PLEASE READ THESE TERMS CAREFULLY BEFORE DECIDING TO USE OUR SERVICES

Background

A             This Agreement governs the relationship between the parties in connection with the Services supplied by GrubUp.

B             GrubUp is in the business of running an online marketplace which permits Customers to view and search menus of Partners and/or place orders for food or other products from Partners which Partners receive through the Partner Platform. GrubUp software then notifies Captains that a delivery opportunity is available; after a rider communicates its acceptance of the delivery, the GrubUp software facilitates the Captain's completion of the delivery of the Partner Products to the Customer. GrubUp is not a merchant, food preparation business, reseller, or delivery service; it is an online marketing and connection platform.

C             Subsequently GrubUp software facilitates the Captain’s completion of the delivery of the Partner products to the Customer.

D             The Partner agrees to procure the Services supplied by GrubUp on the terms set out in this Agreement.

Agreed terms

1.1         Definitions

In this document:

 

Term	Definition
Agreement	means this agreement between the Parties (including any schedules).
Additional Services	means any additional services that the parties agree that GrubUp will provide to the Partner.
Applicable Law	means all applicable laws, statutes and regulations from time to time in force in any applicable jurisdiction, and any applicable requirement of any person who has regulatory authority that has the force of law.
Anti-Slavery Law	means all Applicable Laws, codes and sanctions relating to relating to the prevention, prohibition and/or outlawing of Slavery relevant to the performance of the Agreement.
Business Day	means a day that is not a Saturday, a Sunday or a public holiday in the state of New South Wales.
Captain	means the delivery riders facilitated by GrubUp to carry out the Delivery Services.
Collection Order	means an order placed by a Customer for one or more Menu Items via the Platform to be Collected by the Customer from a Site.
Commencement Date	means the date set out in the Schedule 3 - Contract Details.
Control	has the meaning given in section 50AA of the Corporations Act 2001 (Cth), and the expression change of Control shall be construed accordingly.
Corporations Act	means the Corporations Act 2001 (Cth).
Customer	means a user of the Platform.
Customer Support Services	means the support services provided by GrubUp to the Customer to deal with complaints or enquiries in relation to Orders.
Delivery Order	means an order placed by a Customer for one or more Menu Items via the Platform to be delivered to the Customer by a Captain.
Delivery Services	means the delivery of Delivery Orders from the Partner to the Customer by Captains facilitated by GrubUp.
Delivery Service Fee	means the fees set out in Schedule 3 – Contract Details for Delivery Services.
Equipment	means any touch screen terminal, thermal printer supplied by GrubUp to the Partner for the purposes of accepting and labelling Orders (excluding the Software).
Extension Term	means a period of 12 months commencing on the day after the end of the Initial Term or the immediately preceding Extension Term (as the context requires) or, if the period from the end of such term to the date falling 5 years after the Commencement Date is less than 12 months, that period.
Fees	means any fees payable to GrubUp as set out in Schedule 3 - Contract Details, including but not limited to the Delivery Services and Pick-Up Service Fee.
Force Majeure Event	means any cause beyond the reasonable control of that party including but not limited to internet and online system failure, power failure, fire, flood, storms, earthquakes, acts of terrorism, acts of war, acts of God, acts of government authority, strikes or other labour disturbances.
GrubUp	means Grubup Pty Ltd (ACN: 649 023 736) of 79/ 421 Pacific Highway, Asquith New South Wales, Australia 2077.
GrubUp IPRs	means: (a) all Intellectual Property Rights owned or controlled by GrubUp prior to the Commencement Date, including all Intellectual Property Rights relating to the Platform; and (b) all Intellectual Property Rights created after the Commencement Date by or on behalf of GrubUp in connection with or for the purpose of the performance of its obligations under the Agreement, and all developments, enhancements and derivatives of those Intellectual Property Rights.
GrubUp Policies	means GrubUp’s equipment policy, photography policy, branding policy, anti-bribery and anti-slavery policies, and any other policies with which GrubUp requires the Partner to comply, as GrubUp may update and supplement from time to time on written notice.
GrubUp Service Levels	means the service levels applicable to GrubUp as set out in the Schedule 1 – GrubUp Service Description.
GST	means any goods and services tax or like imposition payable under the GST Act.
GST Act	means the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
GST Amount	has the meaning set out in clause 6.4.
Initial Term	has the meaning given to it in Schedule 3 – Contract Details.
Intellectual Property Rights	means patents, rights to inventions, copyright and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered.
Losses	means actions, proceedings, losses, damages, liabilities, claims, demands, judgments (however obtained), costs, expenses, and any other diminution in value of any description, including fines, interest, penalties, clean-up costs, legal and other professional fees incurred in connection with investigating or defending any claim, action, demand or proceedings.
Menu Items	means items displayed on the Platform on behalf of the Partner which may be ordered by a Customer.
Minimum Order Value	means the minimum order value set by GrubUp as communicated by GrubUp to the Partner from time to time.
Nominated Representative	means the nominated representative of each party set out in Schedule 3 - Contract Details.
Opening Hours	means the times and days during which the Partner may accept or reject Orders.
Order	means a Delivery Order or a Collection Order.
Parties	means the parties to this Agreement (and “party” shall be construed accordingly).
Partner	means the counter party to this agreement, including by not limited to restaurants, home chefs, caterers, cafes or any other food vendors.
Partner IPRs	means all Intellectual Property Rights owned or controlled by the Partner prior to the Commencement Date.
Partner Payment	has the meaning given to it in Schedule 1 - GrubUp Service Description.
Partner Service Levels	means the service levels applicable to the Partner as set out in Schedule 1 - GrubUp Service Description.
Pick-up Service Fee	has the meaning given to it in Schedule 3 – Contract Details.
Platform	means [www.GrubUp.com.au] and its affiliated websites, ordering platforms and mobile applications.
Rating	means the average feedback rating given by Customers for the Partner on the Platform.
Related Bodies Corporate	as the meaning given to it in section 9 the Corporation Act 2001 (Cth).
Relationship Manager	means the person of appropriate seniority for the relationship of the parties nominated as the first escalation point for a Dispute pursuant to clause 14.1(a).
Services	means the services to be provided by GrubUp to the Partner as specified in Schedule 1 - GrubUp Service Description.
Site	means each site from which the Partner will process Orders, as set out in Schedule 3 - Contract Details.
Slavery	means all forms of modern slavery, human trafficking, force labour, child labour, involuntary servitude and debt bondage.
Software	means the software installed on the Equipment (of whatever version or format), as supplemented and updated from time to time, including the source code and all Intellectual Property Rights therein.
Target Delivery Time	means the Delivery Order arrival time displayed to the Customer on the Platform.
Target Pick-Up Time	means the Pick-up Order collection time displayed to the Customer on the Platform.
Term	means the period from the Commencement Date until the termination or expiry of the Agreement for whatever reason.
Territory	means Australia, or as otherwise set out in Schedule 3 – Contract Details.

1.2         Interpretation

In this document:

(a)          a reference to a clause, schedule, annexure or party is a reference to a clause of, and a schedule, annexure or party to, this document and references to this document include any schedules or annexures;

(b)          a reference to a party to this document or any other document or agreement includes the party’s successors, permitted substitutes and permitted assigns;

(c)           if a word or phrase is defined, its other grammatical forms have a corresponding meaning;

(d)          a reference to a document or agreement (including a reference to this document) is to that document or agreement as amended, supplemented, varied or replaced;

(e)          a reference to this document includes the agreement recorded by this document;

(f)           a reference to legislation or to a provision of legislation (including subordinate legislation) is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;

(g)          if any day on or by which a person must do something under this document is not a Business Day, then the person must do it on or by the next Business Day;

(h)          a reference to a person includes a corporation, trust, partnership, unincorporated body, government and local authority or agency, or other entity whether or not it comprises a separate legal entity; and

(i)            a reference to ‘month’ means calendar month.

2.1         The Agreement shall commence on the Commencement Date and shall continue, unless otherwise terminated earlier in accordance with clause 11 or Schedule 1 - GrubUp Service Description

3.1         GrubUp owns and operates the Platform, that shall connect Partners, Captains and Customers for the pickup and delivery of Orders.

3.2         GrubUp shall:

(a)          maintain the Platform to allow Partners to receive Orders placed through the Platform by Customers;

(b)          use reasonable endeavours to provide the Services: (a) in all material respects in accordance with this Agreement including Schedule 1 - GrubUp Service Description; and (b) to meet or exceed the applicable GrubUp Service Levels; and

(c)           perform the Services with reasonable care and skill.

4.1         The Partner shall:

(a)          act reasonably and in good faith and co-operate with GrubUp in all matters relating to the Services;

(b)          provide, in a timely manner, such assistance and information as GrubUp may reasonably require, and ensure that the information it provides is not misleading and is complete and accurate in all material respects;

(c)           use reasonable endeavours to perform its obligations to meet or exceed the applicable Partner Service Levels;

(d)          comply with GrubUp Policies; and

(e)          fulfill orders placed by Customers through the Platform and provides such orders to Captains or directly to Customers if the order is a Collection Order.

5.1         If either party fails to meet or exceed an applicable Service Level (“Service Level Failure”) for a period of 3 consecutive calendar months or any 3 calendar months in a 4 month period, the matter shall be escalated to the Nominated Representative of each party who, acting reasonably, shall meet as soon as reasonably practicable to discuss and agree the remedial actions required to remedy the Service Level Failure. If the Nominated Representatives of each party are unable to agree on the required remedial actions, the matter shall be subject to the dispute resolution procedure set out in clause 14.

6.1         The Partner shall pay the Fees to GrubUp in accordance with the provisions of this clause 6 and Schedule 3 - Contract Details.

6.2         If in relation to any calendar month the Fees are for a higher amount than the Menu Items Amount, the Partner shall pay to GrubUp the amount by which the Fees are higher within 30 days of the date of GrubUp’s invoice.

6.3         If a party fails to pay any sum payable by it under the Agreement on the due date for payment, it shall pay interest on such sum for the period from and including the due date up to the date of actual payment (after as well as before judgment) at the rate which is the aggregate of 2% per annum and the base rate from time to time of National Australia Bank. The interest will accrue from day to day on the basis of the actual number of days elapsed and a 365-day year and shall be payable on demand and compounded monthly in arrears.

6.4         The Fees are [inclusive] of GST unless otherwise stated. If GST is payable as a consequence of any supply made (or deemed to be made) by one party to the other in connection with this Agreement, where GST is not included in the supply amount the party receiving the supply will pay to the other party making the supply an amount equal to the GST payable in respect of the supply (GST Amount), in addition to any fees or other consideration (if any) required to be paid under any provision of this Agreement.

6.5         Notwithstanding any other provision of this Agreement, if either party is required to reimburse or indemnify the other party for any costs, expenses or other amounts, the amount to be reimbursed or indemnified must be reduced by any part which is recoverable as an input tax credit by the party which incurred it.

6.6         Each party must ensure that each invoice it presents to the other party under this Agreement in respect of any GST Amount is a valid tax invoice. Notwithstanding any other provision of this Agreement, each party's obligation to pay an invoice presented under this Agreement is conditional upon the other party's compliance with this clause 6.6 in respect of that invoice.

6.7         Terms used in this clause (including supply, consideration, representative member and tax invoice) have the same meaning as defined in the GST Act.

7.1         Provided GrubUp obtains the prior written consent of the Partner, GrubUp may use the Partner Branding in any of its marketing materials (including in print or broadcast media, via the internet or mobile apps and on social media networks) and on the Platform and may expressly indicate in any such marketing that the Partner is available to Customers on the Platform.

8.1         Except as expressly set out in the Agreement:

(a)          GrubUp and its licensors shall retain ownership of, and the Partner shall not acquire any right, title or interest in or to, the GrubUp IPRs; and

(b)          the Partner and its licensors shall retain ownership of, and GrubUp shall not acquire any right, title or interest in or to, the Partner IPRs.

8.2         GrubUp grants the Partner a non-exclusive, royalty-free, non-transferable licence to use the “GrubUp” logo, name and/or website address (the “GrubUp Branding”) for the Term in the Territory for the purposes of advertising the fact GrubUp provides the Services to the Partner. GrubUp shall provide to the Partner the GrubUp Branding for this purpose and the Partner shall not use any other logos, images or artwork to advertise its partnership with GrubUp. The Partner shall comply with any GrubUp branding policy issued to it from time to time.

8.3         The Partner grants GrubUp a non-exclusive, royalty-free licence to use the Partner’s logos, name and website address(es) (the “Partner Branding”) for the Term in the Territory:

(a)          on the Platform;

(b)          for the purposes referred to in clause 7; and

(c)           as otherwise reasonably necessary or desirable for the purposes of providing the Services to the Partner, subject to GrubUp obtaining the prior written approval of the Partner for such use.

8.4         GrubUp warrants and undertakes that the GrubUp Branding does not and will not infringe the Intellectual Property Rights of any third party.

8.5         The Partner warrants and undertakes that the Partner Branding does not and will not infringe the Intellectual Property Rights of any third party.

8.6         The Partner shall indemnify GrubUp in full against all Losses suffered or incurred by GrubUp arising out of or in connection with any claim brought against GrubUp for alleged or actual infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the Partner Branding.

8.7         GrubUp shall indemnify the Partner in full against all Losses suffered or incurred by the Partner arising of or in connection with any claim brought against the Partner for alleged or actual infringement of a third party's rights (including any Intellectual Property Rights) arising out of, or in connection with, the GrubUp Branding.

9.1         Nothing in the Agreement will limit or exclude a party’s liability for:

(a)          death or personal injury caused by negligence, or the negligence of its employees, agents or subcontractors;

(b)          fraud or fraudulent misrepresentation; or

(c)           any other liability to the extent the same cannot be excluded or limited by law.

9.2         Subject to clause 9.1, neither party shall have any liability to the other whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising out of or in connection with the Agreement for any:

(a)          loss of profits;

(b)          loss of sales or business;

(c)           loss of agreements or contracts;

(d)          loss of anticipated savings;

(e)          loss of or damage to goodwill; and

(f)           loss of use or corruption of software, data or information, in each case, whether direct or indirect, or for any special, indirect or consequential loss.

10.1      The parties shall comply with their obligations, and have their rights, as set out in Schedule 2 - Privacy.

11.1      GrubUp may terminate this Agreement for any reason whatsoever in its absolute discretion by providing the Partner with 5 days written notice.

11.2      Without affecting any other right or remedy available to it, GrubUp may terminate the Agreement with immediate effect if the Partner breaches clauses 8.5 or 12.2.

11.3      Without affecting any other right or remedy available to it, either party may terminate the Agreement with immediate effect by giving written notice to the other party if:

(a)          the other party is in material breach of any of its obligations under the Agreement and if such breach is capable of remedy, has not been remedied to the satisfaction of the non-breaching party within 14 days of notice of such breach from the nonbreaching party;

(b)          the other party enters administration, becomes insolvent or makes any composition or arrangement with its creditors in general;

(c)           the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)          the other party's financial position deteriorates to such an extent that in the terminating party's opinion the other party's capability to adequately fulfil its obligations under the Agreement has been placed in jeopardy.

11.4      On termination of the Agreement for whatever reason:

(a)          each party shall promptly and in any event within ten (10) Business Days pay to the other party all of the sums owed to that party, calculated in accordance with clause 6 and Schedule 3 - Contract Details; and

(b)          termination of the Agreement shall not affect any of the 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.

12.1      Each party shall in performing their obligations under the Agreement comply with all Applicable Laws.

12.2      Anti-Bribery and Corruption. Without prejudice to the generality of clause 12.1:

(a)          the Partner warrants that it has not done, and in performing its obligations under the Agreement, the Partner shall not do, any act or thing that contravenes the Corporations Act 2001 (Cth), Criminal Code Act 1995 (Cth) Bribery Act 2010 (UK) or any other applicable anti-bribery or antimoney laundering laws and/or regulations in the Territory;

(b)          the Partner warrants and undertakes that it shall comply with, and shall procure that its personnel involved in performing the Agreement shall comply with any of GrubUp’s anti-bribery policies made available to the Partner from time to time; and

(c)           the Partner shall immediately notify GrubUp in writing on becoming aware of, or suspecting, any failure to comply with any provision of this clause 12.

12.3      Anti-Slavery. Each party shall comply, and procure that all its employees, contractors, agents and representatives comply, with Anti-Slavery Law, as relevant to the Services and the sourcing, preparation and supply of the Menu Items and the activities of the parties under the Agreement. The Partner shall use reasonable endeavours on a continuing basis to ensure that Slavery is not taking place in its supply chains.

13.1      Each party undertakes that it shall not at any time during the Agreement, and for a period of 3 years after termination or expiry of the Agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by clause 13.2.

13.2      Each party may disclose the other party's confidential information:

(a)          to its employees, representatives, service providers, subcontractors or professional advisers (“Relevant Personnel”) who need to know such information for the purposes of carrying out or advising on the party's rights or obligations under the Agreement. Each party shall ensure that its Relevant Personnel to whom it discloses the other party's confidential information comply with the obligations of confidentiality under this clause 13;

(b)          to any relevant Taxation Authority to obtain tax or other clearances or consents; and

(c)           as may be required by Applicable Law, a court of competent jurisdiction or any governmental or regulatory authority.

13.3      13.1 shall not apply to confidential information which was in the public domain before it was provided or made available to the relevant party or, after it was provided or made available to that party, entered the public domain otherwise than as a result of

(a)          a breach by that party of this clause 13 or Schedule 2 - Privacy; or

(b)          a breach of a confidentiality obligation by the discloser, where the breach was known to that party.

13.4      Neither party shall use any other party's confidential information for any purpose other than to understand, or exercise or perform, its rights or obligations under the Agreement.

14.1      If a dispute arises out of or in connection with the Agreement or its performance, validity or enforceability (“Dispute”) then, except as expressly provided in the Agreement, the parties shall follow the procedure set out in this clause:

(a)          either party may call a meeting of the parties by giving not less than 15 Business Days’ written notice to the other, and each party shall procure that a least one authorised representative of that party attends all such meetings;

(b)          those attending the relevant meeting shall use all reasonable endeavours to resolve the Dispute. If the meeting fails to resolve the Dispute within 15 Business Days of it being referred to it, either party may refer the Dispute to the Relationship Manager of the parties by notice in writing, who shall co-operate in good faith to resolve the Dispute as amicably as possible within 15 Business Days of the Dispute being referred to them;

(c)           if the Relationship Manager fail to resolve the Dispute in the allotted time, the parties may within that period agree in writing to enter into an alternative dispute resolution procedure with the assistance of a mediator agreed by the parties; and

(d)          if the parties reach a settlement, such settlement shall be reduced to writing and, once signed by an authorised representative of each of the parties, shall be and remain binding on the parties.

14.2      The procedure in this clause 14 (if used) shall be binding on the parties with regard to participation in a mediation but not as to its outcome. All negotiations connected with the Dispute shall be conducted in strict confidence and without prejudice to the rights of the parties in any legal proceedings.

14.3      Nothing in clauses 14 shall restrict either party from seeking any equitable remedy in the courts in accordance with clauses 16.10.

15.1      If GrubUp or the Partner (as the case may be) is unable to carry out any of its obligations under the Agreement due to a Force Majeure Event, the Agreement shall remain in effect but the obligations in question (and the other party’s corresponding obligations, if any, under the Agreement) shall be suspended for so long as the Force Majeure Event continues or 1 month, whichever is the shorter, provided that:

(a)          the suspension of the performance is of no greater scope than is necessitated by the Force Majeure Event;

(b)          the party suffering the Force Majeure Event immediately gives the other party written notice of the occurrence and its expected duration, and continues to furnish regular reports while the Force Majeure Event continues and notifies the other party immediately when it ceases; and

(c)           that party uses all reasonable efforts to remedy its inability to perform and to mitigate the effects of the Force Majeure Event.

15.2      Without affecting any other right or remedy available to it, if a Force Majeure Event continues for more than 1 month, the other party may terminate the Agreement immediately on serving written notice to that effect on the party suffering the Force Majeure Event.

16.1      Amendments

(a)          No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

16.2      Waiver

(a)          No failure or delay by a party in exercising, or any single or partial exercise on an earlier occasion of, any right or remedy provided by law or under the Agreement shall impair the right or remedy, or operate as a waiver or variation of it, or preclude its exercise at any subsequent time or the exercise of any other right or remedy.

16.3      Set off

(a)          GrubUp may set off any amount owed by the Partner to GrubUp against any amount due to the Partner (including the Partner Payment) under the Agreement or any other agreement between the Partner and GrubUp.

16.4      Assignment

(a)          The Partner may not assign, transfer, charge or deal in any way with the benefit of, or any of its rights under or interest in, the Agreement without GrubUp’s prior written consent. GrubUp may assign the benefit of, and any of its rights under, the Agreement together with any cause of action arising in connection with any of them to its successor in title or to any purchaser or transferee.

16.5      Counterparts

(a)          This document may be signed in any number of counterparts.  All counterparts together make one instrument.

16.6      Entire agreement

(a)          This document supersedes all previous agreements about its subject matter.  This document embodies the entire agreement between the parties.

(b)          To the extent permitted by law, any statement, representation or promise made in any negotiation or discussion, is withdrawn and has no effect except to the extent expressly set out or incorporated by reference in this document.

(c)           Each party acknowledges and agrees that it does not rely on any prior conduct or representation by the other party in entering into this document.

16.7      Further assurances

(a)          Each party must do all things reasonably necessary at its own cost to give effect to this document and the transactions contemplated by it.

16.8      No Partnership

(a)          Nothing in the Agreement and no action taken by the parties pursuant to the Agreement shall constitute or be deemed to constitute a partnership, association, joint venture or other co-operative entity between the parties and neither of the parties shall have any authority to bind the others in any way except as provided in the Agreement.

16.9      Notices

(a)          Any notice or other communication given to a party under or in connection with the Agreement shall be in writing, addressed to the relevant party's Nominated Representative at the address of the party specified in Schedule 3 - Contract Details, and shall be:

(i)            delivered personally or sent by pre-paid first class post or other next working day delivery service; or

(ii)           sent by email to the email address specified in Schedule 3 - Contract Details.

(b)          Any notice or other communication shall be deemed to have been received:

(i)            if delivered personally, when left at the address of the party specified in Schedule 3 - Contract Details, or if sent by pre-paid first class post or other next working day delivery service, at 09.00am on the second Business Day after posting; and

(ii)           if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm on a Business Day.

(c)           This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16.10   Governing law and jurisdiction

(a)          The law of the state of New South Wales governs this document.

(b)          Each party irrevocably agrees that the courts of New South Wales, Australia shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Agreement or its subject matter or formation.

16.11   Severability

(a)          A clause or part of a clause of this document that is illegal or unenforceable may be severed from this document and the remaining clauses or parts of the clause of this document continue in force.

 

Schedule 1 – Services Description

        1.1 This Schedule 1 – GrubUp Service Description sets out certain Services to be performed by GrubUp.

        1.2 In the event of, and only to the extent of, any inconsistency between this Schedule 1 – GrubUp Service Description and the Agreement, the provisions of the Agreement shall prevail (except to the extent expressly set out otherwise in this Schedule 1 – GrubUp Service Description).

        2.1 GrubUp shall provide to the Partner the following services in relation to each of the Sites set out at the start of this Schedule 1 – GrubUp Service Description:

              a)  launch and display of the Partner and Menu Items on the Platform;

              b)  facilitation of a real-time ordering process which will enable Customers to place Orders via the Platform;

               c)  the facilitation of Pick-Up Services;

               d)  the facilitation of Delivery Services provided by the Captain; and

                e) the Customer Support Services,

(in respect of Delivery Orders the “Delivery Services” and in respect of Collection Orders (in which case the Delivery Services are excluded) the “Pick-up Services”, together the “Services”).

        3.1 The Partner appoints GrubUp as its agent to solicit Orders in the Territory on the terms of the Agreement and GrubUp accepts the appointment on those terms. GrubUp is authorised by the Partner to solicit, promote and conclude contracts for Orders in the name of and on behalf of the Partner.

        3.2 The Partner appoints GrubUp as its agent to collect Customer payments owed to the Partner. GrubUp shall be authorised to take such steps as it considers necessary to obtain such funds and shall hold such funds for and on behalf of the Partner. The Partner acknowledges and represents that where a Customer pays any funds due to the Partner to GrubUp, GrubUp shall receive such payment on the Partner’s behalf and that receipt shall constitute settlement of the relevant Customer’s debt to the Partner.

        3.3 The Partner acknowledges and agrees that all Orders shall be paid for by Customers via the Platform and the Partner shall not permit Customers to pay for Pick-up Orders at the time of collection.

        4.1 For the purposes of this paragraph 4, “Restricted Person” means any person that:

               a)  performs, provides or arranges the same or similar services as the Services, including but not limited to:

                b) online food or beverage marketplaces;

                c) food or beverage delivery and/or collection services; and/or

                d) collection or delivery-only kitchens (including but not limited to mobile kitchens); or

                e) has substantially the same purpose or business model as GrubUp.

        4.2 The Partner agrees that, for the Term, it will not:

                a) enter into any agreement or arrangement, approach for talks or negotiations, or otherwise have any dealings with any Restricted Person; or

                b) acquire or maintain any financial interest or involvement (whether direct or indirect) in or with any Restricted Person that operates within the Territory.

        4.3 GrubUp may, in addition to other remedies available to it under the Agreement, take the following action as a result of any breach of paragraph 4.2 (to be determined by GrubUp in its sole discretion):

               a)  increase the Delivery Service Fee or Pick-up Service Fee;

                b) remove the Partner from the Platform;

                c) cease all marketing activities on behalf of the Partner;

                d) restrict the Partner from procuring any of the Services;

                e) suspend the Services in accordance with paragraph 13.3 of this Schedule 1 – GrubUp Service Description; and/or

                f) terminate the Agreement with immediate effect by giving written notice to the Partner.

        5.1 GrubUp may charge additional setup fees in its absolute discretion where equipment is provide (if any) by GrubUp to the Partner and shall cover the purchase and installation costs of the Equipment.

        5.2 Without prejudice to clause 4.1(d) of the Agreement, the Partner shall comply with the terms of any GrubUp policy in relation to the Equipment.

        5.3 Risk in the Equipment shall pass from GrubUp to the Partner upon installation of the Equipment. Title to the Equipment shall pass to the Partner once GrubUp has received payment in full of any applicable setup fees as set out in paragraph 5.1.

        5.4 The Partner shall promptly inform GrubUp of any faults with, or damage to, the Equipment, and shall allow GrubUp effective access to the Site(s) at any time to inspect, clean, repair, replace or remove the Equipment. GrubUp shall be entitled to charge a reasonable fee for repairing or replacing any Equipment.

        5.5 The Software shall at all times remain the property of GrubUp. GrubUp grants to the Partner a non-exclusive licence to use the Software for the Term at the Site(s). The Partner shall not (and shall not permit any third party to) copy, adapt, reverse engineer, decompile, modify or make error corrections to the Software other than with GrubUp’s express prior written consent.

        6.1 In addition to GrubUp’s obligations set out at clause 3 of the Agreement, GrubUp shall use reasonable endeavours to:

               a) subject to the payment by the Partner of any setup fees as set out in paragraph 5.1:

               b) provide the Partner with the Equipment; and

                c) onboard the Partner onto the Platform. The Partner acknowledges and agrees that GrubUp shall have the right to sub-contract any part of the onboarding process without the Partner’s consent;

                d) display the Partner and the Menu Items on the Platform as available for Orders;

                e) facilitate and implement a real-time ordering process which will enable Customers to place Orders on the Platform;

                f) provide the Customer Support Services through a professionally manned telephone call and online support centre which shall be operative during the Opening Hours. The Customer Support Services shall be provided in an orderly and efficient manner at no further cost to the Partner;

                g) facilitate the Delivery Services to the Partner through the Captain in relation to each Delivery Order;

                h) procure that Captains perform the Delivery Services in a professional manner; and

                i) procure that Captains comply with such reasonable handling instructions for Menu Items as may be notified to GrubUp by the Partner from time to time.

        7.1 In addition to the Partner’s obligations set out in clause 4 of the Agreement, the Partner shall:

              a)  procure and maintain in force such permits, certificates, registrations, insurances, licences and approvals including council approvals and comply with all Applicable Law, regulations and industry best practices as are applicable to the Partner in carrying out its obligations in connection with the Agreement;

                b) pay to GrubUp:

                  i the Delivery Service Fee; or

                  ii  the Pick-Up Service Fee,

and any setup fees (if applicable) as described in paragraph 5.1 and set out in Schedule 3 – Contract Details.

                c) provide to GrubUp all information, materials and assistance as is reasonably required by GrubUp in order for GrubUp to onboard the Partner to the Platform, including in relation to Menu Items and Opening Hours;

                d) provide GrubUp with accurate descriptions of Menu Items (including any relevant allergen advice and applicable GST amounts). GrubUp and the Partner shall jointly determine the Menu Items to be displayed on the Platform. The Partner agrees that:

                     i) GrubUp may edit descriptions of Menu Items as it deems reasonably fit for display on the Platform; and

                     ii) the prices for the Menu Items it provides for display on the Platform shall be the same as the prices for menu items published in the Partner’s customer menu;

                e) give GrubUp not less than 3 days' written notice of any change and/or the discontinuance of any Menu Items and any change to the Opening Hours;

                f) ensure that the relevant Menu Items are available to be ordered by a Customer during Opening Hours;

                g) accept and reject Orders (as appropriate and in accordance with the Partner Service Levels). For each Order, the aggregate value of the Menu Items must reach GrubUp’s Minimum Order Value;

                h) ensure that Orders are prepared promptly and in accordance with the timescales communicated by the Partner to the Customer via the Platform;

                i) process and prepare Orders using reasonable skill, care and diligence and in accordance with best practice in the Partner’s industry;

                j) take into account any information relating to Customer allergies submitted along with the Order;

                k) ensure all Orders are packaged in such packaging as may be determined by the Partner acting reasonably to avoid tampering, to minimise spillage and maintain the Order at an appropriate temperature;

                l) ensure that the Menu Items:

                    i) correspond with the descriptions on the Platform (including indications that particular Menu Items are gluten free, nut free, or are suitable for vegetarians and/or vegans);

                    ii) are not harmful to health or the environment;

                    iii) have been properly cooked or prepared and are otherwise safe and fit for transportation and consumption;

                    iv) are safely, securely and otherwise appropriately packaged at all times (including as reasonably required to withstand the delivery process, if applicable to the Services); and

                     v) are at an appropriate temperature for consumption by the Customer;

                m) ensure that each Order number on the Order packaging corresponds with the Order number provided by GrubUp to the Partner before the Order is handed over to the relevant Captain or, in respect of Pick-up Orders, Customer;

                n) provide each Customer with an official receipt (and a GST receipt, if applicable) in respect of an Order, if the Customer so requests;

                o) ensure that Customers are at all times treated in a professional manner by Partner staff, and wherever practical are provided with access to a safe waiting area inside the relevant Site when collecting a Pick-up Order;

                p) use its best endeavours to resolve any Customer complaints or requests made by a Customer at a Site in a co-operative, timely and professional manner; and

                q) ensure you effect and maintain all required insurances as may be required by GrubUp from time to time.

        8.1 GrubUp shall use reasonable endeavours to ensure:

               a) that the Menu Items are delivered within 2 hours of the Target Delivery Time for at least 70% of all deliveries of Delivery Orders; and

               b) that the Platform shall be available to the Partner and Customers no less than 80% of the time (calculated over a period of one calendar month), except for any scheduled downtime which has been notified to the Partner by GrubUp in advance.

       9.1 The Partner shall use reasonable endeavours to:

              a)  reject less than 1% of all Orders received through the Platform (which shall exclude issues caused by errors in the Platform or otherwise caused by GrubUp);

               b)  in respect of Delivery Orders, ensure that the relevant Menu Items are available for collection by Captains at the Site(s) at the time stipulated on the Software (the “Collection Time”). In any event the Partner shall ensure that the time for which a Captain is required to wait at the Site(s) (“Captain Held Time”) to pick up an Order shall be no longer than 5 minutes. The Captain Held Time shall be measured from the Collection Time (or if later, the time at which the Captain actually arrives at the relevant Site and notifies the relevant Partner staff of their arrival) to the time at which the Order is provided to the Captain by the Partner for delivery to the Customer;

              c)  in respect of Pick-up Orders, ensure that the Menu Items are ready for collection by Customers within 10 minutes of the Target Pick-up Time for at least 80% of all Pick-up Orders at the location stated by the Partner on the Platform; and

               d) ensure that the Software on the Equipment is set as ‘available’ for Orders for 98% of the Opening Hours.

       10.1 The Parties shall use all reasonable endeavours to ensure that the Rating remains at no less than 80% during the Term.

        11.1 In consideration for the Delivery Services, GrubUp shall be entitled to the Delivery Service Fee. In consideration for the Collection Orders, GrubUp shall be entitled to the Pick-up Service Fee. The Delivery Service Fee and the Pick-up Services Fee shall each be subject to GST at the prevailing rate. The Partner shall cooperate with GrubUp in order to enable it to comply with its GST accounting obligations.

        11.2 For the avoidance of doubt, both the Delivery Services Fee and Pick-Up Service Fee are inclusive of Partner launch and display on the Platform, facilitation of live time orders and customer support.

        11.3 GrubUp may it is absolute discretion adjust any Fees whatsoever from time to time.

        11.4 GrubUp may charge the Customer a fee for the Delivery Services payable to GrubUp.

        11.5 The first reference period for the calculation of any Fees shall be one week.

        11.6 At the end of each calendar month (unless requested otherwise by the Partner), GrubUp shall send to the Partner:

                a) a statement summarising the Menu Items ordered from the Partner during the calendar month (as appropriate) (the “Menu Items Amount”); and

                b) a statement summarising the corresponding amount paid to the Partner during the calendar month, which shall be the Menu Items Amount less any Fees (the “Partner Payment”).

        11.7 GrubUp shall within 2 Business Days after the end of each week transfer the Partner Payment to the Partner by electronic bank transfer to a bank account in the Territory nominated by the Partner, or any other payment method agreed between the parties in writing.

        11.8 GrubUp shall be responsible for setting the Minimum Order Value. Where the Minimum Order Value is not met, GrubUp may charge the Customer an additional fee.

        12.1 The Partner shall be solely responsible for any breaches in connection with paragraph 7.1(a).

        12.2 The Partner shall be solely responsible and liable for all claims against GrubUp by Customers relating to, or arising (directly or indirectly) from or in connection with a breach by the Partner of paragraph 7.1(l) (save, in the case of paragraph 7.1(l)(v) only), where, and to the extent applicable, GrubUp Captains fail to deliver the Menu Items to the Customer within 4 hours of collection from the Partner).

        a) In respect of Delivery Orders, GrubUp shall not be responsible for any claims whatsoever from Customers that:

        b) Menu Items have been spilled or crushed after pick up from the Partner, specifically where this arises due to a failure by the Partner under paragraph 7.1(l)(iv); and

          c)     the Delivery Services were not effected within 4 hours of collection from a Partner;

           d)   the Menu Items are not at an appropriate temperature for consumption on delivery, as a consequence of having been delivered more than 4 hours after collection from the Partner, specifically where this is as a result of:

               i)   the Partner’s breach of paragraph 7.1(l)(iv) or 7.1(l)(v); or

               ii)    the Partner failing to have any Menu Items ready for collection by a Captain in excess of 10 minutes after the designated collection time).

        12.4 Each party’s total aggregate liability to the other, whether arising in contract, tort (including negligence and breach of statutory duty) or otherwise arising under or in connection with the Agreement shall not exceed the total amount paid or payable by one party to the other in the 12 month period immediately preceding the incident giving rise to the liability.

        12.5 The Partner shall indemnify and keep indemnified GrubUp against all Losses suffered or incurred by GrubUp in respect of the matters for which the Partner is responsible or liable.

        12.6 GrubUp shall indemnify and keep indemnified the Partner against all Losses suffered or incurred by the Partner in respect of the matters for which GrubUp is responsible or liable, provided that GrubUp shall not be liable for any Losses sustained or incurred by the Partner that arise directly or indirectly from the Partner’s prevention or delay.

        12.7 If paragraphs 12.1 or 12.3 apply, the Customer may be entitled to compensation from GrubUp payable by the Partner. The Customer’s eligibility for, and the level of, such compensation shall be determined by GrubUp acting reasonably. Subject to clause 9.1 and 9.2 of the Agreement, this shall be the Customer’s sole remedy in relation to paragraphs 12.1 and 12.3.

       13.1 Unless terminated earlier in accordance with clause 11 of the Agreement or in accordance with the terms of this Schedule 1 – GrubUp Service Description, the Agreement shall continue for the Initial Term and shall automatically extend for successive Extension Terms at the end of the Initial Term and at the end of each Extension Term, provided that the total Term of the Agreement shall not exceed a total of 5 years from the Commencement Date.

        13.2 In addition to the termination rights of the parties set out in clause 11 of the Agreement or this Schedule 1 – GrubUp Service Description, without affecting any other right or remedy available to it:

                a) GrubUp may terminate the Agreement with immediate effect by giving written notice to the Partner:

                     i) if the Partner breaches paragraph 5.5 of this Schedule 1 – GrubUp Service Description; or

                     ii) if the Partner breaches paragraph 7.1(a) or 7.1(l) of this Schedule 1 – GrubUp Service Description.

               b) Either party may terminate this Agreement:

                     i) in accordance with paragraph clause 15 of the Agreement.

                     ii) on giving the other party not less than 30 days’ written notice following the Initial Term; and

                      iii) by giving prior written notice to the other party if any undisputed sum owing to that party under any of the provisions of the Agreement is not paid within 30 days of the due date for payment.

       13.3 Without affecting any other right or remedy available to it, if the Partner is in material breach of its obligations under the Agreement at any time, GrubUp reserves the right to suspend the provision of the Services (in whole or in part). GrubUp shall be entitled to maintain the suspension until the Partner is able to remedy the breach and demonstrate its future ability to comply with the relevant obligation to GrubUp’s reasonable satisfaction.

 

 

 

Schedule 2 – Privacy 

 

There are two activities in relation to which GrubUp shares Personal Information with the Partner. The first is to enable the Partner to process and fulfil Orders, the second is to assist the Partner to deal with complaints and Security Breaches.

1.1      In performing this Agreement, each party must comply, and must make sure its directors, officers, employees, agents, contractors and sub-contractors comply, with all Privacy Laws in respect of all Personal Information collected, held, used, disclosed and otherwise handled by them under or in connection with this Agreement.

1.2      For the purpose of this Schedule 2 - Privacy:

(a)          Personal Information has the meaning given in the Privacy Act.

(b)          Privacy Act means the Privacy Act 1988 (Cth) as amended from time to time, including the Australian Privacy Principles. 1.2.3 Privacy Law means any law which relates to the privacy or confidentiality of information about individuals and with which GrubUp or the Partner must comply including the Privacy Act and any applicable State or Territory health privacy legislation in Australia.

(c)           Security Breach means:

(i)            any act or omission that compromises or is reasonably likely to compromise either the security, confidentiality or integrity of Personal Information relating to the Orders or the physical, technical, administrative or organisational safeguards that a party has in place that relate to the security, confidentiality or integrity of such Personal Information;

(ii)           any event which would reasonably be required to be disclosed to the Office of the Australian Information Commissioner by either party pursuant to any Privacy Law; or

(iii)          receipt of a complaint in relation to privacy practices or an alleged breach of applicable Privacy Laws.

1.3      Without limiting paragraph 1.1, if the Partner collects, holds, uses or discloses Personal Information relating to Australian individuals under or in connection with the performance of this Agreement (Regulated Information), the Partner must, and must make sure that its Representatives:

(a)          only collect, hold, use, disclose or otherwise deal with Regulated Information for the purpose of performing this Agreement;

(b)          take all reasonable steps to ensure that Regulated Information is only disclosed to Representatives on a strictly "need to know" basis;

(c)           not do or omit to do anything with Regulated Information that would cause GrubUp to breach any Privacy Law;

(d)          promptly cooperate with any reasonable requests or inquiries made by GrubUp in relation to:

(i)            the management of Regulated Information by or on behalf of the Partner under or in connection with this Agreement;

(ii)           the Partner’s compliance with any Privacy Law (including in relation to staff training, privacy notices and privacy consents);

(iii)          any breaches, potential breaches or alleged breaches of Privacy Laws by the Partner or its Representatives under or in connection with this Agreement; and

(iv)          any investigation or enforcement action by any government body or regulator having jurisdiction under a Privacy Law;

(e)          not transfer Regulated Information to a place or recipient outside of Australia, or allow any allow any person outside Australia to have access to Regulated Information stored in Australia, except to the extent specifically permitted by this Agreement or otherwise with GrubUp's prior written consent (which consent may be subject to any terms GrubUp may impose at its absolute discretion);

(f)           take all necessary steps to ensure that the Regulated Information is protected against misuse and loss, and unauthorised access, interference, corruption, deletion, modification or disclosure;

(g)          refer individuals who request access to, or the correction of, their Personal Information to GrubUp and provide reasonable assistance to GrubUp in responding to such a request;

(h)          immediately notify GrubUp if they:

(i)            become aware that any Regulated Information is or may have been misused, interfered with, corrupted or lost, or subject to unauthorised access, modification or disclosure;

(ii)           become aware of any other breach, potential breach or alleged breach of their obligations under this paragraph;

(iii)          receive a complaint or enquiry from an individual about an alleged breach of any Privacy Law; or

(iv)          receive a request or enquiry from any government body or regulator having jurisdiction under a Privacy Law in relation to any Regulated Information; and

(i)            where any Regulated Information is no longer needed by the Partner for any purpose for which it was originally collected or received by the Partner, promptly destroy, delete or de-identify all such Regulated Information except to the extent that the Partner is required by any applicable law to preserve such records.

1.4      A Party (Party A) must:

(a)          Notify the other party (Party B) of any Security Breach in relation to Personal Information in Party A’s control no later than 24 hours after Party A becomes aware of it and must cooperate and comply with any reasonable direction of Party B concerning the Security Breach; and

(b)          take reasonable steps to remedy any and all such Security Breaches and prevent any further Security Breach in relation to Personal Information in Party A’s control at Party A’s expense in accordance with applicable Privacy Laws. Party A shall reimburse Party B for actual costs incurred by Party B in responding to and mitigating damages caused by any such Security Breaches.

(c)           Party A acknowledges that Party B will have sole discretion in:

(i)            determining and assessing whether a Security Breach in relation to Personal Information in Party A’s control would be likely to result in serious harm to any of the affected individuals;

(ii)           determining any remediation strategy, and the facilitation and/or delivery of a remediation strategy with respect to such Security Breach; and

(iii)          determining whether the Information Commissioner or other regulator or law enforcement agency and/or affected individuals should be notified about such Security Breach, or an exemption obtained or other action taken;

(iv)          determining the contents of any notice and sending any notice to the Information Commissioner, or other regulator, or law enforcement agency.

(d)          If Party B decides that no notification is required and Party A does not agree, Party A must give Party B written notice. Upon receiving such written notice, the parties must immediately organise to meet to discuss the situation and resolve within 5 days whether notification should be made.

(e)          Subject to paragraph 1.4(f), if Party A reasonably believes it is legally required to make a notification in accordance with the Privacy Laws, Party A will be entitled to provide such notification.

(f)           Prior to making any notification, Party A must provide a copy of the content of the proposed notification to Party B for review. Party B must then within 3 Business Days review such notification and Party A will reasonably consider any requested amendments by Party B and keep Party B informed during any decision-making process by Party A.

(g)          At any time, Party B may elect to make the notification itself and will notify Party A if Party B chooses to do so. If the parties cannot agree whether a notification should be made and/or the contents of such notification within 3 Business Days of Party A receiving Party Bs comments in accordance with paragraph 1.4(f), Party A may make any notification Party A reasonably believes is legally required.

(h)          To the extent that Party A has a direct relationship with any individuals to whom Personal Information relates (including sending any direct marketing or other communications to those individuals), Party A will follow all reasonable directions given by Party B in relation to interactions with those individuals, and will provide all notices to, and obtain any and all consents from, those individuals as may be required by Party B from time to time.