Cooperation Agreement on GrabFood Services (“Agreements“) is signed by and between;
- PT SOLUSI TRANSPORTASI INDONESIA, a limited liability company incorporated under the laws of the Republic of Indonesia domiciled in Lippo Kuningan Lt. 27, Jl. H. R. Rasuna Said Kav. B-12, Karet Kuningan, Setiabudi, South Jakarta 12920, Indonesia, in this matter represented by Liong Sauw Fei as the Board of Directors based on a power of attorney dated March 31, 2017 and thus legitimately acts for PT Solusi Transportasi Indonesia (hereinafter referred to as “Grab” , which expression, if determined by sentence, shall include substitutes and assigns);
- Calon Partner GrabFood / Restoran Anda
hereinafter referred to as “Merchant“, which phrase, if determined by sentence, shall include substitutes and assigns.
Grab and Merchant are collectively referred to as “Parties” and individually referred to as “Party“.
The Parties hereby states the following:
- Grab is a limited liability company duly established under the law of Republic of Indonesia which is the licensee of “Grab” application in Indonesia, i.e. a smartphone-based application to match (a) consumers’ demand and (b) supply of transportation service provided, e.g.: taxi, rental, or other means of transport services which is conducted by partnering company in compliance with its operational license, specifically for this Agreement is GrabFood service; and
- Merchant is engaged in culinary business and willing to collaborate with Grab
By using GrabFood services, the Merchant hereby agrees to be bound by the following terms and conditions:
1. DEFINITIONS AND INTERPRETATION
- In this Agreement, unless the context otherwise requires, the following expressions shall have the following meaning:
“Affiliate” means with respect to any entity, any other entity controlling, controlled by or under common control with such entity. For the purpose of this definition, “control” (including the terms “controlling”, “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract or otherwise;
“Agreement” means this Agreement and any schedules hereto as the same may be amended, varied, modified or supplemented by the parties by agreement in writing from time to time;
“Business Day” means a day where banks open for business in Indonesia;
“Confidential Information” means any information having been designated in writing to be confidential or proprietary or if given orally, is confirmed promptly in writing as having been disclosed as confidential or proprietary or otherwise by the Disclosing Party to the Recipient and, including any Personal Data as defined in this Agreement, all Subscriber information (including viewing patterns, viewing details, quantity, time or duration of usage of equipment or viewing of the content), details (including contact details, telephone numbers, network configuration, location information, billing name, billing amounts, credit history and other payment details), information of a commercial, technical or financial nature relating to this Agreement, the Disclosing Party or any of its Affiliates including all trade secrets, know-how, show-how, patents research, development or technical information, confidential and proprietary product or information, Intellectual Property Rights, business plans, operations or systems, financial and trading positions, details of customers, suppliers, debtors or creditors, information relating to the officers, directors or employees of the Disclosing Party or any of its Affiliates, marketing information, printed matter, rates and rate tables, contracts, all regardless of form, format or media whether machine readable or human readable, including written, oral or tangible form and also includes information communicated or obtained through meetings, documents, correspondence or inspection of tangible items;
“Driving Partner” means third party individual whose primary role is to bid for and complete Grab Food job assignments distributed via the Grab App;
“Data Processor” means in relation to Personal Data, any person, other than an employee of the Data User, who processes the Personal Data solely on behalf of the Data User, and does not process the Personal Data for any of his own purposes;
“Data User” means a person who either alone or jointly or in common with other persons processes any Personal Data or has control over or authorizes the processing of any Personal Data but does not include a Data Processor;
“Disclosing Party” means the party from whom the Confidential Information originates and is disclosed to the Recipient Party;
“Recipient Party” means the party who obtained the Confidential Information from the Disclosing Party;
“End User” means any person or entity that has made a request for food and beverage delivery service through Grab Food;
“Force Majeure” means any cause beyond a party’s reasonable control affecting the performance by the affected party of its obligations hereunder including, but not limited to, acts of God, riots or civil disorder, war or military operations, national or local emergency, acts or omissions of government, industrial disputes of any kind (not involving the affected party’s own employees), fire, flood, lightning, explosion, subsidence, inclement weather and acts or omissions of persons or bodies beyond the reasonable control of the said party;
“Intellectual Property Rights” means all intellectual property rights, including but not limited to rights to patents, rights in circuit layouts, trademarks, service marks, trade names, registered designs, copyrights, and other forms of intellectual property or industrial property, know-how, inventions, formulae, confidential or secret processes, trade secrets and confidential information, and any other protected rights and assets and any licences and permissions in connection therewith, in each case in any part of the world and whether or not registered or registrable and for the full period thereof, and all extensions and renewals thereof, and all applications for registration in connection with the foregoing;
“Grab App” means a mobile application that functions as an app based scheduling tool that matches an End User’s request for chauffeured vehicle services to a registered Driving Partner who is available to provide the service;
“GrabFood” means product of Grab App which enables the End User to use Driving Partner’s services to order food and beverage from the Merchant;
“Personnel” means all directors, officers, employees, agents and independent contractors thereof;
“Personal Data” means personal data having the meaning ascribed that are under the control of Data User and in respect of which Data Processor is or is required to provide services for the performance of this Agreement;
“OVO Cash” means electronic money issued and managed by PT Visionet Internasional that can be used by the Merchant in any transaction related to Grab Food services;
“OVO Payment Feature” means the online payment platform branded as “OVOPay” and all content and functions thereof, which allows for payments to be made electronically using various sources of funds stored as part of such platform;
“E-Money Wallet” means one of the sources of funds in the OVO Payment Feature, such funds being OVO Cash;
“Services” shall have the meaning given to it under Clause 4;
“Service Fee” shall have the meaning as sepcified in the Commercial Terms and Conditions;
“Term” means the period of this Agreement as specified in Clause 3;
“Third Party Claim” means commencement or threatened commencement of any action, suit, proceeding, claim, arbitration, investigation or litigation, whether civil or criminal, at Law or in equity, made or brought by a third party (non-government).
2. ENTIRE AGREEMENT
This Agreement contains the entire understanding between the Parties with respect to the subject matter hereof and supersedes all prior agreements or understandings, inducements or conditions, expressed, or implied, oral or written, except which stated in the attachment.
This Agreement is valid for 1 (one) year since the latest signing date of this Agreement. This agreement will automatically renew for a period of 1 (one) year and so on unless one Party notifies no later than 30 (thirty) days prior to the Term
4. SCOPE OF SERVICES
- Grab appoints Merchant as, and Merchant agrees to be appointed by Grab as Grab’s restaurant partner, whereby Grab is entitled to accept orders on behalf of the Merchant from End User through Grab App then the End User’s order will be delivered by the Driving Partner to the address designated by End Users. (“ Services”)
- The Services as provided under Clause 4.1 is limited to:
- referring End User to the Merchant;
- accepting orders and payments from End User; and
- passing the payment and order from the End User to the Merchant, taking into account the agreed compensation.
- Grab can make changes to the Service, or delay the implementation of Services, with a notice at least 30 (thirty) days before the change or delay Services, once changes are agreed by Grab and the merchant.
- Merchant hereby agrees to open and maintain E-money Wallet to facilitate any payment related to Grab Food services. For avoidance of doubt, in relation to the use of E-money Wallet, Merchant is subject to the terms and conditions of E-money Wallet of PT Visionet Internasional (as provided in https://www.ovo.id/tnc).
5. PERFORMANCE OF SERVICES
- Grab’s Rights and Obligations
- Grab shall present Merchant’s food and beverage on the Grab App, to the extent that it has been communicated to Grab.
- Whenever an order is received by Driving Partner, Driving Partner will communicate the order details to the Merchant for food and/or beverage preparation. Driving Partner will collect the prepared order as a take-away order. Driving Partner will then deliver the order to the End User and collect from the End User.
- In order to maintain its reputation for quality and high standard of service, Grab reserve the right to terminate the relationship with the Merchant if the Merchant repeatedly receives bad reviews, complaints of failure to fulfill delivery order.
- Receive Service Fee from Merchant from the food and/or beverage price on the Grab App.
- Use Merchant’s Intellectual Property Rights for marketing purposes on Grab’s owned media.
- Provide Help Centre service for Merchant.
- Ensure Grab Driving Partner to deliver food and/or beverage from Merchant to End User as what is shown in the Grab App.
- Ensure that Driving Partner will be responsible for the damage of food and/or beverage package that might occur during delivery.
- Issuing the invoice via email to be sent to Merchant with determined cycle.
- Merchant’s Rights and Obligations
- The Merchant shall provide Grab with all information necessary to present the Merchant’s offering. This includes the Merchant’s menu, logo, images, prices, and its company identity, which for small businesses includes the owner’s full name and legal address, and for corporations includes the company name, registered address, trade name, authorized signatory and tax identification number (NPWP). Relevant changes are to be communicated to Grab immediately. The Merchant is required to verify the information published by Grab and immediately point out any mistakes or inaccuracies. The Merchant shall immediately notify Grab should there be price changes.
- The Merchant guarantees that information published on Grab App relating to the Merchant’s offering satisfies all legal requirements, and in particular satisfies information requirements for End User protection. Grab is not required to publish the Merchant’s offering on Grab App before all relevant information has been received.The Merchant guarantees that the information provided by the Merchant does not violate any third party’s Intellectual Property Rights.
- The Merchant will process orders with all reasonable care and as soon as they are submitted by the End User. Orders have to be fulfilled within the pre-agreed delivery time. The Merchant is required to keep his advertised food and beverage available to the best of its ability.
- The Merchant shall notify Driving Partner in no later than 5 minutes if the Merchant is unable to fulfill an order, so that Driving Partner can notify the End User immediately.
- The Merchant agrees to adhere to the range of products and prices as provided to Grab and as described on the Grab App.
- The Merchant guarantees that the products offered are of high quality, storage, production and preparation comply with all relevant restaurant and food safety regulations. If any violations are found by the relevant authorities, the Merchant must notify Grab immediately.
- The Merchant guarantees that it possesses all licenses required by prevailing laws and regulations and that there are no ongoing criminal, bankruptcy or tax proceedings or other penalties outstanding in relation to its business operations.
- The Merchant guarantees to take great care to keep up-to-date its range of products, prices and associated terms and conditions.
- Pay Service Fee as mentioned on paragraph 6.1
6. SERVICE FEE
- For every order and delivery food and/or drinks via Grab App, both Parties agree that Merchant will pay Service Fee to Grab from the total price of food and/or beverage purchased by End User (hereinafter refer to as Service Fee).
- All Service Fee are inclusive or exclusive of 10% restaurant tax, to be billed on top of the agreed Service Fee, if necessary, depends on the Commercial Terms and Condition on a separate page.
- All Service Fee are exclusive of 2% withholding tax, to be withheld by the Merchant who in exchange will provide the tax payment slip upon request, if necessary.
- For avoidance of doubt, the Service Fee shall be payable upon issuance of invoice by Grab via email sent to Merchant from Grab with determined cycle.
- The Service Fee may be subject to value added tax (VAT) and the Parties agree that any applicable VAT in relation to the Service Fee shall be borne by the Merchant.
- The Service Fee shall be paid by the Merchant to Grab to the virtual account or bank account details as specified in the invoice.
- Merchant agreed to pay the penalties when Merchant failed to meet payment responsibility to Grab based on this agreement. does not make any payment within 14 days after issuance of the invoice. Furthermore, the penalty is a fine to be added to the total bill amount.The penalty provisions are:
- Over 14 days: 10% of total bill;
- More than 1 month: 20% of total accrued bill;
- More than 2 months: 30% of total accrued bill; and
- More than 3 months: Grab will deactivate and removedfrom Grab App.
- On all outstanding receivables and all penalties for the payment delay arising will remain the right for STI to charge the Merchant either directly or indirectly, until such sums can be proven fully paid by the Merchant through proof of payment to STI for the total value of the invoice
- In the event of any difference in order data between data owned by Merchant and Grab, the Parties hereby agree to use data owned and maintained by the Grab as a reference for calculating the Service Fee
7. OWNERSHIP AND RIGHTS
- Each Party warrants that it is the legal licensee of all Intellectual Property Rights used under this Agreement and free from any infringement or violation of third party ownership or intellectual property rights and no other party will claim to have the same ownership of such Intellectual Property Rights.
- All reports, specifications, other similar documents compiled or prepared in the course of this Agreement, including documents, materials produced in respect of the Services and any derivation of any Intellectual Property Rights granted by any Party, pursuant to Clause 7.1, shall be the absolute property of such Party throughout their preparation and at all times thereafter. For the avoidance of doubt, the Intellectual Property Rights subsisting in all reports, specifications and other similar documents set out in this clause shall at all times remain vested in the relevant Party.
- Each Party warrants that it will not use any other Party’s trademark for any marketing activities, including but not limited to promotional activities without prior written consent from the other Party and unless it is conducted based on this Agreement.
8. COSTS AND STAMP DUTY
- All costs incidental to the preparation and completion of this Agreement, including legal costs (if any) and the stamp duty shall be borne equally by the Parties, provided that such costs shall be agreed in advance by the Parties.
9. REPRESENTATIONS AND WARRANTIES
- Either Party warrants that each Party has entered into this Agreement in full reliance of the following representations and warranties:
- Each Party has the capacity and power to enter into and perform and comply with the each Parties obligation under this Agreement;
- this Agreement is a valid and binding obligation and enforceable against each Party in accordance with the terms hereof;
- Each Party’s execution of and/or performance of or compliance with its obligations under this Agreement do not and will not violate (i) any laws to which each Party is subject or (ii) any agreement to which each Party is a party or which is binding on each Party or each Party’s assets;
- Each Party is not in default of any agreement to which each Party is bound which may materially and adversely affect each Party financial condition or each Party ability to perform any obligations under this Agreement nor are there any actions, proceedings, claims, investigations, litigation or arbitration pending or threatened against each Party which may have a similar or analogous effect; and
- Each Party complies and owns all mandatory licenses under each Party applicable law in its applicable jurisdiction and each person who represents and binds each Party to this Agreement is authorized to represent and to bind each Party.
- Either Party warrants that the representations and warranties in Clause 9.1 shall continue to be true for so long as this Agreement subsists and the Service Fee remains outstanding and shall promptly notify each Party in the event any of the representations or warranties become untrue in any way or form.
- Either Party shall be entitled to terminate this Agreement at anytime in writing.
- The Parties agree that the termination of this Agreement will not eliminate any Party’s obligations which should be done under this Agreement which arises prior to the termination date of this Agreement.
- The Parties agree to waive the application of Article 1266 and 1267 of the Indonesian Civil Code to the extent that it is not required to seek any approval from the court in order to effectuate the termination of this Agreement.
- The Merchant agrees to defend, indemnify (and keep indemnified) and hold harmless Grab, its assets (application, etc) subsidiaries, Affiliates, agents, directors, officers, employees and/or assignees, harmless from and against any claims, damages, costs, judgments, losses or expenses (including reasonable attorneys’ fees), arising in relation to matters outside Grab’s control, including but not limited to the quality of food and beverage and services provided by the Merchant, as well as the restaurant’s safety or hygiene. The Merchant further indemnifies Grab from Third Party Claim resulting from any violation of laws and regulations by the Merchant.
- Notwithstanding any other provision herein, it is agreed that neither Party shall be liable to the other Party for any loss of profit, goodwill, business opportunity, and anticipated savings or for any indirect or consequential loss or damage suffered or flowing from either Party.
- Grab cannot guarantee that its Services will be free from any malfunctions, but will exercise all reasonable endeavour to resolve any such case.
- Each Party shall keep confidential and shall not disclose to any person or use directly or indirectly for its own or any other person’s benefit (other than for the due performance by it of its obligations under this Agreement), any Confidential Information disclosed, made available or otherwise provided to the Receiving Party by or on behalf of the Disclosing Party. This clause shall not apply to any Confidential Information which at the time it is disclosed, made available or otherwise provided by the Disclosing Party, is in the public domain and shall cease to apply to any information which subsequently becomes publicly available otherwise than as a consequence of any breach by the Receiving Party.
- The Receiving Party may disclose Confidential Information to:
- its directors and employees to the extent that their duties will require them to have access to such Confidential Information, provided that the Receiving Party shall instruct such directors and employees to treat such Confidential Information as confidential and not use such Confidential Information for any purpose other than the proper discharge by them of their duties; and
- its external auditors, lawyers and professional advisers, and the Receiving Party shall ensure that the persons to whom such disclosure is made are contractually bound by the provisions of this clause by the incorporation of corresponding provisions of confidentiality in their employment and other applicable contracts.
- These confidentiality obligations shall endure, even after the expiry or termination of this Agreement, with limit 3 (three) months after the expiry of this Agreement and/or until the Confidential Information enters the public domain.
13. PERSONAL DATA
Both Parties herewith shall comply with their respective obligations as the Data User and the Data Processor as required under all applicable laws and regulations in connection with any Personal Data in relation to this Agreement.
14. FORCE MAJEURE
- Both Parties are released from responsibility to all obligations and delay of work as consequence of Force Majeure. Force Majeure is defined as any extraordinary circumstances which is an unforeseeable, inevitable event and/or beyond reasonable control of the Parties including but not limited to epidemic, natural disaster, war, rebellion, aggression, sabotage, riot of mass, and existence of governmental regulations in monetary affairs which directly influence performance of this Agreement.
- If one of the Party has delayed or prevented from performing its obligations hereunder as a result of an event of Force Majeure, it shall promptly notify the other Party in writing as soon as possible after the occurrence of such an event of Force Majeure.
- If the Party, who is suffering, does not or neglects to notify the other Party hence all lost, risks and consequences which may arise shall be the burden and responsibility of the Party who suffered from such Force Majeure.
- If the event of Force Majeure persists for a period exceeding 60 (sixty days) calendar days and both Parties had negotiated in good faith and did not settle on a suitable resolution, then either Party shall be entitled to terminate this Agreement by written notice to the other Party hereto.
- The invalidity or unenforceability for any reason of any part of this Agreement shall not prejudice or affect the validity or enforceability of the remainder of this Agreement.
- If further lawful performance of this Agreement or any part of it shall be made impossible by the final judgment or final order of any court of competent jurisdiction, commission or government agency or similar authority having jurisdiction over either Party, the Parties shall forthwith use their reasonable endeavors to agree amendments to this Agreement so as to comply with such judgment or order.
- Grab reserves the right to modify or amend the general terms and conditions without the Merchant’s consent. However, Grab shall notify such changes through email and the Merchant has the chance to object within 2 weeks as of the receipt of such notification of changes.
- Any terms and conditions of the Merchant are not part of this Agreement unless Grab expressly agrees to adhere to them in writing.
Grab may assign all or any part of this Agreement or its rights, interest or obligations at any time to any of its Affiliates which can sufficiently execute the obligations under this Agreement.
- All notices, demands or other communications required or permitted to be given or made under this Agreement shall be in writing and delivered personally or sent by email, prepaid registered post or by fax as specified in the Commercial Terms and Conditions.
- If occurs any change to the address above, then the Party who change its address shall inform the other party at the latest 3 (three) business days prior to the effectiveness of such change.
- Any such notice, demand or communication shall be deemed to have been duly served:
- in case of a notice delivered by hand, on the day of actual delivery as evidenced by receipt;
- in case of a notice transmitted by facsimile, on the day of transmission as evidenced by receipt of transmission from the sender’s machine (transmission report) stating that the communication has been sent in full without error and received by the recipient;
- in case a notice sent by registered post, 3 days after posting;
provided that, any notice given in accordance with the above but received on a day which is not a business day or received after normal business hours at the place of the recipient shall be deemed to have been duly received on the next business day.
This Agreement has been prepared in English and bahasa Indonesia. In order to comply with Law No. 24 of 2009 regarding the National Flag, Language, Emblem and Anthem by the Government of Indonesia the governing and controlling language of this agreement, shall be the bahasa Indonesia, therefore in the event of any dispute, conflict and inconsistency between the Indonesian and English Language versions, the bahasa Indonesia version shall prevail and English Language version shall be amended accordingly to reflect the meaning of the bahasa Indonesia version.
20. GOVERNING LAW
- Any dispute arising out of, from the implementation or interpretation of this Agreement that cannot be amicably settled shall ultimately be settled in accordance to the rules and procedures (“Rules”) set by the Badan Arbitrase Nasional Indonesia (“BANI”) arbitrated by 3 arbitrators, appointed in accordance the Rules unless the Parties hereto agree to the appointment of a single arbitrator.
- The Parties agree to fully cooperate and shall share in the cost for the arbitration under BANI and all rulings by BANI shall be final and binding on the Parties.