Grubhub Merchant Terms*

* These Grubhub Merchant Terms were previously titled “Grubhub Restaurant Terms.” All references to “Restaurant” in prior versions of these Terms are herein replaced with “Merchant.” Additionally, all references to “Restaurant” in the Agreement shall be deemed references to “Merchant” in these Terms.

Effective July 13, 2024

These Grubhub Merchant Terms (“Terms”) apply to the service relationship between Grubhub Holdings Inc., its subsidiaries and affiliates (collectively, “Grubhub” or “GH”) and the restaurant or other merchant  (“Merchant” or “You”) signing the Grubhub services form or Marketplace Agreement (whichever applicable, the “Marketplace Agreement”), which is incorporated into these Terms. These Terms and the Marketplace Agreement will be together referred to as the “Agreement.” The Agreement is entered into as of the date set forth on the Marketplace Agreement (the “Effective Date”). Capitalized terms not defined herein will have the meanings set forth in the Marketplace Agreement. 

PRIOR TO LISTING YOUR MERCHANT ON GRUBHUB’S MARKETPLACE, PLEASE CAREFULLY REVIEW THESE GRUBHUB MERCHANT TERMS.  BY LISTING YOUR MERCHANT ON GRUBHUB’S MARKETPLACE, OR BY ENGAGING ANY GRUBHUB SERVICES, YOU, DIRECTLY AND ON BEHALF OF ANY BUSINESS OR ENTITY YOU OWN OR CONTROL, AGREE TO BE BOUND BY THESE GRUBHUB MERCHANT TERMS.  

ALSO, PLEASE NOTE THAT THE SECTION BELOW TITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION THAT WAIVES YOUR AND OUR RIGHTS TO A JURY TRIAL, REQUIRES ARBITRATION OF DISPUTES ON AN INDIVIDUAL BASIS, WAIVES THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE PROCEEDING, AND CONTAINS OTHER TERMS THAT LIMIT THE REMEDIES AVAILABLE IN THE EVENT OF DISPUTES OR CLAIMS.

GRUBHUB MAY AMEND, UPDATE, OR MODIFY THESE TERMS AT ANY TIME, IN ITS SOLE DISCRETION, WITHOUT PRIOR NOTICE TO YOU.  ANY CHANGES MADE ARE EFFECTIVE IMMEDIATELY UPON POSTING OF THE REVISED TERMS ONLINE.  BY CONTINUING TO LIST YOUR MERCHANT ON GRUBHUB’S MARKETPLACE OR USING ANY SERVICES OR SYSTEMS AFTER SUCH CHANGES HAVE GONE INTO EFFECT, YOU CONSENT TO THE CHANGES AND AGREE TO BE BOUND BY THE MODIFIED TERMS.  IT IS MERCHANT’S RESPONSIBILITY TO REVIEW THESE TERMS REGULARLY.

1. Rights and Obligations of GH
   1. GH will enable customers to purchase food, beverages, and other items from Merchant via (i) GH’s proprietary ordering, advertising, delivery logistics and billing system at grubhub.com and its associated web-based and mobile properties and apps, including if and where available, those operating under the Seamless brand (the “GH System”), and (ii) at GH’s sole option, at any properties, services, websites, apps, or companies partnered with GH (together with the GH System, the “Systems”). 
   2. MARKETING SERVICES: GH will include Merchant on the Systems, as provided herein, and will enable the transmission of orders to Merchant for pickup or delivery (the “Marketing Services”). The Marketing Services, together with the Delivery Services and the POS Services (each as defined below), will be referred to herein as the “Services.”
   3. DELIVERY SERVICES: GH will connect Merchant with delivery service providers through GH’s proprietary logistics platform(s) (the “Delivery Services”). The Delivery Services expressly include Merchant’s access to supplemental delivery services which can be engaged on a per-delivery basis (“On Demand Delivery”), or preset in advance to increase the availability of delivery for Merchants that typically prefer to deliver orders using Merchant’s own personnel (“Supplemental Delivery”).  GH will have the sole right to determine the particulars of the Delivery Services, including, without limitation, the delivery fee, delivery area and availability.  Additionally, GH will have the sole right to enable the Delivery Services for Merchants that have not previously elected to use the Delivery Services, if GH reasonably determines, in its sole discretion, that Merchant’s self-delivery services are providing a poor or inadequate experience for customers using the Systems.  Prior to enabling the Delivery Services, GH will notify Merchant of the change (email sufficient) and communicate the GH Delivery Commission applicable to the Delivery Services (which GH Delivery Commission shall be the standard rate in the applicable market(s)).  For clarity, GH does not itself provide delivery or logistics services; instead, GH provides a platform for Merchants to connect with delivery service providers to transport orders to customers and to receive information relating thereto. GH delivery service providers are independent contractors who access GH’s proprietary technologies to provide real-time delivery and logistics services, and such independent contractors control the method and manner in which they deliver orders. Accordingly, GH will not be liable or responsible for any delivery service providers or any errors or misrepresentations made by them.
   4. POS SERVICES OR INTEGRATED SERVICES (IF SELECTED): Merchant and GH will connect, or Merchant will authorize its approved or designated service provider(s) to connect, the GH System with Merchant’s point-of-sale provider (“POS Provider”) and/or Merchant’s online ordering provider (“Ordering Provider,” and together with POS Provider, the “Integrated Services”). Merchant expressly permits GH to have access to, and will ensure GH is an authorized user on, its POS Provider and Ordering Provider accounts, and GH will be permitted to use Merchant’s POS Provider and Ordering Provider accounts, and data included therein, in order to provide the Services. GH disclaims any and all liability for the availability and operations of the Integrated Services, and all service requests in connection with the Integrated Services will be directed to the applicable POS Provider or Ordering Provider, and not to GH. Merchant agrees that its use of any GH application programming interfaces in connection with the Integrated Services is subject to Grubhub Restaurant POS API Terms as in effect (available at https://get.grubhub.com/legal/restaurant-pos-api-terms).
   5. GH owns all right, title, and interest in and to the GH System and any content supplied by GH, and will have sole editorial control over the GH System, including the presentation of any content provided by Merchant (“Merchant Content”). Merchant Content may include, without limitation, restaurant name, menus, photographs, trademarks and logos. For the term of the Agreement and for six (6) months thereafter, Merchant hereby grants to GH a royalty-free, worldwide, sub-licenseable, transferable, fully paid-up, irrevocable right and license to use the Merchant Content on the Systems, and for marketing and promotional purposes via any means now known or hereinafter developed. Merchant owns all right, title, and interest in and to the Merchant Content, subject to the license granted to GH herein.  GH may, in its sole discretion, remove, supplement, or replace any Merchant Content: (i) that violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Systems, including in the event that GH determines that Merchant is listing for sale any inappropriate products, or illicit substances or products that are prohibited from being sold under any applicable laws, rules or regulations; or (ii) in order to enhance or improve customers’ experience when using the Systems or Merchants’ ability to attract and maintain customers. 
   6. GH may perform maintenance on the Systems from time to time, which may result in interruption, delays, errors, or bugs in the Systems or Services. GH will not be liable for any such interruptions, delays, errors or bugs. 
   7. WARRANTY DISCLAIMER: TO THE FULLEST EXTENT PERMITTED BY LAW, GH AND ALL GH PARTNERS DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IN CONNECTION WITH OR IN ANY WAY RELATED TO THE AGREEMENT, THE SYSTEMS, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR QUALITY. THE SYSTEMS AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND MERCHANT’S USE OF THE SYSTEMS AND SERVICES IS AT MERCHANT’S SOLE RISK.  
   8. LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER GH NOR ANY GH PARTNER WILL BE LIABLE TO MERCHANT FOR DAMAGES RESULTING FROM THE FAILURE OF THE SYSTEMS, SERVICES OR MERCHANT CONTENT. GH WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO MERCHANT FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES, LOSSES, FEES, CHARGES, EXPENSES, OR LIABILITIES ARISING OUT OF OR RELATED TO THE AGREEMENT, THE SYSTEMS, OR THE SERVICES, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.GH’S MAXIMUM LIABILITY UNDER OR RELATING TO THE AGREEMENT, THE SYSTEMS, OR THE SERVICES WILL BE THE AMOUNT OF COMMISSIONS EARNED BY GH DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES.THE PARTIES AGREE THAT THE EXCLUSIONS OF REMEDIES AND LIMITATIONS SPECIFIED IN THIS SECTION ARE A REASONABLE ALLOCATION OF RISK, AND APPLY REGARDLESS OF THE FORM OF ACTION AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.TO THE EXTENT ANY OF THE ABOVE LIMITATIONS OF LIABILITY IS RESTRICTED BY LAW, SUCH LIMITATION SHALL BE APPLIED TO THE FULLEST EXTENT PERMITTED UNDER SUCH LAW.
2. Rights and Obligations of Merchant
   1. Merchant will maintain the confidentiality of all non-public information that it acquires in the course of performing the Agreement, including without limitation all Customer Data (as defined below), as well as the terms and conditions of the Agreement (collectively, “Confidential Information”). Merchant will not share or disclose to any third parties, or use in any way other than as necessary to perform its obligations hereunder, GH’s Confidential Information. Merchant will ensure that Confidential Information will only be made available to those of its employees and authorized agents who have a need to know such Confidential Information and who are bound by written obligations of confidentiality at least as protective as those set forth herein. Upon expiration or termination of the Agreement and as requested by GH, Merchant will deliver to GH (or destroy at GH’s election) any and all materials or documents containing Confidential Information.
   2. “Customer Data” means (i) any and all information about customers generated or collected by GH or Merchant through the Systems or Services, including, but not limited to, customer names, delivery address(es), email address(es), phone number(s), and customer preferences and tendencies, (ii) any other information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household, and (iii) information that may otherwise be considered “personal data” or “personal information” under applicable law. Merchant acknowledges that all Customer Data is the sole and exclusive property of GH (or, as applicable, the GH Partner). Accordingly, Merchant will use Customer Data for the sole purpose of fulfilling applicable customer orders or otherwise satisfying Merchant’s obligations hereunder. For the avoidance of doubt, Merchant will not use any Customer Data, whether alone or in combination with data from other sources, for the purpose of re-identification, targeted marketing, or other similar purposes. Merchant will not provide Customer Data to any third party (unless required by law or pursuant to a court order) and will implement and maintain reasonable administrative, physical and technical safeguards in accordance with current industry best practices in order to protect, handle, and secure Customer Data. Merchant will notify GH  within twenty-four (24) hours of discovery of any actual or reasonably suspected accidental, unlawful, and/or unauthorized disclosure, access, acquisition, alteration, corruption, destruction, loss, or use of any Confidential Information, and assist and cooperate with GH concerning any remedial measures and any disclosures to affected parties, in each case as requested by GH or required under applicable law.  In the event that Merchant fails to comply with any of the requirements of this provision, GH may, at its sole discretion: (i) enable the Delivery Services for one or more locations (at the standard GH Delivery Commission rate in the applicable market(s)); (ii) remove one or more locations from the Systems without prior notice to Merchant; and/or (iii) terminate the Agreement upon three (3) days’ notice to Merchant. 
   3. Merchant agrees that its use of the Systems and Services is subject to the Grubhub Terms of Use as in effect at the time (available at https://www.grubhub.com/legal/terms-of-use), and further agrees that Merchant’s access to and use of Customer Data will be subject to the Grubhub Privacy Policy as in effect at the time (available at https://www.grubhub.com/legal/privacy-policy). If Merchant is using Grubhub for Restaurants (“GFR”) to receive and confirm orders from GH, Merchant will be subject to, and will comply with the GFR Terms of Use as in effect at the time (available at https://restaurant.grubhub.com/terms-of-use). Merchant is responsible for maintaining the confidentiality and security of Merchant’s GFR account and password and any email account and password used as part of Merchant’s GFR credentials. Merchant is fully responsible for all activities and actions that occur under or are taken in connection with Merchant’s GFR account, email account, and associated passwords (including any individual user accounts created under your GFR account). Merchant is responsible for ensuring that the bank account associated with Merchant’s GFR account is correct at all times. Merchant agrees that GH shall have no liability or obligation to Merchant for funds transferred to a bank account associated with Merchant’s GFR account, including if such bank account is linked in Merchant’s GFR account through the unauthorized use of Merchant’s email or GFR account. Merchant will not use the Systems or Services for any illegal purposes, or in any way otherwise inconsistent with any and all applicable laws, rules and regulations.
   4. If Merchant is a franchisee of a franchisor (“Franchisor”) that has negotiated an enterprise agreement with GH (the “Enterprise Agreement”), Merchant consents to the sharing of certain sales reporting data with Franchisor pursuant to the Enterprise Agreement.
   5. Merchant represents, warrants and covenants: (i) it has the authority to enter into the Agreement and to grant the rights granted hereunder, and doing so will not violate any other agreement to which it is a party; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) the Merchant Content will not infringe, misappropriate or otherwise violate the rights of any third party; (iv) it will comply with all applicable retail food, beverage (including alcohol) or other health and safety codes, rules or regulations, as well as any other laws applicable to its business (including without limitation the obligation to pay tips to delivery and other workers, if any); (v) it will provide accurate tax rates and calculations to GH; (vi) provide accurate and complete information pertaining to the Merchant’s locations, location establishment type (e.g., restaurant vs. grocery), particular items, item categorization, or particular sales of items, which GH may, from time to time, require Merchant to provide for the proper determination, calculation, collection, and remittance of taxes (“Tax Information”) and (vii) where required under applicable law, it will remit to the applicable taxing authority all taxes, and file all required tax returns and forms.
   6. In the event that Merchant is duly licensed and authorized to include alcohol in its menu on the Systems, Merchant will at all times comply with the Grubhub Additional Terms for Alcohol Sales as set forth at https://get.grubhub.com/legal/alcohol-terms/. 
   7. Merchant shall permit delivery service providers to use its toilet facility while performing the Delivery Services, except (i) where accessing the toilet facility would require a delivery service provider to walk through Merchant’s kitchen, food preparation, storage area, or utensil washing area; (ii) where accessing the toilet facility would create an obvious health and safety risk to the delivery service provider or to Merchant; or (iii) any additional exceptions promulgated under applicable law or regulation.
   8. GH makes no promise or guarantee that Merchant will be included in (or remain included in) GH’s subscription program, Grubhub+.  Notwithstanding anything contained in the Marketplace Agreement, GH reserves the right to suspend or remove Merchant from Grubhub+ for any reason in GH’s sole discretion.
   9. GH may provide tablets or other equipment or hardware (collectively, “Hardware”) to Merchant in connection with the Services. Merchant will return all such Hardware to GH in reasonably good condition, subject to normal wear and tear, upon the expiration or termination of the Agreement.
   10. Merchant acknowledges and agrees that for certain transactions, the subtotals shown at checkout on the GH System may differ from the total amount due, and that regardless of the cause, Grubhub reserves the right to charge the final price after checkout, including without limitation all applicable transaction taxes. Merchant acknowledges and agrees that in some cases, Grubhub may issue an additional charge to a customer’s payment method for the amount needed to account for any difference between the amount shown at checkout on the GH System and the final in-store checkout total.
   11. For Merchants with locations in the City of Alameda, California only: Merchant acknowledges and agrees that Section 6-62.2 of the Alameda Municipal Code governs the fees that GH may charge food establishments in City of Alameda, California for marketplace and delivery services. GH offers a package of basic Services in exchange for aggregate commissions of 15% (such package, the “Basic Plan”). Merchant understands that, if it selects a package of Services other than the Basic Plan, Merchant will opt out of the limitation on fees outlined under Section 6-62.2 and waive its rights under Section 6-62.2. Merchant may, at any time during the Term, rescind the foregoing waiver in writing by opting to join a Basic Plan. 
   12. Merchant will indemnify and hold GH (including its directors, employees, officers, agents) harmless from any and all claims, actions, and proceedings (collectively “Claims”), damages, liabilities, losses and costs arising out of Merchant’s activities, including, without limitation, (i) any third-party transactions or financing arrangement; (ii) Merchant’s provision, calculation, reporting or remission of taxes; (iii) Merchant’s failure to provide accurate and complete descriptions of all items Merchant offers for sale via the Systems, including information transmitted through the Integrated Services, sufficient for accurate tax calculations; or (iv) any breach or alleged breach of the representations, warranties or covenants set forth in the Agreement. GH will provide notice to Merchant of any potential Claim subject to indemnification hereunder. Merchant will assume the defense of the Claim through counsel designated by it and reasonably acceptable to GH, provided that GH may use counsel of its choice at its own expense. Merchant will not settle or compromise any Claim or consent to the entry of any judgment without the prior written consent of GH, which will not be unreasonably withheld. GH will reasonably cooperate with Merchant in the defense of the Claim, at Merchant’s expense.
   13. Taxes. Merchant will provide GH with accurate tax rates for all items Merchant offers for sale via the Systems.  GH may, in its sole discretion, supplement or replace the tax rates provided by Merchant with tax rates that GH has obtained from a taxation service provider (“Tax Services”). Merchant acknowledges that the Tax Services may contain information provided directly or indirectly to GH by taxing authorities and may produce results that are based on interpretations of federal, state, local and foreign laws and regulations. Merchant will be solely responsible for evaluating all data and results generated by the Tax Services. GH’s provision of the Tax Services does not constitute legal or tax advice and Merchant assumes sole responsibility for the effect of the interpretations contained in the data and results generated by its use of the Tax Services. Merchant shall promptly notify GH of any inaccuracy in the Tax Information and, upon receipt by GH of notification of an inaccuracy in such information, GH shall, at no additional charge to Merchant, correct such inaccuracy on a go-forward basis. Merchant shall provide written documentation of such inaccuracy if reasonably requested by GH. Where required under applicable law, GH will report and remit all sales tax collected on orders placed through the GH System to the applicable taxing authority, as listed on the following website (or alternative website designated by GH in its sole discretion): https://lp.grubhub.com/legal/sales-tax-remittance/.  Whether GH is required to remit sales tax directly to a tax authority may depend on the type of products Merchant sells.  Updates to GH’s tax reporting and remitting practices will be made to Merchant by email or by a notification in GFR.
3. Payment Terms
   1. In consideration for Merchant’s access to the applicable Systems and Services, Merchant will pay to GH the commissions and other fees set forth in the Marketplace Agreement (collectively, the “Commissions”).
   2. Merchant acknowledges and agrees that (i) GH is the agent of the Merchant for purposes of the payment transaction, (ii) the customer placing the order with Merchant shall be deemed to be the payor for any such payment transaction, (iii) the Merchant shall be deemed to be the payee for any such payment transaction, and (iv) the customer’s obligation to pay the Merchant in connection with any such payment transaction is satisfied upon receipt by GH of payment from the customer, including in the event GH fails to remit funds to Merchant. Merchant agrees to fully cooperate with GH to ensure GH acts as Merchant’s “agent of the payee” for orders completed under these Terms including, without limitation and where required by applicable law, by holding GH out to the public as accepting payments for goods and services on Merchant’s behalf.
   3. GH will transmit to Merchant the funds it receives from orders placed less any applicable Commissions, charges, fees, and taxes.  Merchant must submit to GH any request to review a payment amount, statement, Commission, charge, fee, or tax within 90 days of receipt of payment after which time Merchant will no longer be entitled to any adjustment and will be deemed to have accepted the payment and any accompanying statement as a complete and accurate accounting of the amounts due to Merchant for the referenced orders.   
   4. GH may, in its sole discretion, adjust, cancel, or withhold payments if: (a) there is an actual or potential legal or regulatory risk associated with the payment; or (b) Merchant has engaged in fraud, misconduct, or any violation of the these Terms or Merchant’s Marketplace Agreement or any violation of any applicable law, rule or regulation.
4. Term and Termination
   1. The Agreement may be terminated by either party for any reason (or no reason) upon three (3) days’ prior written notice to the other party (email sufficient).
   2. GH may immediately suspend the Services, or terminate the Agreement upon written notice to Merchant, if: (i) at any time GH believes, in its sole discretion, that any Merchant Content violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Systems, including in the event that GH determines that Merchant is listing for sale any inappropriate products, or illicit substances or products that are prohibited from being sold under any applicable laws, rules or regulations, or (ii), in GH’s reasonable discretion, Merchant’s continued inclusion in the Systems or GH’s continued provision of Services to Merchant poses a risk of reputational harm to GH, including to GH’s brand and marks. 
   3. ONLY FOR CATERING, SCHEDULED TEAM ORDERING, DELIVERY SERVICES OR INTEGRATED SERVICES: If either party wishes to cancel (i) participation in Catering, (ii) participation in Scheduled Team Ordering; (iii) the Delivery Services; and/or (iv) the Integrated Services, in each case, while remaining on the other platform(s) and/or retaining the other Services, it may do so at any time upon three (3) days’ prior written notice to the other party. Notwithstanding anything to the contrary herein, in the event that participation in Catering, participation in Scheduled Team Ordering, the Delivery Services and/or the Integrated Services are canceled, the Agreement will continue in full force and effect, except that: (A) “Services” will be redefined to refer only to the remaining Service(s), (B) “Commission” will be redefined to refer only to the Commission(s) applicable to the remaining Services, and (C) any obligations of GH with respect to the canceled Service(s) will be of no further force and effect. Further, (I) any cancellation of Delivery Services for Catering or Scheduled Team Ordering will result in Merchant’s removal from participation in, respectively, Catering and Scheduled Team Ordering; and (II) any cancellation of the Integrated Services may affect the Commission rates of the remaining Services. Any references to “Grubhub for Work” or “GFW” in a Marketplace Agreement are deemed to refer to Catering and Scheduled Team Ordering. For the avoidance of doubt, Commission rates specified for “Grubhub for Work” or “GFW” in a Marketplace Agreement will be applied to Catering and Scheduled Team Ordering.
5. Dispute Resolution: PLEASE READ THE FOLLOWING PROVISION CAREFULLY BECAUSE IT REQUIRES ARBITRATION OF DISPUTES ON AN INDIVIDUAL BASIS AND LIMITS THE PROCEDURES BY WHICH MERCHANT AND GH CAN SEEK RELIEF.
   1. Merchant and GH agree that they are both business entities that mutually benefit from streamlined and confidential resolution of disputes, and that all past, existing, currently pending, or future claims or disputes arising out of the Agreement or in any way related to the Systems or Services, or any other disputes of any kind between Merchant and GH, will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). BOTH MERCHANT AND GH WAIVE THE RIGHT TO A JURY TRIAL RELATING TO SUCH DISPUTES, TO THE FULLEST EXTENT OF THE LAW. This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving interstate commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which are available at www.adr.org, as modified by this Arbitration Agreement. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees and filing fees. The arbitration proceeding will take place in New York, NY, unless otherwise agreed, and all arbitration proceedings will be confidential and closed to the public. 
   2. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class, representative, mass, or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class, representative, mass, or collective action (“Class Action Waiver”). The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable, except with respect to the Class Action Waiver, the enforceability of which can only be determined by a court. Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; and (c) claims for temporary relief in connection with an arbitrable controversy.
   3. Merchant and GH also agree that each party will notify the other in writing of any dispute before initiating arbitration, so that the parties can try to resolve the dispute informally and individually.  Notice by GH will be sent to the contact information provided by Merchant to GH, and notice by Merchant to GH will be sent by mail to 111 West Washington Street, Suite 2100, Chicago, IL 60602 and to the following email address legal@grubhub.com.  The notice of dispute must be specific and individual to the Merchant and include a brief description of the dispute, the amount of money (if any) at issue, and the specific relief sought.  The notice should be signed by the party.  Merchant and GH then agree to negotiate personally, individually, and in good faith to try to resolve the dispute.  If and only if the parties cannot resolve the dispute within 30 days after the notice is issued, then either party may commence an arbitration proceeding with a written demand for arbitration.  Compliance with this pre-arbitration notice and the good-faith negotiation provision is a condition precedent and requirement for initiating any arbitration proceedings.
   4. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The arbitrator will have the authority to award monetary damages and other remedies on an individual basis only to the extent available under applicable law and consistent with and subject to the limitations set forth in this Agreement. Also, to the fullest extent allowed by law, the arbitrator may award declaratory or injunctive relief only in favor of Merchant or GH and only to the extent necessary to provide the relief warranted by Merchant or GH’s individual claim.
6. Miscellaneous Terms
   1. Relationship of Parties. GH and Merchant are independent contractors, and nothing herein may be construed to create any agency, partnership or joint venture between them. Notwithstanding anything to the contrary, neither party has any authority of any kind to bind the other party in any respect whatsoever. The Agreement is not intended to benefit, nor will it be deemed to give rise to, any rights in any third party. 
   2. Interpretation.  No ambiguity will be construed against any party based upon a claim that such party drafted the ambiguous language. 
   3. Governing Law.  With the exception of the Arbitration Agreement, which will be governed by the FAA, the Agreement will be governed by New York law, without regard to conflict of law principles
   4. Entire Agreement.  The Agreement and any other agreements or terms incorporated herein by reference, constitute the entire agreement between the parties and supersedes any prior understanding (written or oral) on the subject matter hereof. In the event of any conflict between the Agreement and any of the Grubhub Terms of Use, the Grubhub Privacy Policy, the GFR Terms of Use, or the Grubhub Restaurant POS API Terms, the terms of the Agreement will control; in the event of any conflict between the terms of the Marketplace Agreement and these Terms, the terms of the Marketplace Agreement will control. 
   5. Modification.  Grubhub may amend, update, or modify these Terms at any time, in its sole discretion, without prior notice to You.  Any changes made are effective immediately upon posting of the revised terms online.  By continuing to list your Merchant on Grubhub’s Marketplace or using any Services or Systems after such changes have gone into effect, You consent to the changes and agree to be bound by the modified terms.  It is Merchant’s responsibility to review these terms regularly.  The Agreement, including this provision, may not be amended by Merchant unless such amendment is in writing and signed by an authorized representative of GH. 
   6. Severability. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then that provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. 
   7. Remedy for Breach.  In the event of a breach, in addition to any remedies at law or in equity, the non-breaching party will be entitled to seek specific performance and immediate injunctive relief.
   8. Waiver.  Failure by either party to require performance, enforce a right, or claim breach will not be construed as a waiver. 
   9. Force Majeure.  A party will not be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. 
   10. Assignment.  Merchant may not assign the Agreement without the prior written consent of GH, and if permission is secured, the assignor will provide GH with advance written notice so that payment can be directed appropriately. Any assignment by Merchant in violation of this provision will be deemed a nullity. GH may freely assign the Agreement. The Agreement will be binding on the parties’ permitted heirs, successors and assigns. Any dispute, controversy or proceeding arising out of or relating to the Agreement or the relationship between the parties hereto will be governed by in accordance with the terms of the Agreement. 
   11. Survival.  This Section 6, the customer data, payment terms, ownership, license grants, confidentiality, indemnity, limitations of liability and arbitration provisions (including the class action waiver) and any other terms required for the full interpretation of the Agreement following expiration or termination will survive any expiration or termination of the Agreement.
   12. Notices. All notices under the Agreement will be in writing and will be deemed to have been duly given on the earliest to occur of (i) upon delivery, or refusal of delivery, if personally delivered; (ii) on the third business day after deposit with the United States Postal Service if sent by certified mail; (iii) on the first business day after delivery to a nationally recognized overnight courier if sent by such a courier; and (iv) on the day transmitted, as indicated by the transmission confirmation, if given by email (however, any notice transmitted by email after 5:00 PM local time at the destination of the recipient or on a day other than a business day will be considered given on the next business day). All notices to Merchant will be sent to Merchant at the address provided on the Marketplace Agreement under “Contact Information,” or such other address provided by Merchant and accepted by GH in writing. All notices to GH will be sent to the below, unless otherwise set out in this Agreement or provided by GH:

Grubhub Holdings Inc.

111 W. Washington St., Ste. 2100

Chicago, IL 60602

Attn: Legal Department

Email: legal@grubhub.com