1. Application
The terms and conditions set out below (“T&Cs”) shall apply to all subscribers of the Grubtech Software and Services (“Customers”) and shall be read in conjunction with the Grubtech Contract entered into between Grub Tech FZ-LLC (“Grubtech”) and its Customers (the “Contract” and collectively with these T&Cs, the “Agreement”). In the event of a conflict between these T&Cs, the Service Agreement, the Schedules, and any other terms and conditions, these T&Cs shall prevail unless expressly otherwise agreed in writing between the parties.
2. Definitions and Interpretation
2.1 The definitions and rules of interpretation in this Section apply in the Agreement.
“Affiliates” means any other entity that is managed by, manages or is under common management/control with the Customer.
“Applicable Law” means all applicable federal, emirate, and free-zone laws, enactments, decrees, orders (having the force of law), regulations, regulatory policies and guidelines, industry codes, regulatory permits and Licenses which are in force, and any applicable requirement of any person who has regulatory authority that has the force of law.
“Anti-Corruption Laws” means all Applicable Laws, codes, and sanctions relating to the prevention, prohibition, or outlawing of bribery, money laundering, or similar and illegal activities, in the Territory or any other jurisdiction relevant to the performance of the Services.
“Authorized Users” means Affiliates of the Customer set out in the Contract Details, those employees, agents, and independent contractors of the Customer who are Authorized by the Customer to use the Services, Software, and Documentation.
“Average Monthly Fees” means the average value of the monthly Subscription Fees and Transaction Fees of the three (3) months prior to termination.
“Business Day” means any day of the year on which national banking institutions in the Territory are open to the public for conducting business and are not required or authorized to close.
“Brand” means any word, name, symbol, and trademark (whether registered or unregistered) used to identify a restaurant, kitchen, or hotel system operated by the Customer directly or indirectly.
“Change of Control” means (i) a transaction or series of related transactions in which any person or group becomes the beneficial owner directly or indirectly, of more than 50% of the outstanding voting securities of a person having the right to vote for the election of members of a person’s board of directors; (ii) any reorganization, merger or consolidation of a person, other than a transaction or series of related transactions in which the holders of the voting securities of the person outstanding immediately prior to such transaction or series of related transactions retain, immediately after such transaction or series of related transactions, at least a majority of the total voting power represented by the outstanding voting securities of a person or such other surviving or resulting entity; or (iii) a sale, lease or other disposition of all or substantially all of the assets of a person.
“Change Request” (Found on: https://grubtech.com/hubfs/ChangeRequestForm.docx) is the document used by the Customer to request the provision of additional Services (including any additional Modules or Location(s)), which shall be completed and submitted to Grubtech in writing.
“Confidential Information” refers to the following items Grubtech discloses to Customer: (a) any document Grubtech marks “Confidential”; (b) any information Grubtech orally designates as “Confidential” at the time of disclosure, provided Grubtech confirms such designation in writing within 7 Business Days; (c) the Documentation, whether or not marked or designated confidential; (d) any other nonpublic, sensitive information Customer should reasonably consider a trade secret or otherwise confidential; or (e) any information identified as Confidential Information in Section 12.4 of these Terms and Conditions. Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Customer’s possession at the time of disclosure; (ii) is independently developed by Customer without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Customer’s improper action or inaction; or (iv) is approved for release in writing by Customer. The customer is on notice that the Confidential Information may include Grubtech’s valuable trade secrets.
“Contract Details”means the section of the Service Agreement so headed, which contains details agreed between the Customer and Grubtech regarding specific requirements of the Customer in respect of Services to be delivered by Grubtech.
“Commencement Date” is the date payment was received, as per the Contract.
“Customer Content”is the data inputted by the Customer and Authorized Users for the purpose of using the Services, including but not limited to menu descriptions, ingredients, recipes, prices, and store information.
“Direct Website” is the website(s) provided by Grubtech to the Customer to enable its customers to place direct orders..
“Documentation” is the information made available to the Customer by Grubtech online via https://www.Grubtech.com/knowledge-base or such other web address notified by Grubtech to the Customer from time to time which sets out a description of the Services and the user instructions, guides, and tutorials for the Services.
“Fees” are the fees payable by the Customer to Grubtech for the Services, which include the Subscription Fees, Financial Transaction Fees, Hardware Fees, and/or Inactivity Fees as set out in the Service Agreement and any additional fees agreed to in a Change Request.
“Gross Merchandise Value (GMV)” the total value of all orders processed through the Software, as reported by the Software, excluding discounts and applicable taxes. All transactions will be included in GMV, regardless of order, return or credit status. For purposes of calculating GMV, GMV is converted to the appropriate currency stated in the Contract Details on a monthly basis (using Greenwich Mean Time +4 (GMT+4) as the standard time) applying the applicable rate at [www.xe.com] or such similar service that Grubtech reasonably designates from time to time.
“Inactivity Fee” is the fixed monthly fee, prorated on a daily basis, payable by the Customer to Grubtech for each Brand per Location that is not utilizing the Services.
“Initial Term” the initial term of this Agreement as set out in the Contract Details.
“Location(s)” shall mean any discrete location at which a Customer conducts its business operations.
“Modules” means the Modules set out in the Contract Details (which may be renamed by Grubtech at its sole discretion from time to time) and more specifically described in the Documentation and any other modules released by Grubtech and requested by the Customer in a Change Request.
“Normal Business Hours” 8.00 am to 6.00 pm, each Business Day.
“Order” means any order placed through or with the assistance of the Software; and “Orders” shall be construed accordingly.
“Order Status” means the status of an Order, being accepted, canceled, rejected or refunded.
“Sanctions” means economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (a) the U.S. government, including those administered by OFAC or the U.S. Department of State; or (b) the United Nations Security Council, the European Union or Her Majesty’s Treasury of the United Kingdom.
“Services” are the services provided by Grubtech to the Customer under this Agreement including the Software and Change of Request.
“Software” is the online software applications provided by Grubtech as part of the Services, including the selected Modules as more specifically described in the Documentation.
“Subscription Fees” are the fees payable by the Customer to Grubtech for the Services, which are more particularly set out in the Contract Details of the Service Agreement and any Change Request, as applicable, from time to time.
“Support Services Policy” Grubtech's policy for providing support in relation to the Services as made available at Grubtech.com/support-services or such other website address as may be notified to the Customer from time to time.
“Terminals” means Customer’s computer hardware capable of running an internet browser and shall specifically include Customer’s desktop and laptop computers and tablets and mobile devices running iOS and Android.
“Third Parties” means any third-party integration partners including but not limited to third party points of sale solutions, ERP systems, food aggregators, third party logistics providers and payment gateways, but excludes any third parties subcontracted by Grubtech to develop the Software.
“Transaction Fees” the fees payable on each order placed on the Customer’s Direct Website which are set out in the Contract Details and any Change Request.
“Term” has the meaning given in clause 8 of the Contract (being the Initial Term together with any subsequent Renewal Periods).
“Territory” means the jurisdiction wherein the Services are provided under the Service Agreement.
“Virus” anything or device (including any software, code, file, or program) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network, or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2.2 Clause, section, schedule, and paragraph headings shall not affect the interpretation of this Agreement.
2.3 A person includes an individual, corporate or unincorporated body (whether or not has a separate legal personality) and that person's legal and personal representatives, successors, or permitted assigns.
2.4 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
2.5 A reference to writing or written includes e-mail.
2.6 References to clauses and schedules are to the clauses and schedules of the Service Agreement; references to sections are to the sections of these Terms and Conditions; references to paragraphs are to paragraphs of the relevant schedule to the Service Agreement.
3. Restrictions on Use of Software
3.1 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software or the Services that:
3.1.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or racially or ethnically offensive;
3.1.2 facilitates illegal activity;
3.1.3 depicts sexually explicit images;
3.1.4 promotes unlawful violence;
3.1.5 is discriminatory based on race, gender, color, religious belief, sexual orientation, disability; or
3.1.6 is otherwise illegal or causes damage or injury to any person or property; and Grubtech reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to the Services and the Software for any breach of the provisions of this Section.
3.2 The Customer shall not:
3.2.1 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means;
3.2.2 attempt to reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software;
3.2.3 access all or any part of the Services, Software, or Documentation in order to build a product or service which competes with the Services. the Software and/or the Documentation;
3.2.4 use the Services, Software, and/or Documentation to provide services to third parties, with the exception of the Authorized Users;
3.2.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Software, and/or Documentation available to any third party except the Authorized Users;
3.2.6 attempt to obtain, or assist third parties in obtaining, access to the Services, Software, and/or Documentation, other than as permitted under this Agreement; or
3.2.7 introduce or permit the introduction of any Virus into Grubtech’s network and information systems.
3.3 The Customer shall use all reasonable endeavors to prevent any unauthorized access to, or use of, the Services, Software, and/or the Documentation and, in the event of any such unauthorized access or use, promptly notify Grubtech.
4. Services
4.1 Grubtech shall, during the Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
4.2 Grubtech shall use commercially reasonable endeavors to make the Services available 24 hours a day, seven days a week, except for:
4.2.1 planned maintenance carried out during the maintenance window of 2.00 am to 6.00 am and
4.2.2 unscheduled maintenance performed outside Normal Business Hours, provided that Grubtech has used reasonable endeavors to give the Customer at least 6 Normal Business Hours' notice in advance.
4.3 Grubtech will, as part of the Services and at no additional cost to the Customer, provide the Customer with Grubtech's standard customer support services during Normal Business Hours in accordance with Grubtech's Support Services Policy (found on www.grubtech.com/support-services) in effect at the time that the Services are provided. Grubtech may amend the Support Services Policy at its sole and absolute discretion from time to time.
5. Grubtech obligations
5.1 Grubtech warrants that it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under this Agreement.
5.2 Grubtech undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care in accordance with good industry practice.
5.3 If the Services do not conform with the foregoing undertaking in Section 5.1, then Grubtech will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.
5.4 Notwithstanding the foregoing, Grubtech:
5.4.1 does not warrant that the Customer's use of the Services will be completely uninterrupted or error-free and the Customer’s exclusive remedy for interruptions is set out in the Support Services Policy;
5.4.2 that the Services, Documentation, and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
5.4.3 is not responsible for any delays, delivery failures, or any other loss or damage resulting from:
5.4.3.1 the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
5.4.3.2 the acts or omissions of Third Parties;
5.4.3.3 any non-conformance is caused by the use of the Services contrary to Grubtech's instructions; or
5.4.3.4 any modification or alteration of the Services by any party other than Grubtech or Grubtech's duly Authorized contractors or agents.
5.5 This Agreement shall not prevent Grubtech from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products, and/or services that are similar to those provided under this Agreement.
6. Customer obligations
6.1 The Customer shall provide Grubtech with
6.1.1 All necessary co-operation in relation to this Agreement; and
6.1.2 All necessary access to such information as may be required by Grubtech (including but not limited to Customer Content, security access information, third-party food aggregator credentials, last mile provider credentials), for Grubtech to provide the Services and any other configuration services.
6.2 Comply with the applicable laws and regulations with respect to its activities under this Agreement.
6.3 Carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by parties, Grubtech may adjust any agreed timetable or delivery schedule as reasonably necessary.
6.4 Ensure that the Authorized Users use the Services, the Software, and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User’s breach of this Agreement.
6.5 Obtain and shall maintain all necessary licenses, consents, and permissions necessary for Grubtech, its contracts, and agents to perform their obligations under this Agreement, including without limitations the Services
6.6 Ensure that its network and systems comply with the relevant specifications provided by Grubtech from time to time.
6.7 Be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Grubtech’s data centers, and all problems, conditions, delays, delivery failures, and all other losses or damages arising from or relating to the Customer’s network or connections or telecommunications links or caused by the internet.
7. Fees and Payments
7.1 Grubtech shall be entitled to increase the Fees and/or revise its pricing model from time to time at the end of each twelve (12) month period from the Commencement Date and at the end of each Renewal Period upon not less than sixty (60) days written notice to the Customer. In the event the Customer does not accept the increase in Fees or change in the pricing model, the Customer’s sole remedy shall be to terminate this Agreement or not renew, as applicable.
7.2 The Customer shall pay the Fees to Grubtech for the Services in accordance with this Clause 7 and as further specified in the Contract Details.
7.3 Grubtech shall invoice the Customer for the Subscription Fees, the Transaction Fees, and where applicable, the Inactivity Fee, and the Customer shall pay each relevant invoice as follows:
7.3.1 Subscription Fees- either i) three (3) months up-front payment required upon signing of this Agreement, subsequently payable monthly in advance, within ten (10) days of the date of the invoice issued by Grubtech (“Initial Payment”) or ii) twelve (12) months upfront.
7.3.2 Variable Fees if applicable- Payable monthly in arrears, within ten (10) days of the date of the invoice issued by Grubtech.
7.3.3 Transaction Fees: Netted out of amounts settled to the Customer
7.3.4 Additional Fees: payable one time upon signing of the contract
7.4 If Grubtech has not received payment ten (10) days after the date of such invoice, and without prejudice to any other rights and remedies of Grubtech, Grubtech, may without liability to the Customer, (however with written notification to the Customer), disable the Customer’s access to all or part of the Services and Grubtech shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
7.5 All amounts and fees stated or referred to in this Agreement:
7.5.1 Shall be payable in the currency set out in the Contract Details
7.5.2 Are subject to Section 14.3.2 of the Terms and Conditions
7.5.3 Are non-cancellable, non-refundable, and payable to Grubtech irrespective of Order Status
7.5.4 Are exclusive of value added tax and or any other relevant taxes, including withholding taxes, applicable from time to time.
7.6 Notwithstanding the provisions of Clause 7.1, where Grubtech is the primary merchant for payments and the Customer is the sub-merchant, Grubtech shall be entitled to withhold or net out from the settlement amounts any [outstanding] amounts due (including any late payment fees) by Customer to Grubtech under this Agreement. Such netting is to be affected by a net payment arrangement whereby each month Grubtech shall calculate the difference between all unpaid amounts due by the Customer and the amounts received by Grubtech as the primary merchant for the relevant month and shall provide the Customer with a statement setting out the netted amounts and an invoice for the net amount. In the event, that the amounts due to Grubtech are less than the amount received by Grubtech, Grubtech shall remit the excess amounts to the Customer.
7.7 The Fees do not cover the costs of the following:
7.7.1 Third-party application licenses.
7.7.2 Third-party application integrations (except those available in Grubtech’s app store and or as set out in the Contract Details)
7.7.3 Payment gateway integrations or costs (except for those available in Grubtech’s app store and or as set in the Contract Details)
7.7.4 Hardware
7.8 The Customer shall be responsible for providing Grubtech at least seven (7) days written notice in the event a Brand, or Location has been deactivated from use of the Services by the Customer. Grubtech shall be entitled to charge the full Subscription Fees and/or Transaction Fees for such Brand, or Location until notice has been provided or expiry of the notice period, as applicable.
8. Termination
8.1 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
8.1.1 the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment.
8.1.2 the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so.
8.1.3 the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement.
8.1.4 the other party suspends, or threatens to suspend the payment of its debts, or is unable to pay its debts as they fall due, or admits inability to pay its debts.
8.1.5 the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts or makes a proposal for or enters into any compromise or arrangement with its creditors.
8.1.6 a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party.
8.1.7 an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is issued.
8.1.8 the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
8.2 Either party may terminate this Agreement prior to a Renewal upon giving at least sixty (60) days of written notice to the other Party prior to the Renewal date.
8.3 Grubtech may, in its sole discretion, terminate this agreement upon thirty (30) days notice in the event of a Change of Control of the Customer.
8.4 On termination of this Agreement for any reason:
8.4.1 all Licenses granted under this Agreement shall immediately terminate.
8.4.2 each party shall return and make no further use of any equipment, property, Documentation, and other items (and all copies of them) belonging to the other party.
8.4.3 Grubtech may destroy or otherwise dispose of any of the Customer Content in its possession unless Grubtech receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Content. Grubtech shall use reasonable commercial endeavors to deliver the back-up to the Customer within ninety (90) days of its receipt of such a written request, provided that the Customer has at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Grubtech in returning or disposing of Customer Content; and
8.4.4 any rights, remedies, obligations, or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
8.5 If the Agreement is terminated by Grubtech pursuant to Section 8.1, then Grubtech will retain any Subscription Fees paid under this Agreement and the Customer agrees to pay a penalty equivalent to one (1) month of the Subscription Fees and/or Transaction fees as applicable. If the Agreement is terminated by the Customer pursuant to Section 8.1, then Grubtech will reimburse any pre-paid but unutilized Subscription Fees paid under this Agreement, on a pro-rata basis.
8.6 If the Agreement is terminated by the Customer without cause, the Customer agrees to pay an early termination payment to Grubtech equivalent to one (1) month of the Average Monthly Fees.
9. Data Protection
9.1 Grubtech shall, in providing the Services, comply with all applicable laws and its Privacy Policy relating to the privacy and security of the personal data available at or such other website address as may be notified to the Customer from time to time, and such document may be amended from time to time by Grubtech in its sole discretion.
9.2 If Grubtech processes any personal data on the Customer's behalf when performing its obligations under this Agreement:
9.2.1 the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use and processing as required by all applicable data protection legislation.
9.2.2 Grubtech shall process the personal data only in accordance with the terms of this Agreement and any lawful instructions reasonably given by the Customer from time to time; and
9.2.3 each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction, or damage.
10. Use of Data
10.1 In the course of providing the Services, Grubtech collects data about the Customer and the Customer’s operations, including the Customer Content.
10.2 This data may be used to deliver and improve the Services provided by Grubtech.
10.3 For the avoidance of doubt, Grubtech will not disclose any data obtained under this Agreement that is not anonymized to any third party other than on the Customer’s written instructions, as required by law, or to parties involved in the fulfillment of Grubtech’s obligations under this Agreement.
11. Proprietary Rights
11.1 The Customer acknowledges and agrees that Grubtech and/or its licensors own all intellectual property rights in the Services, Software, and Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or Licenses in respect of the Services, the Software or the Documentation.
11.2 Grubtech confirms that it has all the rights in relation to the Services, the Software, and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
11.3 The Customer grants Grubtech a royalty-free license during the Term to use its logo and to disclose that the Customer is a customer of Grubtech in any investor presentations and marketing materials. Furthermore, the Customer agrees to provide testimonials as requested from time to time by Grubtech.
12. Confidentiality
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party's Confidential Information shall not be deemed to include information that:
12.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
12.1.2 was in the other party's lawful possession before the disclosure.
12.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
12.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
12.1.5 is required to be disclosed by law, by any court of competent jurisdiction, or by any regulatory or administrative body.
12.2 Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
12.3 Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
12.4 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Grubtech's Confidential Information.
12.5 Except as set out in Section 12.3 above, no party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.6 The above provisions of this Section 12 shall survive termination of this Agreement, however arising.
13. Indemnity
13.1 The Customer shall defend, indemnify and hold harmless Grubtech against claims, actions, proceedings, losses, damages, expenses, and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Services and/or Documentation and the Customer’s provision of the Customer Content.
13.2 Subject to any exclusions and limits set out in this Agreement, Grubtech shall defend, indemnify and hold harmless the Customer against claims, actions, proceedings, losses, damages, expenses, and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with Grubtech’s provision of the Services.
13.3 Furthermore, Grubtech shall defend the Customer, its officers, directors, and employees against any claim that the Services, Software, or Documentation infringes any patent effective as of the Commencement Date, copyright, trademark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims.
13.4 The indemnity in Sections 13.2 and 13.3 shall only apply to the extent that:
13.4.1 Grubtech is given prompt notice of any such claim.
13.4.2 the Customer provides reasonable co-operation to Grubtech in the defense and settlement of such claim, at Grubtech's expense; and
13.4.3 Grubtech is given sole authority to defend or settle the claim.
13.5 In the defense or settlement of any claim, Grubtech may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days' notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
13.6 In no event shall Grubtech, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
12.6.1 a modification of the Services or Documentation by anyone other than Grubtech; or
12.6.2 the Customer's use of the Services or Documentation in a manner contrary to the instructions given to the Customer by Grubtech; or
12.6.3 the Customer's use of the Services or Documentation after notice of the alleged or actual infringement from Grubtech or any appropriate authority.
13.7 The foregoing and Section 14.3.2 states the Customer's sole and exclusive rights and remedies, and Grubtech's (including Grubtech's employees, agents, and sub-contractors) entire obligations and liability.
14. Limitation of liability
14.1 This Section 14 sets out the entire financial liability of Grubtech arising under or in connection with this Agreement (including under Sections 14.2 and 14.3).
14.2 Nothing in this Agreement excludes the liability of Grubtech:
14.2.1 for fraud or fraudulent misrepresentation.
14.3 Subject to Section 14.2:
14.3.1 Grubtech shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution, or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
14.3.2 Grubtech’s total aggregate liability in contract (including in respect of the indemnity at Section 13.2 and 13.3) tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Fees paid for the Services during the three (3) months immediately preceding the date on which the claim arose.
15. Warranty and Disclaimer
15.1 Grubtech shall:
15.1.1 use its best efforts consistent with good industry practice to maintain the Services and the Software in a manner that minimizes errors and interruptions; and
15.1.2 perform the Services in a professional and workmanlike manner in accordance with good industry practice.
15.2 Grubtech shall not be responsible for any non-conformance which is caused by: use of the Services contrary to Grubtech’s instructions, any Third Parties, including by any change to Third Party APIs, or the Customer’s software, or for modification or alteration of the Services by any party other than Grubtech or Grubtech’s duly Authorized contractors or agents.
15.3 The Software and Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Grubtech or by third-party providers, or because of other causes beyond Grubtech’s reasonable control, including Third Party issues, but Grubtech shall use best efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
1٥.4 Except as expressly and specifically provided in this Agreement:
15.4.1 the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. Grubtech shall have no liability for any damage caused by errors or omissions in the Customer Content or any actions taken by Grubtech at the Customer's direction.
15.4.2 the Services and the Documentation are provided to the Customer on an "as is" basis.
16. Force Majeure
Neither Party shall have liability to the other Party under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Grubtech or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, pandemics, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the other Party is notified of such an event and its expected duration.
17. Compliance with Laws
17.1 Each party shall in performing their obligations under the Agreement comply with all Applicable Laws.
17.2 Anti-Bribery and Corruption. Without prejudice to the generality of Section 17.1:
17.2.1 the Customer warrants that it has not done, and in performing its obligations under the Agreement, the Customer shall not do, any act or thing that contravenes Anti-Corruption Laws;
17.2.2 the Customer warrants and undertakes that it shall comply with, and shall procure that its personnel involved in performing the Agreement shall comply with this Section 17; and
17.2.3 the Customer shall immediately notify Grubtech in writing on becoming aware of, or suspecting, any failure to comply with any provision of this Section 17.
17.3 The Customer has implemented and maintains in effect policies and procedures designed to ensure compliance by the Customer and its Affiliates, and its and their respective directors, officers, employees, and agents with Anti-Corruption Laws and applicable Sanctions.
17.4 No utilization, use of proceeds, or other transactions contemplated by this Agreement will violate Anti-Corruption Laws or applicable Sanctions.
18. GeneralTerms
18.1 Variation. Grubtech shall have the right to amend these Terms and Conditions from time to time (including but not limited to incorporating new legislations) upon a thirty (30) day prior written notice to the Customer (for clarification purposes, a notice given to a Customer would be deemed given to each Affiliate and business owned and/or operated by the Customer).
18.2 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.3 Rights and Remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
18.4 Severance. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18.5 Entire Agreement. This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding, or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into this Agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this Agreement or not) relating to the subject matter of this Agreement, other than as expressly set out in this Agreement.
18.6 Assignment. The Customer shall not, without the prior written consent of Grubtech, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. A Change of Control shall be considered an assignment under this Section 18.6.
18.7 No partnership or agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorize either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18.8 Counterparts. This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. Transmission of the executed signature page of a counterpart of this agreement by email (in PDF, JPEG or other agreed format) shall take effect as the transmission of an executed "wet-ink" counterpart of this agreement. No counterpart shall be effective until each party has provided to the other at least one executed counterpart.
19. Governing Law
This Agreement shall be governed by and construed in accordance with the local laws of the country of operations. In the event of any dispute, difference, claim, controversy or question among the Parties, directly or indirectly, arising at any time under, out of, in connection with or in relation to this Agreement (or the subject matter of this Agreement) or any term, condition or provision hereof, including without limitation any of the same relating to the existence, validity, interpretation, construction, performance, enforcement and termination of this Agreement (a “Dispute”), the Parties shall first endeavor to amicably settle the same through consultation and negotiation conducted in good faith. In the event the Parties are unable to resolve a Dispute in accordance with the foregoing within one (1) month from the date the Dispute has arisen, such Dispute shall be referred to the country of operations’ local Courts.
20. Disputes and Jurisdiction
In the event of any dispute, difference, claim, controversy or question among the Parties, directly or indirectly, arising at any time under, out of, in connection with, or in relation to this Agreement (or the subject matter of this Agreement) or any term, condition or provision hereof, including without limitation any of the same relating to the existence, validity, interpretation, construction, performance, enforcement and termination of this Agreement (a “Dispute”), the Parties shall first endeavor an amicable settlement by good faith consultation and negotiation.
If the Parties are unable to resolve the Dispute by good faith consultation and negotiation within one (1) month from the date the Dispute has arisen, each party irrevocably agrees that the courts of the Dubai International Financial Centre (DIFC) shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims). For disputes under AED 1,000,000 in value, the Parties agree to exclusively hear the matter in the Small Claims Tribunal at the DIFC Courts.
