These Grubhub Restaurant Terms (“Terms”) apply to the service relationship between Grubhub Holdings Inc., its subsidiaries and affiliates (collectively, “Grubhub” or “GH”) and the restaurant (“Restaurant”) signing the Grubhub services form (the “Services Form”), which is incorporated into these Terms. These Terms and the Services Form will be together referred to as the “Agreement.” The Agreement is entered into as of the date set forth on the Services Form (“Effective Date”). Capitalized terms not defined herein will have the meanings set forth in the Services Form. THE SECTION BELOW ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS RESTAURANT’S LEGAL RIGHTS. PLEASE READ IT.
1. Rights and Obligations of GH
a. GH will enable customers to purchase food and beverages from Restaurant 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 (the “GH Platform”); (ii) if selected on the Services Form, the Grubhub for Work platform (“GFW”); (iii) at GH’s sole option, any other affiliated brand or platform, including, without limitation, Seamless and Eat24 (together with the GH Platform and GFW, the “GH System”), and (iv) at GH’s sole option, at any properties partnered with GH (each, a “GH Partner”). The GH System, together with the systems of any GH Partners, will be referred to herein as the “Systems.”
b. MARKETING SERVICES: GH will include Restaurant on the Systems as provided herein, and will enable the transmission of orders to Restaurant 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.”
c. DELIVERY SERVICES (IF SELECTED): GH will connect Restaurant with delivery service providers through GH’s proprietary logistics platform(s) (the “Delivery Services”). For clarity, GH does not itself provide delivery or logistics services; instead, GH provides a platform for restaurants 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 on-demand 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. GH will have the sole right to determine the particulars of the Delivery Services, including, without limitation, the delivery fee, delivery area and availability.
d. POS SERVICES (IF SELECTED): Restaurant and GH will connect the GH System with Restaurant’s point-of-sale (“POS”) system (the “POS Services”). Restaurant expressly permits GH to have access to, and will ensure GH is an authorized user on, its POS account, and GH will be permitted to use Restaurant’s POS account and data included therein in order to provide the Services. GH disclaims any and all liability for the availability and operations of the POS Services, and all service requests in connection with the POS Services will be directed to the applicable POS provider (as identified on the Services Form) and not GH. Restaurant agrees that its use of any GH Application Programming Interfaces in connection with the POS Services is subject to Grubhub Restaurant POS API Terms as in effect (available at https://get.grubhub.com/legal/restaurant-pos-api-terms).
e. 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 Restaurant (“Restaurant Content”). Restaurant Content may include, without limitation, menus, photographs, trademarks and logos. For the term of the Agreement and for six (6) months thereafter, Restaurant hereby grants to GH a royalty-free, worldwide, sub-licenseable, transferable, fully paid-up, irrevocable right and license to use the Restaurant Content on the Systems, and for marketing and promotional purposes via any means now known or hereinafter developed. Restaurant owns all right, title, and interest in and to the Restaurant Content, subject to the license granted to GH herein. GH may remove Restuarant Content on the Systems at any time if it believes, in its sole discretion, that such Restaurant Content violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Systems.
f. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, GH AND ALL GH PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE SYSTEMS, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND NEITHER GH NOR ANY GH PARTNER WILL BE LIABLE TO RESTAURANT FOR DAMAGES RESULTING FROM THE FAILURE OF THE SYSTEMS, SERVICES OR RESTAURANT CONTENT. GH WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO RESTAURANT FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. GH’S MAXIMUM LIABILITY UNDER THE AGREEMENT 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 FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
2. Additional Rights and Obligations of Restaurant
a. Restaurant 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, the “Confidential Information”). Restaurant will not disclose to any third parties, or use in any way other than as necessary to perform its obligations hereunder, GH’s Confidential Information. Restaurant will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be 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, Restaurant will deliver to GH (or destroy at GH’s election) any and all materials or documents containing the Confidential Information, together with all copies thereof in whatever form.
b. “Customer Data” means (i) any and all information about customers generated or collected by GH or Restaurant through the Systems or Services, including, but not limited to, customer’s name, delivery address(es), email address(es), phone number(s), and customer preferences and tendencies and (ii) any information that may otherwise be considered “personal data” or “personal information” under applicable law. Restaurant acknowledges that all Customer Data is the sole and exclusive property of GH (or, as applicable, the GH Partner). Accordingly, Restaurant will use Customer Data for the sole purpose of fulfilling applicable customer orders or otherwise satisfying Restaurant’s obligations hereunder. Restaurant (and any other persons to whom Restaurant provides any Customer Data only as necessary to perform the Agreement) will implement and maintain comprehensive administrative, physical and technical safeguards in accordance with current best practices in Restaurant’s industry in order to protect, handle, and secure Customer Data. Restaurant will also be responsible for any breach of this provision by any third-party service provider engaged by Restaurant. Restaurant will notify GH in a secure manner immediately upon a data security breach or any reasonable suspicion thereof or any other unauthorized disclosure of 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.
d. Restaurant 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 Restaurant Content will not infringe 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; and (vi) it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms. In the event that Restaurant includes alcohol in its menu on the Systems, Restaurant further represents and warrants that it maintains a valid and active liquor license and all other applicable licenses, permits and registrations for the sale, distribution and (if applicable) delivery of alcohol (collectively, “Liquor Licenses”). Restaurant will provide GH with a copy of the Liquor Licenses and all renewals thereof, and will immediately notify GH if any Liquor License is not renewed or is revoked, cancelled or surrendered at any time during the Term.
e. Restaurant will indemnify and hold GH (including its directors, employees, officers, agents) harmless from any and all claims, actions, proceedings and damages arising out of Restaurant’s activities, including, without limitation, (i) any third-party transactions or financing arrangement; (ii) Restaurant’s provision, calculation, reporting or remission of taxes; or (iii) any breach or alleged breach of the representations, warranties or covenants set forth in the Agreement. GH will provide prompt notice to Restaurant of any potential claim subject to indemnification hereunder. Restaurant 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. Restaurant will not settle or compromise any claim or consent to the entry of any judgment without the written consent of GH, which will not be unreasonably withheld. GH will reasonably cooperate with Restaurant in the defense of the claim, at Restaurant’s expense.
3. Payment Terms In consideration for Restaurant’s access to the applicable Systems and Services, Restaurant will pay to GH the commissions set forth in the Services Form (collectively, the “Commissions”).
a. The Agreement may be cancelled by either party for any reason (or no reason) upon three (3) days’ prior written notice to the other party.
b. ONLY FOR GFW, DELIVERY SERVICES OR POS SERVICES: If either party wishes to cancel (i) placement on the GFW platform; (ii) the Delivery Services; and/or (iii) the POS 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 only placement on the GFW platform, the Delivery Services and/or the POS Services are cancelled, 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 cancelled Service(s) will be of no further force and effect. Further, (I) any cancellation of Delivery Services for GFW will result in Restaurant’s removal from the GFW platform; and (II) any cancellation of the POS Services may affect the Commission rates of the remaining Services.
5. Dispute Resolution Restaurant and GH agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving 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. 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. The arbitration proceeding will take place in New York, NY, unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class 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 or collective action (“Class Action Waiver”). 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; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
7. Notices. All notices under the Agreement will be in writing and will be deemed to have been duly given if 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 Restaurant will be sent to Restaurant at the address provided on the Services Form under “Contact Information,” or such other address provided by Restaurant and accepted by GH in writing. All notices to GH will be sent to the below, unless otherwise provided by GH:
Grubhub Holdings Inc.
111 W. Washington St., Ste. 2100
Chicago, IL 60602
Attn: Legal Department
Email: [email protected]