Legal

Y the Wait U.S.A. Merchant Terms and Conditions

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER FORM 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.

Last updated: October 1st, 2019

1. INCORPORATION

These Y the Wait U.S.A. Merchant Terms and Conditions (“Terms”) are expressly incorporated into and made a part of the Y the Wait Order Form (“Order Form”) (the Order Form and these Terms, collectively, “Agreement”) between you (“you” or “Merchant”) and Y the Wait, Inc. and its parents, subsidiaries, representatives, affiliates, officers and directors (collectively, “YTW” or “Company”). This Agreement shall govern the provision of YTW Services (as defined below) in the United States and its territories. PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSITUTE A LEGAL AGREEMENT BETWEEN YOU AND YTW.

2. SERVICES

2.1. Items and Services

YTW and its affiliates make available certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders including but not limited to orders for food, beverages and other products and services (“Items”) from Merchant to Customers (as defined below), including on-demand lead generation, payment processing, marketing, advertising and promotional services, proprietary information services, on boarding, operational and other support services (“YTW Services”).

2.2. Merchant Technology

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

2.3. YTW App

YTW 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, if made available (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers (“YTW App”). Delivery Partners are not made available at this time but if and when they are made available to Merchant, they are independent contractors, and as such, they reserve the right to refuse to accept any Item in their sole discretion. YTW will notify the Merchant in advance if and when Delivery Partners are made available to them.

3. YTW OBLIGATIONS

3.1. YTW Services

Subject to the terms and conditions of this Agreement, YTW and its affiliates will make available the applicable YTW 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 YTW Services to Merchant, YTW and its affiliates, on behalf of Merchant, may respond to complaints by Merchant’s customers (“Customers”) about Items sold by Merchant via the YTW App. In addition, YTW may make available certain YTW Tools to Merchant, and Merchant may access and use those YTW Tools solely in connection with Merchant’s use of the YTW Services. For the avoidance of doubt, as between Merchant and YTW, YTW will retain sole and absolute control over the YTW App (and all elements of the user experience and user interface relating to the YTW App), including with respect to:

  • (i) the personalization of the YTW 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 YTW App to optimize reliability or efficiency on the YTW App.

3.2. Technology, Not Delivery, Services

For the sake of clarity, neither YTW nor its affiliates provide any delivery services. Rather, YTW provides technology services that both (i) enable Merchant to connect with Customers who may purchase Items from Merchant and (ii) may 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 YTW’s proprietary technology under license from YTW or its affiliates.

4. MERCHANT OBLIGATIONS

4.1. Availability of Items

Merchant will make Items available for purchase through the YTW App during its normal business hours. Merchant will prepare, handle and store all Items in accordance with applicable laws and regulations from time to time, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”) when and if food is being purchased. 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”), YTW may, in its sole discretion, remove such Item from the YTW App. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the YTW App. Merchant represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the YTW 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.) or retail list of items are accurate and comply with all applicable laws and regulations. If an Item contains alcoholic products or other products to which a legal age limit applies, the Merchant is obligated to ask the Customer to identify himself/herself upon delivery or collection in accordance with applicable law. If the Customer cannot identify himself/herself sufficiently or does not meet the minimum age requirements, the Merchant will refuse to make available and/or deliver the products concerned to the Customer.

4.2. Item Responsibility

Merchant acknowledges and agrees that neither YTW 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. YTW may, in its sole discretion, deduct reimbursement costs from the payment YTW 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, product and food delivery license privileges. The Merchant is exclusively responsible for handling any and all complaints from Customers about the fulfillment of Agreements.

4.3. Devices

At this time, YTW does not provide or supply a tablet or other mobile device (“Device”) to Merchant to use in connection with the availability of Items via the YTW App. Merchant shall be required to provide and supply their own Device to be use in connection with the availability of Items via the YTW App.

4.4. Restrictions

In connection with the access to and use of the YTW Services and YTW 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 YTW 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 YTW Tools or YTW Services (except as otherwise authorized by YTW); 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 any applicable government agency. Merchant will not (and will not allow any third party to) use the YTW Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the YTW App to directly or indirectly compete with YTW or its affiliates or the YTW Services. The following restricted Items may not be featured or sold via the YTW App: people or animals of any size, illegal 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.

5. FEES AND TAXES

5.1. Fees; Calculation

For each Item sold by Merchant via the YTW App, Merchant will pay YTW as follows: the Retail Price (as defined below) of all Items that Merchant sells via the YTW App (excluding any Sales Tax collected on Merchant’s behalf) multiplied by the applicable fee percentage or by the amount assigned for the Sales Channel used to sell each such Item (“Fee”). The Fee applicable for each Item will depend on the Item sold. The Fee does not include any applicable taxes or other fees. YTW will remit to Merchant the total Retail Price collected for all Items Merchant sells via the YTW 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, YTW will typically make such payment on a weekly basis. YTW may unilaterally adjust the Fee or charge additional fees to the Merchant for additional services at any time, in the sole discretion of YTW. If YTW unilaterally adjusts the Fee or charge additional fees, YTW will notify the Merchant in advance of charging a Fee or providing additional services that entail additional fees. YTW has the right to increase the fee percentage or the assigned amount for each Item by 5 additional percentage points or 5 times the assigned amount, respectively, if the Merchant continues to violate these Terms and Conditions after it has been notified by YTW of the breach thereof. The fee percentage increase will be charged as long as the infringement continues.

All Fees under this Agreement will be paid in U.S. Dollars. YTW or its affiliates will deduct the Fee from the payment YTW collects on Merchant’s behalf, as detailed in Section 5.3 below. YTW reserves the right to suspend Merchant’s ability to make Items available for purchase by Customers through the YTW App if Merchant’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if such Item was not collected or was unable to be delivered for whatever reason. 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 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 YTW 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 YTW of the appropriate Sales Tax and other fee amount for YTW to charge Customers on Merchant’s behalf for Items available on the YTW App. To the extent that applicable Sales Tax and other fees are not determined by Merchant, Merchant expressly authorizes YTW to make such determination on its behalf and Merchant hereby acknowledges and agrees that YTW will have no liability for the accuracy of any such determination. Further, Merchant expressly authorizes YTW, at Merchant’s direction, to collect such Sales Taxes and other fees on Merchant’s behalf. “Marketplace Facilitator” laws may require YTW 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), YTW may determine, as of a date specified by YTW, the amount of applicable Sales Tax which YTW 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 YTW 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 Item delivery services.

5.3 Appointment of Limited Payment Collection Agent

Merchant is solely responsible for providing YTW with, and maintaining, accurate bank account information. Merchant hereby appoints YTW 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 YTW App plus any applicable Sales Tax and other fees collected on Merchant’s behalf, via the payment processing functionality facilitated by the YTW Tools,
  • (ii) adjusting Sales Tax and other fees charged if determined by YTW 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, YTW 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 YTW or its affiliates will be considered the same as payment made directly to Merchant. Merchant agrees that if Merchant does not receive payment from YTW or its affiliates, Merchant’s only recourse will be against YTW and its affiliates. YTW 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 YTW and its affiliates may describe or otherwise reflect the terms of this Section, and any related portions of the applicable Order Form or the Agreement, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent. If reasonable, YTW 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.
  • (iv) Merchant may identify any disagreements in connection with such adjustments through the YTW Tools. YTW 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 YTW 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, YTW and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Merchant gives YTW and its affiliates express consent to adjust payments collected on Merchant’s behalf as set forth in this Section.

6. REPORTING

YTW may provide Merchant aggregate information regarding the number of Items picked up for delivered and/or sold by Merchant to Customers pursuant to an Order Form. YTW 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 YTW is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that YTW 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 YTW, 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 YTW 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 YTW or its affiliates in connection with making Items available through the YTW 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 YTW’s Marks will conform to the current version of YTW’s Brand Guidelines. 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 YTW or its affiliates may remove Merchant’s Marks from the YTW App if YTW 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 YTW and Company prior to the commencement of any such activities.

7.3. Marketing

YTW and its affiliates may showcase the availability of Merchant’s Items via the YTW App through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). YTW (or a party designated by YTW acting on YTW’s behalf) may take video and still images for marketing and other efforts related to the YTW App (“YTW Photographs”). Merchant agrees that YTW Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of YTW or its affiliates. Additionally, Merchant may provide videos, still image or other materials to YTW or its affiliates (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the YTW App or the marketing and promotion of YTW and the availability of your Items via the YTW App. Merchant hereby grants YTW 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 YTW 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 YTW to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that YTW or its affiliates may remove Merchant Marketing Materials from the YTW App if YTW 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 YTW App to stimulate Customer demand. When a Promotion is successfully applied to an order, Merchant authorizes YTW to charge Customers for the post-Promotional value of an Item (not including taxes and applicable fees). Subject to YTW App functionality, YTW 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 YTW may make available from time to time, YTW hereby authorizes Merchant to create Promotions that are designed and fulfilled by Merchant (“Merchant Promotion(s)”). Unless otherwise specified by YTW, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by YTW) either through the use of the Promotion Tool (as defined below) or through the Promotion Schedule (as defined below).YTW authorizes Merchant to use YTW’s proprietary, automated, self-service tool located within the YTW 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.Merchant may create a Merchant Promotion by completing and providing YTW with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to YTW 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 YTW 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, YTW 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 YTW 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 YTW has agreed to fund, such that the Merchant shall receive the same amount in their Item Revenue for such order as if a YTW-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 YTW) to Customers who have successfully completed their order through the YTW 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 YTW with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which YTW 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) YTW’s Obligations. YTW will
  • (A) honor and fulfill the terms of Promotions offered by YTW (solely or jointly with Merchant) to Customers who have successfully completed their order through the YTW App;
  • (B) be responsible for the fees associated with the Promotion up to the amount YTW 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 YTW 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 YTW 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 YTW 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 YTW App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Merchant may not market or otherwise advertise a Promotion outside the YTW App; provided further, that even if such Promotion Schedule authorizes Merchant to market a Promotion out of the YTW App, all such marketing materials will be subject to YTW’s prior review and written approval, which shall not be unreasonably withheld.

7.5 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 YTW 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 YTW 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 YTW and in Merchant’s possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by YTW solely by using the software and tools provided by YTW. “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 YTW Tools and related YTW 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 YTW or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to YTW’s and its affiliate’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to YTW or its affiliates, Merchant hereby grants to YTW and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sub licensable right to use and otherwise exploit such Feedback.

9. RATINGS AND RANKINGS

9.1 Ratings

Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the YTW 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 YTW App (“Customer Feedback”). YTW and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of YTW and its affiliates without attribution to or approval of Merchant. Merchant acknowledges that YTW and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that YTW 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 YTW’s or its affiliates’ content policies.

9.2 Rankings

YTW determines the Ranking of the Merchant on the YTW Services and YTW App. Merchants can purchase preferred positions on the YTW Services and YTW App for an additional price. Preferred positions are subject to availability and cannot be guaranteed.

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 have 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./li>

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

You (“Indemnifying Party”) will indemnify, defend and hold harmless YTW, 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, including but not limited 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 Party infringe 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 YTW 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 YTW 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 YTW 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 $5,000 CAD. 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. 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

Supplemental terms may apply to Merchant’s use of the YTW Services and the YTW Tools, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“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. YTW 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 YTW Services and YTW Tools. By continuing to use the YTW Services or the YTW Tools, Merchant will be deemed to accept the Supplemental Terms. Notwithstanding anything to the contrary, the terms and conditions of YTW’s then-current Privacy Policy, currently available at: https://privacy.ythewait.com/policy, will apply to YTW’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, YTW 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 YTW’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. Notwithstanding the foregoing, the Merchant can only terminate this Agreement if all payment obligations towards YTW have been met. The Merchant must continue to comply with this Agreement until all payment obligations of the Merchant towards YTW have been met.

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 YTW should be provided to Y the Wait, Inc.,

Attn: Legal, Fascination Boulevard 562, Etage 3/Unit 305, 2909VA Capelle aan den Ijssel, Netherlands. Notices to Merchant should be provided to the address provided by Merchant on the Order Form. The parties agree that all legal documents (including complaints and subpoenas) directed to YTW will be served on YTW’s registered agent for service of process.

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 Nevada, 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 Nevada.
  • 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 arbitral 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 YTW Services or the YTW 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 YTW and Merchant. Merchant acknowledges and agrees that upon YTW’s receipt of evidence of Merchant’s discrimination under any of these categories, YTW will have the right to immediately terminate this Agreement following notice to Merchant.

19. GENERAL

The territory of this Agreement is the United States (“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 auto dialer, sent by or on behalf of YTW 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. Notwithstanding anything to the contrary, YTW can unilaterally change any of the Terms and Conditions contained herein from time to time and will publish a notice and the amended terms and conditions. In the event the parties agree to modifications or amendments designed only to benefit Merchant as a result of renegotiation, YTW may issue notice of such modifications or amendments to Merchant as final agreement on such modifications or amendments, to expedite necessary changes to YTW’s internal systems. 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 YTW, 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 YTW 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.

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Legal

Y the Wait B.V. Merchant Terms and Conditions

BY ACCEPTING THIS AGREEMENT, BY

  • (1) CLICKING A BOX INDICATING ACCEPTANCE OR
  • (2) EXECUTING AN ORDER FORM 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.

Last updated: October 1st, 2019

1. INCORPORATION

These Y the Wait B.V. Merchant Terms and Conditions ((“Terms”) are expressly incorporated into and made a part of the Y the Wait Order Form (“Order Form”) (the Order Form and these Terms, collectively, “Agreement”) between you (“you” or “Merchant”) and Y the Wait BV (“YTW” or “Company”) a company incorporated under Dutch law, having its registered office at Fascinatio Boulevard 562, Etage 3/Unit 305, 2909VA Capelle aan den Ijssel, Netherlands and registered in the Trade Register of the Chamber of Commerce under number 75300729, acting for itself and on behalf of any legal person or person who directly or indirectly controls, is controlled by or falls under the joint control of Y the Wait Holding BV. This Agreement shall govern the provision of YTW Services (as defined below) within any country in the world (excluding the United States and its territories and possessions and Mainland China). PLEASE READ THESE TERMS CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND YTW.

2. SERVICES

2.1. Items and Services

YTW and its affiliates make available certain proprietary technology services that facilitate the marketing, sale, and fulfillment of orders including but not limited to orders for food, beverages, and other products and services (“Items”) from Merchant to Customers (as defined below), including on-demand lead generation, payment processing, marketing, advertising and promotional services, proprietary information services, on boarding, operational and other support services (“YTW Services”).

2.2. Merchant Technology

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

2.3 YTW App

YTW 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, if made available (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers (“YTW App”). Delivery Partners are not made available at this time, but if and when they are made available to Merchant, they are independent contractors, and as such, they reserve the right to refuse to accept any Item in their sole discretion. YTW will notify the Merchant in advance if and when Delivery Partners are made available to them.

3. YTW OBLIGATIONS

3.1 YTW Services

Subject to the terms and conditions of this Agreement, YTW and its affiliates will make available the applicable YTW 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 YTW Services to Merchant, YTW and its affiliates, on behalf of Merchant, may respond to complaints by Merchant’s customers (“Customers”) about Items sold by Merchant via the YTW App. In addition, YTW may make available certain YTW Tools to Merchant, and Merchant may access and use those YTW Tools solely in connection with Merchant’s use of the YTW Services. For the avoidance of doubt, as between Merchant and YTW, YTW will retain sole and absolute control over the YTW App (and all elements of the user experience and user interface relating to the YTW App), including with respect to:

  • (i) the personalization of the YTW 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 YTW App to optimize reliability or efficiency on the YTW App.

3.2. Technology, Not Delivery, Services

For the sake of clarity, neither YTW nor its affiliates provide any delivery services. Rather, YTW provides technology services that both

  • (i) enable Merchant to connect with Customers who may purchase Items from Merchant and
  • (ii) may 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 YTW’s proprietary technology under license from YTW or its affiliates.

4. MERCHANT OBLIGATIONS

4.1. Availability of Items

Merchant will make Items available for purchase through the YTW App during its normal business hours. Merchant will prepare, handle and store all items in accordance with applicable laws and regulations from time to time, including without limitation all laws, rules, and regulations governing time or temperature controls required for food safety (“Food Safety Standards”) when and if food is being purchased. 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”), YTW may, in its sole discretion, remove such Item from the YTW App. Items that contain (or may contain) an endangered species may not be made available for purchase through and will be removed from the YTW App. Merchant represents and warrants that all nutritional information for Items, including calorie count or allergen information that is made available through the YTW 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.) or retail list of items are accurate and comply with all applicable laws and regulations. If an Item contains alcoholic products or other products to which a legal age limit applies, the Merchant is obligated to ask the Customer to identify himself/herself upon delivery or collection in accordance with applicable law. If the Customer cannot identify himself/herself sufficiently or does not meet the minimum age requirements, the Merchant will refuse to make available and/or deliver the products concerned to the Customer.

4.2. Item Responsibility

Merchant acknowledges and agrees that neither YTW 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. YTW may, in its sole discretion, deduct reimbursement costs from the payment YTW 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, product, and food delivery license privileges. The Merchant is exclusively responsible for handling any and all complaints from Customers about the fulfillment of Agreements.

4.3. Devices

At this time, YTW does not provide or supply a tablet or other mobile device (“Device”) to Merchant to use in connection with the availability of Items via the YTW App. Merchant shall be required to provide and supply their own Device to be use in connection with the availability of Items via the YTW App.

4.4. Restrictions

In connection with the access to and use of the YTW Services and YTW 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 YTW 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 YTW Tools or YTW Services (except as otherwise authorized by YTW); 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 any applicable government agency.
    Merchant will not (and will not allow any third party to) use the YTW Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the YTW App to directly or indirectly compete with YTW or its affiliates or the YTW Services. The following restricted items may not be featured or sold via the YTW App: people or animals of any size, illegal 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.

5. FEES AND TAXES

5.1. Fees; Calculation

For each item sold by Merchant via the YTW App, Merchant will pay YTW as follows: the Retail Price (as defined below) of all Items that Merchant sells via the YTW App (excluding any Sales Tax collected on Merchant’s behalf) multiplied by the applicable fee percentage or by the amount assigned for the Sales Channel used to sell each such Item (“Fee“). The Fee applicable for each Item will depend on the Item sold. The Fee does not include any applicable taxes or other fees. YTW will remit to Merchant the total Retail Price collected for all Items Merchant sells via the YTW 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, YTW will typically make such payment on a weekly basis. YTW may unilaterally adjust the Fee or charge additional fees to the Merchant for additional services at any time, in the sole discretion of YTW. If YTW unilaterally adjusts the Fee or charge additional fees, YTW will notify the Merchant in advance of charging a Fee or providing additional services that entail additional fees. YTW has the right to increase the fee percentage or the assigned amount for each Item by 5 additional percentage points or five times the assigned amount, respectively, if the Merchant continues to violate these Terms and Conditions after it has been notified by YTW of the breach thereof. The fee percentage increase will be charged as long as the infringement continues.
    All Fees under this Agreement will be paid in the local currency of the applicable country whereby the YTW App is being used in at the time. YTW or its affiliates will deduct the Fee from the payment YTW collects on Merchant’s behalf, as detailed in Section 5.3 below. YTW reserves the right to suspend Merchant’s ability to make Items available for purchase by Customers through the YTW App if Merchant’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if such Item was not collected or was unable to be delivered for whatever reason. 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. 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 YTW 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 YTW of the appropriate Sales Tax and other fee amount for YTW to charge Customers on Merchant’s behalf for Items available on the YTW App. To the extent that applicable Sales Tax and other fees are not determined by Merchant, Merchant expressly authorizes YTW to make such determination on its behalf, and Merchant hereby acknowledges and agrees that YTW will have no liability for the accuracy of any such determination. Further, Merchant expressly authorizes YTW, at Merchant’s direction, to collect such Sales Taxes and other fees on Merchant’s behalf. “Marketplace Facilitator” laws may require YTW 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), YTW may determine, as of a date specified by YTW, the amount of applicable Sales Tax which YTW 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 YTW 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 Item delivery services.

5.3. Appointment of Limited Payment Collection Agent

Merchant is solely responsible for providing YTW with and maintaining accurate bank account information. Merchant hereby appoints YTW 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 YTW App plus any applicable Sales Tax and other fees collected on Merchant’s behalf, via the payment processing functionality facilitated by the YTW Tools,
  • (ii) adjusting Sales Tax and other fees charged if determined by YTW 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, YTW 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 YTW or its affiliates will be considered the same as payment made directly to Merchant. Merchant agrees that if Merchant does not receive payment from YTW or its affiliates, Merchant's only recourse will be against YTW and its affiliates. YTW 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 YTW and its affiliates may describe or otherwise reflect the terms of this Section, and any related portions of the applicable Order Form or the Agreement, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent. If reasonable, YTW 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 YTW Tools. YTW 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 YTW 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, YTW and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Merchant gives YTW, and its affiliates express consent to adjust payments collected on Merchant's behalf as set forth in this Section.

6. REPORTING

YTW may provide Merchant aggregate information regarding the number of items picked up for delivered and/or sold by Merchant to Customers pursuant to an Order Form. YTW 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 YTW is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that YTW 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 YTW, 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 YTW 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 YTW or its affiliates in connection with making Items available through the YTW 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 YTW’s Marks will conform to the current version of YTW’s Brand Guidelines. 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 YTW or its affiliates may remove Merchant’s Marks from the YTW App if YTW 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 YTW and Company prior to the commencement of any such activities.

7.3. Marketing

YTW and its affiliates may showcase the availability of Merchant’s Items via the YTW App through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). YTW (or a party designated by YTW acting on YTW’s behalf) may take video and still images for marketing and other efforts related to the YTW App (“YTW Photographs”). Merchant agrees that YTW Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of YTW or its affiliates. Additionally, Merchant may provide videos, still image or other materials to YTW or its affiliates (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the YTW App or the marketing and promotion of YTW and the availability of your Items via the YTW App. Merchant hereby grants YTW 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 YTW 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 YTW to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that YTW or its affiliates may remove Merchant Marketing Materials from the YTW App if YTW 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 YTW App to stimulate Customer demand. When a Promotion is successfully applied to an order, Merchant authorizes YTW to charge Customers for the post-Promotional value of an Item (not including taxes and applicable fees). Subject to YTW App functionality, YTW 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 YTW may make available from time to time, YTW hereby authorizes Merchant to create Promotions that are designed and fulfilled by Merchant (“Merchant Promotion(s)”. Unless otherwise specified by YTW, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by YTW) either through the use of the Promotion Tool (as defined below) or through the Promotion Schedule (as defined below).
    YTW authorizes Merchant to use YTW's proprietary, automated, self-service tool located within the YTW 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.
    Merchant may create a Merchant Promotion by completing and providing YTW with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to YTW 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 YTW 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, YTW 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 YTW 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 YTW has agreed to fund, such that the Merchant shall receive the same amount in their Item Revenue for such order as if a YTW-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 YTW) to Customers who have successfully completed their order through the YTW 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 YTW with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which YTW 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) YTW’s Obligations. YTW will:
  • (A) honor and fulfill the terms of Promotions offered by YTW (solely or jointly with Merchant) to Customers who have successfully completed their order through the YTW App;
  • (B) be responsible for the fees associated with the Promotion up to the amount YTW 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 YTW 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 YTW 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 YTW 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 YTW App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Merchant may not market or otherwise advertise a Promotion outside the YTW App; provided further, that even if such Promotion Schedule authorizes Merchant to market a Promotion out of the YTW App, all such marketing materials will be subject to YTW's prior review and written approval, which shall not be unreasonably withheld.

7.5. 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 YTW 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 YTW 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 YTW and in Merchant's possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by YTW solely by using the software and tools provided by YTW. “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 YTW Tools and related YTW 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 YTW or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to YTW’s and its affiliate's products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to YTW or its affiliates, Merchant hereby grants to YTW and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sub licensable right to use and otherwise exploit such Feedback.

9. RATINGS AND RANKINGS

9.1. Ratings

Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the YTW 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 YTW App (“Customer Feedback”). YTW and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of YTW and its affiliates without attribution to or approval of Merchant. Merchant acknowledges that YTW and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that YTW 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 YTW’s or its affiliates’ content policies.

9.2 Rankings

YTW determines the Ranking of the Merchant on the YTW Services and YTW App. Merchants can purchase preferred positions on the YTW Services and YTW App for an additional price. Preferred positions are subject to availability and cannot be guaranteed.

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 a warrant 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

You (“Indemnifying Party”) will indemnify, defend and hold harmless YTW, 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, including but not limited 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 Party infringe 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 YTW 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 YTW 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 YTW 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 the written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in 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 $5,000 CAD. 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. 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 canceled or materially reduced without thirty (30) days’ prior written a 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

Supplemental terms may apply to Merchant's use of the YTW Services and the YTW Tools, such as use policies or terms related to certain features and functionality, which may be modified from time to time (“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. YTW 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 YTW Services and YTW Tools. By continuing to use the YTW Services or the YTW Tools, Merchant will be deemed to accept the Supplemental Terms. Notwithstanding anything to the contrary, the terms and conditions of YTW’s then-current Privacy Policy, currently available at: https://privacy.ythewait.com/policy, will apply to YTW’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, YTW 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 YTW’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. Notwithstanding the foregoing, the Merchant can only terminate this Agreement if all payment obligations towards YTW have been met. The Merchant must continue to comply with this Agreement until all payment obligations of the Merchant towards YTW have been met.

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 YTW should be provided to Y the Wait BV, Attn: Legal, Fascination Boulevard 562, Etage 3/Unit 305, 2909VA Capelle aan den Ijssel, Netherlands. Notices to Merchant should be provided to the address provided by Merchant on the Order Form. The parties agree that all legal documents (including complaints and subpoenas) directed to YTW will be served on YTW’s registered agent for service of process.

17. DISPUTE RESOLUTION AND ARBITRATION

17.1. Arbitration

Except as otherwise set forth in these Terms, these Terms shall be exclusively governed by and construed in accordance with the laws of The Netherlands, excluding its rules on conflicts of laws. The Vienna Convention on the International Sale of Goods of 1980 (CISG) shall not apply. Any dispute, conflict, claim or controversy arising out of or broadly in connection with or relating to the Services or these Terms, including those relating to its validity, its existence, its performance, its construction, its termination or its enforceability (any “Dispute”) shall be first mandatorily submitted to mediation proceedings under the International Chamber of Commerce Mediation Rules (“ICC Mediation Rules”). If such Dispute has not been settled within sixty (60) days after a request for mediation has been submitted under such ICC Mediation Rules, such Dispute can be referred to and shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). The ICC Rules' Emergency Arbitrator provisions are excluded. The Dispute shall be resolved by one (1) arbitrator to be appointed in accordance with the ICC Rules. The place of both mediation and arbitration shall be Amsterdam, The Netherlands, without prejudice to any rights you may have under Article 18 of the Brussels I bis Regulation (OJ EU 2012 L351/1) and/or Article 6:236n of the Dutch Civil Code. The language of the mediation and/or arbitration shall be English unless you do not speak English, in which case the mediation and/or arbitration shall be conducted in both English and your native language. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the International Chamber of Commerce, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third party without the express written consent from the other party unless:

  • (i) the disclosure to the third party is reasonably required in the context of conducting the mediation or arbitration proceedings; and
  • (ii) the third party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.

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

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 a jury of any arbitral 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 YTW Services or the YTW 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 YTW and Merchant. Merchant acknowledges and agrees that upon YTW’s receipt of evidence of Merchant’s discrimination under any of these categories, YTW will have the right to immediately terminate this Agreement following notice to Merchant.

19. GENERAL

Merchant agrees to receive calls, SMS messages, and other communications, including those made available by auto dialer, sent by or on behalf of YTW 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. Notwithstanding anything to the contrary, YTW can unilaterally change any of the Terms and Conditions contained herein from time to time and will publish a notice and the amended terms and conditions. In the event the parties agree to modifications or amendments designed only to benefit Merchant as a result of renegotiation, YTW may issue a notice of such modifications or amendments to Merchant as a final agreement on such modifications or amendments, to expedite necessary changes to YTW’s internal systems. 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 YTW, 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 YTW 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 a 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. These Terms and Conditions are written in different languages, and all versions have the same validity. If there is any conflict or inconsistency between the versions, the English version is the current and leading version. 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.

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