EatStreet Merchant Terms and Conditions

Last Updated

This user agreement is effective as of 10/25/2024.


BY (1) AGREEING TO AND EXECUTING AN ORDER FORM FOR SERVICES, (2) SIGNING UP FOR SERVICES ONLINE, (3) USING THE EATSTREET PLATFORM (DEFINED HEREIN) OR (4) ACCEPTING ORDERS VIA THE EATSTREET PLATFORM, MERCHANT (ON BEHALF OF ITSELF AND ANY ENTITIES IT REPRESENTS INCLUDING ALL PARTICIPATING STORE LOCATIONS) ACCEPTS AND AGREES TO BE BOUND BY THESE MERCHANT TERMS AND CONDITIONS.

As used herein "Merchant" means the entity named in the EatStreet order form for Services (the "Order Form") or related agreement that references these EatStreet Merchant Terms and Conditions ("Terms") and/or uses or accepts Orders via the EatStreet Platform. These Terms together with the applicable Order Form and/or other applicable agreements (collectively, the "Agreement") constitute the Merchant's agreement with EatStreet, Inc. ("EatStreet"). EatStreet and Merchant may be referred to individually as a "Party", and collectively as the "Parties". The "EatStreet Platform" consists of the EatStreet website (the "Website"), the EatStreet mobile applications, including any delivery applications (the "App"), or other channels, including third party channels, as determined by EatStreet from time to time?.

RECITALS

  • EatStreet provides online ordering and delivery services, including services that allow customers to place orders on the EatStreet Platform ("EatStreet Customers") and other third-party platforms for Merchant products, and delivery services to Merchants to deliver orders placed on the EatStreet Platform to EatStreet Customers and customers who order on other third-party platforms ("Third-party Customers", together with EatStreet Customer, "Customers")

  • Merchant would like to provide Merchant products, including but not limited to food and beverage, convenience, or grocery items, to Customers and would like EatStreet to facilitate, transmit, and/or deliver such food, and beverage, convenience, or grocery items ("Orders").

NOW THEREFORE, in consideration of the promises and the mutual covenants set forth herein, and for good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree as follows:

1.Services. Merchant and EatStreet are independent businesses whose relationship is governed by the Agreement. EatStreet will provide to Merchant the services selected in the applicable Order Form (the "Service(s)"). Merchant selects the Service by choosing the Service on the applicable Order Form. Merchant grants EatStreet the right to provide some or all of the Services through one or more subcontractors. The Order Form, when executed by both EatStreet and Merchant, becomes a binding agreement for the provision of Services.

A. Marketplace Service.

EatStreet will:

  1. List Merchant on the EatStreet Platform;

  2. Post or facilitate posting of Merchant's menu or menu items provided by Merchant on the EatStreet Platform;

  3. Accept Orders placed on the EatStreet Platform from EatStreet Customers for product items listed on the Merchant menu posted to the EatStreet Platform;

  4. Transmit Orders to Merchant from EatStreet Customers placed on the EatStreet Platform for fulfillment by Merchant;

  5. Accept payment or facilitate payment from EatStreet Customers for Orders placed on the EatStreet Platform and transmit to Merchant or permit Merchant to do so; and

  6. Provide reporting and accounting of all Orders successfully transmitted to Merchant.


Merchant:

  1. Will provide a menu that includes current pricing to EatStreet for posting on the EatStreet Platform and notify EatStreet immediately of any changes relating to Merchant, including product offerings, menu pricing, Merchant operating hours, including holiday hours;

  2. Will accept and timely fulfill Orders transmitted from EatStreet to Merchant;

  3. Will timely make available or deliver Orders by: (1) packaging Orders for EatStreet Customers to pick up at Merchant; (2) packaging Orders for pick up by an EatStreet driver if Merchant has selected Delivery Service from EatStreet; (3) delivering the Orders to EatStreet Customers at the address provided by EatStreet if Merchant has not selected EatStreet's optional Delivery Service set forth below; or (4) packing Orders for EatStreet to dispatch a contracted driver to pick up at Merchant for delivery if Merchant has selected EatStreet's Delivery Service; (5) notify all Merchant store staff members of the relationship with EatStreet;

  4. If EatStreet collects and passes tips from EatStreet Customers to Merchant, Merchant will distribute such tips in accordance with applicable law;

  5. Represents and warrants that it holds title to the products that Merchant provides through the EatStreet Platform and that such title passes to the EatStreet Customer upon completion of the transaction; and

  6. On an ongoing basis, will review and confirm the transactions, fees and charges on orders via the EatStreet Platform, and promptly communicate to EatStreet any inaccuracies.

B. Delivery Service.

EatStreet will:

  1. At EatStreet?s discretion, provide Merchant Order Equipment, which may or may not include a Tablet; and

  2. Send a driver to the Merchant to fulfill the applicable delivery request of Customer.

EatStreet may provide requested delivery services through such subcontractors. EatStreet will not assess or guarantee the suitability, legality, or ability of any subcontractor. The third-party subcontractors include ?Uber Direct? by way of the Uber Delivery Integration API Terms of Use: (https://www.uber.com/legal/en/document/?name=uber-delivery-integration-api-terms-of-use) Merchant agrees to promptly provide EatStreet all reasonably requested information required for EatStreet to provide the Services, including, without limitation, any applicable tax information (such as EINs).

Merchant will:

  1. prepare and package Order for pick up by the delivery service; and

  2. maintain Merchant premises in safe condition in accordance with local, state, and Federal workplace safety regulations.

C. Delivery Dispatch Services

EatStreet will:

  1. retrieve all Orders from the Merchant?s partnered third-party marketplaces;

  2. dispatch such Orders to an available delivery service provider;

  3. send Customer a link to an order tracker;

  4. place marketing promotions on the order tracker at EatStreet's discretion;

  5. communicate with Customer as needed to support the delivery process, through methods including, but not limited to, SMS text messaging, phone call, email; and

  6. communicate with Merchant as needed to support the delivery process, for purposes of managing Customer support, and assisting Merchant in resolving delivery issues.

Merchant will:

  1. modify Merchant?s profile information on Merchant?s partnered third-party Marketplaces to configure Merchant for self-delivery, configure delivery zones and set delivery fees, or permit EatStreet to set configurations on behalf of Merchant; and

  2. respond to EatStreet?s inquiries to assist EatStreet providing support to Customer.

D. White Label Ordering Services.

EatStreet will:

  1. obtain a website domain name on behalf of Merchant in a domain name reasonably determined by EatStreet;

  2. create and host a website for Merchant through which Merchant will accept EatStreet Customer Orders (the ?Merchant Website?);

  3. redirect EatStreet Customer Orders on Merchant Website to EatStreet ordering and payment platform; and

  4. design and maintain Merchant Website for purposes of processing Orders and serving EatStreet Customers.

E. I-Frame Order Services.

EatStreet will:

  1. provide Merchant with code to implement an EatStreet hosted I-Frame (the "I-Frame") on Merchant?s website; and

  2. allow Merchant to accept Orders via EatStreet hosted I-Frame.

F. Order Now Button Services.

EatStreet will:

  1. provide Merchant with code to implement an EatStreet Order Now Button (the "Order Now Button") on their website; and

  2. allow Merchant to redirect Orders to the EatStreet Website when customers click the Order Now Button.

G. Marketing and Promotional Services.

EatStreet will make available to Merchant various Marketing and Promotional Services as further described below and updated from time to time. EatStreet will provide certain online advertising services to Merchant, which may include targeting EatStreet Customers on the EatStreet Website or App or via email. EatStreet may cancel or add any offered Promotional Service at any time within its sole discretion. EatStreet will charge Merchant a fee for this Service as indicated on the applicable Order Form. EatStreet may provide the below marketing and/or promotional services.

  1. Top Listing: Merchant will be periodically listed on a rotating basis at or near the top of the default sort list of Merchants (the "Default Sort") at a frequency determined by EatStreet. Merchant?s frequency of appearance and placement at or near the top of the Default Sort is determined by the total number of Merchants subscribed to this Top Listing service in Merchant?s general geographic delivery zone or pick up area ("Service Area").

  2. Featured Listing: Merchant will be listed as a "Featured" Merchant or otherwise designated as featured in the Default Sort in a manner determined by EatStreet for EatStreet Customers within the Merchant's Service Area.

  3. Paid Email Advertisement: Merchant will be periodically listed or otherwise promoted in EatStreet emails sent to EatStreet Customers within the Merchant's Service Area as reasonably determined by EatStreet.

  4. In App Messaging: EatStreet will send messages to App users in Merchant?s Service Area to promote Merchant to EatStreet Customers, with a Merchant specific advertisement showing in a manner determined by EatStreet.

  5. Push Notifications: EatStreet will send push notification(s) to App users in Merchant?s Service Area to promote Merchant to EatStreet Customers.

  6. Merchant Sponsored Free Delivery Promotion:

    EatStreet may offer various Promotional Services to Merchant from time to time. Below is an example of a current Promotional Service offered by EatStreet in some geographic areas. EatStreet may cancel or add any offered Promotional Service at any time within its sole discretion.

    1. Merchant Sponsored Free Delivery Promotion: Merchant will pay EatStreet a Sponsored Delivery Fee on behalf of its EatStreet Customers, which shall be the delivery fees ordinarily charged on Orders to Customers ("Customer Delivery Fee(s)") to whom EatStreet will instead charge a $0.00 Customer Delivery Fee during the designated promotion timeframe and so long as the Order total meets a certain agreed upon dollar minimum. Merchant will determine the promotion timeframe by specifying the start and end date of the Merchant Sponsored Free Delivery promotion. Merchant will also determine the minimum Order total required for an Order to qualify for the Merchant Sponsored Free Delivery promotion, and for all such qualifying Orders, Merchant will pay a Sponsored Delivery Fee between the minimum and maximum amounts set forth in the Supplemental Marketing Services Form or other applicable ordering document or communication, which will depend on the Customer?s delivery location to the Merchant. Merchant may also limit the eligible delivery Service Area for the Merchant Sponsored Free Delivery promotion by notifying EatStreet of any Service Area restrictions. EatStreet does not guarantee the results of the promotion. Merchant may cancel the promotion at any time by notifying EatStreet via phone call or email, and the cancellation will be effective upon confirmation by EatStreet.

H. EatStreet Training and Support.

EatStreet will provide Merchant with customer support during designated hours. Customer support will be available via phone, email or the Tablet. EatStreet may (in its reasonable discretion) provide training to Merchant management / operations team, if reasonably requested.

2.Order Equipment. To the extent applicable based on the Services selected by Merchant, EatStreet may provide Merchant with certain equipment (the "Order Equipment") that Merchant will install and use to fulfill EatStreet Customer Orders (which may include, without limitation, a tablet (the "Tablet") or other automated, electronic means of receiving Orders). If applicable, Merchant will pay EatStreet a fee for any Order Equipment in exchange for the right to use the Order Equipment to access the EatStreet Platform and receive Orders.

Any Order Equipment provided by EatStreet will remain EatStreet?s sole property and may be used only for fulfilling Merchant?s responsibilities under this Agreement. If applicable, Merchant will be responsible for any data plans and costs resulting from use of Order Equipment. EatStreet may restrict or rescind Merchant?s right to use the Order Equipment at any time by giving notice. Merchant will maintain the Order Equipment in good, working condition, ordinary wear and tear excepted, and safeguard the equipment from damage, loss, theft and unauthorized access.

If the Order Equipment becomes damaged or is no longer useable, Merchant must notify EatStreet to receive a replacement. Merchant will be solely responsible for any damage to or loss of any Order Equipment provided by EatStreet. Merchant is responsible for the cost of replacing any damaged or lost Order Equipment, and EatStreet may recover the cost of replacement by deducting the amount from any payments owed to Merchant.

3.Commissions and Fees

Merchant agrees to pay EatStreet the commissions and fees set forth in the applicable Order Form. EatStreet may deduct any such commission and fees from its payment to Merchant. Commissions shall be calculated with the applicable rates included within the Order Form. EatStreet may change or update any commissions or fees for Services provided to Merchant by providing Merchant fourteen (14) days prior written notice. Merchant accepts any such changed or updated commissions and fees by accepting and fulfilling Orders any time on or after the effective date listed on the notice of changes or updates to any commissions or fees. Merchant agrees EatStreet may charge Customers fees or commissions, including but not limited to a Delivery Fee, Delivery Dispatch Fee, Customer Service Fee, Surcharge Fee, Small Order Fee or other fees, commissions or charges, in any manner, where applicable, in EatStreet's sole discretion, with or without notice to Merchant. In the event that Merchant raises the price for a menu item, EatStreet shall not be required to remit the higher price to the Merchant until three (3) business days after the Merchant first provides notice to EatStreet of such a price increase.

Commissions and fees are determined as defined below:

A. Marketplace Commission. The Marketplace Commission applies to all Orders placed through the EatStreet Platform. The Marketplace Commission is calculated by multiplying the Marketplace Commission rate with the Restaurant Subtotal. "Restaurant Subtotal" means the total amount charged by the Merchant for the items in the Order, excluding tax, delivery fees, and service fees.

B. Delivery Commission. The Delivery Commission applies to all Orders delivered by EatStreet (or its contractors) that were placed through EatStreet Platform. The Delivery Commission is calculated by multiplying the Delivery Commission rate with the Restaurant Subtotal.

C. Dispatch Service Fee. EatStreet will charge Merchant a Delivery Dispatch Fee as set forth in the applicable Order Form. The Delivery Dispatch Services Fee shall be paid as follows: (a) in the event Merchant has other Services and EatStreet collects and remits any amounts to Merchant, such Fees will be deducted from any amounts remitted by EatStreet to Merchant, and (b) in the event the Delivery Dispatch Services Fees are above the amounts to be remitted to Merchant pursuant to other Services, Merchant hereby authorizes EatStreet to make weekly ACH withdrawals for the Delivery Dispatch Services Fees from an account of Merchant that is reasonably acceptable to EatStreet. Merchant shall comply with all reasonable requests to initiate and set up such ACH withdrawals.

D. White Label Ordering Commission. The White Label Ordering Commission applies to all Orders placed through the Merchant Website. The White Label Ordering Commission is calculated by multiplying the White Label Ordering Commission Rate with the Restaurant Subtotal.

E. I-Frame Commission. The I-Frame Commission is calculated from the I-Frame commission rate specified on the applicable Order Form. The I-Frame Commission applies to all Orders initiated or made through the I-Frame Services. The I-Frame Commission is calculated by multiplying the I-Frame Commission rate with the Restaurant Subtotal, plus the Delivery Commission if the Merchant selected Delivery Service on the applicable Order Form.

F. Order Now Button Commission. The Order Now Button Commission is calculated from the Order Now Button commission rate specified on the applicable Order Form. The Order Now Button Commission applies to all Orders initiated or made through the Order Now Button Services. The Order Now Button Commission is calculated by multiplying the Order Now Button Commission rate with the Restaurant Subtotal, plus the Delivery Commission if the Merchant selected Delivery Service on the applicable Order Form.

G. Processing Fees. To the extent EatStreet (or its applicable payment processor) processes or collects payment from Customers for Orders for Merchant, Merchant will pay EatStreet a processing fee for all such Orders equal to the total dollar Order amount multiplied by Processing Fee Rate, plus the Processing Fee Per Order Fee for each Order transaction, according to the Processing Fee Rate and Processing Fee Per Order as set forth in the applicable Order Form.

4.Payment Amount The payment amount ("Payment Amount") to Merchant for each Order will include: (i) the Merchant subtotal of the Order EatStreet transmitted to Merchant, and that Merchant fulfilled, plus (ii) collected Taxes (as set forth in subsection E below), plus (iii) Delivery Fees if the Order was delivered by the Merchant, plus (iv) tips provided by the Customer for a pickup Order and if the Order was delivered by the Merchant, less (v) any commissions and fees agreed upon in the Order Form, less (vi) applicable Processing Fees (as described in the Order Form), credit card processing fees, and other applicable fees or withholdings (including as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature), less (vii) any fees for any other requested Services, less (viii) any other fees or commissions applicable to Merchant if EatStreet provides Merchant at least 14 days? advance written notice, and less (ix) any refunds issued to Customers as a result of issues relating to Merchant's Orders or Order fulfillment. (and, in each case for any of the foregoing, as may be adjusted by EatStreet as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature). In order to receive any payments, Merchant is required to comply with all of EatStreet?s then-effective Merchant onboarding procedures, including without limitation, providing EatStreet with all information reasonably requested by EatStreet or otherwise required by any applicable statute, regulation, executive order, or other legal requirement (such as a tax identification number) and electing a payment processing method on an applicable Order Form. EatStreet reserves the right to change its payment processing at any time during the term of the Agreement and if applicable, Merchant will provide EatStreet with any information required to set up any such alternate payment processing.

A. Payment by Check. If Merchant elects on the Order Form to receive payment by check, EatStreet will mail a check once per month to the Merchant at the address provided in the Order Form, in the amount totaling the Payment Amount for all Orders of the prior month. Merchant is responsible for keeping its address updated with EatStreet at all times.

B. Payment by ACH. If Merchant elects on the Order Form to receive payment by ACH, EatStreet will pay Merchant weekly via ACH, the amount totaling the Payment Amount for all Orders of the prior week. Merchant is responsible for ensuring that any changes to Merchant's banking information necessary for EatStreet to make payments is provided to EatStreet within 24 hours of any change. Where Merchant fails to provide accurate or updated banking information, Merchant is solely responsible for recovering payments deposited into any incorrect account, and EatStreet is not in any way responsible or liable for any such misdirected payments.

C. Payment by Stripe. If Merchant selects on the Order Form to receive payment through Stripe, EatStreet will pay Merchant weekly via Stripe, the amount totaling the Payment Amount for all Orders of the prior week. Such payments will be processed by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, Merchant agrees to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of EatStreet enabling payment processing services through Stripe, Merchant agrees to provide EatStreet and Stripe accurate and complete information about Merchant?s representative and its business. Merchant authorizes EatStreet to share information about its representative, business and transaction information related to Merchant?s use of the payment processing services provided by Stripe. Upon account creation, Merchant shall be solely responsible for the accuracy and integrity of the information associated with its Stripe account(s). EatStreet will not be responsible for making additional payments to Merchants due to missing or inaccurate information. All payments Merchant receives from Stripe for Merchant?s Orders shall satisfy EatStreet?s payment obligations to Merchant for those Orders. Merchant agrees that EatStreet fees and commissions will be withheld from these payments and all payments Merchant receives from Stripe for Merchant?s Orders shall satisfy EatStreet?s payment obligations to Merchant for those Orders.

D. Refunds and Re-Orders. EatStreet may in its sole discretion issue a refund, credit, or re-order to a Customer in connection with their Order. Merchant will bear the full cost of that refund, credit or re-order and will not dispute any such refunds, or credits, which are then subsequently deducted from any payments to Merchant unless the refund or credit is attributable to EatStreet's gross negligence. Where EatStreet issues a re-order, Merchant will promptly fulfill the Order again in accordance with EatStreet's reorder instructions at Merchant's cost, unless the re-order is caused by EatStreet's gross negligence. Orders requiring redelivery due to Merchant?s error, including Merchant Personnel providing an incorrect or incomplete Order to the delivery driver, are subject to additional delivery fees. For Delivery Service Orders, Merchant acknowledges and agrees that EatStreet shall be responsible only for facilitating the delivery of Merchant?s Orders to applicable Customers. Merchant shall be solely responsible for any customer complaints regarding Merchant?s Orders, including without limitation, complaints regarding the nature, quality, content, number, or packaging of Merchant?s Orders. If Merchant elects to refund a Customer for any reason, such election shall not obligate EatStreet to provide a corresponding reimbursement to Merchant. EatStreet shall be responsible for customer support issues relating to Merchant?s Orders and issues relating to an EatStreet Customer?s EatStreet account.

E. Taxes. Merchant is responsible for all applicable taxes, duties, and other fees or charges imposed by a governmental body on or associated with an Order (and the Services) and for remitting all such applicable taxes, duties, fees, and charges to the appropriate authority. In some jurisdictions, EatStreet may be required to collect sales, use or similar taxes from the Customer and remit such taxes directly to the tax authority. In such jurisdictions, EatStreet will inform Merchant that EatStreet will remit any collected taxes to the tax authority and EatStreet will be relieved of any responsibility to remit such collected taxes to Merchant.

F. Disputes. Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on Orders and invoices. Merchant shall promptly communicate to EatStreet in writing any claimed inaccuracies regarding the transactions, fees and charges, so that EatStreet has the prompt opportunity to address and resolve any issues so such issues do not persist. The Parties agree is in the best interest of both Parties to promptly resolve any issues. Merchant agrees to communicate to EatStreet any disagreement, non-conformity or any issue with any transaction, fee, commission, charge or Order, including in connection with fraudulent transactions or payments, within 14 days of the transaction, fee, commission, charge or Order. Merchant shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, commission, charge and Order if Merchant does not communicate a written claim or objection to EatStreet regarding such transaction, fee, commission, charge or Order within such 14-day period.

G. Without limiting any other rights and remedies available to EatStreet under this Agreement or applicable law: (i) EatStreet may immediately discontinue performance under this Agreement or any Order Forms (in whole or in part), including withholding or delaying payment of any amounts due to Merchant, in the event that the Merchant fails to pay any amounts due under this Agreement or otherwise fails to comply with any terms of this Aggreement that are required for Merchant to receive payments hereunder; (ii) EatStreet may hire a professional debt collector or attorney to recover any amounts due to EatStreet, and (iii) Merchant will reimburse EatStreet for any reasonable fees and costs EatStreet incurs in recovering of those amounts, including without limitation attorneys? fees, court costs, and debt collector fees.

5.Intellectual Property Ownership.

A. Except as otherwise set forth herein, EatStreet owns, licenses, or has permission to use all intellectual property related to the EatStreet Platform, Website, App, Content (defined below) and Services and shall remain the sole and exclusive owner or controlling entity operating with license or permission of all right, title and interest to all intellectual property and all intellectual property derived from the EatStreet Platform, Website, App, Content, and/or Services ("EatStreet IP"). No ownership or sublicensing rights in EatStreet IP shall be acquired by Merchant under this Agreement.

B. EatStreet owns (i) the EatStreet name, marks, logos, identifiers (collectively, "EatStreet Marks"), (ii) designs, photos, graphics, source code, texts, and EatStreet created, owned, licensed, or permissively-used works made available and accessible via the EatStreet Platform, Website, App, and/or Services (collectively, the "Content").

C. Merchant represents that it owns all rights in its name (including trade names), marks, logo, menu, or any photographs, graphics, descriptions, or images it provides to EatStreet, and/or any similar content for use in connection with the Services ("Merchant IP").

D. Merchant will not, and will not permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to any EatStreet IP (except to the extent such restrictions are contrary to applicable law); (b) modify, translate, or create derivative works based on any EatStreet Content or EatStreet IP; (c) remove any proprietary notices or labels on any EatStreet Content or EatStreet IP; and (d) use EatStreet IP, Content, Website, App, and/or the Services in any manner that violates the rights of any person, including but not limited to intellectual property rights, rights of privacy or rights of publicity.

6.EatStreet Customer Data.

A. Ownership of EatStreet Customer Data. When providing the Services, Merchant will have access to certain data, including Personal Information, provided by Customers to EatStreet, whether received on or through the EatStreet Platform, Website, App, Online Ordering Button Service, EatStreet created Merchant Website, and/or via EatStreet's telephone number, including any analytics, reports, statistics derived from that information (collectively, "EatStreet Customer Data"). "Personal Information" means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual, consumer or household, or is otherwise information that is regulated by applicable Data Protection Laws. As between the Parties, EatStreet owns all rights, title and interest in the EatStreet Customer Data.

B. Role of the Parties; Definition of Data Protection Laws. For purposes of this Agreement, EatStreet is a ?Business? or ?Data Controller? as defined under applicable Data Protection Laws and Merchant is a ?Service Provider? or ?Processor? with regard to the processing of Personal Information.

C. Compliance with Data Protection Laws. Each Party will comply with applicable Data Protection Laws when performing their obligations under this Agreement. "Data Protection Laws" means those applicable federal, state and local laws, rules and regulations addressing consumer protection, data privacy, data security, invasion of privacy and breach notification whether currently in effect or which may come into effect during the term of this Agreement. The Data Protection Laws, include but are not limited to: (i) the Federal Trade Commission Act, 15 U.S.C. ?? 41-58 and its implementing regulations; (ii) the California Consumer Privacy Act of 2018, as amended, including by the California Privacy Rights Act of 2020, and their implementing regulations ("CCPA"); (iii) the Virginia Consumer Data Protection Act of 2021, (iv) the Colorado Privacy Act of 2021 and its implementing regulations; (v) the Connecticut Data Privacy Act of 2022, (vi) the Utah Consumer Privacy Act of 2022; (vii) the Texas Data Privacy and Security Act; (viii) the Oregon Consumer Data Privacy Act; (ix) the US state data breach notification laws and (x) the US state data security laws, as applicable. Merchant shall promptly inform EatStreet in writing if it can no longer meet its obligations under the Data Protection Laws.

D. Data Security Obligations Each Party will implement reasonable and appropriate physical, technical, and administrative safeguards to protect EatStreet Customer Data in compliance with applicable Data Protection Laws.

E. Channel Orders Merchant acknowledges and agrees that the EatStreet Platform may support third party channel providers to whom EatStreet Customers submit Orders, but all other Services are provided by EatStreet (or its applicable contractors) in accordance with the applicable Order Form. Where Customer submits an Order through a third party channel provider to the EatStreet Platform ("Channel Order Data"), the ownership and use of the information and associated obligations relating to that Channel Order shall be determined by the agreement between EatStreet and that third party channel provider and shall be consistent with privacy notices or policies provided to the Customer.

F. Merchant's Restrictions on Processing of EatStreet Customer Data. Merchant and its employees and agents ("Personnel") shall only access and use EatStreet Customer Data or Channel Order data to the minimum extent necessary to perform their obligations under the Agreement. Merchant and its employees shall not:

  1. retain, use, process or disclose EatStreet Customer Data or Channel Order data for any purpose other than for the specific business purposes provided in the Agreement;

  2. process EatStreet Customer Data or Channel Order Data for commercial purposes other than those provided in the Agreement;

  3. combine the EatStreet Customer Data or Channel Order Data it receives from EatStreet with information that it receives from, or on behalf or, another person or persons or that Merchant collects from its own consumer interactions;

  4. retain, use, or disclose EatStreet Customer Data or Channel Order Data outside of Merchant?s direct relationship with EatStreet;

  5. retain, use, and/or disclose EatStreet Customer Data and/or Channel Order Data in any manner that could be construed as a ?sale? or ?sharing? of such EatStreet Customer Data and/or any Channel Order Data as defined under applicable Data Protection Laws.

  6. use any EatStreet Customer Data or Channel Order Data, including any Personal Information, in connection with any artificial intelligence (AI) technology or other large machine learning models, use EatStreet Customer Data or Channel Order Data to train any data sets or algorithms or use EatStreet Customer Data or Channel Order Data as input into any AI technology or large machine learning model without EatStreet?s prior written permission.

  7. Where applicable, Merchant certifies to EatStreet that it understands the requirements and restrictions of this Section F and of 798.140(ag) of the CCPA and shall comply with them.

  8. Merchant shall have the right to take such reasonable steps as are necessary: (i) to stop and remediate Merchant?s unauthorized use of EatStreet Customer Data or Channel Data which contains Personal Information, and (ii) to ensure that Personal Information is used in accordance with the terms of this Agreement.

G. Consumer Rights Requests. Merchant will promptly notify EatStreet if it receives any requests from consumers to exercise their privacy rights under applicable Data Protection Laws. Merchant shall permit EatStreet to respond to any such rights request and will not directly respond to a consumer rights request unless expressly required to do so by applicable Data Protection Laws. Merchant shall reasonably assist EatStreet in responding to consumer requests , including by deleting Personal Information where required by the Data Protection Laws.

H. Confidentiality. Merchant shall ensure that its Personnel engaged in the Processing of EatStreet Customer Data or Channel Order Data are informed of the confidential nature of the EatStreet Customer Data or Channel Order Data, have received reasonable training on their responsibilities and have executed written confidentiality agreements. Merchant shall ensure that such confidentiality responsibilities are consistent with the obligations under the Agreement and continue even if certain Personnel no longer perform services for Merchant.

I. Cooperation; Audit Rights Merchant shall promptly and completely respond to EatStreet?s requests for information about Merchant?s data security practices, privacy practices, and any automated decision-making technology used by Merchant in connection with the subject matter of this Agreement. EatStreet reserves the right to perform an audit of such practices by Merchant during the Term of this Agreement.

J. Notification of Security Incident. Merchant will notify EatStreet immediately if it becomes aware of any unauthorized access to or acquisition of EatStreet Customer Data or Channel Order Data (? Security Incident?). Merchant shall cooperate with EatStreet in any investigation or attempt to mitigate any potential risk or harm caused by such unauthorized access or acquisition. For any Security Incident resulting from the acts or omissions of Merchant or its Personnel, Merchant shall assist EatStreet in responding to and resolving the Security Incident including by: (i) taking any corrective actions necessary to remedy the Security Incident; and (ii) by reimbursing EatStreet for costs arising from the Security Incident including EatStreet?s costs of providing legally required notices, obtaining legally required credit monitoring services and identity theft insurance for the benefit of impacted individuals; legally required call center support to notify impacted individuals for up to ninety (90) days; all fines, penalties or charges assessed by a governmental entity, to extent such fines relate the acts or omissions of Merchant; and forensic IT services and e-discovery services used by EatStreet in connection with resolving the Security Incident. All of the foregoing will be deemed direct damages for purposes of this Agreement.

K. Deletion of EatStreet Customer Data. At the termination or expiration of the Agreement, Merchant shall permanently delete all EatStreet Customer Data or Channel Order Data in its possession or control, including all copies thereof, in compliance industry standards. Such deletion must occur no later than thirty (30) days from the termination or expiration of the Agreement. Upon EatStreet?s request, Merchant shall promptly provide all EatStreet Customer Data or Channel Order Data in Merchant?s possession or control to EatStreet at no additional charge, in any format reasonably requested by EatStreet so long as such format is a standard and secure format.

7.Grant of License by EatStreet. Solely during the term of this Agreement, EatStreet grants Merchant a non-exclusive, limited, revocable, non-transferable, non-sublicensable, and royalty-free license to use the EatStreet Customer Data, Channel Order data, Content, Website, and/or App solely to fulfill Orders and assist EatStreet in performing the Services. In addition, solely during the term of this Agreement, EatStreet grants Merchant a non-exclusive, limited, revocable, non-transferable, non-sublicensable, and royalty-free right to display the EatStreet Marks in accordance with EatStreet's trademark guidelines provided to Merchant from time to time, solely for the purposes set forth in this Agreement.

8.Grant of License to Merchant IP and Content. Merchant hereby grants EatStreet a non-exclusive, fully paid, royalty-free, perpetual, unrestricted, worldwide right and license (with the right to make unlimited sublicenses), but not the obligation, to use, reproduce, display, publish, distribute, transmit, modify, translate, make derivative works from, and otherwise exploit all Merchant IP, or any portion thereof, in connection with the EatStreet products and Services or the marketing or advertising thereof in any and all media formats and channels now known or hereafter devised including, but not limited to, a license and right to use the Merchant names, trademarks, social media account names / handles and images on its websites (including on any custom websites created for Merchant by EatStreet or in procuring a domain name for Merchant), computer software applications/ mobile apps and other EatStreet platforms. Merchant hereby waives any right to inspect or approve the use or other exploitation of the Merchant IP now or in the future, whether such use is known to Merchant. EatStreet may assign or grant these rights to others.

If photographs of Merchant?s menu items are not available or if they do not meet EatStreet?s requirements, as reasonably determined by EatStreet, then Merchant consents to EatStreet (i) engaging a professional photographer to take photographs of Merchant?s menu items or other products, (ii) enhancing the quality of Merchant?s existing photographs, (iii) using stock photographs of the menu item or other products, or (iv) using photographs from Merchant?s website or social media channels, and displaying such photographs on the EatStreet Platform as representations of Merchant?s menu items; provided that Merchant may contact EatStreet to have such photographs removed from the Merchant?s store listing and, in such event, EatStreet will comply in a timely manner.

9.Feedback and Improvements.

A. Merchant and/or Customers may from time to time provide suggestions, comments or other feedback ("Feedback") to EatStreet with respect to EatStreet?s Services, Platform, Content, Website, and/or App). Feedback, even if designated as confidential by the Party offering the Feedback, shall not, absent a separate written agreement, create any confidentiality obligation for the receiver of the Feedback. Except as otherwise provided herein or in a separate subsequent written agreement between the Parties, EatStreet will own the Feedback and shall be free to use, disclose, protect (e.g., patent, copyright, trademark, trade secret, etc.), reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.

B. All improvements, systems, programs, operating instructions and other documentation, rights in patentable inventions, trade secrets and know how, database interests and copyrights associated therewith related to the Services, the EatStreet Platform, Content, the Website, and/or App, which are conceived, prepared, developed or delivered (whether independent of or in connection with performance hereunder), shall be and remain the sole property of EatStreet. Merchant agrees to cooperate with EatStreet and execute, or cause its personnel to execute, such further acknowledgments and instruments as may be necessary to establish such ownership.

10.Term and Termination. The term and termination of this Agreement shall be set forth in the applicable Order Form.

A. Effect of Termination. Upon the effective termination of this Agreement for any reason, Merchant's right to use the Services, EatStreet Platform, Content, Website, and/or App shall immediately cease, and Merchant shall immediately return all EatStreet provided Order Equipment to EatStreet in substantially the same condition, with the exception of normal wear and tear. Failure to return the Order Equipment in accordance with this Agreement shall result in a charge for the replacement cost (per Order Equipment, where applicable). Merchant will also destroy or delete any EatStreet Customer Data and/or Channel Order information in its possession or control and certify its destruction or deletion of such EatStreet Customer Data and/or Channel Order information.

11.Confidentiality. Merchant shall treat as confidential any technical, financial, proprietary, personal information, business or other information, provided or made available by EatStreet to the Merchant and designated as confidential or proprietary or by its nature should be understood to be confidential, including EatStreet Customer Data, Channel Order information, delivery driver information, and commissions and fees and payment information under the Agreement ("Confidential Information"). Merchant shall not disclose and shall not use Confidential Information except to the extent necessary to carry out its obligations or express rights hereunder. This obligation will not apply to information that (i) is generally and freely publicly available through no fault of the Merchant, (ii) Merchant otherwise rightfully obtains from third parties without restriction, or (iii) is independently developed by Merchant with no knowledge of or access to such information. If Merchant is compelled by applicable law to disclose any Confidential Information then, to the extent permitted by applicable law, Merchant shall promptly notify EatStreet in writing of such requirement so that EatStreet can seek a protective order or other remedy or waive its rights under this Section 11 and provide reasonable assistance to EatStreet, at EatStreet's sole expense, in opposing or seeking protective limitations on disclosure.

12.Representations and Warranties; Disclaimer.

A. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the requisite power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and the performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation on both Parties.

B. Merchant Representations and Warranties. Merchant represents and warrants that:

  1. it will comply with applicable laws and regulations in its performance of this Agreement, including without limitation all applicable laws, rules, standards and regulations relating to licenses, health (including Proposition 65 in California and requirements of the New York City administrative code relating to providing toilet facility access to delivery drivers except where doing so would create a possible health code violation or obvious health or safety risk), food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation;

  2. it will comply with all applicable Data Protection Laws, and all applicable laws related to third party intellectual property and other proprietary rights;

  3. it owns right, title and interest in and to the Merchant IP, and/or it has the full right to license, distribute, and display the Merchant IP pursuant to this Agreement and grant the rights and permissions granted herein, free and clear of any liens, encumbrances or security interests;

  4. it has informed EatStreet of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant product(s) and it will inform EatStreet of any such warnings, charges, opt-ins, and instructions that become required in the future;

  5. it will disclose common allergens in any Merchant?s menu items listed on the EatStreet Platform;

  6. it will only list menu items or products for sale, product descriptions, and prices on the EatStreet Platform and will provide accurate descriptions and depictions of such items or products for sale; and

  7. it will not include any age-restricted products (including but not limited to alcohol and tobacco) on Merchant?s menus on the EatStreet Platform or request delivery of any age-restricted products through the EatStreet Platform without first entering into a separate agreement with EatStreet memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold.

C. EatStreet Warranties.EatStreet warrants to Merchant that it shall perform the Services in a professional and workmanlike manner using employees or third parties that have a level of skill commensurate with the requirements of the Agreement. The sole obligation of EatStreet with respect to this warranty is to re-perform any nonconforming Services or, at EatStreet's sole option, to refund the Fees for the applicable non-conforming Services. EatStreet will not advertise nor guarantee to the public or to EatStreet Customers that a delivery will be accomplished within a specified time of receiving an order. EatStreet will not require employees or drivers to make deliveries in a specified period of time.

D. Disclaimer.EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY LAW, THE SERVICES, EATSTREET PLATFORM, WEBSITE, APP, EQUIPMENT AND CONTENT ARE PROVIDED ON AN ?AS-IS? BASIS AND EATSTREET DISCLAIMS ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY LAW, EATSTREET EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. EATSTREET DOES NOT WARRANT THAT THE EATSTREET PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE EATSTREET PLATFORM WILL BE SECURE OR UNINTERRUPTED. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ANY AND ALL SERVICES PROVIDED BY A THIRD-PARTY ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY SERVICE IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY PROVIDER OF SUCH THIRD-PARTY SERVICE.

EATSTREET DOES NOT GUARANTEE THAT USERS WILL BUY FROM MERCHANT VIA EATSTREET, THE WEBSITE, OR THE APP. SO LONG AS EATSTREET UPDATES MERCHANT?S PRICE CHANGES ON THE WEBSITE AND APP IN A TIMELY MANNER, EATSTREET WILL NOT BE LIABLE FOR ANY AMOUNTS THAT DIFFER FROM THOSE LISTED ON THE WEBSITE OR APP. EATSTREET IS NOT LIABLE FOR ANY CLAIM AGAINST THE MERCHANT BY ANY OTHER PARTY CONCERNING ANY CLAIMS REGARDING FOOD, PRODUCTS, GOODS AND/OR SERVICES PROVIDED BY THE MERCHANT. Merchant acknowledges that the operation of the EatStreet Platform and/or Services may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and EatStreet shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Services or EatStreet Platform nor for any guarantee of results with respect to Services or EatStreet Platform. Both Parties acknowledge that neither Party has any expectation or has received any assurances for future business or that any investment by a Party will be recovered or recouped or that such Party will obtain any anticipated amount of profits by virtue of this Agreement.

13.Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EACH PARTY AND ITS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND EITHER PARTY'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY MERCHANT TO EATSTREET FOR THE SERVICES UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.Indemnification.

Each Party (the "Indemnifying Party") will defend, indemnify, and hold harmless the other Party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the "Indemnified Party") from and against any and all claims, damages, losses and expenses (including reasonable attorney?s fees) (collectively "Losses") with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party?s employees or agents ("Personnel") or unsafe condition on its premises; (ii) the negligence or more culpable act or omission of the Indemnifying Party or its personnel in connection with the performance of this Agreement, (iii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth this Agreement, including Sections 6, 11 and 12; (iv) the violation of the intellectual property of a third party by the Indemnifying Party?s logos, trademarks, trade names, menus, documentation, or other intellectual property or(v) a violation of the Data Protection Laws or a Data Security Incident. In addition, Merchant will defend, indemnify and hold harmless EatStreet from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s) or Merchant?s failure to distribute tips as required by applicable law, except to the extent such Losses were caused directly by the gross negligence or willful misconduct of EatStreet.

Each Party's indemnification obligations hereunder shall be subject to (xi) receiving prompt written notice of the existence of any claim such that the Indemnifying Party is not prejudiced by any delay of such notification, (xii) the option to assume sole control of the defense and/or settlement of such claim, so long as the defense and/or settlement does not involve an admission of guilt of the Indemnified Party or impose any obligation on the Indemnified Party; and (xiii) receiving full cooperation of the Indemnified Party in the defense and/or settlement thereof at the Indemnifying Party?s expense. The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense.

15.Non-Disparagement. During the term of the Agreement and for a period of one year thereafter, each Party agrees to take no action, nor make any negative comments, either spoken or written, which is intended, or that would reasonably be expected, to harm the other Party or its reputation or which would reasonably be expected to lead to unwanted or unfavorable publicity to such other Party.

16.Non-solicitation. Merchant agrees that during the term of the Agreement and for one (1) year thereafter, Merchant will not encourage or solicit any employee, independent contractor or consultant of EatStreet to leave (or devote less than his or her full time to) Merchant for any reason; provided, however, that such non-solicitation restriction shall not apply to those service personnel who previously provided services to Merchant before his or her service relationship with EatStreet.

17.Publicity. EatStreet may reference or promote Merchant as a business partner in public announcements, press releases, social media, and/or on the Website or App.

18.Ratings/Reviews. Merchant acknowledges and agrees that, after receiving products in an Order, Customers may provide a review or rating of such products or provide comments or feedback related to the Customer?s experience with Merchant and the products ("Customer Feedback"). EatStreet reserves the right to share, use, and display Customer Feedback in any manner in connection with EatStreet?s or its affiliate businesses without attribution or approval of Merchant. Merchant acknowledges that EatStreet and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that EatStreet 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, violate any Data Protection Laws, or EatStreet?s or its affiliates? content policies, including Terms of Use or Privacy Policy.

19.Communications from EatStreet. Merchant agrees to accept and receive communications from EatStreet, its agents and affiliates, including via email, text message, calls, and push notifications to the cellular telephone number Merchant provides to EatStreet. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of EatStreet, its affiliated companies and/or partners. Merchant may opt-out of such communications by contacting EatStreet support or by replying ?STOP? from the mobile device receiving such messages.

20.Franchisees. Franchisees operating a branded restaurant or store concept licensed by Merchant represent and warrant that by participating in the Services and entering into this Agreement that it is in compliance with its franchise agreement.

21.Miscellaneous.

A. Assignment. EatStreet may assign its rights and obligations under this Agreement in its sole discretion. Merchant shall not assign its rights or obligations under this Agreement without the prior written consent of EatStreet.

B. Governing Law. This Agreement and any dispute arising hereunder shall be governed by and construed in accordance with the laws of Wisconsin without regard to its conflict of law provisions.

C. Venue. Any legal suit, action, or proceeding arising out of or related to this Agreement shall be instituted exclusively in the federal or state courts located in the State of Wisconsin, Dane County. Merchant hereby waives any and all objections to the exercise of jurisdiction over Merchant by such courts and to venue in such courts.

D. Waiver of Jury Trial and Class Actions. THE PARTIES VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY WITH RESPECT OF ANY LITIGATION RELATING TO THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY. MERCHANT AGREES TO BRING ANY CLAIM OR DISPUTE ON AN INDIVIDUAL BASIS ONLY, AND NOT AS A CLASS, MASS ARBITRATION OR COLLECTIVE ACTION, AND THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY CLAIM OR DISPUTE TO BE BROUGHT, HEARD OR ARBITRATED AS A CLASS, MASS ARBITRATION OR COLLECTIVE ACTION.

E. Severability. All provisions of this Agreement shall be considered as separate terms and conditions, and in the event any one shall be held illegal, invalid or unenforceable, all the other provisions hereof shall remain in full force and effect as if the illegal, invalid, or unenforceable provision were not a part hereof, unless the provision held illegal, invalid or unenforceable is a material provision of this Agreement, in which case EatStreet and Merchant agree to amend this Agreement with replacement provisions containing mutually acceptable terms and conditions.

F. Independent Contractors. The Parties hereunder are independent contractors. Neither Party shall have any right to assume, create, or incur any expense, liability, or obligation, express or implied, on behalf of the other Party. This Agreement is not intended to be nor shall it be construed as a joint venture, association, partnership or other form of a business organization or agency relationship.

G. Entire Agreement; Modifications to Agreement. The Agreement constitutes the entire Agreement between the Merchant and EatStreet with respect to the subject matter hereof. EatStreet may modify the Agreement by providing Merchant notice of a material change in the Agreement via email, facsimile, or on its reports and posting the then-current Terms and Conditions to the Website. By continuing to engage with EatStreet for Services thereafter, Merchant will be deemed to have accepted any such new terms.

H. Survival. The provisions of Sections 3-6, 9, 10.A, 11, 12, and 13-16, and 21 of this Agreement and any right or obligation of the Parties in this Agreement which, by its nature, should survive termination or expiration of this Agreement, shall survive the expiration or termination of this Agreement.

I. Force Majeure. Except for Merchant's payment obligations, neither EatStreet nor Merchant shall be responsible for any failure or delay in the performance of any obligation hereunder, if such failure or delay is due to a cause beyond the respective Party's reasonable control, including, but not limited to, acts of God, flood, fire, natural disaster, pandemics or epidemics, war, acts of terrorism, electrical disruption, third-party suppliers beyond a Party's reasonable control, labor disputes or governmental acts.

J. Notices.All notices to either Party shall be in writing and delivered by hand, email, certified mail or overnight delivery service to the address set forth by Merchant in the applicable Order Form (or other such other address as the Party communicates in writing or regularly uses for businesses purposes) or EatStreet at the following address: 44 E. Mifflin Street, Suite 400, Madison, WI, 53703. The Parties may change the address at which it will receive notice by informing the other Party in writing of the new address at least thirty (30) days before the changed notice address. Notices shall be effective when delivered to the applicable address.


Effective Date: October 25, 2024