TACIT STUDIOS
MERCHANT TERMS OF USE

I ACKNOWLEDGE THAT I HAVE READ AND UNDERSTOOD THESE MERCHANT TERMS OF USE, AND
AGREE TO BE BOUND BY THE TERMS HEREIN.

These Merchant Terms of Use (“Agreement”) apply to the relationship between Tacit Studios LLC, its subsidiaries, and affiliates (collectively, “Tacit Studios” or “Company”) and the merchant using the Company software and/or services described below (“Merchant”). By using Company’s software and/or services, Merchant agrees to the terms of this Agreement. The Agreement is entered into and effective as of the date Merchant uses Tacit Studios software and/or services set forth herein (“Effective Date”).

  1. Rights and Obligations of Company
    1. If requested, Company will:
      1. Enable customers to purchase goods and/or services from Merchant via i) Company’s proprietary ordering, advertising, delivery logistics, and billing system using its associated web-based and mobile properties and apps (the “Merchant Software”); ii) built upon Company’s e-commerce, logistics, and delivery platform (“Platform”).
      2. Include Merchant on the Platform as provided herein, and will enable the transmission of orders to Merchant for pickup and/or delivery (the “Logistics Services”). The Logistics Services, together with the Delivery Services and the POS Services (each as defined below), will be referred to herein as the “Services.”
      3. Connect Merchant with delivery service providers using Company’s Platform (the “Delivery Services”). For clarity, Company does not itself provide delivery or logistics services; instead, Company provides a platform for businesses to connect with delivery service providers to transport orders to customers and to receive information relating thereto. Delivery service providers are independent Platform users who access Company’s proprietary technologies to provide on-demand delivery and logistics services, and such independent contractors control the method and manner in which they deliver orders. Accordingly, Company will not be liable or responsible for any delivery service providers or any errors or misrepresentations made by them.
      4. Connect the Merchant Software and Platform with Merchant’s point-of-sale(“POS”) system (the “POS Services”). Merchant expressly permits Company to have access to, and will ensure Company is an authorized user on, its POS account and Company will be permitted to use Merchant’s POS account and data included therein in order to provide the Services. Company disclaims any and all liability for the availability and operations of the POS Services, and all servicerequests in connection with the POS Services will be directed to the applicable POS provider (as identified on the Services Form) and not Company.
    2. Company owns all right, title, and interest in and to the Merchant Software and the Platform, and any content supplied by Company. Company will have sole editorial control over the Merchant Software and Platform, including the presentation of any content provided by Merchant (“Merchant Content”). Merchant Content may include, without limitation, menus, photographs, trademarks, and logos. For the term of the Agreement and for six (6) months thereafter, Merchant hereby grants to Company a royalty-free, worldwide, sub-licenseable, transferable, fully paid-up, irrevocable right and license to use the Merchant Content in connection with the Merchant Software, Platform, and for marketing and promotional purposes via any means now known or hereinafter developed. Merchant owns all right, title, and interest in and to the Merchant Content, subject to the license granted to Company herein. Company may remove Merchant Content on the Merchant Software or Platform at any time if it believes, in its sole discretion, that such Merchant Content violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Merchant Software and Platform.
    3. TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE ENTERPRISE SOFTWARE, PLATFORM, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND COMPANY WILL NOT BE LIABLE TO ENTERPRISE FOR DAMAGES RESULTING FROM THE FAILURE OF THE ENTERPRISE SOFTWARE, PLATFORM, SERVICES OR ENTERPRISE CONTENT. COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO ENTERPRISE FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. COMPANY’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF FEES EARNED BY COMPANY DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
  2. Additional Rights and Obligations of Merchant
    1. Merchant will maintain the confidentiality of all non-public information that it acquires in the course of performing the Agreement, including without limitation all Customer Data (as defined below), as well as the terms and conditions of the Agreement (collectively, the “Confidential Information”). Merchant will not disclose to any third parties, or use in any way other than as necessary to perform its obligations hereunder, Company’s Confidential Information. Merchant will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective as those set forth herein. Upon expiration or termination of the Agreement and as requested by Company, Merchant will deliver to Company (or destroy at Company’s election) any and all materials or documents containing the Confidential Information, together with all copies thereof in whatever form.
    2. “Customer Data” means (i) any and all information about customers generated or collected by Company or Merchant through the Merchant Software, Platform, or Services, including, but not limited to, customer’s name, delivery address(es), email address(es), phone number(s), and customer preferences and tendencies and (ii) any information that may otherwise be considered “personal data” or “personal information” under applicable law. Merchant acknowledges that all Customer Data is the sole and exclusive property of Company. Accordingly, Merchant will use Customer Data for the sole purpose of fulfilling applicable customer orders or otherwise satisfying Merchant’s obligations hereunder. Merchant (and any other persons to whom Merchant provides any Customer Data only as necessary to perform the Agreement) will  implement and maintain comprehensive administrative, physical, and technical safeguards in accordance with current best practices in Merchant’s industry in order to protect, handle, and secure Customer Data. Merchant will also be responsible for any breach of this provision by any third-party service provider engaged by Merchant. Merchant will notify Company in a secure manner immediately upon a data security breach or any reasonable suspicion thereof or any other unauthorized disclosure of Confidential Information, and assist and cooperate with Company concerning any remedial measures and any disclosures to affected parties, in each case as requested by Company or required under applicable law.
    3. Merchant agrees that its use of the Merchant Software, Platform, and Services is subject to the Company Terms of Use as in effect at the time (available at https://www.tacitstudios.com/legal/merchant/terms-of-use), and further agrees that Merchant’s access to and use of Customer Data will be subject to the Company Privacy Policy as in effect at the time (available at https://www.tacitstudios.com/legal/merchant/privacy-policy).
    4. Merchant represents, warrants and covenants: (i) it has the authority to enter into the Agreement and to grant the rights granted hereunder, and doing so will not violate any other agreement to which it is a party; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) the Merchant Content will not infringe or otherwise violate the rights of any third party; (iv) it will comply with all applicable retail food, beverage (including alcohol) or other health and safety codes, rules or regulations, as well as any other laws applicable to its business (including without limitation the obligation to pay tips to delivery and other workers, if any); (v) it will provide accurate tax rates and calculations to Company; and (vi) it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms. In the event that Merchant includes alcohol in its menu on the Merchant Software or Platform, Merchant further represents and warrants that it maintains a valid and active liquor license and all other applicable licenses, permits and registrations for the sale, distribution and (if applicable) delivery of alcohol (collectively, “Liquor Licenses”). Merchant will provide Company with a copy of the Liquor Licenses and all renewals thereof, and will immediately notify Company if any Liquor License is not renewed or is revoked, canceled, or surrendered at any time during the Term.
    5. Merchant will indemnify and hold Company (including its directors, employees, officers, agents) harmless from any and all claims, actions, proceedings, and damages arising out of Merchant’s activities, including, without limitation, (i) any third-party transactions or financing arrangement; (ii) Merchant’s provision, calculation, reporting or remission of taxes; or (iii) any breach or alleged breach of the representations, warranties or covenants set forth in the Agreement. Company will provide prompt notice to Merchant of any potential claim subject to indemnification hereunder. Merchant will assume the defense of the claim through counsel designated by it and reasonably acceptable to Company, provided that Company may use counsel of its choice at its own expense. Merchant will not settle or compromise any claim or consent to the entry of any judgment without the written consent of Company, which will not be unreasonably withheld. Company will reasonably cooperate with Merchant in the defense of the claim, at Merchant’s expense.
  3. Payment Terms
    In consideration for Merchant’s access to the applicable Merchant Software, Platform, and/or Services, Merchant will pay to Company a monthly software subscription fee and/or a delivery fee for the delivery service providers to be collected by Company (collectively, the “Fees”). Subscription fees will be charged in advance on a monthly basis. Delivery fees are recommended by the Platform on a per-order-basis; though the Merchant and delivery service provider can mutually agree to a lower delivery fee. Merchant is responsible for collecting and remitting delivery fees and tips to Company on a daily or weekly basis, as the case may be.
  4. Term
    Unless otherwise agreed in the Company Merchant Services Form, this Agreement may be canceled as follows:

    1. By Merchant for any reason (or no reason) upon thirty (30) days’ prior written notice to Company.
    2. By Merchant in the event of a material breach of this Agreement which is not cured after seven (7) days prior written notice of said breach.
    3. By Company for any reason (or no reason) upon three (3) days prior written notice to Merchant.
  5. Governing Law and Dispute Resolution
    THIS SECTION ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS THE ENTERPRISE’S LEGAL RIGHTS. PLEASE READ IT.THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE CAYMAN ISLANDS WITHOUT REGARD TO ITS CONFLICTS OF LAW RULES, NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY PARTY.Merchant and Company agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties areresponsible for their own attorneys’ fees. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard, or arbitrated as a class or collective action (“Class Action Waiver”).
  6. Miscellaneous Terms
    Company and Merchant are independent contractors, and nothing herein may be construed to create any agency, partnership, or joint venture between them. Notwithstanding anything to the contrary, neither party has any authority of any kind to bind the other party in any respect whatsoever. The Agreement are not intended to benefit, nor will it be deemed to give rise to, any rights in any third party. No ambiguity will be construed against any party based upon a claim that such party drafted the ambiguous language. The Agreement and any other agreements or terms incorporated herein by reference, constitute the entire agreement between the parties and supersedes any prior understanding (written or oral) on the subject matter hereof. In the event of any conflict between the Agreement and any of the Company Terms of Use, or the Company Privacy Policy, the terms of the Agreement will control; in the event of any conflict between the terms of the Services Form and these Terms, the terms of the Services Form will control. Company hereby reserves the right to update and modify these Terms at any time at its sole discretion. It is Merchant’s responsibility to review these Terms periodically to ensure compliance. The Agreement may not be amended by Merchant unless such amendment is signed by an authorized representative of Company. If any provision of the Agreement is found by a court of competent jurisdiction to be invalid or unenforceable, then that provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. The parties acknowledge and agree that each party has reviewed, revised, and has been given the opportunity to have counsel review and revise, these Terms and that any rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of these Terms or any amendments, appendices, exhibits, or schedules thereto.In the event of a breach, in addition to any remedies at law or in equity, the non-breaching party will be entitled to seek specific performance and immediate injunctive relief. Failure by either party to require performance or claim breach will not be construed as a waiver. A party will not be liable for any failure of or delay in the performance of the Agreement for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders or any other force majeure event. Merchant may not assign the Agreement without the prior written consent of Company, and if permission is secured, the assignor will provide Company with advance written notice so that payment can be directed appropriately. Any assignment by Merchant in violation of this provision will be deemed a nullity. Company may freely assign the Agreement. The Agreement will be binding on the parties’ permitted heirs, successors, and assigns. Any dispute, controversy or proceeding arising out of or relating to the Agreement or the relationship between the parties hereto will be governed by in accordance with the terms of the Agreement. This Section 6, the customer data, ownership, confidentiality, indemnity, limitation of liability and arbitration provisions and any other terms required for the full interpretation of the Agreement following expiration or termination will survive any expiration or termination of the Agreement. If applicable, these Terms may be signed in counterparts, each of which is deemed to be an original, but which together constitute one and the same instrument. Copies of signatures sent by facsimile or by PDF scan/email transmission are deemed to be originals for purposes of execution and proof of these Terms.