Uber for Business General Terms and Conditions - Australia

As of 1 March 2021
The company identified within this sign-up page (“Company”) hereby accepts and agrees to these Uber for Business General Terms and Conditions ("General Terms") which constitutes a legally binding agreement by and between Company and Uber Pacific Pty Ltd, an Australian company registered in New South Wales (ABN 96 622 366 116), registered at PKF Lawler Level 8, 1 O’Connell Street, Sydney NSW 2000, Australia (“Uber"). These General Terms set forth the terms and conditions under which Company may establish a corporate account (“Corporate Account”), which an Uber Affiliate makes available to Company through the Dashboard in connection with one or more U4B Product/s, as set forth herein. Company’s access to and use of the Dashboard in connection with any U4B Product is subject to these General Terms and each applicable Product Addendum, as may be modified or updated by Uber from time to time, effective upon posting an updated version of these General Terms and/or the applicable Product Addendum on the Uber website. Uber will provide Company with notice of any such modifications or updates via email and/or through the Dashboard. Company is responsible for updating contact information through the Dashboard and regularly reviewing the Dashboard, General Terms and any applicable Product Addendum for updates and information from Uber. Continued use of the Uber Service or any U4B Product after any such modifications or updates shall constitute Company’s consent to such changes. Capitalised terms used but not otherwise defined herein shall have meaning ascribed to such terms in the applicable Product Addendum.
1. Definitions. The following terms shall have the meanings set forth below: “Affiliate” means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest, the majority of the voting rights of such entity, the ability of such entity to ensure that the activities and business of that affiliate are conducted in accordance with the wishes of that entity or the right to receive the majority of the income of that affiliate on any distribution by it of all of its income or the majority of its assets on a winding up of Company. “Australian Consumer Law” means Schedule 2 of the Competition and Consumer Act 2010 (Cth). “Authorised User” means an individual authorised to use and link to the Corporate Account, or any individual that is authorised to use the Uber Service in connection with the Corporate Account, as such term is used in the applicable Product Addendum. "Consumer Guarantees" means the guarantees that apply under the Australian Consumer Law to the supply of goods or services to consumers, as defined therein. “Data Protection Law” means all laws and regulations applicable to the Personal Data under the Agreement, including, but not limited to, as applicable under the Privacy Act 1988 (Cth). “Data Subject” is the identified or identifiable natural person the Personal Data is relating to. “End User Terms” means the Uber B.V. - Terms and Conditions and, where applicable, the Portier Pacific Pty Ltd - Terms and Conditions for Uber Delivery, available at www.uber.com/legal/en, as may be updated from time to time. “GST" has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth). “Linking Data” means (i) full name, (ii) Company-issued email address, and (iii) other information the parties may mutually agree upon provided by Company to Uber. “Personal Data” means any information in connection with this Agreement that can reasonably be used to identify an individual, or that may otherwise be considered personal data. “Process or Processing” means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. “Service Fee” means the service fees applicable to User Charges and/or Company’s use of the Uber Service, if any, as set forth in a Product Addendum or otherwise agreed to between Uber and Company. “Uber App” means a website, application or other technology interface to request ground transportation, as may be updated from time to time. “Uber Eats App” means a website, application or other technology interface to purchase items and (if applicable) delivery services, as may be updated from time to time. “Uber for Business (U4B)” means the suite of enterprise products made available by an Uber Affiliate, which allow business customers to access the Uber Service for business purposes. “Uber Personal Data” means any Personal Data or any information which may be considered “personal data” or “personal information” under applicable law that Uber and its Affiliates provide to Company in connection with the Agreement. For the avoidance of doubt, Uber Personal Data shall include Dashboard Data, regardless of whether it is provided to Company via the Dashboard or otherwise. “Uber Service” means a technology service provided by Uber and its Affiliates that, when used in conjunction with the Uber App, Uber Eats App or Dashboard (as applicable) enables users to request ground transportation services or request the purchase of items from independent third party providers and (if applicable) delivery services from an Uber Affiliate or independent third party provider (as applicable), as described in the End User Terms. “User Charges” means charges incurred by Authorised Users or Administrators to independent third party providers or certain Uber Affiliate, as may be the case, for transportation services, delivery services or items that are obtained through the use of the Uber Service, (including any applicable tolls, foreign transaction fees, taxes, and any other fees or charges that may be due for a particular use of the Uber Service) and are authorised by the Company to be paid on behalf of an Authorised User or Administrator through the Company Account.
2. U4B Products; Incorporation
2.1. In connection with the Company's acceptance of these General Terms, Company may also elect to utilise one or more of the following U4B products: U4B Travel, U4B Eats, Uber Central, Uber Vouchers and any other product that may be offered by U4B (each, a “U4B Product”). Company may elect to utilise a U4B Product when creating a Corporate Account or at any time during the Term. By electing to use a U4B Product, Company agrees to accept the relevant additional U4B Product terms for such U4B Product (each, a “Product Addendum”), available at www.uber.com/legal/en.
2.2. Company’s election to utilise a particular U4B Product neither obligates nor restricts Company from utilising any other U4B Product. Any Product Addendum accepted and agreed to by Company is hereby expressly incorporated herein and constitutes part of these General Terms (these General Terms and any such Product Addenda, collectively, the “Agreement”). All references to Authorised User(s) in these General Terms shall apply only if Company has agreed to the Product Addendum for Travel or the Product Addendum for Uber Eats.
3. Term and Termination. This Agreement shall commence upon Company’s acceptance of the Agreement and shall remain in effect until terminated as set forth herein (the “Term”). Either party may terminate this Agreement or any Product Addendum with or without cause upon five (5) days’ advance written notice to the other party. Termination of one Product Addendum shall not terminate any other Product Addendum then in effect. All Product Addenda shall automatically terminate upon the termination of these General Terms. All outstanding payment obligations and sections 2, 5 and 8-12 of these General Terms shall survive termination.
4. Account Administration
4.1. Dashboard and Access to Uber for Business Products. Upon execution of this Agreement, Uber will establish Company’s Corporate Account that will enable Company to access the browser-based online dashboard for U4B owned and developed by an Uber Affiliate, which includes access to each U4B Product that a Company has agreed to utilise through the applicable Product Addendum (“Dashboard”). Uber’s contact with Company shall be by way of any individual representative designated by Company as an administrator through the Dashboard (“Administrator”). In addition to the Dashboard features described in an applicable Product Addendum, the Dashboard will enable Company to (a) view each U4B Product Company has accepted and agreed to utilise through a Product Addendum; (b) view detailed trip or other service information, which may include, depending on the U4B Products being used, without limitation, Authorised Users’ name together with status, distance, duration, fare amount, service type, trip ID, restaurant name, delivery address, delivery time, User Charges, expense memo, and driver data (e.g. first name, telephone number, vehicle and license plate) (“Dashboard Data”); (c) prepare and review activity reports using such Dashboard Data; (d) add and remove Administrators; (e) manage and update the Company credit card on file; (f) review and manage payment statements; and (g) settle outstanding balances on the Corporate Account. Uber and its Affiliate reserve the right to add, remove and update features and functionality of the Dashboard at any time. Uber and its Affiliate agree to use commercially reasonable efforts to provide the Dashboard to Company as set forth herein.
4.2. Administration. Company may appoint additional Administrators at its discretion. Company agrees to (a) maintain all Dashboard login credentials in confidence; (b) only permit an authorised Administrator to access the Dashboard; and (c) update as necessary all information of the Administrator/s and Authorised User/s to ensure that it is current, accurate, and complete. Company shall be responsible for all activity that occurs under its Dashboard login credentials.
4.3. Authorised User and Administrator Updates. It is Company’s sole responsibility to keep and maintain an accurate list of current Authorised Users and Administrators authorised to bill User Charges to the Corporate Account for each separate U4B Product. Uber may review the current list of Authorised Users and Administrators, as may be the case, from time to time via the Dashboard to maintain and support the Uber Service and to ensure compliance with this Agreement.
4.4. Responsibility for User Activity. Company agrees that (a) Company is responsible for all User Charges incurred by Authorised Users and Administrators via the Corporate Account, regardless of whether or not such User Charge was authorised by Company; and (b) User Charges are described in the End User Terms and will be charged in accordance with those terms, as amended from time to time. Company is aware that User Charges will depend on various factors and may increase during periods of high demand, as described in the End User Terms. Further, Company agrees that Uber shall not be responsible for User Charges incurred by an Authorised User or Administrator, as may be the case, after Company has attempted removal of such Authorised User or Administrator from the Corporate Account to the extent Company provides incomplete or inaccurate Authorised User or Administrator removal information via the Dashboard. Finally, as between Company and Uber, Company shall be responsible for the User Charges incurred due to fraudulent or other unpermitted activity on the part of an Authorised User’s or Administrator’s use of the Corporate Account to access the Uber Service. Company shall notify Uber promptly upon discovery of fraudulent or unpermitted activity occurring on the Corporate Account.
4.5. Restrictions. Company agrees to use the Corporate Account and Dashboard solely as set forth in this Agreement. Company shall not, and shall not authorise others to (a) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the Dashboard, Uber Service, Uber App or Uber Eats App, except to the extent allowed by applicable law; (b) sublicense, lease, rent, sell, give, or otherwise transfer or provide the Uber Service, Uber App or Uber Eats App to any unaffiliated third party; (c) upcharge, increase or otherwise modify the User Charges for any usage of the Uber Service; or (d) impose any additional fees or charges on an Authorised User or Administrator related to use of the Dashboard or Uber Service. Uber and/or its Affiliates reserve all rights not expressly granted to Company or a third party, including Authorised Users and Administrators, under this Agreement.
5. Fees and Monthly Billing
5.1. User Charges and Service Fees. User Charges and Service Fees applicable for each U4B Product shall be as set forth in the applicable Product Addendum.
5.2. Billing Options
5.2.1. Monthly Billing. Subject to the terms and conditions of each applicable Product Addendum, Uber may, in its sole discretion, elect to qualify Company to receive, and Company may then elect to pay for, User Charges and Service Fees on a monthly basis incurred in connection with the applicable U4B Product (“Monthly Billing”). If Company participates in Monthly Billing, Uber will bill Company Service Fees and User Charges for the applicable U4B Products monthly (each, a “Monthly Statement”). All fees under each Monthly Statement shall become due and payable upon the issuance of such Monthly Statement.
5.2.2. Non-Monthly Billing. If Company does not participate in Monthly Billing, User Charges and Service Fees will be paid in accordance with the applicable Product Addendum.
5.3. Taxes. Unless otherwise indicated on a receipt, all Service Fees and User Charges, each to the extent applicable, are exclusive of applicable taxes, and Company agrees to be responsible for the payment of any such taxes assessed on such Service Fees and User Charges, including, but not limited to, all sales, use, GST or similar taxes, except for taxes based on Uber’s income.
5.4. Currency. All payments shall be processed in the local currency applicable to the geography of the Authorised User’s applicable ride or Administrator’s use of the Dashboard except in certain instances when Uber may process foreign transactions in United States dollars.
5.5. Payments. All payments are nonrefundable except as expressly provided otherwise in this Agreement, or required by the Australian Consumer Law for a failure to comply with the Consumer Guarantees. Nothing in this section is intended to override rights to a refund under the End User Terms, as applicable from time to time.
5.6. Costs of performance. Each party shall be responsible for its costs and expenses associated with its performance under this Agreement.
6. Proprietary Rights
6.1. License to Marks; Restrictions. The term “Marks” shall mean the trademarks, service marks, trade names, logos, slogans and other identifying symbols and indicia of Company (“Licensor”). Company hereby grants Uber (“Licensee”), solely during the Term, a limited, non-exclusive, non-transferable, non-assignable license for no fee, without the right to sublicense, to use and display the Licensor’s Marks for the purposes of the provision of the Uber Service to Company. All use of a Licensor’s Marks by Licensee will be in the form and format approved by Licensor, and Licensee will not otherwise use or modify Licensor’s Marks without Licensor’s prior written consent. All goodwill related to Licensee’s use of Licensor’s Marks shall inure solely to the benefit of Licensor. Marks will at all times remain the exclusive property of Licensor. Except as expressly set forth herein, Licensor does not, and shall not be deemed to, grant Licensee any license or rights under any intellectual property or other proprietary rights. All rights not granted herein are expressly reserved by Licensor.
6.2. Company is granted a personal, non-exclusive, non-transferable, non-sublicensable right for no fee, by an Uber Affiliate to access and use the Dashboard in connection with the Company’s Corporate Account for the sole purpose of utilising one or more U4B Products.
6.3. No Development. EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between Uber and Company prior to the commencement of any such activities.
6.4. Ownership. Uber and its Affiliates are and shall remain the owners of all right, title and interest in and to the Dashboard, Uber Service, Uber App, Uber Eats App, and Uber Personal Data including any updates, enhancements and new versions thereof, all data related to the use of the Dashboard and Uber Services, and all related documentation and materials provided or made available to Company or any proposed or current Authorised User or Administrator in connection with this Agreement.
6.5. No Publicity. Other than as expressly set forth herein, neither party may use or reference the other party’s Marks in a press release or otherwise without the prior consent of such other party in each instance.
7. Confidentiality. “Confidential Information” means any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with the Agreement, whether orally or in physical form. However, Confidential Information shall not include information (a) previously known by Receiving Party without an obligation of confidentiality; (b) acquired by Receiving Party from a third party which was not, to Receiving Party's knowledge, under an obligation of confidentiality; (c) that is or becomes publicly available through no fault of Receiving Party; or (d) that Disclosing Party provides written permission to Receiving Party to disclose, but only to the extent of such permitted disclosure. Receiving Party agrees that (i) it will use Confidential Information solely for the purposes permitted under this Agreement and (ii) it will not disclose the Confidential Information to any third party other than Receiving Party’s employees or agents who are bound by obligations of nondisclosure and restricted use at least as strict as those contained herein. In the event Receiving Party receives a subpoena, administrative or judicial order, or any other request for disclosure of any Confidential Information of Disclosing Party, Receiving Party will give Disclosing Party prompt written notice of such subpoena, order or request and allow Disclosing Party to assert any available defences to disclosure. Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event using less than a reasonable standard of care.
8. Privacy and Data Security
8.1. Compliance with Data Protection Laws. Each party shall comply with the obligations applicable to it under the Data Protection Law with respect to the Processing of Personal Data.
8.2. Restrictions. Company agrees that any Dashboard Data obtained in connection with this Agreement shall be used (a) solely for administrative purposes, to manage access control and for activity review purposes, or in connection with the use of the Uber Service, and for no other purpose, unless expressly authorised in writing by Uber; and (b) in accordance with the purposes communicated to the Data Subjects. Company shall not use Dashboard Data in any way that harms Uber or its Affiliates or that benefits a competitor of Uber or its Affiliates. Company agrees that it shall not disclose Dashboard Data to any third parties, except as necessary for the purposes set forth herein. Company shall not rent or sell Dashboard Data for any purpose.
8.3. Security. Company shall implement appropriate technical and organisational measures to protect Dashboard Data against unauthorised or unlawful Processing and against unauthorised loss, destruction, damage, alteration, or disclosure, as well as any breach of Company’s security measures (“Information Security Incident”).
8.4. Notification. Company shall promptly notify Uber in the event that Company learns or has reason to believe that an Information Security Incident has occurred in relation to Dashboard Data. This notification includes at least (a) the nature of the breach of security measures; (b) the potentially compromised Personal Data and Data Subjects; (c) the duration and expected consequences of the Information Security Incident; and (d) any mitigation or remediation measures taken or planned in response to the Information Security Incident. Upon any such discovery, Company shall (i) take all reasonable steps to investigate, remediate, and mitigate the effects of the Information Security Incident; and (ii) provide Uber with assurances reasonably satisfactory to Uber that such Information Security Incident will not recur. Additionally, if and to the extent any Information Security Incident occurs as a result of an act or omission of Company, and if Uber determines that notices (whether in Uber’s or Company’s name) or other remedial measures are warranted, Company shall, at Uber’s request and at Company’s cost and expense, undertake the aforementioned remedial actions.
8.5. Product Addenda. The specific privacy and data provisions for each U4B Product are included in the applicable Product Addendum.
9. Warranties; Disclaimer
9.1. Mutual Warranties. Each party hereby represents and warrants that (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) such party’s acceptance of this Agreement, as well as such party’s performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which such party is a party; and (c) it is duly organised, validly existing and in good standing under the laws of the jurisdiction of its origin.
9.2. Company Warranties. Company represents and warrants that (a) Company has all rights and consents, where necessary, to provide Uber and its Affiliates with the Linking Data and any other information provided to Uber and its Affiliates hereunder; (b) Company will use Dashboard Data solely for legitimate business purposes including business expense, processing, accounting, and budgeting purposes; (c) Company is in compliance and shall remain in compliance during the Term, with all applicable local, city, state, federal, national, and international laws, rules and regulations, including those relating to data protection, privacy, identity theft, data breach, consumer protection, and data security, and any applicable industry standards relating to privacy and data security; (d) Company will only share and provide access to Dashboard Data to Company personnel who have a business need to access such Dashboard Data; (e) Company will not disclose Dashboard Data to any third party, unless expressly authorised in writing by Uber, and who are in each case bound by privacy and security obligations regarding Uber Personal Data at least as restrictive as those contained herein; (f) Company will not rent or sell Dashboard Data for any purpose not authorised by Uber and its Affiliates; (g) Company will not use Dashboard Data in any way that harms Uber and its Affiliates or benefits a competitor of Uber and its Affiliates; and (h) Company’s Marks as may be provided to Uber pursuant to this Agreement will not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party. Company hereby represents that the individual clicking to accept these General Terms is authorised by Company to bind, and does hereby bind, Company to the terms hereof.
9.3. Disclaimer. CERTAIN LEGISLATION, INCLUDING THE AUSTRALIAN CONSUMER LAW MAY IMPLY WARRANTIES OR CONDITIONS OR IMPOSE OBLIGATIONS WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED EXCEPT TO A LIMITED EXTENT. THESE TERMS MUST IN ALL CASES BE READ SUBJECT TO THESE STATUTORY PROVISIONS. EXCEPT AS REQUIRED BY UBER UNDER THE CONSUMER GUARANTEES OR EXPRESSLY PROVIDED HEREIN (A) UBER AND/OR ITS AFFILIATES PROVIDES THE UBER SERVICE, UBER EATS SERVICE, UBER APP AND UBER EATS APP “AS IS” AND WITHOUT WARRANTY; AND (B) UBER AND/OR ITS AFFILIATES DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE DASHBOARD, UBER SERVICE, UBER EATS SERVICE, UBER APP AND UBER EATS APP WILL MEET COMPANY’S REQUIREMENTS OR THAT THE OPERATION OF THE DASHBOARD, UBER SERVICE, UBER EATS SERVICE, UBER APP OR UBER EATS APP WILL BE UNINTERRUPTED OR ERROR FREE. TO THE EXTENT PERMITTED BY LAW (INCLUDING THE CONSUMER GUARANTEES PROVISIONS IN THE AUSTRALIAN CONSUMER LAW) UBER AND/OR ITS AFFILIATES HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (i) ANY IMPLIED OR STATUTORY WARRANTIES COVERING THE DASHBOARD, UBER SERVICE, UBER EATS SERVICE, UBER APP OR UBER EATS APP; AND (ii) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. COMPANY ACKNOWLEDGES AND AGREES THAT THE UBER SERVICE IS A TECHNOLOGY SERVICE THAT ENABLES ACCESS TO REQUEST ON-DEMAND GROUND TRANSPORTATION AND THE UBER EATS SERVICE IS A TECHNOLOGY SERVICE THAT ENABLES USERS TO REQUEST THE PURCHASE OF ITEMS PROVIDED BY INDEPENDENT THIRD PARTY PROVIDERS AND/OR TO REQUEST DELIVERY SERVICES FROM AN UBER AFFILIATE OR INDEPENDENT THIRD PARTY PROVIDER (AS APPLICABLE) WHERE SET OUT IN APPLICABLE END USER TERMS. UBER IS NOT A TRANSPORTATION PROVIDER, PROVIDER OF ITEMS OR A DELIVERY PROVIDER, BUT AN UBER AFFILIATE MAY PROVIDE DELIVERY SERVICES, WHERE SET OUT IN APPLICABLE END USER TERMS. EXCEPT AS REQUIRED BY UBER AND/OR ITS AFFILIATES UNDER THE CONSUMER GUARANTEES OR EXPRESSLY PROVIDED HEREIN OR IN APPLICABLE END USER TERMS, UBER AND/OR ITS AFFILIATES DO NOT GUARANTEE AVAILABILITY OF TRANSPORTATION SERVICES, DELIVERY SERVICES OR ITEMS, ON TIME ARRIVALS OR DEPARTURES THEREOF, OR ANY OTHER SERVICE LEVELS RELATED TO INDEPENDENT TRANSPORTATION, DELIVERY SERVICES OR ITEMS THAT MAY BE OBTAINED VIA THE UBER SERVICE AND UBER EATS SERVICE.
9.4. Statutory rights. THE LIMITATIONS AND DISCLAIMER IN THIS SECTION 9 DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW, INCLUDING THE AUSTRALIAN CONSUMER LAW.
10. Indemnification
10.1. Company (the “Indemnifying Party”) will indemnify, defend and hold harmless Uber (the “Indemnified Party”), its Affiliates and their respective directors, officers, employees, agents, successors and assigns against all claims, damages, losses and expenses (including reasonable outside attorney fees) with respect to any third party claim arising out of or related to (a) a breach (or claim that, if true, would be a breach) of any of the Indemnifying Party’s representations or warranties in this Agreement or any Product Addendum; or (b) the infringement of a third party’s intellectual property rights by the Indemnifying Party’s Marks, but only if such Marks have been used by the Indemnified Party in the manner approved by the Indemnifying Party (“Losses”).
10.2. The Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defence of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defence of a claim, at Indemnifying Party’s expense.
10.3. Company’s liability under this section 10 shall be reduced proportionately if, and to the extent that, Uber directly caused or contributed to any such Losses.
11. Limits of Liability
11.1. IF COMPANY IS ACQUIRING THE GOODS OR SERVICES AS A CONSUMER AS DEFINED IN THE AUSTRALIAN CONSUMER LAW, TO THE EXTENT PERMITTED BY LAW, UBER’S LIABILITY FOR A FAILURE TO COMPLY WITH A CONSUMER GUARANTEE IS LIMITED TO, AT UBER'S OPTION: (A) IN THE CASE OF GOODS SUPPLIED TO COMPANY AS PART OF THE SERVICES UNDER THIS AGREEMENT, THE REPLACEMENT OF THE RELEVANT GOODS OR THE REPAIR OF THE GOODS, OR THE PAYMENT OF THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS; AND (B) IN THE CASE OF SERVICES SUPPLIED TO COMPANY AS PART OF THE SERVICES UNDER THIS AGREEMENT, THE SUPPLY OF THE RELEVANT SERVICES AGAIN, OR THE PAYMENT OF THE COST OF RESUPPLYING THE SERVICES.
11.2. UBER’S LIABILITY TO COMPANY FOR A BREACH OF ANY CONDITION, WARRANTY OR TERM OF THIS AGREEMENT THAT IS NOT A BREACH OF A CONSUMER GUARANTEE IS LIMITED IN THE FOLLOWING WAY: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (OTHER THAN WITH RESPECT TO (A) A PARTY’S INDEMNIFICATION OBLIGATIONS; (B) DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 7 HEREIN; OR (C) DAMAGES ARISING FROM EITHER PARTY’S BREACH OF THE REPRESENTATIONS OR WARRANTIES SET FORTH IN SECTION 9 HEREIN) (i) IN NO EVENT SHALL UBER OR COMPANY BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF BUSINESS OR PROFITS, SUFFERED BY THE OTHER PARTY OR ANY THIRD PARTY COLLECTIVELY ARISING OUT OF THIS AGREEMENT, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF UBER OR COMPANY (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) IN NO EVENT SHALL EITHER PARTY BE LIABLE COLLECTIVELY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES IN AN AMOUNT EXCEEDING THE GREATER OF (X) FIFTY THOUSAND AUSTRALIAN DOLLARS (AUD $50,000), AND (Y) THE TOTAL AMOUNTS PAID OR PAYABLE BY COMPANY TO UBER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT THAT GAVE RISE TO THE LIABILITY.
12. General
12.1. This Agreement shall be governed by and construed in accordance with the laws of New South Wales, excluding its rules on conflicts of laws. The Vienna Convention on the International Sale of Goods of 1980 (CISG) shall not apply. Any dispute, controversy, or any claim arising out of or relating to this Agreement, or the interpretation, enforceability, performance, breach, termination or validity thereof, including, without limitation, this arbitration section, must be solely and finally settled by confidential arbitration in Sydney, Australia, in accordance with the Commercial Arbitration Act 2010 (NSW). An award rendered in connection with arbitration pursuant to this section shall be final and binding upon the parties, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. No provision of this subsection limits the rights of a party to this Agreement to obtain provisional, injunctive, or ancillary remedies from a court of competent jurisdiction before, after or during the pendency of any arbitration.
12.2. If Company is acquiring the Uber Service or U4B Products for use in the United States of America, neither party has the right to arbitrate on a class action basis any dispute, controversy, or claim arising out of or relating to this Agreement, or the interpretation, enforceability, performance, breach, termination, or validity thereof, including, without limitation, this arbitration section.
12.3. Any notice required or permitted to be delivered to Company by this Agreement shall be posted to the Dashboard. Any notice required or permitted to be delivered to Uber by this Agreement shall be submitted via [email protected].
12.4. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
12.5. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) shall remain in full force and effect. Any delay in or failure by either party in performance of this Agreement shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labour disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimise any resulting delay in or interference with the performance of its obligations under the Agreement.
12.6. This Agreement may not be assigned, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon notice to the other party, to (a) an Affiliate of such party; or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns.
12.7. Nothing in this Agreement shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties, and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate agreement, executed by an authorised representative of the other party.
12.8. Each party shall be responsible for the payment of its own tax liability arising from these General Terms or any Product Addendum.
12.9. Company represents and warrants that neither it nor any of its employees, agents or representatives has offered or shall offer any gratuity to Uber's employees, agents or representatives with a view toward securing a contract or securing favourable treatment related to U4B or the Uber Service. Company represents that it is aware that it is illegal under the United States Foreign Corrupt Practices Act ("FCPA") to give, offer, promise or authorise giving anything of value to any government official or political party in an effort to win or retain business or secure any improper advantage. Company will not take any action that, if done by an American citizen, would be a violation of the FCPA. Company further represents that it currently has no relationship with an employee of Uber that would constitute a conflict of interest and that Company shall not engage in any activity during the Term that may present such a conflict of interest.