Seller Policy Pages
1. Definitions and Interpretation
1.1 The following terms when used in the Agreement
(including these General Terms and Conditions) or any document referred to
herein shall have the following meaning, unless otherwise specifically defined
herein or therein:
“Agreement” means the wayaya Merchant Registration Form
to which these General Terms and Conditions are attached to, including any
schedules, appendices or other attachments attached to any of the foregoing,
including all amendments, additions, and variations thereto;
“Applicable Law” means any applicable law, statute,
regulation, order, judgement, or guideline passed or issued by parliament,
government or any competent court or authority in Malaysia existing at this
time or in the future;
“Business Day” means any day other than a Saturday,
Sunday or a public holiday in Kuala Lumpur, Malaysia;
“Contributions” has the meaning ascribed to it in Clause
6 of this General Terms and Conditions;
“Customer Account” means the Customer’s registered
account(s) on the Wayaya Platform;
“Driver” means the party conducting delivery of the
Products ordered by the Customers through wayaya Platform;
“Effective Date” means the date of which Wayaya approves
the wayaya Merchant Registration Form submitted by the Merchant;
“Merchant Outlet” means a restaurant or place of business
that is owned, managed, and registered by the Merchant to enable the wayaya
Services as can be amended and added from time to time based on the agreement
of the Parties;
“Merchant Particulars” means the Merchant’s details set
out in the Agreement;
“Merchant SOP” means Standard Operating Procedures for
Use of wayaya Services for Merchants, as can be amended from time to time at
the sole discretion of Wayaya with or without any notification;
“Merchant Wallet” means the Merchant’s funds account(s)
held with Wayaya to hold Transaction Funds;
“Net Sales” means the total price of the Products in the
Transaction excluding any taxes (including but not limited to any sale and
services tax): (a) after the deduction of any discounts from the Merchant on
the wayaya Platform; and (b) excluding, Merchant’s service charge, Merchant’s
surcharge, and other fees (if any and as applicable) as recorded on Wayaya’s or
its affiliates’ system;
“Order” means the order of the Products made by the
Customers on the wayaya Platform;
“Parties” means, collectively, Wayaya and the Merchant
and “Party” means either one of them;
“Products” means the food and/or beverages sold by the
Merchant through wayaya Platform;
“Service Fee” has the meaning ascribed to in Clause 7.1
of this General Terms and Conditions;
“Wayaya Platform” means e-commerce platform through
mobile application or website (www.wayaya.shop) operated by Wayaya;
“wayaya Platform” means the food order and delivery
platform operated by Wayaya on the Wayaya Platform for the provision of wayaya
Services;
“wayaya Services” means a food order and delivery platform
services where Merchant is able to sell its Products and the Customers can
order the Products, through wayaya Platform, where the delivery may be
conducted by the Drivers or any other method as determined by Wayaya;
“Transaction” means any transaction by the Customers of
ordering and payment of Products from Merchant through wayaya Platform; and
“Transaction Funds” means the total amount paid by the
Customers for a Transaction through the wayaya Services on the wayaya Platform.
1.2 In the Agreement (including these General Terms and
Conditions):
(a) a reference to a statutory provision shall include
that provision and any regulations made in pursuance thereof as from time to
time modified or re-enacted, whether before or after the date of the Agreement
and shall include also any past statutory provision or regulation (as from time
to time modified or re-enacted) which such provision or regulation has directly
or indirectly replaced;
(b) a reference to “written” or “in writing” includes any
means of visible reproduction;
(c) a reference to “including” shall be interpreted to
mean “including, without limitation”;
(d) a reference to a “Clause” or “Schedule” is to a
clause of, or a schedule to, these General Terms and Conditions (unless the
context otherwise requires); and
(e) unless the context otherwise requires, words
importing the singular shall include the plural and vice versa and words
importing a specific gender shall include the other genders (male, female or
neuter).
1.3 The headings in the Agreement (including these
General Terms and Conditions) are inserted for convenience only and shall not
affect the construction of the Agreement.
2. Scope
The Agreement, to which these General Terms and
Conditions are attached, contains the terms for the provision of the wayaya
Services (which may be amended from time to time).
3. Term
The Agreement shall continue in full force and effect for
1 (one) year as of the Effective Date, and shall be automatically renewed for
succeeding terms of 1 (one) year each unless either Party gives written notice
to the other Party at least thirty (30) days prior to the expiration of any
term.
4. Description of wayaya Services
4.1 Merchant acknowledges and agrees that the wayaya
Services provided by Wayaya are limited to (a) referring Customers to Merchant;
(b) as an intermediary between the Customer and the Merchant, accepting Orders
and receiving payments from Customers on Merchant’s behalf; and (c) as an
intermediary between the Customer and the Merchant, including communicating
Orders and disbursing payments from Customers to Merchant. Wayaya may carry out
changes to wayaya Services, or suspend the wayaya Services, without notice at
its sole and absolute discretion.
4.2 Wayaya shall present on wayaya Platform the range of
Products offered by the Merchant, to the extent that it has been communicated
to Wayaya and it meets the criteria determined solely by Wayaya and
communicated to Merchant.
4.3 Merchant shall provide Wayaya with all information
necessary for Wayaya to present the Products offerings on wayaya Platform,
including menus, Products, availability of Products at any Merchant Outlets,
operating hours and location of Merchant Outlets, logo, images, prices, and
company identity as required by Wayaya (“Necessary Information”). For the
avoidance of doubt, in the event that the Merchant fails to provide Wayaya with
the Necessary Information, Wayaya shall be entitled to use any information
available to Wayaya, including any images relating to the Product on the wayaya
Platform. Any changes to such information must be communicated by Merchant to Wayaya
at the latest seven (7) business days before the changes take effect.
4.4 Merchant shall verify the information published by Wayaya
on an ongoing basis, and immediately notify Wayaya of any mistakes or
inaccuracies (within 1 hour of discovering such mistakes or inaccuracies). For
the avoidance of doubt, Merchant’s menu, Products, logo, images, prices,
company identity and other relevant information of the Merchant may be
published on the wayaya Platform and other medias (including, but not limited
to, Twitter, Facebook and Google AdWords campaign).
4.5 Merchant acknowledges and agrees that Wayaya does not
provide transportation services, or act as the transportation provider,
courier, postal services provider, deliver service provider, supplier of food
and beverages, or the agent of any party. Wayaya makes no representations or
warranties and does not ensure the quality, safety and/or legality of any
Products. Wayaya does not guarantee the identity of any Customers or ensure
that a Customer will complete a Transaction.
4.6 Merchant acknowledges and agrees that the actual
contract for the sale of the Products is directly between Merchant and the
Customers, and Wayaya is not a party to such contracts, and accepts no
responsibility, liability, or obligations in connection with any such contract
and any dispute arising out of any Product is between the Merchant and the
relevant Customers only.
4.7 The Merchant is required to deal with any refund
and/or claim settlement, including, but not limited to, chargebacks, resulting
from the Transaction. Wayaya may assist the Merchant in the refund and/or claim
settlement procedures and the Merchant further agrees that Wayaya may, at its
sole and absolute discretion, refund the Customer the Transaction Funds without
the prior approval of the Merchant.
4.8 Wayaya reserves the right to suspend a specific
Transaction and/or a Customer Account and/or the Merchant Wallet and/or the
wayaya Services if Wayaya believes that any of the following circumstances has
occurred:
(a) where Wayaya believes it is necessary or desirable to
protect the security of the Customer Account and/or the Merchant Wallet and/or
the wayaya Services;
(b) Wayaya believes that a Transaction is (i) made in
breach of the terms hereof or in breach of the security requirements of the
Customer Account and/or the Merchant Wallet and/or the wayaya Services; or (ii)
a suspicious, unauthorized or fraudulent transaction related to, including, but
without limitation to, money laundering, terrorism financing, fraud or other
illicit activities;
(c) if the Transactions are for the sale of goods and/or
services which fall outside of the agreed Products or business activities of
the Merchant or deemed to be against the Applicable Law;
(d) if the Merchant engages in prohibited activities as
specified in the Merchant SOP or any other policies of Wayaya or any Applicable
Law; or
(e) otherwise in connection with Wayaya’s compliance with
any Applicable Law.
4.9 Wayaya, at its sole discretion, may provide periodic
education to the Merchant on the development of the wayaya Services, including
any changes or addition of facilities of wayaya Services.
4.10 Wayaya reserves the right to deduct the Service Fee
that Wayaya is entitled to and the Contributions (if any) from the Transactions
Funds for the provisions of wayaya Services through wayaya Platform.
4.11 If Wayaya provides any equipment, including, but not
limited to, an Electronic Data Capture (EDC), to the Merchant in connection
with the provision of wayaya Services (the “Device”), the Merchant agrees that
it shall be responsible for such Device and is obliged to return it to Wayaya
in good condition after termination of wayaya Services. Further details on the
use of, technical and operational support and/or issues settlement related to
the Device may be provided by Wayaya in the Merchant SOP and/or published by Wayaya
in Wayaya Platform which shall apply and bind the Parties.
5. Obligations
5.1 The Merchant shall register as a merchant using the
wayaya Merchant Registration Form or in any other manner to be determined by Wayaya.
The Merchant shall integrate the wayaya Services into the Merchant Outlet and
operate the same in accordance with Wayaya’s instructions and policies (as may
be amended from time to time).
5.2 The Merchant shall not permit any Transaction of any
Products or items that are prohibited and restricted under Applicable Law or Wayaya’s
policies.
5.3 The Merchant shall retain records relating to a
Transaction for at least seven (7) years from the date on which such
Transaction occurred.
5.4 The Merchant shall conduct its business and operate
the Merchant Outlet in compliance with Applicable Laws and shall ensure that
its business activities are not prohibited by the Applicable Laws.
5.5 The Merchant shall at all times have all relevant
licences and permits to conduct the Merchant’s business, including any food
safety laws and regulations. If the Merchant is aware of any violations of its
business or its business is found to be in violation of any Applicable Laws by
the relevant authorities, the Merchant must notify Wayaya immediately (no more
than one (1) hour upon receiving the notification).
5.6 The Merchant represents and warrants to Wayaya that:
(a) to its knowledge, it is not receiving funds in
connection with any illegal, fraudulent, deceptive or manipulative act or
practice and that the Merchant is not sending or receiving funds to or from an
illegal source. To the extent that the Merchant becomes aware of any such
transaction, the Merchant agrees to notify Wayaya immediately to suspend any
such transaction and/or the Customer Account(s) and/or the Merchant Wallet;
(b) the information published on wayaya Platform relating
to the Products offerings satisfy all legal requirements, including all
information relevant to the protection and welfare of Customers and any laws
and regulations related to sales of food;
(c) the information provided by Merchant to Wayaya is
current and accurate and does not violate any third party’s intellectual
property rights;
(d) the Products provided, prepared and sold to Customers
are of merchantable quality and safe for consumption, and their storage,
production and preparation comply and will comply with all relevant retail,
restaurant, and food safety regulations and the quality or criteria set by Wayaya
and any Applicable Laws;
(e) it possesses all licences required by prevailing laws
and regulations and that there are no ongoing criminal, bankruptcy or tax
proceedings or other penalties outstanding in relation to Merchant’s business
operations; and
(f) It will not ask for data and/or information from
Customers or other parties through any means on behalf of Wayaya and/or its
affiliates without prior written approval from Wayaya and / or its affiliates.
5.7 In the event any of the Products are spoiled,
defective, or which results in food poisoning, allergies or other effects that
will harm any Customer, Merchant will be fully responsible and/or legally
liable for such incident and it shall release and indemnify Wayaya from any
claims, damages or losses related to such matter.
5.8 Neither the Merchant nor any director or officer of
the Merchant is an individual or entity (“Person”) that is or is owned or
controlled by a Person that is currently the subject of any sanctions
administered or enforced by the applicable governmental authority in Malaysia
(collectively, “Sanctions”), nor located, organized or resident in a country or
territory that is currently the subject of Sanctions. The Merchant shall not
use the wayaya Services in any manner that will result in a violation of
Sanctions by any parties. The Merchant and its subsidiaries and affiliates have
not knowingly engaged in, and will not engage in, any dealings or transactions
with any Person or any parties, or in any country or territory, that at the
time of the dealing or transaction is or was the subject of Sanctions.
5.9 The Merchant agrees that it and its affiliates shall
conduct business in compliance with Applicable Laws relating to anti-corruption
laws and shall not take any action, directly or indirectly, that would result
in a violation of such laws, including, but not limited to, providing,
offering, or promising, directly or indirectly, anything of value to any
governmental authority or government official that would result in a breach of
any such laws. The operations of the Merchant and its affiliates shall be at
all times in compliance with all material aspects with Applicable Laws relating
to anti-money laundering and financial recordkeeping and reporting
requirements.
5.10 The Merchant shall not:
(a) decode or do any reverse engineering of Wayaya or
wayaya Platform’s system;
(b) perform any actions that may cause damages and/or
disruptions to Wayaya or wayaya Platform’s system; or
(c) perform any actions that aim to duplicate, replicate
and/or steal the information and/or data of wayaya Services, Wayaya and/or the
Customers.
5.11 The Merchant agrees to participate in wayaya
promotional and marketing activities, including co-funding campaigns
(“Campaigns”) organized by Wayaya (“Promotions”). In the event that the
Merchant wishes to withdraw from participating in the Promotions, the Merchant
shall notify Wayaya’s customer services of its intentions and complete the
opt-out form. Wayaya shall process the withdrawal request within fourteen (14)
days from the receipt of the completed opt-out form.
5.12 The Merchant shall be responsible to keep
confidential any and all identifications, passwords, personal identification
numbers (PINs), or any other codes to access the Merchant Wallet. The Merchant
shall be fully responsible for all activities that occur under its Merchant
Wallet even if such activities or uses were not committed by the Merchant. Wayaya
shall not be liable for any loss or damage arising from unauthorized use of the
Merchant’s credentials or the Merchant’s failure to comply with this clause.
6. wayaya Co-Funding Campaigns
Where the Merchant has participated in the Campaigns, the
Merchant’s contributions to the Campaigns (“Contributions”) shall be based on
each of the Net Sales recorded in Wayaya’s system. Wayaya shall notify the
Merchant of its share of Contributions in respect of the relevant Campaigns via
e-mail or any other means as may be determined at the sole discretion of Wayaya.
7. Fees and Taxes
7.1 In consideration for the wayaya Services provided by Wayaya,
Merchant shall pay Wayaya a service fee (“Service Fee”) as set out in the
wayaya Merchant Registration Form. The Service Fee shall be charged on each of
the Net Sales based on a successful Transaction recorded in the Wayaya system.
The Service Fee shall be exclusive of any service and sales tax (SST) and the
Merchant shall be responsible for any taxes charged by Wayaya for the Service
Fee.
7.2 Terms of the settlement of the Transaction funds
after deduction of the Service Fee, Contributions (if any) and/or other fees
(if any) will be further provided in the Merchant SOP and shall be subject to
change at the sole discretion of Wayaya.
7.3 The Merchant hereby authorizes Wayaya and/or its
affiliates to initiate debit or credit entries to the Merchant Wallet at any
time by written notice to the Merchant, unless otherwise stipulated by
Applicable Law, based on certain reasons, which include the following:
(a) to correct any errors in the processing of any
Transaction and/or instruction provided by Merchant to Wayaya, including, but
not limited to, double payout;
(b) where Wayaya has determined that the Merchant has
engaged in any fraudulent or suspicious activity and/or Transaction;
(c) in connection with any rewards or rebates;
(d) in connection with any uncharged fees or
Contributions (if any);
(e) in connection with the settlement of any Transaction
dispute, including any compensation due to, or from, the Merchant; and
(f) any other reasons relevant to any Transaction as determined
by Wayaya in the future.
7.4 Wayaya may, at its sole discretion, amend the Service
Fee, Contributions or any other applicable fee or include any additional fee at
any time by written notice to the Merchant.
7.5 The Merchant shall be responsible for all taxes,
duties, fees and other charges arising out of, or associated with, the supply
of the Products or its business (“Taxes”) and undertakes to pay all such Taxes
in a timely manner. In the event that the Merchant does not pay Taxes, and such
Taxes and (if applicable) any associated penalties are required to be paid by Wayaya,
Wayaya shall be entitled to recover such amounts paid by Wayaya.
8. Intellectual Property Rights
8.1 Wayaya and/or its licensors reserve and shall retain
its entire right, title and interest in all copyrights, trademarks and other
intellectual property rights therein and relating thereto, except as expressly
granted to the Merchant in the Agreement.
8.2 The Merchant grants Wayaya, for the term of the Agreement
only, a worldwide, non-exclusive, royalty-free, non-transferable licence to
copy, use and display any logo, trademark, trade name or other intellectual
property owned by, or licensed to the Merchant for the purpose of implementing
the Agreement. The Merchant hereby warrants and represents that it owns or has
the right to use and sub-license any intellectual property which it uses or
licenses for use to Wayaya.
8.3 Merchant represents and warrants that it owns or is
the legal licencee of all intellectual property rights used under the
Agreement, free from any infringement or violation of any third-party ownership
or intellectual property rights, and that no other party will claim to have the
same ownership of such intellectual property rights.
8.4 All reports, specifications, and other similar
documents compiled or prepared in the course of the Agreement, including
documents, materials produced in respect of the wayaya Services and any
derivation of any intellectual property rights granted by any Party shall be
the absolute property of such Party throughout their preparation and at all
times thereafter. For the avoidance of doubt, the intellectual property rights
subsisting in all reports, specifications and other similar documents set out
in this clause shall at all times remain vested in the relevant Party.
8.5 Each Party warrants to the other Party that it will
not use any other Party’s trademark for any marketing activities, including,
but not limited to, promotional activities without prior written consent from
the other Party. Notwithstanding the above, Wayaya shall be entitled to use the
Merchant’s trademark to promote the wayaya Services and related promotion in
all platforms across all media worldwide.
9. No Warranty
9.1 THE wayaya SERVICES ARE PROVIDED “AS-IS” AND WITHOUT
ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. Wayaya
AND ANY OF ITS SUBSIDIARIES AND AFFILIATES, OFFICERS, DIRECTORS, AGENTS, JOINT
VENTURES, EMPLOYEES AND SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES
OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. Wayaya DOES NOT HAVE ANY CONTROL OVER PRODUCTS THAT ARE PAID
FOR THROUGH THE wayaya SERVICES. Wayaya DOES NOT GUARANTEE CONTINUOUS,
UNINTERRUPTED OR SECURE ACCESS TO ANY PART OF THE FOOD SERVICES, AND OPERATION
OF Wayaya SITE MAY BE TEMPORARILY SUSPENDED FOR MAINTENANCE OR UPGRADE OR
INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF Wayaya’S CONTROL. Wayaya
WILL MAKE REASONABLE EFFORTS TO ENSURE THAT wayaya SERVICES ARE PROCESSED IN A
TIMELY MANNER BUT Wayaya MAKES NO REPRESENTATIONS AND WARRANTIES REGARDING THE
AMOUNT OF TIME NEEDED TO COMPLETE PROCESSING.
9.2 Wayaya shall not be liable for any of the following:
(a) any suspension or refusal to accept payments which Wayaya
reasonably believes to be made fraudulently or without proper
authorization;
(b) the payment instructions received contain incorrect
or improperly formatted information;
(c) hardware, software, mobile device and/or internet
connection is not functioning properly due to, including, but not limited to,
viruses, disruptions or other forms of system disruption such as unauthorized
access by third parties; or
(d) any circumstances as specified in Clause 4.8.
10. Confidentiality and Personal Data
10.1 Each Party shall keep confidential and shall not
disclose to any person or use directly or indirectly for its own or any other
person’s benefit (other than for the due performance by it of its obligations
under the Agreement), any Confidential Information disclosed, made available or
otherwise provided to the receiving Party by or on behalf of the disclosing
Party. “Confidential Information” means any information having been designated
in writing to be confidential or proprietary or if given orally, is confirmed
promptly in writing as having been disclosed as confidential or proprietary or
otherwise by the disclosing Party to the recipient including any Personal Data,
all subscriber information (including viewing patterns, viewing details,
quantity, time or duration of usage of equipment or viewing of the content),
details (including contact details, telephone numbers, network configuration,
location information, billing name, billing amounts, credit history and other
payment details), information of a commercial, technical or financial nature
relating to the Agreement, the disclosing Party or any of its affiliates
including all trade secrets, know-how, show-how, patents research, development or
technical information, confidential and proprietary product or information,
intellectual property rights, business plans, operations or systems, financial
and trading positions, details of customers, suppliers, debtors or creditors,
information relating to the officers, directors or employees of the disclosing
Party or any of its affiliates, marketing information, printed matter, rates
and rate tables, contracts, all regardless of form, format or media whether
machine readable or human readable, including written, oral or tangible form
and also includes information communicated or obtained through meetings,
documents, correspondence or inspection of tangible items. This clause shall
not apply to any Confidential Information which at the time it is disclosed,
made available or otherwise provided by the disclosing Party, is in the public
domain and shall cease to apply to any information which subsequently becomes
publicly available otherwise than as a consequence of any breach by the
receiving Party.
10.2 The receiving Party may disclose Confidential
Information to (a) its directors and employees to the extent that their duties
will require them to have access to such Confidential Information, provided
that the receiving party shall instruct such directors and employees to treat
such Confidential Information as confidential and not use such Confidential
Information for any purpose other than the proper discharge by them of their
duties; and (b) its external auditors, lawyers and professional advisers, and the
receiving Party shall ensure that the persons to whom such disclosure is made
are contractually bound by the provisions of this clause by the incorporation
of corresponding provisions of confidentiality in their employment and other
applicable contracts.
10.3 The Parties herewith shall comply with their
respective obligations as the Data User and the Data Processor as required
under all Applicable Laws and the privacy policy available on Wayaya Platform
in connection with any Personal Data in relation to the Agreement. For the
purposes of the Agreement, “Personal Data” means personal data having the
meaning ascribed that are under the control of Data User and in respect of
which Data Processor is or is required to provide services for the performance
of the Agreement; “Data Processor” means in relation to Personal Data, any
person, other than an employee of the Data User, who processes the Personal
Data solely on behalf of the Data User, and does not process the Personal Data
for any of his own purposes; and “Data User” means a person who either alone or
jointly or in common with other persons processes any Personal Data or has
control over or authorizes the processing of any Personal Data but does not
include a Data Processor.
10.4 The confidentiality obligations under this Clause 10
shall survive the termination of the Agreement, and/or until the Confidential
Information enters the public domain.
11. Force Majeure
11.1 The Parties are released from responsibility to all
obligations and delay of work as consequence of Force Majeure. “Force Majeure”
means any extraordinary circumstances which is an unforeseeable, inevitable
event and/or beyond reasonable control of the Parties including but not limited
to epidemic or pandemic (except the epidemic/pandemic of Corona Virus Disease
2019 (Covid-19)), natural disaster, war, rebellion, aggression, sabotage, riot
of mass, and existence of governmental regulations in monetary affairs which
directly influence performance of the Agreement.
11.2 If either Party has delayed or is prevented from
performing its obligations hereunder as a result of an event of Force Majeure,
it shall promptly notify the other Party in writing as soon as possible after
the occurrence of such an event of Force Majeure.
12. Termination
12.1 Each Party may terminate the Agreement immediately
if:
(a) the other Party files a petition for bankruptcy,
becomes insolvent, or makes any arrangement or composition with or assignment
for the benefits of its creditors, or a receiver or an administrator is
appointed for such Party or its business, or the Party goes into liquidation
either voluntarily (otherwise than for reconstruction or merger) or
compulsorily;
(b) upon the occurrence of a material breach of the
Agreement by the other Party or if the non-defaulting Party believes that such
breach is capable of remedy and provides opportunity to remedy, but the breach
is not remedied within 30 (thirty) days from the date of notice of such breach
by the non-defaulting Party; or
(c) Wayaya suspects that there is any unlawful, illegal
and/or fraudulent act committed by Merchant and/or Merchant’s employees or
agents;
(d) the other Party violates or fails to comply with any
Applicable Law in a manner that may result in adverse effects on the
non-defaulting Party in any material respect, including any food safety or
other regulations relating to restaurants and/or meals; or
(e) by giving the other Party 30 (thirty) days’ prior
written notice for any or no reason.
12.2 The termination of wayaya Services shall not relieve
or limit either Merchant or Wayaya from its obligations, responsibilities and
liabilities accruing prior to such termination.
13. Assignment
13.1 The Merchant may not assign any of its rights under
the Agreement to any person without the prior written consent of Wayaya.
13.2 The Merchant may not permit other persons (other
than Customers) to use the wayaya Services without the prior written consent of
Wayaya.
13.3 The provisions of the Agreement shall be binding
upon the Parties and their respective successors and permitted assigns.
14. Relationship of the Parties; Driver as Independent
Contractor
14.1 Nothing in the Agreement shall be construed to
create a partnership, joint venture or agency relationship between the Merchant
and Wayaya. Neither Party has authority to enter into agreements of any kind on
behalf of the other Party.
14.2 The third-party agreement pursuant to which Drivers
agree to provide food delivery service to Customers is an independent agreement
between the Customer and the Driver, who is not an employee or agent of Wayaya.
Wayaya is only intermediary between the Customer and the Driver.
14.3 Wayaya does not provide any transportation services
and shall not be held responsible whatsoever to any of the Parties for any
Driver’s action, negligence, failure, lateness, or rejection to provide
transportation service.
14.4 Wayaya does not and shall not guarantee the safety,
reliability, compatibility, or capability of the Driver during the delivery of
his/her obligation in delivering the Products from Merchant Outlets to the
Customer. Therefore, Merchant hereby holds Wayaya harmless and discharge Wayaya
from any and all responsibility, claim, cause, or damage which occurs from such
delivery service by Drivers.
15. Indemnification
The Merchant shall fully indemnify and hold Wayaya, its
affiliates, and its and their respective officers, directors, employees, agents
and third party contractors (the “Indemnified Party”), harmless from any loss,
liability, costs and expenses (including full reimbursement of any legal and
professional costs) which the Indemnified Party suffers or incurs as a result
of, or in connection with, any claim made or threatened by a third party
relating to any Products, the use of Merchant of wayaya Services or wayaya
Platform and/or any breach of any provisions of the Agreement, except for
resulting from the negligence, bad faith or wilful misconduct on the part of Wayaya.
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. Governing Law; Dispute Resolution
The Agreement shall be governed by the laws of Malaysia.
In the event any dispute, controversy, claim or difference of any kind
whatsoever shall arise between the Parties in connection with this (“Dispute
Notice”), the Parties shall attempt, for a period of thirty (30) days after the
receipt by one (1) Party of a notice from the other Party of the existence of a
Dispute, to settle such Dispute in the first instance by mutual discussions
between the senior management of each of the Parties. If the Dispute cannot be
settled by mutual discussions within the thirty (30) days period, it shall be
referred to and finally resolved by arbitration administered by the Asian
International Arbitration Centre (“AIAC”) in accordance with the Arbitration
Rules of the AIAC for the time being in force, which rules are deemed to be
incorporated by reference in this clause. There will be one (1) arbitrator who
shall be jointly appointed by the Parties. If the Parties are unable to agree
on the arbitrator, the arbitration shall be appointed by the Director of the
AIAC in accordance with the AIAC Rules. The language of the arbitration shall
be English. The place and seat of arbitration shall be Kuala Lumpur, Malaysia.
Both Parties agree that Part III of the Arbitration Act 2005 shall not apply to
the Agreement or the arbitration proceedings arising out of the Agreement. The
Agreement and the rights and obligation of the Parties shall remain in full
force and effect pending the award in any arbitration proceeding hereunder,
save for the part in dispute and is to be determined in the arbitration
proceeding.
17. Notices
17.1 All notices under the Agreement shall be made by
personal delivery, through registered letter sent through overnight courier, or
e-mail, at the following addresses:
(a) if to Wayaya:
Wayaya Mobile Malaysia Sdn. Bhd.
Level 25, Menara Southpoint,
Mid Valley City, 59200,
Kuala Lumpur,
Malaysia.
E-mail: wayayashop@proton.pe
Attention: Group General Counsel
(b) if to the Merchant, to the address set out in the
Merchant Particulars or through other method or means determined by Wayaya.
17.2 All notices hereunder shall be deemed duly
delivered:
(a) if delivered by personal delivery, when left at the
address required by this Clause 17;
(b) if sent by overnight courier, on the second (2nd)
Business Day after it is picked up by the courier; or
(c) if sent by e-mail, on the day of dispatch so long as
such e-mail was sent prior to 5:00 pm on a Business Day in Malaysia; if sent
after 5:00 pm on a Business Day or sent on a day that is not a Business Day, it
shall be deemed delivered on the following Business Day. In the case of the
Merchant sending a notice through e-mail, such e-mail shall be sent through
e-mail address set out in the Merchant Particulars and shall be deemed sent by
the Merchant themselves, an officer of the Merchant, or other party authorized
by the Merchant on behalf of the Merchant.
18. No Waiver
The failure by a Party to enforce any provision of the
Agreement shall not be construed as a waiver of such provisions or of the right
to enforce that, or any other, provision of the Agreement. No waiver shall be
construed as a continuing waiver.
19. Severability
If any part of the Agreement is or becomes invalid, unlawful
or unenforceable then such part shall be severed from the remainder of the
Agreement, which shall continue to be valid and enforceable to the fullest
extent permitted by Applicable Law.
20. Entire Agreement
The Agreement (including all attachments and other
documents referred to herein, including, but not limited to, the Merchant SOP
and the standard operating procedures by Wayaya for the provision of wayaya
Services) represents the entire agreement of the Parties in relation to its
subject matter, of which the Parties shall be bound to it. All the things that
have not been regulated in the Agreement shall be regulated in the Merchant SOP
or any other document published by Wayaya on the Wayaya Platform. The Merchant
SOP is an inseparable part of the Agreement and by agreeing to the Agreement,
the Merchant agrees to be subject to the Merchant SOP. If there is any
discrepancy between any provision of the Agreement and any provision of the
Merchant SOP on Wayaya Platform or wayaya Platform for the provision of wayaya
Services, the provisions of the Merchant SOP shall prevail.
Last Updated: 11 October 2021
