This Delivery Facilitation Services Agreement (“Agreement”) is made and entered into on the date you accept this order form and start using these services. (the “Effective Date”) by and between Hubster AU Pty Ltd. having its registered address at Level 6, 1 Chifley Square, Sydney, NSW 2000 ("Otter", “Company”, “we”, “us” and “our”), and the entity, individual or party who accepts this form (“you”). The parties agree to the following:
OPERATIONS
a. YOU UNDERSTAND AND AGREE THAT WE WILL BE FACILITATING THE DELIVERY OF YOUR PRODUCTS THROUGH THIRD PARTY LOGISTIC SERVICE ("3PL”) PROVIDERS BY (1) INTEGRATING WITH SUCH 3PL PROVIDERS SO YOU MAY UTILISE THEIR SERVICE FOR DELIVERIES (2) MAKING PAYMENTS TO THEM ON A PER DELIVERY BASIS WHICH SUCH AMOUNTS SHALL BE CHARGED TO YOU ON A BI-WEEKLY BASIS.
b. We agree to use commercially reasonable efforts to provide the Services (defined below) in connection with one or more of your online restaurant storefronts, including your virtual brands, as designated by you (collectively, “Restaurants”). In exchange for the fees outlined in this Agreement, we will provide the following services (collectively, the “Services”): i) integrating with 3PL providers and providing you with information on their delivery radius and charges; (ii) allowing you to utilize the services of such 3PL providers for delivery of your orders received through various online channels by means of our Tech Services; iii) making relevant payments for such orders delivered by 3PL providers engaged by you using the Tech Services which such payments shall then be collected from you; (iv) and any other act reasonably necessary to facilitate the delivery of your orders.
c. You will be solely responsible for the production and supply of all food, beverages, and/or products (collectively, “Products”) to be sold by your Restaurants. You agree to prepare for sale and facilitate the sale to the end user of such Products out of your restaurant or kitchen facility, including handling any order changes or cancellations by end users. Each Restaurant shall be associated with one or more online food, beverage, or product ordering platforms operated by third parties that provide Product order management (each a “Third Party Vendor”) or have an alternative means of receiving online orders through your independent portals or use of our Tech Services.
TERM AND TERMINATION
The term of this Agreement (“Term”) will commence on the Effective Date and will continue until terminated by a party. A party may terminate this Agreement for any or no reason with fifteen (15) business days written notice. If you terminate this Agreement during a Pay Period you shall owe us the full Amount for the Pay Period up to when the Agreement terminates. A party may immediately terminate this Agreement in the event of a material breach by the other party. Outstanding payment obligations and Sections 1, 4 – 10 of this Agreement will survive any termination of this Agreement.
FEES AND PAYMENT
a. In consideration of the Services, you agree to reimburse us all amounts due for all deliveries (“Amount”) every two weeks (“Pay Period”) as part of this Agreement. The Amount will involve all fees (undiscounted or partially discounted) charged by the 3PL Providers, which such fees may vary from time to time for reasons including but not limited to provider assigned, vehicle requested, area, time, size of order, natural calamities etc. Further, additional charges could be applicable in instances including but not limited to peak hours, altered demand-supply ratio, booking timing, traffic conditions, and routing information, and could involve additional surcharges. The 3PL provider charges may vary for different 3PL Providers and based on specific circumstances which are beyond our control and for which we shall not be liable.
b. The parties agree to reconcile the Amount due under this Agreement every Pay Period including allowing for offsets against amounts payable by each party and their affiliates and application of 5% interest by us on any delayed payments. At our request, you agree to make available to us Product order and sales data generated by all online ordering platforms including Third Party Vendors as reasonably necessary to enable us to accurately complete the reconciliation. All amounts are due 5 days from the date of invoice. You agree that we may use a third party provider to process amounts paid hereunder. You are responsible for all refunds, credits, chargebacks, penalty charges, or any retrieval costs (“Refunds”) (including issues with the quality of the Products).
c. As the seller of the Products, you agree to pay all applicable taxes assessed on the sale and delivery of Products to end users (including, but not limited to, all sales, use, GST or similar taxes against the full retail price of the Product), and, if we ask, you agree to provide us with reasonable evidence that you are collecting and paying such taxes. A party shall be solely responsible for any taxes assessed on its income related to this Agreement.
RIGHTS AND RESTRICTIONS
a. You hereby grant us a limited, non-exclusive and non-transferable license during the Term to use Your Materials (as defined below), on a royalty-free basis, for the sole purpose of providing the Services as set forth herein. “Your Materials” means your trademarks, service marks, trade names, logos, slogans, Product recipes, photographs, menu descriptions and any other materials you provide us in connection with this Agreement. Notwithstanding anything to the contrary herein, Your Materials, and all intellectual property rights therein, will remain your property. Any goodwill generated from our use of Your Materials shall inure to the benefit of you and your licensors.
b. In order to perform our obligations under the Agreement, we may need access to one or more of your accounts with Third Party Vendors and other online ordering systems operated by you independently or through us for the Restaurant(s). As such, you hereby appoint us as your agent, and grant us permission to access these accounts solely to perform our obligations hereunder (including delivery requests and accounting). You can revoke our rights in this Section 4(b) by providing us with written notice (at which time the Agreement will automatically terminate 24 hours from your notice to us).
c. You also acknowledge you continue to be governed by our Tech Services Terms of Use and the services provided under this Agreement a part of the Tech Services as set out there.
REPRESENTATION AND WARRANTIES
a. Each party represents and warrants that it: (i) has full power and authority to enter into this Agreement, (ii) will comply with all applicable laws, rules and regulations (“Applicable Laws”) in the performance of this Agreement, and (iii) the individual signing this Agreement has the right to bind their respective company. Additionally, You represent and warrant that you (and any third party you contract with to prepare Products for your Restaurants, if applicable): (1) will comply with all Applicable Laws related to Product food safety, including time or temperature controls and Product packaging and merchantability, including ensuring that Products are prepared with a consistent standard of the highest quality and are not adulterated or misbranded and packed in accordance with relevant 3PL provider requirement, (2) will not violate any obligations to any third party by entering into and performing under this Agreement, (3) have the right to use, and allow our use of your authorized Third Party Vendor accounts, including the right to appoint us as your agent to access and use your accounts as described in this Agreement, (4) you shall comply with all regulations relating to the nature, condition, packaging, handling, and carriage of the parcel and in the event such packages are prohibited by law, hazardous, dangerous and/or in the opinion of 3PL provider are unsafe, the 3PL provider shall be entitled to reject the same and apply relevant charges towards such transaction for which you shall be solely responsible, (5) you are solely responsible for providing the correct address for delivery and neither We nor the 3PL Provider shall be responsible if the order is not delivered due to an incorrect address, and (6) you are solely responsible for any delay charges or penalties charged by the 3PL Providers for orders not supplied on time or for any incorrect, rejected or cancelled orders
b. YOU AGREE THAT WE ARE NOT LIABLE FOR ANY COSTS, EXPENSES, OR LOSSES FROM YOUR INABILITY TO DISTRIBUTE/ DELIVER PRODUCTS THROUGH ANY PARTICULAR 3PL PROVIDER. YOU AGREE THAT WE ARE NOT A 3PL PROVIDER AND OTHER THAN AS SET OUT HERE WE DO NOT HAVE ANY RELATIONSHIP WITH THE DELIVERY PARTNERS WORKING WITH THE 3PL PROVIDERS OR THE 3PL PROVIDERS. EXCEPT AS EXPRESSLY SET FORTH ABOVE, WE DO NOT MAKE ANY COMMITMENTS OR WARRANTIES ABOUT THE SERVICES WE PROVIDE, NOR DO WE GUARANTEE THE ACTUAL OR POTENTIAL SALES, INCOME OR PROFIT OF A RESTAURANT HEREUNDER OR THE SUFFICIENT DELIVERY OF ALL PRODUCTS. WE DO NOT PROVIDE ANY IMPLIED WARRANTIES, SUCH AS THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS REQUIRED UNDER APPLICABLE LAW.
INDEMNITY; LIMITS OF LIABILITY
a. Unless prohibited by Applicable Law, you agree to indemnify and defend (at our option) Company and our affiliates (including their respective officers, directors, employees and agents), and hold them harmless against any claims or legal proceedings (including actions by government authorities), liabilities, damages and costs (including reasonable attorney fees and final settlement amounts) arising out of or relating to: (i) the Products (including any claims relating to product, packaging and food safety or taxes owed in connection with the sale of the Products), (ii) of illness, injury, death, or damage as a result of the consumption or use of any Product, (iii) risks against which you are insured or required to be insured against pursuant to this Agreement, (iv) allegation that Your Materials infringe, misappropriate or otherwise violate a third party’s intellectual property or publicity rights, or (v) an allegation that, if true, would constitute your breach of this Agreement.
b. YOU HEREBY RELEASE US AND OUR AFFILIATES FOR ANY LOSSES, CLAIMS (KNOWN OR UNKNOWN), EXPENSES, OR LIABILITY RESULTING FROM YOUR USE OF THE DELIVERY FACILITATION SERVICES, INCLUDING LOST RESTAURANT REVENUE. FURTHER, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD US AND OUR AFFILIATES HARMLESS FOR ANY LOSSES, COSTS AND EXPENSES OF ANY KIND, INCLUDING REASONABLE ATTORNEYS’ FEES, CLAIM, DEMAND OR ACTION ARISING FROM OR RELATED TO THE DELIVERY FACILITATION SERVICES. THIS OBLIGATION SHALL SURVIVE ANY TERMINATION OR EXPIRATION OF THE AGREEMENT.
c. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR SIMILAR DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE CAUSE OF ACTION UPON WHICH THEY ARE BASED, INCLUDING CLAIMS FOR LOSS OF GOODWILL OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. THE TOTAL, AGGREGATE LIABILITY OF EACH PARTY IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY YOU DURING THE FIRST 12 MONTHS OF THIS AGREEMENT. NOTHING IN THIS SECTION 6(C) WILL APPLY TO EITHER PARTY’S OBLIGATIONS TO INDEMNIFY, DEFEND, OR HOLD HARMLESS IN THIS AGREEMENT. NOTHING IN THIS SECTION WILL LIMIT A PARTY’S LIABILITY FOR GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR UNLAWFUL ACTIVITY.
INSURANCE
At your sole expense, during the Term, you agree to maintain commercial general liability insurance policy (which includes products-completed operations, spoilage, and food borne illness coverage). If we ask, you agree to furnish us with a certificate of insurance in such coverage, such certificate to be in a form reasonably acceptable to us.
CONFIDENTIALITY
Except as required by applicable law, each party (“Receiving Party”) agrees that (a) it will use Confidential Information (defined below) of the other party (“Disclosing Party”) solely for the purpose of the Agreement and (b) it will not disclose the Confidential Information of the Disclosing Party to any third party other than the Receiving Party's employees or agents, on a need-to-know basis, who are bound by obligations of nondisclosure and restricted use at least as strict as those contained in this Agreement, provided that Receiving Party remains liable for any breach of the confidentiality provisions of the Agreement by its employees or agents. The Receiving Party will protect the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own proprietary and Confidential Information, but in no event using less than a reasonable standard of care. In the event Receiving Party receives a subpoena or other administrative or judicial demand for any of the Disclosing Party’s Confidential Information, then the Receiving Party will give the Disclosing Party prompt written notice of such subpoena or demand and allow Disclosing Party to assert any available defenses to disclosure. Upon request by the Disclosing Party, the Receiving Party will return or destroy all copies of any Confidential Information of the Disclosing Party. Confidential Information of the Disclosing Party will at all times remain the property of that Disclosing Party. The provisions of this Section will expire three (3) years after the expiration or termination of the Agreement, except with respect to Confidential Information that constitutes “trade secrets” under applicable law for which this Section will survive indefinitely. The existence of this Agreement will constitute our Confidential Information and must not be disclosed without our consent. The parties must mutually agree on all press related to this Agreement. “Confidential Information” means information or materials that: (a) are disclosed in writing or orally and are either marked or identified as “confidential” or “proprietary” by the disclosing party at the time of disclosure; or (b) the receiving party knows or has reason to know, by the nature or circumstances surrounding their disclosure, should be treated as confidential, including technical, business, marketing, product and financial information, in any form or format; provided, however, that Confidential Information does not include information that: (i) is in or enters the public domain through no act or omission of the receiving party; (ii) a party lawfully received from a third party without restriction on use or disclosure and without breach of a non-disclosure obligation or expectation of confidentiality; (iii) a party knew prior to receiving such Confidential Information from the party who owns it and without restriction as to use or disclosure; or (iv) a party independently developed without use of, or access to, any Confidential Information.
MISCELLANEOUS
The parties agree this is a nonexclusive agreement. You agree that we may send any notices to the email address you provide us. All notices to us must be sent to the address in the introductory paragraph above. The parties are independent contractors. The parties are not partners or joint venturers with each other and nothing herein shall be construed to make them partners or joint venturers or impose any liability as such on either of them. This Agreement contains the entire understanding of the parties regarding the subject matter herein, and supersedes all prior and related contemporaneous agreements and understandings with respect thereto (meaning prior agreements that may exist between Company and you related to virtual brands or restaurants are hereby superseded and terminated). Each party has certain rights under applicable laws that cannot be limited by this Agreement or any contract; this Agreement will not restrict those rights. If a party breaches this Agreement, and the other party does not take immediate action in response to such breach, the nonbreaching party is not waiving any rights they may have, including the right to take action in the future. If a portion of this Agreement is deemed invalid or unenforceable, the remainder of this Agreement will remain in effect. This Agreement is between only you and us; this Agreement does not create any legal rights or obligations for any third party, even if others benefit from that relationship under this Agreement. This Agreement will be governed by the laws of New South Wales, Australia, excluding applicable conflict of laws rules.
ARBITRATION
Except for claims or disputes related to protecting a party’s intellectual property, each party agrees that any claim or dispute arising out of or relating to this Agreement will be settled by binding confidential arbitration under the arbitration of the Australian Centre for International Commercial Arbitration ("ACICA") in accordance with the ACICA Arbitration Rules then in effect (the "Rules"). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days (the "InitialPeriod") after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted exclusively in the English language at a site specified by Hubster in Sydney, Australia. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which they deem proper in the circumstances, only to the extent permitted by this Agreement, provided that the arbitrator will not have the authority to award exemplary or punitive damages. The arbitrator will award the prevailing party its reasonable attorneys’ fees and expenses. Each party agrees that arbitration will be conducted on an individual, not a class-wide, basis and that any arbitration proceeding between you and us and/or our affiliates will not be consolidated with any other arbitration proceeding involving us or any other person or entity. The parties agree to this Agreement as of the Effective Date.