BiteTrucks Vendor Agreement

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER FORM OR ADDENDUM THAT REFERENCES THESE TERMS OR (3) REGISTRATION ON AND/OR USE OF THE BITETRUCKS PLATFORM, VENDOR 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 “VENDOR” 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 PLATFORM OR SERVICES.

1. GENERAL.

BiteTrucks, LLC. and its subsidiaries and affiliates (“BiteTrucks,” “Company,” “we,” “our,” or “us”) own and operate certain websites, including related subdomains; our mobile, tablet and other smart device applications; application program interfaces; other online services; other tools, technology and programs (collectively, the “BiteTrucks Platform”) and all associated services; in each case, that reference these Terms of Use.

These BiteTrucks Vendor Terms and Conditions (“Terms“) are hereby accepted and agreed to by the company identified within the BiteTrucks sign-up process (“Vendor” or “You“), and constitute a legally binding agreement by and between Vendor and BiteTrucks. Vendor is responsible for updating contact information and regularly reviewing the Terms and any applicable Product or Services Addendum for updates and information from BiteTrucks. Continued use of the Platform or Services after any such modifications or updates shall constitute Vendor’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 Product or Services Addendum.

2. SERVICES.

2.1 Items and Services.

BiteTrucks and its affiliates make available certain proprietary technology services that facilitate the marketing, sale and fulfillment of orders for Items such as foods and beverages that are typically sold by mobile food vendors in a form intended for immediate consumption on-premises, for take-out from Vendor to Customers (as defined below), including on-demand lead generation, payment processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (“BiteTrucks Services”).

2.2 Alcoholic Items.

Some jurisdictions permit the sale and delivery of alcoholic beverages. In such jurisdictions, if you fulfill an order that includes any alcoholic beverage, you represent and warrant that you are permitted to sell such product(s). Upon release or delivery of alcoholic items, as applicable, you shall require proof to be presented in the form of a government-issued identification card, evidencing the customer age, consistent with applicable legal requirements. You also agree to withhold release and delivery of the alcoholic beverages if the customer or the recipient of the product(s) appears intoxicated when receiving such product(s). You agree that you, the Vendor, are solely responsible for enforcing local applicable law and conformance with this section.

2.3 Vendor Technology.

In connection with the Services, BiteTrucks and its affiliates may also make available to Vendor a website, mobile application or other technology interface for Vendor to access and use the Services (collectively, the “BiteTrucks Tools”) through which insights and analytics regarding Vendor’s performance and history using the Services are provided.

2.4 BiteTrucks App.

BiteTrucks and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase food and beverages from Vendor and request the items for takeout.

 

3. THE VENDOR OBLIGATIONS.

3.1 Services.

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

3.2 Technology, Not Food or Delivery, Services.

Vendor agrees neither BiteTrucks nor its affiliates provide any Item preparation, assembly, storage or delivery services. Rather, BiteTrucks provides technology services that (i) enable Vendor to connect with Customers who may purchase Items from Vendor.

4. VENDOR OBLIGATIONS.

4.1 Availability of Items.

Vendor will make Items available for purchase through the BiteTrucks Platform (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Vendor 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”). Vendor will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Vendor is responsible for ensuring that all Items meet the applicable Criteria. If Vendor 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”), BiteTrucks may, in its sole discretion, remove such Item from the BiteTrucks Platform. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the BiteTrucks Platform. Vendor represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the BiteTrucks Platform is, and at all times will remain, accurate. In addition, Vendor will ensure that the contents of its menu includes each Items 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.

Vendor acknowledges and agrees that BiteTrucks does not take title to any Item at any time. Notwithstanding, Vendor shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Vendor’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, items that are different than advertised within the menu, and Items not prepared in accordance with Vendor’s internal standards. BiteTrucks may, in its sole discretion, deduct reimbursement costs from the payment BiteTrucks remits to Vendor 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 Vendor’s retail and food delivery license privileges.

4.3 Use Restrictions.

In connection with the access to and use of the BiteTrucks Services and BiteTrucks Tools, Vendor 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 BiteTrucks); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency. Vendor 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 BiteTrucks Platform to directly or indirectly compete with BiteTrucks or its affiliates or the BiteTrucks Services.

4.4 Item Restrictions.

The following restricted Items may not be featured or sold via the BiteTrucks Platform: 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 Vendor does not have permission to offer. BiteTrucks may remove from—or otherwise limit your ability to post to—a Vendor’s Platform menu any Items BiteTrucks deems prohibited or inappropriate. For clarity, alcohol is only permitted on the BiteTrucks Platform if Vendor has agreed to BiteTrucks’s Alcoholic Items policy (Section 2.2).

4.5 Gratuities.

For the sale of Items via the BiteTrucks Platform, Vendor agrees to allow Customers to provide gratuities through the BiteTrucks Platform. BiteTrucks shall remit to Vendor the full value of any gratuities provided by Customers. It is the sole responsibility of the Vendor to comply with all applicable laws (including tax, gratuity, social security and employment laws where applicable) regarding the distribution of any gratuities.

5. FEES AND TAXES.

5.1 Calculation of Fees.

For each Item sold by Vendor via the BiteTrucks Platform, Vendor will pay BiteTrucks as follows: the Retail Price (as defined below) of all Items that Vendor sells via the BiteTrucks Platform (including any Sales Tax collected on Vendor’s behalf) multiplied by the applicable fee percentage (“Fee”). BiteTrucks will remit to Vendor the total Retail Price collected for all Items Vendor sells via the BiteTrucks Platform (including any gratuity (tips) collected on its behalf) less: (a) the retained Fee; and (b) any refunds given to Customers (such final remitted amount being “Item Revenue”). All Item Revenue that is duly owed to Vendor will be remitted within fourteen (48) hours of the sale of the Item. Subject to the foregoing, all BiteTrucks Platform purchases are processed through third party gateways such as Square, Stripe, Paypal and are deposited in each respective Merchant account according to policies and processing schedule of the preferred solution, which is selected by each individual vendor. 

Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be calculated as follows:

i) Items: BiteTrucks will charge Vendor a fee percentage of 7.75% for each Item sold via the BiteTrucks App;

ii) Catering Lead Generation & Management: BiteTrucks will charge Vendor a fee percentage of 10% for each Catering Contract completed by BiteTrucks;

iii) Targeted Lead Generation & Management: Speak with your BiteTrucks sales team member.

iv) End User Platform usage: End Users (“Customers”) pay no fee to use the Platform.

vi) End User Mobile Ordering convenience fee: in association with the purchase of Items through the BiteTrucks Platform Mobile Ordering feature, BiteTrucks will charge the End Users (“Customers”) a fee of $0.00 per transaction.

For the sake of clarity, the End User Mobile Ordering fee is added onto the cost of each order and is transferred to BiteTrucks. For example, a $10.00 order will include the $.77 revenue percentage fee of 7.75%, plus local California tax of 7.25% for a total of $11.49, paid through the BiteTrucks Platform by the customer. 

If required by applicable law or regulation, BiteTrucks may adjust the Fee. Such adjustment may apply only to certain Items such as Alcohol Items. All Fees under this Agreement will be paid in U.S. Dollars. BiteTrucks or its affiliates will deduct the Fee from the payment BiteTrucks collects on Vendor’s behalf, as detailed in Section 5.3 below. BiteTrucks reserves the right to suspend Vendor’s ability to make Items available for purchase by Customers through the BiteTrucks Platform if Vendor’s account is in arrears. Each party will be responsible for its expenses and costs during its performance under this Agreement.

5.2 Activation Fee.

Unless otherwise agreed to by the Parties, in consideration of BiteTrucks’s work to activate Vendor on the BiteTrucks Platform, Vendor will pay BiteTrucks a Fee of $0 (“Activation Fee“). 

5.3 Retail Prices; Taxes.

BiteTrucks Services connect you with Customers who wish to purchase your Items. You are the “vendor”, or “seller” of all Items to be made available for sale via the BiteTrucks Platform. As such, you are responsible for determining and setting the retail price for each Item (the “Retail Price”), and you are ultimately responsible for the Sales Taxes for each retail item sold where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Taxes.

Vendor hereby authorizes BiteTrucks to collect applicable Sales Taxes on Vendor’s behalf based on information provided by Vendor through the BiteTrucks Tools. The BiteTrucks Tools’ functionality may be based on interpretations of federal, state, and local laws and regulations and information provided by taxing authorities. Vendor’s use of the BiteTrucks Tools, including any communications with BiteTrucks, in no way constitutes the provision of legal or tax advice.

Vendor shall promptly notify BiteTrucks if it believes any charges (or lack of charges) for Sales Taxes were erroneous or inaccurate. BiteTrucks expressly reserves the right to, upon prior notice to Vendor, remove affected Items from Vendor’s menu on the BiteTrucks Platform and/or deactivate Vendor from the Platform.

Certain legislation commonly known as “marketplace facilitator” laws (“Marketplace Facilitator Laws”) may require BiteTrucks to collect and remit Sales Taxes directly to the taxing authority. In jurisdictions with Marketplace Facilitator laws in effect that are applicable to BiteTrucks due to this Agreement (each a “Marketplace Facilitator Jurisdiction” beginning the effective date of such legislation), BiteTrucks may determine, as of a date specified by BiteTrucks (“Switchover Date(s)”), the amount of applicable Sales Tax which BiteTrucks will collect and remit to the taxing authority based on Item descriptions and Additional Information provided by Vendor. For the avoidance of doubt, for each Marketplace Facilitator Jurisdiction: (i) BiteTrucks will continue to collect Sales Taxes on behalf of, and remit such amounts to, Vendor until the applicable Switchover Date and (ii) beginning on the applicable Switchover Date, any covered Sales Taxes will be collected by BiteTrucks and remitted to the applicable tax authority on BiteTrucks’s own account, and not on behalf of Vendor.

5.4 Pricing

Notwithstanding anything to the contrary in this Section 5, Vendor may not make any Item available to Customers through the BiteTrucks Platform at a price that is higher than the price that Vendor charges on-site for similar Items. Vendor agrees not to make an Item available under this Agreement at a price higher than the amount Vendor is charging for similar Items through any comparable platform for food sales or delivery services.

5.5 Appointment of Limited Payment Collection Agent.

Vendor is solely responsible for providing BiteTrucks with, and maintaining, accurate bank account information. Vendor hereby appoints BiteTrucks and its affiliates, as the case may be, as Vendor’s limited payment collection agent solely for the purpose of: (i) accepting payment of the Retail Price of Items sold by Vendor via the BiteTrucks Platform plus any applicable Sales Tax collected on Vendor’s behalf, via the payment processing functionality facilitated by the BiteTrucks Tools, and (ii) remitting the Retail Price plus Sales Tax collected on Vendor’s behalf less the retained Fee and, if applicable, any refunds given to Customers on behalf of Vendor (“Item Revenue”). Further, Vendor agrees that payment collected on its behalf by BiteTrucks or its affiliates will be considered the same as payment made directly to Vendor. Vendor agrees that if Vendor does not receive payment from BiteTrucks or its affiliates, Vendor’s only recourse will be against BiteTrucks and its affiliates. BiteTrucks and its affiliates may, from time to time, request information from Vendor to confirm Vendor’s identity as may be necessary under any applicable compliance obligations before remitting any amounts to Vendor and may refuse to process amounts owed to Vendor if there exists a legal or regulatory risk or potential breach of law or regulation associated with such remittance to Vendor. Vendor agrees that BiteTrucks and its affiliates may describe or otherwise reflect the terms of this Section, and any related portions of the applicable Addendum, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent. If reasonable, BiteTrucks may adjust the remittance of Item Revenue collected on Vendor’s behalf for reasons including failure to fulfill an Item as ordered or making a correction on an Item. Vendor may identify any disagreements in connection with such adjustments through the BiteTrucks Tools, BiteTrucks Platform, or via email. BiteTrucks 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 Vendor’s behalf, by debiting the payment method or Vendor’s bank account on record, or otherwise seeking reimbursement from Vendor by any lawful collection methods available. Vendor authorizes BiteTrucks 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, BiteTrucks and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Vendor gives BiteTrucks and its affiliates express consent to adjust payments collected on Vendor’s behalf as set forth in this Section.

5.6 Additional Information.

BiteTrucks may, from time to time, require Vendor to provide certain additional information (“Additional Information”) pertaining to 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), identity of preparer, whether the item is “ready-to-eat”, or intended use. Vendor is solely responsible for providing requested Additional Information to BiteTrucks in a timely manner. If Vendor fails to timely provide Additional Information in response to notification and request by BiteTrucks, BiteTrucks expressly reserves the right to temporarily remove affected Items from Vendor’s menu on the BiteTrucks Platform until such Additional Information is received.

5.7 Account Deletion and Subscription Cancellation.

If a Vendor wants to delete his account and/or data from BiteTrucks, they can submit a request to sales@bitetrucks.com. If a Vendor has a paid membership and wants to upgrade, downgrade, or cancel the membership, he can do so through his user account in our Vender Portal on our website at BiteTrucks.com. You can also submit a direct request via email, phone, text, direct message on social media to one of our representatives. For upgrades/downgrades, credit will be applied to the Vendor account. For cancellations, no refunds will be provided.

6. REPORTING.

BiteTrucks may provide Vendor aggregate information regarding the number of Items sold by Vendor to Customers via the BiteTrucks Platform. BiteTrucks 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 BiteTrucks is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Vendor agrees that BiteTrucks may share Vendor’s transactional data regarding ordered meals, including sales data with Vendor.

7. INTELLECTUAL PROPERTY; CONTENT; MARKETING AND PROMOTIONAL ACTIVITIES.

7.1 Marks.

Subject to this Agreement, each party hereby grants to the other party (and, in the case of BiteTrucks, 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 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 Vendor’s Marks by BiteTrucks or its affiliates in connection with making Items available through the BiteTrucks Platform in the ordinary course of business will not require any such prior, express, written consent. Vendor further agrees that any use or display of BiteTrucks’s Marks will conform to the current version of BiteTrucks’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, Vendor represents and warrants that Vendor’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Vendor agrees that BiteTrucks or its affiliates may remove Vendor’s Marks from the BiteTrucks Platform if BiteTrucks or its affiliates receive notice or otherwise reasonably believe that such Vendor’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

7.2 Content.

BiteTrucks may provide you with interactive opportunities (i) on the Platform, including, without limitation, features such as deals & daily specials, favorite items, user profiles and pictures, as well as (ii) through other communications with you, including, without limitation, through push notifications, text (“SMS”) or multimedia (“MMS”) messages (collectively, “Interactive Areas“). You represent and warrant that you are the owner of and/or otherwise have the right to provide all information, comments, reviews, ratings, photographs and/or other materials and/or content that you submit, upload, post, publish, and/or otherwise make available to BiteTrucks through the BiteTrucks Platform or otherwise in connection with your use of the BiteTrucks Services, including, without limitation, information and materials provided or made available in connection with any Facebook, Google, or other third party login or integration (“Your Content”). Your Content includes, without limitation, your username and/or other user profile information such as your ratings history and how long you have been a BiteTrucks Vendor, textual, visual, or audio content and information, whether transmitted via the Platform, SMS or MMS message, or otherwise.

You grant BiteTrucks an irrevocable, transferable, paid up, royalty-free, perpetual, non-exclusive worldwide sublicensable license to use, copy, display, publish, modify, remove, publicly perform, translate, create derivative works from, distribute, and/or otherwise use Your Content in connection with BiteTrucks’s or its partners’ or affiliates’ business and in all forms of media now known or hereafter invented (collectively, the “Uses”). The Uses include, without limitation, use of your username and/or other user profile information such as your ratings history and how long you have been a BiteTrucks Vendor, to attribute Your Content to you on the BiteTrucks Platform, including in Interactive Areas and other public areas on our BiteTrucks Platform, or otherwise in connection with the BiteTrucks Services. All Uses will be made without notification to and/or approval by you and without the requirement of payment to you or any other person or entity. Further, if you provide any suggestions, input, or other feedback relating to the BiteTrucks Platform or the BiteTrucks Services we provide (collectively, the “Feedback”), BiteTrucks shall have the right to freely and fully exercise and exploit the Feedback in connection with our business or the business of our partners or affiliates, without notice to, approval by, or compensation to you. Accordingly, you hereby grant BiteTrucks a royalty-free, perpetual, irrevocable, transferable, sublicensable, worldwide, nonexclusive license to all rights necessary to incorporate and use the Feedback for any purpose.

You further understand and agree that you may be exposed to third-party content that is inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose. BiteTrucks and its parents, subsidiaries, affiliates, and each of their officers, directors, employees, successors, assigns, licensors, licensees, designees, business partners, contractors, agents and representatives (collectively, the “Released Parties”) will not be responsible for, and you hereby expressly release the Released Parties from any and all liability for the action of any and all third parties with respect to Your Content, or for any damages you allege to incur as a result of or relating to any third-party content.

7.3 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 BiteTrucks and Vendor prior to the commencement of any such activities.

7.4 Marketing.

BiteTrucks and its affiliates may showcase the availability of Vendor’s location, hours of operation, and Items (collectively, the “Vendor Profile”) via the BiteTrucks Platform through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). BiteTrucks (or a party designated by BiteTrucks acting on BiteTrucks’s behalf) may take video and still images for marketing and other efforts related to the BiteTrucks Platform (“BiteTrucks Photos”). Vendor agrees that BiteTrucks Photos (including all intellectual property rights therein) are and will remain the sole and exclusive property of BiteTrucks or its affiliates. Additionally, Vendor may provide videos, still image or other materials to BiteTrucks or its affiliates (“Vendor Marketing Materials”) for use in connection with the display of the Vendor Profile on the BiteTrucks Platform or the marketing and promotion of BiteTrucks and the availability of your Vendor Profile via the BiteTrucks Platform. Vendor hereby grants BiteTrucks and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Vendor Marketing Materials in connection with the Vendor Profile and other promotional activities relating to the BiteTrucks Services. Without limiting anything in the Agreement, Vendor represents and warrants that the Vendor Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Vendor Marketing Materials contain any third party materials, Vendor is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for BiteTrucks to be able to use the Vendor Marketing Materials in accordance with this Section. Vendor agrees that BiteTrucks or its affiliates may remove Vendor Marketing Materials from the BiteTrucks Platform if BiteTrucks or its affiliates receive notice or otherwise reasonably believe that such Vendor Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

7.5 Deals.

“Deal(s)” means short-term offers that are available through the BiteTrucks Platform to stimulate Customer demand. When a Deal is successfully applied to an order, Vendor authorizes BiteTrucks to charge Customers for the post-Deal value of an Item (not including taxes and applicable fees). Subject to BiteTrucks Platform functionality, BiteTrucks may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Deal.

i) Vendor Deal(s). Subject to any other guidelines or eligibility criteria for Deals that BiteTrucks may make available from time to time, BiteTrucks hereby authorizes Vendor to create Deals that are designed and fulfilled by Vendor (“Vendor Deal(s)”). Unless otherwise specified by BiteTrucks, Vendor will be solely responsible for defining each Vendor Deal (within the scope of functionality provided by BiteTrucks) either through the use of the Deals Tab (as defined below) or through the Deals Schedule (as defined below).

1. BiteTrucks authorizes Vendor to use BiteTrucks’s proprietary, automated, self-service tool located within the BiteTrucks Platform’s Deals Tab to create Deals, subject to the BiteTrucks Platform’s functionality and technical capability. If provided access to the tool, Vendor agrees to only use and access such 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. Vendor may create a Vendor Deal by completing and providing BiteTrucks with a written deals schedule. Vendor should contact its sales support representative.

ii) Co-Funded Deals(s). From time to time, BiteTrucks may agree to fund a portion of Vendor’s Deal (each, a “Co-Funded Deal”). For each such Co-Funded Deal, the parties shall agree to an applicable written Deals Schedule setting forth: (1) a description of the Co-Funded Deal; (2) the obligations of each party in relation to such Co-Funded Deal, including funding obligations; and (3) any other details regarding the Co-Funded Deal. For the sake of clarity, such Co-Funded Deal(s) shall appear to the Customer as both a Vendor Deal and a BiteTrucks Deal, and BiteTrucks shall issue an adjustment to Vendor’s payout (which shall also be reflected in any payout details report) to account for the amount of the Deal that BiteTrucks has agreed to fund, such that the Vendor shall receive the same amount in their Item Revenue for such order as if a BiteTrucks-funded portion of the Deal was not applied to such order.

iii) Parties’ Obligations. The parties’ obligations for each Deal will include the following, but may be expanded upon in an applicable Deals Schedule.

1. Vendor’s Obligations. Vendor will: (A) honor and fulfill the terms of Deals offered by Vendor (solely or jointly with BiteTrucks) to Customers who have successfully completed their order through the BiteTrucks Platform; (B) be responsible for the fees associated with the Deal up to the amount Vendor has agreed to fund for such Deal; and (C) upon reasonable request, supply BiteTrucks with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which BiteTrucks 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, Vendor acknowledges and agrees that Vendor will not be able to terminate the Agreement while a Deal is live.
2. BiteTrucks’s Obligations. BiteTrucks will: (A) honor and fulfill the terms of Deals offered by BiteTrucks (solely or jointly with Vendor) to Customers who have successfully completed their order through the BiteTrucks Platform; (B) be responsible for the fees associated with the Deal up to the amount BiteTrucks has agreed to fund such Deal; (C) upon reasonable request, supply Vendor with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Vendor shall use to market such Deal, provided that a Deals Schedule authorizes Vendor to market such Deal outside of the BiteTrucks Platform; and (D) use good faith efforts to provide Vendor with reasonable information regarding Deals, which may include, without limitation, the amount Vendor spent on Deals and the number of Items sold in connection with Deals.

iv) Fee on Deals Orders. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Vendor Deal or Co-Funded Deal to an order through the BiteTrucks Platform, the Fee shall be calculated based on the total Retail Value of the order minus the Vendor-funded portion of such Deal applied to that order. For the sake of illustrative purposes, if Vendor and BiteTrucks each fund $1 of a $2 off Deal (so the Co-Funded Deal is funded 50% by each party) on a $10 pre-Deal order total, the Fee shall be calculated on the post-Deal amount of $9.

7.6 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 Vendor’s Items to Customers through the BiteTrucks Platform 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 Vendor hereby authorizes BiteTrucks and its Affiliates to disclose the terms of this Agreement to Vendor’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.

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

Vendor is responsible for maintaining the integrity of information related to Vendor’s access and use of the BiteTrucks Tools and related BiteTrucks Services, including any password, login or key information. Vendor represents and warrants that Vendor 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, Vendor 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.

9. RATINGS.

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

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 Vendor, 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, Vendor further represents and warrants that to the extent Vendor has franchisees who participate in any activities under this Agreement, Vendor 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.

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 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 BiteTrucks Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Vendor’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Sales Tax applicable to sales of Items in non-Marketplace Facilitator Jurisdictions; (C) Vendor’s failure to provide accurate and complete descriptions or Additional Information for Items in Marketplace Facilitator Jurisdictions; (D) Sales Tax applicable to all sales of Items (regardless of whether such Items are sold through the BiteTrucks Platform); or (E) any claim related to Vendor’s failure to perform obligations contained in Section 2 of the Terms of Use for Alcoholic Items, if applicable, 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 BiteTrucks or its employees, agents or DSP..

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 VENDOR 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.

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.

Vendor will comply with the applicable then-current Community Guidelines. In addition, supplemental terms may apply to Vendor’s use of the BiteTrucks Services and the BiteTrucks Tools, such as use policies or terms related to certain features and functionality, which may be modified from time to time (collectively, with the Community Guidelines, “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. BiteTrucks will use good faith efforts to provide Vendor with written notice of any material updates to the Supplemental Terms, and, if Vendor does not agree to comply with the terms of any such update, Vendor may, as its sole and exclusive remedy, terminate this Agreement and cease use of the Services and Tools. By continuing to use the BiteTrucks Services or the BiteTrucks Tools, Vendor will be deemed to accept the Supplemental Terms. Notwithstanding anything to the contrary, the terms and conditions of BiteTrucks’s then-current Privacy Policy will apply to BiteTrucks’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 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 at any time without cause by giving thirty (30) 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 Deal period, such termination will not take effect until such Deal 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, BiteTrucks may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Vendor that, in BiteTrucks’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.

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 BiteTrucks should be provided to BiteTrucks, LLC, Attn: Legal- Vendor Contracts, 13400 COTTAGE WAY, STE G2 #10649 SACRAMENTO, CA 95825. Notices to Vendor should be provided to the address provided by Vendor. 

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:

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.

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 Sacramento, California, 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 any expenses of JAMS. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.

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 arbitrable 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.

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

19. ADDITIONAL TERMS.

The territory of this Agreement is the United States (“Territory”), and all payments issued under this Agreement must be in U.S. dollars. Vendor agrees to receive calls, SMS messages and other communications, sent by or on behalf of BiteTrucks 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. 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 Vendor, Vendor explicitly consents that any such transferee will have access to and control of all Vendor accounts related to such transfer, including its accounts with BiteTrucks, 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 Vendor’s Location(s), the parties will need to execute a Change of Ownership form and Vendor acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the BiteTrucks Platform until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will insure 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.

Last modified: 5/26/2023