Uber Direct Terms

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

1. ORDER FORM.

The parties may have entered into an order form or related document (“Order Form”) which incorporates the Uber Direct Terms (the Order Form, together with the Uber Direct Terms, and all terms referenced therein, shall mean the “Agreement”).

1.1 Types of Services. Merchant may use Uber Direct to request Delivery Persons to pick up Items from Merchant’s (or Merchant Client’s, as applicable) location and deliver the Items to the Designated Recipient (“Delivery Services”). In addition to the Delivery Services, if authorized in writing by Uber, Merchant may also request the Delivery Person to collect the requested Items from Merchant’s (or Merchant Client’s, as applicable) shelves (“Packing Services”).

1.2 Access Methods. Merchant may use the following Access Method(s) to access Uber Direct, as authorized by Uber in writing. Access Methods include: (a) the Dashboard (Uber will provide Merchant with access to Uber Direct via the Dashboard); (b) the Direct API (Merchant may integrate the Direct API with its own products and services so Merchant can access Uber Direct); and (c) the Third Party Platform (Merchant will access Uber Direct via a Third Party Platform).

2. TERM AND TERMINATION.

This Agreement commences on the Effective Date, and continues for a period of one (1) year (the “Initial Term”), after which it will automatically renew for consecutive one (1) year periods (each a “Renewal Term,” and together with the Initial Term, the “Term”) unless a party provides written notice to not renew at least thirty (30) days prior to the end of the current term. Either party may terminate the Agreement for any reason, or for no reason, by giving the other party sixty (60) days’ prior written notice. Either party may terminate the Agreement with immediate effect by giving the other party written notice, if the other party: (i) materially breaches the terms of this Agreement and the breaching party fails to cure within thirty (30) days’ written notice from the nonbreaching party; or (ii) becomes insolvent or bankrupt, or makes an assignment for the benefit of creditors. Additionally, Uber may immediately terminate the Agreement upon written notice, if Merchant: (1) breaches the General API Terms, if applicable, (2) is involved in an event that, in Uber's reasonable judgment, causes Uber or its Affiliates to have significant concern for the reputation of its respective Brand, including matters related to the alleged violation of any applicable retail food or other health or safety code (a “Brand Matter”); or (3) assigns or transfers (or attempts to do so), either voluntarily or by operation of law, any or all of its rights and obligations under this Agreement without having obtained Uber's prior written consent.

3. DELIVERY CHARGES.

3.1 Access to Uber Direct and the Direct API is provided free of any subscription fees. Uber will bill Merchant’s Direct Account for the applicable Delivery Charges in accordance with this Agreement (provided, if Merchant accesses Uber Direct via a Third Party Platform, the Delivery Charges may be collected by the Third Party Platform). Merchant will use one of the following payment methods, as authorized by Uber in writing:

3.1.1 Invoice. Merchant will pay each monthly invoice in full within thirty (30) days of issuance. Merchant will maintain a valid credit card number on Merchant’s Direct Account (“Merchant Card”). Merchant authorizes Uber to charge the Merchant Card if Merchant fails to pay any statement or invoice when due.

3.1.2 Credit Card. Merchant will maintain a Merchant Card on Merchant’s Direct Account, which Merchant hereby authorizes Uber to charge on a monthly, weekly, or daily basis, as determined by Uber, for all amounts owed by Merchant under this Agreement. Merchant authorizes Uber to charge the Merchant Card if Merchant fails to pay any statement or invoice when due.

3.1.3 ACH. Merchant authorizes Uber to withdraw funds from Merchant’s designated bank account via electronic ACH transfer for any amounts owed by Merchant under this Agreement on a monthly, weekly, or daily basis, as determined by Uber, and, if necessary, initiate credit entries and adjustments in the event of any errors. Merchant agrees that funds may be withdrawn hereunder to satisfy any payment obligation owed to Uber (or its Affiliates) by Merchant. Merchant understands and agrees 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. Merchant agrees 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 Merchant and Uber or as subsequently adopted, amended, or repealed. Merchant may terminate Merchant’s authorization at any time in writing to Uber, effective thirty (30) days upon Uber’s receipt of such termination.

3.2 Distance associated with each Delivery Charge is measured on a predicted-route basis, with regard to expected driving distance on roads, unless otherwise indicated on an Order Form. All Delivery Charges shall be paid in U.S. Dollars and are nonrefundable. All late payments accrue interest of 1.5% per month or the maximum allowed by applicable Law. Unless otherwise stated, all payments are nonrefundable and all fees charged by Uber to Merchant are exclusive of Sales Taxes. In the event of any unpaid Delivery Charges or other fees, Uber is permitted to suspend Merchant’s access to Uber Direct, and may pursue any remedies available under applicable Law, including reporting Merchant to credit reporting agencies. Uber shall have sole discretion regarding reestablishing Merchant’s access to Uber Direct. Uber or its Affiliate may deduct any amounts owed to Uber by Merchant under this Agreement from revenue collected on Merchant’s behalf for Merchant’s items ordered through any Uber platforms before Uber or its Affiliate pays that revenue to Merchant.

3.3 Any liability for the loss, damage, non-delivery, or delay in the delivery of Items requested by Merchant for delivery will be handled in accordance with the procedures set forth in the applicable refund matrix available at https://help.uber.com/merchants-and-restaurants/article/direct-merchant-refund-matrices?nodeId=4e93a0c4-5769-4792-8621-f67ee121cea6, as updated from time to time (the “Refund Matrix”). Except as specified in the Refund Matrix, Uber will have no liability to Merchant for any loss, damage, non-delivery, or delay in the delivery of Items requested by Merchant for delivery. All refunds provided from Uber to Merchant must be given to the affected customer (and Merchant shall provide reasonable proof the refund was delivered upon Uber’s request). Uber may, in its sole discretion, deny any refund request if (a) Uber determines that such refund request is fraudulent based on information from Uber’s systems or (b) if Merchant fails to comply with the implementation or operational guidelines provided by Uber.

4. CONFIDENTIALITY.

Each party receiving Confidential Information (as “Recipient”) agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Confidential Information of the party disclosing Confidential Information (as “Discloser”). Recipient will cause its Representatives to comply with this Agreement and will be 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 in writing; and (ii) a Recipient is required to disclose certain Confidential Information of the Discloser pursuant to any Laws, provided that, unless prohibited by Law, the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by a 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.

5. ACCESS METHOD SPECIFIC TERMS.

5.1 API. This section titled “API” will only apply if Merchant uses the Direct API:

5.1.1 In order to utilize the Direct API, Merchant must first establish a developer account by completing the online sign-up process at developer.uber.com. Merchant’s use of the Direct API is subject to this Agreement and the API terms of use (currently available at https://developer.uber.com/docs/riders/terms-of-use), as may be updated from time to time (“General API Terms”). Merchant represents and warrants that throughout the Term it will use the Direct API in accordance with the General API Terms and this Agreement. Merchant understands that if Merchant breaches the General API Terms and Uber terminates the General API Terms, Uber may also terminate any agreement between Merchant and Uber that includes the use of an API.

5.1.2 Merchant will implement the Direct API into Merchant’s products in a manner consistent with the implementation guidelines provided by Uber, and subject to Uber’s final approval. Additionally, Merchant will use Uber Direct Trademarks in any demand channel (e.g. Merchant’s website or app) where Uber Direct is being utilized or advertised. Uber will provide Merchant with requirements on design and placement of Uber’s Trademarks via email, and Merchant agrees to work in good faith with Uber in implementing these requirements. Merchant agrees to include tipping information within Merchant’s products and will submit such designs to Uber for its final approval. In the event that tipping and rating on Merchant’s products is substantially different from tipping and rating in the implementation guidelines provided by Uber, the parties will agree on a solution. If Merchant collects any amount as tip or gratuity on a customer order placed through Merchant’s demand channels or platforms, Merchant agrees to notify Uber of such amount through appropriate endpoints of the Direct API, and Merchant agrees to remit such amount to Uber for distribution to Delivery Persons completing delivery services for such order. After the parties finalize the API integration in accordance with this Agreement, Uber will use commercially reasonable efforts to enable Merchant to access Uber Direct within the United States (where Uber offers Uber Direct). If Merchant fails to comply with the foregoing provisions, Uber may, in its sole discretion, prohibit finalization of the API integration, or restrict or otherwise deactivate Merchant’s access to the Direct API. Merchant agrees to provide Uber with access to a merchant-level account to test the functionality of Merchant’s merchant product offerings, or if Merchant cannot provide such access, Merchant agrees to provide Uber with user-experience demonstrations of its merchant product offerings upon request of Uber.

5.2 Third Party Platform. This section titled “Third Party Platform” will only apply if Merchant uses a Third Party Platform to access Uber Direct:

5.2.1 Merchant authorizes Uber to disclose Merchant’s Confidential Information to the Third Party Platform provider, only as necessary to perform Uber’s obligations under this Agreement.

5.2.2 If Merchant’s only Access Method is a Third Party Platform and the Third Party Platform Terms are terminated or expire for any reason, this Agreement will automatically terminate upon termination or expiration of the Third Party Platform Terms.

5.2.3 Notwithstanding anything to the contrary, to the maximum extent permitted by Law, Uber and its Affiliates shall have no liability in respect of any Claim that Merchant, or any Merchant Affiliate, incurs in relation to any Third Party Platform, including Merchant’s use or reliance on the Third Party Platform, except to the extent that any such Claim is directly caused by the willful misconduct or gross negligence of Uber or its Affiliates.

5.2.4 Notwithstanding anything to the contrary in this Agreement or any Order Form, Uber may modify the Delivery Charges with at least 30 days’ notice if Merchant’s Third Party Platform changes after the Effective Date.

6. REQUIREMENTS FOR DELIVERY.

6.1 Merchant may provide instructions for the delivery of Items at the delivery location. If the Items are undeliverable because the Designated Recipient cannot be located or the delivery otherwise cannot be completed according to Merchant's delivery instructions, the Items may be returned to Merchant at the original pickup location (each a “Direct Return”). Merchant shall accept all Direct Returns and understands that in the event of a Direct Return, Merchant will be charged fees associated with the Delivery Person’s return trip, which will be considered Delivery Charges. In addition, Merchant shall be responsible for handling, including all charges related to, any pick-ups and returns from a delivery location where an Item was delivered, but later found to be at the incorrect location.

6.2 Merchant shall ensure that Items provided to a Delivery Person through Uber Direct: (i) are collectively able to fit into, and are appropriate for transport in a standard midsize motor vehicle; and (ii) do not exceed 50 pounds per package, box, or parcel. Merchant may not request delivery through Uber Direct for any Prohibited Items or Restricted Items. Merchant will ensure that Items are readily available for pickup upon arrival of a Delivery Person at the requested pick-up location. Merchant understands that if a Delivery Person refuses to accept an Item due to size or weight, or such Item is a Prohibited Item or Restricted Item, or because the Delivery Person is asked to purchase such Item, Merchant will be responsible for: (1) a cancellation fee; and (2) any return fees. Such cancellation fees and return fees shall be considered Delivery Charges. If reasonably needed by Merchant or Uber to comply with applicable Law, Merchant agrees to provide, as applicable (a) a description of any conditions affecting a Delivery Person’s accessibility to any pickup or delivery locations (e.g. flights of stairs), and (b) description of Items (including ingredients, nutritional information, allergen information, size, weight, alcoholic content. All such information shall be accurate, complete, and comply with all applicable Law.

6.3 As between Uber and Merchant, Merchant will be responsible for all support to Designated Recipients, including resolving any disputes or concerns from Designated Recipients related to deliveries requested via use of Uber Direct. Merchant must package Items appropriately for delivery, including: (i) any protection necessary to prevent tampering or damage due to any cause, including inclement weather or the nature of the Items themselves; (ii) using appropriate preservation methods (e.g., dry ice, gel pack, bubble wrap) to ensure that the Items arrive as intended by the Merchant, as reasonably expected by the Designated Recipient, and that the specific Item is delivered in a safe condition, including, where applicable, being safe for consumption; and (iii) providing any certifications, labeling, protection, or instructions required by applicable Laws. To the extent that Items requested by Merchant for delivery include food or beverages, (A) Merchant will package food and beverage Items separately from potentially harmful products; and (B) Merchant will not replace Items requested by a third party that are ultimately unavailable with different Items without the written consent of the third party.

6.4 To permit Uber to send information and updates regarding the delivery to parties designated by Merchant, Merchant shall, before requesting delivery services as described in this Agreement, obtain from such parties, and submit to Uber, the following information (collectively, “Delivery-Informed Data”) with respect to such Delivery-Informed Parties: (a) active telephone number; (b) delivery drop-off location; and (c) other optional trip related data (e.g., billing code, trip purpose, message to Delivery Persons). Merchant shall ensure that all data provided to Uber is accurate and complete, and Uber shall not be liable to Merchant or any other party with respect to inaccurate or incomplete Delivery-Informed Data supplied to Uber by Merchant. Merchant shall be solely responsible for contacting, or facilitating contact with, any Delivery-Informed Parties. Uber shall have no responsibility for contacting or providing messaging of any sort pursuant to this Agreement to any individual for whom Merchant has not provided Uber any Delivery-Informed Data.

7. REQUIRED LICENSES AND SCREENING STANDARDS.

7.1 Required Licenses. Each party agrees to maintain all licenses, permits, approvals, or similar authorizations (collectively, the “Required Licenses”) required to conduct its business pursuant to this Agreement. Upon Uber's request, Merchant must provide Uber with copies of applicable Required Licenses. Merchant will immediately notify Uber of any change or termination of any applicable Required Licenses and will provide copies of any new applicable Required Licenses upon Uber's request. Uber may suspend Merchant or remove Merchant’s Items from the Channel, as applicable, if Merchant fails to comply with this section.

7.2 Delivery Person Verification and User Safety Policies. Uber, or its Affiliate, are responsible for contracting with all independent contractors using the Uber technology systems under license from Uber to provide transportation or other services. The following shall apply:

7.2.1 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. During the course of the screening process the following information shall be collected and maintained (unless such information should not be maintained due to privacy considerations or other applicable Law) in accordance with Uber’s then-current practices: (1) full name; (2) date of birth; (3) driver’s license number (excluding those providing delivery services without an automobile); and (4) copy of driver’s license (excluding those providing delivery services without an automobile).

7.2.2 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, at all times use vehicles that are suitable for providing transportation services, and maintained in good operating condition consistent with Uber’s safety and maintenance standards.

8. INTELLECTUAL PROPERTY.

Subject to this Agreement, the parties grant each other a fully paid, royalty-free, non-exclusive, non-sublicensable, revocable license during the Term to use each other’s Brands in marketing materials and in media releases. Any other uses of the other party’s Brand must be preapproved (email sufficient). Use of a party’s Brand must comply with such party’s provided marketing guidelines (Uber’s guidelines are made available on the internet from time to time). Each party’s use of the other party’s Brand, and all goodwill generated from that use, will inure to the benefit of the owner of the applicable Brand. Uber owns all right, title and interest, including without limitation all intellectual property rights and other rights, in and to the Direct API, the Dashboard, and the technology and software Uber uses to provide the Uber Services. Except as expressly set forth in this Agreement, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. EACH PARTY ACKNOWLEDGES AND AGREES THAT NEITHER PARTY SHALL DEVELOP ANY TECHNOLOGY, CONTENT, MEDIA, OR OTHER INTELLECTUAL PROPERTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT.

9. INSURANCE.

During the Term each party will maintain: (i) commercial general liability insurance (with policy limits at least one million dollars combined single limit per occurrence for bodily injury, death and property damage liability, and two million dollars in aggregate); and (ii) if required by Laws, worker’s compensation insurance. Uber agrees to also maintain commercial automobile liability insurance (with policy limits at least one million dollars combined single limit for bodily injury or property damage arising out of the ownership, maintenance or use of owned, hired, and non-owned vehicles). All policies will be written by reputable insurance companies with an A.M. Best financial rating of not less than “A-”, VII. Such insurance will not be canceled or materially reduced without 30 days’ prior written notice to the other party. Upon a party’s request, the other party will provide evidence of the insurance required in this Agreement. Each party must include the other as an additional insured on its commercial general liability and commercial automobile liability policies. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.

10. DATA PROCESSING RESTRICTIONS.

10.1 Where: (i) Laws require Merchant to collect and retain certain information in relation to the sale of Items (which may include Personal Information); (ii) it is impossible for Merchant to directly collect that information; and (iii) Uber is reasonably able to collect and retain that information; then Merchant instructs Uber to, and Uber, pursuant to the Merchant’s instruction: (1) will collect and retain that information as required by the applicable Laws ; and (2) may disclose that information directly to the applicable authorities instead of providing it to Merchant where the applicable Laws allow.

10.2 Each party shall only Process and disclose the Personal Information it has received from the other party for the purpose of performing the services provided or received by the parties pursuant to this Agreement (“Services”) (including any ancillary activities related to performing such Services such as product and service improvement, customer support, safety, fraud prevention purposes and other legitimate business purposes), and may not use or disclose such Personal Information 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. Each party shall (1) limit access to the Personal Information 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 Information, except as otherwise necessary to provide the Services or as allowed under this Agreement. Merchant shall retain Uber Personal Information and Uber shall retain Delivery-Informed Data for so long as necessary to perform the obligations under this Agreement (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. Each party shall notify the other party without undue delay upon discovery of an unauthorized access to, acquisition or disclosure of the Personal Information it has received from the other party, or other breach of security or confidentiality with respect to such Personal Information in such party’s or its representatives’ control or possession. Performance of Services under this Agreement does not require cross-border transfer of Personal Information. In the event that the Services require cross-border transfer of Personal Information, the parties agree to enter into a separate agreement and to comply with methods of transfer authorized under applicable Laws. Each party shall comply with the obligations applicable to it under all Laws and regulations applicable to the Processing of Personal Information under this Agreement, including the California Consumer Privacy Act of 2018 (“CCPA”) (“Data Protection Laws”) with respect to its Processing of Personal Information. Each party may take reasonable measures to ensure that the other complies with their obligations under Data Protection Laws concerning the Processing of Personal Information shared between the parties. This includes requesting attestations of compliance with the provisions of this “Data Processing Restrictions” section. Each party shall be responsible for responding to data subjects’ requests and complaints that relate to its Processing of Personal Information.

10.3 The parties have 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: (A) data loss prevention program, with appropriate policies and/or technological controls designed to prevent loss of Personal Information; and (B) a disaster recovery/business continuity plan that addresses ongoing access, maintenance and storage of Personal Information as well as security needs for back-up sites and alternate communication networks. The parties shall maintain appropriate physical security measures for any facility used to Process Personal Information and continually monitor any changes to the physical infrastructure, business, and known threats. The parties shall perform vulnerability scanning and assessments on new and key applications and infrastructure. The parties shall secure its computer networks using multiple layers of access controls to protect against unauthorized access. 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. The parties shall identify computer systems and applications that warrant security event monitoring and logging, and reasonably maintain and analyze log files. The parties shall deploy all applicable and necessary system security patches to all software and systems that Process, store, or otherwise support this Agreement. 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 Information.

10.4 Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Information, with other data collected from any source for the purpose of re-identification, targeted marketing, or any other similar purpose. Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Uber Services, including any password, login or key information, as applicable, and Merchant represents and warrants it will not share such information with any third party.

11. REPRESENTATIONS AND WARRANTIES.

11.1 Mutual Representations, Warranties, and Covenants. Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations; (ii) it is duly organized, validly existing and in good standing under the Laws of its origin jurisdiction; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing its obligations in this Agreement; (iv) it will comply with all applicable Laws in its performance of this Agreement; (v) such party’s statements (including marketing claims) in any materials provided to the other party (or its Affiliates) are not false, misleading, or deceptive, are supported by sufficient prior substantiation, and comply with applicable Laws; (vi) the Trademarks, content, and other materials used or provided by one party to the other pursuant to this Agreement will not infringe or otherwise violate a third party’s intellectual property or publicity rights, or other proprietary rights; (vii) it has all rights and legally adequate consents, where necessary, to provide the other party with Personal Information and any other information provided to the other party hereunder as necessary to facilitate deliveries and for related purposes, including but not limited to fraud prevention, product and service improvement and safety purposes; (viii) it will use Personal Information solely for legitimate business purposes including but not limited to fraud prevention, product and service improvement and safety purposes; (ix) it will only provide access to Personal Information to its personnel who have a business need to access such Personal Information; (x) it will not disclose, rent, or sell Personal Information to any third party, unless expressly authorized in writing by the other party, and who are in each case bound by privacy and security obligations regarding Personal Information at least as restrictive as those contained in this Agreement; and (xi) it is not a government or quasi-government entity, or otherwise owned, controlled by, or created by a government entity.

11.2 Merchant Representations and Warranties. Merchant represents and warrants (and covenants the following to be true at all times during the Term): (i) Merchant will comply with its obligations with respect to Items under this Agreement and Laws related to the sale, promotion, packaging, pricing, taxation and delivery of Items applicable to Merchant and Merchant has all Required Licenses to sell and deliver the Items that Merchant requests for delivery via the Uber Direct Channel; and (ii) Merchant will inform and obtain all necessary rights, permission and legally adequate consent from Delivery-Informed Parties: (1) to share certain Personal Information, including, if applicable, full name, email and order information of Delivery-Informed Parties that have affirmatively opted in to receive marketing communications from Uber; (2) to receive SMS messages from Uber in connection with Uber Direct or to provide any communications related to this Agreement, including via automated voice dialing; and (3) for Uber to provide Merchant with detailed trip information, including real-time delivery status, for the deliveries charged to Merchant.

11.3 Disclaimer. EXCEPT AS SET FORTH IN THIS AGREEMENT, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS SET FORTH IN THIS AGREEMENT, UBER DIRECT IS PROVIDED “AS IS” AND WITHOUT WARRANTY. UBER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN UBER DIRECT WILL MEET MERCHANT’S REQUIREMENTS OR THAT THE OPERATION OF UBER DIRECT WILL BE UNINTERRUPTED OR ERROR FREE. UBER HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE AGREEMENT, 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. MERCHANT ACKNOWLEDGES AND AGREES THAT UBER DIRECT IS A TECHNOLOGY SERVICE THAT ENABLES ACCESS TO REQUEST ON-DEMAND DELIVERY AND LOGISTICS SERVICES PROVIDED BY INDEPENDENT THIRD-PARTY PROVIDERS. UBER IS NOT A DELIVERY OR LOGISTICS PROVIDER. UBER DOES NOT GUARANTEE AVAILABILITY OF DELIVERY OR LOGISTICS SERVICES, ON-TIME ARRIVALS OR DEPARTURES THEREOF, OR ANY OTHER SERVICES LEVELS RELATED TO INDEPENDENT DELIVERY OR LOGISTICS PROVIDERS THAT MAY BE OBTAINED VIA UBER DIRECT.

12. INDEMNIFICATION

12.1 Mutual Indemnities. An Indemnifying Party will, at its own expense, indemnify, defend and hold harmless the Indemnified Party from and against all taxes, losses, liabilities, damages, claims, suits, costs and expenses including reasonable attorney’s fees and other legal costs (“Claims”) brought against the Indemnified Party by a third party arising from or in connection with: (i) the gross negligence or willful misconduct of the Indemnifying Party, or its employees, or agents in connection with the performance of this Agreement; (ii) any breach of representations, warranties, or covenants in this Agreement by the Indemnifying Party or its employees, or agents; or (iii) any violation or claimed violation of a third party’s rights resulting in whole or in part from use of the Indemnifying Party’s Brand. The parties obligation to indemnify, defend and hold harmless will not apply to the extent that (1) the Claim brought against the Indemnified Party by the third party was directly caused or contributed to by the gross negligence or willful misconduct of the Indemnified Party or its employees or agents; or (2) the Indemnified Party did not use the Indemnifying Party’s Brands in accordance with the manner approved by the Indemnifying Party.

12.2 Merchant Indemnities. Merchant will, at its own expense, indemnify, defend and hold harmless Uber Indemnified Parties from and against all Claims brought against an Uber Indemnified Party by a third party arising from or in connection with: (i) Merchant’s violation or alleged violation of Laws governing food or alcohol safety, or other health and safety Laws; (ii) Merchant’s violation or alleged violation of its obligations with respect to Items under this Agreement, including inclusion of a Prohibited Item or Restricted Item, Merchant’s failure to tag or mark Alcohol Items or other age-restricted Items as age-restricted or to tag or mark delivery requests as containing such Items; (iii) the use of Uber Direct by any Delivery-Informed Party; or (iv) any personal injury or damage to property arising from the Items requested by Merchant for delivery.

12.3 Indemnification Process. The Indemnified Party will provide the Indemnifying Party with: (i) prompt written notice of such Claim; (ii) control over the defense and settlement of such Claim, provided that the Indemnifying Party must not enter into a settlement that involves a remedy other than the payment of money by the Indemnifying Party without the express written consent of the Indemnified Party, which must not be unreasonably withheld; and (iii) proper and full information and assistance to settle or defend any such Claim, at the Indemnifying Party’s expense.

13. LIMITATION OF LIABILITY.

13.1 IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF MERCHANT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND

13.2 EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS, EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $100,000.

13.3 THE LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES IN THIS SECTION TITLED “LIMITATION OF LIABILITY” WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.

14. MISCELLANEOUS.

14.1 Additional Clauses.

14.1.1 Participants. This section titled “Participants” only applies if the Merchant has Participants who wish to use Uber Direct.

14.1.1.1 Participant Adoption. If a store location that wishes to use Uber Direct is owned or operated by a Participant, the Merchant must ensure that each Participant separately agrees to the terms of this Agreement in relation to that Participant’s Locations. To do this, the Participant must: (i) execute an agreement with Uber on similar terms to this Agreement; or (ii) execute an opt-in to this Agreement (on the form provided by Uber); or (iii) execute such other documentation that the Merchant and Uber agree in writing to have Participants execute pursuant to this section. The Merchant must provide Uber with contact information of all Participants and prospective Participants. Unless otherwise stated in the Order Form, Merchant is responsible for all fees and charges incurred by Participants.

14.1.1.2 Notice of Amendments. Any amendments to the Agreement will be binding upon Participants from the date that the amendment to this Agreement was executed by the Merchant and Uber, provided that the Participants receive written notice of the amendment. The Merchant agrees to ensure that Participants receive notice of such amendments.

14.1.1.3 Merchant Responsibility for Participants. Until a Participant has agreed to the terms of this Agreement, or where applicable, received notice of an amendment, the Participant’s use of Uber Direct is governed by this Agreement (including as amended), and the Merchant is directly responsible for the Participant’s compliance with this Agreement (and any amendments to it) in relation to such use. Any breach of this Agreement by such Participants will be deemed a breach of this Agreement by the Merchant.

14.1.1.4 Participant Brand Use. Any intellectual property licenses provided by the Merchant to Uber pursuant to this Agreement also extend to, and apply to, the use of the Merchant’s intellectual property in relation to Participants.

14.1.1.5 Participant Information Sharing. The Merchant represents and warrants that it has all required authorizations to receive information from Uber about the Participants, including Confidential Information. If the Merchant is also a Participant, the Merchant authorizes Uber to share information with its franchisor (including its franchisor’s parent companies or Affiliates, as applicable), about the Merchant, its use of Uber Direct, and including Merchant’s Confidential Information. The Merchant also authorizes Uber and its Affiliates to disclose the terms of this Agreement to the Merchant’s Participants in connection with executing contracts that reference this Agreement with such Participants.

14.1.1.6 Multi-Brand Licensee Agreements. Merchant acknowledges and agrees that Uber and Multi-Brand Licensee are authorized to enter into an agreement different from those otherwise required by this Agreement. For clarity, this section also applies to agreements between Uber and a Multi-Brand Licensee that were entered into prior to the Effective Date.

14.1.2 Packing Services. This section titled “Packing Services” will only apply if Merchant utilizes the Packing Services.

14.1.2.1 Procedure. Merchant will implement an integration between Merchant’s POS and the Uber systems to permit the Delivery Person to be able to use the Checkout Code at checkout. Merchant is solely responsible for completing such integration work, at its own expense. Merchant agrees to notify its employees and agents regarding the checkout process for the Packing Services (as described by Uber).

14.1.2.2 Substitutions. For the purpose of facilitating Item substitutions, Merchant agrees to provide Uber with an accurate and complete Master File. Merchant agrees to include in its Master File all Items, which, for the avoidance of doubt, will exclude any Prohibited Items or Restricted Items or Items that do not comply with size or weight limitations provided in this Agreement. If Merchant allows the Designated Recipient the option to substitute an Item with another, then Merchant represents and warrants that it has provided appropriate notices to, and collected all legally required consents (“Substitution Consents”) from, the Designated Recipient to lawfully share their Personal Information with Uber and to allow Uber to lawfully share it with Delivery Persons, and for the Designated Recipient to receive calls or SMS messages for the purpose of facilitating Item substitutions. Merchant will indemnify, defend and hold harmless Uber, its Affiliates and their respective directors, officers, employees, consultants, agents, successors and assigns from and against any and all Claims arising out of or related to (i) Merchant’s failure to provide or integrate, or improper use of, the Checkout Code, or (ii) Merchant’s failure to obtain Substitution Consents.

14.1.3 Catering Orders. This section titled “Catering Orders” will only apply if Merchant requests delivery of Catering Orders.

14.1.3.1 Whether a request qualifies as a Catering Order will depend on the size, volume, or price of the goods for which Merchant requests delivery, with any such attributes defined by Uber in its sole discretion. Merchant agrees to share information requested by Uber about its catering menu and offerings.

14.1.3.2 Catering Orders are subject to all provisions of the Agreement pertaining to delivery requests raised by Merchant via Uber Direct, and may be subject to additional terms specific to Catering Orders as provided in this Agreement.

14.1.3.3 Catering Orders may be subject to minimum lead-time requirements, as defined by Uber, to provide adequate opportunity for Delivery Persons to review and accept such Catering Orders for Delivery Services. Neither Uber nor Delivery Persons shall be required to provide any additional equipment or other goods related to Catering Orders, including, but not limited to, warming trays or other equipment required for setup of a Catering Order at its intended destination.

14.1.3.4 Merchant agrees that Catering Orders shall be subject to any exclusivity or “preferred” obligations set forth under the Agreement, as applicable.

14.1.3.5 If Merchant, as part of any Catering Order, requests additional services from Delivery Persons, including inside setup or other services, such Catering Order may be subject to additional fees or alternate Delivery Charges. Merchant acknowledges that acceptance of any request for Delivery Services for a Catering Order shall be subject to the sole discretion of those Delivery Persons presented with such delivery request.

14.1.3.6 With respect to any Catering Orders submitted for delivery via Uber Direct, Merchant represents and warrants that: (i) Merchant shall provide Uber the required information to identify a delivery request as a Catering Order (including, as necessary, the use of additional accounts within or connections to Uber Direct separate from those utilized by Merchant for its typical requests for delivery via Uber Direct); (ii) all such requests will comply with any size limitations defined by Uber in Uber’s sole discretion; (iii) all Catering Orders shall be packaged in a manner that maintains the appropriate temperature, prevents spillage, and ensures safe transportation; and (iv) any Delivery-Informed Parties, including any Designated Recipients of Catering Orders, are notified that a Delivery Person may require access to the destination premises to complete their Catering Order delivery as directed by Merchant or Delivery-Informed Parties.

14.1.4 Uber Managed Support. This section titled “Uber Managed Support” will only apply if Uber agrees in writing to provide Uber Managed Support.

14.1.4.1 For delivery requests originating on Merchant’s products which Merchant requests fulfillment via the Direct API or Dashboard, Uber will make available to customers a customer-support service that customers may access for assistance (such service being “Uber Managed Support”).

14.1.4.2 Scope of Uber Managed Support. Unless otherwise agreed by the parties, Uber Managed Support will solely cover customer issues or incidents relating to delivery requests sent by Merchant to the Direct API and Dashboard. Customer support will not cover issues or incidents relating to: (i) customer accounts or profiles on any of Merchant’s products; (ii) billing or payment via any Merchant product; (iii) any promotional, referral, discount or other code made available to customers; (iv) food safety or interpersonal conflict incidents relating to Merchant conduct or food preparation; or (v) issues or outages of any Merchant product. Except as otherwise noted herein, Merchant will be responsible for all support to customers in relation to issues not covered by Uber Managed Support.

14.1.4.3 Access to Uber Managed Support. Uber will notify Merchant of the means by which Merchant may advise customers to reach Uber for Uber Managed Support, which may include telephone, email, or other communication channel. Uber retains sole discretion to determine the means or manner by which customers may access Uber Managed Support.

14.1.4.4 Provision of Uber Managed Support. If a customer contacts Uber via Uber Managed Support and reports an issue relating to delivery facilitated via the Direct API or the Dashboard, and Uber reasonably determines that the issue warrants a refund to the reporting customer (in accordance with the terms and conditions of this Agreement), Uber will notify Merchant (via webhook), who will be solely responsible for issuing the refund to the reporting customer. Merchant acknowledges that Uber may obtain Personal Information of customers during its provision of Uber Managed Support, and agrees that Uber may use such Personal Information for the purposes of rendering support to such customers in accordance with this Agreement, and further, that Uber may use de-identified data obtained through its provision of Uber Managed Support for product improvement, data analytics, and other internal business purposes. Uber may change, impose requirements or restrictions on, or stop offering Uber Managed Support. Uber agrees to provide reasonable prior notice to Merchant in the event it ceases to offer Uber Managed Support entirely.

14.1.4.5 Disclaimer. Except as otherwise noted herein, Uber makes no representations, and expressly disclaims all warranties, express or implied, regarding Uber Managed Support, including any implied warranty of merchantability or fitness for a particular purpose and implied warranties arising from course of dealing or course of performance. Unless otherwise expressly set out in this Agreement, Uber does not guarantee the reliability, timeliness, quality, suitability or availability of Uber Managed Support.

14.2 AV Fleet Providers.

14.2.1 The “Required Licenses and Screening Standards” section above (as applicable to human Delivery Persons) may not apply to AV Fleet Providers (and their AVs, Delivery Robots, and Delivery Drones) performing delivery services; provided that, Uber requires that AV Fleet Providers comply with all applicable Laws in their provision of delivery services, inclusive of those pertaining to screenings standards for the vehicle or safety operators supporting the in-person operation of an AV Fleet Providers’ AVs, Delivery Robots, and Delivery Drones while performing delivery services. AV Fleet Providers will not be made available via Uber Direct when a sale includes Alcohol Items.

14.2.2 For the avoidance of doubt, nothing hereunder modifies or otherwise affects Merchant’s obligation under the Age-Restricted Items Terms with respect to delivery services by Delivery Persons of Alcohol Items.

14.2.3 Merchant acknowledges and agrees that AV Fleet Providers, while completing the delivery of Items via Uber Direct may record audio or video in and around the AV, Delivery Robot, or Delivery Drone, in accordance with the AV Fleet Provider’s privacy policies. Portier requires that the AV Fleet Provider’s use of such recording devices complies with all applicable state, federal and local laws and regulations. Unless required by law, the AV Fleet Provider will not broadcast or otherwise make publicly available a person’s image, audio, or video recording that it obtains through such recording devices.

14.3 Territory; Brand. This Agreement only applies to Merchant’s use of the Uber Direct Channel in the United States of America. This Agreement applies to all of Merchant’s delivery of Items via the Uber Direct Channel.

14.4 Use Restrictions. Merchant agrees to not (and must not allow any third party to): (i) remove any copyright, trademark or other proprietary notices from the Uber Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Uber Services except as expressly permitted by Uber; (iii) decompile, reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Uber Services (except to the extent applicable Laws prohibits reverse engineering restrictions); (iv) link to, mirror or frame any portion of the Uber Services; (v) cause or launch any programs or scripts for the purpose of unduly burdening or hindering the operation and/or functionality of any aspect of the Uber Services; (vi) attempt to gain unauthorized access to or impair any aspect of the Uber Services or its related systems or networks; or (vii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control Laws. Merchant must not (and will not allow any third party to) use the Uber Services, or any data or information that is related to the sale or delivery of Items to customers, to directly or indirectly compete with Uber or its Affiliates.

14.5 Feedback. If Merchant provides Uber (or its Affiliates) feedback, suggestions, comments, ideas, or other concepts relating to Uber's and its Affiliate’s products and services (collectively, “Feedback”), Merchant grants to Uber and its Affiliates a worldwide, perpetual, irrevocable, transferable, sub-licensable, royalty-free license to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such Feedback in all formats and distribution channels now known or hereafter devised, without further notice to or consent from Merchant, and without the requirement of payment to Merchant or any other person or entity. All Feedback is subject to the User Generated Content Terms.

14.6 Invoices; Taxes. Unless otherwise expressly stated, invoices (if any) must be paid within thirty calendar days of receipt. All late payments accrue interest of 1.5% per month or the maximum allowed by applicable law. Unless otherwise stated, all payments are nonrefundable and all fees charged by Uber to Merchant are exclusive of sales taxes.

14.7 Delivery Persons; Fee Cap Laws; Accessibility. Uber is responsible for entering into an agreement with all Delivery Persons using the Uber Direct Channel. Subject to the exemptions provided by Subdivision b of section 20-563.6 of the administrative code of the city of New York, Merchant’s New York City Locations must provide access to a toilet facility to Delivery Persons who are lawfully on Merchant’s premises to fulfill customer’s delivery requests. If Laws (i) limit the Fees that Uber may charge Merchant under this Agreement, or otherwise change, restrict, or vary the terms and conditions of this Agreement (e.g., by changing termination rights, or requiring that Uber provide Merchant with certain benefits), or (ii) require Uber to implement Fee Cap Law Requirements, then the parties will agree to certain additional terms and conditions governing the relationship of the parties in any affected jurisdictions. To the extent Laws require a description of (1) any conditions affecting a Delivery Person’s accessibility to Locations (e.g. flights of stairs) or (2) the particular Items to be delivered (e.g., heavy or extra large Items), Merchant shall provide such information.

14.8 Acknowledgements. Uber provides on-demand lead generation, order processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services that enable Delivery Persons to seek, receive and fulfill on-demand requests for delivery services by or on behalf of customers seeking delivery services. Delivery services are provided by a Delivery Person who provides independent third-party delivery services. Uber and Affiliates do not provide delivery services, they are acting solely as an administrative agent of Merchant to relay requests for delivery services on behalf of Merchant. Delivery People perform their delivery services for (and are paid by) Merchant. Merchant relinquishes title to Items upon completion of in-store checkout or pickup by a Delivery Person, at which point title transfers to customer, through the Delivery Person as agent of customer. Neither Uber nor the Delivery Person takes title to any Items at any time, no bailment is created by Merchant’s use of the Uber Direct Channel, and Uber is not a bailee of goods. Items are sold or delivered under Merchant’s retail and food delivery license privileges. Uber will have no liability to Merchant for any loss, damage, non-delivery, or delay in the delivery of items requested by Merchant for delivery, or any unexpected issues or changes to Uber Services. A Delivery Person reserves the right to refuse to accept any Item in their discretion. Delivery Person must not be responsible for packaging Items. Delivery services provided by AV Fleet Providers may require Merchant to load Items into the AV, Delivery Robot, and/or Delivery Drone.

14.9 Control of the Uber Services. The parties agree Uber has sole control over adding, removing or otherwise modifying any feature or functionality made available through the Channel.

14.10 Supplemental Terms. The following additional terms listed below, and any other documents incorporated by reference or by hyperlink (collectively, the “Supplemental Terms”) are hereby incorporated by reference and will be deemed part of this Agreement. Supplemental Terms will prevail over the Agreement in the event of a conflict. Supplemental Terms may be modified from time to time (and any modifications will be effective on the date such updated policy is posted). Uber will use good faith efforts to provide Merchant with notice of any material updates to the Supplemental Terms (including via the Uber Services).

14.10.1 Uber Community Guidelines available at https://www.uber.com/legal/community-guidelines/us-en-uber-eats/.

14.10.2 Prohibited Items; Restricted Items; Alcohol Items. Merchant may not request delivery of any Prohibited Items through the Uber Direct Channel. Merchant may request delivery of any Restricted Items only if: (1) delivery of the Restricted Item is permitted by applicable Law and Merchant holds and maintains all Required Licenses related to the applicable Restricted Items; and (2) Uber has given Merchant written permission to do so in the Uber Direct Channel. In the event Merchant requests any Alcohol Items for delivery, Merchant will be subject to the additional terms in Exhibit A (the “Age-Restricted Items Terms”). Merchant agrees to properly implement any tagging or marking feature or parameter necessary for the proper notification to Uber of inclusion of any Alcohol Items or other age-restricted items provided to a Delivery Person for delivery to a delivery recipient. Uber may suspend Merchant if Merchant fails to comply with Age-Restricted Items Terms or any other term in this Agreement related to Prohibited Items or Restricted Items (including Alcohol Items).

14.11 Adjustment of Delivery Charges. Notwithstanding anything to the contrary in the Agreement, Uber is permitted to modify the Delivery Charges, no more than once every 365 days, with at least 60 days' prior notice (email sufficient), in response to: (1) inflation; (2) a change in Law; (3) an increase in the cost of providing its services (including due to an increase in essential operational costs); (4) if Merchant’s Third Party Platform (if any) changes; or (5) if Merchant fails to enable Pre-Tipping.

14.12 Publicity. The parties may issue a mutually agreed upon joint press release related to this Agreement. Additionally, Uber is permitted to conduct and publish a case study regarding Merchant’s use of Uber Direct.

14.13 Affiliates. Merchant’s Affiliates may utilize the Direct API and Uber Direct upon Uber’s written consent (email being sufficient). Any such Affiliate shall be bound by all of the terms and conditions applicable to Merchant under the Agreement, provided, Merchant is legally responsible and liable for all acts or omissions of such Affiliate. The parties acknowledge and agree that any services to be rendered under this Agreement may be performed by Uber or by its Affiliates.

14.14 Amendment. Uber may make changes to the Uber Direct Terms from time to time. If Uber makes changes, it may provide Merchant 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 the Uber Direct Terms. Unless Uber says otherwise in its notice, the amended Uber Direct Terms will be effective immediately, and Merchant’s continued access to Uber Direct after such notice will confirm Merchant’s acceptance of the changes. If Merchant does not agree to the amended Uber Direct Terms, Merchant must stop accessing and using Uber Direct and the Direct API.

14.15 Notices. Notices permitted or required to be given under this Agreement will be sent and deemed duly given: (a) upon actual delivery, if delivery is by hand; (b) one day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. The parties agree that all legal documents directed to Merchant will be served at Merchant address or email on file, or other address that Merchant notifies Uber in writing. The parties agree that all legal documents directed to Uber will be served on Uber's registered agent for service of process, with a copy addressed to the Uber's legal team at Uber’s then-current headquarters address. The name and current contact information for the registered agent in each state are available online at https://ct.wolterskluwer.com/sop-locations.

14.16 Assignment and novation. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party to an Affiliate or in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates. In the event of any such transfer by Merchant, Merchant consents that any such transferee will have access to and control of all Merchant accounts related to such transfer, including its accounts with Uber, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. If there is a change of ownership of a Location, the parties must execute a change of ownership form and Merchant acknowledges and agrees that the Location will not be able to accept or process any customer orders on the Uber Direct Channel until the change of ownership form is executed. Any purported assignment, transfer, delegation or subcontract in violation of this section will be null and void.

14.17 Survival. The terms and conditions of this Agreement which, by their nature, are intended to still apply, even if the Agreement is terminated, or expired, (e.g., confidentiality terms, or indemnification terms), will continue to apply even if the Agreement is terminated or expires.

14.18 Force majeure. Nonperformance by either party due to a Force Majeure Event is excused. If either party is unable to perform pursuant to this section, such party shall timely deliver written notice with sufficient information detailing the nature of the applicable Force Majeure Event. Such impacted party shall exercise all commercially reasonable efforts to minimize any Force Majeure Event and resume full performance as soon as reasonably practicable. If Merchant is unable to perform for more than thirty days, Uber may elect to terminate this Agreement without liability.

14.19 Interpretation. To the extent of any inconsistency between the terms and conditions or fees set out in the Order Form, or the terms included in the referenced Uber Direct Terms, the information in the Order Form prevails. Terms used as plurals may also be interpreted as singular, and vice-versa. Any references to dollars or currency means US dollars unless otherwise indicated. If the words “including”, “such as”, “for example”, “e.g.”, or similar terms, are used in any section, the words “without limitation” are implied. Any reference to a “party” or “parties” means a party to this Agreement. Any references to Merchant, if Merchant includes multiple legal entities, means each of those entities jointly and severally. Any hyperlinks included in this Agreement also refer to the future updated versions of those links, and if a hyperlink becomes inactive, or the hyperlinked location of a document in this Agreement is amended, the new hyperlink location of the same or updated version of that document applies instead of the incorrect or superseded hyperlink in this document. Headings, notes, and captions used in this Agreement are for reference purposes only and should not have any effect on the interpretation of this Agreement.

14.20 Entire Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating to the Agreement’s subject matter.

14.21 Counterparts. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.

14.22 Severability. If any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions) will remain in full force and effect.

14.23 Waiver. No waiver by any party of any breach (whether actual or anticipated) of any of term 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 the provisions hereof shall not be construed as a waiver of such provisions.

14.24 Relationship. The parties to this Agreement are independent contractors. The parties are not partners, agents, parties to a joint venture, nor do the parties have an employee and employer relationship. Except as set forth in this Agreement, each party is responsible for its own costs of conducting business and performing its obligations under the Agreement.

14.25 Disputes; Governing Law. This Agreement is intended to require arbitration of every claim or dispute that lawfully can be arbitrated, except for those claims and disputes which by the terms of this Agreement are expressly excluded from arbitration. The parties will attempt to resolve all disputes between the parties arising out of or relating to this Agreement amicably through good faith negotiations upon the written request of any party. In the event that any dispute cannot be resolved within a period of 45 days after notice of a dispute has been given, all such disputes will, at election of either party, be finally resolved by final and binding arbitration in the State of New York administered by Judicial Arbitration and Mediation Service, Inc. (“JAMS”), and in accordance with the Arbitration Rules and Procedures of JAMS then in effect, by one arbitrator with substantial experience in the technology industry selected in accordance with JAMS rules. All disputes will be resolved on an individual basis and neither party has the right to arbitrate on a class action basis any dispute, controversy or claim arising out of or relating to this Agreement, or the interpretation, enforceability, performance, breach, termination, or validity thereof, including this arbitration clause. The arbitrator will have the authority to allocate between the parties the costs of arbitration (including service fees, arbitrator fees, reasonable attorneys’ fees, expert witness fees and all other fees and expenses related to the arbitration) in such equitable manner as the arbitrator may determine. Judgment on the arbitrator’s award will be final and binding, and may be entered in any court having jurisdiction. Notwithstanding the foregoing, each party may seek injunctive or other equitable relief in a court of competent jurisdiction with respect to any dispute related to the actual or threatened infringement or misappropriation of a party’s intellectual property rights or breach of confidentiality obligations. This Agreement is governed by the law of the State of New York, except that the mutual arbitration provision is governed by both the Federal Arbitration Act (9 U.S.C. §§ 1-16) and the law of the State of New York. The parties agree that all disputes outside of the arbitration provisions will be heard in federal or state courts of the State of New York.

15. DEFINITIONS.

Capitalized words in the Uber Direct Terms will have the meanings outlined below:

15.1 “Access Method” means the access methods available to Merchant to request Delivery Services and Packing Services, as applicable, from Delivery Persons.

15.2 “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a party.

15.3 “Alcohol” means an alcoholic beverage or alcoholic food product that is governed in whole or in part by the alcoholic beverage Laws.

15.4 “Autonomous Vehicle” or “AV” means a vehicle that is capable of operating at Level 4 autonomous capability or is equipped with Technology that will enable the vehicle to operate at or is on the development path toward Level 5 autonomous capability, as defined by SAE International.

15.5 “AV Fleet Provider” means a company that operates a fleet of AVs, Delivery Robots, and/or Delivery Drones, and that may employ or contract with individuals to manage, monitor, or operate the same.

15.6 “AV Fleet Provider’s Privacy Policies” means the applicable privacy policy of the AV Fleet Provider available at https://p.uber.com/AVPrivacy.

15.7 “Brand” means the collection of a party’s brand identifiers which are generally used together, including Trademarks, product photography, product lists and descriptions, slogans, and color schemes. To the extent that a party is a licensee of a third party’s Brand, that Brand is deemed to be the licensee’s Brand for the purposes of this Agreement. For clarity, a party may hold, own, or license more than one Brand.

15.8 “Catering Orders” means delivery requests raised through Uber Direct for orders larger than which Merchant typically sells through its demand channels.

15.9 “Checkout Code” means a QR code, barcode, passcode or similar method generated by Merchant and shared with Uber, and presented by the Delivery Person at checkout for reconciliation with the Merchant’s point of sale (“POS”).

15.10 “Confidential Information” means any confidential, proprietary or other non-public information disclosed by one party to the other party whether disclosed verbally, in writing, in electronic form, or by inspection of tangible objects, including but not limited to any Personal Information. Confidential Information does 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. Uber’s Confidential Information includes its fares, delivery fees, and any other pricing information.

15.11 “Dashboard” means a central, web-based corporate enterprise account and dashboard, meant for the Merchant to manage billing, control account privileges, as well as to access the Uber Direct.

15.12 “Delivery Charges” means charges incurred by Merchant for delivery services obtained from 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.

15.13 “Delivery Drone” an unmanned aircraft that (A) is manufactured for transporting cargo and goods in permitted airspace, including defined flight geography or operational volumes, as applicable under applicable Laws; and (B) is equipped with technology, including software and hardware, that enables automated operation or teleoperation of the aircraft.

15.14 “Delivery Drone System” means hardware and software developed to enable automated operation and teleoperation capabilities for integration into Personal Delivery Drones.

15.15 “Delivery-Informed Parties” means parties designated by Merchant to receive information regarding any delivery solicited from Delivery Persons by Merchant under this Agreement, including the Designated Recipient or its designee.

15.16 “Delivery Person” means an independent contractor that operates an independent business enterprise as a self-employed individual or a legal entity (such as an AV Fleet Provider) and that uses Uber Direct to complete the delivery of Items from a Location to a Customer, including through use of motorized and non-motorized vehicles (such as cars, mopeds, and bicycles) or other transportation devices (such as AVs, Delivery Robots, and Delivery Drones).

15.17 “Delivery Robot” means a fleet of Personal Delivery Devices equipped with the PDD System.

15.18 “Designated Recipient” means the person or address that Merchant designates to receive the Items.

15.19 “Direct Account” means Merchant’s Uber Direct account.

15.20 “Direct API” means the specific Uber application programming interface which allows for access to delivery services provided by Delivery Persons.

15.21 “Fee Cap Law Requirements” means any requirement pursuant to a Fee Cap Law that Uber: (i) charge Merchant lower fees than the fees set out in this Agreement: (1) at a Location; (2) for certain Items; or (3) for certain sales channels; (ii) allow Merchant to terminate this Agreement earlier than otherwise would be permitted by the terms and conditions of this Agreement; or (iii) provide certain benefits to Merchant.

15.22 “Force Majeure Event” means any circumstance beyond the reasonable control of the affected party, which occurs on or after the Effective Date, which may include, but are not limited to, acts of God, fire, flood, explosion, war, terrorism, epidemics, pandemics, quarantine, unusually severe weather, embargo, action or request of governmental or judicial authority, strikes, labor stoppages or other industrial disturbances, civil commotion, civil riot or insurrection. For the avoidance of doubt, known Covid-19 variants at the time of execution of this Agreement should be construed as a known risk and shall not constitute a Force Majeure Event; however, new variants of Covid-19 or any new variants of known diseases or new epidemic or pandemic events after the execution of the Agreement, may in fact, constitute a Force Majeure Event if such event triggers events beyond control of the affected party.

15.23 “Indemnified Party” means a party to this Agreement that has received or is subject to a Claim, and includes that party’s subsidiaries, Affiliates, officers, directors, agents, or employees, individually and collectively. As to Uber, this includes, without limitation, Portier, LLC and Uber Technologies, Inc.

15.24 “Indemnifying Party” means the party to this Agreement that is not the Indemnified Party.

15.25 “Item” means food, beverage or other products from Merchant (or Merchant Client, as applicable).

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

15.27 “Location” means a location owned and operated by the Merchant or a Participant.

​​15.28 “Master File” means a digital data file, in comma-separated value (CSV) format or as otherwise agreed by the parties, for each of Merchant’s designated locations containing all information relevant to Items with respect to such location, including a description, the UPC/item number, sizing information, image, alcohol by volume (if applicable), and then-current prices for each Item on offer, and any then-current or future in-store discounts, promotions or other offers available, for each Item on offer.

15.29 “Multi-Brand Licensee” means a Participant, franchisee or licensee of the Merchant, that also operates as a licensee or franchisee of brands not affiliated with the Merchant.

15.30 “Participant” means an independent owner and operator of a business using the Merchant’s brand, and includes that entity’s, or those entities’, subsidiaries, Affiliates, directors, employees, agents, successors and assignees, as applicable. Participant includes a franchisee of Merchant’s franchisor business, if applicable.

15.31 “PDD System” means hardware and software developed to enable automated operation and teleoperation capabilities for integration into Personal Delivery Devices.

15.32 “Personal Delivery Device” or “PDD” is a device that (i) is manufactured for transporting cargo and goods in a pedestrian area or supplementary areas, including areas of public roadways designed for pedestrian traffic; and (ii) is equipped with technology, including software and hardware, that enables the automated operation of the device, or its operation with the remote support and/or supervision of a human.

15.33 “Personal Delivery Drone” means an unmanned aircraft that (i) is manufactured for transporting cargo and goods in permitted airspace, included defined flight geography or operational volumes, as applicable under Applicable Law; and (ii) is equipped with technology, including software and hardware, that enables the autonomous operation of the aircraft.

15.34 “Personal Information” means any information obtained in connection with this Agreement: (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers; and (iii) any information that may otherwise be considered “personal data” or “personal information” under applicable Laws.

15.35 “Pre-Tipping” means the opportunity, by way of a separate line-item charge, for customers to tip Delivery Persons before customers place delivery requests, at their sole discretion.

15.36 “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.

15.37 “Prohibited Items” means Items that cannot be made available via Uber Direct. A list of Prohibited Items can be found at https://help.uber.com/merchants-and-restaurants/article/what-items-are-restricted-through-uber-direct?nodeId=63024079-3274-4259-8c7c-96724b882da5, as updated from time to time.

15.38 “Representatives” means Affiliates, officers, directors, employees and agents of a party of this Agreement.

15.39 “Restricted Items” means Items which may be subject to regulatory requirements, safety standards, or are otherwise restricted by Uber. A list of Restricted Items can be found at https://help.uber.com/merchants-and-restaurants/article/what-items-are-restricted-through-uber-direct?nodeId=63024079-3274-4259-8c7c-96724b882da5, as updated from time to time.

15.40 “Sales Tax” means any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, Item taxes and similar transaction taxes as well as any bottle, bag, plastic, or other similar fees.

15.41 “Substandard Item” means Items that have not been prepared or supplied in accordance with: (i) food or alcohol safety Laws; (ii) applicable Laws; or (iii) requirements to include accurate and legally compliant (1) notifications and descriptions about ingredients, (2) nutritional, allergen, size, or weight information, (3) alcoholic content (if applicable); or (4) instructions for the preparation, use, or assembly of Items.

15.42 “Technology” means works of authorship, computer programs, source code and executable code, user interfaces, application programming interfaces, protocols, architectures, documentation, annotations, comments, designs, files, records, schematics, test methodologies, test vectors, inventions (whether or not patentable), invention disclosures, discoveries, improvements, technology, proprietary and confidential ideas and information, know-how and information maintained as trade secrets, tools, concepts, techniques, methods, processes, formulae, patterns, algorithms and specifications, and any and all instantiations or embodiments of the foregoing in any form and embodied in any existing media.

15.43 “Third Party Platform” means a platform owned, operated, managed or otherwise controlled by a third party that is authorized to be integrated with Uber systems which allows end users to place requests for Delivery Services. Third Party Platforms includes a third party API, mobile application, cloud platform and/or website.

15.44 “Third Party Platform Terms” means the agreement between Merchant and the Third Party Platform provider that apply to Merchant’s access and use of the Third Party Platform (as applicable).

15.45 “Trademarks” means trademarks, trade names, service marks, copyrights (such as product photography), logos, slogans and other identifying symbols and indicia of the applicable party.

15.46 “Uber” means Uber Technologies, Inc.

15.47 “Uber Competitor” means any other comparable platform or technology for delivery facilitation.

15.48 “Uber Direct” means the Uber service that enables Merchant (or Merchant Client, as applicable) to request delivery services from Delivery Persons, including via the Direct API or the Dashboard.

15.49 “Uber Direct Channel” means a method through which Merchant (or Merchant Client, as applicable) may request delivery for orders of Items, including via the Direct API or the Dashboard.

15.50 “Uber Services” means certain proprietary technology services made available by Uber or its Affiliates that facilitate the marketing, sale or fulfillment of Items from Merchant to customers, as applicable, including on-demand lead generation, payment processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational or other support services, as applicable. Uber Services includes the website, mobile application, APIs, or other technology interfaces to use the Uber Services.

Exhibit A to the Uber Direct Terms

AGE-RESTRICTED ITEMS TERMS

Subject to applicable Laws and this Age-Restricted Items Terms (this “Exhibit”), Merchant may choose to request Items (excluding Prohibited Items and Restricted Items) that are subject to age restrictions in their sale (“Age-Restricted Items”), including Alcohol Items, for delivery via the Uber Direct Channel provided that (a) Merchant has all Required Licenses to do so, (b) Uber has agreed, in writing, that Merchant may use Uber Direct for the fulfillment of orders that include such Age-Restricted Items, and (c) Merchant has completed all required onboarding steps established by Uber (e.g., uploading certain required information). The parties further agree to the following:

1. Linking Agreement.

Capitalized terms not defined in this Exhibit shall have the meaning set forth in the Agreement. In the event of conflict between this Exhibit and the Agreement, this Exhibit shall control.

2. Alcohol Laws and Requirements.

Each party is responsible for taking any steps it deems reasonably necessary to inform itself of the applicable Laws, codes, regulations, licenses, and any other similar requirements related to the sale and delivery of Age-Restricted Items. For the avoidance of doubt, (i) Uber does not hold a Required License for the sale of Age-Restricted Items and only facilitates the promotion, marketing, and/or sale of Age-Restricted Items by third parties; and (ii) Merchant is a licensed seller of Age-Restricted Items that wishes to have orders for Age-Restricted Items fulfilled via Uber Direct. Merchant is responsible for, will be clearly identified during, and shall control the sale of any orders for Age-Restricted Items, including any decisions regarding accepting, fulfilling, and rejecting orders for Age-Restricted Items. As it relates to Age-Restricted Items, Merchant represents and warrants that Merchant: (a) shall comply with all applicable Laws related to the sale of Age-Restricted Items, including applicable Laws related to the promotion, packaging, sale, taxation and delivery of Age-Restricted Items; and (b) has and will continue to have during the Term all Required Licenses for Merchant to sell Age-Restricted Items, including without limitation, Required Licenses for the specific categories of Age-Restricted Items that Merchant makes available and/or Required Licenses to sell and deliver Age-Restricted Items in a given state or local jurisdiction.

3. Packaging and Labeling.

Merchant will package Age-Restricted Items appropriately for delivery, including (i) any protection necessary to prevent tampering or damage due to any cause, including inclement weather or the nature of the Age-Restricted Items themselves; and (ii) any labeling required by Law, including but not limited to including a statement that the package contains alcohol and may only be delivered to a person 21 years or older with valid proof of age and identity.

4. Hours Availability.

The Merchant agrees to limit the hours during which Age-Restricted Items are available for purchase and delivery from the Merchant on the Uber Services in accordance with applicable Laws as well as operational considerations of the Uber Services. Merchant agrees that Uber may further restrict the hours during which Age-Restricted Items are available for delivery by Delivery Persons in accordance with applicable Law and regulation as well as operational considerations of the Uber Services. Uber will use reasonable efforts to notify Merchant of any such modifications.

5. Returns Generally.

Merchant acknowledges that the Delivery Person or customers may be required to return the Age-Restricted Item to Merchant if (1) Delivery Person is unable to deliver an Age-Restricted Item pursuant to applicable Law; (2) customer is unable to accept an Age-Restricted Item pursuant to applicable Law; or (3) the Age-Restricted Item in question constitutes a Substandard Item as determined by the Delivery Person or customer. Unless otherwise prohibited by Law (e.g. where the Law prohibits the customer or Delivery Person to return the Age-Restricted Item), in the event Merchant provides an Age-Restricted Item that is a Substandard Item, then (i) Merchant is responsible for disposing of such Substandard Item, (ii) Merchant agrees to accept the return of Age-Restricted Items in such cases and (iii) Merchant agrees that if such Age-Restricted Item is returned, Merchant shall not be paid for such items.

6. Promotions and Advertising.

Merchant agrees to follow all Laws and regulations related to its advertisement and promotion of Age-Restricted Items, including but not limited to, only creating promotions for Age-Restricted Items that comply with applicable local Laws, Alcohol and Tobacco Tax and Trade Bureau and Federal Trade Commission guidelines, and following industry best practices.

7. Delivery Person.

Each Delivery Person shall deliver Age-Restricted Items under and pursuant to Merchant’s Required Licenses and, as necessary, as Merchant’s third-party beneficiary. Merchant agrees that Delivery People shall conduct the delivery and are therefore responsible for verifying the age and identity of customers and confirming customers are not intoxicated when completing delivery. Uber will provide in-app screens and tools for Delivery People to help complete customer ID verifications. Where applicable or required by Law, the in-app screen may enable the Delivery Person to verify the customer’s ID.

8. Indemnified Claims.

Merchant shall indemnify, defend and hold Uber Indemnified Parties harmless from any Claim related to Merchant’s failure to perform obligations contained in this Exhibit.

9. Personal Information.

Notwithstanding, Uber may be required under applicable state Laws and regulations to transfer to Merchant information related to the delivery of Age-Restricted Items, which may include Personal Information (any such information will be subject to the data protection clauses in the Agreement). The Merchant instructs Uber to retain, as required under applicable Laws and in accordance with Uber’s internal policies, delivery records including the name of the purchaser; name of the person who accepts delivery; street addresses of the purchaser and delivery location; times and dates of purchase and delivery; and signature of the person who accepts delivery.

10. State Specific Provisions.

Without limiting any other term of this Exhibit, Merchant represents and warrants that it will comply with all relevant state Laws and regulations, including, if applicable:

10.1 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 Uber. If any of Merchant’s Locations are in Louisiana, such Merchant’s Locations will be charged an Alcohol Service Fee. “Alcohol Service Fee” means a flat dollar fee (e.g. $X), determined by Uber, which may vary by jurisdiction or merchant type. Please note that this replaces any Delivery Charges that would otherwise apply to the order.

10.2 Washington. The Merchant must submit the Agreement (including this Exhibit) to the authorities as and if required by Laws. 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, the Merchant will affix a label on the outside of each package of Alcohol Items that states: (1) the package contains liquor; (2) the recipient must be twenty-one years of age or older; and (3) delivery to intoxicated persons is prohibited.

11. Other Obligations.

Without limiting any other term of the Agreement, Merchant is responsible for providing legally adequate disclosures to Merchant’s customers, where necessary, to facilitate age and identity verification for delivery of Age-Restricted Items. Merchant will not accept any order involving the delivery of alcohol where any governing regulatory requirement prohibits delivery to the requested delivery destination. If a Delivery Person is unable to deliver an Age-Restricted Item(s) due to an act or omission of the customer who purchased the Age-Restricted Item(s) from Merchant, then Merchant agrees that the customer may be charged a fee for the return (the “Return Fee”), the amount of which shall be determined according to the standard fares charged by Delivery People in the region. Merchant agrees that Merchant has no right to the Return Fee and the Return Fee will be used to pay the Delivery Person for the return of the Age-Restricted Item.