PoodTrip Merchant Agreement



Last updated on 30 April, 2020


By signing-up and using the PoodTrip application (the “Application”) and the related platform services (the “Services”), the “Participating Merchant” hereby agrees to be bound by the terms and conditions set out in this PoodTrip Merchant Agreement (the “Agreement”).


The Application is provided and operated by Audiowav Media Inc. (the “Company”), a corporation duly organized and existing under and by virtue of the laws of the Philippines, with branch office at Unit 1004 10/F IT Hub, 2251 Chino Roces Avenue, Barangay Bangkal, Makati City. 


The Company provides all the contents of this Application and the website https://bahay.poodtrip.com/ (the “Website”). Through the Application and the Website, the Company provides the Services to facilitate the perfection and performance of the Contract between the User and the Participating Driver; which Services are detailed in Clause 2.5 of the Terms of Use of the Application.


Capitalized terms used in this Agreement shall bear the meaning provided under the Terms of Use of this Application; except when these capitalized terms are specifically defined in this Agreement.


1.Definitions and interpretations - In this Agreement, unless the context otherwise requires, the following terms shall have the following meaning:


“Business Day” means a day when banks are open for business in Metro Manila;


“Commercial Terms and Conditions” refers to the separate document detailing the specific commercial terms and conditions agreed upon by the Company with the Participating Merchant, which is an integral part of this Agreement;


“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 Receiving Party and, including any Personal Data as defined in this Agreement, 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 this Agreement, the Disclosing Party or any of its affiliates including all trade secrets, know-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;


“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;


“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;


“Disclosing Party” means the party from whom the Confidential Information originates and is disclosed to the Receiving Party;


“Intellectual Property Rights” means 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;


“Personal Data” means any information relating to an identified or identifiable natural person as data subject; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;


“Receiving Party” means the party receiving the Confidential Information from the Disclosing Party;


“Service Fee” shall have the meaning as specified in the Commercial Terms and Conditions;


“Third Party Claim” means commencement or threatened commencement of any action, suit, proceeding, claim, arbitration, investigation or litigation, whether civil or criminal, at Law or in equity, made or brought by a third party (non-government).


2.Term


This Agreement shall take effect from the date this Agreement is executed and shall continue in force and effect until terminated in writing by either the Company or the Participating Merchant.


3.Coverage of the Agreement


3.1.The Company appoints the Participating Merchant, and the Participating Merchant agrees to be appointed by the Company as the restaurant partner for the Application; whereby the Company, on behalf of the Participating Merchant, is entitled to accept orders for food/dish items from the Users through the Application (the “Partnership”).


3.2.The Partnership is limited to:


3.2.1.Referring the User to the Participating Merchant;

3.2.2.Accepting orders and payments from the User, according to the payment method set by the Company; and

3.2.3.Passing the order and payment from the User to the Participating Merchant according to the method set by the Company, taking into account the agreed Service Fee in favor of the Company..


3.3.The Company may carry out changes to the Partnership, or suspend the Partnership, with a five (5) Business Day prior notice to the Participating Merchant.


3.4.The Participating Merchant hereby agrees to open and maintain  an account with ___________, ___________, and __________  to facilitate the payment related to the use of the Application under this Agreement.


4.Obligations of the Company


4.1.For public consumption through the Website and for the consumption of the Users through the Application, the Company shall present the array of Participating Merchants, together with, but not limited to, the following information and details and to the extent that these details have been communicated to the Company:


4.1.1.Name

4.1.2.Address

4.1.3.Type, i.e., fine dining. casual dining, family style, fast food, café, etc.

4.1.4.Cuisine, i.e., Filipino, American, Chinese, French, Indian, etc.

4.1.5.Menu and prices

4.1.6.Minimum order, if any

4.1.7.Estimated delivery time

4.1.8.Delivery distance

4.1.9.Ratings or reviews


For the avoidance of doubt, the Company is not required to publish the information and details of the Participating Merchant as a restaurant partner in the Application and the Website before all relevant information and details have been received.


4.2.The Company provides the Application on an “as is” and “as available” basis for the User to submit a proposal to engage Private Carrier Services for the pick-up and delivery of food/dish items under an Order from a Participating Merchant to the User; and for the Participating Driver to accept the User’s Order for compensation in favor of the Participating Driver in terms of delivery fees as indicated in the Application and under the terms and conditions provided in the Contract.


4.3.The Company provides the Services to facilitate the perfection and performance of the Contract between the User and the Participating Driver as follows:


4.3.1.Computation and determination of the costs of the Order, the delivery fees and other charges, if any, for the fulfillment of the Order;

4.3.2.Publication of the details of the Order to eligible Participating Drivers for their acceptance; and

4.3.3.Upon the acceptance by a Participating Driver of the Order, the transmission to the User of the details of the Participating Driver who has accepted the Order;


4.4.The Orders submitted through the Application are completely and independently fulfilled by the Participating Driver pursuant to the Contract with the User. The Company is not a party to the Contract.


4.5.The Company reserves the right, but shall not be obligated, to pursue investigations and/or inquiries on the conduct and/or alleged violations by a Participating Merchant based on User’s reports or complaints, and to impose appropriate penalties or consequences on the Participating Merchant at the sole and absolute discretion of the Company.


4.6.In the rare event where any information provided to the User at the time the Order is booked (whether via this Application or the Website) is inaccurate, or if the Company otherwise is of the view that it is appropriate to cancel the Order of the User, the Company reserves the right to cancel the Order.


4.7.In order to maintain its reputation for quality and high standard of service, the Company reserves the right to suspend or terminate the Partnership with the Participating Merchant should the Participating Merchant repeatedly receives bad ratings and reviews and complaints of failure to complete the delivery of the booked Order.


5.Obligations, Warranties and Undertakings of the Participating Merchant


5.1.The Participating Merchant warrants that it has the legal capacity and the single proprietorship or corporate authority to enter into this Agreement under Philippine laws, or under the laws of other countries where the Application is being provided by the Company.


5.2.The Participating Merchant shall provide the Company with all information and details necessary to present the Participating Merchant as a restaurant partner of the Company, as provided in Clause 4.1 herein.


In addition, for single proprietorships, the information includes the owner’s full name, legal address and tax identification number. And for corporations, the information includes the registered company name, registered address, registered trade name, authorized signatory per the corporation’s board resolution and tax identification number.


Relevant changes to these information and details are to be communicated immediately to the Company. The Participating Merchant is required to verify the information published by the Company in the Application and the Website and immediately advise the Company of any mistakes or inaccuracies. The Participating Merchant shall immediately notify the Company should there be price changes. 


For the avoidance of doubt, the information and details of the Participating Merchant as provided in Clause 4.1 herein and its single proprietorship or corporate identity may be published by the Company, without seeking the prior approval of the Participating Merchant, in other media platforms, including, but not limited to, Twitter, Facebook, Instagram and Google Ads.


5.3.The Participating Merchant guarantees that all the information published by the Company in the Application, the Website and other media platforms relating to the information and details of the Participating Merchant as a restaurant partner of the Company satisfies all legal requirements, and in particular satisfies information requirements for the protection and safety of the User.


5.4.The Participating Merchant guarantees that the information and details provided by the Participating Merchant does not violate any Intellectual Property Rights of a third party.


5.5.The Participating Merchant will process the Order of the User with all reasonable care and as soon as the said Order is received through the Application or the Website. The Participating Merchant is required, to the best of its ability, to keep its advertised food/dish items in the menu available at all times. In the rare event that food/dish items in the menu are not available for a particular day, the Participating Merchant is obligated to immediately notify the Company to allow an immediate advisory to be posted in the Application and the Website of such occurrence.


5.6.The Participating Merchant guarantees that the food/dish items prepared, provided and sold to the User under an Order are in good quality and safe for consumption. In the rare event that the food/dish items from the Participating Merchant under an Order are spoiled or which results in food poisoning, allergies or other unhealthy effect that will harm the User, the Participating Merchant will be personally responsible and/or legally liable for such incident, whether it is material or not, and the Participating Merchant releases the Company from any and all claims from the User related to such incident.


5.7.The Participating Merchant is obligated to notify the Company in no later than five (5) minutes from the receipt of the Order should the Participating Merchant is unable to fulfill the Order, so that the Company can notify immediately the User and the Participating Driver.


5.8.The Participating Merchant agrees to adhere to the array of food/dish items in the menu and to keep stable prices as provided to the Company and as described in the Application and the Website.


5.9.The Participating Merchant guarantees that it possesses all licenses and permits required by prevailing laws and regulations to become a restaurant partner of the Company and that there are no ongoing criminal, bankruptcy or tax proceedings or other penalties outstanding in relation to its restaurant business operations.


5.10.For and in consideration of the provision of Services under this Agreement, the Participating Merchant shall pay to the Company the Service Fee in accordance with the payment method set by the Company and pay a reasonable penalty should such Service Fee is not paid on its due date, as provided under the Commercial Terms and Conditions.


5.11.The Participating Merchant  hereby agrees for itself, its officers, and any related parties, that they will not, directly or indirectly, contact, deal with or otherwise become involved with the Users and the Participating Drivers for the purpose of avoiding the payment to the Company of the Service Fees, or otherwise, without the specific written approval of the Company.


6.Contract for Private Carrier Services to be provided by the Participating Driver to the User 


6.1.The Contract is a third-party agreement for the provision of private carriage as contemplated under Philippine laws which is automatically entered into between the Participating Driver and the User upon the acceptance by the Participating Driver of the User’s Order through the Application or the Website. The Contract covers the provision of Private Carrier Services and the fulfillment by the Participating Driver of the terms of the Order consisting of, but not limited to, its pick-up from the Participating Restaurant and its delivery to the User, subject to the terms and conditions expressly provided in Annex “A” of the Terms of Use of the Application.


6.2.The Participating Driver warrants that he/she is not engaged in the business of a public utility or a common carrier, and that he/she is not an employee, representative, agent, principal or officer of the Company.


6.3.The Company does not provide delivery or transportation services, and except to the extent that it provides the Services, does not perform, manage, supervise or control the Private Carrier Services which are completely, exclusively and independently performed by the Participating Driver.


6.4.The Company is a technology company and is not, and does not represent itself to be, engaged in the activities of a common or private carrier or a public utility.


6.5.The Company does not warrant: (i) the availability of Private Carrier Services and the availability of  Participating Driver as may be requested by the User in an Order from the Participating Merchant; (ii) the accuracy of the data or information provided as part of the Services; or (iii) the quality of the Private Carrier Services and the condition of the delivery vehicles provided by the Participating Driver.


6.6.The Company does not warrant the safety, reliability, compatibility, or capability of the Participating Driver during the provision of his/her obligation in delivering the food/dish items for an Order from the Participating Merchant to the User. The Participating Merchant hereby holds the Company free and harmless and discharges the Company from any and all responsibility, claim, cause, or damage which occurs from such pick-up and delivery performance of the Participating Driver.


6.7.The Participating Merchant shall not cause the Participating Driver to assert any claim or interest in, or take any action which may in any way:


6.7.1.Adversely affect the validity or enforceability of the Company’s Intellectual Property Rights over the Application and the contents of the Website;

6.7.2.Result in the harm or misuse of, bring into disrepute, or adversely affect the Company’s rights or interest in and to the Application and the Website; or

6.7.3.Result in obtaining registrations in or otherwise challenging the validity of the Company’s ownership of or rights in the Application.


7.Ownership and rights


7.1.Each of the Company and the Participating Merchant warrants that it is the legal licensee of all Intellectual Property Rights used under or referred to in this Agreement, which are free from any infringement or violation of any third party ownership or intellectual property rights and no other party will claim to have the same ownership of such Intellectual Property Rights.


7.2.All reports, specifications, other similar documents compiled or prepared in the course of the operation of the Partnership under this Agreement, including documents, materials produced in respect of the Services and any derivation of any Intellectual Property Rights granted by the Company or the Participating Merchant 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.


7.3.Each Party warrants 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 and unless it is conducted based on this Agreement.


8.Representations and warranties of the Company and the Participating Merchant


8.1.Either Party warrants that each Party has entered into this Agreement in full reliance of the following representations and warranties:


8.1.1.Each Party has the capacity and power to enter into and perform and comply with their respective obligations under this Agreement;

8.1.2.This Agreement is a valid and binding obligation and enforceable against each Party in accordance with the terms hereof;

8.1.3.Each Party’s 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 each Party is subject to or (ii) any agreement or covenant to which each Party is bound by other existing agreements with third parties;


8.1.4.Each Party complies and owns all mandatory licenses under applicable laws in its applicable jurisdiction and each person who represents and binds each Party to this Agreement is authorized to represent and to bind each Party.


8.2.Either Party warrants that the representations and warranties in this Clause 8 shall continue to be true as long as this Agreement subsists, and each Party will bear the legal risk should the representation and warranties stated herein are proven to be incorrect or untrue.


9.Termination and suspension


9.1.Either Party may terminate this Agreement in the event of a material breach by the other Party of this Agreement that is not remedied or cured within five (5) Business Days from its occurrence.


For the avoidance of doubt, material breach under this Agreement refers to the substantial failure of either Party in the performance of their respective obligations under this Agreement and such failure is substantial enough to release the aggrieved party from its obligations hereunder and accrues to it the right to sue for damages.


9.2.Either Party may terminate this Agreement by giving to the other Party not less than thirty (30) Business Days written notice prior to the effective date of the termination as specified in the notice.


9.3.At any time, the Company may, upon giving five (5) Business Day prior written notice to the Participating Merchant, immediately terminate this Agreement or temporarily suspend the Services, should:


9.3.1.The Company suspects that there is any unlawful, illegal and/or fraudulent act committed by the Participating Merchant and/or its employees or agents;

9.3.2.The Participating Merchant repeatedly receives bad ratings or reviews from the Users or complaints of failure to deliver booked Orders; or

9.3.3.The Participating Merchant is in violation of any food safety or other regulations relating to its function as the restaurant partner of the Company.


9.4.At any time, either Party may, upon giving written notice to the other Party, immediately terminate this Agreement, should 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 to perform its obligations under this Agreement.


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


10.Indemnity


10.1.The Participating Merchant agrees to indemnify (and keep indemnified) and hold the Company, its assets, subsidiaries, affiliates, agents, directors, officers, employees and/or assignees, free and harmless from and against any claims, damages, costs, judgments, losses or expenses (including reasonable attorneys’ fees), arising in relation to matters outside the control of the Company, including, but not limited to, the quality of food/dish items and the services provided by the Participating Merchant, as well as the safety or hygiene of the Participating Merchant. The Participating Merchant further indemnifies the Company from Third Party Claim resulting from any violation of laws and regulations by the Participating Merchant.


10.2.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 suffered due to the acts of the other Party.


10.3.The Company cannot guarantee that its Services through the Application and the Website will be free from any malfunctions, but will exercise its best efforts to make the Application and the Website work properly.


11.Confidentiality


11.1.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 of its obligations under this Agreement), any Confidential Information disclosed, made available or otherwise provided to the Receiving Party by or on behalf of the Disclosing Party. 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.


11.2.The Receiving Party may disclose Confidential Information to:


11.2.1.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

11.2.2.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.


11.3.These confidentiality obligations shall endure, even after the expiry or termination of this Agreement, for a period of one (1) year after the expiry of this Agreement and/or until the Confidential Information enters the public domain.


12.Personal data


Both Parties herewith shall comply with their respective obligations as the Data User and the Data Processor of the Personal Data in relation to this Agreement as required under all applicable laws and regulations on data privacy.


13.Notices


A notice given by a Party under this Agreement must be delivered to the other Party via email using the email address set out below.  If the notice is given under this Clause, a copy of that email must be immediately delivered (by hand or courier) to the Chief Executive Officer or equivalent officer of the other Party at the other Party’s business address set out below.


To the Company:To the Participating Merchant:


Email: caloy.hinolan@wav.globalEmail: ____________________


Business address:Business address:

Unit 1004 10th Floor_____________________________ 

IT Hub 2251 China Roces Avenue_____________________________

Barangay Bangkal, Makati City


14.Force majeure


14.1.Both Parties are released from responsibility to all obligations and delay of work as consequence of force majeure. Force majeure is defined as any extraordinary circumstances which is an unforeseeable, inevitable event and/or beyond reasonable control of the Parties including but not limited to epidemic, natural disaster, war, rebellion, aggression, sabotage, riot, and existence of governmental regulations in monetary affairs which directly influence performance of this Agreement.


14.2.Should one of the Party was delayed or 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.


14.3.Should the event of force majeure continues for a period exceeding sixty  (60) calendar days and both Parties had negotiated in good faith and did not settle on a suitable resolution, then either Party shall be entitled to terminate this Agreement by written notice to the other Party.


15.Non-waiver


Failure of either Party to insist, in one or more instances, the strict performance of any of the terms of this Agreement, or to exercise any portion herein contained, shall thereafter not be construed as abandonment or cancellation or waiver of such term of this Agreement. No waiver shall be deemed to have been made unless expressed in writing and signed by the Company or the Participating Merchant. No waiver of any term or provision of this Agreement shall constitute a waiver of any other term or provision on a future date.


16.Disputes and venue of action


16.1.Good faith negotiations:  Before taking any court action, a Party must use best efforts to resolve any dispute under, or in connection with, this Agreement through good faith negotiations.


16.2.Obligations continue:  Each Party must, to the extent practicable, continue to perform its obligations under this Agreement even if there is a dispute.


16.3.Right to seek relief:  This Clause does not affect either Party’s right to seek urgent interlocutory and/or injunctive relief.


16.4.All actions arising out of or by virtue of this Agreement shall be filed in the proper courts of Makati City only, to the exclusion of all other courts.


17.Severability


The invalidity of any provision of this Agreement will not and shall not be deemed to affect the validity of any other provision. In the event that any provision of this Agreement is held to be invalid, the Company and the Participating Merchant agree that the remaining  provisions shall be deemed to be in full force and effect as if they had been executed subsequent to the expungement of the invalid provision.


18.Amendment


This Agreement may be amended only by written instruments signed and agreed upon by both Parties.


19.Entire agreement


This Agreement represents the entire agreement between the Company and the Participating Merchant  and supersedes all other prior negotiations, representations, agreements, either oral or written.


20.Assignment


The Company reserves the right to assign any or all of its rights, duties and obligations hereunder to any third party without need of notice to or consent from the Participating Merchant. The Participating Merchant may not assign its rights and obligations under this Agreement without the prior written consent of the Company.


21.Governing law


This Agreement shall be governed by and construed in accordance with the laws of the Republic of the Philippines

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