b. Grubhub shall invoice Client on a weekly, bi-weekly, or monthly cadence, as requested by Client (“Invoice”) with the total amount due for all orders placed by End Users through the System(s) during the applicable invoice period (each a “Purchases”).
c. Grubhub shall charge Client a transaction fee for all Purchases placed by End Users through the System (the “Transaction Fee”). The Transaction Fee shall be calculated as 6% of the Purchases excluding tax, tip, delivery fee, and service fee or as otherwise agreed to by parties in writing.
d. Grubhub shall generate reports for each Purchase, which shall include: (A) the product subtotal; (B) the associated expenses (e.g., delivery fee, tax, tip); and (c) the Transaction Fee.
2. Concierge Service Clients Only. If Client opts to receive Grubhub’s concierge services, they shall enter into a separate addendum to be executed by both parties.
3. Representations and Warranties. Client 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; and (iii) its use of the Services and System will comply with all applicable laws.
4. Client’s Obligations.
a. Within 30 days after the date of Client’s first use of any System, Client shall position Grubhub as Client’s sole preferred vendor to its employees versus any other Grubhub competitor or other food delivery service.
b. Client acknowledges that Grubhub advances payment for Purchases placed via the System(s) on Client’s behalf. Client shall pay the total amount due on each Invoice within thirty (30) days of such Invoice being posted on the Grubhub administrative website (each, a “Payment Due Date“). Client may pay Invoices via ACH, wire transfer, credit card, or check. If Customer chooses to pay an Invoice by credit card, there is an additional 3% service fee.
c. If Client does not pay one or more Invoices by the Payment Due Date, a non-refundable late fee of 3% shall be assessed for all balances still outstanding.
d. Client agrees that Grubhub may send electronic communications seeking payment of all balances at any time of day.
e. Applicable only for Clients that are duly recognized tax-exempt organizations:
i. Prior to Client’s first use of the System, Client shall submit to Grubhub a properly completed and valid sales tax exemption certificate and/or number under Client’s legal name for each state in which orders will be placed on the System(s) (e.g., Form ST-119 (NY), Form ST-5 (MA)). To the extent a sales tax exemption certificate or number becomes invalid during the Term (defined below) of the Agreement, Client shall promptly notify Grubhub and provide a new certificate and/or number and shall not make any exempt Purchases hereunder until such replacement certificate and/or number is received by Grubhub.
ii. To the extent that Client operates in multiple states, Client represents and warrants that it shall only make exempt Purchases hereunder in states in which it has obtained a sales tax exemption.
iii. Client represents and warrants that it complies, and shall continue to comply, with applicable laws, rules and regulations, including those regarding sales tax exemption. Grubhub shall have no liability with respect to Client’s claim of tax-exempt status.
5. Liability and Insurance. Grubhub’s maximum total liability to Client arising out of or related to this Agreement, regardless of the cause of action, will not exceed the amount of transaction fees paid by Client in the twelve (12) month period immediately preceding the date on which the claim arose. In no event shall Grubhub be liable to Client for any lost profits or revenue, loss of business, or business interruption or for any consequential, incidental, special, exemplary, indirect or punitive damages, regardless of the cause of action and whether or not Grubhub has been advised of the possibility of such damages. Notwithstanding anything to the contrary herein, Client acknowledges and agrees that Grubhub is not responsible and therefore will have no liability for (i) the quality of the food or (ii) for delivery of the food provided by any individual or entity not directly engaged or contracted by Grubhub.
6. Intellectual Property; No Reverse Engineering. Client acknowledges and agrees that the design, text, graphics, interfaces, images (including the selection and arrangement thereof), software and all related technology in the System(s) are intellectual property owned or licensed solely by Grubhub. Client agrees that it will not, directly or indirectly, and will not encourage, assist or authorize any other person or entity to, copy, modify, reverse engineer, decompile or disassemble the System(s), in whole or in part, or create any derivative works from or of the System(s).
7. Dispute Resolution. Client and Grubhub agree that all claims or disputes arising out of this 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. The Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in New York, NY, unless otherwise agreed in writing by both parties. 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. For any such excluded claims, the Parties agree and acknowledge that the dispute will be governed by the laws of the State of New York, without giving effect to any choice or conflict of law provision or rules, and both parties consent to the exclusive jurisdiction of the federal and state courts in New York County, New York. Further, with respect to any excluded claim, each Party irrevocably waives any and all right to a trial by jury in any action or proceeding arising out of or related to this Agreement or the transactions contemplated hereby.
8. Confidentiality. During the Term, Grubhub and Client may share with each other certain proprietary and/or non-public information (collectively, “Confidential Information”). For purposes of this section, “Disclosing Party” means the party disclosing its Confidential Information and “Recipient” means the party receiving the Confidential Information from Disclosing Party. Recipient shall keep all Confidential Information strictly confidential. Disclosing Party retains all right, title and interest to its Confidential Information, and recipient acquires no rights therein by virtue of this Agreement except the limited right to use the Confidential Information solely as required to perform the services or fulfill its obligations under this Agreement.
9. Data Security. Recipient shall use the same degree of care to protect Disclosing Party’s Confidential Information as it uses to protect its own Confidential Information, and shall in no event use less than a commercially-reasonable standard of care to protect such Confidential Information.
10. Term, Termination, System Access Suspension.
a. Unless sooner terminated as provided herein, this Agreement shall be for an initial term of 24 months from the Effective Date (the “Initial Term”).
b. After the Initial Term, this Agreement shall automatically renew for successive 12-month terms (together with the Initial Term, the “Term”).
c. Either party may immediately terminate this Agreement upon thirty (30) days prior written notice to the other party (Client may terminate this Agreement at any time upon thirty (30) days prior written notice by sending an email to [email protected]).
d. Grubhub may suspend Client’s access to the System(s) or terminate this Agreement, in Grubhub’s sole discretion, at any time for any non-payment of any Invoice or if Client fails to comply with any term of this Agreement.
11. Entire Agreement; Miscellaneous. Grubhub and Client 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. No ambiguity will be construed against any party based upon a claim that such party drafted the ambiguous language. 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. Grubhub 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. Client agrees that Grubhub has the right to notify Client of updates to these Terms by posting them on the Systems. Therefore, Client should review these Terms before using the Services. The Agreement may not be amended by Client unless such amendment is signed by an authorized representative of Grubhub. 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 either party to require performance or claim breach will not be construed as a waiver. Except for Client’s payment obligations hereunder, 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. Client may not assign the Agreement without the prior written consent of Grubhub. Any assignment by Client in violation of this provision will be deemed a nullity. Grubhub 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.
12. 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 Client will be sent to Client at the address or work email address provided by Client during account creation, or such other address provided by Client and accepted by Grubhub in writing. Except as set forth in Section XIII, all notices to Grubhub will be sent to the below, unless otherwise provided by Grubhub:
Grubhub Holdings Inc.
111 W. Washington St., Ste. 2100
Chicago, IL 60602
Attn: Legal Department
Email: [email protected]