Uber Direct API Terms

These Uber Direct API Terms (“Direct API Terms”) govern access and use of the Direct API provided by Uber Technologies, Inc. and its Affiliates (collectively, “Uber”). By (a) accessing Uber Direct; (b) clicking to agree to these Direct API Terms on a website; or (c) signing an agreement that includes, links to, or incorporates these Direct API Terms, you (“you”) accept and agree to these Direct API Terms. If you are entering into this agreement on behalf of an entity, then the defined term “you” shall also include that entity. The parties agree to the following terms:

1. ORDER FORM.

The parties may have entered into an order form or related document (“Order Form”) which incorporates these Direct API Terms. In the event of inconsistencies between the Order Form, the General API Terms (described below), and these Direct API Terms, the Order Form shall prevail, then these Direct API Terms, then the General API Terms, solely with respect to the conflict.

2. TERM AND TERMINATION.

2.1 These Direct API Terms 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, after which it will automatically renew for consecutive one (1) year periods (the “Term”).

2.2 At any time, either party may terminate these Direct API Terms without cause, effective thirty (30) days following written notice of termination.

2.3 These Direct API Terms will terminate automatically (a) if the General API Terms are terminated, or (b) if either party will (i) ceases conducting business in the normal course; (ii) becomes insolvent; (iii) makes a general assignment for the benefit of creditors; (iv) suffers or permits the appointment of a receiver for its business or assets; or (v) avails itself of, or become subject to, any proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute.

3. FEES AND CHARGES; BILLING.

3.1 Delivery Charges. Access to Uber Direct and the Direct API is provided free of any subscription fees. You agree to pay the Delivery Charges associated with each delivery request raised via Uber Direct. Notwithstanding the foregoing, if the parties have agreed to a fixed price structure pursuant to an Order Form, then you shall pay such Delivery Charges. You may be required to pay a different Delivery Charges to Delivery Persons in the future for additional areas added to the Territory or as the Uber Direct service evolves, provided that Uber will give you reasonable notice of such changes. Distance associated with each Delivery Charge is measured on a predicted-route basis, with regard to expected driving distance on roads.

3.2 Uber will bill your Uber Direct account (“Direct Account”) for fees and charges in monthly statements or invoices, which you agree to pay in full within thirty days of issuance. You agree to maintain a valid credit card number (the “Company Card”) on your Direct Account that may be charged for monthly billing as set forth herein. All payments are nonrefundable except as may be expressly provided otherwise herein.

3.3 You authorize Uber to charge the Company Card if you fail to pay any statement or invoice when due. All late payments shall accrue simple interest on the owed amount, at the higher of 1.5% per month or the maximum allowed by Applicable Law. In the event of any unpaid Delivery Charges or other fees, Uber is permitted to suspend your access to Uber Direct, and may pursue any remedies available under Applicable Law, including reporting you to credit reporting agencies. Uber shall have sole discretion regarding reestablishing your access to Uber Direct.

3.4 Notwithstanding the above, if preferred, you may also authorize Uber to withdraw funds from your designated bank account via electronic ACH transfer for any amounts owed by you under these Direct API Terms and, if necessary, initiate credit entries and adjustments in the event of any errors. You agree that funds may be withdrawn hereunder to satisfy any payment obligation owed to Uber by you. You understand and agree that Uber is not responsible for errors resulting from receipt of incorrect banking information or any charges incurred as a result of ACH withdrawals hereunder. You agree that ACH transfers authorized hereunder comply with Applicable Law and hereby consents to and agrees with the NACHA Operating Rules as they exist on the date of execution of an applicable agreement between you and Uber or as subsequently adopted, amended, or repealed. You may terminate your authorization at any time in writing to Uber, effective thirty (30) days upon Uber’s receipt of such termination.

4. CONFIDENTIALITY.

4.1 Restrictions. Receiving Party agrees that (a) it will use Confidential Information solely for the purposes permitted under these Direct API Terms, and (b) it will not disclose the Confidential Information to any third party other than Receiving Party’s employees or agents who are bound by obligations of nondisclosure and restricted use at least as strict as those contained herein. In the event Receiving Party receives a subpoena, administrative or judicial order, or any other request for disclosure of any Confidential Information of Disclosing Party, Receiving Party will give Disclosing Party prompt written notice of such subpoena, order or request and allow Disclosing Party to assert any available defenses to disclosure.

4.2 Confidential Information Security. Receiving Party will protect the Disclosing Party’s Confidential Information in the same manner that it protects the confidentiality of its own proprietary and confidential information, but in no event using less than a reasonable standard of care.

5. DIRECT API.

5.1 In order to utilize the Direct API, you must establish a developer account (a “Developer Account”) by completing the online sign up process available at developer.uber.com. Use of the Developer Account and the Direct API are subject to Uber’s Developer Terms of Use, available at https://developer.uber.com/docs/riders/terms-of-use, as may be updated or modified from time to time by Uber (“General API Terms”). You represent and warrant that throughout the Term you will use the Direct API solely in accordance with the General API Terms and these Direct API Terms.

5.2 Design Implementation. You will implement the Direct API into your products in a manner consistent with the implementation guidelines agreed to by the parties in writing before launch, as well as any guides, materials, or other reference material provided by Uber and its Affiliates. You agree to use Uber’s Marks in any demand channel where Uber Direct is being utilized or advertised (e.g., your website or app). You agree to use Uber Marks in accordance with any brand requirements provided by or published by Uber. You agree to include tipping information within your products and will submit such designs to Uber for its final approval. In the event that tipping and rating on your products is substantially different from tipping and rating as described in the implementation guidelines provided by Uber, the parties will mutually agree on a solution. You agree to properly implement any tagging or marking feature or parameter necessary for the proper notification to Uber of inclusion of any age-restricted item in a delivery .

5.3 After the parties finalize the API integration in accordance with this agreement, Uber will use commercially reasonable efforts to enable your access to Uber Direct. If the proposed implementation does not comply with these Direct API Terms, then Uber may prohibit finalization of the implementation. Uber may restrict or deactivate your access to Uber Direct if you later fail to comply with the implementation requirements.

6. UBER DIRECT.

6.1 Delivery-Informed Parties.

6.1.1 Before requesting delivery services, you agree to obtain and submit to Uber Delivery-Informed Data with respect to Delivery-Informed Parties. You must ensure that all data provided to Uber is accurate and complete. Uber is not liable to you or any other party for any inaccurate or incomplete Delivery-Informed Data supplied to Uber by you.

6.1.2 You are solely responsible for contacting, or facilitating contact with, any Delivery-Informed Parties for any customer support inquiries related to delivered items. Uber will contact Delivery-Informed Parties using Delivery-Informed Data for trip tracking and updates, as well as limited customer support related to the delivery in progress; provided that, Uber is not responsible for contacting or providing messaging to any individual for whom you have not provided Uber any Delivery-Informed Data.

6.2 Requirements for Delivery.

6.2.1 You may provide instructions for the delivery of items at the delivery location. If the items are undeliverable because the delivery recipient cannot be located or the delivery otherwise cannot be completed according to your delivery instructions, the items may be returned to you at the original pickup location (each a “Return”). You shall accept all Returns and understand that in the event of a Return, you will be charged fees associated with the Delivery Person’s return trip, which will be considered Delivery Charges (“Return Fees”). In addition, you shall be responsible for any pick-ups and returns from a delivery location where an item was delivered to the incorrect location.

6.2.2 You shall ensure that items provided to a Delivery Person: (a) are collectively able to fit into, and are appropriate for transport in a standard midsize motor vehicle; (b) do not exceed 50 pounds per package, box, or parcel; and (c) include description of such items (including any notifications or descriptions about ingredients, nutritional information, allergen information, size, weight, alcoholic content (if applicable), etc.), which are accurate and comply with all Applicable Laws.

6.2.3 To the extent Applicable Laws require a description of any conditions affecting a Delivery Person’s accessibility to your locations (e.g. flights of stairs), you shall provide such information.

6.2.4 Unless otherwise agreed by Uber in writing, you may not request delivery through Uber Direct for Restricted Items. Requests to deliver alcoholic beverages (“Alcohol Items”) using Uber Direct are subject to the additional terms and conditions in Exhibit B (the “Alcohol Terms”).

6.2.5 You will ensure that items are readily available for pickup when the Delivery Person arrives at the requested pick-up location. If a Delivery Person refuses to accept an item due to size or weight, or such item is a Restricted Item, or because the Delivery Person is asked to purchase such item, you are responsible for: (1) a cancellation fee; and (2) any Return Fees.

6.2.6 As between Uber, its Affiliates and you, you will be responsible for all support to intended recipients, including resolving any disputes or concerns from Delivery-Informed Parties related to delivery requests.

7. DELIVERY PERSON VERIFICATION AND USER SAFETY POLICIES.

Uber is responsible for contracting terms with all independent contractors using the Uber technology systems under license from Uber to provide transportation or other services. Uber agrees to the following:

7.1 Screening Standards. Uber shall ensure that all prospective Delivery Persons are screened using a third-party service accredited by a nationally-recognized background screening organization, to the extent such organization exists. The screening standard applied shall conform to Uber’s then-current background check practices on the Uber systems and in the relevant jurisdiction.

7.2 Screening Information. During the course of the screening process the following information shall be collected and maintained in accordance with Uber’s then-current practices (unless such information should not be maintained due to privacy considerations or other Applicable Law): (a) full name; (b) date of birth; (c) driver’s license number; and (d) copy of driver’s license.

7.3 Vehicle Standards. In accordance with its business needs and procedures (which are subject to change in Uber’s reasonable discretion), Uber shall undertake reasonable efforts to ensure that Delivery Persons use vehicles that are suitable for providing transportation services, and are maintained in good operating condition consistent with Uber’s safety and maintenance standards.

8. PROPRIETARY RIGHTS.

8.1 License to Marks; Restrictions. The term “Marks” shall mean the trademarks, service marks, trade names, logos, slogans and other identifying symbols and indicia of a party (“Licensor”), which may be licensed hereunder or elsewhere to the other party (as “Licensee”). You (as Licensor) hereby grant Uber (as Licensee) a royalty-free, non-exclusive, non-transferable, and non-assignable license right and license to use and display your Marks throughout the Term in connection with the provision of services to you, including on Uber’s website and in reference to you as an Uber partner. This right to use your Marks shall not require prior written approval and shall continue after these Direct API Terms are terminated, unless you provide Uber with written notice that you are terminating such right. Further, each Licensor hereby grants to the Licensee, solely during the Term, a limited, royalty-free, non-exclusive, non-transferable, non-assignable license, without the right to sublicense, to use and display the Licensor’s Marks only as expressly permitted by the Licensor in writing in each instance. All use of a Licensor’s Marks by Licensee will be in the form and format approved by Licensor, and Licensee will not otherwise use or modify Licensor’s Marks without Licensor’s prior written consent. All goodwill related to Licensee’s use of Licensor’s Marks shall inure solely to the benefit of Licensor. Marks will at all times remain the exclusive property of the respective Licensor. Except as expressly set forth herein, Licensor does not, and shall not be deemed to, grant Licensee any license or rights under any intellectual property or other proprietary rights. All rights not granted herein are expressly reserved by Licensor.

8.2 No Development. EACH PARTY ACKNOWLEDGES AND AGREES THAT NEITHER PARTY SHALL DEVELOP ANY TECHNOLOGY, CONTENT, MEDIA, OR OTHER INTELLECTUAL PROPERTY FOR THE OTHER PARTY PURSUANT TO THESE Direct API Terms. The parties shall enter into a separate written agreement, as necessary, to govern any development activities relating to any technology, content, media, or other intellectual property prior to the commencement of any such activities.

8.3 Publicity. The parties shall be permitted to issue a joint press release in form and substance reasonably acceptable to each party following the acceptance of these Direct API Terms. Uber shall be permitted to conduct a case study regarding the relationship under these Direct API Terms, and to publish its findings from the relationship, intended to showcase the success of the relationship between you and Uber, to be used on the Uber website and within various marketing materials.

9. INSURANCE.

9.1 During the Term, Uber agrees to maintain the following insurance coverage with an A.M. Best financial rating of “A-” or better:

9.1.1 Commercial General Liability (including contractual liability, personal and advertising injury and products and completed operations) with a limit of five million dollars (US$5,000,000) per occurrence and five million dollars (US$5,000,000) in the aggregate for bodily injury and property damage.

9.1.2 Workers Compensation Statutory (for all states of operation) including Employer’s Liability with limits of not less than one million dollars (US$1,000,000).

9.1.3 Commercial Auto Liability insurance for all owned, hired and non-owned vehicles for bodily injury, including death and property damage for limits of five million dollars (US$5,000,000) each accident combined single limit.

9.2 Upon your reasonable request from time to time, Uber shall furnish you with a certificate of insurance showing coverage as set forth herein. You shall be covered as an additional insured on the auto and general liability policies.

10. DATA PROCESSING RESTRICTIONS.

10.1 The parties agree that the terms and conditions included in Exhibit A shall govern the exchange of Personal Data by the parties under these Direct API Terms, including Uber Personal Data, Delivery-Informed Data, and, if applicable, Opted-In Delivery-Informed Data (the “Data Processing Agreement”).

10.2 Further, where: (a) Codes, laws, legislation, licenses, orders (including court orders), ordinances, rules, regulations, or any other requirement imposed by a government authority require Company to collect and retain certain information in relation to the sale of Items (which may include Personal Data); (b) it is impossible for Company to directly collect that information; and (c) Uber is reasonably able to collect and retain that information; then Company instructs Uber to, and Uber, pursuant to the Company’s instruction:

10.2.1 will collect and retain that information as required by the applicable codes, laws, legislation, licenses, orders (including court orders), ordinances, rules, regulations, or any other requirement imposed by a government authority; and

10.2.2 may disclose that information directly to the applicable authorities instead of providing it to Company where the applicable codes, laws, legislation, licenses, orders (including court orders), ordinances, rules, regulations, or any other requirement imposed by a government authority allow.

11. WARRANTIES; DISCLAIMER.

11.1 Warranties. In addition to the representations and warranties in the General API Terms, the parties agree as follows:

11.1.1 Mutual Warranties. Each party hereby represents and warrants that (a) it has full power and authority to enter into these Direct API Terms and perform its obligations under these Direct API Terms, (b) its acceptance of these Direct API Terms, as well as such party’s performance of the obligations set forth in these Direct API Terms will not violate any other agreement to which such party is a party, (c) it complies with all Applicable Laws (d) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin, and (e) its Marks (provided pursuant to these Direct API Terms) will not infringe or otherwise violate any third party’s intellectual property rights, rights of publicity or other proprietary rights.

11.1.2 Your Warranties. You represent and warrant that (a) you have have all rights and legally adequate consents, where necessary, to provide Uber with Personal Data and any other information provided to Uber as necessary to facilitate deliveries and for related purposes, including but not limited to fraud prevention, product and service improvement and safety purposes; (b) you will use Uber Personal Data solely for legitimate business purposes including business expense, processing, accounting, and budgeting purposes; (c) you will only share and provide access to Uber Personal Data to your personnel who have a business need to access such Uber Personal Data; (d) you will not disclose Uber Personal Data to any third party, unless expressly authorized in writing by Uber, and who are in each case bound by privacy and security obligations regarding Uber Personal Data at least as restrictive as those contained herein; (e) you will not rent or sell Uber Personal Data for any purpose not authorized by Uber; (f) you will not disclose Uber Personal Data nor disclose Uber’s pricing or fares associated with Uber Personal Data to a competitor of Uber; (g) you are not a government or quasi-government entity, or otherwise owned, controlled by, or created by a government entity; and (h) you will inform and obtain all necessary rights, permission and legally adequate consent from Delivery-Informed Parties: (1) to share certain Personal Data, including, if applicable, full name, email and order information of Delivery-Informed Parties that have affirmatively opted in to receive marketing communications from Uber (“Opted-In Delivery-Informed Data”); (2) to receive SMS messages from Uber or its Affiliates in connection with Uber Direct or to provide any communications related to these Direct API Terms, including via automated voice dialing; and (3) for Uber to provide you with detailed trip information, including real-time delivery status, for the deliveries charged to you. To the extent that items to be delivered include food or beverages, you represent and warrant that: (w) such items will comply with Applicable Laws; (x) all information about food and beverage items made available by you relating to calorie count, ingredients, nutritional information, or allergen information are and will remain accurate; (y) you will package food and beverage items separately from potentially harmful products; and (z) you will not replace items requested by a third party that are ultimately unavailable with different items without the written consent of the third party.

11.2 Disclaimer. UBER PROVIDES UBER DIRECT “AS IS” AND WITHOUT WARRANTY. UBER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN UBER DIRECT WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF UBER DIRECT WILL BE UNINTERRUPTED OR ERROR FREE. UBER HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THESE DIRECT API TERMS, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) ANY IMPLIED OR STATUTORY WARRANTIES COVERING UBER DIRECT, AND (B) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. YOU ACKNOWLEDGE AND AGREE THAT UBER DIRECT IS A TECHNOLOGY SERVICE THAT ENABLES ACCESS TO REQUEST ON-DEMAND LOGISTICS SERVICES PROVIDED BY INDEPENDENT THIRD-PARTY PROVIDERS. UBER IS NOT A LOGISTICS PROVIDER. UBER DOES NOT GUARANTEE AVAILABILITY OF LOGISTICS SERVICES, ON-TIME ARRIVALS OR DEPARTURES THEREOF, OR ANY OTHER SERVICES LEVELS RELATED TO INDEPENDENT LOGISTICS PROVIDERS THAT MAY BE OBTAINED VIA UBER DIRECT.

12. INDEMNIFICATION

12.1 In addition to the indemnification obligations in the General API Terms, each party agrees to the following:

12.1.1 Each party (the "Indemnifying Party") will indemnify, defend and hold harmless the other party (the “Indemnified Party”), its Affiliates and their respective directors, officers, employees, consultants, agents, successors and assigns from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable outside attorney fees) with respect to any third-party claim arising out of or related to: (a) a breach (or claim that, if true, would be a breach) of any of the Indemnifying Party’s representations or warranties in these Direct API Terms, or (b) the infringement of a third party’s intellectual property rights by the Indemnifying Party’s Marks, but only if such Marks have been used by the Indemnified Party in the manner approved by the Indemnifying Party.

12.1.2 In addition to the indemnification obligations in the General API Terms, you will also indemnify, defend and hold harmless Uber, its Affiliates, and its and their respective directors, officers, employees, consultants, agents, successors, and assigns from and against any and all claims, liabilities, damages, losses, costs, and expenses (including reasonable outside attorney fees) with respect to any third-party claim arising out of or related to: (a) the use of Uber Direct by any Delivery-Informed Party; (b) any personal injury or damage to property arising from the items requested by you for delivery; or (c) your inclusion of a Restricted Item.

12.2 The Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.

13. LIMITS OF LIABILITY.

13.1 OTHER THAN WITH RESPECT TO A PARTY’S (A) BREACH OF THE REPRESENTATIONS OR WARRANTIES SET FORTH HEREIN, OR (B) INDEMNIFICATION OBLIGATIONS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL UBER OR YOU BE LIABLE (I) FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR FOR LOSS OF BUSINESS OR PROFITS, SUFFERED BY ANY PARTY HERETO OR ANY THIRD PARTY ARISING OUT OF THESE DIRECT API TERMS WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF UBER OR YOU (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (II) UNDER THESE DIRECT API TERMS FOR ANY DIRECT DAMAGES IN AN AMOUNT EXCEEDING ONE HUNDRED THOUSAND DOLLARS ($100,000).

13.2 EACH PARTY ACKNOWLEDGES THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THESE DIRECT API TERMS BETWEEN THE PARTIES, AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE FEES AND OTHER TERMS SET FORTH IN THESE DIRECT API TERMS WOULD BE SUBSTANTIALLY DIFFERENT.

14. MISCELLANEOUS.

14.1 Acknowledgments.

14.1.1 You acknowledge and agree that: (a) any and all delivery services provided to you are provided neither by Uber nor its Affiliates, but by Delivery Persons, who provide independent third-party delivery services; (b) Uber and its Affiliates are acting solely as your administrative agent to relay requests for delivery services on your behalf; (c) all Delivery Charges shall be paid in U.S. Dollars; (d) Delivery Persons will not purchase items for delivery; (e) Delivery Persons reserve the right to refuse to accept any item in their sole discretion; (f) Delivery Persons shall not be responsible for packaging items; (g) pickup and delivery locations for deliveries will be limited to within the Territory, unless otherwise agreed to by the parties in writing; and (h) to the limited extent required by Applicable Law, food and beverage items are sold or delivered to third parties under your retail and food delivery license privileges.

14.1.2 You further acknowledge that Uber and its Affiliates will have no liability to you for any loss, damage, non-delivery, or delay in the delivery of items requested by you for delivery, or any unexpected issues or changes made by Uber to Uber Direct in its discretion that could arise during your use of Uber Direct. For clarity, Uber does not take title to any items that are requested for delivery through Uber Direct. You agree that no bailment is created by your use of Uber Direct, and Uber is not a bailee of goods.

14.2 Survival. The terms and conditions of these Direct API Terms that by their nature and context are intended to survive termination hereof will so survive, including without limitation, all outstanding payment obligations under these Direct API Terms. Upon termination of these Direct API Terms by either party, you must cease any access to or use of the Direct API.

14.3 Notices. Any and all notices permitted or required to be given hereunder will be in writing and will be deemed duly given and effective on the earliest of: (A) upon actual delivery, if delivery is by hand, to such addresses as may be provided, or (B) the next business day after being sent by overnight courier, charges prepaid. For clarification, an email sent to the email address associated with your developer account shall suffice for written notices from Uber to you and an email sent to the email address enterpriseproducts@uber.com shall suffice for written notices from you to Uber.

14.4 Assignment. These Direct API Terms are not transferable and may not be assigned by either party, in whole or in part, without the prior written consent of the other party, provided that each party may assign these Direct API Terms without such consent, but with notice to the other, in connection with a merger or a sale of all of the equity or assets of either party. Notwithstanding the foregoing, Uber may assign these Direct API Terms to an Affiliate without notice or your prior written consent. Subject to the foregoing, these Direct API Terms shall be binding upon all successors and assigns of a party.

14.5 Governing Law; Arbitration. These Direct API Terms shall be governed by and construed in accordance with the laws of the State of Delaware without regard to its choice or conflict of laws provision. Any dispute, controversy, or claim arising out of or relating to these Direct API Terms, or the interpretation, enforceability, performance, breach, termination, or validity thereof, including, without limitation, this arbitration clause, must be solely and finally settled by confidential arbitration in San Francisco, California, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. An award rendered in connection with arbitration pursuant to this Section shall be final and binding upon the parties, and any judgment upon such an award may be entered and enforced in any court of competent jurisdiction. No provision of this subsection limits the rights of a party to these Direct API Terms to obtain provisional, injunctive, or ancillary remedies from a court of competent jurisdiction before, after or during the pendency of any arbitration. Neither party has the right to arbitrate on a class action basis any dispute, controversy, or claim arising out of or relating to these Direct API Terms, or the interpretation, enforceability, performance, breach, termination, or validity thereof, including, without limitation, this arbitration clause.

14.6 Severability. In the event any provision of these Direct API Terms is determined to be invalid or unenforceable by ruling of a court of competent jurisdiction, the remainder of these Direct API Terms (and each of the remaining terms and conditions contained herein) will remain in full force and effect.

14.7 Entire Agreement. These Direct API Terms contain the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating to such subject matter hereof.

14.8 Affiliates. The parties hereby acknowledge and agree that you and each of your Affiliates may utilize the Direct API and Uber Direct upon execution of these Direct API Terms. Any such Affiliate shall be bound by all of the terms and conditions applicable to you under these Direct API Terms, and entitled to all rights and protections afforded you under these Direct API Terms, provided, however, you shall continue to bear legal responsibility for all acts or omissions of such Affiliate. The parties acknowledge and agree that any services to be rendered under these Direct API Terms may be performed by Uber directly, or by any of Uber’s Affiliates.

14.9 Force Majeure. Nonperformance of either party under these Direct API Terms shall be excused to the extent and during the period that performance is rendered impossible by strike, fire, flood, hurricane, earthquakes, other natural disaster, governmental acts or orders or restrictions, failure of suppliers, or contractors, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party (“Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under these Direct API Terms.

14.10 Independent Contractor. Uber and you are and shall remain independent contractors. Neither party is the representative or agent of the other and neither party shall have any power to assume any obligations on behalf of the other.

14.11 Headings. Section headings are for convenience only and shall not be considered in the interpretation of these Direct API Terms.

14.12 Waiver. No waiver by any party of any breach (whether actual or anticipated) of any of the terms, conditions, representations or warranties in this Agreement shall take effect or be binding upon that party unless the waiver is expressed in writing by an authorized representative of that party. 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.

14.13 Non-Discrimination. You shall not, in its use of the services under these Direct API Terms, discriminate against any employee, volunteer, or participant, or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between Uber and you. You acknowledge and agree that upon Uber’s receipt of evidence of your discrimination under any of these categories, Uber shall have the right to immediately terminate these Direct API Terms following notice to you.

14.14 Amendments. Uber may make changes to these Direct API Terms from time to time. If Uber makes changes, it may provide you with notice of such changes, such as by sending an email, providing a notice through the Direct Account, or updating the date at the top of these Direct API Terms. Unless Uber says otherwise in its notice, the amended Direct API Terms will be effective immediately, and your continued accessing of Uber Direct after Uber provides such notice will confirm your acceptance of the changes. If you do not agree to the amended Direct API Terms, you must stop accessing and using Uber Direct and the Direct API.

15. DEFINITIONS.

The following terms shall have the meanings set forth below:

15.1 “Affiliate” means with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, where “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of at least fifty percent (50%) of the voting equity of another entity, or the power to vote such voting equity, by contract or otherwise.

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

15.3 “Confidential Information” means any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with these Direct API Terms, whether orally or in physical form, and shall include these Direct API Terms. However, Confidential Information shall not include information (a) previously known by Receiving Party without an obligation of confidentiality, (b) acquired by Receiving Party from a third party which was not, to Receiving Party's knowledge, under an obligation of confidentiality, (c) that is or becomes publicly available through no fault of Receiving Party, or (d) that Disclosing Party provides written permission to Receiving Party to disclose, but only to the extent of such permitted disclosure.

15.4 “Delivery Charges” means charges you incur for delivery services obtained from and paid to Delivery Persons through the use of Uber Direct, including any applicable Return Fees, cancellation fees, wait time fees, tolls, foreign transaction fees, taxes, and any other fees or charges that may be due for a particular use of the service. Each Delivery Charge will correspond to a delivery trip (from a designated pickup location to the requested dropoff location).

15.5 “Delivery Person” means an independent contractor that intends to seek, receive, and fulfill on-demand requests for delivery services using Uber’s proprietary technology under license from Portier, LLC or its Affiliates. For clarity, the term “Uber” as used in this Agreement does not include Delivery Persons.

15.6 “Delivery-Informed Parties” means parties you designate to receive information regarding any delivery solicited from Delivery Persons by you under these Direct API Terms, including the intended recipient or its designee.

15.7 “Direct API” means the application programming interfaces and endpoints made available by Uber and its Affiliates for third parties to access Uber Direct and request deliveries, including the DaaS API, the Org API, and any other additional application programming interfaces later made available by Uber and its Affiliates for access to Uber Direct.

15.8 "Restricted Items" means any of the following: (a) people or animals of any size; (b) illegal items (whether such item is illegal to possess, transfer, or sell); (c) drugs, pharmaceutical products, controlled substances, or over-the-counter medications, vitamins, or supplements; (d) fragile items; (e) dangerous or hazardous items, including but not limited to, weapons, explosives, items that are poisonous or flammable (including paints or adhesives containing a flammable liquid), substances and material identified in the Hazardous Materials Table in 49 CFR section 172.10, or material determined to be hazardous under 49 U.S.C. section 5103 et. seq. and transported in a quantity requiring placarding according to regulations prescribed under 49 CFR, Subtitle B, Chapter I, Subchapter C; (f) stolen goods; (g) sexual aids; (h) money, gift cards, or transferable securities; (i) regulated species (e.g., plants, noxious weeds, prohibited seeds, etc.); or (j) any items for which you do not have permission to send

15.9 “Territory” means the geographic area within the United States (including its territories and possessions) permitted for you by Uber for the purposes of requesting delivery services.

15.10 “Uber Direct” means the Uber service that, in connection with Uber’s Direct API, enables you to request delivery services from Delivery Persons.

15.11 “Uber Personal Data” means any information Uber provides you in connection with these Direct API Terms relating to an identified individual or an identifiable individual or which can be reasonably used to identify an individual, or that may otherwise be considered “personal data” under Applicable Law.

Exhibit A to the Uber Direct API Terms

DATA PROCESSING AGREEMENT

1. DEFINITIONS.

The following terms shall have the following meanings. Capitalized terms not defined in this Data Processing Agreement (“DPA”) shall have the same meaning set forth in the Direct API Terms above.

1.1 “Controller” means the party or parties to this DPA that determine(s) the purposes and means of the Processing of Personal Data in connection with the Direct API Terms.

1.2 “Data Protection Law” means all Applicable Laws applicable to the Processing of Personal Data under the Direct API Terms, including the California Consumer Privacy Act of 2018 (“CCPA”) as amended.

1.3 “Data Subject” means an identified or identifiable natural person.

1.4 “Personal Data” shall mean “personal data,” “personal information,” or equivalents as defined in applicable Data Protection Laws shared between the parties in connection with these Direct API Terms. 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 exchanged under this DPA. For the avoidance of doubt, the term “Personal Data” includes, as applicable Delivery Informed Data, Uber Personal Data and Opted In Delivery Informed Data.

1.5 “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.

1.6 “Services” means the services provided or received by the parties pursuant to the Direct API Terms above.

2. ROLE OF THE PARTIES.

Each party* is an independent controller of Delivery Informed Data, Uber Personal Data and, where applicable, Opted In Delivery Informed Data.

3. PERSONAL DATA PROCESSING.

3.1 Limitations and Prohibitions.

3.1.1 Each party shall only Process and disclose the Personal Data it has received from the other party for the purpose of performing the Services (including any ancillary activities related to performing such Services), and may not use or disclose such Personal Data for any other purpose unless otherwise agreed by the parties in writing, necessary to protect and enforce such party’s rights, or required under Applicable Laws.

3.1.2 Each party shall (1) limit access to the Personal Data received from the other Party 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 or sell such Personal Data, except as otherwise necessary to provide the Services or as allowed under this DPA or the Direct API Terms above.

3.1.3 Data Retention and Deletion. Company shall retain Uber Personal Data and Uber shall retain Delivery-Informed Data for so long as necessary to perform the obligations under the Direct API Terms above (including any ancillary activities related to performing such obligations), unless otherwise necessary to protect and enforce a party’s rights or required under Applicable Laws.

3.1.4 Data Security Incidents. Each party shall notify the other party without undue delay upon discovery of an unauthorized access to, acquisition or disclosure of the Personal Data it has received from the other party, or other actual or suspected breach of security or confidentiality with respect to such Personal Data in such party’s or its representatives’ control or possession.

3.2 Cross Border Transfer. Performance of Services under this DPA does not require cross-border transfer of Personal Data. In the event that the Services require cross-border transfer of Personal Data, the Parties agree to enter into a separate agreement and to comply with methods of transfer authorized under Applicable Laws.

3.3 Compliance With Data Protection Laws. Each party shall comply with the obligations applicable to it under the Data Protection Laws with respect to itsProcessing of Personal Data.

3.4 Data Subject Rights. Each party shall be responsible for responding to data subjects’ requests and complaints that relate to its Processing of Personal Data.

4. SECURITY MEASURES

4.1 Organizational Security Measures.

4.1.1 Security Program. The parties have developed and implemented, and will consistently update and maintain as needed: (a) a written and comprehensive information security program in compliance with applicable Data Protection Law; and (b) 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:

4.1.1.1 data loss prevention program, with appropriate policies and/or technological controls designed to prevent loss of Personal Data; and

4.1.1.2 a disaster recovery/business continuity plan that addresses ongoing access, maintenance and storage of Personal Data as well as security needs for back-up sites and alternate communication networks.

4.1.2 Physical Security Measures. The parties shall maintain appropriate physical security measures for any facility used to Process Personal Data and continually monitor any changes to the physical infrastructure, business, and known threats.

4.2 Technical Security Measures.

4.2.1 Vulnerability scanning and assessments. The parties shall perform vulnerability scanning and assessments on new and key applications and infrastructure.

4.2.2 Access Control and Limiting Remote Access.

4.2.2.1 The parties shall secure its computer networks using multiple layers of access controls to protect against unauthorized access.

4.2.2.2 The parties shall restrict access through mechanisms such as, but not limited to, management approvals, robust controls, logging, and monitoring access events and subsequent audits.

4.2.2.3 The parties shall identify computer systems and applications that warrant security event monitoring and logging, and reasonably maintain and analyze log files.

4.2.3 Security Patches. The parties shall deploy all applicable and necessary system security patches to all software and systems that Process, store, or otherwise support the Agreement.

4.2.4 Virus/Malware Scanning. The parties 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 Personal Data.

FOOTNOTES

* Uber B.V. and Uber Technologies, Inc are the data controllers of the personal data that Uber collects in connection with use of its services 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 DPA on behalf of Uber, it is authorized to do so by the aforementioned data controller(s).

Exhibit B to the Uber Direct API Terms

TERMS AND CONDITIONS RELATED TO THE FULFILLMENT OF ORDERS FOR ALCOHOL ITEMS VIA UBER DIRECT

If (a) you are eligible to offer the sale and fulfillment of Alcohol Items via Uber Direct in designated U.S. states, territories, or possessions within the Territory, and (b) Uber has agreed, in writing, that you may use Uber Direct for the fulfillment of orders that include Alcohol Items, such delivery requests shall be subject to the terms and conditions of this Exhibit B (“Alcohol Terms”), which are hereby incorporated into and made a part of the Direct API Terms. In the event of any conflict between these Alcohol Terms and the Direct API Terms, these Alcohol Terms shall govern with respect to Alcohol Items only.

1. Representations and Warranties.

As it relates to Alcohol Items, you represent and warrant that:

1.1 You shall comply with all Applicable Laws related to the sale of Alcohol Items applicable to you, including Applicable Laws related to the promotion, packaging, sale, taxation and delivery of Alcohol Items; and

1.2 You have and will continue to have during the Term all licenses, permits, or similar authorizations that may be required for you to sell Alcohol Items (“Required Licenses”), including without limitation, Required Licenses for the specific categories of Alcohol Items that you make available and/or Required Licenses to sell and deliver Alcohol Items in a given state or local jurisdiction.

2. Role of the Parties.

For the avoidance of doubt:

2.1 Uber does not hold a Required License and only facilitates the promotion, marketing, and/or sale of Alcohol Items by third parties; and

2.2 You are a licensed seller of alcoholic beverages that wishes to have orders for Alcohol Items fulfilled via Uber Direct. You are responsible for, will be clearly identified during, and shall control the sale of any orders for Alcohol Items, including any decisions regarding accepting, fulfilling, and rejecting orders for Alcohol Items.

3. Alcohol Laws and Requirements.

3.1 Each party is responsible for taking any steps it deems reasonably necessary to inform itself of the Applicable Laws, licenses, and any other similar requirements related to the sale and delivery of Alcohol Items.

3.2 Without limiting any other term of the Direct API Terms, you are responsible for providing legally adequate disclosures to your customers, where necessary, to facilitate age and identity verification for delivery of Alcohol Items. Notwithstanding, Uber may be required under Applicable Laws to transfer to you information related to the delivery of Alcohol Items under Uber Direct, which may include Personal Data.

3.3 You agree to comply with the Data Processing Agreement attached as Exhibit A to the Direct API Terms and all Applicable Laws in relation to any Personal Data you receive from Uber.

4. Required Licenses.

4.1 Upon Uber’s request, you shall provide Uber with copies of your Required Licenses.

4.2 You agree to (a) promptly notify Uber of any change or modification to any of its Required Licenses (e.g., expiration, revocation, renewal, termination, etc.), and (b) promptly provide Uber with any new or updated Required Licenses.

4.3 You acknowledge that Portier may remove Alcohol Items from your menu on the Uber Eats App or suspend your account entirely if you fail to comply with your obligations herein.

5. Packaging and Labeling.

You will package Alcohol Items appropriately for delivery, including:

5.1 Any protection necessary to prevent tampering or damage due to any cause, including inclement weather or the nature of the Alcohol Items themselves; and

5.2 Any labeling required by law, including but not limited to a statement that the package contains alcohol and may only be delivered to a person twenty one (21) years or older with valid proof of age and identity.

6. Delivery Time and Location Restrictions.

6.1 You are responsible for complying with any federal, state, or local restrictions related to the time and location you may legally sell Alcohol Items, including any restrictions on locations where alcohol may be lawfully possessed, purchased and/or delivered.

6.2 You agree that Uber may modify (i.e. reduce) the hours that you makes Alcohol Items available for delivery by Delivery People in accordance with operational considerations of Uber Direct (e.g., taking into account any time required for a Delivery Person to return an Alcohol Item to your original pick-up location as described below).

6.3 You further agree that you will not accept any order involving the delivery of alcohol where any governing law or regulatory requirement prohibits delivery to the requested delivery destination.

7. Returns.

You acknowledge and agree that (a) a Delivery Person may be required to return the Alcohol Item to your original pick-up location for the below reasons; and (b) you shall accept the return of Alcohol Items in such cases.

7.1 Such Delivery Person is unable to deliver an Alcohol Item to your customer (the “Customer”) pursuant to Applicable Law;

7.2 The Customer is unable to accept an Alcohol Item pursuant to Applicable Law (e.g., such Customer is under 21 years of age); or

7.3 You failed to prepare and package an Alcohol Item in accordance with (a) Applicable Law for the handling and labeling of Alcohol items, or (b) the quality, portion, size, ingredient, or other criteria that applied to the Alcohol Item.

8. Return Fees.

8.1 If a Delivery Person is unable to deliver an Alcohol Item(s) due to an act or omission of the Customer who purchased the Alcohol Item(s) from you, then you agree that the Customer may be charged a Return Fee, the amount of which shall be determined according to the standard fares charged by Delivery People in the region.

8.2 You agree that you have no right to the Return Fee and the Return Fee will be used to pay the Delivery Person for the return of the Alcohol Item.

9. Delivery Person.

9.1 You acknowledge and agree that each Delivery Person shall deliver Alcohol Items under and pursuant to your Required Licenses and, where required by Applicable Law, as your third-party beneficiary.

9.2 You agree that Delivery People shall conduct the delivery and are therefore responsible for verifying the age and identity of Customers and confirming they are not intoxicated when completing delivery.

9.3 Uber shall provide in-app screens and product tools for Delivery People to help verify a customer’s ID in accordance with Applicable Law. Where applicable or required by law, the in-app screen may enable the Delivery Person to capture a photo of the Customer’s ID and signature.

10. State Specific Provisions.

Without limiting any other term of these Alcohol Terms, you represent and warrant that, if applicable, you will comply with the following state Applicable Laws:

10.1 Iowa. In compliance with Iowa Code § 123.64A and guidance from IABD (available at https://abd.iowa.gov/alcohol/state-iowa-alcohol-law/laws-important-business-operation) the Merchant authorizes Portier, along with Delivery Persons that accept requests from Customers to fulfill orders containing Alcohol Items, to act as the Merchant’s agents for the purpose of facilitating the delivery and delivering such Alcohol Items. The Merchant agrees, as required to comply with the Iowa Code or any regulation enacted by IABD, to submit the Third-Party Delivery of Alcoholic Beverages form to IABD (provided by IABD at https://stateofiowa.seamlessdocs.com/f/abd_third_party_delivery) using the following details under Third-Party Agent Information: Portier, LLC; 1515 3rd Street, San Francisco, CA 94115; (415) 612-8582.

10.2 Louisiana. Under Louisiana state Laws, the Merchant is prohibited from paying a percentage of the total receipts for alcoholic beverages as a requirement of any contract with Portier. If any of Merchant’s Locations are in Louisiana, such Locations will be charged an Alcohol Service Fee.

10.3 Oregon. The Merchant must place all Alcohol Items in packaging that is conspicuously labeled with following: “Contains alcohol: signature of persons 21 years or older required for delivery.”

10.4 Virginia. Delivery Persons assigned to fulfill orders containing Alcohol Items will act as your agent in compliance with Va. Code Ann. § 4.1-212.1(c). Pursuant to 3 Va. Admin. Code 5-70-225(F), you will affix a notice in 16-point type or larger in a conspicuous location on the outside of each package of Alcohol Products to be delivered in Virginia that states: “CONTAINS ALCOHOLIC BEVERAGES; SIGNATURE OF PERSON AGED 21 YEARS OR OLDER REQUIRED FOR DELIVERY.” Such notice shall also contain your Delivery Permit number. Further, in accordance with Va. Code Ann. § 4.1-212.1(c), you shall be vicariously liable for any administrative violations of Va. Code Ann. § 4.1-212.1 or § 4.1-304 committed by a Delivery Person relating to any deliveries of Alcohol Items made on behalf of you.

10.5 Washington. Company must submit this Agreement to the authorities as and if required by law, rule, or regulation. Deliveries of Alcohol Items are permitted under WAC 314-03-020.6 each day of the week between the hours of six a.m. and two a.m.; delivery must be fully completed by two a.m. In accordance with WAC 314-03-020.9, Company will affix a label on the outside of each package of Alcohol Items that states: the package contains liquor; the recipient must be twenty-one years of age or older; and delivery to intoxicated persons is prohibited. Company instructs Uber to retain, as required under Applicable Laws in accordance with Uber’s internal policies, delivery records including name of the person who accepts delivery; street addresses of the delivery location; times and dates of delivery; and signature of the person who accepts delivery.

11. Indemnity Obligations.

Without limiting any other term of the Direct API Terms, you 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 your failure to perform your obligations contained in these Alcohol Terms, except to the extent such harm was directly caused by the gross negligence or willful misconduct of Uber or its employees, agents or Delivery People.