Merchant Terms and Conditions

Last updated 14 January 2025

BEFORE YOU USE THE ZESTA MARKETPLACE, PICKUP, SELF-DELIVERY, OR ANY OTHER ZESTA PRODUCT OR SERVICE PLEASE READ THESE TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH ZESTA OR USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AS STATED IN THE SIGN-UP SHEET AND ALL OF YOUR PARTICIPATING MERCHANT LOCATIONS (“YOU” OR “MERCHANT”) AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET OR STOREFRONT ORDER ADDENDUM. ZESTA MAY REVISE THESE TERMS FROM TIME TO TIME. WE WILL NOTIFY YOU OF MATERIAL REVISIONS VIA A SERVICE NOTIFICATION OR AN EMAIL TO THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT. BY CONTINUING TO ACCESS OR USE THE SERVICES AFTER THOSE REVISIONS BECOME EFFECTIVE, YOU AGREE TO BE BOUND BY THE REVISED TERMS.

 

SECTION 13 (GOVERNING LAW & DISPUTE RESOLUTION) OF THE TERMS OF SERVICE CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 13 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

 

BY ENTERING INTO THESE TERMS OF SERVICE WITH ZESTA, YOU AGREE TO COMPLY WITH APPLICABLE LOCAL LAWS AND GUIDELINES. ADDITIONALLY, YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE WAIVING YOUR RIGHTS AND OPTING OUT OF FEE LIMITS UNDER CERTAIN LAWS.

 

These Terms of Service, together with the Sign-Up Sheet, the applicable Product Addenda, and other attachments or exhibits hereto, (the “Agreement”) between Zesta and Merchant is effective as of the date that you enter into the Sign-Up Sheet with Zesta. In the event of a conflict between any of the terms in this Terms of Service, a Product Addendum, and/or the Sign-Up Sheet, the conflict will be construed in the following order of precedence: 1) Section 15 (Additional Terms for Non-Enterprise Merchants), 2) Product Addenda, 3) any other term in these Terms of Service, 4) Sign-Up Sheet.

 

1. PREAMBLE.Zesta provides a suite of products, services, and technology solutions to enable merchants to grow their businesses, including online marketplace(s), white label fulfillment, demand generation, certain promotions or marketing services, and warehousing, among others. Merchants are restaurants, grocery stores, and/or businesses that sell products to consumers. Zesta and Merchant wish to enter into a partnership pursuant to the terms set forth in this Agreement. Merchant may opt into certain Zesta Products by entering into the applicable Product Addendum. This Agreement applies to all Merchant Locations owned or operated by Merchant, unless excluded in an attached exhibit or mutually agreed in writing. For Merchants operating a franchisee or similar structure, please refer to Section 14.12.

 

2. OPERATING PROCEDURES.

2.1. Zesta Responsibilities. Zesta will perform the obligations listed in the applicable Product Addenda.

2.2. Merchant Responsibilities. Merchant will: (a) perform the obligations listed in the applicable Product Addenda; (b) notify Zesta of its days and hours of operation, including on holidays; and (c) notify relevant Merchant Location staff members of the relationship with Zesta, and train staff members on receiving and fulfilling Zesta Orders as soon as practicable upon execution of this Product Addendum and on an ongoing basis.

2.3. Malware. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products or services (including the applicable Zesta Product and/or Merchant Application) any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.

2.4. Hours of Operation. Zesta will only accept Orders during the operating hours for the applicable Zesta Product, which may vary by Merchant Location and will be separately communicated to Merchant.

2.5. Delivery Areas. To ensure delivery quality, Zesta will only accept Orders to be delivered within a certain preset delivery area.

2.6. Modifications. Zesta reserves the right, at its sole discretion, to change, suspend, or discontinue any Zesta Product (including the availability of any feature or content) or Merchant Location at any time. Merchant shall not list or include any Merchant Products or Locations that subject Zesta to undue regulatory risk, health and safety risk, or other liability. Any such Merchant Products or Locations are subject to removal by Zesta. If applicable, Zesta may, at its sole discretion, remove any Merchant virtual brand concept from the Zesta Product, if Zesta determines that such virtual brand concept does not meet and maintain certain eligibility requirements as communicated by Zesta, provided, however, that Zesta shall use commercially reasonable efforts to inform Merchant of such removal.

2.7. Redelivery. Orders requiring redelivery due to Merchant’s error, including Merchant Personnel providing an incorrect or incomplete Order to the Driver, are subject to Fees as an additional delivery.

 

3. PAYMENTS. Merchant agrees to pay the Fee(s) as agreed in the Product Addendum and as described in the Rate Card for the applicable Zesta Product. Except as expressly set forth in this Agreement, each Party is responsible for its own costs. Merchant agrees to communicate to Zesta any Dispute, disagreement, or issue with a transaction, Fee, or Order, including those made in connection with fraudulent transactions or payments, within fourteen (14) days of the applicable transaction, Fee, or Order.

 

4. TAXES. Merchant is responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products under this Agreement, and remitting such taxes, duties, and other governmental charges to the appropriate authorities. In many jurisdictions, Zesta may be required to collect sales, use or similar taxes from the Customer and remit such taxes directly to the tax authority. In such jurisdictions, Zesta will inform Merchant that Zesta will remit any applicable taxes to the tax authority and Zesta will be relieved of any responsibility to remit such applicable taxes to Merchant. Additional terms related to the Parties’ respective tax obligations may be set forth in the applicable Product Addendum.

 

5. LICENSE.

5.1. Use of Zesta Products. During the Term, Zesta grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, and fully paid-up license to access the Zesta Product solely to transmit information to facilitate deliveries or pick up in accordance with the terms of this Agreement. Zesta owns and retains all rights, title, and interest in Zesta IP.

5.2. Zesta Product Restrictions. Merchant will not and will not permit or authorize any third party to: (a) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Zesta Product; (b) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Zesta Product; (c) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Zesta Product unless such actions are authorized by compulsory provisions of applicable law; (d) use the Zesta Product in any manner or for any purpose that violates any Law; and (e) use the Zesta Product for a reason other than as specifically provided or intended under this Agreement (which includes the applicable Product Addendum).

5.3. Merchant Content and Trademark; Photographs of Merchant Products.

5.3.1.         Merchant grants to Zesta a royalty-free, non-exclusive, limited, revocable, and non-transferable right and license to use and display the Merchant Content in the provision of services to Merchant, including, where applicable, listing Merchant as a merchant on the Zesta Product, referencing Merchant as a Zesta partner, promoting Zesta’s products and services, and sharing Merchant Content with third parties, including third party services which enable Zesta Customers to access Zesta Products (including its web pages) for Orders.

5.3.2.         If photographs of Merchant Products are not available or if they do not meet Zesta’s requirements, as reasonably determined by Zesta, then Merchant consents to Zesta: (i) engaging a professional photographer to take photographs of Merchant Products or other products; (ii) enhancing the quality of Merchant’s existing photographs; (iii) using stock photographs of the Merchant Products or other products; and/or (iv) using photographs from Merchant’s website or social media channels, and displaying such photographs on the applicable Zesta Product as representations of Merchant Products; provided that Merchant may contact Zesta support to have such photographs removed from the Merchant’s store listing and, in such event, Zesta will comply in a timely manner.

5.4. Goodwill. If Licensee, in the course of performing this Agreement, acquires any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Licensor: (a) when and as such acquisition of goodwill or reputation occurs; (b) at the expiration or termination of this Agreement; and (c) without any separate payment or other consideration of any kind to Licensee. Licensee agrees to take all such actions reasonably necessary to effect such vesting. Licensee will not contest the validity of any of the Marks or Licensor’s exclusive ownership of them. During the Term, Licensee will not adopt, use or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of the Marks or any word or mark confusingly similar to them in any jurisdiction. As it pertains to Zesta, Zesta’s parent company (if applicable) may be considered a “Licensor” hereunder.

5.5. Feedback. Merchant may provide Zesta with Feedback. Merchant hereby grants and agrees to grant Zesta all rights, title, and ownership of such Feedback on an unrestricted basis.

 

6. TERM AND TERMINATION.

6.1. Term. The Agreement will begin on the Effective Date and continue until terminated in accordance with this Agreement, or once all Product Addenda hereunder have terminated or expired, whichever is earlier.

6.2. Termination. Merchant may terminate this Agreement or any Product Addendum for any reason at any time upon seven (7) days’ prior written notice to Zesta. Zesta may terminate this Agreement or any Product Addendum for any reason at any time upon written notice. Either Party may terminate this Agreement immediately, (a) in the event of a material breach by the other Party or (b) if the other Party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. If either Party terminates the Agreement, all Product Addenda shall automatically terminate.

6.3. Survival. Sections 3 (Payments), 4 (Taxes), 5 (License), 6 (Term and Termination), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Data Privacy and Security), 13 (Governing Law, Arbitration, Class Action Waiver), and 14 (Miscellaneous) and rights and obligations in this Agreement which, by their nature, should (or by their express terms do) survive or extend beyond the termination or expiration of this Agreement, shall so survive and extend.

 

7. REPRESENTATIONS, WARRANTIES, AND WAIVERS.

7.1. Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the full right, power, and authority to enter into and perform its obligations under this Agreement, including any Product Addendum; (b) its performance of its obligations under this Agreement will not result in a breach of any obligation to any third party; (c) such Party’s Marks and materials owned, licensed, developed or used in performance of this Agreement do not knowingly infringe or violate any third-party intellectual property right; (d) it will obtain any necessary permits, consents, certificates, approvals, inspections, releases, authorizations, and licenses and/or file any registration forms (if any) in connection with performing its obligations under this Agreement; and (e) it will comply with all applicable law, regulations, and rules in operating its business and performing its responsibilities hereunder (including, if applicable to Merchant, all such Laws regarding health, food safety, sanitation, food packaging and labeling, including required consumer-facing warnings and calorie information).

7.2. Merchant. Merchant represents and warrants that: (a) it will inform Zesta of any warnings, charges, opt-ins, and instructions related to Merchant Products that become required in the future; (b) if applicable, it will disclose common allergens in any Merchant Products items listed on or sold through the Zesta Product; (c) it will not include any products restricted by Zesta (“Restricted Items”) as a Merchant Product available on a Zesta Product, or request delivery of any Restricted Items through the Zesta Product, provided that Zesta may allow promotion, sale or delivery of certain Restricted Items after Merchant has entered into a separate agreement with Zesta memorializing such promotion, sale, and/or delivery of such products in compliance with the Laws of the applicable jurisdiction in which such products will be sold; (d) it will not disclose any information related to a Driver or a Zesta Customer to a third party (except as required to comply with Law or pursuant to a court order); (e) it will comply with the guidelines Zesta publishes that govern any Merchant Content posts on the applicable Zesta Product or Merchant Portal; (f) it shall not offer incentives or payments for reviews or ratings of its business on the Zesta Products; and (g) it shall not use the Zesta Products for any purpose that is detrimental to Zesta or the Zesta Product. The list of Restricted Items is available at https://help.Zesta.com/merchants/s/platform-restricted-items and is updated by Zesta from time to time.

7.3. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1(c), TO THE EXTENT PERMITTED BY APPLICABLE LAW, ZESTA HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY ZESTA PRODUCT, AND EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS IMPLIED, OR STATUTORY RELATED TO EQUIPMENT OR SERVICES PROVIDED TO THE OTHER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. Merchant acknowledges that the operation of the Zesta Product may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Zesta shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the Zesta Product or services. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.

7.4. Compliance with Local Laws; Waivers. Each Party agrees to comply with applicable local laws and guidelines (“Local Laws”) currently in effect or enacted in the future. To the extent that Merchant avails of the Zesta Products in jurisdictions where industry specific Local Laws apply, Merchant agrees that all such Local Laws, including those listed at https://help.Zesta.com/merchants/s/local-laws-us are incorporated herein by reference. Merchant acknowledges that Merchant has read and understood all applicable Waivers, including those related to fee limits, detailed in the abovementioned hyperlink. This list is non-exhaustive and it shall be each Party’s responsibility to identify and comply with any additional laws that apply to their operations.

7.5. Remedies. In the event of a breach of Section 7.1(c), the non-breaching Party’s sole remedy, and the breaching Party’s sole liability, is indemnification pursuant to Section 8.1(d).

 

8. INDEMNIFICATION.

8.1. Indemnification. The Indemnifying Party will, at its own expense defend the Indemnified Party to the fullest extent permitted by Law, and also indemnify the Indemnified Party for any and all Losses arising out of any third-party claim that alleges or results from: (a) any breach of Section 7 by the Indemnifying Party or its Personnel; (b) the gross negligence or more culpable act or omission of the Indemnifying Party or Personnel (including any reckless misconduct) in connection with the performance of this Agreement; (c) bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party or its Personnel (including any reckless or willful misconduct) (or, in the case of Merchant as the Indemnifying Party, caused by Merchant Products or any violation or alleged violation Section 7.1(e) as it pertains to Merchant Products, except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Zesta, including Drivers); and (d) infringement or misappropriation of the intellectual property rights of any third party by the Indemnifying Party’s services (including, in the case of Zesta, the Zesta Product, and in the case of Merchant, the Merchant Applications) or Marks.

8.2. Process. The Indemnified Party shall provide the Indemnifying Party with: (a) prompt notice of any claims, which in no event shall be later than thirty (30) calendar days after the Indemnified Party knew or reasonably should have known that the Indemnifying Party’s defense obligation had been triggered; (b) the option to assume sole control over defense and settlement of any claim; and (c) reasonable assistance in connection with such defense and settlement of the claim, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense and settlement at its own expense. The Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent.

8.3. Exclusions. Notwithstanding Section 8.1(d) and for clarity: (a) the Indemnifying Party shall have no duty to defend any third-party allegations of intellectual property infringement or misappropriation (an “IP Claim”) arising out of or related to the conduct of persons or entities other than the Indemnifying Party or its Personnel; and (b) in the case of Zesta, Zesta shall have no duty to defend an IP Claim to the extent such IP Claim would not have occurred without Merchant’s use of the Zesta Product in combination with a Merchant Application, or other Merchant-provided product, process, step, structure, data, or business method, and/or Merchant’s unauthorized modification of the Zesta Product. Notwithstanding Section 8.1(a), Zesta shall have no duty to defend or Indemnify Merchant for taxes, duties, and other governmental charges.

 

9. LIMITATION OF LIABILITY.

9.1. Direct Damages Only. Except with respect to amounts payable to third parties under Section 8, neither Party will be liable to the other for consequential, special, incidental, punitive, exemplary, or indirect damages or for lost profits, lost revenues, harm to goodwill, or the costs of procuring replacement services, regardless of whether such damages were foreseeable. This limitation will apply to all claims under all theories of law and equity, except where prohibited by Law.

9.2. Limitation. Except in the event of a Party’s gross negligence or willful misconduct, or payment obligations, and where prohibited by Law (collectively, the “LOL Exclusions”) or a Party’s indemnification obligations in this Agreement, the total liability of either Party to the other will not exceed $250,000.00. The total liability of either Party to the other for the LOL Exclusions will not exceed $1,000,000.00. For clarity, a Party’s obligation to pay third parties under Section 8 are uncapped.

9.3. Franchisees. For Merchants operating a franchise or similar structure, this limitation of liability applies to all Merchant Locations and all franchisees cumulatively and not individually.

 

10. CONFIDENTIALITY.

10.1.    Precedence. The terms of this Section 10 supersede any non-disclosure or confidentiality agreement entered into by the Parties prior to the Effective Date of this Agreement.

10.2.    Includes. Confidential Information includes information about the Discloser’s business, including product designs, product plans, software and technology, financial information, marketing plans, business opportunities, pricing information, discounts, inventions, and know-how, to the extent disclosed to the Recipient hereunder, and all other information that the Recipient knew, or reasonably should have known, was Confidential Information of the Discloser. Confidential Information also includes the terms and conditions of this Agreement and the existence of the discussions between the Parties. Confidential Information includes trade secrets as defined under applicable law (which includes the Uniform Trade Secrets Act).

10.3.    Does Not Include. Confidential Information does not include information that: (a) is independently developed; (b) is or becomes public knowledge through no breach of this Agreement; or (c) is received from a third party under circumstances that do not create a reasonable suspicion that such information has been misappropriated or improperly disclosed.

10.4.    Recipient Obligations. The Recipient shall: (a) use Confidential Information only as necessary to perform its obligations and/or exercise its rights under this Agreement; (b) hold Confidential Information in strict confidence and take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential materials); (c) not divulge any Confidential Information to any third party except as provided herein; and (d) not copy or reverse engineer any materials disclosed under this Agreement, or remove any proprietary markings from any Confidential Information.

10.5.    Recipient Personnel. The Discloser acknowledges that the Recipient’s Personnel may have access to the Discloser’s Confidential Information. Any such Recipient Personnel given access to any Confidential Information must have a legitimate “need to know,” and the Recipient shall remain responsible for Recipient Personnel’s compliance with the terms of this Agreement.

10.6.    Disclosure of Confidential Information. A Recipient may disclose Confidential Information as compelled by a court or regulator of competent authority, provided that the Recipient provides the Discloser with prompt written notice of such request, to the extent such notice is legally permissible and reasonably practicable.

 

11. DATA PRIVACY AND SECURITY.

11.1.    Merchant agrees not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Zesta Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep Zesta Data secure from unauthorized access and maintain the accuracy and integrity of Zesta Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to Zesta Data, Merchant will immediately notify Zesta, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Zesta. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Zesta and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the Zesta Product and will be responsible for damages resulting from sharing Merchant’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Merchant’s account. Merchants may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Zesta Product; damage, destroy or impede the services provided through the Zesta Product; transmit injurious code; or bypass or breach any security protection on the Zesta Product. For purposes of clarity, Zesta Data is the Confidential Information of Zesta.

11.2.    Any additional data privacy and security terms required in order to comply with the privacy regulations applicable to the Parties’ partnership in other countries may be set forth in the applicable Product Addendum. The Recipient will establish, maintain, and implement an information security program, including appropriate administrative, technical, organizational, and physical safeguards, that are designed to: (a) ensure the security and confidentiality of Personal Information provided by the Discloser; (b) protect against threats or hazards to the security or integrity of such Personal Information; (c) protect against unauthorized access to or use of such Personal Information; and (d) ensure the proper disposal or destruction of such Personal Information. Each Party shall at all times comply with applicable data privacy and security Laws. If the Recipient becomes aware of any unauthorized access to or loss of Personal Information, it shall promptly report such incident to the Discloser and take appropriate remedial actions.

 

12. INSURANCE.

12.1.    General. The insurance amounts indicated are minimum requirements and not limits of liability, and they are not to be construed as a Party’s consent to substitute its financial liability in excess of the amounts provided in Section 9.

12.2.    Minimum Requirements.

12.2.1.       For Merchants with greater than $1,000,000.00 in annual sales across all Zesta Product(s), each Party will maintain at its sole cost and expense: (a) worker’s compensation and employers’ liability insurance with limits no less than the minimum amount required by applicable law for each accident, including occupational disease coverage; (b) commercial general liability insurance, including product liability, and excess liability endorsements of $1,000,000.00 per occurrence; (c) cybersecurity insurance up to $2,000,000.00 per claim and in the aggregate; and (d) umbrella/excess liability insurance up to $5,000,000.00 and in the aggregate.

12.2.2.       For Merchants with less than $1,000,000.00 in annual sales across all Zesta Product(s), each Party will maintain at its sole cost and expense: (a) worker’s compensation and employers’ liability insurance with limits no less than the minimum amount required by Law for each accident, including occupational disease coverage; (b) commercial general liability insurance, including product liability, and excess liability endorsements of $1,000,000.00 per occurrence; (c) cybersecurity insurance up to $1,000,000.00 per claim and in the aggregate; and (d) umbrella/excess liability insurance up to $2,000,000.00 and in the aggregate.

12.3.    Automobile Liability Insurance. In addition, Zesta may maintain automobile liability insurance covering Zesta and Drivers (regardless of whether the vehicles driven by such Drivers are owned by Zesta, Drivers or a third party) of $1,000,000.00 per occurrence. Zesta will require all Drivers to maintain a current and valid automobile insurance policy with limits of liability at least equal to any minimum limits of liability required under Law.

12.4.    Coverage. The policy limits stated above may be met in the form of primary and umbrella/excess coverage. Such insurance is primary and not contributory with the other Party’s insurance.

 

13. GOVERNING LAW & DISPUTE RESOLUTION.

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH ZESTA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”

13.1.    Governing Law and Arbitration. This Agreement is governed by and interpreted in accordance with the laws of the State of Delaware without regard to the conflicts of laws principles thereof.

13.2.    Scope of Arbitration Agreement. Any Dispute shall be finally resolved by binding arbitration except claims: (a) in small claims court, so long as the matter advances only on an individual (non-class, non-representative) basis; and (b) for injunctive relief arising out of the infringement or other misuse of intellectual property rights (such as a Party’s Marks or Zesta IP). Zesta and Merchant agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration Agreement shall apply to all Disputes and shall be binding upon and enforceable by not only the parties, but also their affiliates, subsidiaries, and their respective owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST ZESTA—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH ZESTA, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST ZESTA IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

13.3.   Informal Resolution. You and Zesta agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and Zesta therefore agree that, before either you or Zesta demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Zesta that you intend to initiate an informal dispute resolution conference, email [email protected], providing your name, telephone number associated with your Zesta account (if any), the email address associated with your Zesta account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

13.4.   Arbitration Rules and Forum. This arbitration agreement shall be governed by the Federal Arbitration Act in all respects. If the rules and procedures of the Federal Arbitration Act cannot apply, the state law governing arbitration agreements in the state of the Merchant Location most closely associated with the Dispute shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 19(b). If this notice is being sent to Zesta, it must be sent by email to the counsel who represented Zesta in the informal dispute resolution process, or if there was no such counsel then by mail to General Counsel, at 303 2nd Street, South Tower, Suite 800, San Francisco, CA 94107. The arbitration will be conducted by ADR Services, Inc. pursuant to the most current version of its rules available at https://www.adrservices.com/services/arbitration-rules/ and pursuant to the terms of this Agreement. In the event of a conflict between the two, the provisions of this Arbitration Agreement shall supersede any and all conflicting arbitration administrator’s rules or procedures. Arbitration demands filed with ADR Services, Inc. must include (1) the name, telephone number, mailing address, and e-mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration. The fees that shall apply to arbitrations administered by ADR Services, Inc. are set forth on ADR Services, Inc.’s website, available as of June 23, 2022 at https://www.adrservices.com/rate-fee-schedule/. Payment of all filing, administration, and arbitration fees will be governed by ADR Services, Inc.’s General Fee Schedule and ADR Services, Inc.’s rules. However, if required by law, Zesta will pay the portion of the initial case opening fees (if any) that exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. If ADR Services, Inc. is not available to arbitrate, the parties will mutually select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the county where you live or at another mutually agreed location. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute. The parties agree that all of the arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by law. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Arbitration Agreement, either party may seek to enjoin the arbitration proceeding in court, and the arbitration shall automatically be stayed pending the outcome of that proceeding.

13.5.   Arbitration Appeal. If the arbitration award includes any injunction or a monetary award that exceeds $100,000, then either party shall have the right to appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing party within fourteen (14) days after the award has become final. ADR Services shall administer the appeal consistent with the JAMS Optional Arbitration Appeal Procedures, available as of June 23, 2022 at https://www.jamsadr.com/appeal/.

13.6.   Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable, except with respect to the Waiver of Class or Consolidated Actions, the enforceability of which can only be determined by a court. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court or arbitration administrator. The arbitration will decide the rights and liabilities, if any, of you and Zesta. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and Zesta subject to Section 13.5.

13.7.   Waiver of Jury Trial. YOU AND ZESTA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Zesta are instead electing to have all Disputes resolved by arbitration, except as specified in Section 13.2 above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

13.8.   Waiver of Class or Consolidated Actions; Severability. YOU AND ZESTA AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class, consolidated, and representative actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Zesta is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 14.1, after the conclusion of the arbitration of any arbitrable claims, and all other provisions of this Section 13 (Dispute Resolution) shall remain in force. The parties also waive the right to bring any claims for public injunctive relief. If, however, this waiver of public injunctive relief claims is deemed invalid or unenforceable with respect to a particular claim or dispute, then all such claims and disputes will then be resolved in arbitration. Notwithstanding any other provision in this Agreement, any claim that all or part of this Waiver of Class or Consolidated Actions is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. If any provision of this Section 13 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 13. Nothing in this provision shall prevent you or Zesta from participating in a class-wide, collective, or representative settlement of claims.

13.9.   Opt Out. Zesta’s updates to these Terms of Service do not provide a new opportunity to opt out of the Arbitration Agreement if you had previously agreed to a version of Zesta’s Terms of Service and did not validly opt out of arbitration. Zesta will continue to honor the valid opt outs of merchants who validly opted out of the Arbitration Agreement in a prior version of the Terms of Service. If you create a Zesta account for the first time on or after June 23, 2022, you may opt out of this Arbitration Agreement. If you do so, neither you nor Zesta can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Zesta in writing of your intention to opt out by sending a letter, by First Class Mail, to Zesta, Inc., 303 2nd Street, South Tower, Suite 800, San Francisco, CA 94107. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked by the later of 30 days after this Terms of Service update or 30 days after your first order on the Platform. Your notice must include your name and address, your Zesta username (if any), the email address you used to set up your Zesta account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one merchant, and letters that purport to opt out multiple merchants will not be effective as to any. No merchant (or his or her agent or representative) may effectuate an opt out on behalf of other persons. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.

13.10.   Survival. This Arbitration Agreement will survive any termination of your relationship with Zesta.

13.11.  Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Zesta makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to Zesta.

 

14. MISCELLANEOUS.

14.1.    Litigation Class Action Waiver. To the extent allowed by Law, separate and apart from the Arbitration Agreement found in Section 13, Merchant agrees that any proceeding to litigate in court any Dispute, whether because Merchant opted out of the Arbitration Agreement or any other reason, will be conducted solely on an individual basis, and Merchant agrees not to seek to have any controversy, claim or Dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”) . Merchant further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all Parties to any such proceeding. The enforceability of this Litigation Class Action Waiver shall only be determined by a court of competent jurisdiction. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void, or voidable with respect to a particular claim or Dispute, then all such claims or Disputes will be resolved in court, after the conclusion of the arbitration of any arbitrable claims or Disputes, and the remainder of this Arbitration Agreement shall remain in full force and effect.

14.2.    Relationship of the Parties. Notwithstanding any provision herein to the contrary, each Party is an independent contractor with respect to its performance of its obligations hereunder. Nothing contained herein is deemed to create the relationship of partnership, principal, and agent, or joint venture between the Parties. Neither Party has any right or authority to incur obligations of any kind in the name of, or for the account of, the other Party nor to commit or bind the other Party to any contract or other obligation. Under no circumstances is either Party considered to be, nor will either Party hold itself out as, an employee, agent, franchisee, or joint venturer of the other Party.

14.3.    Regulatory Fees. If there is a Change in Law, Zesta may pass through such fees and/or costs generated as a result of the Change in Law to Merchant in the affected jurisdiction(s) with 15 days’ written notice. Merchant may terminate this Agreement in part with respect to the affected jurisdiction by providing Zesta with 15 days’ written notice from the date of Zesta’s notice. Notwithstanding the foregoing, either Party may exercise its termination rights hereunder, either in whole or in part as it pertains to the affected store or jurisdiction.

14.4.    Partner Code of Conduct. Merchant will comply with the version of the Partner Code of Conduct published as of the Effective Date at the following hyperlink: https://about.zesta.one/legal/partner-code-of-conduct/, or such other internal code of conduct in effect with Merchant, that Merchant affirms substantially conforms with the Partner Code of Conduct. Zesta shall also comply with the Partner Code of Conduct.

14.5.    Counterparts. This Agreement may be executed in one or more counterparts and signed copies may be delivered by email, in which event, each of which is deemed an original, and all of which together constitute one agreement.

14.6.    Entire Agreement. This Agreement represents the entire agreement between Zesta and Merchant with respect to the subject matter hereof, and supersedes all prior agreements with respect to the subject matter hereof.

14.7.    No Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both Parties. The waiver by any Party of any breach or default will not constitute a waiver of any different or subsequent breach or default.

14.8.    Assignment. Neither Party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent may not be unreasonably withheld, and any attempted assignment without such consent will be void; provided that either Party may assign this Agreement without such consent, to an Affiliate, or in connection with any merger, consolidation, sale of all or substantially all of the assigning Party’s assets, or any other similar transaction. Subject to the foregoing in this Section 14.8, this Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each Party. This Agreement will not confer any rights or remedies upon any person other than the Parties, their respective successors, and permitted assigns.

14.9.    Enforcement. If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality, or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

14.10.    Notices. Legal notices to either Party shall be sent to the applicable address on the first page of the Sign-Up Sheet, or such other address as the Party communicates in writing.

14.11.  Promotional Programs; Future Program Changes. This Section 14.11 applies only if Merchant operates a franchisee or similar structure.

14.11.1.     Future Program Changes. From time to time during the Term, Merchant and Zesta may desire to implement efficient enrollment processes that will enable Eligible Franchisees to participate in new Zesta products, promotions or services and/or effect changes to the commercial terms pursuant to which Zesta provides its services to such Eligible Franchisees (“Future Program Changes”).

14.11.2.     To the extent that Merchant is responsible for enrolling Eligible Franchisees to Future Program Changes, Zesta agrees that Merchant may do so in the form of an opt-in, an opt-out, or similar mass sign-up system (“Enrollment Protocol”), provided that Merchant shall administer such Enrollment Protocol in compliance with Law and pursuant to its franchise Product Addendums with the Eligible Franchisees. Furthermore, Merchant agrees to defend, indemnify, and hold Zesta harmless from and against Losses with respect to claims of Eligible Franchisees arising out of or related to the Enrollment Protocol or the enrollment of such Eligible Franchisee to the Future Program Changes.

14.11.3.     To the extent that Zesta is responsible for enrolling Eligible Franchisees to Future Program Changes, Merchant agrees that Zesta may do so in the form of an Enrollment Protocol, provided that Zesta shall administer such Enrollment Protocol in compliance with Law. Furthermore, Zesta agrees to defend, indemnify, and hold Merchant harmless from and against Losses with respect to claims of Eligible Franchisees arising out of or related to the Enrollment Protocol or for Zesta’s error during the enrollment of such Eligible Franchisee to the Future Program Changes.

14.12.  Franchisees. This Section 14.12 applies only if Merchant operates a franchisee or similar structure. Merchant’s Eligible Franchisees may use certain Zesta Products hereunder pursuant to the terms and conditions of this Agreement, provided that: (a) Merchant has executed the requisite Product Addenda; and (b) the individual franchisee enters into an agreement in substantially the same form as the Franchisee Agreement attached to this Agreement as Exhibit A. For purposes of the Agreement, an “Eligible Franchisee” means a franchisee of Merchant that has signed the Franchisee Agreement. Merchant shall indemnify, defend, and hold Zesta harmless against any third-party suits, fees, costs or expenses resulting from a dispute between Merchant and any of Merchant’s Franchisees relating to or arising from conduct of the Merchant (including former Franchisees). Zesta acknowledges that Merchant is not responsible or liable for any Eligible Franchisee’s acts, omissions or performance, including an Eligible Franchisee’s payment obligations, under the Franchisee Agreement or other agreement between Zesta and Eligible Franchisee. In Sections 2 (Operating Procedures), 3 (Payments), 4 (Taxes), 5.1 (Use of Zesta Products), and 5.2 (Zesta Product Restrictions), “Merchant” shall be replaced with “Eligible Franchisee.” In Sections 6 (Term and Termination), 7 (Representations and Warranties), 8 (Indemnification), 10 (Confidentiality), 11 (Data Privacy and Security), and 12 (Insurance) “Merchant” shall be replaced with “Merchant and Eligible Franchisee”.

14.13.  Use Only Where Legally Allowed. Merchant shall not access or use the Zesta Products or any portion of the Zesta Products if it is not legally allowed to do so where it is located.

14.14.  Third-Party Add-On Features. From time to time, Zesta may make available third-party add-on features (“Third-Party Add-On Features”) for use with the Zesta Products. Third-Party Add-On Features are not included within the definition of Zesta Products under this Agreement, and Zesta hereby expressly disclaims all warranties, express, implied, or statutory, regarding Third-Party Add-On Features, including but not limited to any implied warranties of merchantability, title, satisfactory quality or results, or fitness for a particular purpose and non-infringement. Zesta also makes no representations or warranties regarding availability of any Third-Party Add-On Feature. Third-Party Add-On Features may be discontinued by Zesta and/or the third-party provider at any time, with or without cause.

14.15.  Communications from Zesta. Merchant agrees to receive communications from Zesta, its affiliates, and Drivers, including via email, text message, calls, and push notifications to the mobile telephone number Merchant provides to Zesta. Merchant also agrees that it may receive communications generated by automatic telephone dialing systems which may deliver pre-recorded messages.  Merchant acknowledges that it can opt out of promotional SMS at any time by texting “STOP.” Message and data rates may apply.

14.16.  Copyright Infringement. If you believe that your work has been copied and posted on the Zesta Products in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Zesta Products of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Zesta’s Copyright Agent for notice of claims of copyright infringement is as follows: General Counsel, Zesta, Inc., 303 2nd St, Suite 800, San Francisco, CA 94107.

 

15. ADDITIONAL TERMS FOR NON-ENTERPRISE MERCHANTS.

15.1.    Fees.

15.1.1.       Zesta shall be entitled to deduct from such payments Zesta’s Commission Rate, marketing fees (for identifiable orders), activation fees, subscription fees, and any other fees which Zesta may notify you regarding with at least seven (7) days’ advance written notice.

15.1.2.       To the extent that a third party provider provides services to Merchant on basis of an agreement between third party provider and Merchant via the Zesta Product (for example, a middleware provider) and charges fees to Zesta, Zesta may pass through such third party’s fees to Merchant.

15.1.3.       Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to Zesta in writing (email shall suffice for written notice) any claimed inaccuracies, so that Zesta has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Zesta and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to Zesta any disagreement, non-conformity or any issue with any transaction, fee, charge or order, including in connection with fraudulent transactions or payments, within fourteen (14) days of the transaction, fee or order.

15.2. Benefit Programs. Merchant may qualify for special pricing and product benefits, such as commission rebates, described at https://help.Zesta.com/legal/document?type=mx-supplemental-terms&region=US&locale=en-US

 

16. DEFINITIONS. Note that certain terms may not appear in these Terms of Service but may appear in the Sign-Up Sheet, Rate Card, or a Product Addendum.

16.1.    “Affiliate” means an entity controlled by, controlling or under common control with a Party.

16.2.    “Change in Law” means a material change in (or change in enforcement thereof) Law, labor standard or unionization pertaining to independent contractors and/or the delivery of goods.

16.3.    “Commission” means the fee Zesta charges Merchant for an Order, which is calculated by multiplying (i) the applicable Commission Rate by (ii) the subtotal for the Merchant Products ordered by the Customer, excluding all applicable taxes and other governmental fees and surcharges, such as an applicable local bottle deposit fee.

16.4.    “Commission Rate” means the percentage, indicated in the Rate Card for the applicable Zesta Product, that Zesta shall charge Merchant on each Order.

16.5.    “Confidential Information” means all confidential, proprietary, or nonpublic information provided by the Discloser to the Recipient that a reasonable industry participant would deem to be confidential, as further described in Section 10.

16.6.    “Customer” means “Zesta Customer” and “Merchant Customer” collectively or individually, as the context requires.

16.7.    “Driver” means a person contracted by Zesta to perform the applicable services.

16.8.    “ZestaPass” means Zesta’s subscription program for Zesta Customers pursuant to which Zesta Customers will receive $0 delivery fees and reduced service fees on qualifying Orders placed with participating Merchant Locations on the applicable Zesta Product. In order to continue to qualify for ZestaPass inclusion, Merchant and/or Merchant Locations may be required to meet and maintain certain additional eligibility requirements as communicated by Zesta. Merchant acknowledges that the terms of participation in ZestaPass do not conflict with, or result in a breach of, any previously existing agreements or terms to which Merchant may be bound.

16.9.    “Delivery Order” means an Order that is delivered by a Driver.

16.10.  “Discloser” means the Party disclosing Confidential Information.

16.11.  “Dispute” means any dispute, claim or controversy arising out of, relating to, or in connection with this Agreement, including the breach, termination, enforcement, interpretation or validity thereof (as well as the determination of the formation, scope, or applicability of the arbitration agreement in Section 13) or the relationship between the Parties, their affiliates and subsidiaries, and each of their respective owners, directors, managers, and personnel.

16.12.  “Zesta Customer” means the end user accessing the Zesta Product to place an Order.

16.13.  “Zesta Data” means any information that Zesta provides or makes accessible to Merchant, including Personal Information.

16.14.  “Zesta IP” includes all patents, patent applications, inventions, copyrights, trade secrets, Marks, ideas, images (including descriptions of such images), domain names, and any and all other works and materials developed by Zesta (including all intellectual property rights therein and thereto), and similar rights owned by Zesta that are embodied in the Zesta Product or any other Zesta technology or platform.

16.15.  “Zesta Product” means the Zesta technology that Merchant accesses or Zesta provides, as defined in the applicable Product Addendum, in each case, that will allow information to be exchanged between Merchant (which may include Merchant Applications and/or a Third Party Platform) and Zesta. References to the “Zesta Product” include the Zesta Product Documentation.

16.16.  “Zesta Product Documentation” means documentation, specifications, and other materials (whether written or electronic) that describe the operation or function of a Zesta Product.

16.17.  “Exclusive Platform” means that the Zesta Product is the Merchant’s exclusive third-party food ordering and/or delivery provider or platform.

16.18.  “Fee” means the fee or commission rate indicated in the Rate Card for the applicable Zesta Product, plus all tips paid by Customer, and may include separate fees for different Order types, if applicable.

16.19.  “Feedback” means any comments, suggestions, or ideas for improvement regarding the Zesta Product or the Zesta Product Documentation, or Merchant’s evaluation and use thereof.

16.20.  “including” means “including without limitation”.

16.21.  “Indemnified Party” means the Party entitled to or seeking indemnification, pursuant to the terms of this Agreement, and its affiliates, respective officers, directors, shareholders, Personnel, successors, and permitted assigns.

16.22.  “Indemnifying Party” means the Party indemnifying the other Party pursuant to the terms of this Agreement.

16.23.  “Law” means all laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to the referenced Party.

16.24.  “Licensee” means the Party receiving the license described in Section 5.

16.25.  “Licensor” means the Party granting the license described in Section 5. As it pertains to Zesta, an Affiliate of Zesta may be considered a “Licensor” hereunder.

16.26.  “Losses” means the resulting judgments, fines, settlements, court costs, and attorneys’ fees that are incurred by the Indemnified Party, in each case finally awarded by a court of competent jurisdiction.

16.27.  “Marks” means the corporate names, trade names, trademarks, service marks, and logos (including third-party marks to which the Licensor has rights and uses in its business). This includes “ZESTA”,  “ZESTA MART”,  and “” marks, as well as any successor marks or designations.

16.28.  “Merchant Application” means the software and/or system(s) that are used by Merchant (if any) to provide digital order solutions and services to Customers generally, including Merchant’s website.

16.29.  “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), business information and Merchant Product descriptions (either provided by Merchant or on Merchant’s website), trademarks, logos, Merchant name, location, URL, phone number, and other materials provided by Merchant to Zesta.

16.30.  “Merchant Customer” means the Customer accessing the Merchant Application(s) to place an Order.

16.31.  “Merchant Location” means the Merchant store, location, warehouse, or restaurant that are within the territory serviced by Zesta and includes: (a) Merchant Locations owned and operated by Merchant and/or its affiliates, and/or (b) Merchant Locations owned and operated by franchisees of Merchant or its affiliates which have signed the Franchisee Agreement.

16.32.  “Merchant Portal” means the portal made available by Zesta to Merchant which provides Merchant with Order sales information and other functionality in connection with Merchant’s relationship with Zesta. For purposes of the Agreement, the Merchant Portal is a Zesta Product.

16.33.  “Merchant Product” means the products (e.g., food, beverages, groceries, retail items, etc.) prepared, distributed, or sold by Merchant.

16.34.  “Personnel” means a Party’s employees, agents, contractors, or subcontractors.

16.35.  “Order” means Delivery Orders and Pick Up Orders collectively.

16.36.  “Order Equipment” means any equipment reasonably required by Zesta for Merchant to receive, process and accept Orders (including a tablet or other technology capable of receiving Orders).

16.37.  “Party” means Zesta or Merchant, as the context requires.

16.38.  “Personal Information” means any information that (a) relates to an identified or identifiable natural person (including names, telephone numbers, addresses, signatures, email addresses, and/or other unique identifiers); or (b) that can reasonably be used to identify or authenticate an individual, directly or indirectly (including name, contact information, precise location information, access credentials, persistent identifiers, and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law, including, if applicable, the General Data Protection Regulation (GDPR)), which is collected and/or handled by any of the Parties in connection with this Agreement.

16.39.  “Pick Up Order” means an Order that the Customer picks up at the Merchant Location, instead of being delivered by a Driver.

16.40.  “Product Addendum” means an addendum to this Agreement that describes the Zesta Product that Merchant accesses pursuant to the terms herein.

16.41.  “Rate Card” means the schedule that details the rates and fees that Merchant shall pay for the Zesta Product(s) that Merchant opts into and/or uses.

16.42.  “Recipient” means the Party receiving Confidential Information.

16.43.  “Scheduled Order” means an Order that the Customer or Merchant indicates should be delivered at some point in the future.

16.44.  “Term” means the period from the Effective Date until the date of termination.

16.45.  “Third Party Platform” means a third party’s technology interface, such as a middleware technology platform, other than the Zesta Product and Merchant Applications, that enables Merchant to request delivery fulfillment and/or provide information necessary to enable such delivery fulfillment.

16.46.  “Unattended Order” means an Order that the Driver leaves at the Customer’s front door or similar location.

16.47.  “Weblink” means a link from Merchant’s website through an “order now” button that directs traffic to the Merchant Location online ordering page on the Zesta Product.

 

 

 

EXHIBIT A – FRANCHISEE AGREEMENT

 

This Franchisee Agreement (the “Franchisee Agreement”) is between Zesta and Franchisee. As it pertains to this Franchisee Agreement, Zesta and Franchisee are each a “Party”. By entering into a Franchisee Sign-Up Sheet with Zesta, the duly authorized representatives of the Parties agree to the terms and conditions of this Franchisee Agreement.

 

1. FRANCHISOR AGREEMENT. Franchisee’s franchisor (“Franchisor”) has entered into a master services agreement with Zesta (“Agreement“), which may be attached hereto. The Agreement provides that Franchisee may elect to use certain Zesta Products that Franchisor has enabled in its Agreement, provided that Franchisee executes this Franchisee Agreement. Accordingly, to use such in Zesta Products, Franchisee agrees to be subject to all terms and conditions of this Franchisee Agreement and all terms and conditions of the Agreement, including any Product Addendum, as the same may be amended from time to time by Zesta and Franchisor, which are incorporated into this Franchisee Agreement by reference. For clarity, unless otherwise indicated in this Franchisee Agreement or in the Agreement, all references to “Merchant” in the Agreement include Franchisee. Franchisee acknowledges and agrees that the limits set forth in the Limitation of Liability provision in the Agreement shall apply to Franchisor and all franchisees in the aggregate. All references to “Merchant Locations” shall be deemed references to Franchisee’s stores (“Franchisee Locations”). Any other terms not otherwise defined herein shall have the definitions set forth in the Agreement. Under no circumstances shall anything in this Franchisee Agreement be construed to authorize Franchisee to amend, modify, or adjust the Agreement between Zesta and Franchisor.

 

2. TERM OF FRANCHISEE AGREEMENT.This Franchisee Agreement shall commence on the Franchisee Effective Date and will expire upon the earlier of: (a) the date of the expiration or termination of the Agreement; or (b) the date this Franchisee Agreement is terminated pursuant to Section 3 of this Franchisee Agreement.

 

3. ELIGIBLE FRANCHISEE. If Franchisee ceases to possess the rights as a franchisee of Franchisor then this Franchisee Agreement will terminate as soon as Zesta is notified of such rights being lost. Either Party may terminate this Franchisee Agreement upon seven (7) days’ prior written notice to the other Party for any reason in its sole discretion. Termination of this Franchisee Agreement will not be considered a breach of this Franchisee Agreement or the Agreement. Nothing in this Franchisee Agreement or the Agreement is intended to prevent Zesta and Franchisee, if it is no longer an Eligible Franchisee, from entering into a new agreement following termination of this Franchisee Agreement.

 

4. MERCHANT OF RECORD. Franchisee is solely responsible and liable to Zesta to pay all Fees, payments, charges, and taxes associated with Zesta Products, in addition to complying with Franchisee’s other obligations under the Agreement and this Franchisee Agreement. Franchisee will be Zesta’s merchant of record for sales completed in a Zesta Product provided under this Franchisee Agreement. The Parties acknowledge and agree that any breach of this Franchisee Agreement or the Agreement by Franchisee will not be considered a breach by Franchisor of the Agreement.

 

5. PAYMENT PROCESSING.Payment and payment processing terms are set forth in the Product Addendum between Franchisor and Zesta. If Franchisee uses Connected Account Products, Attachment A attached hereto is required.

 

6. GOVERNING LAW & DISPUTE RESOLUTION. Franchisee and Zesta agree that any Dispute shall be resolved pursuant to Sections 13 and 14.1 of the foregoing Merchant Terms of Service.

 

7. CHANGE OF CONTROL. In the event there is a change or transfer in ownership of a Franchisee Location, Franchisee agrees that Franchisee will (1) notify Zesta thirty (30) days prior to such change or transfer of ownership and (2) provide Zesta with all relevant details related to the change or transfer of ownership, including the new owner’s contact information, the date of the change or transfer of ownership, and the relevant terms of the change or transfer of ownership (i.e., the existing amounts owed to Zesta related to such Franchisee Location). In order for Zesta to provide services to any new owner of a Franchisee Location, any amounts owed to Zesta must be fully paid. Zesta may elect, in its sole discretion, to perform a credit review on a new owner before providing services to such new owner.

 

8. MISCELLANEOUS. Notices under this Franchisee Agreement to each Party shall be sent to the respective address and contact set forth above. This Franchisee Agreement, including the incorporated Agreement, sets forth the entire agreement between Zesta and Franchisee with respect to the subject matter hereof. This Franchisee Agreement supersedes and replaces in its entirety any agreement entered into between Zesta and Franchisee for the Franchisee Locations prior to the Franchisee Effective Date.

 

Self-Delivery Product Addendum

 

Effective Date: January 21, 2025

 

This Zesta Self-Delivery Product Addendum (this “Self-Delivery Addendum”) is incorporated into the Agreement. All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Sign-Up Sheet, in this Self-Delivery Addendum, or in the Terms of Service between the parties.

 

1. PREAMBLE. Zesta owns and operates the Zesta Platform that connects Merchants and Customers for Customers to place Orders for delivery fulfillment by Merchant. Merchant desires to market the availability of Merchant Locations through the Zesta Platform (such use of the Zesta Platform, the “Program”). For clarity, the Program will include each product, service, promotion, or program elected by Merchant in this Self-Delivery Addendum. The Parties agree that Zesta is not a merchant, food preparation business, reseller, or delivery service; it is an online connection platform.

 

2. DEFINITIONS.

2.1. “Minimum Order Subtotal” means the minimum amount the Order must be (excluding taxes, fees, and tips) for the Small Order Fee not to be charged.

2.2. “Self-Delivery Fee” means, as set forth in the Rate Card, the delivery fee set by the Merchant that the Customer is charged for a Self-Delivery Order. The Self-Delivery Fee will not be charged to Customers that place Self-Delivery Orders through ZestaPass.

2.3. “Self-Delivery Order” means an Order placed through the Zesta Platform for delivery by Merchant’s or any Merchant Location’s delivery personnel.

2.4. “Small Order” means any Order that does not meet the Minimum Order Subtotal.

2.5. “Small Order Fee” means the fee Customer is charged for Small Orders.

      

3. RESPONSIBILITIES.

3.1. Zesta Responsibilities. Zesta will: (a) display Merchant, Merchant Locations, and the menu of Merchant Products at each Merchant Location through the Zesta Platform; (b) accept Orders for Merchant Products through the Zesta Platform from Customers; (c) forward each Order to the relevant Merchant Location; (d) if applicable, for Pickup Orders, notify the Customer to pick up the Order; and (e) pay the Merchant as set forth in Section 4 below, deduct the agreed applicable Commission Rate, marketing fees for each applicable Order, subscription fees (if any), activation fees (if any), and any other fees (and, in each case, as may be adjusted by Zesta as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature). Zesta reserves the right to take into account the impact of a Merchant’s conduct on both the customer experience and the Zesta brand when determining the Merchant’s prominence, participation in programs such as ZestaPass, and/or availability on the Zesta Platform. That conduct includes but is not limited to timeliness and accuracy of orders fulfilled, customer ratings and reviews, customer concerns regarding food quality or food safety, detrimental price inflation and/or customer complaints about price inflation, and any conduct that may violate our Partner Code of Conduct

3.2. Merchant Responsibilities. Merchant will: (a) provide Zesta with Merchant’s Menu, including the price of each item; (b) monitor Merchant’s menu and store information on the Zesta Platform, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify Zesta of any errors or changes in writing (email is sufficient); (ii) accept and confirm Self-Delivery Orders from Zesta in a prompt and timely manner; (c) prepare Merchant Products for each Self-Delivery Order for delivery by Merchant’s delivery personnel or pickup by the Customer, as applicable, at the designated time; (d) process Self-Delivery Orders in the order in which they are received; (e) notify Zesta of its days and hours of operation, including on holidays, and remain open for business on Zesta the same days and hours of operation as Merchant’s in-store business; notify Zesta of any changes to Merchant’s hours of operations on holidays; and notify Zesta if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation; (f) notify all Merchant Location staff members of the relationship with Zesta, and train staff members on receiving and fulfilling Self-Delivery Orders as soon as practicable upon execution of this Self-Delivery Addendum and on an ongoing basis; (ix) use its standard business practices to prepare Merchant Products that are the subject of each Self-Delivery Order and provide the same utensils, napkins, bags, and other materials that Merchant typically would provide in a standard take-out or delivery order; (g) on an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to Zesta any inaccuracies; and (h) if Zesta collects and passes tips from Customers to Merchant, Merchant will distribute such tips in accordance with applicable law, including but not limited to tip pooling laws. Zesta acknowledges that Merchant is solely responsible for the prices of its menu items, which may vary based on factors such as location, time of the year, or competition from other restaurants. Merchant agrees that it will not charge the Self-Delivery Fee for Self-Delivery Orders through ZestaPass.

3.3. Additional Responsibilities for the Pickup Program. During the Term, once Zesta or Merchant’s point of sale provider enables the ability for Merchant to set different prices for Merchant Products under the PickUp Program than the prices for such Merchant Products for delivery, Merchant shall ensure that pricing of Merchant Products under the PickUp Program is not greater than the pricing of the same Merchant Products for pickup in-store. In the event that Merchant increases the pricing of Merchant Products for pick-up above the in-store prices of the same Merchant Products, Zesta may enforce the terms of this Agreement, including any combination of and not limited to: applying a higher commission rate to affected Self-Delivery Orders, requiring Merchant to reimburse affected Customers for the difference between the Merchant Product listed for pick up and the lower in-store price, charging Merchant an additional fee, and/or adjusting the pricing of Merchant Products available for pick up, in addition to any other right or remedy available at law or in equity.

3.4. Additional Responsibilities for Merchant Products that are alcoholic. Merchant agrees that its delivery personnel will deliver an Order from Merchant’s licensed premises only to the delivery address provided by the applicable Zesta Customer. Upon delivering an Order, Merchant represents and warrants that its delivery personnel will only deliver the Order if the Zesta Customer (a) is at least the legal drinking age in the Applicable Jurisdiction; and (b) is not visibly intoxicated. “Applicable Jurisdictions” means any jurisdiction that permits sales of Merchant Products that are alcoholic for pick-up or delivery from time to time during the Term.

 

4. FEES. Zesta shall receive a Commission Rate in exchange for Zesta promoting Merchant through the Zesta Platform. The Commission Rate for Self-Delivery Orders placed under the applicable Zesta program is set forth on the Rate Card. Zesta will pay for Self-Delivery Orders fulfilled by Merchant each week following the week in which the Orders were fulfilled on a consistent day of this week. The exact day in this week is subject to change with no less than 10 days’ notice to Merchant by email or service notification. The amounts remitted will include (a) the pre-tax total of all Self-Delivery Orders for the prior week (Monday-Sunday), plus (b) Collected Taxes (as defined below), plus (c) the Self-Delivery Fee charged for all Orders for the prior week, plus (d) the agreed Small Order Fee charged for all Small Orders for the prior week, plus (e) any tips provided by the Customer, less (f) the aggregate Commission Rate, agreed fees for marketing and promotional deals (if any), error fees associated with Merchant’s incorrect preparation of Orders, and Order Equipment fees (if any) for such week. Merchant agrees Zesta may charge the Customer fees, including but not limited to delivery fees, service fees, surcharge fees, and Small Order Fees where applicable in Zesta’s sole discretion.

 

5. TAXES.Zesta shall charge and collect from Customers the applicable value added, goods and services, state and local sales, use, or similar taxes for the Merchant Products sold on the Zesta Platform and applicable customer fees charged by the Merchant to the Customer (“Collected Taxes”). In any jurisdiction where Zesta is required to remit Collected Taxes as a marketplace facilitator, Zesta will be responsible for remitting such taxes to the appropriate tax authorities. Any Collected Taxes that are not required to be remitted under the marketplace facilitator laws will remain the responsibility of the Merchant and Merchant will be responsible for remitting any such portion of Collected Taxes to the appropriate tax authorities. In all other jurisdictions, Zesta will send Collected Taxes to Merchant, and Merchant will be responsible for remitting the total amount of Collected Taxes to the appropriate tax authorities of those jurisdictions. For clarity, Zesta will be responsible for the remittance of any value added, goods and services, sales, use, or similar tax related to Customer fees for services supplied by Zesta, including but not limited to a Service Fee. Merchant will be responsible for the remittance of any goods and services, sales, use, or similar tax related to Customer fees for services supplied by Merchant, including but not limited to a Self-Delivery Fee and Small Order Fee.

 

6. PAYMENT PROCESSING. Merchant acknowledges that Zesta uses a payment processor to collect Order amounts from Customers and remit payment to Merchant. In order to receive payment, Merchant is required to have an account with this payment processor during the Term. Zesta reserves the right to change its payment processor at any time during the Term and Merchant will provide Zesta with any information required to set up a payment account with any such alternate payment processor.

 

7. ORDER EQUIPMENT. With respect to the Zesta Platform, if Merchant does not integrate its POS system with the Zesta Platform, Merchant will install the equipment agreed by the parties for Merchant to receive and process Orders, which may include: a tablet, fax machine, or other automated, electronic means of receiving Orders. If the parties agree that any Order Equipment is provided by Zesta, Merchant will pay Zesta an Order Equipment Fee if set forth in the Rate Card, in exchange for the right to use the Order Equipment to access the Zesta Platform in order to receive, process, and accept Marketplace and PickUp Orders. Any Order Equipment provided by Zesta will remain Zesta’s sole property and may be used solely in connection with the provision or receipt of services under the Agreement and for purposes related to fulfilling Merchant’s responsibilities under this Marketplace Addendum. Merchant will inspect all hardware, and shall notify Zesta in writing (email sufficient) if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. Merchant will be responsible for any damage to or loss of any Order Equipment provided by Zesta (excluding ordinary wear and tear), which shall be promptly reimbursed by Merchant (at the replacement cost thereof). Zesta may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments. Merchant agrees to pay all agreed subscription fees and deposits charged by Zesta for Order Equipment, and agrees Zesta may deduct such fees and deposits from amounts payable by Zesta to Merchant.

 

8. REFUNDS AND SUPPORT. In the event a Customer submits a complaint about his or her Order via Zesta’s support channels, Zesta may, in its sole reasonable discretion, issue a re-order, credit, partial refund, or full refund to such Customer. Merchant shall prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that re-order, credit or refund, as applicable, if the complaint was caused by Merchant or Merchant Products, including missing and incorrect Self-Delivery Orders or the delivery of Self-Delivery Orders by Merchant. For clarity, Zesta shall not be responsible for any refund, credit or re-order that is caused by the delivery of Self-Delivery Orders.

 

9. TERM AND TERMINATION.This Self-Delivery Addendum may be terminated pursuant to the terms of the Terms of Service.

 

Marketplace Product Addendum

 

Effective Date: January 14, 2025

 

This Zesta Marketplace Product Addendum (this “Marketplace Addendum”) is incorporated into the Agreement. All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Sign-Up Sheet, in this Marketplace Addendum, or in the Terms of Service between the parties.

 

1. PREAMBLE.Zesta owns and operates the Zesta Platform that connects Merchants, Drivers and Customers for the pickup and/or delivery of Merchant Products. Merchant desires to market the availability of Merchant Locations through the Zesta Platform (such use of the Zesta Platform, the “Program”). For clarity, the Program will include each product, service, promotion, or program elected by Merchant under this Marketplace Addendum. The Parties agree that Zesta is not a merchant, food preparation business, reseller, or delivery service; it is an online marketing and connection platform.

 

2. DEFINITIONS.

2.1. “Zesta Platform” for purposes of this Marketplace Addendum means, individually or collectively, (a) any online marketplace offered by Zesta and/or its Affiliates through which Customers may place orders from merchants for pickup and/or delivery, and (b) the Merchant Portal, in each case, that will allow information to be exchanged between Merchant and Zesta. References to the “Zesta Platform” include the Zesta Platform Documentation. The Zesta Platform is a “Zesta Product” as defined in the Terms of Service. From time to time, Zesta may list Merchant on one or more of its marketplaces subject to the Commission Rate(s) set forth in the Rate Card upon advance written notice to Merchant.

2.2. “Marketplace” means Zesta’s proprietary online communication platform where Customers can view and search for the menus of Merchants and/or place an order for Merchant Products via the Zesta website or mobile application for delivery by a Driver to the Customer or for pickup by Customer.

2.3. “Merchant Location(s)” has the meaning ascribed to it in the Terms of Service. For purposes of this Marketplace Addendum, “Merchant Locations” may also include: (i) Merchant Locations owned and operated by Merchant or its affiliates, and/or (ii) Merchant Locations owned and operated by franchisees of Merchant or its affiliates which have signed a Franchisee Agreement. “Merchant Locations” also includes both Brick and Mortar Merchant Locations and Virtual Kitchen Merchant Locations. “Brick and Mortar Merchant Location” means a physical location that Merchant operates as a walk-in restaurant. “Virtual Kitchen Merchant Locations” means a Merchant owned or licensed virtual brand operated out of one or more Merchant or Eligible Franchisee operated and approved by Zesta for participation in the Program.

2.4. “Pickup Program” means the Zesta program through which a Customer places a Pickup Order through the Zesta Platform from a Merchant Location.

 

3. RESPONSIBILITIES AND PROCEDURES.

3.1. Zesta Responsibilities. Zesta will: (i) display Merchant, Merchant Locations, and the menu of Merchant Products at each Merchant Location through the Zesta Platform; (ii) accept Orders for Merchant Products through the Zesta Platform from Customers; (iii) forward each Order to the relevant Merchant Location; (iv) for Delivery Orders, make the Order opportunity available to Drivers, so that the Driver accepting the opportunity can pick up the applicable Merchant Product(s) from the applicable Merchant Location to deliver to the Customer, or, if applicable, for Pickup Orders, notify the Customer to pick up the Order; and (v) pay the Merchant as set forth in Section 4 below, deduct the agreed applicable Commission Rate, marketing fees for each applicable Order, subscription fees (if any), activation fees (if any), and any other fees (and, in each case, as may be adjusted by Zesta as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature). Zesta reserves the right to take into account the impact of a Merchant’s conduct on both the customer experience and the Zesta brand when determining the Merchant’s prominence, participation in programs such as DashPass, and/or availability on the Zesta Platform. That conduct includes but is not limited to timeliness and accuracy of orders fulfilled, customer ratings and reviews, customer concerns regarding food quality or food safety, detrimental price inflation and/or customer complaints about price inflation, and any conduct that may violate our Partner Code of Conduct.

3.2. Merchant Responsibilities. Merchant will: (i) provide Zesta with Merchant’s menu, including the price of each item; (ii) monitor Merchant’s menu and store information on the Zesta Platform, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify Zesta of any errors or changes in writing (email is sufficient); (iii) accept and confirm Orders from Zesta in a prompt and timely manner; (iv) prepare Merchant Products for each Order for pickup by a Driver, or the Customer, as applicable, at the designated time; (v) process Orders in the order in which they are received; (vi) notify Zesta of its days and hours of operation, including on holidays, and remain open for business on Zesta the same days and hours of operation as Merchant’s in-store business; notify Zesta of any changes to Merchant’s hours of operations on holidays; and notify Zesta if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation; (vii) notify all Merchant Location staff members of the relationship with Zesta, and train staff members on receiving and fulfilling Zesta Orders as soon as practicable upon execution of this Marketplace Addendum and on an ongoing basis; (viii) use its standard business practices to prepare Merchant Products that are the subject of each Order and provide the same utensils, napkins, bags, and other materials that Merchant typically would provide in a standard take-out or delivery order; (ix) on an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to Zesta any inaccuracies; and (x) if Zesta collects and passes tips from Customers to Merchant, Merchant will distribute such tips in accordance with applicable law, including but not limited to tip pooling laws. Zesta acknowledges that Merchant is solely responsible for the prices of its menu items, which may vary based on factors such as location, time of the year, or competition from other restaurants.

3.3. Additional Responsibilities for the Pickup Program. During the Term, once Zesta or Merchant’s point of sale provider enables the ability for Merchant to set different prices for Merchant Products under the PickUp Program than the prices for such Merchant Products for delivery, Merchant shall ensure that pricing of Merchant Products under the PickUp Program is not greater than the pricing of the same Merchant Products for pickup in-store. In the event that Merchant increases the pricing of Merchant Products for pick-up above the in-store prices of the same Merchant Products, Zesta may enforce the terms of this Agreement, including any combination of and not limited to: applying a higher commission rate to affected Orders, requiring Merchant to reimburse affected Customers for the difference between the Merchant Product listed for PickUp and the lower in-store price, charging Merchant an additional fee, and/or adjusting the pricing of Merchant Products available under the PickUp Program, in addition to any other right or remedy available at law or in equity.

 

4. FEES.Zesta shall receive a Commission Rate in exchange for Zesta promoting Merchant through the Zesta Platform. The Commission Rate for Orders placed under the applicable Zesta program is set forth on the Rate Card. Zesta will remit the cost of Orders fulfilled by Merchant each week following the week in which the Orders were fulfilled on a consistent day of this week. The exact day in this week is subject to change with no less than 10 days’ notice to Merchant by email or service notification. The amounts remitted will include (1) the pre-tax total of all Orders for the prior week (Monday-Sunday) plus (2) Collected Taxes (as defined below) unless the parties agree to an alternative arrangement in writing, less (3) the aggregate Commission Rate, agreed fees for marketing and promotional deals (if any), any error fees associated with Merchant’s incorrect preparation of Orders, and Order Equipment fees (if any) for such week. Merchant may have the opportunity to sign up to receive daily payments through the Merchant Portal. Merchant agrees Zesta may charge the Customer fees, including but not limited to delivery fees, service fees, surcharge fees, and Small Order Fees where applicable in Zesta’s sole discretion.

 

5. TAXES.Zesta shall charge and collect from Customers the applicable value added, goods and services, state and local sales, use, or similar taxes for the Merchant Products sold on the Zesta Platform (“Collected Taxes”). In any jurisdiction where Zesta is required to remit Collected Taxes as a marketplace facilitator, Zesta will be responsible for remitting such taxes to the appropriate tax authorities. Any Collected Taxes that are not required to be remitted under the marketplace facilitator laws will remain the responsibility of the Merchant and Merchant will be responsible for remitting any such portion of Collected Taxes to the appropriate tax authorities. In all other jurisdictions, Zesta will send Collected Taxes to Merchant, and Merchant will be responsible for remitting the total amount of Collected Taxes to the appropriate tax authorities of those jurisdictions. For clarity, Zesta will be responsible for the collection and remittance of any value added, goods and services, sales, use, or similar tax related to Customer fees, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, and Small Order Fee, that Zesta charges to the Customer.

 

6. PAYMENT PROCESSING.Merchant acknowledges that Zesta uses a payment processor to collect Order amounts from Customers and remit payment to Merchant. In order to receive payment, Merchant is required to have an account with this payment processor during the Term. Zesta reserves the right to change its payment processor at any time during the Term and Merchant will provide Zesta with any information required to set up a payment account with any such alternate payment processor.

 

7. ORDER EQUIPMENT. With respect to the Zesta Platform, if Merchant does not integrate its POS system with the Zesta Platform, Merchant will install the equipment agreed by the parties for Merchant to receive and process Orders, which may include: a tablet, fax machine, or other automated, electronic means of receiving Orders. If the parties agree that any Order Equipment is provided by Zesta, Merchant will pay Zesta an Order Equipment Fee if set forth in the Rate Card, in exchange for the right to use the Order Equipment to access the Zesta Platform in order to receive, process, and accept Marketplace and Pick Up Orders. Any Order Equipment provided by Zesta will remain Zesta’s sole property and may be used solely in connection with the provision or receipt of services under the Agreement and for purposes related to fulfilling Merchant’s responsibilities under this Marketplace Addendum. Merchant will inspect all hardware, and shall notify Zesta in writing (email sufficient) if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. Merchant will be responsible for any damage to or loss of any Order Equipment provided by Zesta (excluding ordinary wear and tear), which shall be promptly reimbursed by Merchant (at the replacement cost thereof). Zesta may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments. Merchant agrees to pay all agreed subscription fees and deposits charged by Zesta for Order Equipment, and agrees Zesta may deduct such fees and deposits from amounts payable by Zesta to Merchant.

 

8. REFUNDS AND SUPPORT. In the event a Customer submits a complaint about his or her Order via Zesta’s support channels, Zesta may, in its sole reasonable discretion, issue a re-order, credit, partial refund, or full refund to such Customer. Merchant shall prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that re-order, credit or refund, as applicable, if the complaint was caused by Merchant or Merchant Products, including missing and incorrect Orders. Zesta shall be responsible for any refund, credit or re-order that is caused by the delivery of Orders or Drivers.

 

9. TERM AND TERMINATION. This Marketplace Addendum may be terminated pursuant to the terms of the Terms of Service.