These Grubhub Direct Ordering Website Terms & Conditions (“Grubhub Direct Terms & Conditions” or “GH Direct Terms”) apply to the service relationship between Grubhub Holdings Inc., its subsidiaries and affiliates (collectively, “Grubhub” or “GH”) on the one hand, and the restaurant (“Restaurant”) entering into the GH Direct Ordering Website Agreement (“GH Direct Agreement”), which such agreement is incorporated by reference into these GH Direct Terms.  Each of GH and Restaurant shall be referred to herein as a “Party,” and together, as the “Parties.”  These GH Direct Terms and the GH Direct Agreement together will be referred to as the “Agreement.” 

The Agreement is entered into as of the Effective Date of the GH Direct Agreement. Capitalized terms used but not defined herein shall have the meaning set forth in the GH Direct Agreement.  The Agreement is separate from, and does not modify, alter, amend, or supersede, any agreement between GH and Restaurant regarding Restaurant’s participation in the GH marketplace. GH may modify these GH Direct Terms at any time in its sole discretion, provided that such modifications will be applied only prospectively. Restaurant agrees that GH may notify it of updates to these GH Direct Terms by posting such updates to GFR. In the event of a conflict between the Agreement and any terms and conditions incorporated herein, the Agreement shall control.  

THE SECTION BELOW ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS RESTAURANT’S LEGAL RIGHTS.  PLEASE READ IT.

1. GH DIRECT SERVICES.  In order to enable Restaurant to create its own branded ordering website (“GH Direct Website,” and together with GFR and the GH Direct Toolkit, the “GH Direct Services”), GH will provide Restaurant with access to Grubhub for Restaurants (“GFR,” which access is governed by the GFR Terms of Use, available at https://restaurant.grubhub.com/terms-of-use), and to GH’s development tools and materials accessible via GFR (“GH Direct Toolkit”). Restaurant can configure its GH Direct Website to support a variety of functionalities including: 

A. Customer purchases of food and beverages from Restaurant;
B. Customer account creation and login;
C. Order-ahead options, including pick-up and/or delivery;
D. Order location and ready time;
E. Customer promotions;
F. Where available, an integration with Restaurant’s point of sale system (“POS Services”); and
G. Where available, access to independent delivery service providers through GH’s proprietary logistics platform to enable the delivery of orders (“GH Delivery Services”).

2. FEES FOR SET UP & HOSTING

A. Fees & Additional Services.  Fees for the GH Direct Services are set forth in the GH Direct Agreement.  These fees may be changed or updated prospectively upon acceptance by Restaurant through GFR.  

B. Calculation of Per-Order Processing Fee.  The Order Processing Fee set forth in the GH Direct Agreement (“OPF”) shall be applied to the total of all menu items on orders placed through the GH Direct Services plus, tax, tip, and any customer fees charged by Restaurant (including any fees Restaurant charges to customers for delivery by Restaurant).

3. TRANSACTION PROCESSING & RESTAURANT PAYMENTS TO GH.

A. Payment Processing For Customer Orders.  On a daily basis, GH shall pay Restaurant the Net Sales Proceeds of all orders placed through Restaurant’s GH Direct Website via ACH transfer.  “Net Sales Proceeds” shall mean the sum of all Grand Totals for all orders transacted through Restaurant’s GH Direct Website during the relevant time period, minus (i) all Order Processing Fees; (ii) where relevant, fees charged by GH to Restaurant for the GH Delivery Services (as set forth in the GH Direct Agreement); and (iii) applied customer redemptions. “Grand Total” shall mean the order total, inclusive of all menu items ordered, the Order Processing Fee, tax, tip for Restaurant-enabled delivery, and any fees charged by Restaurant to the customer, including for Restaurant-enabled delivery. In the event Restaurant elects to refund customers or adjust orders, such adjustments will also be deducted from the Net Sales Proceeds in the daily ACH transfer. 

B. Payments By Restaurant to GH for the GH Direct Services.  Setup Fees (as set forth in the GH Direct Agreement) for each new location transacting via Restaurant’s GH Direct Website will be deducted by ACH transfer during the month in which the new location begins transacting on Restaurant’s GH Direct Website.  Recurring monthly Hosting Fees (as set forth in the GH Direct Agreement) will be deducted on a monthly basis via ACH transfer for all locations transacting on Restaurant’s GH Direct Website during the month after one or more locations begins such transactions.  In the event of termination by Restaurant, monthly Hosting Fees will not be prorated or refunded.

4. RESTAURANT SUPPORT. GH will provide Restaurant with support related to the GH Direct Services through GFR only.

5. CUSTOMER SUPPORT.  Customer support is the sole responsibility of Restaurant.  Restaurant agrees not to refer any customers directly to GH; in the event that GH receives any customer inquiries, it shall refer the customer to Restaurant for resolution. 

6. REFUNDS

A. Orders / No GH Delivery Services.  Restaurant agrees and acknowledges that Restaurant shall be solely responsible to any customer regarding Restaurant menu items, including without limitation, complaints regarding the nature, quality, content, number, or packaging of Restaurant menu items purchased by a customer.  In the event that Restaurant elects to refund a customer for part or all of an order, such refund will be payable solely by Restaurant, and is not the responsibility of GH (nor shall GH have any obligation to refund any amounts to Restaurant). 

B. Orders / With GH Delivery Services.  Where GH Delivery Services are enabled, Restaurant acknowledges and agrees that GH shall be responsible only for connecting Restaurant with delivery service providers through GH’s proprietary logistics platform. If the delivery of an order fulfilled by GH is more than forty-five (45) minutes late (per the last-in-time estimated time of arrival communicated to the customer), and the delay is solely attributable to GH, GH will reimburse Restaurant for all or a portion of the delivery fee(s) of the applicable order, at GH’s sole discretion.  In lieu of reimbursement to Restaurant, GH shall have sole discretion to determine whether to issue a refund directly to the customer in whole or part, but in no event, will GH be obligated to do so.

7. GH DIRECT URL: The GH Direct Website will utilize a URL provided by GH. In the event of termination of the GH Direct Services, GH will use reasonable efforts to deactivate the URL for Restaurant’s GH Direct Website within thirty (30) days of the termination of the GH Direct Services.  

8. GH DELIVERY SERVICES: At Restaurant’s election, and where available, GH will provide GH Delivery Services for the delivery of customer orders placed through the GH Direct Website. GH will have the sole right to determine if and when the GH Delivery Services are available, and all particulars related thereto, including, without limitation, any fees charged to the customer, delivery area, and availability of the GH 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, except as otherwise set forth herein, GH will not be liable or responsible for any delivery service providers or any errors or misrepresentations made by them.

9. POS SERVICES:  At Restaurant’s election, and where available, GH will connect the GH Direct Website with POS Services. Restaurant hereby 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 GH Direct Services and POS 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 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).

10. RESTAURANT REPRESENTATIONS & WARRANTIES:

A. Menu Items, Hours & Food Handling.

a. Restaurant represents and warrants that: 

a.) It will prepare food and beverage orders placed via the GH Direct Website: (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 stated on the GH Direct Website; 

b.) It will ensure its menu(s), hours of operation, and other particulars required for GH to perform the Delivery Services, if enabled, are accurate, up to date, and recorded in GFR; 

c.) 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; and

d.) It will not include alcoholic beverages in its GH Direct menu(s).  In the event that GH determines that Restaurant has included alcoholic beverages in its GH Direct menu(s), GH may immediately terminate Restaurant’s GH Direct Website.

B. General Restaurant Representations & Warranties.

a. Restaurant further represents and warrants that:

a.) 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;

b.) It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin;

c.) All content presented on the GH Direct Website by Restaurant, including without limitation any User Content (as defined in the GFR Terms of Use) (“Restaurant Content”) does not and will not infringe or otherwise violate the rights of any third party; 

d.) It does and will comply with all applicable retail food, beverage, 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);

e.) It will include accurate tax rates related to its locations in GFR, will remit to the applicable taxing authority all legally-required taxes, and will file all required tax returns and forms; and 

f.) It will ensure that all loyalty programs, rewards, promotions, discounts, or special offers are communicated to customers and operated in compliance with applicable laws. 

11. CUSTOMER DATA.  “Customer Data” means (i) any and all information that identifies, relates to, or could reasonably be associated with a customer, including, but not limited to, customer’s name, delivery address(es), email address(es), phone number(s), order history, and customer preferences and tendencies and (ii) any information relating to the customer that may otherwise be considered “personal data” or “personal information” under applicable law; in each case (i) and (ii) where such information is collected, generated or otherwise processed through Restaurant’s GH Direct Website. Restaurant is the data controller of the Customer Data where data controller means an entity that determines the purposes and means of the processing of personal information and includes other similar terms under applicable law (e.g. “business” or “data owner”). Restaurant agrees that it will comply with all applicable laws, rules, and regulations in connection with the collection and use of the Customer Data, including, without limitation, (1) adhering to the Customer Terms (defined below) as published on its GH Direct Website in accordance with subsection (C) below, (2) providing all consumer rights required by law and complying with any and all data requests from its customers as required by law which could include, for example but without limitation, opt out, access, and deletion requests, and (3) adhering to all other applicable restrictions relating to marketing and advertising, promotional emails, calling or sending SMS/text messages, data sales and disclosures, and other data activities. Further, Restaurant agrees to share Customer Data with GH as described in Section 11.B, below. 

A. Security of Customer Data in Restaurant’s Possession or Control.  In the event that Customer Data is exported or otherwise removed from GFR or duplicated in an manner outside of GFR, Restaurant (and any other persons to whom Restaurant provides any Customer Data) 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.  

B. GH’s Access To, and Use Of, Customer Data. Restaurant agrees that it will share Customer Data with GH for GH’s use consistent with GH’s own privacy policy (available at https://www.grubhub.com/legal/privacy-policy). GH will comply with all applicable laws in connection with the use of the Customer Data, including, without limitation, communicating to Restaurant all data requests from its customers, and where required by law, reasonably assisting Restaurant with fulfilling such requests.  GH agrees that it and any other persons to whom GH provides any Customer Data 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. 

C. Customer User Terms and Privacy Policy.   GH will provide hyperlinks to (i) website terms of service; and (ii) a privacy policy (including for California residents) (collectively, (i) and (ii) shall be referred to herein as “Customer Terms”) in Restaurant’s GH Direct Website.  GH will insert Restaurant’s name and contact information in the Customer Terms, based on information provided by Restaurant in GFR. The Customer Terms will inform customers that personal information will be shared with GH and processed in accordance with GH’s own privacy policy available at https://www.grubhub.com/legal/privacy-policy. Restaurant warrants and agrees to comply and adhere to the policies and terms set forth in the Customer Terms, including but not limited to its collection and use of Customer Data in connection with its GH Direct Website.  In no event shall GH be liable to Restaurant for: (i) the contents or legal sufficiency of the Customer Terms, and/or (ii) Restaurant’s noncompliance with the published Customer Terms. 

12. RESTAURANT & GH CONFIDENTIAL INFORMATION.  Each Party (the “Receiving Party”) will maintain the confidentiality of all non-public information of the other Party (the “Disclosing Party”) that it acquires in the course of performing the Agreement, including the terms and conditions of the Agreement (collectively, the “Confidential Information”). The Receiving Party will not disclose to any third parties, or use in any way other than as necessary to perform its obligations hereunder, the Disclosing Party’s Confidential Information, unless such disclosure is pursuant to an order or proper request from a court or other governmental agency, provided however, that the party responding to such an order or governmental request will give written notice to the other party prior to such disclosure with sufficient time for the other party to object to the order or request and/or obtain a protective order covering the requested Confidential Information. The Receiving Party will ensure that Disclosing Party’s 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 agree to be bound by written obligations of confidentiality at least as protective as those set forth herein. 

13. INTELLECTUAL PROPERTY.  

A. GH’s Intellectual Property.  GFR and the GH Direct Toolkit, as well as all GH trademarks, copyrights, patents, or other intellectual property (collectively, “GH Intellectual Property”) remain the sole and exclusive property of GH.  GH reserves to itself all rights to the GH Intellectual Property not expressly granted to Restaurant herein. The GH Direct Toolkit may contain templates or other materials featuring example text, photos, images, graphics, designs, overlays, elements, audio, video, and audiovisual content (“Templates”), which Templates are also GH Intellectual Property. Restaurant may use such Templates only while the Agreement is in effect and only in connection with the GH Direct Services and using the features and functionalities of the GH Direct Website that GH provides to Restaurant. For clarity, Restaurant may not use any Template in any way that competes with the GH Direct Services, as determined by GH in its sole discretion.

B. GH’s Marketing Of The GH Direct Services. GH may choose to feature Restaurant’s GH Direct Website (including Restaurant’s name, logo, and other trademarks as displayed on Restaurant’s GH Direct Website) on GH’s social media accounts and/or marketing channels. Accordingly, Restaurant grants GH a perpetual, worldwide, royalty-free, nonexclusive right and license to use any version of its GH Direct Website (including any content included therein) for the purpose of marketing and promoting GH and its products and services, including the GH Direct Services. Restaurant waives any claims against GH relating to any moral rights, artists’ rights, or other similar rights worldwide that Restaurant may have in any of the foregoing and any right of inspection or approval of any such use.

14. TERM AND TERMINATION.  The Agreement is entered into as of the Effective Date, and may be cancelled: (i) by Restaurant for any (or no reason) upon five (5) days’ prior written notice to GH, or (ii) by GH for any reason (or no reason) upon thirty (30) days’ written notice to Restaurant. GH may terminate or suspend the GH Services immediately and without notice to Restaurant, if Restaurant fails to comply with these GH Direct Terms or, if through Restaurant’s acts or omissions, its causes or threatens to cause any damage or injury to the integrity or operation of GFR and/or GH’s technical infrastructure, or to GH’s reputation or brand.  Further, GH reserves the right, in its sole discretion, to modify, suspend, or discontinue at any time, with or without notice, the GH Services in the event of a systems failure, and shall not be liable to Restaurant for any such suspension or discontinuation of the GH Direct Services resulting from such a systems failure.

15. LIMITATION OF LIABILITY.

A. 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 GH DIRECT SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ACCESSIBILITY. THE GH DIRECT 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 GH DIRECT SERVICES. 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 PAID BY RESTAURANT TO GH SOLELY FOR THE GH DIRECT SERVICES 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. Both Parties acknowledge and agree that neither Party has any expectation of, or has received any assurances for, future business, that any investment by a Party will be recovered or recouped, or that such Party will obtain any anticipated amount of revenue or profits by virtue of this Agreement or the business relationship between GH and Restaurant.

16. INDEMNITY.  Restaurant will indemnify and hold GH (including its affiliates and its and their respective directors, employees, officers, and agents) harmless from any and all claims, actions, proceedings and damages arising out of or related to: (a) Restaurant Content; (b) any dispute arising out of Restaurant’s services; or (c) any breach or alleged breach of Restaurant’s representations and warranties set forth in Section 9 (“Restaurant Representations & Warranties”) herein. The foregoing indemnification obligations shall not apply to the extent that a third-party dispute relates solely and exclusively to the GH Delivery Services. 

A. Procedure. 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.

17. 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.

18. MISCELLANEOUS.  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 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. 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 with respect to the GH Direct Services and supersedes any prior understanding (written or oral) on the subject matter hereof. In the event of any conflict between the Agreement and 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 GH Direct Agreement and these GH Direct Terms, these GH Direct Terms will control. 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 either Party to require performance or claim breach will not be construed as a waiver. 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 18 (“Miscellaneous”), Section 10 (“Restaurant Representations & Warranties”), Section 11 (“Customer Data”), Section 12 (“Restaurant & GH Confidential Information”), Section 13 (“Intellectual Property”), Section 15 (“Limitation of Liability”), and Section 16 (“Indemnity”), Section 17 (“Dispute Resolution”), and any other terms required for the full interpretation of the Agreement following expiration or termination will survive any expiration or termination thereof.