These Technology Platform Services Terms and Conditions (the “Terms”) are entered into between you and Restaurant Technology Solutions, LLC, and govern your access to and use of the Technology Platform Services. These Terms are effective as of the earlier date you click to accept, begin using the Technology Platform Services, or where applicable, the date you accept via signature or clickthrough of an order form.
DEFINITIONS
a. “We,” “us,” “our,” and “Otter” means Restaurant Technology Solutions, LLC.
b. “Customer,” “you” or “your” means the company agreeing to these Terms, either by clicking to accept these Terms or by entering into an order form for the Technology Platform Services.
c. “Otter Platform” means Otter’s proprietary technology that powers online ordering and order management for the Venmo Food Commerce Hub pilot program.
d. “Venmo” means a service of third-party PayPal, Inc.
e. “Venmo Food Commerce Hub” means Venmo’s technology platform that allows (i) participating restaurants to list their menu items for sale, (ii) end customers to browse and purchase items from listed participating restaurants for pickup or delivery directly via the Venmo app, website, or Venmo-generated QR codes, and (iii) end customers to securely complete payment transactions using their Venmo account (including via the Venmo app or website) as part of a pilot program.
f. “Technology Platform Services” means the services and functionality provided by the Otter Platform as part of a pilot program that allows you to participate in the Venmo Food Commerce Hub.
g. “Fees” means all fees payable for the Technology Platform Services as set forth in Section 7 or as otherwise communicated to you (whether via website or other means) when you agreed to use the Technology Platform Services.
h. “Payment Processing Services” means payment processing services provided by Venmo that facilitate the authorization, capture, settlement, and reporting of payment transactions, including, but not limited to, credit card, debit card, ACH, and other electronic payment methods, for the transactions completed on the Venmo Food Commerce Hub.
i. “Stripe” means our third party payment disbursement partner that facilitates the disbursement of funds to you in connection with your transactions within the Venmo Food Commerce Hub. Stripe operates independently of the Venmo Food Commerce Hub.
j. “Taxes” means any and all present or future taxes, charges, fees, levies or other assessments, including, without limitation, income, telecommunications, value-added, goods and services tax or similar taxes, gross receipts, excise, real or personal property, sales, withholding, social security, occupation, use, severance, environmental, license, net worth, payroll, employment, franchise, transfer and recording taxes, fees and charges, imposed by any domestic or foreign taxing authority.
TECHNOLOGY PLATFORM SERVICES
a. Technology Platform Services. We will provide the Technology Platform Services, which allows you to onboard, participate in, and list and manage your menu items for sale on the Venmo Food Commerce Hub. We may modify or discontinue the Technology Platform Services at any time, and suspend or terminate your use of the Technology Platform Services at any time with or without notice to you. Your right to use the Technology Platform Services is non-exclusive, personal to you or your company, and is not assignable, sublicensable or transferable. Otter is and remains the exclusive owner of all intellectual property relating to the Otter Platform and Technology Platform Services, website, technology, and other related products and services. These Terms do not give you any right, title, or interest in or to the Technology Platform Services or any related intellectual property rights other than the limited right to use the Technology Platform Services expressly granted under these Terms.
b. Account. You may be required to create an account to use the Technology Platform Services, and you will be responsible for all your users (including all administrator and non administrator accounts) and their actions, including, but not limited to, accepting any updates to these Terms or any additional terms, or maintaining the confidentiality of your username and password. If you become aware of any unauthorized access to your account, you will immediately notify us, and cooperate with us by providing all information reasonably requested by us.
c. Venmo Services Agreements. The Venmo Food Commerce Hub, Payment Processing Services, and any products or services made available by Venmo within the Venmo Food Commerce Hub are subject to Venmo or one or more of its affiliate’s terms of service and related agreements entered into by you (collectively, the “Venmo Services Agreements”). You agree to be bound by, and comply with, any and all terms and conditions of the Venmo Services Agreements. You acknowledge and agree that Otter is not a party to the Venno Services Agreement and shall have no responsibility or liability arising from or relating to (i) the Venmo Services Agreements, (ii) your use of and access to the Venmo Food Commerce Hub and the Payment Processing Services provided by Venmo, and (iii) any other transaction, arrangement, or agreement between you and Venmo. You acknowledge and agree that, with respect to the foregoing matters, Otter shall not be responsible or liable for any claims, losses, damages, expenses, or liabilities of any kind.
d. Customer Service and Order Disputes. You are solely responsible for providing support to all end customers for your items sold through the Venmo Food Commerce Hub. You must manage and resolve all disputes, claims, and complaints raised by end customers. In the event there is a dispute between you and the end customer that you are unable to resolve, we will, in our sole discretion and in a reasonable manner, investigate the dispute. At the end of our investigation, we may, in our reasonable discretion, decide to, among other actions, (1) issue a re-order, credit, partial refund, or full refund to such end customer, or (2) provide you with reasonable assistance in resolving the dispute directly with the end customer’s credit card issuer or bank. You acknowledge and agree that you may be required to resolve or manage disputes with end customers in accordance with Venmo’s dispute resolution processes, policies, or instructions. This may include, but is not limited to, issuing a replacement order, credit, partial refund, full refund, or complying with other procedures stated in the Venmo Services Agreements, Venmo’s policies, or as otherwise communicated to you by Venmo. You agree that we shall not be responsible for any refund, credit, or reorder issued by Venmo or an end customer’s credit card issuer or bank. We shall not be responsible for your actions, Venmo’s actions, the actions of any end customers, including the failure to pick up any sold items, and any other third parties or service providers that you may elect to use within the Venmo Food Commerce Hub. We may provide or introduce additional guidelines and rules relating to refunds and disputes, which will become effective upon five (5) days’ notice, unless due to extraordinary circumstances in which such guidelines and rules may be in effect immediately.
e. Chargeback Disputes. In the event that a chargeback claim is initiated by an end customer with their issuing bank or Venmo, we will provide you with reasonable assistance in resolving such a chargeback claim with the issuing bank or Venmo, which may include providing transaction records, supporting documentation or other information deemed necessary for the chargeback resolution process. You acknowledge and agree that all final decisions regarding a chargeback claim remain with the issuing bank, and we do not guarantee the outcome of any chargeback dispute. We may, in our sole discretion, suspend your account, terminate your account and the Technology Platform Services, or take any other action necessary to mitigate risk in the event we suspect or detect any fraud, unusual or suspicious activity, breach of these Terms, or breach of terms with Venmo or Stripe. In any such event, we will not be liable to you or any third party for any loss, damage, or liability of any kind arising from those actions.
f. Your Obligations. You must make items available for purchase through the Venmo Food Commerce Hub during your normal business hours and ensure the menu of available items is accurate. In addition, except as otherwise stated in these Terms, you must: (i) prepare, handle, store, label, and package all items in accordance with applicable laws, including, without limitation, food safety laws, alcohol laws, and packaging laws; (ii) identify all items properly and correctly, especially if items are subject to age restrictions; (iii) properly make sure all items meet the requirements in the item listing or as required by the end customer; (iv) ensure that the contents of the menu include item information which is accurate and comply with applicable laws, including any notifications about ingredients, nutritional information, allergen information, and alcoholic content (if applicable); (v) if the end customer needs to prepare or assemble items, include instructions for such assembly or preparation which are accurate and in accordance with all applicable laws; (vi) list for sale or sell any Restricted Items as defined in this Section 2.f; and (vii) ensure that all items are (a) prepared and appropriately packaged in accordance with industry standard preservation methods to prevent damage and tampering, and (b) provided to an end customer in a safe condition. “Restricted Items” are defined as the following: (i) illegal items under applicable laws; (ii) regulated species under applicable laws (e.g., plants, noxious weeds, tobacco products, nicotine, CBD, marijuana, prohibited seeds, etc.); or (iii) any items for which you do not have permission from Otter and/or a license from regulatory authorities under applicable laws to sell.
PAYMENT PROCESSING SERVICES
a. Payment Processing Services. The Payment Processing Services are provided by Venmo, one or more of its affiliates, or other third party payment processing partners authorized by Venmo, and are subject to the Venmo Services Agreements or any other merchant agreement which shall be solely between you and Venmo or its affiliates. By using the Payment Processing Services, you agree that you will at all times comply with (i) the terms and conditions of the Venmo Services Agreement and/or any applicable merchant agreements you have entered into in connection with the Payment Processing Services, and (ii) all applicable card network rules (i.e. Visa, American Express, Discover, Mastercard), policies, laws and regulations. You agree to provide us and Venmo accurate and complete information about you and your business, and you authorize Venmo to share transaction information related to your use of the Venmo Food Commerce Hub and Payment Processing Services with us. Your use of the Technology Platform Services are fully contingent on passing any know-your-customer, or background checks required by Venmo. You are still responsible for all Fees and other payment obligations during the term of the Technology Platform Services regardless of whether you can pass Venmo’s know-your-customer or background check.
b. Disclaimer. YOU EXPRESSLY UNDERSTAND AND AGREE THAT OTTER MAKES NO REPRESENTATIONS, ENDORSEMENTS OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND RELATING TO PAYMENT PROCESSING SERVICES PROVIDED BY VENMO OR ANY OTHER THIRD PARTY, INCLUDING ANY ACH AND/OR CREDIT CARD PROCESSING SERVICES UNDERTAKEN BY VENMO AND ITS THIRD PARTY SERVICE PROVIDERS. YOU IRREVOCABLY WAIVE ANY CLAIMS AGAINST OTTER RELATING IN ANY WAY TO YOUR USE OF THE VENMO FOOD COMMERCE HUB AND PAYMENT PROCESSING SERVICES PROVIDED BY VENMO. IF YOU HAVE A DISPUTE WITH VENMO CONCERNING THE PROCESSING OF ACH PAYMENTS OR CREDIT CARD TRANSACTIONS, YOU AGREE TO RELEASE OTTER FROM ANY AND ALL CLAIMS, DEMANDS AND DAMAGES OF ANY KIND, SUSPECTED AND UNSUSPECTED, KNOWN AND UNKNOWN, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATING TO SUCH DISPUTE. TO THE EXTENT APPLICABLE, YOU AGREE TO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH ASSERTS THAT “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE RELEASED PARTY”.
c. Stripe Services Agreement. In order for us to facilitate the disbursement of funds to you in connection with your transactions within the Venmo Food Commerce Hub, you will be required to enter into a separate agreement with Stripe for a Stripe connected account (the "Stripe Connected Account”). By using the Technology Platform Services and agreeing to these Terms, you also agree to be bound by the Stripe Connected Account agreement, Stripe’s terms of service and any other related agreements entered into between you and Stripe (collectively, the “Stripe Services Agreements”). We reserve the right to change our third party payment disbursement partner at any time and you will provide us with any information required to set up a payment account with any such alternate payment disbursement partner. In cases where suspicious activity is detected (e.g. fraud, money laundering, collusion), we reserve the right to withhold payout to you.
d. Compliance. To the extent permitted by law, we may collect the Fees and any obligations you owe us by deducting the corresponding amounts from funds payable to you arising from the settlement of transactions through the Venmo Food Commerce Hub. Fees will be assessed at the time a transaction is processed within the Venmo Food Commerce Hub and will be first deducted from the funds received for such transaction. If the settlement amounts are not sufficient to meet your obligations to us, we may charge or debit the bank account or credit card registered in your Stripe Connected Account for any amounts owed to us. Your failure to fully pay amounts that you owe us on demand will be a breach of these Terms. You will be liable for our costs associated with collection in addition to the amount owed, including without limitation attorneys' fees and expenses, costs of any arbitration or court proceeding, collection agency fees, and any applicable interest. In addition to the amount due, delinquent accounts may be charged with fees that are incidental to the collection of delinquent accounts and chargebacks including, but not limited to, collection fees and convenience fees and other third parties charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to us by you. Such communication may be made by us or by anyone on our behalf, including, but not limited to, a third party collection agent.
e. Guarantee. Additionally, we may require a personal guarantee from a principal of a business for funds owed under this Agreement. If we require a personal guarantee we will specifically inform you. In addition to the amount due, delinquent accounts may be charged with fees that are incidental to the collection of delinquent accounts and chargebacks including, but not limited to, collection fees and convenience fees and other third parties charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to us by you. Such communication may be made by us or by anyone on our behalf, including, but not limited to, a third party collection agent.
f. Changes. It is your responsibility to determine what, if any, Taxes apply to each transaction you complete via the Venmo Food Commerce Hub and the Payment Processing Services, including, for example, sales, use, value added, and similar taxes. It is also your responsibility to withhold, collect, report and remit the correct taxes to the appropriate tax authorities. We are not responsible for withholding, collecting, reporting, or remitting any sales, use, value added, or similar tax arising from any transaction you complete via the Venmo Food Commerce Hub.
g. Payment. You will be paid via your Stripe Connected Account for all items sold within the Venmo Food Commerce Hub minus any Fees or other charges authorized by you on a periodic basis except as prevented by payment processing delays caused by Venmo, delays in disbursement caused by Stripe, acts of nature, network outages, or any other situation not under our reasonable control. In such circumstances, we will make all reasonable efforts to ensure your delayed payment is processed promptly. While we strive to be accurate in the calculations of all Fees and items sold, you authorize us to automatically deduct, claw back, and adjust any errors in Fees charged or amounts paid to you. You expressly understand and agree that we shall not be liable for any payments and monetary transactions that occur through your use of the Technology Platform Services. You expressly understand and agree that all payments and monetary transactions are handled by Venmo and Stripe. You agree that we shall not be liable for any issues regarding financial and monetary transactions (including any fraudulent transactions, money laundering, collusion) between you and any other party, including Venmo or Stripe, where applicable.
h. Payment Responsibility. You are responsible for all transactions (one-time, recurring, and refunds) processed through the Payment Processing Services. We are not liable for loss or damage from fraudulent or invalid transactions processed by Venmo within the Venmo Food Commerce Hub. This includes transactions that were not processed due to a network communication error, or any other reason. If you process a transaction, it is your responsibility to verify that the transaction was successfully processed. You represent and warrant that you shall comply with all data security standards (including any standard related to the physical compliance requirements of using any Hardware) adopted by the PCI Security Standards Council, LLC and any amendments thereto, the EMV standards, and the security rules of each payment card association, including, without limitation, American Express, the Visa Cardholder Information Security Program, the MasterCard Site Data Protection Program and Discover Network’s Information and Security. You accept and agree to fully cooperate with us, Venmo, Stripe, any card association, or other third party payment processors with respect to any investigation and/or additional requirements related to any suspected data incident, fraudulent transaction, chargeback, or any other payment processing transaction.
i. Venmo API. You understand that we use the Venmo API to run the Technology Platform Services and that the Venmo API is subject to change at any time and such changes may adversely affect the Technology Platform Services. You understand and agree that we are not responsible for the Venmo API and the Venmo Food Commerce Hub, and you shall not hold us liable for any adverse effects that actions (whether intentional or unintentional) on the part of Venmo may cause to your account with us or your business.
PROMOTIONS AND MARKETING
a. Marketing. At our discretion, your listed menu items may be showcased through various promotional activities (e.g., through SMS messages, emails, social media channels, websites, advertisements, or blogs). In certain circumstances, you may also be able to choose to pay for the promotion of your items or your store. However, there shall be no additional charges for any marketing unless such marketing is approved by you.
b. Promotions. Subject to availability, you may, at your discretion, choose to enhance promotion placement, provide coupons to potential end customers, and to engage in other promotional services. To the extent you choose to participate in any promotions, you will ensure that you honor the terms of any such promotion.
INTELLECTUAL PROPERTY AND USE RESTRICTIONS
a. User Content. Users of the Technology Platform Services, whether you, end customers, or others, may provide us with content, including without limitation text, photos, images, music, audio, videos, fonts, logos, stickers, code and any other materials (“User Content"). Your User Content stays yours, except for the limited rights that enable us to provide, improve, promote and protect the Otter Platform and the Technology Platform Services as described in these Terms. Your User Content includes without limitation content you post to the Technology Platform Services. You grant us (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that Your User Content works better with the Technology Platform Services), communicate, publish, publicly display, publicly perform and distribute Your User Content for the limited purposes of allowing us to provide, improve, promote and protect the Technology Platform Services. You also hereby grant us a non-exclusive, worldwide, royalty-free, sublicensable, transferable license to use your company name, brand, logos, and trademarks on the Otter Platform and the Technology Platform Services in and for the Venmo Food Commerce Hub, and in any marketing or promotional materials related to the Venmo Food Commerce Hub, for the purpose of providing, improving, promoting, and protecting the Technology Platform Services and the Venmo Food Commerce Hub.
b. Order Data. Any and all Order Data made through the Technology Platform Services shall be owned separately by both parties. “Order Data” shall mean any and all end customer order information, including without limitation Personal Data, collected by a party as part of the Otter Platform or the Technology Platform Services. “Personal Data” shall have the meaning set forth in the Data Processing Addendum.
c. Aggregated and Anonymized Data. You also acknowledge and agree that we (including our affiliates) may use, analyze, and share aggregated or de-identified versions of Order Data for multiple purposes, including, but not limited to, improving products and services, and identifying market trends. We will own all intellectual property rights in such de-identified or aggregated forms of Order Data, and any data derived therefrom. Any data collected, processed, or stored by Venmo in connection with the Payment Processing Services or the Venmo Food Commerce Hub shall be governed by the Venmo Services Agreements.
d. Ownership of User Content. You represent and warrant that you own all rights to your User Content or otherwise have, and will continue to have, all rights and permissions necessary to use, share, display, transfer and license your User Content via the Technology Platform Services and in the manner set forth in these Terms. If we use your User Content in the ways described herein, you represent and warrant that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights, trade secrets or any other intellectual property or proprietary rights. In addition, you acknowledge that the content on the Technology Platform Services may be protected by Venmo or others' intellectual property rights. You shall not copy, upload, download or share content unless you have the right to do so.
e. Ownership of the Technology Platform Services. The Otter Platform and the Technology Platform Services powering the Venmo Food Commerce Hub, including the “look and feel”, content, software, technology and applicable documentation, and all related intellectual property rights, are and will remain the exclusive property of Otter, our affiliates, and licensors, where applicable.
f. Restrictions. You agree and acknowledge that you shall not, and shall not allow third parties to: (i) modify, copy, or create derivative works of any part of the Otter Platform, the Technology Platform Services, or the Venmo Food Commerce Hub, (ii) sell, resell, license, sublicense, distribute, rent or lease any part of the the Otter Platform, the Technology Platform Services, or the Venmo Food Commerce Hub, (iii) take any action that would cause any Confidential Information related to the Otter Platform, the Technology Platform Services, or the Venmo Food Commerce Hub to be disclosed, (iv) access or use the Otter Platform, the Technology Platform Services, or the Venmo Food Commerce Hub or any part thereof to provide services to third parties, to build a competitive product or service or a product or service using similar ideas, features, functionalities, functions or graphics as the Otter Platform, the Technology Platform Services, or the Venmo Food Commerce Hub, or any part thereof, (v) use the the Otter Platform, the Technology Platform Services, or the Venmo Food Commerce Hub to store or transmit any malicious code, or conduct any unlawful activities, (vi) use the the Otter Platform, the Technology Platform Services, or the Venmo Food Commerce Hub in any way that could damage, disable, overburden, or impair any of our servers or networks connected to any of our servers, and (vii) use the the Otter Platform, the Technology Platform Services, or the Venmo Food Commerce Hub in violation of applicable laws, rules, and regulations.
PRIVACY
a. Privacy. Our collection and use of Personal Data, if any, is subject to our privacy policy available on our website, and the Data Processing Addendum. In certain circumstances you may directly receive Personal Data in your use of the Technology Platform Services. However, except as otherwise authorized in writing or as required to fulfill the order, you agree not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Order Data you collect under the Technology Platform Services. Both parties agree to the terms of the Data Processing Addendum attached hereto as Exhibit A and incorporated herein as part of these Terms, which applies to the Technology Platform Services and processing of any Personal Data, where applicable.
b. Communications. To the extent your use of the Technology Platform Services includes the sending and receiving of SMS messages, you hereby represent and warrant that you shall: (i) comply with all applicable laws, rules and regulations, (ii) obtain any and all consents required prior to entering any phone number to receive SMS messages, (iii) retain documentary proof of such consents for at least five (5) years, (iv) suppress and shall not provide us with any contact information for any individuals who do not wish to be contacted by you, and (v) if any individual revokes consent, you will remove such SMS number immediately from the Technology Platform Services.
FEES
For your use of the Technology Platform Services, you shall be charged the following total Fee: Six percent (6%) of the total order amount (exclusive of taxes or any tips) paid by an end customer accessing the Venmo Food Commerce Hub to place an order or orders (the “Total Order”). This Fee is inclusive of all transaction (payment processing) fees, which shall not be less than one percent (1%) of the Total Order. We will deduct all Fees from payments made by end customers within the Venmo Food Commerce Hub, prior to disbursement of funds to you. We reserve the right to change the Fee upon seven (7) days prior written notice to you. You hereby appoint us as your limited agent to withdraw and deposit any Fees that are owed by you. Notwithstanding the above, this Section 7 does not prohibit us from charging any new fees to you or your contractors or affiliates, or any third party vendor, or end customer.
TERM
The Term of the Technology Platform Services shall be for the duration stated in an order form, or if there is no duration stated in the order form or if you did not enter into an order form, the Technology Platform Services shall continue on a month to month basis. Either party may terminate the order form and these Terms by providing thirty (30) days written notice to the other party. Outstanding payment obligations and the rights and obligations of the parties under the Agreement which by their nature should survive termination or expiration of the Agreement shall survive, including but not limited to provisions regarding confidentiality, intellectual property, indemnification, and limitation of liability.
TAXES
a. You are responsible and liable for determining any and all Taxes required to be assessed, incurred, collected, paid or withheld for all sales and other transactions arising from the use of the Technology Platform Services and your transactions within the Venmo Food Commerce Hub. You are also responsible and liable for (a) determining whether Taxes apply to your sale of menu items, products and services, payments received, and any other transactions arising from or out of your use of the Technology Platform Services, and (b) calculating, collecting, reporting or remitting any Taxes to the appropriate tax and revenue authorities. Any guidance, estimates, or other information provided on the Technology Platform Services related to Taxes is not intended to be tax advice, is purely for informational purposes, and shall not be taken as tax advice. For the avoidance of doubt, we expressly disclaim any and all liability or obligations for any such Taxes.
b. We may be obligated under applicable laws to report certain information to tax and revenue authorities (“Tax Information”) and/or you with respect to your use of the Technology Platform Services powering the Venmo Food Commerce Hub. Upon request, you shall provide us with the necessary information to complete any applicable Tax Information reporting and recertify such information from time to time, as may be required by applicable law. If you use our Technology Platform Services, you acknowledge that we may report to the applicable tax and revenue authorities the required Tax Information, including the total amount of payments you received during the relevant reporting period. We also may, but are not obligated to, send to you the Tax Information that is reported. In addition, you shall immediately review any and all Tax Information we provide you with and shall immediately notify us in the event of any mistakes or discrepancies.
INDEMNIFICATION
Unless prohibited by applicable law, you agree to indemnify and defend us and our affiliates (including their respective officers, directors, employees and agents) and hold them harmless against any liabilities, damages and costs (including reasonable attorneys’ fees and final settlement amounts) from any third party claims or legal proceedings (including actions by government authorities) arising out of or relating to: (i) any infringement or misappropriation of the intellectual property of any third party for any User Content you post on the Technology Platform Services, (ii) the items and products you provide to end customers, or make available for sale within the Venmo Food Commerce Hub (including any claims relating to product and food safety or in connection with the sale of the items), (iii) breach of any PCI obligations, any card holder association rules, or the violation of any applicable laws (including any data privacy laws and Tax laws), (iv) any claims from the use of Order Data, (v) the breach of any third party agreements (including the Venmo Services Agreements, Stripe Services Agreement, and any other agreement with a third party), and (vi) any fines, fees, penalties, assessments or other expenses levied by Venmo or its affiliates related to the Payment Processing Services.
RATINGS
You acknowledge and agree that (i) after receiving the purchased items, the end consumer may be prompted to provide customer feedback, and (ii) the Technology Platform Services may allow for communications between you and the end customer. We reserve the right to use, share, and display such feedback and communications in any manner in connection with our and our affiliates’ business, without your attribution or approval. In addition, we may, but shall not be required to, review or monitor any feedback or communications between you and the end customers.
ADDITIONAL COMPLIANCE
We may create and require compliance with additional policies, terms, rules and regulations when participating in the Technology Platform Services. We will provide you with prior written notice before such policies, rules, or regulations take into effect.
INSURANCE
At your sole expense, during the Term, you agree to maintain commercial general liability insurance policy in the amount of at least $1,000,000 per occurrence and $2,000,000 in the annual aggregate (which includes products- completed operations, spoilage, and food borne illness coverage). All policies must name or cover Otter and its affiliates as an additional insured. If we ask, you agree to furnish us with a certificate of insurance in such coverage, such certificate to be in a form reasonably acceptable to us.
DISCLAIMER AND LIMITS OF LIABILITY
IT IS UNDERSTOOD THAT THE OTTER PLATFORM, THE VENMO FOOD COMMERCE HUB, AND THE TECHNOLOGY PLATFORM SERVICES MAY CONTAIN ERRORS, MAY NOT FUNCTION PROPERLY, AND MAY BE INTERRUPTED FROM TIME TO TIME FOR MAINTENANCE, PERIODIC UPDATING, ISSUES WITH PAYMENT PROCESSORS, OR OTHER ACTIONS THAT WE MAY ELECT TO TAKE. THE OTTER PLATFORM AND THE TECHNOLOGY PLATFORM SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE AND OUR AFFILIATES SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. YOUR USE OF THE TECHNOLOGY PLATFORM SERVICES, THE OTTER PLATFORM, AND THE VENMO FOOD COMMERCE HUB IS AT YOUR OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, OUR AND OUR AFFILIATES’ TOTAL LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE TECHNOLOGY PLATFORM SERVICES AND THE OTTER PLATFORM SERVICES SHALL BE LIMITED TO $500. YOU AGREE THAT WE WILL NOT BE RESPONSIBLE FOR YOUR LOSS OF PROFITS, REVENUES, BUSINESS OPPORTUNITIES, GOODWILL, OR ANTICIPATED SAVINGS, INDIRECT OR CONSEQUENTIAL LOSS, OR PUNITIVE DAMAGES IN CONNECTION WITH YOUR USE OF THE TECHNOLOGY PLATFORM SERVICES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
CONFIDENTIALITY
a. Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of each party includes, without limitation, business and marketing plans, technology and technical information, product plans and designs, business processes, and all other non-public information disclosed by such party. The existence of these Terms and any order form(s) (including pricing) will constitute Otter’s Confidential Information and shall not be disclosed without Otter’s prior written consent. The parties must mutually agree on all press related to the Agreement.
b. Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective than those herein. Notwithstanding the foregoing, we may disclose the terms of the Agreement to a contractor or third party to the extent necessary to perform our obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein
c. Exceptions. The confidentiality obligations set forth will not apply to any information that: (a) is or becomes generally available to the public through no fault of Receiving Party; (b) is lawfully provided to Receiving Party by a third party free of any apparent confidentiality duties or obligations; (c) was already known to Receiving Party without restriction at the time of disclosure; or (d) was independently developed by Receiving Party without use or reference to the Confidential Information. Receiving Party may disclose Confidential Information if compelled or required to do so by law or by the order of a court or similar judicial or administrative body, provided that Receiving Party promptly (to the extent legally permitted) notifies Disclosing Party in writing of such required disclosure so that Disclosing Party may, at its own cost and expense, seek an appropriate protective order.
ARBITRATION
Except for claims or disputes related to protecting a party’s intellectual property, each party agrees that any claim or dispute arising out of or relating to these Terms or your use of the Technology Platform Services will be settled by binding arbitration before a single arbitrator, and not in a court of law. The arbitration will be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. A party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Los Angeles, California. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which they deem proper in the circumstances, only to the extent permitted by these Terms, provided that the arbitrator will not have the authority to award exemplary or punitive damages. The arbitrator will award the prevailing party its reasonable attorneys’ fees and expenses. Each party agrees that arbitration will be conducted on an individual, not a class-wide, basis and that any arbitration proceeding between you and us and/or our affiliates will not be consolidated with any other arbitration proceeding involving us or any other person or entity.
MISCELLANEOUS
We reserve the right to modify these Terms at any time. Any changes will be effective immediately upon posting the updated terms on our website or providing notice to you through the Technology Platform Services. Your continued use of the Technology Platform Services after such modifications will constitute your acknowledgment and agreement to the updated terms; provided, however, that any changes to Fees will be subject to the notice provisions in Section 7. We will send all notices required under these Terms to the email address associated with your account. All notices to us must be sent to [email protected]. These Terms, along with any order forms, Data Processing Addendum, and any exhibits attached hereto constitute the entire understanding of the parties, and supersede all prior and related contemporaneous agreements and understandings. You have certain rights under applicable laws that cannot be limited by these Terms or any contract; these Terms will not restrict those rights. If you breach these Terms, and we do not take immediate action in response to your breach, we are not waiving any rights we may have, including the right to take action in the future. If a portion of these Terms is deemed invalid or unenforceable, the remainder of these Terms will remain in effect. These Terms are between only you and us; these Terms do not create any legal rights or obligations for any third party, even if others benefit from that relationship under these Terms. These Terms, including its validity, construction, interpretation and legal effect, shall be governed by the laws of the state of California, without regard to its choice of law rules.
Exhibit A-1 DATA PROCESSING ADDENDUM
This Data Processing Addendum (“DPA”) to the underlying agreement that references or links to this DPA for certain Technology Platform Services (the “Agreement”) is entered into between Restaurant Technology Solutions, LLC (“Otter”) and the customer stated in the Agreement (“Customer”) and reflects the parties’ agreement about the Processing of Personal Data, when applicable, in accordance with the requirements of Data Protection Laws. In event of any conflict or inconsistency between the provisions of the Agreement and DPA, the terms of this DPA shall prevail.
Definitions
“Data Protection Laws” means all applicable laws data privacy and security laws and regulations, including, but not limited to the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), California Consumer Privacy Act of 2018, as amended (“CCPA”), Colorado Privacy Act and related regulations (“CPA”), the Virginia Consumer Data Protection Act (“VCDPA”), and other federal and state United States laws; and Canada’s Personal Information Protection and Electronic Documents Act (“PIPEDA”), Quebec’s Act to Modernise Legislative Provisions As Regards the Protection of Personal Information (“Law 25”), and other federal and provincial Canadian laws, in each case to the extent applicable to Processing of Personal Data carried out pursuant to this DPA; “Personal Data” means information relating to an identified or identifiable natural person, or as otherwise defined by Data Protection Laws; “Processing” and its cognates “Processing,” “Processed,” etc. mean any operation or set of operations performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organization, creating, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction; “Data Subject,” “Controller,” “Processor,” and Processing” shall have the meaning as defined under the GDPR, or the applicable Data Protection Laws. Any capitalized terms not defined herein shall have the respective meanings given to them in the Agreement or the Data Protection Laws, where applicable.
Processing of Personal Data
a. Roles of the Parties. For purposes of the CCPA, Otter and Customer each acknowledge and agree that they are independent “Businesses” with respect to the Personal Data they each collect and process. Each party shall comply with Data Protection Laws and its obligations in connection with the processing of Personal Data. Data Protection Laws may in the future change, or be scheduled to change. In such instances, upon the reasonable request by either party, the parties shall promptly meet to discuss, agree and document appropriate changes to the DPA.
b. Data Requests and Complaints. Each Party acknowledges and agrees that Data Subjects (consumers) may have various rights under Data Protection Laws, including the right to know/access, delete, correct, and opt-out of the sale or sharing of personal data, and opt-out of targeted advertising or profiling. Each Party shall be solely responsible for receiving and responding to Data Subject requests submitted directly to it in accordance with applicable Data Protection Laws. To the extent that either Party receives a Data Subject request that pertains to Personal Data held or processed by the other Party, the receiving Party shall promptly notify the other Party (within 3 business days) and provide reasonable assistance in fulfilling the request, where such assistance is necessary and reasonable given the independent nature of the parties' roles.
c. Obligations of the Parties. Each Party represents and warrants at all times that: (i) it has the necessary right and authority to enter into this DPA and to perform its obligations herein; (ii) its execution and performance under this DPA and the Agreement will not violate any agreement to which it is a party; and (iii) it has provided all required information to Data Subjects. Without limiting the foregoing, each Party will maintain a publicly-accessible privacy policy on its website that is in compliance with Data Privacy Laws. Each Party will notify the other Party in writing of any action or instruction of the other Party under this DPA or the Agreement which, in its opinion, infringes applicable Data Privacy Laws. Subject to this DPA, each Party, acting as a Controller, may Process the Controller Personal Data in accordance with, and for the purposes permitted in, the Agreement. To the extent required by Data Protection Laws, each Party shall conduct data protection assessments or privacy impact assessments for its respective processing activities involving Personal Data, particularly for processing that presents a heightened risk to Data Subjects, such as targeted advertising, profiling, or the processing of sensitive data. Each Party shall be responsible for ensuring its own compliance with such assessment requirements
d. Obligations of Customer. Customer represent and warrant that: (a) Customer will comply with all relevant Data Protection Laws, including all marketing related laws with respect to the content and transmission of calls, emails, texts, and other messages (“Messages”) sent, without limitation, the CAN-SPAM Act, all federal and state telemarketing-related laws, rules and regulations, the Telephone Consumer Protection Act (47 U.S.C. § 227) and the FCC’s implementing regulations (47 C.F.R. § 64.1200) (such laws, rules and regulations, as amended from time to time, collectively, the “Telemarketing Laws”); and (b) except as approved in writing, Customer shall only send Messages through the Technology Platform Services.
Security
Customer will implement reasonable and appropriate technical and organizational measures to ensure a level of security appropriate to the risk posed by the Processing of Personal Data, taking into account the costs of implementation; the nature, scope, context, and purposes of the Processing; and the risk of varying likelihood and severity of harm to the Data Subjects. In assessing the appropriate level of security, Customer shall weigh the risks presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed. If required by Data Protection Laws, upon becoming aware of a Personal Data Breach, if the Customer is obligated by Data Protection Laws, Customer will notify Otter without undue delay (but not later than 24 hrs. after becoming aware of the Personal Data Breach) and will provide information and cooperation relating to the Personal Data Breach as reasonably requested by Otter. “Personal Data Breach” means a breach of security of the Technology Platform Services leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Otter Personal Data.
Data Transfer to Third Parties
In certain circumstances, Customer may request that Otter assist in the transferring of Personal Data to Customer processors or service providers. In such circumstances, Customer hereby directs Otter to process and transfer such Personal Data to third parties of Customer’s choosing. When Personal Data of Canadian residents is transferred or accessed across borders by either Party or its sub-processors, each Party acknowledges its respective accountability for that Personal Data under applicable Canadian Data Protection Laws. Each Party shall ensure that any transfers are carried out in a manner that provides a comparable level of protection to that provided under Canadian Data Protection Laws. In addition, if required under Data Protection Laws, Customer hereby authorizes, appoints, and directs Otter, as agent for Customer, to enter into Controller to Processor Standard Contractual Clauses or any other legal document reasonably necessary for Otter to provide the Technology Platform Services.
Limitation of Liability
To the fullest extent allowed under any Data Protection Law, each party’s and all of its affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA whether in contract, tort or under any other theory of liability, is subject to the “Limits of Liability” section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its affiliates under the Agreement and this DPA. For the avoidance of doubt, Customer’s and its affiliates’ total liability for all claims from the Otter arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and this DPA. If required by Data Protection Laws, Customer shall be liable for the acts and omissions of its sub-processors to the same extent Customer would be liable if performing the services of each sub-processor directly under the terms of this DPA.
Governing Law
The parties agree that (1) governing law of this DPA, and (2) the forum for all disputes in respect of this DPA, shall be the same as set out in the Agreement, unless otherwise required by applicable Data Protection Laws.