PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING A MERCHANT ORDER FORM WITH FAVOR OR OTHERWISE AGREEING TO THESE TERMS, YOU OR THE ENTITY THAT YOU REPRESENT AGREE TO BE BOUND BY HEREBY. IN PARTICULAR, SECTION 8 REQUIRES THAT ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.

These Terms and Conditions (these “Terms”), together with the order form (“Order Form”) which makes reference to them (collectively, the “Agreement”), is entered into by and between NeighborFavor Inc., a Delaware corporation (“Favor”), and the Merchant set forth on the Order Form, effective as of the effective date set forth on the Order Form (the “Effective Date”).

1. Favor Service.

   (a) Favor offers a proprietary service (the “Favor Service”) designed to connect people who wish to place on-demand orders (“Users”) for food, beverages and other products from merchants with independent couriers who function as runners to provide delivery services to fulfill those orders (“Runners”).
   (b) Favor is not itself a courier service, nor does it supply any products to fill orders. Runners are not Favor employees, representatives or agents (rather, Runners are independent contractors that use the Favor Service to make the connection to Users and Merchants when orders are placed).
   (c) Favor will appoint an Account Manager (“Account Manager”) to serve as the primary point of contact for Merchant regarding its participation in the Favor Service. Favor will identify the initial Account Manager and provide Merchant with contact information contemporaneously with or shortly following the execution of this Agreement and will notify Merchant of any replacement Account Manager in a timely manner.

2. Merchant Participation.

   (a) Merchant hereby authorizes Favor to identify Merchant by name and logo as a participating merchant and grants Favor a royalty-free license to: (i) use such Merchant trademarks, service marks and logos as Merchant provides to Favor in connection with this Agreement and (b) use Merchant’s menu as well as photos, text, logo samples and other content as Favor reasonably requires (including the right to reformat and otherwise modify the foregoing in order to fit and display through Favor’s mobile applications and website), in each case to provide the Favor Service to Merchant and its User customers, to promote the Favor Service, and to perform its obligations under this Agreement. Favor hereby authorizes Merchant to identify the Favor Service as a delivery option to its customers and to use such Favor trademarks, service marks and logos as Favor provides to Merchant in connection with this Agreement for such purpose. Each of Favor and Merchant will use the other party’s trademarks, service marks and logos in such form as provided and otherwise in accordance with any usage guidelines that the other party provides.
   (b) As part of the Favor Service, during the term of this Agreement, Favor shall provide Merchant with access to an online portal (“Merchant Portal”) that displays certain metrics relating to sales generated via the Favor Service.
   (c) As between Favor and Merchant, Favor shall own all right, title, and interest in and to any data collected or generated from, or transmitted or made accessible via, the Favor Service, including any personal information provided by Users or data displayed within the Merchant Portal (“Favor Data”). Subject to the terms and conditions of this Agreement, Favor grants to Merchant a non-exclusive, non-transferable, non-sublicensable, royalty-free license during the term of this Agreement to use for Merchant’s internal business purposes the Favor Data that is (i) displayed within the Merchant Portal, or (ii) included in any aggregated reports provided by Favor to Merchant. Except as set forth above, Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner Favor Data except as required to perform as contemplated by this Agreement. Merchant shall keep Favor Data secure from unauthorized access and maintain the accuracy and integrity of Favor Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to Favor Data, Merchant will immediately notify Favor, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Favor. For the avoidance of doubt, any information that a User or customer of Merchant chooses to provide directly to Merchant shall not be considered Favor Data.
   (d) Favor’s pricing and the other terms of this Agreement, Favor Data, along with any technical information regarding the operation of the Favor Service and technology, is the confidential and proprietary information of Favor. Merchant agrees to treat all such information, whether provided to Merchant prior to or after the execution of this Agreement, as confidential, to not disclose it to any third party without Favor’s prior written permission and to use it only for purposes of using in the Favor Service.
   (e) Each party retains all rights in and to their individual products, services, technology, business methods, trademarks and other pre-existing intellectual property except as expressly granted in this Agreement. Merchant hereby assigns all rights in and to any comments, suggestions or other feedback that it may provide to Favor
   (f) All references and use by either party of the other’s trademarks, service marks or logos other than as contemplated by this Agreement will be subject to such party’s prior written approval.

3. Fees, Payment & Taxes.

   (a) Favor shall invoice Merchant following the end of each calendar month and Merchant shall pay amounts owed in accordance with the Authorization Agreement attached as Exhibit A to the Order Form (“Authorization Agreement”). Merchant is required to provide Favor a complete and accurate Authorization Agreement with the execution of this Agreement and to promptly deliver an updated Authorization Agreement if any of the information in a previously-provided version changes or upon Favor’s request. If any check or PayPal transaction is returned for nonsufficient funds, declined, reversed, challenged or otherwise fails for any reason, Merchant agrees to immediately pay the amounts owed pursuant to the applicable invoice by other means acceptable to Favor.
   (b) All fees are non-refundable and are due and payable in U.S. dollars. Merchant is solely responsible for handling refunds and determining any sales, use privilege, gross receipts, restaurant, excise or other tax due in connection with the sale of food or beverages under this Agreement. Merchant agrees to pay and/or reimburse Favor for any User refunds issued due to Merchant error. Merchant shall pay all such taxes and other amounts that it may owe as required by applicable law or regulation. If any fees are not paid in full by the payment due date set forth on each invoice, Favor reserves the right to charge the Merchant a finance charge of 1.5% per month (or the maximum permitted by law, whichever is lower) on the outstanding balance in addition to any related collection costs or attorney’s fees incurred by Favor. Additionally, Favor reserves the right to remove a Merchant from the Favor platform or block a Merchant’s access to the Favor Service if any fees or other amounts owed to Favor are past due.

4. Term & Termination.

   This Agreement will commence on the Effective Date and continue until terminated. Either party may terminate this Agreement at any time and for any reason upon three days written notice to the other party. The provisions of Sections 2(d), 3 (as to amounts owed as of termination), 6, 8 and 9 shall survive the termination for any reason. All other rights and obligations of the parties shall cease upon termination

5. Representations and Warranties.

   Merchant represents and warrants that (a) it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party, (b) the operation of its business, including without limitation the preparation and sale of food, beverage and other items, if any, will at all times comply with all applicable laws, rules, standards and regulations (including those relating to regulatory permits and licenses, food safety and sanitation, the sale of alcoholic beverages and other regulated products, data protection and privacy laws, and third party intellectual property or proprietary rights, as applicable); (c) the prices charged through the Favor service will not be higher than those charged to Merchant’s other customers for take-out or delivery of Merchant’s products; and (d) owns, licenses, or otherwise has secured all necessary intellectual property rights in and to any photos or other content shared with Favor in connection with this Agreement. THE FAVOR SERVICE IS PROVIDED “AS IS”, AND FAVOR HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, NON-INTERFERENCE AND NON-INFRINGEMENT. FAVOR DOES NOT WARRANT THAT THE FAVOR SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

   Additionally, if Merchant offers alcoholic beverages for delivery, Merchant represents and warrants that: (A) Merchant shall comply with all federal, state, or local laws regarding the preparation, sale, and delivery of alcohol applicable to it, including all applicable Texas Alcoholic Beverage Commission (“TABC”) requirements (as updated), (B) Merchant currently holds, and will continue to maintain, adequate permits and licenses required by the TABC to authorize them to offer alcoholic beverages for delivery (including but not limited to an MB permit combined with a Food & Beverage Certificate, a BG permit but not also held with a BP license, a BQ permit, a Q permit, BF license or a P permit), and will immediately notify Favor of any changes thereto, (C) Merchant shall be primarily responsible for ensuring compliance with TABC packaging and preparation requirements, including, when required by law, ensuring that all alcohol orders are accompanied by a food order that was prepared on-premise and that alcoholic beverages are either in the original container sealed by a manufacturer (as such requirements may be modified or superseded by regulatory, legislative, or executive action), and (D) Merchant shall accept returns of alcohol orders that were undeliverable for any reason.  Furthermore, if Favor delivers alcoholic beverages from Merchant, Favor represents and warrants that (E) Favor currently holds, and will continue to maintain, either a Carrier Permit, Consumer Delivery Permit, or other permit under the Alcoholic Beverage Code of the State of Texas authorizing it to deliver alcoholic beverages, (F) Favor will be responsible for complying with all TABC requirements applicable to it, and has implemented processes and procedures, software features, and/or other precautionary measures designed to ensure compliance, and (G) orders including alcoholic beverages will only be offered to Runners who are twenty-one years of age or older and who have undergone a background check in the last twelve months, if not sooner, and who will be responsible for ensuring that the recipient of such order is twenty-one years of age or older and not intoxicated.  For the avoidance of doubt, both parties acknowledge and agree that Merchant shall have and maintain exclusive control over all alcoholic beverages purchased, stored, or sold by it, including sole control over all prices and funds from a transaction involving the sale of alcoholic beverages, and that title to all alcoholic beverages will pass directly from Merchant to the end-user and shall at no time pass to Favor or any Runner, provided however that that Merchant hereby authorizes Favor to act as its agent for the collection of funds and delivery of products in connection with any such transactions facilitated through the Favor Platform.

6. Mutual Indemnification and Limitation on Liability.

   (a) (i) Each party shall indemnify, defend, and hold the other party, its affiliates, and each of their directors, officers, shareholders, employees, independent contractors, and agents harmless from and against all third-party claims, suits and proceedings and all damages, fines, penalties, liabilities and other amounts awarded in final resolution thereof and the costs and expenses (including reasonable attorneys’ fees) incurred by the indemnified party in connection with such claim, suit or proceeding to the extent arising from (A) the failure by such party or any of its employees, agents or independent contractors (for clarity, Runners are solely the independent contractors of Favor) to comply with applicable law or regulatory requirements, (B) any personal injury, death or damage to property caused by such or its employees, agents or independent contractors or, in the case of Merchant, any product sold thereby, (C) such party’s breach of any representations or warranties hereunder, or (D) any infringement by such party or any of its services, products, technologies, materials, trademarks, service marks or logos of the intellectual property or proprietary rights of any third party.
   (ii) The indemnifying party’s obligations under this Section 6(a) are conditioned upon the indemnified party providing the indemnifying party with prompt written notice to the claim (provided that the failure to provided such notice will not relieve the indemnifying party of its obligations unless such failure prejudices its ability to defend the claim), control of the defense (provided that the indemnified party may participate with counsel of its choosing at its own expense), and such assistance as the indemnifying party may reasonable request.
   (b) NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY MERCHANT TO FAVOR IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION LOST PROFITS. THESE LIMITS AND EXCLUSIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE INTENDED TO BE CUMULATIVE AND NOT PER INCIDENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE ABOVE LIMITATIONS SHALL NOT APPLY TO PAYMENT OBLIGATIONS FOR SERVICES PROVIDED HEREUNDER (WHICH SHALL HAVE NO LIMITATION) OR CONFIDENTIALITY OR INDEMNIFICATION OBLIGATIONS HEREUNDER (WHICH IN THE AGGREGATE SHALL BE LIMITED TO THE HIGHER OF (I) TWO HUNDRED AND FIFTY THOUSAND DOLLARS OR (II) AVAILABLE INSURANCE COVERAGE PROCEEDS).  

7. Insurance.

   Unless otherwise mutually agreed in writing (which may include e-mail), during the term of this Agreement each party shall, at its sole cost and expense, maintain in full force and effect the following insurance coverage: (a) Commercial General Liability insurance in an amount of not less than one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) in the aggregate; and (b) Workers’ Compensation insurance (covering employees, not independent contractors) with statutory limits for all applicable state regulations (or be a nonsubscriber under Texas law). Additionally, Favor agrees to maintain the following coverages: (x) automobile liability with minimum limits of at least one million dollars ($1,000,000) per occurrence combined single limit inclusive of owned, hired, and non-owned vehicles, and (y) Umbrella/Excess Liability with a limit not less than three million dollars ($3,000,000) per claim and in the aggregate. Notwithstanding anything to the contrary elsewhere, Merchant acknowledges and agrees that Favor may satisfy all of its insurance obligations hereunder through a system of self-insurance or self-retention amounts or policies maintained by Favor or its affiliates. Each party agrees to provide a Certificate of Insurance evidencing the above coverages to the other upon request. For clarity, Favor contractually requires each Runner to maintain automobile liability insurance that provides protection against bodily injury and property damage to third parties at levels of coverage that satisfy the minimum requirements to operate a private passenger vehicle on the public roads within the area in which the Runner operates, which coverage must also include any additional endorsements required by their insurance carrier to cover commercial activities and any no-fault coverage required by law.

8. Governing Law and Arbitration.

   This Agreement shall be governed by and construed under the laws of the State of Texas, without reference to conflict of law principles. Any dispute or claim arising out of or related to this Agreement, or the interpretation, making, performance, breach, validity or termination thereof, shall be finally settled by binding arbitration in Austin, Texas under the American Arbitration Association Commercial Arbitration Rules (together the “AAA Rules”) by one neutral arbitrator appointed in accordance with the AAA Rules. The arbitrator shall apply Texas law to the merits of any dispute or claim, without reference to rules of conflict of law. The arbitrator shall have the power to decide all questions of arbitrability. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration requirement and without any abridgment of the powers of the arbitrator. MERCHANT AGREES TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.

9. Miscellaneous

   The relationship of the parties established hereby is that of independent contractors; neither party has authority to bind the other. This Agreement is the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior discussions between them, unless a separate mutually executed written agreement exists between the parties in which case such written agreement shall govern. Favor reserves the right, at its sole discretion, to change, suspend, or discontinue the Favor Service (including without limitation, the availability of any feature or content) at any time. Favor also may revise these Terms from time to time, with the most recent version available at www.favordelivery.com/merchant-terms. Favor will notify Merchants of material revisions via a service notification or an email to the email associated with your account. By continuing to access or use the Favor Service after those revisions become effective, you agree to be bound by the revised Terms. Any notice required or permitted hereby shall be deemed given three days after deposit with postal authorities if sent by registered mail, postage prepaid, addressed to the other party at the address shown on the first page of this Agreement or other address provided for such purpose. Merchant may not assign its rights and obligations hereunder without the written consent of Favor. Favor may assign this Agreement at its discretion. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of remaining provisions. Any purported assignment in violation of the foregoing will be void.

 

Last Updated: July 7, 2020