Nippy Dish Merchant Terms and Conditions
BY (1) CLICKING A BOX INDICATING MERCHANT’S ACCEPTANCE OF THESE TERMS, OR (2) EXECUTING AN ORDER FORM OR RELATED AGREEMENT THAT REFERENCES THESE TERMS, MERCHANT HEREBY ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “MERCHANT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES DESCRIBED HEREIN.
SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT SHALL GOVERN ANY CLAIMS THAT THE PARTIES MAY HAVE AGAINST EACH OTHER, INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.
2.1 Items and Services.
Portier and its affiliates make available certain proprietary technology services that facilitate the marketing, sale, and fulfillment of orders for items (“Items”) from Merchant to Customers (as defined below), including on-demand lead generation, order processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (the “Services”).
The definition of Items shall include Alcohol Items as applicable and referenced within the Agreement. If any conflict between these Terms and the Alcohol Terms, the Alcohol Terms shall govern with respect to Alcoholic Items and these Terms shall govern with respect to Items.
2.2 Additional Tools.
In connection with the Services, Portier and its affiliates may also make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Services (collectively, the “Tools”), which may include Portier’s and its affiliates’ proprietary technology platform, through which Merchant may, among other things, receive, accept and fulfill requests for Items from Customers and receive insights and analytics regarding Merchant’s performance and history using the Services.
The Tools may include functionality for Merchant to obtain Sponsored Listing placements. Such Sponsored Listings are governed by the terms located here.
2.3 The Application(s).
Portier and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase Items from Merchant and request delivery services for said Items from Delivery People (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers (the “App(s)”). Delivery People are independent contractors, and as such, they reserve the right to refuse to accept any Item in their sole discretion.
2.4 Sales Channels.
Merchant may request access to sell and deliver Items via various services provided by Portier: Full Service, Pick-Up, and Merchant Managed Delivery (each, a “Sales Channel” described in more detail below). By electing to use a Sales Channel, Merchant agrees to accept any relevant Sales Channel Addenda as follows:
- i) FULL SERVICE (ALSO REFERRED TO AS MARKETPLACE): Merchant may sell Items through the “Full Service Sales Channel,” whereby Merchant’s Items are presented in the App(s) to Customers who access and request on-demand delivery services provided by Delivery People as defined herein.
- ii) PICK-UP: Merchant may sell Items through the “Pick-Up Sales Channel,” whereby Merchant’s Items are presented on the App(s) to Customers for pick-up at Merchant’s Location (i.e., without the use of a Delivery Person). For the avoidance of doubt, the provisions relating to Delivery People in the Terms will not apply to the sale of Items through this Pick-Up Sales Channel.
iii) MERCHANT MANAGED DELIVERY: Merchant may sell Items through the “Merchant Managed Delivery Channel,” whereby Merchant’s Items are presented on the App(s) to Customers who access and request on-demand delivery services provided by Merchant Managed Delivery Staff (i.e., employees, contractors, workers or agents of Merchant who provide delivery services on Merchant’s behalf, arranged independently of Portier). Additional Merchant Managed Delivery Sales Channel Addendum terms apply.
3. PORTIER OBLIGATIONS.
3.1 Access to Services.
Subject to the terms and conditions of this Agreement, Portier and its affiliates may make available the applicable Services to Merchant, solely for use by Merchant at locations that are owned and operated by Merchant (each, a “Location”). Merchant shall provide Portier current and accurate Location information throughout the Term of this Agreement. In connection with the provision of Services to Merchant, Portier and its affiliates, on behalf of Merchant, may respond to complaints by end users of the App(s) (“Customers”) about Items sold by Merchant via the App(s). In addition, Portier may make available certain Tools to Merchant, and Merchant may access and use those Tools solely in connection with Merchant’s use of the Services. For the avoidance of doubt, as between Merchant and Portier, Portier will retain sole control over the App(s) (and all elements of the Customer experience and interface relating to the App(s)), including: (i) the personalization of the App(s) for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) the order fees charged to Customers for the delivery services provided by Delivery People; and (v) adding, removing or otherwise modifying any feature or functionality made available through the App(s) to optimize reliability or efficiency on the App(s).
3.2 Technology, Not Delivery, Services.
Merchant agrees neither Portier nor its affiliates provide any delivery services. Rather, Portier provides technology services that both (i) enable Merchant to connect with Customers who may purchase Items from Merchant and (ii) enable Delivery People to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services. Delivery People perform their delivery services for (and are paid by) the Customers, and not Merchant. “Delivery Person” is defined as an independent contractor that intends to seek, receive and fulfill on-demand requests for delivery services using Portier’s proprietary technology under license from Portier or its affiliates.
4. MERCHANT OBLIGATIONS.
4.1 Availability of Items.
Merchant will make Items available for purchase through the App(s) (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Merchant will prepare, handle, store, label and package all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”) and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of Alcohol Items (“Alcohol Safety Standards”). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If Merchant fails to prepare or supply Items in accordance with Food or Alcohol Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), Portier may, in its sole discretion, remove such Item from the App(s). Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the App(s). Merchant represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the App(s) is, and at all times will remain, accurate. In addition, Merchant will ensure that the contents of its menu includes each Items Criteria (including any notifications about ingredients, nutritional information, allergen information, alcoholic content (if applicable), etc.) are accurate and comply with all applicable laws and regulations.
4.2 Item Responsibility.
Merchant shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Merchant’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Merchant’s internal standards. Portier may, in its sole discretion, deduct reimbursement costs from the payment Portier remits to Merchant in accordance with this Section 4. The current policy for refunds and Substandard Items is located here: http://t.Nippy Dish.com/ordererrorsguide. Merchant agrees that neither Portier nor the Delivery Person takes title to any Item at any time.
If Portier supplies a tablet or other mobile device (“Device”) to Merchant to use in connection with the availability of Items via the App(s), Merchant agrees that: (i) Device(s) may only be used for the purpose of accepting orders via the App(s), and (ii) Device(s) may not be transferred, loaned, sold or otherwise provided in any manner to any third party. Devices(s) will at all times remain the property of Portier and/or its affiliates, and upon expiration or termination of the Agreement, or the extended absence of all of Merchant’s location(s) from the App(s) for longer than forty-five (45) days, Merchant will return all applicable Device(s) to Portier within ten (10) days. If Merchant receives a wireless data plan for the Device, Portier may charge a weekly reimbursement to Merchant for the costs associated with the wireless data plan of each applicable Device. Merchant agrees that the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear, may result in a fee (“Damage Fee”). Merchant agrees that Portier may deduct the reimbursement or Damage Fee from the Item Revenue prior to remittance of such Item Revenue to Merchant.
4.4 Third Party Services.
If Merchant uses a third-party service to: 1) access the Services and Tools; or 2) transmit information to Portier (a “Third Party Access Service”), Merchant agrees that Merchant’s obligations described herein shall apply to Merchants’s use of the Services and Tools via any Third Party Access Service unless otherwise agreed to between Portier and Merchant. Merchant agrees that failure by a Third Party Access Service to transmit accurate information such as Retail Price, Item descriptions, or Additional Information (as defined herein) to Portier shall not waive, suspend, or otherwise affect Merchant’s obligations described herein. Merchant remains solely responsible for the accuracy of information provided to Portier through any Third Party Access Service. Additionally, ongoing access to the Services and Tools via any Third Party Access Services is subject to Portier’s agreement with such Third Party.
4.5 Use Restrictions.
In connection with the access to and use of the Services and Tools, Merchant will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Tools or Services (except as otherwise authorized by Portier); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency. Merchant will not (and will not allow any third party to) use the Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the App(s) (collectively, “Nippy Dish Data”) to directly or indirectly compete with Portier or its affiliates or the Services, including, without limitation, Nippy Dish Data that Merchant receives from Portier by way of a Third Party Access Service.
4.6 Item Restrictions.
The following restricted Items may not be featured or sold via the App(s): people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, items containing endangered species or any items that Merchant does not have permission to offer. Portier may remove from—or otherwise limit your ability to post to—a Merchant’s menu any Items Portier deems prohibited or inappropriate in its sole discretion. For clarity, alcohol is only permitted on the App(s) if Merchant has agreed to Portier’s separate Alcohol Order Form for specified States and through specific Sales Channels.
Portier may restrict the sale of Items via the App(s) based on physical attributes of such Items (e.g., weight (per Item or in aggregate), height, shape, or appropriateness for delivery).
For the sale of Items via the Pick-Up and Merchant Managed Delivery Sales Channels, unless otherwise selected by Merchant, Merchant agrees to allow Customers to provide gratuities through the App(s). Portier shall remit to Merchant the full value of any gratuities provided by Customers. It is Merchant’s sole responsibility to comply with all applicable laws (including tax, gratuity, social security and employment laws where applicable) regarding the distribution of any gratuities.
4.8 Messaging and Contact Information.
Merchant agrees to receive calls, SMS messages and other communications, including those made available by autodialer or using an artificial or pre-recorded voice, sent by or on behalf of Portier or its affiliates.
5. FEES AND TAXES.
Portier will deduct applicable fees (“Fees”) from Item Revenue remitted to Merchant as further described herein. Portier will remit to Merchant the total Retail Price collected for all Items Merchant sells via the App(s) (including any Sales Taxes collected on its behalf) less: (a) the applicable retained Fees; and (b) any refunds given to Customers for Substandard Items (such final remitted amount being “Item Revenue”). All Item Revenue that is duly owed to Merchant will be remitted within fourteen (14) business days of the sale of the Item.
If required by applicable law or regulation, Portier may adjust the Fee. Such adjustments may require adjustments to remittances of Item Revenue owed to Merchant. Such adjustment may apply only to certain Items such as Alcohol Items. Portier or its affiliates will deduct the Fee from the payment Portier collects on Merchant’s behalf. Portier reserves the right to suspend Merchant’s ability to make Items available for purchase by Customers through the App(s) if Merchant’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if a Delivery Person is unable to complete the delivery of such Item. Except as expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement. All Fees under this Agreement will be paid in U.S. Dollars.
5.2 Services Fee.
The Retail Price (as defined below) of all Items that Merchant sells via the App(s) (excluding any Sales Tax collected on Merchant’s behalf) multiplied by the applicable fee percentage for the Sales Channel used to sell each such Item (“Services Fee”).
Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be calculated as follows:
- i) FULL SERVICE SALES CHANNEL (ALSO REFERRED TO AS MARKETPLACE SALES CHANNEL): Portier will charge Merchant a fee percentage of 30% for each Item sold via the App(s) through the Full Service Sales Channel;
- ii) PICK-UP SALES CHANNEL: Portier will charge Merchant a fee percentage of 15% for each Item sold via the App(s) through the Pick-Up Sales Channel;
Updated March 16, 2020: Notwithstanding Section 5.1.ii, beginning March 16, 2020 until further notice, Portier will charge a 0% fee percentage for all Items sold via the App(s) via the Pick-up Sales Channel. Portier will provide at least seven (7) days notice to Merchant in the event the Pick-up Sales Channel fee percentage is increased.
iii) MERCHANT MANAGED DELIVERY SALES CHANNEL: Portier will charge Merchant a fee percentage of 15% for each Item sold via the App(s) through the Merchant Managed Delivery Sales Channel.
5.3 Order Processing Fee.
For the use of certain Services related to order processing and related expenses as identified by Portier, Portier may charge Merchant a Fee (the “Order Processing Fee”).
5.4 Delivery Network Fee.
If selected by Merchant, Portier shall charge Merchant a flat fee per order for connecting Customers to a Delivery Person (the “Delivery Network Fee”). The Delivery Network Fee shall be in addition to the Services Fee(s) as applicable. For clarity, the Delivery Network Fee shall not apply to the Non-Delivery or Merchant Managed Delivery Sales Channels.
5.5 Activation Fee.
Unless otherwise agreed to by the Parties, in consideration of Portier’s work to activate Merchant on the App(s), Merchant will pay to Portier a Fee of $350.00 (“Activation Fee“). Merchant agrees that Portier may deduct the Activation Fee from Merchant’s Item Revenue.
The Nippy Dish Services connect you with Customers who wish to purchase your Items. You are the “merchant”, “retailer”, or “seller” of all Items to be made available for sale via theApp(s). As such, you are responsible for determining and setting the retail price for each Item (the “Retail Price”). You are also responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, food & beverage, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Taxes.
Merchant hereby authorizes Portier to collect applicable Sales Taxes on Merchant’s behalf based on information (including, without limitation, Item descriptions and Additional Information) provided by Merchant to Portier through the Tools or in a manner as otherwise agreed to by the Parties. The Tools’ functionality may be based on interpretations of federal, state, and local laws and regulations and information provided by taxing authorities. Merchant’s use of the Tools, including any communications with Portier, in no way constitutes the provision of legal or tax advice.
While theTools provide a means to apply Sales Taxes to your transactions, theTools may not currently support Sales Tax configurations applicable to certain Items which you desire to sell via the Nippy Dish App(s). In such cases, Portier retains sole discretion regarding whether you may offer such Items for sale via the App(s). Portier may from time to time give Merchant notice of certain Items or Item categories that are not supported by the Tools and must be removed from the App(s) (“Unsupported Items”). Merchant hereby agrees to comply with such notice, provided that if Merchant does not comply, Merchant shall be solely responsible for all risk of loss associated with the continued sale of such Unsupported Items. Merchant shall promptly notify Portier if it believes any charges (or lack of charges) for Sales Taxes were erroneous or inaccurate. If Sales Taxes charged by Merchant are not in accordance with (or in violation of) any law or regulation, Portier expressly reserves the right to, upon prior notice to Merchant, remove affected Items from Merchant’s menu on the App(s) and/or deactivate Merchant from the App(s).
Certain legislation commonly known as “marketplace facilitator” laws (“Marketplace Facilitator Laws”) may require Portier to collect and remit Sales Taxes directly to the taxing authority. In jurisdictions with Marketplace Facilitator laws in effect that are applicable to Portier due to this Agreement (each a “Marketplace Facilitator Jurisdiction” beginning the effective date of such legislation), Portier may determine, as of a date specified by Portier (“Switchover Date(s)”), the amount of applicable Sales Tax which Portier will collect and remit to the taxing authority based on Item descriptions and Additional Information provided by Merchant. For the avoidance of doubt, for each Marketplace Facilitator Jurisdiction: (i) Portier will continue to collect Sales Taxes on behalf of, and remit such amounts to, Merchant until the applicable Switchover Date and (ii) beginning on the applicable Switchover Date, any covered Sales Taxes will be collected by Portier and remitted to the applicable tax authority on Portier’s own account, and not on behalf of Merchant. A list of jurisdictions in which Portier will collect and remit Sales Taxes to taxing authorities (and associated Switchover Dates) may be found at https://about.Nippy Disheats.com/en/marketplacefacilitator/, as updated from time to time.
Merchant agrees that you will not make an Item available under this Agreement at a price higher than the amount Merchant is charging for similar Items through any comparable platform for food delivery services.
5.8 Appointment of Limited Payment Collection Agent.
Merchant is solely responsible for providing Portier with, and maintaining, accurate bank account information. Merchant hereby appoints Portier and its affiliates, as the case may be, as Merchant’s limited payment collection agent solely for the purpose of: (i) accepting payment of the Retail Price of Items sold by Merchant via the App(s) plus any applicable Sales Tax collected on Merchant’s behalf, via the payment processing functionality facilitated by the Tools, and (ii) remitting the Retail Price plus Sales Tax collected on Merchant’s behalf less the retained Fee and, if applicable, any refunds given to Customers on behalf of Merchant (“Item Revenue”). If reasonable, Portier may adjust the remittance of Item Revenue collected on Merchant’s behalf. Portier and its affiliates reserve the right to collect any amounts in connection with such adjustments via a deduction from the remittance of Item Revenue collected on Merchant’s behalf, by debiting the payment method or Merchant’s bank account on record, or otherwise seeking reimbursement from Merchant by any lawful collection methods available. Merchant authorizes Portier and its affiliates to use any or all of the above methods to seek such adjustments and reimbursements. In more serious situations, such as fraud (including any charges for Items that Customers did not place) or Customer complaints, Portier and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Merchant gives Portier and its affiliates express consent to adjust payments collected on Merchant’s behalf as set forth in this Section. Further, Merchant agrees that payment collected on its behalf by Portier or its affiliates will be considered the same as payment made directly to Merchant. Merchant agrees that if Merchant does not receive payment from Portier or its affiliates, Merchant’s only recourse will be against Poriter and its affiliates.
5.9 Payment Compliance.
5.10 Additional Information.
Portier may, from time to time, require Merchant to provide certain additional information (“Additional Information”) pertaining to, Merchant location, Merchant establishment type (e.g., restaurant vs. grocery), particular Items or particular sales of Items for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable laws or regulations. Additional Information may include, but is not limited to: Universal Product Codes (“UPCs”), Global Trade Item Numbers (“GTINs”), Stock Keeping Units (“SKUs”), ingredients, temperature, container, weight, volume, quantities, serving/portion size, nutritional facts, inclusion of utensils, method of preparation (e.g., sliced), whether the item is “ready-to-eat”, or intended use. Merchant is solely responsible for providing requested Additional Information to Portier in a timely manner. If Merchant fails to timely provide Additional Information in response to notification and request by Portier, Portier expressly reserves the right to temporarily remove affected Items from Merchant’s menu on the App(s) until such Additional Information is received.
Portier may provide Merchant aggregate information regarding the number of Items picked up by Delivery People and sold by Merchant to Customers pursuant to an Agreement. Portier will also provide reasonable information regarding any refunds given to Customers, including the date of the transaction, the Item ordered, the reason for the refund and any other information Portier is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that Portier may share Merchant’s transactional data regarding ordered meals, including sales data, with Merchant’s parent company or franchisor.
7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES.
Subject to this Agreement, each party hereby grants to the other party (and, in the case of Portier, to its affiliates) a limited, royalty-free, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, in connection with the activities related to this Agreement or any other activities relating to the Services. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Merchant’s Marks by Portier or its affiliates in connection with making Items available through the App(s) in the ordinary course of business will not require any such prior, express, written consent. Merchant further agrees that any use or display of Portier’s Marks will conform to the current version of Nippy Dish’s Brand Guidelines, which can be found at: https://brand.Nippy Dish.com. All goodwill relat Fed to the use of a party’s Marks by the other party will inure to the benefit of the owner of such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Without limiting anything in the Agreement, Merchant represents and warrants that Merchant’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Merchant agrees that Portier or its affiliates may remove Merchant’s Marks from theApp(s) if Portier or its affiliates receive notice or otherwise reasonably believe that such Merchant’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
7.2 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 agreement between Nippy Dish and Merchant prior to the commencement of any such activities.
Portier and its affiliates may showcase the availability of Merchant’s Items via the App(s) through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). Portier (or a party designated by Portier acting on Portier’s behalf) may take video and still images for marketing and other efforts related to the App(s) (“Photographs”). Merchant agrees that Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of Portier or its affiliates. Additionally, Merchant may provide videos, still image or other materials to Portier or its affiliates (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the App(s) or the marketing and promotion and the availability of your Items via the App(s). Merchant hereby grants Portier and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Services. Portier agrees that the Merchant Marketing Materials shall remain Merchant’s sole and exclusive property. Without limiting anything in the Agreement, Merchant represents and warrants that the Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Merchant Marketing Materials contain any third party materials, Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for Portier to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that Portier or its affiliates may remove Merchant Marketing Materials from the App(s) if Portier or its affiliates receive notice or otherwise reasonably believe that such Merchant Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
“Promotion(s)” means offers that are available through the App(s) to stimulate Customer demand. When a Promotion is successfully applied to an order, Merchant authorizes Portier to charge Customers for the post-Promotional value of an Item (not including Sales Taxes and applicable Fees). Subject to App(s) functionality, Portier may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Promotion.
- i) Merchant Promotion(s). Subject to any other guidelines or eligibility criteria for Promotions that Portier may make available from time to time, Merchant may create Promotions that are designed and fulfilled by Merchant (“Merchant Promotion(s)”). Unless otherwise specified by Portier, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by Portier) either through the use of the Promotion Tool or through the Promotion Schedule (as defined below).
1) Portier authorizes Merchant to use Portier’s proprietary, automated, self-service tool located within the Tools to create Promotions (“Promotion Tool”). If provided access to the Promotion Tool, Merchant agrees to only use and access such Promotion Tool within its functionality and technical capability and shall not circumvent or otherwise exploit the tool in such a way that is not intended.
2) Merchant may create a Merchant Promotion by completing and providing Portier with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to Portier by Merchant, Merchant will have a specified time period to confirm such Promotion Schedule prior to the Promotion being offered and such confirmation will constitute an agreement with Portier under the terms of this Agreement. To request a form Promotion Schedule, Merchant should contact its customer support representative.
- ii) Co-Funded Promotion(s). From time to time, Portier may agree to fund a portion of Merchant’s Promotion (each, a “Co-Funded Promotion”). For each such Co-Funded Promotion, the parties shall agree on a written Promotion Schedule setting forth: (1) a description of the Co-Funded Promotion; (2) the obligations of each party; and (3) any other details regarding the Co-Funded Promotion. For the sake of clarity, if Merchant is the owner of Location(s), such Co-Funded Promotion shall appear to the Customer as a Merchant Promotion, and Portier shall issue an adjustment to Merchant’s Item Revenue to account for the amount of the Promotion that Portier has agreed to fund.
iii). Parties’ Obligations. The parties’ obligations for each Promotion will include the following, but may be expanded upon in an applicable Promotion Schedule:
1) Merchant’s Obligations. Merchant will: (A) fulfill the terms of Promotions offered by Merchant (solely or jointly with Portier) to Customers who have successfully completed their order through the App(s); (B) be responsible for the fees associated with the Promotion up to the amount Merchant has agreed to fund for such Promotion; and (C) upon reasonable request, supply Portier with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Portier may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, Merchant acknowledges and agrees that Merchant will not be able to terminate the Agreement while a Promotion is live.
2) Portier’s Obligations. Portier will (A) honor and fulfill the terms of Promotions offered by Portier (solely or jointly with Merchant) to Customers who have successfully completed their order through the App(s); (B) be responsible for the fees associated with the Promotion up to the amount Portier has agreed to fund such Promotion; (C) upon reasonable request, supply Merchant with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Merchant shall use to market such Promotion, provided that a Promotion Schedule authorizes Merchant to market such Promotion out of the App(s); and (D) use good faith efforts to provide Merchant with reasonable information regarding Promotions, which may include, without limitation, the amount Merchant spent on Promotions and the number of Items sold in connection with Promotions.
- iv) Fee on Promotion Orders. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Merchant Promotion or Co-Funded Promotion to an order through the App(s), Fee shall be calculated based on the total Retail Value of the order minus the Merchant-funded portion of such Promotion applied to that order. For the sake of illustrative purposes, if Merchant and Portier each fund $1 of a $2 off Promotion (so the Co-Funded Promotion is funded 50% by each party) on a $10 pre-Promotion order total, the Fee shall be calculated on the post-Promotion amount of $9.
- v) Out of App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Merchant may not market or otherwise advertise a Promotion outside the App(s). If a Promotion Schedule authorizes Merchant to market a Promotion out of the App(s), all such marketing materials will be subject to Portier’s prior review and written approval, which shall not be unreasonably withheld.
Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
8. PROPRIETARY INFORMATION; FEEDBACK.
“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Merchant’s Items to Customers through the App(s) and the terms and conditions of this Agreement. Proprietary Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes Portier and its Affiliates to disclose the terms of this Agreement to Merchant’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.
Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Tools and Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.
8.3 Data Re-Identification Restriction.
Without limiting any other provision of this Agreement, including any provision in this Section 8, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any personal data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any personal data, for the purpose of re-identification, targeted marketing, or any other similar purpose.
Merchant may, but is not obligated to, provide or otherwise make available to Portier or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to Portier’s and its affiliate’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to Portier or its affiliates, Merchant hereby grants to Portier and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.
Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the App(s) to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant and the relevant Item(s) on the App(s) (“Customer Feedback”). Portier and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of Portier and its affiliates without attribution to or approval of Merchant. Merchant acknowledges that Portier and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that Portier and its affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal data, violate any privacy or other applicable laws, or Portier’s or its affiliates’ content policies.
10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
10.1 Representations and Warranties.
Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Merchant, all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Merchant further represents and warrants that to the extent Merchant has franchisees who participate in any activities under this Agreement, Merchant will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.
EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
11.1 Indemnified Claims.
Each Indemnified Party will provide prompt written notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense 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 defense of a claim, at Indemnifying Party’s expense.
12. LIMITS OF LIABILITY.
EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF MERCHANT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $100,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. In addition, Portier agrees to maintain Commercial Automobile Liability insurance with limits of One Million Dollars ($1,000,000) per accident for bodily injury or property damage arising out of the ownership, maintenance or use of owned, hired, and non-owned vehicles. All policies will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Such insurance will not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon a party’s request, the other party will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.
14. SUPPLEMENTAL TERMS.
15. TERM AND TERMINATION.
This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), at any time without cause by giving sixty (60) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Promotion period, such termination will not take effect until such Promotion period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, Portier may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Merchant that, in Portier’s reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations and Sections 1, 7.1, 8-13, this last sentence of 15, 16-17 and 19 will survive the expiration or termination of this Agreement.
Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to Portier should be provided to Portier, LLC, Attn: Legal, 1209 Orange Street, Wilmington DE 19801, with a copy to Nippy Dish Technologies, Inc., Attn: Legal – Enterprise Products, 1455 Market Street, Suite 400, San Francisco, CA 94103. Notices to Merchant should be provided to the address provided by Merchant. The parties agree that all legal documents (including complaints and subpoenas) directed to Portier will be served on Portier’s registered agent for service of process. The name and current contact information for the registered agent in each state are available online at https://ct.wolterskluwer.com/sop-locations.
17. DISPUTE RESOLUTION AND ARBITRATION.
Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and finally resolved by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”), which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, scope, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, prior to submitting a demand for arbitration, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree:
- i) The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.
- ii) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules.
iii) The seat, or legal place, of arbitration will be San Francisco, California, USA or the JAMS location closest to the complaining party’s place of business.
- iv) The language to be used in the arbitral proceedings will be English.
- v) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by JAMS in accordance with the JAMS Rules.
- vi) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.
vii) The parties each retain 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.
viii) Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else. Notwithstanding any other provision of this Arbitration Provision or the JAMS Rules, disputes in court or arbitration regarding the validity, enforceability, conscionability or breach of this Class Action Waiver, or whether this Class Action Waiver is void or voidable, may be resolved only by the court and not by an arbitrator. In any
case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial
determination that all or part of this Class Action Waiver is unenforceable, the class or collective
action to that extent must be litigated in a civil court of competent jurisdiction, but the portion
of this Class Action Waiver that is enforceable shall be enforced in arbitration.
- ix) Arbitrator fees and expenses plus any expenses of JAMS shall be split equally between the parties. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.
- x) Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.
17.2 Waiver of Jury Trial.
Each party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any arbitrable claim under this Agreement and in connection with the enforcement of an arbitral award rendered pursuant to this agreement. Each party (i) certifies that no representatives, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of such litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto have been induced to enter into this Agreement.
18. DIVERSITY AND INCLUSION.
Merchant will not, in its use of the Eats Services or the Nippy Dish Tools under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between Portier and Merchant. Merchant acknowledges and agrees that upon Portier’s receipt of evidence of Merchant’s discrimination under any of these categories, Portier will have the right to immediately terminate this Agreement following notice to Merchant.
19. ADDITIONAL TERMS.
The territory of this Agreement is the United States (“Territory”), and all payments issued under this Agreement must be in U.S. dollars. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. 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, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. This Agreement may not be assigned, transferred, delegated or subcontracted, 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 written notice to the other party, (a) to 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 to which this Agreement relates; provided that in the event of any such transfer by Merchant, Merchant explicitly consents that any such transferee will have access to and control of all Merchant accounts related to such transfer, including its accounts with Portier, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Merchant’s Location(s), the parties will need to execute a Change of Ownership form and Merchant acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor 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 has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will 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 writing, executed by an authorized representative of the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.