EbiVerse Service Agreement Terms

These EbiVerse Service Agreement Terms (“Terms”) apply to the service relationship between Ebiverse LLC, its subsidiaries and affiliates (collectively, “EbiVerse” or “EV”) and the Chef or Restaurant (“Merchant”) signing up for the Services (as defined herein). These Terms, and any other terms set forth in the sign up process will be together referred to as the “Agreement.” The Agreement is entered into as of the date Merchant signs up for the Services (“Effective Date”). THE SECTION BELOW ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS MERCHANTS’S LEGAL RIGHTS. PLEASE READ IT.
1.Rights and Obligations of EV
a) EV will enable customers to purchase food, beverages and book services from Merchant via (I) EV’s proprietary ordering, booking, advertising, delivery logistics and billing system at EV’s sole option, its associated web-based and mobile properties and apps (the “EV Platform”); and (ii) at EV’s sole option, at any properties partnered with EV (together with the EV Platform, the “Systems.” b) MARKETING SERVICES : EV will include Merchant on the Systems as provided herein, and will enable the transmission of orders and bookings to Merchant for pickup, delivery, shipping, in-person or virtual service delivery (the “Marketing Services”). The Marketing Services, together with the Delivery Services (each as defined below), will be referred to herein as the “Services.”
c) DELIVERY SERVICES (IF SELECTED): EV will connect Merchant with delivery independent contractors (DIC) through EV’s proprietary logistics platform called Drive for EbiVerse (DFE) (the “Delivery Services”). EV will have the sole right to determine the particulars of the Delivery Services, including, without limitation, the delivery fee, delivery area and availability. EV at it’s sole discretion can decide to allow merchants to decide their delivery fees in which case the DIC will receive the delivery fee less processing fees and DFE system charges. For clarity, EV does not itself provide delivery or logistics services; instead, EV provides a platform for Merchants to connect with DICs to transport orders to customers and to receive information relating thereto. EV delivery service providers are independent contractors who access EV’s proprietary technologies to provide on-demand delivery and logistics services, and such independent contractors control the method and manner in which they deliver orders. Accordingly, EV will not be liable or responsible for any delivery service providers or any errors or misrepresentations made by them.
d) EV owns all rights, title, and interest in and to the EV Platform and any content supplied by EV, and will have sole editorial control over the EV Platform, including the presentation of any content provided by Merchant (“Merchant Content”). Merchant Content may include, without limitation, menus, photographs, trademarks and logos. For the term of the Agreement and thereafter, Merchant hereby grants to EV a perpetual royalty-free, worldwide, sub-licenseable, transferable, fully paid-up, irrevocable right and license to use the Merchant Content on the Systems, and for marketing and promotional purposes via any means now known or hereinafter developed. Merchant owns all rights, title, and interest in and to the Merchant Content, subject to the license granted to EV herein. EV may remove Merchant Content on the Systems at any time if it believes, at its sole discretion, that such Merchant Content violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Systems.
e) TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, EV DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE SYSTEMS, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EV WILL NOT BE LIABLE TO MERCHANT FOR DAMAGES RESULTING FROM THE FAILURE OF THE SYSTEMS, SERVICES OR MERCHANT CONTENT. EV WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO MERCHANT FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. EV’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE ONLY THE AMOUNT OF COMMISSIONS EARNED BY EV FOR THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.

2. Rights and Obligations of Merchant
   a) Merchant will prepare food and beverage and provide services for orders or bookings placed via the Systems (i) consistent with menu descriptions; (ii) in compliance with all applicable health and safety requirements; (iii) in accordance with industry standards; and (iv) during the hours of operation provided by Merchant to EV. Merchant will ensure that its menu(s), hours of operation, and other particulars required for EV to perform the Services are up to date. Merchant will ensure that its menu descriptions are sufficiently detailed as to ingredients and allergens, and contain any other health or safety notices that are recommended or required by applicable law, rule or regulation.
   b) Merchant menu items available for purchase through the Systems must be substantially similar to those menu items available in-store and through any other digital ordering channel. Merchant menu item pricing through the Systems must be at least as favorable to the consumer as that which is available on Merchant’s standard menu or offered to any third-party service, and EV may update menu item pricing through the Systems to match more favorable terms of available elsewhere.
   c) Merchant consents to receiving phone calls, faxes, emails, text messages and any other communications made available by and on behalf of EV as they may relate to the Systems, Services and terms governing Merchant’s use of the Systems and Services, including without limitation, marketing or transactional matters. Merchant hereby consents to the recording of telephone conversations related to the Systems and Services and will ensure Merchant’s employees, service providers and agents are informed of the same and consent to recording by EV. If Merchant accepts phone orders, Merchant must advise those placing phone orders that CSC (Card Security Code)/CVV/CVV2 should not be transmitted over the phone.
   d) Merchant will not, and will not permit any third party to, market to or solicit any customer or company obtained through the Systems or via the Services for any purpose. For example, but without limitation, Merchant may not solicit a customer or order directly from Merchant or through a third-party. For the avoidance of doubt, the foregoing does not apply to any customer or company whose existence and information Merchant obtained independently of the Systems and Services.
   e) Merchant will maintain the confidentiality of all non-public information that it acquires in the course of performing the Agreement, including without limitation all Customer Data (as defined below), as well as the terms and conditions of the Agreement (collectively, the “Confidential Information”). Merchant will not disclose to any third parties, or use in any way other than as necessary to perform its obligations hereunder, EV’s Confidential Information. Merchant will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are bound by written obligations of confidentiality at least as protective as those set forth herein. Upon expiration or termination of the Agreement and as requested by EV, Merchant will deliver to EV (or destroy at EV’s election) any and all materials or documents containing the Confidential Information, together with all copies thereof in whatever form.
   f) “Customer Data” means (i) any and all information about customers generated or collected by EV or Merchant through the Systems or Services, which may include but is not limited to, customer’s name, delivery address(es), email address(es), phone number(s), and customer preferences and tendencies and (ii) any information that may otherwise be considered “personal data” or “personal information” under applicable law. Merchant acknowledges that all Customer Data is the sole and exclusive property of EV. Accordingly, Merchant will use Customer Data for the sole purpose of fulfilling applicable customer orders or otherwise satisfying Merchant’s obligations hereunder. Merchant (and any other persons to whom Merchant provides any Customer Data only as necessary to perform the Agreement) will implement and maintain comprehensive administrative, physical and technical safeguards in accordance with current industry best practices in order to protect, handle, and secure Customer Data. Merchant will also be responsible for any breach of this provision by any third-party service provider engaged by Merchant. Merchant will notify EV in a secure manner immediately upon a data security breach or any reasonable suspicion thereof or any other unauthorized disclosure of Confidential Information, and assist and cooperate with EV concerning any remedial measures and any disclosures to affected parties, in each case as requested by EV or required under applicable law.
   g) Merchant agrees that its use of the Systems and Services is subject to the EbiVerse Terms and Conditions of Use as in effect at the time (available at https://www.ebiverse.com/terms-privacy), and further agrees that Merchant’s access to and use of Customer Data will be subject to the EbiVerse Privacy Policy as in effect at the time (available at https://www.ebiverse.com/terms-privacy). If Merchant is using EbiVerse for Merchants to receive and confirm orders from EV, Merchant will comply with the EV Terms and Conditions of Use as in effect at the time (available at https://www.ebiverse.com/terms-privacy).
   h) If Merchant is a franchisee of a franchisor (“Franchisor”) that has negotiated a master agreement with EV (“Master Agreement”), Merchant consents to the sharing of certain sales reporting data with Franchisor pursuant to the Master Agreement. I) Merchant represents, warrants and covenants: (i) it has the authority to enter into the Agreement and to grant the rights granted hereunder, and doing so will not violate any other agreement to which it is a party; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) the Merchant Content will not infringe or otherwise violate the rights of any third party; (iv) it will comply with all applicable retail food, beverage (including alcohol) or other health and safety codes, rules or regulations, as well as any other laws applicable to its business (including without limitation the obligation to pay tips to delivery and other workers, if any); (v) it will provide accurate tax rates and calculations to EV; and (vi) it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms. In the event that Merchant includes alcohol in its menu on the Systems, Merchant further represents and warrants that it maintains a valid and active liquor license and all other applicable licenses, permits and registrations for the sale, distribution and (if applicable) delivery of alcohol (collectively, “Liquor Licenses”). Merchant will provide EV with a copy of the Liquor Licenses and all renewals thereof, and will immediately notify EV if any Liquor License is not renewed or is revoked, cancelled or surrendered at any time during the Term. (j) Merchant will indemnify and hold EV (including its directors, employees, officers, agents) harmless from any and all claims, actions, proceedings and damages arising out of Merchant’s activities, including, without limitation, (i) any third-party transactions or financing arrangement; (ii) Merchant’s provision, calculation, reporting or remission of taxes; or (iii) any breach or alleged breach of the representations, warranties or covenants set forth in the Agreement. EV will provide prompt notice to Merchant of any potential claim subject to indemnification hereunder. Merchant will assume the defense of the claim through counsel designated by it and reasonably acceptable to EV, provided that EV may use counsel of its choice at its own expense. Merchant will not settle or compromise any claim or consent to the entry of any judgment without the written consent of EV, which will not be unreasonably withheld. EV will reasonably cooperate with Merchant in the defense of the claim, at Merchant’s expense.
3. Payment Terms
   a) In consideration for Merchant’s access to the applicable Systems and Services, Merchant will pay to EV the Commission (for non-catering and/or catering and/or food orders and/or service bookings, as applicable) and Delivery Commission (as applicable) provided in the sign up process (collectively, the “Commissions”). Except as otherwise specified, the Commissions apply to the product and/or service total on all orders placed through the Systems. The Delivery Commission does not apply to pickup orders or self-delivery orders. In the event Merchant does not use or ceases to use Delivery Services, the Commission will apply to the product and /or service total only.
   b) EV will transmit via PayPal to Merchant the “Payment Amount” on a monthly basis. “Payment Amount” means the “Grand Total” (which includes the product total, tax) received by EV for orders placed during the relevant billing period (“Billing Period”), less (i) the applicable Commissions, (ii) the processing fee (inclusive of credit charges) on the Grand Total, (iii) tax collected on orders to be reported/remitted by EV. Platforms associated with EV affiliates and partners may deposit their Payment Amounts to Merchants separately.
   c) Merchant will provide to EV accurate and complete sales tax rates and computations (including, without limitation, any applicable state and local taxes) applicable to menu items and will provide reasonable advance notice to EV of any required changes to such rates and/or computations. Merchant will report and remit all sales tax collected through the Systems to the applicable taxing authorities. Notwithstanding the foregoing, for certain Merchants, EV will report and remit all sales tax collected on orders through the EV Systems to the applicable taxing authorities. Updates to EV tax reporting and remitting practices may be made upon written notice to Merchant (email sufficient).
   d) EV will transmit via PayPal to delivery independent contractors, the delivery fee for all orders delivered within the relevant billing period (“Billing Period”) less(i) the processing fee (inclusive of credit charges) (ii) applicable EV charges for using the Drive for EbiVerse (DFE) system.
4. Term
   a) The Agreement may be cancelled by either party for any reason (or no reason) at any time. EV reserves the right at its sole discretion to suspend the Services or access to the Systems during any time it believes Merchant is in violation of the Agreement.
   b) If either party wishes to cancel placement on any particular platform(s) and/or the Delivery Services, in each case, while remaining on the other platform(s) and/or retaining the other Services, it may do so at any time but the merchant remain under legal obligation to fulfill all orders/bookings already placed unless all such orders/bookings are cancelled. Notwithstanding anything to the contrary herein, in the event that only placement on the such platform and/or the Delivery Services are cancelled, the Agreement will continue in full force and effect, except that: (A) “Services” will be redefined to refer only to the remaining Service(s), (B) “Commission” will be redefined to refer only to the Commission(s) applicable to the remaining Services, and (C) any obligations of EV with respect to the cancelled Service(s) will be of no further force and effect.
5. Dispute Resolution Merchant and EV agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which are available at www.adr.org. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in Dallas, TX, unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
6. Miscellaneous Terms EV and Merchant are independent contractors, and nothing herein may be construed to create any agency, partnership or joint venture between them. Notwithstanding anything to the contrary, neither party has any authority of any kind to bind the other party in any respect whatsoever. The Agreement are not intended to benefit, nor will it be deemed to give rise to, any rights in any third party. No ambiguity will be construed against any party based upon a claim that such party drafted the ambiguous language. With the exception of the Arbitration Agreement, which will be governed by the FAA, the Agreement will be governed by Texas law, without regard to conflict of law principles. The Agreement and any other agreements or terms incorporated herein by reference, constitute the entire agreement between the parties and supersedes any prior understanding (written or oral) on the subject matter hereof. In the event of any conflict between the Agreement and any of the EbiVerse Privacy Policy, the Terms and Conditions of Use, the terms of the Agreement will control. EV hereby reserves the right to update and modify these Terms at any time at its sole discretion, provided that such modifications will be applied only prospectively. You agree that EV has the right to notify you of updates to these Terms by posting them on the Systems. Therefore, you should review these Terms before using the Services. The Agreement cannot be amended by Merchant. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then that provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. In the event of a breach, in addition to any remedies at law or in equity, the non-breaching party will be entitled to seek specific performance and immediate injunctive relief. Failure by EV to require performance or claim breach will not be construed as a waiver by Ev. A party will not be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. Merchant may not assign the Agreement without the prior written consent of EV, and if permission is secured, the assignor will provide EV with advance written notice so that payment can be directed appropriately. Any assignment by Merchant in violation of this provision will be deemed a nullity. EV may freely assign the Agreement. The Agreement will be binding on the parties’ permitted heirs, successors and assigns. Any dispute, controversy or proceeding arising out of or relating to the Agreement or the relationship between the parties hereto will be governed by in accordance with the terms of the Agreement. This Section 6, the customer data, ownership, confidentiality, indemnity, limitation of liability and arbitration provisions and any other terms required for the full interpretation of the Agreement following expiration or termination will survive any expiration or termination of the Agreement.
7. Notices. All notices under the Agreement will be in writing and will be deemed to have been duly given if given on the earliest to occur of (i) upon delivery, or refusal of delivery, if personally delivered; (ii) on the third business day after deposit with the United States Postal Service if sent by certified mail; (iii) on the first business day after delivery to a nationally recognized overnight courier if sent by such a courier; and (iv) on the day transmitted, as indicated by the transmission confirmation, if given by email (however, any notice transmitted by email after 5:00 PM local time at the destination of the recipient or on a day other than a business day will be considered given on the next business day). All notices to Merchant will be sent to Merchant at the email address provided by the authorized representative during the signup process or such other address provided by Merchant during the sign up process or after on the system. All notices to EV will be sent to the below, unless otherwise provided by EV:

EbiVerse LLC 15900 Balcones DR STE 100
Austin, TX 78731
Attn: Legal Department
Email: legal@ebiverse.com