STANDARD PROTOCOLS

Our Responsibilities: YUM2GO ("Platform") provides an online marketplace using web-based technology that connects Merchants, independent delivery contractors ("Drivers”) and customers. The YUM2GO Platform permits customers to place orders for food or other products from Merchants; YUM2GO then notifies Drivers that a delivery opportunity is available; after a Driver communicates their acceptance of the delivery, YUM2GO facilitates the ("Driver’s”) completion of the delivery of the Merchant's products to the customer. YUM2GO is not a merchant, food preparation business, reseller or delivery service; it is an online connection platform.

Your Responsibilities: You fulfill orders placed on the YUM2GO Platform and provide them to Drivers or customers. Instead of collecting payment at the time of pickup, you will charge the total sales price for each order (including all taxes and other government charges) to an account you maintain for orders on the YUM2GO Platform.

Payment & Pricing: Each week, YUM2GO will settle your YUM2GO account by paying you:

• the pre-tax total of all orders for the prior week, unless (you requested an Instant Pay) including the total sales tax on all such orders, minus.
• Any YUM2GO advertisement fee, any subscription fees, and any other fees to which you agreed will be deducted. You are the "retailer" or "seller" responsible for remitting all sales tax and other governmental charges. You are also responsible for setting the price for each item to be made available on the YUM2GO Platform.
• Instant Pay is an option that all merchants can choose twice a week for a fee of $29.99 each payout. This option gives you as the restaurant the choice to receive your money earlier.

Fees: YUM2GO’s commission ("Subscription Fee") is an ongoing $99.99 per week Subscription Fee. This Fee applies to all orders placed on the YUM2GO Platform that originate from the YUM2GO App or YUM2GO website, including both delivery and pickup orders. Merchant agrees YUM2GO may charge the customer fees, including a Delivery Fee and/or Service Fee, Item Fee, Cancellation Fees, etc. YUM2GO may charge an additional markup for Merchants Products at any time during this contractual agreement.

Fees: YUM2GO’s commission ("Subscription Fee") is an ongoing $99.99 per week Subscription Fee. This Fee applies to all orders placed on the YUM2GO Platform that originate from the YUM2GO App or YUM2GO website, including both delivery and pickup orders. Merchant agrees YUM2GO may charge the customer fees, including a Delivery Fee and/or Service Fee, Item Fee, Cancellation Fees, etc. YUM2GO may charge an additional markup for Merchants Products at any time during this contractual agreement.

Info for Weekly Payments and Order Placement: YUM2GO will provide weekly payment using the information you provide above and in the YUM2GO Sign-Up Sheet appendix, if applicable. Orders will be transmitted to you as follows:

Bundle:
N/A
Order Protocol:
Email
POS System Fee:
N/A
POS Subscription Fee:
N/A
Order Protocol Email:

Order Protocol Fax:
N/A

Cancel anytime with 30-days notice: Merchant may cancel this agreement at any time for any reason after giving YUM2GO at least 30 days prior written notice. YUM2GO may cancel this agreement at any time for any reason.

Merchants Fee: All Merchants that register will be charged an additional onboarding sign-up fee of $99.99 which will be charged at the time of activation for a Trial Period of 30 days. AFTER THE END OF THE 30-DAY TRIAL PERIOD, YOU WILL AUTOMATICALLY TRANSITION TO A WEEKLY RECURRING SUBSCRIPTION FEE OF $99.99 FOR ALL FUTURE ORDERS. If you do not want to continue past your trial period, you can cancel by going to https://www.yum2go.com/merchant/merchant-terms. Only one trial is available per Merchant store. We may change the terms or conditions from time to time with advance notice. YUM2GO will provide you with notice via email of material changes and when those changes will go into effect.

MERCHANT TERMS OF USE

BEFORE YOU PARTICIPATE IN THE PROGRAM(S) OPERATED BY YUM2GO, INC. (“YUM2GO”) THAT ARE COVERED BY THESE YUM2GO MERCHANT TERMS OF USE (“MERCHANT TERMS” OR “TERMS”), PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH YUM2GO OR OTHERWISE AGREEING TO THESE TERMS, INCLUDING THROUGH AN AUTHORIZED YUM2GO PARTNER, YOU OR THE ENTITY THAT YOU REPRESENT AGREE ON BEHALF OF ALL PARTICIPATING RESTAURANT LOCATIONS TO BE BOUND BY THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.

THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT MAY ARISE BETWEEN PARTIES ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 17 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION.

UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST YUM2GO ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND BEFORE A JURY. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING OR PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 17 FOR MORE INFORMATION REGARDING THE ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THE ARBITRATION AGREEMENT AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

DEFINITIONS

• “Driver” means third-party delivery contractor.
• “Delivery API” means the YUM2GO application programming interface (API) that allows the Merchant to exchange information with YUM2GO.
• “YUM2GO Data” shall mean any information that YUM2GO provides or makes accessible to Merchant through the YUM2GO Platform, including without limitation Personal Information.
• “YUM2GO Customer” means a customer who places an order through the YUM2GO Platform.
• “YUM2GO Platform” means the online ordering platform where Customers can place an order for Merchant Products via the YUM2GO website or mobile application.
• “YUM2GO Delivers” means the service that enables delivery fulfillment for orders placed directly with the Merchant by a Merchant Customer.
• “YUM2GO Services” means YUM2GO Platform, YUM2GO Delivers and YUM2GO Direct, as applicable.
• “YUM2GO Delivers Orders” means orders placed by Merchant for delivery fulfillment through the YUM2GO Delivers program.
• “YUM2GO Delivers Term” means the term of the agreement between YUM2GO and Merchant for YUM2GO Delivers.
• “Platform Orders” means orders for Merchant Products placed through the YUM2GO Platform by YUM2GO Customers.
• “Merchant Products” means all products offered for take-out or delivery orders at Merchant Stores.
• “Merchant Stores” means the Merchant restaurant locations that are within the then-current territory serviced by YUM2GO and that have elected to participate in the YUM2GO Services. Participating locations may be amended with written notice.
• “Platform Term” means the term of the agreement between YUM2GO and Merchant for the YUM2GO Platform.
• “YUM2GO Direct Term” means the term of the agreement between YUM2GO and Merchant for theYUM2GO Direct program.
• “Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access, credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law.
• “Schedule for Later Order” shall mean an order to be fulfilled at a time later in the day or later.
• “Schedule for Later Order” shall mean an order to be fulfilled at a time later in the day or later.

YUM2GO PLATFORM RESPONSIBILITIES

During the term of this agreement, YUM2GO and Merchant shall agree to carry out the following responsibilities:

YUM2GO Responsibilities

• YUM2GO will, in a timely manner:
• Display Merchant’s logo; a listing of participating Merchant Stores; and a menu of all Merchant Products.
• Accept YUM2GO Platform Orders from YUM2GO Customers for Merchant Products.
• Forward each Platform Order to the relevant Merchant Store; and
• Forward each Platform Order to a Driver, so that the Driver can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the YUM2GO Customer.

Merchant Responsibilities

• Merchant will, in a timely manner:
• Provide YUM2GO with the Merchant’s in-store or take-out menu, including the price of each item on such menu.
• Monitor Merchant’s menu and store information on the YUM2GO Platform, promptly make updates via the Merchant portal to reflect the most up-to-date products, pricing and other information or immediately notify YUM2GO of any errors or changes in writing.
• Accept all Platform Orders placed by YUM2GO Customers from Merchant’s current menu.
• Confirm all Platform Orders from YUM2GO.
• Prepare the Merchant Products for each Platform Order for pickup by a Driver at the designated time.
• Process Platform Orders in the order in which they are received.
• Notify YUM2GO of any changes to the pricing, availability, description, or other relevant characteristics of the Merchant Products.
• Notify YUM2GO of its days and hours of operation; remain open for business on the same days and hours of operation as Merchant’s in-store business; notify YUM2GO of any changes to Merchant’s hours of operations on federal and state holidays; and notify YUM2GO in advance if Merchant closes earlier or plans to close earlier than Merchant’s standard hours of operation.
• Notify all Merchant store staff members of the relationship with YUM2GO immediately upon execution of this Agreement; and
• Provide the same utensils, napkins, bags, and other materials that Merchant would typically provide in a standard take-out or delivery order, subject to Section 13(3)(i).

YUM2GO DELIVERS PROGRAM RESPONSIBILITIES

YUM2GO Responsibilities

• YUM2GO will, in a timely manner:
• Provide Merchant with an online order form or access to the Delivery API to submit requests for deliveries or receive information through a Third-Party Platform.
• Forward requests to a Driver, so that the Driver can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Merchant Customer.

Merchant Responsibilities

• Merchant will, in a timely manner:
• Via the online order form, the Delivery API, or a Third-Party Platform, Merchant will provide information requested by YUM2GO including the Merchant Customer’s address, contact information, and any special instructions required for delivery.
• Accept and collect payments from Merchant Customers for their respective orders.
• Merchant will notify Merchant Customers prior to placing a YUM2GO Delivers Order that their telephone numbers and other personal contact information will be shared with YUM2GO to enable deliveries to be made by Drivers and, in connection with the applicable deliveries, request the Merchant Customer’s consent to receive delivery status updates by e-mail, text messages, and telephone calls from YUM2GO and Drivers; and
• Merchant will notify YUM2GO if a Merchant Customer has not consented to receive delivery updates or has placed any restrictions on types of delivery updates that the Merchant Customer consents to receive (e.g., no texts). Merchant hereby consents to receiving text messages and email confirmations from YUM2GO providing status updates and delivery confirmations in connection with each delivery.

YUM2GO DELIVERS OPERATING PROCEDURES

• Hours of Operation
  The pickup and drop-off of deliveries will be scheduled to take place during YUM2GO’s standard hours of availability, as may be updated from time to time at YUM2GO’s sole discretion. Merchant agrees to abide by the following standard procedures: (i) to notify YUM2GO of any changes to its hours of operations on state or federal holidays with reasonable advance notice; and (ii) to notify YUM2GO with reasonable advance notice if a Merchant location closes earlier than standard hours of operation or plans to close earlier than standard hours of operation.
• Delivery Radius
  YUM2GO will only accept orders to be delivered within a certain predetermined delivery radius based on either the Merchant or the Customer location, which will be communicated to Merchant.
• Cancellations
  Fees owed for any orders cancelled within twenty-four (24) hours of a Schedule for Later delivery are non-refundable. If provided more than two (2) hours’ notice, but less than twenty-four (24) hours’ notice, YUM2GO will make reasonable efforts to accommodate changes. Fees owed for any orders cancelled after a Driver has accepted a delivery opportunity will be non-refundable.
• Notification
  Merchant agrees to notify all staff members in Merchant Stores of Merchant’s relationship with YUM2GO prior to submitting any delivery requests to YUM2GO.

REFUNDS AND REORDERS

Refunds and re-orders will be addressed as follows for Merchants that have agreed to participate in the YUM2GO Platform, YUM2GO Delivers or the YUM2GO Direct Program, as applicable:

• YUM2GO Platform Refunds. In the event that YUM2GO, at it’s sole and reasonable discretion, has to issue a refund, credit or re-order on a Customer’s order, Merchant will prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the negligence or misconduct of a Driver or a failure of the YUM2GO Platform.
• YUM2GO Direct Refunds. YUM2GO shall be responsible for customer support issues relating to the ordering of Merchant Products and issues relating to aYUM2GO Customer’s YUM2GO account. All other customer issues or complaints will be Merchant’s sole responsibility. If YUM2GO, at it’s sole discretion, must issue a refund, credit or re-order for a Customer’s Order, Merchant will prepare the food to the same specifications as the original Pick-up Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order.

ORDER EQUIPMENT

With respect to the YUM2GO Platform, Merchant will install any equipment reasonably required by YUM2GO for Merchant to receive Orders (including, without limitation, a tablet, fax machine, or other automated electronic means of receiving Orders) (“Order Equipment”). Any Order Equipment provided by YUM2GO will remain YUM2GO’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant will inspect all hardware and shall notify YUM2GO in writing if any Order Equipment is missing or was damaged as soon as possible after discovering such damage. YUM2GO may restrict or rescind Merchant’s right to use the YUM2GO Platform at any time. Merchant will be responsible for any damage to, or loss of any Order Equipment provided by YUM2GO (excluding ordinary wear and tear), which will be promptly reimbursed by Merchant (at the replacement cost thereof). YUM2GO may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments.

PAYMENTS, FEES AND TAXES

Payment, fees, and taxes shall be addressed as follows for Merchants, as applicable:

• YUM2GO Platform
  YUM2GO will pay for Platform Orders prepared by Merchant each week on a consistent day of the week, subject to change with no less than 10 days’ notice to Merchants by email or service notification, if YUM2GO shall be entitled to deduct from such payment the Subscription Fee on all Platform Orders. If Merchant has opted for a POS subscription, YUM2GO will also deduct a weekly fee, as set forth on the contractual agreement for that service. For the avoidance of doubt, YUM2GO will be entitled to a weekly Subscription Fee for all Platform Orders at the rate agreed upon and YUM2GO may also elect, at it’s sole discretion, to charge Customer fees, including but not limited to a Delivery Fee and/or Service Fee, Item Fee, Cancellation Fees, etc., as well as an additional markup for Merchant Products. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products under this Agreement and remitting such taxes, duties, and other governmental charges to the appropriate authorities.
• Payment Processing
  Payment processing services for Merchants on the YUM2GO Platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to the terms of this contract, Merchant agrees to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of YUM2GO enabling payment processing services through Stripe, Merchant agrees to provide YUM2GO accurate and complete information about Merchant’s business and representatives, if applicable, and Merchant authorizes YUM2GO to share that information and transaction information related to Merchant’s use of the payment processing services provided by Stripe for reporting purposes. Stripe has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1.

INTELLECTUAL PROPERTY

Merchant Content and Trademark; Photographs of Menu Items.

• During the the term of this agreement, Merchant grants to YUM2GO royalty-free, non-exclusive, limited, revocable, non-transferable, non-sub-licensable rights and licenses to use and display Merchant Content in the provision of providing services to Merchant. As used herein, “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or located on Merchant’s website), trademarks, logos and other materials provided by Merchant to YUM2GO.
• If photographs of Merchant’s menu items are not available or if they do not meet YUM2GO requirements, as reasonably determined by YUM2GO, Merchant may contract with YUM2GO to have professional photography services made available to Merchant.
• Requests to remove representations of Merchant’s menu items may be made by contacting YUM2GO support and requests will be carried out in a timely manner.

CONFIDENTIAL INFORMATION

The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, YUM2GO Data is the Confidential Information of YUM2GO.

• Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.
• The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 9(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.
• If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.

DATA SECURITY AND PRIVACY

• General
  Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner YUM2GO Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep YUM2GO Data secure from unauthorized access and maintain the accuracy and integrity of YUM2GO Data in Merchant’s custody or control by using appropriate organizational, physical, and technical safeguards. If Merchant becomes aware of any unauthorized access to YUM2GO Data, Merchant will immediately notify YUM2GO, consult, and cooperate with investigations and potentially required notices, and provide any information reasonably requested by YUM2GO. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by YUM2GO and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the YUM2GO Platform; copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the YUM2GO Platform; damage, destroy or impede the services provided through the YUM2GO Platform; transmit injurious code; or bypass or breach any security protection on the YUM2GO Platform.
• Delivery API
  During the term of this Agreement, YUM2GO grants to Merchant a non-exclusive, royalty-free, non- assignable, non- transferable, non-sub-licensable, revocable, limited, fully paid-up license to access the Delivery API solely to transmit information to facilitate the YUM2GO Drive services. Merchant will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Delivery API; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Delivery API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Delivery API; (iv) use the Delivery API in any manner or for any purpose that violates any law or regulation; and (v) use the Delivery API for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Delivery API) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature.
• Termination
  Merchant may terminate this agreement for any reason at any time upon 30days prior written notice. YUM2GO may terminate this agreement for any reason at any time upon written notice. Email is acceptable for written notice. Neither Merchant nor YUM2GO will be required to pay any fee in connection with a termination by either party or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by either Merchant or YUM2GO.
• Modifications
  YUM2GO reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. YUM2GO may, at its sole discretion, remove Merchant Products or Stores from the YUM2GO Platform if YUM2GO reasonably determines that such Merchant Product or Merchant Store could subject YUM2GO to an undue regulatory risk, health and safety risk, or other liability. YUM2GO also may revise these Terms from time to time. The changes will not be retroactive and the most current version of the terms is available at https://www.yum2go.com/merchant/merchant-terms/. We will notify Merchants of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

REPRESENTATIONS AND WARRANTIES; ADDITIONAL WARRANTIES; WARRANTY DISCLAIMER

• Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.
• Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health (including Proposition 65 in California), food packaging and accessory items (including but not limited to food ware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, (ii) it has informed YUM2GO of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform YUM2GO of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Merchant’s menu items listed on the YUM2GO Platform, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the YUM2GO Platform or request delivery of any age- restricted products through the YUM2GO Platform without first entering into a separate agreement with YUM2GO memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, (v) title to Merchant Products transfers from Merchant directly to the YUM2GO End Customer once such Merchant Product leaves the physical possession of the Merchant, (vi) it will not disclose any information related to a Driver or a consumer to a third party (except as required to comply with law or pursuant to a court order) and (vii) it will comply with its obligations under Section 2(b)(iii) and 2(b)(iv) of this Agreement.
• EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, YUM2GO, INC. HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE YUM2GO PLATFORM, THE DELIVERY API, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
  Merchant acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and YUM2GO shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the YUM2GO services contemplated herein. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.
• Indemnification
  Each party (the “Indemnifying Party” ) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party” ) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses” ) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of YUM2GO, Drivers (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 10 and Section 13 of this Agreement; (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”). In addition, Merchant will defend, indemnify and hold harmless YUM2GO from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of YUM2GO. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement or litigation of any claim, and (c) reasonable assistance in connection with such defense, settlement or litigation (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense, settlement or litigation of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party's express prior written consent. YUM2GO assumes no liability, and shall have no liability, for any infringement claim pursuant to section 14(iii) above based on Merchant’s access to and/or use of the YUM2GO Platform following notice of such an infringement claim; any unauthorized modification of the YUM2GO Platform by Merchant; or Merchant’s combination of the YUM2GO Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.
• Limitation of Liability.
  EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILLFUL MISCONDUCT, UNPAID FEES OWED BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 14 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
• Insurance
  During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be canceled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement.
• Dispute Resolution.
  PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH THE COMPANY (YUM2GO) AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

ARBITRATION AGREEMENT

Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non- representative) basis; and (2) you or the Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement.
TO THE EXTENT THAT CASES HAVE BEEN FILED AGAINST THE COMPANY—AND THAT OTHER CASES MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH THE COMPANY, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

• Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to YUM2GO’s registered agent. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.
• Arbitrator Authority. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and YUM2GO. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and YUM2GO.
• Waiver of Jury Trial. YOU AND YUM2GO WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and YUM2GO are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 17(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
• Waiver of Class or Consolidated Actions; Severability. YOU AND YUM2GO AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER ORUSER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a claim or dispute, neither you nor YUM2GO is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court of law, and all other provisions of this agreement shall remain in force. If any provision of this Agreement is found to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed, and such adjudication shall not affect the validity of the remainder of this Agreement.
• Decline. You may decline this Arbitration Agreement. If you do so, neither you nor YUM2GO can force the other to arbitrate because of this Agreement. To opt out, you must notify YUM2GO in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your YUM2GO username (if any), the email address you used to set up your YUM2GO account (if you have one), and a CLEAR statement that you want to decline and opt out of this Arbitration Agreement. You must send your opt-out notice to: merchantoptout@yum2go.com. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out and declining this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into or may enter in the future with YUM2GO. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND YUM2GO.
• Survival Term. This Arbitration Agreement will survive any termination of your relationship with YUM2GO.
• Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if YUM2GO makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to YUM2GO.
• Franchisees Franchisees operating a restaurant concept licensed by Merchant may participate in the Program pursuant to the terms and conditions of this Agreement provided that the individual franchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement in substantially the same form as the Supplemental Agreement provided by YUM2GO to the Franchisee.
• Partner Code of Conduct.
  Merchant agrees to comply with the https://www.yum2go.com/partner/code-of-conduct, which may be updated by YUM2GO from time to time.
• Communications from YUM2GO.
  Merchant agrees to accept and receive communications from YUM2GO or Drivers, including via email, text message, calls, and push notifications to the cellular telephone number Merchant provides to YUM2GO. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of YUM2GO, its affiliated companies and/or Drivers. Merchant may opt out of such communications in Merchant’s Account Settings or by replying “STOP” from the mobile device receiving such messages.
• General Provisions.
  Nothing in these Terms is to be construed as creating an agency, partnership, or joint venture relationship between YUM2GO and Merchant, and except as expressly set forth herein, each party shall be responsible for its own costs of performance hereunder. As set forth on the Sign-Up Sheet executed between Merchant and YUM2GO, these Terms form part of an Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive, or extend beyond the termination or expiration of these Terms shall so survive and extend. Except as set forth herein, no amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default. This Agreement is governed by and interpreted in accordance with the laws of the State of Nevada without regard to the conflicts of laws principles thereof. Except as set forth above in Section 17 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the designated county court in Nevada of which the merchant is located. Merchant may not assign this Agreement in whole or in part without YUM2GO’s prior written consent. YUM2GO may freely assign this Agreement. This Agreement will be binding upon, and take effect to come to the benefit of, the permitted successors and assigns of each party, but shall not confer any rights or remedies upon any other third party. All notices, requests, consents, and other communications hereunder must be in writing, and delivered by overnight courier to the addresses set forth on the Sign-Up Sheet (or any updated address properly noticed hereunder). YUM2GO address is 8668 West Spring Mountain Rd., Suite 110, Las Vegas, NV 89117. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or un-enforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.