AMATNOW MERCHANT TERMS AND CONDITIONS

BY (1) CLICKING A BOX INDICATING MERCHANT’S ACCEPTANCE OF THESE TERMS, OR (2) EXECUTING AN ORDER FORM OR RELATED AGREEMENT THAT REFERENCES THESE TERMS, MERCHANT HEREBY ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “MERCHANT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES DESCRIBED HEREIN.

SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT SHALL GOVERN ANY CLAIMS THAT THE PARTIES MAY HAVE AGAINST EACH OTHER, INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.

1. GENERAL.

Upon consent or acceptance as provided above, these Merchant Terms and Conditions ("Terms") are an agreement between the company either identified within the Amat Eats sign up process or that executes an Order Form or related agreement (in either case, “Merchant” or “You”) and AMATNOW Food Logistics Limited Company (“Amat”). Upon acceptance of these Terms, Merchant may request access to Sales Channels (as described in more detail herein) and Services. Such request(s) may require acceptance of additional addenda, terms or conditions, and/or terms of use by Merchant. Amat maintains sole discretion for initial and/or ongoing provision of any such Sales Channel(s) or Service(s). These Terms may be subject to and/or incorporate an Order Form between Merchant and Amat (the “Order Form”), and/or any applicable Sales Channel or terms of use (these Terms, together with any such Order Form, addenda, or terms of use, collectively, the “Agreement”). Merchant’s access to and use of the Services and Tools (as defined herein) is subject to the Agreement and may be modified or updated by Amat from time to time, effective upon posting an updated version of these Terms and/or an applicable Product or Sales Channel Addenda. Merchant is responsible for updating contact information and regularly reviewing the Agreement and any applicable Product or Sales Channel Addenda for updates and information from Amat. Continued use of the Services, Tools, and/or App(s) after any such modifications or updates shall constitute Merchant’s consent to such changes. Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings ascribed to such terms in the applicable Order Form, Product or Sales Channel Addenda.

2. SERVICES.

2.1 Items and Services.

Amat makes available certain proprietary technology services that facilitate the marketing, sale, and fulfillment of orders for items (“Items”) from Merchant to Customers (as defined below), including on-demand lead generation, order processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (the “Services”).

2.2 Additional Tools.

In connection with the Services, Amat may also make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Services (collectively, the “Tools”), which may include Amat’s proprietary technology platform, through which Merchant may, among other things, receive, accept and fulfill requests for Items from Customers and receive insights and analytics regarding Merchant’s performance and history using the Services. The Tools may include functionality for Merchant to obtain Sponsored Listing placements. Such Sponsored Listings are governed by the terms located here.

2.3 The Application(s).

Amat and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase Items from Merchant and request delivery services for said Items from Delivery People (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers (the “App(s)”).

2.4 Sales Channels.

Merchant may request access to sell and deliver Items via various services provided by Amat: Full Service and Pick-Up. By electing to use a Sales Channel, Merchant agrees to accept any relevant Sales Channel Addenda as follows:

1. i) FULL SERVICE (ALSO REFERRED TO AS MARKETPLACE): Merchant may sell Items through the “Full Service Sales Channel,” whereby Merchant’s Items are presented in the App(s) to Customers who access and request on-demand delivery services provided by Delivery People as defined herein.


2. ii) PICK-UP: Merchant may sell Items through the “Pick-Up Sales Channel,” whereby Merchant’s Items are presented on the App(s) to Customers for pick-up at Merchant’s Location (i.e., without the use of a Delivery Person). For the avoidance of doubt, the provisions relating to Delivery People in the Terms will not apply to the sale of Items through this Pick-Up Sales Channel.

3. AMAT OBLIGATIONS.

3.1 Access to Services.

Subject to the terms and conditions of this Agreement, Amat may make available the applicable Services to Merchant, solely for use by Merchant at locations that are owned and operated by Merchant (each, a “Location”). Merchant shall provide Amat its current and accurate Location information throughout the Term of this Agreement. In connection with the provision of Services to Merchant, Amat, on behalf of Merchant, may respond to complaints by end users of the App(s) (“Customers”) about Items sold by Merchant via the App(s). In addition, Amat may make available certain Tools to Merchant, and Merchant may access and use those Tools solely in connection with Merchant’s use of the Services. For the avoidance of doubt, as between Merchant and Amat, Amat will retain sole control over the App(s) (and all elements of the Customer experience and interface relating to the App(s)), including: (i) the personalization of the App(s) for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) the order fees charged to Customers for the delivery services provided by Delivery People; and (v) adding, removing or otherwise modifying any feature or functionality made available through the App(s) to optimize reliability or efficiency on the App(s).

3.2 Technology and Delivery Services.

Amat and its affiliates provide delivery services. Amat provides technology services that both (i) enable Merchant to connect with Customers who may purchase Items from Merchant and (ii) enable Delivery People to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services. Delivery People perform their delivery services for (and are paid by) the Customers, and not Merchant.

4. MERCHANT OBLIGATIONS.

4.1 Availability of Items.

Merchant will make Items available for purchase through the App(s) (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Merchant will prepare, handle, store, label and package all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”) and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of Alcohol Items (“Alcohol Safety Standards”). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If Merchant fails to prepare or supply Items in accordance with Food or Alcohol Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), Amat may, in its sole discretion, remove such Item from the App(s).

4.2 Item Responsibility.

Merchant shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Merchant’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Merchant’s internal standards. Amat may, in its sole discretion, deduct reimbursement costs from the payment Amat remits to Merchant in accordance with this Section 5.

4.3 Third Party Services.

If Merchant uses a third-party service to: 1) access the Services and Tools; or 2) transmit information to Amat (a “Third Party Access Service”), Merchant agrees that Merchant’s obligations described herein shall apply to Merchants’s use of the Services and Tools via any Third Party Access Service unless otherwise agreed to between Amat and Merchant. Merchant agrees that failure by a Third Party Access Service to transmit accurate information such as Retail Price, Item descriptions, or Additional Information (as defined herein) to Amat shall not waive, suspend, or otherwise affect Merchant’s obligations described herein. Merchant remains solely responsible for the accuracy of information provided to Amat through any Third Party Access Service. Additionally, ongoing access to the Services and Tools via any Third Party Access Services is subject to Amat’s agreement with such Third Party.

4.4 Use Restrictions.

In connection with the access to and use of the Services and Tools, Merchant will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Services; (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Tools or Services (except as otherwise authorized by Amat); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations. Merchant will not (and will not allow any third party to) use the Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the App(s) (collectively, “Amat Data”) to directly or indirectly compete with Amat or the Services, including, without limitation, Amat Data that Merchant receives from Amat by way of a Third Party Access Service.

4.5 Item Restrictions.

The following restricted Items may not be featured or sold via the App(s):

Amat may restrict the sale of Items via the App(s) based on physical attributes of such Items (e.g., weight (per Item or in aggregate), height, shape, or appropriateness for delivery).

4.6 Messaging and Contact Information.

Merchant agrees to receive calls, SMS messages and other communications, including those made available by autodialer or using an artificial or pre-recorded voice, sent by or on behalf of Amat .

5. FEES AND TAXES.

5.1 Calculation.

Amat will deduct applicable fees (“Fees”) from Item Revenue remitted to Merchant as further described herein. Amat will remit to Merchant the total Retail Price collected for all Items Merchant sells via the App(s) (including any Sales Taxes collected on its behalf) less: (a) the applicable retained Fees; and (b) any refunds given to Customers for Substandard Items (such final remitted amount being “Item Revenue”). All Item Revenue that is duly owed to Merchant will be remitted within fourteen (14) business days of the sale of the Item. If required by applicable law or regulation, Amat may adjust the Fee. Such adjustments may require adjustments to remittances of Item Revenue owed to Merchant. Such adjustment may apply only to certain Items such as Alcohol Items. Amat will deduct the Fee from the payment Amat collects on Merchant’s behalf. Amat reserves the right to suspend Merchant’s ability to make Items available for purchase by Customers through the App(s) if Merchant’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if a Delivery Person is unable to complete the delivery of such Item. Except as expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement. All Fees under this Agreement will be paid in Naira(₦)

5.2 Services Fee.

The Retail Price (as defined below) of all Items that Merchant sells via the App(s) (excluding any Sales Tax collected on Merchant’s behalf) multiplied by the applicable fee percentage for the Sales Channel used to sell each such Item (“Services Fee”). Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be calculated as follows:

1. i) DELIVERY: Amat will charge Merchant a fee percentage of 4.9% at the end of a day’s sale via the App(s) through Delivery Channel
2. ii) PICK-UP: Amat will charge Merchant a fee percentage of 4.9% at the end of a day’s sale via the App(s) through the Pick-Up Sales Channel;

5.3 Order Processing Fee.

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

5.4 Taxes.

The Amat Now Services connect you with Customers who wish to purchase your Items. You are the “merchant”, “retailer”, or “seller” of all Items to be made available for sale via theApp(s). As such, you are responsible for determining and setting the retail price for each Item (the “Retail Price”). You are also responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, food & beverage, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Taxes. Merchant hereby authorizes Amat to collect applicable Sales Taxes on Merchant's behalf based on information (including, without limitation, Item descriptions and Additional Information) provided by Merchant to Amat in a manner as otherwise agreed to by the Parties.

5.5 Pricing.

Merchant agrees that you will not make an Item available under this Agreement at a price higher than the amount Merchant is charging for similar Items through any comparable platform for food delivery services.

5.7 Appointment of Limited Payment Collection Agent.

Merchant is solely responsible for providing Amat with, and maintaining, accurate bank account information. Merchant hereby appoints Amat, as the case may be, as Merchant’s limited payment collection agent solely for the purpose of: (i) accepting payment of the Retail Price of Items sold by Merchant via the App(s) plus any applicable Sales Tax collected on Merchant’s behalf, via the payment processing functionality and (ii) remitting the Retail Price plus Sales Tax collected on Merchant’s behalf less the retained Fee and, if applicable, any refunds given to Customers on behalf of Merchant (“Item Revenue”). If reasonable, Amat may adjust the remittance of Item Revenue collected on Merchant’s behalf. Amat reserve the right to collect any amounts in connection with such adjustments via a deduction from the remittance of Item Revenue collected on Merchant’s behalf, by debiting the payment method or Merchant’s bank account on record, or otherwise seeking reimbursement from Merchant by any lawful collection methods available. Merchant authorizes Amat to use any or all of the above methods to seek such adjustments and reimbursements. In more serious situations, such as fraud (including any charges for Items that Customers did not place) or Customer complaints, Amat reserve the right to cancel a payment entirely. By agreeing to these terms, Merchant gives Amat express consent to adjust payments collected on Merchant’s behalf as set forth in this Section. Further, Merchant agrees that payment collected on its behalf by Amat will be considered the same as payment made directly to Merchant. Merchant agrees that if Merchant does not receive payment from Amat, Merchant’s only recourse will be against Amat.

5.8 Payment Compliance.

Amat may, from time to time, request information from Merchant to confirm Merchant’s identity as may be necessary under any applicable compliance obligations before remitting any amounts to Merchant. Amat may reduce or withhold amounts owed to Merchant if: 1) Merchant fails to provide tax or employer identification information to Amat and/or; 2) there is a legal or regulatory risk or potential breach of law or regulation associated with such remittance to Merchant. Merchant agrees that Amat may describe or otherwise reflect the terms of this Section, and any related portions of the Agreement, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent.

5.9 Additional Information.

Amat may, from time to time, require Merchant to provide certain additional information (“Additional Information”) pertaining to, Merchant location, Merchant establishment type (e.g., restaurant vs. grocery), particular Items or particular sales of Items for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable laws or regulations. Merchant is solely responsible for providing requested Additional Information to Amat in a timely manner. If Merchant fails to timely provide Additional Information in response to notification and request by Amat, Amat expressly reserves the right to temporarily remove affected Items from Merchant’s menu on the App(s) until such Additional Information is received.

6. REPORTING.

Amat may provide Merchant aggregate information regarding the number of Items picked up by Delivery People and sold by Merchant to Customers pursuant to this Agreement. Amat will also provide reasonable information regarding any refunds given to Customers, including the date of the transaction, the Item ordered, the reason for the refund and any other information Amat is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that Amat may share Merchant’s transactional data regarding ordered meals, including sales data, with Merchant’s parent company or franchisor.

7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES.

7.1 Marks.

Subject to this Agreement, each party hereby grants to the other party a limited, royalty-free, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, in connection with the activities related to this Agreement or any other activities relating to the Services. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Merchant’s Marks by Amat in connection with making Items available through the App(s) in the ordinary course of business will not require any such prior, express, written consent. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Without limiting anything in the Agreement, Merchant represents and warrants that Merchant’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Merchant agrees that Amat may remove Merchant’s Marks from the App(s) if Amat receive notice or otherwise reasonably believe that such Merchant’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

7.2 Marketing.

Amat may showcase the availability of Merchant’s Items via the App(s) through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). Amat (or a party designated by Amat and acting on Amat’s behalf) may take video and still images for marketing and other efforts related to the App(s) (“Photographs”). Merchant agrees that Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of Amat. Additionally, Merchant may provide videos, still image or other materials to Amat (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the App(s) or the marketing and promotion and the availability of your Items via the App(s). Merchant hereby grants Amat a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Services. Amat agrees that the Merchant Marketing Materials shall remain Merchant’s sole and exclusive property. Without limiting anything in the Agreement, Merchant represents and warrants that the Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Merchant Marketing Materials contain any third party materials, Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for Amat to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that Amat may remove Merchant Marketing Materials from the App(s) if Amat receive notice or otherwise reasonably believe that such Merchant Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

7.4 Promotions.

“Promotion(s)” means offers that are available through the App(s) to stimulate Customer demand. When a Promotion is successfully applied to an order, Merchant authorizes Amat to charge Customers for the post-Promotional value of an Item (not including Sales Taxes and applicable Fees). Subject to App(s) functionality, Amat may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Promotion.

1. i) Merchant Promotion(s). Subject to any other guidelines or eligibility criteria for Promotions that Amat may make available from time to time, Merchant may create Promotions that are designed and fulfilled by Merchant (“Merchant Promotion(s)”). Unless otherwise specified by Amat, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by Amat) through the Promotion Schedule (as defined below).
   
   Merchant may create a Merchant Promotion by completing and providing Amat with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to Amat by Merchant, Merchant will have a specified time period to confirm such Promotion Schedule prior to the Promotion being offered and such confirmation will constitute an agreement with Amat under the terms of this Agreement.


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


3. iii). Parties’ Obligations. The parties’ obligations for each Promotion will include the following, but may be expanded upon in an applicable Promotion Schedule:
• 1) Merchant’s Obligations. Merchant will:
  (A)honour and fulfill the terms of Promotions offered by Merchant (solely or jointly with Amat) to Customers who have successfully completed their order through the App(s);
  (B) be responsible for the fees associated with the Promotion up to the amount Merchant has agreed to fund for such Promotion; and
  (C) upon reasonable request, supply Amat with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Amat may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, Merchant acknowledges and agrees that Merchant will not be able to terminate the Agreement while a Promotion is live.


• 2) Amat’s Obligations. Amat will
  (A) honor and fulfill the terms of Promotions offered by Amat (solely or jointly with Merchant) to Customers who have successfully completed their order through the App(s);
  (B) be responsible for the fees associated with the Promotion up to the amount Amat has agreed to fund such Promotion;
  (C) upon reasonable request, supply Merchant with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Merchant shall use to market such Promotion, provided that a Promotion Schedule authorizes Merchant to market such Promotion out of the App(s); and (D) use good faith efforts to provide Merchant with reasonable information regarding Promotions, which may include, without limitation, the amount Merchant spent on Promotions and the number of Items sold in connection with Promotions.
4. iv) Fee on Promotion Orders. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Merchant Promotion or Co-Funded Promotion to an order through the App(s), Fee shall be calculated based on the total Retail Value of the order minus the Merchant-funded portion of such Promotion applied to that order.


5. v) Out of App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Merchant may not market or otherwise advertise a Promotion outside the App(s). If a Promotion Schedule authorizes Merchant to market a Promotion out of the App(s), all such marketing materials will be subject to Amat’s prior review and written approval, which shall not be unreasonably withheld.

7.5 Publicity.

Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.

8. PROPRIETARY INFORMATION; FEEDBACK.

8.1 Definition.

“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Merchant’s Items to Customers through the App(s) and the terms and conditions of this Agreement. Proprietary Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives.

foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose.

expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.

8.2 Passwords.

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

8.3 Feedback.

Merchant may, but is not obligated to, provide or otherwise make available to Amat certain feedback, suggestions, comments, ideas, or other concepts relating to Amat’s and its affiliate’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to Amat, Merchant hereby grants to Amat a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.

9. RATINGS.

Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the App(s) to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant and the relevant Item(s) on the App(s) (“Customer Feedback”). Amat reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of Amat without attribution to or approval of Merchant. Merchant acknowledges that Amat are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that Amat reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal data, violate any privacy or other applicable laws, or Amat’s content policies.

10. REPRESENTATIONS AND WARRANTIES;

10.1 Representations and Warranties.

Each party hereby represents and warrants that:

1. (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder;
2. (ii) it is duly organized, validly existing and in good standing under the laws of the Republic of Turkey;
3. (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement;
4. (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Merchant, all applicable Food Safety Standards); and
5. (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party.

11. INDEMNITY.

11.1 Indemnified Claims.

Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless the other, its affiliates and respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a material breach of any of the Indemnifying Party’s representations or warranties in this Agreement; or (iii) any claims that the Marks provided by the Indemnifying Party infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, the merchant will indemnify, defend and hold harmless Amat from and against any and all Losses with respect to any third party claim arising out of or related to:

1. (A) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation;
2. (B) (B) Merchant’s failure to provide accurate and complete descriptions or Additional Information for Items, including information transmitted through a Device, point-of-sale, or Third Party Access Service, sufficient for accurate Sales Tax calculations;
3. (C) Merchant’s failure to comply with a notice with respect to Unsupported Items; or

if applicable, except in the case of each of (A)-(C) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of Amat or its employees, agents or Delivery People.

11.2 Procedure.

Each Indemnified Party will provide prompt written notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.

12. LIMITS OF LIABILITY.

Except for liability arising from a party’s gross negligence, willful misconduct, indemnification obligations or a breach of confidentiality obligations: In no event will either party be liable for any claim for any indirect, willful, punitive, incidental, exemplary, special or consequential damages, for loss of business profits, or damages for loss of business of merchant or any third party arising out of this agreement, or loss or inaccuracy of data of any kind, whether based on contract, tort or any other legal theory, even if such party has been advised of the possibility of such damages. The foregoing limitation of liability and exclusion of certain damages will apply regardless of the success or effectiveness of other remedies.

13. INSURANCE.

During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance.

15. TERM AND TERMINATION.

This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in the event of a material breach by the other party with .... (..) days’ prior written notice thereof by the non-breaching party.

party may terminate this Agreement, in whole or in part, at any time without cause by giving sixty (60) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Promotion period, such termination will not take effect until such Promotion period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, Amat may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Merchant that, in Amat’s reasonable judgment, causes it to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations and Sections 1, 7.1, 8-13, this last sentence of 15, 16-17 and 19 will survive the expiration or termination of this Agreement.

16. NOTICE.

Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by express mail; or (c) by electronic mail to the designated recipient.

to Amat should be provided to:

Notices to Amat should be provided to: Mehterçeşme, Fatos APT, 1953. Sk. NO 33B, 34510 Esenyurt/İstanbul, Turkey and [email protected]

Notices to Merchant should be provided to the address provided by Merchant.

17. DISPUTE RESOLUTION AND ARBITRATION.

17.1 Arbitration.

Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and finally resolved by arbitration administered by Istanbul Arbitration Centre (ISTAC) in accordance with the Istanbul Arbitration Centre Rules (ISTAC rules) , which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator (“Arbitrator”), and not any court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, scope, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, prior to submitting a demand for arbitration, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree:

1. i) The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.
2. ii) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the ISTAC Rules.
3. iii) The seat, or legal place, of arbitration will be Instabul, Turkey.
4. iv) The language to be used in the arbitral proceedings will be English.
5. v) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by ISTAC in accordance with the ISTAC Rules.
6. vi) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.
7. vii) The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
8. ix) Arbitrator fees and expenses plus any expenses of ISTAC shall be split equally between the parties. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.

19. ADDITIONAL TERMS.

The territory of this Agreement is the Republic of Turkey (“Territory”), and all payments issued under this Agreement must be in Turkish lira. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates; provided that in the event of any such transfer by Merchant, Merchant explicitly consents that any such transferee will have access to and control of all Merchant accounts related to such transfer, including its accounts with Amat, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Merchant’s Location(s), the parties will need to execute a Change of Ownership form and Merchant acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.

BY (1) CLICKING A BOX INDICATING MERCHANT’S ACCEPTANCE OF THESE TERMS, OR (2) EXECUTING AN ORDER FORM OR RELATED AGREEMENT THAT REFERENCES THESE TERMS, MERCHANT HEREBY ACCEPTS AND AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “MERCHANT” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES DESCRIBED HEREIN.

SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT SHALL GOVERN ANY CLAIMS THAT THE PARTIES MAY HAVE AGAINST EACH OTHER, INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.

1. GENERAL.

Upon consent or acceptance as provided above, these Merchant Terms and Conditions ("Terms") are an agreement between the company either identified within the Amat Eats sign up process or that executes an Order Form or related agreement (in either case, “Merchant” or “You”) and AMATNOW Food Logistics Limited Company (“Amat”). Upon acceptance of these Terms, Merchant may request access to Sales Channels (as described in more detail herein) and Services. Such request(s) may require acceptance of additional addenda, terms or conditions, and/or terms of use by Merchant. Amat maintains sole discretion for initial and/or ongoing provision of any such Sales Channel(s) or Service(s). These Terms may be subject to and/or incorporate an Order Form between Merchant and Amat (the “Order Form”), and/or any applicable Sales Channel or terms of use (these Terms, together with any such Order Form, addenda, or terms of use, collectively, the “Agreement”). Merchant’s access to and use of the Services and Tools (as defined herein) is subject to the Agreement and may be modified or updated by Amat from time to time, effective upon posting an updated version of these Terms and/or an applicable Product or Sales Channel Addenda. Merchant is responsible for updating contact information and regularly reviewing the Agreement and any applicable Product or Sales Channel Addenda for updates and information from Amat. Continued use of the Services, Tools, and/or App(s) after any such modifications or updates shall constitute Merchant’s consent to such changes. Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings ascribed to such terms in the applicable Order Form, Product or Sales Channel Addenda.

2. SERVICES.

2.1 Items and Services.

Amat makes available certain proprietary technology services that facilitate the marketing, sale, and fulfillment of orders for items (“Items”) from Merchant to Customers (as defined below), including on-demand lead generation, order processing, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (the “Services”).

2.2 Additional Tools.

In connection with the Services, Amat may also make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Services (collectively, the “Tools”), which may include Amat’s proprietary technology platform, through which Merchant may, among other things, receive, accept and fulfill requests for Items from Customers and receive insights and analytics regarding Merchant’s performance and history using the Services. The Tools may include functionality for Merchant to obtain Sponsored Listing placements. Such Sponsored Listings are governed by the terms located here.

2.3 The Application(s).

Amat and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase Items from Merchant and request delivery services for said Items from Delivery People (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers (the “App(s)”).

2.4 Sales Channels.

Merchant may request access to sell and deliver Items via various services provided by Amat: Full Service and Pick-Up. By electing to use a Sales Channel, Merchant agrees to accept any relevant Sales Channel Addenda as follows:

1. i) FULL SERVICE (ALSO REFERRED TO AS MARKETPLACE): Merchant may sell Items through the “Full Service Sales Channel,” whereby Merchant’s Items are presented in the App(s) to Customers who access and request on-demand delivery services provided by Delivery People as defined herein.


2. ii) PICK-UP: Merchant may sell Items through the “Pick-Up Sales Channel,” whereby Merchant’s Items are presented on the App(s) to Customers for pick-up at Merchant’s Location (i.e., without the use of a Delivery Person). For the avoidance of doubt, the provisions relating to Delivery People in the Terms will not apply to the sale of Items through this Pick-Up Sales Channel.

3. AMAT OBLIGATIONS.

3.1 Access to Services.

Subject to the terms and conditions of this Agreement, Amat may make available the applicable Services to Merchant, solely for use by Merchant at locations that are owned and operated by Merchant (each, a “Location”). Merchant shall provide Amat its current and accurate Location information throughout the Term of this Agreement. In connection with the provision of Services to Merchant, Amat, on behalf of Merchant, may respond to complaints by end users of the App(s) (“Customers”) about Items sold by Merchant via the App(s). In addition, Amat may make available certain Tools to Merchant, and Merchant may access and use those Tools solely in connection with Merchant’s use of the Services. For the avoidance of doubt, as between Merchant and Amat, Amat will retain sole control over the App(s) (and all elements of the Customer experience and interface relating to the App(s)), including: (i) the personalization of the App(s) for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; (iv) the order fees charged to Customers for the delivery services provided by Delivery People; and (v) adding, removing or otherwise modifying any feature or functionality made available through the App(s) to optimize reliability or efficiency on the App(s).

3.2 Technology and Delivery Services.

Amat and its affiliates provide delivery services. Amat provides technology services that both (i) enable Merchant to connect with Customers who may purchase Items from Merchant and (ii) enable Delivery People to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services. Delivery People perform their delivery services for (and are paid by) the Customers, and not Merchant.

4. MERCHANT OBLIGATIONS.

4.1 Availability of Items.

Merchant will make Items available for purchase through the App(s) (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Merchant will prepare, handle, store, label and package all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”) and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of Alcohol Items (“Alcohol Safety Standards”). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If Merchant fails to prepare or supply Items in accordance with Food or Alcohol Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), Amat may, in its sole discretion, remove such Item from the App(s).

4.2 Item Responsibility.

Merchant shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Merchant’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Merchant’s internal standards. Amat may, in its sole discretion, deduct reimbursement costs from the payment Amat remits to Merchant in accordance with this Section 5.

4.3 Third Party Services.

If Merchant uses a third-party service to: 1) access the Services and Tools; or 2) transmit information to Amat (a “Third Party Access Service”), Merchant agrees that Merchant’s obligations described herein shall apply to Merchants’s use of the Services and Tools via any Third Party Access Service unless otherwise agreed to between Amat and Merchant. Merchant agrees that failure by a Third Party Access Service to transmit accurate information such as Retail Price, Item descriptions, or Additional Information (as defined herein) to Amat shall not waive, suspend, or otherwise affect Merchant’s obligations described herein. Merchant remains solely responsible for the accuracy of information provided to Amat through any Third Party Access Service. Additionally, ongoing access to the Services and Tools via any Third Party Access Services is subject to Amat’s agreement with such Third Party.

4.4 Use Restrictions.

In connection with the access to and use of the Services and Tools, Merchant will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Services; (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Tools or Services (except as otherwise authorized by Amat); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations. Merchant will not (and will not allow any third party to) use the Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the App(s) (collectively, “Amat Data”) to directly or indirectly compete with Amat or the Services, including, without limitation, Amat Data that Merchant receives from Amat by way of a Third Party Access Service.

4.5 Item Restrictions.

The following restricted Items may not be featured or sold via the App(s):

Amat may restrict the sale of Items via the App(s) based on physical attributes of such Items (e.g., weight (per Item or in aggregate), height, shape, or appropriateness for delivery).

4.6 Messaging and Contact Information.

Merchant agrees to receive calls, SMS messages and other communications, including those made available by autodialer or using an artificial or pre-recorded voice, sent by or on behalf of Amat .

5. FEES AND TAXES.

5.1 Calculation.

Amat will deduct applicable fees (“Fees”) from Item Revenue remitted to Merchant as further described herein. Amat will remit to Merchant the total Retail Price collected for all Items Merchant sells via the App(s) (including any Sales Taxes collected on its behalf) less: (a) the applicable retained Fees; and (b) any refunds given to Customers for Substandard Items (such final remitted amount being “Item Revenue”). All Item Revenue that is duly owed to Merchant will be remitted within fourteen (14) business days of the sale of the Item. If required by applicable law or regulation, Amat may adjust the Fee. Such adjustments may require adjustments to remittances of Item Revenue owed to Merchant. Such adjustment may apply only to certain Items such as Alcohol Items. Amat will deduct the Fee from the payment Amat collects on Merchant’s behalf. Amat reserves the right to suspend Merchant’s ability to make Items available for purchase by Customers through the App(s) if Merchant’s account is in arrears. If you are paid for an Item, you are responsible for the Fee even if a Delivery Person is unable to complete the delivery of such Item. Except as expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement. All Fees under this Agreement will be paid in .........

5.2 Services Fee.

The Retail Price (as defined below) of all Items that Merchant sells via the App(s) (excluding any Sales Tax collected on Merchant’s behalf) multiplied by the applicable fee percentage for the Sales Channel used to sell each such Item (“Services Fee”). Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be calculated as follows:

1. FULL SERVICE SALES CHANNEL (ALSO REFERRED TO AS MARKETPLACE SALES CHANNEL): Amat will charge Merchant a fee percentage of 20% for each Item sold via the App(s) through the Full Service Sales Channel;
2. PICK-UP SALES CHANNEL: Amat will charge Merchant a fee percentage of 10% for each Item sold via the App(s) through the Pick-Up Sales Channel;

5.3 Order Processing Fee.

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

5.4 On-boarding Fee.

Unless otherwise agreed to by the Parties, in consideration of Amat’s work to activate Merchant on the App(s), Merchant will pay to Amat a Fee of .... ("On-boarding Fee"). Merchant agrees that Amat may deduct the On-boarding Fee from Merchant's Item Revenue.

5.5 Taxes.

The Amat Now Services connect you with Customers who wish to purchase your Items. You are the “merchant”, “retailer”, or “seller” of all Items to be made available for sale via theApp(s). As such, you are responsible for determining and setting the retail price for each Item (the “Retail Price”). You are also responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, food & beverage, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. For the sake of clarity, the Retail Price for each Item excludes separately stated Sales Taxes. Merchant hereby authorizes Amat to collect applicable Sales Taxes on Merchant's behalf based on information (including, without limitation, Item descriptions and Additional Information) provided by Merchant to Amat in a manner as otherwise agreed to by the Parties.

5.6 Pricing.

Merchant agrees that you will not make an Item available under this Agreement at a price higher than the amount Merchant is charging for similar Items through any comparable platform for food delivery services.

5.7 Appointment of Limited Payment Collection Agent.

Merchant is solely responsible for providing Amat with, and maintaining, accurate bank account information. Merchant hereby appoints Amat, as the case may be, as Merchant’s limited payment collection agent solely for the purpose of: (i) accepting payment of the Retail Price of Items sold by Merchant via the App(s) plus any applicable Sales Tax collected on Merchant’s behalf, via the payment processing functionality and (ii) remitting the Retail Price plus Sales Tax collected on Merchant’s behalf less the retained Fee and, if applicable, any refunds given to Customers on behalf of Merchant (“Item Revenue”). If reasonable, Amat may adjust the remittance of Item Revenue collected on Merchant’s behalf. Amat reserve the right to collect any amounts in connection with such adjustments via a deduction from the remittance of Item Revenue collected on Merchant’s behalf, by debiting the payment method or Merchant’s bank account on record, or otherwise seeking reimbursement from Merchant by any lawful collection methods available. Merchant authorizes Amat to use any or all of the above methods to seek such adjustments and reimbursements. In more serious situations, such as fraud (including any charges for Items that Customers did not place) or Customer complaints, Amat reserve the right to cancel a payment entirely. By agreeing to these terms, Merchant gives Amat express consent to adjust payments collected on Merchant’s behalf as set forth in this Section. Further, Merchant agrees that payment collected on its behalf by Amat will be considered the same as payment made directly to Merchant. Merchant agrees that if Merchant does not receive payment from Amat, Merchant’s only recourse will be against Amat.

5.8 Payment Compliance.

Amat may, from time to time, request information from Merchant to confirm Merchant’s identity as may be necessary under any applicable compliance obligations before remitting any amounts to Merchant. Amat may reduce or withhold amounts owed to Merchant if: 1) Merchant fails to provide tax or employer identification information to Amat and/or; 2) there is a legal or regulatory risk or potential breach of law or regulation associated with such remittance to Merchant. Merchant agrees that Amat may describe or otherwise reflect the terms of this Section, and any related portions of the Agreement, in any terms of use, receipts, disclosures, or notices that may be deemed necessary or prudent.

5.9 Additional Information.

Amat may, from time to time, require Merchant to provide certain additional information (“Additional Information”) pertaining to, Merchant location, Merchant establishment type (e.g., restaurant vs. grocery), particular Items or particular sales of Items for the proper determination, calculation, collection, and remittance of Sales Taxes, or to comply with other applicable laws or regulations. Merchant is solely responsible for providing requested Additional Information to Amat in a timely manner. If Merchant fails to timely provide Additional Information in response to notification and request by Amat, Amat expressly reserves the right to temporarily remove affected Items from Merchant’s menu on the App(s) until such Additional Information is received.

6. REPORTING.

Amat may provide Merchant aggregate information regarding the number of Items picked up by Delivery People and sold by Merchant to Customers pursuant to this Agreement. Amat will also provide reasonable information regarding any refunds given to Customers, including the date of the transaction, the Item ordered, the reason for the refund and any other information Amat is permitted to provide under applicable privacy laws and terms with Customers. To the extent applicable, Merchant agrees that Amat may share Merchant’s transactional data regarding ordered meals, including sales data, with Merchant’s parent company or franchisor.

7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES.

7.1 Marks.

Subject to this Agreement, each party hereby grants to the other party a limited, royalty-free, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, in connection with the activities related to this Agreement or any other activities relating to the Services. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of such marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party (by email is sufficient). For the avoidance of doubt, however, any use or display of Merchant’s Marks by Amat in connection with making Items available through the App(s) in the ordinary course of business will not require any such prior, express, written consent. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Without limiting anything in the Agreement, Merchant represents and warrants that Merchant’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Merchant agrees that Amat may remove Merchant’s Marks from the App(s) if Amat receive notice or otherwise reasonably believe that such Merchant’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

7.2 Marketing.

Amat may showcase the availability of Merchant’s Items via the App(s) through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). Amat (or a party designated by Amat and acting on Amat’s behalf) may take video and still images for marketing and other efforts related to the App(s) (“Photographs”). Merchant agrees that Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of Amat. Additionally, Merchant may provide videos, still image or other materials to Amat (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the App(s) or the marketing and promotion and the availability of your Items via the App(s). Merchant hereby grants Amat a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Services. Amat agrees that the Merchant Marketing Materials shall remain Merchant’s sole and exclusive property. Without limiting anything in the Agreement, Merchant represents and warrants that the Merchant Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Merchant Marketing Materials contain any third party materials, Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for Amat to be able to use the Merchant Marketing Materials in accordance with this Section. Merchant agrees that Amat may remove Merchant Marketing Materials from the App(s) if Amat receive notice or otherwise reasonably believe that such Merchant Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

7.4 Promotions.

“Promotion(s)” means offers that are available through the App(s) to stimulate Customer demand. When a Promotion is successfully applied to an order, Merchant authorizes Amat to charge Customers for the post-Promotional value of an Item (not including Sales Taxes and applicable Fees). Subject to App(s) functionality, Amat may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Promotion.

1. i) Merchant Promotion(s). Subject to any other guidelines or eligibility criteria for Promotions that Amat may make available from time to time, Merchant may create Promotions that are designed and fulfilled by Merchant (“Merchant Promotion(s)”). Unless otherwise specified by Amat, Merchant will be solely responsible for defining each Merchant Promotion (within the scope of functionality provided by Amat) through the Promotion Schedule (as defined below).
   
   Merchant may create a Merchant Promotion by completing and providing Amat with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to Amat by Merchant, Merchant will have a specified time period to confirm such Promotion Schedule prior to the Promotion being offered and such confirmation will constitute an agreement with Amat under the terms of this Agreement.


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


3. iii). Parties’ Obligations. The parties’ obligations for each Promotion will include the following, but may be expanded upon in an applicable Promotion Schedule:
• 1) Merchant’s Obligations. Merchant will:
  (A) fulfill the terms of Promotions offered by Merchant (solely or jointly with Amat) to Customers who have successfully completed their order through the App(s);
  (B) be responsible for the fees associated with the Promotion up to the amount Merchant has agreed to fund for such Promotion; and
  (C) upon reasonable request, supply Amat with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Amat may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, Merchant acknowledges and agrees that Merchant will not be able to terminate the Agreement while a Promotion is live.


• 2) Amat’s Obligations. Amat will
  (A) honor and fulfill the terms of Promotions offered by Amat (solely or jointly with Merchant) to Customers who have successfully completed their order through the App(s);
  (B) be responsible for the fees associated with the Promotion up to the amount Amat has agreed to fund such Promotion;
  (C) upon reasonable request, supply Merchant with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which Merchant shall use to market such Promotion, provided that a Promotion Schedule authorizes Merchant to market such Promotion out of the App(s); and (D) use good faith efforts to provide Merchant with reasonable information regarding Promotions, which may include, without limitation, the amount Merchant spent on Promotions and the number of Items sold in connection with Promotions.
4. iv) Fee on Promotion Orders. Notwithstanding anything to the contrary in this Agreement, if a Customer successfully applies a Merchant Promotion or Co-Funded Promotion to an order through the App(s), Fee shall be calculated based on the total Retail Value of the order minus the Merchant-funded portion of such Promotion applied to that order.


5. v) Out of App Marketing. Unless otherwise specified in an applicable Promotion Schedule, Merchant may not market or otherwise advertise a Promotion outside the App(s). If a Promotion Schedule authorizes Merchant to market a Promotion out of the App(s), all such marketing materials will be subject to Amat’s prior review and written approval, which shall not be unreasonably withheld.

7.5 Publicity.

Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.

8. PROPRIETARY INFORMATION; FEEDBACK.

8.1 Definition.

“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Merchant’s Items to Customers through the App(s) and the terms and conditions of this Agreement. Proprietary Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives.

foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose.

expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.

8.2 Passwords.

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

8.3 Feedback.

Merchant may, but is not obligated to, provide or otherwise make available to Amat certain feedback, suggestions, comments, ideas, or other concepts relating to Amat’s and its affiliate’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to Amat, Merchant hereby grants to Amat a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.

9. RATINGS.

Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the App(s) to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant and the relevant Item(s) on the App(s) (“Customer Feedback”). Amat reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of Amat without attribution to or approval of Merchant. Merchant acknowledges that Amat are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that Amat reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal data, violate any privacy or other applicable laws, or Amat’s content policies.

10. REPRESENTATIONS AND WARRANTIES;

10.1 Representations and Warranties.

Each party hereby represents and warrants that:

1. (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder;
2. (ii) it is duly organized, validly existing and in good standing under the laws of the Republic of Turkey;
3. (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement;
4. (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Merchant, all applicable Food Safety Standards); and
5. (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party.

11. INDEMNITY.

11.1 Indemnified Claims.

Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless the other, its affiliates and respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a material breach of any of the Indemnifying Party’s representations or warranties in this Agreement; or (iii) any claims that the Marks provided by the Indemnifying Party infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, the merchant will indemnify, defend and hold harmless Amat from and against any and all Losses with respect to any third party claim arising out of or related to:

1. (A) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation;
2. (B) (B) Merchant’s failure to provide accurate and complete descriptions or Additional Information for Items, including information transmitted through a Device, point-of-sale, or Third Party Access Service, sufficient for accurate Sales Tax calculations;
3. (C) Merchant’s failure to comply with a notice with respect to Unsupported Items; or

if applicable, except in the case of each of (A)-(C) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of Amat or its employees, agents or Delivery People.

11.2 Procedure.

Each Indemnified Party will provide prompt written notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.

12. LIMITS OF LIABILITY.

Except for liability arising from a party’s gross negligence, willful misconduct, indemnification obligations or a breach of confidentiality obligations: In no event will either party be liable for any claim for any indirect, willful, punitive, incidental, exemplary, special or consequential damages, for loss of business profits, or damages for loss of business of merchant or any third party arising out of this agreement, or loss or inaccuracy of data of any kind, whether based on contract, tort or any other legal theory, even if such party has been advised of the possibility of such damages. The foregoing limitation of liability and exclusion of certain damages will apply regardless of the success or effectiveness of other remedies.

13. INSURANCE.

During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance.

15. TERM AND TERMINATION.

This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue for a period of one (1) year from the Effective Date (“Initial Term”) and will automatically renew for successive one (1) year periods (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in the event of a material breach by the other party with .... (..) days’ prior written notice thereof by the non-breaching party.

party may terminate this Agreement, in whole or in part, at any time without cause by giving sixty (60) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Promotion period, such termination will not take effect until such Promotion period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, Amat may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Merchant that, in Amat’s reasonable judgment, causes it to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations and Sections 1, 7.1, 8-13, this last sentence of 15, 16-17 and 19 will survive the expiration or termination of this Agreement.

16. NOTICE.

Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by express mail; or (c) by electronic mail to the designated recipient.

to Amat should be provided to:

Notices to Merchant should be provided to the address provided by Merchant.

17. DISPUTE RESOLUTION AND ARBITRATION.

17.1 Arbitration.

Any dispute, whether contractual or otherwise, arising out of or in connection with this Agreement or these dispute resolution procedures, including any question regarding its existence, performance, validity, or termination, will be referred to and finally resolved by arbitration administered by Istanbul Arbitration Centre (ISTAC) in accordance with the Istanbul Arbitration Centre Rules (ISTAC rules) , which are deemed to be incorporated by reference into this clause. The parties agree that the arbitrator (“Arbitrator”), and not any court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, scope, applicability, enforceability or formation of this Agreement, including any claim that all or any part of this Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether this Agreement is unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel. In the event of a dispute, controversy or claim arising out of or relating in any way to this Agreement, prior to submitting a demand for arbitration, the complaining party shall notify the other party in writing thereof. Within thirty (30) days of such notice, representatives of both parties shall attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. Furthermore, the parties agree:

1. i) The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.
2. ii) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the ISTAC Rules.
3. iii) The seat, or legal place, of arbitration will be Instabul, Turkey.
4. iv) The language to be used in the arbitral proceedings will be English.
5. v) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by ISTAC in accordance with the ISTAC Rules.
6. vi) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.
7. vii) The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.
8. ix) Arbitrator fees and expenses plus any expenses of ISTAC shall be split equally between the parties. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.

19. ADDITIONAL TERMS.

The territory of this Agreement is the Republic of Turkey (“Territory”), and all payments issued under this Agreement must be in Turkish lira. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement, upon written notice to the other party, (a) to an affiliate of such party, or (b) in connection with the sale of all or substantially all of such party’s equity, business or assets to which this Agreement relates; provided that in the event of any such transfer by Merchant, Merchant explicitly consents that any such transferee will have access to and control of all Merchant accounts related to such transfer, including its accounts with Amat, access to historical reporting information about Items related to such transfer, and other account data relating to such transfer. In the event of a change of ownership involving Merchant’s Location(s), the parties will need to execute a Change of Ownership form and Merchant acknowledges and agrees that the Location will not be able to accept or process any Customer orders on the App until the Change of Ownership is executed. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of each party hereto and its respective successors and assigns. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. In the event any provision of this Agreement is determined to be invalid or unenforceable by ruling of an arbitrator or a court of competent jurisdiction, the remainder of this Agreement (and each of the remaining terms and conditions contained herein) will remain in full force and effect. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by occurrences beyond the control of the affected party including decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship among the parties (except as otherwise expressly set forth above), and no party will have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance obligations under this Agreement. This Agreement contains the full and complete understanding and agreement between the parties relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, relating such subject matter hereof. This Agreement may be executed in one or more counterparts and by exchange of electronically signed counterparts transmitted by pdf format, each of which will be deemed an original and all of which, when taken together, will constitute one and the same original instrument.