Uber Eats Sponsored Listing Terms

These Uber Eats Sponsored Listing Terms (“Sponsored Listing Terms”) are expressly incorporated into and made a part of your (“you”, or “Merchant”) Uber Eats Agreement (either an Order Form, a Master Framework Agreement or acceptance to the Uber Eats Merchant terms and conditions (available here), the “Merchant Agreement”) with Portier, LLC or one of its affiliates (“Portier” or “Uber”) and, together with the terms of the Merchant Agreement, shall constitute a separate, enforceable agreement between Portier and you. In the event of any conflict between these Sponsored Listing Terms and the Merchant Agreement regarding the placement of Sponsored Listings (as defined below), these Sponsored Listing Terms shall govern as applied to the subject matter herein. Subject to the foregoing, undefined, capitalized terms in these Sponsored Listing Terms will have the meaning set forth in the Merchant Agreement.

Together with the Merchant Agreement, these Sponsored Listing Terms govern the Merchant’s ability to Bid (as defined below) for the opportunity to obtain a Sponsored Listing (as defined below) on the Eats App, website or other Uber platform (together, “Uber Platform”). Portier and its affiliates may create additional posted guidelines, rules, and terms and conditions applicable to a Sponsored Listing or Bid, which when posted will hereby be immediately incorporated by reference into these Sponsored Listing Terms.

By submitting a Bid, you agree to be bound by these Sponsored Listing Terms and understand that your Bid will be placed in an auction and only selected Bids will become Sponsored Listings (as defined below).

If the individual accepting these Sponsored Listing Terms is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Sponsored Listing Terms, in which case the term “Merchant” shall refer to such entity and its affiliates. If the individual accepting these Sponsored Listing Terms does not have such authority, or does not agree with these Sponsored Listing Terms, such individuals must not accept these Sponsored Listing Terms and may not submit Bids.

If the individual accepting these Sponsored Listing Terms is accepting on behalf of a franchisor or other similar legal entity, such individual represents that (1) they have the authority to bind such entity and its affiliates to these Sponsored Listing Terms and (2) they have the authority in their franchise or other operating documents to receive and/or review analytics, reporting or other ad related data as provided in Section 7.

1. Sponsored Listings.

Subject to the terms and conditions of the Merchant Agreement and any other guidelines or eligibility criteria for Sponsored Listings that Portier may make available from time to time, by providing you access to the Ads Manager, Portier authorizes Merchant to submit an offer for a Sponsored Listing (as defined below) on the Uber Platform, inclusive of the budget amounts, (“Bid”). A selected Bid will be placed on the Uber Platform, which: (a) subject to Portier’s discretion, will include some indicator to customers that the placement was purchased by you, such as a tag such as a “promoted” or “sponsored”; (b) will appear in the Uber Platform in a placement determined by Portier, or otherwise selected by you in your Bid submission; and (c) will be assembled and formatted based on the content provided in accordance with your Merchant Agreement (“Sponsored Listing”). For the purpose of clarity, a Sponsored Listing may be posted anytime after it is selected and will continue until the budget is exhausted, Portier removes for any reason permitted by these Sponsored Listing Terms, or until you end the campaign in accordance with Section 6.

2. Creating Campaigns.

When you use the Ads Manager, you authorize Portier to assemble and format Sponsored Listings based on the content provided in accordance with your Uber Eats Agreement. Portier may, in its sole discretion, limit your access to the Ads Manager, the number of Sponsored Listings you can create at a given time, and the availability of any or all of the Sponsored Listings (for example, to listings from certain categories or containing certain attributes).

a. Portier created Bids.

In addition to or supplemental to your access to the Ads Manager (as defined below), you agree that if a Portier representative is requested to submit a Bid on your behalf, you will provide email authorization to Portier representatives via email, outlining the Merchant recurring weekly budget for each Merchant location.

b. Self-Serve Ads Manager.

Portier may provide access and authorize you to use Portier’s proprietary, automated, self-service tool to create Bids (the “Ads Manager”), subject to such Ads Manager functionality and technical capability. You agree to only use and access such Ads Manager within its functionality and technical capability, recognize that such tool is proprietary to Portier and will not circumvent or otherwise exploit the tool in such a way that is not intended.

c. Authorization of Spending.

Upon submission of a Bid, you agree that you will be obligated to spend your authorized budget amount. Portier will use commercially reasonable efforts to ensure that the Sponsored Listing Fees (as defined below) do not exceed the budget authorized by you in the Bid. Notwithstanding the foregoing, you acknowledge that clicks may occur on Sponsored Listings after the budget has been exceeded and you will be responsible for any associated Sponsored Listing Fees (as defined below).

d. Content for Sponsored Listings.

The content included in the Sponsored Listing will be the Uber Eats Photographs (as defined in the Merchant Agreement), Merchant Marketing Materials (as defined in the Merchant Agreement), or other videos, still images or materials used in connection with the display of Merchant’s Items on the Uber Eats App, in accordance with the Merchant Agreement and as determined by Portier. Portier will determine the size, placement, and positioning of your Sponsored Listings and you acknowledge that any Sponsored Listings shown in preview or surfaced prior may be changed in Portier’s sole discretion.

3. Your Responsibilities.

You will be solely responsible for the Sponsored Listing Fees (as defined below), whether such Bid was submitted by you or another Representative (as defined below). Notwithstanding anything to the contrary in the Merchant Agreement, you acknowledge and agree that you will not be able to terminate your relationship with Portier until the end of a Sponsored Listing, including terminating the Merchant Agreement. You agree to validate and authorize all representatives, contractors, or any of your agents or other persons acting on your behalf (“Representative(s)”). You acknowledge that each Representative will have full control and authority to submit Bids on your behalf and you are solely responsible for your Representatives and their actions in connection with their use of the Ads Manager. You will ensure that your Representatives comply with all restrictions applicable to you under these Sponsored Listing Terms and all applicable third-party rights, laws, rules and regulations.

4. Portier Responsibilities.

Portier will use good faith efforts to provide you with reasonable information regarding your Sponsored Listing(s), which will include the amount you spent on Sponsored Listings and performance metrics. Subject to the functionality of the Ads Manager, Portier may, in its sole discretion, provide enhanced promotional placement or other visual treatment for the Sponsored Listings. Merchant acknowledges that the time period of the Sponsored Listing may vary due to a number of factors including Merchant’s budget as authorized in an applicable Bid, parameters set by Portier in our sole discretion and the Ads Manager functionality.

5. Fees.

You will be charged an amount based on the actual number of clicks on your Sponsored Listing at the rate determined for each Winning Bid (“Sponsored Listing Fees”), You agree to pay the Sponsored Listing Fees (and any applicable taxes). Portier may charge you for any feature or tool within the Ads Manager, or any products and/or services accessed through the Ads Manager, upon notice to you (e.g., via a user interface in the Ads Manager or Restaurant Manager).

a. Invoicing and Payment Schedule.

Unless you notify Portier otherwise, you agree that Portier may deduct the Sponsored Listing Fees from any payment due to you, via a deduction from the remittance of Item Revenue collected on each Merchant’s behalf. Further, we may continue to deduct such Sponsored Listing Fees from following monthly invoices until such time when the Sponsored Listing Fees are paid in full.

If you do not currently receive a remittance of Item Revenue (collected on each Merchant’s behalf) from Portier,provide 3 days notice to Portier (inclusive of the necessary billing details) and if approved by Portier, the funding obligations detailed herein shall be due and payable within thirty (30) days of your receipt of an invoice, subject to your receipt of proper invoices from Portier.

Subject to the foregoing, Portier reserves the right to set a maximum spend threshold or suspend your access to the Ads Manager until the Sponsored Listing Fees are paid in full. Portier reserves the right to offer credits and/or discounts in its sole discretion. Portier and affiliates further reserve the right to collect Sponsored Listing Fees by debiting the payment method or your bank account on record, or otherwise seeking reimbursement from such Merchant by any lawful collection methods available. Any disputes about Sponsored Listing Fees must be submitted to Portier in writing within 60 days of the date you incurred such charge, otherwise you waive such dispute and such charge will be final and not subject to challenge.

Any disputes about Sponsored Listing Fees must be submitted to Portier in writing within 60 days of the date you incurred such charge, otherwise you waive such dispute and such charge will be final and not subject to challenge.

b. Charged per Click.

Based on the budget defined in your Bid submission, Portier will calculate your Sponsored Listing Fees based on the price per click. Sponsored Listing Fees are determined at the rate in effect for a particular Sponsored Listing at the time it is clicked. You understand that third parties may generate impressions or clicks on your Sponsored Listing for unintended purposes and you acknowledge and agree that you may still be charged for such clicks.

6. Termination.

You may cancel a Bid at any time, provided, however, that your Sponsored Listing(s) may run up to 3 business days after such cancellation. You will be responsible for the Sponsored Listing Fees until the Bid is cancelled. Upon cancellation, these Sponsored Listing Terms shall automatically terminate, provided, however, termination of these Sponsored Listing Terms will not result in termination of the Merchant Agreement unless the party terminating these Sponsored Listing Terms also terminates the Merchant Agreement in accordance with the terms of such Merchant Agreement. Termination of the Merchant Agreement will automatically result in termination of these Sponsored Listing Terms, which shall take effect only after the Sponsored Listing(s) have been removed. Notwithstanding the foregoing, the termination of these Sponsored Listing Terms or the Merchant Agreement will not relieve either party of its obligations hereunder.

7. Data.

Portier shall grant you a limited, exclusive, revocable, royalty-free license to access certain aggregated analytics and reporting related to such Sponsored Listings. Such license shall expire upon termination of these Sponsored Listing Terms. You will undertake reasonable commercial and technological efforts to: (a) prevent unauthorized access or copying of such data by third parties and (b) protect such aggregated and anonymized data from being attributed to individual users.

8. Feedback.

The form and function of the Ads Manager may change at any time in Portier’s sole discretion. Further, you understand that there may be a chance of unexpected errors. You understand and agree that you may be voluntarily providing and/or submitting to Portier feedback, statements, comments, suggestions and ideas (“Feedback”). Portier will not be obligated (and makes no commitment) to treat or maintain the Feedback that you submit as confidential or proprietary. Also, you waive any right that you may have to inspect or approve any work product that may use or reference the Feedback. Notwithstanding the foregoing, we will use commercially reasonable efforts to obtain your prior consent for any external attribution to your Feedback. Further, you understand and agree that Portier may (and you hereby grant Portier the worldwide, sublicensable (through multiple tiers), irrevocable, royalty free, unrestricted right to) reproduce, adapt, edit, modify, summarize, publish, exhibit, distribute, broadcast, display, perform, make, use, sell, offer for sale, and otherwise exploit the Feedback, by any and all means and in any and all media, now known or hereafter devised, without compensation of any kind. In furtherance of the foregoing, to the fullest extent allowable under any applicable law, you hereby irrevocably waive your so- called “moral rights” or “droit moral” in the Feedback.

9. Testing.

You authorize Portier to periodically conduct tests that may affect your access to our use of the Ads Manager, as well as your ability to surface Sponsored Listings. These tests may include, but are not limited to, changes in formatting, placement of Sponsored Listings and performance. To ensure the timeliness and validity of test results, you authorize Portier to conduct such tests without providing you notice or compensation.

10. Confidentiality.

For the avoidance of doubt, all elements, including any design features and components offered and displayed (whether orally, visually, or in writing) of the Uber Sponsored Listing program, including the existence and structure of the Uber Sponsored Listing program, are confidential and should be handled in accordance with the confidentiality obligations in the Merchant Agreement.

11. Other.

Portier reserves the right to update or make changes to these Sponsored Listing Terms from time to time in its sole discretion, including, without limitation, by posting a revised version of these Sponsored Listing Terms on our website (or any successor website thereto). You can determine when these terms were last revised by referring to the “Last Updated” legend at the top of these Sponsored Listing Terms. Portier reserves the right, at any time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the ability for Merchant to place Bids, with or without notice. You agree that neither Portier nor any of its affiliates shall be liable to you (or to any third party) for any modification, suspension or discontinuance of the Ads Manager or providing Merchant with the ability to place Bids. Except as specifically amended by these Sponsored Listing Terms, the terms and conditions of the Merchant Agreement and any amendments thereto shall remain in full force and effect.