rescueBite Merchant Terms and Conditions

BY (1) OPENING A RESCUEBITE MERCHANT’S ACCOUNT, OR (2) 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.

PRICING

1. All Surplus food items & beverages are listed at a minimum of 50% discount.

2. A 15% commission fee applies on each item successfully ordered via the rescueBite website or mobile App.

3. Payouts are scheduled weekly on Mondays at no cost. Requested daily payouts incur a small 3% transaction fee to cover the bank charges. Please allow one day and bank settlement duration, which is usually 2-3 business days. PLEASE NOTE: Banks will not process payments on Weekends and Public Holidays, so expect your Friday and weekend payments to be processed on the following Monday and your public holiday payments to be processed the next working day.

Device fee (optional): If you DO NOT have your own Android or iOS mobile device (Tablet or Smartphone) to accept rescueBite orders on your rescueBite Store App, you can pay a ZAR3,500.00 one-time fee to cover your Tablet and its Tablet Stand Holder along with the rescueBite App installed, plus rescueBite signage and stickers. Delivery is free!

NOTICE: Merchant shall not use the rescueBite App to sell spoiled surplus food or food not safe for human consumption. In the event that a Merchant is found to have sold to a rescueBite user any spoiled food or food not safe for human consumption, the Merchant shall be responsible for any harm, damage or loss resulting from the consumption of its spoiled food items(s). Merchant shall also be liable to customer refunds and the incurred refund transaction costs.

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 rescueBite sign up process or that executes an Order Form or related agreement (in either case, “Merchant” or “You”) and rescueBite. 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. rescueBite 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 rescueBite (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 rescueBite 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 rescueBite. 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.

rescueBite and its affiliates make available certain proprietary technology services that facilitate the marketing, sale, and fulfilment 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 Merchant is eligible to offer the sale and fulfilment of alcoholic beverages through specified Sales Channels (“Alcohol Items”), 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 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, rescueBite 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 rescueBite’s and its affiliates’ proprietary technology platform, through which Merchant may, among other things, receive, accept and fulfil 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. Such Sponsored Listings are governed by the terms located here.

2.3 The Application(s).

rescueBite 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.

Merchant may request access to sell and deliver Items via various services provided by rescueBite: 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 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: 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 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 rescueBite). Additional Merchant Managed Delivery Sales Channel Addendum terms apply.

3. RESCUEBITE OBLIGATIONS.

3.1 Access to Services.    

Subject to the terms and conditions of this Agreement, rescueBite 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 rescueBite current and accurate Location information throughout the Term of this Agreement. In connection with the provision of Services to Merchant, rescueBite 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, rescueBite 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 rescueBite, rescueBite 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 rescueBite nor its affiliates provide any delivery services. Rather, rescueBite provides technology services that both (i) enable Merchant to connect with Customers who may purchase Items from Merchant and (ii) enable Delivery People to seek, receive and fulfil 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 fulfil on-demand requests for delivery services using rescueBite’s proprietary technology under license from rescueBite or its affiliates.

4. MERCHANT OBLIGATIONS.

4.1 Availability of Items.

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 labelling 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 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”), rescueBite 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 at all times will remain, accurate. In addition, Merchant 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.

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. rescueBite may, in its sole discretion, deduct reimbursement costs from the payment rescueBite remits to Merchant in accordance with this Section 4. Merchant agrees that neither rescueBite nor the Delivery Person takes title to any Item at any time. In the event that a merchant would rather replace the order or missing order items instead of agreeing to a refund, the merchant shall also be responsible for the delivery costs incurred in that process.

4.3 Devices.    

If rescueBite 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 rescueBite 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 rescueBite within ten (10) days. If Merchant receives a wireless data plan for the Device, rescueBite 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 rescueBite 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 rescueBite (a “Third Party Access Service”), Merchant agrees that Merchant’s obligations described herein shall apply to Merchant’s use of the Services and Tools via any Third Party Access Service unless otherwise agreed to between rescueBite 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 rescueBite shall not waive, suspend, or otherwise affect Merchant’s obligations described herein. Merchant remains solely responsible for the accuracy of information provided to rescueBite through any Third Party Access Service. Additionally, ongoing access to the Services and Tools via any Third Party Access Services is subject to rescueBite’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 rescueBite); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by any other government agency. 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, “rescueBite Data”) to directly or indirectly compete with rescueBite or its affiliates or the Services, including, without limitation, rescueBite Data that Merchant receives from rescueBite 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. rescueBite may remove from—or otherwise limit your ability to post to—a Merchant’s menu any Items rescueBite deems prohibited or inappropriate in its sole discretion. For clarity, alcohol is only permitted on the App(s) if Merchant has agreed to rescueBite’s separate Alcohol Order Form.

rescueBite 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 Merchant, Merchant agrees to allow Customers to provide gratuities through the App(s). rescueBite shall remit to Merchant the full value of any gratuities provided by Customers. It is 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, SMS messages and other communications, including those made available by autodialer or using an artificial or pre-recorded voice, sent by or on behalf of rescueBite or its affiliates.

5. FEES AND TAXES.

5.1 Calculation. 

rescueBite will deduct applicable fees (“Fees”) from Item Revenue remitted to Merchant as further described herein. rescueBite will remit to Merchant the total Retail Price collected for all Items 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, rescueBite 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. rescueBite or its affiliates will deduct the Fee from the payment rescueBite collects on Merchant’s behalf. rescueBite reserves the right to suspend Merchant’s ability to make Items available for purchase by Customers through the App(s) if 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. All Fees under this Agreement will be paid in local currency.

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”).

Unless otherwise agreed to by the parties or 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): rescueBite will charge Merchant a fee percentage of 30% for each Item sold via the App(s) through the Full Service Sales Channel;

ii) PICK-UP SALES CHANNEL: rescueBite will charge Merchant a fee percentage of 15% for each Item sold via the App(s) through the Pick-Up Sales Channel;

iii) MERCHANT MANAGED DELIVERY SALES CHANNEL: rescueBite will charge Merchant a fee percentage of 15% for each Item sold via the App(s) through the Merchant Managed Delivery Sales Channel.

5.3 Order Processing Fee.

For the use of certain Services related to order processing and related expenses as identified by rescueBite, rescueBite may charge Merchant a Fee (the “Order Processing Fee”).

5.4 Delivery Network Fee.

If selected by Merchant, rescueBite shall charge Merchant a flat fee per order for connecting Customers 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.

5.5 Device Fee.

In the event that a Merchant needs rescueBite to supply a mobile device to access the rescueBite platform, Merchant will pay to rescueBite a Device Fee of ZAR3,500.00 ("Device Fee"). If agreed, rescueBite may deduct the Device Fee from Merchant's Item Revenue.

5.6 Taxes.

The rescueBite Services connect you with Customers who wish to purchase your Items. You are the “merchant”, “retailer”, or “seller” of all Items to be made available for sale via the App(s). As such, you are responsible for determining and setting the retail price for each Item (the “Retail Price”). You are also responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, food & beverage, 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.

Merchant hereby authorizes rescueBite to collect applicable Sales Taxes on Merchant's behalf based on information (including, without limitation, Item descriptions and Additional Information) provided by Merchant to rescueBite through the Tools or in a manner as otherwise agreed to by the Parties. The Tools’ functionality may be based on interpretations of federal, state, and local laws and regulations and information provided by taxing authorities. Merchant’s use of the Tools, including any communications with rescueBite, in no way constitutes the provision of legal or tax advice.   

While the Tools provide a means to apply Sales Taxes to your transactions, the Tools may not currently support Sales Tax configurations applicable to certain Items which you desire to sell via the rescueBite App(s). In such cases, rescueBite retains sole discretion regarding whether you may offer such Items for sale via the App(s). rescueBite may from time to time give Merchant notice of certain Items or Item categories that are not supported by the Tools and must be removed from the App(s) (“Unsupported Items”). Merchant hereby agrees to comply with such notice, provided that if Merchant does not comply, Merchant shall be solely responsible for all risk of loss associated with the continued sale of such Unsupported Items. Merchant shall promptly notify rescueBite if it believes any charges (or lack of charges) for Sales Taxes were erroneous or inaccurate. If Sales Taxes charged by Merchant are not in accordance with (or in violation of) any law or regulation, rescueBite expressly reserves the right to, upon prior notice to Merchant, remove affected Items from Merchant’s menu on the App(s) and/or deactivate Merchant from the App(s).    

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

5.7 Pricing.    

Notwithstanding anything to the contrary in this Section 5, Merchant may not make any Item available to Customers through the App(s) at a price that is higher than the price that Merchant charges in-store for similar Items. Merchant agrees that you will not make an Item available under this Agreement at a price higher than the amount Merchant is charging for similar Items through any comparable platform for food delivery services.

5.8 Appointment of Limited Payment Collection Agent.

Merchant is solely responsible for providing rescueBite with, and maintaining, accurate bank account information. Merchant hereby appoints rescueBite 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, rescueBite may adjust the remittance of Item Revenue collected on Merchant’s behalf. rescueBite 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 rescueBite 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, rescueBite and its affiliates reserve the right to cancel a payment entirely. By agreeing to these terms, Merchant gives rescueBite 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 rescueBite or its affiliates will be considered the same as payment made directly to Merchant. Merchant agrees that if Merchant does not receive payment from rescueBite or its affiliates, Merchant’s only recourse will be against rescueBite and its affiliates.    

5.9 Payment Compliance.

rescueBite and its affiliates may, from time to time, request information from Merchant to confirm Merchant’s identity as may be necessary under any applicable compliance obligations before remitting any amounts to Merchant. rescueBite may reduce or withhold amounts owed to Merchant if: 1) Merchant fails to provide tax or employer identification information to rescueBite 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 rescueBite 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.  

5.10 Additional Information.

rescueBite 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 rescueBite in a timely manner. If Merchant fails to timely provide Additional Information in response to notification and request by rescueBite, rescueBite expressly reserves the right to temporarily remove affected Items from Merchant’s menu on the App(s) until such Additional Information is received.  

6. REPORTING.

rescueBite 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. rescueBite 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 rescueBite is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that rescueBite 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 rescueBite, 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. 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 rescueBite 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 rescueBite’s Marks will conform to the current version of rescueBite’s Brand Guidelines. 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 rescueBite or its affiliates may remove Merchant’s Marks from the App(s) if rescueBite 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 rescueBite and Merchant prior to the commencement of any such activities.

7.3 Marketing.     

rescueBite 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). rescueBite (or a party designated by rescueBite acting on rescueBite’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 rescueBite or its affiliates. Additionally, Merchant may provide videos, still image or other materials to rescueBite or its affiliates (“Merchant Marketing Materials”) for use in connection with the display of 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 rescueBite 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. rescueBite agrees that the Merchant Marketing Materials shall remain Merchant’s sole and exclusive property. Without limiting anything in the Agreement, Merchant represents and warrants that the Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Merchant Marketing Materials contain any third party materials, Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for rescueBite to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that rescueBite or its affiliates may remove Merchant Marketing Materials from the App(s) if rescueBite 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 rescueBite to charge Customers for the post-Promotional value of an Item (not including Sales Taxes and applicable Fees). Subject to App(s) functionality, rescueBite 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 rescueBite 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 rescueBite, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by rescueBite) either through the use of the Promotion Tool or through the Promotion Schedule (as defined below).  

1) rescueBite authorizes Merchant to use rescueBite’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 rescueBite with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to rescueBite 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 rescueBite under the terms of this Agreement. To request a form Promotion Schedule, Merchant should contact its customer support representative. 

ii) Co-Funded Promotion(s). From time to time, rescueBite may agree to fund a portion of Merchant’s Promotion (each, a “Co-Funded Promotion”). For each such Co-Funded Promotion, the parties shall agree on a written Promotion Schedule setting forth: (1) a description of the Co-Funded Promotion; (2) the obligations of each party; and (3) any other details regarding the Co-Funded Promotion. For the sake of clarity, if Merchant is the owner of Location(s), such Co-Funded Promotion shall appear to the Customer as a Merchant Promotion, and rescueBite shall issue an adjustment to Merchant’s Item Revenue to account for the amount of the Promotion that rescueBite has agreed to fund.    

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

1) Merchant’s Obligations. Merchant will: (A) fulfil the terms of Promotions offered by Merchant (solely or jointly with rescueBite) 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 rescueBite with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which rescueBite 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) rescueBite’s Obligations. rescueBite will (A) honour and fulfil the terms of Promotions offered by rescueBite (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 rescueBite 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.

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

v) Out of 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 rescueBite’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 rescueBite 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 Passwords.

Merchant is responsible for maintaining the integrity of information related to 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.

8.3 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.

8.4 Feedback.   

Merchant may, but is not obligated to, provide or otherwise make available to rescueBite or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to rescueBite’s and its affiliate’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to rescueBite or its affiliates, Merchant hereby grants to rescueBite 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”). rescueBite and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of rescueBite and its affiliates without attribution to or approval of Merchant. Merchant acknowledges that rescueBite and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that rescueBite 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 rescueBite’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 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.

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 wilful 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 rescueBite 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; (D) Merchant’s failure to comply with a notice with respect to Unsupported Items; or (E) 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)-(E) above, to the extent such harm was directly caused by the gross negligence or wilful misconduct of rescueBite or its employees, agents or Delivery People.

11.2 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.

12. LIMITS OF LIABILITY.

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

Merchant will comply with the applicable then-current Community Guidelines. Notwithstanding anything to the contrary, the terms and conditions of rescueBite’s Privacy Policy, are incorporated and apply to rescueBite’s collection, use and processing of personal data.

15. TERM AND TERMINATION.

This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), at any time without cause by giving 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 fulfil any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, rescueBite 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 rescueBite’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 rescueBite support at support@rescuebite.com. 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 rescueBite will be served on rescueBite’s support email address: support@rescuebite.com.

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 an appointed arbitrator. 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, scope, 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, prior to submitting a demand for arbitration, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree:

i) 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.

ii) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration.

iii) The seat, or legal place, of arbitration will be Johannesburg, South Africa.

iv) The language to be used in the arbitral proceedings will be English.

v) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed.

vi) 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.

vii) 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.

viii) 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. Notwithstanding any other provision of this Arbitration Provision, disputes in court or arbitration regarding the validity, enforceability, conscionability or breach of this Class Action Waiver, or whether this Class Action Waiver is void or voidable, may be resolved only by the court and not by an arbitrator. In any

case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial

determination that all or part of this Class Action Waiver is unenforceable, the class or collective

action to that extent must be litigated in a civil court of competent jurisdiction, but the portion

of this Class Action Waiver that is enforceable shall be enforced in arbitration.

ix) Arbitrator fees and any expenses shall be split equally between the parties. 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. 

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

19. ADDITIONAL TERMS.

The territory of this Agreement is South Africa (“Territory”), and all payments issued under this Agreement must be in South African ZAR. 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 Merchant, Merchant explicitly consents that any such transferee will have access to and control of all Merchant accounts related to such transfer, including its accounts with rescueBite, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Merchant’s Location(s), the parties will need to execute a Change of Ownership form and Merchant acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.


Last modified: 11/2/2020



Terms of Use for Alcohol Sales

These Terms of Use for Alcohol Sales (“Alcohol Sales Terms”), made subject to the terms and conditions of that certain agreement between Merchant and rescueBite, (“rescueBite”) related to Merchant’s access to the rescueBite App Sales Channels (the “Agreement”), shall govern Merchant’s rights and obligations related to the sale by Merchant of Alcohol Items (defined below) via the rescueBite App.


1. GENERAL  

Upon acceptance, these Alcohol Sales Terms are incorporated by reference into and hereby made a part of the Agreement. Subject to these Alcohol Sales Terms, the definition of “Items” (or “Meals,” as applicable) in the Agreement shall now be expanded to include Alcohol Items.

These Alcohol Sales Terms contain the parties’ full and complete understanding and agreement relating to the subject matter hereof and supersede all prior and contemporary understandings and agreements, whether oral or written, related to such subject matter. For clarity, these Alcohol Sales Terms do not alter Merchant’s relationship with rescueBite. Except as modified herein, the remaining terms of the Agreement shall remain unchanged and in full force and effect and these Alcohol Sales Terms shall prevail in the event of any conflict with the terms of the Agreement.

2. TERMS RELATED TO THE SALE OF ALCOHOL ITEMS VIA THE RESCUEBITE APP

Merchant may choose to make alcoholic beverages (“Alcohol Items”) available for sale via the rescueBite App, subject to applicable laws and regulations and the following terms and conditions:


2.1. Representations and Warranties

Merchant represents and warrants that (a) Merchant shall comply with all laws and regulations related to the sale of Alcohol Items applicable to Merchant, including without limitation, all laws and regulations related to the promotion, packaging, sale, taxation and delivery of Alcohol Items; and (b) Merchant has and will continue to have during the Term of the Agreement all licenses, permits, or similar authorizations that may be required for it to sell Alcoholic Items (“Required Licenses”), including without limitation, Required Licenses for the specific categories of Alcohol Items that Merchant makes available via the rescueBite App and/or Required Licenses to sell and deliver Alcohol Items in a given state or local jurisdiction

2.2. Role of the Parties

For the avoidance of doubt, (i) rescueBite is an unlicensed entity that facilitates the promotion, marketing, and/or sale of Alcohol Items by third parties via the rescueBite App; and (ii) Merchant is a licensed seller of alcoholic beverages that wishes to sell Alcohol Items via the rescueBite App. Orders for Alcohol Items solicited via the rescueBite App will be transmitted to Merchant. Merchant is responsible for, will be clearly identified during, and shall control the sale of any orders for Alcohol Items, including any decisions regarding accepting, fulfilling, and rejecting orders for Alcohol Items.

2.3. Alcohol Laws and Requirements

Each party is responsible for taking any steps it deems reasonably necessary to inform itself of the applicable laws, codes, regulations, licenses, and any other similar requirements related to the sale and delivery of Alcohol Items.

2.4. Alcohol Licenses 

Before Merchant may offer Alcohol Items for sale via the rescueBite App, Merchant shall provide copies of applicable Required Licenses to rescueBite. Merchant will (i) immediately notify rescueBite of any change or modification to any of its Required Licenses (e.g., expiration, revocation, renewal, termination, etc.), and (ii) immediately provide rescueBite with any new or updated Required Licenses. Merchant acknowledges that rescueBite may remove Alcohol Items from Merchant’s menu on the rescueBite App or suspend Merchant’s account entirely if it fails to comply with its obligations herein.  

2.5. Packaging and Labelling

Merchant will package Alcohol Items appropriately for delivery, including (i) any protection necessary to prevent tampering or damage due to any cause, including inclement weather or the nature of the Alcohol Items themselves; and (ii) any labelling required by law, including but not limited to including a statement that the package contains alcohol and may only be delivered to a person 18 years or older with valid proof of age and identity.

2.6. Hours Availability

Merchant agrees that rescueBite may modify the hours during which Alcohol Items are available for purchase and delivery from Merchant on the rescueBite App in accordance with applicable law and regulation as well as operational considerations of the rescueBite App. rescueBite will use reasonable efforts to notify Merchant of any such modifications.

2.7. Payment Instructions  

Merchant instructs rescueBite (including its affiliates for purposes of this clause) to (i) collect payments for Alcohol Items that Customers purchase from Merchant via the rescueBite App (“Customer Payments”) on Merchant’s behalf into rescueBite FBO account held for the benefit of Merchant and other merchants who sell Alcohol Items on the rescueBite App (the “FBO Alcohol Account”); (ii) then transfer, on Merchant’s behalf, Customer Payments from the FBO Alcohol Account to the bank account that Merchant provides to rescueBite (“Merchant Account”); (iii) withhold from Customer Payments any fees or obligations owed to rescueBite, and withhold from Customer Payments, and then deliver to, any fees or obligations owed to the Delivery Person.

2.8. Returns Generally  

Merchant acknowledges that the Delivery Person or Customers may be required to return the Alcohol Item to Merchant for the below reasons. Merchant agrees to accept the return of Alcohol Items in such cases. Merchant understands and agrees that if such Alcohol Item is returned, Merchant shall not be paid for such items.

ii) Such Delivery Person is unable to deliver an Alcohol Item pursuant to applicable law;

ii) The Customer is unable to accept an Alcohol Item pursuant to applicable law;

iii)The Alcohol Item in question constitutes a Substandard Item (defined in the Agreement) as determined by the Delivery Person or Customer. In the event Merchant provides an Alcohol Item that is a Substandard Item, Merchant is responsible for disposing of such Substandard Item.

2.9. Promotions and Advertising

Merchant agrees to follow all laws and regulations related to its advertisement and promotion of Alcohol Items, including but not limited to, only creating Merchant Promotions for Alcohol Items that comply with applicable local laws, Alcohol and Tobacco Tax and Trade Bureau and Federal Trade Commission guidelines, and following industry best practices.

3. FULFILLMENT METHODS

As permitted by applicable laws and regulations, Merchant may make Alcohol Items for sale via the rescueBite App via the following Sales Channels: Marketplace, Merchant Managed Delivery, and Non-Delivery, subject to Merchant eligibility for such Sales Channel and the below additional terms and conditions for usage of such Sales Channel.

4. MARKETPLACE SALES CHANNEL TERMS

If Merchant elects to offer Alcohol Items via the Marketplace Sales Channel, Merchant agrees to the following:

4.1. Delivery Person

Each Delivery Person shall deliver Alcohol Items under and pursuant to Merchant’s Required Licenses and, as necessary, as Merchant’s third-party beneficiary. Merchant agrees that Delivery People shall conduct the delivery and are therefore responsible for verifying the age and identity of Customers and confirming Customers are not intoxicated when completing delivery. rescueBite shall provide in-app screens and tools for Delivery People to help complete Customer ID verifications compliantly. Where applicable or required by law, the in-app screen may enable the Delivery Person to capture a photo of the Customer’s ID and signature.

4.2. Return Fee

If a Delivery Person is unable to deliver an Alcohol Item(s) due to an act or omission of the Customer who purchased the Alcohol Item(s) from Merchant, then Merchant agrees that the Customer may be charged a fee for the return (the “Return Fee”), the amount of which shall be determined according to the standard fares charged by Delivery People in the region. Merchant agrees that it has no right to the Return Fee and the Return Fee will be used to pay the Delivery Person for the return of the Alcohol Item.


5. MERCHANT MANAGED DELIVERY AND NON-DELIVERY SALES CHANNEL TERMS

If Merchant elects to offer Alcohol Items via the Merchant Managed Delivery and/or Non-Delivery Sales Channels, Merchant acknowledges and agrees to the following:

5.1. Verification of Customer

Merchant agrees it is Merchant's responsibility to verify the age and identity of the Customer and confirm that the Customer is not intoxicated when delivering Alcohol Items to the Customer (for the Merchant Managed Delivery Sales Channel) or when the Customer picks up the alcohol from Merchant (for the Non-Delivery Sales Channel). Merchant disclaims rescueBite and its affiliates from any and all liability related to Merchant’s noncompliant delivery of Alcohol Items via these Sales Channels.  

5.2. Return Notifications

Merchant agrees to notify rescueBite via the rescueBite Tools or by contacting rescueBite support if Merchant is unable to compliantly sell Alcohol Item(s) to a Customer via the Merchant Managed Delivery and Non-Delivery Sales Channels. Merchant agrees that in order for rescueBite to issue a refund, Merchant must first notify rescueBite of such return. 

5.3. Merchant Managed Return Fee

If Merchant Managed Delivery Staff is unable to deliver an Alcohol Item due to the act or omission of the Customer who purchased such Alcohol Item from Merchant, then Merchant agrees that the Customer may be charged a return fee (the “Merchant Managed Return Fee”), the amount of which shall be determined by rescueBite. If the Customer is charged a Merchant Managed Return Fee, rescueBite shall remit such fee to Merchant. 


6. SALES CHANNEL FEES

Unless otherwise agreed to by the parties or modified by requirement of applicable laws and regulations, the Fee rescueBite charges Merchant for the sale of Alcohol Items shall be calculated as follows:

6.1. Marketplace Sales Channel

rescueBite will charge Merchant a fee percentage of 30% for each Alcohol Item sold via the rescueBite App through the Marketplace Sales Channel; 

6.2. Non-Delivery Sales Channel

rescueBite will charge Merchant a fee percentage of 15% for each Alcohol Item sold via the rescueBite App through the Non-Delivery Sales Channel;

6.3. Merchant Managed Delivery Sales Channel

rescueBite will charge Merchant a fee percentage of 15% for each Alcohol Item sold via the rescueBite App through the Merchant Managed Delivery Sales Channel.

6.4. Flat-Based Fee

Notwithstanding the foregoing, if any of Merchant’s Locations are in states or jurisdictions that prohibit percentage-based fees for delivery of Alcohol Items, Merchant agrees that rescueBite shall charge Merchant a flat fee (the “Alcohol Service Fee”) for facilitating the delivery of all Alcohol Items. For clarity, rescueBite shall continue to charge Merchant the applicable Fee for all other Items as set forth elsewhere in the Agreement. rescueBite will invoice Merchant for any owed Alcohol Service Fee(s) and Merchant shall make such payment in accordance with the terms of such invoice.  


Pricing

1. All Surplus food items & beverages are listed at a minimum of 50% discount.

2. A 15% commission fee applies on each item successfully ordered via the rescueBite website or mobile App.

3. Payouts are scheduled weekly on Mondays at no cost. Requested daily payouts incur a small 3% transaction fee to cover the bank charges. Please allow one day and bank settlement duration, which is usually 2-3 business days. PLEASE NOTE: Banks will not process payments on Weekends and Public Holidays, so expect your Friday and weekend payments to be processed on the following Monday and your public holiday payments to be processed the next working day.

Device fee (optional): If you DO NOT have your own Android or iOS mobile device (Tablet or Smartphone) to accept rescueBite orders on your rescueBite Store App, you can pay a ZAR3,500.00 one-time fee to cover your Tablet and its Tablet Stand Holder along with the rescueBite App installed, plus rescueBite signage and stickers. Delivery is free!

Included with your partnership: rescueBite covers these important costs to make your life easier and bring you even more value to the partnership.

We cover credit card fees: We know these fees can add up. So we pay for transaction fees on orders made by customers using the rescueBite app so you don’t have to.

Promotions reach new users: We’re always experimenting with new ways to expose you to more customers, like special promotions and loyalty programs.

Delivery costs are covered: When you partner with rescueBite, your restaurant doesn’t have to pay individual delivery people using the rescueBite platform.