products, images and other materials
required. The merchant grants Pepsa a royalty-free, perpetual, unrestricted license
to use and distribute any materials provided by him, for advertising Pepsa's
service. In particular, this includes use in Google AdWords campaigns, domain
name registrations, and other online marketing and search engine optimization
measures.
14.
Terms and Termination
i.
This agreement is valid as soon as the merchant signs the
contract, or fulfills the order referred by Pepsa, and remains valid
indefinitely, until termination by either party. Termination can occur at any
time, with a period of notice of one month, in writing, by email, post, or fax.
The revenues generated during this notice period are still subject to the
partnership agreement. The right to immediate termination by either party for an
important cause remains unaffected.
ii.
The right to immediate termination, in particular, covers
the case where the merchant repeatedly receives negative ratings and reviews on
the website, and when these are not unjustified. Repeatedly providing
misleading information or withholding information required to present the
merchant's items is also grounds for immediate termination. Typos, mistakes,
and transmission errors are excluded from this, as long as they are not caused
with intent or by gross negligence.
15.
Modifications
i.
If a single clause in
this agreement is invalid, both parties will endeavor to replace the invalid
clause with a valid one that reproduces as closely as possible the intended
economic meaning of the invalid clause. The validity of the rest of the
agreement remains unaffected. This applies in particular if the agreement is
found to be incomplete.
ii.
Pepsa reserves the
right, at its sole discretion, to change, suspend, or discontinue the Platform
(including without limitation, the availability of any feature or content) at
any time. Pepsa may, at its sole discretion, remove Merchant Products or Stores
from the Pepsa Platform if Pepsa determines that such Merchant Product or
Merchant Store could subject Pepsa to undue regulatory risk, health, and safety
risk, or other liability. Pepsa may, at its sole discretion, remove any
Merchant virtual brand concept from the Pepsa Platform if Pepsa determines that
such virtual brand concept does not meet and maintain certain eligibility
requirements as communicated by Pepsa. Pepsa also may revise these Terms from
time to time. We will notify Merchants of material revisions via a service
notification or an email to the email address associated with your account. By
continuing to access or use the Services after those revisions become
effective, you agree to be bound by the revised Terms.
iii.
Any terms and
conditions of the merchant are not part of this agreement unless Pepsa
expressly agrees to adhere to them in writing.
a.
Scope of Arbitration
Agreement
i.
Any dispute,
controversy, or claim arising out relating to or in connection with this
contract, including the breach, termination, or validity thereof, or the
relationship between the parties and their personnel (collectively “Disputes”)
shall be finally resolved by binding arbitration, rather than in court, except
that you may assert claims in small claims court if your claims qualify, so long
as the matter remains in such court and advance only on an individual
(non-class, non-representative) basis; and
ii.
You or Pepsa may seek
injunctive relief in court for infringement or another misuse of intellectual
property rights (such as trademarks, trade dress, domain names, trade secrets,
copyrights, and patents). Pepsa and Merchant agree that, because both are
business entities that mutually benefit from streamlined and confidential
resolution, this Arbitration Agreement shall apply to all Disputes and shall be
binding upon and enforceable by not only the parties, but also their
affiliates, subsidiaries, and their respective owners, officers, directors,
managers, and employees. This Arbitration Agreement shall apply, without
limitation, to all claims that arose or were asserted before the Effective Date
of this Agreement. If you agree to arbitration with Pepsa, you are agreeing in
advance that you will not participate in or seek to recover monetary or other
relief in any such class, collective, and/or representative lawsuit. Instead,
by agreeing to arbitration, you may bring your claims against Pepsa in an
individual arbitration proceeding. If successful on such claims, you could be
awarded money or other relief by an arbitrator.
b. Informal
Resolution
You and Pepsa agree
that good-faith informal efforts to resolve disputes often can result in a
prompt, low-cost, and mutually beneficial outcome. You and Pepsa, therefore,
agree that, before either, you or Pepsa demands arbitration against the other,
we will personally meet and confer, via telephone or videoconference, in a
good-faith effort to resolve informally any claim covered by this Mutual
Arbitration Agreement. If you are represented by counsel, your counsel may
participate in the conference, but you shall also fully participate in the
conference. The party initiating the claim must give notice to the other party
in writing of its, his, or her intent to initiate an informal dispute
resolution conference, which shall occur within 60 days after the other party
receives such notice unless an extension is mutually agreed upon by the
parties. To notify Pepsa that you intend to initiate an informal dispute
resolution conference, email PartnerResolution@pepsa.com.ng, providing your name, the
telephone number associated with your Pepsa account (if any), and the email
address associated with your Pepsa account, and a description of your claim. In
the interval between the party receiving such notice and the informal dispute
resolution conference, the parties shall be free to attempt to resolve the
initiating party’s claims. Engaging in an informal dispute resolution
conference is a requirement that must be fulfilled before commencing
arbitration. The statute of limitations and any filing fee deadlines shall be
tolled while the parties engage in the informal dispute resolution process
required by this paragraph.
c. Arbitration
Rules and Forum
This Arbitration
Agreement is governed by the Federal Arbitration Act in all respects. If for
whatever reason the rules and procedures of the Federal Arbitration Act cannot
apply, the state law governing arbitration agreements in the state in which you
reside shall apply. Before a party may begin an arbitration proceeding, that
party must send notice of an intent to initiate arbitration and certify
completion of the informal dispute resolution conference under paragraph 15(b).
If this notice is being sent to Pepsa, it must be sent by email to the counsel
who represented Pepsa in the informal dispute resolution process, or if there
was no such counsel then by mail to General Counsel, at the address provides on
this agreement page. The parties agree that all of the arbitration proceedings,
including any discovery, hearings, and rulings, shall be confidential to the
fullest extent permitted by law. If at any time the arbitrator or
arbitration administrator fails to enforce the terms of this Arbitration
Agreement, either party may seek to enjoin the arbitration proceeding in court,
and the arbitration shall automatically stay pending the outcome of that
proceeding.
d.
Arbitration Appeal
If the arbitration
award includes any injunction or a monetary award that exceeds
0ne million naira (N1,000,000), then either party shall have the right to
appeal that award to an arbitration appellate panel. The notice of appeal
must be served, in writing, on the opposing party within fourteen (14) days
after the award has become final.
e.
Waiver of Jury Trial
You and Pepsa waive any
constitutional and statutory rights to sue in court and receive a judge or jury
trial. You and Pepsa are instead electing to have all Disputes resolved by
arbitration, except as specified in Section 15(a) above. There is no judge or
jury in arbitration, and court review of an arbitration award is limited.
17. CONTACT INFORMATION
Pepsa welcomes your
questions or comments regarding this Terms:
PEPSA TECH. AND INVEST MENT
LIMITED
Block E/3, Trade Fair
complex, Samonda, Sango,
Ibadan, Oyo State, Nigeria.
Support Email: Support@pepsa.com.ng
Telephone Number: +234 808 363 7436