Definitions

General Supplemental Terms

Specific Supplemental Terms

Marketplace Method Terms

Aggregator Method Terms

Non-Delivery TermBookmarks

The following Supplemental Terms apply to all Merchants who have signed the Order Form and are active as of 1 May 2023.

DEFINITIONS

The following terms have the respective meanings given to them below:

“Access Point” or “Access Points” means the clickable user interface elements on an Uber Kenya, Affiliate or third party application or website through which customers can access the Uber Eats App or other Uber Kenya applications.

"Activation Fee" means a Fee paid by Merchant to Uber Kenya in consideration of Uber Kenya’s work to activate Merchant on the Uber Eats App.

"Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership of a party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. Both Uber B.V. and Uber Payments B.V. are Affiliates of both Uber Portier and Uber Kenya.

"Agreement" means the Order Form, the Definitions and the Supplemental Terms.

"Aggregate Data" means aggregate, anonymized data related to Merchant's transactions in connection with the Uber Eats Services.

"Aggregator Cash Collections" means the funds to be collected by the Aggregator Delivery Partner in connection with an Aggregator Cash Order.

"Aggregator Cash Order" means an order where a Customer pays for a given Aggregator Item provided by Merchant and all associated fees and charges resulting from that transaction in cash.

"Aggregator Delivery Charge" means a delivery charge collected by Uber Kenya on behalf of Merchant from Customers for Items transferred via the Aggregator Method.

"Aggregator Delivery Partner" means an employee, contractor, worker or agent of Merchant who provides delivery services on a Merchant’s behalf, not arranged by Uber.

"Aggregator Item" means an Item transferred by Merchant to Customer via the Aggregator Method.

"Aggregator Item Payment" means the Retail Price of the Aggregator Item(s) sold by Merchant via the Uber Eats App (including any VAT or other sales tax).

"Aggregator Item Revenue" means the total (i) Aggregator Item Payment earned by Merchant (other than with respect to Aggregator Cash Orders); (ii) Aggregator Delivery Charge collected from Customers on Merchant’s behalf (other than Aggregator Delivery Charges directly collected by Aggregator Delivery Partners with respect to Aggregator Cash Orders) (iii) gratuity paid by a Customer in respect of delivery services, if applicable, (iv) less (1) the Aggregator Service Fee and (2) any refunds given by Uber Kenya on behalf of Merchant to Customers.

"Aggregator Meal" means any combination of food and/or beverage transferred by Merchant to Customer via the Aggregator Method. "Aggregator Meal" is a subset of "Aggregator Item."

"Aggregator Method" means a Method whereby Merchant may use Aggregator Delivery Partners to fulfill delivery of Items requested by Customers.

"Applicable Law" shall mean all applicable laws, statutes, regulations and codes from time to time in force (including without limitation all applicable data protection and privacy laws).

"Brand Matter" means an event that, in Uber’s reasonable judgement, would jeopardise the ability of the Merchant to comply with or perform this Agreement, or prejudice the goodwill or reputation of Uber or its Affiliates, including, but not limited to, matters related to the alleged violation of the Community Guidelines or any Applicable Laws.

"Cash Order" means an order where a Customer pays for a given Item provided by Merchant, and all associated fees and charges resulting from that transaction, in cash.

“Collection Period” means each weekly or biweekly period in respect of which Marketplace Item Revenue is earned by a Merchant.

"Confidential Information" means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (the "Discloser") to another (the "Recipient"), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes, without limitation, transactional, operational, performance and other data or information (including, Uber Data, Customer’s information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational) and/or that is related to the sale of Merchant’s Items to Customers through the Uber Eats App and the terms and conditions of this Agreement. Confidential 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.

"Community Guidelines" means the applicable Community Guidelines, currently available at uber.com/legal/en/general-community-guidelines_kenya.

"Criteria" means any quality, portion, size, ingredient, allergen, origin or nutritional information or rules and regulations that govern the adequacy of Items.

"Customer" means a customer of the Merchant.

"Customer Feedback" means information provided by a Customer in response to prompting by the Uber Eats App, including rating of Item(s) and comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the Uber Eats App, and either the delivery services (provided by either a Marketplace Delivery Partner or Aggregator Delivery Partner) or the Non-Delivery Method experience.

"Damage Fee" means a Fee paid by Merchant to Uber Kenya for 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.

"Delivery Partner" means a Marketplace Delivery Partner or an Aggregator Delivery Partner. References to "Delivery Partners" should be read to include both Marketplace Delivery Partners and Aggregator Delivery Partners.

"Device" means a tablet or other portable device made available by Uber Kenya to Merchant to access and use the Uber Eats Services.

"Digital Payment Order" means an order where Uber allows a Customer to pay for a given Marketplace Item provided by Merchant and all associated fees and charges resulting from that transaction using a non-cash payment method stored by the Customer in its Uber wallet.

"Dispute" means any dispute, action, claim, controversy or cause of action among the parties arising out of or in connection with the Agreement or any term condition or provision hereof, including without limitation any of the same relating to the existence, validity, interpretation, construction, performance, enforcement and termination of the Agreement.

"Effective Date" means a date to be confirmed by Uber upon which this Agreement will become effective..

"Fees" means any applicable fees charged by Uber Kenya to Merchant, including the Service Fee, the Activation Fee, and the Damage Fee.

"Feedback" means information provided by Merchant to Uber including feedback, suggestions, comments, ideas, or other concepts relating to Uber’s products and services.

"Force Majeure Event" means 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 labor disturbances, war or sabotage.

"Indemnified Party" means the party receiving indemnification from the Indemnifying Party.

"Indemnifying Party" means the party providing indemnification to the Indemnified Party.

"Initial Term" means a period which 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.

“In-Store Price” means the actual price of such Item at Merchant’s Location.

"Item" means food, beverage, or any other product made available by Merchant to Customer via the Uber Eats App.

"Item Revenue" means the Retail Price (including VAT and any other fees collected on Merchant’s behalf) less the retained Fees (including the Service Fee, Activation Fee, and/or Damage Fee, where applicable) and any refunds given to the Customers on behalf of Merchant.

“Laws” means codes, laws, legislation, licences, orders (including court orders), ordinances, rules, regulations or any other requirement imposed by a government authority.

“Location” means a location owned and operated by the Merchant or a participant in the geographic area where the Uber services are available.

“Location Price Inflation Percentage” means the amount set out in the “Location Price Inflation Percentage” section of the Agreement Details.

"Losses" means any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees).

"Marketplace Cash Collection" means the funds to be collected by the Marketplace Delivery Partner from a Customer in connection with a Marketplace Cash Order.

"Marketplace Cash Order" means an order where a Customer pays for a given Marketplace Item provided by Merchant and all associated fees and charges resulting from that transaction in cash.

"Marketplace Delivery Partner" means an independent contractor who intends to perform on demand delivery services on behalf of Uber Kenya using the Uber Eats App. Marketplace Delivery Partners are not employees or workers of Uber or any of its Affiliates.

"Marketplace Item" means an Item transferred by Merchant to Customer via the Marketplace Method.

"Marketplace Item Payment" means the Retail Price of the Marketplace Item(s) sold by Merchant via the Uber Eats App (including any VAT or other sales tax).

"Marketplace Item Revenue" means the total Marketplace Item Payment (including any VAT or other sales tax collected on Merchant’s behalf) earned by Merchant from both orders paid for via Digital Payment Orders and Marketplace Cash Orders, less, the Marketplace Service Fee and less any refunds from Digital Payment Orders given by Uber on behalf of Merchant to Customers.

"Marketplace Meal" means any combination of food and/or beverage transferred by Merchant to Customer via the Marketplace Method. "Marketplace Meal" is a subset of "Marketplace Item."

"Marketplace Method" means a Method whereby Uber Kenya will request a Marketplace Delivery Partner to collect Marketplace Items and deliver such Marketplace Items to Customer. Uber Kenya will purchase delivery services from the Marketplace Delivery Partner and sell those delivery services directly to the Customer. Merchant has no contractual relationship with the Marketplace Delivery Partner by virtue of this Agreement.

“Marketplace Service Fee” has the meaning in clause 2(a) of the Specific Supplemental Terms - Marketplace Method.

"Marks" means the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party or its Affiliates.

"Meal" means any combination of food and/or beverage transferred by Merchant to Customer via the Uber Eats App. "Meal" is a subset of "Item," and any terms and conditions related to "Items" also apply to "Meals." "Marketplace Meal," "Aggregator Meal," and "Non-Delivery Meal" are subsets of "Meal."

"Meal Voucher Order" means an order where Uber allows a Customer to pay for a given Meal provided by Merchant, and some or all associated fees and charges resulting from that transaction, with a meal voucher.

"Merchant" means the non-Uber legal entity that has agreed to this Agreement and includes that entity’s, or those entities’ subsidiaries, affiliates, directors, employees, agents, successors and assigness, as applicable. "Merchant Marketing Materials" means videos, still images or other materials provided by Merchant to Uber for use in connection with the display of Merchant’s Items on the Uber Eats App.

“Merchant Marketplaces” means the Merchant’s native desktop and/or mobile webpages.

"Method" means a method by which Items requested by a Customer through the Uber Eats App may be transferred from Merchant to such Customer.

"Non-Delivery Item" means an Item transferred by Merchant to Customer via the Non-Delivery Method.

"Non-Delivery Item Payment" means the Retail Price of the Non-Delivery Item(s) sold by Merchant via the Uber Eats App (including any VAT or other sales tax).

"Non-Delivery Method" means a Method whereby Merchant may allow Customers to collect Items requested from a specified location without the involvement of a Delivery Partner.

"Notice Period" means a period of reasonable notice, as allowed by Applicable Law, after which amended Supplemental Terms will take effect.

"Offer" means a short-term promotional offer that is created and fulfilled by Merchant that is intended to stimulate Customer demand through the Uber Eats App (e.g., discounts).

"Offer Costs" means the amount spent by Merchant on an Offer.

"Offer Materials" means, with respect to an Offer, all suitable material to be provided by Merchant including artwork of Merchant’s trade marks and trade names.

"Offer Tools" means proprietary, automated tools provided by Uber Portier to Merchant which allow Merchant to create and provide Offers to Customers.

“Order Form” means the Uber Eats (Kenya) Services Agreement Order Form executed by Uber and the Merchant.

"Personal Data" means any information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

“Renewable Membership” means the various subscription membership programs that are made available to Customers through the Uber Eats All from time to time (e.g. Uber One).

"Renewal Term" means a one (1) year period where the Agreement automatically renews.

"Representatives" means with respect to a party, its or its Affiliates’ respective officers, directors, employees or agents.

"Required Documentation" means all documentation required by Uber from Merchant, including but not limited to business license, identification, tax identification, information regarding VAT status, alcohol/liquor license (if applicable), and banking documentation.

"Retail Price" means the price of an Item on the uber Platforms exclusive of separately stated Sales Taxes.

"Service Fee" means a Fee paid by Merchant to Uber Kenya in consideration for the use of the Uber Eats Services. Merchant's Service Fee for each specific Method is specifically set forth in the Order Form. For clarity, if the description of a fee includes the words “Renewable Membership”, that fee replaces the same fee in this Order Form that does not include the words “Renewables Membership”, but only for orders placed by Customers with a Renewable Membership.

"Substandard Item" means any Item that fails to meet the Criteria or standards required by Applicable Laws.

"Supplemental Terms" means the Definitions, the General Supplemental Terms, the Specific Supplemental Terms and any other terms applicable to the use of the Uber Eats Services, Uber Tools, and/or Uber Eats App and shared with the Merchant.

"Term" means the Initial Term together with all Renewal Terms.

"Territory" means Kenya.

"Transportation Method" means a mode of transportation that will be used for the purpose of providing delivery services in accordance with the Specific Supplemental Terms for the Aggregator Method.

"Uber" means both Uber Portier B.V., a company registered under the laws of the Netherlands (registration number: 65851307) whose registered address is Burgerweeshuispad 301, 1076 HR, Amsterdam, the Netherlands ("Uber Portier") and Uber Eats Kenya Limited, a company registered under the laws of Kenya (registration number: PVT-LRUYB6A7) ("Uber Kenya").

"Uber Data" means all data related to the access and use of the Uber Eats Services and Uber Tools, including but not limited to all Personal Data related to Merchant and Customers.

“Uber Direct” means the product that, in connection with Uber and its Affiliates’ technology systems, enables merchants to request courier services via Uber’s proprietary API or browser-based online dashboard technology system and/or any platform owned, operated, managed or otherwise controlled by a third party.

"Uber Eats App" means a website, application or other technology interface made available by Uber and/or its Affiliates to Customers, on a royalty-free basis, to purchase Items and, if applicable, delivery services.

"Uber Eats Marketing Materials" means video, still images and/or other materials created by Uber (or a party designated by Uber acting on Uber’s behalf) for marketing and other efforts related to the Uber Eats App.

"Uber Eats Services" means certain services made available by Uber Kenya to Merchant to facilitate the marketing, sale and provision Items by Merchant to Customers, including on-demand lead generation, logistics, payment processing, marketing, operational and other support.

"Uber Tools" means a website, application and/or other technology interface, as well as a Device, made available by Uber Portier and/or its Affiliates to Merchant, on a royalty-free basis, in connection with the Uber Eats Services, including but not limited to advertising tools, promotional offer tools, marketing tools, reporting tools, APIs, and any other current or future tools or features made available to Merchant.

"VAT" means any VAT, GST and/or similar sales taxes.

"Virtual Restaurant" means an additional menu that is made available from Merchant’s premises under a different trading name.

"Virtual Restaurant Data" means information provided by Uber from time to time and related to cuisine demand, consumer preferences and restaurant case studies to help inform Merchant’s Virtual Restaurant menu choices.

GENERAL SUPPLEMENTAL TERMS

Uber may amend the Supplemental Terms from time to time, as allowed by Applicable Law, upon giving a reasonable Notice Period and by Uber posting such amended Supplemental Terms on this website or Uber otherwise making such amended Supplemental Terms available to Merchant. However, the Notice Period will not apply where an amendment is required by law or relates to the expansion or introduction of new services or functionalities to the existing Uber Eats Services and/or Uber Tools or any other change which is effectively favourable to Merchant and does not reduce the scope of its rights or increase its responsibilities. Merchant’s continued access to or use of the Uber Eats Services and/or Uber Tools after such amended Supplemental Terms become effective constitutes Merchant’s consent to be bound by the amended Supplemental Terms. If Merchant objects to any amended Supplemental Term, Merchant may terminate this Agreement in accordance with clause IV of the Order Form.

1. Uber Eats Services.
   1. General. Uber Kenya will make the applicable Uber Eats Services available to Merchant including, but not limited to, on-demand lead generation, logistics, payment processing, marketing, operational and other support. The Uber Eats Services are solely for use by Merchant, subject to the terms of this Agreement.
   2. Appointment of Limited Payment Collection Agent.
      1. Merchant hereby appoints Uber Kenya as Merchant’s limited payment collection agent solely for the purpose of: (A) accepting payment of the Retail Price of Items (including any applicable VAT and other fees collected on Merchant’s behalf) sold by Merchant via the Uber Eats App, via the payment processing functionality facilitated by the Uber Tools, and (B) transferring to Merchant the Retail Price (including VAT and plus any other fees collected on Merchant’s behalf) less the retained Fees (including the Service Fee, Activation Fee, and/or Damage Fee, where applicable), and any refunds given to the Customers on behalf of Merchant ("Item Revenue").
      2. Merchant agrees that payment collected by Uber Kenya on Merchant’s behalf will be considered the same as payment made directly to Merchant.
      3. Merchant further authorizes Uber Kenya to collect gratuities (if any) that are paid on the Uber Eats App voluntarily by Customers to Aggregator Delivery Partners acting on behalf of Merchant. For Aggregator Delivery Partners, Uber Kenya shall remit the full value of any gratuities to Merchant. It is the sole responsibility of Merchant to make sure that any applicable gratuities are properly transferred to Aggregator Delivery Partners.
      4. If reasonable, Uber Kenya may adjust the transfer of Item Revenue collected on Merchant’s behalf for reasons including, but not limited to, failure to fulfil the provision of an Item as ordered. Merchant may dispute any such adjustments through the Uber Tools within fourteen (14) calendar days of Merchant being notified of such adjustment. Uber reserves the right to, and Merchant authorizes Uber Kenya to, collect the amount of such adjustments via a deduction from the Item Revenue collected on Merchant’s behalf, or by debiting Merchant’s payment method on record, or otherwise seeking reimbursement from Merchant.
      5. In exceptional circumstances only (as determined by Uber in its sole discretion, acting reasonably), Uber reserves the right to temporarily or permanently cancel or suspend a payment to Merchant. The foregoing exceptional circumstances shall include, but not be limited to, any legal or regulatory risk or potential breach of Applicable Laws associated with the transfer of such payment to Merchant, the actual or expected initiation of insolvency or bankruptcy proceedings against Merchant and any failure by Merchant to provide the Required Documentation in accordance with clause 1(j) of these General Supplemental Terms.
      6. Uber may, from time to time, request information from Merchant to confirm Merchant’s identity as may be necessary under any applicable compliance obligations before transferring any payments to Merchant and may refuse to process payments owed to Merchant in accordance with clause 1(b)(vi) of these General Supplemental Terms if there exists a legal or regulatory risk or potential breach of law or regulation associated with such transfer to Merchant.
      7. Uber Kenya may engage any of its Affiliates to perform the activity of limited payment collection agent on Uber Kenya’s behalf. Both Uber B.V. and Uber Payments B.V. are Affiliates of Uber Kenya. Such engagement may be subject to additional terms.
   3. Cash. Uber and/or its Affiliates may allow Customers to pay for a given Item (and, if applicable, delivery services) provided by Merchant, and all associated fees and charges resulting from that transaction, in cash (a "Cash Order").
   4. Meal Vouchers. Uber and/or its Affiliates may allow Customers to pay for a given Meal provided by Merchant and some or all associated fees and charges resulting from that transaction with a meal voucher (a "Meal Voucher Order"). In certain circumstances, Uber will not act as limited payment collection agent for Meal Voucher Orders and Merchant will receive direct settlement of Item Revenue from a third party meal voucher issuer.
   5. Uber Vouchers. Uber and/or its Affiliates may allow Customers to pay for a given Item provided by Merchant and some or all associated fees and charges resulting from that transaction with a voucher (an "Uber Voucher Order"). This voucher may be provided by Uber and Merchant undertakes the obligation to accept Uber Voucher as consideration or part of the consideration for a given Item (and/or, if applicable, delivery service). Uber will not act as limited payment collection agent for Uber Voucher Orders and Merchant will receive direct settlement of Item Revenue from Uber and/or its Affiliates.
   6. Uber Tools. Uber Portier may make available certain Uber Tools to Merchant, and Merchant may access and use those Uber Tools solely in connection with Merchant’s use of the Uber Eats Services. The Uber Tools, including all intellectual property rights therein, are and shall remain the property of Uber Portier, its Affiliates or their respective licensors. Neither this Agreement nor Merchant’s use of the Uber Tools or Uber Data conveys or grants to Merchant any rights in or related to the Uber Tools or Uber Data, except for the limited licence granted above. Merchant shall retain access to Uber Tools for the Term. In the event of a breach of this Agreement or any other terms agreed between Uber and Merchant, Uber retains the right to revoke access to Uber Tools without prior notification, and without having to provide any data to Merchant after such revocation.
   7. Device. Devices shall at all times remain the property of Uber and/or its Affiliates. 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, will result in a Fee of KES 15,000 (Kenya Shillings fifteen thousand) ("Damage Fee"). Merchant agrees that Uber Kenya may deduct the Damage Fee from Merchant's Item Revenue.
   8. Uber Eats App. Merchant acknowledges and agrees that once it has accepted a request for an order of Items, the Uber Eats App may provide certain information about Merchant to the Customer, including Merchant’s name and contact number. As between Merchant and Uber, Uber and/or its Affiliates will retain sole and absolute control over the Uber Eats App (and all elements of the user experience and user interface relating to the Uber Eats App), including, without limitation, with respect to:
      1. the personalisation of the Uber Eats App for Customers;
      2. the prioritisation and display of options available to Customers;
      3. the organisation, layout and ranking of Merchants in the feed:
      4. the display, placement and ranking of Merchant storefronts;
      5. the assignment or removal of badges (including but not limited to “affordable”, “top quality”, or “sustainable” badges), inclusion or exclusion from featured sections or carousels (including but not limited to “top eats”);
      6. the search functionality and results provided to Customers;
      7. adding, removing or otherwise modifying any feature or functionality made available through the Uber Eats App to optimize reliability or efficiency on the Uber Eats App;and
      8. any other aspects of the presentation or operation of the Uber Eats App.
   9. No Service Guarantee. Uber Portier and its Affiliates do not guarantee the availability or uptime of the Uber Tools or Uber Eats App. Merchant acknowledges and agrees that the Uber Tools and Uber Eats App may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Uber Tools and Uber Eats App may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Uber Portier and its Affiliates are not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
   10. Disclaimer of Warranties. This clause applies only to the maximum extent permitted by Applicable Law, and does not (and is not intended to) override any rights that Merchant has pursuant to Applicable Law. Uber Portier and its Affiliates provide, and Merchant accepts, the Uber Tools and Uber Eats App on an "as is" and "as available" basis. Uber Portier and its Affiliates do not represent, warrant or guarantee that its access to or use of the Uber Tools or Uber Eats App: (i) will be uninterrupted or error free; or (ii) will result in any requests for orders of Items (and delivery, if applicable). Uber Portier and its Affiliates make no representations, warranties or guarantees as to the actions or inactions of Customers who may request or receive Items (and delivery services, if applicable), and Uber Portier and its Affiliates do not screen or otherwise evaluate Customers. By using the Uber Tools, Merchant acknowledges and agrees that Merchant or a Delivery Partner may be introduced to a third party that may pose harm or risk to Merchant, Delivery Partners or other third parties. Merchant and their Aggregator Delivery Partners are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Uber Eats Services and Uber Tools. Uber does not represent, warrant or guarantee the safety of any Items. Notwithstanding Uber’s appointment as limited payment collection agent of Merchant for the purpose of accepting payment from Customers on its behalf, Uber and its Affiliates expressly disclaim all liability for any act or omission of Merchant, any Aggregator Delivery Partners, any Customer or other third party.
   11. Complaints. In connection with the provision of Uber Eats Services to Merchant, Uber, on behalf of Merchant, may respond to complaints by Customers about Items and/or delivery sold by Merchant via the Uber Eats App.
   12. Suspension of Uber Eats Services. Uber, at its sole discretion, reserves the right to temporarily or permanently suspend, in whole or in part, Merchant’s access to the Uber Eats Services and Uber Tools if:
       1. Merchant fails to provide Required Documentation in a timely manner;
       2. Merchant’s account is in arrears;
       3. A Brand Matter has occurred in accordance with clause V of the Order Form; or
       4. Merchant is, or Uber reasonably believe Merchant is, in breach of this Agreement.
2. Merchant’s Obligations.
   1. Availability of Items. Merchant will make Items available for purchase through the Uber Eats App during its normal business hours.
      1. Merchant will prepare, handle and store all Items in accordance with Applicable Laws, which shall include, without limitation, all laws, rules and regulations governing time or temperature controls required for food hygiene and safety.
      2. Merchant will determine any Criteria that apply to Items and Merchant is responsible for ensuring that the Items meet the applicable Criteria as displayed to Customers in the Uber Eats App. Uber, at its sole discretion, reserves the right to remove from the Uber Eats App any Item for sale by Merchant deemed unsuitable for sale on the Uber Eats App.
   2. Item Inventory and Responsibilities.
      1. Item Responsibilities By Method
3. For Items transferred via the Marketplace Method, with respect to the Items themselves, Merchant is responsible for complying with all health and safety laws and regulations applicable in relation to preparation and packaging of Marketplace Items. Substandard Items are Merchant's responsibility. With respect to delivery, Merchant remains responsible for all items up to the point where the Items are transferred to a Marketplace Delivery Partner, but Merchant is not responsible for the delivery itself.
4. For Items transferred via the Aggregator Method, Merchant shall remain responsible for complying with all health and safety laws and regulations applicable in relation to all Items, up to and including the time of delivery of the Items to a Customer. Merchant agrees that, for purposes of delivery of Items via the Aggregator Method, Aggregator Delivery Partners shall operate under cover of the Merchant’s retail and health and safety licenses, registrations, authorizations and privileges and control. Merchant acknowledges and agrees that Uber never takes title to any Aggregator Item, that Merchant remains responsible for the delivery of Aggregator Items, and that Merchant shall maintain possession, control and care of the Aggregator Items at all times in full compliance with Applicable Laws.
5. For Items transferred via the Non-Delivery Method, Merchant shall remain responsible for complying with all health and safety laws and regulations applicable in relation to all Non-Delivery Items, up to and including the time of transfer of the Non-Delivery Items to a Customer.
   • 1. Merchant is responsible for costs related to reimbursement to Customers in the event any such Customer(s) request a refund for Substandard Items or otherwise unsatisfactory Item(s) (including, without limitation, any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable). Uber Kenya may deduct refunds (including the Substandard Item Delivery Fee) from the Item Revenue transmitted to Merchant under this Agreement in accordance with Uber Kenya’s refund policy as provided to Merchant, and as updated from time to time, provided always that Merchant has received notification of such refund policy.
   1. Documentation. Merchant will provide all documentation required by Uber (including but not limited to business license, identification, tax identification, information regarding VAT status, alcohol license (if applicable), and banking documentation) ("Required Documentation"). Merchant is solely responsible for providing Uber with, and maintaining, accurate bank account information.
   2. Restrictions. Merchant will not, and will not allow any third party to: (i) use the Uber Eats Services, the Uber Tools, or any other transactional, operational, performance or other data or information that is related to the sale of the Items (and, if applicable, delivery) to Customers through the Uber Eats App to compete with Uber, its Affiliates or the Uber Eats Services; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Uber Eats Services or Uber Tools (except to the extent that Applicable Law prohibits reverse engineering restrictions); or (iii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Uber Eats Services or Uber Tools (except as otherwise authorized by Uber).
   3. Alcohol. To the extent permitted under Applicable Laws and provided that Merchant has a valid alcohol license, Merchant may use the Uber Eats App to transfer alcohol to a Customer subject to the additional terms set forth herein. Merchant represents and warrants that it has and will maintain all required licence(s) and/or permit(s) to sell and, if applicable, deliver alcohol, and will comply with all Applicable Laws in respect thereof, including, without limitation, time restrictions and legal age.
   4. Tax. Merchant is responsible for ensuring the accuracy of its own tax filings.
   5. Item Prices. Reflecting Uber’s investments to make the Merchant’s products available on Uber’s apps and to maintain the affordability of those products towards end-users and unless prohibited by applicable Laws or the terms and conditions of this Agreement, or expressly permitted under another section of this Agreement, the Merchant will provide Uber with its In-store Price for Items, which Uber will display as the Retail Price shown to Customers on the Apps. Uber may consider the Merchant’s Item Prices when determining the Merchant’s prominence and availability on the Apps, and/or Merchant’s participation in Renewable Membership programs. If Uber identifies a discrepancy between the Retails Price shown to Customers on the Apps and the In-store Price of Items, Uber may, on the Merchant’s behalf and in accordance with this section, update the Retail Price shown to Customers on the Apps to match the In-Store Price.
6. Ratings. Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the Uber Eats App to provide a rating of such Item(s) (and, if applicable, delivery) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the Uber Eats App, and either the delivery services (provided by either a Marketplace Delivery Partner or Aggregator Delivery Partner) or the Non-Delivery Method experience ("Customer Feedback"). Uber reserves the right to use, share, and display Customer Feedback in any manner in connection with the business of Uber without attribution to or approval of Merchant. Uber reserves 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 laws and regulations or other Applicable Laws, or violate Uber’s content policies.
7. Reporting. Uber will provide Merchant with information regarding the number of Items sold by Merchant to its Customers. Uber will also provide information to Merchant regarding any refunds given to its Customers by Uber on Merchant’s behalf, including the date of the transaction, the Item(s) refunded, the reason for the refund and any other information Uber is permitted to provide under applicable privacy laws and regulations.
8. Fees, Retail Price of Items and Taxes.
   1. Fees and Taxes.
      1. Fees. In consideration for the use of the Uber Eats Services, Uber Kenya will charge Merchant a "Service Fee" for each specific Method as specifically set forth in the Order Form (together with the Activation Fee, the Damage Fee, and any other applicable fees charged by Uber Kenya to Merchant, the "Fees").
      2. Payment Terms. All Fees under this Agreement will be paid in Kenya Shillings. Uber Kenya will deduct any Fees from the payment Uber Kenya collects from Customer on Merchant’s behalf, as detailed below.
      3. Costs and Expenses. Except as may be expressly set forth in this Agreement, each party will be responsible for its expenses and costs in connection with this Agreement.
      4. Taxes on Fees.
         1. All Fees payable pursuant to this Agreement shall be deemed to be exclusive of Value Added Tax (VAT) unless stated otherwise to the contrary. The term "VAT" includes any VAT, GST and/or similar sales taxes.
         2. If VAT is chargeable on any Fees, the Merchant shall pay to Uber Kenya an amount equal to the amount of the VAT in addition to and at the same time as payment of the Fees. Where taxes are payable on the Service Fee and/or any other fees charged by Uber, Uber shall calculate and remit such taxes as required by local law or regulation.
         3. Fees shall be paid free and clear of and without deduction for or on account of withholding tax (if applicable). If Merchant is required to make such a deduction or withhold such tax, the sum payable by Merchant shall be increased to the extent necessary to ensure that Uber Kenya receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made.
   2. Retail Price of Items and Taxes.
      1. Merchant is the "retailer" or "seller" of all Items (including delivery services related to such Items, if using the Aggregator Delivery Method). Merchant is responsible for determining and setting the original listed price, prior to any discounts or promotions, for each Item to be made available for sale via the Uber Eats App (the "Retail Price"). The Retail Price for each Item will include VAT, but Merchant is solely responsible for determining and setting all applicable VAT and identifying and informing Uber of the appropriate VAT amount for Uber to charge Customers on Merchant’s behalf for Items available on the Uber Eats App. To the extent that applicable VAT rate is not determined by Merchant, Merchant expressly authorizes Uber to make such determination on its behalf and Merchant hereby acknowledges and agrees that Uber will have no liability for the accuracy of any such determination. Merchant expressly authorizes Uber, at Merchant’s direction, to collect such VAT on Merchant’s behalf.
      2. Merchant is solely responsible for the remittance of all applicable VAT, sellers use, transaction privilege, privilege, general excise, gross receipts, meals tax and similar transaction taxes in connection with the sale of Items.
9. Invoices. Merchant acknowledges that, for each order completed using the Uber Eats App, Merchant is the responsible party to issue an invoice and/or receipt for Items and (in the Aggregator Delivery Method) delivery services to Customers in their own name. Uber will not invoice such invoice and/or receipt in Merchant's name and on Merchant’s behalf.
10. Method Restrictions and Limitations.
    1. Method Settings. If Merchant has selected both the Aggregator Method and the Marketplace Method, Merchant may select Aggregator Method and/or Marketplace Method for delivery of future orders of Items to its Customers. Merchant may apply its selections to some or all future orders. Merchant may modify its Method selection at any time. However, the selected Method for an order cannot be modified after the order has been placed. All orders pending at the time Merchant modifies its Method must be completed via the Method selected when the order was placed. The proper Method for each order will be reflected in Merchant’s order dashboard available via the Uber Tools. Uber may modify delivery settings on Merchant’s behalf.
    2. Delivery Radius Modification. Uber, at its discretion, reserves the right to modify Merchant’s delivery radius for reasons including, without limitation, to prevent or otherwise limit unfulfilled orders.
    3. Temporary Usage Restriction. Uber, at its discretion, reserves the right to restrict or otherwise limit Merchant’s access to the Uber Eats App for a period of time for reasons including, without limitation, to prevent or otherwise limited unfulfilled orders.
    4. Transfer Restrictions. The following restricted items may not be transferred via the Uber Eats App: people or animals of any size, illegal items, fragile items, dangerous items (including but not limited to weapons, explosives, flammables, etc.), stolen goods, or any items that Merchant does not have permission to transfer. Uber reserves the right to prohibit or restrict transfer of additional items at its sole discretion. Uber Kenya reserves the right to prohibit transfer of additional Items at its sole discretion.
11. Marks.

Subject to this Agreement, each party hereby grants to the other party (and, in the case of Uber, to its Affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks, on a royalty free basis, in connection with the activities related to this Agreement. This license includes the right to reproduce, adapt and represent (in connection with all or part of the activities related to this Agreement) the Marks for the entire world, using all means and media, and without any restriction of any kind as regards exploitation methods, number of prints, dissemination or utilisation.All uses of a party’s Marks (owned or licensed, as applicable) by the other party will be in the form and format specified or approved by the party that owns (or is a licensee of, as applicable) 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. Any use or display of Merchant’s Marks by Uber in connection with making Items available through the Uber Eats App in the ordinary course of business will not require any such prior, express, written consent. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the party that owns (or is a licensee of, as applicable) 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. Merchant agrees that it will not, and will ensure that Aggregator Delivery Partners do not, try to register or otherwise use and/or claim ownership in any of the Uber Marks, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.

1. Marketing and Promotional Activities.
   1. Marketing. Uber may showcase the availability of Merchant’s Items via the Uber Eats App through various promotional activities including, without limitation, Access Points, social media channels, websites, advertisements, blogs or other media available now or hereinafter created. Uber (or a party designated by Uber acting on Uber’s behalf) may create video, still images and/or other materials for marketing and other efforts related to the Uber Eats App ("Uber Eats Marketing Materials"). Merchant agrees that Uber Eats Marketing Materials (including, without limitation, all intellectual property rights therein) are and will remain the sole and exclusive property of Uber. Additionally, Merchant may choose to provide videos, still images and/or other materials to Uber ("Merchant Marketing Materials") for use in connection with the display of Merchant’s Items on the Uber Eats App, and Merchant hereby grants Uber a non-exclusive, royalty free right to use, reproduce, adapt, represent, and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Uber Eats Services, for the entire world, during the Term, using all means and media, and without any restriction other than as required by Applicable Law as regards exploitation methods, number of prints, dissemination or utilisation.
   2. No Additional Amounts. Merchant acknowledges and agrees that, through advertising and marketing, Uber may seek to attract new merchants to Uber Eats and to increase existing users of the Uber Eats Services and Uber Eats App. Merchant acknowledges and agrees that such advertising or marketing does not entitle Merchant to any additional monetary amounts beyond the amounts expressly stated in this Agreement.
   3. Merchant Promotional Offers. Uber may authorize Merchant to use certain automated tools that allow Merchant to provide promotional Offers to Customers through the Uber Eats App in accordance with the terms of this Agreement. Merchant agrees that it is solely responsible for fulfilling and, subject to technical and functional limitations of the automated tools, defining the Offers provided by Merchant to its Customers.
      1. Merchant Promotional Offers. Subject to this Agreement and any other guidelines or eligibility criteria for Offers that Uber may make available from time to time, Uber hereby authorizes Merchant to use Uber’s proprietary, automated tools ("Offer Tools") to create and provide Offers to Customers. Unless otherwise specified by Uber, Merchant will be solely responsible for defining each Offer (within the scope of functionality provided by the Offer Tools), including, without limitation, the start date, end date, and budget for each Offer. Each Offer will be subject to Uber’s prior written approval. Merchant is responsible for providing to Uber Offer Materials in a format and within deadlines specified by Uber for such to be reproduced for the provision of the Offer to Customers.
      2. Merchant’s Responsibilities. Merchant will honor and fulfill the terms of the Offer. Merchant represents and warrants that Merchant will run all Offers in accordance with all Applicable Laws which apply to the Offers. Merchant represents and warrants that Merchant possesses all necessary authority, rights, licenses, consents and permissions to run the Offer (including, without limitation, the rights to any Offer Materials provided to Uber). Merchant will not use an Offer to make charitable donations. For free or reduced Delivery Charge Offers, Merchant will be solely responsible for the reduction to the amount that Uber collects from Customers with respect to the Delivery Charge.
      3. Reporting and Offer Costs. Uber will use good faith efforts to provide Merchant with reasonable information regarding Merchant's Offers, which may include, without limitation, the Offer Costs and the number of Items sold in connection with an Offer. Uber, in its sole discretion, may highlight Offers and/or the results of Offer in its own marketing materials.
      4. Offer Redemption Fees. Merchant acknowledges that Uber Kenya may charge fees in connection with the use of Offer Tools, the creation of Offers and the redemption of Offers (“Offer Redemption Fees”). Offer Redemption Fees are exclusive of any VAT or other sales taxes. If applicable, VAT and/or other sales taxes shall be charged and collected in the same manner as Offer Redemption Fees. Uber may charge different rates for different types of Offers.
2. Invoicing and Payment Schedule. Uber Kenya will charge the Offer Redemption Fees to Merchant. Merchant agrees that unless otherwise agreed in writing, Uber Kenya or its Affiliates will deduct the Offer Redemption Fees any payment due to Merchant, such as a deduction from the remittance of Item Revenue collected on each Merchant’s behalf. Further, Uber Kenya may continue to deduct such Offer Redemption Fees from following weekly payouts until such time when the Offer Redemption Fees are paid in full. If agreed by Uber Kenya in writing, Uber may invoice Merchant in arrears for the amount of the Offer Redemption Fees, which shall be due and payable within thirty (30) days of Merchant’s receipt of such invoice. In both instances, collection of the Offer Redemption Fees will take place after the redemption of an Offer. Subject to the foregoing, Uber Kenya reserves the right to set a maximum spend threshold or suspend Merchant’s access to the Offer Tools until the Offer Redemption Fees are paid in full. Uber Kenya reserves the right to offer credits and/or discounts to fully or partially fund the Offer Redemption Fees, which may be subject to a limited time period or other restrictions, at Uber Kenya’s sole discretion. Uber Kenya and its Affiliates further reserve the right to collect Offer Redemption Fees by debiting the payment method or Merchant’s bank account on record, or otherwise seeking reimbursement from Merchant by any lawful collection methods available. Any disputes about Offer Redemption Fees must be submitted to Uber Kenya in writing within 14 days of the date Merchant incurred such charge, otherwise Merchant waives such dispute and such charge will be final and not subject to challenge.
3. Charged per Redemption. Offer Redemption Fees are fixed and charged per redemption at the rate advised at the time of Offer creation. Merchant understands that third parties may redeem Offers for unintended purposes, and Merchant acknowledges and agrees that Merchant may still be charged for such redemptions.
   • 1. Service Fees. For Items where an Offer has been applied as a discount to the Retail Price of the Item, Uber Kenya will charge Merchant a Service Fee based on the discounted Retail Price and not the full Retail Price. If Merchant's Offer consists of a discount on delivery, the Service Fee will be calculated as described in the Agreement and will not change. Merchant agrees that Merchant is solely responsible for Offer Costs and that Uber Kenya may deduct Offer Costs from Merchant's Item Revenue. If Merchant is paid for an Item, it is responsible for the Service Fee and relevant Offer Costs.
     2. Co-Funded Offers. In consideration for Merchant’s efforts in running an Offer and stimulating customer demand and user traction through the Uber Eats App, Merchant may charge Uber a fee to cover a portion of the cost of the relevant Offer (the “Promotional Fee”). Promotional Fees will be chargeable only where separately agreed upon for each Offer and may be self-billed in accordance with section 7(b)(i) of these General Supplemental Terms. Offer Redemption Fees (if applicable) will remain chargeable to Merchant for the Uber Kenya funded portion of the relevant offer.
     3. Modification, Suspension, Discontinuation. Uber reserves the right, at any time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the Offer Tools or the ability for Merchant to provide Offers. Merchant agrees that neither Uber nor any of its Affiliates shall be liable to Merchant (or to any third party) for the Offer or the Offer Tools, including for any modification, suspension or discontinuance of the Offer or the Offer Tools or providing Merchant with the ability to provide Offers.
   1. Publicity. 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.
4. Renewable Membership
5. Renewable Membership Program Inclusion. If the Renewable Membership Fee(s) and the Service Fee(s) are the same for any Method, Customers that hold a Renewable Membership may not (in Uber Kenya’s sole discretion) receive certain benefits when they purchase Items from the Merchant that they may otherwise receive when they purchase Items from other merchants on the Uber Eats App via the applicable method.
6. Renewable Membership and Aggregator Method. For Customers with a Renewable Membership the Merchant agrees to charge the Customer a Delivery Fees of KES 0.
7. Virtual Restaurants.
   1. Definition. A Merchant who currently offers Meals via the Uber Eats App may, under certain conditions, operate a Virtual Restaurant. All Virtual Restaurant Meals are sold by Merchant.
   2. Merchant’s Responsibilities. Without prejudice to any other provision of this Agreement, a Merchant operating a Virtual Restaurant must adhere to the following conditions:
      1. Merchant represents and warrants that Merchant will prepare and sell all Meals from Virtual Restaurant at Merchant’s restaurant premises.
      2. If this premises address changes, Merchant will provide Uber with no less than seven (7) days’ advance written notice.
      3. The Virtual Restaurant trading name is Merchant’s Mark and is subject to the indemnification provision of the Agreement. Merchant represents and warrants that (A) the Virtual Restaurant trading name does not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights and (B) it has the right to display the Virtual Restaurant trading name on the Uber Eats App. Merchant agrees that Uber may remove Virtual Restaurant from the Uber Eats App if Uber reasonably believes that it may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
      4. Uber may provide Merchant with Virtual Restaurant Data. Merchant agrees that any Virtual Restaurant Data provided by Uber or its Affiliates to Merchant constitutes Confidential Information.
8. Confidential Information; Personal Data; Feedback.
   1. Confidentiality. Each Recipient agrees that it will not disclose the Discloser’s Confidential Information to any third parties other than Representatives, or use it in any way other than as necessary to perform this Agreement. Each Recipient will ensure that Confidential Information will only be made available to those of its Representatives who have a need to know such Confidential Information and who, prior to any disclosure of such Confidential Information, are bound by written obligations of confidentiality with respect to such Confidential Information that are no less stringent than those set forth in this Agreement. 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 Confidential Information. The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes Uber to disclose the terms of this Agreement to Merchant’s franchisees in connection with executing contracts that reference this Agreement with such franchisees) and (ii) a Recipient is required to disclose certain Confidential 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 (to the extent legally permissible) 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 Confidential Information, together with all copies thereof in whatever form. Neither party makes any representation or warranty that Confidential Information is complete or accurate; all Confidential Information is provided "as is".
   2. Privacy. Merchant agrees to use Personal Data provided to Merchant by Uber solely for the purpose of providing Items to Customers under this Agreement. Merchant agrees to use Personal Data provided to Merchant by Uber solely by using the Uber Tools provided by Uber and shall not copy, store, retain, remove from the Uber Tools or otherwise process the Personal Data. Only in the Aggregator Method, Merchant is permitted to copy Personal Data provided via the Uber Tools and share it with its Aggregator Delivery Partners for the sole purpose of providing Items to Customers in accordance with this Agreement, and will be responsible for compliance with applicable data protection regulations as a data controller, or the responsible party, for such Personal Data as specified in clause 5(a) of the Aggregator Method Specific Supplemental Terms. In respect of any Personal Data transferred by Uber to Merchant, the parties agree that they shall enter into the Data Processing Agreement (controller to controller) in substantially the form attached at Addendum A, included as part of the Aggregator Method Specific Supplemental Terms.
   3. Aggregate Data. Merchant acknowledges that Uber may use aggregate, anonymized data related to Merchant’s transactions in connection with the Uber Eats Services ("Aggregate Data") and may share Aggregate Data with a commercial partner to achieve any commercial purpose, as described in paragraph (h) below. If Merchant allows a third party to provide technology services to Merchant in connection with Merchant’s obligations under this Agreement, then Uber may share Aggregate Data with such third party to enable the provision of Uber Eats Services to Merchant.
   4. Third Party Disclosure. Merchant acknowledges that Uber may share Merchant contact information (including name, address, email, and phone number) with third parties necessary to Merchant's onboarding on the Uber Eats App, including logistics and/or delivery service providers (for the delivery of Devices or other equipment), as well as photography services (for any photography which may be provided by a third-party provider on behalf of Uber).
   5. Passwords. Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Uber Tools and related Uber Eats Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.
   6. Data Identification Restriction. Without limiting any other provision of this Agreement, including any provision in this clause, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including, without limitation, 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, without limitation, any Personal Data, for the purpose of re-identification, targeted marketing, analytics or any other similar purpose.
   7. Feedback. Merchant may, but is not obligated to, provide or otherwise make available to Uber certain feedback, suggestions, comments, ideas, or other concepts relating to Uber’s products and services ("Feedback"). However, to the extent that Merchant provides or otherwise makes available Feedback to Uber, Merchant hereby grants to Uber a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use, reproduce, adapt, represent and otherwise exploit such Feedback, during the Term, using all means and media, and without any restriction of any kind with regard to exploitation methods, number of prints, dissemination or utilisation.
   8. Access to Uber Data. The Uber Data you have access to through your use of the Uber Eats Services and Uber Tools, includes onboarding data (e.g. bank account information, contact information, KYC information), operational data (e.g. order history, delivery information and other metrics), financial data (e.g. Item Revenue due to you, Fees due to Uber, past payout amounts), and feedback (from Customers and Delivery Partners). After expiry or termination of this Agreement, you will lose access to Uber Data. Uber has access to Uber Data via the Uber Tools and may use it for the purposes described in Uber’s Privacy Notice and for commercial purposes, unless expressly prohibited by this Agreement. Uber may share data with third parties as described in its Privacy Notice (available at privacy.uber.com), for example with service providers that assist Uber in providing the Uber Eats Services, and it is not possible for Merchant to opt-out of such sharing. Uber may also share Aggregate Data with selected partners for commercial purposes related to the Uber Eats App (“Partner Sharing”). It is not possible for Merchant to opt-out of Partner Sharing, however Merchant’s data is not individually identifiable within Aggregate Data. In case Uber Data is also considered, in accordance with applicable laws, Merchant’s Personal Data, the information provided in, and the rights afforded under, Uber’s privacy notice shall, in case of a conflict, supersede this paragraph.
9. Indemnification.
   1. Each party (the "Indemnifying Party") will indemnify, defend and hold harmless the other party, its affiliates and their respective directors, officers, employees and agents (the "Indemnified Party") from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, "Losses") with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents (in Merchant’s case, including Aggregator Delivery Partners but excluding Uber and Marketplace Delivery Partners to the extent they are Merchant’s agents) in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s (in Merchant’s case, including via Aggregator Delivery Partners) representations, warranties or covenants in this Agreement; and (iii) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party.
   2. Merchant will indemnify, defend and hold harmless the Uber Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, (B) Merchant’s failure to determine the applicable VAT and other fees charged; (C) Merchant’s failure to apply correct VAT rates, including those rates adjusted by Uber on Merchant’s behalf; (D) VAT, other fees, penalties, interest and other costs related to Merchant’s obligations; (E) Merchant copying, storing, retaining, removing from the Uber Tools or otherwise processing the Personal Data, except as permitted by clause 11(b) of these General Supplemental Terms; (F) any third party claim for actual or alleged infringement of a third party’s intellectual property or other proprietary rights arising out of or in connection with any Offer run by Merchant and use of Offer Materials; and/or (G) any third party claim arising out of or in connection with the manufacture, production, distribution, handling, advertising, consumption or use of, or otherwise relating to, any Offer run by Merchant, whether or not any claim arises during the Term of the Agreement, except in the case of each of (A)-(E) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of Uber or its employees, agents or Delivery Partners. With respect to the indemnities in (F) and (G) above, approval by an Uber Party of any Offer or use of any Offer Materials shall not affect this right of indemnification.
   3. Each Indemnified Party will 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. Insurance. 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 Kenya Shillings Thirty Million (KES 30,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Kenya Shillings Thirty Million (KES 30,000,000) in aggregate. All policies will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Merchant shall not cancel or materially reduce its insurance without thirty (30) days’ prior written notice to Uber. 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.
11. Auditing/Investigations. During the Term of the Agreement and for a period of 12 months after expiry or termination of it, on:
    1. an annual basis; and/or
    2. in case of any suspected or actual breach of (a) the Community Guidelines or any other code of conduct applicable to Merchant, (b) the Agreement, or (c) any of Merchant’s obligations under any applicable labour, anti-slavery or anti-bribery and corruption provisions, laws, regulations, guidelines and codes by Merchant or any Representative;

Uber shall have the right to audit (directly or indirectly) at Merchant’s offices, or request and receive copies of, any or all of Merchant’s records including, but not limited to payroll slips, social contribution expenses, tax returns, receipts and expenses, at Merchant’s cost, subject to at least twenty four (24) hours’ written notice. Merchant shall also inform Uber immediately in writing should it or any Representative be under investigation by any relevant authority in relation to any such potential or actual breach. Uber reserves the right to send Merchant questionnaires to assess compliance with the Agreement, to which Merchant agrees to reply within twenty-four (24) hours from the moment the questionnaire is sent, or a different deadline if specified in the questionnaire.

1. Governing Law and Dispute Resolution.
2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of Kenya without regard to its conflict of laws provisions.
3. Dispute Resolution. In the event of any dispute, conflict or controversy, howsoever arising out of or broadly in connection with or relating to this Agreement, including but not limited to those relating to its validity, its construction or its enforceability, Uber or Merchant may file an action in the courts of Kenya or pursue final and binding arbitration or other alternative dispute resolution as agreed upon by the parties.
4. Internal Complaint System. In case you face issues using the Uber Eats Services and/or have complaints about the Uber Eats Services or this Agreement, you can contact us free of charge via the ‘Help’ section in the Uber Tools or by visiting https://help.uber.com/restaurants so our support team can follow up. We will inform you of the outcome within a reasonable period of time.
5. General.
   1. Waiver. 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.
   2. Modification. Any modification or amendment to the Order Form shall be effective only if in writing and signed by both parties, provided that Uber reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Any modification or amendment to the Supplemental Terms shall be in accordance with clause II(B) of the Order Form.
   3. Severability. If any provision of the Agreement is held to be illegal, invalid or unenforceable, in whole or in part, such provision or part thereof shall to that extent be deemed not to form part of the Agreement but the legality, validity and enforceability of the remainder of the Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of the Agreement.
   4. Force Majeure Event. Any delay in or failure by either party in the performance of this Agreement shall be excused if and to the extent such delay or failure is caused by 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 the Agreement.
   5. Assignment. Merchant may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Uber. Uber may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement without consent or notification. Uber shall be expressly discharged from all obligations and responsibilities arising after the assignment or transfer. 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.
   6. Relationship between the Parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment or worker relationship (including from a labour law, tax law or social security law perspective), between Uber (and/or its Affiliates) and Merchant or Uber (and/or its Affiliates) and any Delivery Partners; and (b) except as specified in this Agreement, no joint venture, partnership, or agency relationship exists between Uber (and/or Uber’s Affiliates) and Merchant or Uber (and/or Uber’s Affiliates) and any Delivery Partners. 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 writing, executed by an authorized representative of the other party. Each party shall be solely responsible for its employees and contractors used in connection with this Agreement. Except as otherwise expressly provided herein with respect to Uber acting as the limited payment collection agent solely for the purpose of collecting payment from Customers on behalf of Merchant, the relationship between the parties under this Agreement is solely that of independent contractors.
   7. Entire Agreement. The Agreement contains the full and complete understanding and agreement between the parties and supersedes all prior and contemporary understandings and agreements, whether oral or written. In this Agreement, the words "including" and "include" mean "including, but not limited to."
   8. Third Party Beneficiaries. Merchant acknowledges that there are no third party beneficiaries to this Agreement, except for Uber B.V. (in its capacity as agent for Uber) and Uber’s Affiliates. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims, except with respect to Uber B.V. (in its capacity as agent for Uber) and Uber’s Affiliates.
   9. Liability. Nothing herein limits or excludes (nor is intended to limit or exclude) any statutory rights that Merchant or Uber may have under Applicable Laws that cannot be lawfully limited or excluded.
   10. Payment Processing Errors. Uber reserves the right, in its sole discretion, to seek reimbursement from Merchant if Uber discovers payment processing errors. Uber may deduct from Merchant's Item Revenue, debit Merchant's payment method on file, or seek reimbursement from Merchant by any other lawful means to correct any errors. Merchant authorizes Uber to use any or all of the above methods to seek reimbursement.
   11. Notice. Any notice will be sent to the address of the relevant party listed in the Order Form and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) three (3) days after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient.

SPECIFIC SUPPLEMENTAL TERMS

MARKETPLACE METHOD

The following Specific Supplemental Terms govern the use of the Marketplace Method and the general availability of Items via the Uber Eats App delivered to Customers by Marketplace Delivery Partners ("Marketplace Items"). All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.

1. Marketplace Items. Upon Merchant agreeing to the Order Form, Definitions, General Supplemental Terms and Specific Supplemental Terms governing the Marketplace Method, and contingent upon completion of any additional verification steps, the Uber Tools will be made available to Merchant to access and request on-demand delivery services performed by Marketplace Delivery Partners. The Uber Eats Services in connection with the Marketplace Method include, without limitation: (a) providing on-demand lead generation, logistics, payment processing, marketing, onboarding, operational and other support services in connection with the sale of Marketplace Items by Merchant via the Uber Eats App; and (b) enabling Merchant to access and request on-demand delivery services performed by Marketplace Delivery Partners.
2. Payment.
   1. Marketplace Service Fee. In consideration for the Uber Eats Services in connection with the Marketplace Method, Uber Kenya will charge Merchant a Marketplace Service Fee in the amount set out in the Order Form for each Marketplace Item sold by Merchant via the Uber Eats App. Uber Kenya will calculate the Marketplace Service Fee as follows: the Retail Price of the Item(s) sold by Merchant via the Uber Eats App (including any VAT or other sales tax) (the "Marketplace Item Payment") multiplied by the Marketplace Service Fee percentage. The Marketplace Service Fee shall be deemed to be exclusive of VAT.
   2. Marketplace Cash Orders. Uber Kenya may facilitate a delivery option to Customers in the Territory that allows Customers to pay for a given Marketplace Item provided by Merchant and all associated fees and charges resulting from that transaction in cash (a "Marketplace Cash Order").
   3. Collections. Notwithstanding the appointment of Uber by Merchant as its limited payment collection agent under the Agreement, in the event of a Marketplace Cash Order request by a Customer, Merchant authorizes a Marketplace Delivery Partner to collect the Marketplace Item Payment sold by Merchant via the Uber Eats App (including any VAT or other sales tax) together with the Marketplace Delivery Charge from the Customers on behalf of Merchant. The Marketplace Delivery Partner shall be notified of the funds to be collected by the Marketplace Delivery Partner ("Marketplace Cash Collections"), exclusive of any gratuities, in the Uber Eats App. Uber’s role as Merchant’s agent with regard to Marketplace Cash Collections shall be to collect the Marketplace Item Payment and Uber’s Marketplace Service Fee from Marketplace Delivery Partners by either obtaining the funds electronically or offsetting such amounts from funds otherwise due to Marketplace Delivery Partners from their delivery services in aggregate generated on the Uber Eats App. Merchant acknowledges and agrees that collection shall be the responsibility of the Marketplace Delivery Partner. If for whatever reason Marketplace Delivery Partner’s electronic payment to Uber is delayed or unsuccessful, Uber, in its capacity as Merchant’s collection agent, will act as a fall-back and ensure receipt of payment by Merchant. Merchant acknowledges and agrees that in consideration of Uber’s provision of lead generation, demand prediction, and other related services provided via the Uber Eats App under the Agreement, Merchant owes Uber the respective Marketplace Service Fee, regardless of collections related to the attempted or completed deliveries. Uber shall not be deemed to have waived its right to any amounts owed by Merchant if: (a) there are insufficient payment card order to set off against; (b) Merchant does not timely repay any amounts owed to Uber; or (c) Uber elects to require a minimum amount owed prior to initiating collection efforts or otherwise delays collecting amounts owed by Merchant. Uber reserves the right to suspend Merchant’s account if Merchant maintains a negative balance for more than one (1) week. With each payment statement, Uber shall report any offsetting and deductions.
   4. Revenue Transfer.

(i) Remittance by Uber. If, at the end of a Collection Period, Marketplace Item Revenue is due to be remitted to Merchant in accordance with subclause 2.c.ii.1, Uber (and/or its Affiliates) agrees to remit such funds due to Merchant, subject to the transfer amount meeting the minimum transfer threshold for remittance of funds set by Uber (in its sole discretion) and notified to the Merchant from time time. Notwithstanding the above, Uber agrees to remit to the Merchant, all remaining amounts constituting Marketplace Item Revenue held on behalf of Merchant which have not previously been transferred to the Merchant, at the end of each two week period (or such shorter time period), as determined by Uber in its sole discretion. For the avoidance of doubt, the calculation of Marketplace Item revenue is inclusive of VAT and other sales taxes).

(ii) Remittance by Merchant. If, at the end of a Collection Period, Uber is due to be remitted amounts (including Marketplace Service Fees, refunds from digital orders and agreed deductibles) in accordance with subclause 2.c.ii.2, Merchant agrees that it will remit such amounts due to Uber within the time frame notified to Merchant by Uber (or its Affiliates) from time to time.

1. Batched Trips. Uber may, at its sole discretion, arrange for one Marketplace Delivery Partner to deliver orders to multiple Customers as part of the same trip. Batched trips may include multiple orders from Merchant, or one or more orders from Merchant combined with one or more orders from other merchants using the Uber Eats App.

AGGREGATOR METHOD

The following Specific Supplemental Terms govern the Aggregator Method and Items delivered to Customers on behalf of Merchant by Aggregator Delivery Partners ("Aggregator Items"). All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.

1. Aggregator Items. Upon Merchant agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Aggregator Method, and contingent upon completion of any additional verification steps, the Uber Tools will be made available to Merchant for it to (a) access and request lead generation, demand prediction, payment processing and other related services in connection with its sale and delivery of Items; and (b) fulfil the delivery of its Items using Aggregator Delivery Partners. Uber Kenya does not provide any delivery services with the Aggregator Method. Rather, Uber Kenya provides lead generation, logistics, demand prediction, payment processing and other related services in connection with the sale and delivery by or on behalf of Merchant of Items to be delivered by Aggregator Delivery Partners.
2. Payment.
   1. Aggregator Service Fee. In consideration for the Uber Eats Services in connection with the Aggregator Method, Uber Kenya will charge Merchant an Aggregator Service Fee in the amount set forth in the Order Form for each Aggregator Item sold by Merchant via the Uber Eats App. Uber Kenya will calculate the Aggregator Service Fee as follows: the Retail Price of the Aggregator Item(s) sold by Merchant via the Uber Eats App (including any VAT or other sales tax) (such amount, the "Aggregator Item Payment") multiplied by the Aggregator Service Fee percentage. The Aggregator Service Fee shall be deemed to be exclusive of VAT.
   2. Aggregator Delivery Services. Merchant will pay Aggregator Delivery Partners for their delivery services provided to Merchant at its sole discretion, and Merchant is at all times solely responsible for providing payment to Aggregator Delivery Partners. If Merchant is paid for an order, Merchant is responsible for the Aggregator Service Fee even if an Aggregator Delivery Partner is unable to complete the delivery. If applicable, Merchant authorizes Uber and/or its Affiliates to collect a delivery charge from Customers on its behalf (the "Aggregator Delivery Charge").
   3. Aggregator Cash Deliveries. Uber may facilitate a delivery option to Customers that allows them to pay for a given Aggregator Item provided by Merchant and all associated fees and charges resulting from that transaction in cash (an "Aggregator Cash Order"). Notwithstanding the appointment of Uber and/or its Affiliates by Merchant as its limited payment collection agent under the Agreement, in the event of an Aggregator Cash Order request by a Customer, Merchant authorizes an Aggregator Delivery Partner to collect the Retail Price of the Aggregator Item(s) sold by Merchant via the Uber Eats App (including any VAT or other sales tax) together with the Aggregator Delivery Charge from the Customer on behalf of Merchant. The Aggregator Delivery Partner shall be notified of the funds to be collected by the Aggregator Delivery Partner ("Aggregator Cash Collections"), exclusive of any gratuities, in the Uber Eats App. Merchant acknowledges and agrees that collection shall be the responsibility of the Aggregator Delivery Partner. Merchant acknowledges and agrees that in consideration of Uber Kenya’s provision of the Uber Eats Services under the Agreement, Merchant owes Uber the respective Aggregator Service Fee (including any VAT or other sales tax), regardless of collections related to any attempted or completed deliveries of the Aggregator Items. Uber shall not be deemed to have waived its right to any amounts owed by Merchant if: (a) there are insufficient payment card order to set off against; (b) Merchant does not timely repay any amounts owed to Uber; or (c) Uber elects to require a minimum amount owed prior to initiating collection efforts or otherwise delays collecting amounts owed by Merchant. Uber reserves the right to suspend Merchant’s account if Merchant maintains a negative balance for more than one (1) week. With each payment statement, Uber shall report any offsetting and deductions.
   4. Revenue Transfer. Uber and/or its Affiliates will transfer to Merchant the total (i) Aggregator Item Payment earned by Merchant (other than with respect to Aggregator Cash Orders); (ii) Aggregator Delivery Charge collected from Customers on Merchant’s behalf (other than Aggregator Delivery Charges directly collected by Aggregator Delivery Partners with respect to Aggregator Cash Orders) (iii) gratuity paid by a Customer in respect of delivery services, if applicable, (iv) less (1) the Aggregator Service Fee (including VAT or other sales taxes) and (2) any refunds given on behalf of Merchant to Customers (such final transferred amount being the "Aggregator Item Revenue"). The Aggregator Item Revenue will be transferred on a bi-weekly basis.
   5. No Additional Amounts. Merchant acknowledges that the Aggregator Item Payment and, where applicable, the Aggregator Delivery Charge is full payment for the Items and delivery services provided to Customers, although the Uber Eats Services may provide Customers with the ability to apply a gratuity through the Uber Eats Services. With regard to cash gratuities provided by a Customer directly to an Aggregator Delivery Partner, no portion of that gratuity is owed to or should be paid to Uber.
3. Aggregator Delivery Terms.
   1. Provision of Delivery Services. If Merchant chooses for delivery services to be fulfilled by an Aggregator Delivery Partner, Merchant will need to provide the Aggregator Delivery Partner with certain Customer Information provided to Merchant through the Uber Tools, including (as applicable) the drop-off location of the applicable Items to be delivered and the name and phone number of the Customer. In order to enhance Customer’s satisfaction with the delivery services, it is recommended that an Aggregator Delivery Partner: (i) follow Merchant’s instructions for drop-off details (e.g., the location within the building address to pick-up/drop-off a package, etc.); and (ii) wait at least ten (10) minutes for the Customer to appear at the requested pick-up or drop-off location. Merchant represents and warrants that it shall not, and shall ensure that all Aggregator Delivery Partners do not, contact any Customers or use any of the Customer’s Personal Data collected in the course of providing the delivery services for any reason other than for the purposes of fulfilling delivery services. As between Uber and Merchant, Merchant acknowledges and agrees that: (a) Merchant and Aggregator Delivery Partners shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of delivery services; and (b) except for the Uber Eats Services and Uber Tools, Merchant shall provide all necessary equipment, tools and other materials, at Merchant’s expense, necessary to perform delivery services.
   2. Merchant’s Relationship with Customers. Uber and its Affiliates are not responsible or liable for the actions or inactions of a Customer in relation to the activities of Merchant, Aggregator Delivery Partners or any Transportation Method. Merchant acknowledges and agrees that each Aggregator Delivery Partner shall have the sole responsibility for any obligations or liabilities to Merchant, Customers or other third parties that arise from an Aggregator Delivery Partner’s provision of delivery services. Merchant acknowledges and agrees that: (a) Merchant and each Aggregator Delivery Partner is solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all Applicable Laws) regarding any acts or omissions of a Customer or other third party; and (b) Uber or its Affiliates may release Merchant’s or Aggregator Delivery Partner’s contact and/or insurance information to a Customer upon such Customer’s reasonable request (e.g., in connection with an accident).
   3. Merchant’s Relationship with Uber. Merchant acknowledges and agrees that Uber’s provision to Merchant of the Uber Eats Services creates a legal and direct business relationship between Merchant and Uber. Uber does not, and shall not be deemed to, direct or control Merchant or its Aggregator Delivery Partners generally or in its or their performance under this Agreement specifically, including in connection with the operation of its business, the provision of delivery services, the acts or omissions of Aggregator Delivery Partners, or the operation and maintenance of any Transportation Method. Merchant and Aggregator Delivery Partners retain the sole right to determine when, where and for how long each of them will utilize the Uber Eats Services. Merchant will not, and will ensure that its Aggregator Delivery Partners do not: (a) display Uber’s or any of its affiliates’ names, logos or colours on any Transportation Method; or (b) wear a uniform or any other clothing displaying Uber’s or any of its affiliates’ names, logos or colours. The foregoing does not apply if Merchant and Uber have agreed otherwise in writing or if so required by law. Merchant acknowledges and agrees that Merchant has complete discretion to operate its independent business and direct its Aggregator Delivery Partners at its own discretion, including the ability to provide services at any time to any third party separate and apart from the delivery services. Merchant understands that it retains the complete right to: (i) provide delivery services to its existing Customers; and (ii) use other software application services in addition to the Uber Eats Services.
   4. Merchant’s Relationship with Aggregator Delivery Partners. Merchant shall have the sole responsibility for any obligations or liabilities to Aggregator Delivery Partner that arise from its relationship with Aggregator Delivery Partners (including the provision of delivery services). Merchant acknowledges and agrees that it exercises sole control over the Aggregator Delivery Partners and will comply with (a) all Applicable Laws (including tax, social security and employment laws where applicable) governing or otherwise applicable to its relationship with Aggregator Delivery Partners; (b) industry best practice in respect of working conditions and compensation for Aggregator Delivery Partners. Notwithstanding Merchant’s rights, if applicable, to take recourse against Aggregator Delivery Partners, Merchant acknowledges and agrees that it is at all times responsible and liable for the acts and omissions of Aggregator Delivery Partners vis-à-vis Customers, Uber and its Affiliates, even where such liability may not be mandated under Applicable Law. Merchant hereby indemnifies Uber against any claims brought by or against Aggregator Delivery Partners.
   5. Modern Slavery Prohibition. Merchant shall not engage in any practice which would violate any national or international law regarding slavery or human trafficking. Furthermore, Merchant shall notify Uber as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain that has a connection with the Agreement.
4. Aggregator Delivery Partners and Transportation Methods.
   1. Aggregator Delivery Partner’s Requirements. Merchant acknowledges and agrees that each Aggregator Delivery Partner shall at all times: (i) hold and maintain (A) a valid applicable licence with the appropriate level of certification to operate the Transportation Method assigned to each Aggregator Delivery Partner (e.g., a driver’s licence if the Transportation Method is a motor vehicle), and (B) all licences, permits, approvals and authority applicable to Merchant and/or Aggregator Delivery Partner that are necessary to provide delivery services to third parties in the Territory; (ii) provide the delivery services in a professional manner with due skill, care and diligence; and (iii) maintain high standards of professionalism, service and courtesy. Merchant will undertake background and driving record checks from time to time, to the extent that such checks would be undertaken by a prudent Merchant exercising reasonable skill and care. Merchant acknowledges and agrees that Uber reserves the right, at any time in Uber’s sole discretion, to (i) deactivate or otherwise restrict Merchant from accessing or using the Uber Eats Services and/or Uber Tools, and/or (ii) request that Merchant prevent an Aggregator Delivery Partner from providing delivery services on behalf of Merchant in connection with the Uber Eats Services, in each case if Merchant and/or an Aggregator Delivery Partner fails to meet the requirements set forth in this Agreement. In the event that Uber requests that Merchant prevents an Aggregator Delivery Partner from providing delivery services on behalf of Merchant in connection with the Uber Eats Services, Merchant shall procure compliance with such request.
   2. Transportation Method Requirements. Merchant acknowledges and agrees that any Transportation Method will at all times be: (i) properly registered and licensed to operate as a delivery vehicle in the Territory (if the Transportation Method is a vehicle); (ii) owned or leased by Merchant, or otherwise in its lawful possession; (iii) suitable for performing the delivery services contemplated by this Agreement; and (iv) maintained in good operating condition, consistent with industry safety and maintenance standards for a Transportation Method of its kind and any additional standards or requirements in the applicable Territory, and in a clean and sanitary condition.
   3. Taxes. Merchant acknowledges and agrees that Merchant is required to: (i) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of delivery services and receipt of the Uber Eats Services as required by Applicable Law; and (ii) provide Uber with all relevant tax information (including a valid VAT registration number belonging to Merchant and/or any Aggregator Delivery Partner, if obtaining a VAT registration number is required of Merchant and/or any Aggregator Delivery Partner by Applicable Law). Merchant further acknowledges and agrees that Merchant and each of its Aggregator Delivery Partners are responsible for taxes on their own income arising from the performance of delivery services. Notwithstanding anything to the contrary in this Agreement, Uber may in its reasonable discretion, and Merchant accordingly gives consent to Uber and its affiliates to, based on applicable tax and regulatory considerations, collect and remit taxes resulting from the provision of delivery services and/or provide any of the relevant tax information Merchant and/or any Aggregator Delivery Partner has provided pursuant to the requirement mentioned above, directly to the applicable governmental tax authorities on Merchant’s and/or the applicable Aggregator Delivery Partner’s behalf or otherwise.
5. Privacy.
   1. In respect of any Personal Data transferred by Uber to Merchant, the parties agree that they shall enter into the Data Processing Agreement (controller to controller) in substantially the form attached at Addendum A. Merchant agrees to retain Personal Data provided to Merchant by Uber solely by using the software and tools provided by Uber, except that Merchant may provide Aggregator Delivery Partners with the Personal Data specified in the Data Processing Agreement between the parties (or any other Personal Data as Uber deems required in its sole discretion) to be used by an Aggregator Delivery Partner solely for the purpose of delivering the applicable Item(s). To the extent that any Personal Data is printed or written on a receipt and transferred to the Aggregator Delivery Partner, Merchant shall procure that (i) the Aggregator Delivery Partner transfers such receipt to the Customer on delivery of the Item(s); or (ii), if the delivery services cannot be completed, the Aggregator Delivery Partner returns such receipt to Merchant and Merchant disposes of such receipt.
   2. Subject to Applicable Law, Uber and its Affiliates may provide to Merchant, a Customer, an insurance company, commercial partners and/or relevant authorities and/or regulatory agencies any information (including Personal Data and Confidential Information) about Merchant or an Aggregator Delivery Partner or any delivery services provided hereunder if: (i) there is a complaint, dispute or conflict, including an accident, between an Aggregator Delivery Partner and Merchant or an Aggregator Delivery Partner and a Customer; (ii) it is necessary to enforce the terms of this Agreement; (iii) it is required, in Uber’s or any Affiliate’s sole discretion, by Applicable Law or regulatory requirements (e.g., Uber or its Affiliates receive a subpoena, warrant, or other legal process for information); or (iv) it is necessary, in Uber’s or any Affiliate’s sole discretion, to (A) protect the safety, rights, property or security of Uber or its Affiliates, the Uber Eats Services, the Uber Tools or any third party; (B) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Uber Eats Services; (C) to detect, prevent or otherwise address fraud, security or technical issues; (D) to prevent or stop activity which Uber or any of its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity; (v) it is necessary, in Uber’s or any Affiliate’s sole discretion, to achieve any commercial interest or (vi) it is required or necessary, in Uber’s or any Affiliate’s sole discretion, for insurance or other purposes related to Merchant and/or its Aggregator Delivery Partners. Merchant understands, and will make Aggregator Delivery Partners aware, that Uber and its Affiliates may retain Merchant and Aggregator Delivery Partners’ Personal Data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
   3. Uber and its Affiliates may collect Merchant or Aggregator Delivery Partners’ Personal Data during the course of Merchant’s use of the Uber Eats Services, or from third parties. Such information may be processed by Uber and its Affiliates, third parties and service providers, in accordance with its privacy notice (www.privacy.uber.com).
6. Insurance.
   1. Prior to the Effective Date of the Agreement, Merchant must obtain the coverage required at its sole cost and expense. Merchant agrees to review the terms and conditions of such coverage to ensure that it provides the amounts of coverage required while Merchant and its Aggregator Delivery Partners are using a vehicle to provide delivery services. As between Merchant and Uber, it is Merchant’s sole responsibility to inform its insurer of the use of its vehicles while providing delivery services.
   2. Merchant agrees to maintain during the Term all compulsory insurance required by Applicable Law to provide delivery services in the Territory. This shall include any applicable compulsory motor vehicle liability insurance on all vehicles operated by Merchant and Aggregator Delivery Partners under this Agreement which provides protection against bodily injury and property damage to Merchant and/or Aggregator Delivery Partners, and third parties at levels of coverage that satisfy the minimum requirements to operate a motor vehicle being used for delivery services on the public roads within the Territory. This shall also include Commercial General Liability insurance that provides protection against personal injury, advertising injury and property damage to third parties at levels of coverage required by all Applicable Laws in the Territory. Merchant shall add Uber (or any Affiliate which may be designated by Uber from time to time) to its insurance policies required as an additional insured. Merchant agrees to provide Uber a copy of the insurance policy, policy declarations, certificate of Motor Vehicle Liability insurance and proof of premium payment for the insurance policy required upon request. Furthermore, such insurance as required shall not be cancelled or materially reduced without thirty (30) days’ prior written notice to Uber. Uber shall have no right to control Merchant’s selection or maintenance of its policy. Merchant must be a named insured or individually rated driver, for which a premium is charged, on any insurance policy required at all times.
   3. Merchant agrees to maintain, during the term of this Agreement, Employer’s Liability insurance where required by local law in the Territory. Merchant may also choose where permitted by local law to insure itself against industrial injuries by maintaining Occupational Accident insurance in place of Employer’s Liability insurance. Furthermore, if permitted by Applicable Law, Merchant’s subcontractors may also, to the extent permitted by Applicable Law, maintain occupational accident insurance in place of Employer’s Liability insurance.
7. Representations and Warranties; Disclaimers. Merchant’s representation and warranty to comply with all Applicable Laws in the performance of the Agreement (as per clause III(A) of the Order Form) shall include holding and complying with all permits, licences, registrations and other governmental authorisations necessary to provide (i) delivery services using the Transportation Method pursuant to this Agreement, and (ii) delivery services to third parties in the Territory generally.
8. Tax Indemnity. Merchant shall comply with all of its obligations under tax and social security laws to the extent applicable to this Agreement. Merchant shall indemnify Uber and its Affiliates from all tax liabilities, duties, levies, claims and penalties that may be imposed on Merchant or on Uber and/or its affiliates as a result of Merchant’s failure to comply with any of its tax obligations. In particular, but without limitation to the foregoing, such taxes or duties shall include taxes, wages or other duties or withholdings (including any wage tax, social insurance premiums or employee insurance premiums) arising in the event that the relationship described in this Agreement, contrary to the intention and meaning of the parties, should be held to be an employment agreement between Uber and Merchant by any fiscal or social security authority.
9. Relationship of the Parties.
   1. Merchant has no authority to bind Uber and/or its Affiliates and Merchant undertakes not to hold itself out, and to ensure that each Aggregator Delivery Partner does not hold herself or himself out, as an employee, worker, agent or authorized representative of Uber and/or its Affiliates. Where, by implication of mandatory law or otherwise, Merchant or any Aggregator Delivery Partner may be deemed an employee, worker, agent or representative of Uber or an Affiliate of Uber, Merchant undertakes and agrees to indemnify, defend (at Uber’s option) and hold Uber and its affiliates harmless from and against any claims by any person, entity, regulators or governmental authorities based on such implied employment, agency or representative relationship.
   2. Merchant expressly acknowledges and agrees that by agreeing to this Agreement, Merchant intends to perform delivery services in a non-incidental manner and, as such, Uber will consider that Merchant and Aggregator Delivery Partners comply with all applicable VAT and indirect tax legislation.

ADDENDUM A

UBER DATA PROCESSING AGREEMENT

This data processing agreement (”Agreement”) forms part of the main agreement(s) between Uber and Provider (each individually a Party and collectively the “Parties”) and all further agreements executed under it (collectively, the “Main Agreement(s)”) pursuant to which Provider provides services to Uber. This Agreement is effective as of (1) the execution date of the Main Agreement if incorporated as an exhibit thereto; or (2) the date last signed if executed as an amendment to or otherwise separately from the Main Agreement.

DEFINITIONS

The following terms shall have the following meanings. Capitalized terms not defined herein shall have the same meaning set forth in the Main Agreement(s).

1. “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a Party.
2. “Controller” means the party or parties to this Agreement that determine(s) the purposes and means of the Processing of personal data for purposes of the Agreement or the Main Agreement.
3. “Controller Personal Data” means any Personal Data Processed by a Party under the Agreement in its capacity as a Controller.
4. “Data Protection Law” means all laws and regulations applicable to the Processing of Uber Personal Data under the Agreement, including, as applicable, the laws and regulations of the United States, the European Union, the European Economic Area and their member states, Switzerland and the United Kingdom, including the General Data Protection Regulation (EU) 2016/679 (“GDPR”) and the California Consumer Privacy Act of 2018 (“CCPA”).
5. “Data subject” means an identified or identifiable natural person.
6. “Personal data” shall mean “personal data,” “personal information,” or equivalents as defined in applicable Data Protection Laws. In the absence of applicable Data Protection Laws, “Personal data” shall mean any information relating, directly or indirectly, to an identified or identifiable natural person.
7. “Process,” “Processes,” “Processing,” or “Processed” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collecting, recording, accessing, releasing, disclosing, making available, organizing, structuring, storing, adapting or altering, retrieving, consulting, using, disclosing by transmission, dissemination or otherwise, aligning or combining, restricting, erasing or destroying.
8. “Processor” means a Party to this Agreement that Processes personal data on behalf of Uber or Uber Affiliates. The term Processor as used herein is equivalent to the term “Processor” as used in the GDPR, and the term “Service Provider” as used in the CCPA.
9. “Services” means the services provided or received by the Parties pursuant to the Main Agreement.
10. “Sub-processor” means a Processor engaged by Provider, or a Processor engaged by a Sub-processor of Provider, to Process Uber Personal Data.
11. “Uber Data Subject” means the data subject whose Uber Personal Data is, or will be, Processed.
12. “Uber Personal Data” means Uber Data Subject personal data that is Processed by Provider for the purpose of rendering Services for Uber or any Uber Affiliate as further described in Annex 1 Uber Personal Data. For purposes of this Agreement, Uber Personal Data does not include the name and contact information of those Uber employees who are responsible for interacting with Provider in connection with its performance of the services under the Main Agreement, and any Personal Data incidentally received by Provider in connection with those interactions.
13. GENERAL TERMS
    1. Roles of Parties. The Parties acknowledge and agree that Uber is Controller of the Personal Data Processed in connection with the Main Agreement^[1], and that Provider is [check one]:

𝥷 a Processor of such Personal Data, in which case the Processor Terms set forth in Section 2 shall apply (in exclusion of the terms in Section 3).

X an independent Controller of such Personal Data, in which case the Controller Terms set forth in Section 3 shall apply (in exclusion of the terms in Section 2).

• • 1. Uber reserves the right to designate another Uber affiliate as Data Controller for purposes of this Agreement.
  1. Uber Personal Data Processing
     1. Uber Personal Data and Data Subjects. In connection with its performance of the Services, Provider will Process the Uber Personal Data relating to the Uber Data Subjects described in Annex 1, which may be amended by the Parties from time to time.
     2. Limitations and Prohibitions.
        1. Provider shall only Process Uber Personal Data for the purpose of performing the services specified in the Main Agreement, and may not use Uber Personal Data for any other purpose unless otherwise agreed by the Parties in writing.
        2. Provider shall (1) limit access to Uber Personal Data to only those employees or agents that require access to perform their roles and responsibilities in connection with the Services, and (2) under no circumstances rent, sell or disclose Uber Personal Data, except as otherwise allowed under this Agreement or the Main Agreement.
        3. Provider will not combine Uber Personal Data with data from any other source, company, organization or entity, unless necessary to provide the Services. Provider will not copy or reproduce Uber Personal Data for its own purposes or those of any sub-processor or other third party.
     3. Data Security. Provider will maintain appropriate measures to protect the integrity, security and confidentiality of all Uber Personal Data against any anticipated threats or hazards, and/or unauthorized access to or use of such data, which measures shall include at a minimum those set forth in Annex 2 to this Agreement.
     4. Data Retention and Deletion
        1. Provider shall retain Uber Personal Data for only so long as necessary to perform its obligations under the Main Agreement(s), unless otherwise required under applicable laws.
        2. Upon termination or expiration of the Main Agreement(s) or earlier as requested by Uber, Provider shall destroy or return to Uber (at Uber’s election) all Uber Personal Data in its possession, custody and control, except for such Personal Data as must be retained under applicable law (which Provider shall destroy once it is no longer required under applicable law to retain). At Uber’s request, Provider shall provide Uber with a written log evidencing the destruction and any retention of Uber Personal Data.
     5. Data Security Incidents
        1. Notice to Uber. Provider shall notify Uber within twenty-four (24) hours of discovery of an actual or suspected unauthorized access to, acquisition or disclosure of Uber Personal Data, or other actual or suspected breach of security or confidentiality with respect to Uber Personal Data in Provider’s or its representatives’ control or possession (a “Data Security Incident”). Such notice shall be sent to the Uber persons or team designated to receive notices under the Main Agreement; and (2) via email to vendorsecurity@uber.com.
        2. Third Party Notices. If a Data Security Incident requires notice to any regulator, data subject or other third party: (1) Uber shall have sole control over the content, timing and method of distribution of any needed notice, unless otherwise required by applicable law; (2) Provider may notify the affected parties only upon Uber’s prior written approval and instructions, unless otherwise required by applicable law; and (3) Provider shall reimburse Uber all reasonable expenses incurred by Uber in connection with any notice with respect to any breach of security or confidentiality for which Provider is wholly or partially responsible.
        3. Notice requirements. The notice to Uber required under Paragraph 1.2.5.1 shall include:

1. a description of the Data Security Incident, including the location, date and time the Data Security Incident occurred and the location, date and time the Data Security Incident was discovered;
2. a description of the steps Provider has taken, or plans to take, to investigate the Data Security Incident;
3. an overview of the affected Uber Personal Data, including the types of Uber Personal Data and whether the Uber Personal Data was encrypted or redacted;
4. the number of affected Uber Data Subjects and the city, state (if applicable) and country of the Data Subjects;
5. the expected consequences of the Data Security Incident; and a description of the measuresProvider has taken, or plans to take, to mitigate such consequences.
   1. Indemnification. In addition to the terms set forth in the Main Agreement(s), Provider agrees to fully indemnify, defend and hold harmless Uber, its directors, officers, employees and agents from and against any and all losses, damages, fees and expenses arising from any claims due to, arising out of, or relating in any way to Provider’s loss, alteration, or misuse of Uber Personal Data, or unauthorized access to or destruction or disclosure of Uber Personal Data.
   2. Cross border transfer. In the event that the Services require cross-border transfer of Uber Personal Data, to the extent required by applicable law, the Parties hereby incorporate, and Provider agrees to comply with, the Standard Contractual Clauses approved by the European Commission for data transfers, or other methods of transfer authorized under applicable laws.
6. PROCESSOR TERMS
   1. Compliance with Uber instructions and applicable laws. In connection with its Processing of Uber Personal Data, Provider shall at all times comply with Uber’s written instructions pursuant the Main Agreement(s) and all applicable laws, rules and regulations, including but not limited to, all applicable Data Protection Law.
   2. Internal Audits. Upon written request, Provider shall provide, at its own expense, if available, any data security compliance reports or audit reports that assess the effectiveness of Provider’s information security program, system(s), internal controls, and procedures relating to the Processing of Uber Personal Data (e.g., SSAE16, SOC report or other).
   3. Uber Audits. Upon reasonable advance written notice, Uber may (not more than once per year) during normal business hours and at its own expense, audit Provider’s facilities, networks, systems, procedures, Processing and maintenance of Uber Personal Data, and compliance with this Agreement. Notwithstanding the foregoing, Uber shall be permitted to exercise such audit right any time a Data Security Incident (as defined in Section 1.2.5.1 above) has occurred. Provider shall reasonably cooperate with such audit by providing access to knowledgeable personnel, physical premises as applicable, documentation, infrastructure, and any application software that Processes Uber Confidential Information and/or Uber Personal Data or otherwise has access to Uber’s networks and systems. Uber shall be responsible for its costs and expenses of such audit (or the fees and costs of the third party performing the audit), unless such audit reveals, or is initiated because of, a material breach of the Main Agreement(s) including this Agreement, in which case Provider will reimburse Uber for such costs and expenses. Provider will promptly address and correct all deficiencies identified in any such audit.
   4. Requests or Demands from Governmental or Regulatory Bodies. Provider shall inform Uber as soon as possible if it receives a request or demand from a governmental or regulatory body with authority over Provider or Uber relating to Provider’s Processing of Uber Personal Data, and shall fully cooperate with Uber in connection with any response to such investigation or audit.
   5. Data Subject Rights. If Provider receives a request from an Uber Data Subject relating to their Uber Personal Data, Provider shall immediately forward the request to Uber and provide all reasonable cooperation necessary for Uber to fulfill the Uber Data Subject’s request in compliance with applicable laws.
   6. Data Handling Frameworks: If requested by Uber, Provider shall further agree to contractually comply with PCI DSS Standards, requirements for business associates under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as well as similar and other frameworks, if and to the extent such frameworks apply to the Uber Personal Data.
   7. Sub-processors
      1. Sub-processor obligations. Provider will not permit any Sub-processor to Process Uber Personal Data, unless Provider and the Sub-processor have entered into an agreement that imposes obligations on the Sub-processor that are no less restrictive and at least equally protective of Uber Personal Data than those imposed on Provider under this Agreement. Uber may request a copy of such agreement between Provider and any Sub-processor, and may withhold consent to the use of such Sub-Processor if Provider does not provide such agreement or such agreement does not contain sufficient protection of Uber Personal Data.
      2. Compliance with Data Protection Law. Provider is responsible for ensuring the compliance of Sub-processors with applicable Data Protection Law in connection with the Processing of Uber Personal Data.
      3. Liability. Provider’s use of Sub-processors does not affect or limit Provider’s liability under this Agreement.
7. CONTROLLER TERMS
   1. Roles of Parties. Each Party:
      1. is an independent controller of Controller Personal Data under the Data Protection Law.
      2. will individually determine the purposes and means of its Processing of Controller Personal Data.
      3. will individually inform data subjects and allow data subjects to exercise their rights under applicable laws.
      4. will comply with the obligations applicable to it under the Data Protection Law with respect to the Processing of Controller Personal Data.
   2. Restrictions. Section 3.1 will not affect any restrictions on either Party’s rights to use or otherwise Process Controller Personal Data under the Main Agreement.
8. MISCELLANEOUS
   1. Termination and Survival. This Agreement and all provisions herein shall survive so long as, and to the extent that, Provider Processes or retains Uber Personal Data, except that the indemnification obligations described herein shall survive for so long as any claims for which Uber is indemnified by Provider under this Agreement may be asserted.
   2. Counterparts. This Agreement may be executed in any number of counterparts and any Party (including any duly authorized representative of a Party) may enter into this Agreement by executing a counterpart.
   3. Ineffective clause. If individual provisions of this Agreement are or become ineffective, the effectiveness of the remaining provisions shall not be affected. The Parties shall replace the ineffective clause with a legally allowed clause, which will accomplish the intended commercial intention as closely as possible.
   4. Conflicts. In case of contradictions between this Agreement and the provisions of the Main Agreement, the provisions of this Agreement shall prevail. In case of contradictions between this Agreement and the provisions of a Business Associate Agreement (“BAA”) pursuant to HIPAA on the other, the provisions of the BAA shall prevail.
   5. Applicable law and jurisdiction. The applicable law and jurisdiction as set forth in the Main Agreement apply to this Agreement.

Annex 1 - Uber Personal Data

1. Description of Provider’s Services and the reasons for Processing Uber Personal Data
2. Categories of Uber Personal Data (check all that apply)

1. Categories of Uber Data subjects (check all that apply)

Annex 2 - Organizational, Physical and Technical Measures

1. Organizational Security Measures
   1. Security Program. Provider has developed and implemented, and will consistently update and maintain as needed: (i) a written and comprehensive information security program in compliance with applicable Data Protection Law; and (ii) reasonable policies and procedures designed to detect, prevent, and mitigate the risk of data security breaches or identify theft (“Security Program”). Specifically, the Security Program shall include, at a minimum:
      1. a data loss prevention program, with appropriate policies and/or technological controls designed to prevent loss of Uber Personal Data; and
      2. a disaster recovery/business continuity plan that addresses ongoing access, maintenance and storage of Uber Personal Data as well as security needs for back-up sites and alternate communication networks.
   2. Access.
      1. Provider shall reasonably update all access rights based on personnel or computer system changes, and shall periodically review all access rights at an appropriate frequency to ensure current access rights to Uber Personal Data are appropriate and no greater than are required for an individual to perform his or her functions necessary to fulfill the purposes of the Agreement.
      2. Provider shall verify all access rights through effective authentication methods.
2. Physical Security Measures
   1. Provider shall maintain appropriate physical security measures for any facility used to Process Uber Personal Information and continually monitor any changes to the physical infrastructure, business, and known threats.
3. Technical Security Measures
   1. Vulnerability scanning and assessments. Provider shall perform vulnerability scanning and assessments on new and key applications and infrastructure.
   2. Access Control and Limiting Remote Access. Provider shall secure its computer networks using multiple layers of access controls to protect against unauthorized access.
      1. Provider shall restrict access through mechanisms such as, but not limited to, management approvals, robust controls, logging, and monitoring access events and subsequent audits.
      2. Provider shall identify computer systems and applications that warrant security event monitoring and logging, and reasonably maintain and analyze log files.
   3. Encryption. Provider shall encrypt all Uber Personal Data in its possession, custody or control while in transit.
   4. Security Patches. Provider shall deploy all applicable and necessary system security patches to all software and systems that Process, store, or otherwise support the Agreement.
   5. Virus/Malware Scanning. Provider shall use up-to-date, industry standard, commercial virus/malware scanning software that identifies malicious code on all of its systems that collect, use, disclose, store, retain or otherwise Process Uber Personal Data.
      

NON-DELIVERY

The following Specific Supplemental Terms govern the Non-Delivery Method and Items provided to Customers via the Non-Delivery Method ("Non-Delivery Items"). All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.

1. Non-Delivery Items. Upon Merchant agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Non-Delivery Method, and contingent upon completion of any additional verification steps, the Uber Tools will be made available to Merchant for it to allow Customers to collect Items requested via the Uber Eats App from a specified location without the involvement of a Delivery Partner. Merchant agrees to make Items available via the Uber Eats App during its normal business hours, and as further set forth in this clause or mutually agreed between the parties in writing.
2. Payment.
   1. Non-Delivery Service Fee. In consideration for the Uber Eats Services in connection with the Non-Delivery Method, Uber Kenya will charge Merchant a Non-Delivery Service Fee in the amount set forth in the Order Form for each Non-Delivery Item sold by Merchant via the Uber Eats App. Uber Kenya will calculate the Non-Delivery Service Fee as follows: the Retail Price of the Item(s) sold by Merchant via the Uber Eats App (including any VAT or other sales tax) (such amount, the "Non-Delivery Item Payment") multiplied by the Non-Delivery Service Fee percentage. The Non-Delivery Service Fee shall be deemed to be exclusive of any VAT or other sales taxes.
   2. Delivery Services. Non-Delivery Items do not require the involvement of a Delivery Partner. As such, for Non-Delivery Items, no delivery services are provided, so there is no Delivery Fee or Delivery Charge.

1. Uber B.V. is the data controller of the personal data that Uber collects in connection with use of its services, or of its employees, in the European Economic Area or the United Kingdom and Switzerland, and Uber Technologies, Inc. is the data controller for such data everywhere else (except where the data controller for employees is the local Uber entity in the country in which the employee resides). Where an entity other than these enters into this Agreement on behalf of Uber, it is authorized to do so by the aforementioned data controller(s). ↑

2. Excluding the name and contact information of those Uber employees who are responsible for interacting with Provider in connection with its performance of the services under the Main Agreement.
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