Last updated: 16 September 2020
- ABOUT GOJEK
Gojek is a technology services company. Gojek operates the GoFoodplatform; it does not provide transportation services, nor act as a transportation carrier or provider, courier, postal services provider, delivery services provider, food and beverage supplier or operator, taxi or private hire operator, nor act as an agent for any such person or entity. Merchant acts as an independent, third party contractor carrying on business on its own account, not under the employment of any Gojek Group Company.
- DEFINITIONS AND INTERPRETATION
- 2.1 In this Agreement, terms not defined in the Standard Terms have the meaning set out in the Commercial Terms. The following terms have the following meanings:
- Additional Charges is defined in clause 7.3;
- Affiliate means, in relation to a party, any entity that controls, is under the control of, or is under common control with, that party, where control means the direct or indirect ownership of more than 50 per cent of the voting capital or similar right of ownership of that party or the legal power to direct or cause the direction of the general management and policies of that party, whether through the ownership of voting capital, by contract or otherwise, and controls and controlled shall be interpreted accordingly;
- Agreement means the Commercial Terms, Standard Terms and any schedules, annexes and appendices thereto, which constitute a binding agreement between Gojek and Merchant in relation to GoFood;
- Applicable Law means all applicable laws, by-laws, enactments, regulations, regulatory policies, ordinances, protocols, industry codes, road traffic codes, regulatory permits, regulatory licences or requirements of any court, tribunal or governmental, statutory, regulatory, judicial, administrative or supervisory authority or body, which are in force from time to time during the Term;
- Commercial Terms means commercial terms between Gojek and Merchant in relation to GoFood;
- Driver means the driver who collects F&B Items from Merchant on behalf of Users and delivers them to Users;
- F&B Items means the food and beverage items made available to Users for purchase from Merchant via GoFood;
- GoFood means the food delivery platform enabled via the System, which allows a User to order F&B Items, which will be sold by Merchant and delivered by a Driver in accordance with this Agreement;
- Group Companies means a person and its Affiliates (and Group Company will be construed accordingly);
- Intellectual Property Rights means: (a) copyright, patents, database rights and rights in trademarks, designs, know-how and confidential information (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world;
- Order means an order for Merchant’s F&B Items placed by a User via the User Application;
- Policies means any policies, guidelines or information applicable to Merchant, as notified to Merchant by Gojek from time to time (including via the System, the Website, the Policies, or to Your email address set out in Your Account), and as may be updated by Gojek from time to time;
- Promotional Materials means any marketing or promotional materials provided by or on behalf of Gojek to Merchant;
- Standard Terms means these Terms and Conditions for GoFood Merchants (Concierge);
- System means the system provided by Gojek and/or Gojek Group Companies to enable GoFood and related software, websites, platforms, payment services and other support systems and services, including the Websites;
- Total Order Value means the total amount paid or payable to Merchant for Orders (inclusive of VAT);
- User means a registered end user of the User Application;
- User Application means the electronic application supplied by Gojek and/or Gojek Group Companies to facilitate Users’ use of the System as Users;
- User Fees is defined in clause 7.2;
- Websites means any websites operated by Gojek Group Companies from time to time.
- 2.2 In this Agreement (except where the context otherwise requires): (a) a reference to “writing” does not include email unless otherwise specified; and (b) any phrase introduced by the terms “including”, “include”, “in particular”, “for example”, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms. This Agreement is drafted in the English language. If this Agreement is translated into another language, the English language text shall prevail. In the event of any inconsistency, the following order of precedence applies: (i) the Commercial Terms; (ii) the Standard Terms; then (iii) any other parts of this Agreement.
- GOJEK RESPONSIBILITIES
- 3.1 Subject to Merchant’s compliance with the terms of this Agreement, Gojek and/or its Affiliates will:
- 3.1.1 operate the System; and
- 3.1.2 keep a record of Orders via the System.
- MERCHANT RESPONSIBILITIES
Merchant commitments to Gojek
- 4.1 Merchant represents, warrants and undertakes on a continuing basis throughout the Term that Merchant:
- 4.1.1 has full power and authority to enter into this Agreement and perform its obligations under this Agreement;
- 4.1.2 has all required licences, approvals, authorities and consents to operate the Outlets, sell all applicable F&B Items, and otherwise operate its business as required by Applicable Law, and that each Outlet meets the applicable industry food safety and other applicable standards for an outlet of its kind;
- 4.1.3 will not engage in any fraudulent, misleading or deceptive conduct, and will comply at all times with all Applicable Laws and the Policies, and notify Gojek if it is in breach of any Applicable Laws or the Policies;
- 4.1.4 will only use the System for lawful purposes and only for the purposes for which it is intended to be used, and will not impair or circumvent the proper operation of the network on which the System operates; and
- 4.1.5 will promptly provide Gojek with any documents or information reasonably requested by Gojek in connection with this Agreement, and ensure any documents and information provided by Merchant (or on Merchant’s behalf) to Gojek are at all times accurate, current, complete and not misleading and do not violate any third party intellectual property rights.
- 4.2 Merchant agrees to:
- 4.2.1 provide information and updates on the Outlets and F&B Items sold by Merchant, and inform Gojek promptly (and in any event no later than two calendar days) of any changes to such information. Notwithstanding the foregoing, Merchant shall honour all Orders made by a User in reliance on any information provided by Merchant and displayed on the User Application;
- 4.2.2 verify on a regular basis the information displayed by Gojek about the Outlets and/or F&B Items sold by Merchant, including but not limited to, the opening and closing time of the Outlets, the lists of F&B items and a fee for each F&B Item and notify Gojek of any inaccuracies;
- 4.2.3 maintain and keep updated its own records of Orders;
- 4.2.4 ensure that all F&B Items sold by Merchant and delivered through a Driver are of high quality and hygiene, in an edible condition, appropriately packed taking into account the nature of the F&B Items, and comply with the description of the F&B Items provided by Merchant and displayed on the User Application;
- 4.2.5 process Orders with all reasonable care and as soon as they are received by Merchant, and ensure that Orders are fulfilled and ready for collection by the relevant Driver within one hour upon the confirmation of each Order; and
- 4.2.6 issue a receipt or purchase bill for each Order and provide a copy to the Driver upon pick-up.
Interactions with Drivers and Users
- 4.3 For the avoidance of doubt, Users purchase F&B Items directly from Merchant, and Driver collects F&B Items from Merchant on behalf of Users and delivers the F&B Items to Users.
- 4.4 To the maximum extent permitted by Applicable Law, Gojek is not responsible or liable for: (a) the acts or omissions of Drivers or Users (including non-payment by Drivers to Merchant, or by Users for F&B Items sold by Merchant); or (b) the quality or condition of the F&B Items.
- 4.5 Merchant agrees:
- 4.5.1 to treat Drivers and Users with respect, in compliance with the Policies, and not to engage in any unlawful, threatening or harassing behaviour or activities whilst using the System; and
- 4.5.2 not to cause any damage to third party property.
- 4.6 Although Merchant is solely responsible for its use of the System and provision of the F&B Items, Gojek has the right to deal with any complaints made by: (a) Drivers or Users about Merchant; or (b) Merchant about any Driver or User, through Gojek’s complaints handling process. Merchant agrees to cooperate fully with such process. Gojek also reserves the right, at its sole discretion, to redirect any complaints to Merchant and may choose to facilitate discussions with Drivers or Users. Merchant agrees to comply with Applicable Law, the terms of this Agreement and the Policies in Merchant’s handling of such complaints. Gojek’s complaints handling process shall not exclude any rights or remedies that cannot be excluded or limited under Applicable Law.
- 4.7 Gojek does not endorse any third party providers (including Drivers), applications or websites that are available or to which Merchant is connected through the System, and in no event shall Gojek, its licensors or Gojek Group Companies be responsible for any content, products, services or other materials on or available from such third party providers.
- MERCHANT’S USE OF THE SYSTEM
- 5.1 Subject to Merchant’s compliance with this Agreement, Gojek and its licensors grant Merchant a revocable, limited, non-exclusive, non-transferable, royalty-free licence during the Term and in the Territory, to access and use the System, for the sole purpose of Merchant exercising its rights and performing its obligations in accordance with this Agreement.
- 5.2 All rights not expressly granted to Merchant under this Agreement are reserved by Gojek and its licensors. Nothing in this Agreement transfers any ownership in or to the System (in whole or in part) to Merchant.
- 5.3 In using the System, Merchant shall not:
- 5.3.1 license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the System in any way;
- 5.3.2 modify or make derivative works based on the System, or reverse engineer or access the underlying software for any reason;
- 5.3.3 use the System to build a competitive product or service, build a product using similar ideas, features, functions or graphics as the System, copy any ideas, features, functions or graphics of the System, or launch an automated program or script which may make multiple server requests per second, or which unduly burdens or hinders the operation and/or performance of the System, or attempt to gain unauthorised access to the System or related systems or networks;
- 5.3.4 use any application or process to retrieve, index, “data mine”, or in any way reproduce or circumvent the navigational structure, presentation or content of the System;
- 5.3.5 post, distribute or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior consent of the owner of such proprietary rights, or remove any copyright, trademark or other proprietary rights notices contained in the System;
- 5.3.6 send or store any material for unlawful or fraudulent purposes;
- 5.3.7 send spam or other unsolicited messages;
- 5.3.8 send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material;
- 5.3.9 send material containing software viruses, worms, trojan horses or other harmful computer code, files, scripts, agents or programs;
- 5.3.10 interfere with or disrupt the integrity or performance of the System or the data contained therein;
- 5.3.11 impersonate any person or entity or otherwise misrepresent Merchant’s affiliation with a person or entity;
- 5.3.12 make or receive Orders other than via the System or which are fake;
- 5.3.13 cause nuisance, annoyance, inconvenience, harassment, personal injury or property damage, whether to Gojek (and its officers, directors, members, employees and agents), any User, or any other party; or
- 5.3.14 damage Gojek’s or any of its Group Companies’ reputation in any way.
- MERCHANT’S RELATIONSHIP WITH GOJEK
Merchant’s relationship with Gojek is that of an independent contractor. Merchant expressly agrees that no employment, joint venture, partnership, or agency relationship exists between Gojek and Merchant. Merchant has no authority to bind Gojek and Merchant undertakes not to hold itself out as an employee, agent, worker or representative of Gojek.
- FINANCIAL TERMS
- 7.1 Merchant agrees that Merchant has and will maintain a local currency account with a bank in the Territory.
User Fees and Additional Charges
- 7.2 Merchant is entitled to charge Users the following fees for each Order via the System, which may include:
- 7.2.1 a fee for each F&B Item sold via the System, which unless Gojek agrees otherwise, will be the Merchant’s then-current prices for the F&B Items as shown on Merchant’s menu and displayed on the User Application;
- 7.2.2 any applicable taxes calculated in accordance with Applicable Law; and
(together, the User Fees).
- 7.3 The System may allow Merchant to charge Users and/or other parties certain costs incurred during the completion of each Order (without mark-up), as notified to Merchant by Gojek from time to time (including via the Policies) (together, the Additional Charges). Gojek may update the basis on which any component of the Additional Charges is calculated, at any time in its absolute discretion. Any such update will be notified to Merchant. Any Additional Charges on or after the date on which the update takes effect shall be subject to the updated calculation.
- 7.4 Merchant acknowledges and agrees that Gojek may, to the extent permitted by Applicable Law, adjust or cancel the User Fees or Additional Charges (or part thereof), acting reasonably (for example, where Gojek determines that there is an error in the original calculation, that Merchant has not complied with this Agreement or the Policies, that a fee was charged when it should not have been (or vice versa), or in the case of a complaint from a User). For the avoidance of doubt, if Gojek provides a refund to a User in the case of a complaint from a User, Gojek may investigate the cause of the complaint and if it determines Merchant to be at fault, may invoice Merchant for the value of the refund.
- 7.5 Merchant will be paid the User Fees and any Additional Charges via the following payment methods:
- 7.5.1 the Driver will be required to pay the User Fees and Additional Charges payable to Merchant, and any other amounts payable by Users to Gojek in cash directly to Merchant when the Driver picks up the Order from Merchant on behalf of User. For this purpose, Merchant agrees to collect any amounts payable by Users to Gojek on behalf of Gojek, and that Gojek is entitled to set-off such amounts from any amounts payable by Gojek to Merchant; or
- 7.5.2 any other methods offered via the System from time to time.
- 7.6 In order to promote usage of the System, the parties may from time to time agree to offer promotions to Drivers and/or Users, which may affect the User Fees payable to Merchant. Merchant must provide the F&B Items at the promotional fees as agreed and displayed via the System.
Service and Other Fees
- 7.7 Gojek will receive a Service Fee as payment for Merchant’s use of the System. Service Fees shall be inclusive of VAT. Service Fees are non-refundable.
- 7.8 Gojek is entitled to invoice Merchant in respect of the Service Fees and any amounts collected by Merchant on behalf of Gojek in accordance with clause 7.5, in accordance with Gojek’s then current invoicing policies, and will also provide Merchant with a report of Orders, for the relevant invoicing period. In the event that Gojek invoices Merchant, Merchant must notify Gojek of any disputes in writing within eight (8) days from the date the report is provided to Merchant, failing which the corresponding invoice will be deemed undisputed and due.
- 7.9 Merchant will pay Gojek the Service Fees, and any amounts collected by Merchant on behalf of Gojek in accordance with clause 7.5, within the Service Fee Payment Term in accordance with the payment method set out in the invoice issued by Gojek. If Merchant fails to pay an undisputed invoice within the Service Fee Payment Term, Gojek may, without limiting its other rights and remedies, suspend Merchant’s access to the System and/or stop displaying information about Merchant’s Outlets via the System until such invoice is paid in full.
- 7.10 In addition to the Service Fees, Gojek reserves the right to charge a fee for all support and services obtained by Merchant, directly or indirectly, through the use of the System, as notified to Merchant by Gojek from time to time (including via the Policies).
- 7.11 Without prejudice to Gojek’s other rights and remedies, Gojek may suspend the processing of any transaction where it reasonably believes that the transaction may be fraudulent, illegal or may involve any criminal activity or where it reasonably believes Merchant, a Driver and/or a User are in breach of this Agreement or the Policies. In such an event, Merchant shall not hold Gojek liable for any withholding of, delay in, suspension of, or cancellation of, any payment to Merchant.
- 7.12 This Agreement shall be subject to all applicable prevailing statutory taxes, duties, fees, charges and/or costs, however denominated, as may be in force and in connection with any applicable future taxes that may be introduced at any point of time.
- 7.13 Merchant agrees that it is solely responsible for taxes on its income arising from Merchant’s participation with GoFood. Merchant warrants that it will perform the necessary obligations imposed by the relevant tax or revenue authority in relation to the reporting of Merchant’s income and payment of taxes on the same.
- 7.14 Merchant agrees that Gojek may, to the extent required by Applicable Law, declare, collect and/or pay any relevant taxes on Merchant’s behalf, and disclose all necessary or relevant information to the relevant tax or revenue authority for such purposes.
- 7.15 Merchant agrees to do everything necessary and required by Applicable Law to enable, assist and/or defend Gojek to claim or verify any applicable input tax credit, set off, rebate or refund in respect of any taxes paid or payable in connection with this Agreement.
- MARKETING AND PUBLICITY
- 8.1 Any Intellectual Property Rights belonging to a party prior to the Effective Date shall remain vested in that party.
- 8.2 Merchant grants Gojek and the Gojek Group Companies an irrevocable, worldwide, royalty-free licence during the Term to use Merchant’s Intellectual Property Rights for the purposes of performing Gojek’s obligations and exercising its rights under this Agreement, including any marketing and promotional activities.
- 8.3 Gojek and its licensors grant Merchant a limited, revocable, non-transferable, non-sublicensable, royalty-free licence during the Term and in the Territory to use Gojek’s Promotional Materials for the sole purpose of conducting marketing and promotional activities as agreed in accordance with clause 8.4 and otherwise in accordance with the Policies and Gojek’s instructions. On expiry or termination of this Agreement, Merchant will return all Promotional Materials to Gojek promptly, and in any event within three days.
- 8.4 The parties may conduct marketing and promotional activities in relation to GoFood, the Outlets and/or the F&B Items, as mutually agreed.
- 8.5 Merchant must not issue any press releases or otherwise refer to Gojek or the Gojek Group Companies without Gojek’s prior written consent.
- INDEMNITIES AND LIABILITY
- 9.1 Merchant shall defend, indemnify and hold harmless Gojek, its licensors and each such party’s Affiliates and their respective officers, directors, members, employees and agents from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with:
- 9.1.1 Merchant’s breach of any term of this Agreement or any Applicable Law;
- 9.1.2 Merchant’s provision of the F&B Items;
- 9.1.3 Merchant’s use of the System; and
- 9.1.4 any claim that the provision or use of Merchant’s Intellectual Property Rights infringes any third party rights.
- 9.2 The System is provided “as is” and “as available”. To the maximum extent permitted by Applicable Law, Gojek disclaims all representations and warranties, express, implied or statutory, save as expressly set out in this Agreement, including any warranties of merchantability, fitness for a particular purpose, reasonable care and skill and non-infringement.
- 9.3 Without limitation to clause 9.2, Gojek makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the System, or that the System will be uninterrupted or error-free, or will operate in combination with any other hardware, software, system or data, or that any data will be accurate or reliable. Gojek does not guarantee the quality, suitability, safety or ability of the Drivers or third party providers.
- 9.4 Unless otherwise agreed in writing, Gojek does not guarantee that Merchant’s use of the System will generate any minimum number of Orders or any minimum User Fees for Merchant.
- 9.5 The System may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, including the devices used by Merchant, the Driver or the User being faulty, not connected, out of range, switched off or not functioning. Gojek is not responsible for any delays, delivery failures, damages or losses resulting from such problems.
Exclusions and limitations of liability
- 9.6 Nothing in this Agreement limits or excludes a party’s liability for death or personal injury caused by negligence, for fraud, or for any other liability to the extent it cannot be limited or excluded under Applicable Law.
- 9.7 To the maximum extent permitted by Applicable Law, Gojek shall not be liable for:
- 9.7.1 indirect, incidental, special, exemplary, punitive or consequential damages;
- 9.7.2 loss of use, lost profits, lost data, lost business, lost goodwill, lost contracts or lost opportunity; and
- 9.7.3 personal injury or property damage,
arising from, related to or otherwise in connection with the System or this Agreement, whether in contract, tort, breach of statutory duty or otherwise.
- 9.8 To maximum extent permitted by Applicable Law, in no event shall Gojek’s maximum aggregate liability arising under and in connection with the System and/or this Agreement, whether in contract, tort, breach of statutory duty or otherwise, exceed the Service Fees paid to Gojek by Merchant in the six month period immediately preceding the first event giving rise to a claim under this Agreement.
- 9.9 Any claims Merchant has against Gojek under or in connection with the System or this Agreement must be notified to Gojek within one year after the events giving rise to such claim, failing which (to the maximum extent permitted by Applicable Law) Merchant will forfeit any rights and remedies Merchant has in respect of such claim.
- TERM AND TERMINATION
- 10.1 This Agreement commences on the Effective Date and, unless terminated in accordance with its terms, continues for the Initial Term. This Agreement shall automatically renew for successive Further Terms in accordance with the Commercial Terms.
- 10.2 Gojek may terminate this Agreement:
- 10.2.1 at any time for any reason by giving notice to Merchant;
- 10.2.2 immediately, with or without notice, if Merchant is in breach of any term of this Agreement, without prejudice to Gojek’s other rights and remedies; and
- 10.2.3 immediately, with or without notice, if Merchant is in breach of any other agreement with Gojek.
- 10.3 Merchant may terminate this Agreement if Gojek materially breaches this Agreement and, if such breach is curable, fails to cure such breach within 30 days of receiving written notice of such breach.
- 10.4 This Agreement may be terminated by mutual agreement between Gojek and the Merchant.
- 10.5 On termination or expiry of this Agreement for any reason, Merchant shall:
- 10.5.1 immediately cease using the System; and
- 10.5.2 promptly (and in any event within three days), pay any money owed to Gojek (which shall become immediately due and payable on termination or expiry).
- 10.6 The parties shall have no further obligations or rights under this Agreement after termination or expiry of the Agreement, without prejudice to any obligations or rights which have accrued to either party at the time it is terminated, save that the provisions of clauses 1, 2, 6, 7.12 to 7.15, 8.5, 9, 10, 11, 12 and 13 of this Agreement and any other clause which expressly or by its nature is intended to survive, shall continue to have effect after the end of this Agreement
- This Agreement (and any and all disputes arising out of or in connection with this Agreement (including any alleged breach, or challenge to the validity or enforceability, of this Agreement or any provision hereof)) will be subject to the laws of Thailand. Any and all disputes arising out of or in connection with this Agreement will be finally settled by Thai courts.
- 13.1 Gojek shall not be liable for delay or failure in performance resulting from causes beyond Gojek’s reasonable control.
- 13.2 Merchant shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of Gojek or any of its affiliated companies.
- 13.3 The rights of each party under this Agreement may be exercised as often as necessary, are cumulative and not exclusive of rights or remedies provided by law and may be waived only in writing and specifically. Delay in the exercise or non-exercise of any right is not a waiver of that right.
- 13.4 This Agreement constitutes the entire agreement and understanding of the parties relating to the subject matter of this Agreement and supersedes any previous agreement or understanding between the parties in relation to such subject matter. The parties also hereby also exclude all implied terms in fact. In entering into this Agreement, the parties have not relied on any statement, representation, warranty, understanding, undertaking, promise or assurance of any person other than as expressly set out in this Agreement. Each party irrevocably and unconditionally waives all claims, rights and remedies which but for this clause it might otherwise have had in relation to any of the foregoing. Nothing in this Agreement excludes liability for fraud or any other liability that cannot be limited or excluded under Applicable Law.
- 13.5 Merchant may not assign, sub-license, transfer, subcontract, or otherwise dispose of any of Merchant’s rights or obligations, under this Agreement without Gojek’s prior written consent. By entering into this Agreement and continuing to use the System, the Merchant hereby consents to Gojek assigning, sub-licensing, transferring, subcontracting or otherwise disposing of, all or part of, its rights or obligations under this Agreement to any third-parties or its Affiliates, provided that, to the extent required by Applicable Law, Gojek shall provide to the Merchant notice of any assignment, sub-licence, transfer, sub-contracting or other disposal of its rights or obligation.
- 13.6 If any Court or relevant authority determines that any part of this Agreement is illegal, invalid or unenforceable under Applicable Law, the remaining parts of this Agreement will remain in full force and effect and the relevant part will be replaced with a provision that is legal, valid and enforceable and that has, to the maximum extent possible, an equivalent effect to the substituted part of this Agreement.
- 13.7 A person who is not a party to this Agreement has no right to rely upon or enforce any term of this Agreement.
- 13.8 Gojek may give notice to Merchant by means of a general notice published via the System or to the Merchant Representative. Merchant must give notice to Gojek to the Gojek Representative or other method as notified by Gojek from time to time.
- 13.9 Gojek may amend these Standard Terms at its sole discretion from time to time and will use reasonable endeavours to notify Merchant of any material changes; however Merchant agrees that it is Merchant’s responsibility to review the Standard Terms regularly and Merchant’s continued use of the System will constitute Merchant’s acceptance to the amendments. Otherwise, no modification of this Agreement will be binding on the parties unless made in writing by the parties.