Uber Eats Services Agreement
Merchant Managed Delivery Method Terms
Addendum A- Data Processing Agreement
DEFINITIONS
The following terms have the respective meanings given to them below:
"Activation Fee" means a Fee paid by Merchant to Uber Canada in installments until the full amount is paid in consideration of Uber’s work to activate Merchant on the Uber Eats App. Merchant’s Activation Fee is specifically set forth in the Order Form.
“Administrative Fee” means collectively, the Activation Fee and the Subscription Fee.
“ADRIC” means the ADR Institute of Canada, Inc.
“ADRIC Rules” means the Arbitration Rules of the ADR Institute of Canada, Inc.
“Ads Manager” means Uber or its affiliates’ proprietary, automated, self-service sponsored listings tools
"Affiliate" means an entity that owns or controls, is owned or controlled by, or is or under common control or ownership of a party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise. Both Uber B.V. and Uber Payments B.V. are Affiliates of both UTI and Uber Canada.
"Agreement" means the Order Form, the Definitions and the Supplemental Terms.
"Aggregate Data" means aggregate, deidentified data related to Merchant's transactions in connection with the Uber Eats Services.
"Applicable Law" shall mean all applicable laws, statutes, regulations, government codes and government policies from time to time in force (including without limitation all applicable data protection and privacy laws).
"Batched Trip" means an instance where one Marketplace Delivery Person may deliver orders to multiple Customers as part of the same trip, including multiple orders from one Merchant, or including one or more orders from one Merchant combined with one or more orders from other Merchants using the Uber Eats App or other products or services provided by Uber or its Affiliates.
"Brand Matter" means an event that, in Uber’s reasonable judgment, would jeopardize the ability of the Merchant to comply with or perform this Agreement, or prejudice the goodwill or reputation of Uber or its Affiliates, and that may include alleged violations of the Community Guidelines or any Applicable Laws.
“Bid” means an offer for a Sponsored Listing on the Uber Eats App
“Campaign” means a sponsored listing campaign that includes a recurring budget amount, Bid method (automatic or custom), Bid amount (if applicable), and the relevant Merchant locations (if applicable)
“Co-Funded Offer” means Uber’s agreement to fund a portion of Merchant’s Offer pursuant to the terms of a written Promotion Schedule.
"Confidential Information" means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (the "Discloser") to another (the "Recipient"), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes, without limitation, transactional, operational, performance and other data or information (including, Uber Data, Customers’ information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational) and/or that is related to the sale of Merchant’s Items to Customers through the Uber Eats App and the terms and conditions of this Agreement. Confidential Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient.
"Community Guidelines" means the applicable Community Guidelines, currently available at https://www.uber.com/ca/en/safety/uber-community-guidelines/.
"Criteria" means any quality, portion, size, ingredient, allergen, origin or nutritional information or Applicable Law that governs the adequacy of Items.
"Customer" means a customer of the Merchant.
"Customer Feedback" means information provided by a Customer in response to prompting by the Uber Eats App, including rating of Item(s) (and, if applicable, delivery) and comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the Uber Eats App, and either the delivery services (provided by either a Marketplace Delivery Person or Merchant Managed Delivery Person) or the Non-Delivery Method experience.
"Damage Fee" means a Fee paid by Merchant to Uber Canada for the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear. The applicable Damage Fee is specifically set forth in the Order Form.
"Delivery Person" means a Marketplace Delivery Person or a Merchant Managed Delivery Person. References to "Delivery Persons" should be read to include both Marketplace Delivery Persons and Merchant Managed Delivery Persons.
"Device" means a tablet or other portable device made available by Uber Canada to Merchant to access and use the Uber Eats Services.
"Dine-In Item" means an Item transferred by Merchant to Customer via the Dine-in Method.
"Dine-in Item Payment" means the Retail Price of the Dine-In Item(s) sold by Merchant via the Uber Eats App (including any Sales Tax).
"Dine-In Item Revenue" means the total (i) Dine-In Item Payment earned by Merchant ; (ii) gratuity paid by a Customer, if applicable, (iv) less (1) the Dine-In Service Fee and (2) any refunds given by Uber Canada on behalf of Merchant to Customers.
"Dine-In Method" means a Method whereby Merchant allows Customer to place an order for Dine-in Item(s) intended for consumption at Merchant’s location whereby the delivery of the Dine-In Item to Customer’s designated table will be facilitated by Merchant Personnel.
“Dine-In Service Fee” means a Fee charged by Uber Canada to Merchant for each Dine-In Item sold by it via the Uber Eats App. Merchant’s Dine-In Service Fee is specifically set forth in the Order Form.
"Dispute" means any dispute, action, claim, controversy or cause of action among the parties arising out of or in connection with the Uber Eats Services or this Agreement or any term condition or provision hereof, including without limitation any of the same relating to the existence, validity, interpretation, construction, performance, enforcement and termination of the Agreement.
"Effective Date" means a date to be confirmed by Uber upon which this Agreement will become effective.
"Fees" means any applicable fees charged by Uber Canada to Merchant, including the Service Fee, the Activation Fee, Subscription Fee and the Damage Fee.
"Feedback" means information provided by Merchant to Uber including feedback, suggestions, comments, ideas, or other concepts relating to Uber’s products and services.
"Force Majeure Event" means occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of government, acts of God, strikes, work stoppage or other labour disturbances, war or sabotage.
“Fraud” means deception, dishonesty or misleading actions and includes, but is not limited to, (i) manipulation or gaming of Uber-funded discounts, marketing initiatives, and other Customer-facing promotions, (ii) creation of false accounts, (iii) colluding with Customers to receive payouts for orders not made, including through credit card chargebacks, (iv) reselling food from another restaurant, (v) gaming or manipulation of ratings or reviews, (v) manipulation or gaming of price adjustments or refunds, (vi) manipulation of order acceptance or completion rates to receive payouts , (vii) any other type of sham transaction, (viii) any other irregular or unusual patterns or schemes that reasonably appear to be designed to provide Merchant with undue gains, and (ix) any activity considered to be fraud under Applicable Law.
"Indemnified Party" means the party receiving indemnification from the Indemnifying Party.
"Indemnifying Party" means the party providing indemnification to the Indemnified Party.
"Initial Term" means a period which will commence on the Effective Date and, unless earlier terminated as provided in the Agreement, will continue for a period of one (1) year from the Effective Date.
"Invoice Details" means information required for the accurate calculation and preparation of invoices by Uber.
"Item" means any product made available by Merchant to Customer via the Uber Eats App or Merchant Marketplaces, and includes food and beverage.
"Item Revenue" means the Retail Price (plus Sales Tax and any other fees collected on Merchant’s behalf) less the retained Fees (including the Service Fee, Activation Fee, Subscription Fee and/or Damage Fee, where applicable) and any refunds given to the Customers on behalf of Merchant.
“Liquor Licence” means a valid and subsisting liquor licence, authorization or permit to sell liquor from the premises of a Merchant issued by the provincial liquor regulatory authority.
“Lite Services” means the Uber Eats Services provided under the Lite Services Plan option, as may be outlined in the Order Form, and as may be updated by Uber Canada from time to time.
"Losses" means any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees).
"Marketplace Delivery Person" means an independent contractor who intends to perform on demand delivery services using the Uber Eats App.
“Marketplace Facilitator Jurisdiction” means jurisdictions with Marketplace Facilitator Laws in effect that are applicable to Uber Canada due to this Agreement.
“Marketplace Facilitator Laws” means certain legislation that may require Uber Canada to collect and remit Sales Tax directly to the taxing authority.
"Marketplace Item" means an Item transferred by Merchant to Customer via the Marketplace Method.
"Marketplace Item Payment" means the Retail Price of the Marketplace Item(s) sold by Merchant via the Uber Eats App (including any Sales Tax).
"Marketplace Item Revenue" means the total Marketplace Item Payment (including any Sales Tax collected on Merchant’s behalf) earned by Merchant, less the Marketplace Service Fee and any refunds given on behalf of Merchant to Customers.
"Marketplace Method" means a Method whereby Uber Canada will request a Marketplace Delivery Person to collect Marketplace Items from Merchant and deliver such Marketplace Items to Customer. Uber Canada will purchase delivery services from the Marketplace Delivery Person and sell those delivery services directly to the Customer. Merchant has no contractual relationship with the Marketplace Delivery Person by virtue of this Agreement.
“Marketplace Service Fee” means a Fee charged by Uber Canada to Merchant for each Marketplace Item sold by it via the Uber Eats App. Merchant’s Marketplace Service Fee is specifically set forth in the Order Form.
"Marks" means the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party or its Affiliates.
"Merchant" has the meaning attributed to it in the Order Form.
“Merchant Content” means the Uber Eats Marketing Materials, Merchant Marketing Materials, or other videos, still images or materials used in connection with the display of Merchant’s Items on the Uber Eats App
"Merchant Managed Delivery Charge” means a delivery charge collected by Uber Canada or its Affiliates on behalf of Merchant from Customers for Items transferred via the Merchant Managed Delivery Method.
"Merchant Managed Delivery Method" means a Method whereby Merchant may use Merchant Managed Delivery Persons to fulfill delivery of Items requested by Customers.
"Merchant Managed Delivery Person” means an employee, contractor, worker or agent of Merchant who provides delivery services on a Merchant’s behalf, not arranged by Uber.
"Merchant Managed Item" means an Item transferred by Merchant to Customer via the Merchant Managed Delivery Method.
"Merchant Managed Item Payment" means the Retail Price of the Merchant Managed Item(s) sold by Merchant via the Uber Eats App (including any Sales Tax).
"Merchant Managed Item Revenue" means the total (i) Merchant Managed Item Payment earned by Merchant ; (ii) Merchant Managed Delivery Charge collected from Customers on Merchant’s behalf (iii) gratuity paid by a Customer in respect of delivery services, if applicable, (iv) less (1) the Merchant Managed Service Fee and (2) any refunds given by Uber Canada on behalf of Merchant to Customers.
“Merchant Marketplaces” means a Merchant’s website or native desktop and/or mobile webpages through which Customers may place orders for Online Ordering Items.
"Merchant Marketing Materials" means videos, still images or other materials provided by Merchant to Uber for use in connection with the display of Merchant’s Items on the Uber Eats App.
“Merchant Managed Service Fee” means a Fee charged by Uber Canada to Merchant for each Merchant Managed Item sold by it via the Uber Eats App. Merchant’s Merchant Managed Service Fee is specifically set forth in the Order Form.
“Merchant Personnel” means Merchant’s employees, contractors, workers, agents or any person acting on behalf of Merchant from time to time.
"Method" means a method by which Items requested by a Customer through the Uber Eats App may be transferred from Merchant to such Customer.
"Non-Delivery Item" means an Item transferred by Merchant to Customer via the Non-Delivery Method.
"Non-Delivery Item Payment"means the Retail Price of the Non-Delivery Item(s) sold by Merchant via the Uber Eats App (including any Sales Tax).
"Non-Delivery Item Revenue" means the total (i) Non-Delivery Item Payment earned by Merchant ; (ii) gratuity paid by a Customer, if applicable, (iv) less (1) the Non-Delivery Service Fee and (2) any refunds given by Uber Canada on behalf of Merchant to Customers.
"Non-Delivery Method" means a Method whereby Merchant may allow Customers to collect Items requested from a specified location without the involvement of a Delivery Person.
“Non-Delivery Service Fee” means a Fee charged by Uber Canada to Merchant for each Non-Delivery Item sold by it via the Uber Eats App. Merchant’s Non-Delivery Service Fee is specifically set forth in the Order Form.
"Notice Period" means a period of fourteen (14) days’ advance notice, after which amended Supplemental Terms will take effect.
"Offer" means a short-term promotional offer that is created and fulfilled by Merchant that is intended to stimulate Customer demand through the Uber Eats App (e.g., discounts).
"Offer Costs" means the amount spent by Merchant on an Offer.
"Offer Materials" means, with respect to an Offer, all suitable material to be provided by Merchant including artwork of Merchant’s trade marks and trade names.
"Offer Tools" means proprietary, automated tools provided by Uber to Merchant which allow Merchant to create and provide Offers to Customers.
“Online Order Service Fee” means a Fee charged by Uber Canada to Merchant for each Online Order Item sold by it via an Online Ordering Method. Merchant’s Online Order Service Fee is specifically set forth in the Order Form.
“Online Order Item” means Items provided to Customers via an Online Ordering Method.
“Online Order Item Payment” means the Retail Price of the Item(s) sold by Merchant via an Online Ordering Method (including Sales Tax).
“Online Order Item Revenue” means the Online Order Item Payment earned by Merchant less (1) the Online Order Service Fee and (2) any refunds given on behalf of Merchant to Customers.
“Online Ordering Method” means a Method whereby Uber will provide Merchant with a hyperlink to embed in the Merchant Marketplaces that will allow Customers visiting Merchant Marketplaces to browse Merchant’s menu and place order(s) for Online Ordering Items either for :(a) delivery to such Customer by a Marketplace Delivery Person; (b) delivery to such Customer by a Merchant Managed Delivery Person; or (c) pick up by such Customer at Merchant’s location during its normal business hours.
“Order Form” means an Order Form executed by Merchant, or any related online, click-through agreement made available to Merchant via the Uber Tools, that references and requires acceptance of these terms.
“Other Coupon” means a coupon that meets the definition of subsection 181(4) of the Excise Tax Act.
“Partner Sharing” means Uber sharing Aggregate Data with selected partners for commercial purposes related to the Uber Eats App.
"Personal Data" means any information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, a unique identification number, precise location data, an online identifier, or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Pick-Up Order Service Fee” means a Fee charged by Uber Canada to Merchant for each Online Pick-Up Order. The applicable Pick-Up Order Service Fee is specifically set forth in the Order Form.
“Plus Services” means the Uber Eats Services provided under the Plus Services Plan option, as may be outlined in the Order Form, and as may be updated by Uber Canada from time to time.
“Premium Services” means the Uber Eats Services provided under the Premium Services Plan option, as may be outlined in the Order Form, and as may be updated by Uber Canada from time to time.
“Promotion Schedule” means Merchant’s creation of an Offer by completing and providing Uber with a verbal or written promotion schedule.
“Prior Agreements” means all prior agreements between Merchant and Uber Portier for provision of the Uber Eats Services.
“Privacy Notice” means Uber's privacy notice, currently available at https://www.uber.com/legal/en/document/?name=privacy-notice&country=canada&lang=en.
“Reimbursable Coupon” means a coupon that meets the definition of subsection 181(2) of the Excise Tax Act.
“Renewable Pass” refers to a renewable subscription offered by Uber Canada or its affiliate(s) pursuant to which Customers may receive specific benefits or discounts that can be applied on Uber Eats App purchases.
"Renewal Term" means a one (1) year period where the Agreement automatically renews.
"Representatives" means with respect to a party, its or its Affiliates’ respective officers, directors, employees or authorized agents.
"Required Documentation" means all documentation that Uber may require from time to time from Merchant in relation to this Agreement, including but not limited to business license, food premises inspection certificate, food handling certificate, health inspection results, tax identification number, information regarding Sales Tax status, Liquor Licence, licences to sell or handle regulated items, banking documentation, and all Invoice Details.
"Retail Price" means the original listed price determined by Merchant for each Item to be made available for sale via the Uber Eats App prior to any discounts or promotions.
“Sales Tax” means any HST, GST, QST, provincial sales taxes, sellers use, transaction privilege, privilege, general excise, gross receipts, food & beverage, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees.
"Service Fee" means a Fee paid by Merchant to Uber Canada in consideration for the use of the Uber Eats Services. Merchant's Service Fee for each specific Method is specifically set forth in the Order Form.
“Sponsored Listing” means a sponsored listing that is posted on the Uber Eats App.
“Subscription Fee” means a Fee by Merchant to Uber Canada per week continuing until the Agreement is terminated by either party in consideration of Uber’s work to activate Merchant on the Uber Eats App. Merchant’s Subscription Fee is specifically set forth in the Order Form.
"Substandard Item" means any Item that fails to meet the Criteria.
“Substandard Item Delivery Fee” means a fee to be assessed by and paid to Uber Canada by Merchant to offset the cost of delivery of a Substandard Item via the Marketplace Method.
"Supplemental Terms" means the Definitions, the General Supplemental Terms, the Specific Supplemental Terms and any other terms applicable to the use of the Uber Eats Services, Uber Tools, and/or Uber Eats App and shared with the Merchant.
“Switchover Date” means a date specified by Uber Canada upon which Uber Canada will determine the amount of applicable Sales Tax which Uber Canada will collect and remit to the taxing authority of Marketplace Facilitator Jurisdictions.
"Term" means the Initial Term together with all Renewal Terms.
"Territory" means Canada.
"Transportation Method" means a mode of transportation that will be used for the purpose of providing delivery services in accordance with the Specific Supplemental Terms for the Merchant Managed Delivery Method.
"Uber" means Uber Canada and UTI.
“Uber Canada” means Uber Portier Canada Inc., a company registered under the laws of Canada with an address of 121 Bloor St E., Toronto, ON M4W 3M5.
"Uber Data" means all data related to the access and use of the Uber Eats Services and Uber Tools, including but not limited to all Personal Data related to Merchant and Customers.
"Uber Eats App" means a website, application or other technology interface made available by Uber and/or its Affiliates to Customers, on a royalty-free basis, to purchase Items and, if applicable, delivery services.
"Uber Eats Marketing Materials" means video, still images and/or other materials created by Uber (or a party designated by Uber acting on Uber’s behalf) for marketing and other efforts related to the Uber Eats App.
"Uber Eats Services" means certain services made available by Uber Canada to Merchant to facilitate the marketing, sale and provision of Items by Merchant to Customers, including on-demand lead generation, logistics, payment processing, marketing, operational and other support.
"Uber Tools" means a website, application and/or other technology interface, made available by UTI to Merchant, on a royalty-free basis, in connection with the Uber Eats Services.
“Unsupported Items” means certain Items or Item categories that are not supported by the Uber Tools and must be removed from the Uber Eats App.
“UTI” means Uber Technologies, Inc., a Delaware limited liability company with an address of 1515 3rd Street, San Francisco, CA 94158.
"Virtual Restaurant" means an additional menu that is made available from Merchant’s premises under a different trading name.
"Virtual Restaurant Data" means information provided by Uber from time to time and related to cuisine demand, consumer preferences and restaurant case studies to help inform Merchant’s Virtual Restaurant menu choices.
GENERAL SUPPLEMENTAL TERMS
Uber may amend the Supplemental Terms from time to time, as allowed by Applicable Law, upon giving the appropriate Notice Period and by Uber posting such amended Supplemental Terms on its website or Uber otherwise making such amended Supplemental Terms available to Merchant. However, the Notice Period will not apply where an amendment is required by law or relates to the expansion or introduction of new services or functionalities to the existing Uber Eats Services and/or Uber Tools or any other change which is reasonably effectively favourable to Merchant and does not reduce the scope of its rights or increase its responsibilities. Merchant’s continued access to or use of the Uber Eats Services and/or Uber Tools after such amended Supplemental Terms become effective constitutes Merchant’s consent to be bound by the amended Supplemental Terms. If Merchant objects to any amended Supplemental Term, Merchant may terminate this Agreement in accordance with clause IV of the Order Form.
1. Uber Eats Services.
a. General. Uber Canada will make the applicable Uber Eats Services available to Merchant including, but not limited to, on-demand lead generation, logistics, payment processing, marketing, operational and other support. The Uber Eats Services are solely for use by Merchant, subject to the terms of this Agreement.
b. Appointment of Limited Payment Collection Agent.
i. Merchant hereby appoints Uber Canada as Merchant’s limited payment collection agent solely for the purpose of: (A) accepting payment of the Retail Price of Items (plus any applicable Sales Tax and other fees collected on Merchant’s behalf) sold by Merchant via the Uber Eats App, via the payment processing functionality facilitated by the Uber Tools, and (B) transferring to Merchant the Retail Price (plus Sales Tax and any other fees collected on Merchant’s behalf) less the retained Fees (including the Service Fee, Activation Fee, Subscription Fee and/or Damage Fee, where applicable), and any refunds given to the Customers on behalf of Merchant ("Item Revenue").
ii. Merchant agrees that payment collected by Uber Canada on Merchant’s behalf will be considered the same as payment made directly to Merchant.
iii. Merchant further authorizes Uber Canada to collect gratuities (if any) that are paid on the Uber Eats App voluntarily by Customers to Merchant, Merchant Personnel or Merchant Managed Delivery Persons acting on behalf of Merchant. Uber Canada shall remit the full value of any gratuities to Merchant. It is the sole responsibility of Merchant to make sure that any applicable gratuities are properly transferred to Merchant Personnel and/or Managed Delivery Persons, as applicable.
iv. If reasonable, Uber Canada may adjust the transfer of Item Revenue collected on Merchant’s behalf for reasons including, but not limited to, failure to fulfill the provision of an Item as ordered. Merchant may dispute any such adjustments through the Uber Tools within fourteen (14) calendar days of Merchant being notified of such adjustment. Uber reserves the right to, and Merchant authorizes Uber Canada to, collect the amount of such adjustments via a deduction from the Item Revenue collected on Merchant’s behalf, or by debiting Merchant’s payment method on record, or otherwise seeking reimbursement from Merchant.
v. In exceptional circumstances only (as determined by Uber Canada in its sole discretion, acting reasonably), Uber Canada reserves the right to temporarily or permanently cancel or suspend a payment to Merchant. The foregoing exceptional circumstances shall include, but not be limited to, any legal or regulatory risk or potential breach of Applicable Laws associated with the transfer of such payment to Merchant, the actual or expected initiation of insolvency or bankruptcy proceedings against Merchant and any failure by Merchant to provide the Required Documentation in accordance with clause 2(c) of these General Supplemental Terms.
vi. Uber Canada or its Affiliates may, from time to time, request information from Merchant to confirm Merchant’s identity as may be necessary under any applicable compliance obligations before transferring any payments to Merchant and may refuse to process payments owed to Merchant in accordance with clause 1(b)(v) of these General Supplemental Terms if there exists a legal or regulatory risk or potential breach of law or regulation associated with such transfer to Merchant.
vii. Uber Canada may engage any of its Affiliates to perform the activity of limited payment collection agent on Uber Canada’s behalf. Both Uber B.V. and Uber Payments B.V. are Affiliates of Uber Canada. Such engagement may be subject to additional terms.
c. Uber Tools. UTI may make available certain Uber Tools to Merchant, and Merchant may access and use those Uber Tools solely in connection with Merchant’s use of the Uber Eats Services. The Uber Tools, including all intellectual property rights therein, are and shall remain the property of UTI, its Affiliates or their respective licensors. Neither this Agreement nor Merchant’s use of the Uber Tools or Uber Data conveys or grants to Merchant any rights in or related to the Uber Tools or Uber Data, except for the limited licence granted above. Merchant shall retain access to Uber Tools for the Term. In the event of a breach of this Agreement or any other terms agreed between Uber and Merchant, Uber retains the right to revoke access to Uber Tools without prior notification, and without having to provide any data to Merchant after such revocation.
d. Device. Devices shall at all times remain the property of Uber Canada and/or its Affiliates. Merchant agrees that the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear, will result in a Damage Fee. Merchant agrees that Uber Canada may deduct the Damage Fee from Merchant's Item Revenue.
e. Uber Eats App. Merchant acknowledges and agrees that once it has accepted a request for an order of Items, the Uber Eats App may provide certain information about Merchant to the Customer, including Merchant’s name and contact number. As between Merchant and Uber, Uber and/or its Affiliates will retain sole and absolute control over the Uber Eats App (and all elements of the user experience and user interface relating to the Uber Eats App), including, without limitation, with respect to:
i. the personalisation of the Uber Eats App for Customers;
ii. the prioritisation and display of options available to Customers;
iii. the search functionality and results provided to Customers; and
iv. adding, removing or otherwise modifying any feature or functionality made available through the Uber Eats App to optimize reliability or efficiency on the Uber Eats App.
f. No Service Guarantee. Uber and its Affiliates do not guarantee the availability or uptime of the Uber Tools or Uber Eats App. Merchant acknowledges and agrees that the Uber Tools and Uber Eats App may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Uber Tools and Uber Eats App may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Uber and its Affiliates are not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
g. Disclaimer of Warranties. This clause applies only to the maximum extent permitted by Applicable Law, and does not (and is not intended to) override any rights that Merchant has pursuant to Applicable Law. Uber and its Affiliates provide, and Merchant accepts, the Uber Tools and Uber Eats App on an "as is" and "as available" basis. Uber and its Affiliates do not represent, warrant or guarantee that Merchant's access to or use of the Uber Tools or Uber Eats App: (i) will be uninterrupted or error free; or (ii) will result in any requests for orders of Items (and delivery, if applicable). Uber and its Affiliates make no representations, warranties or guarantees as to the actions or inactions of Customers who may request or receive Items (and delivery services, if applicable), and Uber and its Affiliates do not screen or otherwise evaluate Customers. By using the Uber Tools, Merchant acknowledges and agrees that Merchant or a Delivery Person may be introduced to a third party that may pose harm or risk to Merchant, Delivery Persons or other third parties. Merchant and their Merchant Managed Delivery Persons are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Uber Eats Services and Uber Tools. Uber does not represent, warrant or guarantee the safety of any Items. Notwithstanding Uber Canada’s appointment as limited payment collection agent of Merchant for the purpose of accepting payment from Customers on its behalf, Uber Canada and its Affiliates expressly disclaim all liability for any act or omission of Merchant, any Merchant Managed Delivery Persons, any Customer or other third party.
h. Complaints. In connection with the provision of Uber Eats Services to Merchant, Uber, on behalf of Merchant, may respond to complaints by Customers about Items and/or delivery sold by Merchant via the Uber Eats App.
i. Suspension of Uber Eats Services. Uber, at its sole discretion, reserves the right to temporarily or permanently suspend, in whole or in part, Merchant’s access to the Uber Eats Services and Uber Tools if:
i. Merchant fails to provide Required Documentation in a timely manner;
ii. Merchant’s account is in arrears;
iii. A Brand Matter has occurred; or
iv. Merchant is, or Uber reasonably believes Merchant is, in breach of this Agreement.
j. In-App Content. Uber reserves the right to edit or remove Merchant’s content on the Uber Eats App, including Merchant’s menu items, to mitigate or prevent a Brand Matter or to otherwise ensure compliance with this Agreement and Applicable Laws.
2. Merchant’s Obligations.
a. Availability of Items. Merchant will make Items available for purchase through the Uber Eats App during its normal business hours.
i. Merchant will prepare, handle and store all Items in accordance with Applicable Law, which shall include, without limitation, all laws, rules and regulations governing time or temperature controls required for food hygiene and safety.
ii. Merchant will determine any Criteria that apply to Items and Merchant is responsible for ensuring that the Items meet the applicable Criteria as displayed to Customers in the Uber Eats App. Uber, at its sole discretion, reserves the right to remove from the Uber Eats App any Item for sale by Merchant deemed unsuitable for sale on the Uber Eats App.
b. Item Inventory and Responsibilities
i. Item Responsibilities By Method
1. For Items transferred via the Marketplace Method, with respect to the Items themselves, Merchant is responsible for complying with all health and safety laws and regulations applicable in relation to preparation and packaging of Marketplace Items. Substandard Items are Merchant's responsibility. With respect to delivery, Merchant remains responsible for all Items up to the point where the Items are transferred to a Marketplace Delivery Person, but Merchant is not responsible for the delivery itself.
2. For Items transferred via the Merchant Managed Delivery Method, Merchant shall remain responsible for complying with all health and safety laws and regulations applicable in relation to all Items, up to and including the time of delivery of the Items to a Customer. Merchant agrees that, for purposes of delivery of Items via the Merchant Managed Delivery Method, Merchant Managed Delivery Persons shall operate under cover of the Merchant’s retail and health and safety licenses, registrations, authorizations and privileges and control. Merchant acknowledges and agrees that Uber never takes title to any Merchant Managed Item, that Merchant remains responsible for the delivery of Merchant Managed Items, and that Merchant shall maintain possession, control and care of the Merchant Managed Items at all times in full compliance with Applicable Law.
3. For Items transferred via the Non-Delivery Method, Merchant shall remain responsible for complying with all health and safety laws and regulations applicable in relation to all Non-Delivery Items, up to and including the time of transfer of the Non-Delivery Items to a Customer.
ii. Merchant is responsible for costs related to reimbursement to Customers in the event any such Customer(s) request a refund for Substandard Items or otherwise unsatisfactory Item(s) (including, without limitation, any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable). In addition, if a Substandard Item is delivered to a Customer via the Marketplace Method, Uber Canada may assess a Substandard Item delivery fee (“Substandard Item Delivery Fee”) to Merchant to offset the cost of delivery of the Substandard Item. Uber Canada may deduct refunds (including the Substandard Item Delivery Fee) from the Item Revenue transmitted to Merchant under this Agreement in accordance with Uber Canada’s refund policy located at https://restaurants.ubereats.com/ca/en/order-errors/ (or as otherwise provided to Merchant), as updated from time to time, provided always that Merchant has received notification of such refund policy.
c. Documentation. Merchant will provide Uber with all Required Documentation that Uber may request acting reasonably, including but not limited to business license, food premises inspection certificate, food handling certificate, health inspection results, tax identification number, information regarding Sales Tax status, Liquor Licence, licenses to sell or handle regulated items, banking documentation, and all Invoice Details. Merchant is solely responsible for providing Uber with, and maintaining, accurate bank account information.
d. Restrictions. Merchant will not, and will not allow any third party to: (i) use the Uber Eats Services, the Uber Tools, or any other transactional, operational, performance or other data or information that is related to the sale of the Items (and, if applicable, delivery) to Customers through the Uber Eats App to compete with Uber, its Affiliates or the Uber Eats Services; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Uber Eats Services or Uber Tools (except to the extent that Applicable Law prohibits reverse engineering restrictions); or (iii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Uber Eats Services or Uber Tools (except as otherwise authorized by Uber).
e. Alcohol. To the extent permitted under Applicable Law, Merchant may use the Uber Eats App to arrange the sale and delivery of alcohol Items to Customers. If Merchant elects to do so, Merchant is subject to the additional terms set forth herein:
i. Prior to making any alcohol Items available for sale, Merchant will first notify Uber of its intention to add alcohol Items to its menu for each premises from which Merchant intends to sell alcohol.
ii. Merchant represents and warrants that Merchant holds a valid and subsisting Liquor Licence; and (ii) Merchant is compliant with all liquor laws, regulations, policies, and conditions attached to Merchant’s Liquor Licence.
iii. In the event Merchant’s Liquor Licence is suspended, revoked, cancelled, expired, or otherwise ceases to be in full force and effect, Merchant will: (i) immediately cease making alcohol Items available for purchase via the Uber Eats App; and (ii) immediately notify Uber of the change in status to its Liquor Licence.
iv. Merchant will take reasonable measures and conduct appropriate diligence to help ensure that: (i) alcohol Items are not delivered to persons under the legal age in Merchant’s jurisdiction; (ii) alcohol Items are not delivered to intoxicated persons; (iii) if using the Marketplace Method, Merchant provides alcohol Items for delivery only to the specific Marketplace Delivery Person who has agreed via the Uber Eats App to deliver that order; and (iv) if using the Non-Delivery or Merchant Managed Delivery Method, Merchant’s staff has received any required server training or certification and ensures the Customer is of legal drinking age and not intoxicated.
v. Merchant will write “Check ID” on the exterior of any package containing an alcohol Item, or will otherwise indicate and communicate to a Delivery Person that an order contains alcohol Items in a manner requested by Uber.
vi. If Applicable Law requires Merchant to include food or a meal with each alcohol delivery or takeout order, Merchant will ensure that food or a meal is included with every order of alcohol Items in a manner that complies with the Applicable Law.
vii. Merchant acknowledges and agrees that in any jurisdiction(s) where Uber or Affiliates do not hold a liquor delivery licence, Marketplace Delivery Persons will deliver Items pursuant to and under the authority of Merchant’s Liquor Licence. As such, Merchant is responsible for ensuring compliance with Applicable Law governing liquor delivery in Merchant’s jurisdiction. However, in any jurisdiction(s) where applicable statute(s) require Uber or Affiliates to hold a liquor delivery licence, Marketplace Delivery Persons will deliver Items pursuant to and under the authority of Uber’s or Affiliate’s liquor delivery licence.
viii. Merchant acknowledges and agrees that it is responsible for ensuring that all of the Items listed in the Uber Eats App comply with any Applicable Law governing the pricing of liquor products. Merchant understands that from time to time Uber provides promotional incentives to Customers, and Merchant will take appropriate and reasonable measures to ensure that Items comply with minimum liquor pricing requirements.
ix. Merchant will appropriately label and describe Items in its menu on the Uber Eats App, including accurately stating the percentage alcohol by volume of a given Item. In its use of the Uber Tools, Merchant will comply with all marketing and promotional laws, regulations and policies relating to liquor, including but not limited to the rules and guidelines published by the applicable provincial liquor regulatory authorities.
x. Merchant will properly configure its menu(s) on the Uber Eats App to ensure that all alcohol Items are accurately identified as alcohol in Uber’s systems.
xi. Merchant acknowledges Uber may temporarily or permanently disable the listing of alcohol Items in a particular geography, at Uber’s discretion, including to ensure optimization for local conditions and regulations.
xii. Merchant will provide any Required Documentation related to liquor to Uber immediately upon request.
For the purposes of this section, “alcohol” and “liquor” describe Items that are classified and regulated as liquor under Applicable Law.
f. Tax. Merchant is responsible for ensuring the accuracy of its own tax filings.
3. Ratings. Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the Uber Eats App to provide a rating of such Item(s) (and, if applicable, delivery) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the Uber Eats App, and either the delivery services (provided by either a Marketplace Delivery Person or Merchant Managed Delivery Person) or the Non-Delivery Method experience ("Customer Feedback"). Uber reserves the right to use, share, and display Customer Feedback in any manner in connection with the business of Uber without attribution to or approval of Merchant. Uber reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy laws and regulations or other Applicable Laws, or violate Uber’s content policies.
4. Reporting. Uber will provide Merchant with information regarding the number of Items sold by Merchant to its Customers. Uber will also provide information to Merchant regarding any refunds given to its Customers by Uber Canada on Merchant’s behalf, including the date of the transaction, the Item(s) refunded, the reason for the refund and any other information Uber is permitted to provide under applicable privacy laws and regulations.
5. Fees, Retail Price of Items and Taxes.
a. Fees and Taxes.
i. Fees. In consideration for the use of the Uber Eats Services, Uber Canada will charge Merchant a "Service Fee" for each specific Method as specifically set forth in the Order Form (together with the Activation Fee, the Subscription Fee, the Damage Fee, and any other applicable fees charged by Uber Canada to Merchant, the "Fees").
ii. Payment Terms. All Fees under this Agreement will be paid in Canadian dollars. Uber Canada will deduct any Fees from the payment Uber Canada collects from Customer on Merchant’s behalf, as detailed below.
iii. Costs and Expenses. Except as may be expressly set forth in this Agreement, each party will be responsible for its expenses and costs in connection with this Agreement.
iv. Taxes on Fees.
1. All Fees payable pursuant to this Agreement shall be deemed to be exclusive of Sales Tax. The term "Sales Tax" includes any GST, HST and/or similar provincial sales taxes.
2. If Sales Tax is applicable on any Fees, Uber Canada or its Affiliate will charge the Merchant for Sales Tax on Fees, and Merchant shall pay that amount of Sales Tax to Uber Canada or its Affiliate in addition to and at the same time as payment of the Fees.
b. Retail Price of Items and Taxes.
i. The Uber Eats Services connect you with Customers who wish to purchase your Items. You are the “merchant”, “retailer”, or “seller” of all Items to be made available for sale via the Uber Eats App. As such, you are responsible for determining and setting the retail price for each Item you make available for sale via the Uber Eats App prior to any discounts or promotions (the “Retail Price”), and you are ultimately responsible for the collection and remittance of all applicable Sales Tax, where required under Applicable Law. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Tax.
ii. Merchant hereby authorizes Uber Canada to collect applicable Sales Tax on Merchant's behalf based on information (including, without limitation, rates and/or Item descriptions) provided by Merchant to Uber Canada through the Uber Tools or in a manner as otherwise agreed to by the Parties. The Uber Tools’ functionality may be based on interpretations of federal, provincial, and local laws and regulations and information provided by taxing authorities. Merchant’s use of the Uber Tools, including any communications with Uber Canada, in no way constitutes the provision of legal or tax advice.
iii. While the Uber Tools provide a means to apply Sales Tax to your transactions, the Uber Tools may not currently support Sales Tax configurations applicable to certain Items which you desire to sell via the Uber Eats App. In such cases, Uber Canada retains sole discretion regarding whether you may offer such Items for sale via the Uber Eats App. Uber Canada may from time to time give Merchant notice of certain Items or Item categories that are not supported by the Uber Tools and must be removed from the Uber Eats App (“Unsupported Items”). Merchant hereby agrees to comply with such notice, provided that if Merchant does not comply, Merchant shall be solely responsible for all risk of loss associated with the continued sale of such Unsupported Items. Merchant shall promptly notify Uber Canada if it believes any charges (or lack of charges) for Sales Tax were erroneous or inaccurate. If Sales Tax charged by Merchant is not in accordance with (or in violation of) any law or regulation, Uber Canada expressly reserves the right to, upon prior notice to Merchant, remove affected Items from Merchant’s menu on the Uber Eats App and/or deactivate Merchant from the Uber Eats App.
iv. Coupons. Uber Canada may make certain coupons (as defined under the Excise Tax Act and the Québec Sales Tax Act) available to Customers applicable to Items provided by Merchant and some or all associated fees and charges resulting from that transaction. You agree to accept such coupons as consideration payable for your supply of Items (including delivery services related to such Items, if using the Merchant Managed Delivery Method). In the case of a Reimbursable Coupon (i.e., a coupon entitling Customers to a reduction of a fixed dollar amount on the purchase price), you agree that (i) such Reimbursable Coupon will be treated as cash and Sales Tax will be charged on the full price of the Items and (ii) Uber Canada will reimburse you for the full fixed dollar amount of the Reimbursable Coupon. In the case of a Other Coupon, you agree that (i) such Other Coupon will reduce the selling price of the Items before Sales Tax is added and (ii) no Sales Tax will apply to any amount reimbursed by Uber Canada in consideration of the acceptance of the Other Coupon as a form of payment as contemplated in this section. The same shall apply in respect of other provincial sales tax where similar coupon rules apply.
v. Notwithstanding the foregoing, certain legislation commonly known as “marketplace facilitator” laws (“Marketplace Facilitator Laws”) may require Uber Canada to collect and remit Sales Tax directly to the taxing authority. In jurisdictions with Marketplace Facilitator Laws in effect that are applicable to Uber Canada due to this Agreement (each a “Marketplace Facilitator Jurisdiction” beginning the effective date of such legislation), Uber Canada may determine, as of a date specified by Uber Canada (“Switchover Date(s)”), the amount of applicable Sales Tax which Uber Canada will collect and remit to the taxing authority based on Item descriptions and additional information provided by Merchant. For the avoidance of doubt, for each Marketplace Facilitator Jurisdiction: (i) Uber Canada will continue to collect Sales Tax on behalf of, and remit such amounts to, Merchant until the applicable Switchover Date and (ii) beginning on the applicable Switchover Date, any covered Sales Tax will be collected by Uber Canada and remitted to the applicable tax authority on Uber Canada’s own account, and not on behalf of Merchant. A list of jurisdictions in which Uber Canada will collect and remit Sales Tax to taxing authorities (and associated Switchover Dates) may be found at https://about.ubereats.com/en/marketplacefacilitator/, as updated from time to time.
6. Invoices. Merchant grants a mandate to Uber, pursuant to which, for each order completed using the Uber Eats App, Uber Canada may issue an invoice and/or receipt for Items (and in the Merchant Managed Delivery Method, delivery services) to Customers in Merchant's name and on Merchant’s behalf provided that Merchant has completed the required Invoice Details. Merchant may dispute invoices and/or receipts issued by Uber Canada on Merchant's behalf within a period not exceeding three (3) days from the issuance date of the invoice and/or receipt. Failing this, Merchant is deemed to have validated said invoice and/or receipt. It is understood that Merchant will carry out storing and archiving of invoices and/or receipts in compliance with Applicable Laws. In the province of Québec, Merchant is exclusively responsible for providing SRM compliant invoices to Customers for each order completed using the Uber Eats App, and Merchant agrees that Uber Canada may issue a transaction receipt (not a tax compliant invoice) for Items (and in the Merchant Managed Delivery Method, delivery services) to Customers in Merchant's name and on Merchant’s behalf.
7. Method Restrictions and Limitations.
a. Method Settings. If Merchant has selected both the Merchant Managed Delivery Method and the Marketplace Method, Merchant may select Merchant Managed Delivery Method and/or Marketplace Method for delivery of future orders of Items to its Customers. Merchant may apply its selections to some or all future orders. Merchant may modify its Method selection at any time. However, the selected Method for an order cannot be modified after the order has been placed. All orders pending at the time Merchant modifies its Method must be completed via the Method selected when the order was placed. The proper Method for each order will be reflected in Merchant’s order dashboard available via the Uber Tools. Uber may, at its discretion, modify delivery settings on Merchant’s behalf.
b. Delivery Radius Modification. Uber, at its discretion, reserves the right to modify Merchant’s delivery radius for reasons including, without limitation, to prevent or otherwise limit unfulfilled orders.
c. Temporary Usage Restriction. Uber, at its discretion, reserves the right to restrict or otherwise limit Merchant’s access to the Uber Eats App for a period of time for reasons including, without limitation, to prevent or otherwise limited unfulfilled orders
d. Transfer Restrictions. Merchant will not, via the Uber Eats App or Uber Tools, offer for sale or transfer any of the things contained in the then current Uber Eats Prohibited Items List published online and amended from time to time, currently available at: https://help.uber.com/merchants-and-restaurants/article/what-can-i-include-in-my-menu?nodeId=67ce5ca4-82d7-490e-b890-4240587c40b6. Merchant will not use the Uber Tools to solicit or facilitate donations without the prior written agreement of Uber, which Uber may provide in its sole discretion. Merchant will not offer for sale or transfer any Items where doing so is illegal or not permitted under Applicable Law. Uber has the right to revise the description of, or remove altogether, any prohibited Items listed on Merchant’s menu.
8. Marks.
a. Marks. Subject to this Agreement, each party hereby grants to the other party (and, in the case of Uber, to its Affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks, on a royalty free basis, in connection with the activities related to this Agreement. This license includes the right to reproduce, adapt and represent (in connection with all or part of the activities related to this Agreement) the Marks for the entire world, using all means and media, and without any restriction of any kind as regards exploitation methods, number of prints, dissemination or utilisation. All uses of a party’s Marks (owned or licensed, as applicable) by the other party will be in the form and format specified or approved by the party that owns (or is a licensee of, as applicable) such Marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party. Any use or display of Merchant’s Marks by Uber in connection with making Items available through the Uber Eats App in the ordinary course of business will not require any such prior, express, written consent. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the party that owns (or is a licensee of, as applicable) such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Merchant agrees that it will not, and will ensure that Merchant Managed Delivery Persons do not, try to register or otherwise use and/or claim ownership in any of the Uber Marks, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.
9. Marketing and Promotional Activities.
a. Marketing. Uber may showcase the availability of Merchant’s Items via the Uber Eats App through various promotional activities including, without limitation, social media channels, websites, advertisements, blogs or other media available now or hereinafter created. Uber (or a party designated by Uber acting on Uber’s behalf) may create video, still images and/or other materials for marketing and other efforts related to the Uber Eats App ("Uber Eats Marketing Materials"). Merchant agrees that Uber Eats Marketing Materials (including, without limitation, all intellectual property rights therein) are and will remain the sole and exclusive property of Uber. Additionally, Merchant may choose to provide videos, still images and/or other materials to Uber ("Merchant Marketing Materials") for use in connection with the display of Merchant’s Items on the Uber Eats App, and Merchant hereby grants Uber a non-exclusive, perpetual, fully paid up and royalty free right to use, reproduce, adapt, represent, and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Uber Eats Services, for the entire world, during the Term, using all means and media, and without any restriction other than as required by Applicable Law as regards exploitation methods, number of prints, dissemination or utilisation. Uber agrees that the Merchant Marketing Materials shall remain Merchant’s sole and exclusive property. Without limiting anything in the Agreement, Merchant represents and warrants that the Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Merchant Marketing Materials contain any third party materials, Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for Uber to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that Uber or its Affiliates may remove Merchant Marketing Materials from the Uber Eats App(s) if Uber or its Affiliates receive notice or otherwise reasonably believe that such Merchant Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
b. No Additional Amounts. Merchant acknowledges and agrees that, through advertising and marketing, Uber may seek to attract new merchants to Uber Eats Services and to increase existing users of the Uber Eats Services and Uber Eats App. Merchant acknowledges and agrees such advertising or marketing does not entitle Merchant to any additional monetary amounts beyond the amounts expressly stated in this Agreement.
c. Merchant Promotional Offers. Uber may authorize Merchant to use certain automated tools that allow Merchant to provide short-term promotional offers (“Offers”) to Customers through the Uber Eats App in accordance with the terms of this Agreement. Unless otherwise specified by Uber, Merchant agrees that it is solely responsible for fulfilling and defining the Offers provided by Merchant to its Customers using Uber’s proprietary, automated tools (“Offer Tools”) (subject to technical and functional limitations of the automated tools) or a Promotion Schedule (as defined below).
i. Offer Tools. Subject to this Agreement and any other guidelines or eligibility criteria for Offers that Uber may make available from time to time, Uber hereby authorizes Merchant to use the Offer Tools to create and provide Offers to Customers. Unless otherwise specified by Uber, Merchant will be solely responsible for defining each Offer (within the scope of functionality provided by the Offer Tools), including, without limitation, the start date, end date, and budget for each Offer. Alternatively, Merchant may create an Offer by completing and providing Uber with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to Uber by Merchant, Merchant will have a specified time period to confirm such Promotion Schedule in writing prior to the Offer being offered. To request a form Promotion Schedule, Merchant should contact its customer support representative. Each Offer will be subject to Uber’s prior written approval. Merchant may also be responsible for providing to Uber Offer Materials in a format and within deadlines specified by Uber for such to be reproduced for the provision of the Offer to Customers.
ii. Co-Funded Promotional Offers. From time to time, Uber may agree to fund a portion of Merchant’s Offer (each, a “Co-Funded Offer”). For each such Co-Funded Offer, the parties shall agree on a written Promotion Schedule setting forth: (x) a description of the Co-Funded Offer; (y) the obligations of each party; and (z) any other details regarding the Co-Funded Offer. For the sake of clarity, such Co-Funded Offer shall appear to the Customer as a Merchant Offer, and Uber shall issue an adjustment to Merchant’s Item Revenue to account for the amount of the Promotion that Uber has agreed to fund.
iii. Enhanced Promotional Placements. Subject to Uber Eats App functionality, Uber may provide enhanced promotional placement or other visual treatment for the Offers through the start and end date identified by Merchant. Merchant acknowledges that the time period of enhanced promotional placement for an Offer (if applicable) may vary due to a number of factors including Merchant’s budget, the start and end date for an Offer, and other Uber Eats App functionality.
iv. Merchant’s Responsibilities. Merchant will honour and fulfill the terms of the Offer. Merchant represents and warrants that Merchant will run all Offers in accordance with all Applicable Law which applies to the Offers. Merchant represents and warrants that Merchant possesses all necessary authority, rights, licenses, consents and permissions to run each Offer (including, without limitation, the rights to any Offer Materials provided to Uber). Merchant will not use an Offer to make charitable donations. For free or reduced “Delivery Fee” Offers, Merchant will be solely responsible for the reduction to the amount that Uber collects from Customers with respect to the “Delivery Fee”.
v. Reporting and Offer Costs. Uber will use good faith efforts to provide Merchant with reasonable information regarding Merchant's Offers, which may include, without limitation, the Offer Costs and the number of Items sold in connection with an Offer. Uber, in its sole discretion, may highlight Offers and/or the results of Offer in its own marketing materials.
vi. Service Fees. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Merchant Offer or Co-Funded Offer to an order through the Uber Eats App, the Service Fee shall be calculated based on the total Retail Price of the order minus the Merchant-funded portion of such Offer applied to that order. For the sake of illustrative purposes, if Merchant and Uber each fund $1 of a $2 off Offer (so the Co-Funded Offer is funded 50% by each party) on a $10 pre-Offer order total, the Service Fee shall be calculated on the post-Offer amount of $9. If Merchant's Offer consists of a discount on delivery, the Service Fee will be calculated as described in the Agreement and will not change. Merchant agrees that Merchant is solely responsible for Offer Costs and that Uber Canada may deduct Offer Costs from Merchant's Item Revenue. If Merchant is paid for an Item, it is responsible for the Service Fee and relevant Offer Costs.
vii. Modification, Suspension, Discontinuation. Uber reserves the right, at any time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the Offer Tools or the ability for Merchant to provide Offers. Merchant agrees that neither Uber nor any of its Affiliates shall be liable to Merchant (or to any third party) for the Offer or the Offer Tools, including for any modification, suspension or discontinuance of the Offer or the Offer Tools or providing Merchant with the ability to provide Offers.
d. Publicity. Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
10. Virtual Restaurants.
a. Definition. A Merchant who currently offers Items via the Uber Eats App may, subject to Uber’s prior approval, operate a Virtual Restaurant. All Virtual Restaurant Items are sold by Merchant.
b. Merchant’s Responsibilities. Without prejudice to any other provision of this Agreement, a Merchant operating a Virtual Restaurant must adhere to the following conditions:
i. Merchant represents and warrants that Merchant will prepare and sell all Items from Virtual Restaurant at Merchant’s restaurant premises.
ii. If this premises address changes, Merchant will provide Uber with no less than seven (7) days’ advance written notice.
iii. The Virtual Restaurant trading name is Merchant’s Mark and is subject to the indemnification provision of the Agreement. Merchant represents and warrants that (A) the Virtual Restaurant trading name does not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights and (B) it has the right to display the Virtual Restaurant trading name on the Uber Eats App. Merchant agrees that Uber may remove Virtual Restaurant from the Uber Eats App if Uber reasonably believes that it may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.
iv. Uber may provide Merchant with Virtual Restaurant Data. Merchant agrees that any Virtual Restaurant Data provided by Uber or its Affiliates to Merchant constitutes Confidential Information.
11. Confidential Information; Personal Data; Feedback.
a. Definition. Each Recipient agrees that it will not disclose the Discloser’s Confidential Information to any third parties other than Representatives, or use it in any way other than as necessary to perform this Agreement. Each Recipient will ensure that Confidential Information will only be made available to those of its Representatives who have a need to know such Confidential Information and who, prior to any disclosure of such Confidential Information, are bound by written obligations of confidentiality with respect to such Confidential Information that are no less stringent than those set forth in this Agreement. Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes Uber to disclose the terms of this Agreement to Merchant’s franchisees in connection with executing contracts that reference this Agreement with such franchisees) and (ii) a Recipient is required to disclose certain Confidential Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose (to the extent legally permissible) and reasonably assists in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form. Neither party makes any representation or warranty that Confidential Information is complete or accurate; all Confidential Information is provided "as is".
b. Privacy. Merchant agrees to use Personal Data provided to Merchant by Uber solely for the purpose of providing Items to Customers under this Agreement. Merchant agrees to use Personal Data provided to Merchant by Uber solely by using the Uber Tools provided by Uber and shall not copy, store, retain, remove from the Uber Tools or otherwise process the Personal Data. Only in the Merchant Managed Delivery Method, Merchant is permitted to copy Personal Data provided via the Uber Tools and share it with its Merchant Managed Delivery Persons for the sole purpose of providing Items to Customers in accordance with this Agreement, and will be responsible for compliance with applicable data protection regulations as a data controller, or the responsible party, for such Personal Data as specified in clause 5(a) of the Merchant Managed Delivery Method Specific Supplemental Terms. In respect of any Personal Data transferred by Uber to Merchant, the parties agree that they shall enter into the Data Processing Agreement (controller to controller) in substantially the form attached at Addendum A, included as part of the Supplemental Terms.
c. Aggregate Data. Merchant acknowledges that Uber may use aggregate, deidentified data related to Merchant’s transactions in connection with the Uber Eats Services ("Aggregate Data") and may share Aggregate Data with a commercial partner to achieve any commercial purpose, as described in paragraph (h) below. If Merchant allows a third party to provide technology services to Merchant in connection with Merchant’s obligations under this Agreement, then Uber may share Aggregate Data with such third party to enable the provision of Uber Eats Services to Merchant.
d. Third Party Disclosure. Merchant acknowledges that Uber may share Merchant contact information (including name, address, email, and phone number) with third parties necessary to Merchant's onboarding on the Uber Eats App, including logistics and/or delivery service providers (for the delivery of Devices or other equipment), as well as photography services (for any photography which may be provided by a third-party provider on behalf of Uber).
e. Passwords. Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Uber Tools and related Uber Eats Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.
f. Data Identification Restriction. Without limiting any other provision of this Agreement, including any provision in this clause, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including, without limitation, any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including, without limitation, any Personal Data, for the purpose of re-identification, targeted marketing, analytics or any other similar purpose.
g. Feedback. Merchant may, but is not obligated to, provide or otherwise make available to Uber certain feedback, suggestions, comments, ideas, or other concepts relating to Uber’s products and services ("Feedback"). However, to the extent that Merchant provides or otherwise makes available Feedback to Uber, Merchant hereby grants to Uber a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use, reproduce, adapt, represent and otherwise exploit such Feedback, during the Term, using all means and media, and without any restriction of any kind with regard to exploitation methods, number of prints, dissemination or utilisation.
h. Access to Uber Data. The Uber Data accessible through Merchant’s use of the Uber Eats Services and Uber Tools, includes onboarding data (e.g. bank account information, contact information, KYC information), operational data (e.g. order history, delivery information and other metrics), financial data (e.g. Item Revenue due to you, Fees due to Uber, past payout amounts), and feedback (from Customers and Delivery Persons). After expiry or termination of this Agreement, Merchant acknowledges that it will no longer be able to access this Uber Data. Uber has access to Uber Data via the Uber Tools and may use it for the purposes described in Uber’s Privacy Notice and for commercial purposes, unless expressly prohibited by this Agreement. Uber may share data with third parties as described in its Privacy Notice (available at https://www.uber.com/legal/en/document/?name=privacy-notice&country=canada&lang=en), for example with service providers that assist Uber in providing the Uber Eats Services, and it is not possible for Merchant to opt-out of such sharing. Uber may also share Aggregate Data with selected partners for commercial purposes related to the Uber Eats App (“Partner Sharing”). It is not possible for Merchant to opt-out of Partner Sharing, however Merchant’s data is not individually identifiable within Aggregate Data. In case Uber Data is also considered, in accordance with Applicable Law, Merchant’s Personal Data, the information provided in, and the rights afforded under, Uber’s Privacy Notice shall, in case of a conflict, supersede this paragraph.
12. Indemnification.
a. Indemnified Claims. Uber and the Merchant (the "Indemnifying Party", as the case may be) will indemnify, defend and hold harmless the other, its affiliates and their respective directors, officers, employees and agents (the "Indemnified Party") from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, "Losses") with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents (in Merchant’s case, including Merchant Managed Delivery Persons but excluding Uber to the extent it acts as Merchant’s agent) in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s (in Merchant’s case, including via Merchant Managed Delivery Persons) representations, warranties or covenants in this Agreement; and (iii) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party.
b. Merchant Indemnifying Party will indemnify, defend and hold harmless the Uber Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, (B) Merchant’s failure to provide accurate and complete information (including, without limitation, rates and/or Item descriptions), including information transmitted through a Device, point-of-sale, or third party service, sufficient for accurate Sales Tax calculations; or (C) Merchant’s failure to comply with a notice with respect to Unsupported Items; (D) Merchant copying, storing, retaining, removing from the Uber Tools or otherwise processing the Personal Data, except as permitted by clause 11(b) of these General Supplemental Terms; (E) any third party claim for actual or alleged infringement of a third party’s intellectual property or other proprietary rights arising out of or in connection with any Offer run by Merchant and use of Offer Materials; and/or (F) any third party claim arising out of or in connection with the manufacture, production, distribution, handling, advertising, consumption or use of, or otherwise relating to, any Offer run by Merchant, whether or not any claim arises during the Term of the Agreement, except in the case of each of (A)-(D) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of Uber or its employees, agents or that of Marketplace Delivery Persons. With respect to the indemnities in (E) and (F) above, approval by Uber of any Offer or use of any Offer Materials shall not affect this right of indemnification.
c. Procedure. Each Indemnified Party will provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defence of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defence of a claim, at Indemnifying Party’s expense.
13. Insurance. During the Term and for one (1) year thereafter, each party shall maintain commercial general liability and, if required by law, worker’s compensation insurance. The commercial general liability insurance policy limits shall be not less than one million dollars (CAD1,000,000)per occurrence for bodily injury, death and property damage liability, and two million dollars (CAD2,000,000) in aggregate. In addition, Uber agrees to maintain commercial automobile liability insurance with limits not less than one million dollars ($1,000,000) per accident for bodily injury or property damage arising out of the ownership, maintenance or use of owned, hired, and non-owned vehicles. All policies shall be written by reputable insurance companies with a best’s policyholder rating of not less than A-. Such insurance shall not be canceled or materially reduced without thirty (30) days prior written notice to the other party. Upon a party’s request, the other party shall provide evidence of the insurance required herein. Merchant will include Uber as an additional insured on its commercial general liability insurance policy, and Uber will include Merchant as an additional insured on its commercial general liability and commercial automobile liability policies. In no event shall the limits of any policy be considered as limiting the liability of a party under this Agreement.
14. Auditing/Investigations. During the Term of the Agreement and for a period of 12 months after expiry or termination of it, on:
a. an annual basis; and/or
b. in case of any suspected or actual breach of (a) the Community Guidelines or any other code of conduct applicable to Merchant, (b) the Agreement, or (c) any of Merchant’s obligations under any applicable labour, anti-slavery or anti-bribery and corruption provisions, laws, regulations, guidelines and codes by Merchant or any Representative;
Uber shall have the right to audit (directly or indirectly) at Merchant’s offices, or request and receive copies of, any or all of Merchant’s records including, but not limited to payroll slips, social contribution expenses, tax returns, receipts and expenses, at Merchant’s cost, subject to at least twenty four (24) hours’ written notice. Merchant shall also inform Uber immediately in writing should it or any Representative be under investigation by any relevant authority in relation to any such potential or actual breach. Uber reserves the right to send Merchant questionnaires to assess compliance with the Agreement, to which Merchant agrees to reply within twenty-four (24) hours from the moment the questionnaire is sent, or a different deadline if specified in the questionnaire.
15. Governing Law. This Agreement shall be governed by and construed in accordance with the laws as specified in the Order Form without regard to its conflict of laws provisions.
16. Internal Complaint System. Merchant may contact Uber free of charge via the ‘Help’ section in the Uber Tools or by visiting https://help.uber.com/restaurants to request support or submit complaints about the Uber Eats Services or Uber Tools.
17. Dispute Resolution.
a. Dispute Resolution to be by Arbitration:
i. All Disputes arising out of or in connection with the Agreement, or in respect of any legal relationship associated with or derived from the Agreement, will be finally and conclusively resolved by arbitration, on an individual basis, under the Arbitration Rules (“ADRIC Rules”) of the ADR Institute of Canada, Inc. (“ADRIC”), except as modified herein. The ADRIC Rules are available by searching www.google.ca to locate “ADRIC Arbitration Rules” or by clicking here. ADRIC may also be contacted at 1-877-475-4353 or www.adric.ca.
ii. The governing law, known as the Seat of Arbitration, will be Ontario. The language of the arbitration will be English or French, at your choice.
iii. The arbitration hearings and meetings may be held at any location(s) the arbitrator considers appropriate. Arbitration hearings may be conducted by telephone, email, the Internet, videoconferencing, or other communication methods, unless the arbitrator disagrees.
iv. If any portion of this Dispute Resolution provision is unenforceable, the remainder of this Arbitration Provision will be enforceable. This Arbitration Provision survives the termination of Merchant’s relationship with Uber, and it continues to apply if Merchant’s relationship with Uber is ended but later renewed.
v. This Dispute Resolution provision applies to, without limitation, Disputes arising out of or relating to interpretation or application of this Agreement, including the formation, scope, enforceability, waiver, applicability, revocability or validity of this Dispute Resolution provision or any portion of this Dispute Resolution provision.
b. Class Action Waiver:
i. Both Uber and Merchant agree to bring any Dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any Dispute to be brought, heard or arbitrated as a class or collective action, or for Merchant to participate as a member in any such class or collective proceeding.
c. Arbitration Process:
i. Before starting arbitration with ADRIC, the party bringing the claim in arbitration must first deliver a written Notice of Request to Arbitrate (“Notice”) within the limitation period that would apply if the claim were brought in a Court in your province or territory of residence, or of Ontario if you reside outside Canada. The Notice must include contact information for the parties, the legal and factual basis of the claim, and the remedy sought and amount claimed. Any demand for arbitration made to Uber must be served to the party’s registered address for service of legal process as follows:
Uber Portier Canada Inc.: ℅ McCarthy Tétrault LLP, 66 Wellington Street West, Suite 5300, TD Bank Tower, Toronto, ON M5K 1E6, Attention: Matthew Kelleher, Gillian Kerr and Awanish Sinha
Uber Technologies, Inc.: at any CT Corporation service of process locations (list of locations here), or as otherwise set out in the Uber Guidelines for Third Party Data Requests and Service of Legal Documents, currently available at https://www.uber.com/legal/en/document/?name=guidelines-for-third-party-data-requests country=canada&lang=en.
ii. Before the Notice is delivered to ADRIC, the party bringing the claim shall first attempt to informally negotiate with the other party, in good faith, a resolution of the Dispute, claim or controversy between the parties for a period of not less than 30 days but no more than 45 days unless extended by mutual agreement of the parties. If the parties cannot reach an agreement to resolve the dispute within this negotiation period, the party bringing the claim may deliver the Notice to ADRIC.
18. General.
a. Waiver. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
b. Modification. Any modification or amendment to the Order Form shall be effective only if in writing and signed by both parties, provided that Uber reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Any modification or amendment to the Supplemental Terms shall be in accordance with clause II(B) of the Order Form.
c. Severability. If any provision of the Agreement is held to be illegal, invalid or unenforceable, in whole or in part, such provision or part thereof shall to that extent be deemed not to form part of the Agreement but the legality, validity and enforceability of the remainder of the Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of the Agreement.
d. Force Majeure Event. Any delay in or failure by either party in the performance of this Agreement shall be excused if and to the extent such delay or failure is caused by a Force Majeure Event. The affected party will promptly notify the other party upon becoming aware that any Force Majeure Event has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under the Agreement.
e. Assignment. Merchant may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Uber. Uber may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement without consent or notification. Uber shall be expressly discharged from all obligations and responsibilities arising after the assignment or transfer. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns.
f. Relationship between the Parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment or worker relationship (including from a labour law, tax law or social security law perspective), between Uber (and/or its Affiliates) and Merchant or Uber (and/or its Affiliates) and any Delivery Persons; and (b) except as specified in this Agreement, no joint venture, partnership, or agency relationship exists between Uber (and/or Uber’s Affiliates) and Merchant or Uber (and/or Uber’s Affiliates) and any Delivery Persons. No party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party shall be solely responsible for its employees and contractors used in connection with this Agreement. Except as otherwise expressly provided herein with respect to Uber Canada acting as the limited payment collection agent solely for the purpose of collecting payment from Customers on behalf of Merchant, the relationship between the parties under this Agreement is solely that of independent contractors.
g. Entire Agreement. This Agreement contains the full and complete understanding and agreement between the parties and supersedes all prior and contemporary understandings and agreements, whether oral or written. In this Agreement, the words "including" and "include" mean "including, but not limited to."
h. Third Party Beneficiaries. Merchant acknowledges that there are no third party beneficiaries to this Agreement, except for Uber B.V. (in its capacity as agent for Uber) and Uber’s Affiliates. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims, except with respect to Uber B.V. (in its capacity as agent for Uber) and Uber’s Affiliates.
i. Liability. Nothing herein limits or excludes (nor is intended to limit or exclude) any statutory rights that Merchant or Uber may have under Applicable Laws that cannot be lawfully limited or excluded.
j. Payment Processing Errors. Uber reserves the right, in its sole discretion, to seek reimbursement from Merchant if Uber discovers payment processing errors. Uber Canada may deduct from Merchant's Item Revenue, debit Merchant's payment method on file, or seek reimbursement from Merchant by any other lawful means to correct any errors. Merchant authorizes Uber Canada to use any or all of the above methods to seek reimbursement.
k. Notice. Any notice will be sent to the address of the relevant party listed in the Order Form and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) three (3) days after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient.
SPECIFIC SUPPLEMENTAL TERMS
MARKETPLACE METHOD
The following Specific Supplemental Terms govern the use of the Marketplace Method and the general availability of Items via the Uber Eats App delivered to Customers by Marketplace Delivery Persons ("Marketplace Items"). All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.
1. Marketplace Items. Upon Merchant agreeing to the Order Form, Definitions, General Supplemental Terms and Specific Supplemental Terms governing the Marketplace Method, and contingent upon completion of any additional verification steps, the Uber Tools will be made available to Merchant to access and request on-demand delivery services performed by Marketplace Delivery Persons. The Uber Eats Services in connection with the Marketplace Method include, without limitation: (a) providing on-demand lead generation, logistics, payment processing, marketing, onboarding, operational and other support services in connection with the sale of Marketplace Items by Merchant via the Uber Eats App; and (b) enabling Merchant to access and request on-demand delivery services performed by Marketplace Delivery Persons.
2. Payment.
a. Marketplace Service Fee. In consideration for the Uber Eats Services in connection with the Marketplace Method, Uber Canada will charge Merchant a Marketplace Service Fee in the amount set out in the Order Form for each Marketplace Item sold by Merchant via the Uber Eats App. Uber Canada will calculate the Marketplace Service Fee as follows: the Retail Price of the Item(s) sold by Merchant via the Uber Eats App (excluding any Sales Tax) (the Retail Price (including Sales Tax), the "Marketplace Item Payment") multiplied by the Marketplace Service Fee percentage. The Marketplace Service Fee shall be exclusive of any Sales Tax.
b. Revenue Transfer. Uber Canada and/or its Affiliates will transfer to Merchant the total Marketplace Item Payment (including any Sales Tax collected on Merchant’s behalf) earned by Merchant, less the Marketplace Service Fee and any refunds given on behalf of Merchant to Customers (such final transferred amount being the "Marketplace Item Revenue"). The Marketplace Item Revenue will be transferred on a weekly basis or otherwise, on a more or less frequent basis, if and as agreed to by the parties.
3. Batched Trips. Uber may, at its sole discretion, arrange for one Marketplace Delivery Person to deliver orders to multiple Customers as part of the same trip ("Batched Trips"). Batched Trips may include multiple orders from Merchant, or one or more orders from Merchant combined with one or more orders from other merchants using the Uber Eats App or other products or services provided by Uber or its Affiliates.
MERCHANT MANAGED DELIVERY METHOD
The following Specific Supplemental Terms govern the Merchant Managed Delivery Method and Items delivered to Customers on behalf of Merchant by Merchant Managed Delivery Persons ("Merchant Managed Items"). All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.
1. Merchant Managed Items. Upon Merchant agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Merchant Managed Delivery Method, and contingent upon completion of any additional verification steps, the Uber Tools will be made available to Merchant for it to (a) access and request lead generation, demand prediction, payment processing and other related services in connection with its sale and delivery of Items; and (b) fulfil the delivery of its Items using Merchant Managed Delivery Persons. Uber Canada does not provide any delivery services with the Merchant Managed Delivery Method. Rather, Uber Canada provides lead generation, logistics, demand prediction, payment processing and other related services in connection with the sale and delivery by or on behalf of Merchant of Items to be delivered by Merchant Managed Delivery Persons.
2. Payment.
a. Merchant Managed Service Fee. In consideration for the Uber Eats Services in connection with the Merchant Managed Delivery Method, Uber Canada will charge Merchant a Merchant Managed Service Fee in the amount set forth in the Order Form for each Merchant Managed Item sold by Merchant via the Uber Eats App. Uber Canada will calculate the Merchant Managed Service Fee as follows: the Retail Price of the Merchant Managed Item(s) sold by Merchant via the Uber Eats App (excluding any Sales Tax) (The Retail Price (including Sales Tax), the "Merchant Managed Item Payment") multiplied by the Merchant Managed Service Fee percentage. The Merchant Managed Service Fee shall be exclusive of any Sales Tax.
b. Merchant Managed Delivery Services. Merchant will pay Merchant Managed Delivery Persons for their delivery services provided to Merchant at its sole discretion, and Merchant is at all times solely responsible for providing payment to Merchant Managed Delivery Persons. If Merchant is paid for an order, Merchant is responsible for the Merchant Managed Service Fee even if a Merchant Managed Delivery Person is unable to complete the delivery. If applicable, Merchant authorizes Uber Canada and/or its Affiliates to collect a delivery charge from Customers on its behalf (the "Merchant Managed Delivery Charge").
c. Revenue Transfer. Uber Canada and/or its Affiliates will transfer to Merchant the total (i) Merchant Managed Item Payment earned by Merchant; (ii) Merchant Managed Delivery Charge collected from Customers on Merchant’s behalf (iii) gratuity paid by a Customer in respect of delivery services, if applicable, (iv) less (1) the Merchant Managed Service Fee and (2) any refunds given on behalf of Merchant to Customers (such final transferred amount being the "Merchant Managed Item Revenue"). The Merchant Managed Item Revenue will be transferred on a weekly basis or otherwise, on a more or less frequent basis, if and as agreed to by the parties.
d. No Additional Amounts. Merchant acknowledges that the Merchant Managed Item Payment and, where applicable, the Merchant Managed Delivery Charge is full payment for the Items and delivery services provided to Customers, although the Uber Eats Services may provide Customers with the ability to apply a gratuity through the Uber Eats Services. With regard to cash gratuities provided by a Customer directly to a Merchant Managed Delivery Person, no portion of that gratuity is owed to or should be paid to Uber.
3. Merchant Managed Delivery Terms.
a. Provision of Delivery Services. If Merchant chooses for delivery services to be fulfilled by a Merchant Managed Delivery Person, Merchant will need to provide the Merchant Managed Delivery Person with certain Customer Personal Data provided to Merchant through the Uber Tools, including (as applicable) the drop-off location of the applicable Items to be delivered and the name and phone number of the Customer. In order to enhance Customer’s satisfaction with the delivery services, it is recommended that a Merchant Managed Delivery Person: (i) follow Merchant’s instructions for drop-off details (e.g., the location within the building address to pick-up/drop-off a package, etc.); and (ii) wait at least seven (7) minutes for the Customer to appear at the requested pick-up or drop-off location. Merchant represents and warrants that it shall not, and shall ensure that all Merchant Managed Delivery Persons do not, contact any Customers or use any of the Customer’s Personal Data collected in the course of providing the delivery services for any reason other than for the purposes of fulfilling delivery services. As between Uber and Merchant, Merchant acknowledges and agrees that: (a) Merchant and Merchant Managed Delivery Persons shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of delivery services; and (b) except for the Uber Eats Services and Uber Tools, Merchant shall provide all necessary equipment, tools and other materials, at Merchant’s expense, necessary to perform delivery services.
b. Merchant’s Relationship with Customers. Uber and its Affiliates are not responsible or liable for the actions or inactions of a Customer in relation to the activities of Merchant, Merchant Managed Delivery Persons or any Transportation Method. Merchant acknowledges and agrees that each Merchant Managed Delivery Person shall have the sole responsibility for any obligations or liabilities to Merchant, Customers or other third parties that arise from a Merchant Managed Delivery Person’s provision of delivery services. Merchant acknowledges and agrees that: (a) Merchant and each Merchant Managed Delivery Person is solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all Applicable Law) regarding any acts or omissions of a Customer or other third party; and (b) Uber or its Affiliates may release Merchant’s or Merchant Managed Delivery Person’s contact and/or insurance information to a Customer upon such Customer’s reasonable request (e.g., in connection with an accident).
c. Merchant’s Relationship with Uber. Merchant acknowledges and agrees that Uber’s provision to Merchant of the Uber Eats Services creates a legal and direct business relationship between Merchant and Uber. Uber does not, and shall not be deemed to, direct or control Merchant or its Merchant Managed Delivery Persons generally or in its or their performance under this Agreement specifically, including in connection with the operation of its business, the provision of delivery services, the acts or omissions of Merchant Managed Delivery Persons, or the operation and maintenance of any Transportation Method. Merchant and Merchant Managed Delivery Persons retain the sole right to determine when, where and for how long each of them will utilize the Uber Eats Services. Merchant will not, and will ensure that its Merchant Managed Delivery Persons do not: (a) display Uber’s or any of its affiliates’ names, logos or colours on any Transportation Method; or (b) wear a uniform or any other clothing displaying Uber’s or any of its affiliates’ names, logos or colours. The foregoing does not apply if Merchant and Uber have agreed otherwise in writing or if so required by law. Merchant acknowledges and agrees that Merchant has complete discretion to operate its independent business and direct its Merchant Managed Delivery Persons at its own discretion, including the ability to provide services at any time to any third party separate and apart from the delivery services. Merchant understands that it retains the complete right to: (i) provide delivery services to its existing Customers; and (ii) use other software application services in addition to the Uber Eats Services.
d. Merchant’s Relationship with Merchant Managed Delivery Persons. Merchant shall have the sole responsibility for any obligations or liabilities to Merchant Managed Delivery Persons that arise from its relationship with Merchant Managed Delivery Persons (including the provision of delivery services). Merchant acknowledges and agrees that it exercises sole control over the Merchant Managed Delivery Persons and will comply with (a) all Applicable Law (including tax, social security and employment laws where applicable) governing or otherwise applicable to its relationship with Merchant Managed Delivery Persons; (b) industry best practice in respect of working conditions and compensation for Merchant Managed Delivery Persons. Notwithstanding Merchant’s rights, if applicable, to take recourse against Merchant Managed Delivery Persons, Merchant acknowledges and agrees that it is at all times responsible and liable for the acts and omissions of Merchant Managed Delivery Persons vis-à-vis Customers, Uber and its Affiliates, even where such liability may not be mandated under Applicable Law. Merchant hereby indemnifies Uber against any claims brought by or against Merchant Managed Delivery Persons.
4. Merchant Managed Delivery Persons and Transportation Methods.
a. Merchant Managed Delivery Person’s Requirements. Merchant acknowledges and agrees that each Merchant Managed Delivery Person shall at all times: (i) hold and maintain (A) a valid applicable licence with the appropriate level of certification to operate the Transportation Method assigned to each Merchant Managed Delivery Person (e.g., a driver’s licence if the Transportation Method is a motor vehicle), and (B) all licences, permits, approvals and authority applicable to Merchant and/or Merchant Managed Delivery Person that are necessary to provide delivery services to third parties in the Territory (if applicable); (ii) provide the delivery services in a professional manner with due skill, care and diligence; and (iii) maintain high standards of professionalism, service and courtesy. Merchant will undertake background and driving record checks from time to time, to the extent that such checks would be undertaken by a prudent Merchant exercising reasonable skill and care. Merchant acknowledges and agrees that Uber reserves the right, at any time in Uber’s sole discretion, to (i) deactivate or otherwise restrict Merchant from accessing or using the Uber Eats Services and/or Uber Tools, and/or (ii) request that Merchant prevent a Merchant Managed Delivery Person from providing delivery services on behalf of Merchant in connection with the Uber Eats Services, in each case if Merchant and/or a Merchant Managed Delivery Person fails to meet the requirements set forth in this Agreement. In the event that Uber requests that Merchant prevents a Merchant Managed Delivery Person from providing delivery services on behalf of Merchant in connection with the Uber Eats Services, Merchant shall procure compliance with such request.
b. Transportation Method Requirements. Merchant acknowledges and agrees that any Transportation Method will at all times be: (i) properly registered and licensed to operate as a delivery vehicle in the Territory (if the Transportation Method is a vehicle); (ii) owned or leased by Merchant, or otherwise in its lawful possession; (iii) suitable for performing the delivery services contemplated by this Agreement; and (iv) maintained in good operating condition, consistent with industry safety and maintenance standards for a Transportation Method of its kind and any additional standards or requirements in the applicable Territory, and in a clean and sanitary condition.
c. Taxes. Merchant acknowledges and agrees that Merchant is required to: (i) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of delivery services and receipt of the Uber Eats Services as required by Applicable Law; and (ii) provide Uber with all relevant tax information (including a valid Sales Tax registration numbers belonging to Merchant and/or any Merchant Managed Delivery Person, if obtaining a Sales Tax registration number is required of Merchant and/or any Merchant Managed Delivery Person by Applicable Law). Merchant further acknowledges and agrees that Merchant and each of its Merchant Managed Delivery Persons are responsible for taxes on their own income arising from the performance of delivery services. Notwithstanding anything to the contrary in this Agreement, Uber may in its reasonable discretion, and Merchant accordingly gives consent to Uber and its Affiliates to, based on applicable tax and regulatory considerations, provide any of the relevant tax information Merchant and/or any Merchant Managed Delivery Person has provided pursuant to the requirement mentioned above, directly to the applicable governmental tax authorities on Merchant’s and/or the applicable Merchant Managed Delivery Person’s behalf or otherwise.
5. Privacy.
a. In respect of any Personal Data transferred by Uber to Merchant, the parties agree that they shall enter into the Data Processing Agreement (controller to controller) in substantially the form attached at Addendum A. Merchant agrees to retain Personal Data provided to Merchant by Uber solely by using the software and tools provided by Uber, except that Merchant may provide Merchant Managed Delivery Persons with the Personal Data specified in the Data Processing Agreement between the parties (or any other Personal Data as Uber deems required in its sole discretion) to be used by a Merchant Managed Delivery Person solely for the purpose of delivering the applicable Item(s). To the extent that any Personal Data is printed or written on a receipt and transferred to the Merchant Managed Delivery Person, Merchant shall procure that (i) the Merchant Managed Delivery Person transfers such receipt to the Customer on delivery of the Item(s); or (ii), if the delivery services cannot be completed, the Merchant Managed Delivery Person returns such receipt to Merchant and Merchant disposes of such receipt.
b. Disclosure of Merchant and Merchant Managed Delivery Persons’ Confidential Information. Subject to Applicable Law, Uber and its Affiliates may provide to Merchant, a Customer, an insurance company, commercial partners, and/or relevant authorities and/or regulatory agencies any information (including Personal Data and Confidential Information) about Merchant or a Merchant Managed Delivery Person or any delivery services provided hereunder if: (i) there is a complaint, dispute or conflict, including an accident, between a Merchant Managed Delivery Person and Merchant or a Merchant Managed Delivery Person and a Customer; (ii) it is necessary to enforce the terms of this Agreement; (iii) it is required, in Uber’s or any Affiliate’s sole discretion, by Applicable Law or regulatory requirements (e.g., Uber or its Affiliates receive a subpoena, warrant, or other legal process for information); or (iv) it is necessary, in Uber’s or any Affiliate’s sole discretion, to (A) protect the safety, rights, property or security of Uber or its Affiliates, the Uber Eats Services, the Uber Tools or any third party; (B) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Uber Eats Services; (C) to detect, prevent or otherwise address Fraud, security or technical issues; (D) to prevent or stop activity which Uber or any of its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity; (v) it is necessary, in Uber’s or any Affiliate’s sole discretion, to achieve any commercial interest or (vi) it is required or necessary, in Uber’s or any Affiliate’s sole discretion, for insurance or other purposes related to Merchant and/or its Merchant Managed Delivery Persons. Merchant understands, and will make Merchant Managed Delivery Persons aware, that Uber and its Affiliates may retain Merchant and Merchant Managed Delivery Persons’ Personal Data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.
c. Uber and its Affiliates may collect Merchant or Merchant Managed Delivery Persons’ Personal Data during the course of Merchant’s use of the Uber Eats Services, or from third parties. Such information may be processed by Uber and its Affiliates, third parties and service providers, in accordance with its Privacy Notice (https://www.uber.com/legal/en/document/?name=privacy-notice&country=canada&lang=en).
6. Insurance.
a. Prior to the Effective Date of the Agreement, Merchant must obtain the coverage required at its sole cost and expense. Merchant agrees to review the terms and conditions of such coverage to ensure that it provides the amounts of coverage required while Merchant and its Merchant Managed Delivery Persons are providing delivery services. As between Merchant and Uber, it is Merchant’s sole responsibility to inform its insurer(s) of delivery activities by Merchant and/or Merchant Managed Delivery Persons, including the use of vehicles while providing delivery services.
b. Merchant agrees to maintain during the Term all compulsory insurance required by Applicable Law to provide delivery services in the Territory. This shall include any applicable compulsory motor vehicle liability insurance on all vehicles operated by Merchant and Merchant Managed Delivery Persons under this Agreement which provides protection against bodily injury and property damage to Merchant and Merchant Managed Delivery Persons, and third parties at levels of coverage that satisfy the minimum requirements to operate a motor vehicle being used for delivery services on the public roads within the Territory. This shall also include commercial general liability insurance that provides protection against personal injury, advertising injury and property damage to third parties with limits not less than one million dollars (CAD$1,000,000) per occurrence and two million dollars (CAD$2,000,000) in aggregate. Merchant shall add Uber (or any Affiliate which may be designated by Uber from time to time) to its commercial general liability and motor vehicle liability insurance policies as an additional insured. Merchant agrees to provide Uber a copy of the insurance policies, policy declarations, certificate of motor vehicle liability insurance and proof of premium payment for the insurance policies required upon request. Furthermore, such insurance as required shall not be cancelled or materially reduced without thirty (30) days’ prior written notice to Uber. Uber shall have no right to control Merchant’s selection or maintenance of its policy. Merchant must be a named insured or individually rated driver, for which a premium is charged, on any insurance policy required at all times.
c. Merchant agrees to maintain, during the term of this Agreement, workers compensation and/or employer’s liability insurance where required by local law in the Territory.
d. Merchant is required to promptly notify Uber of any accidents that occur while its Merchant Managed Delivery Persons are providing delivery services and to cooperate and provide all necessary information related thereto.
e. Uber may maintain during the term of this Agreement insurance related to the provision of delivery services as determined by Uber in its reasonable discretion and in accordance with Applicable Laws, provided that Uber and its Affiliates are not required to provide Merchant or Merchant Managed Delivery Persons with any specific insurance coverage for any loss to it, its Merchant Managed Delivery Persons, or its/their vehicles. Should Uber procure insurance related to Merchant’s provision of delivery services, Uber may cancel such coverage at its sole discretion at any time.
7. Representations and Warranties; Disclaimers. Merchant’s representation and warranty to comply with all Applicable Law in the performance of the Agreement (as per clause III(A) of the Order Form) shall include holding and complying with all permits, licences, registrations and other governmental authorisations necessary to provide (i) delivery services using the Transportation Method pursuant to this Agreement, and (ii) delivery services to third parties in the Territory generally.
8. Tax Indemnity. Merchant shall comply with all of its obligations under tax and social security laws to the extent applicable to this Agreement. Merchant shall indemnify Uber and its Affiliates from all tax liabilities, duties, levies, claims and penalties that may be imposed on Merchant or on Uber and/or its Affiliates as a result of Merchant’s failure to comply with any of its tax obligations. In particular, but without limitation to the foregoing, such taxes or duties shall include taxes, wages or other duties or withholdings (including any wage tax, social insurance premiums or employee insurance premiums) arising in the event that the relationship described in this Agreement, contrary to the intention and meaning of the parties, should be held to be an employment agreement between Uber and Merchant by any fiscal or social security authority.
9. Relationship of the Parties.
a. Merchant has no authority to bind Uber and/or its Affiliates and Merchant undertakes not to hold itself out, and to ensure that each Merchant Managed Delivery Person does not hold herself or himself out, as an employee, worker, agent or authorized representative of Uber and/or its Affiliates. Where, by implication of mandatory law or otherwise, Merchant or any Merchant Managed Delivery Person may be deemed an employee, worker, agent or representative of Uber or an Affiliate of Uber, Merchant undertakes and agrees to indemnify, defend (at Uber’s option) and hold Uber and its Affiliates harmless from and against any claims by any person, entity, regulators or governmental authorities based on such implied employment, agency or representative relationship.
b. Merchant expressly acknowledges and agrees that by agreeing to this Agreement, Merchant intends to perform delivery services and, as such, Uber will consider Merchant to be the supplier of delivery in accordance with all applicable Sales Tax legislation.
NON-DELIVERY
The following Specific Supplemental Terms govern the Non-Delivery Method and Items provided to Customers via the Non-Delivery Method ("Non-Delivery Items"). All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.
1. Non-Delivery Items. Upon Merchant agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Non-Delivery Method, and contingent upon completion of any additional verification steps, the Uber Tools will be made available to Merchant for it to allow Customers to collect Items requested via the Uber Eats App from a specified location without the involvement of a Delivery Person. Merchant agrees to make Items available via the Uber Eats App during its normal business hours, and as further set forth in this clause or mutually agreed between the parties in writing.
2. Payment.
a. Non-Delivery Service Fee. In consideration for the Uber Eats Services in connection with the Non-Delivery Method, Uber Canada will charge Merchant a Non-Delivery Service Fee in the amount set forth in the Order Form for each Non-Delivery Item sold by Merchant via the Uber Eats App. Uber Canada will calculate the Non-Delivery Service Fee as follows: the Retail Price of the Item(s) sold by Merchant via the Uber Eats App (excluding any Sales Tax) (the Retail Price (including Sales Tax), the “Non-Delivery Item Payment”) multiplied by the Non-Delivery Service Fee percentage. The Non-Delivery Service Fee shall be exclusive of any Sales Tax.
b. Revenue Transfer. Uber Canada and/or its Affiliates will transfer to Merchant the total (i) Non-Delivery Item Payment earned by Merchant; (ii) gratuity paid by a Customer in respect of any Non-Delivery Items, if applicable, (iv) less (1) the Non-Delivery Service Fee and (2) any refunds given on behalf of Merchant to Customers (such final transferred amount being the "Non-Delivery Item Revenue"). The Non-Delivery Item Revenue will be transferred on a weekly basis or otherwise, on a more or less frequent basis, if and as agreed to by the parties.
DINE-IN
The following Specific Supplemental Terms govern the Dine-In Method and Items provided to Customers via the Dine-In Method ("Dine-In Items"). All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.
1. Dine-In Items. Upon Merchant agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Dine-In Method, and contingent upon completion of any additional verification steps, the Uber Tools will be made available to Merchant for it to allow Customers to place an order for Dine-In Items intended for consumption at Merchant’s location whereby the delivery of the Dine-In Item(s) to Customer’s designated table will be facilitated by Merchant Personnel.
2. Dine-In Specific Role and Responsibilities. It is the sole responsibility of Merchant to (i) identify, through use of Uber Tools, the time that Dine-In Method is available for Customer; (ii) ensure that the location, including but not limited to, designated table selection for Customer to consume Dine-In Item, is available when Dine-In Method is offered; and (iii) ensure that Merchant’s facility is suitable for consumption of Dine-In Item, at the times specified. Merchant assumes all responsibility for obligations arising from Customer’s attendance at Merchant’s facility in connection with Dine-In Method, in accordance with all applicable laws (including but not limited to applicable work health and safety laws).
3. Cash Gratuities. With regard to cash gratuities provided by a Customer directly to Merchant Personnel, no portion of that gratuity is owed to or should be paid to Uber.
4. Payment.
a. Dine-In Service Fee. In consideration for the Uber Eats Services in connection with the Dine-In Method, Uber Canada will charge Merchant a Dine-In Service Fee in the amount set forth in the Order Form for each Dine-In Item sold by Merchant via the Uber Eats App. Uber Canada will calculate the Dine-In Service Fee as follows: the Retail Price of the Dine-In Item(s) sold by Merchant via the Uber Eats App (excluding any Sales Tax) (the Retail Price (including Sales Tax), the “Dine-In Item Payment”) multiplied by the Dine-In Service Fee percentage. The Dine-In Service Fee shall be exclusive of any Sales Tax.
b. Revenue Transfer. Uber Canada and/or its Affiliates will transfer to Merchant the total (i) Dine-In Item Payment earned by Merchant; (ii) gratuity paid by a Customer in respect of any Dine-In Items, if applicable, (iv) less (1) the Dine-In Service Fee and (2) any refunds given on behalf of Merchant to Customers (such final transferred amount being the "Dine-In Item Revenue"). The Dine-In Item Revenue will be transferred on a weekly basis or otherwise, on a more or less frequent basis, if and as agreed to by the parties.
WEBSHOP ONLINE ORDERING
The following Specific Supplemental Terms govern the Online Ordering Method and Items provided to Customers via an Online Ordering Method ("Online Order Items"). All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.
1. Online Order Items. Upon Merchant agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Online Ordering Methods, and contingent upon completion of any additional verification steps, Uber will provide Merchant with a hyperlink to embed in the Merchant Marketplaces that will allow Customers visiting Merchant Marketplaces to browse Merchant’s menu and place order(s) for Items either for: (a) delivery to such Customer by a Marketplace Delivery Person; (b) delivery to such Customer by a Merchant Managed Delivery Person; or (c) pick up by such Customer at Merchant’s location during its normal business hours. . Merchant agrees that the suite of Items Merchant makes available via Merchant Marketplaces shall be the same Items and the same prices Merchant makes available via the Uber Eats App.
2. Payment.
a. Online Order Service Fee. In consideration for the Uber Eats Services in connection with an Online Ordering Method, Uber Canada will charge Merchant the Online Order Services Fee. Uber will calculate the Online Order Service Fee as follows: the Retail Price of the Item(s) sold by Merchant via an Online Ordering Method (excluding any Sales Tax) multiplied by the Online Order Service Fee percentage (the Retail Price of the Online Order Item(s) (including Sales Tax), the “Online Order Item Payment”). The Online Order Service Fee shall be exclusive of any Sales Tax.
b. Revenue Transfer. Uber Canada and/or its Affiliates will transfer to Merchant the total (i) Online Order Item Payment earned by Merchant; (iv) less (1) the Online Order Service Fee and (2) any refunds given on behalf of Merchant to Customers (such final transferred amount being the "Online Order Item Revenue"). The Online Order Item Revenue will be transferred on a weekly basis or otherwise, on a more or less frequent basis, if and as agreed to by the parties.
SPONSORED LISTING TERMS
The following Specific Supplemental Terms govern your ability to use Ads Manager to create Campaign(s) and submit Bid(s) for the opportunity to obtain a Sponsored Listing (as defined below) on the Uber Eats App. All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms. In the event of any conflict between these Sponsored Listing Terms and the Agreement, these Sponsored Listing Terms shall govern as applied to the subject matter herein.
By submitting a Bid you are accepting and agree to be bound by these Sponsored Listing Terms at all times when using the Ads Manager to create Campaigns , submit Bids and in with respect to all Sponsored Listings and Sponsored Listing Fees.
1. Sponsored Listings. Subject to these terms and conditions, Uber may make available to you, from time to time, the Ads Manager, an Uber Tool within which you and your Representatives may submit Bid(s), by creating a Campaign. Only a Winning Bid will result in a Sponsored Listing. Each Sponsored Listing will: (a) if and as may be determined by Uber in its sole discretion, include some indicator that the Sponsored Listing was purchased by you, such as by placing a “promoted” or “sponsored” tag visible on the Sponsored Listing; (b) be placed on the Uber Eats App in a position determined by Ubr, or, if applicable, as selected by you, if such option is available; and (c) be assembled and formatted using the Merchant Content (as defined below). For the purpose of clarity, a Sponsored Listing may be posted anytime after a Winning Bid is selected and will continue to be visible until either (i) the Campaign budget is exhausted, (ii) Uber removes the Sponsored Listing for any reason permitted by these Sponsored Listing Terms, or (iii) until you cancel the Campaign in accordance with Section 6.
2. Creating Campaigns. Uber hereby authorizes you and your Representatives to create and manage Campaigns using the Ads Manager, provided that Ubrt may, in its sole discretion, limit (i) your access to the Ads Manager, (ii) the number of Campaigns, Bids or Sponsored Listings that you can create or run at a given time, and (iii) the availability of any or all of the Sponsored Listings (for example, to listings from certain categories or containing certain attributes).
a. Uber created Bids.
In addition to or supplemental to your access to the Ads Manager, you agree that if you or a Representative requests that Uber create a Campaign, then, prior the creation of such Campaign or the submission of such Bid, you or your Representative, as applicable, will provide email authorization to Uber’s representative, outlining all relevant details of the Campaign, including the applicable Merchant locations, recurring budget, the type of Bid (automatic vs custom), the Bid amount (if relevant) and confirmation of the requestor’s authority to create the Campaign on your behalf.
b. Self-Serve Ads Manager.
Your ability and authorization to access the Ads Manager to create, edit, manage or cancel your Campaigns, Bids and Sponsored Listings is subject to such the Ads Manager functionality and technical capability. You agree to only use and access the Ads Manager within its functionality and technical capability, recognize that such tool is proprietary to Uber and will not circumvent or otherwise exploit the tool in any way that is not intended or outlined under these Sponsored Listing Terms.
c. Authorization of Spending.
Upon the creation of a Campaign, you agree that you will be obligated to spend the authorized budget amount.
d. Content for Sponsored Listings.
The content included in the Sponsored Listing will be the Merchant Content. Uber will determine the size, placement, and positioning of your Sponsored Listings and you acknowledge that any Sponsored Listings shown to you for illustrative purposes, in preview or surfaced prior may be modified in Uber’s sole discretion.
3. Your Responsibilities. You will be solely responsible for the Sponsored Listing Fees (as defined below), whether a Campaign was created or a Bid was submitted by you or another Representative. Notwithstanding anything to the contrary in your Agreement, you acknowledge and agree that you will not be able to terminate your relationship with Uber until the end of a Sponsored Listing, including by terminating the Agreement. You agree to validate and authorize all Representatives to create Campaigns and submit Bids prior to providing them with access to Ads Manager. 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. Uber 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, Uber 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 Campaign,any parameters set by Uber in its 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 the applicable Winning Bid (“Sponsored Listing Fees”). The Sponsored Listing Fees are exclusive of applicable Sales Tax and you agree to pay the Sponsored Listing Fees and any Sales Tax. Uber Canada 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). Uber reserves the right to set a maximum spend threshold for any individual ad campaign or set of campaigns.
a. Invoicing and Payment Schedule.
Unless you notify Uber Canada otherwise, you agree that Uber Canada may deduct the Sponsored Listing Fees and any applicable Sales Tax from any payment due to you, via a deduction from the remittance of Item Revenue collected on your behalf pursuant to your Agreement. Further, if the Sponsored Listing Fees and any applicable Sales Tax exceed the Item Revenue collected on your behalf, Uber Canada may continue to deduct such Sponsored Listing Fees and any applicable Sales Tax from the subsequent collection of Item Revenues on your behalf, until such time when the Sponsored Listing Fees and any applicable Sales Tax are paid in full.
If you do not currently receive a remittance of Item Revenue (collected on each Merchant’s behalf) from Uber Canada, provide 3 days notice to Uber Canada (inclusive of the necessary billing details) and if approved by Uber Canada, the Sponsored Listing Fees and any applicable Sales Tax shall be due and payable within thirty (30) days of your receipt of a proper invoice from Uber Canada (or an affiliate on Uber Canada’s behalf).
Subject to the foregoing, Uber Canada 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. Uber Canada reserves the right to offer credits and/or discounts in its sole discretion. Uber Canada and its 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 you by any lawful collection methods available. Any disputes about Sponsored Listing Fees must be submitted to Uber Canada in writing within seven (7) days of the date you incurred the charge in dispute, after such time you will be deemed to have waived your right to dispute the charge and such charge will be final and not subject to challenge.
b. Charged per Click.
The Sponsored Listing Fees you incur will be based on the actual number of clicks on your Sponsored Listing at the rate determined for the applicable Winning Bid. You understand that third parties may generate impressions or clicks on your Sponsored Listings for unintended purposes and you acknowledge and agree that you may still be charged for such clicks.
6. Termination. You may cancel a Campaign and the associated Bid(s) at any time, provided, however, that your Sponsored Listing(s) may run up to three (3) business days after such cancellation. You will be responsible for the Sponsored Listing Fees until your Sponsored Listing(s) are removed from the Uber Eats App. Upon cancellation of a Campaign, these Sponsored Listing Terms shall automatically terminate with respect to such canceled Campaign only (and not with respect to any other active Campaigns), and shall not terminate your Agreement, unless you cancel all outstanding Campaigns and also your Agreement in accordance with the terms of such Agreement. Termination of your Agreement will automatically result in termination of these Sponsored Listing Terms, which shall take effect only after the Sponsored Listing(s) have been removed from the Uber Eats App. Notwithstanding the foregoing, the termination of these Sponsored Listing Terms or the Agreement will not relieve you of your obligation to pay any Sponsored Listing Fees that are outstanding at the time of such termination.
7. Data. Uber and its affiliate(s) shall grant you a limited, exclusive, revocable, royalty-free license to access certain aggregated analytics and reporting related to such Sponsored Listings through the Ads Manager. 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.
9. Testing. You authorize Ubre and its affiliates to periodically conduct tests that may affect your access to or use of the Ads Manager, as well as your ability to create Campaigns, submit Bids and/or 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 Uber 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) in connection with the Sponsored Listing, including the existence and structure of the Uber’s Sponsored Listing offerings, are confidential and should be handled in accordance with the confidentiality obligations in this agreement.
11. Other. Uber reserves the right, at any time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the ability for Merchant to create Campaigns, place Bids, and/or surface Sponsored Listings with or without notice. You agree that neither Uber 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 the ability to by other means create Campaigns, place Bids and/or surface Sponsored Listings. Except as specifically amended by these Sponsored Listing Terms, the terms and conditions of this agreement and any amendments thereto shall remain in full force and effect.
ADDENDUM A
UBER DATA PROCESSING AGREEMENT
This Data Processing Agreement (the “Agreement”) forms part of the Uber Eats Services Agreement (including the Order Form, Definitions, General Supplemental Terms and Specific Supplemental Terms) between Uber and Merchant and all further agreements executed under it (collectively, the “Main Agreement(s)”).
DEFINITIONS
The following terms shall have the following meanings. Capitalized terms not defined herein shall have the same meaning set forth in the Main Agreement(s).
a. “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a Party.
c. “Data Protection Law” means all laws and regulations applicable to the Processing of Uber Personal Data under the Agreement.
d. “Data Subject” means an identified or identifiable natural person.
e. “Personal Data” shall mean “personal data,” “personal information,” or equivalents as defined in applicable Data Protection Laws. In the absence of applicable Data Protection Laws, “Personal data” shall mean any information relating, directly or indirectly, to an identified or identifiable natural person.
f. “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.
g. “Services” means the services provided or received by the parties pursuant to the Main Agreement.
h. “Sub-processor” means a person or entity that processes Uber Personal Data on behalf of Merchant.
i. “Uber Personal Data” means Personal Data that is Processed by Merchant for the purpose of rendering Services for Uber or any Uber Affiliate. For purposes of this Agreement, Uber Personal Data does not include the name and contact information of those Uber employees who are responsible for interacting with Merchant in connection with its performance of the services under the Main Agreement, and any Personal Data incidentally received by Merchant in connection with those interactions.
1. GENERAL TERMS
1.1. Uber Personal Data Processing
1.1.1. Limitations and Prohibitions.
1.1.1.1. Merchant shall only Process Uber Personal Data for the purpose of performing the Services specified in the Main Agreement, and may not use Uber Personal Data for any other purpose unless otherwise agreed by the Parties in writing.
1.1.1.2. Merchant shall (1) limit access to Uber Personal Data to only those employees or agents that require access to perform their roles and responsibilities in connection with the Services, and (2) under no circumstances rent, sell or disclose Uber Personal Data, except as otherwise allowed under this Agreement or the Main Agreement.
1.1.1.3. Merchant will not combine Uber Personal Data with data from any other source, company, organization or entity, unless necessary to provide the Services. Merchant will not copy or reproduce Uber Personal Data for its own purposes or those of any Sub-processor or other third party.
1.1.2. Data Retention and Deletion
1.1.2.1. Merchant shall retain Uber Personal Data for only so long as necessary to perform its obligations under the Main Agreement(s), unless otherwise required under Applicable Law.
1.1.2.2. Upon termination or expiration of the Main Agreement(s) or earlier as requested by Uber, Merchant shall destroy or return to Uber (at Uber’s election) all Uber Personal Data in its possession, custody and control, except for such Personal Data as must be retained under Applicable Law (which Merchant shall destroy once it is no longer required under Applicable Law to retain). At Uber’s request, Merchant shall provide Uber with a written log evidencing the destruction and any retention of Uber Personal Data.
1.1.3. Data Security Incidents
1.1.3.1. Notice to Uber. Merchant shall notify Uber within twenty-four (24) hours of discovery of an actual or suspected unauthorized access to, acquisition or disclosure of Uber Personal Data, or other actual or suspected breach of security or confidentiality with respect to Uber Personal Data in Merchant’s or its representatives’ control or possession (a “Data Security Incident”).
1.1.3.2. Third Party Notices. If a Data Security Incident requires notice to any regulator, Data Subject or other third party: (1) Uber shall have sole control over the content, timing and method of distribution of any needed notice, unless otherwise required by Applicable Law; (2) Merchant may notify the affected parties only upon Uber’s prior written approval and instructions, unless otherwise required by Applicable Law; and (3) Merchant shall reimburse Uber all reasonable expenses incurred by Uber in connection with any notice with respect to any breach of security or confidentiality for which Merchant is wholly or partially responsible.
1.2. Indemnification. In addition to the terms set forth in the Main Agreement(s), Merchant agrees to fully indemnify, defend and hold harmless Uber, its directors, officers, employees and agents from and against any and all losses, damages, fees and expenses arising from any claims due to, arising out of, or relating in any way to Merchant’s loss, alteration, or misuse of Uber Personal Data, or unauthorized access to or destruction or disclosure of Uber Personal Data.
2. PROCESSOR TERMS
2.1. Compliance with Uber instructions and applicable laws. In connection with its Processing of Uber Personal Data, Merchant shall at all times comply with Uber’s written instructions pursuant the Main Agreement(s) and all applicable laws, rules and regulations, including but not limited to, all applicable Data Protection Law.
2.2. Internal Audits. Upon written request, Merchant shall provide, at its own expense, if available, any data security compliance reports or audit reports that assess the effectiveness of Merchant’s information security program, system(s), internal controls, and procedures relating to the Processing of Uber Personal Data (e.g., SSAE16, SOC report or other).
2.3. Uber Audits. Upon reasonable advance written notice, Uber may (not more than once per year) during normal business hours and at its own expense, audit Merchant’s facilities, networks, systems, procedures, Processing and maintenance of Uber Personal Data, and compliance with this Agreement. Notwithstanding the foregoing, Uber shall be permitted to exercise such audit right any time a Data Security Incident has occurred. Merchant shall reasonably cooperate with such audit by providing access to knowledgeable personnel, physical premises as applicable, documentation, infrastructure, and any application software that Processes Uber Confidential Information and/or Uber Personal Data or otherwise has access to Uber’s networks and systems. Uber shall be responsible for its costs and expenses of such audit (or the fees and costs of the third party performing the audit), unless such audit reveals a material breach of the Main Agreement(s) including this Agreement, in which case Merchant will reimburse Uber for such costs and expenses. Merchant will promptly address and correct all deficiencies identified in any such audit.
2.4. Requests or Demands from Governmental or Regulatory Bodies. Merchant shall inform Uber as soon as possible if it receives a request or demand from a governmental or regulatory body with authority over Merchant or Uber relating to Merchant’s Processing of Uber Personal Data, and shall fully cooperate with Uber in connection with such investigation or audit.
2.5. Data Subject Rights. If Merchant receives a request from an Uber Data Subject relating to their Uber Personal Data, Merchant shall immediately forward the request to Uber and provide all reasonable cooperation necessary to fulfill the Uber Data Subject’s request in compliance with Applicable Law.
2.6. Sub-processors
2.6.1. Prior written consent. Merchant will not permit any Sub-processor to Process Uber Personal Data, unless Merchant and the Sub-processor have entered into an agreement that imposes obligations on the Sub-processor that are no less restrictive and at least equally protective of Uber Personal Data than those imposed on Merchant under this Agreement. Uber may request a copy of such agreement between Merchant and any Sub-processor, and may withhold consent to the use of such Sub-Processor if Merchant does not provide such agreement or such agreement does not contain sufficient protection of Uber Personal Data.
2.6.2. Compliance with Data Protection Law. Merchant is responsible for ensuring the compliance of Sub-processors with applicable Data Protection Law in connection with the Processing of Uber Personal Data.
2.6.3. Liability. Merchant’s use of Sub-processors does not affect or limit Merchant’s liability under this Agreement.
2.7. Termination and Survival. This Agreement and all provisions herein shall survive so long as, and to the extent that, Merchant Processes or retains Uber Personal Data.
3. SECURITY MEASURES
3.1. Organizational Security Measures.
3.1.1. Security Program. Merchant has developed and implemented, and will consistently update and maintain as needed: (i) a written and comprehensive information security program in compliance with applicable Data Protection Law; and (ii) reasonable policies and procedures designed to detect, prevent, and mitigate the risk of data security breaches or identify theft (“Security Program”). Specifically, the Security Program shall include, at a minimum:
3.1.1.1. a data loss prevention program, with appropriate policies and/or technological controls designed to prevent loss of Uber Personal Data; and
3.1.1.2. a disaster recovery/business continuity plan that addresses ongoing access, maintenance and storage of Uber Personal Data as well as security needs for back-up sites and alternate communication networks.
3.1.2. Access.
3.1.2.1. Merchant shall reasonably update all access rights based on personnel or computer system changes, and shall periodically review all access rights at an appropriate frequency to ensure current access rights to Uber Personal Data are appropriate and no greater than are required for an individual to perform his or her functions necessary to fulfill the purposes of the Agreement.
3.1.2.2. Merchant shall verify all access rights through effective authentication methods.
3.2. Physical Security Measures. Merchant shall maintain appropriate physical security measures for any facility used to Process Uber Personal Information and continually monitor any changes to the physical infrastructure, business, and known threats.
3.3. Technical Security Measures
3.3.1. Vulnerability scanning and assessments. Merchant shall perform vulnerability scanning and assessments on new and key applications and infrastructure.
3.3.2. Access Control and Limiting Remote Access. Merchant shall secure its computer networks using multiple layers of access controls to protect against unauthorized access.
3.3.2.1. Merchant shall restrict access through mechanisms such as, but not limited to, management approvals, robust controls, logging, and monitoring access events and subsequent audits.
3.3.2.2. Merchant shall identify computer systems and applications that warrant security event monitoring and logging, and reasonably maintain and analyze log files.
3.3.3. Encryption. Merchant shall encrypt all Uber Personal Data in its possession, custody or control while in transit.
3.3.4. Security Patches. Merchant shall deploy all applicable and necessary system security patches to all software and systems that Process, store, or otherwise support the Agreement.
3.3.5. Virus/Malware Scanning. Merchant shall use up-to-date, industry standard, commercial virus/malware scanning software that identifies malicious code on all of its systems that collect, use, disclose, store, retain or otherwise Process Uber Personal Data.
4. MISCELLANEOUS
4.1. Termination and Survival. This Agreement and all provisions herein shall survive so long as, and to the extent that, Merchant Processes or retains Uber Personal Data.
4.2. Counterparts. This Agreement may be executed in any number of counterparts and any party (including any duly authorized representative of a party) may enter into this Agreement by executing a counterpart.
4.3. Ineffective clause. If individual provisions of this Agreement are or become ineffective, the effectiveness of the remaining provisions shall not be affected. The parties shall replace the ineffective clause with a legally allowed clause, which will accomplish the intended commercial intention as closely as possible.
4.4. Conflict. In case of contradictions between this Agreement and the provisions of the Main Agreement, the provisions of this Agreement shall prevail.
4.5. Applicable law and jurisdiction. The applicable law and jurisdiction as set forth in the Main Agreement apply to this Agreement.
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