Brand Program - RaaS

Brandprogram LaaS

RAAS

BRAND PROGRAM AGREEMENT

This BRAND PROGRAM AGREEMENT (this “Agreement”) is made and entered into as of the date set forth in the Addendum (the “Addendum”) between the parties of even date herewith and incorporated herein (the “Effective Date”) by and between Restaurant as a Service, LLC, a Delaware limited liability company (“RaaS”) and the Partner set forth in the Addendum with reference to the following mutual understandings:

RECITALS

  1. Partner operates that certain business located at the address as more specifically set forth in the Addendum (each a “Partner Location”);
  2. RaaS has developed, owns and/or controls the intellectual property relating to certain RaaS Brands (as defined below) in connection with the operation of RaaS Branded Stores (as defined below), has developed and or has access to
    1. a network of customers and affiliates (“Customers”),
    2. certain proprietary business methods to market and sell alcohol and convenience items (collectively, the “Products”), and
    3. website and smart phone application technologies, and related marketing and other services (collectively, the “Services”)
  3. RaaS and Partner desire to enter into an arrangement whereby Partner shall have the exclusive rights within the Protected Territory to prepare, sell and fulfill certain RaaS Brands and products as more specifically set forth on the Addendum (the “Addendum”) hereto (the “Licensed Products”), for delivery through native or third party Delivery Platforms as directed by RaaS;
  4. By Executing the Addendum the Parties agree to be bound by the terms and conditions herein, as more specifically outlined in the Addendum;

NOW, THEREFORE, for the mutual promises, representations and warranties and other good and valuable consideration set forth herein, the receipt and sufficiency of which is hereby acknowledged and shall not be disputed, the Parties hereby agree as follows:

AGREEMENT

  1. Definitions. In addition to other terms defined elsewhere in this Agreement, the following terms shall have the meaning set forth below:

    1. “Additional Fees” means any additional fees which RaaS may implement from time to time upon written notice to the Partner, including but not limited to upfront fees, annual fees, retention fees or other fees collected by RaaS to cover (i) costs of operating the RaaS platform, including delivery platform fees, commissions, or related charges collected by the Delivery Platform (or in the case of native delivery platforms, the actual cost to RaaS associated therewith), (ii) any costs associated with the implementation or use by Partner of the Sales Platform, including but not limited to any hardware damage, restocking, termination or other fees associated with the Sales Platform or passed through to RaaS by the Sales Platform partner or (iii) promoting the RaaS or Partner Products on the Delivery Platforms including promotional fees or similar fees which may be determined by RaaS and passed through to the Partner hereunder.

    2. “Applicable Law” means any applicable federal, state, local, or other law, rule, regulation, ordinance, or the like whatsoever, including, without limitation, all applicable health and safety and employment and labor laws.

    3. “Collected Revenue” means the amount collected by RaaS or Partner from the Delivery Platform or native ordering channels for consumer’s purchase of the Products, excluding delivery fees, sales and similar taxes.

    4. “Confidential Information” means any and all technical and non-technical information disclosed by RaaS or its affiliates to Partner, or otherwise acquired by Partner in connection with this Agreement, including, without limitation: (a) the terms and conditions of this Agreement; (b) trade secrets; (c) business or operational information, ideas, techniques, business methods, business plans, know-how, processes, procedures, software programs, customer lists, marketing plans, information regarding future products and/or services, specifications, vendors, business relationships, and (d) all other information that Partner knew or should have reasonably known under the circumstances was Confidential Information.

    5. “Deemed Aggregate Revenue” means the Collected Revenue for all Products sold by Partner during the prior month from a RaaS Branded Store. Deemed Aggregate Revenue excludes any taxes collected from the consumer.

    6. “Delivery Platform” means the applicable native or third-party online food ordering or delivery platform either via website or mobile web platform

    7. “Intellectual Property” shall mean all worldwide rights in and to intellectual property, including without limitation rights to inventions, trade secrets, know-how, technology, research tools, data, software, improvements and rights of authorship and attribution, whether or not protected by patents or copyrights, and including, without limitation, any Recipes, trade secrets, vendor information, methods, processes, training techniques, patent applications, patents, trade secret rights, copyrights, trademarks, good will and other exclusive or non-exclusive rights pertaining to intellectual property owned or controlled by RaaS.

    8. “License Fee” means an amount equal to (a) the percentage identified on the Addendum hereto, multiplied by (b) the amount of Deemed Aggregate Revenue (as defined above) achieved with respect to sales of Products from a RaaS Branded Store.

    9. “Marketing Fee” means an amount equal to (a) the percentage identified on the Addendum hereto, multiplied by (b) the amount of Deemed Aggregate Revenue (as defined below) achieved with respect to sales of Products from a RaaS Branded Store.

    10. “Network Partner” means a third party that has contracted with RaaS to prepare RaaS Branded Products.

    11. “New Products” means the products and services offered for sale (including recipes for such products or services, as applicable) by (a) RaaS, including by any RaaS Branded Store (but excluding the Partner Products) or (b) any Branding Partner other than Partner.

    12. “Personal Information and Data” means any information or data obtained from or provided by Partner pursuant to this Agreement including the various platforms hereunder that (i) identifies or can be used to identify an individual (including names, telephone numbers, addresses, signatures, email addresses, and/or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including name, contact information, precise location information, access credentials, persistent identifiers, and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).

    13. “Partner Assets” means (a) Partner’s Intellectual Property (b) Partner’s name and description, (c) Partner’s photos or other images; (d) the nutritional and caloric information and data, in, to and for Partner Products.

    14. “Partner Products” means collectively and as applicable, the products and services offered for sale (including recipes for such products or services, as applicable) on Partner’s menu from time to time.

    15. “Protected Territory” means a geographic area within (i) a half (0.5) mile radius from the physical location of Partner within an Urban territory, (ii) a two (2) mile radius from the physical location of Partner within a Suburban territory, which urban/suburban designation shall be set forth on the Addendum or (iii) such other area as may be more specifically set forth on the Addendum.

    16. “RaaS Branded Products” means the products and services offered for sale (including Recipes for such products or services, as applicable) by (a) RaaS, including by any RaaS Branded Store or (b) any Network Partner.

    17. “RaaS Brands” means all Intellectual Property, proprietary, and other property rights owned or used by RaaS or its affiliates in connection with a RaaS Branded Stores, and the products and services marketed and distributed thereunder.

    18. “RaaS Branded Store” means a virtual store or restaurant marketed and distributed by RaaS (or another Network Partner) under one or more RaaS Brands on one or more online ordering and delivery platforms that feature one or more third-party products and sometimes sold as a single unit.

    19. “RaaS Fees” means the License Fee, the Marketing Fee, the Software Fees, and any Additional Fees which may be prescribed by RaaS from time to time as set forth herein.

    20. “Recipes” means RaaS’ proprietary recipes and food preparation knowledge for the Licensed Products.

    21. “Refunds” means refunds, credits, chargebacks, penalty charges, or any retrieval costs incurred by RaaS in connection with an order issue (including, order delay or error). Refunds excludes any issue caused solely by RaaS’s gross negligence or willful misconduct.

    22. “Software Fees” means a software fee of twenty four dollars and ninety cents ($24.90) for tablet only or twenty nine dollars and ninety cents ($29.90) for tablet plus printer, per week commencing during the initial weeks payout, and which may be increased or decreased from time to time in RaaS’ sole discretion upon written notice to Partner.

    23. “Startup Fee” means an amount equal to (a) the percentage identified on the Addendum hereto, multiplied by (b) the amount of Deemed Aggregate Revenue (as defined above) achieved with respect to sales of Products from a RaaS Branded Store.

    24. “White-label Products” means Partner Products that have been rebranded by RaaS as part of the White Label model set forth in Section 2.2 herein, in accordance with this Agreement.

  2. Partnership Models. Subject at all times to the License granted below and other restrictions and limitations herein, Partner shall have the right to prepare, package, sell and/or fulfill the Licensed Products by means of one or more of the various partnership models as set forth below, in each case at the direction of RaaS as more specifically set forth next to each Licensed Product on the Addendum hereto or as may be communicated by RaaS to Partner in writing from time to time during the Term:

    1. Fully Integrated Model.  Partner shall utilize all of and only the RaaS Intellectual Property relating to such Partner Product, including but not limited RaaS’ Recipes, ingredients, vendors, process, and packaging and must strictly adhere to RaaS instructions in connection with the preparations and packaging thereof.  Partner shall prepare package and fulfill orders only through Delivery Platforms.
    2. White Label Model. Partner shall utilize Partner’s own products, ingredients, recipes and processes (the “Partner Products”) to prepare the ordered RaaS items but must package such products in the applicable RaaS packaging.
  3. Licensed Rights; Use of Marks, Quality Control.

    1. License. Subject to the terms and conditions contained in this Agreement, and to all restrictions and limitations herein, RaaS hereby grants to Partner a limited and specific license, during the Term and in the Protected Territory to utilize the RaaS Intellectual Property only to prepare, package, sell and/or fulfill orders of the RaaS Brands included in the Licensed Products as set forth herein. Partner shall not utilize the RaaS Intellectual Property in any manner not specifically authorized under this Agreement, and all other rights not specifically granted herein, shall not be included in the License and are hereby expressly reserved by RaaS.

    2. Use of Marks.  All uses by Partner of the RaaS Intellectual Property, along with the trademarks, service marks and logos (collectively, the “Marks”) shall be in strict compliance with all rules established by RaaS and in a manner designed to enhance the good will associated with the Intellectual Property.  Partner shall only utilize the Marks in the exact form and design provided to Partner by RaaS, and Partner shall not change, alter or modify the Marks without the prior written approval of RaaS in each instance.  Subject to the RaaS approval rights herein, the Marks may be displayed in all advertising, promotional and marketing materials (“Advertising Materials”) whether in print or digital form, in a manner to be approved by RaaS.  All Advertising Materials shall be submitted to RaaS for prior written approval before dissemination to the public. In the event RaaS does not respond in writing to any approval request hereunder within ten (10) days of receipt of the request, RaaS shall be deemed to have dis-approved of such use.

    3. Quality Control. In order to maintain the standards of quality associated with the Marks, Recipes an d other RaaS Intellectual Property, Partner shall strictly adhere to all quality standards communicated by RaaS during the Term.  In connection with any partnership model that requires Partner to prepare the Licensed Products utilizing the RaaS Intellectual Property, Partner shall only purchase ingredients and supplies designated and approved by RaaS.  Partner shall not deviate from any Recipe in any manner without the prior written consent of RaaS.  RaaS or any representative thereof shall have the right to inspect the Location from time to time during regular business hours, without prior notice, to ensure that Partner is maintaining all standards of quality associated with the Marks and the Recipes.  To the extent that Partner does not adhere to quality standards hereunder, upon written notice by RaaS to Partner detailing such non-adherence, Partner shall as soon as commercially reasonable, address and cure such non-adherence issues.  If Partner fails to cure such non-adherence issues hereunder, such failure shall be deemed a material breach of this Agreement.

    4. Partner hereby appoints RaaS as its agent for the purposes of advertising, marketing, and facilitating the sale and delivery of Partner Products as set forth in this Agreement. Partner hereby grants to RaaS an irrevocable, worldwide, royalty-free, non-exclusive right to (a) sell the Partner Products and (b) use any Partner Assets in connection with such marketing and electronic distribution of the Partner Products. Each Partner Product may be marketed and distributed by RaaS, as an agent for Partner, in RaaS’s sole discretion under any RaaS Branded Store and at such price as RaaS sets from time to time (the “Retail Price”). RaaS may, but is not required to, use any of the Partner Assets in connection with marketing such Partner Product.

    5. Partner shall promptly prepare, cook and package each Licensed Product so ordered in the same manner as Partner prepares, cooks and packages sales of the same products by Partner directly, subject in all cases to such alterations with respect to preparation and packaging (including without limitation recipes and ingredients) as RaaS may prescribe to Partner in writing from time to time, including but not limited to any promotions or other third party materials or packaging which may be required by RaaS from time to time. To the extent required by applicable law, Partner will provide all necessary ingredient, allergen and caloric information for each Licensed Product.

    6. In addition to requesting Partner prepare, cook and package Licensed Products, RaaS may request Partner prepare, cook and package New Products which are then sold by a RaaS Branded Store. Partner shall promptly prepare, cook and package each New Product in accordance with RaaS’s instructions. RaaS may, but is not required to, use any of the Partner Assets in connection with such New Products. RaaS hereby grants to Partner a revocable, royalty-free, non-exclusive right under RaaS’s Intellectual Property in New Product, during the Term, solely to prepare, cook and package the New Product for the benefit of RaaS. In the event Partner needs to purchase ingredients or other supplies in order to prepare, cook or package any New Products pursuant to this paragraph and this Agreement, then Partner must purchase the same directly from the RaaS or third party vendors identified to Partner.

    7. Partner shall not change any of the Licensed Products (including with respect to the ingredients, composition thereof, or the Retail Price prescribed by RaaS), add or remove products or services from Partner’s menu, or the Partner Assets, except with 30 days’ prior written notice to RaaS. Partner is solely responsible for all Refunds. The parties agree that although RaaS may operate the RaaS Branded Store as a platform for the sale of Partner Products, RaaS is merely an agent of Partner in connection with such sale.

    8. Partner shall have the exclusive rights to sell the Licensed Products in the Protected Territory, such that RaaS will not enter into Brand Program Agreements with another Network Partner that is physically located within the Protected Territory during the Term, provided however, that Partner understands and agrees that (i) nothing herein shall restrict RaaS from contracting with Network Partners to sell any other RaaS Brands, RaaS Branded Products or other products, within the Protected Territory and (ii) the Protected Territory relates only to the boundaries around the physical locations of Network Partners within which RaaS cannot contract as set forth herein, and does not address delivery radiuses that any particular Network Partner or Delivery Platform may implement from time to time (“Delivery Radius”), which Delivery Radiuses are outside of RaaS’ control and may overlap.

    9. In order to effectively facilitate online orders, RaaS will utilize Stripe as a third-party payment facilitator for purposes of facilitating sales and reporting of the Products that the Partner must utilize and that may or may not include a tablet, a printer, or both (the “Sales Platform”) And Partner is obligated to use the same in connection with the sale of any products under this Agreement. While RaaS may provide these hardware items at no cost to the partner at RaaS’ sole discretion, the partner will be responsible for the maintenance and upkeep of the hardware and RaaS reserves the right to bill the partner if any replacement hardware is ever needed as well as any fees upon termination in the event the hardware is not returned, as more specifically set forth below. This includes both lost or broken hardware. Partner also agrees that when requested by any third-party software or hardware service provider, Partner shall enter into and consent to such third party’s data waiver forms as a condition to the effectiveness of this Agreement. By entering into this Agreement, Partner acknowledges that it has read and agrees to the terms of the Stripe Connected Account Agreement which can be found here: https://stripe.com/connect-account/legal. Failure to use the Sales Platform as required herein without the written consent of RaaS shall be a material breach of this Agreement.

    10. Sale of Alcohol Items through Uber Eats. To the extent Partner is selling and/or delivering any alcoholic beverages (“Alcohol Items”) or other age restricted items, it is Partner’s responsibility to verify the age and identity of the Customer and confirm that the Customer is not intoxicated when delivering Alcohol Items to the Customer (for the Partner or RaaS managed delivery sales channel) or when the Customer picks up the alcohol from Partner (for the Non-Delivery Sales Channel). Partner disclaims Portier and its affiliates (including Uber) from any and all liability related to Partner’s noncompliant delivery of Alcohol Items via these Sales Channels. In addition, any Partner selling Alcohol Items shall expressly review and agree to the terms of the Uber Eats Merchant Addendum and the Alcohol Addendum found here: https://raas.com/brand-program/ubereats and Grubhub Alcohol Terms found here: https://raas.com/brand-program/grubhub and Partner shall fully indemnify RaaS from and against any breaches of any of such terms thereof by Partner.

  4. Term; Termination. The initial term of this Agreement shall commence on the Effective Date and shall continue  for one  (1) year unless earlier until terminated in accordance with this Agreement (the “Initial Term”). Unless earlier terminated by either party as set forth herein, the Initial Term shall automatically renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”).  RaaS may terminate this Agreement for any or no reason with twenty four (4) hours’ notice to the Partner (email sufficient). Either party may terminate this Agreement in the event of a material breach by the other party, which remains uncured after thirty (30) days’ written notice of such breach. Upon termination of this Agreement, Partner shall (a) return all RaaS property and Confidential Information in Partner’s possession, and (b) submit a final invoice to RaaS. Outstanding payment obligations and Sections 1, 7, 8, 9, 11, 12, and 13-21 of this Agreement shall survive any termination of this Agreement.

  5. Payments to Partner; Fees to RaaS.
    1.  As consideration for the License and other rights granted hereunder, Partner shall pay the RaaS Fees to RaaS as set forth in this Agreement. The specific RaaS Fees owed in connection with the products hereunder are more specifically set forth on the Addendum hereto.

    2. Revenue from sales of the products through the Delivery Platforms or native ordering channels may be collected by RaaS, on behalf of Partner, or directly by Partner. RaaS shall endeavor to have all payment for any Products sold by Partner pursuant to this Agreement to be paid directly to RaaS by the Delivery Platforms or native ordering channels, and Partner shall take whatever steps necessary to authorize and effect the same. All Collected Revenue from In-Person dining shall be collected by Partner directly. On the payment schedule set forth herein, as applicable, the party that received payment form the Delivery Platform shall pay to the other the Fees required herein. In the event RaaS receives payment from the Delivery Platform, RaaS shall pay Partner an amount (hereinafter, the “Partner Payment”) equal to (a) the Deemed Aggregate Revenue plus any taxes collected by RaaS from the Delivery Platform (which Partner is responsible for paying pursuant to this Agreement), minus (b) Refunds; and (c) the RaaS Fees (which RaaS shall be entitled to receive and retain from the amounts payable to Partner). In the event the Partner receives the payment for the Products directly from the Delivery Platform or In-Person Dining, it shall remit the RaaS Fees to RaaS as set forth herein. The Partner Payment is exclusive of all applicable taxes. Partner shall be the seller with respect to the sale of any Partner Products, Licensed Product or New Product, and Partner agrees to be responsible for the payment of any taxes assessed in connection therewith, including, but not limited to, all sales, use, VAT or similar taxes. Upon RaaS’s request, Partner shall provide RaaS with copies of evidence of remittance to the appropriate agency(ies) of all sales, use, VAT and similar taxes. Subject to the foregoing, each party shall be responsible for the payment of its own tax liability arising from this Agreement. RaaS shall have the right to immediately terminate this Agreement in the event Partner failed (or there is a credible allegation that Partner failed) to pay any such taxes.

    3. Payments via Sales Platform. All payments for products sold hereunder shall be made and managed through the Sales Platform and subject to the Stripe Connected Account Agreement. Partner expressly understands and agrees that any amounts owed to RaaS hereunder may be either deducted directly by RaaS through Partner’s connected bank account or deducted by RaaS prior to any distributions to Partner hereunder.

    4. Payment for Alcohol Items.
      1. Via Uber Eats App.  Partner instructs Portier (including its affiliates for purposes of this clause) to (i) collect payments for Alcohol Items that Customers purchase from Merchant and or our Licensee via the Uber Eats App (“Customer Payments”) on RaaS or Partner’s behalf into an FBO account held for the benefit of RaaS and/or Partner, as applicable, and other merchants who sell Alcohol Items on the Uber Eats App (the “FBO Alcohol Account”); (ii) then transfer, on RaaS’ behalf, Customer Payments from the FBO Alcohol Account to the bank account that RaaS provides to Portier (“Merchant Account”); (iii) withhold from Customer Payments any fees or obligations owed to Portier, and withhold from Customer Payments, and then deliver to, any fees or obligations owed to the Delivery Person.
      2. Via Other Third Party or Native Ordering Platforms. In the Event RaaS utilizes other third party or native ordering platforms, including but not limited to pinkdot.com, Partner understands and agrees that RaaS may collect the funds on behalf of Partner in an FBO account and disperse to Partner in the same fashion as Uber Eats. 

    5. Inspection and Audit:  In the event of a material breach of this Agreement by Partner (and for up to six (6) months from the date RaaS provides written notice to Partner of such breach), RaaS shall have the right upon fourteen (14) days written notice to inspect the books and records of Partner insofar as same pertains to the Products only, including Collected Revenue, calculation of RaaS Fees and other matters hereunder.  The cost and expense of any such audit shall be borne by RaaS, unless such audit reveals any underpayments by Partner to RaaS in excess of five percent (5%) of the actual amounts due to RaaS, in which event Partner shall pay for the reasonable documented costs and expenses of such audit.  In the event of any underpayment being determined, then, without prejudice to or limitation of any of RaaS’ other rights and remedies, Partner shall promptly pay to RaaS the amount underpaid. Operating Expenses:  For the avoidance of doubt, RaaS shall not be liable for any costs or expenses of Partner in connection with Partner’s performance under this Agreement or otherwise, including, without limitation, legal fees and court costs relating to operations; computer hardware and software acquisition costs; license fees and other maintenance and consulting fees; wages, salary and fringe benefits costs for employees; insurance premium payments; accounting, legal, and consulting fees, including fees related to preparation of tax returns, financial and tax audits, investigations and other claims; lease expenses and real estate obligations; equipment acquisition, lease and maintenance costs; product and supply costs; and utilities.

    6. Operating Expenses:  For the avoidance of doubt, RaaS shall not be liable for any costs or expenses of Partner in connection with Partner’s performance under this Agreement or otherwise, including, without limitation, legal fees and court costs relating to operations; computer hardware and software acquisition costs; license fees and other maintenance and consulting fees; wages, salary and fringe benefits costs for employees; insurance premium payments; accounting, legal, and consulting fees, including fees related to preparation of tax returns, financial and tax audits, investigations and other claims; lease expenses and real estate obligations; equipment acquisition, lease and maintenance costs; product and supply costs; and utilities.

    7. Right to Offset; Deduction.  Without prejudice or limitation of RaaS’ other rights and remedies, RaaS shall have the right to withhold, deduct and offset any amounts it may owe to Partner hereunder for any shortfalls or other amounts owed by not paid by Partner to RaaS hereunder.

    8. Sales Platform Fees Upon Termination.  Upon notice of termination of this Agreement by either party for any reason, RaaS shall charge a fee of $200 for each tablet utilized by Partner and $100 for each printer utilized by Partner.  Partner will be charged at the time of cancellation and once we confirm receipt of the applicable Sales Platform hardware, RaaS shall credit Partner the full amount of such hardware fees minus (i) the Stripe processing fees of 1.5% and (ii) any other fees RaaS reasonably determines is required to fix any damage to the hardware caused by Partner. Upon termination, Partner will be provided a self-addressed stamped return label for the return shipping of any hardware covering the cost of any such return. In addition, to the extent Partner has a promotional period term identified on their license addendum, thn if Partner terminates this Agreement prior to the expiration of such promotional period, then RaaS shall charge Partner an additional $300 hardware restocking fee.
  6. Representations and Warranties by Partner. Partner represents and warrants to RaaS that: (a) it has the full right, power and authority to: (i) enter into this Agreement, (ii) grant all licenses and other rights it has granted under this Agreement to RaaS, and (iii) perform its obligations under this Agreement; (b) each Product shall be prepared with high quality ingredients in accordance with all applicable food safety standards and regulations, and will conform to the samples to which Partner provided to RaaS; (c) the Products are not and will not be adulterated or misbranded within the meaning of Applicable Law and will be merchantable; (d) the weights, measures, sizes, nutritional, allergen and caloric information (to the extent applicable), and other particulars stamped or printed on the Products and/or their containers or accompanying the Products on or in connection with all menus shall comply with all Applicable Laws and regulations; (e) without limiting the foregoing, the Partner Assets that depict, describe or analyze Products are accurate, correct and complete in all material respects; (f) the Products and Partner Assets do not and will not infringe upon any patent, trademark, copyright, publicity right, or other similar right of any other person; (g) entering into and performing under this Agreement will not cause Partner to violate any law, rule, regulation, third-party right, or contract by which it is bound; and (h) Partner will comply with all Applicable Laws in its performance of the Agreement, including, without limitation, all tax, consumer privacy and data protection laws.
  7. Indemnification. Partner shall, at its sole expense, indemnify, defend and hold RaaS and its parent, affiliates, and subsidiaries, and their respective employees, agents, directors, officers, shareholders, members, and representatives (collectively, “Indemnitees”) harmless from and against any and all losses, damages, liabilities, costs, and expenses (including attorneys’ fees and costs) (collectively, “Losses”) incurred in connection with any judicial or non-judicial claim, action, demand, suit or proceeding (collectively, “Claims”) brought against an Indemnitee insofar as such Claim is based upon allegations: (a) relating to the Partner’s business, the Products or the Partner Assets (including, without limitation, claims relating to food safety or taxes owed in connection with the sale of the Products or from the sale of any Alcohol Items, including but not limited to any breaches by Partner of the terms of the Uber Eats Merchant Addendum and Alcohol Addendum incorporated herein); (b) of illness, injury, death, or damage as a result of the consumption or use of any Product; (c) risks against which Partner is insured or required to be insured against hereunder, pursuant to insurance policies carried by Partner which are in force or are required to be in force at the time of the loss or damage; or (d) that, if true, would constitute a breach by Partner of this Agreement or  a breach of the terms of the Uber Eats Merchant Addendum and Alcohol Addendum incorporated herein. Partner may not settle or otherwise dispose of any Claim against an Indemnitee without RaaS’ prior written approval. Partner hereby releases RaaS, RaaS’s employees and representatives, or anyone claiming by, under or through them, by way of subrogation or otherwise, for any loss or damage to Facility caused by or resulting from risks against which Partner is insured or required to be insured against hereunder, pursuant to insurance policies carried by Partner which are in force or are required to be in force at the time of the loss or damage, and to the full extent possible waives all rights of subrogation which may pass to its insurance underwriters. This Section 6 does not affect RaaS’s liability for death or personal injury arising from its own negligence, nor its liability for any other liability which cannot be excluded or limited under applicable law.
  8. Insurance. Partner, at its sole expense, agrees that throughout the Term, and for six months thereafter, to maintain: (a) commercial general liability insurance policy in the amount of at least $1,000,000 per occurrence and $2,000,000 in the annual aggregate; and (b) food borne illness insurance in such amounts as RaaS shall require from time to time. All insurance maintained by Partner shall (i) name RaaS as an additional insured under such policies; (ii) be in a form reasonably satisfactory to RaaS, with an insurance carrier reasonably satisfactory to RaaS; and (iii) be primary insurance and any insurance carried by RaaS or its affiliates shall be excess insurance only. All such insurance shall be subject to modification or cancellation only upon ten (10) days’ notice to each certificate holder. Partner, promptly following RaaS’s request, shall furnish RaaS with a certificate of insurance in such coverage, such certificate to be in a form acceptable to RaaS.
  9. Confidentiality. Partner acknowledges that it may learn Confidential Information (as defined below) prior to or after the date of this Agreement. Partner agrees that it will hold in strict confidence and not disclose to any third party any Confidential Information and will use the Confidential Information for no purpose other than in connection with its business dealings with RaaS and its affiliates. Partner shall protect the confidentiality of the Confidential Information with the same degree of care used to protect Partner’s confidential information, but no less than a reasonable degree of care and Partner shall limit access to the Confidential Information to only those of its employees, lawyers and accountants having a need to know the Confidential Information and who have signed confidentiality agreements containing, or are otherwise bound by, confidentiality obligations at least as restrictive as those contained herein. Partner shall be responsible for any breach of this Section by its employees, lawyers and accountants. Partner may disclose the RaaS’s Confidential Information if required by applicable law or regulation, provided that Partner, to the extent legally permissible, gives the RaaS written notice of such required disclosure and reasonably assists the RaaS in protecting, preventing or limiting such disclosure at the RaaS’s expense. The Partner shall only disclose that portion of the Confidential Information as legally required for disclosure, and shall exercise all reasonable efforts to receive confidential treatment for such Confidential Information. The terms of this Section shall survive the expiration or termination of this Agreement.
  10. No Franchise Intended.  The Parties agree and acknowledge that both the state and federal governments have laws, rules and regulations concerning the establishment of franchises.  The rights granted to Partner hereunder have been drawn without any intent that the grant of such rights constitutes a franchise under applicable California or federal law.  It is the intent of this Agreement merely to grant Partner a right to sell a product under a trade name and mark, and that the Location shall be independently owned and operated by Partner and Partner further acknowledges that there have been no representations or warranties whatsoever by RaaS that the rights granted herein shall be profitable.  In the event that either state or federal laws or regulations require that, in order for the Parties to be incompliance therewith, this Agreement shall be amended to conform to any such laws or regulations, then the Parties hereto agree that each will execute any such required amendments to this Agreement.  If RaaS desires to file a Notice of a Transaction Exempt under Corporations Code Section 31106, Partner shall fully cooperate with RaaS and execute and deliver all reasonable documents necessary or appropriate to support such exemption.  In the event that any government agency or person alleges or it is determined that this Agreement and the transactions subject hereto require compliance with state or federal laws or regulations regarding franchises, then either Party shall have the right, upon written notice to the other, to terminate this Agreement and each Party shall waive and release any and all claims it or he may have against the other arising out of any non-compliance.
  11. Exclusion of Damages; Limitation of Liability. COMPANY WILL NOT BE LIABLE TO PARTNER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR SIMILAR DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, REGARDLESS OF THE CAUSE OF ACTION UPON WHICH THEY ARE BASED, INCLUDING CLAIMS FOR LOSS OF GOODWILL OR LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. THE TOTAL, AGGREGATE LIABILITY OF COMPANY IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE COMPANY COMMISSION RETAINED BY COMPANY IN THE THREE MONTHS PRECEDING THE CLAIM.
  12. Intellectual Property.

    1. Partner acknowledges that, as between Partner and RaaS, RaaS owns all right, title, and interest, including all Intellectual Property, in and to the Confidential Information, RaaS Brands, RaaS Branded Stores, New Products (including, without limitation, any Recipes, trade secrets, vendor information, methods, processes, training techniques and otherwisewhich shall constitute a RaaS trade secret), technology and systems underlying such RaaS Branded Stores, and any suggestions, ideas, enhancement requests, feedback, recommendations and/or other data or information provided by Partner or any other party relating to RaaS Branded Stores (collectively, the “RaaS IP”). Partner will, and hereby does, assign any right, title, or interest in or to the RaaS IP to RaaS.

    2. During the Term of this Agreement, Partner hereby grants to RaaS, under Partner’s Intellectual Property, a nonexclusive, paid-up, royalty-free, transferable, irrevocable and worldwide right and license, including the right sublicense, to use, modify, and otherwise exploit in any manner, Partner Products and Partner Assets in connection with the sale and distribution of New Products, including future products, services or business derived therefrom.

    3. For clarity, Section 10.2 shall grant RaaS the perpetual right to make (or have made) and sell any New Product (or variations thereof), and RaaS shall have the right to license or disclose any Partner Intellectual Property to Partner in order to have such New Products (or variations thereof) made and sold. This Section 12.3 shall survive any termination or expiration of this Agreement.

  13. Use of Personal Information and Data. RaaS has the right to use Partner’s Personal Information and Data (either directly or through third parties, Delivery Platforms or affiliated entities) for business purposes, including but not limited to in connection with advertising and marketing materials. In addition, In the event of sale, transfer, merger, reorganization, dissolution, or similar event RaaS may transfer the Personal Information and Data to one or more third parties as part of such a transaction, including during the negotiation of an actual or contemplated transaction. Lastly, RaaS may disclose the Personal Information and Data as may be required by law or pursuant to legal process including by law enforcement agencies or valid requests from government agencies.
  14. Exclusivity. During the Term of this Agreement, Partner shall not, directly or indirectly, engage, enter into any agreement, license or otherwise be affiliated with any Competing Business. For purposes of this Agreement a Competing Business shall be any person or business that develops and/or licenses (or otherwise commercializes) virtual or other food brands or products for online sales through third parties or native ordering channels, provided that nothing herein shall restrict Partner from enter into any agreement or commercial transaction with Liquor as a Service, LLC.
  15. Applicable Law. This Agreement shall be deemed to have been made and entered into in the State of California, United States of America, and shall be interpreted, construed and governed by the laws of the State of California, applicable to agreements entered into and wholly performed in California. If any legal proceeding or action is necessary for the enforcement or interpretation of the terms of this Agreement, the Parties hereby agree that the courts of competent jurisdiction in the State of California shall have exclusive jurisdiction thereof and each Party hereby agrees to submit to the jurisdiction of such courts. In the event of any legal proceeding or action arising between the Parties from this Agreement, the prevailing Party shall be entitled to an award of reasonable attorneys’ fees and court costs in addition to and without limitation of any award of damages or other relief awarded by the applicable court or adjudicative body.
  16. Notices. Any notice or other communication permitted or required under this Agreement shall be given in writing and: (a) delivered in person; (b) delivered by an overnight commercial delivery service to the party to which such notice or communication is to be given, at the address set forth below their signature hereto or to such other address as either party shall have last designated by such notice to the other party; or (c) delivered via email if specified in the Agreement. Each such notice or other communication shall be effective: (i) if given by overnight commercial delivery service, one business day after such notice or communication is deposited with such service and (ii) if given by personal delivery, when actually received. All email notices to RaaS shall be sent to [email protected]
  17. Assignment. Partner shall not by operation of law or otherwise, without RaaS’s prior written consent, assign, hypothecate, mortgage, encumber or convey this Agreement or any interest in or under it. For the purposes of this Section any transfer of stock in a corporation, any transfer of an interest in a partnership, or a transfer of membership interest in a limited liability company, in which a transfer of control of the corporation, partnership or limited liability company occurs shall be deemed to be an assignment of this Agreement requiring the prior written consent of RaaS. RaaS may freely assign or otherwise this Agreement in whole or in part upon written notice to Customer and freely engage subcontractors.
  18. Integration. This Agreement and the Addendum constitutes and contains the entire fully-integrated agreement and understanding between the Parties with respect to the subject matter hereof and supersedes and replaces any prior or contemporaneous oral or written agreements, with the exception of the Management Agreement. Each of the Parties acknowledges and agrees that the other has not made any representations, warranties or agreements of any kind, except as may be expressly set forth herein. This Agreement will be binding upon each party and its successors and permitted assigns.
  19. Relationship of the Parties. Nothing herein shall be deemed or construed to create any partnership, joint venture or any other entity or relationship of agency, fiduciary or employment between the Parties, and no act or omission of one Party shall be binding on any other party. Neither Party shall have the right to create or assume any obligation of any kind, express or implied, for or on behalf of the other party in any way whatsoever, and neither Party shall present itself as the agent or legal representative of the other Party for any purpose whatsoever.
  20. Waiver: No waiver of any default or breach of this Agreement by either Party shall be deemed a continuing waiver or a waiver of any other breach or default, no matter how similar.
  21. Severability: If for any reason any provision or portion of this Agreement is adjudged by a court, arbitrator, or any other adjudicative body to be unenforceable, invalid, void or voidable, such adjudication shall in no way affect any other provision or portion of this Agreement or the validity or enforcement of the remainder of this Agreement, and the affected provisions or portions shall be modified or curtailed only to the extent necessary to bring this Agreement into compliance with applicable law.
  22. Headings: The paragraph headings used in this Agreement are for convenience only and shall have no legal effect or significance whatsoever.
  23. Counterparts: This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.