DEFINITIONS

The following terms have the respective meanings given to them below:

“Activation Fee” means a Fee paid by Merchant to MyBite in installments until the full amount is paid in consideration of MyBite’s work to activate Merchant on the MyBite App. Merchant’s Activation Fee is specifically set forth in the Order Form.

“Administrative Fee” means collectively, the Activation Fee and the Subscription Fee.

“AAA” means the American Arbitration association.

“AAA Rules” means the Arbitration Rules of the AAA.

“Ads Manager” means MyBite or its affiliates’ proprietary, automated, self-service sponsored listings tools.

“Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership of a party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract, or otherwise. Both MyBite B.V. and MyBite Payments B.V. are Affiliates of both UTI and MyBite.

“Agreement” means the Order Form, the Definitions, and the  Terms.

“Aggregate Data” means aggregate, deidentified data related to Merchant’s transactions in connection with the MyBite App.

“Applicable Law” shall mean all applicable laws, statutes, regulations, government codes, and government policies from time to time in force (including without limitation all applicable data protection and privacy laws).

“Batched Trip” means an instance where one Marketplace Delivery Person may deliver orders to multiple Customers as part of the same trip, including multiple orders from one Merchant, or including one or more orders from one Merchant combined with one or more orders from other Merchants using the MyBite App or other products or services provided by MyBite or its Affiliates.

“Brand Matter” means an event that, in MyBite’s reasonable judgment, would jeopardize the ability of the Merchant to comply with or perform this Agreement, or prejudice the goodwill or reputation of MyBite or its Affiliates, and that may include alleged violations of the Community Guidelines or any Applicable Laws.

“Bid” means an offer for a Sponsored Listing on the MyBite App.

“Campaign” means a sponsored listing campaign that includes a recurring budget amount, Bid method (automatic or custom), Bid amount (if applicable), and the relevant Merchant locations (if applicable).

“Co-Funded Offer” means MyBite’s agreement to fund a portion of Merchant’s Offer pursuant to the terms of a written Promotion Schedule.

“Confidential Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (the “Discloser”) to another (the “Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes, without limitation, transactional, operational, performance and other data or information (including, MyBite Data, Customers’ information, package information, and the transaction volume, marketing, and business plans, business, financial, technical, operational) and/or that is related to the sale of Merchant’s Items to Customers through the MyBite App and the terms and conditions of this Agreement. Confidential 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.

“Criteria” means any quality, portion, size, ingredient, allergen, origin, or nutritional information or Applicable Law that governs the adequacy of Items.

“Customer” means a customer of the Merchant.

“Customer Feedback” means information provided by a Customer in response to prompting by the MyBite App, including rating of Item(s) (and, if applicable, delivery) and comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the MyBite App, and either the delivery services (provided by either a Marketplace Delivery Person or Merchant Managed Delivery Person) or the Non-Delivery Method experience.

“Damage Fee” means a Fee paid by Merchant to MyBite for 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. The applicable Damage Fee is specifically set forth in the Order Form.

“Delivery Person” means a Marketplace Delivery Person or a Merchant Managed Delivery Person. References to “Delivery Persons” should be read to include both Marketplace Delivery Persons and Merchant Managed Delivery Persons.

“Device” means a tablet or other portable device made available by MyBite to Merchant to access and use the MyBite App.

“Dine-In Item” means an Item transferred by Merchant to Customer via the Dine-in Method.

“Dine-in Item Payment” means the Retail Price of the Dine-In Item(s) sold by Merchant via the MyBite App (including any Sales Tax).

“Dine-In Item Revenue” means the total (i) Dine-In Item Payment earned by Merchant; (ii) gratuity paid by a Customer, if applicable; (iv) less (1) the Dine-In Service Fee and (2) any refunds given by MyBite to Customers on behalf of Merchant.

“Dine-In Method” means a Method whereby Merchant allows Customer to place an order for Dine-in Item(s) intended for consumption at Merchant’s location whereby the delivery of the Dine-In Item to Customer’s designated table will be facilitated by Merchant Personnel.

“Dine-In Service Fee” means a Fee charged by MyBite to Merchant for each Dine-In Item sold by it via the MyBite App. Merchant’s Dine-In Service Fee is specifically set forth in the Order Form.

“Dispute” means any dispute, action, claim, controversy or cause of action among the parties arising out of or in connection with the MyBite App or this Agreement or any term condition or provision hereof, including without limitation any of the same relating to the existence, validity, interpretation, construction, performance, enforcement and termination of the Agreement.

“Effective Date” means a date to be confirmed by MyBite upon which this Agreement will become effective.

“Fees” means any applicable fees charged by MyBite to Merchant, including the Service Fee, the Activation Fee, Subscription Fee, and the Damage Fee.

“Feedback” means information provided by Merchant to MyBite including feedback, suggestions, comments, ideas, or other concepts relating to MyBite’s products and services.

“Force Majeure Event” means occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of government, acts of God, strikes, work stoppage, or other labour disturbances, war or sabotage.

“Fraud” means deception, dishonesty, or misleading actions and includes, but is not limited to, (i) manipulation or gaming of MyBite-funded discounts, marketing initiatives, and other Customer-facing promotions, (ii) creation of false accounts, (iii) colluding with Customers to receive payouts for orders not made, including through credit card chargebacks, (iv) reselling food from another restaurant, (v) gaming or manipulation of ratings or reviews, (v) manipulation or gaming of price adjustments or refunds, (vi) manipulation of order acceptance or completion rates to receive payouts, (vii) any other type of sham transaction, (viii) any other irregular or unusual patterns or schemes that reasonably appear to be designed to provide Merchant with undue gains, and (ix) any activity considered to be fraud under Applicable Law.

“Indemnified Party” means the party receiving indemnification from the Indemnifying Party.

“Indemnifying Party” means the party providing indemnification to the Indemnified Party.

“Initial Term” means a period that will commence on the Effective Date and, unless earlier terminated as provided in the Agreement, will continue for a period of one (1) year from the Effective Date.

“Invoice Details” means information required for the accurate calculation and preparation of invoices by MyBite.

“Item” means any product made available by Merchant to Customer via the MyBite App or Merchant Marketplaces, and includes food and beverage.

“Item Revenue” means the Retail Price (plus Sales Tax and any other fees collected on Merchant’s behalf) less the retained Fees (including the Service Fee, Activation Fee, Subscription Fee, and/or Damage Fee, where applicable) and any refunds given to the Customers on behalf of Merchant.

“Liquor Licence” means a valid and subsisting liquor licence, authorization, or permit to sell liquor from the premises of a Merchant issued by the provincial liquor regulatory authority.

“Lite Services” means the MyBite App Services provided under the Lite Services Plan option, as may be outlined in the Order Form, and as may be updated by MyBite from time to time.

“Losses” means any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees).

“Marketplace Delivery Person” means an independent contractor who intends to perform on-demand delivery services using the MyBite App.

“Marketplace Facilitator Jurisdiction” means jurisdictions with Marketplace Facilitator Laws in effect that are applicable to MyBite due to this Agreement.

“Marketplace Facilitator Laws” means certain legislation that may require MyBite to collect and remit Sales Tax directly to the taxing authority.

“Marketplace Item” means an Item transferred by Merchant to Customer via the Marketplace Method.

“Marketplace Item Payment” means the Retail Price of the Marketplace Item(s) sold by Merchant via the MyBite App (including any Sales Tax).

“Marketplace Item Revenue” means the total Marketplace Item Payment (including any Sales Tax collected on Merchant’s behalf) earned by Merchant, less the Marketplace Service Fee and any refunds given on behalf of Merchant to Customers.

“Marketplace Method” means a Method whereby MyBite will request a Marketplace Delivery Person to collect Marketplace Items from Merchant and deliver such Marketplace Items to Customer. MyBite will purchase delivery services from the Marketplace Delivery Person and sell those delivery services directly to the Customer. Merchant has no contractual relationship with the Marketplace Delivery Person by virtue of this Agreement.

“Marketplace Service Fee” means a Fee charged by MyBite to Merchant for each Marketplace Item sold by it via the MyBite App. Merchant’s Marketplace Service Fee is specifically set forth in the Order Form.

“Marks” means the trademarks, service marks, trade names, copyrights, logos, slogans, and other identifying symbols and indicia of the applicable party or its Affiliates.

“Merchant” has the meaning attributed to it in the Order Form.

“Merchant Content” means the MyBite Marketing Materials, Merchant Marketing Materials, or other videos, still images, or materials used in connection with the display of Merchant’s Items on the MyBite App.

“Merchant Marketing Materials” means videos, still images, or other materials provided by Merchant to MyBite for use in connection with the display of Merchant’s Items on the MyBite App.

“Merchant Managed Delivery Charge” means a delivery charge collected by MyBite or its Affiliates on behalf of Merchant from Customers for Items transferred via the Merchant Managed Delivery Method.

“Merchant Managed Delivery Method” means a Method whereby Merchant may use Merchant Managed Delivery Persons to fulfill delivery of Items requested by Customers.

“Merchant Managed Delivery Person” means an employee, contractor, worker, or agent of Merchant who provides delivery services on a Merchant’s behalf, not arranged by MyBite.

“Merchant Managed Item” means an Item transferred by Merchant to Customer via the Merchant Managed Delivery Method.

“Merchant Managed Item Payment” means the Retail Price of the Merchant Managed Item(s) sold by Merchant via the MyBite App (including any Sales Tax).

“Merchant Managed Item Revenue” means the total (i) Merchant Managed Item Payment earned by Merchant; (ii) Merchant Managed Delivery Charge collected from Customers on Merchant’s behalf (iii) gratuity paid by a Customer in respect of delivery services, if applicable, (iv) less (1) the Merchant Managed Service Fee and (2) any refunds given by MyBite to Customers on behalf of Merchant.

“Merchant Managed Service Fee” means a Fee charged by MyBite to Merchant for each Merchant Managed Item sold by it via the MyBite App. Merchant’s Merchant Managed Service Fee is specifically set forth in the Order Form.

“Merchant Personnel” means Merchant’s employees, contractors, workers, agents, or any person acting on behalf of Merchant from time to time.

“Method” means a method by which Items requested by a Customer through the MyBite App may be transferred from Merchant to such Customer.

“Non-Delivery Item” means an Item transferred by Merchant to Customer via the Non-Delivery Method.

“Non-Delivery Item Payment” means the Retail Price of the Non-Delivery Item(s) sold by Merchant via the MyBite App (including any Sales Tax).

“Non-Delivery Item Revenue” means the total (i) Non-Delivery Item Payment earned by Merchant; (ii) gratuity paid by a Customer, if applicable; (iv) less (1) the Non-Delivery Service Fee and (2) any refunds given by MyBite to Customers on behalf of Merchant.

“Non-Delivery Method” means a Method whereby Merchant may allow Customers to collect Items requested from a specified location without the involvement of a Delivery Person.

“Non-Delivery Service Fee” means a Fee charged by MyBite to Merchant for each Non-Delivery Item sold by it via the MyBite App. Merchant’s Non-Delivery Service Fee is specifically set forth in the Order Form.

“Notice Period” means a period of fourteen (14) days’ advance notice, after which amended  Terms will take effect.

“Offer” means a short-term promotional offer that is created and fulfilled by Merchant that is intended to stimulate Customer demand through the MyBite App (e.g., discounts).

“Offer Costs” means the amount spent by Merchant on an Offer.

“Offer Materials” means, with respect to an Offer, all suitable material to be provided by Merchant, including artwork of Merchant’s trademarks and trade names.

“Offer Tools” means proprietary, automated tools provided by MyBite to Merchant which allow Merchant to create and provide Offers to Customers.

“Online Order Service Fee” means a Fee charged by MyBite to Merchant for each Online Order Item sold by it via an Online Ordering Method. Merchant’s Online Order Service Fee is specifically set forth in the Order Form.

“Online Order Item” means Items provided to Customers via an Online Ordering Method.

“Online Order Item Payment” means the Retail Price of the Item(s) sold by Merchant via an Online Ordering Method (including Sales Tax).

“Online Order Item Revenue” means the Online Order Item Payment earned by Merchant, less (1) the Online Order Service Fee and (2) any refunds given by MyBite to Customers on behalf of Merchant.

“Online Ordering Method” means a Method whereby MyBite will provide Merchant with a hyperlink to embed in the Merchant Marketplaces that will allow Customers visiting Merchant Marketplaces to browse Merchant’s menu and place order(s) for Online Ordering Items either for: (a) delivery to such Customer by a Marketplace Delivery Person; (b) delivery to such Customer by a Merchant Managed Delivery Person; or (c) pick up by such Customer at Merchant’s location during its normal business hours.

“Order Form” means an Order Form executed by Merchant, or any related online, click-through agreement made available to Merchant via the MyBite Tools, that references and requires acceptance of these terms.

“Other Coupon” means a coupon that meets the definition of subsection 181(4) of the Excise Tax Act.

“Partner Sharing” means MyBite sharing Aggregate Data with selected partners for commercial purposes related to the MyBite App.

“Personal Data” means any information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, a unique identification number, precise location data, an online identifier, or one or more factors specific to the physical, physiological, genetic, mental, economic, cultural, or social identity of that natural person.

“Pick-Up Order Service Fee” means a Fee charged by MyBite to Merchant for each Online Pick-Up Order. The applicable Pick-Up Order Service Fee is specifically set forth in the Order Form.

“Plus Services” means the MyBite App Services provided under the Plus Services Plan option, as may be outlined in the Order Form, and as may be updated by MyBite from time to time.

“Premium Services” means the MyBite App Services provided under the Premium Services Plan option, as may be outlined in the Order Form, and as may be updated by MyBite from time to time.

“Promotion Schedule” means Merchant’s creation of an Offer by completing and providing MyBite with a verbal or written promotion schedule.

“Prior Agreements” means all prior agreements between Merchant and MyBite for provision of the MyBite App Services.

“Privacy Notice” means MyBite’s privacy notice, currently available at [Privacy Notice Link].

“Reimbursable Coupon” means a coupon that meets the definition of subsection 181(2) of the Excise Tax Act.

“Renewable Pass” refers to a renewable subscription offered by MyBite or its affiliate(s) pursuant to which Customers may receive specific benefits or discounts that can be applied on MyBite App purchases.

“Retail Price” means the original listed price determined by Merchant for each Item to be made available for sale via the MyBite App prior to any discounts or promotions.

“Sales Tax” means any HST, GST, QST, provincial sales taxes, 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.

“Service Fee” means a Fee paid by Merchant to MyBite in consideration for the use of the MyBite App Services. Merchant’s Service Fee for each specific Method is specifically set forth in the Order Form.

“Sponsored Listing” means a sponsored listing that is posted on the MyBite App.

“Subscription Fee” means a Fee paid by Merchant to MyBite per week continuing until the Agreement is terminated by either party in consideration of MyBite’s work to activate Merchant on the MyBite App. Merchant’s Subscription Fee is specifically set forth in the Order Form.

“Substandard Item” means any Item that fails to meet the Criteria.

“Substandard Item Delivery Fee” means a fee to be assessed by and paid to MyBite by Merchant to offset the cost of delivery of a Substandard Item via the Marketplace Method.

” Terms” means the Definitions, the General  Terms, the Specific  Terms, and any other terms applicable to the use of the MyBite App Services, MyBite Tools, and/or MyBite App and shared with the Merchant.

“Switchover Date” means a date specified by MyBite upon which MyBite will determine the amount of applicable Sales Tax, which MyBite will collect and remit to the taxing authority of Marketplace Facilitator Jurisdictions.

“Term” means the Initial Term together with all Renewal Terms.

“Territory” means Canada.

“Transportation Method” means a mode of transportation that will be used for the purpose of providing delivery services in accordance with the Specific  Terms for the Merchant Managed Delivery Method.

“MyBite” means MyBite Inc. and UTI.

“MyBite Data” means all data related to the access and use of the MyBite App Services and MyBite Tools, including but not limited to all Personal Data related to Merchant and Customers.

“MyBite App” means a website, application, or other technology interface made available by MyBite and/or its Affiliates to Customers, on a royalty-free basis, to purchase Items and, if applicable, delivery services.

“MyBite Marketing Materials” means video, still images, and/or other materials created by MyBite (or a party designated by MyBite acting on MyBite’s behalf) for marketing and other efforts related to the MyBite App.

“MyBite App Services” means certain services made available by MyBite to Merchant to facilitate the marketing, sale, and provision of Items by Merchant to Customers, including on-demand lead generation, logistics, payment processing, marketing, operational, and other support.

“MyBite Tools” means a website, application, and/or other technology interface, made available by UTI to Merchant, on a royalty-free basis, in connection with the MyBite App Services.

“Unsupported Items” means certain Items or Item categories that are not supported by the MyBite Tools and must be removed from the MyBite App.

“UTI” means MyBite Technologies, Inc., a Delaware limited liability company with an address of [Address].

“Virtual Restaurant” means an additional menu that is made available from Merchant’s premises under a different trading name.

“Virtual Restaurant Data” means information provided by MyBite from time to time and related to cuisine demand, consumer preferences, market demographics, and other metrics.

“Virtual Restaurant Fee” means a Fee paid by Merchant to MyBite as consideration for being made available to Customers as a Virtual Restaurant.

GENERAL  TERMS

Additional Merchant Obligations

(a) Merchant will ensure that it and its Merchant Personnel cooperate with MyBite and provide any cooperation and support reasonably requested by MyBite from time to time to enable MyBite to comply with its legal and regulatory obligations and to provide the MyBite App Services.

(b) Merchant will be solely responsible for all costs and expenses incurred by it, including any fees charged by the financial institutions and credit card issuers used by Merchant in connection with the MyBite App Services. Merchant acknowledges and agrees that MyBite will have no responsibility for, and will not reimburse Merchant for, any such costs or expenses.

(c) If required by Applicable Law, Merchant will maintain and administer at its own expense any registration with the appropriate governmental authorities to collect, report, and remit any taxes or fees, including, but not limited to, any value-added tax, sales tax, or other similar taxes or fees, in connection with the sales of Items made available by Merchant through the MyBite App. Merchant will be solely responsible for all such taxes or fees, whether assessed on the amounts received by Merchant for such sales or on the amounts charged to Customers, and for all compliance and reporting related thereto. Merchant will indemnify, defend, and hold MyBite harmless from and against any and all Losses arising out of or related to any claims, liabilities, damages, penalties, interest, fines, costs, expenses, or assessments of any nature (including reasonable attorneys’ fees and other costs of defense) incurred by MyBite arising out of or relating to Merchant’s failure to properly register for, collect, report, or remit any such taxes or fees.

(d) Merchant will take all reasonable efforts to minimize the occurrence of Damaged Devices and must return to MyBite any Device provided by MyBite promptly upon MyBite’s request.

Miscellaneous

(a) These General  Terms are made a part of the Agreement, and any reference to the Agreement will include these General  Terms.

(b) Merchant will indemnify, defend, and hold MyBite and its Affiliates harmless from and against any and all Losses incurred by MyBite or its Affiliates in connection with or arising out of Merchant’s use of the MyBite App Services and/or the MyBite Tools, Merchant’s breach of these General  Terms, or Merchant’s violation of Applicable Law.

(c) MyBite may provide its obligations and exercise its rights and duties under the Agreement and these General  Terms through one or more Affiliates or third parties.

(d) MyBite and Merchant are independent contractors and will have no authority to bind or commit the other party in any way without the other party’s prior written consent.

(e) Merchant will not assign, transfer, delegate, or subcontract any of its rights or obligations under the Agreement, in whole or in part, without MyBite’s prior written consent, and any attempted assignment, transfer, delegation, or subcontract in violation of this Section will be void and of no force or effect.

(f) MyBite may assign, transfer, delegate, or subcontract the Agreement, in whole or in part, in its sole discretion, without restriction, and without the need to notify or obtain consent from Merchant. The Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

(g) The Agreement, including these General  Terms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, whether written or oral, with respect to the subject matter hereof.

(h) The Agreement will be governed by and construed in accordance with the laws of the Province of Ontario, Canada, without regard to its conflicts of law principles.

(i) Any Dispute arising out of or relating to the Agreement, including these General  Terms, will be resolved exclusively through final and binding arbitration in accordance with the AAA Rules in effect at the time the Dispute is submitted, and the arbitration will be conducted in Miami, Florida.

(j) The Agreement will not be subject to the United Nations Convention on Contracts for the International Sale of Goods.

(k) Any waiver of any provision of the Agreement will be effective only if in writing and signed by the party against whom the waiver is sought to be enforced.

(l) If any provision of the Agreement is held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of the Agreement will not in any way be affected or impaired thereby.

(m) The Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. A party may execute the Agreement by signing and delivering the applicable Order Form or by accepting the Agreement online.

(n) Any notice or communication required or permitted under the Agreement must be in writing and will be deemed given (i) when delivered personally, (ii) when sent by confirmed email, (iii) one (1) business day after being sent by reputable overnight courier service, or (iv) three (3) business days after being mailed by first class mail, postage prepaid, return receipt requested, in each case to the addresses of the parties set forth in the Agreement or to such other address as a party may designate by notice to the other party.

(o) The headings in the Agreement are for reference only and do not affect the interpretation of the Agreement.

(p) MyBite may unilaterally change these General  Terms at any time upon reasonable notice to Merchant. Merchant may access the most recent version of these General  Terms at any time by visiting [Link to most recent version]. If any such change is unacceptable to Merchant, Merchant’s only recourse is to terminate the Agreement as provided in the Agreement and these General  Terms. Merchant’s continued use of the MyBite App Services and/or the MyBite Tools following any such change constitutes Merchant’s agreement to be bound by the Agreement, including these General  Terms, as so modified.

1. MyBite Services

1. General. MyBite will make the applicable MyBite Services available to the Merchant, including, but not limited to, on-demand lead generation, logistics, payment processing, marketing, operational, and other support. The MyBite Services are solely for use by the Merchant, subject to the terms of this Agreement.

1. Appointment of Limited Payment Collection Agent.

1. Merchant hereby appoints MyBite as the Merchant’s limited payment collection agent solely for the purpose of: (A) accepting payment of the Retail Price of Items (plus any applicable Sales Tax and other fees collected on the Merchant’s behalf) sold by the Merchant via the MyBite App, via the payment processing functionality facilitated by the MyBite Tools, and (B) transferring to the Merchant the Retail Price (plus Sales Tax and any other fees collected on the Merchant’s behalf) less the retained Fees (including the Service Fee, Activation Fee, Subscription Fee, and/or Damage Fee, where applicable), and any refunds given to the Customers on behalf of the Merchant (“Item Revenue”).

1. Merchant agrees that the payment collected by MyBite on the Merchant’s behalf will be considered the same as payment made directly to the Merchant.

iii. Merchant further authorizes MyBite to collect gratuities (if any) that are paid on the MyBite App voluntarily by Customers to the Merchant, Merchant Personnel, or Merchant Managed Delivery Persons acting on behalf of the Merchant. MyBite shall remit the full value of any gratuities to the Merchant. It is the sole responsibility of the Merchant to make sure that any applicable gratuities are properly transferred to Merchant Personnel and/or Managed Delivery Persons, as applicable.

1. If reasonable, MyBite may adjust the transfer of Item Revenue collected on the Merchant’s behalf for reasons including, but not limited to, failure to fulfill the provision of an Item as ordered. The Merchant may dispute any such adjustments through the MyBite Tools within fourteen (14) calendar days of the Merchant being notified of such adjustment. MyBite reserves the right to, and the Merchant authorizes MyBite to, collect the amount of such adjustments via a deduction from the Item Revenue collected on the Merchant’s behalf, or by debiting the Merchant’s payment method on record, or otherwise seeking reimbursement from the Merchant.

1. In exceptional circumstances only (as determined by MyBite in its sole discretion, acting reasonably), MyBite reserves the right to temporarily or permanently cancel or suspend a payment to the Merchant. The foregoing exceptional circumstances shall include, but not be limited to, any legal or regulatory risk or potential breach of Applicable Laws associated with the transfer of such payment to the Merchant, the actual or expected initiation of insolvency or bankruptcy proceedings against the Merchant, and any failure by the Merchant to provide the Required Documentation in accordance with clause 2(c) of these General  Terms.

1. MyBite may, from time to time, request information from the Merchant to confirm the Merchant’s identity as may be necessary under any applicable compliance obligations before transferring any payments to the Merchant and may refuse to process payments owed to the Merchant in accordance with clause 1(b)(v) of these General  Terms if there exists a legal or regulatory risk or potential breach of law or regulation associated with such transfer to the Merchant.

vii. MyBite may engage any of its Affiliates to perform the activity of the limited payment collection agent on MyBite’s behalf. Both MyBite B.V. and MyBite Payments B.V. are Affiliates of MyBite. Such engagement may be subject to additional terms.

1. MyBite Tools. UTI may make available certain MyBite Tools to the Merchant, and the Merchant may access and use those MyBite Tools solely in connection with the Merchant’s use of the MyBite Services. The MyBite Tools, including all intellectual property rights therein, are and shall remain the property of UTI, its Affiliates, or their respective licensors. Neither this Agreement nor the Merchant’s use of the MyBite Tools or MyBite Data conveys or grants to the Merchant any rights in or related to the MyBite Tools or MyBite Data, except for the limited license granted above. The Merchant shall retain access to MyBite Tools for the Term. In the event of a breach of this Agreement or any other terms agreed between MyBite and the Merchant, MyBite retains the right to revoke access to MyBite Tools without prior notification, and without having to provide any data to the Merchant after such revocation.

1. Device. Devices shall at all times remain the property of MyBite and/or its Affiliates. The 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, will result in a Damage Fee. The Merchant agrees that MyBite may deduct the Damage Fee from the Merchant’s Item Revenue.

1. MyBite App. The Merchant acknowledges and agrees that once it has accepted a request for an order of Items, the MyBite App may provide certain information about the Merchant to the Customer, including the Merchant’s name and contact number. As between the Merchant and MyBite, MyBite and/or its Affiliates will retain sole and absolute control over the MyBite App (and all elements of the user experience and user interface relating to the MyBite App), including, without limitation, with respect to:

1. the personalization of the MyBite App for Customers;

1. the prioritization and display of options available to Customers;

iii. the search functionality and results provided to Customers; and

1. adding, removing, or otherwise modifying any feature or functionality made available through the MyBite App to optimize reliability or efficiency on the MyBite App.

1. No Service Guarantee. MyBite and its Affiliates do not guarantee the availability or uptime of the MyBite Tools or MyBite App. The Merchant acknowledges and agrees that the MyBite Tools and MyBite App may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the MyBite Tools and MyBite App may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and MyBite and its Affiliates are not responsible for any delays, delivery failures, or other damages, liabilities, or losses resulting from such problems.

1. Disclaimer of Warranties. This clause applies only to the maximum extent permitted by Applicable Law and does not (and is not intended to) override any rights that the Merchant has pursuant to Applicable Law. MyBite and its Affiliates provide, and the Merchant accepts, the MyBite Tools and MyBite App on an “as is” and “as available” basis. MyBite and its Affiliates do not represent, warrant, or guarantee that the Merchant’s access to or use of the MyBite Tools or MyBite App: (i) will be uninterrupted or error-free; or (ii) will result in any requests for orders of Items (and delivery, if applicable). MyBite and its Affiliates make no representations, warranties, or guarantees as to the actions or inactions of Customers who may request or receive Items (and delivery services, if applicable), and MyBite and its Affiliates do not screen or otherwise evaluate Customers. By using the MyBite Tools, the Merchant acknowledges and agrees that the Merchant or a Delivery Person may be introduced to a third party that may pose harm or risk to the Merchant, Delivery Persons, or other third parties. The Merchant and their Merchant Managed Delivery Persons are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the MyBite Services and MyBite Tools. MyBite does not represent, warrant, or guarantee the safety of any Items. Notwithstanding MyBite’s appointment as a limited payment collection agent of the Merchant for the purpose of accepting payment from Customers on its behalf, MyBite expressly disclaims all liability for any act or omission of the Merchant, any Merchant Managed Delivery Persons, any Customer, or other third party.

1. Complaints. In connection with the provision of MyBite Services to the Merchant, MyBite, on behalf of the Merchant, may respond to complaints by Customers about Items and/or delivery sold by the Merchant via the MyBite App.

1. Suspension of MyBite Services. MyBite, at its sole discretion, reserves the right to temporarily or permanently suspend, in whole or in part, the Merchant’s access to the MyBite Services and MyBite Tools if:

1. The Merchant fails to provide Required Documentation in a timely manner;

1. The Merchant’s account is in arrears;

iii. A Brand Matter has occurred; or

1. The Merchant is, or MyBite reasonably believes the Merchant is, in breach of this Agreement.

1. In-App Content. MyBite reserves the right to edit or remove the Merchant’s content on the MyBite App, including the Merchant’s menu items, to mitigate or prevent a Brand Matter or to otherwise ensure compliance with this Agreement and Applicable Laws.

2. Merchant’s Obligations

1. Availability of Items. Merchant will make Items available for purchase through the MyBite App during its normal business hours.

1. Merchant will prepare, handle, and store all Items in accordance with Applicable Law, which shall include, without limitation, all laws, rules, and regulations governing time or temperature controls required for food hygiene and safety.

1. Merchant will determine any Criteria that apply to Items, and Merchant is responsible for ensuring that the Items meet the applicable Criteria as displayed to Customers in the MyBite App. MyBite, at its sole discretion, reserves the right to remove from the MyBite App any Item for sale by Merchant deemed unsuitable for sale on the MyBite App.

1. Item Inventory and Responsibilities

1. Item Responsibilities By Method

For Items transferred via the Marketplace Method, with respect to the Items themselves, Merchant is responsible for complying with all health and safety laws and regulations applicable in relation to preparation and packaging of Marketplace Items. Substandard Items are Merchant’s responsibility. With respect to delivery, Merchant remains responsible for all Items up to the point where the Items are transferred to a Marketplace Delivery Person, but Merchant is not responsible for the delivery itself.

For Items transferred via the Merchant Managed Delivery Method, Merchant shall remain responsible for complying with all health and safety laws and regulations applicable in relation to all Items, up to and including the time of delivery of the Items to a Customer. Merchant agrees that, for purposes of delivery of Items via the Merchant Managed Delivery Method, Merchant Managed Delivery Persons shall operate under cover of the Merchant’s retail and health and safety licenses, registrations, authorizations, and privileges and control. Merchant acknowledges and agrees that MyBite never takes title to any Merchant Managed Item, that Merchant remains responsible for the delivery of Merchant Managed Items, and that Merchant shall maintain possession, control, and care of the Merchant Managed Items at all times in full compliance with Applicable Law.

For Items transferred via the Non-Delivery Method, Merchant shall remain responsible for complying with all health and safety laws and regulations applicable in relation to all Non-Delivery Items, up to and including the time of transfer of the Non-Delivery Items to a Customer.

1. Merchant is responsible for costs related to reimbursement to Customers in the event any such Customer(s) request a refund for Substandard Items or otherwise unsatisfactory Item(s) (including, without limitation, any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable). In addition, if a Substandard Item is delivered to a Customer via the Marketplace Method, MyBite may assess a Substandard Item delivery fee (“Substandard Item Delivery Fee”) to Merchant to offset the cost of delivery of the Substandard Item. MyBite may deduct refunds (including the Substandard Item Delivery Fee) from the Item Revenue transmitted to Merchant under this Agreement in accordance with MyBite’s refund policy, as updated from time to time, provided always that Merchant has received notification of such refund policy.

1. Documentation. Merchant will provide MyBite with all Required Documentation that MyBite may request acting reasonably, including but not limited to business license, food premises inspection certificate, food handling certificate, health inspection results, tax identification number, information regarding Sales Tax status, Liquor Licence, licenses to sell or handle regulated items, banking documentation, and all Invoice Details. Merchant is solely responsible for providing MyBite with, and maintaining, accurate bank account information.

1. Restrictions. Merchant will not, and will not allow any third party to: (i) use the MyBite Services, the MyBite Tools, or any other transactional, operational, performance or other data or information that is related to the sale of the Items (and, if applicable, delivery) to Customers through the MyBite App to compete with MyBite, its Affiliates, or the MyBite Services; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the MyBite Services or MyBite Tools (except to the extent that Applicable Law prohibits reverse engineering restrictions); or (iii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the MyBite Services or MyBite Tools (except as otherwise authorized by MyBite).

1. Alcohol. To the extent permitted under Applicable Law, Merchant may use the MyBite App to arrange the sale and delivery of alcohol Items to Customers. If Merchant elects to do so, Merchant is subject to the additional terms set forth herein:

1. Prior to making any alcohol Items available for sale, Merchant will first notify MyBite of its intention to add alcohol Items to its menu for each premises from which Merchant intends to sell alcohol.

1. Merchant represents and warrants that Merchant holds a valid and subsisting Liquor Licence; and (ii) Merchant is compliant with all liquor laws, regulations, policies, and conditions attached to Merchant’s Liquor Licence.

iii. In the event Merchant’s Liquor Licence is suspended, revoked, canceled, expired, or otherwise ceases to be in full force and effect, Merchant will: (i) immediately cease making alcohol Items available for purchase via the MyBite App; and (ii) immediately notify MyBite of the change in status to its Liquor Licence.

1. Merchant will take reasonable measures and conduct appropriate diligence to help ensure that: (i) alcohol Items are not delivered to persons under the legal age in Merchant’s jurisdiction; (ii) alcohol Items are not delivered to intoxicated persons; (iii) if using the Marketplace Method, Merchant provides alcohol Items for delivery only to the specific Marketplace Delivery Person who has agreed via the MyBite App to deliver that order; and (iv) if using the Non-Delivery or Merchant Managed Delivery Method, Merchant’s staff has received any required server training or certification and ensures the Customer is of legal drinking age and not intoxicated.

1. Merchant will write “Check ID” on the exterior of any package containing an alcohol Item, or will otherwise indicate and communicate to a Delivery Person that an order contains alcohol Items in a manner requested by MyBite.

1. If Applicable Law requires Merchant to include food or a meal with each alcohol delivery or takeout order, Merchant will ensure that food or a meal is included with every order of alcohol Items in a manner that complies with the Applicable Law.

vii. Merchant acknowledges and agrees that in any jurisdiction(s) where MyBite or Affiliates do not hold a liquor delivery licence, Marketplace Delivery Persons will deliver Items pursuant to and under the authority of Merchant’s Liquor Licence. As such, Merchant is responsible for ensuring compliance with Applicable Law governing liquor delivery in Merchant’s jurisdiction. However, in any jurisdiction(s) where applicable statute(s) require MyBite or Affiliates to hold a liquor delivery licence, Marketplace Delivery Persons will deliver Items pursuant to and under the authority of MyBite’s or Affiliate’s liquor delivery licence.

viii. Merchant acknowledges and agrees that it is responsible for ensuring that all of the Items listed in the MyBite App comply with any Applicable Law governing the pricing of liquor products. Merchant understands that from time to time MyBite provides promotional incentives to Customers, and Merchant will take appropriate and reasonable measures to ensure that Items comply with minimum liquor pricing requirements.

1. Merchant will appropriately label and describe Items in its menu on the MyBite App, including accurately stating the percentage alcohol by volume of a given Item. In its use of the MyBite Tools, Merchant will comply with all marketing and promotional laws, regulations, and policies relating to liquor, including but not limited to the rules and guidelines published by the applicable provincial liquor regulatory authorities.

1. Merchant will properly configure its menu(s) on the MyBite App to ensure that all alcohol Items are accurately identified as alcohol in MyBite’s systems.

1. Merchant acknowledges MyBite may temporarily or permanently disable the listing of alcohol Items in a particular geography, at MyBite’s discretion, including to ensure optimization for local conditions and regulations.

xii. Merchant will provide any Required Documentation related to liquor to MyBite immediately upon request.

For the purposes of this section, “alcohol” and “liquor” describe Items that are classified and regulated as liquor under Applicable Law.

1. Tax. Merchant is responsible for ensuring the accuracy of its own tax filings

3. Ratings

. Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the MyBite App to provide a rating of such Item(s) (and, if applicable, delivery) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the MyBite App, and either the delivery services (provided by either a Marketplace Delivery Person or Merchant Managed Delivery Person) or the Non-Delivery Method experience (“Customer Feedback”). MyBite reserves the right to use, share, and display Customer Feedback in any manner in connection with the business of MyBite without attribution to or approval of Merchant. MyBite reserves 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 laws and regulations or other Applicable Laws, or violate MyBite’s content policies.

4. Reporting 

MyBite will provide Merchant with information regarding the number of Items sold by Merchant to its Customers. MyBite will also provide information to Merchant regarding any refunds given to its Customers by MyBite on Merchant’s behalf, including the date of the transaction, the Item(s) refunded, the reason for the refund, and any other information MyBite is permitted to provide under applicable privacy laws and regulations.

5. Fees, Retail Price of Items, and Taxes

1. Fees and Taxes.

1. Fees. In consideration of the use of the MyBite Services, MyBite will charge Merchant a “Service Fee” for each specific Method as specifically set forth in the Order Form (together with the Activation Fee, the Subscription Fee, the Damage Fee, and any other applicable fees charged by MyBite to Merchant, the “Fees”).

1. Payment Terms. All Fees under this Agreement will be paid in Canadian dollars. MyBite will deduct any Fees from the payment MyBite collects from the Customer on Merchant’s behalf, as detailed below.

iii. Costs and Expenses. Except as may be expressly set forth in this Agreement, each party will be responsible for its expenses and costs in connection with this Agreement.

1. Taxes on Fees.

All Fees payable pursuant to this Agreement shall be deemed to be exclusive of Sales Tax. The term “Sales Tax” includes any GST, HST, and/or similar provincial sales taxes.

If Sales Tax is applicable on any Fees, MyBite or its Affiliate will charge the Merchant for Sales Tax on Fees, and Merchant shall pay that amount of Sales Tax to MyBite or its Affiliate in addition to and at the same time as payment of the Fees.

1. Retail Price of Items and Taxes.

1. The MyBite 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 MyBite App. As such, you are responsible for determining and setting the retail price for each Item you make available for sale via the MyBite App prior to any discounts or promotions (the “Retail Price”), and you are ultimately responsible for the collection and remittance of all applicable Sales Tax, where required under Applicable Law. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Tax.

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

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

1. Coupons. MyBite may make certain coupons (as defined under the Excise Tax Act and the Québec Sales Tax Act) available to Customers applicable to Items provided by Merchant and some or all associated fees and charges resulting from that transaction. You agree to accept such coupons as consideration payable for your supply of Items (including delivery services related to such Items, if using the Merchant Managed Delivery Method). In the case of a Reimbursable Coupon (i.e., a coupon entitling Customers to a reduction of a fixed dollar amount on the purchase price), you agree that (i) such Reimbursable Coupon will be treated as cash, and Sales Tax will be charged on the full price of the Items, and (ii) MyBite will reimburse you for the full fixed dollar amount of the Reimbursable Coupon. In the case of an Other Coupon, you agree that (i) such Other Coupon will reduce the selling price of the Items before Sales Tax is added, and (ii) no Sales Tax will apply to any amount reimbursed by MyBite in consideration of the acceptance of the Other Coupon as a form of payment as contemplated in this section. The same shall apply in respect of other provincial sales tax where similar coupon rules apply.

1. Notwithstanding the foregoing, certain legislation commonly known as “marketplace facilitator” laws (“Marketplace Facilitator Laws”) may require MyBite to collect and remit Sales Tax directly to the taxing authority. In jurisdictions with Marketplace Facilitator Laws in effect that are applicable to MyBite due to this Agreement (each a “Marketplace Facilitator Jurisdiction” beginning the effective date of such legislation), MyBite may determine, as of a date specified by MyBite (“Switchover Date(s)”), the amount of applicable Sales Tax that MyBite 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) MyBite will continue to collect Sales Tax 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 Tax will be collected by MyBite and remitted to the applicable tax authority on MyBite’s own account, and not on behalf of Merchant. A list of jurisdictions in which MyBite will collect and remit Sales Tax to taxing authorities (and associated Switchover Dates)

6. Invoices

Merchant grants a mandate to MyBite, pursuant to which, for each order completed using the MyBite App, MyBite may issue an invoice and/or receipt for Items (and in the Merchant Managed Delivery Method, delivery services) to Customers in Merchant’s name and on Merchant’s behalf provided that Merchant has completed the required Invoice Details. Merchant may dispute invoices and/or receipts issued by MyBite on Merchant’s behalf within a period not exceeding three (3) days from the issuance date of the invoice and/or receipt. Failing this, Merchant is deemed to have validated said invoice and/or receipt. It is understood that Merchant will carry out storing and archiving of invoices and/or receipts in compliance with Applicable Laws. In the province of Québec, Merchant is exclusively responsible for providing SRM compliant invoices to Customers for each order completed using the MyBite App, and Merchant agrees that MyBite may issue a transaction receipt (not a tax compliant invoice) for Items (and in the Merchant Managed Delivery Method, delivery services) to Customers in Merchant’s name and on Merchant’s behalf.

7. Method Restrictions and Limitations
8. Method Settings. If MyBite has selected both the Merchant Managed Delivery Method and the Marketplace Method, MyBite may select Merchant Managed Delivery Method and/or Marketplace Method for delivery of future orders of Items to its Customers. MyBite may apply its selections to some or all future orders. MyBite may modify its Method selection at any time. However, the selected Method for an order cannot be modified after the order has been placed. All orders pending at the time MyBite modifies its Method must be completed via the Method selected when the order was placed. The proper Method for each order will be reflected in MyBite’s order dashboard available via the MyBite Tools. MyBite may, at its discretion, modify delivery settings on Merchant’s behalf.

1. Delivery Radius Modification. MyBite, at its discretion, reserves the right to modify Merchant’s delivery radius for reasons including, without limitation, to prevent or otherwise limit unfulfilled orders.

1. Temporary Usage Restriction. MyBite, at its discretion, reserves the right to restrict or otherwise limit Merchant’s access to the MyBite App for a period of time for reasons including, without limitation, to prevent or otherwise limit unfulfilled orders.

1. Transfer Restrictions. Merchant will not, via the MyBite App or MyBite Tools, offer for sale or transfer any of the things contained in the then current MyBite Prohibited Items List published online and amended from time to time. Merchant will not use the MyBite Tools to solicit or facilitate donations without the prior written agreement of MyBite, which MyBite may provide in its sole discretion. Merchant will not offer for sale or transfer any Items where doing so is illegal or not permitted under Applicable Law. MyBite has the right to revise the description of, or remove altogether, any prohibited Items listed on Merchant’s menu.

8. Marks

Subject to this Agreement, each party hereby grants to the other party (and, in the case of MyBite, to its Affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks, on a royalty-free basis, in connection with the activities related to this Agreement. This license includes the right to reproduce, adapt, and represent (in connection with all or part of the activities related to this Agreement) the Marks for the entire world, using all means and media, and without any restriction of any kind as regards exploitation methods, the number of prints, dissemination, or utilization. All uses of a party’s Marks (owned or licensed, as applicable) by the other party will be in the form and format specified or approved by the party that owns (or is a licensee of, as applicable) 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. Any use or display of MyBite’s Marks by MyBite in connection with making Items available through the MyBite App in the ordinary course of business will not require any such prior, express, written consent. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the party that owns (or is a licensee of, as applicable) such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Merchant agrees that it will not, and will ensure that Merchant Managed Delivery Persons do not, try to register or otherwise use and/or claim ownership in any of the MyBite Marks, alone or in combination with other letters, punctuation, words, symbols, and/or designs, or in any confusingly similar mark, name, or title, for any goods and services.

9. Marketing and Promotional Activities

1. Marketing. MyBite may showcase the availability of Merchant’s Items via the MyBite App through various promotional activities, including, without limitation, social media channels, websites, advertisements, blogs, or other media available now or hereinafter created. MyBite (or a party designated by MyBite acting on MyBite’s behalf) may create video, still images, and/or other materials for marketing and other efforts related to the MyBite App (“MyBite Marketing Materials”). Merchant agrees that MyBite Marketing Materials (including, without limitation, all intellectual property rights therein) are and will remain the sole and exclusive property of MyBite. Additionally, Merchant may choose to provide videos, still images, and/or other materials to MyBite (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the MyBite App, and Merchant hereby grants MyBite a non-exclusive, perpetual, fully paid-up, and royalty-free right to use, reproduce, adapt, represent, and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the MyBite Services, for the entire world, during the Term, using all means and media, and without any restriction other than as required by Applicable Law as regards exploitation methods, the number of prints, dissemination, or utilization. MyBite 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 MyBite to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that MyBite or its Affiliates may remove Merchant Marketing Materials from the MyBite App(s) if MyBite 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.

1. No Additional Amounts. Merchant acknowledges and agrees that, through advertising and marketing, MyBite may seek to attract new merchants to MyBite Services and to increase existing users of the MyBite Services and MyBite App. Merchant acknowledges and agrees such advertising or marketing does not entitle Merchant to any additional monetary amounts beyond the amounts expressly stated in this Agreement.

1. Merchant Promotional Offers. MyBite may authorize Merchant to use certain automated tools that allow Merchant to provide short-term promotional offers (“Offers”) to Customers through the MyBite App in accordance with the terms of this Agreement. Unless otherwise specified by MyBite, Merchant agrees that it is solely responsible for fulfilling and defining the Offers provided by Merchant to its Customers using MyBite’s proprietary, automated tools (“Offer Tools”) (subject to technical and functional limitations of the automated tools) or a Promotion Schedule (as defined below).

1. Offer Tools. Subject to this Agreement and any other guidelines or eligibility criteria for Offers that MyBite may make available from time to time, MyBite hereby authorizes Merchant to use the Offer Tools to create and provide Offers to Customers. Unless otherwise specified by MyBite, Merchant will be solely responsible for defining each Offer (within the scope of functionality provided by the Offer Tools), including, without limitation, the start date, end date, and budget for each Offer. Alternatively, Merchant may create an Offer by completing and providing MyBite with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to MyBite by Merchant, Merchant will have a specified time period to confirm such Promotion Schedule in writing prior to the Offer being offered. To request a form Promotion Schedule, Merchant should contact its customer support representative. Each Offer will be subject to MyBite’s prior written approval. Merchant may also be responsible for providing to MyBite Offer Materials in a format and within deadlines specified by MyBite for such to be reproduced for the provision of the Offer to Customers.

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

iii. Enhanced Promotional Placements. Subject to MyBite App functionality, MyBite may provide enhanced promotional placement or other visual treatment for the Offers through the start and end date identified by Merchant. Merchant acknowledges that the time period of enhanced promotional placement for an Offer (if applicable) may vary due to a number of factors including Merchant’s budget, the start and end date for an Offer, and other MyBite App functionality.

1. Merchant’s Responsibilities. Merchant will honor and fulfill the terms of the Offer. Merchant represents and warrants that Merchant will run all Offers in accordance with all Applicable Law which applies to the Offers. Merchant represents and warrants that Merchant possesses all necessary authority, rights, licenses, consents, and permissions to run each Offer (including, without limitation, the rights to any Offer Materials provided to MyBite). Merchant will not use an Offer to make charitable donations. For free or reduced “Delivery Fee” Offers, Merchant will be solely responsible for the reduction to the amount that MyBite collects from Customers with respect to the “Delivery Fee”.

1. Reporting and Offer Costs. MyBite will use good faith efforts to provide Merchant with reasonable information regarding Merchant’s Offers, which may include, without limitation, the Offer Costs and the number of Items sold in connection with an Offer. MyBite, in its sole discretion, may highlight Offers and/or the results of Offer in its marketing materials.

9. Service Fees. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Merchant Offer or Co-Funded Offer to an order through the MyBite App, the Service Fee shall be calculated based on the total Retail Price of the order minus the Merchant-funded portion of such Offer applied to that order. For the sake of illustrative purposes, if Merchant and MyBite each fund $1 of a $2 off Offer (so the Co-Funded Offer is funded 50% by each party) on a $10 pre-Offer order total, the Service Fee shall be calculated on the post-Offer amount of $9. If Merchant’s Offer consists of a discount on delivery, the Service Fee will be calculated as described in the Agreement and will not change. Merchant agrees that Merchant is solely responsible for Offer Costs, and that MyBite may deduct Offer Costs from Merchant’s Item Revenue. If Merchant is paid for an Item, it is responsible for the Service Fee and relevant Offer Costs.

vii. Modification, Suspension, Discontinuation. MyBite reserves the right, at any time, temporarily or permanently, in whole or in part, to modify, suspend

10. Virtual Restaurants.

1. Definition. A Merchant who currently offers Items via the MyBite App may, subject to MyBite’s prior approval, operate a Virtual Restaurant. All Virtual Restaurant Items are sold by Merchant.

1. Merchant’s Responsibilities. Without prejudice to any other provision of this Agreement, a Merchant operating a Virtual Restaurant must adhere to the following conditions:

1. Merchant represents and warrants that Merchant will prepare and sell all Items from the Virtual Restaurant at Merchant’s restaurant premises.

1. If this premises address changes, Merchant will provide MyBite with no less than seven (7) days’ advance written notice.

iii. The Virtual Restaurant trading name is Merchant’s Mark and is subject to the indemnification provision of the Agreement. Merchant represents and warrants that (A) the Virtual Restaurant trading name does not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights, and (B) it has the right to display the Virtual Restaurant trading name on the MyBite App. Merchant agrees that MyBite may remove the Virtual Restaurant from the MyBite App if MyBite reasonably believes that it may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

1. MyBite may provide Merchant with Virtual Restaurant Data. Merchant agrees that any Virtual Restaurant Data provided by MyBite or its Affiliates to Merchant constitutes Confidential Information.

11. Confidential Information; Personal Data; Feedback.

1. Definition. Each Recipient agrees that it will not disclose the Discloser’s Confidential Information to any third parties other than Representatives, or use it in any way other than as necessary to perform this Agreement. Each Recipient will ensure that Confidential Information will only be made available to those of its Representatives who have a need to know such Confidential Information and who, prior to any disclosure of such Confidential Information, are bound by written obligations of confidentiality with respect to such Confidential Information that are no less stringent than those set forth in this Agreement. 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 Confidential Information. The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes MyBite to disclose the terms of this Agreement to Merchant’s franchisees in connection with executing contracts that reference this Agreement with such franchisees) and (ii) a Recipient is required to disclose certain Confidential 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 (to the extent legally permissible) and reasonably assists in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by the 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 Confidential Information, together with all copies thereof in whatever form. Neither party makes any representation or warranty that Confidential Information is complete or accurate; all Confidential Information is provided “as is”.

1. Privacy. Merchant agrees to use Personal Data provided to Merchant by MyBite solely for the purpose of providing Items to Customers under this Agreement. Merchant agrees to use Personal Data provided to Merchant by MyBite solely by using the MyBite Tools provided by MyBite and shall not copy, store, retain, remove from the MyBite Tools, or otherwise process the Personal Data. Only in the Merchant Managed Delivery Method, Merchant is permitted to copy Personal Data provided via the MyBite Tools and share it with its Merchant Managed Delivery Persons for the sole purpose of providing Items to Customers in accordance with this Agreement, and will be responsible for compliance with applicable data protection regulations as a data controller, or the responsible party, for such Personal Data as specified in clause 5(a) of the Merchant Managed Delivery Method Specific  Terms. In respect of any Personal Data transferred by MyBite to Merchant, the parties agree that they shall enter into the Data Processing Agreement (controller to controller) in substantially the form attached at Addendum A, included as part of the  Terms.

1. Aggregate Data. Merchant acknowledges that MyBite may use aggregate, deidentified data related to Merchant’s transactions in connection with the MyBite Services (“Aggregate Data”) and may share Aggregate Data with a commercial partner to achieve any commercial purpose, as described in paragraph (h) below. If Merchant allows a third party to provide technology services to Merchant in connection with Merchant’s obligations under this Agreement, then MyBite may share Aggregate Data with such third party to enable the provision of MyBite  Services to Merchant.

1. Third Party Disclosure. Merchant acknowledges that MyBite may share Merchant contact information (including name, address, email, and phone number) with third parties necessary for Merchant’s onboarding on the MyBite  App, including logistics and/or delivery service providers (for the delivery of Devices or other equipment), as well as photography services (for any photography which may be provided by a third-party provider on behalf of MyBite).

1. Passwords. Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the MyBite Tools and related MyBite  Services, including any password, login, or key information. Merchant represents and warrants that Merchant will not share such information with any third party.

1. Data Identification Restriction. Without limiting any other provision of this Agreement, including any provision in this clause, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including, without limitation, 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, without limitation, any Personal Data, for the purpose of re-identification, targeted marketing, analytics, or any other similar purpose.

1. Feedback. Merchant may, but is not obligated to, provide or otherwise make available to MyBite certain feedback, suggestions, comments, ideas, or other concepts relating to MyBite’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to MyBite, Merchant hereby grants to MyBite a perpetual, irrevocable, worldwide, royalty-free, fully sublicensable right to use, reproduce, adapt, represent, and otherwise exploit such Feedback, during the Term, using all means and media, and without any restriction of any kind with regard to exploitation methods, number of prints, dissemination, or utilization.

1. Access to MyBite Data. The MyBite Data accessible through Merchant’s use of the MyBite  Services and MyBite Tools includes onboarding data (e.g., bank account information, contact information, KYC information), operational data (e.g., order history, delivery information, and other metrics), financial data (e.g., Item Revenue due to you, Fees due to MyBite, past payout amounts), and feedback (from Customers and Delivery Persons). After the expiry or termination of this Agreement, Merchant acknowledges that it will no longer be able to access this MyBite Data. MyBite has access to MyBite Data via the MyBite Tools and may use it for the purposes described in MyBite’s Privacy Notice and for commercial purposes, unless expressly prohibited by this Agreement. MyBite may share data with third parties as described in its Privacy Notice, for example, with service providers that assist MyBite in providing the MyBite  Services, and it is not possible for Merchant to opt-out of such sharing. MyBite may also share Aggregate Data with selected partners for commercial purposes related to the MyBite  App (“Partner Sharing”). It is not possible for Merchant to opt-out of Partner Sharing; however, Merchant’s data is not individually identifiable within Aggregate Data. In case MyBite Data is also considered, in accordance with Applicable Law, Merchant’s Personal Data, the information provided in, and the rights afforded under, MyBite’s Privacy Notice shall, in case of a conflict, supersede this paragraph.

12. Indemnification

1. Indemnified Claims. MyBite and the Merchant (the “Indemnifying Party,” as the case may be) will indemnify, defend, and hold harmless the other, its affiliates, and their respective directors, officers, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third-party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents (in Merchant’s case, including Merchant Managed Delivery Persons but excluding MyBite to the extent it acts as Merchant’s agent) in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s (in Merchant’s case, including via Merchant Managed Delivery Persons) representations, warranties, or covenants in this Agreement; and (iii) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party.

1. Merchant Indemnifying Party will indemnify, defend, and hold harmless the MyBite 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 information (including, without limitation, rates and/or Item descriptions), including information transmitted through a Device, point-of-sale, or third-party service, sufficient for accurate Sales Tax calculations; or (C) Merchant’s failure to comply with a notice with respect to Unsupported Items; (D) Merchant copying, storing, retaining, removing from the MyBite Tools or otherwise processing the Personal Data, except as permitted by clause 11(b) of these General  Terms; (E) any third-party claim for actual or alleged infringement of a third party’s intellectual property or other proprietary rights arising out of or in connection with any Offer run by Merchant and use of Offer Materials; and/or (F) any third-party claim arising out of or in connection with the manufacture, production, distribution, handling, advertising, consumption, or use of, or otherwise relating to, any Offer run by Merchant, whether or not any claim arises during the Term of the Agreement, except in the case of each of (A)-(D) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of MyBite or its employees, agents, or that of Marketplace Delivery Persons. With respect to the indemnities in (E) and (F) above, approval by MyBite of any Offer or use of any Offer Materials shall not affect this right of indemnification.

1. Procedure. Each Indemnified Party will provide prompt 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 the 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 the Indemnifying Party’s expense.

14. Auditing/Investigations

. During the Term of the Agreement and for a period of 12 months after expiry or termination of it, on:

1. an annual basis; and/or

1. in case of any suspected or actual breach of (a) the Community Guidelines or any other code of conduct applicable to Merchant, (b) the Agreement, or (c) any of Merchant’s obligations under any applicable labor, anti-slavery, or anti-bribery and corruption provisions, laws, regulations, guidelines, and codes by Merchant or any Representative;

MyBite shall have the right to audit (directly or indirectly) at Merchant’s offices, or request and receive copies of, any or all of Merchant’s records including, but not limited to payroll slips, social contribution expenses, tax returns, receipts, and expenses, at Merchant’s cost, subject to at least twenty-four (24) hours’ written notice. Merchant shall also inform MyBite immediately in writing should it or any Representative be under investigation by any relevant authority in relation to any such potential or actual breach. MyBite reserves the right to send Merchant questionnaires to assess compliance with the Agreement, to which Merchant agrees to reply within twenty-four (24) hours from the moment the questionnaire is sent, or a different deadline if specified in the questionnaire.

15. Governing Law. 

This Agreement shall be governed by and construed in accordance with the laws as specified in the Order Form without regard to its conflict of laws provisions.

16. Internal Complaint System.

Merchant may contact MyBite free of charge via the ‘Help’ section in the MyBite Tools or by visiting [MyBite Support Page URL] to request support or submit complaints about the MyBite Services or MyBite Tools.

17. Dispute Resolution

1. Dispute Resolution to be by Arbitration:

1. All Disputes arising out of or in connection with the Agreement, or in respect of any legal relationship associated with or derived from the Agreement, will be finally and conclusively resolved by arbitration, on an individual basis, under the Commercial Arbitration Rules (“AAA Rules”) of the American Arbitration Association (“AAA”), except as modified herein. 

1. The governing law, known as the Seat of Arbitration, will be Miami, Florida. The language of the arbitration will be English. .

iii. The arbitration hearings and meetings may be held at any location(s) the arbitrator considers appropriate. Arbitration hearings may be conducted by telephone, email, the Internet, videoconferencing, or other communication methods, unless the arbitrator disagrees.

1. If any portion of this Dispute Resolution provision is unenforceable, the remainder of this Arbitration Provision will be enforceable. This Arbitration Provision survives the termination of Merchant’s relationship with Uber, and it continues to apply if Merchant’s relationship with Uber is ended but later renewed.

1. This Dispute Resolution provision applies to, without limitation, Disputes arising out of or relating to interpretation or application of this Agreement, including the formation, scope, enforceability, waiver, applicability, revocability, or validity of this Dispute Resolution provision or any portion of this Dispute Resolution provision.

1. Class Action Waiver:

1. Both Uber and Merchant agree to bring any Dispute in arbitration on an individual basis only, and not on a class or collective basis on behalf of others. There will be no right or authority for any Dispute to be brought, heard, or arbitrated as a class or collective action, or for Merchant to participate as a member in any such class or collective proceeding.

1. Arbitration Process:

1. Before starting arbitration with AAA, the party bringing the claim in arbitration must first deliver a written Notice of Request to Arbitrate (“Notice”) within the limitation period that would apply if the claim were brought in a Court in your province or territory of residence. The Notice must include contact information for the parties, the legal and factual basis of the claim, and the remedy sought and amount claimed. Any demand for arbitration made to Uber must be served to the party’s registered address for service of legal process as follows:

20200 W Dixie Hwy Ste 1005, Miami, FL 33180, United States

1. Before the Notice is delivered to AAA, the party bringing the claim shall first attempt to informally negotiate with the other party, in good faith, a resolution of the Dispute, claim, or controversy between the parties for a period of not less than 30 days but no more than 45 days unless extended by mutual agreement of the parties. If the parties cannot reach an agreement to resolve the dispute within this negotiation period, the party bringing the claim may deliver the Notice to AAA.

18. General

1. Waiver. 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, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.

1. Modification. Any modification or amendment to the Order Form shall be effective only if in writing and signed by both parties, provided that MyBite reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Any modification or amendment to the  Terms shall be in accordance with clause II(B) of the Order Form.

1. Severability. If any provision of the Agreement is held to be illegal, invalid, or unenforceable, in whole or in part, such provision or part thereof shall, to that extent, be deemed not to form part of the Agreement, but the legality, validity, and enforceability of the remainder of the Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid, or unenforceable (part of the) provision with a (part of a) provision that is legal, valid, and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid, or unenforceable (part of the) provision, given the contents and purpose of the Agreement.

1. Force Majeure Event. Any delay in or failure by either party in the performance of this Agreement shall be excused if and to the extent such delay or failure is caused by a Force Majeure Event. The affected party will promptly notify the other party upon becoming aware that any Force Majeure Event 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 the Agreement.

1. Assignment. Merchant may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of MyBite. MyBite may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement without consent or notification. MyBite shall be expressly discharged from all obligations and responsibilities arising after the assignment or transfer. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns.

1. Relationship between the Parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment or worker relationship (including from a labor law, tax law, or social security law perspective) between MyBite and Merchant; and (b) except as specified in this Agreement, no joint venture, partnership, or agency relationship exists between MyBite and Merchant. No party shall 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 shall be solely responsible for its employees and contractors used in connection with this Agreement. Except as otherwise expressly provided herein, the relationship between the parties under this Agreement is solely that of independent contractors.

1. Entire Agreement. This Agreement contains the full and complete understanding and agreement between the parties and supersedes all prior and contemporary understandings and agreements, whether oral or written. In this Agreement, the words “including” and “include” mean “including, but not limited to.”

1. Third Party Beneficiaries. Merchant acknowledges that there are no third-party beneficiaries to this Agreement, except for MyBite’s successors and assigns. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.

1. Liability. Nothing herein limits or excludes (nor is intended to limit or exclude) any statutory rights that Merchant or MyBite may have under Applicable Laws that cannot be lawfully limited or excluded.

1. Payment Processing Errors. MyBite reserves the right, in its sole discretion, to seek reimbursement from Merchant if MyBite discovers payment processing errors. MyBite may deduct from Merchant’s revenue, debit Merchant’s payment method on file, or seek reimbursement from Merchant by any other lawful means to correct any errors. Merchant authorizes MyBite to use any or all of the above methods to seek reimbursement.

1. Notice. Any notice will be sent to the address of the relevant party listed in the Order Form and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) three (3) days after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient.

ADDENDUM A

MYBITE DATA PROCESSING AGREEMENT

This Data Processing Agreement (the “Agreement”) forms part of the MyBite Services Agreement (including the Order Form, Definitions, General Terms) between MyBite and Merchant and all further agreements executed under it (collectively, the “Main Agreement(s)”).

DEFINITIONS

The following terms shall have the following meanings. Capitalized terms not defined herein shall have the same meaning set forth in the Main Agreement(s).

1. “Affiliate” means an entity that owns or controls, is owned or controlled by, or is under common control or ownership with a Party.

1. “Data Protection Law” means all laws and regulations applicable to the Processing of MyBite Personal Data under the Agreement.

1. “Data Subject” means an identified or identifiable natural person.

1. “Personal Data” shall mean “personal data,” “personal information,” or equivalents as defined in applicable Data Protection Laws. In the absence of applicable Data Protection Laws, “Personal data” shall mean any information relating, directly or indirectly, to an identified or identifiable natural person.

1. “Process,” “Processes,” “Processing,” or “Processed” means any operation or set of operations which is performed on personal data or on sets of personal data, whether or not by automated means, such as collecting, recording, accessing, releasing, disclosing, making available, organizing, structuring, storing, adapting or altering, retrieving, consulting, using, disclosing by transmission, dissemination or otherwise, aligning or combining, restricting, erasing or destroying.

1. “Services” means the services provided or received by the parties pursuant to the Main Agreement.

1. “Sub-processor” means a person or entity that processes MyBite Personal Data on behalf of Merchant.

1. “MyBite Personal Data” means Personal Data that is Processed by Merchant for the purpose of rendering Services for MyBite or any MyBite Affiliate. For purposes of this Agreement, MyBite Personal Data does not include the name and contact information of those MyBite employees who are responsible for interacting with Merchant in connection with its performance of the services under the Main Agreement, and any Personal Data incidentally received by Merchant in connection with those interactions.

GENERAL TERMS

1.1. MyBite Personal Data Processing

1.1.1. Limitations and Prohibitions.

1.1.1.1. Merchant shall only Process MyBite Personal Data for the purpose of performing the Services specified in the Main Agreement, and may not use MyBite Personal Data for any other purpose unless otherwise agreed by the Parties in writing.

1.1.1.2. Merchant shall (1) limit access to MyBite Personal Data to only those employees or agents that require access to perform their roles and responsibilities in connection with the Services, and (2) under no circumstances rent, sell or disclose MyBite Personal Data, except as otherwise allowed under this Agreement or the Main Agreement.

1.1.1.3. Merchant will not combine MyBite Personal Data with data from any other source, company, organization or entity, unless necessary to provide the Services. Merchant will not copy or reproduce MyBite Personal Data for its own purposes or those of any Sub-processor or other third party.

1.1.2. Data Retention and Deletion

1.1.2.1. Merchant shall retain MyBite Personal Data for only so long as necessary to perform its obligations under the Main Agreement(s), unless otherwise required under Applicable Law.

1.1.2.2. Upon termination or expiration of the Main Agreement(s) or earlier as requested by MyBite, Merchant shall destroy or return to MyBite (at MyBite’s election) all MyBite Personal Data in its possession, custody and control, except for such Personal Data as must be retained under Applicable Law (which Merchant shall destroy once it is no longer required under Applicable Law to retain). At MyBite’s request, Merchant shall provide MyBite with a written log evidencing the destruction and any retention of MyBite Personal Data.

1.1.3. Data Security Incidents

1.1.3.1. Notice to MyBite. Merchant shall notify MyBite within twenty-four (24) hours of discovery of an actual or suspected unauthorized access to, acquisition or disclosure of MyBite Personal Data, or other actual or suspected breach of security or confidentiality with respect to MyBite Personal Data in Merchant’s or its representatives’ control or possession (a “Data Security Incident”).

1.1.3.2. Third Party Notices. If a Data Security Incident requires notice to any regulator, Data Subject or other third party: (1) MyBite shall have sole control over the content, timing, and method of distribution of any needed notice, unless otherwise required by Applicable Law; (2) Merchant may notify the affected parties only upon MyBite’s prior written approval and instructions, unless otherwise required by Applicable Law; and (3) Merchant shall reimburse MyBite all reasonable expenses incurred by MyBite in connection with any notice with respect to any breach of security or confidentiality for which Merchant is wholly or partially responsible.

1.2. Indemnification. In addition to the terms set forth in the Main Agreement(s), Merchant agrees to fully indemnify, defend and hold harmless MyBite, its directors, officers, employees and agents from and against any and all losses, damages, fees and expenses arising from any claims due to, arising out of, or relating in any way to Merchant’s loss, alteration, or misuse of MyBite Personal Data, or unauthorized access to or destruction or disclosure of MyBite Personal Data.

PROCESSOR TERMS

2.1. Compliance with MyBite instructions and applicable laws. In connection with its Processing of MyBite Personal Data, Merchant shall at all times comply with MyBite’s written instructions pursuant to the Main Agreement(s) and all applicable laws, rules, and regulations, including but not limited to, all applicable Data Protection Law.

2.2. Internal Audits. Upon written request, Merchant shall provide, at its own expense, if available, any data security compliance reports or audit reports that assess the effectiveness of Merchant’s information security program, system(s), internal controls, and procedures relating to the Processing of MyBite Personal Data (e.g., SSAE16, SOC report, or other).

2.3. MyBite Audits. Upon reasonable advance written notice, MyBite may (not more than once per year) during normal business hours and at its own expense, audit Merchant’s facilities, networks, systems, procedures, Processing, and maintenance of MyBite Personal Data, and compliance with this Agreement. Notwithstanding the foregoing, MyBite shall be permitted to exercise such audit right any time a Data Security Incident has occurred. Merchant shall reasonably cooperate with such audit by providing access to knowledgeable personnel, physical premises as applicable, documentation, infrastructure, and any application software that Processes MyBite Confidential Information and/or MyBite Personal Data or otherwise has access to MyBite’s networks and systems. MyBite shall be responsible for its costs and expenses of such audit (or the fees and costs of the third party performing the audit), unless such audit reveals a material breach of the Main Agreement(s) including this Agreement, in which case Merchant will reimburse MyBite for such costs and expenses. Merchant will promptly address and correct all deficiencies identified in any such audit.

2.4. Requests or Demands from Governmental or Regulatory Bodies. Merchant shall inform MyBite as soon as possible if it receives a request or demand from a governmental or regulatory body with authority over Merchant or MyBite relating to Merchant’s Processing of MyBite Personal Data, and shall fully cooperate with MyBite in connection with such investigation or audit.

2.5. Data Subject Rights. If Merchant receives a request from a MyBite Data Subject relating to their MyBite Personal Data, Merchant shall immediately forward the request to MyBite and provide all reasonable cooperation necessary to fulfill the MyBite Data Subject’s request in compliance with Applicable Law.

2.6. Sub-processors

2.6.1. Prior written consent. Merchant will not permit any Sub-processor to Process MyBite Personal Data unless Merchant and the Sub-processor have entered into an agreement that imposes obligations on the Sub-processor that are no less restrictive and at least equally protective of MyBite Personal Data than those imposed on Merchant under this Agreement. MyBite may request a copy of such agreement between Merchant and any Sub-processor, and may withhold consent to the use of such Sub-Processor if Merchant does not provide such agreement or such agreement does not contain sufficient protection of MyBite Personal Data.

2.6.2. Compliance with Data Protection Law. Merchant is responsible for ensuring the compliance of Sub-processors with applicable Data Protection Law in connection with the Processing of MyBite Personal Data.

2.6.3. Liability. Merchant’s use of Sub-processors does not affect or limit Merchant’s liability under this Agreement.

2.7. Termination and Survival. This Agreement and all provisions herein shall survive so long as, and to the extent that, Merchant Processes or retains MyBite Personal Data.

SECURITY MEASURES

3.1. Organizational Security Measures.

3.1.1. Security Program. Merchant has developed and implemented, and will consistently update and maintain as needed: (i) a written and comprehensive information security program in compliance with applicable Data Protection Law; and (ii) reasonable policies and procedures designed to detect, prevent, and mitigate the risk of data security breaches or identity theft (“Security Program”). Specifically, the Security Program shall include, at a minimum:

3.1.1.1. a data loss prevention program, with appropriate policies and/or technological controls designed to prevent loss of MyBite Personal Data; and

3.1.1.2. a disaster recovery/business continuity plan that addresses ongoing access, maintenance and storage of MyBite Personal Data as well as security needs for back-up sites and alternate communication networks.

3.1.2. Access.

3.1.2.1. Merchant shall reasonably update all access rights based on personnel or computer system changes, and shall periodically review all access rights at an appropriate frequency to ensure current access rights to MyBite Personal Data are appropriate and no greater than are required for an individual to perform his or her functions necessary to fulfill the purposes of the Agreement.

3.1.2.2. Merchant shall verify all access rights through effective authentication methods.

3.2. Physical Security Measures. Merchant shall maintain appropriate physical security measures for any facility used to Process MyBite Personal Information and continually monitor any changes to the physical infrastructure, business, and known threats.

3.3. Technical Security Measures

3.3.1. Vulnerability scanning and assessments. Merchant shall perform vulnerability scanning and assessments on new and key applications and infrastructure.

3.3.2. Access Control and Limiting Remote Access. Merchant shall secure its computer networks using multiple layers of access controls to protect against unauthorized access.

3.3.2.1. Merchant shall restrict access through mechanisms such as, but not limited to, management approvals, robust controls, logging, and monitoring access events and subsequent audits.

3.3.2.2. Merchant shall identify computer systems and applications that warrant security event monitoring and logging, and reasonably maintain and analyze log files.

3.3.3. Encryption. Merchant shall encrypt all MyBite Personal Data in its possession, custody or control while in transit.

3.3.4. Security Patches. Merchant shall deploy all applicable and necessary system security patches to all software and systems that Process, store, or otherwise support the Agreement.

3.3.5. Virus/Malware Scanning. Merchant shall use up-to-date, industry standard, commercial virus/malware scanning software that identifies malicious code on all of its systems that collect, use, disclose, store, retain or otherwise Process MyBite Personal Data.

MISCELLANEOUS

4.1. Termination and Survival. This Agreement and all provisions herein shall survive so long as, and to the extent that, Merchant Processes or retains MyBite Personal Data.

4.2. Counterparts. This Agreement may be executed in any number of counterparts and any party (including any duly authorized representative of a party) may enter into this Agreement by executing a counterpart.

4.3. Ineffective clause. If individual provisions of this Agreement are or become ineffective, the effectiveness of the remaining provisions shall not be affected. The parties shall replace the ineffective clause with a legally allowed clause, which will accomplish the intended commercial intention as closely as possible.

4.4. Conflict. In case of contradictions between this Agreement and the provisions of the Main Agreement, the provisions of this Agreement shall prevail.

4.5. Applicable law and jurisdiction. The applicable law and jurisdiction as set forth in the Main Agreement apply to this Agreement.