Last Updated: December 23, 2022
THESE GENERAL TERMS ARE ENTERED INTO BY AND BETWEEN AUTOMATA TRANSACTIONS, LLC D/B/A GRUBBRR (“GRUBBRR” OR “WE”) AND THE INDIVIDUAL OR ENTITY ENTERING INTO THE ORDER (“YOU” or “YOUR”).
BY ACCEPTING THIS AGREEMENT, (1) BY CLICKING A BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER THAT INCORPORATES THIS AGREEMENT, YOU ARE AGREEING TO THESE GENERAL TERMS. IF YOU ARE ACCEPTING ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR SUCH ENTITY TO THIS AGREEMENT, YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, AND YOU AGREE TO THIS AGREEMENT ON BEHALF OF THE PARTY THAT YOU REPRESENT. IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THESE GENERAL TERMS SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT PLACE AN ORDER FOR THE OFFERINGS. IN PLACING AN ORDER THAT IS SUBJECT TO THESE GENERAL TERMS, YOU AGREE THAT THE APPLICABLE SCHEDULES (AS DEFINED BELOW) THAT ARE ATTACHED TO THESE GENERAL TERMS ARE INCORPORATED INTO THESE GENERAL TERMS. INDIVIDUALLY, EITHER YOU OR GRUBBRR MAY BE REFERRED TO AS A “PARTY” AND, TOGETHER, YOU AND GRUBBRR MAY BE REFERRED TO AS THE “PARTIES”.
GRUBBRR GENERAL TERMS
1 DEFINITIONS. Capitalized terms have the meaning set forth below unless otherwise set forth herein:
1.1 “Applicable Data Protection Law” means any privacy and/or data protection laws, regulations and binding guidance that apply to the processing of Personal Data in connection with the respective Party’s performance under this Agreement, including and any legislation or regulations implementing, replacing, amending, or made pursuant to such laws.
1.2 “Affiliate” means any other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, GRUBBRR.
1.3 “Agreement” refers to these GRUBBRR Terms together with the applicable Schedules (including any amendments to those incorporated Schedules) and any URL terms referenced therein. The Agreement governs Your use of the Offerings ordered from GRUBBRR or SaaS ordered from a GRUBBRR Partner (as set forth in Section 6 of the GRUBBRR Terms).
1.4 “Content” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from You or a User by or through the GRUBBRR Offerings.
1.5 “GRUBBRR Content” means content and images made available to You for use in connection with the Offerings.
1.6 “GRUBBRR Offerings” refers to SaaS and Services.
1.7 “Hardware” means the kiosks, displays, printers, cables, or other hardware or equipment, specified on an applicable Order. You understand and acknowledge that GRUBBRR is not the manufacturer of any Hardware. Hardware purchased hereunder is resold to You by GRUBBRR.
1.8 “Hardware-as-a-Service” or “HaaS” means the provision of Hardware on a subscription basis.
1.9 “Intellectual Property Rights” means any and all (i) copyrights and other rights associated with works of authorship, (ii) trade secrets and other confidential information, (iii) patents, patent disclosures and all rights in inventions (whether patentable or not), (iv) trademarks, trade names, Internet domain names, and registrations and applications for the registration thereof together with all of the goodwill associated therewith, (v) all other intellectual and industrial property rights of every kind and nature throughout the world and however designated, whether arising by operation of law, contract, license, or otherwise, and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in effect.
1.10 Non-GRUBBRR Application” means web-based, mobile, offline, or other software that interoperates with the SaaS, which is provided by You or a third party.
1.11 “Offerings” means GRUBBRR Offerings, Hardware and HaaS.
1.12 “Order” means a GRUBBRR ordering document for Offerings signed by You or an ordering document with a Partner for the SaaS as set forth in Section 6 of the General Terms.
1.13 “Personal Data” means personal data or personal information protected by Applicable Data Protection Laws.
1.14 “Schedule” or “Schedules” means the GRUBBRR Schedules attached to these General Terms.
1.15 “Services” refers to installation services, or other professional services related to the Hardware, HaaS and/or SaaS as set forth in an Order.
1.16 “SaaS-as-Service” or SaaS” means: (i) the web-based application provided by GRUBBRR including associated offline components as specified in an Order; (ii) any SaaS updates acquired through support; and (iv) any related documentation provided by GRUBBRR. SaaS does not include any releases prior to general availability (e.g., beta releases).
1.17 “Subscription Term” means the term of the HaaS and/or SaaS subscription as set forth in an Order.
1.18 “Users” means those employees, contractors, and end users, as applicable, authorized by You or on Your behalf to use the SaaS in accordance with the Agreement and Your Order.
2 AGREEMENT TERM AND APPLICABLE SCHEDULES. This Agreement is applicable to an Order which this Agreement accompanies, or which incorporates this Agreement and as set forth in Section 5. The Schedules set forth terms and conditions that apply specifically to certain Offerings which may be different than, or in addition to, these General Terms.
3 INTELLECTUAL PROPERTY
3.1 Ownership. Neither Party grants the other Party any rights or licenses not expressly set forth in this Agreement. GRUBBRR and its suppliers have and will retain all Intellectual Property Rights in and to its Brand Elements (including all goodwill arising from their use), the GRUBBRR Offerings, Deliverables, any underlying software and all copies, improvements, updates, modifications and enhancements of the foregoing (including any changes which incorporate any Feedback, as defined in Section 3.2 of the General Terms), and You do not acquire any rights of ownership in any of the foregoing.
3.2 Feedback. If You provide GRUBBRR with feedback about the GRUBBRR Offerings (“Feedback”), GRUBBRR may use the feedback without restriction or compensation to You, and You assign to GRUBBRR all rights in, and to, Feedback.
4 YOUR CONTENT.
4.1 Your Proprietary Rights. As between You and GRUBBRR, You have and will retain all rights to Your Content. Except as set forth herein, this Agreement does not grant us any ownership rights to Your Content.
4.2 Your License to GRUBBRR. By submitting, posting, storing, or otherwise making Content available through the GRUBBRR Offerings, You grant us a royalty-free, sublicensable (as necessary to subcontractors), non-transferable (except as permitted under Section 16.2 of the General Terms), non-exclusive, worldwide license to use, host, store, reproduce, modify (e.g. to make sure your Content displays properly through the GRUBBRR Offering), publish, list information regarding, translate, distribute (to the Users), perform (for Users), display (to Users), and make derivative works of the Your Content solely for use in connection with our provision of the GRUBBRR Offering to You.
4.3 Your Responsibilities. You represent and warrant that You and Your Users have the right to upload or provide the Content to GRUBBRR and that such use does not violate or infringe on any rights of any third party. You will (i) be responsible for Your and Your Users’ compliance with this Agreement and Order; (ii) be responsible for the accuracy, quality and legality of Your Content, the means by which You acquired the Content, Your use of the Content with the SaaS and the interoperation of any other applications or software with which You use the SaaS or Content; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of SaaS and Content, and notify GRUBBRR promptly of any such unauthorized access or use; and (iv) use the SaaS and GRUBBRR Content only in accordance with this Agreement, Orders and applicable laws. Any use of the SaaS in breach of the foregoing by You or Your Users that in GRUBBRR’s judgment threatens the security, integrity or availability of the GRUBBRR Offerings, may result in GRUBBRR’s immediate suspension of the SaaS. To the extent You disclose or transmit Your Content to a third party, we are no longer responsible for the security, integrity, or confidentiality of such content outside of GRUBBRR’s control. Under no circumstances will GRUBBRR be liable in any way for any (i) errors or omissions in the Content, or (ii) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Content. Although GRUBBRR is not responsible for any Content, GRUBBRR may delete any Content, at any time without notice to You, if GRUBBRR becomes aware that it violates any provision of this Agreement, or any law.
5 MONITORING. GRUBBRR may (i) compile statistical and other information related to the performance, operation and use of the SaaS; and (ii) use Content (excluding Personal Data) from the SaaS in aggregated and anonymized form for security and operations management, to create statistical analyses, for research and development purposes, to improve the GRUBBRR Offerings and for marketing purposes and (iii) any other purpose permitted by applicable law (clauses i-iii are collectively referred to as “Analyses”). GRUBBRR may commercialize and make the Analyses publicly available; however, Analyses will not incorporate Your Content in a form that could serve to identify an individual person. GRUBBRR retains all Intellectual Property Rights in and to the Analyses.
6 GRUBBRR PARTNERS. GRUBBRR has agreements with certain organizations to promote, market, service, and resell SaaS (“Partners”). You may order SaaS that is promoted or marketed to You by a Partner and in such case this Agreement applies as set forth in Your ordering document with the Partner or to the extent applicable based on the agreement between GRUBBRR and the Partner. GRUBBRR IS NOT RESPONSIBLE FOR THE ACTIONS OR STATEMENTS OF PARTNERS OR OTHER SUPPLIERS, ANY OBLIGATIONS EITHER HAS TO YOU, OR ANY PRODUCTS OR SERVICES THAT THEY SUPPLY TO YOU UNDER THEIR AGREEMENTS. If requested by a Partner on Your behalf, You agree GRUBBRR may provide a copy of the Agreement to the Partner to enable the processing of Your Order with that Partner. You understand that Partners, including any third-party firms retained by You to provide services, are independent of GRUBBRR and are not GRUBBRR’s agents.
7.1 GRUBBRR may provide you Services related to your use of the Offering as set forth in an Order. If GRUBBRR provides deliverables as part of its provision of the Services (“Deliverables”), Deliverables shall be considered modifications or additions to the SaaS and will be owned by GRUBBRR as set forth in Section 3 of the General Terms. You shall be permitted to use the Deliverables as part of the SaaS as permitted in the agreement referenced in Your Order for the SaaS subscription.
7.2 You agree to provide GRUBBRR with all information and access and perform the actions to enable GRUBBRR to deliver the Services as set forth in an Order or requested by GRUBBRR. If the Services require access to another vendor’s products that are part of Your systems, You will be responsible for acquiring all such products and the appropriate license rights necessary for GRUBBRR to access such products on your behalf. If You fail to fulfill Your obligations under this section, GRUBBRR may charge additional fees and Your project timeline may be delayed.
8 FEES AND PAYMENT
8.1.2 You shall pay all fees specified in an Order. All fees payable to GRUBBRR are due in accordance with the applicable Schedule, payable in U.S dollars and are exclusive of taxes and expenses. Unless otherwise set forth in an Order, the fees for Services shall be due upon execution of the Order. If any amount is not received by the due date, then without limiting GRUBBRR’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is higher.
8.2 Payment Method. You must provide a payment method as part of an Order placed with GRUBBRR. By providing GRUBBRR with a payment method, You (i) consent to GRUBBRR’s use of account information regarding the selected payment method provided by the issuing bank or applicable payment network, (ii) represents that GRUBBRR is authorized to use that payment method and that any payment information You provide is true and accurate, and (iii) authorize GRUBBRR to charge You using that payment method for Orders and other charges specified in this Agreement. If GRUBBRR agrees to invoice You pursuant to an Order, except as otherwise set forth in an Order, all invoices will be due within 30 days of the date of the invoice.
8.3 Taxes. Except as otherwise set forth in an Order, fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (“Taxes”). You agree to pay all Taxes associated with Your purchases hereunder, except for taxes based on GRUBBRR’s income.
8.4 Expenses. You will reimburse GRUBBRR for pre-approved travel expenses related to GRUBBRR’s provision of the Offerings.
8.5 Price Increases. GRUBBRR reserves the right to increase fees once per year up to a maximum of 7% over the percentage change in the Consumer Price Index published by the United States Bureau of Labor. The change shall be determined by comparison of the figure for the previous January 1, with that of January 1 of the current year. GRUBBRR will use commercially reasonable efforts to notify You in advance of any price increases. Except as expressly provided in the applicable Order, renewal of promotional or one-time priced subscriptions will be at GRUBBRR’s applicable list price in effect at the time of the applicable renewal.
8.6 Suspension and Acceleration. If any charge owing by You under this or any other agreement for services is overdue, GRUBBRR may, without limiting its other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend performance until such amounts are paid in full.
8.7 No Deductions or Setoffs. All amounts payable to GRUBBRR under this Agreement will be paid by You to GRUBBRR full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
8.8 Partner Purchases. If you make any purchases through a Partner:
8.8.2 Instead of paying GRUBBRR, You will pay the applicable amounts to the Partner, as agreed between you and the Partner. We may suspend or terminate your rights to use the Offerings if we do not receive the corresponding payment from the Partner.
8.8.3 Your order details (e.g., the SaaS you are entitled to use, the number of Users, the Subscription Term, etc.) will be as stated in the Order placed with GRUBBRR by the Partner on your behalf, and Partner is responsible for the accuracy of any such Order as communicated to GRUBBRR.
8.8.4 Partners are not authorized to modify these terms or make any promises or commitments on GRUBBRR’s behalf, and GRUBBRR is not bound by any obligations to You other than as set forth herein.
8.8.5 The amount paid or payable by the Partner to GRUBBRR for your use of the applicable SaaS will be deemed the amount actually paid or payable by You to GRUBBRR under these General Terms for purposes of calculating the liability cap in Section 11.3 of the General Terms.
9.1 Breach. If either of us breaches a material term of the Agreement or an Order and fails to correct the breach within 30 days of written notice of the breach, the non-breaching Party may terminate the Agreement or Order, as applicable. If GRUBBRR terminates as specified in the preceding sentence, You must pay all amounts which have accrued prior to such termination, as well as all sums remaining unpaid plus related taxes and expenses pursuant to the Agreement or Order, as applicable within 30 days of termination. Upon any termination of this Agreement or Order, all access granted thereunder shall immediately terminate and You will no longer have the right to access or use the SaaS and HaaS (as applicable). Failure by You to pay all amounts when due constitutes a material breach of the Agreement.
9.2 Termination for Convenience. GRUBBRR may terminate the Agreement or any Order upon 30 days’ notice to You.
9.3 Term of Subscriptions.
9.3.2 Unless otherwise set forth in an Order, the initial subscription term shall be 36 months from (i) the Order date or (ii) in the event of a Pilot, from the day immediately following the expiration of the Pilot (“Initial Subscription Term”). Thereafter, the Order will automatically renew for successive 12-month periods (each, a “Renewal Subscription Term” and collectively with the Initial Subscription Term, the “Subscription Term”)), unless either Party gives the other Party written notice at least 30 days prior to the expiration of the Initial Subscription Term or the then-current Renewal Subscription.
9.4 Survival. Provisions that survive termination or expiration are those relating to limitation of liability, indemnity, payment, and others which by their nature are intended to survive.
10.1 Definition. “Confidential Information” means information disclosed under this Agreement that is designated by the disclosing Party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. GRUBBRR’s Confidential Information includes, but is not limited to, the terms of this Agreement, GRUBBRR’s Intellectual Property Rights, technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing.
10.2 Obligations. As a receiving Party, each Party will (i) hold the disclosing Party’s Confidential Information in confidence and not disclose such Confidential Information to third parties except as permitted in this Agreement and (ii) only use such Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving Party may disclose the disclosing Party’s Confidential Information to its employees, agents, contractors, lawyers and Affiliates having a legitimate need to know, provided it remains responsible for their compliance with this Section 10, and they are bound to confidentiality obligations no less protective than this Section 10.
10.3 Exclusions. These confidentiality obligations do not apply to information that the receiving Party can document (i) is or becomes public knowledge through no fault of the receiving Party, (ii) it rightfully knew or possessed prior to receipt under this Agreement, (iii) it rightfully received from a third party without breach of confidentiality obligations or (iv) it independently developed without reference to the disclosing Party’s Confidential Information. The receiving Party may disclose the disclosing Party’s Confidential Information if required by law, subpoena or court order, provided, if permitted by law, it notifies the disclosing Party in advance.
10.4 Data Security. The protection of Your Content is important to us. Accordingly, we will maintain reasonable administrative, physical, and technical safeguards designed to protect Your Content in our possession. Those safeguards will include measures designed to prevent unauthorized access, use, modification, deletion and disclosure of Your Content by our personnel. In the event we have a reasonable, good faith belief that an unauthorized party has accessed Your Content, we will promptly notify You, investigate the incident, and make all commercially reasonable efforts to stop such incident from continuing to occur.
11.1 Infringement. GRUBBRR will defend You from and against, and pay damages finally awarded by a court or in settlement arising out of, any third-party claim alleging that the SaaS used in accordance with the Agreement infringes the U.S. patent, trademark, or copyright of a third party. The foregoing will not apply to any portion of an infringement claim that is based on (i) any combination of the SaaS with any hardware, software, equipment, or data not provided by GRUBBRR, (ii) modification of the SaaS by anyone other than GRUBBRR; (ii) Content, specifications or instructions provided by You, or (iii) use of the SaaS in violation of or outside the scope of this Agreement.
11.2 If GRUBBRR believes or it is determined that the SaaS may have violated a third party’s Intellectual Property Rights, GRUBBRR may choose to either (i) modify the SaaS to be non-infringing (while substantially preserving its functionality), (ii) obtain a license to allow for continued use, or (iii) if these alternatives are not commercially reasonable (as determined by GRUBBRR), GRUBBRR may terminate the affected Order and refund any unused, pre-paid SaaS subscription fees You paid for the affected SaaS. If such return materially affects GRUBBRR’s ability to meet its obligations under the relevant Order, then GRUBBRR may, at its option and upon 30 days prior written notice, terminate the relevant Order.
11.3 Indemnification. You will defend, indemnify and hold harmless GRUBBRR and its officers, directors, employees, representatives and agents from and against any third party claim brought against such GRUBBRR parties, and any resulting losses, liabilities, damages, costs or expenses (including reasonable attorneys’ fees and court costs), to the extent arising from or relating to Your or Your Users: (i) Content; (ii) use or misuse of the Offerings or GRUBBRR Content in violation of the Agreement; (iii) gross negligence or willful misconduct; or (iv) breach of the Agreement.
11.4 Procedures. The indemnifying Party’s obligations in this Section 11 are subject to receiving (i) prompt written notice of the claim, (ii) the exclusive right to control and direct the investigation, defense and settlement of the claim, and (iii) all reasonably necessary cooperation of the indemnified Party, at the indemnifying Party’s expense for reasonable out-of-pocket costs. The indemnifying Party may not settle a claim without the indemnified Party’s prior written consent (not to be unreasonably withheld) if the settlement would require the indemnified Party to admit fault or take or refrain from taking any action (other than ceasing use or sale of infringing materials, when GRUBBRR is the indemnifying Party). The indemnified Party may participate in the defense of any claim with its own counsel at its own expense.
11.5 NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS SECTION 11 STATES GRUBBRR’s ENTIRE RESPONSIBILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
12 DISCLAIMER; LIMITATION OF LIABILITY
12.1 GRUBBRR, OUR AFFILIATES AND SUPPLIERS MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE OFFERINGS FOR ANY PURPOSE. TO THE EXTENT PERMITTED BY LAW, THE OFFERINGS ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND. GRUBBRR DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ALL IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. GRUBBRR MAKES NO WARRANTY OF ANY KIND THAT THE GRUBBRR INTELLECTUAL PROPERTY RIGHTS, OR ANY OFFERINGS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
12.2 CONSEQUENTIAL DAMAGES WAIVER. GRUBBRR (AND ITS SUPPLIERS’ AND AFFILIATES’) WILL NOT HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.3 LIABILITY CAP. GRUBBRR’S (AND ITS SUPPLIERS’ AND AFFILIATES’) AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNT ACTUALLY PAID TO GRUBBRR UNDER THE ORDER THAT IS SUBJECT OF THE CLAIM IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
12.4 Nature of Claims and Failure of Essential Purpose. The Parties agree that the waivers and limitations specified in this Section 12 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose
12.5 EXCEPT FOR ACTIONS FOR NON-PAYMENT OR BREACH OF GRUBBRR’S INTELLECTUAL PROPERTY RIGHTS, NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATING TO THE MASTER AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
12.6 EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13 FORCE MAJEURE. Neither Party shall be responsible for failure or delay of performance if caused by an act of war, hostility, or sabotage, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving a Party’s employees), denial of service attack, pandemic, electrical, internet, or telecommunication outage that is not caused by the obligated Party; government restrictions (including the denial or cancellation of any export, import or other license), or other event outside the reasonable control of the obligated Party (“Force Majeure Event”). Each Party suffering a Force Majeure Event will use reasonable efforts to mitigate the effect of a Force Majeure Event. If a Force Majeure Event continues for more than 120 days, the aggrieved Party may cancel affected Orders upon written notice to the other Party. This section does not excuse either Party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Your obligation to pay for Offerings ordered or delivered.
14 DISPUTE RESOLUTION
14.1 Governing Law; Jurisdiction and Venue. This Agreement shall be governed by and construed under the laws of the State of Florida and the Parties consent to the exclusive jurisdiction and venue of the state or federal courts located in Florida or Palm Beach County, Florida.
14.2 Injunctive Relief; Enforcement. Nothing in this Agreement will prevent either Party from seeking injunctive relief with respect to a violation of Intellectual Property Rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
15 CHANGES TO AGREEMENT. GRUBBRR may update this Agreement from time-to-time at its sole discretion by posting the updated terms to https://grubbrr.com/ or a successor site. Except as otherwise set forth in an Order, the version of this Agreement in place on the date of the Order is the version that will govern such Order. Except as provided in this Section 15, all changes or amendments to this Agreement require the written agreement of you and GRUBBRR.
16 NOTICE. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (i) personal delivery, (ii) upon delivery when sent by prepaid overnight express delivery service (e.g., FedEx, UPS), or (iii), except for notices of termination, warranty claims or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the contact information identified in the Order. Notices to GRUBBRR will be sent to Automata Transactions, LLC d/b/a GRUBBRR, 1081 Holland Drive, Boca Raton, Florida 33487, USA, Attention: Legal Department with a copy to Legal@GRUBBRR.com.
16.1 Independent Contractor. GRUBBRR is an independent contractor, and we agree that no partnership, joint venture, or agency relationship exists between us.
16.2 Assignment. Neither Party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, GRUBBRR may assign this Agreement and/or any Order, in whole or in part, without Your consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all its assets.
16.3 Waiver and Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.
16.4 Publicity. GRUBBRR may use Your name and logo to identify You as a customer of GRUBBRR on its website and within any written and/or electronic marketing material relating to the GRUBBRR Offerings. GRUBBRR’s use of the name and logo does not create any ownership rights therein and all rights not granted to GRUBBRR are reserved by You.
16.5 Entire Agreement and Order of Precedence. This Agreement embodies the entire understanding and agreement between the Parties respecting the subject matter of this Agreement and supersedes any and all prior understandings and agreements between the Parties respecting such subject matter. This Agreement has been prepared in the English Language and such version shall be controlling in all respects and any non-English version of this Agreement is solely for accommodation purpose. The Parties agree that any term or condition stated in a Your purchase order or order documentation (excluding Orders) is void. In the event of any conflict or inconsistency among this Agreement and the Order, the Agreement shall control, except to the extent the Order describes the Offerings, fees, or other particulars in greater detail. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.
The terms in this Schedule 1 apply to Your purchase of Hardware pursuant to an Order with GRUBBRR. THIS SCHEDULE 1 DOES NOT APPLY TO ANY HARDWARE PURCHASED FROM A GRUBBRR PARTNER OR OTHER SUPPLIER. This Schedule 1 shall co-terminate with the General Terms.
1. DELIVERY, INSTALLATION, TITLE AND RISK OF LOSS
1.1 Delivery. Hardware will be delivered FOB Shipping Point. Location means the delivery address specified by You on Your Order or when your Order does not indicate a ship to address, the location specified on the Order will apply (“Location”). GRUBBRR will use commercially reasonable efforts to deliver the Hardware within a timeframe that is consistent with GRUBBRR’s past practices regarding the amount and type of Hardware that You have ordered. Delivery dates are estimates unless otherwise specifically agreed in an Order. You are responsible for all shipping costs.
1.2 Availability. GRUBBRR makes no guarantees as to the availability of specific Hardware. GRUBBRR may make substitutions to the Hardware based on manufacturer availability.
1.3 Location. Hardware shall be installed in the Location specified in Your Order. You must notify GRUBBRR if you intend to move the Hardware from the Location and moving the Hardware may be subject to additional fees. GRUBBRR does not guarantee that the Hardware will be operable if it is moved from the Location. GRUBBRR is not responsible for any inoperability arising out of or related to moving the Hardware.
1.4 Installation. You are responsible for installation and set-up of the Hardware unless You purchased the applicable Services from GRUBBRR for that Hardware.
2 HARDWARE FEES. Except as otherwise expressly set forth in an Order, Hardware fees and shipping costs are due upon execution of the Order and will be charged using the payment method on file with GRUBBRR.
3 RETURN OF PILOT HARDWARE. If You participate in a Pilot (hereinafter defined) that includes the provision of Hardware at no cost (as specified in an Order) to You, You are responsible for (i) returning the Hardware to GRUBBRR in good operating condition as it was on the date it was delivered (reasonable wear and tear is accepted) at Your sole cost and expense upon the expiration or termination of the Pilot, or (ii) payment of the Hardware in accordance with the Order (in the absence of a stated amount You will be charged the then-current MSRP). You authorize GRUBBRR to charge the payment method on file with GRUBBRR in the event you fail to return the Hardware as set forth herein.
4 WARRANTY. GRUBBRR will, to the extent permissible, pass through to You all available Hardware warranties from the original equipment manufacturer. EXCEPT AS SET FORTH IN THE FOREGOING SENTENCE, THE WARRANTY DISCLAIMERS IN SECTION 12 OF THE GENERAL TERMS APPLY.
The terms in this Schedule 2 apply to Your purchase of SaaS pursuant to an Order. This Schedule 2 shall co-terminate with the General Terms.
1 GRUBBRR RESPONSIBILITIES.
1.1 Access. During the Subscription Term, GRUBBRR: (i) will make the SaaS available to You pursuant to the Order, (ii) use commercially reasonable efforts to make the SaaS available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which GRUBBRR shall endeavor to give advance electronic notice); and (b) any unavailability caused by circumstances beyond GRUBBRR’s reasonable control, including, for example, a Force Majeure Event, and (iii) will provide SaaS support in accordance with GRUBBRR’s standard practices during GRUBBRR’s normal business hours, excluding holidays.
1.2 Pilot. If You are granted a pilot pursuant to an Order, GRUBBRR will make the SaaS available to You on a trial basis (“Pilot”) until the earlier of (i) the expiration of the Pilot as set forth in an Order (ii) the commencement of the Initial Subscription Term or (iii) termination by GRUBBRR in its sole discretion. As part of the Pilot, You agree to provide data as requested by GRUBBRR to enable GRUBBRR to perform an analysis of certain metrics and compare Your business operations before the Pilot and during to measure the success of the Pilot. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, DURING THE PILOT, THE GRUBBRR OFFERINGS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND GRUBBRR SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE DURING THE PILOT UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE GRUBBRR’S LIABILITY WITH RESPECT TO THE OFFERINGS PROVIDED DURING THE PILOT SHALL NOT EXCEED $1,000.00. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE LIMITATION OF LIABILITY OF THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO GRUBBRR AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE GRUBBRR OFFERINGS DURING THE PILOT, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
1.3 Changes. GRUBBRR reserves the right, in its sole discretion, to make any changes to the SaaS and GRUBBRR Content that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of SaaS to its customers, (b) the competitive strength of or market for the SaaS, or (c) the cost efficiency or performance, or (ii) to comply with applicable laws.
2 ACCESS AND USE OF THE SAAS
2.1 Subscriptions. Unless otherwise provided in the applicable Order, (i) SaaS subscriptions are purchased for the Subscription Term, (ii) SaaS subscriptions may be added during a Subscription Term at the same pricing as the underlying subscription pricing, prorated for the portion of that Subscription Term remaining at the time the subscriptions are added, and (iii) any added subscriptions will terminate on the same date as the underlying subscriptions. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by GRUBBRR regarding future functionality or feature
2.2 Usage Restrictions. You will not (i) make the SaaS available to anyone other than You or Your Users, or use any SaaS for the benefit of anyone other than You, unless expressly stated otherwise in an Order; (ii) sell, resell, license, sublicense, distribute, rent or lease any SaaS, or include any SaaS in a service bureau or outsourcing offering; (iii) use the SaaS to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party rights; (iv) use the SaaS to store or transmit harmful code or viruses; (v) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein; (vi) attempt to gain unauthorized access to any Service or Content or its related systems or networks; (vii) permit direct or indirect access to or use of any SaaS in a way that circumvents a contractual usage limit, or use any SaaS to access, copy or use any of GRUBBRR Intellectual Property Rights except as permitted under this Agreement and Order; (viii) modify, copy, or create derivative works of the SaaS or any part, feature, function or user interface thereof, (ix) frame or mirror any part of the SaaS, other than framing on Your own intranets or otherwise for its own internal business purposes or as permitted in the documentation, (x) disassemble, reverse engineer, or decompile the SaaS access to: (a) build a competitive product or service, (b) build a product or service using similar ideas, features, functions or graphics of the SaaS; (c) copy any ideas, features, functions or graphics of the Service; or (d) determine whether the SaaS is within the scope of any patent.
2.3 Your Systems. Unless otherwise set forth in an Order, You shall be responsible for obtaining and maintaining the functionality and security of any equipment and ancillary services needed to connect to, access or otherwise use the SaaS, including, but not limited to, modems, Hardware, servers, software, operating systems, networking, and web servers.
2.4 Non-GRUBBRR Applications.
2.4.2 If You install or enable a Non-GRUBBRR Application for use with the SaaS, You grant GRUBBRR permission to allow that Non-GRUBBRR Application to access Content as required for the interoperation of that Non-GRUBBRR Application with the SaaS. GRUBBRR is not responsible for any disclosure, modification, or deletion of Your Content resulting from access by a Non-GRUBBRR Application.
2.4.3 The SaaS may contain features designed to interoperate with Non-GRUBBRR Applications. GRUBBRR cannot guarantee the continued availability of such features and may cease providing them without entitling You to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-GRUBBRR-Application ceases to make the Non-GRUBBRR Application available for interoperation with the corresponding features in a manner acceptable to GRUBBRR.
2.5 Removal of GRUBBRR Content. GRUBBRR may, at its discretion, provide access to GRUBBRR Content as part of its provision of the GRUBBRR Offerings. If You receive notice, including from GRUBBRR, that GRUBBRR Content may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third party-rights or as otherwise determined by GRUBBRR, You will promptly do so. If You do not take required action, including deleting any GRUBBRR Content You may have downloaded from the SaaS, in accordance with the above, or if in GRUBBRR’S judgment continued violation is likely to reoccur, GRUBBRR may disable the applicable Content or SaaS, as necessary. If requested by GRUBBRR, You shall confirm deletion and discontinuance of use of such Content in writing and GRUBBRR shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if GRUBBRR is required by any third-party rights holder to remove Content or receives information that Content provided to You may violate applicable law or third-party rights, GRUBBRR may discontinue Your access to Content.
2.6 Compliance with Export Laws. The SaaS may contain encryption technology controlled under U.S. export law, the export of which may require an export license from the U.S. Commerce Department. You will comply with all applicable export control laws and regulations of the U.S. and other countries.
2.7 Reservation of Rights. GRUBBRR reserves all rights not expressly granted to You in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to You or any third party any GRUBBRR Intellectual Property Rights.
2.8 Suspension. Notwithstanding anything to the contrary in this Agreement, GRUBBRR may suspend Your or your User’s access to any portion or all of the SaaS if (i) GRUBBRR reasonably determines that (a) there is a threat or attack on any of the GRUBBRR Intellectual Property Rights; (b) GRUBBRR’s or any User’s use of the GRUBBRR Intellectual Property Rights disrupts or poses a security risk to the GRUBBRR Intellectual Property Rights or to any other customer or vendor of GRUBBRR; (c) You or any User, is using the GRUBBRR Intellectual Property Rights for fraudulent or illegal activities; (d) GRUBBRR’s provision of the GRUBBRR Offerings to You or any User is prohibited by applicable law; or (ii) any vendor of GRUBBRR has suspended or terminated GRUBBRR’s access to or use of any third-party services or products required to enable You to access the SaaS. GRUBBRR will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that You or a User may incur as a result of a suspension permitted under this Agreement.
2.9 GRUBBRR IS NOT RESPONSIBLE FOR ANY ISSUES RELATED TO THE PERFORMANCE, OPERATION OR SECURITY OF THE SOFTWARE THAT ARISE FROM YOUR CONTENT, THIRD PARTY CONTENT OR NON-GRUBBRR APPLICATIONS.
3 FEES AND PAYMENT
3.1 Except as otherwise specified herein or in an Order, (i) fees are based on SaaS subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term once ordered.
3.2 SaaS fees are due monthly in advance. SaaS subscription fees for the first month shall be prorated based on the date of the Order and will be commence on (i) the date of the Order or (ii) the start of the Initial Subscription Term in the event of a Pilot. SaaS fees will be charged using the payment method on file.
4 RETRIEVAL OF CONTENT. At the end of the applicable Subscription Term, we will make Your Content (as it existed at the end of the subscription term) available for retrieval by You for 30 days. At the end of such 30-day retrieval period, and except as may be required by law, we will delete or otherwise render unrecoverable any of Your Content that remains in the SaaS.
The terms in this Schedule 3 apply to Your purchase of HaaS pursuant to an Order. THIS SCHEDULE 3 DOES NOT APPLY TO ANY HARDWARE PURCHASED FROM A GRUBBRR PARTNER OR OTHER SUPPLIER. This Schedule 3 shall co-terminate with the General Terms. For the avoidance of doubt, if You order HaaS, the terms in Schedule 1 shall not apply.
1 DELIVERY, INSTALLATION AND RISK OF LOSS.
1.1. Delivery. Subject to Your payment of shipping costs, Hardware will be delivered to the Location. GRUBBRR will use commercially reasonable efforts to deliver the Hardware within a timeframe that is consistent with GRUBBRR’s past practices regarding the amount and type of Hardware that You have ordered. Delivery dates are estimates unless otherwise specifically agreed in an Order.
1.2. Availability. GRUBBRR, in its sole discretion, determines which Hardware GRUBBRR will make available to You as a HaaS offering. The availability of and pricing associated with Hardware by You is subject to change at any time by GRUBBRR. GRUBBRR makes no guarantees as to the availability of specific Hardware. GRUBBRR may make substitutions to the Hardware based on manufacturer availability.
1.3. Location. Hardware shall be installed in the Location. You must notify GRUBBRR if you intend to move the Hardware from the Location and moving the Hardware may be subject to additional fees. GRUBBRR does not guarantee that the Hardware will be operable if it is moved from the Location. GRUBBRR is not responsible for any inoperability arising out of or related to moving the Hardware.
1.4. Inspection. You will inspect each delivery of the Hardware upon receipt and will ensure a duly authorized representative is present at the time of delivery to the Location. If You receive a delivery that is visibly damaged, within 1 business day of delivery, You will notify GRUBBRR in writing of any damaged or missing Hardware. The notification will include in reasonable detail the nature of any damaged or missing Hardware and will be sent to firstname.lastname@example.org. If You do not notify GRUBBRR of any nonconforming delivery within the time period specified above in this Section, the delivery will be deemed to be accepted by You, risk of loss will pass to You, and You will be responsible for any damages.
1.5. Installation. You are responsible for installation and set-up of the Hardware that is part of Your HaaS offering unless You purchased the applicable Services from GRUBBRR for that Hardware.
2 YOUR OBLIGATIONS. You shall: (i) ensure that the Hardware is kept and operated in a suitable environment, which shall at a minimum meet the GRUBBRR site requirements; (ii) keep the Hardware in good operating condition as it was on the date it was delivered (reasonable wear and tear is accepted); (iii) keep the Hardware in Your possession or control at the Location or such other location that may be approved in writing by GRUBBRR; (iv) sell or offer for sale, sublet or lend the Hardware or allow the creation of any mortgage, charge, lien or other security interest in respect of it; (v) ensure that its network and systems comply with the relevant specifications provided by GRUBBRR; (vi) ensure the Hardware removable from and not essential to the premises upon which they are located (regardless of any attachment to realty); (vii) use Hardware in accordance with any manufacturer’s specifications; (viii) use Hardware in a safe manner and in accordance with applicable laws, rules, or regulations; (ix) permit GRUBBRR or its authorized representatives to inspect the Hardware upon reasonable notice; (x) make no alteration or modification to the Hardware.
3 YOUR RIGHTS IN HARDWARE. At no time during the Subscription Term shall title to the Hardware pass to You. You acknowledge GRUBBRR’s title to the Hardware and You shall use commercially reasonable efforts to protect and defend such title and keep and maintain it free and clear of any and all claims, liens, charges, or encumbrances. You acknowledge and agree that You shall not have any right to purchase the Hardware.
4 INSURANCE. At all times during the Subscription Term, You shall take all reasonable precautions to avoid any losses or damages to the associated Hardware and shall maintain reasonable levels of insurance sufficient to cover any losses or damages associated with Hardware, and shall, upon request, deliver to GRUBBRR a certificate of insurance evidencing Your compliance with this insurance requirement.
5 HAAS SUBSCRIPTIONS AND FEES.
5.1. Except as otherwise set forth in an Order, (i) HaaS subscriptions are purchased for a Subscription Term, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant Subscription Term once ordered.
5.2. HaaS fees are due monthly in advance. HaaS subscription fees for the first month shall be prorated based on the date of the Order and will be due upon execution of the Order. HaaS fees will be charged using the payment method on file.
6 RETURN AND RECOVERY OF HARDWARE. Within 5 days of termination or expiration of the Order or HaaS subscription, You shall return the Hardware, at Your expense, including all associated accessories, to the address directed by GRUBBRR, and in the same operating order, repair, condition and appearance as existed on the date of delivery of such Hardware, reasonable wear and tear excepted. Upon return of the Hardware by You, GRUBBRR shall have 30 days (from the date of receipt of return delivery) to inspect the returned Hardware to ensure they are in the condition required under this paragraph. In the event GRUBBRR reasonably determines upon inspection that the Hardware is not in the condition required under this paragraph, You shall be liable for and shall pay to GRUBBRR an amount equal to the Hardware manufacturer suggested retail price (MSRP) as of the effective date of termination. In addition, You are responsible for payment of GRUBBRR HaaS fees for Hardware until the earlier of: (i) shipment of the Hardware to GRUBBRR, or (ii) receipt, by GRUBBRR, of an amount equal to the Hardware MSRP. Nothing in this paragraph shall be construed to limit any other remedies that may be available to GRUBBRR as a result of Your breach of the Agreement or Order. You authorize GRUBBRR to charge the payment method on file with GRUBBRR in the event you fail to return the Hardware as set forth herein
7 GRUBBRR RIGHT OF DEACTIVATION AND RIGHT TO RECOVER. In addition to any other available rights and remedies, if You (i) fail to return Hardware in accordance with this Agreement, (ii) fail to make payment when due, or (iii) commit a material breach in accordance with Section 9 of the General Terms, GRUBBRR may personally or by its agent, at its option and without any legal process, enter upon the premises where such Hardware is located and take immediate possession of and remove the same.
5 WARRANTY. GRUBBRR will flow down to You any Hardware warranties from the original equipment manufacturer. EXCEPT AS SET FORTH IN THE FOREGOING SENTENCE, THE WARRANTY DISCLAIMERS IN SECTION 12 OF THE GENERAL TERMS WILL APPLY.