RESTAURANT PARTNER AGREEMENT

Last updated – 24 December, 2019

DEFINITIONS AND INTERPRETATIONS

The expressions set out in the Agreement shall have the following meaning:

Agreement shall be used in reference to the foregoing document

Facilitator shall be used in reference to Eat Me Global Lanka (Private) Limited

Merchant shall be used in reference to Restaurant Partner entering into this Agreement with the Facilitator

Application shall be used in reference to the Eat Me Application, which will be a Mobile Application covering Android and iOS

Third Party User shall be used in reference to the Eat Me Application, which will be a Mobile Application covering Android and iOS

Listing Criteria shall mean all criteria for listing the Merchant on the Application and shall be determined at the sole discretion of the Facilitator

Reviews shall be used in reference to the third party assessments on the dishes the Merchant posted on the Application

Ratings shall mean both dish and restaurant Ratings. Dish Ratings are added by Third Party Users and Restaurant Ratings are auto-generated

by the Application using its data

Eat Me Cash Points shall mean points that maybe accrued and are redeemable in lieu of cash at the Merchant’s restaurant

Analytics and Reports  shall be used in reference to information obtained from the Application user data to generate analytic reports

General Dish Search Optimisation (GDSO) shall be used in reference with the types of Advertising options made available to the Merchant

Cuisine Dish Search Optimisation (CDSO) shall be used in reference with the types of Advertising options made available to the Merchant

Special Offers shall mean the offers the Merchant may provide on the Application exclusively for its Third Party Users

Remuneration shall mean and refer to the fees the Facilitator is entitled to for services rendered to the Merchant

Subscription shall mean the fees charged by the Facilitator from the Merchant for remaining enlisted on the Application

Monetizability means the income generating ability from an Application without charging for the service

Food Safety Standards shall mean existing standards for food safety in Sri Lanka

Franchisees shall mean a business owner who operates a franchise

Restaurant Management Console (RMC) shall mean the platform through which the Merchant is allowed to participate in the Application

User Policy shall mean and refer to the policy of the Facilitator as set out on the Application

Special Offers Tool means the tool provided for the Merchant to add special offer on the Application

Merchant Marketing Material shall mean and include videos, Images and other material the Merchant may provide the Facilitator in connection with the Marketing Clause of this Agreement

Proprietary Information shall mean and include 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 Application and the terms and conditions of this Agreement. 

Personal Data shall mean any personal information obtained in connection with this Agreement relating to an identified or identifiable natural person including his/her name, contact information, precise location information, persistent identifiers, and any information that may otherwise be considered “Personal Data” or “personal information” under the applicable law.

Recipient shall mean and refer to the party receiving data in connection with the Data Protection Clause

Discloser shall mean and refer to the party disclosing data in connection with the Data Protection Clause

In-App Advertisements are Advertisements run by the Merchant that are specifically displayed in the Application

TERMS AND CONDITIONS

  1. This Agreement is granted access to the Merchant (as provided in Agreement Specific Provisions to this Agreement) to use the features on the Facilitator’s Application.

2. RIGHTS AND OBLIGATIONS OF THE PARTIES

2.1.    Rights and Obligations of the Facilitator. The Facilitator shall;

2.1.1.    retain the right to list the Merchant on the Application as set out in Clause 1 of Agreement Specific Provisions;
2.1.2.    reserve the right to terminate the Merchant’s listing for a breach of this Agreement;
2.1.3.    reserve the right to determine the Photos that will be featured on the Application as set out in Clause 1 of Agreement Specific Provisions;
2.1.4.    reserve all rights over the Photos uploaded by Third Party Users on the Application as set out in Clause 1 of Agreement Specific Provisions.   
2.1.5.    remove Merchant Marketing Material as set out in Clause 7 of Agreement Specific Provisions;
2.1.6.    make provision within the Merchant’s listing for Third Party User Reviews, as set out in Clause 2 in Agreement Specific Provisions;
2.1.7.    reserve all rights and discretion over the Listing Criteria of the Merchant on the Application;
2.1.8.    retain the proprietorship of the Analytics and Reports provided to the Merchant as set out in Clause 4 of Agreement Specific Provisions;
2.1.9.    provide Analytics and Reports to the Merchant;
2.1.10.    provide advertising services in the form of Banner Ads, General Dish Search Optimisation (GDSO) Ads, Cuisine Dish Search Optimisation (CDSO) Ads and Notification Ads and such other forms of advertisements as maybe provided by the Facilitator as set out in Clause 5 of Agreement Specific Provisions;
2.1.11.    determine the price of Banner Ads, GDSO Ads, CDSO Ads, and Notification Ads and such other forms of advertisements as maybe provided by the Facilitator in Clause 5 of the Agreement Specific Provisions subject to be changed at any time with reasonable notice to the Merchant;
2.1.12.    make provision for the Merchant to post Special Offers on the Application as set out in clause 6 of Agreement Specific Provisions;
2.1.13.    receive from the Merchant the stated commission as Remuneration from the publication of the Special Offers set out in clause 6 of Agreement Specific Provisions. 
2.1.14.    retain the right to determine which of the Merchant’s dishes will be featured on the Application.

2.2    Rights and Obligations of the Merchant. The Merchant shall;

2.2.1.    ensure that all official restaurant information is accurate and up to date as set out in Clause 1 of Agreement Specific Provisions;
2.2.2.    inform immediately the Facilitator of any change in information already provided and/or any new information that the Facilitator is required to be made aware of;
2.2.3.    Shall ensure the menus shall meet the requirement, form, and style as required by the Facilitator;
2.2.4.    shall upload photographs and dish Photos to the Application in accordance with Clause 1 of Agreement Specific Provisions;
2.2.5.    not use any Images uploaded by a Third Party User of the Application insofar as it has been approved by the Facilitator as setout further in Clause 1 of Agreement Specific Provisions;
2.2.6.    honour Facilitator’s Eat Me Cash Points accrual and redemption process in accordance with the provisions contained in Clause 3 of Agreement Specific Provisions.
2.2.7.    run special percentage discounted dishes claimable by Third Party Users at the Merchant’s restaurant within 30 days or in the stipulated time period in the special offer from purchase as set out in Clause 6 of Agreement Specific Provisions;
2.2.8.    honour the discount on redemption by a Third Party User at the Merchant’s restaurant as set out in Clause 6 of Agreement Specific Provisions;
2.2.9.    honour the Facilitator’s Remuneration policy stated in the provisions relating to Special Offers as set out in Clause 6 of Agreement Specific Provisions;
2.2.10.    acknowledge that Trademark, Brand Name and all connected intellectual property shall remain the property of the Facilitator as set out in Clause 13 of Agreement Specific Provisions.

3. CONSIDERATION

For the purposes of this Agreement consideration shall mean and include free subscription for the first year and, upon extension of this Agreement and other relevant consideration in relation to Merchant’s monetizability on the Application, the Facilitator may charge a subscription, determinable by the Facilitator.

 

Merchant shall hereby accept pricing and commissioning by the Facilitator in terms of Advertisements and Special Offers respectively as set out in Clauses 5 and 6 of Agreement Specific Provisions of this Agreement.

4. REPRESENTATIONS AND WARRANTIES

Each party hereby represents and warrants that:

4.1.    it has full power and authority to enter into this Agreement and perform its obligations hereunder 4.2.    it is duly organized, validly existing and in good standing under the laws of the jurisdiction of Sri Lanka.4.3.    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 Agreement4.4.    it will comply with all applicable laws and, in the case of the Merchant, all applicable Food Safety Standards in the performance of this Agreement. 4.5.    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, right of publicity, or other proprietary rights of any third party. 4.6.    Merchant may have 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.4.7.    Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party intellectual property or other proprietary rights.4.8.    Merchant will not share Application access information such as passwords, login or key information with any third party.

5. ASSIGNMENT

Neither Party shall transfer or assign this Agreement to any other Party without the prior written approval of the other Party.

6. TERM AND TERMINATION

6.1.    Term

This Agreement shall remain in force for a period of one (1) Year from the date of commencement and, shall be deemed to be renewed for further periods of 1 year each at the date of expiration unless terminated in writing by a party in the manner provided for in this Agreement.
 

6.2.    Termination

6.2.1.    Either Party may terminate this Agreement;
6.2.1.1.    with immediate effect in the event of a breach by a party with notice to the other party;
6.2.1.2.    in the event of insolvency, bankruptcy, reorganization or liquidation of a party;
6.2.2.    Notwithstanding the forgoing provision, in the event of a termination, termination shall not take effect till the operative period of the active special offer comes to an end, unless and otherwise agreed to by the parties.


6.3.    Consequence of Termination 

6.3.1.    The Facilitator shall remove the Merchant from the Application with immediate effect;
6.3.2.    The Facilitator shall remove access to the RMC and all material in relation to the Merchant from the Application;
6.3.3.    Merchant shall immediately cease to use in any way any of the Trade Marks owned by Facilitator; and/or
6.3.4.    Hold out impliedly or expressly that it has any affiliation to the Facilitator in any wise whatsoever.

7. GOVERNING LAW AND DISPUTE RESOLUTION

7.1.    Governing Law

7.1.1.    This Agreement and disputes arising therefore shall be governed according to the Law of Sri Lanka.

7.2.    Dispute Resolution
Parties agree that any dispute arising out of a breach of this Agreement shall be adjudicated in the Courts of Sri Lanka.
 

8. ENTIRE AGREEMENT

This Agreement constitutes the entire Agreement of both Parties with respect to the subject matter hereof and shall supersede any prior expressions of understanding or letter/s of intent and/or any previous Agreements, entered into between the Parties with respect to this transaction. 

9. SEVERABILITY

If any one or more of the covenants, provisions or terms of the Agreement shall, for any reason whatsoever, be held invalid, void or unenforceable, then such invalidity, nullity or unenforceability shall not affect the other covenants, provisions or terms of this Agreement. 

10. FORCE MAJEURE

Neither Party shall be liable for any loss or damage suffered by the other Party arising out of a delay in performance or non-performance of the Party’s obligations due to an event of Force Majeure. In the event of a delay due to events including but not limited to war, warlike operations, outbreak of hostilities, civil war and commotions, insurgencies, riots, legislative or other legally binding measures imposed by domestic or foreign authorities, strikes (excluding ones limited to the Party’s employees or associates or controlled companies), lock-outs, natural disasters etc. the party shall be exempted from its obligations to perform its duties under this Agreement for as long as the event prevail.

 

It shall be the duty of the non-performing party to notify or advise the affected party promptly in writing of the nature of the event anticipated duration and take necessary steps to mitigate the other party’s loss or damage.

11. CONFIDENTIALITY

11.1.    Either Party acknowledges and agrees that during the participation in, use and provision of the Services Confidential Information may be exposed to each other. “Confidential Information” shall mean all information, in whole or in part, that is disclosed by one party to the other which is nonpublic, confidential or proprietary in nature. Confidential Information also includes, without limitation, information about business, sales, operations, know-how, trade secrets, technology, products, employees, customers, marketing plans, financial information, services, business affairs, any knowledge gained through examination or observation of or access to the facilities, computer systems and/or books and records, any analyses, compilations, studies or other documents or otherwise derived in any manner from the Confidential Information and any information that a party is obligated to keep confidential or know or have reason to know should be treated as confidential.
11.2.    Either party shall procure that it;

11.2.1.    maintains all Confidential Information disclosed by the other party in strict confidence;
11.2.2.    does not disclose Confidential Information to any third parties; and
11.2.3.    does not use the Confidential Information in any way directly or indirectly detrimental to the other party.

11.3.    All Confidential Information remains the sole and exclusive property of the respective disclosing party. Either party acknowledges and agrees that nothing in this Agreement or provision or use of the Services will be construed as granting any rights to the other party, by license or otherwise, in or to any Confidential Information or any patent, copyright or other intellectual property or proprietary rights of the disclosing party.

AGREEMENT SPECIFIC PROVISIONS

1. Restaurant Listing

1.1.    The Merchant ensures that all official restaurant information is accurate and up to date. For the purposes of this clause restaurant information includes but is not limited to, menus, prices and tax ratios. 
1.2.    The Merchant’s score will be displayed as part of the restaurant listing. The score shall be calculated by the Facilitator based on an average of the cumulative Ratings received for all of the dishes listed by the Merchant and shall be varied on such basis from time to time.  
1.3.    Facilitator reserves the right to terminate the Merchant’s listing for a breach of this Agreement by the Merchant.
1.4.    Photos

1.4.1.    The Merchant undertakes to upload photographs of the restaurant and dish Photos pursuant to the following requirements.
1.4.2.    The Images shall be of high quality, with good lighting and suitable to be featured on the Application. 
1.4.3.    The Images shall not contain any faces of persons, animals, letters, annotations or descriptions or any other material unrelated to the restaurant or dish described.
1.4.4.    The Images shall not be slanderous, scandalous or morally objectionable.
1.4.5.    Facilitator reserves the right in determining whether an Image is subject to the above qualification.
1.4.6.    Facilitator reserves all rights over the Photos uploaded by Third Party Users on the Application.   
1.4.7.    The Merchant cannot use any Images uploaded by a Third Party User of the Application insofar as it has been approved by the Facilitator. 
1.4.8.    The Merchant must make a formal request via the Restaurant Management Console (“RMC”), to update and/or take down an Images uploaded by a Third Party User.
1.4.9.    Facilitator reserves the right to reject such requests.  

2. User Reviews and Ratings

2.1.    User Reviews

2.1.1.    Facilitator will provide provision within the Merchant’s listing for Third Party User Reviews of the Restaurants. 
2.1.2.    Third Party User Reviews do not reflect the opinions of Facilitator and remains the personal opinion of the Third Party User/reviewer.
2.1.3.    The Merchant indemnifies Facilitator from disputes arising from Third Party User Reviews and will not subject Facilitator to any proceedings therein. 
2.1.4.    If the Merchant believes that a user review violates Facilitator’s User Policy as set out in the Application, the Merchant may write to [email protected] to bring such violation to Facilitator’s notice. 
2.1.5.    Merchant agrees not to solicit Third Party User Reviews as morefully set out in Merchant Advisory of this Agreement.


2.2.    Ratings

2.2.1.    Merchant acknowledges and agrees that, after receiving the item, users/customers may be prompted to rate the item, to provide feedback related to the user/customer’s experience with the Merchant.  
2.2.2.    Merchant acknowledges that Facilitator shall distribute, without any obligation to verify, the User feedback on the Application. 
2.2.3.    The Facilitator shall reserve the right to edit or remove comments including obscenities or other objectionable content or including names of individuals or Personal Data that will violate any privacy or other applicable law and the Facilitator’s Privacy Policies as set out in the Application.

3. Eat Me Cash Points

Eat Me Cash Points may be accrued and redeemed in the manner provided hereinafter subject to change by the Facilitator at its discretion.

3.1.    Accrual 

3.1.1.    Third Party Users shall earn Eat Me Cash Points for uploading a Photo on the Application;
3.1.2.    Third Party Users shall earn Eat Me Cash Points for posting a review; and
3.1.3.    Third Party Users shall earn Eat Me Cash Points for reporting a missing dish on the Application.


3.2.    Redemption

3.2.1.    On a Merchant subscribing with the Facilitator to the “Redemption Policy” and it being agreed that the parties may amend the terms and rules of Redemption by mutual agreement the Merchant shall honour the redemption of Eat Me Cash Points by Third Party Users and, refusal to redeem such points shall be grounds for termination of this Agreement.
3.2.2.    Merchant shall verify each redemption of Third Party Users as they are presented to the Merchant or its Franchises to prevent the Third Party Users from redeeming beyond the number of redemptions allowed per day per Third Party User by the Facilitator.
3.2.3.    Third Party Users become eligible for redemption pursuant to earning a minimum number of Eat Me Cash Points within the stipulated time period on the Application and on such other terms as set out by the Facilitator on the Application at its discretion.
3.2.4.    Third Party Users may redeem Eat Me Cash Points only at the Merchant or its affiliated restaurants in compliance with the applicable rules of redemption with the Merchant at the relevant time.
3.2.5.    Merchant or its employees or agents shall not earn and/or redeem Eat Me Cash Points from the Merchant or its franchises.
3.2.6.    Third Party User may redeem Eat Me Cash Points only against the total bill in a sum as determined by the Facilitator.
3.2.7.    Eat Me Cash Points shall be redeemed as One Eat Me point being equivalent to One Sri Lankan Rupee.
3.2.8.    Facilitator shall cover all charges and bank transactions and remit the payments via bank transfer, in view of the redeemed Eat Me Cash Points by the Third Party User, to the Merchant within two (2) working days after redemption at the Merchant or its franchises. 

4. Analytics and Reports

4.1.    Facilitator will provide the Merchant with Analytics reports for reference purposes.
4.2.    The information generated pursuant to the Analytics report are the property of Facilitator and the Merchant enjoys no moral or economic rights.
4.3.    The Merchant indemnifies Facilitator from any liability consequent to the reliance on the Analytics reports.

5. Advertisements

5.1.    Facilitator will provide advertising services in the form of Banner Ads, General Dish Search Optimisation (GDSO) Ads, Cuisine Dish Search Optimisation (CDSO) Ads, Notification Ads and such other forms of advertisements as maybe provided by the Facilitator.
5.2.    Banner Ads

5.2.1.    The Merchant shall upload Banner Ads through the RMC 
5.2.2.    Facilitator shall determine the price of Banner Ads subject to be changed at any time with reasonable notice to the Merchant.
5.2.3.    approval/rejection of Banner Ads remains at the sole discretion of Facilitator. 

5.3.    GDSO and CDSO Ads

5.3.1.    The Merchant may run GDSO and CDSO Ads subject to availability of slots
5.3.2.    Facilitator shall determine the price of GDSO and CDSO Ads subject to be changed at any time with reasonable notice to the Merchant.

5.4.    Notification Ads

5.4.1.    The Merchant may upload any Notification Ad through the RMC, subject to review and approval/rejection by Facilitator.
5.4.2.    Facilitator shall determine the price of Notification Ads subject to be changed at any time with reasonable notice to the Merchant.

5.5.    Merchant agrees that Facilitator shall only run the advertisements once the payment is successfully processed through the RMC on the Application.     

6. Special Offers and the Facilitator’s Remuneration Policy

6.1.     Special Offers 

6.1.1.    The Merchant shall run special percentage discounted dishes claimable by Third Party Users at the Merchant’s restaurant within 30 days or in the stipulated time period in the special offer from the date of purchase.
6.1.2.    The Merchant is obligated to honour the special offer on redemption by a Third Party User at the Merchant’s restaurant. 
6.1.3.    Facilitator will process all payments through a bank transfer and remit payment subject to clause 6.2.1, within 2 business days of special offer being redeemed by the Third Party User.
6.1.4.    Merchant authorizes Facilitator to charge Third Party Users for post-special offer value of an item including taxes.
6.1.5.    Facilitator authorizes the Merchant to create special offer subject to guidelines or eligibility criteria for Special Offers that the Facilitator may make available from time to time. 
6.1.6.    Unless otherwise provided the Merchant will be solely responsible for defining each Merchant Special Offers. 
6.1.7.    Facilitator authorizes the Merchant to use Facilitator’s automated, self-service tool located within the “Special offer Tool” of the Application for the purposes of creating Special Offers.
6.1.8.    Merchant shall provide the Facilitator, a “Special Offers Schedule” communicated either verbally or in written form. 

6.2.    Remuneration Policy

6.2.1.    Facilitator will pay monies due and owing to the Merchant, less the agreed commission at 10% (or such other rate as agreed upon by the parties) on the value stated on the special offer including taxes. 
6.2.2.    Facilitator will make the payments to the Merchant via Bank Transfer and, the payment will be remitted after deducting the said commission of 10%.     
6.2.3.    Topped–Up Special Offers
6.2.3.1.  Facilitator may from time to time top–up or increase the special offer discount offered by the Merchant without any notice to the Merchant
6.2.3.2.  Facilitator shall bare all costs for the topped–up/increased discount and shall reimburse the Merchant for the said topped-up value when paying the Merchant for the transaction.    

7. Marketing

7.1.    Facilitator may showcase the availability of the Merchant’s items via the Application through promotional activities.  
7.2.    Merchant agrees that Application photographs will remain the sole and exclusive property of the Facilitator.
7.3.    Pursuant to Clause 1 of this Schedule Merchant shall provide Merchant Marketing Material to the Facilitator. 
7.4.    Merchant hereby grants the Facilitator non-exclusive, perpetual, and royalty free license to the Facilitator to use and display Merchant Marketing Material in connection with Merchant’s items and other promotional activities relating to the services provided by the Facilitator. 
7.5.    Merchant shall ensure Merchant Marketing Material do not infringe, misappropriate, or otherwise violate any third party intellectual property or other proprietary rights. 
7.6.    To the extent that the Merchant Marketing Material contain third party materials, Merchant is solely responsible for such third party material and, will secure all rights, licenses, consents and permission necessary for the Facilitator to be able to use such third party Merchant Marketing Material in accordance with this clause.
7.7.    Merchant agrees that the Facilitator will retain the right to remove Merchant Marketing Material where it receives notice or reasonably believes that the Merchant Marketing Material used may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

8. 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.

9. Data Protection

9.1.    Proprietary Information

9.1.1.    Pursuant to the provision in the Interpretations clause of this Agreement, Proprietary Information will not include information that: 

9.1.1.1.    was previously known to the Recipient without an obligation of confidentiality;  
9.1.1.2.    was acquired by the Recipient without any obligation of confidentiality   from a third party with the right to make such disclosure; or   

9.1.1.3.    is or becomes publicly available through no fault of the Recipient. 

9.1.2.    Parties shall agree not to disclose any Proprietary Information of the other party to any third party.   
9.1.3.    Each party shall ensure that Proprietary Information will be made available to Recipient’s employees, who have a need to know such Proprietary Information and, who are bound by written obligations of confidentiality with respect to such Proprietary Information that are set forth in this Agreement.
9.1.4.    Recipient will cause its employees to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement. 
9.1.5.    Parties will not authorize others to remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from originals or copies of the Discloser’s Proprietary Information. 
9.1.6.    The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent:   

9.1.6.1.    Merchant hereby authorizes Facilitator and its employees 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;  
9.1.6.2.    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. 
9.1.6.3.    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 material or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form. 

9.2.    Privacy. 

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

9.3.    Personal Data 

9.3.1.    Passwords. 
Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Application, including any password, login or key information. 
9.3.2.    Data Re-Identification Restriction
Without limiting to any other provision of this Agreement, Merchant will not merge any data collected or otherwise obtained in connection with this Agreement, including any Personal Data, with other data collected from any other source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.
9.3.3.    Feedback Merchant may, but is not obligated to, provide or otherwise make available to Facilitator or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to Facilitator and its affiliate’s products and services ("Feedback"). However, to the extent that Merchant provides or otherwise makes available Feedback to Facilitator or its affiliates, Merchant hereby grants to Facilitator and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sub-licensable right to use and otherwise exploit such Feedback.
 

10. Fees

The use of the Facilitator’s services by the Merchant is free of charge for the first year of operations and will thereafter be subject to a minimal monthly fee which will be decided by the Facilitator and communicated to the Merchant. All additional benefits shall be paid for by the Merchant to include in-App advertisement services required by the Merchant.

11. Sales Restrictions

11.1.    Merchant shall not grant access to any third party to use the Facilitator’s Application to;

11.1.1.    Reverse engineer or attempt discovery of source code, ideas or algorithms used to provide the Application;
11.1.2.    Provide lease, lend, disclose, or otherwise use or allow others to use for the benefit of a third party, the software and services provided by the Facilitator;
11.1.3.    Possess, use, allow transfer, transmission, export or re-export software or potion or portion thereof in violation of export control laws.
11.1.4.    Merchant will not use the Application or any other transactional, operational, performance or other data or information that is related to the sale of items to Third Party Users via the Application, directly/indirectly to compete with the Facilitator, its employees or its services provided by the Application. 
11.1.5.    The following items are restricted from sale via the Application, i.e. people, animal of any size, endangered species, weapons, explosives, flammables, stolen goods, fragile items or any item that the Merchant does not have permission to sell.  

12. Intellectual Property

The Merchant shall acknowledge that Trademark, Brand Name and all connected intellectual property as contained on the Application and/or as permitted to be used by the Merchant shall remain the property of the Facilitator.

 

The Merchant hereby undertakes that it will protect the Facilitator’s Trademarks, brand names and all intellectual property embroiled or used in connection with the Agreement and further undertakes not to alter remove or tamper in any way with Trademarks, numbers or the products purchased from Facilitator.

13. Discharge

Except for liability arising from a party’s gross negligence, willful misconduct, indemnification obligations or a breach of confidentiality obligations 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 of Merchant or any third party rights 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.

 

Facilitator shall take no responsibility and shall not be held liable for any act or omission on the part of the Merchant including but not limited to deficiency in service, wrong delivery of orders, quality of food, time taken to prepare or any such acts or omissions (morefully provided in Merchant Advisory of this Agreement), and shall be the sole responsibility of the Merchant to adhere to the relevant Food Safety Standards and all laws and regulations applicable.

 

The foregoing limitation of liability will apply regardless of the success of effectiveness of other remedies.

14. Indemnity

The Merchant shall indemnify, defend and hold harmless the Facilitator, its affiliates and respective directors, officers, employees from and against any and all claims, damages, causes of action and losses including legal fees with respect to any third party claim arising out of or related to;

14.1    negligence or willful misconduct of the Merchant or its employees or agents in their performance of this Agreement;
14.2    any proved breach of representations, warranties or covenants in relation to the Merchant’s obligations in this Agreement;
14.3    any claim in relation to the infringement of intellectual property rights of the Marks provided by the Merchant to the Facilitator wherein the Facilitator has used such Marks in accordance with the manner approved by the Merchant;
14.4    the Merchant’s violation of or alleged violation of any applicable food or health and safety code, rule or regulation;
14.5    the Merchant’s failure to determine the applicable taxes;
14.6    the Merchant’s failure to provide accurate description of dishes and/or the Merchant’s restaurant(s);
14.7    from any liability consequent to the reliance on the Analytics reports;

The Merchant indemnifies Facilitator from disputes arising from user Reviews and will not subject Facilitator to any proceedings therein.