Published: 13 August 2021
PandaAds Terms and Conditions
1. Scope
1.1 These PandaAds Terms and Condition (“Terms”) govern each Sales Order Form (“Sales Order”) entered into between “foodpanda” (defined as the Foodpanda or Delivery Hero entity specified in the Sales Order) and the “Client” (defined as the person, partnership or company and/or its agent, as specified in the Sales Order) for the purchase of marketing and advertising services provided by foodpanda for publication on foodpanda’s mobile and web application (“Platform”). Together, these Terms and the Sales Order shall be referred to as the “Agreement”.
1.2 In the event of a conflict or inconsistency between the Sales Order concluded between foodpanda and the Client and these Terms, the former shall prevail. Capitalized terms used but not defined in these Terms have the meanings given to them in the Sales Order.
2. Services
foodpanda shall provide to the Client the marketing and advertising services specified in the Sales Order in return for the Client’s payment of the fees stated therein.
3. Deliverables
3.1 Where the Client commissions foodpanda to create or provide the marketing or advertising assets (each a “Deliverable”), the Client shall, at its own cost, provide foodpanda with Client Materials (defined below) to create the Deliverable. The Client shall also grant foodpanda and its affiliates a limited, non-exclusive, non-sublicensable, non-transferable, worldwide, royalty-free license to use the Client Materials in the Deliverable and as set forth in this Agreement. “Client Materials” include any artwork, copy, photos, images, visual assets, trademarks, logos, service marks, audio content, email addresses, video, URLs, audiovisual materials, and any other Intellectual Property (defined below) or other content, including the Client’s or a third party’s names, logos, trademarks, and service marks.
3.2 foodpanda grants to the Client a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to use each Deliverable and publish it as an advertisement solely on the Platform or on such other platform agreed by parties in writing. Each Deliverable (excluding the Client Materials), including any improvements, modifications, or derivative works of the Deliverable, are and will remain the sole property of foodpanda. The Client shall not create any improvements, modifications, or derivative works using or incorporating any Deliverable without obtaining foodpanda’s prior written approval.
4. Acceptance of Deliverables
4.1 Unless otherwise agreed in writing, the Client shall either accept or reject the Deliverable within three (3) business days after foodpanda provides a Deliverable for the Client’s approval.
4.2 If the Client rejects the Deliverable, the Client shall provide feedback on the changes to be made to the Deliverable. Provided that such feedback does not materially change the scope of services to be provided under this Agreement, foodpanda shall revise the Deliverable based on the feedback provided. Unless otherwise agreed in writing, the Client shall be entitled to one (1) round of revision for each Deliverable, and the Client shall be deemed to have accepted the revised Deliverable after the one (1) round of revision by foodpanda.
4.3 If the feedback provided by the Client materially changes the scope of the services to be provided under this Agreement, foodpanda reserves the right to only incorporate such feedback upon agreeing with the Client on the fee to be charged for the revised scope of services.
5. Client Ads
5.1 Where the Client purchases advertising space from foodpanda, the Client shall, at its own cost, provide foodpanda with its advertising text, content or graphics intended for reproduction by foodpanda as an advertisement on the Platform (each a “Client Ad”).
5.2 The Client shall provide the Client Ad along with written instructions for its use to foodpanda as soon as possible to ensure proper publication on the Platform. Any changes to the written instructions must not less than fifteen (15) working days writing to foodpanda prior to changes being made.
5.3 foodpanda, in its sole and absolute discretion, reserves the right to reject or cancel any Client Ad at any time. Without prejudice to the foregoing, foodpanda will not accept any Client Ad or provide services in relation to the creation or advertising of content that promotes, contains or is related to (a) illegal activities such as illegal drugs, phishing, terrorism, criminal activities, contests, pyramid schemes, spam or chain letters); (b) smoking, tobacco, lottery, gambling, or weapons; (c) pornographic or obscene material; (d) excessively graphic or explicit violence; (e) defamatory, inappropriate, or profane material; (f) discriminatory material or hate speech, whether directed at an individual or a group, and whether based upon the race, sex, creed, national origin, religious affiliation, sexual orientation, or language of such individual or group; or (g) viruses, worms, corrupted files, malware, cracks, or other materials that are intended to or may damage or render inoperable software, hardware, or security measure.
5.4 If foodpanda decides that the Client Ad is unsuitable in accordance with clause 5.3, foodpanda will notify the Client in writing who must supply an alternative copy within two (2) business days of receiving the notification unless otherwise agreed by foodpanda in writing. If the alternative copy is not accepted, foodpanda shall be entitled at its sole and absolute discretion to terminate the Sales Order (or part thereof) and if the Client has made payment, to refund the paid amount on a pro-rated basis to the Client.
5.5 If the Client Ad does not comply with the advertisement specifications as communicated by foodpanda to the Client, foodpanda shall have the right to either reject, modify or change the Client Ad to comply with the said specifications. Such changes include reformatting, cropping, resizing and editing.
5.6 foodpanda shall not incur any liability to the Client in respect of the non-publication of any Advertisement pursuant to clauses 5.3, 5.4 or 5.5.
6. Publications of Advertisements
6.1 The Client will review each Deliverable or Client Ad(s) (each, an “Advertisement”) and be responsible for the completeness and accuracy of all information and claims (direct or implied) in each Advertisement concerning the Client’s (or where the Client is an agent of behalf of a third party (“Third Party”), the Third Party’s) products, services, promises, and any claims about other parties. Upon foodpanda’s reasonable request, the Client will provide foodpanda with documentation to substantiate any of those claims.
6.2 The Client shall provide foodpanda with written approval of the Advertisement before publication on the Platform. foodpanda shall not incur any liability to the Client for any error in any Advertisement published on the Platform.
6.3 foodpanda may make any additions to, changes in or deletions from any Advertisement as required by any competent authority, provided that foodpanda shall inform the Client prior to making any addition, change or deletion. foodpanda shall not incur any liability to the Client in respect of the said additions, changes or deletions.
6.4 An Advertisement shall be published on the Platform for the duration and frequency as agreed in writing between the Client and foodpanda.
6.5 The Client may request for foodpanda to take down any published Advertisement or to cease the publications of any Advertisement on the Platform, provided that the Client shall remain obliged to make full payment to foodpanda in respect of the said Advertisement.
7. Payment
7.1 The Client shall make payment of the invoiced amount stated in the Sales Order to foodpanda within thirty (30) days of the Order Date stated therein.
7.2 All sums payable under this Agreement shall be paid by way of bank transfer or cheque deposit, details of which shall be notified to the Client as and when necessary.
7.3 The Client shall be solely responsible for bearing all applicable taxes (if any), including Sales and Services Tax, or such other transaction taxes, associated with this Agreement, as well as the costs of any bank charges and/or fees charged by the Client’s bank.
7.4 If payment is not received within the specified time, foodpanda may in its absolute discretion: (a) cancel existing Sales Orders; (b) refuse new Sales Orders; (c) impose interest charges of two percent (2)% per annum until full payment is received; and/or (d) pursue any rights and remedies it may have under applicable laws.
8. Term and Termination
8.1 This Agreement starts on the Order Date stated in the Sales Order and, unless earlier terminated in accordance with this Agreement, will continue until the date all services are provided. Where Deliverables are prepared by foodpanda, the services shall be deemed provided when they are accepted or deemed accepted by the Client in accordance with clause 4 above. Where an Advertisement or Advertisements are published on the Platform, the services shall be deemed to be provided by foodpanda at the time of publication.
8.2 Either party may terminate this Agreement for convenience upon written notice to the other party, save that the Client shall pay for all services provided by foodpanda at the time of termination. For the avoidance of doubt, in the event that the Client terminates this Agreement after foodpanda submitted a Deliverable or published an Advertisement on the Platform, the Client shall remain obliged to make full payment for the Deliverable and the published Advertisement, and foodpanda shall not provide any pro-rated returns in this regard.
8.3 Termination or expiry of this Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
8.4 Clauses 3, 10, 11 and 13 shall survive expiration or termination of this Agreement. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.
9. Representations and Warranties
9.1 Each party represents and warrants to the other party that:
(a) it has sufficient rights and authority to enter into this Agreement, to grant the rights and to assume all their respective rights and obligations set forth herein. The individual(s) signing on behalf of his/her respective party represents and warrants that he/she has the authority to execute and bind his/her respective party to the Agreement.
(b) it shall comply with all applicable laws, rules and regulations and any industry codes or rules relating to its respective activities under this Agreement, particularly any local advertising laws, regulations or codes issued by the relevant regulatory authorities.
(c) this Agreement does not and will not conflict with any of the party’s other obligations to any third parties.
9.2 The Client represents and warrants that:
(a) the Client Materials and/or Client Ad do not contain any material that shall breach any contract or infringe or violate any copyright, trademark or any other personal or proprietary right of any person or render foodpanda liable to any claims or proceedings whatsoever;
(b) in respect of any Client Materials and/or Client Ad submitted which contains the name or pictorial representation (photographic or otherwise) of any living person and / or any part of any living person and / or copy by which any living person is or can be identified, the Client has obtained any authority of such living person to make use of such name, representation and / or copy;
(c) where the Client acts on behalf of the Third Party (for example, where the Client is an advertising agency), the Client represents and warrants that it is the agent of the Third Party and is duly authorised to make and enter into this Agreement with foodpanda for the services set out in the Sales Order for and on behalf of the Third Party. The Client will be solely responsible for liaising with and obtaining the necessary approvals and participation from the Third Party on all matters related to the execution of the services and this Agreement.
9.3 Save as set out in this clause, foodpanda disclaims all warranties, whether express, implied or statutory, including any implied warranties of title, non-infringement of third-party rights, merchantability, or fitness for a particular purpose.
10. Limitation of liability
10.1 Nothing in this Agreement shall exclude or limit either Party’s liability to the other party in connection with: (a) fraud or fraudulent misrepresentation; (b) death or personal injury caused by negligence; (c) any matter in respect of which it would be unlawful for the parties to exclude liability; (d) any liability arising the indemnification obligations under clause 11 (collectively, “Carve-Out Claims”).
10.2 Excluding Carve-Out Claims: (a) neither party shall in any circumstances be liable to the other party whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any special damages, punitive or exemplary damages, indirect or incidental damages, consequential damages, loss of profit or loss of business opportunities; and (b) the aggregate liability of each party under this Agreement will be limited to the lesser of RM300 or the amount paid or payable by the Client to foodpanda under this Agreement in the twelve (12) months preceding the activity giving rise to the claim.
11. Indemnity
11.1 The Client agrees to indemnify, defend, and hold harmless foodpanda, its affiliates and each of their employees, directors, officers and representatives from and against any and all third party complaints, charges, claims, loss, suit, action, demand, damages, losses, costs, liabilities, and expenses (including reasonable solicitors' fees) (collectively, “Claims”) due to or arising out of: (a) the actual or alleged infringement of the Intellectual Property, privacy, publicity, copyright, or other legal rights of any third party arising from foodpanda’s use and/or publication of the Client Ads and/or the Client Materials in accordance with this Agreement; (b) allegations that the Client Ads and/or the Client Materials are false, misleading, fraudulent, defamatory, or deceptive; or (c) the Client’s breach of its representations and warranties under clause 9.
11.2 foodpanda agrees to indemnify, defend, and hold harmless the Client and its directors, officers, stockholders, employees, licensors, and agents from and against any and all Claims due to or arising out of: (a) the actual or alleged infringement of the Intellectual Property, privacy, publicity, copyright, or other legal rights of any third party arising from the Deliverable (but not any Client Materials incorporated within the Deliverable); (b) foodpanda’s breach of its representations and warranties under clause 9.
11.3 The indemnified party will promptly notify the indemnifying party in writing of any claim for which indemnification is sought, but any failure to notify the indemnifying party will not relieve the indemnifying party from any liability or obligation the indemnifying party may have under this clause 11 except to the extent of any material prejudice to the indemnifying party resulting from such failure. The indemnifying party will not compromise or settle any such claim in any manner without the prior written consent of the indemnified party, which consent will be provided in the indemnified party’s sole and absolute discretion. The indemnified party may participate (at its expense) in the defense and settlement of the claim with counsel of its own choosing.
12. Intellectual Property
12.1 “Intellectual Property Rights” means all intellectual property rights, including but not limited to rights to patents, trademarks, service marks, trade names, registered designs, copyrights, goodwill, and other forms of intellectual property or industrial property, know-how, inventions, formulae, confidential or secret processes, trade secrets and confidential information, and any other protected rights and assets and any licences and permissions in connection therewith, in each case in any part of the world and whether or not registered or registrable and for the full period thereof, and all extensions and renewals thereof, and all applications for registration in connection with the foregoing and "Intellectual Property" shall have the corresponding meaning.
12.2 Nothing in this Agreement shall be construed to have the effect of transferring or in any way divesting ownership in the Intellectual Property Rights in the Platform or any other marketing assets of foodpanda (including all Deliverables as set out in Clause 3.2 above) from foodpanda to the Client.
12.3 The Intellectual Property, specifically, trademarks or brand of either party shall not be used otherwise than as authorised under this Agreement or by the other party in writing.
12.4 Any and all Intellectual Property Rights and/or goodwill for all purposes arising anywhere and anyhow which are either vested in, derived from or are connected to the Intellectual Property Rights in the Platform or marketing assets of foodpanda or are generated by the use of the Platform in connection to this Agreement (including all Deliverables as set out in Clause 3.2 above) shall, in each case, be the property of and inure to foodpanda, the owner of the Intellectual Property Rights. Accordingly, the Client shall not by virtue of this Agreement or otherwise claim any right, title, or interest in relation to such Intellectual Property Rights and/or goodwill.
12.5 Each party hereby acknowledges that the Intellectual Property Rights in any information received by either party and the products and/or services pertaining to such information are and shall remain at all times with the disclosing party.
13. Confidentiality
13.1 “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 this Agreement, which information is non-public, confidential, sensitive or proprietary in nature, and all information designated as confidential or which ought reasonably to be considered confidential, excluding information which: (a) is or becomes public knowledge other than through breach of this Agreement; (b) is lawfully known or disclosed by a third party to the receiving party, without restriction on confidentiality; (c) is approved for release by written authorisation of the disclosing party; or (d) is independently developed by the receiving party without reference to the Confidential Information.
13.2 Each party shall: (a) keep the other party’s Confidential Information strictly confidential; (b) establish adequate security measures to protect the other party’s Confidential Information; and (c) not make any copies or records of the other party’s Confidential Information unless strictly necessary for the performance of its obligations under this Agreement.
13.3 Each party may only use the other Party’s Confidential Information strictly for the purposes of performing its obligations under this Agreement.
13.4 Neither party shall disclose Confidential Information to any Person without the prior written consent of the other party. Each party may disclose Confidential Information to its (a) employees, (b) officers, (c) directors; and/or (d) related companies on a strictly “need to know” basis. The receiving party shall procure that any person to whom it discloses the other party’s Confidential Information agree to, and fully comply with, similar confidentiality obligations as set out under this clause.
14. Data Protection
14.1 To the extent applicable, each party shall (and shall ensure that its employees, directors, officers and representatives) comply with the provisions of the Malaysia Personal Data Protection Act 2012 and any other applicable laws or regulations on data protection (“Privacy Laws”) in the collection and processing of personal data. Each party shall bring into effect and maintain all reasonable technical and organisational measures to maintain security, prevent unauthorised or unlawful access to or processing of such personal data and accidental loss or destruction of, or damage to, such personal data.
14.2 Each party shall give the other party all reasonable assistance in connection with compliance with the Privacy Laws or any data access request made under the Privacy Laws.
15. Assignment
15.1 The Client shall not sub-contract, novate or assign the whole or any part of this Agreement without the prior written consent of foodpanda.
15.2 foodpanda may assign or novate this Agreement or any part thereof to its affiliated companies or any third party. The Client hereby gives its consent to any future assignment, novation or transfer of this Agreement initiated by foodpanda.
16. Notice
All notices or other communications required or permitted to be given or made in connection with this Agreement shall be in writing in English and delivered electronically, personally or sent by registered post or courier to each party at the address set out in this Agreement or such other address as a party may substitute from time to time by giving notice to the other party in writing.
17. Force Majeure
Excluding payment obligations, no party will be responsible for any failure or delay in performing under this Agreement to the extent caused by any event beyond its reasonable control (including epidemics, pandemics, acts of God, civil unrest, lockdowns, political situations etc.).
18. Publicity
Except with the other party’s prior written approval, neither party will (a) issue a press release or make any other public statements regarding the substance or execution of this Agreement, or the existence of a business relationship with the other party relating to this Agreement; or (b) use the other party’s name, logos, trademarks, or other Intellectual Property in any public announcement or media.
19. Amendment
19.1 foodpanda reserves the right to change or modify these Terms at any time and in its sole and absolute discretion, provided that it shall inform the Client of such amendments in writing.
19.2 The Client shall have the right to object to such amendments within seven (7) days from receipt of such amendments (the “Objection Period”) and shall provide reasonable grounds for such objections, which shall be reviewed by foodpanda. foodpanda shall provide the Client with its decision on the acceptance or rejection of the objection within five (5) business days from receipt of such objections, which decision shall be final.
19.3 The amendments shall become valid and effective between the parties: (a) upon the expiry of the Objection Period, if no objection was submitted; or (b) two (2) business days after the rejection by foodpanda of any objections made by the Client.
19.4 The Client has the right to terminate this Agreement in the event of no agreement being reached between the Parties on the amendments, provided that such termination must be notified to Foodpanda within seven (7) days of the rejection by foodpanda of any objections made by the Client. In such event, this Agreement shall terminate seven (7) days after the Client’s written termination notice is received by foodpanda. For the avoidance of doubt, during that fourteen (14) day period, the Client shall not be obliged to abide by any amendments made by foodpanda and shall abide by the then valid Terms.
19.5 Without prejudice to the above, the parties may mutually agree to amend this Agreement in writing.
20. Governing law and Dispute Resolution
20.1 This Agreement shall be governed by and construed in accordance with the laws of Malaysia without regard to any conflict of law rules.
20.2 Any dispute, claim or difference of any kind whatsoever arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of Malaysia.
21. General
21.1 References to a section include all its subsections. The section headings are for convenience only and will not affect how this Agreement is construed. Unless this Agreement refers specifically to “business days,” all references to “days” mean calendar days. As used in this Agreement, “including” means “including without limitation.”
21.2 Unless otherwise stated, the parties’ rights and remedies under this Agreement are cumulative and do not exclude any other right or remedy provided under applicable laws.
21.3 Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor make either party the agent of the other party for any purpose.
21.4 This Agreement is solely for the parties’ benefit and are not for the benefit of any other person or entity, except for foodpanda’s affiliates and subsidiaries (and each of foodpanda’s and their affiliates' and subsidiaries' respective successors and assigns).
21.5 This Agreement supersedes any previous agreement between the parties and constitute the entire agreement between the parties relating to its subject matter to the exclusion of all other terms and conditions, and any prior written or oral agreement between the parties.
21.6 No delay or failure by foodpanda to exercise any powers, rights or remedies under these Terms will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or further exercise of them. Any waiver to be effective must be in writing and signed by an authorised representative of foodpanda.
21.7 In the event that any provision of these Terms is determined to be unlawful, void or unenforceable, such provision shall nonetheless be enforceable to the fullest extent permitted by applicable law, and the unenforceable portion shall be deemed to be severed from these Terms, such determination shall not affect the validity and enforceability of any other remaining provisions.
21.8 The parties may execute this Agreement in counterparts, including PDF and other electronic copies, which taken together will constitute one instrument.
22. Prevailing Language
In the event of a dispute as to this Agreement, the English version shall prevail. The English language version of this Agreement shall control in all respects and shall prevail in case of any inconsistencies with translated versions.