Effective: September 30th, 2019
These Yamimeal General Terms and Conditions (“General Terms”) are expressly incorporated into and made a part of the Yamimeal Platform Order Form (“Order Form”) (the Order Form and these General Terms, collectively, the “Agreement”).
2.TERM AND TERMINATION.
This Agreement shall commence on the Effective Date and, unless earlier terminated as provided below, shall continue for a period of one (1) year from the Effective Date (“Initial Term”) and shall 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 the event of a material breach by the other party if the breach is not cured by the other party within two (2) days’ notice thereof by the non-breaching party. Either party may terminate this Agreement in its entirety at any time without cause by giving seven (7) days’ prior written notice of termination to the other party. Sections 1, 4.2, 4.3, 5 (for the time period specified), 6-10, and the last sentence of this Section 2 shall survive the expiration or termination of this Agreement.
3.1 Items and Services.
Proton 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 (“Yamimeal Services”).
3.2 Merchant Technology.
In connection with the Yamimeal Services, Proton and its affiliates may also make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Yamimeal Services (collectively, the “Proton Tools“), which may include Proton’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 Yamimeal Services are provided, and Proton 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.
3.3 Yamimeal App.
Proton 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/Merchant Self-delivery (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers (“Yamimeal App“). Delivery Partners are independent contractors, and as such, they reserve the right to refuse to accept any Item in their sole discretion.
4.1 Yamimeal Services.
Subject to the terms and conditions of this Agreement, Proton and its affiliates will make available the applicable Yamimeal Services to Merchant, solely for use by Merchant at locations that are owned and operated by Merchant (each, a “Location“), as set forth in an Order Form or otherwise agreed to by the parties in writing. In connection with the provision of Yamimeal Services to Merchant, Proton and its affiliates, on behalf of Merchant, may respond to complaints by Merchant’s customers (“Customers”) about Items sold by Merchant via the Yamimeal App. In addition, Proton may make available certain Proton Tools to Merchant, and Merchant may access and use those Proton Tools solely in connection with Merchant’s use of the Yamimeal Services. For the avoidance of doubt, as between Merchant and Proton, Proton will retain sole and absolute control over the Yamimeal App (and all elements of the user experience and user interface relating to the Yamimeal App), including with respect to: (i) the personalization of the Yamimeal 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 Yamimeal App to optimize reliability or efficiency on the Yamimeal App.
4.2 Technology, Not Delivery, Services.
For the sake of clarity, neither Proton nor its affiliates provide any delivery services. Rather, Proton 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 Proton’s proprietary technology under license from Proton or its affiliates.
5.1 Availability of Items.
Merchant will make Items available for purchase through the Yamimeal App during its normal business hours. 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”), Proton may, in its sole discretion, remove such Item from the Yamimeal App. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the Yamimeal App. Merchant represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the Yamimeal 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.
5.2 Item Responsibility.
Merchant acknowledges and agrees that neither Proton 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. Proton may, in its sole discretion, deduct reimbursement costs from the payment Proton 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.
If Proton supplies a tablet or other mobile device (“Device“) to Merchant to use in connection with the availability of Items via the Yamimeal App, Merchant agrees that: (i) Device(s) may only be used for the purpose of accepting orders via the Yamimeal 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 Proton 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 Yamimeal App for longer than forty-five (45) days, Merchant will return all applicable Device(s) to Proton within ten (10) days. If Merchant receives a wireless data plan for the Device, Proton 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 Proton may deduct the reimbursement or Damage Fee from the Item Revenue prior to remittance of such Item Revenue to Merchant, or charge Merchant for this fee (“Damage Fee”) directly from Merchant Bank Account.
In connection with the access to and use of the Yamimeal Services and Proton 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 Yamimeal 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 Proton Tools or Yamimeal Services (except as otherwise authorized by Proton); 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 Yamimeal Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the Yamimeal App to directly or indirectly compete with Proton or its affiliates or the Yamimeal Services. Furthermore, orders cannot weigh (in the aggregate) more than 30 pounds. The following restricted Items may not be featured or sold via the Yamimeal 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.
6.FEES AND TAXES.
6.1 Fees; Calculation.
For each Item sold by Merchant via the Yamimeal App, Merchant will pay Proton as follows: the Retail Price (as defined below) of all Items that Merchant sells via the Yamimeal 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. Proton will remit to Merchant the total Retail Price collected for all Items Merchant sells via the Yamimeal 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, Proton will typically make such payment on a weekly basis.
All Fees under this Agreement will be paid in U.S. Dollars. Proton or its affiliates will deduct the Fee from the payment Proton collects on Merchant’s behalf, as detailed in Section 5.3 below. Proton reserves the right to suspend Merchant’s ability to make Items available for purchase by Customers through the Yamimeal 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.
6.2 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 Yamimeal 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 Proton of the appropriate Sales Tax and other fee amount for Proton to charge Customers on Merchant’s behalf for Items available on the Yamimeal App. To the extent that applicable Sales Tax and other fees are not determined by Merchant, Merchant expressly authorizes Proton to make such determination on its behalf and Merchant hereby acknowledges and agrees that Proton will have no liability for the accuracy of any such determination. Further, Merchant expressly authorizes Proton, at Merchant’s direction, to collect such Sales Taxes and other fees on Merchant’s behalf. “Marketplace Facilitator” laws may require Proton 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), Proton may determine, as of a date specified by Proton, the amount of applicable Sales Tax which Proton 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 Yamimeal 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.
6.3 Appointment of Limited Payment Collection Agent.
Proton may provide Merchant aggregate information regarding the number of Items picked up by Delivery Partners and sold by Merchant to Customers pursuant to an Order Form. Proton 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 Proton is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that Proton may share Merchant’s transactional data regarding ordered meals, including sales data, with Merchant’s parent company.
8. INTELLECTUAL PROPERTY.
8.1 License to Marks; Restrictions.
Subject to the terms and conditions of this Agreement, each party hereby grants to the other party (and, in the case of Company, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use the such party’s respective Marks (as defined below), on a royalty-free basis, for the sole purpose of performing the promotional activities as set forth in an applicable Order Form. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans and other 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). All goodwill related to the use of a party’s marks by the other party shall inure to the benefit of the owner of such marks. Except as expressly set forth herein, neither party shall 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.
8.2 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 Yamimeal and Company prior to the commencement of any such activities.
Merchant may provide videos, still image or other materials to Proton or its affiliates (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the Yamimeal App or the marketing and promotion of Yamimeal and the availability of your Items via the Yamimeal App. Merchant hereby grants Proton 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 Proton 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 Proton to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that Proton or its affiliates may remove Merchant Marketing Materials from the Yamimeal App if Proton 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.
“Confidential Information” means any confidential, proprietary or other non-public information disclosed by one party (the “Discloser”) to the other party (the “Recipient”) whether disclosed verbally, in writing, or by inspection of tangible objects. Confidential Information will not include that information that (a) was previously known to the Recipient without an obligation of confidentiality; (b) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (c) is or becomes publicly available through no fault of the Recipient.
Each Recipient agrees that it will not disclose to any third parties, or use in any way other than as necessary to perform this Agreement, the Discloser’s Confidential Information. Each Recipient will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective of the Discloser as this Agreement before such individual has access to the Discloser’s Confidential Information. Each Recipient will not, and will not authorize others to, remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on disclosure of Confidential Information will not apply to the extent the Discloser has authorized such disclosure, nor to the extent a Recipient is required to disclose certain Confidential Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by a Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.
You agree to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of performing under this Agreement. You shall maintain the accuracy and integrity of any Personal Data provided by us and in your possession, custody or control. You agree to retain Personal Data provided to you by us solely by using the software and tools provided by us. (“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 but not limited to 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.
During the Term and for one (1) year thereafter, each party shall maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits shall be 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 the aggregate. In addition, we agree 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 shall be written by reputable insurance companies with a Best’s policyholder rating of not less than A VII. Such insurance shall 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 shall provide evidence of the insurance required herein. In no event shall the limits of any policy be considered as limiting the liability of a party under this Agreement.
11. WARRANTIES; DISCLAIMER.
Each party hereby represents and warrants that: (a) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) 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; (d) it will comply with all applicable laws and regulations in its performance of this Agreement (including without limitation all applicable data protection and privacy laws); and (e) the content, media and other materials used or provided as part of this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party.
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.
Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party, its affiliates and their respective directors, officers, 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 claim arising out of or related to: (a) the negligence or willful misconduct of the Indemnifying Party and its employees or agents (in your case, excluding Yamimeal and Delivery Partners to the extent they are your agents pursuant to an Order Form) in their performance of this Agreement; (b) any claims that the Indemnifying Party breached its representations and warranties in this Agreement; or (c) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the Company Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to any harm resulting from your violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, except to the extent such harm was directly caused by the gross negligence or willful misconduct of Company or its employees, agents or Delivery Partners. Each Indemnified Party shall provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
13. LIMITS OF LIABILITY.
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY, (A) IN NO EVENT SHALL 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 RESTAURANT 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 SHALL NOT EXCEED $100,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.
14. NO PUBLICITY.
Except as may be expressly 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.
This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to its conflict of laws provisions. You hereby consent to exclusive jurisdiction and venue in the state and federal courts sitting in San Francisco County, California. Any and all notices permitted or required to be given hereunder shall be sent to the address first set forth on the Order Form, or such other address as may be provided, and deemed duly given (a) upon actual delivery, if delivery is by hand, (b) one (1) day after being sent by overnight courier, charges prepaid, or (c) by electronic mail to the designated recipient. In addition, you agree to receive autodialed calls or SMS messages sent by or on behalf of Company. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option. Any modification or amendment to this Agreement shall be effective only if in writing and signed by both parties. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) shall remain in full force and effect. Any delay in or failure by either party in performance of this Agreement shall be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other 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. This Agreement may not be assigned, 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 notice to the other party, to (a) 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. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns. Nothing in this Agreement shall be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as specifically set forth in an Order Form), and no party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party shall be solely responsible for its employees and contractors used in connection with this Agreement. 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 shall be deemed an original and all of which, when taken together, shall constitute one and the same original instrument.