General Terms and Conditions of GrabMart Merchant Contract

Last modified: 7 February 2023

GRABMART MERCHANT GENERAL TERMS AND CONDITIONS THAILAND 

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

In this General Terms and Conditions, unless the context otherwise requires, the following expressions shall have the following meaning:

“Account” means a mobile application account that GRAB creates on its online platform and provides for Merchant (as defined below) through the Grab App (as defined below) for, inter alia, registration and operation on the terms and conditions provided hereunder.  

“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 the Business Cooperation Contract entered into by and between GRAB and Merchant which sets out the commercial terms (to which these General Terms and Conditions are appended) and all Appendices thereto and any amendments 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 (other than a Saturday or Sunday or public holiday) on which banks are open for general business in Thailand;

“Confidential Information” means any information (including but not limited to the terms and conditions of this General Terms and Conditions, the Agreement) 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 Receiving Party and, including any Personal Data as defined in this General Terms and Conditions , all End User 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 General Terms and Conditions, 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;

“Disclosing Party” means either Party who discloses the Confidential Information under this General Terms and Conditions;

“Delivery Partner” means the independent third party service provider who provides or intends to provide on-demand delivery or logistics services using the Grab App on a mobile device and has completed the registration process, and is authorized and approved by GRAB and/or its Affiliates to deliver Goods via GrabMart ordered by the End User;

“End User” means a consumer who uses GrabMart to order Goods from Merchant;

“Failed Delivery” means an order that is cancelled for unsuccessfully execution due to: i) the delivery address (either physical or email) provided by the End User or by GRAB being incorrect; ii) where acceptance of delivery of Goods is required, the End User being unable to accept Goods; iii) where Goods is a physical product, the End User refusing to accept the delivery of Goods in accordance with the Policies;  iv) where the End User remain uncontactable after various attempts (the number of delivery attempts will be determined by the Delivery Partner or Store)

“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;

“General Terms and Conditions” mean GrabMart Merchant General Terms and Conditions for Thailand as set forth herein.

“Goods” means one (1) or several (if sold together as set forth in Appendix 2) owned and offered for sale by the Merchant via the Grab App for purchase by End Users.

“GRAB” means Grabtaxi (Thailand) Co., Ltd.

“Grab App” means the relevant mobile application(s) of GRAB and/or its Affiliates which enable and facilitate any or all of the following: (a) an End User’s purchase of Goods from Merchant; (b) matching of Merchant with Delivery Partners in order for Delivery Partners to perform delivery or logistics services;

“GrabMart” means one or more service offerings available on the Grab App which enables an End User to order and pay for Goods provided by Merchant and to have such Goods delivered to End User by a Delivery Partner;

“Grab Personal Data” means Personal Data which Grab or its Affiliates discloses to the Merchant or which the Merchant processes on behalf of Grab for purposes of this Agreement;

“Inadequate Goods” means an incomplete order of Goods to be sold by Merchant to the End User;

“Intellectual Property Rights” mean 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 licenses 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;

“Merchant” means Merchant whose particulars are as specified in General Terms and Conditions and the Agreement, where is applicable;

“Minimum Suspension Period” means a period of 60 days of which GRAB is allowed to suspend payment to Merchant;

“Party” means each of Merchant and GRAB (and collectively, referred to as the “Parties”);

“Personal Data” means (a) any information that directly or indirectly identifies the End User or can be used to identify, contact or locate the End User to whom such information pertains (including but not limited to mobile phone number, email address and/or any necessary information for purposes of providing the Services subject to terms and conditions of this Agreement), (b) information which is collected from official identification card/document or from the contact of natural person or the information that an information which can be used to identify, contact or locate natural person (c) information, including but not limited to name, address, phone number, email address, other account information (to the extent such other account information includes information described in subsections (a) or (b) above), or other government-issued identifier, and credit card information and (d) any other information, including but not limited to a personal profile, unique identifier, biometric information and/or IP address, which is associated or combined with another Personal Data;

“Receiving Party” means either Party who receives the Confidential Information under this General Terms and Conditions;

“Retail Price of a Goods” means the retail price of Goods as published on the Grab App. VAT of the Retail Price of Goods shall be determined by Merchant (regardless of inclusive or exclusive of VAT);

“Services” shall have the meaning as ascribed for it under Clause 4 of this General Terms and Conditions which indicate the works allocated for GRAB;

“Service Fee” means the amount as specified in the Agreement accounted on a percentage of the Retail Price that GRAB is shared in this business cooperation model (the amount or rate of which is specified in the Agreement) and to be paid or payable to GRAB by Merchant, in consideration for the Services; 

“Stores” means the groceries, outlet(s), or other establishment(s) of Merchant as listed in Appendix 1 of the Business Cooperation Contract;

“Term” shall have the meaning as ascribed for it under Clause 3 of this General Terms and Conditions;

“Third-Party Claim” means commencement or threatened commencement of any action, suit, proceeding, claim, arbitration, interrogation or litigation, whether civil or criminal, at Law or in equity, made or brought by a third party (including but not limited to government agencies); and

“VAT” means the value added tax which is a consumption tax according to Thai laws.

1.2 Interpretation 

The following rules apply unless the context requires otherwise:

1.2.1 Headings are for convenience only and do not affect interpretation;

1.2.2 The singular includes the plural, and the converse also applies; 

1.2.3 If a word or phrase is defined, its other grammatical forms have a corresponding meaning;

1.2.4 A reference to a Clause is a reference to a clause of this General Terms and Conditions and/or Agreement;

1.2.5 A reference to an agreement or document (including a reference to this General Terms and Conditions and/or Agreement) is a reference to the agreement or document (including its appendices) as amended, supplemented, novated or replaced except to the extent prohibited by this General Terms and Conditions and/or Agreement or that other agreement or document;

1.2.6 A reference to “writing” includes any method of representing or reproducing words, figures, drawings, or symbols in a visible or tangible form;

1.2.7 A reference to a Party to this General Terms and Conditions and/or Agreement or another agreement or document includes the Party’s successors, permitted substitutes and permitted assigns;

1.2.8 A reference to legislation or to a provision of legislation includes a modification or re-enactment of it, a legislative provision substituted for it and a regulation or statutory instrument issued under it;

1.2.9 Mentioning anything after “includes”, “including”, “for example”, or similar expressions, does not limit what else might be included; 

1.2.10 Nothing in this General Terms and Conditions and/or Agreement shall be interpreted against a Party solely on the ground that the Party put forward this General Terms and Conditions and/or Agreement or any part of it.

2. ENTIRE AGREEMENT

2.1 This General Terms and Conditions and Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, and supersedes all prior agreements, correspondence, negotiations, representations, expressions of intention relating to the subject matter hereof, whether in writing or oral between the Parties.

2.2 Any terms and conditions of Merchant in relation to Goods provided to the End User are not part of this General Terms and Conditions and/or Agreement, unless GRAB expressly agrees to adhere to them in writing.

3. TERM

This General Terms and Conditions and Agreement shall be effective throughout the duration specified in the Agreement.

4. SCOPE OF SERVICES

GRAB appoints Merchant and Merchant agrees to be appointed by GRAB as a GrabMart partner, whereby GRAB is entitled to accept orders for Goods on behalf of Merchant from the End User through GrabMart in the Grab App (“Services”).

Services as provided include but are not limited to: 

(a) Referring the End User to Merchant;

(b) Accepting orders and payments from the End User;

(c) Advertising Merchant’s Goods (including but not limited to: menu, logo, images, prices) to the End User through advertising Grab App and any GRAB’s channel as GRAB may deem appropriate;

(d) Passing the payment and order from the End User to Merchant taking into account the agreed compensation.

GRAB shall not be involved in the actual transaction between Merchant and End Users. Merchants positions itself as the legal owner and authorized vendor, and ensures the sale is legally authorized and are able to fulfil all of the sale and after sale obligations applicable by law and regulations.

5. SERVICES 

5.1 In consideration of the Service Fee, GRAB shall

(a) make available to Merchant the Grab App and the Account in order to enable and facilitate: (i) End Users’ purchase of Goods from Merchant; (ii) Merchant’s access to on-demand delivery and logistics services by Delivery Partners and the matching of Merchant with such Delivery Partners in order for Delivery Partners to perform delivery or logistics services in relation to Goods sold by Merchant; and 

(b) provide lead generation, payment processing agent, provide refunds and adjusts and and other related arrangements in connection with sub-clause (a),

5.2 Subject to Clause 5.1, GRAB shall be entitled to timely deductions of the Service Fee in accordance with Clause 9.

5.3 Merchant agrees that GRAB is a technology company providing GrabMart on the Grab App only and accordingly:

(a) GRAB does not have any responsibility with respect to the legality of transactions occurring between Merchant and the End User and Merchant undertakes that all transactions are in compliance with the laws including any anti-money laundering regulations;

(b) GRAB shall not be involved in any agreements, terms and conditions or rights and obligations between the End User and Merchant. If there is any dispute arising out of or in connection with Goods or any other dispute in relation to Merchant’s Goods provided to the End User, Grab may facilitate customer services in dealing with disputes as determined by Grab’s policies, at its sole discretion. For avoidance of doubt, Grab shall not be labile to any liability in respect to any services or Goods; and

(c) Neither GRAB nor its Affiliates provide any delivery or logistics services, but GRAB provides a platform for Merchant to connect with Delivery Partners. As platform provider, the obligation to deliver Goods is the responsibility of the Delivery Partners. GRAB endeavors on a reasonable basis to match Merchant with a Delivery Partner via the Grab App, however GRAB cannot guarantee such compatibility can be done at the time Merchant wishes to be matched. GRAB shall not be liable for any failure to match.

5.4 Merchant acknowledges that the availability of the Grab App, GrabMart, the Services, is subject to:

5.4.1 availability of resources, including, without limitation, resources under the control of GRAB and availability of a suitable network infrastructure at the time at which the Services is requested or delivered;

5.4.2 if applicable, geographic and technical capability of communication networks and other delivery systems at the time at which the Services are requested or delivered; and

5.4.3 provisioning time that may be required by GRAB to provide the Service.

If there is any damage and/or claim which is attributable to Merchant’s fault, GRAB shall not involve or be liable for any damages arising from such cause incurred to End User unless otherwise specified herein.

6. MERCHANT’S UNDERTAKING IN RELATION TO GOODS

6.1 Merchant hereby agrees and undertakes:

6.1.1 goods are of merchantable quality, fit for their purpose, free from defects and strictly confirm to their listed specifications;

6.1.2 goods and their offer for sale are not prohibited and comply with the laws (including all minimum age, marking and labelling requirements, product warranties, specifications and performance criteria) including and prohibited and restricted items;

6.1.3 tt has full unencumbered title in Goods and in any materials incorporated in Goods and all Goods are free from lien, charges or other security interest;

6.1.4 it will not, directly or indirectly sell Goods, (i) for any perishable Goods, not less than one (1) week before expiry date and (ii) for non-perishable Goods, not less than six (6) months before expiry date; 

6.1.5 it will not, directly or indirectly, sell counterfeit, “replica” and name brand “knock off’ products or products violating any Intellectual Property Rights;

6.1.6 it will bear all costs in relation to packaging and ensure packaging is sealed to a commercially acceptable standard, using opaque type of packaging to ensure anonymity of Goods; and 

6.1.7 it shall only sell alcoholic beverages to individuals not under 20 years old. Grab shall not be obligated to verify the age of the End User or the recipient of such Goods.

7. PARTIES’ OBLIGATIONS

7.1 GRAB and Merchant shall perform their respective obligations as set out under this Clause 7 of this General Terms and Conditions.

7.2 GRAB’s obligations

7.2.1 GRAB will present and keep updated on the Grab App the Stores information and Goods information offered by Merchant, to the extent that such information and updates are communicated to GRAB by Merchant in a timely manner.

7.2.2 GRAB will ensure that order for Goods placed by an End User via the Grab App is communicated to Merchant.

7.2.3 To the extent as permitted by law and as hereby authorized by Merchant, GRAB may receive the End Users’ payments for such Goods as prepared and reimburse such payments to Merchant on the terms and conditions hereunder. 

7.2.4 GRAB will facilitate the management of customer service and complaints of the End Users and transfer the relevant information to Merchant for handling the complaints initiated by the End Users.

7.3 Merchant’s obligations

7.3.1 Merchant shall provide GRAB with all information and updates on the Stores and Goods as necessary to enable GRAB to fulfill its obligations under Clause 7.2.1 hereof. Such information must be complete, accurate and up-to-date at all times and includes but is not limited to Merchant’s menu, logo, images of Goods, prices, and Merchant’s company particulars, branch names, addresses, locations in latitude and longitudes, and contact information.

7.3.2 Changes to information provided under Clause 7.3.1 hereof shall be communicated by Merchant to GRAB immediately (and in any event no later than 3 Business Days after such change occurring). Notwithstanding the foregoing, Merchant shall honour all orders for Goods made in reliance of any information (even if outdated) published on the Grab App.

7.3.3 Merchant shall verify the information published by GRAB and immediately point out any mistakes or inaccuracies. 

7.3.4 Merchant shall indemnify and hold GRAB harmless from any claims, demands, or actions taken by End User, regulatory or governmental agency, or any third parties arising from the Stores and Goods information published on Grab App being mistaken, inaccurate, or outdated due to Merchant’s failure to fulfill its obligations under Clause 7.3.1, 7.3.2, and 7.3.3 hereof.

7.3.5 Merchant shall ensure that all prices of Goods offered on the Grab App are identical to the prices offered by Merchant to customers through any other platform, channel or facility (including but not limited to delivery platforms, channels or facilities of Merchant and/or third parties).

7.3.6 If there is any change to Merchant’s business and/or operating licenses, Merchant shall communicate such change to GRAB immediately (and in any event no later than within 24 hours of such change).

7.3.7 Merchant shall allow GRAB and shall assist GRAB to place any marketing materials relating to GrabMart and its related information, and any other products and services provided by GRAB and/or its Affiliates if so required by GRAB at the Stores’ premises or any other place of business of Merchant, without any charge to GRAB.

7.3.8 Merchant shall ensure that all information published on the Grab App relating to Merchant, Stores and/or Goods is in compliance with all legal and regulatory requirements. 

7.3.9 Merchant shall ensure that any and all information provided by Merchant to GRAB does not violate any third party’s Intellectual Property Rights. For the avoidance of doubt, Merchant hereby consents to GRAB’s use of its Intellectual Property Rights and grants GRAB the right to use Merchant’s menu, logo, images, prices, and its company identity on the Grab App and other media means (including but not limited to images on any social media e.g. Instagram and Facebook).

7.3.10 Merchant shall process all orders with all reasonable care and as soon as they are submitted by the End User.

7.3.11 Merchant shall use best efforts to maintain sufficient inventory of all advertised Goods at all times.

7.3.12 Merchant shall ensure that all Goods offered are of high quality and their storage, production and preparation comply with all relevant consumer Goods safety and other regulations. Any violations of such regulations shall be notified by Merchant to GRAB immediately. Merchant shall be responsible to handle and resolve all consumer Goods safety complaints and issues raised by End Users, regulatory or governmental agency, or any third parties (including, if necessary, processing and satisfying claims under Merchant’s relevant insurance policy/ies). 

7.3.13 Merchant shall take all necessary or desirable actions to facilitate Delivery Partners’ collection of Goods.

7.3.14 Merchant shall ensure that it shall not sell illegal items or any items that Merchant does not have permission or licence to sell or send and/or use GrabMart and/or the Grab App for any illegal purpose (including any action being contrary to public order and good morals).

7.3.15 Merchant hereby authorizes GRAB to receive the End Users’ payments of Goods in accordance with laws.

7.3.16 Merchant acknowledges and agrees that the End Users may make payment of the Goods by cash, debit cards, credit cards, wire transfer, internet banking, online payment, or other pre-paid or post-paid methods which may be made available on the Grab App at the sole discretion of GRAB from time to time.  In case GRAB provides any payment method which may facilitate the End User to pre-pay for the, inter alia, Goods, Merchant hereby acknowledges and agrees that GRAB shall be fully entitled to any interest and/or benefits arising out of such prepaid amounts made by the End User (where applicable) in accordance with the terms and conditions of each payment method provided by GRAB at its sole discretion from time to time.

7.3.17 Merchant acknowledges and agrees that GRAB shall not be responsible for any failure of Goods (including but not limited to damage and break of package).

7.3.18 Merchant shall ensure that all Goods are complete and are properly sealed before handing them over to the Delivery Partner. Merchant will be held liable for any lost items reported by End User who received Goods in sealed and untampered condition.

7.3.19 If GRAB finds or is notified by End User of any failure of Goods in accordance with 7.3.17 and 7.3.18, Merchant, at its own cost and expense, agrees to replace for GRAB with Goods in good condition and to be solely responsible for any cost for Goods replacement including price, preparation and delivery.

7.3.20 If there is any change to Merchant’s business and/or operating licenses, Merchant shall communicate such change to GRAB immediately (and in any event no later than twenty-four (24) hours of such change).

7.3.21 Merchant guarantees that it possesses all licenses required by prevailing laws and regulations and that there are no pending criminal, bankruptcy or tax proceedings or other outstanding penalties in relation to its business operations. If Merchant learns of any criminal, bankruptcy or tax proceedings or other outstanding penalties in relation to its business operations after the execution of this Agreement, Merchant shall immediately notify GRAB of such proceedings within ten (10) days from such knowledge.

8. MARKETING AND PUBLICITY

8.1 The Parties may conduct marketing and advertising activities in relation to Goods as mutually agreed by the Parties. Such activities may be through various channels such as social media channels, websites or blogs.  For avoidance of doubt, GRAB may, at its own costs, provide promotion offers for the End Users to promote the business activities and Services of the Parties provided hereunder. 

8.2 On an ongoing basis, Merchant shall share with GRAB its marketing calendar and plans (including but not limited to the discounts and promotion details), for the mutual exploration of marketing and advertising activities.

8.3 Neither Party shall issue any press release or announcement or otherwise refer to the other Party in any manner with respect to this General Terms and Conditions and/or Agreement or otherwise, without the prior written consent of such other Party.

8.4 GRAB and Delivery Partner shall not responsible for the availability of any premium, award, prize, reward, handout, or any other material (including but not limited to discount or promotional Goods) related to any sale promotion activities provided and/or advertised by Merchant.

9. FEES AND CHARGES

9.1 Service Fee: In consideration of GRAB’s provision of the Services under this General Terms and Conditions and Agreement, GRAB shall charge Merchant the Service Fee. For the avoidance of doubt, Merchant is not allowed to charge any charge (which is not shown on the Grab App) to the End User.

9.2 Delivery Fee: In no event shall Merchant charge delivery fees to any End User.

9.3 Remittance to Merchant (Immediate Payment Method): GRAB shall act as the collection agent of Merchant in respect of the payment by End User of the Retail Price. GRAB shall remit to Merchant the final payable amount of Goods Revenue, to the calculation of   (i) Goods Payment (including any fees collected on Merchant’s behalf) earned by Merchant, including the Discount (if any) (ii) deducting any refunds given to End Users as direct or indirect result of Merchant’s Negligence (iii) deducting the applicable Service Fee and/or marketing service fee on Grab application (if any) (including VAT and withholding tax) that must be paid to Grab and (iv) deducting any Merchant’s outstanding debts (such final remitted amount being the “Goods Revenue”). Goods Revenue collected will be remitted on a daily basis.  Adjustments to Goods Revenue (if any) shall be remitted by GRAB to Merchant on a weekly basis. “Goods Payment” shall mean the Retail Price of Goods sold and determined by Merchant via the Grab App (the retail price of Goods as published on the Grab App, which shall be exclusive of VAT and/or any other prevailing taxes) less the applicable Service Fee, subject to Clause 9.1. “Merchant’s Negligence” shall mean any actions or inactions of Merchants resulting to a negligent action, including but not limited to packaging the wrong item, providing damaged items and or expire items.

9.4 Refunds to End Users: Merchant shall be responsible for all costs related to reimbursement to End Users in the event any such End User(s) request a refund for or raises a complaint in respect of any Goods or part thereof (including, without limitation, any costs associated with retrieving any such Goods, if applicable), for reasons that are considered by GRAB in its sole discretion as reasonable and as confirmed after review with Merchant (including but not limited to Goods being out-of-stock, missing Goods, Merchant being unable to fulfil all/part of an order, late preparation/delivery, and health and safety issues with Goods), upon (i) request by the End Users of refund or raising of a complaint by the End Users or (ii) acceptance by the Delivery Partner of the request. GRAB may deduct refunds from the payments made to Merchant under this General Terms and Conditions and/or Agreement.

9.5 Payment/Remittance Method: All payments and remittances under this General Terms and Conditions and/or Agreement shall be effected through such payment/remittance arrangements as may be separately agreed between GRAB and Merchant, such as GrabPay Wallet.

9.6 GRAB may delay, suspend or cancel any remittance to Merchant in the event Merchant breaches any term of the Agreement, and in the event there are any remittance made to Merchant, such remittance shall not in any way be considered as a waiver of GRAB’s rights.

9.7 In the event GRAB determines Merchants action and or performance in connection to the Agreement are likely to result or have resulted in End User’s disputes, chargebacks or other third party claims, or if there are any sums owed by Merchant to GRAB, GRAB shall be entitled at its sole discretion, to withhold any amount of Goods Revenue for the longer term of (i) Minimum Suspension Period; (ii) the completion of investigations regarding Merchants actions or performance; or (iii) the resolution of a dispute.

9.8 GRAB reserves the right to impose limits on orders or transaction values to an End User and GRAB shall not be liable if i) GRAB does not proceed with an order that would exceed the limit; ii)  GRAB allows an End User to cancel on orders on the Grab App; or iii) or Good are unavailable following the commencement of a transaction.

9.9 Payment/Remittance Method: All payments and remittances under this Agreement shall be affected through such payment/remittance arrangements as may be separately agreed between GRAB and Merchant, such as GrabPay (if applicable).

10. TAXES 

10.1 If applicable, Merchant shall be the “retailer” or “seller” of all Goods for the purpose of any VAT and the responsible party for collection and remittance of applicable VAT. For the sake of clarity, the Retail Price for each Goods shall include VAT. All fees under this General Terms and Conditions and Agreement shall be paid in Thai Baht.

10.2 Each Party shall be responsible for its own taxes arising from the execution and performance of its obligations under this General Terms and Conditions and/or Agreement. For the avoidance of doubt, Service Fee payable to GRAB shall include VAT and less withholding tax, and Merchant is responsible for issuing and deliver to GRAB withholding tax certificate for relevant Service Fee paid to GRAB within 15 (fifteen) days from the remittance date of relevant Goods Revenue.

10.3 Merchant shall be responsible for stamp duty (if applicable) arising from the execution of this General Terms and Conditions and/or Agreement. 

10.4 Unless otherwise specified herein, any amounts under this General Terms and Conditions and Agreement will be payable without deduction or withholding for or on account of any present or future taxes, duties or governmental charges of any nature whatsoever imposed, levied, or collected by or on behalf of the government of Thailand by or on behalf of any political subdivision or authority therein having power to tax, unless such deduction or withholding is required by law.

11. RETURNS AND REFUNDS

11.1 GRAB will exercise its discretion to determine whether an End User will receive an adjustment, or replacement, refund or  any other methods as determined by Grab and or to require Merchant to reimburse GRAB, if GRAB is of the view that Merchant is liable to do so in accordance with the Agreement.

11.2 Where GRAB has refunded or paid any such aforementioned amount (whether on behalf of Merchant or otherwise), such amount will be recoverable by GRAB from Merchant as a debt due from Merchant and GRAB will be entitled to deduct such amount from amounts payable to Merchant, or by other methods at GRAB’s election. 

11.3 Merchant will promptly notify GRAB of any threat of a public or private recall by the manufacturer or distributor. Parties agree, GRAB shall not be liable for any damages and loss associated with the recalled Goods.

11.4 In cases of an Inadequate Goods, Merchant shall immediately inform GRAB, in order for GRAB to inform the End User.  

11.5 GRAB has no obligation to accept the return of any Goods. 

11.6 The End User may go to Merchant’s store to exchange Goods, however, GRAB shall not be obligated to refund any amounts to Merchant or End User. For avoidance of doubt, such arrangements are between Merchant and End User, GRAB shall not be liable or take accountability of any arrangements outside of this Agreement and GRAB shall be entitled to charge the respective Service Fee subject to Clause 9.1.

11.7 GRAB will not be responsible for any risk or liable for any claims, demands, liabilities, expenses, losses, cost or damage in connection with any Failed Delivery and/defective Goods (including due to a threatened recall). GRAB reserves the right to claim all costs incurred by GRAB which resulted from Merchant’s breach of this Agreement or negligence.                                     

12. INTELLECTUAL PROPERTY 

Subject to the terms and conditions of this General Terms and Conditions and Agreement, each Party (as the licensor or the licensee who has a legitimate right to use and sub-license the Marks, as the case may be) (“Licensor”) hereby grants to the other Party (and, in the case of GRAB, to its Affiliates) (“Licensee”) a limited, non-exclusive and non-transferable license during the term of this Agreement to use such Party’s respective Marks (as defined below), on a royalty-free basis, in Thailand and for the sole purpose of performing the Licensee’s obligations (including but not limited to marketing and publicity in Clause 8)  under this General Terms and Conditions and Agreement. For purposes of this General Terms and Conditions and Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable Party. All uses of a Party’s Marks by the other Party will be in the form and format specified or approved by the owner of such Marks. Except as expressly set forth herein, neither Party shall use the other Party’s Marks without the prior, express, written consent of the other Party. All goodwill related to the use of a Party’s Marks by the other Party shall inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither Party shall be deemed to grant the other Party any license or rights under any intellectual property or other proprietary rights.

13. REPRESENTATIONS AND WARRANTIES

13.1 Each Party represents and warrants to the other that:

13.1.1 it has the capacity and power to enter into and perform and comply with the obligations under this Agreement;

13.1.2 this Agreement constitutes its valid and binding obligations and is enforceable against it in accordance with the terms hereof;

13.1.3  its 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 it is subject or (ii) any agreement to which it is a party or which is binding on it or its assets;

13.1.4 it is not in default of any agreement to which it is bound which may materially and adversely affect its financial condition or its ability to perform any obligations under this Agreement nor are there any actions, proceedings, claims, litigation or arbitration pending or threatened against it which may have a similar or analogous effect; and

13.1.5 it is compliance with and holds all applicable licenses and permits required under applicable law and regulation (including but not limited to food safety regulations); 

13.1.6 each person who represents and binds it to this Agreement is authorized to so represent and bind it; and

13.1.7 all content, media and other materials used or provided under this Agreement shall not infringe or otherwise violate the Intellectual Property Rights of any third party.

13.2 Each Party warrants that the representations and warranties in Clause 13.1 shall continue to be true for so long as this Agreement subsists and any Service Fee remains outstanding and unpaid and shall promptly notify each Party in the event any of the representations or warranties become untrue in any way or form.

13.3   Merchant warrants and represents that it shall not use GrabMart and/or the Grab App for any illegal purpose (including the transportation of drugs, doing any action being contrary to public order and good morals). 

14. TERMINATION AND SUSPENSION

14.1 Either Party may terminate this General Terms and Conditions and Agreement by giving to the other Party not less than thirty (30) days’ written notice (including email) prior to the effective date of the termination as specified in the notice. 

14.2 At any time, GRAB may, upon giving written notice (including email) to Merchant, immediately terminate this General Terms and Conditions and Agreement or temporarily suspend the Services, if:

14.2.1 GRAB suspects that there is any unlawful, illegal and/or fraudulent act committed by Merchant and/or its employees or agents;

14.2.2 Merchant repeatedly receives bad reviews from End Users or complaints of failure to fulfil orders for Goods; or

14.2.3 Merchant is in violation of any consumer Goods safety or other regulations relating to Stores and/or Goods.

14.3 At any time, either Party may, upon giving written notice (including email) to the other Party, immediately terminate this General Terms and Conditions and 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 General Terms and Conditions and Agreement.

14.4 The termination of this General Terms and Conditions and Agreement shall not relieve or limit each of the Parties from its obligations, responsibilities and liabilities accruing prior to such termination. 

15. INDEMNITY

15.1 Each Party (the “Indemnifying Party”) shall indemnify, defend and hold harmless the other Party, its Affiliates and their respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any Third-Party Claim arising out of or related to: (a) the negligence or willful misconduct of the Indemnifying Party and its employees or agents in their performance of this General Terms and Conditions and Agreement; (b) any claims that the Indemnifying Party breached its representations and warranties in this General Terms and Conditions and Agreement; (c) any claims that the Indemnifying Party’s Marks infringe a third party’s Intellectual Property Rights, as long as such Marks have been used in a manner approved by the Indemnifying Party; or (d) any breach and/or non-compliance with applicable data protection laws. In addition, Merchant shall indemnify, defend and hold harmless GRAB Indemnified Parties from and against any and all Losses with respect to any Third-Party Claim arising out of or related to any harm resulting from Merchant’s violation or alleged violation of any applicable goods or other health and safety code, rule or regulation, except to the extent such harm was directly caused by the gross negligence or willful misconduct of GRAB or its employees.

15.2 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.

16. LIMITATION OF LIABILITY

16.1 Grab App, GrabMart and the Services are provided on an “as is” basis. Except as expressly provided for in the Agreement, GRAB makes no other representations or warranties of any kind, express or implied, including: i) the implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement; ii) that the Grab App, GrabMart and the Services will meet Merchant’s requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error; iii) that the information, content, materials, or products included on Grab App and GrabMart will be as represented by GRAB, available for sale on a timely manner, lawful to sell, or that GRAB or the End Users will perform as promised; iv) any implied warranty arising from course of dealing or usage of trade; and v) any obligation, liability, right, claim, or remedy in tort, unless arising from acts of fraud, negligence or wilful misconduct by GRAB. Merchant acknowledges that any information and any materials provided by or through the Grab App, GrabMart and the Services may contain inaccuracies or errors and GRAB expressly excludes liability for any such inaccuracies or errors to the fullest extent permitted by the laws. Any link found on Grab App is provided for Merchant’s convenience to provide further information. It does not signify that GRAB endorses the contents thereof and GRAB has no responsibility for the content of external links.

16.2 Subject to Clause 16.1,  Merchant hereby agrees on its behalf and on behalf of End Users to release GRAB (and its agents and employees) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected therewith, provided such release will not apply where actual claims, demands or damages arise due to GRAB ‘s fraud, negligence or willful misconduct.

16.3 GRAB shall not be liable for any typographical clerical or other error or omission in any acceptance, invoice, Content Material or other document on the part of GRAB and shall be subject to correction without any liability to GRAB.

16.4 To the fullest extent permitted by the laws, and notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of GRAB and GRAB’s affiliates and their respective officers, directors, partners, employees and contractors, and any of them, to Merchant and anyone claiming by or through Merchant, for any and all claims, losses, costs or damages, including attorneys’ fees and costs and expert-witness fees and costs of any nature whatsoever or claims expenses resulting from or in any way related to the Agreement from any cause or causes, it shall not exceed the Service Fee that GRAB is entitled to receive from Merchant for the month preceding the date the liability arose, or to an equivalent amount of 30,000  Baht(Thirty Thousand Baht) (whichever lower). It is intended that this limitation apply to any and all liability or cause of action however alleged or arising, unless otherwise prohibited by the laws.

17. CONFIDENTIALITY

17.1 The Parties agree that during the term of this General Terms and Conditions and Agreement, the Receiving Party may receive the Confidential Information from the Disclosing Party. The Receiving Party may use the Disclosing Party’s Confidential Information solely to fulfil its obligations and/or exercise its rights under this General Terms and Conditions and/or Agreement. The Confidential Information shall be held in strict confidence by the Receiving Party, and shall not be disclosed to any third party (other than its directors, management, officers, employees, auditors and professional advisors, who have a need to know the Confidential Information for the purpose of this General Terms and Conditions and Agreement), directly or indirectly, without prior written consent of the Disclosing Party, during the term of this General Terms and Conditions and/or Agreement or after the termination of this General Terms and Conditions and Agreement. This obligation does not apply to information (i) that is already in the public domain through no breach of confidentiality or (ii) that is required to be publicly disclosed pursuant to applicable laws, regulations, rules, ordinances, orders of court, any relevant government entities, supervisory authorities or judicial proceeding, or (iii) that is disclosed to the public through no fault of Receiving Party or its agents acting on its behalf hereunder, or (iv) information that is disclosed to the Receiving Party by a third party not under confidentiality obligation.  

17.2  The above confidentiality obligations shall endure for one (1) year after the expiry or termination of this General Terms and Conditions and/or Agreement or until the Confidential Information enters the public domain, whichever is earlier.

18. PERSONAL DATA

18.1 Both Parties shall comply with their respective obligations under all applicable Data Privacy laws and related regulations in relation to this General Terms and Conditions and/or Agreement.

18.2 To the extent applicable, the Merchant represents and warrants that:

18.2.1 Merchant shall use, disclose, store, retain or otherwise process GRAB Personal Data solely for the purposes of performing its obligations under this Agreement. Without prejudice to the generality of the foregoing, Merchant shall not use GRAB Personal Data for direct marketing purposes;

18.2.2 Merchant agrees to access GRAB Personal Data provided to the Merchant by GRAB for the purposes of performing its obligations under this Agreement solely by using the Order Equipment or such other tools provided by GRAB. Merchant shall not, directly or indirectly, extract, make a copy of, or retain any Personal Data made available to it by Grab;

18.2.3 Merchant shall protect GRAB Personal Data against unauthorised or accidental access, collection, use, disclosure and destruction, and ensure that security measures are implemented to give such protection;  and 

18.2.4 Merchant shall notify GRAB in writing, without undue delay (and in any event, no later than twenty-four (24) hours) of it becoming aware of or suspecting that any of the events referred to in sub-clause (c) above has occurred and shall immediately take all necessary steps to remedy the event and prevent its recurrence

18.3 Merchant agrees and allows GRAB to collect, use, retain, disclose, or otherwise process Personal Data which is related to Merchant, for example, phone number or contact channel of Merchant’s agent and/or representative, etc., for the purpose of operation, performance under this Agreement, marketing and/or promotional activities. This includes the collection, use, retention, or processing of Merchant’s Personal Data by any of GRAB’s affiliates in relation to GRAB services, any business partner or other third party in relation to laws, regulations, and marketing purposes.

18.4 Merchant agrees and allows GRAB to collect Personal Data of Merchant for testing, experiment, analysis and development of GRAB’s products in order to understand and analyze needs and satisfaction of Merchant, improve and develop safety and sustainability of GRAB’s services.

19. FORCE MAJEURE

The Parties are released from responsibility as to their obligations (except for payment obligations) and delay of work as consequence of Force Majeure (including but not limited to Covid-19 pandemic). If the event of Force Majeure persists for a period exceeding sixty (60) days (or other period as mutually agreed by the Parties) and both Parties had negotiated in good faith and did not settle on a suitable resolution within a reasonable time (no later than fifteen (15) days), then either Party shall be entitled to terminate this General Terms and Conditions and/or Agreement by written notice (including email) to the other Party.

20.     SEVERABILITY

20.1 The invalidity or unenforceability for any reason of any part of this General Terms and Conditions and/or Agreement shall not prejudice or affect the validity or enforceability of the remainder of this General Terms and Conditions and/or Agreement.

20.2 If further lawful performance of this General Terms and Conditions and/or 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 General Terms and Conditions and/or Agreement so as to comply with such judgment or order.

21.   COSTS AND EXPENSES

Save as otherwise stated in this General Terms and Conditions and/or Agreement, each Party shall be liable for its own costs and expenses in relation to the negotiation, preparation, execution and performance of this General Terms and Conditions and/or Agreement.

22.   ASSIGNMENT

Neither Party is entitled to assign or transfer its rights and/or obligations (either in whole or in part) to any person, unless with the prior written consent of the other Party, except that Merchant agrees that GRAB may assign and/or transfer any of its rights and/or obligations under this General Terms and Conditions and/or Agreement and to any Affiliate of GRAB without Merchant’s consent. In this regard, Merchant agrees to use its best efforts to provide necessary cooperation to GRAB and take necessary or relevant action as requested by GRAB and it is agreed by the Parties that such assignment and/or transfer any of the rights and/or obligations under this General Terms and Conditions and/or Agreement shall be legally effective. 

23. NOTICES

Unless otherwise specified in this General Terms and Conditions and/or Agreement, all notices issued or served under this General Terms and Conditions and/or Agreement shall be in writing (including email), and shall be considered to have been given if hand delivered to the other Party’s representative, sent by registered post or email to the other Party at the address or email address for that Party specified in the General Terms and Conditions and/or Agreement, or other address or email address as a Party may notify to the other Party.

24. COUNTERPARTS AND ELECTRONIC SIGNATURES

This General Terms and Conditions and Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same General Terms and Conditions and Agreement. The counterparts of this General Terms and Conditions and Agreement may be executed and delivered by any electronic means (including email) by any Party the other Party and the receiving party may rely on the receipt of such document so executed and delivered by any electronic means (including email) as if the original had been received.

25.   DISCREPANCIES

This Agreement, the General Terms and Conditions and its amendment(s) (if any) hereto constitute the sole and exclusive agreement between the Parties relating to the subject matter hereof, and supersede all prior agreements, correspondence, negotiations, representations, expressions of intention relating to the subject matter hereof, whether in writing or oral between the Parties. In the event of any discrepancies between this General Terms and Conditions and the provisions of the Agreement, the provisions of this General Terms and Conditions shall prevail, unless otherwise mutually agreed by the Parties.

26. AMENDMENT

BY USING Grab App (the property of Grab), YOU AGREE TO THESE this General Terms and Conditions.

Grab reserves the right, at its sole discretion, to change, modify, add or remove portions of these this General Terms and Conditions, at any time. It is Merchant responsibility to check this General Terms and Conditions periodically for changes. Grab shall inform changing detail of this General Terms and Conditions to Merchant 30 days in advance via method considered by Grab. (Including via email)

After, Merchant continued use of Grab App following the posting of Grab informing will mean that Merchant accept and agree to the changes.

27. GOVERNING LAW AND DISPUTE RESOLUTION

The Parties agree to make every effort to settle amicably any dispute, controversy or claim arising under or relating to this General Terms and Conditions and/or Agreement through good faith negotiations. If the Parties fail to reach a settlement within thirty (30) days (or other period as mutually agreed by the Parties) from the date that the dispute, controversy or claim first arose, the Parties agree to submit such dispute to the non-exclusive jurisdiction of the Thai courts. This General Terms and Conditions and/or Agreement shall be governed by and construed in accordance with Thai laws.