Effective date of this agreement January 1, 2025

BY (1) ACCEPTING AN ORDER VIA THE SERVICES, TOOLS, OR APP (AS DEFINED HEREIN) (2) CLICKING A BOX INDICATING THE MERCHANT’S ACCEPTANCE OF THESE TERMS, OR (3) EXECUTING AN ORDER FORM OR RELATED AGREEMENT THAT REFERENCES THESE TERMS, MERCHANT HEREBY ACCEPTS AND AGREES TO BE BOUND BY 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 DESCRIBED HEREIN.

SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT SHALL GOVERN ANY CLAIMS THAT THE PARTIES MAY HAVE AGAINST EACH OTHER, INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.

1 GENERAL.

Upon consent or acceptance as provided above, these Merchant Terms and Conditions ("Terms") are an agreement between the company either identified within the 404Eats sign-up process or that executes an Order Form or related agreement (in either case, “Merchant” or “You”) and 404Eats which is a wholly owned subsidiary of Forrester Innovations. Upon acceptance of these Terms, Merchant may request access to Sales Channels (as described in more detail herein) and Services. Such request(s) may require acceptance of additional addenda, terms or conditions, and/or terms of use by Merchant. 404Eats maintains sole discretion for initial and/or ongoing provision of any such Sales Channel(s) or Service(s). These Terms may be subject to and/or incorporate an Order Form between Merchant and 404Eats (the “Order Form”), and/or any applicable Sales Channel Addenda, Product Addenda, or terms of use (these Terms, together with any such Order Form, addenda, or terms of use, collectively, the “Agreement”). Merchant’s access to and use of the Services and Tools (as defined herein) is subject to the Agreement and may be modified or updated by 404Eats from time to time, effective upon posting an updated version of these Terms and/or an applicable Product or Sales Channel Addenda. Merchant is responsible for updating contact information and regularly reviewing the Agreement and any applicable Product or Sales Channel Addenda for updates and information from 404Eats. Continued use of the Services, Tools, and/or App(s) after any such modifications or updates shall constitute Merchant’s consent to such changes. Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings ascribed to such terms in the applicable Order Form, Product or Sales Channel Addenda.

2 SERVICES

2 1 Items and Services.

4 4Eats and its affiliates make available certain proprietary technology services that facilitate the marketing, sale, and fulfillment of orders for items (“Items”) from Merchant to Customers (as defined below), including on-demand lead generation, order processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (the “Services”).

If the Merchant is eligible to offer the sale and fulfillment of alcoholic beverages through specified Sales Channels in the USA (“Alcohol Items”), the Merchant’s sale of Alcohol Items via the Services shall be subject to the Terms of Use for Alcohol Sales (“Alcohol Terms”) available here, as well as any Sales Channel addenda.

The definition of Items shall include Alcohol Items as applicable and referenced within the Agreement. If there is any conflict between these Terms and the Alcohol Terms, the Alcohol Terms shall govern with respect to Alcoholic Items, and these Terms shall govern with respect to Items.

2 2 Additional Tools.

In connection with the Services, 404Eats and its affiliates may also make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Services (collectively, the “Tools”), which may include 404Eats’s and its affiliates’ proprietary technology platform, through which Merchant may, among other things, receive, accept and fulfill requests for Items from Customers and receive insights and analytics regarding Merchant’s performance and history using the Services.

The Tools may include functionality for Merchant to obtain Sponsored Listing placements.

2 3 The Application(s).

4 4Eats 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 People (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers (the “App(s)”). Delivery People are independent contractors, and as such, they reserve the right to refuse to accept any item in their sole discretion.

2 4 Sales Channels.

The merchant may request access to sell and deliver Items via various services provided by 404Eats: Full Service, Pick-Up, and Merchant Managed Delivery (each, a “Sales Channel” described in more detail below). By electing to use a Sales Channel, Merchant agrees to accept any relevant Sales Channel Addenda as follows:

i FULL SERVICE (ALSO REFERRED TO AS MARKETPLACE): Merchant may sell Items through the “Full-Service Sales Channel,” whereby the Merchant’s Items are presented in the App(s) to Customers who access, and request on-demand delivery services provided by Delivery People as defined herein.

ii PICK-UP: The Merchant may sell items through the “Pick-Up Sales Channel,” whereby Merchant’s Items are presented on the App(s) to Customers for pick-up at the Merchant’s Location (i.e., without the use of a Delivery Person). For the avoidance of doubt, the provisions relating to Delivery People in the Terms will not apply to the sale of Items through this Pick-Up Sales Channel.

iii MERCHANT MANAGED DELIVERY: Merchant may sell Items through the “Merchant Managed Delivery Channel,” whereby Merchant’s Items are presented on the App(s) to Customers who access, and request on-demand delivery services provided by Merchant Managed Delivery Staff (i.e., employees, contractors, workers or agents of Merchant who provide delivery services on Merchant’s behalf, arranged independently of 404Eats).

3 404Eats OBLIGATIONS

3 1 Access to Services.

Subject to the terms and conditions of this Agreement, 404Eats and its affiliates may make available the applicable Services to Merchant, solely for use by Merchant at locations that are owned and operated by Merchant (each, a “Location”). Merchant shall provide 404Eats current and accurate Location information throughout the Term of this Agreement. In connection with the provision of Services to Merchant, 404Eats and its affiliates, on behalf of Merchant, may respond to complaints by end users of the App(s) (“Customers”) about Items sold by Merchant via the App(s). In addition, 404Eats may make available certain Tools to Merchant, and Merchant may access and use those Tools solely in connection with Merchant’s use of the Services. For the avoidance of doubt, as between Merchant and 404Eats, 404Eats will retain sole control over the App(s) (and all elements of the Customer experience and interface relating to the App(s)), including: (i) the personalization of the App(s) 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 People; and (v) adding, removing or otherwise modifying any feature or functionality made available through the App(s) to optimize reliability or efficiency on the App(s).

3 2 Technology, Not Delivery, Services.

Merchant agrees neither 404Eats nor its affiliates provide any delivery services. Rather, 404Eats provides technology services that both (i) enable Merchant to connect with Customers who may purchase Items from the Merchant and (ii) enable Delivery People to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services. Delivery People perform their delivery services for (and are paid by) the Customers, and not Merchant. “Delivery Person” is defined as an independent contractor that intends to seek, receive and fulfill on-demand requests for delivery services using 404Eats’s proprietary technology under license from 404Eats or its affiliates.

4 MERCHANT OBLIGATIONS

4 1 Availability of Items.

The Merchant will make Items available for purchase through the App(s) (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Merchant will prepare, handle, store, label and package all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”) and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of Alcohol Items (“Alcohol Safety Standards”). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If the Merchant fails to prepare or supply Items in accordance with Food or Alcohol Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), 404Eats may, in its sole discretion, remove such Item from the App(s). Items that contain (or may contain) an endangered species may not be made available for purchase through and will be removed from, the App(s). Merchant represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the App(s) is, and always will remain, accurate. In addition, the Merchant will ensure that the contents of its menu include each item criteria (including any notifications about ingredients, nutritional information, allergen information, alcoholic content (if applicable), etc.) are accurate and comply with all applicable laws and regulations.

4 2 Item Responsibility.

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. 404Eats may, in its sole discretion, deduct reimbursement costs from the payment 404Eats remits to Merchant. Merchant agrees that neither 404Eats nor the Delivery Person takes title to any Item at any time.

4 3 Devices.

If 404Eats supplies a tablet or other mobile device (“Device”) to Merchant to use in connection with the availability of Items via the App(s), Merchant agrees that: (i) Device(s) may only be used for the purpose of accepting orders via the App(s), and (ii) Device(s) may not be transferred, loaned, sold or otherwise provided in any manner to any third party. Devices(s) will at all times remain the property of 404Eats and/or its affiliates, and upon expiration or termination of the Agreement, or the extended absence of all of Merchant’s location(s) from the App(s) for longer than forty-five (45) days, Merchant will return all applicable Device(s) to 404Eats within ten (10) days. If Merchant receives a wireless data plan for the Device, 404Eats may charge a weekly reimbursement to Merchant for the costs associated with the wireless data plan of each applicable Device. Merchant agrees that the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear, may result in a fee (“Damage Fee”). Merchant agrees that 404Eats may deduct the reimbursement or Damage Fee from the Item Revenue prior to remittance of such Item Revenue to Merchant.

4 4 Third Party Services.

If Merchant uses a third-party service to 1) access the Services and Tools; or 2) transmit information to 404Eats (a “Third Party Access Service”), Merchant agrees that Merchant’s obligations described herein shall apply to Merchants’ use of the Services and Tools via any Third-Party Access Service unless otherwise agreed to between 404Eats and Merchant. Merchant agrees that failure by a Third-Party Access Service to transmit accurate information such as Retail Price, Item descriptions, or Additional Information (as defined herein) to 404Eats shall not waive, suspend, or otherwise affect Merchant’s obligations described herein. Merchant remains solely responsible for the accuracy of information provided to 404Eats through any Third-Party Access Service. Additionally, ongoing access to the Services and Tools via any Third-Party Access Services is subject to 404Eats’s agreement with such Third Party.

4 5 Use Restrictions.

In connection with the access to and use of the Services and 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 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 Tools or Services (except as otherwise authorized by 404Eats); 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. Merchant will not (and will not allow any third party to) use the Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the App(s) (collectively, “404Eats Data”) to directly or indirectly compete with 404Eats or its affiliates or the Services, including, without limitation, 404Eats Data that Merchant receives from 404Eats by way of a Third Party Access Service.

4 6 Item Restrictions.

The following restricted Items may not be featured or sold via the App(s): people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, items containing endangered species or any items that Merchant does not have permission to offer. 404Eats may remove from—or otherwise limit your ability to post to—a Merchant’s menu any Items 404Eats deems prohibited or inappropriate in its sole discretion. For clarity, alcohol is only permitted on the App(s) if Merchant has agreed to 404Eats’s separate Alcohol Order Form for specified States and through specific Sales Channels.

4 4Eats may restrict the sale of Items via the App(s) based on physical attributes of such Items (e.g., weight (per Item or in aggregate), height, shape, or appropriateness for delivery).

4 7 Gratuities.

For the sale of Items via the Pick-Up and Merchant Managed Delivery Sales Channels, unless otherwise selected by the Merchant, agrees to allow Customers to provide gratuities through the App(s). 404Eats shall remit to the Merchant the full value of any gratuities provided by Customers. It is the Merchant’s sole responsibility to comply with all applicable laws (including tax, gratuity, social security, and employment laws where applicable) regarding the distribution of any gratuities.

4 8 Messaging and Contact Information.

Merchant agrees to receive calls or SMS messages for 404Eats merchant account updates, including by auto-dialer and pre-recorded voice, from 404Eats and its affiliates to the number(s) provided.

5 FEES AND TAXES

5 1 Calculation.

4 4Eats will deduct applicable fees (“Fees”) from Item Revenue remitted to the Merchant as further described herein. 404Eats will remit to the Merchant the total Retail Price collected for all Items the Merchant sells via the App(s) (including any Sales Taxes collected on its behalf) less: (a) the applicable retained Fees; and (b) any refunds given to Customers for Substandard Items (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.

If required by applicable law or regulation, 404Eats may adjust the Fee. Such adjustments may require adjustments to remittances of Item Revenue owed to Merchant. Such adjustment may apply only to certain Items such as Alcohol Items. 404Eats or its affiliates will deduct the Fee from the payment 404Eats collects on the Merchant’s behalf. 404Eats reserves the right to suspend the Merchant’s ability to make Items available for purchase by Customers through the App(s) if the Merchant’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if a Delivery Person is unable to complete the delivery of such Item. Except as expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement.

5 2 Services Fee.

The Retail Price (as defined below) of all Items that Merchant sells via the App(s) (excluding any Sales Tax collected on Merchant’s behalf) multiplied by the applicable fee percentage for the Sales Channel used to sell each such Item (“Services Fee”). Merchant agrees to pay 404Eats such Services Fee in consideration for on-demand lead generation services, connecting Merchant’s Customers to Delivery People (only for the Full-Service Sales Channel), order processing (which may be referred to independently as the “Order Processing Fee”), marketing advertising and promotional services, and operational and other support related services.

Unless 1) otherwise displayed in the Tools or agreed to by the parties or; 2) modified by requirement of applicable laws or regulations, the Fee shall be calculated as follows:

i FULL-SERVICE SALES CHANNEL (ALSO REFERRED TO AS MARKETPLACE SALES CHANNEL): 404Eats will charge Merchant a fee percentage of 15% for each Item sold via the App(s) through the Full-Service Sales Channel or if the merchant chooses our membership option, only the payment processing fee will be charged.

ii PICK-UP SALES CHANNEL: 404Eats will charge the Merchant a fee percentage of 10% for each Item sold via the App(s) through the Pick-Up Sales Channel or if the merchant chooses our membership option, only the payment processing fee will be charged

5 3 Delivery Network Fee.

If selected by the Merchant, 404Eats shall charge the Merchant a flat fee per order for connecting the Customer to a Delivery Person (the “Delivery Network Fee”). The Delivery Network Fee shall be in addition to the Services Fee(s) as applicable. For clarity, the Delivery Network Fee shall not apply to the Non-Delivery or Merchant Managed Delivery Sales Channels.

5 4 Device Fee.

Unless otherwise agreed to by the Parties if 404Eats provides a Device(s) to Merchant, Merchant will pay 404Eats a Fee for the usage of such Device(s) (the “Device Fee”) as follows:

$ 0 per week for Device(s) that require a wireless data plan.

4 4Eats shall charge the Merchant the applicable Device Fee(s) for as long as the Merchant remains in possession of such Device(s). All Device Fee(s) charged to the Merchant are exclusive of applicable taxes (“Device Fee Taxes”). Merchant agrees that 404Eats will deduct such Device Fee Taxes from Merchant Item Revenue.

5 5 Pricing.

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

5 6 Appointment of Limited Payment Collection Agent.

Merchant is solely responsible for providing 404Eats with and maintaining, accurate bank account information. Merchant hereby appoints 404Eats 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 App(s) plus any applicable Sales Tax collected on Merchant’s behalf, via the payment processing functionality facilitated by the Tools, and (ii) remitting the Retail Price plus Sales Tax collected on Merchant’s behalf less the retained Fee and, if applicable, any refunds given to Customers on behalf of Merchant (“Item Revenue”). If reasonable, 404Eats may adjust the remittance of Item Revenue collected on Merchant’s behalf. 404Eats 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 404Eats 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, 404Eats and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Merchant gives 404Eats and its affiliates express consent to adjust payments collected on Merchant’s behalf as set forth in this Section. Further, Merchant agrees that payment collected on its behalf by 404Eats or its affiliates will be considered the same as payment made directly to Merchant. Merchant agrees that if Merchant does not receive payment from 404Eats or its affiliates, Merchant’s only recourse will be against 404Eats and its affiliates.

5 7 Payment Compliance.

4 4Eats and its affiliates may, from time to time, request information from the Merchant to confirm the Merchant’s identity as may be necessary under any applicable compliance obligations before remitting any amounts to the Merchant. 404Eats may reduce or withhold amounts owed to Merchant if: 1) Merchant fails to provide tax or employer identification information to 404Eats and/or; 2) there is a legal or regulatory risk or potential breach of law or regulation associated with such remittance to Merchant. Merchant agrees that 404Eats and its affiliates may describe or otherwise reflect the terms of this Section, and any related portions of the Agreement, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent.

5 8 Additional Information.

4 4Eats may, from time to time, require Merchant to provide certain additional information (“Additional Information”) pertaining to, Merchant location, Merchant establishment type (e.g., restaurant vs. grocery), particular Items or particular sales of Items for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable laws or regulations. Additional Information may include, but is not limited to: Universal Product Codes (“UPCs”), Global Trade Item Numbers (“GTINs”), Stock Keeping Units (“SKUs”), ingredients, temperature, container, weight, volume, quantities, serving/portion size, nutritional facts, inclusion of utensils, method of preparation (e.g., sliced), whether the item is “ready-to-eat”, or intended use. Merchant is solely responsible for providing requested Additional Information to 404Eats in a timely manner. If the Merchant fails to timely provide Additional Information in response to notification and request by 404Eats, 404Eats expressly reserves the right to temporarily remove affected Items from the Merchant’s menu on the App(s) until such Additional Information is received.

6 REPORTING

4 4Eats may provide Merchant aggregate information regarding the number of Items picked up by Delivery People and sold by Merchant to Customers pursuant to an Agreement. 404Eats 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 404Eats is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that 404Eats may share Merchant’s transactional data regarding ordered meals, including sales data, with Merchant’s parent company or franchisor.

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 404Eats, to its affiliates) a limited, royalty-free, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, in connection with the activities related to this Agreement or any other activities relating to the 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, or to the extent that the Merchant is not the owner, the same as used by Merchant. 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 404Eats or its affiliates in connection with making Items available through the App(s) in the ordinary course of business will not require any such prior, express, written consent. Merchant further agrees that any use or display of 404Eats’s Marks will conform to the current version of 404Eats 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 404Eats or its affiliates may remove Merchant’s Marks from the App(s) if 404Eats 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 agreement between Forrester Innovations and Merchant prior to the commencement of any such activities.

7 3 Marketing.

4 4Eats and its affiliates may showcase the availability of Merchant’s Items via the App(s) through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). 404Eats (or a party designated by 404Eats acting on 404Eats’s behalf) may take video and still images for marketing and other efforts related to the App(s) (“Photographs”). Merchant agrees that Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of 404Eats or its affiliates. Additionally, the Merchant may provide videos, still images or other materials to 404Eats or its affiliates (“Merchant Marketing Materials”) for use in connection with the display of the Merchant’s Items on the App(s) or the marketing and promotion and the availability of your Items via the App(s). Merchant hereby grants 404Eats 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 Services. 404Eats agrees that the Merchant Marketing Materials shall remain the Merchant’s sole and exclusive property. Without limiting anything in the Agreement, the 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, the Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for 404Eats to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that 404Eats or its affiliates may remove Merchant Marketing Materials from the App(s) if 404Eats 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 offers that are available through the App(s) to stimulate Customer demand. When a Promotion is successfully applied to an order, Merchant authorizes 404Eats to charge Customers for the post-Promotional value of an Item (not including Sales Taxes and applicable Fees). Subject to App(s) functionality, 404Eats 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 404Eats may make available from time to time, Merchant may create Promotions that are designed and fulfilled by Merchant (“Merchant Promotion(s)”). Unless otherwise specified by 404Eats, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by 404Eats) either through the use of the Promotion Tool or through the Promotion Schedule (as defined below).

1 404Eats authorizes Merchant to use 404Eats’s proprietary, automated, self-service tool located within the Tools to create Promotions (“Promotion Tool”). If provided access to the Promotion Tool, Merchant agrees to only use and access such Promotion Tool within its functionality and technical capability and shall not circumvent or otherwise exploit the tool in such a way that is not intended.

2 Merchant may create a Merchant Promotion by completing and providing 404Eats with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to 404Eats 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 404Eats under the terms of this Agreement. To request a form Promotion Schedule, Merchant should contact its customer support representative.

ii  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) fulfill the terms of Promotions offered by Merchant (solely or jointly with 404Eats) to Customers who have successfully completed their order through the App(s); (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 404Eats with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which 404Eats 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  404Eats’s Obligations. 404Eats will (A) honor and fulfill the terms of Promotions offered by 404Eats (solely or jointly with Merchant) to Customers who have successfully completed their order through the App(s); (B) be responsible for the fees associated with the Promotion up to the amount 404Eats 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 App(s); 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.

iii  Out of App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Merchant may not market or otherwise advertise a Promotion outside the App(s). If a Promotion Schedule authorizes Merchant to market a Promotion out of the App(s), all such marketing materials will be subject to 404Eats’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; 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 App(s) 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 404Eats 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 Personal Data.

Merchant agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of fulfilling Items under this Agreement. Merchant will maintain the accuracy and integrity of any Personal Data provided by 404Eats and in Merchant’s possession, custody or control. Merchant agrees to retain Personal Data provided to Merchant by 404Eats solely by using the software and tools provided by 404Eats. “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.

The merchant is responsible for maintaining the integrity of information related to the Merchant’s access and use of the Tools and 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.

The merchant may, but is not obligated to, provide or otherwise make available to 404Eats or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to 404Eats’s and its affiliate’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to 404Eats or its affiliates, Merchant hereby grants to 404Eats and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.

9 RATINGS

Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the App(s) 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 App(s) (“Customer Feedback”). 404Eats and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of 404Eats and its affiliates without attribution to or approval of Merchant. Merchant acknowledges that 404Eats and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that 404Eats 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 404Eats’s or its affiliates’ content policies.

1 . REPRESENTATIONS AND WARRANTIES; DISCLAIMER

1 .1 Representations and Warranties.

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

1 .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.

1 . INDEMNITY

1 .1 Indemnified Claims.

Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless the other, its affiliates and respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a material breach of any of the Indemnifying Party’s representations or warranties 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 404Eats 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 provide accurate and complete descriptions or Additional Information for Items, including information transmitted through a Device, point-of-sale, or Third Party Access Service, sufficient for accurate Sales Tax calculations; (C) Merchant’s failure to comply with a notice with respect to Unsupported Items; or (D) any claim related to Merchant’s failure to perform obligations contained in Section 2 of the Terms of Use for Alcohol Sales, if applicable, except in the case of each of (A)-(D) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of 404Eats or its employees, agents or Delivery People.

1 .2 Procedure.

Each Indemnified Party will provide prompt written notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.

1 . LIMITS OF LIABILITY

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

1 . 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 sixty (60) 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, 404Eats 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 404Eats’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, 7.1, 8-13, this last sentence of 15, 16-17 and 19 will survive the expiration or termination of this Agreement.

1 . 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 Merchant should be provided to the address provided by Merchant. The parties agree that all legal documents (including complaints and subpoenas) directed to 404Eats will be served on 404Eats’s registered agent for service of process.

1 . DIVERSITY AND INCLUSION

Merchant will not, in its use of the 404Eats Services 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 404Eats and Merchant. Merchant acknowledges and agrees that upon 404Eats’s receipt of evidence of Merchant’s discrimination under any of these categories, 404Eats will have the right to immediately terminate this Agreement following notice to Merchant.