1. CONTRACTUAL RELATIONSHIP

Please read these Terms and Conditions carefully. These Terms and Conditions, together with the applicable Service Terms, constitute a legally binding agreement between the Merchant and the Careem Legal Entity stated on the Service Terms (“Careem”). These Terms and Conditions and the Service Terms will hereinafter be referred to as the “Agreement”.

For the purpose of the Agreement, references to “Affiliates” includes Careem’s administrators, successors-in-interest, permitted assigns and affiliates.

This Agreement governs Merchant’s use of the Careem application, Careem APIs, website, call center and technology platform (collectively, the “Careem Platform” or the “Platform”) which facilitates the listing, sale and delivery of Bookable Services (as defined below) to Users (as defined below) (“Platform Services”). The Merchant’s access and use of the Careem Platform constitute an agreement to be bound by this Agreement, which establishes a contractual relationship between Merchant and Careem.

 

  1. DEFINITIONS

Added Value: an additional gain or benefit offered to Careem or to User(s) by the Merchant that delivers a related gain or benefit (monetary or otherwise) to Careem or to a User as may offered in relation to the Careem Platform or enabled by Careem and which may include: promotions; discounts; exclusive offers; combination offers; buy one get one free offers (or similar bundling); marketing by the Merchant of Careem, and/or the Careem App on the Merchant’s proprietary channels (either on or off-line); signing up as a partner to the Careem Customer loyalty programme. 

Applicable Law: any national, state or local, regulation, statutes 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;

Bookable Service: a service provided by the Merchant to Users being a service set out on the relevant Service List;

Booking Time: the date and time for the Merchant to provide the Bookable Service to the User selected by the User upon booking

Commission Percentage: the commission fee percentage with respect to each Order, payable by the Merchant to Careem pursuant to the terms of the Service Terms;

Data Processing Addendum: the terms in Schedule A;

Data Protection Legislation: all applicable privacy and data protection laws in the Territory and any applicable national implementing laws, regulations and secondary legislation relating to the processing of Personal Data and the privacy of electronic communications, as amended, replaced or updated from time to time;

Effective Date: the execution date of the Service Terms;

Electronic Payment Mechanism: 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 Careem Platform for the purposes of facilitating the payment of the Order by the User;

Force Majeure Event: means 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 include governmental acts or requirements, regulatory changes/actions, war, fire, flood, explosion. terrorism, hackers, cyber-attacks, embargos, epidemics, pandemics, strikes or other labour disputes, unavailability of materials and/or components or civil commotion;

Good Industry Practice: 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;

Group: 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: the information relating to the Merchant and its business set out in, and to be provided in connection with, the Service Terms including any information which is supplied by Merchant to Careem pursuant to or with respect to this Agreement such as the price lists for Bookable Services, operating hours, areas where Bookable Services are made available, and any other information Careem requested from the Merchant from time to time;

Intellectual Property Rights: 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, data, 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;

Merchant Escalated Responses: User complaints received by the Merchant, which Careem is required to resolve in accordance with Clause 3.3;

Net Order Value: the sum payable to the Merchant consisting of the Order Value less the applicable Commission Percentage, any applicable payment gateway fees and any other taxes or charges due under this Agreement, the Service Terms or Applicable Law;

Order Value: the total amount, which is payable by a User for the purchase of Bookable Services from Merchant with respect to each relevant Order;

Order: an order made by a User through the Careem Platform for the purchase of Bookable Services from Merchant;

Parties: Careem and the Merchant;

Personal Data: any data that is considered as personal data under the Data Protection Legislation, specifically information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;

Personnel: Merchant’s employees, agents, subcontractors or representatives that are involved in the provision of Bookable Services;

Process, Processing or Processed: every operation or set of operations which is performed with regard to Personal Data, including without limitation the collection, recording, organization, storage, adaptation, alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, combining, linking to other data, blocking, erasure or destruction of Personal Data;

Reporting Requirements: the daily, weekly, monthly or quarterly reports that the Merchant must submit to Careem in the manner and timings specified in the Service Terms;

Rewards: points that Careem provides to Users using the Careem Platform when making transactions on the Careem Platform, which Users can redeem on the Careem Platform;

Service Levels: the service levels to be met by the Merchant, specified in the Service Terms;

Service List: any e-document or virtual page (together with related pricing) which sets out on the Careem Platform the Bookable Services offered for sale by Merchant to Users through the Careem Platform;

Services: the services provided by Careem to the Merchant pursuant to this Agreement, consisting of lead generation, making available the Careem Platform and the transmission of a User’s request for Bookable Services and related services;

Technical Standards: all internationally recognizable technical standards applicable to the provision of the Services hereunder.

Territory: the territory listed in the Service Terms.

Total Orders: the total number of Orders placed by the User;

User: a third party user who places Orders for Bookable Services through the Careem Platform;

User Personal Data: Personal Data relating to an identified or identifiable User;

VAT: value added tax or any other sales or similar taxes applicable under local tax law;

 

  1. CAREEM OBLIGATIONS

3.1. Careem will: (a) display all or part of the Information on the Careem Platform at its discretion; (b) make available the Careem Platform so that Users may place Orders with the Merchant; and (c) if Users pay through an Electronic Payment Mechanism, facilitate the User’s payment of the Order Value to the Merchant as the Merchant’s limited payment collection agent.

3.2. Careem will not be responsible or liable for (a) any of the Bookable Services nor the quality, quantity and/or descriptive accuracy of the same; and/or (b) fulfilling or completing Orders; and (c) Merchant’s failure to comply with the requests / instructions communicated by the User at the time of placing an Order. The Merchant agrees to take full liability and responsibility in respect of the foregoing.

3.3. Careem will handle any: (a) User and Merchant complaints related to the Careem Platform; and (b) processing of refunds or reversing credit or debit card blocks in the manner set out in this Agreement. All User complaints are to be managed in accordance with a defined process agreed by the Parties. If the Merchant has complaints or received User complaints within the scope of this Clause 3.3, it will contact Careem in the timeframes listed in the Service Terms.

3.4. Careem will deactivate the Merchant’s account on the Careem Platform if Careem believes that the Merchant is non-compliant with any Applicable Law, fraudulent, negligent or has undertaken an act of wilful misconduct. In such circumstances and notwithstanding any other term of this Agreement, Careem at its sole discretion may terminate this Agreement without notice.

3.5. Careem will be responsible for the costs of any promotions offered by Careem.

 

  1. MERCHANT’S OBLIGATIONS

4.1. Merchant warrants and undertakes that: (a) it is duly formed and registered and validly existing under the laws of its jurisdiction of incorporation or formation; (b) it has the power and authority to enter into and perform its obligations under this Agreement and each of the other documents referred to in this Agreement to which it is a party, and the entry into, and performance of its obligations under, this Agreement and any other document to which it is a party, have been duly authorised and are within its corporate power, and constitute binding obligations on it in accordance with their terms; (c) it has all necessary consents, licenses and approvals in connection with the entry into and performance of its obligations under this Agreement; and (d) its entry into this Agreement and performance of its obligations under this Agreement will not violate or conflict with, or exceed any limit imposed by: (i) any law or regulation to which it is subject; (ii) its constitutional documents; or (iii) any other agreement, instrument or undertaking binding upon it.

4.2. Merchant warrants that it will perform its obligations and provide the Bookable Services 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, including all applicable regulations governing the advertising or sale of Bookable Services of that type.

4.3. Merchant agrees to meet and comply with the Service Levels set out in the Agreement. Careem will review the Merchant’s performance and in the event of repeated breaches of Service Levels Careem may, at its discretion, (a) request the Merchant to put in place a plan to remedy the breaches; and/or (b) suspend or terminate the Agreement if the relevant breaches remain uncured for more than 15 calendar days from the date of Careem’s notification.

4.4. Merchant represents, warrants and undertakes that the Bookable Services provided to Users are: (a) fit and proper for their intended use and (b) comply with all Applicable Laws. If Bookable Services include goods for consumption, Merchant will ensure that: (i) prior to dispatch of any Bookable Services, any such Bookable Services 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 Bookable Services; and that (ii) no Order contains any Bookable Services past their expiry and/or consumption date.  If any User informs Careem that the User has received any expired Bookable Service(s), Merchant acknowledges and agrees that it will not be paid for such Order, and that if Merchant 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 sums that are owed by Careem to the Merchant from time to time under this Agreement.

4.5. Merchant will ensure that any Personnel involved in the provision of the Bookable Services: (a) have the necessary skills, qualification, and relevant experience to provide the Bookable Services in accordance with Good Industry Practice; (b) have passed a background check. Each background check must include an identity verification (using national identity documentation) and a criminal history check and any other checks required by Applicable Law; and (c) have been provided with appropriate training to ensure that they comply with this Agreement, including the obligations relating to Confidential Information and Personal Data.

4.6. Merchant will treat Orders received from User via the Careem Platform with the same level of care, execution times, and attention, including providing the correct goods or services as it treats User orders received via its own sales channels or via any third party.

4.7. Merchant will ensure that the Information provided to Careem is up to date and accurate at all times. Merchant will ensure that prices for Bookable Services displayed on a Service List are always inclusive of applicable taxes and charges, including VAT.

4.8. Merchant will be responsible for any and all issues and costs associated with delays or failure to fulfil an Order, including costs associated with compensating the User. The Parties agree that in case of Merchant’s delays or failure to fulfil an Order, the User will be compensated in accordance with the Service Terms.

4.9. Merchant may not make changes to the Service List without Careem’s prior written agreement.

4.10. Merchant will handle all complaints by Users, other than the complaints which Careem will handle in accordance with Clause 3.3.

4.11. Merchant will not engage in any fraudulent activity or misuse any benefits extended by Careem to it or to Users.

4.12. Merchant will be responsible for the costs of any discounted promotion offered by the Merchant with respect to Bookable Services, as agreed from time to time via email.

4.13. If the Merchant has not complied with the instructions (as set forth in an Order) or has supplied poor quality or inaccurate Bookable Services to the User, in the opinion of Careem, whereby Careem has reimbursed the Order Value to the User (“Problem Order”), the Merchant acknowledges and agrees that the Merchant will not be entitled to receive the Net Order Value and/or any Payments (defined below) for such Problem Order and that if the Merchant 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 Merchant from time to time under this Agreement.

4.14. Merchant will disclose all relevant details pertaining to Problem Order(s) to Careem upon becoming aware of the same.

4.15. MERCHANT 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 BOOKABLE SERVICES IN EACH TERRITORY WHERE THE BOOKABLE SERVICES ARE PERFORMED.  IF ANY SUCH LICENSE OR PERMIT IS REVOKED, EXPIRES OR IS TERMINATED FOR ANY REASON WHATSOEVER THEN THE MERCHANT WILL PROMPTLY NOTIFY CAREEM IN WRITING;

4.16. Merchant will provide an invoice compliant with local regulations to a User for each Order and also ensure that information pertaining to all charges (including VAT where applicable) are clearly visible to a User on an applicable invoice.

4.17. Merchant will provide accurate reports and information required in the Reporting Requirements set out in the Service Terms.

 

  1. THE CAREEM PLATFORM

5.1. Careem is a digital network which operates a software platform matching, amongst other things, Users seeking to place Orders with Merchants via the Careem Platform.

5.2. License: Subject to the Merchant’s compliance with this Agreement, Careem grants Merchant a limited, non-exclusive, non-sub-licensable, revocable, non-transferable license to access and use the Careem Platform and any content, information and related materials that may be made available to the Merchant through the Careem Platform for the sole purpose of: (a) managing Orders; (b) reviewing the particulars underlying the Orders; (c) updating the Order status; (d) updating the Merchant Information; (e) communicating with Careem; (f) reporting erroneous Orders; and/or (g) any other use that may be prescribed in writing by Careem.

5.3. Restrictions: Merchant may not: (a) remove any copyright, trademark or other proprietary notices from any portion of the Careem Platform; (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 except as expressly permitted by Careem; (c) decompile, reverse engineer or disassemble the Careem Platform except as may be permitted by Applicable Law; (d) link to, mirror or frame any portion of the Careem Platform; (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 unduly burdening or hindering the operation and/or functionality of any aspect of the Careem Platform; or (f) attempt to gain unauthorized access to or impair any aspect of the Careem Platform or their related systems or networks.

5.4. Ownership: The Careem Platform and all rights therein are and will remain Careem’s property or the property of Careem’s licensors. Neither this Agreement nor the Merchant’s use of the Careem Platform convey or grant to the Merchant any rights: (a) in or related to the Careem’s Confidential Information, User Personal Data, Careem’s data or the Careem Platform, 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 will be owned by and remain the property of and vested in Careem and Careem’s licensors.

The Merchant 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 Merchant 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 Merchant to Careem (whether directly or indirectly) or are uploaded by the Merchant onto the Careem Platform, from time to time, for the purpose of providing the Platform Services and any marketing campaigns it runs in relation to the Services.  The Merchant 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 Merchant onto the Careem Platform, will violate or infringe any third party Intellectual Property Rights or any other third party rights.

5.5. Third Party Services and Content: Apple Inc., Google, Inc., and/or their applicable international subsidiaries and affiliates will be third-party beneficiaries to this contract if Merchant accesses 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. Merchant 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.

 

  1. USE OF THE CAREEM APPLICATION PROGRAMMING INTERFACE

6.1. During the term of this Agreement, Careem may grant to the Merchant a royalty free, non-exclusive and non-transferable license to access one or more Careem’s Application Programming Interfaces (“Careem APIs”) and documentation necessary to develop, test and support and integration of the Bookable Service with the Careem Platform. This may include the (i) IDENTITY API to allow for sharing of User Personal Data other than saved addresses; (ii) LOCATIONS API to allow for sharing of a User’s saved addresses in the Careem Platform; (iii) REWARDS API to allow the Merchant to confirm to Careem the total Order Value for Careem to issue Rewards to Users; and/or (iv) any other Careem APIs or components thereof made available by Careem to Merchant for a communicated purpose.

6.2. Merchant may only use the Careem APIs for the purpose listed in Clause 6.1 (the “Purpose”). The Merchant remains liable for its access to and use of the Careem API.

6.3. Careem may, at its sole discretion: (i) impose limits on certain API features and services; (ii) restrict Merchant’s access to parts or all of API without notice or liability; and/or (iii) provide support with respect to the API and may terminate such support at any time without notice

6.4. Careem may review, test or approve any Merchant’s API but such testing or approval does not constitute any representation or acknowledgement by Careem that the Merchant’s API and/or any content therein comply with the Agreement, any laws, rules, or regulations, nor does it constitute any acceptance by Careem of any responsibility or liability in connection such products or services, or any content therein.

6.5. Merchant acknowledges that the API provided by Careem may change from time to time and that no warranty, representation, or other commitment is given in relation to the continuity of any functionality of the API or other services provided.

6.6. Merchant must not: (a) use the Careem APIs for any reason unconnected with the Purpose; (b) design or develop a competitive or substantially similar product or service; (c) attempt to interfere with or compromise the integrity or security of the Careem APsI; (d) erase or remove any proprietary or intellectual property notice contained in the Careem APIs; (e) share with a third party (or enable a third party to use) any operational, technical or other data obtained through the use of the Careem Platform or Careem APIs in any manner that is competitive to Careem or any of its affiliates, including, without limitation, in connection with any application, website or other product or service that also includes, features, endorses, or otherwise supports in any way a third party that provides services competitive to the products and services of Careem or a Careem Affiliate.

6.7. Merchant will indemnify and defend Careem from and against all loss, or damages, claims, liabilities or expenses (including lawyer’s fees) of whatever nature suffered, sustained or incurred, arising from any claim made against Careem by a third party arising out of or in connection with the Merchant’s use of the Careem APIs or information obtained through the Merchant’s use of the Careem APIs.

 

  1. CHARGES, PAYMENTS AND COMMISSION

7.1. Careem may perform a variety of marketing activities to promote the Merchant and the Service List; 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.

7.2. The Parties agree that the User will be given the option to pay for the Order Value either through: (a) Cash on Order Completion which is collected by Personnel from User; (b) Electronic Payment Mechanism, where Careem facilitates the User’s payment of the Order Value to the Merchant as the Merchant’s limited payment collection agent; and (c) redemption of vouchers and/or discount promotion (if any) approved by Careem.

7.3. The Merchant will pay to Careem: (a) the Commission Percentage for all Orders; and (b) cost of refunds or compensation paid to the Users contemplated in this Agreement.

7.4. Careem will settle Net Order Value owed to Merchant in accordance with the payment terms specified on the Service Terms (“Payments”). Merchant agrees that Careem will be entitled to set-off any amounts Merchant owes to Careem hereunder (including the Commission Percentage) from the Payments. Merchant will be responsible for any VAT or other taxes or charges payable on the Bookable Services including collecting, paying and reporting such taxes to the appropriate authorities and providing Users with compliant tax invoices where required under local laws for the Bookable Services.

7.6. The Merchant will provide Careem 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, any refunds or compensations issued to Users and any amounts due to Careem in respect of Orders (including the Commission Percentage). Such statements will be sent to Careem using the email address specified in the Service Terms.

7.7. The Merchant acknowledges and agrees that Careem may conduct User satisfaction surveys or ask Users to provide a satisfaction rating in relation to an Order or interactions of User with a Merchant. The Merchant understands that this may be used to evaluate the overall performance and suitability of the Merchant on the Careem Platform.

7.8. Merchant acknowledges and agrees that it is required to: (i) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of Bookable Services as required by applicable law; and (ii) provide Careem with all relevant tax information (including Merchant’s valid VAT number applicable by law).

7.9. Merchant further acknowledges and agrees that it is responsible for taxes on its own income arising from the performance of its Bookable Services. In the case of amounts payable by Merchant to Careem, Merchant acknowledges and agrees that it will pay any applicable taxes (excluding Careem’s own taxes on its income) on the amounts charged to Merchant by Careem.  Furthermore, Merchant acknowledges and agrees that where Careem is required to withhold any taxes on Merchant’s income, whether on amounts paid by a Careem User through cash, a payment card, the Careem Wallet, or other payment means other than cash, or on any amounts payable by Careem to Merchant, Merchant will cooperate fully to enable Careem to meet its withholding obligations, including remitting the required taxes to Careem.

 

  1. RESTRICTED ACTIVITIES

8.1. Merchant must meet all of the following requirements when it receives an Order: (a) ensure that it does not receive any additional payment from a User (including but not limited to payment by cash) when payment has been made online by a User; and (b) follow all special instructions contained on the Order or as communicated by the User.

8.2. The Merchant agrees that it will treat all information concerning this Agreement and the Service Terms (including their respective terms), Careem and its Group, the Careem Platform and all information concerning Users 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: (a) disclose or permit the disclosure or use of such information to any third party; or (b) use the Confidential Information for purpose other than to process, deliver and complete an Order. The Merchant 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 Merchant 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 Merchant. 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 Merchant, (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.

 

  1. CONDUCT BREACHES, USER PRIVACY AND PROCESSING OF USER PERSONAL DATA

9.1. Merchant represents, warrants and undertakes that: (a) it will not use and will ensure that its Personnel will not use any User Personal Data other than to provide the Bookable Service requested by the User through the Careem Platform; and (b) it will Process any User Personal Data in accordance with the Data Processing Addendum in Schedule A.

9.2. Merchant is responsible for ensuring that its Personnel: (a) comply with Applicable Laws when providing the Bookable Services; (b) are bound by signed confidentiality and data processing obligations no less onerous than those in this Agreement. For avoidance of doubt, it must be communicated in writing to all Personnel that they should not use Careem’s Confidential Information or User Personal Data in any manner or for any purpose other than to provide the Bookable Service; and (c) refrain from doing anything which may damage Careem’s brand or reputation (and in this Agreement, Clause 9.2(a) to (c) referred to as “Conduct Breaches”).

9.3. If the Merchant becomes aware of, suspects or has reason to believe that a Conduct Breach exists, it will: (a) immediately notify Careem (including Careem’s Compliance team) and keep Careem fully updated on such matter (b) conduct an internal inquiry in relation to the relevant Personnel including a written report including recommended actions in a final form satisfactory to Careem and (c) after consultation with Careem, take appropriate disciplinary action in the event that there is evidence as to any improper action by such Personnel.

9.4. If any of Careem or Merchant discover a Conduct Breach (or a possible Conduct Breach), the Merchant shall immediately ensure that concerned Personnel are not made available to provide Bookable Services until the matter has been duly considered.

9.5. In all instances, Careem reserves the right to file both criminal and civil complaints and actions.

 

 

  1. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY

10.1. DISCLAIMER: THE CAREEM PLATFORM 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 MAKE NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF THE CAREEM PLATFORM OR ANY SERVICES OR PRODUCTS REQUESTED THROUGH THE USE OF THE CAREEM PLATFORM, OR THAT THE CAREEM PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE. NEITHER CAREEM NOR ITS AFFILIATES GUARANTEE THE QUALITY, SUITABILITY OR ABILITY OF USERS.

10.2. LIMITATION OF LIABILITY: THE MERCHANT AGREES THAT CAREEM HAS NO RESPONSIBILITY OR LIABILITY TO THE USER OR THE MERCHANT RELATED TO A BOOKABLE SERVICE. CAREEM’S LIABILITY FOR ANY LOSS SUFFERED BY THE MERCHANT 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).

10.3. Indemnity: The Merchant 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 the Merchant’s and/or Personnel’s: (a) use of the Careem Platform; (b) marketing, sale or provision of Bookable Services; (c) breach or violation of this Agreement; or (d) violation of the rights of any third party.

 

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

 

10.5. Exclusions from Limitation of Liability:  Notwithstanding the foregoing, nothing in this Agreement will exclude or limit either party’s liability to the other in relation to: (a) death or personal injury caused by negligence or wilful or reckless misconduct of that party; (b) any fraud or fraudulent misrepresentation of that party; and/or (c) any liability which cannot be lawfully excluded by that party.

 

  1. TERMINATION RIGHTS

11.1. 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.

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

11.3. Upon receipt of a termination notice, Parties will: (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 if requested by the disclosing Party; and (iii) cease performance of its obligations hereunder in accordance with, and to the extent specified in, the termination notice.

11.4. 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.

11.5 Upon expiration or termination of the Agreement, the obligations which by their nature are intended to survive expiration or termination of the Agreement shall survive.

 

  1. BUSINESS CONDUCT CLAUSES

12.1. Compliance Obligation: Merchant shall take no action that would be in violation of, or would expose Careem to penalty or liability under, the applicable laws, regulations, and guidance (having the force of law) of any country, including but not limited to the United States, the United Kingdom, and any country in which the Merchant will perform under this Agreement or engage in the transactions contemplated thereunder.

12.2. Anti-Corruption Obligation: During the term of this Agreement, Merchant: (i) shall comply with all applicable anti-corruption laws, including, but not limited to, the U.S. Foreign Corrupt Practices Act (“FCPA”) and UK Anti-Bribery Act; (ii) shall not directly or indirectly pay, offer, authorize, or promise any fee, commission, material remuneration, or any other thing of value to or for the benefit of any Public Official to corruptly influence an act or decision of such person in his or her official capacity, cause such person to act or fail to act in violation of his or her lawful duty, or cause such person to influence an act or decision of the government, for the purpose of assisting Merchant to obtain or retain business or gain any improper advantage; and (iii) shall not otherwise engage in conduct that violates applicable anti-corruption laws or exposes Careem to liability under such laws.

For purposes of this agreement, “Public Official” includes all employees of a government department or agency (including part-time workers and unpaid workers), any person “acting in an official capacity,” members of a royal family, political parties, party officials, candidates for political office, employees of public international organizations, officers, employees of public academic institutions and companies under government ownership or control, even if the companies are operated like privately owned corporations, or a close relative of any of the preceding.

12.3. No Public Official: Except as disclosed in the Service Terms, Merchant represents and warrants that (i) it is not a Public Official as this term is defined in this Agreement or (ii) has any personal, business relationship, association with a Public Official who is or will be in a position to directly or indirectly affect or influence the award of business or other advantages to Careem.

12.4. Termination Right: Merchant acknowledges and agrees that Careem may terminate this Agreement at any time if, in its sole discretion, it reasonably believes that Merchant has committed a violation of law.  Such termination will be with immediate effect, without any obligation to pay any outstanding fees or make any other payment, including any losses incurred by Merchant as a result of termination under this Clause 11.4.

12.5. Books and Records: Merchant shall keep accurate and complete records of transactions related to the performance of this Agreement, in accordance with generally accepted accounting principles and applicable laws, including the FCPA. The content of these records should be sufficient to corroborate performance by Third Party or any of its subcontractors or agents in relation to this Agreement.  Merchant shall make its books and records relating to this Agreement available to Careem from time to time at its request.

12.6. Payment Details: Any payments to Merchant by Careem will be made only by transfer to a bank account in Merchant’s name in the country where the services are to be provided or where Merchant has established or maintains its principal place of business.

12.7. Report of Unlawful Conduct: In connection with this Agreement or any of the transactions contemplated hereunder, Merchant shall promptly report to Careem (i) within seven (7) business days of receiving or learning of allegations of any unlawful conduct by Merchant or by one of its shareholders, directors, officers, employees, subcontractors, or agents; (ii) within one (1) business days of learning of any actual or threatened external investigation by governmental authorities.

12.8. Cooperation in Investigation: Merchant shall fully and in a timely manner cooperate with any investigation performed by Careem into alleged breaches of this Clause 11, including responding accurately and completely to all inquiries and providing any requested documents. This may include, but is not limited to, providing access to documents and personnel.

12.9. Indemnity: Merchant shall indemnify and hold harmless Careem (as well as any of its affiliates, directors, officers, or employees) for any and all losses arising or incurred by Careem (as well as any of its affiliates, directors, officers, or employees)  as a result of any breach of this Clause 11 by the Merchant.

12.10. Damages for Breach: If Careem reasonably believes, and except to the extent that Merchant proves to the contrary, that the event giving rise to a termination under Clause 11.4 (Termination Right) also constitutes a violation of the U.S. Foreign Corrupt Practices Act or any other applicable anti-corruption law, any payments due to Merchant under this Agreement shall by automatically terminated and Merchant shall pay Careem damages valued in the amount of payments previously paid by Careem to Merchant under the Agreement.

 

  1. AUDIT RIGHT

13.1. The Merchant will allow Careem and/or any independent auditors or other professional advisers of Careem to access any of the Merchant’s premises, personnel and relevant records as may be reasonably required in order to: (i) fulfil any legally enforceable request by any regulatory body; (ii) undertake verifications of the accuracy of the Commission Percentages or identify suspected fraud; (iii) undertake verification that the Orders are being fulfilled in accordance with this Agreement; or (iv) verify the Merchant’s compliance with this Agreement.

13.2. Careem shall use its reasonable endeavours to ensure that the conduct of each audit does not unreasonably disrupt the Merchant or delay the provision of the Bookable Services.

13.3. Subject to the obligations of confidentiality, the Merchant shall provide Careem (its auditors and other advisers) with all reasonable access and assistance in relation to such audit.

13.4. Careem shall provide at least 5 days notice of its intention to conduct an audit unless such audit is conducted in respect of a suspected fraud, in which event no notice shall be required.

13.5. The Parties will bear their own costs and expenses incurred in respect of compliance with their obligations under this clause, unless the audit identifies a material default by the Merchant, in which case the Merchant shall reimburse Careem for all reasonable costs incurred in the course of the audit.

13.6. Should any audit reveal that Careem has been underpaid, the Commission Percentages shall be written up by a pro rata amount or, where the last payment has been made, the Merchant shall make a payment of such underpaid amount to Careem’s bank account.

 

  1. CHOICE OF LAW AND DISPUTE RESOLUTION

14.1. Choice of Law: This Agreement is governed by and construed in accordance with the laws of the Territory, without giving effect to any conflict of law principles, except as may be otherwise provided in supplemental terms applicable to the Merchant’s region.

14.2. Arbitration: Merchant agrees that any dispute, claim or controversy arising out of or relating to this Agreement or the Service Terms 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 Merchant 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. Merchant acknowledges and agrees that each Party is 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 Merchant 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 Merchant and Careem and/or any of its Affiliates.

14.3. Arbitration Process and Rules: Any Dispute will 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 will 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 will be resolved by one (1) arbitrator to be appointed in accordance with the ICC Rules. The place of both mediation and arbitration will be in the city in which the applicable Affiliate with which Merchant has a Dispute has its registered office. The language of the mediation and/or arbitration will be English, unless Merchant does not conduct its business in English, in which case the mediation and/or arbitration will be conducted in both English and Merchant’s 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, will remain strictly confidential and will 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

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

15.2. Claims of Copyright Infringement: Claims of copyright infringement should be sent to Careem at legal@careem.com.

15.3. Notice: Careem may give notice by means of a general notice on the Careem Platform, electronic mail to Merchant’s email address in the Merchant Account, or by written communication sent to Merchant’s address as set forth in the Service Terms. The Merchant may give notice to Careem by written communication to Careem’s email address at legal@careem.com.

15.4. The Merchant 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.

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

15.6. 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 will 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 will not be affected. In that event, the Parties will 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 Service Terms will constitute an integral part of this Agreement.

 

15.7. These Terms and Conditions, together with the Service Terms, 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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SCHEDULE A – DATA PROCESSING ADDENDUM

This Data Processing Addendum forms part of the Agreement and all further agreements executed under it. While providing Bookable Services under the Terms and Conditions, the Merchant may Process certain Personal Data. Where the Merchant Processes such Personal Data, the Parties agree to comply with the terms of this Addendum in connection with such Personal Data.

  1. DEFINITIONS

All capitalised terms not defined herein will have the meaning set forth in the Agreement.

Controller:  Careem as the legal person which, alone or jointly with others, determines the purposes and means of the Processing of Personal Data.

Data Subject: any identified or identifiable natural person from whom Personal Data is collected.

Personal Data Breach or Breach: any suspected or actual security breach leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored, or otherwise Processed.

Processor: Merchant as the legal person that processes Personal Data on behalf of a Controller.

Sub-processor: any natural or legal person engaged by Merchant only for the performance of Processing under this DPA and as specifically authorised in advance in writing by Careem.

Third Party(/ies): any company or entity other than Careem, Merchant, Data Subjects and persons who, under the direct authority of Careem or Merchant are authorised to process Personal Data. Sub-processor(s) are not considered as a Third Party.

Third-Party Country: any country, territory or specified sector within that country, outside of the Territory.

 

  1. STATUS OF THIS AGREEMENT

2.1 This DPA supplements and is incorporated into the Agreement between Careem and Merchant.

2.2 If there is an inconsistency between any of the provisions of this DPA and the provisions of the Agreement, the provisions of this DPA will prevail as between the Parties.

2.3 The consideration for this DPA consists of the mutual obligations and benefits between the Parties set out in the provisions below.

 

  1. COMPLIANCE WITH THE DATA PROTECTION LEGISLATION 

3.1 Both Parties will comply with all applicable requirements of the Data Protection Legislation.

 

  1. STATUS OF THE PARTIES

4.1 Careem acts as sole Controller in relation to the Personal Data.

4.2 If Careem requires Merchant to Process Personal Data, it will transfer the relevant Personal Data to Merchant who will act as Processor for this purpose.

 

  1. OBLIGATIONS OF THE PROCESSOR

5.1 The Service Terms describe the subject matter, duration, nature and purpose of the Processing and the Personal Data types and Data Subject categories.

 

5.2 Merchant will:

5.2.1 comply with the Data Protection Legislation in relation to its performance of the Processing, in such a way as to not expose Careem to any violation of the Data Protection Legislation;

5.2.2 process Personal Data as a Processor on behalf of and only in accordance with the written instructions of Careem (which may be specific instructions as set in the Service Terms or instructions of a general nature and which may be supplemented from time to time by further instructions) and only for the purposes determined by Careem;

5.2.3 promptly comply with any request or instruction from Careem requiring Merchant to amend, transfer, delete or otherwise process the Personal Data, or to stop, mitigate or remedy any unauthorised processing;

5.2.4 promptly inform Careem if Merchant cannot provide such compliance for whatever reason, in which case Careem reserves the right to immediately and automatically suspend any Processing;

5.2.5 not modify, amend or alter the contents of the Personal Data unless Merchant has the prior written consent of Careem;

5.2.6 upon Careem’s request, assist Careem in the fulfilment of Careem’s obligations to provide Data Subjects with any information required by law or by this DPA, to respond to requests and complaints made by the Data Subjects, to put in place appropriate security measures, to notify Personal Data Breaches to the supervisory authority and/or to Data Subjects if required, and to carry out a data protection impact assessment or to prior consult the supervisory authority where required;

5.2.7 notify Careem immediately (and no later than 24 hours) if it receives any complaint, notice or communication that relates directly or indirectly to the Processing of the Personal Data or to either party’s compliance with the Data Protection Legislation;

5.2.8 maintain a record of all categories of Processing activities carried out on behalf of Careem;

5.2.9 notify Careem promptly in writing of any request received directly from a Data Subject and not later than 24 hours after receiving such a request and provide reasonable assistance to Careem in order to respond to such Data Subject request;

5.2.10 promptly inform Careem (if lawful to do so) in writing: (i) if it receives any correspondence or request for information from a supervisory authority in relation to the Personal Data to which this DPA relates; (ii) not later than 24 hours after receiving such a correspondence or request, will provide such reasonable assistance to Careem in order to respond to such supervisory authority; and (iii) provide assistance and co-operation by supporting Careem to carry out any required risk assessments and audits of Merchant’s Processing operations; and

5.2.11 at the request of Careem, return or delete (unless applicable local law requires storage of the Personal Data) all the Personal Data and any copies thereof which it is Processing, has Processed or has had Processed on behalf of Careem.

 

  1. SECURITY AND CONFIDENTIALITY MEASURES

6.1 Merchant will take and implement the appropriate technical and organisational security and confidentiality measures to ensure the security and confidentiality of the Personal Data, and regularly update them, to ensure a level of security appropriate to the risk related the Processing of the Personal Data and to protect such data from any unauthorised or unlawful Processing, accidental loss, alteration, destruction or damage, as may be required or directed by Careem from time to time.

6.2 Merchant must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate: (i) pseudonymisation and encryption of Personal Data; (ii) ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services; (iii) ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident; (iv) process for regularly testing, assessing and evaluating the effectiveness of security measures; and (v) additional requirements communicated by Careem to Merchant.

6.3 Merchant will ensure that its authorised persons are properly trained in the Processing of Personal Data and only have access to the Personal Data on a need-to-know basis subject to an obligation of confidentiality. Merchant will also take steps to ensure that its authorised persons do not process the Personal Data except on instructions from Careem, unless Merchant is required to do so by Data Protection Legislation.

 

  1. SUB-PROCESSORS

Merchant will not disclose or permit the disclosure of Personal Data to any Third Party, and/or will not subcontract the whole or part of the Processing to any Third Party, unless Merchant has the prior written  consent of Careem. Where Merchant is authorised by Careem to subcontract the whole or part of the Processing, Merchant will enter into a contract with the Sub-processor whereby Merchant will require the Sub-processor to comply with obligations no less onerous than Merchant obligations under this DPA. In particular, the Sub-processor will provide sufficient guarantees to implement appropriate technical and organizational security and confidentiality measures. Such sub-processing will not release Merchant from its responsibility for its obligations under this DPA. Merchant will be responsible for the work and activities of such Sub-processors, and Merchant will be held liable for the acts and omissions of any Sub-processor(s) to the same extent as if the acts or omissions were performed by Merchant.

 

  1. PERSONAL DATA BREACH

8.1 In the event of a Personal Data Breach arising during the Processing of the Personal Data by Merchant, Merchant will:

8.1.1 notify Careem in writing about the Personal Data Breach within 24 hours of becoming aware of it, and provide information about: (a) the nature of the Breach including where possible the categories and approximate number of Data Subjects concerned, and the categories and approximate number of Personal Data records concerned; (b) the name and contact details of the data protection officer or other contact point where more information can be obtained; (c) the likely consequences of the Breach; and (d) the measures taken or proposed to be taken to address the Breach including, where appropriate, measures to mitigate its possible adverse effects.

8.1.2 after investigating the causes of such a Personal Data Breach, take such actions as may be necessary or reasonably expected by Careem to minimise the effects of any Breach;

8.1.3 take all actions as may be required by the Data Protection Legislation and more generally provide Careem with reasonable assistance in relation to Careem’s obligations to notify the Breach to the supervisory authority and to the Data Subjects as the case may be;

8.1.4 maintain any records of information relating to the breach, including the results of its own investigations and authorities’ investigations;

8.1.5 cooperate with Careem and take all measures as necessary to prevent future Breaches from occurring.

 

8.2 Merchant will not inform any Third Party or Data Subject of any Personal Data Breach without first obtaining Careem’s prior written consent, except when required to do so by law.

8.3 Merchant agrees that Careem has the sole right to determine: (a) whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in Careem’s discretion, including the contents and delivery method of the notice; and (b) whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.

 

  1. EVIDENCE AND AUDIT RIGHTS

9.1 Merchant will provide, upon the request of Careem, all information necessary to demonstrate compliance with the obligations laid down in this DPA.

9.2 Upon reasonable notice to Merchant, Careem may audit Merchant’s compliance with its obligations under this DPA and/or the Data Protection Legislation. Merchant will allow for, contribute to and help Careem (or a third party mandated by Careem) with the aforementioned audit. Merchant will give Careem (or a third party mandated by Careem) access to its facilities, offices, and any information necessary for Careem to evaluate Merchant’s compliance.

 

  1. TERM AND TERMINATION

10.1 This DPA will remain in full force and effect, so long as: (a) the Merchant is processing Personal Data to provide Services pursuant to the Agreement, or the (b) Merchant retains any Personal Data relating to the Agreement as provided in the Data Retention Period set in Service Terms.

10.2 Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Agreement in order to protect Personal Data will remain in full force and effect.