Terms and Conditions Agreement

  1. Contractual Relationship

Please read these Terms and Conditions carefully. These Terms and Conditions constitute a legally binding agreement together with the Enrollment Agreement between you, whether personally or on behalf of an entity, acting as a provider of food and beverages (the “Restaurant” or “you”) and the Careem Legal Entity stated on the Enrollment Agreement or, where there is no Careem Legal Entity stated on the Enrollment Agreement, the Careem legal entity incorporated in the jurisdiction where the Restaurant is located and the Orders are to be delivered (“Careem”). For the purpose of the Agreement, references to “Affiliates” includes Careem’s administrators, successors-in-interest, permitted assigns and affiliates.

These Terms and Conditions and the Enrollment Agreement shall hereinafter be referred to as the “Agreement”.


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 OR THE
RESTAURANT APPLICATION.


Your access and use of the Careem Platform and the Restaurant Application 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 and the Restaurant Application or any portion thereof, at any time for any reason without notice.


Careem may amend these Terms and Conditions unilaterally and at its sole discretion from time to time. Amendments will be effective upon Careem’s posting of updated Terms and Conditions at this location. Your continued access or use of the Careem Platform and/or the Restaurant Application after such posting constitutes your consent to be bound by these Terms and Conditions, 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


“Applicable Law” means any national, state, local, municipal legislation, regulation, statutes, bylaw, consents and/or other law 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;


“Captain” means an individual, validly registered on the Careem Platform, who is an independent third party contractor and is carrying out the delivery of Orders to Customers;


“Commission Percentage” means the commission fee percentage with respect to each Order, payable by you to Careem pursuant to the terms of the Enrollment Agreement;


“Customer” means a third party user who places Orders through the Careem Platform;

 

“Device” means an internet enabled mobile or tablet device capable of accessing the Restaurant Application;


“Effective Date” means the execution date of the Enrollment Agreement;


“Electronic Payment Mechanism” means the online and mobile based payment mechanisms including third party payment gateways, credit card/debit card/net banking transfer and/or e-wallets and/ or Careem credits that are available on the Platform for the purposes of facilitating the payment of the Order Value by the Customer;


“Enrollment Agreement” means the Restaurant Enrollment Agreement signed by you and Careem by which you agree to be bound by the terms of this Agreement;


“Good Industry Practice” means the practices, methods and procedures and that degree of skill, diligence, prudence, foresight and judgment which would be expected to be observed by a skilled and experienced supplier engaged in the same or similar activities under the same or similar circumstances;


“Goods” means any food and beverage items being sold by you to Customers through the Careem Platform as listed from time to time in a relevant Menu;


“Group” means in relation to any person, that person and any company which is from time to time a subsidiary or holding company of that person or a subsidiary of any such holding company;


“Information” means the information set out in, and to be provided in connection with, the Enrollment Agreement including any information which is supplied by you to Careem under or with respect to this Agreement such as the Menu, the price lists underlying the Menu, opening hours of the Restaurant, delivery areas serviced by the Restaurant and related delivery terms, and any other specific information the Restaurant is requested by Careem to provide;

 

“Intellectual Property Rights” 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 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;


“Menu” means any e-document or virtual page which sets out the Goods offered for sale by you to Customers together with related pricing and which is made available on the Careem Platform;


“Net Order Value” means the Order Value, less the applicable Commission Percentage, any applicable payment gateway fees and any other taxes or charges due under this Agreement or the Enrollment Agreement;


“Order” means an order made by a Customer on the Careem Platform for the purchase of Goods;


“Order Value” means the total amount, which is payable by a Customer for the purchase of Goods with respect to each relevant Order;


“Parties” means Careem and you;


“Restaurant Application” means the Careem application (web-based or otherwise) which provides you with the ability to receive details and updates relating to Orders;

 

“Self Delivery” has the meaning set out in the Enrollment Agreement;


“Service Operator” means a service operator working for Careem who is managing Orders received from Customers through the Careem Platform;


“Services” means the receipt of Orders from, and delivery of related Goods to, Customers and related services; and


“Technical Standards” means all internationally recognizable technical standards applicable to the provision of the Services hereunder.

 

  1. Careem Obligations


3.1. Careem will display Information and your Menu on the Careem Platform at its discretion;
3.2. Careem will forward Orders placed by Customers to you via a Careem provided URL link and/or via the Restaurant Application on a real-time basis;
3.3. Careem will not be responsible or liable for the (a) quality, quantity, descriptive accuracy and/or taste of the Goods advertised on the Platform; and/or (b) processing of the Orders which have been placed by the Customers with the Restaurant on the Careem Platform; and/or (c) any failure on the part of the Restaurant to comply with the special requests / instructions of a Customer where such requests and/or instructions have been communicated by the Customer at the time of placing an Order; and/or (d) the delivery of the Goods to the Customer including, but not limited to, the acts or omissions of any Captain.  The Restaurant agrees to take full liability and responsibility in respect of the foregoing;
3.4. Except in cases where the Restaurant opts for Self Delivery in respect of an Order, Careem will match the Restaurant with a Captain through the Platform who will deliver Orders to Customers;

3.5. If an Order being delivered by a Captain cannot be delivered to a Customer for reasons outside the control of the Restaurant, for example if the Customer is not present to receive the Order the Net Order Value shall be credited to the Restaurant .

In the event that an Order cannot be completed as a result of a failure to comply with clause 4.2 below, the Restaurant acknowledges and agrees that it will not be paid for such Order and that Careem will have a right to charge the Restaurant for: the Net Order Value; and/or the value of any other Payment made from or against any monies that are owed by Careem to the Restaurant; and/or any compensation paid to the Customer by Careem as a result of the failed Order.


3.6. Careem will handle any Customer and Restaurant complaints related to the Careem Platform, the Restaurant Application and/or the Device (in the event Careem has provided Restaurant with that Device);
3.7. Careem will deactivate the Restaurant’s account on the Careem Platform if the Restaurant is found non-compliant with any Applicable Law and may terminate this Agreement;
3.8. Careem will be responsible for the costs of any promotions offered by Careem with respect to Platform Services.

 

  1. Restaurants Obligations


4.1. Restaurant shall treat Orders received from Customer ordering via the Careem Platform with the same level of care, prep times, and attention, including providing the correct food items as per the Customer Order and providing the right packaging to avoid spillage or destruction of food items, as it treats Customer orders received via its own sales channels or via any third party;
4.2. Restaurant will ensure all Information provided to Careem is up to date and accurate at all times; and  Orders are ready for dispatch within 60 minutes (unless stated otherwise in the Enrollment Agreement)  of the Captain notifying the Restaurant of his arrival through the Restaurant Application;
4.3. Restaurant will use the Restaurant Application to make timely changes or updates to their Information, including but not limited to Menu items, Menu prices, operating hours and any other Information. If these changes cannot be made via the Restaurant Application, Restaurant will notify Careem by email of any changes and will provide 48 working hours’ notice for Careem to reflect such changes on the Careem Platform. If Restaurant fails to do so, Restaurant shall pay to Careem the Commission Percentage on any Orders that could not be processed due to outdated Restaurant Information.
4.4. Except for Orders subject to Self Delivery, the Restaurant will not require a minimum value with respect to any Order;
4.5. Restaurant will accept all Orders placed by Customers within two minutes of the Order appearing on the Restaurant Application and, in the event that the Restaurant fails to do the same, it will be liable to pay to Careem the Commission Percentage on any Orders not accepted by the Restaurant;
4.6. If Customer contacts Restaurant to request any change or modification to an Order, Restaurant will direct Customer to contact Careem directly.  For Orders subject to Self Delivery, Restaurant shall deal directly with the Customer for queries relating to delivery times, delivery issues and driver location in respect of the Order and Careem shall direct the Customer to the Restaurant in respect of the same;
4.7. The Restaurant warrants that the Goods provided to Customers are: (a) of high quality and fit for human consumption; and (b) comply with all Applicable Laws, including all applicable food industry regulations including all packaging and labeling requirements required for Goods of that type;
4.8. The Restaurant will contact the Careem customer care if an Order cannot be processed as requested or to clarify the details of an Order, if required, post confirmation of the Order;
4.9. Restaurant will ensure that the preparation time of an Order will not exceed 20 minutes from the acceptance time of the relevant Order;
4.10. Restaurant will be responsible for any and all issues and costs associated with delayed delivery resulting from its failure to comply with such 20-minute preparation time period including costs associated with compensating the Customer, which shall be at Careem’s sole discretion;
4.11. Restaurant will not engage in any fraudulent activity or misuse any benefits extended by Careem to it or to Customers;
4.12. Restaurant will be responsible for the costs of any discounted promotion offered by the Restaurant with respect to Goods, as agreed from time to time via email;
4.13. Restaurant will not at any time offer, by way of any medium, a price for any food and beverage item which is lower than the then-current price of the applicable item set out in the Menu and available through the Careem Platform;
4.14. If the Restaurant has not complied with the preparation instructions (as set forth in an Order) or has supplied poor quality or inaccurate Goods to the Customer, in the opinion of Careem, whereby Careem has (pursuant to the Customer’s complaint) refunded the Order Value to the Customer (“Problem Order”), the Restaurant acknowledges and agrees that the Restaurant will not be entitled to receive the Net Order Value and/or any Payments (defined below) for such Problem Order and that if the Restaurant has already received the Net Order Value from Careem in respect of such Problem Order (subject to any appropriate reductions hereunder), Careem will have a right to deduct or offset such amount from or against any monies that are owed by Careem to the Restaurant from time to time under this Agreement;
4.15. You shall disclose all relevant details pertaining to Problem Order(s) to Careem upon becoming aware of the same;
4.16. Restaurant will ensure that prices for Goods displayed on a Menu are at all times inclusive of applicable taxes and charges, including VAT; and
4.17. Restaurant shall perform its obligations and provide the Services hereunder in accordance with: (a) Good Industry Practice; (b) Technical Standards; (c) All applicable professional rules, code of conduct, regulations and associated guidelines; (d) Any timescales set out herein; and (e) Applicable Law.

4.18. Restaurant will ensure that no Order contains any Goods past their expiry and/or consumption date.  In case any Customer informs Careem that the Customer has received any expired Good(s), Restaurant acknowledges and agrees that it will not be paid for such Order, and that if the Restaurant has already received any Payment (as defined below) from Careem in respect of such Order (subject to any appropriate reductions hereunder), Careem will have a right to deduct or offset such amount from or against any monies that are owed by Careem to the Restaurant from time to time under this Agreement

4.19. Restaurant warrants, represents and undertakes that prior to dispatch of any Goods, any such Goods have at all times been handled, stored and maintained in hygienic and sanitary conditions and in accordance with Applicable Law, Good Industry Practice and any instructions or requirements of the manufacturer and/or producer of the Goods;

4.20. THE RESTAURANT WARRANTS, REPRESENTS AND UNDERTAKES THAT IT HAS, AND WILL MAINTAIN, ALL NECESSARY LICENSES AND PERMITS REQUIRED FOR MARKETING (IN ALL CHANNELS), SALE AND DELIVERY OF THE GOODS IN ALL TERRITORIES WHERE THE SERVICES ARE PERFORMED.  IF ANY SUCH LICENSE OR PERMIT IS REVOKED, EXPIRES OR IS TERMINATED FOR ANY REASON WHATSOEVER THEN THE RESTAURANT SHALL PROMPTLY NOTIFY CAREEM IN WRITING;

 

In addition to the foregoing, the following terms and conditions will apply to Restaurants who opt for Self Delivery in respect of an Order:

 

4.21. Restaurant shall be solely liable for delivery of the Goods to a Customer and within the Permitted Delivery Time as defined in the Enrollment Agreement.

4.22. Restaurant will provide an invoice to a Customer for each Order and will use the Careem invoice format available on the Restaurant Application (or such other format mutually agreed to by the Parties) and also ensure that information pertaining to all charges (including VAT) are clearly visible to a Customer on an applicable invoice.

4.23. Restaurant will notify Careem that it intends to use Self Delivery for a particular Order by selecting the Self Delivery option on the restaurant dashboard available on the Restaurant Application.

 

  1. The Careem Platform

Careem is a digital delivery and transportation network which operates a software platform matching, amongst other things, Customers seeking to place Orders with Restaurants via the Careem Platform.


THE RESTAURANT ACKNOWLEDGES THAT NEITHER CAREEM NOR ITS AFFILIATES PROVIDE DELIVERY OR TRANSPORTATION OR FOOD SERVICES OR FUNCTION AS A TRANSPORTATION SERVICE PROVIDER OR OWN ANY VEHICLES FOR DELIVERY AND THAT ALL DELIVERY SERVICES ARE PROVIDED BY INDEPENDENT THIRD-PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY CAREEM OR ANY OF ITS AFFILIATES.


5.1 License


Subject to your compliance with this Agreement, Careem grants you a limited, non-exclusive, non-sub-licensable, revocable, non-transferrable license to: (a) access and use the Careem Platform and the Restaurant Application solely with respect to the Services; and (b) access and use any content, information and related materials that may be made available to the Restaurant through the Careem Platform, in each case solely to provide Services to Customers. Any rights not expressly granted herein are reserved by Careem and Careem’s licensors.


5.2 Restrictions


You may not: (a) remove any copyright, trademark or other proprietary notices from any portion of the Careem Platform or the Restaurant Application; (b) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Careem Platform or the Restaurant Application except as expressly permitted by Careem; (c) decompile, reverse engineer or disassemble the Careem Platform or the Restaurant Application except as may be permitted by Applicable Law; (d) link to, mirror or frame any portion of the Careem Platform or of the Restaurant Application; (e) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Careem Platform or of the Restaurant Application or unduly burdening or hindering the operation and/or functionality of any aspect of the Careem Platform or the Restaurant Application; or (f) attempt to gain unauthorized
access to or impair any aspect of the Careem Platform or the Restaurant Application or their related systems or networks.


5.3 Ownership


The Careem Platform and the Restaurant Application and all rights therein are and shall remain Careem’s property or the property of Careem’s licensors. Neither this Agreement nor your use of the Careem Platform or of the Restaurant Application convey or grant to you any rights: (a) in or related to the Careem Platform or the Restaurant Application, as applicable, except for the limited license granted above; or (b) to use or reference in any manner Careem’s company names, logos, product and service names, trademarks or services marks or those of Careem’s licensors; or  (c) except for the limited license granted above, to any Intellectual Property Rights that are owned by or licensed to Careem prior to the commencement date of this Agreement, which shall be owned by and remain the property of and vested in Careem and Careem’s licensors.

The Restaurant hereby assigns with full title guarantee, free of all encumbrances and in the case of copyright, by way of a present assignment of future copyright, all of the Intellectual Property Rights that arise, or are created or developed by Careem or are adapted from Careem’s Intellectual Property Rights in connection with this Agreement upon creation, together with the right to sue for past infringement of the Intellectual Property Rights.

The Restaurant hereby grants to Careem a worldwide, perpetual, non-exclusive, assignable, royalty-free license (with full right to sublicense) for the term of the Agreement to use, reproduce, publicly display, exploit, modify, alter or integrate its Intellectual Property Rights as are provided by the Restaurant to Careem (whether directly or indirectly) or are uploaded by the Restaurant onto the Careem Platform or Restaurant Application, from time to time, for the purpose of providing the Platform Services and any marketing campaigns it runs in relation to the Services.  The Restaurant warrants, represents and undertakes that none of the content, information or related materials that it provides to Careem under this Agreement, or that are uploaded by Restaurant onto the Careem Platform or Restaurant Application, will violate or infringe any third party Intellectual Property Rights or any other third party rights.


5.4 Third Party Services and Content


The Careem Platform and the Restaurant Application may be made available or accessed in connection with third party services and content (including advertising) that Careem does not control. You acknowledge that different terms of use and privacy policies may apply to your use of such third party services and content. Careem does not endorse such third-party services and content and in no event shall Careem be responsible or liable for any products or services of such third party providers. Additionally, Apple Inc., Google, Inc., and/or their applicable international subsidiaries and affiliates will be third-party beneficiaries to this contract if you access the Careem Platform using applications developed for Apple iOS or Android-powered mobile devices, respectively. These third-party beneficiaries are not parties to this Agreement and are not responsible for the provision or support of the Careem Platform in any manner. Your access to the Careem Platform using these services or applications is subject to terms set forth in the applicable third-party beneficiary’s terms of service.


5.5 Exclusivity


Pursuant to the terms of the Enrollment Agreement, you may opt to work exclusively with Careem as your sole online ordering, take-away and/or delivery service provider (a “Careem Exclusive Partner”).

 

  1. Use of the Careem Platform


6.1. The Restaurant’s use of the Careem Platform and the Restaurant Application shall be subject to the terms and conditions set forth in this Agreement and the Enrollment Agreement and the privacy policy published from time to time on Careem’s website.
6.2. In the event Careem provides you with a Device, the following terms and conditions shall apply:
6.2.1. The Device shall be used by the Restaurant solely for the purpose of (1) managing Orders; (2) reviewing the particulars underlying the Orders; (3) updating the Order status; (4) updating Restaurant Information; (5) communicating with Careem; (6) reporting erroneous Orders; (7) reviewing Restaurant’s performance and financial accounts relating to its business with Careem and/or (8) any other use that may be prescribed in writing by Careem.
6.2.2. Careem’s terms and conditions relating to Devices shall apply to any Device provided by Careem to the Restaurant;
6.2.3. The Restaurant undertakes to use the Device in compliance with the instructions for use that may be issued by Careem and/or the manufacturer in this regard;
6.2.4. On the delivery of the Device by Careem to the Restaurant, the Restaurant will be required to acknowledge the receipt of the Device in writing by executing an Asset Handover Form in the format prescribed by Careem, and the cost of the Device will be charged to the Restaurant pursuant to the terms of the Enrollment Agreement;
6.2.5. Careem grants a limited, non-exclusive, non-transferable, royalty free license to the Restaurant for the use of the Device solely until the termination of this Agreement;
6.2.6. The Restaurant undertakes to and shall use the Device only for the purposes prescribed under this Agreement and that the Restaurant should not violate the Intellectual Property Rights of Careem or any other third party while using the Device at any point in time;
6.2.7. The Restaurant undertakes to return the Device along with all accessories (in a full working condition as determined by Careem) to Careem immediately upon the termination of this Agreement or when requested by Careem. The Device will be collected by Careem from the Restaurant at the sole expense of Careem. Upon the return of the Device along with all accessories by the Restaurant, Careem and the Restaurant will be required to acknowledge the transfer of the Device in writing as instructed by Careem;
6.2.8. The Restaurant acknowledges and agrees that any failure on part of the Restaurant in returning the Device (whenever requisitioned by Careem or on the termination of this Agreement) will render the Restaurant liable to pay for such unreturned Device including for an appropriate action under Applicable Law; and
6.2.9. The Restaurant acknowledges and agrees that: (i) Careem is not the manufacturer of any Device provided (ii) Careem cannot provide any warranties or guarantees with respect to the quality or durability of the Device and (iii) it uses the Device at its own risk.
6.2.10. In the event that the Device ceases to function and the Restaurant is unable to access the Restaurant Application through any other means, the Restaurant will immediately inform Careem and Careem will disable the Restaurant on the Careem Platform until the Device is functional again.

 

  1. Charges, Payments and Commission


7.1. The Restaurant acknowledges and agrees that while Careem will use its reasonable efforts to ensure that the Careem Platform is not misused by Customers for the placement of wrong Orders, it is the ultimate responsibility of the Restaurant to determine whether an Order is wrong or not. In the event of a wrong Order, the Restaurant undertakes to report such a wrong Order to Careem through the Device or call Careem for Careem’s action and investigation.
7.2. Careem may perform a variety of marketing activities to promote the Restaurant and the Restaurant’s menu; provided, however, that all such marketing activities will be
determined in Careem’s sole and absolute discretion and the Careem Platform may be modified or updated, without notice and from time to time, to reflect any such changes.
7.3. The Restaurant acknowledges and agrees that the Careem Platform will provide the following payment mechanisms to Customers for the payment of the Order Value: (a) Cash on delivery; (b) Electronic Payment Mechanism; and (c) Redemption of vouchers and/or discount promotion (if any) approved by Careem.
7.4. In the event that any of the Restaurant or its employees irreparably damages or loses the Device or any of its accessories during the subsistence of this Agreement, Careem shall replace the same and the Restaurant shall be charged for the cost of replacement.
7.5. The Restaurant shall pay to Careem the Commission Percentage for all Orders.

7.6. Careem will settle Net Order Value owed to Restaurant in accordance with the payment terms specified on the Enrollment Agreement (“Payments”). Restaurant agrees that Careem shall be entitled to set-off any amounts Restaurant owes to Careem hereunder (including the Commission Percentage) from the Payments. Restaurant will be responsible for any taxes or charges payable on the Goods including collecting, paying and reporting such taxes to the appropriate authorities and providing Customers with compliant Tax Invoices where required under local laws for the Goods.
7.7. Restaurant acknowledges and agrees that Careem will provide the Restaurant with a monthly statement within a period of 14 (fourteen) business days from the last day of each month setting forth all of the Orders during such month and any amounts due to Careem in respect of Orders (including the Commission Percentage). Such statements will be sent to the Restaurant using the email address specified in the Enrollment Agreement.
7.8. In the event that an Order is not delivered to a Customer as a direct result of the negligence or willful misconduct of a Captain, Careem shall waive the Commission Percentage owed to it in relation to such Order and Careem shall put forth its best commercial efforts to procure that such Captain re-pay Customer or Restaurant the Order Value if such amount was paid by Customer in advance.
7.9. The Parties acknowledge and agree that Order ratings are entirely under the control of Customers and the Restaurant’s accumulated average rating displayed on the Careem Platform is calculated using the ratings which are given by the Customer in respect of each Order which is placed by such Customer with the Restaurant on the Careem Platform.
7.10. The Restaurant acknowledges and agrees that Careem reserves the right to review and modify the foregoing delivery rating system and the Commission Percentage periodically upon sending an email notice to the Restaurant and that Careem’s decision in this regard shall be final and binding on the Restaurant.

 

  1. Restricted Activities


8.1. The Restaurant must meet all of the following requirements when it receives an online payment Order:
8.1.1. Ensure that it does not receive any additional payment from a Customer (including but not limited to payment by cash) when payment has been made online by a Customer; and
8.1.2. Follow all special instructions contained on the Order receipt or as communicated by Service Operator.
8.2. The Restaurant agrees that it will treat all information concerning this Agreement and the Enrollment Agreement (including their respective terms), Careem and its Group, the Careem Platform and all information concerning Customers which has been provided to it pursuant to the terms of this Agreement as confidential information (“Confidential Information”) and will not, except as provided in this Agreement, disclose, use or permit the disclosure or use of such information to any third party. The Restaurant further agrees that a breach of this provision would cause Careem to suffer irreparable harm and damage that could not be adequately remedied by payment of monetary damages and therefore, in addition to monetary damages and other legal remedies, the Restaurant agrees that Careem will be entitled to obtain equitable and injunctive relief as may be necessary to restrain any threatened, continuing or further breach by the Restaurant. The restrictions referred to in this Clause will not apply to any Confidential Information to the extent that such information: (a) is already known to the Restaurant, (b) is in or comes into the public domain otherwise than as a result of any breach of this Agreement or (c) is required to be disclosed by law.
8.3. Restaurant shall Process any Personal Information received from Careem or any Customer in accordance with Applicable Law and only for the purposes of discharging its obligations under this Agreement. For the purposes of this Clause, the following definitions shall apply: (a) “Personal Information” means any information relating to an identified or identifiable person 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, and (b) “Process” means to collect, hold, use, transfer, destroy and otherwise deal in any with Personal Information.

 

  1. Disclaimers; Limitation of Liability; Indemnity


9.1. DISCLAIMER


THE CAREEM PLATFORM AND THE RESTAURANT APPLICATION IS PROVIDED “AS IS” AND “AS AVAILABLE.” CAREEM AND ITS AFFILIATES DISCLAIM 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, CAREEM AND ITS AFFILIATES MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE CAREEM PLATFORM OR OF THE RESTAURANT APPLICATION OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE CAREEM PLATFORM OR THE RESTAURANT APPLICATION, OR THAT THE CAREEM PLATFORM OR RESTAURANT APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER CAREEM NOR ITS AFFILIATES GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF CUSTOMERS. THE RESTAURANT AGREES THAT THE ENTIRE RISK ARISING OUT OF THE RESTAURANT’S USE OF THE CAREEM PLATFORM AND RESTAURANT APPLICATION, AND ANY SERVICE OR GOOD REQUESTED OR PROVIDED IN CONNECTION THEREWITH, REMAINS SOLELY WITH THE RESTAURANT, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.


9.2. LIMITATION OF LIABILITY


THE RESTAURANT UNDERSTANDS AND ACCEPTS THAT CAREEM DOES NOT PROVIDE TRANSPORTATION, FOOD DELIVERY OR LOGISTICS SERVICES OR FUNCTION AS A TRANSPORTATION OR GOODS CARRIER AND THAT ALL SUCH TRANSPORTATION, FOOD DELIVERY OR LOGISTICS SERVICES ARE PROVIDED BY INDEPENDENT THIRD-PARTY CONTRACTORS WHO ARE NOT EMPLOYED BY CAREEM OR ANY OF ITS AFFILIATES. CAREEM’S LIABILITY FOR ANY LOSS SUFFERED BY THE RESTAURANT ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED TEN THOUSAND AED (AED 10,000) (OR THE EQUIVALENT AMOUNT IN THE RELEVANT LOCAL CURRENCY).
THE RESTAURANT AGREES THAT CAREEM HAS NO RESPONSIBILITY OR LIABILITY TO THE RESTAURANT RELATED TO ANY DELIVERY SERVICES PROVIDED BY THE RESTAURANT TO CUSTOMERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT AND THAT CAREEM HAS NO RESPONSIBILITY OR LIABILITY TO THE RESTAURANT FOR THE ACTS OR OMISSIONS OF ANY CAPTAIN.

9.3. Indemnity


The Restaurant agrees to indemnify and hold Careem, its Affiliates and their officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees) arising out of or in connection with: (a) the Restaurant’s use of the Careem Platform and Restaurant Application and the sale of Goods and delivery services obtained through the Restaurant’s use of the Careem Platform and the Restaurant Application; (b) the Restaurant’s breach or violation of this Agreement or (c) the Restaurant’s violation of the rights of any third party, including Captains.

9.4. Indirect Damages


Careem will not be liable to the Restaurant for any indirect or consequential losses (including loss of profit, opportunity and goodwill).

 

  • Exclusions from Limitation of Liability

 

Notwithstanding the foregoing, nothing in this Agreement shall exclude or limit either party’s liability to the other in relation to:

 

  • death or personal injury caused by negligence or wilful or reckless misconduct of that party;
  • any fraud or fraudulent misrepresentation of that party; and/or
  • any liability which cannot be lawfully excluded by that party.

 

  1. Choice of Law and Dispute Resolution


10.1 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.


10.2 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 Restaurant Application 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.


10.3 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. Other Provisions


11.1 Upon Expiry or Termination


In the event that this Agreement expires or is terminated for any reason, Restaurant will no longer be entitled to access and/or use the Careem Platform and the Restaurant Application and Restaurant shall return all Confidential Information it has received from Careem hereunder.


11.2 Claims of Copyright Infringement


Claims of copyright infringement should be sent to Careem at info@careem.com


11.3 Notice.


Careem may give notice by means of a general notice on the Careem Platform, electronic mail to your email address in the Restaurant Account, or by written communication sent to your address as set forth in the Enrollment Agreement. The Restaurant may give notice to Careem by written communication to Careem’s email address at legal@careem.com for any matter and will give 7 calendar days’ written notice with respect to terminating its use of the Careem Platform and the Restaurant Application.

 

  1. General


The Restaurant may not assign or transfer its rights under this Agreement in whole or in part without Careem’s prior written approval. Careem may assign and/or transfer its rights and obligations under this Agreement in whole or in part, including to: (a) a subsidiary or affiliate; (b) an acquirer of Careem’s equity, business or assets; or (c) a successor by merger.


No joint venture, partnership, employment or agency relationship exists between the Restaurant, Careem, its Affiliates or any Customer as a result of the contract between the Restaurant and Careem or use of the Careem Platform or the Restaurant Application. Careem and the Restaurant are and shall remain independent parties. Neither party shall have, or represent itself to have, any authority to bind the other party or act on its behalf.


If any provision of this Agreement is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of this Agreement but the legality, validity and enforceability of the other provisions in this Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of this Agreement. The Enrollment Agreement shall constitute an integral part of this Agreement.

 

These Terms and Conditions, together with the Enrollment Agreement, constitute 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.

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