Terms and Conditions for Corporate Product Delivery

Terms and Conditions

 

  1. Contractual Relationship

Please read these terms and conditions carefully. These terms and conditions constitute a legally binding Agreement (together with the Enrollment Agreement, the “Agreement”) between you (the Customer” or “you”) and Careem Inc. (a company with its registered office at P.O. Box 146, Road Town, Tortola, British Virgin Islands (Registration number 1723752)) or the relevant affiliate of Careem Inc. with whom you have signed the Enrollment Agreement (all or any of the foregoing, “Careem)”).For the purpose of this Agreement, references to “Affiliates”, includes Careem Inc’s administrators, successors-in-interest, permitted assigns and affiliates.

 

This Agreement governs your use of the Careem application, website, call center and technology platform (collectively, the “Careem Platform” or the “Platform”) which facilitates the listing, sale and delivery of Goods (as defined below) to Customers (as defined below) (“Platform Services”).

 

IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE CAREEM PLATFORM.

 

Your access and use of the Careem Platform constitute your agreement to be bound by this Agreement, which establishes a contractual relationship between you and Careem. Careem may immediately terminate this Agreement with respect to you, or generally cease offering or deny access to the Careem Platform or any portion thereof, at any time for any reason without notice.

 

Careem may amend this Agreement from time to time. Amendments will be effective upon Careem’s posting of an updated Agreement at this location. Your continued access or use of the Careem Platform after such posting constitutes your consent to be bound by this Agreement, as amended.

 

Careem may provide to a claims processor or an insurer any necessary information (including your contact information) if there is a complaint, dispute or conflict, which may include a death or injury, involving you, a Customer and/or a third-party transport provider and such information or data is relevant to the complaint, dispute or conflict.

 

  1. Definitions

“Agreement Date” means the date of signature on the Enrolment Form;

 

Applicable Law” means all national, state, local, municipal legislation, regulations, statutes, by-laws, consents and/or other laws and any other instrument having the force of law as may be issued and in force from time to time (and any amendment or subordinate provisions) relating to or connected with the activities contemplated under this Agreement wherever so located or performed;

 

Bookings” means any booking for Delivery Services made by the Customer via the Careem Platform;

 

Business Day” means any day other than a weekend, official public holiday or a day when banks are closed for business in the Territory;

 

Buyers” means a person to whom a Product shall be or is delivered by a Service Provider as identified by a Customer via the Careem Platform;

 

Charges” means the amount payable by Customer to Supplier for the supply of the Services and the Delivery Services under this Agreement, such amounts being as set out in Enrolment Form as may be updated from time to time;

 

Claim” means any claim, action, suit or proceeding asserted by any person;

 

Confidential Information” means this Agreement and all information of any nature which a Party may have or acquire before or after the Agreement Date, however conveyed (whether in writing, verbally or by any other means), which relates to the business, price lists, Personnel, Service Providers, Buyers, suppliers and customers of a Party and its affiliates (whether or not designated as Confidential Information by the disclosing Party), and all information designated as confidential or which ought reasonably to be considered confidential;

 

Delivery Services” means the delivery of a Product by a Service Provider to a Buyer on behalf of the Customer via the Careem Platform;

 

Direct Loss” means any loss or damage of whatever nature that is not Indirect Loss and which flows naturally from the event giving rise to it;

 

Force Majeure Eventmeans any event or occurrence which prevents a Party from performing any or all of its obligations under this Agreement and which arises from, or is attributable to acts, events, omissions or accidents which are unforeseeable and beyond the reasonable control of the Party so prevented or affected and may include governmental act, regulatory changes/actions, war, fire, flood, explosion or civil commotion;

 

Future Booking means any Booking made more than 1 hour in advance of the required pick up time;

 

Immediate Bookings means any Booking made with no advance notice;

 

Indemnify means the indemnification and holding harmless of one Party by the other against any losses, damages and Claims, of whatsoever nature, which the indemnified party may suffer, incur or sustain arising out of or in connection with a particular Indemnified Event;

 

Indirect Loss means all indirect loss of profit, loss of use, loss of revenue, loss of contracts, increased costs and expenses and all indirect, consequential or special loss or damage arising out of or in connection with this Agreement whether or not the possibility of such damage could have been reasonably foreseen;

 

Invoice means an invoice raised by Supplier setting out the Charges to be applied to Customer for the relevant period and any other amounts owing by the Customer to the Supplier;

 

IPR means patents, inventions (whether patentable or not), copyrights, moral rights, design rights, trade marks, trade names, business names, service marks, brands, logos, service names, trade secrets, know-how, domain names, database rights, trade zone information, customer information and any other intellectual property or proprietary rights (whether registered or unregistered and whether in electronic form or otherwise) including rights in computer software, and all registrations and applications to register any of the aforesaid items, rights in the nature of the aforesaid items in any country or jurisdiction, any rights in the nature of unfair competition rights and rights to sue for passing off;

 

Mandatory Disclosure means any announcement or disclosure of Confidential Information that a Party is required to make under Applicable Law or as otherwise required by any order of a court of competent jurisdiction;

 

“Minimum Charge” means the Base fare listed in the Enrolment Form;

 

“Personal Information” means any information relating to an identified or identifiable person being an employee of the Customer who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity;

 

“Personnel” means all employees, agents and sub-contractors (but excluding Service Providers) of a Party who are assigned, engaged or otherwise employed from time to time to work in connection with the performance or discharge of a Party’s obligations under this Agreement;

 

“Post-Booking Cancellation Fees” means the Minimum Charge and any additional Charges incurred as a result of the distance travelled and time incurred by the Service Provider prior to cancellation, if any;

 

“Post-Delivery Cancellation Fees” means the Minimum Charge and any additional Charges incurred as a result of the distance travelled and time incurred by the Service Provider prior to and/or as a result of such cancellation, including the distance travelled and time incurred by the Service Provider to return the Product to the Customer and/or to pick up the Service Provider Pre-Payment from the Customer.  For the avoidance of doubt, the Customer shall also pay the full amount of the Service Provider Pre-payment to the Service Provider.

 

“Post-Pick Up Cancellation Fees” means the Minimum Charge and any additional Charges incurred as a result of the distance travelled and time incurred by the Service Provider prior to and/or as a result of such cancellation, including the distance travelled and time incurred by the Service Provider to return the Product to the Customer and/or to pick up the Service Provider Pre-Payment from the Customer.  For the avoidance of doubt, the Customer shall also pay the full amount of the Service Provider Pre-payment to the Service Provider.

 

Processing means collecting, holding, using, transferring, destroying and any other dealing in connection with any Personal Information;

 

Products means any restaurant-prepared food products and/or related items to be delivered by a Service Provider on behalf of the Customer;

 

Service Provider means a third-party service provider authorized by Supplier to provide Delivery Services to the Customer via the Careem Platform from time to time;

 

Service Provider Pre-payment means a cash payment by a Service Provider for a Product at the time of pick-up from the Customer and for which the Service Provider will be reimbursed by the Buyer at the time of delivery in accordance with Clause 3.2.3 or otherwise by the Customer in accordance with Clause 3.2.3;

 

Servicesmeans the taking of bookings for Delivery Services and the facilitation of Delivery Services by the Supplier to the Customer in accordance with this Agreement;

 

Supplier App means the application developed by or on behalf of Supplier as the booking platform for, amongst other things, Delivery Services;

 

Termination Notice means a notice to terminate this Agreement issued by a Party in accordance with this Agreement;

 

Territory means the territory listed in the Customer Enrolment Form;

 

VAT means value added tax or any other sales tax or any other similar taxes which may become payable relating to the supply of the Services in the Territory.

 

  1. Customer Bookings

3.1 This Clause applies to all Bookings made in any Territory, unless otherwise agreed by the Parties in writing.

 

3.2 Customer acknowledges and agrees that:

3.2.1 all Customer bookings must be made via the Careem Platform;

3.2.2 at the time of booking, the Customer shall provide the Service Provider with the pick-up location, drop-off location (“Buyer Location”), the Buyer’s order number, telephone number of the Buyer at the Buyer Location, and price of the Customer order;

3.2.3 in the event that the Customer has not received payment for the Product(s) from the Buyer at the time of pick up, the Customer can request that the Service Provider pay the Service Provider Pre-payment and, if the Service Provider elects to make such the Service Provider Pre-payment, the Buyer shall pay the Service Provider Pre-payment to the Service Provider in full when the Service Provider drops off the Product(s) to the Buyer; provided that, in the event that the Service Provider has paid the Service Provider Pre-payment and the Buyer refuses or fails to pay the full amount of the Service Provider Pre-payment for any reason, the Service Provider may refuse to drop off the Product(s) and in such case the Service Provider shall return the Product(s) to the Customer and the Customer shall promptly pay the full amount of the Service Provider Pre-payment to the Service Provider and the relevant amount set forth in Clause 3.2.5 below; provided further that in the event that neither the Customer nor the Buyer pays a Service Provider Pre-payment as provided hereunder to a Service Provider within 48 hours of the Service Provider making the Service Provider Pre-payment, the Supplier shall be entitled  to pay such amount to the Service Provider and the Customer shall reimburse the Supplier for such amount;

3.2.4 Each Service Provider Pre-payment shall not in any event the Pre-Payment listed in the Enrolment Form;

3.2.5  With respect to cancellations, the following fees shall apply: (a)   no Charge will be payable if: (i) the Booking is cancelled before the Service Provider is assigned, (ii) in the event of an Immediate Booking, the relevant Booking is cancelled within 2 minutes of the relevant Booking being made or (iii) in the event of a Future Booking, the relevant Booking is cancelled at least 45 minutes before the time that the Products are scheduled to be picked up by the Service Provider (“Permitted Cancellation Period”); (b)   the Post Booking Cancellation Fees shall apply if:  (i) in the event of a Now Booking, the relevant Booking is cancelled more than 2 minutes after the relevant Booking is made and before the Service has collected the Product from the Customer or (ii) in the event of a Future Booking, the relevant Booking is cancelled anytime after the Permitted Cancellation Period and before the Service Provider has collected the Product from the Customer;  (c)    If the Booking is cancelled after the Service Provider has collected the Product from the Customer and before the Service Provider has arrived at the Buyer Location, the Service Provider shall return the Product to the Customer and the Post-Pick Up Cancellation Fees shall apply; and  (d)    If the Service Provider arrives at the Buyer Location to deliver the Product and the Service Provider is unable to deliver the Product to the Buyer (whether because the Buyer is unavailable, the Buyer refuses to accept delivery of the Product, the Buyer is unable to pay the Service Provider Pre-payment in full or for any other reason), the Service Provider shall return the Product to the Customer and the Post-Delivery Cancellation Fees shall apply.

 

3.3 Customer shall not request a Service Provider to deliver any Product or any other good or item which is prohibited by law within the Territory.

 

3.4 In the event of a vehicle breakdown, accident or driver illness, Supplier may replace the assigned car or Service Provider at their discretion subject to availability.

 

3.5 The privacy policy and customer terms of service published from time to time on Supplier’s website apply to the provision of the Services.

 

  1. Payment Terms

4.1 The Customer will pay Supplier for the Charges as well as any Service Provider Pre-payment fees claimed by the Supplier pursuant to Clause 3.2.3, within thirty (30) days from date on invoice. Customer shall bear the cost of any VAT payments on the Charges subject to receiving a valid VAT invoice.

 

4.2 The Charges shall be made by electronic transfer to Supplier’s bank account detailed in the Enrolment Form. Each Party shall be responsible for paying its own bank charges.

 

4.3 Customer acknowledges that the tariff plan relating to Charges may be amended by Supplier at any time, during the Term to take into account market supply and demand.  Supplier shall use its best efforts to notify Customer in advance of such tariff plan amendments being implemented, and in any event, Supplier will share the amended tariff plan with the Customer.

 

4.4 Where Customer fails to pay the Charge specified in an Invoice in accordance with this Clause 4 then interest shall be applied by Supplier to the late payment at the rate of 4 percent per annum calculated on a daily basis from the date the Charge became due and payable/from the date of the invoice.

 

4.5 Customer will notify Supplier within 5 days of the receipt of an Invoice if Customer: (i) disputes (in good faith) any part or all of the Charges amounts as stated in the invoice; or (ii) considers such invoice to be incorrect or incorrectly issued for any reason.  Customer shall make payment of any undisputed amount within 30 days of receipt of the Invoice that is disputed. Where Supplier agrees with Customer in relation to the disputed invoice it shall promptly issue a credit note for the disputed portion or if the whole Invoice is disputed, it shall cancel it and re-issue a correct Invoice. If the Parties are unable to resolve disputes related to Invoices by reference to the procedure in this Clause 4, then (and only then) it shall be considered a dispute which is subject to the procedure at Clause 15.

 

  1. Indemnified Matters

5.1 Each Party shall Indemnify the other from and against all loss or damage of whatever nature suffered, sustained or incurred, arising from any breach, negligent act or omission or willful misconduct by it in connection with this Agreement.

 

5.2 Customer shall Indemnify the Supplier from and against all loss or damage of whatever nature suffered, sustained or incurred, arising in respect of: (i) all legal expenses incurred by Supplier in order to enforce any of the indemnification obligations of Customer in this Clause 5; (ii) Customer’s failure to pay the Charges and any other amount under this Agreement; (iii) Buyer’s failure to pay the Service Provider Pre-payment or other due amount relating to any Product; (iv) any physical loss or damage to the Product(s) prior to pick up by a Service Provider; and (v) any violation by Customer of its obligation under Clauses 3.2.3 and/or 3.2.4.

 

5.3 Each Indemnity in this Agreement is a continuing obligation separate and independent from each Party’s other obligations.

 

5.4 Careem shall not be liable under this Clause 5 to the extent that the loss or damage arises out of or in connection with the Customer’s negligence, wilful misconduct or fraudulent conduct or the negligence, wilful misconduct, or fraudulent conduct of Customer’s Personnel.

 

  1. 6. Liability

6.1 Nothing in this Agreement shall exclude or limit either Party’s liability to the other in relation to: (i) death or personal injury caused by negligence or wilful or reckless misconduct of that Party; (ii) any fraud or fraudulent misrepresentation of that Party; and/or (iii) any liability which cannot be lawfully excluded by that Party.

 

6.2 Neither Party shall be liable to the other for any Indirect Loss arising out of or in connection with this Agreement.

 

6.3 Each Party’s total liability under this Agreement (excluding, for the avoidance of doubt, any payment obligations relating to the Charges pursuant to Clause 4 and any payment obligations relating to the Service Provider Pre-payment pursuant to Clauses 3.2.3 and 3.2.4) shall be limited to ten thousand UAE Dirhams (AED 10,000) (or equivalent in relevant currency).

 

6.4 Customer accepts liability for damage or loss to any Product arising from the acts or omission of Customer’s Personnel or a Buyer. Customer accepts liability for damage or loss to any Product at any time prior to pick up by a Service Provider and after drop off to a Buyer by a Service Provider.

 

6.5 The Supplier shall not be responsible for any damage or loss to a Product while being transported to a Buyer by a Service Provider or for any of the acts or omissions of a Service Provider in respect of providing the Delivery Services; provided that, notwithstanding the foregoing, (a) the Supplier shall be entitled, as determined in its sole and absolute discretion, to reimburse the Customer or a Buyer for any damage or loss to a Product while being transported to a Buyer by a Service Provider up to a maximum value of the Service Provider Pre-payment; and (b) in the event that a Service Provider commits fraud, willful misconduct or gross negligence in connection with the delivery by such Service Provider of a Product to a Buyer and the Customer suffers a Loss, the Supplier will put forth its reasonable commercial efforts to procure payment from such Service Provider for such Loss. The Supplier will institute quality compliance measures for Service Providers, and penalties for violations thereof in an effort to minimize non-compliance.

 

6.6 CUSTOMER UNDERSTANDS AND ACCEPTS THAT SUPPLIER DOES NOT PROVIDE TRANSPORTATION, FOOD DELIVERY OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION CARRIER AND THAT ALL SUCH TRANSPORTATION, FOOD DELIVERY OR LOGISTICS SERVICES ARE PROVIDED BY INDEPENDENT THIRD PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY SUPPLIER OR ANY OF ITS AFFILIATES.  CUSTOMER UNDERSTANDS AND ACCEPTS THAT THE CAREEM PLATFORM AND THE SUPPLIER’S APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE.”  SUPPLIER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, NOT EXPRESSLY SET OUT IN THIS AGREEMENT, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.  IN ADDITION, SUPPLIER MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE SUPPLIER SERVICE OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SUPPLIER SERVICE OR THAT THE SUPPLIER SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.  SUPPLIER DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF SUPPLIER CUSTOMERS.  CUSTOMER AGREES THAT THE ENTIRE RISK ARISING OUT OF ITS USE OF THE CAREEM PLATFORM, AND ANY SERVICE OR GOOD REQUESTED OR PROVIDED IN CONNECTION THEREWITH, REMAINS SOLELY WITH IT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

 

  1. Insurance

7.1 Supplier shall always during the Term insure and keep itself insured with a reputable insurance provider as: (i) required by Applicable Law; and (ii) is customary in accordance with Good Industry Practice.

 

7.2 Supplier shall cause each Service Provider, on the date approved by Supplier to provide Delivery Services, to take at their own cost and expense, motor vehicle third party legal liability insurance for a limit not less than the local statutory minimum requirements in each country, state, province or other local municipality of rental to cover the legal liability for death, bodily injury or property damage to any customer of Supplier caused by or arising out of use of any vehicle pursuant to the terms of this Agreement, and Supplier shall use its best efforts to cause each Service Provider to maintain such insurance from time to time.

 

7.3 Supplier shall maintain at its own cost and expense master liability insurance covering the legal liability of Supplier for death, bodily injury or property damage to any third party riding in a vehicle which is fulfilling a booking made via the Careem Platform for the full limit of cover maintained by Supplier at any point of time during the Term which in any case shall not be less than US$5,000,000 per any one occurrence.

 

  1. Mutual Termination Rights

8.1 Each of the Parties may terminate this Agreement at any time without cause by serving a termination notice to the other Party giving not less than 30 days’ notice.

 

8.2 Either Party may serve a termination notice to terminate this Agreement with immediate effect if the other Party: (i) commits one or more breaches of this Agreement that is/are not remedied within 20 Business Days’ of receipt of a remedial notice to do so; (ii) commits a material breach; (iii) experiences, or is reasonably likely to experience, an insolvency event or similar event;

is prevented from performing its obligations as a result of a Force Majeure Event for a period exceeding 30 Business Days; or (iv) ceases to trade or threatens to cease trading.

 

  1. Consequences of Termination

9.1 Upon receipt of a Termination Notice, Parties shall immediately: (i) take all possible action to mitigate any liabilities which may arise as a result of such termination; (ii) return all Confidential Information to the Party that disclosed such Confidential Information; and (iii) cease performance of its obligations hereunder in accordance with, and to the extent specified in, the Termination Notice.

9.2 Notwithstanding any other provision of this Agreement, where either Party terminates this Agreement the Customer shall pay to Supplier all outstanding amounts for Services performed in accordance with this Agreement up to and including the termination date.

9.3 The termination or expiry of this Agreement shall be without prejudice to the rights and remedies of either Party which may have accrued under this Agreement or Applicable Law up to the date of termination or expiry thereof.

9.4 The provisions of Clauses 5, 6, 9, 11, 12, 13, 14, 15, 16 and 17 shall survive the termination and / or expiry of this Agreement.

 

  1. Force Majeure

10.1 No Party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising as a direct result of a Force Majeure Event.

 

10.2 Without prejudice to any other obligation herein, when notice of a Force Majeure Event is given, the Parties shall initiate discussions in good faith with a view to adopting appropriate measures in light of the circumstances. Where a Force Majeure Event, lasts for more than 30 Business Days then the non-impacted party may terminate this Agreement at its election.

 

10.3 Each Party shall bear all costs and expenses that it incurs as a result of the Force Majeure Event.

 

10.4 A Force Majeure Event shall not excuse Customer from any payment obligations under this Agreement unless such an event is the cause of non-payment.

 

  1. IPR

11.1 The IPR owned by a Party before the Agreement Date and made available to the other Party under or in the connection with this Agreement shall remain the absolute property of the granting Party.

 

11.2 Each Party shall grant to the other Party a non-exclusive, royalty free license to use its IPR for the Term to the extent required so that the Parties may deliver or receive the deliverables required as part of the Services, as relevant.

 

11.3 Notwithstanding Clause 11.2, any use by a Party of the other Party’s IPR shall be subject to prior written approval from such other Party in advance.

 

  1. Confidentiality, Security and Publicity

12.1 Supplier shall keep Customer’s Confidential Information confidential and shall not disclose it to any third party (save where it is a Mandatory Disclosure) without Customer’s prior written consent. Each Party shall use Confidential Information solely in accordance with the performance of its obligations under this Agreement.

 

12.2 Supplier shall not use or refer to Customer’s name, trade names or trade marks, including as a commercial reference, without Customer’s prior express written authorization.

 

12.3 Customer will and procures that Customer Personnel will ensure at all times that its allocated user ID and password to the Supplier booking platform are kept confidential and Customer will inform Supplier immediately in the event of any suspected loss or access to such Confidential Information.

 

12.4 Subject to Clause 12.5, neither Party shall issue any press release nor other public document about the entering into of this Agreement or its content without the prior written approval of the other Party.

 

12.5 Clause 12.4 shall not apply to any announcement, public statement or circular by any Party required by Applicable Law (including by way of a Mandatory Disclosure) or any Supplier marketing materials.

 

12.6 Each Party agrees to work with the other Party in good faith to do joint promotional campaigns with each other to promote the Delivery Services and the relationship of the Parties; provided that any such campaign shall be subject to mutual agreement of the Parties.

 

  1. Data Protection

In addition to its general obligations to comply with provisions relating to data protection and/or privacy associated with Applicable Law, Supplier agrees to only Process Customer’s Personal Information for the purposes of this Agreement.

 

  1. Reputation

Neither Party shall do anything, or engage in any activity, which is likely to adversely affect, or damage, the other Party’s good name and/or reputation.

 

  1. Choice of Law and Dispute Resolution

15.1  Choice of Law: This Agreement is governed by and construed in accordance with the laws of the jurisdiction in which Careem is incorporated, without giving effect to any conflict of law principles, except as may be otherwise provided in supplemental terms applicable to your region.

 

15.2  Arbitration: You agree that any dispute, claim or controversy arising out of or relating to this Agreement or the Enrollment Agreement or the breach, termination, enforcement, interpretation or validity thereof or the use of the Careem Platform or the Services (collectively, “Disputes”) will be settled by binding arbitration between you and Careem, except that each party retains the right  to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Careem are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Careem otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Arbitration” section and the “Arbitration Process and Rules” section will be deemed void. Except as provided in the preceding sentence, this “Arbitration” section and the “Arbitration Process and Rules” section will survive any termination of this Agreement.  This “Arbitration” section and the “Arbitration Process and Rules” section applies to all Disputes between you and Careem and/or any of its Affiliates.

 

15.3 Arbitration Process and Rules: Any Dispute shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). The ICC Rules’ Emergency Arbitrator provisions are excluded. The Dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the ICC Rules. The place of both mediation and arbitration shall be in the city in which the applicable Affiliate with which you have a Dispute has its registered office. The language of the mediation and/or arbitration shall be English, unless you do not speak English, in which case the mediation and/or arbitration shall be conducted in both English and your native language. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the International Chamber of Commerce, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless: (i) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.

 

  1. Entire Agreement, Amendments and Counterparts

16.1 This Agreement may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute a single instrument.

 

16.2 Any modifications or amendments to this agreement must be in writing and signed by both Parties.

 

16.3 The Enrollment Agreement shall constitute an integral part of this Agreement.  This Agreement, together with the Enrollment Agreement, constitutes the entire Agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous Agreements or undertakings regarding such subject matter.

 

  1. General

17.1 Each Party may assign, transfer or deal in any way with its rights under this Agreement including to an Affiliate or any third party in connection with an outsourcing transaction.

 

17.2 Supplier may sub-contract any of its obligations set out under this Agreement at any time

 

17.3 Each Party shall promptly notify the other if it undergoes or is likely to undergo a change in control. Upon receipt of notice under this Clause, and for a further 90 days afterwards, receiving Party shall be free, at its sole election, to terminate this Agreement without any consequences whatsoever.

 

17.4 Any waiver by a Party of any right under this Agreement must be given in writing.

 

17.5 If any provision of this Agreement is determined to be invalid, illegal or void by any court or administrative body of competent jurisdiction then the rest of this Agreement shall still remain in full force and effect.  Where Clause 17.5 applies, the Parties shall co-operate to promptly amend or replace the affected provision with a new provision that achieves a legal result that is as similar as possible.

 

17.7 Customer and Supplier are and shall remain independent Parties.  Nothing in this Agreement shall be construed to make either Party an agent, employee, franchisee, joint venture or legal representative of the other Party. Neither Party shall have, or represent itself to have, any authority to bind the other Party or act on its behalf.

 

17.8 Supplier is not being appointed as an exclusive supplier of the Services or similar services that Customer may require during the Term. Supplier is however appointed as a ‘preferred partner’ and Customer shall notify its Personnel of such fact in writing.

 

17.9 This Agreement does not create any rights which are enforceable by any person who is not a Party to this Agreement.

 

17.10 Any notice or other communication given under or in connection with this Agreement must be in writing.  Any notice or communication which is not delivered on a Business Day, or which is delivered after 5pm (local time of the recipient) on a Business Day shall be deemed to have been delivered on the next Business Day.

 

17.11 Unless otherwise stated, the rights and remedies of a Party under this Agreement do not exclude any other right or remedy provided by Applicable Law.