Last updated on Aug 6, 2019
By using GrabFood services, the Merchant hereby agrees to be bound by the following terms and conditions set out by PT Solusi Transportasi Indonesia (“GRAB”):
1. DEFINITIONS AND INTERPRETATION
1.1. 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;
“Commercial Terms and Conditions” means the commercial terms and conditions agreed by the Merchant which is an inseparable part of this Agreement;
“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;
“Driver” means third party individual whose primary role is to bid for and complete GrabFood 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;
“End User” means any person or entity that has made a request for food and beverage delivery service through GrabFood;
“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 Driver who is available to provide the service;
“GrabFood” means product of Grab App which enables the End User to use Driver’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 GrabFood 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;
“OVO Merchant” means each merchant who has agreed to enter into a cooperation arrangement with PT Visionet Internasional (whether in writing, verbally or otherwise) to use the OVO Payment Feature as a means for payment for products or services offered or sold by such merchant.;
“Services” shall have the meaning given to it under Clause 4;
“Service Fee” shall have the meaning as specified in the Commercial Terms and Conditions;
“Term” means the period of this Agreement as specified in Clause 3.1;
“Territory” means Republic of Indonesia and its territorial waters; and
“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
2.1 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.
3.1 This Agreement shall take effect from the date of this Agreement and shall continue in force until terminated in writing by either Party.
4. SCOPE OF SERVICES
4.1 GRAB appoints Merchant, 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 GrabFood (“Services”).
4.2 The Services as provided under Clause 4.1 is limited to:
a. referring End User to the Merchant;
b. accepting orders and payments from End User, according to the method sets by GRAB; and
c. passing the payment and order from the End User to the Merchant according to the method sets by GRAB, taking into account the agreed Service Fee.
4.3 GRAB may carry out changes to Services, or suspend the Services, without notice.
4.4 Merchant hereby agrees to open and maintain OVO Merchant to facilitate any payment related to GrabFood services. For avoidance of doubt, in relation to the use of OVO Merchant, Merchant is subject to the terms and conditions of OVO Merchant of PT Visionet Internasional.
5. PERFORMANCE OF SERVICES
5.1 GRAB’s Obligations
a. GRAB shall present on the Grab App the range of food and beverage offered by the Merchant, to the extent that it has been communicated to GRAB.
b. Whenever an order is received by GRAB, GRAB will communicate the order details to the Merchant for food and/or beverage preparation. A Driver will collect the prepared order as a take-away order. Driver will then deliver the order to the End User and collect from the End User the total order amount and delivery charges (as applicable).
c. 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.
5.2 Merchant’s Obligations
a. 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. For avoidance of doubt, the Merchant’s menu, logo, images, prices, and its company identity may be published on Grab App and other media means (including but not limited to twitter, facebook and Google AdWords campaign).
b. 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.
c. The Merchant guarantees that the information provided by the Merchant does not violate any third party’s Intellectual Property Rights.
d. The Merchant will process orders with all reasonable care and as soon as they are submitted by the End User. The Merchant is required to keep its advertised food and beverage available to the best of its ability.
e. The Merchant guarantees that the product, food and/or beverages provided, prepared and sold to End Users, are in good quality and safe for consumption. In the event any food and/or beverages of Merchant are spoiled, or which results in food poisoning, allergies or other effect that will harm End User, Merchant will be personally responsible and/or legally liable for such incident, both material and immaterial, and release Grab from any claim related to such matter.
f. The Merchant shall notify GRAB in no later than 5 minutes if the Merchant is unable to fulfill an order, so that GRAB can notify the End User immediately.
g. The Merchant agrees to adhere to the range of products and prices as provided to GRAB and as described on the Grab App.
h. The Merchant guarantees that the products, food and/or beverages offered are of high quality and their 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.
i. 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.
j. The Merchant guarantees to take great care to keep up-to-date its range of products, prices and associated terms and conditions.
k. Pay the Service Fee to Grab in accordance to the method sets by GRAB;
l. Provide a reasonable penalty fee if such Service Fee is not paid according to the due date.
m. The Merchant acknowledge and agree that Driver may batch several orders for trip efficiencies (where applicable).
6. SERVICE FEE
6.1 In consideration to GRAB’s provision of Services under this Agreement, the Merchant shall pay GRAB the Service Fee. For avoidance of doubt, the Merchant is not allowed to charge any service charge (for dine in) to the End User.
7. OWNERSHIP AND RIGHTS
7.1 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.
7.2 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.
7.3 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
8.1 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
9.1 Either Party warrants that each Party has entered into this Agreement in full reliance of the following representations and warranties:
9.1.1Each Party has the capacity and power to enter into and perform and comply with the each Parties obligation under this Agreement;
9.1.2 this Agreement is a valid and binding obligation and enforceable against each Party in accordance with the terms hereof;
9.1.3 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;
9.1.4 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
9.1.5 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.
9.2 Either Party warrants that the representations and warranties in this Clause 9 shall continue to be true for so long as this Agreement subsists, and each Party will bear the risk respectively and legally be processed if in the event the representation and warranties stated herein are proven to be incorrect or untrue. All Service Fee remains outstanding and shall promptly notify each Party in the event any of the aforementioned representations or warranties is incorrect or become untrue in any way or form.
10. TERMINATIONAND SUSPENSION
10.1 Either Party may terminate this Agreement in the event of a material breach by the other Party of this Agreement if the breach is not cured within two (2) days’ notice thereof by the non-breaching Party.
10.2 Either Party may terminate this Agreement by giving to the other Party not less than thirty (30) days’ written notice prior to the effective date of the termination as specified in the notice.
10.3 At any time, GRAB may, upon giving written notice to Merchant, immediately terminate this Agreement or temporarily suspend the Services, if:
(a) GRAB suspects that there is any unlawful, illegal and/or fraudulent act committed by Merchant and/or its employees or agents;
(b) Merchant repeatedly receives bad reviews from End Users or complaints of failure to fulfil meals orders; or
(c) Merchant is in violation of any food safety or other regulations relating to Restaurants and/or meals.
10.4 At any time, either Party may, upon giving written notice to the other Party, immediately terminate this Agreement, if the other Party terminates or suspends its business, enters into bankruptcy or insolvency proceedings or other analogous proceedings, or becomes subject to any law, regulation or restriction which prevents such other Party performing its obligations under this Agreement.
10.5 The termination of this Agreement shall not relieve or limit each of the Parties from its obligations, responsibilities and liabilities accruing prior to such termination.
10.6 The Parties agree to waive the application of Article 1266 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.
11.1 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.
11.2 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.
11.3 GRAB cannot guarantee that its Services will be free from any malfunctions, but will exercise all reasonable endeavour to resolve any such case.
12.1 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.
12.2 The Receiving Party may disclose Confidential Information to:
12.2.1 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
12.2.2 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.
12.3 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
13.1 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
14.1 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.
14.2 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.
14.3 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.
14.4 If the event of Force Majeure persist 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.
15.1 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.
15.2 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.
16.1 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.
16.2 Any terms and conditions of the Merchant are not part of this Agreement unless GRAB expressly agrees to adhere to them in writing.
17.1 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.
18.1 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.
18.2 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.
18.3 Any such notice, demand or communication shall be deemed to have been duly served:
18.3.1 in case of a notice delivered by hand, on the day of actual delivery as evidenced by receipt;
18.3.2 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;
18.3.3 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.
19.1 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 & DISPUTE SETTLEMENT
20.1 This Agreement is governed and construed under the Indonesian laws.
20.2 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.
20.3 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.