Grubhub Restaurant Terms

Updated February 4, 2020

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 up for the Services (as defined herein). These Terms, and any other terms set forth in the sign up process will be together referred to as the “Agreement.” The Agreement is entered into as of the date Restaurant signs up for the Services (“Effective Date”). THE SECTION BELOW ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS RESTAURANT’S LEGAL RIGHTS. PLEASE READ IT.

1. 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 at GH’s sole option, its associated web-based and mobile properties and apps, including Seamless and/or GFW (the “GH Platform”); and (ii) at GH’s sole option, at any properties partnered with GH (together with the GH Platform, the “Systems.” The foregoing will not apply to any Restaurant that has not signed up for Marketing Services until such Restaurant elects to receive such Marketing Services.

b) MARKETING SERVICES (IF SELECTED): 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”). GH will have the sole right to determine the particulars of the Delivery Services, including, without limitation, the delivery fee, delivery area and availability. 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.

d) GH owns all right, title, and interest in and to the GH Platform and any content supplied by GH, and will have sole editorial control over the GH Platform, 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 Restaurant 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.

e) TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, GH DISCLAIMS 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 GH WILL NOT 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.

1. 1. Rights and Obligations of Restaurant

a) Restaurant will prepare food and beverage orders placed via the Systems (i) consistent with menu descriptions; (ii) in compliance with all applicable health and safety requirements; (iii) in accordance with industry standards; and (iv) during the hours of operation provided by Restaurant to GH. Restaurant will ensure that its menu(s), hours of operation, and other particulars required for GH to perform the Services are up to date. Restaurant will ensure that its menu descriptions are sufficiently detailed as to ingredients and allergens, and contain any other health or safety notices that are recommended or required by applicable law, rule or regulation.

b) Restaurant menu items available for purchase through the Systems must be substantially similar to those menu items available in-store and through any other digital ordering channel. Restaurant menu item pricing through the Systems must be at least as favorable to the consumer as that which is available on Restaurant’s standard menu or offered to any third-party service, and GH may update menu item pricing through the Systems to match more favorable terms of available elsewhere.

c) Restaurant consents to receiving phone calls, faxes, emails, text messages and any other communications made available by and on behalf of GH as they may relate to the Systems, Services and terms governing Restaurant’s use of the Systems and Services, including without limitation, marketing or transactional matters. Restaurant hereby consents to the recording of telephone conversations related to the Systems and Services and will ensure Restaurant’s employees, service providers and agents are informed of the same and consent to recording by GH. If Restaurant accepts phone orders, Restaurant must advise those placing phone orders that CSC (Card Security Code)/CVV/CVV2 should not be transmitted over the phone.

d) Restaurant will not, and will not permit any third party to, market to or solicit any customer or company obtained through the Systems or via the Services for any purpose. For example, but without limitation, Restaurant may not solicit a customer or order directly from Restaurant or through a third-party. For the avoidance of doubt, the foregoing does not apply to any customer or company whose existence and information Restaurant obtained independently of the Systems and Services.

e) 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.

f) “Customer Data” means (i) any and all information about customers generated or collected by GH or Restaurant through the Systems or Services, which may include but is 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. 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 industry best practices 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.

g) Restaurant 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 Restaurant’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 Restaurant is using Grubhub for Restaurants (“GFR”) to receive and confirm orders from GH, Restaurant will comply with the GFR Terms of Use as in effect at the time (available at https://restaurant.grubhub.com/terms-of-use).

h) If Restaurant is a franchisee of a franchisor (“Franchisor”) that has negotiated a master agreement with GH (“Master Agreement”), Restaurant consents to the sharing of certain sales reporting data with Franchisor pursuant to the Master Agreement. i) 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. j) 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.

1. 1. Payment Terms

a) In consideration for Restaurant’s access to the applicable Systems and Services, Restaurant will pay to GH the Marketing Commission (for non-catering and/or catering and/or GFW orders, as applicable) and Delivery Commission (as applicable) provided in the sign up process (collectively, the “Commissions”). Except as otherwise specified, the Commissions apply to the product total on all orders placed through the Systems. The Delivery Commission does not apply to pickup orders or self-delivery orders. In the event Restaurant does not use or ceases to use Delivery Services, the Marketing Commission will apply to the product total and any delivery fee charged by Restaurant. For Restaurants that do not use Delivery Services, the Marketing Commission will be charged on telephone orders originating from the Systems based on the average of Marketing Commission amounts actually charged on at least Restaurant’s previous six ( 6 ) non-telephone orders. The Commissions may be amended by GH upon three ( 3 ) days’ prior written notice to Restaurant (email sufficient), provided that Restaurant does not cancel the Agreement during such notice period.

b) GH will transmit via check or Automated Clearing House (“ACH”) to Restaurant the “Payment Amount” at mutually agreed intervals. “Payment Amount” means the “Grand Total” (which includes the product total, tax, plus any tips and delivery fees for orders not using Delivery Services) received by GH for orders placed during the relevant billing period (“Billing Period”), less (i) the applicable Commissions, (ii) the processing fee (inclusive of credit charges) on the Grand Total, (iii) tax collected on orders to be reported/remitted by GH, and (iv) the amount of refunds or discounts granted to customers. Platforms associated with GH affiliates and partners may deposit their Payment Amounts to Restaurants separately.

c) Restaurant will provide to GH accurate and complete sales tax rates and computations (including, without limitation, any applicable state and local taxes) applicable to menu items and will provide reasonable advance notice to GH of any required changes to such rates and/or computations. Restaurant will report and remit all sales tax collected through the Systems to the applicable taxing authorities. Notwithstanding the foregoing, for certain Restaurants, GH will report and remit all sales tax collected on orders through the GH Systems to the applicable taxing authorities. For information on whether GH will report and remit sales tax for Restaurant pursuant to the foregoing, visit https://lp.grubhub.com/legal/sales-tax-remittance/. Updates to GH tax reporting and remitting practices may be made upon written notice to Restaurant (email sufficient).

1. 1. Term

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; provided, however, that GH may suspend the Services or access to the Systems during any time it believes Restaurant is in violation of the Agreement.

b) If either party wishes to cancel placement on any particular platform(s) and/or the Delivery 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 such platform and/or the Delivery 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.

1. 1. 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.

1. 1.  Miscellaneous Terms

GH and Restaurant 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 are not intended to benefit, nor will it be deemed to give rise to, any rights in any third party. No ambiguity will be construed against any party based upon a claim that such party drafted the ambiguous language. 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. 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 Privacy Policy, the GFR Terms of Use, or the Grubhub Restaurant POS API Terms, the terms of the Agreement will control. GH hereby reserves the right to update and modify these Terms at any time at its sole discretion, provided that such modifications will be applied only prospectively. You agree that GH has the right to notify you of updates to these Terms by posting them on the Systems. Therefore, you should review these Terms before using the Services. The Agreement may not be amended by Restaurant unless such amendment is signed by an authorized representative of GH. 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. 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. Failure by GH to require performance or claim breach will not be construed as a waiver by GH. 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. Restaurant 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 Restaurant 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. This Section 6, the customer data, ownership, confidentiality, indemnity, limitation of liability and arbitration provisions 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.

1. 1. 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 email address provided by the authorized representative during the signup process 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: legal@grubhub.com