TERMS & CONDITIONS

These Terms and Conditions form an integral part of the Merchant Enrolment Form and constitute a legally binding agreement made between the Merchant and Foodpanda, wherein the Merchant agrees to extend the Offer to pandapro Subscribers subscribing to the pandapro subscription programme. 

 

1. 1. Definitions

1. 1. “Confidential Information” means any and all information (whether written or oral, and regardless of whether it is specifically designated as confidential) disclosed or made available to the receiving party or its employees, by or on behalf of the disclosing party in connection with these Terms & Conditions or in contemplation of a possible business relationship, or disclosed or made available to the receiving party or its employees in connection with these Terms & Conditions, which information is non-public, confidential, sensitive or proprietary in nature and shall include, but is not limited to: (a) all information relating to commercial or technical data, know-how, research, products, trade secrets, software technology, services, development, inventions, intellectual property, processes, operations, trade practices, marketing techniques, transaction data, customer information, pricing, internal procedures, business and marketing plans or strategies, finances, business opportunities, forecasts, accounting and tax records; (b) information relating to the Programme; (c) other information, data, transactions and materials of whatever kind marked by a party as “confidential”, but excludes information which: (i) is or becomes public knowledge other than through breach of these Terms & Conditions; (ii) is lawfully known or disclosed by a third party to the receiving party, without restriction on confidentiality; (iii) is approved for release by written authorisation of the disclosing party; or (iv) is independently developed by the receiving party without reference to Confidential Information. In addition, the term “Confidential Information” shall include any information of the disclosing party’s Affiliates disclosed by the disclosing party or the subject Affiliate pursuant to these Terms & Conditions. As used in these Terms & Conditions, “Affiliate” means any corporation, firm, partnership, or other entity which controls, is controlled by or is under common control with a party. For the purposes of this definition, "control" shall mean the possession, directly or indirectly, of fifty percent (50%) or more of the voting interests in an entity.
2. 2. “Foodpanda Platform” refers to Foodpanda’s mobile application or website.
3. 3. “IPR” means all intellectual property rights throughout the world, including: (a) patents, copyright, registered designs, trade or service marks, trade, business or company names, logos, branding, business taglines, indication of source or appellation of origin, and any right to have confidential information kept confidential; (b) any application or right to apply for registration of, or assert or waive, any of the rights referred to in paragraph (a); and (c) trade secrets, ideas, concepts, materials, know-how and techniques.
4. 4. “Offer” refers to certain exclusive deals, benefits or discounts offered on Foodpanda Platform.
5. 5. “pandapro Subscriber(s)” shall mean any customer who subscribes to Foodpanda’s pandapro subscription programme.
6. 6. “Programme” means the posting by Foodpanda on the Foodpanda Platform of exclusive deals, benefits or discounts for the Merchant’s product offerings to any pandapro Subscriber.
   
   

2. 2. Merchant’s Obligations & Undertakings

1. 1. As part of Merchant’s participation in the Programme, the Merchant agrees to extend the Offer to pandapro Subscribers in accordance with these Terms & Conditions from the Commencement Date.
2. 2. Merchant shall comply with all applicable industry standards and shall use appropriate skill, care and diligence that would be expected of a professional and prudent vendor in providing the Offer. Merchant agrees that all personnel providing the Offer to Foodpanda shall be subject to a contract whereby all information received by them shall be held as strictly confidential in terms no less onerous than the obligations of confidentiality applicable to Merchant under these Terms & Conditions.
3. 3. Merchant undertakes to comply with all relevant laws, regulations, guidelines and other legislative or regulatory requirements and all statutory modifications, consolidations, or re-enactments made after the Commencement Date of these Terms & Conditions, relevant to the subject matter of these Terms & Conditions and to the performance by the Merchant of its obligations under these Terms & Conditions.
4. 4. Subject to the provisions of this clause, the Merchant undertakes to honour any Offer presented by pandapro Subscribers for redemption during the redemption period specified in the Offer. In the event that the Merchant is unable to honour the Offer, the Merchant shall (i) promptly notify Foodpanda in writing and (ii) (where applicable) supply alternative products of similar quality and price to the affected pandapro Subscribers.
5. 5. The Merchant shall verify the eligibility of all pandapro Subscribers who have presented the Offer for redemption at the time of redemption.
6. 6. The Offer is not transferable or exchangeable for credit, cash or any other benefit (whether in part or in full).
7. 7. The Merchant acknowledges and agrees that notwithstanding anything to the contrary provided in these Terms & Conditions: (a) Foodpanda shall not be liable for any indirect, special or consequential loss or damage, including without limitation, damages from loss of use, data, profits, or business opportunities, or failure to achieve cost savings, in contract, tort or otherwise, howsoever caused, suffered or incurred by the Merchant or any third parties; (b) Foodpanda shall not be liable for any delay, claim, loss or damage which results from any breach of any term of these Terms & Conditions and/or fraud, negligence, default, omission or action of the Merchant, the Merchant’s employees, agents or sub-contractors, or any third parties; (c) Foodpanda shall not be liable for any injury, loss or damage whatsoever, or for any charges, costs or expenses of any kind whatsoever suffered or incurred by the Merchant, its employees, agents, sub-contractors or any third party in connection with the Programme or the Offer redemptions, or usage of the products offered in connection with the Programme or Offer redemptions; (d) Foodpanda assumes no responsibility for any loss or damage or expenses arising in connection with any late or non-notification, any error in computing, technical hardware or software breakdown, malfunctions or defects, failed, delayed or incorrect transactions, or lost or unavailable network connections, or any notice that is lost or misdirected; (e) Foodpanda makes no warranty or representation as to the quality or performance of the products sold or provided by the Merchant, and Foodpanda shall not be liable for the defects, quality, merchantability, the fitness or any other aspect of the products offered, sold or provided in connection with the Programme or Offer redemptions; (f) Foodpanda is not an agent of the Merchant. Any dispute about the quality or service standard must be resolved directly with the Merchant; and (g) Foodpanda reserves the right to vary or amend the terms and conditions governing the Programme and/or the Offer redemption, without notice, or withdraw or discontinue the Programme and/or Offer redemption at any time without any notice or liability to the Merchant or any party. 
8. 8. The Merchant shall indemnify Foodpanda against all claims, demands, actions and proceedings which may be made against Foodpanda and all damages, liabilities, losses, costs (including legal costs on a full indemnity basis) and expenses which Foodpanda may incur or suffer directly or indirectly as a result of the negligence or misconduct of the Merchant, or breach of any term in these Terms & Conditions by the Merchant including failure by the Merchant to honour any of the Offer which has been offered to pandapro Subscribers according to the terms of these Terms & Conditions and/or under the Programme.
9. 9. The Merchant agrees that Foodpanda’s decision on all matters relating to the Programme and/or Offer shall be final.

3. 3. Foodpanda’s Obligations

1. 1. Foodpanda shall, through its Foodpanda Platform, list and advertise the Offer to its pandapro Subscribers.
2. 2. Foodpanda shall have the right to remove/suspend advertising the Merchant and the Offer from its Foodpanda Platform at any time at its sole discretion.
   
   

4. 4. Sign-Up Fee

1. 1. As part of Merchant’s participation in the Programme, the Merchant shall pay the sign-up fee as set out in the above Merchant Enrolment Form to Foodpanda.
2. 2. The Merchant shall pay the sign-up fee to Foodpanda on or prior to the Commencement Date to Foodpanda’s designated bank account or any other methods as agreed in writing between parties.
   
   

5. 5. Term and Termination

1. 1. These Terms and Conditions shall be effective from the Commencement Date and shall continue to be in full force and effect for an indefinite period, unless terminated in accordance with these Terms & Conditions.
2. 2. These Terms and Conditions may be terminated for any reason and at any time by either party by giving no less than forty-five (45) days prior written notice to the other party.
3. 3. These Terms and Conditions may be terminated by Foodpanda by giving no less than seven (7) days prior written notice to the Merchant in the event Foodpanda, at its sole discretion, deems the standard or quality of customer experience delivered by the Merchant to be unsatisfactory or unacceptable. 
4. 4. These Terms & Conditions may be terminated by a party immediately upon written notice being given to the other party on the occurrence of any of the following events: (a) there is a change in control of the other party; (b) an order has been made or petition presented or resolution passed for the winding-up or liquidation of the other party; (c) the other party enters into a composition with its creditors or under receivership or judicial management; or (d) the other party ceases to carry on its business or substantially the whole of its business.
5. 5. Notwithstanding anything to the contrary in these Terms & Conditions, if a party breaches any term of these Terms & Conditions (the “Defaulting Party”) and where such breach is capable of being remedied, such breach is not remedied within fourteen (14) days of receiving notice of such breach and requiring the same to be remedied, the other party be entitled to terminate these Terms & Conditions immediately by giving written notice to the Defaulting Party. 
6. 6. On the expiry or termination of these Terms & Conditions, each party agrees: (a) to immediately cease usage of the other party’s name, logos and trademarks, videos and images; and (b) to immediately dispose of all brochures, application forms, marketing materials and other documents whatsoever which refer to the other party’s name, logos and trademarks which are in the possession or under the control of such party.
7. 7. The termination of these Terms & Conditions shall not affect any antecedent rights, obligations and liabilities of either party accrued prior to the termination of these Terms & Conditions and shall not release the parties from their obligations under these Terms & Conditions which by its nature, effect or intent is meant to survive as a continuing obligation.
   
   

6. 6. Intellectual Property Rights

1. 1. The Merchant hereby authorises and grants Foodpanda for the duration of these Terms & Conditions, a royalty-free, non-assignable and non-exclusive licence to, whether electronically or howsoever otherwise, use, reproduce, distribute, create derivative works of, and publicly display in any medium or materials as Foodpanda shall determine, the following for any purpose in connection with these Terms & Conditions or the Programme: (a) the Merchant’s name, images, logos and/or trademarks (“Merchant Marks”); and the videos and images of the Merchant (“Videos and Images”).
2. 2. Nothing in these Terms & Conditions shall give Foodpanda any right, title or interest in or to the Merchant Marks or the Videos and Images other than pursuant to the license granted hereby.
3. 3. The Merchant warrants and represents that it has and shall continue to have and maintain the full right, power and authority to grant to Foodpanda the license as stated under Clause 6.1 above now or in the future.
4. 4. In the event that any copyright, trademark or other intellectual property claim is brought against Foodpanda, the Merchant shall fully indemnify and hold Foodpanda harmless from and against any and all claims, actions, losses, damages, liabilities, costs, demands and expenses (including legal costs on a full indemnity basis) which may be suffered, sustained and/or incurred by Foodpanda in connection with or arising from any action or proceeding brought against Foodpanda in connection with the use of the Merchant Marks and the Videos and Images including, but not limited to arising from a breach of Clause 6.3 above or arising from or in connection with or based on any claim that the Merchant Marks and/or the Videos and Images infringes any copyright, trademark or any other IPR of any third party. 
5. 5. The Merchant hereby irrevocably and unconditionally agrees and acknowledges that Foodpanda shall not be liable to and shall not be required to indemnify the Merchant for any claims, demands, liabilities, actions, suits, proceedings, losses, costs, expenses or damages which may be or is suffered, incurred or sustained by or made against or by the Merchant arising from or in relation or pursuant to or in connection with any use of the Merchant Marks and the Videos and Images or any action or proceeding brought against Foodpanda as set out under Clause 6.4 above.
6. 6. The Merchant hereby agrees that Foodpanda shall not be required to pay the Merchant, any fees, royalties or compensation for Foodpanda’s use of the Merchant Marks and the Videos and Images for any of the purposes set out under these Terms & Conditions.
7. 7. Nothing in these Terms & Conditions shall prevent or affect the ownership by Foodpanda of any IPR originally owned by Foodpanda prior to these Terms & Conditions 
8. 8. The Merchant shall not use the IPR of Foodpanda for any matter whatsoever including, but not limited to, any sales, marketing, press release, publicity, public announcement, disclosure, advertisement or other publication without the prior written consent of Foodpanda.
   
   

7. 7. Confidentiality

1. 1. Subject to Clause 7.2, all Confidential Information shall be kept confidential by the receiving party and shall not be used except for carrying out the performance of its obligations under these Terms & Conditions.
2. 2. The disclosure and/or further disclosure of the Confidential Information shall be permitted if such disclosure is: (a) disclosed to the (i) employees, (ii) officers (iii) directors and/or (iv) Affiliates, of the receiving party on a “need to know” basis, for carrying out the relevant party’s obligations under these Terms & Conditions (and provided that the receiving party shall procure its employees, officers and/or directors to observe and agree to similar obligations of confidentiality); (b) required by applicable law rule, regulation or lawful order or ruling of any court, government agency or regulatory commission to disclose any Confidential Information; (c) required in connection with legal proceedings (and provided that the receiving party shall disclose only such Confidential Information as is legally required and shall (i) use reasonable efforts to ensure the continued confidential treatment of any disclosed Confidential Information; and (ii) provide to the disclosing party prompt written notice of each such legal requirement for disclosure, so that the disclosing party may seek an appropriate protective order); or (d) approved by written authorisation of the disclosing party.
3. 3. The receiving party shall treat the Confidential Information with the same level of care that it affords its own Confidential Information, but in no event less than a reasonable level of care.
   
   

8. 8. Personal Data Protection

1. 1. The Merchant agrees and undertakes to Foodpanda that the Merchant shall comply with the Data Privacy Act of 2012(“DPA”), all DPA subsidiary legislation and the requirements set out in any implementing rules, advisories, circulars, or guidelines issued from time to time by the National Privacy Commission (collectively “DDPA Legislation”), with regard to any personal data (as defined in the DDPA) that it receives from Foodpanda (“Foodpanda Data”) and shall at the reasonable request of Foodpanda, promptly do such things or execute such documents, to facilitate Foodpanda’s compliance with the DPA Legislation. The Merchant shall ensure that it will provide a standard of protection of Foodpanda Data that complies with the DDPA Legislation, including without limitation in the following areas: (a) Purpose, Use & Disclosure: The collection, use and/or disclosure of Foodpanda Data by the Merchant shall be strictly for the purposes expressly permitted under these Terms & Conditions and in accordance with the instructions of Foodpanda. No disclosure of any Foodpanda Data shall be permitted without the express written consent of Foodpanda; (b) Protection: The Merchant shall protect Foodpanda Data in its possession or under its control by making reasonable security arrangements to prevent unauthorized or accidental access, collection, use, disclosure, copying, corruption, modification, disposal or similar risks to the Foodpanda Data and to ensure that the Foodpanda Data is accurate and complete for the relevant purposes permitted under these Terms & Conditions. (c) Retention: The Merchant shall immediately return any Foodpanda Data received in error or that is not necessary for the performance of its obligations under these Terms & Conditions. The Merchant shall return or destroy any Foodpanda Data upon Foodpanda’s written request or immediately without request upon the expiry or termination of these Terms & Conditions. Following such return or destruction, the Merchant shall certify to Foodpanda that it has not kept or retained the Foodpanda Data; (d) Access & Correction: The Merchant undertakes to provide Foodpanda promptly with all assistance and information relating to the Foodpanda Data in its possession or under its control, and comply with Foodpanda’s instructions to enable Foodpanda to comply with its obligations under the DPA Legislation when an individual seeks to exercise that individual’s access or correction rights under the DPA Legislation.
2. 2. The Merchant may only transfer Foodpanda Data outside of the Philippines subject to the prior written consent of Foodpanda. Where Foodpanda has provided such written consent, the Merchant shall ensure, procure and demonstrate that the overseas recipient of Foodpanda Data (“Overseas Recipient”) shall provide a standard of protection of Foodpanda Data that is comparable to the protection applicable thereto under the DPA Legislation including and without limitation, the obligations set out in Clause 8.1 above.
3. 3. The Merchant shall promptly give Foodpanda notice in writing, within twenty-four (24) hours of knowledge, should it be aware of or reasonably suspect that, any collection, use, disclosure of any Foodpanda Data otherwise than as permitted under these Terms & Conditions, or any misuse of any Foodpanda Data, or any security breach in connection with these Terms & Conditions that could compromise the security or integrity of Foodpanda Data has occurred and shall make reasonable efforts to assist Foodpanda in relation to the investigation and remedy of such breach of security with respect to the unauthorised access, use or disclosure of Foodpanda Data.
4. 4. The Merchant’s obligations under this Clause 8 are supplemental to and without prejudice to the other terms of these Terms & Conditions. In the event of any inconsistency between the other terms of these Terms & Conditions and this clause, the provisions of this clause shall prevail to the extent required to resolve the inconsistency.
   
   

9. 9. Notices

1. 1. All notices required or permitted under these Terms & Conditions will be in writing, will reference these Terms & Conditions and will be deemed given when: (i) delivered personally; (ii) when sent by email; (iii) three (3) days after having been sent by registered mail. All communications will be sent to the addresses and communication numbers last known to each party. Any change in address or communication details shall be promptly notified by each party to the other party.
   
   

10. 10. Force Majeure

1. 1. Each Party shall not be liable for any breach of its obligations resulting from causes beyond its reasonable control, including but not limited to acts of God, fires, floods, earthquakes, typhoons, strikes, insurrection, riots, embargoes, regulations of any civil or military authority, the onset of infectious diseases, epidemic or pandemic, issuance of quarantine or other prohibition or restrictive orders by any agency or authority (“Force Majeure Event”).
2. 2. If a Party is directly prevented, hindered or delayed in or from performing any of its obligations under these Terms & Conditions by a Force Majeure Event (“Affected Party”), the Affected Party shall not be in breach of these Terms & Conditions or otherwise liable for any such failure or delay in the performance of such obligations, provided it has complied with Clause 10.4 and the failure or delay could not have been prevented by reasonable precautions. The time for performance of such obligations shall be extended accordingly.
3. 3. The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
4. 4. The Affected Party shall: (a) as soon as reasonably practicable after the start of the Force Majeure Event but no later than seven (7) days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under these Terms & Conditions; and (b) use all reasonable endeavours to perform its obligations under these Terms & Conditions or to mitigate the effect of the Force Majeure Event on the performance of its obligations.
5. 5. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than thirty (30) days, either party may terminate these Terms & Conditions by giving seven (7) days’ written notice to the other party without being liable therefore in damages or compensation.
   
   

11. 11. Assignment

1. 1. These Terms & Conditions are not assignable or transferable by the Merchant without the prior written consent of Foodpanda and shall remain in full force until terminated or it has expired, and any attempted assignment without such written consent shall render these Terms & Conditions null and void. These Terms & Conditions shall bind the permitted successors in title of the parties hereto.
2. 2. In the event that the Merchant intends to undertake a sale of all or substantially all of its business and assets whether by merger, sale of assets/business or otherwise, the Merchant shall: (i) give Foodpanda prior notice of its intention; and (ii) take all necessary steps to assign, transfer or novate all its rights and obligations under these Terms & Conditions to the purchaser of the Merchant’s business and assets. Foodpanda shall be entitled to terminate these Terms & Conditions with immediate effect upon receipt of such notice.
3. 3. Foodpanda may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under these Terms & Conditions and may subcontract or delegate in any manner any or all of its obligations under these Terms & Conditions to any third party or agent.
   
   

12. 12. Governing Law & Dispute Resolution

1. 1. These Terms & Conditions shall be governed by and construed in accordance with the laws of the Philippines.
2. 2. Any dispute arising out of or in connection with these Terms and Conditions, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in accordance with Republic Act No. 9285, otherwise known as the Alternative Dispute Resolution Act of 2004. There will be three (3) arbitrators and shall be conducted as follows:

1. a) Each Party shall appoint one (1) arbitrator. The arbitrators thus appointed shall select a third arbitrator who shall act as the presiding arbitrator of the tribunal or panel;
2. b) The arbitration shall be conducted in the English language. The place of arbitration shall be Makati City, Philippines;
3. c) The Parties agree that this arbitration clause is an explicit waiver of immunity against validity and enforcement of the award or any judgment thereon made pursuant thereto and that such award or judgment thereon, if unsatisfied, shall be enforceable in any court having jurisdiction in accordance with its laws against any party participating in the arbitration;
4. d) The Parties agree that the award of the arbitration tribunal shall be the sole remedy for all claims and counterclaims concerning the matter in dispute presented to the arbitration tribunal. The costs, expenses, fees, and charges of the arbitration proceedings shall be equally shared by the Parties.

1. 3. Nothing in this clause shall preclude either Party applying for urgent interlocutory relief from any court of competent jurisdiction and for this purpose, the parties expressly submit to the jurisdiction of any such court.
   
   

13. 13. General

1. 1. The waiver by either party of a breach of any provision contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.
2. 2. If any one or more of the provisions contained in these Terms & Conditions shall be deemed invalid, unlawful or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired.
3. 3. The relationship between the parties under these Terms & Conditions is that of independent contractors. Nothing in these Terms & Conditions will constitute a partnership or employment or agency or joint venture relationship or association between the parties or be construed or interpreted as creating or establishing any such relationship between the parties. Each party shall have no power to bind the other party to any contract or agreement.
4. 4. The parties shall comply with all applicable laws, rules and regulations in connection with its obligations under this Terms & Conditions.
5. 5. These Terms & Conditions, together with the Merchant Enrolment Form, constitutes the entire agreement between the parties in relation to the obligations of the parties under these Terms & Conditions and supersedes any previous agreement, whether express or implied, regarding these Terms & Conditions.
6. 6. Unless expressly stated otherwise, Foodpanda shall have the right to amend these Terms & Conditions at its sole discretion from time to time, provided that it shall inform the Merchant of such amendments in writing fourteen (14) days from the date of amendment. The Merchant’s continued participation in the pandapro Programme shall be deemed to constitute an acceptance by the Merchant of the amended Terms & Conditions. In the event that the Merchant does not agree to the amended Terms & Conditions, the Merchant may terminate this agreement by giving no less than thirty (30) days prior written notice to Foodpanda.
7. 7. These Terms & Conditions are provided and executed in the English language. No translation of these Terms & Conditions into any language other than English shall be of any effect in the interpretation of these Terms & Conditions. All notices, requests, statements, reports and other communications made pursuant to these Terms & Conditions shall be in the English language.