Uber Eats Puerto Rico Merchant Terms and Conditions and Addendums

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER FORM OR ADDENDUM THAT REFERENCES THESE TERMS, MERCHANT AGREES TO THE TERMS OF THIS AGREEMENT.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “MERCHANT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT THE PARTIES HAVE AGAINST EACH OTHER ARE RESOLVED. INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.

Uber Eats Merchant Promotion Terms and Conditions

Uber Eats Sponsored Listing Terms

1. GENERAL.

These Uber Eats Merchant Terms and Conditions ("Terms") are hereby accepted and agreed to by the company identified within the Uber Eats sign-up process ("Merchant or “You"), and constitute a legally binding agreement by and between Merchant and Portier LLC (“Portier” or “Company” which is a wholly owned subsidiary of Uber Technologies, Inc. (“Uber”)). Upon acceptance of these Terms, Merchant may request access to the Marketplace, Non-Delivery, or Merchant Managed Delivery Sales Channels (each a “Sales Channel” as described in more detail herein) and/or product services such as Promotions Tools. Such request shall indicate Merchant’s acceptance of any applicable Sales Channel terms (each a “Sales Channel Addendum”) and/or terms for additional product services (a “Product Addendum”). These Terms may be subject to and/or incorporate the Uber Eats Order Form (“Order Form”), and/or applicable Product or Sales Channel Addenda (these Terms and any such Order Form or any such Addendum collectively, the “Agreement”). Merchant’s access to and use of the Eats Services and Uber Tools (as defined below) is subject to the Agreement and may be modified or updated by Portier/Uber from time to time, effective upon posting an updated version of these Terms and/or an applicable Product or Sales Channel Addendum on the Uber website. Merchant is responsible for updating contact information and regularly reviewing the Terms and any applicable Product or Sales Channel Addendum for updates and information from Portier/Uber. Continued use of the Eats Services after any such modifications or updates shall constitute Merchant’s consent to such changes. Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings ascribed to such terms in the applicable Order Form, Product or Sales Channel Addendum.

2. SERVICES.

2.1 Items and Services.

Portier and its affiliates make available certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders for food, beverages and other products (“Items”) from Merchant to Customers (as defined below), including on-demand lead generation, payment processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (“Eats Services”).

2.2 Merchant Technology.

In connection with the Eats Services, Portier and its affiliates may also make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Eats Services (collectively, the “Uber Tools”), which may include Portier’s and its affiliates’ proprietary technology platform referred to as Restaurant Manager, through which insights and analytics regarding Merchant’s performance and history using the Eats Services are provided, and Portier and its affiliates’ proprietary technology platform referred to as Restaurant Dashboard, through which Merchant may, among other things, receive, accept and fulfill requests for Items from Customers.

2.3 Eats App.

Portier and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase Items from Merchant and request delivery services for said Items from Delivery Partners (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers (“Eats App”). Delivery Partners are independent contractors, and as such, they reserve the right to refuse to accept any Item in their sole discretion.

2.4 Sales Channels.

Merchant may request access to sell and deliver Items via various services provided by Portier: Marketplace, Non-Delivery, and Merchant Managed Delivery (each, a “Sales Channel” described in more detail below). By electing to use a Sales Channel, Merchant agrees to accept any relevant Sales Channel Addenda as follows:

i) MARKETPLACE: Merchant may sell Items through the “Marketplace Sales Channel,” whereby Merchant’s Items are presented in the Eats App to Customers who access and request on-demand delivery services provided by Delivery Partners as defined herein.

ii) NON-DELIVERY: Merchant may sell Items through the “Non-Delivery Sales Channel,” whereby Merchant’s Items are presented on the Eats App to Customers for pick-up at Merchant’s Location (i.e., without the use of a Delivery Partner). For the avoidance of doubt, the provisions relating to Delivery Partners in the Terms will not apply to the sale of Items through this Non-Delivery Sales Channel.

iii) MERCHANT MANAGED DELIVERY: Merchant may sell Items through the “Merchant Managed Delivery Channel,” whereby Merchant’s Items are presented on the Eats App to Customers who access and request on-demand delivery services provided by Merchant Managed Delivery Staff (i.e., employees, contractors, workers or agents of Merchant who provide delivery services on Merchant’s behalf, arranged independently of Portier). Additional Merchant Managed Delivery Sales Channel Addendum terms apply.

2.5 Product Services.

i) VIRTUAL STOREFRONT: Portier may provide Merchant with a separate and additional tile within the Uber Eats App (“Virtual Storefront”) through which Merchant may sell Special Items (as defined in the VS Product Addendum) to Customers. Additional Virtual Storefront Product Addendum terms apply.

ii) PROMOTIONS TOOLS: Portier may provide Merchant with additional tools and services whereby Merchant may create short-term Merchant offers that are designed and fulfilled by the Merchant to stimulate customer demand, including, without limitation, discounts and special offers, and displayed to customers. Additional Promotion Terms Product Addendum terms apply.

3. PORTIER OBLIGATIONS.

3.1 Eats Services.

Subject to the terms and conditions of this Agreement, Portier and its affiliates will make available the applicable Eats Services to Merchant, solely for use by Merchant at locations that are owned and operated by Merchant (each, a “Location”). Merchant shall provide Portier current and accurate Location information throughout the Term of this Agreement. In connection with the provision of Eats Services to Merchant, Portier and its affiliates, on behalf of Merchant, may respond to complaints by Merchant’s customers (“Customers”) about Items sold by Merchant via the Eats App. In addition, Portier may make available certain Uber Tools to Merchant, and Merchant may access and use those Uber Tools solely in connection with Merchant’s use of the Eats Services. For the avoidance of doubt, as between Merchant and Portier, Portier will retain sole and absolute control over the Eats App (and all elements of the user experience and user interface relating to the Eats App), including with respect to: (i) the personalization of the Eats App for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) the order fees charged to Customers for the delivery services provided by Delivery Partners; and (v) adding, removing or otherwise modifying any feature or functionality made available through the Eats App to optimize reliability or efficiency on the Eats App.

3.2 Technology, Not Delivery Services.

Merchant agrees neither Portier nor its affiliates provide any delivery services. Rather, Portier provides technology services that both (i) enable Merchant to connect with Customers who may purchase Items from Merchant and (ii) enable Delivery Partners to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services. Delivery Partners perform their delivery services for (and are paid by) the Customers, and not Merchant. “Delivery Partner” is defined as an independent contractor that intends to seek, receive and fulfill on-demand requests for delivery services using Portier’s proprietary technology under license from Portier or its affiliates.

4. MERCHANT OBLIGATIONS.

4.1 Availability of Items.

Merchant will make Items available for purchase through the Eats App (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Merchant will prepare, handle and store all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If Merchant fails to prepare Items in accordance with Food Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), Portier may, in its sole discretion, remove such Item from the Eats App. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the Eats App. Merchant represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the Eats App is, and at all times will remain, accurate. In addition, Merchant will ensure that the contents of its menu (including any notifications about ingredients, nutritional information, allergen information, etc.) are accurate and comply with all applicable laws and regulations.

4.2 Item Responsibility.

Merchant acknowledges and agrees that neither Portier nor the Delivery Partner takes title to any Item at any time. Notwithstanding, Merchant shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Merchant’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Merchant’s internal standards. Portier may, in its sole discretion, deduct reimbursement costs from the payment Portier remits to Merchant in accordance with this Section 4. To the extent required by applicable law, and only for the purpose of the expedited provision of Items, Items are sold to Customers under Merchant’s retail and food delivery license privileges.

4.3 Devices.

If Portier supplies a tablet or other mobile device (“Device”) to Merchant to use in connection with the availability of Items via the Eats App, Merchant agrees that: (i) Device(s) may only be used for the purpose of accepting orders via the Eats App, and (ii) Device(s) may not be transferred, loaned, sold or otherwise provided in any manner to any third party. Devices(s) will at all times remain the property of Portier and/or its affiliates, and upon expiration or termination of the Agreement, or the extended absence of all of Merchant’s location(s) from the Eats App for longer than forty-five (45) days, Merchant will return all applicable Device(s) to Portier within ten (10) days. If Merchant receives a wireless data plan for the Device, Portier may require a weekly reimbursement Merchant for the costs associated with the wireless data plan of each applicable Device. 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, may result in a fee (“Damage Fee”). Merchant agrees that Portier may deduct the reimbursement or Damage Fee from the Item Revenue prior to remittance of such Item Revenue to Merchant.

4.4 Restrictions.

In connection with the access to and use of the Eats Services and Uber Tools, Merchant will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Eats Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) 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 Tools or Eats Services (except as otherwise authorized by Portier); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department's Office of Foreign Assets Control, or any other government agency. Merchant will not (and will not allow any third party to) use the Eats Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the Eats App to directly or indirectly compete with Portier or its affiliates or the Eats Services. Furthermore, orders cannot weigh (in the aggregate) more than 30 pounds. The following restricted Items may not be featured or sold via the Eats App: people or animals of any size, illegal items, alcohol, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, Items containing endangered species or any items that Merchant does not have permission to send.

4.5 Gratuities.

For the sale of Items via the Non-Delivery and Merchant Managed Delivery Sales Channels, unless otherwise selected by Merchant, Merchant agrees to allow Customers to provide gratuities through the Uber Eats App. Portier shall remit to Merchant the full value of any gratuities provided by Customers. It is the sole responsibility of the Merchant to comply with all applicable laws (including tax, gratuity, social security and employment laws where applicable) regarding the distribution of any gratuities.

5. FEES AND TAXES.

5.1 Fees; Calculation.

For each Item sold by Merchant via the Eats App, Merchant will pay Portier as follows: the Retail Price (as defined below) of all Items that Merchant sells via the Eats App (excluding any Sales Tax collected on Merchant’s behalf) multiplied by the applicable fee percentage for the Sales Channel used to sell each such Item (“Fee”). The Fee does not include any applicable taxes or other fees. Portier will remit to Merchant the total Retail Price collected for all Items Merchant sells via the Eats App (including any Sales Tax and other fees collected on its behalf) less: (a) the applicable retained Fee; and (b) any refunds given to Customers (such final remitted amount being “Item Revenue”). All Item Revenue that is duly owed to Merchant will be remitted within fourteen (14) business days of the sale of the Item. Subject to the foregoing, Portier will typically make such payment on a weekly basis.

Unless otherwise agreed to by the parties, the Fee shall be calculated as follows:

i) MARKETPLACE SALES CHANNEL: Portier will charge Merchant a fee percentage of 30% for each Item sold via the Uber Eats App through the Marketplace Sales Channel.

ii) NON-DELIVERY SALES CHANNEL: Until December 31, 2019 (the “Non-Delivery Promotional Period”) Portier will charge Merchant a fee percentage of 0% or each Item sold via the Uber Eats App through this Sales Channel. Upon expiration of the Non-Delivery Promotional Period, the Fee shall be 15% (beginning January 1, 2020).

iii) MERCHANT MANAGED DELIVERY SALES CHANNEL: Portier will charge Merchant a fee percentage of 15% for each Item sold via the Uber Eats App through the Merchant Managed Delivery Sales Channel. Further, Portier will charge Merchant a Fee of 30% for each Item sold via the Uber Eats App through the Marketplace Sales Channel.

All Fees under this Agreement will be paid in U.S. Dollars. Portier or its affiliates will deduct the Fee from the payment Portier collects on Merchant’s behalf, as detailed in Section 5.3 below. Portier reserves the right to suspend Merchant’s ability to make Items available for purchase by Customers through the Eats App if Merchant’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if a Delivery Partner is unable to complete the delivery of such Item. Except as may be expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement.

5.2 Activation Fee.

Unless otherwise agreed to by the Parties, in consideration of Portier’s work to activate Merchant on the Uber Eats App, Merchant will pay to Portier a Fee of $350.00 ("Activation Fee"). Merchant agrees that Portier may deduct the Activation Fee from Merchant's Item Revenue.

5.3 Retail Prices; Taxes; Other Fees; Pricing.

Merchant is responsible for determining and setting the retail price for each Item to be made available for sale via the Eats App (“Retail Price”). Merchant is the “retailer” or “seller” of all Items and is solely responsible for the collection and remittance of all applicable Sales Taxes and other fees. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, Item taxes and similar transaction taxes. For the sake of clarity, the Retail Price for each Item excludes Sales Tax or any other fees. Merchant is solely responsible for determining all applicable Sales Tax and other fees and identifying and informing Portier of the appropriate Sales Tax and other fee amount for Portier to charge Customers on Merchant’s behalf for Items available on the Eats App. To the extent that applicable Sales Tax and other fees are not determined by Merchant, Merchant expressly authorizes Portier to make such determination on its behalf and Merchant hereby acknowledges and agrees that Portier will have no liability for the accuracy of any such determination. Further, Merchant expressly authorizes Portier, at Merchant’s direction, to collect such Sales Taxes and other fees on Merchant’s behalf. “Marketplace Facilitator” laws may require Portier to collect and remit Sales Taxes directly to the taxing authority. In jurisdictions with Marketplace Facilitator laws in effect (each a “Marketplace Facilitator Jurisdiction” beginning the effective date of such legislation), Portier may determine, as of a date specified by Portier, the amount of applicable Sales Tax which Portier will collect and remit to the taxing authority based on Item descriptions provided by Merchant.

Notwithstanding anything to the contrary in this Section 5, Merchant may not make any Item available to Customers through the Eats App at a price that is higher than the price that Merchant charges in-store for similar Items. Merchant agrees that you will not make an Item available under this Agreement at a price higher than the amount Merchant is charging for similar Items through any comparable platform for food delivery services.

5.4 Appointment of Limited Payment Collection Agent.

Merchant is solely responsible for providing Portier with, and maintaining, accurate bank account information. Merchant hereby appoints Portier and its affiliates, as the case may be, as Merchant’s limited payment collection agent solely for the purpose of: (i) accepting payment of the Retail Price of Items sold by Merchant via the Eats App plus any applicable Sales Tax and other fees collected on Merchant’s behalf, via the payment processing functionality facilitated by the Uber Tools, (ii) adjusting Sales Tax and other fees charged if determined by Portier to be necessary in accordance with state and local compliance obligations of Merchants, and (iii) remitting the Item Revenue. Notwithstanding the foregoing, in Marketplace Facilitator Jurisdictions, Portier may collect and remit Sales Tax directly to the relevant taxing authority in accordance with applicable law. Further, Merchant agrees that payment collected on its behalf by Portier or its affiliates will be considered the same as payment made directly to Merchant. Merchant agrees that if Merchant does not receive payment from Portier or its affiliates, Merchant’s only recourse will be against Portier and its affiliates. Portier and 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 remitting any amounts to Merchant and may refuse to process amounts owed to Merchant if there exists a legal or regulatory risk or potential breach of law or regulation associated with such remittance to Merchant. Merchant agrees that Portier and its affiliates may describe or otherwise reflect the terms of this Section, and any related portions of the Agreement, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent. If reasonable, Portier may adjust the remittance of Item Revenue collected on Merchant’s behalf for reasons including failure to fulfill an Item as ordered or making a correction on an Item. Merchant may identify any disagreements in connection with such adjustments through the Uber Tools. Portier and its affiliates reserve the right to collect any amounts in connection with such adjustments via a deduction from the remittance of Item Revenue collected on Merchant’s behalf, by debiting the payment method or Merchant’s bank account on record, or otherwise seeking reimbursement from Merchant by any lawful collection methods available. Merchant authorizes Portier and its affiliates to use any or all of the above methods to seek such adjustments and reimbursements. In more serious situations, such as fraud (including any charges for Items that Customers did not place) or Customer complaints, Portier and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Merchant gives Portier and its affiliates express consent to adjust payments collected on Merchant’s behalf as set forth in this Section.

6. REPORTING.

Portier may provide Merchant aggregate information regarding the number of Items picked up by Delivery Partners and sold by Merchant to Customers pursuant to an Agreement. Portier will also provide reasonable information regarding any refunds given to Customers, including the date of the transaction, the Item ordered, the reason for the refund and any other information Portier is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that Portier may share Merchant’s transactional data regarding ordered meals, including sales data, with Merchant’s parent company.

7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES.

7.1 Marks.

Subject to this Agreement, each party hereby grants to the other party (and, in the case of Portier, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, on a royalty-free basis, in connection with the activities related to this Agreement or any other activities relating to the Eats Services. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of 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 (by email is sufficient). For the avoidance of doubt, however, any use or display of Merchant’s Marks by Portier or its affiliates in connection with making Items available through the Eats App in the ordinary course of business will not require any such prior, express, written consent. Merchant further agrees that any use or display of Portier’s Marks will conform to the current version of Uber Eat’s Brand Guidelines, which can be found at: https://brand.uber.com/guide#logo-overview . All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of 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. Without limiting anything in the Agreement, Merchant represents and warrants that Merchant’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Merchant agrees that Portier or its affiliates may remove Merchant’s Marks from the Eats App if Portier or its affiliates receive notice or otherwise reasonably believe that such Merchant’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

7.2 No Development.

EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between Uber and Company prior to the commencement of any such activities.

7.3 Marketing.

Portier and its affiliates may showcase the availability of Merchant’s Items via the Eats App through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). Portier (or a party designated by Portier acting on Portier’s behalf) may take video and still images for marketing and other efforts related to the Eats App (“Eats Photographs”). Merchant agrees that Eats Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of Portier or its affiliates. Additionally, Merchant may provide videos, still image or other materials to Portier or its affiliates (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the Eats App or the marketing and promotion of Uber Eats and the availability of your Items via the Eats App. Merchant hereby grants Portier and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Eats Services. 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 Portier to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that Portier or its affiliates may remove Merchant Marketing Materials from the Eats App if Portier 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.

7.4 Promotions.

“Promotion(s)” means short-term offers that are available through the Eats App to stimulate Customer demand. When a Promotion is successfully applied to an order, Merchant authorizes Portier to charge Customers for the post-Promotional value of an Item (not including taxes and applicable fees). Subject to Eats App functionality, Portier may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Promotion.

i) Merchant Promotion(s). Subject to any other guidelines or eligibility criteria for Promotions that Portier may make available from time to time, Portier hereby authorizes Merchant to create Promotions that are designed and fulfilled by Merchant (“Merchant Promotion(s)”). Unless otherwise specified by Portier, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by Portier) either through the use of the Promotion Tool (as defined below) or through the Promotion Schedule (as defined below).

1. Portier authorizes Merchant to use Portier’s proprietary, automated, self-service tool located within the Uber Tools to create Promotions (“Promotion Tool”), subject to such Promotion Tool’s functionality and technical capability. If provided access to the Promotion Tool, Merchant agrees to only use and access such Promotion Tool within its functionality and technical capability and shall not circumvent or otherwise exploit the tool in such a way that is not intended.
2. Merchant may create a Merchant Promotion by completing and providing Portier with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to Portier by Merchant, Merchant will have a specified time period to confirm such Promotion Schedule prior to the Promotion being offered and such confirmation will constitute an agreement with Portier under the terms of this Agreement. To request a form Promotion Schedule, Merchant should contact its customer support representative.

ii) Co-Funded Promotion(s). From time to time, Portier may agree to fund a portion of Merchant’s Promotion (each, a “Co-Funded Promotion”). For each such Co-Funded Promotion, the parties shall agree to an applicable written Promotion Schedule setting forth: (1) a description of the Co-Funded Promotion; (2) the obligations of each party in relation to such Co-Funded Promotion, including funding obligations; and (3) any other details regarding the Co-Funded Promotion. For the sake of clarity, if Merchant is the owner of Location(s), such Co-Funded Promotion shall appear to the Customer as a Merchant Promotion, and Portier shall issue an adjustment to Merchant’s payout (which shall also be reflected in any payout details report) to account for the amount of the Promotion that Portier has agreed to fund, such that the Merchant shall receive the same amount in their Item Revenue for such order as if a Portier-funded portion of the Promotion was not applied to such order.

iii). Parties’ Obligations. The parties’ obligations for each Promotion will include the following, but may be expanded upon in an applicable Promotion Schedule.

1) Merchant’s Obligations. Merchant will: (A) honor and fulfill the terms of Promotions offered by Merchant (solely or jointly with Portier) to Customers who have successfully completed their order through the Eats App; (B) be responsible for the fees associated with the Promotion up to the amount Merchant has agreed to fund for such Promotion; and (C) upon reasonable request, supply Portier with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Portier may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, Merchant acknowledges and agrees that Merchant will not be able to terminate the Agreement while a Promotion is live.

2) Portier’s Obligations. Portier will (A) honor and fulfill the terms of Promotions offered by Portier (solely or jointly with Merchant) to Customers who have successfully completed their order through the Eats App; (B) be responsible for the fees associated with the Promotion up to the amount Portier has agreed to fund such Promotion; (C) upon reasonable request, supply Merchant with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Merchant shall use to market such Promotion, provided that a Promotion Schedule authorizes Merchant to market such Promotion out of the Eats App; and (D) use good faith efforts to provide Merchant with reasonable information regarding Promotions, which may include, without limitation, the amount Merchant spent on Promotions and the number of Items sold in connection with Promotions.

iv) Fee on Promotion Orders. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Merchant Promotion or Co-Funded Promotion to an order through the Eats App, Fee shall be calculated based on the total Retail Value of the order minus the Merchant-funded portion of such Promotion applied to that order. For the sake of illustrative purposes, if Merchant and Portier each fund $1 of a $2 off Promotion (so the Co-Funded Promotion is funded 50% by each party) on a $10 pre-Promotion order total, the Fee shall be calculated on the post-Promotion amount of $9.

v) Out of Eats App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Merchant may not market or otherwise advertise a Promotion outside the Eats App. If a Promotion Schedule authorizes Merchant to market a Promotion out of the Eats App, all such marketing materials will be subject to Portier’s prior review and written approval, which shall not be unreasonably withheld.

7.5 Sponsored Listings

These Uber Eats Sponsored Listing Terms (“Sponsored Listing Terms”) are expressly incorporated into and made a part of your (“you”, or “Merchant”) Uber Eats Agreement (either an Order Form, a Master Framework Agreement or acceptance these Terms (the “Merchant Agreement”) with Portier, LLC or one of its affiliates (“Portier” or “Uber”)

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

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

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

1. Sponsored Listings.

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

2. Creating Campaigns.

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

a. Portier created Bids.

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

b. Self-Serve Ads Manager.

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

c. Authorization of Spending.

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

d. Content for Sponsored Listings.

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

3. Your Responsibilities.

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

4. Portier Responsibilities.

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

5. Fees.

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

a. Invoicing and Payment Schedule.

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

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

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

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

b. Charged per Click.

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

6. Termination.

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

7. Data.

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

8. Feedback

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

9. Testing

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

10. Confidentiality.

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

7.6 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.

8. PROPRIETARY INFORMATION; PERSONAL DATA; FEEDBACK.

8.1 Definition.

“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Merchant’s Items to Customers through the Eats App and the terms and conditions of this Agreement. Proprietary 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. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). 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 Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes Portier and its Affiliates to disclose the terms of this Agreement to Merchant’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary 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 and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.

8.2 Privacy.

Merchant agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of providing Items under this Agreement. Merchant will maintain the accuracy and integrity of any Personal Data provided by Portier and in Merchant’s possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by Portier solely by using the software and tools provided by Portier. “Personal Data” means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered “personal data” or “personal information” under the applicable law.

8.3 Passwords.

Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Uber Tools and related Eats Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.

8.4 Data Re-Identification Restriction.

Without limiting any other provision of this Agreement, including any provision in this Section 8, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including 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 any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.

8.5 Feedback.

Merchant may, but is not obligated to, provide or otherwise make available to Portier or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to Portier’s and its affiliate’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to Portier or its affiliates, Merchant hereby grants to Portier and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.

9. RATINGS.

Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the Eats App to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant and the relevant Item(s) on the Eats App (“Customer Feedback”). Portier and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of Portier and its affiliates without attribution to or approval of Merchant. Merchant acknowledges that Portier and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that Portier and its affiliates reserve 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 or other applicable laws, or Portier’s or its affiliates’ content policies.

10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

10.1 Representations and Warranties.

Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Merchant, all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Merchant further represents and warrants that to the extent Merchant has franchisees who participate in any activities under this Agreement, Merchant will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.

10.2 DISCLAIMER.

EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

11. INDEMNITY.

11.1 Indemnified Claims.

Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless Portier, its affiliates and 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 their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in this Agreement; or (iii) any claims that the Marks provided by the Indemnifying Partyinfringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the Portier Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Merchant’s failure to determine the applicable Sales Tax and other fees charged, except to the extent relating to sales in Marketplace Facilitator Jurisdictions; (C) Merchant’s failure to apply correct sales tax rates, including those rates adjusted by Portier on Merchants behalf, except to the extent relating to sales in Marketplace Facilitator Jurisdictions; (D) Merchant’s failure to provide accurate descriptions of Items in Marketplace Facilitator Jurisdictions; or (E) Sales Tax, other fees, penalties, interest and other costs related to Merchants obligations, except in the case of each of (A)-(E) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of Portier or its employees, agents or Delivery Partners.

11.2 Procedure.

We will provide you prompt written notice of any potential claim subject to indemnification hereunder. You will assume the defense of the claim through counsel you designate, however, such counsel must be reasonably acceptable to the Indemnified Party. You will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.

12. LIMITS OF LIABILITY.

EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF MERCHANT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $100,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.

13. INSURANCE.

During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate. In addition, Portier agrees to maintain Commercial Automobile Liability insurance with limits of 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 will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Such insurance will not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon a party’s request, the other party will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.

14. SUPPLEMENTAL TERMS.

Merchant will comply with the applicable then-current Community Guidelines, currently available at https://www.uber.com/legal/community-guidelines/us-en-uber-eats/ (“Community Guidelines”). In addition, supplemental terms may apply to Merchant’s use of the Eats Services and the Uber Tools, such as use policies or terms related to certain features and functionality, which may be modified from time to time (collectively, with the Community Guidelines, “Supplemental Terms”). Supplemental Terms are in addition to, and will be deemed a part of, the Agreement. Supplemental Terms will prevail over the Agreement in the event of a conflict. Portier will use good faith efforts to provide Merchant with written notice of any material updates to the Supplemental Terms, and, if Merchant does not agree to comply with the terms of any such update, Merchant may, as its sole and exclusive remedy, terminate this Agreement and cease use of the Eats Services and Uber Tools. By continuing to use the Eats Services or the Uber Tools, Merchant will be deemed to accept the Supplemental Terms. Notwithstanding anything to the contrary, the terms and conditions of Uber’s then-current Privacy Policy, currently available at: https://privacy.uber.com/policy, will apply to Portier’s collection, use and processing of Personal Data.

15. TERM AND TERMINATION.

This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), at any time without cause by giving seven (7) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Promotion period, such termination will not take effect until such Promotion period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, Portier may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Merchant that, in Portier’s reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations and Sections 1, 3.3, 7.1, 8-13, this last sentence of 15, 16-17 and 19 will survive the expiration or termination of this Agreement.

16. NOTICE.

Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to Portier should be provided to Portier, LLC, Attn: Legal, 1209 Orange Street, Wilmington DE 19801, with a copy to Uber Technologies, Inc., Attn: Legal – Enterprise Products, 1455 Market Street, Suite 400, San Francisco, CA 94103. Notices to Merchant should be provided to the address provided by Merchant. The parties agree that all legal documents (including complaints and subpoenas) directed to Portier will be served on Portier’s registered agent for service of process. The name and current contact information for the registered agent in each state are available online at https://ct.wolterskluwer.com/sop-locations.

17. DISPUTE RESOLUTION AND ARBITRATION.

17.1 Arbitration.

Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and finally resolved by arbitration administered by JAMS in accordance with its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”), which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree:

i) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules.

ii) The seat, or legal place, of arbitration will be San Francisco, California, USA or the JAMS location closest to the complaining party’s place of business.

iii) The language to be used in the arbitral proceedings will be English.

iv) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by JAMS in accordance with the JAMS Rules.

v) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.

vi) This agreement to arbitrate will not preclude the parties from seeking provisional remedies from a court of competent jurisdiction. The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

vii) Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else.

viii) Each party shall pay its own proportionate share of Arbitrator fees and expenses plus and expenses of JAMS. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.

ix) Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.

x) The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.

17.2 Waiver of Jury Trial.

Each party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any arbitrable claim under this Agreement and in connection with the enforcement of an arbitral award rendered pursuant to this agreement. Each party (i) certifies that no representatives, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of such litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto have been induced to enter into this Agreement.

18. DIVERSITY AND INCLUSION.

Merchant will not, in its use of the Eats Services or the Uber Tools under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between Portier and Merchant. Merchant acknowledges and agrees that upon Portier’s receipt of evidence of Merchant’s discrimination under any of these categories, Portier will have the right to immediately terminate this Agreement following notice to Merchant.

19. ADDITIONAL TERMS.

The territory of this Agreement is the Puerto Rico (“Territory”), and all payments issued under this Agreement must be in U.S. dollars. Merchant agrees to receive calls, SMS messages and other communications, including those made available by autodialer, sent by or on behalf of Portier or its affiliates. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. 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, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates; provided that in the event of any such transfer by Merchant, Merchant explicitly consents that any such transferee will have access to and control of all Merchant accounts related to such transfer, including its accounts with Portier, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Merchant’s Location(s), the parties will need to execute a Change of Ownership form and Merchant acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the Eats App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will 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 will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.

Merchant Managed Delivery Sales Channel Addendum

Last Updated December 2019

This Merchant Managed Delivery Sales Channel Addendum (“Merchant Managed Delivery Addendum”) applies to Merchant’s use of the Merchant Managed Delivery Sales Channel (as such term is defined in the General Terms and below) and is hereby incorporated into the Agreement between Portier and Merchant, which includes the General Terms currently available at: https://www.uber.com/legal/uber-eats/terms/en-us/, as may be updated from time to time, any Sales Channel Addenda or Order Form used by Merchant and any other Supplemental Terms. Capitalized terms not otherwise defined in this Merchant Managed Delivery Addendum will have the meanings assigned to such terms in the rest of the Agreement and, in the event of a conflict between the Merchant Managed Delivery Addendum and any of the other terms and conditions of the Agreement, the Merchant Managed Delivery Addendum will control.

1. Additional Defined Terms.

“Merchant Managed Delivery Staff (MMDS)” means employees, contractors, workers or agents of Merchant who provide delivery services on a Merchant’s behalf, arranged independently of Portier.

“Merchant Managed Delivery Sales Channel” Merchant may sell Items through the Uber Eats App to Customers who access and request on-demand delivery services provided by MMDS.

“Customer Information” means information about a Customer or that Customer’s personal data made available to Merchant or MMDS in connection with a request for and use of delivery devices, which may include delivery drop-off location, a Customer’s name or company name, a Customer’s contact information, a Customer’s signature, and a Customer’s photo, as well as any other relevant details specific to the items to be delivered.

“Transportation Method” means a mode of transportation that will be used by the MMDS for the purpose of providing delivery services in accordance with, and subject to, any other applicable standards with respect to such Transportation Method.

2. Merchant Provided Delivery Partners.

1. Provision of delivery services. As between Portier and Merchant, Merchant acknowledges and agrees that: (a) Merchant and MMDS will 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 Tools, Merchant will provide all necessary equipment, tools and other materials, at Merchant's own expense, necessary to perform delivery services. It is recommended that: (i) Merchant provides detailed instructions for pickup and drop-off (e.g., the location within the building address to pick-up/drop-off a package, etc.) to MMDS; and (ii) MMDS wait at least ten (10) minutes for a Customer to appear at the requested drop-off location prior to leaving or cancelling the delivery services. Merchant will not, and will ensure that all MMDS do not contact any Customers or use any Customer Information collected in the course of providing the delivery services for any reason other than for the purposes of fulfilling delivery services for that Customer’s particular order. Merchant will not retain Customer Information or any of the Customer’s personal data for longer than it takes to fulfill the delivery services for that Customer’s particular order.

1. Merchant Relationship with Customers. Portier and its Affiliates are not responsible or liable for the actions or inactions of a Customer in relation to any of Merchant's activities, any MMDS or any Transportation Method. Merchant acknowledges and agrees that each MMDS member (“MMDS member”) will have the sole responsibility for any obligations or liabilities to Merchant, Customers or other third parties that arise from or relate to Merchant's or MMDS’s provision of delivery services. Merchant acknowledges and agrees that Merchant and each MMDS member is each solely responsible for: (i) any liability arising from or relating to a Customer or any other third party in connection with the delivery services and (ii) taking such precautions as may be reasonable and proper, including, without limitation, maintaining insurance in accordance with applicable laws and conducting thorough background check investigations in connection with the delivery services; and (b) Portier or its Affiliates may release the contact and/or insurance information of Merchant and/or MMDS member to a Customer upon such Customer’s reasonable request (e.g., in connection with an accident). Merchant will provide evidence of such precautions upon Portier’s request.

1. Merchant Relationship with MMDS. Merchant will have the sole responsibility for any obligations or liabilities to MMDS that arise from or relate to Merchant's relationship with MMDS (including in connection with the provision of delivery services). Merchant acknowledges and agrees that Merchant exercises sole control over the MMDS and will comply with: (i) all applicable laws (including tax, gratuity, social security and employment laws) and regulations applicable to Merchant's relationship with MMDS and (ii) industry best practice in respect of working conditions and compensation for MMDS, including the distribution of any gratuities. As between the parties, Merchant acknowledges and agrees that Merchant is at all times responsible and liable for the acts and omissions of MMDS vis-à-vis Customers, Portier and its Affiliates, even where such liability may not be mandated under applicable law.

3. Merchant Additional Obligations for Merchant Provided Services.

1. Delivery Fee and Tax. Merchant is solely responsible for determining the fee that will be charged to the Customer for all Items delivered by MMDS pursuant to this Agreement (“Delivery Fee”). Merchant will provide Portier with the desired Delivery Fee and Portier will display this Delivery Fee on the App for all applicable Items. For the sake of clarity, the Delivery Fee will not include Sales Tax, but Merchant is solely responsible for determining all applicable Sales Tax and identifying and informing Portier of the appropriate Sales Tax and other fee amount for Portier to charge Merchant's Customers on Merchant's behalf for Delivery Fees charged under this agreement for Merchant's Items delivered by MMDS. Portier reserves the right to charge Merchant's Customers additional delivery fees on Merchant's behalf, including but not limited to, a small basket fee.
2. Delivery Area and Delivery Timing. Merchant is responsible for determining the geographic area in which MMDS will be able to deliver Merchant's Items to Customers (“Merchant Delivery Area”). In relation to events such as inclement weather, high traffic, or poor driving conditions (“Adverse Delivery Events”) Portier may limit the Merchant Delivery Area, at Portier’s discretion and without notice to Merchant, to ensure safe and reliable Merchant Managed delivery services. Merchant acknowledges that Portier will use the Merchant Delivery Area to limit the Merchant’s ability to sell Items only to those potential Customers who request delivery within the Merchant Delivery Area through the MMDS. Merchant is also responsible for providing Portier with projected timelines for the preparation of Merchant's Item orders. Portier will use Merchant’s preparation timelines and Portier’s internal projection of delivery time in determining the estimated time for delivery that will be displayed App for all Merchant's applicable Items. Merchant acknowledges that Portier’s systems may require adjustments to Merchant Delivery Area.

1. Item Order Support. Merchant is solely responsible for providing all Customer support for Items sold through the Merchant Managed Delivery Sales Channel. Merchant will provide Portier with a customer service phone number that will be displayed to Customers in the Uber Eats App so that Customers may direct their support inquiries to Merchant. Merchant is solely responsible for resolving all complaints and issues raised for Items delivered through the Merchant Managed Delivery Sales Channel and will accept and respond to all related customer service inquiries from Customers.

4. MMDS Transportation Methods.

1. MMDS Requirements. Merchant acknowledges and agrees that all MMDS will, at all times: (a) hold and maintain (i) a valid applicable license with the appropriate level of certification to operate the Transportation Method assigned to each MMDS (e.g., a driver’s license if the Transportation Method is a motor vehicle), and (ii) all licenses, permits, approvals and authority applicable to Merchant and/or MMDS that are necessary to provide delivery services to third parties in the territory; (b) provide the delivery services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. Merchant agrees to undertake background and driving record checks on MMDS before they can provide delivery services on Merchant's behalf and from time to time thereafter. Merchant acknowledges and agrees that Portier reserves the right, at any time in Portier’s sole discretion, to restrict Merchant or MMDS from accessing or using the Uber Platform if Merchant or such MMDS fails to meet any applicable requirements.

1. Transportation Method Requirements. Merchant acknowledges and agrees that any Transportation Method will, at all times, be: (a) properly registered and licensed to operate as a delivery vehicle in the territory (if the Transportation Method is a vehicle); (b) owned or leased by Merchant, or otherwise in Merchant's lawful possession; (c) suitable for performing the delivery services contemplated by this Agreement; and (d) 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.

1. Documentation. To the extent required by applicable law, Merchant must retain all copies of any required licenses, permits, approvals, authority, registrations and certifications prior to Merchant's and the applicable MMDS provision of any delivery services.

5. Ratings.

1. Merchant acknowledges and agrees that, after completion of an instance of delivery services, Merchant and/or Customers may be prompted by Portier’s technology platform to provide a rating of such delivery services and MMDS and, optionally, to provide comments or feedback about such delivery services and MMDS.

1. Portier and its affiliates reserve the right to use, share and display the ratings and comments of Merchant, MMDS, and Customers in any manner in connection with the business of Portier and its Affiliates, without attribution to or approval from Merchant or the applicable MMDS. Merchant acknowledges and agrees that Portier and its Affiliates are distributors (without any obligation to verify) and not publishers of the ratings or comments of Merchant or any MMDS, provided that Portier and its Affiliates reserve 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 information, or violate any privacy laws, other applicable laws, or Portier’s or its Affiliates’ content policies.

6. Payment.

1. Delivery Services. Notwithstanding anything to the contrary in the General Terms, Merchant will pay MMDS for their delivery services provided to Merchant at Merchant's sole discretion (but at all times in compliance with applicable laws and regulations), and Merchant is at all times solely responsible for providing payment to MMDS, including the distribution of any gratuities. Merchant acknowledges and agrees that Merchant is required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of delivery services and receipt of the Uber Tools as required by applicable law; and (b) provide Portier with all relevant tax information. Merchant further acknowledges and agrees that Merchant and each MMDS Member is responsible for taxes on their own receipts arising from the performance of delivery services.

Virtual Storefront Product Addendum Terms

Last Updated: October 2019

These Virtual Storefront Product Addendum Terms (“Virtual Storefront Product Addendum”) apply to Merchant’s use of the Virtual Storefront product service (as such term is defined in the General Terms and below) and are hereby incorporated into the Agreement between Portier and Merchant, which includes the General Terms currently available at https://www.uber.com/legal/uber-eats/terms/en-us/ (as may be updated from time to time), any Sales Channel Addenda or Order Form used by Merchant, and any other Supplemental Terms (as such term is defined in the General Terms) (collectively, the “Agreement”). Capitalized terms not otherwise defined in this Virtual Storefront Product Addendum will have the meanings otherwise ascribed to them in the Agreement and, in the event of a conflict between the Virtual Storefront Product Addendum and any of the other terms and conditions of the Agreement, the Virtual Storefront Product Addendum will control, but only with respect to the specific matter at issue.

1. Virtual Storefront. As further described below, the parties agree that Portier may provide Merchant with a separate and additional tile within the Uber Eats App (“Virtual Storefront” or “VS”) through which Merchant may prepare and sell Special Items (as defined below) to Customers. For clarity, Merchant’s VS will appear in addition to Merchant’s normal menu tile(s) on the Uber Eats App. Merchant’s operation of the VS will be subject to the terms and conditions of the Agreement in all respects.

2. Special Items. Subject to the terms and conditions of the Agreement, Merchant may sell to Customers via its VS a designated set of meal options that, unless otherwise agreed to by Portier in writing, are materially different from the Items that Merchant otherwise sells or makes available on the Uber Eats App (each, a “Special Item”). Merchant will be required to satisfy certain additional quality and volume standards with respect to the VS and sale of Special Items (as may be communicated and updated by Portier from time to time in its discretion). Unless otherwise agreed to by Portier, Merchant represents and warrants that it will operate the VS at its normal, fully-licensed and permitted kitchen, including, without limitation, with respect to the preparation and sale of all Special Items. Except as expressly set forth in this Virtual Storefront Product Addendum, Special Item(s) will be deemed to be Item(s) for the purposes of the Agreement.

3. VS Service Fee. Unless otherwise agreed to by the parties, Portier will charge Merchant a fee percentage of 30% for each order placed through Merchant’s VS (each, a “VS Order”).

4. Calculation. For each Special Item sold by Merchant via the VS, Portier will calculate the Service Fee (as defined in the General Terms) as follows: the Retail Price of all Special Meals sold by you via the Marketplace on the applicable day (excluding any sales tax collected on your behalf) multiplied by the VS Service Fee percentage (“VS Fee”). The VS Fee shall be net of any taxes that you are liable for. Portier will remit to you the total Retail Price collected for all Special Meals sold by you via the Marketplace (including any sales tax collected on your behalf) less: (a) the retained VS Fee; and (b) any refunds given to your customers (such final remitted amount being the “Special Meal Revenue”). The Special Meal Revenue will be remitted within fourteen (14) business days of the Special Meals being sold.

5. VS Activation Fee. Unless otherwise agreed to by the parties, you will pay to Portier a fee of $350 (“VS Activation Fee”) in consideration of Portier’s work to activate the VS. You agree that Portier may deduct the VS Activation Fee (or a portion thereof) from the Special Meal Revenue prior to remitting Special Meal Revenue to you until you have paid the full VS Activation Fee.

6. Confidential Materials. All data, materials and other information provided to Merchant in connection with the VS, including, without limitation, information relating to Customer demand and preferences, is the Confidential Information of Portier and will be treated as such in accordance with the Agreement.

7. VS Marks. Merchant acknowledges and agrees that Merchant is solely and wholly responsible for choosing and providing the name, logos and other Marks that Merchant will use to operate and have displayed on the VS (“VS Marks”). For the sake of clarity, the VS Marks and any other names, logos, images or other Marks associated with any Special Item will constitute Merchant's Marks (as defined in the General Terms) and will be treated as such under the Agreement, including, without limitation, with respect to Merchant's license, representations and warranties, and indemnification obligations under the General Terms.

8. Marketing. To further promote Participant’s Special Meals, Portier may reference Participant’s name and VS Marks in marketing materials, including but not limited to social media, websites, and blogs.