RESTAURANT RETAILER TERMS AND CONDITIONS

 

Last updated: 11 Aug 2022

1. Application and acceptance of these terms

 

These terms apply to you (being the retailer or restaurant participating in DBC’s Services) (referred to hereinafter as “you”, “your” or “the Retailer”) and your access to and use of the “DBC Platform”, which includes but is not limited to the following apps and websites;

 

• DBC Showcase (the page on DBC’s website listing retailers);
• DBC Retailer Showcase (the online and mobile platform where a retailer’s customers’ can view and search for menus and/or place an order)
• DBC Local App (the mobile app allowing customers to place a mobile order for pick-up or delivery);
• DBC Gateway (a website through which Retailer may and regularly should review and confirm its transactions, fees and charges and account);
• DBC Tablet App (the order handling tablet app which enables pick-up and delivery fulfillment for orders placed directly with the Retailer by the Customer); and
• DBC CRM (the customer relationship management platform for utilizing your collected data to automatically market to your customer).

 

The services provided via the DBC Platform (the “DBC Services”) are provided by “DBC” or “us” (DBC TECHNOLOGIES LTD., a company incorporated pursuant to the laws of British Columba having its registered address at Suite 480 – 1500 West Georgia Street, Vancouver, British Columbia, V6G 2Z6, and doing business as DeliveryBizConnect). 

 

By clicking “Accept” or by having your menu go live on the DBC Platform, you confirm that:

 

• You have authority to do so and to bind the person or company you are accepting for;
• You accept our offer to provide the DBC Services on these terms; and
• You agree to and will comply in full with these terms.

This forms a contract between you and DBC, which commences on the date of your acceptance (as detailed above) until the date upon which the DBC Services are terminated in accordance with these terms (the “Term”). You should save a copy of these terms for your records.  We may make changes to these terms, so check back here from time to time. We’ll notify you of material changes before they happen. If you access or use the DBC Services after being notified of a change, you’re deemed to have accepted that change.

You can procure other services (e.g. acting as a “Promoter”) from DBC by agreeing and entering into a separate contract with us. Each additional contract entered into by you and DBC shall form a separate agreement.

You agree that you and DBC are independent businesses whose relationship is governed by these terms, and any other applicable terms as agreed between us. Nothing in these terms or any other agreements relating to the relationship or transactions between us shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between (a) DBC and Retailer (or Retailer’s employees, representatives or locations), (b) DBC and Matched Driver (as defined below), or (c) DBC and Customers (as defined below).

 

If you have questions about these terms, the DBC Platform or the DBC Services, please contact us.

2. DBC Services and DBC Platform

DBC carries on a business using web-based technology, including the DBC Platform, which matches retailers, mostly restaurants and other outlets with which it has business partnerships, with both independent delivery drivers (“Matched Drivers”) and retail customers (“Customers”). For the avoidance of doubt, DBC is not a retailer, seller of goods, or delivery service; it is an online matching platform provider.

The DBC Platform will display your menu and provide an online ordering process that enables Customers to place an order for delivery (“Delivery Orders”) and/or for pick-up (“Pick-up Orders”).

 

The Delivery Orders will be delivered by Matched Drivers to Customers at such locations as are notified to the Driver through the DBC Platform. Customers pay a delivery fee for Delivery Orders. You are responsible for setting the fee that Customers pay for delivery.

We will make software available to you to use on any equipment provided to you so that you can use the DBC Platform. This software constitutes DBC IP (see further below) and it remains our property at all times. You must promptly implement any updates, upgrades and/or new versions of such software that we release from time to time.

3. Payments for Delivery Orders

Upon on-boarding with DBC, you will be required to set-up an account (if you do not already have one) with a recognised payments platform pre-approved by DBC (this will generally be Stripe).

 

Currently, payment processing services for Retailers on the DBC Platform are provided by Stripe and will be subject to Stripe’s terms and conditions. By agreeing to these terms and setting-up an account with Stripe, you agree to be bound by Stripe’s terms and conditions, as the same may be modified by Stripe from time to time. As a condition to DBC enabling payment processing services through Stripe, you agree to provide DBC accurate and complete information about your representatives and your business, and you authorize DBC to share such information and transaction information related to your use of the payment processing services provided by Stripe.

Payments made by Customers for Delivery Orders and Pick-up Orders are routed through the Stripe platform (“Customer Payments”) and are made directly to DBC and the Retailer via the Stripe payments platform which will automatically split in real-time the Customer Payment between DBC and the Retailer, with you, the Retailer, receiving the net after driver fee, tip and DBC Service fee are deducted.

DBC will remit the relevant delivery fee to the Matched Driver.

You shall be responsible for all taxes, duties, and other governmental charges on the sale of “Retailer Products” (being all products, food and beverages offered for Delivery Orders and Pick-up Orders via the DBC Platform) and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. Retailer shall also be responsible for all taxes, duties, and other governmental charges on monies received in relation to the Customer Sharing Program (as defined below), where applicable.

 

You agree, on an ongoing basis, to review and confirm all of your transactions, fees and charges on orders and invoices on the DBC Platform, and to promptly communicate to DBC in writing any claimed inaccuracies, so that DBC has the prompt opportunity to address and resolve any issues and so such issues do not persist, which DBC and Retailer agree is in the best interests of both parties and their commercial relationship. Retailer agrees to communicate to DBC any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order. Retailer shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Retailer does not communicate a written claim or objection to DBC regarding such transaction, fee, charge or order within such 60-day period.

 

You agree that you hold title to the Retailer Products until the Retailer Products are received by the Customer, upon which title passes to the Customer. Retailer agrees that neither the Matched Driver nor DBC holds title to or acquires any ownership interest in any Retailer Products or any other goods or products that Retailer prepares or provides through the DBC Platform.

4. Customer Sharing Program

Customers can access the DBC Platform in several ways, including (a) directly via DBC’s website or (b) where the Customer is directed to the DBC Platform by you via your website[1].

Where the Customer is directed to the DBC Platform by you via your website, the Customer will only be able to view your menu unless you have opted into the “Customer Sharing Program”. If you opt into the Customer Sharing Program:

• Customers directed to the DBC Platform by you will be able to see the menu of other DBC participating retailers who have opted into the Customer Sharing Program (“DBC Retailers”), and Customers will be able to place orders with such DBC Retailers. Upon the first Pick-up or Delivery Order placed at any DBC Retailer by such Customer (provided such Customer is not in the Retailer Data at time of order), you will be entitled to 4% (or as otherwise determined by DBC) of the total order fee (calculated on a pre-tax basis), such amount to be paid to you in real-time as part of the Customer Payment; and
• Customers directed to the DBC Platform by another DBC retailer (who has also opted into the Customer Sharing Program) will be able to continuously see your menu and will be able to place orders with you. Upon the first Pick-up or Delivery Order placed by that Customer (not in the Retailer Data at time of order) with you, you shall be charged a fee of 4% (or as otherwise determined by DBC) of the total order fee (calculated on a pre-tax basis), which will be automatically taken out of the Customer Payment in real-time.

5. Platform Subscription Fee  

For use of the DBC Platform and DBC Services, you shall pay an initial fee of $199.99 for the DBC Sales Maximization Package or $499.98 for the DBC Sales Maximization Package Pro (as defined below) and $99.99 per month thereafter (provided that your sales in such month exceed $500 or you send 1000 communications by text or email in the CRM) based on a rolling-monthly contract, subject to adjustment at the sole discretion of DBC (the “Platform Subscription Fee”).

The prices are subject to change and are not inclusive of any taxes.

 

Other than the initial fee of $199.99 or $499.98, DBC shall invoice you monthly for the Platform Subscription Fee. Retailer shall pay the invoice within two (2) days of receipt of such invoice. You may also pay the Platform Subscription Fee by credit card (such details being provided to us in advance). If any fee due to DBC, including for the avoidance of doubt, the Platform Subscription Fee, is not paid in full by such due date, DBC may set the DBC Platform to “closed” for the Retailer (meaning Pick-Up Orders and Delivery Orders cannot be processed and your menu will not be displayed), until paid and DBC may assess interest of 1.5%/month on the unpaid amount for the period beginning on the date such amount became due and owing and ending on the date that the amount is paid in full. The amount of interest to be paid shall not exceed the maximum rate under applicable law. 

The “DBC Sales Maximization Package” will include a tablet, any other device provided to you, for accessing the DBC Platform and processing Delivery Orders (“DBC Equipment”), and we will also provide you with training and relevant on-boarding materials and DBC policies. We retain title to the DBC Equipment at all times. You must let us know of any faults with, or damage to, the DBC Equipment and give us access to your store during normal business hours to inspect, clean, repair, replace or remove the DBC Equipment. We may charge a reasonable fee for repairing or replacing any DBC Equipment.

The ”DBC Sales Maximization Package Pro” includes all items in the DBC Sales Maximization Package and additionally setup/update/optimize your web assets; Google Business Profile, Bing Business Profile, Facebook Page, Custom Domain, and writing 3 custom restaurant promotion campaigns.

If you choose not to continue using the DBC Services or DBC Platform within 60 days of paying the initial fee of $199.99 for the DBC Sales Maximization Package, you are entitled to a refund of such amount, provided that you return to DBC, in good working order (to the satisfaction of DBC) any and all DBC Equipment provided to you.

If you choose not to continue using the DBC Services or DBC Platform within 60 days of paying the initial fee of $499.98 for the DBC Sales Maximization Package Pro, you are entitled to a refund of $199.99, provided that you return to DBC, in good working order (to the satisfaction of DBC) any and all DBC Equipment provided to you.

 

6. DBC Core Responsibilities
   1. If you are new to DBC, when you accept these terms, we will on-board you onto our DBC Platform (including, if applicable, providing the DBC Equipment and training to you). With your assistance during the on-boarding process, we will ‘build’ your menu for display on the DBC Platform. 
   2. We will, subject to our rights to suspend or terminate your use of the DBC Platform under these terms, display your menu items on the DBC Platform as available for Delivery Orders.
   3. We will facilitate and implement an online ordering process which will (a) enable Customers to place and pay for Delivery Orders on the DBC Platform and (b) provide you with an accessible way to submit requests for deliveries. We will forward requests to a Matched Driver, so that the Matched Driver can pick-up the Delivery Order from your store to deliver to the Customer. DBC will only accept Delivery Orders to be delivered within a certain pre-set (by you) delivery radius based on either your or the Customers location, which will be communicated to you.
   4. We will provide support to you in relation to the operating system of the DBC Platform, and upon request from you (with the consent of the Customer), we will provide support to Customers in relation to any Matched Driver relate issues (see Refund and Complaint section below).
7. Retailer Core Responsibilities

On-boarding and menu ‘building’

1. You must notify all of your store staff members of the relationship with DBC immediately and prior to submitting any delivery requests to DBC.
2. You must comply with any DBC policies, and participate in all training, provided to you at on-boarding and from time to time as otherwise provided to you.
3. You must provide all information, materials and assistance (ensuring it is complete and accurate in all material respects) reasonably required by DBC to on-board you to the DBC Platform and for DBC to ‘build’ your menu. This includes accurate descriptions and prices of menu items to be offered (including any relevant allergen advice). You may set different prices for Retailer Products depending on Pick-Up, Delivery Order and dine-in. Retailer can set prices as they see fit for each category, and DBC shall have no responsibility or input in this.
4. You must keep your menu up to date and make any required amendments as soon as possible on the DBC Platform.  
5. You are responsible for setting the fee that Customers pay for delivery and the delivery radius within which your Matched Drivers will deliver Delivery Orders. You are responsible for setting the minimum Delivery Order value.
6. You must update the DBC Platform for any changes to your days and hours of operation (including holidays), and remain open for business on the DBC Platform the same days and hours of operation as your in-store business. If you close earlier than your standard hours of operation or plan to close earlier than your standard hours of operation, you must set DBC Platform to ‘closed’ via the relevant app.
7. You must display any signage provided by DBC in accordance with our instructions.

Service Standards

1. You should be available for all orders during your opening hours on the DBC Platform. You must ensure that all relevant menu items are available to be ordered by a customer in a Delivery Order during your opening hours, you must accept all Delivery Orders from DBC during these times.
2. You must prepare Delivery Orders promptly (in the in the order in which they are received), accurately and in accordance with the timescales set by you via the DBC Platform. You must use reasonable endeavours to ensure that Delivery Orders are available for collection by the Matched Drivers at the time communicated on the DBC Platform. If you keep any Matched Driver waiting for Delivery Orders for more than six minutes, DBC will charge you a “Delivery Delay Fee” of $1 for each additional minute over the six minute delay, which shall be included on your monthly invoice.
3. You must ensure that the order number on the Delivery Order packaging corresponds with the order number provided by DBC before the Delivery Order is handed over to the relevant Matched Driver.
4. You must provide each Customer with an official receipt for their Delivery Order or Pick-up Order if requested, and on an ongoing basis, you must review and confirm the transactions, fees and charges on orders via the DBC Platform, and promptly communicate to DBC any inaccuracies.
5. If DBC collects and passes any tips from Customers to you, you must distribute such tips in accordance with applicable law, including but not limited to tip pooling laws.
6. You must via the online order form on the DBC Platform, provide information requested by DBC including the Customer’s address, contact information, and any special instructions required for delivery.
7. You must accept and collect payments from Customers for their respective orders
8. You must notify Customers prior to placing a Delivery Order that their telephone numbers and other personal contact information will be shared with DBC to enable deliveries to be made by Matched Drivers and, in connection with the applicable deliveries, request the Customer’s consent to receive delivery status updates by e-mail, text messages, and telephone calls from DBC and Matched Drivers.
9. You must notify DBC if a Customer has not consented to receive delivery updates or has placed any restrictions on types of delivery updates such Customer consents to receive (e.g., no texts). Retailer hereby consents to receiving text messages and email confirmations from DBC providing status updates and delivery confirmations in connection with each delivery.

Expectations

1. We expect that you will provide, in a professional manner, support services for your Customers to deal with complaints or enquiries relating to Delivery Orders. Where there are issues caused by, or directly related to, the DBC Platform or a Matched Driver, please let us know, and we can contact the Customer upon their consent being provided to you in relation to same (see refunds and complaints section below).
2. We expect you to ensure that Delivery Orders (a) correspond with the descriptions on the DBC Platform, (b) are prepared using all due skill, care and diligence in line with best practice in your industry and (c) are packaged in a way that avoids tampering, minimises spillages, and maintains the order at an appropriate temperature.
3. We expect you to use reasonable endeavours to ensure that no more than 1% of Delivery Orders contain errors.
4. We expect you to provide the same utensils, napkins, bags and other materials that you would typically provide in a standard take-out or delivery order.

 

General Requirements

1. You must maintain the security and confidentiality of any access credentials we provide to you at all times. You are responsible for the actions of any person using your access credentials.
2. You must comply with all applicable laws and licensing, registration and approvals requirements at all times, and any and all DBC policies made available to you from time to time.
3. Without prejudice to your general obligation above, you warrant that you have not and will not do anything that breaches any applicable code and/or sanction relating to the prevention or prohibition of bribery, money laundering and similar activities. You must immediately notify DBC if you become aware of any breach of this clause. 
4. Without prejudice to your general obligation above, you shall comply, and procure that all of your employees, contractors, agents and representatives comply, with applicable anti-slavery laws, as relevant to your use of DBC Services and your fulfilment and delivery of Delivery Orders. You must use reasonable endeavours on a continuing basis to ensure that no form of slavery takes place in your supply chains.
5. You must co-operate with DBC and provide, in a timely manner, such assistance and information as DBC may reasonably require. 
6. Retailer further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health, food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, (ii) it has informed DBC of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Retailer Product(s) and it will inform DBC of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Retailer’s menu items listed on the DBC Platform and (iv) it will not disclose any information related to a Matched Driver or a Customer to a third party (except as required to comply with law or pursuant to a court order).

8. Refunds, Re-Orders and Customer Complaints

 

As DBC is only a matching service, and all transactions run through the payment services platform Stripe or some other DBC pre-approved payment system, all interaction for refunds is handled between you and the Customer directly. In no event shall DBC be obligated to issue any refunds directly to Customers. If you elect to refund a Customer for any reason, such election shall not obligate DBC to provide a corresponding reimbursement to you.

 

DBC shall reimburse you in the following circumstances only:

 

• If the completion of a Delivery Order is more than 45 minutes late and due to the fault of DBC or a Matched Driver, DBC will reimburse you for all of the delivery cost of the applicable Delivery Order;
• In the event that a refund, credit or re-order is due to the fault of the Matched Driver or DBC (other than damage to the Retailer Product, as defined below), DBC will credit 30% of the order total (calculated on a pre-tax basis and not including delivery cost); and
• In the event that a Retailer Product has been visibly damaged during delivery with proof from Customer, DBC may reimburse you for up to 30% of the order total (calculated on a pre-tax basis) at the discretion of DBC, upon evidence that such food was damaged during delivery. For the purposes of these terms, “Retailer Product” is the actual food or beverage item, not the packaging that contains such food or beverage item.

 

You acknowledge that DBC shall be responsible only for customer support issues relating (a) Delivery Order or Pick-Up Order issues caused by the DBC Platform, (b) a Customer’s DBC account or (c) the facilitation of the delivery of Delivery Orders. All other customer issues or complaints will be Retailer’s sole responsibility, including without limitation, complaints regarding the nature, quality, content, number, or packaging of the Retailer Products.

 

Retailer agrees not to refer any Customer complaints directly to DBC. Any complaints regarding the timeliness or quality of a Matched Driver’s delivery service shall be reported by Retailer to DBC, and DBC will contact the Customer (with the Customer’s consent).

9. Intellectual property

DBC IP

 

All rights, title and interest in and to the DBC Platform, any software we provide for your use and any other materials we provide to you under or in connection with these terms are and shall at all times remain DBC’s intellectual property (DBC IP). We grant you a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to use the DBC IP in Canada during the Term for the sole purpose of using the DBC Services.

You must not (and shall not permit any third party to):  

• copy, adapt, reverse engineer, decompile, modify or make error corrections to any DBC IP other than with our express prior written consent;
• breach, disable, tamper with, or develop or use any workaround for any security measure in any DBC IP or otherwise do anything that disrupts any DBC IP, DBC or any person.

DBC grants you a non-exclusive, royalty-free, non-sublicensable, non-transferable license to use DBC branding, which includes the “DBC” logo, name and/or website address for the Term in Canada to allow you to advertise DBC Services at your sites/stores. You must comply with any DBC policy issued from time to time.

Retailer IP

You grant us and our affiliates a non-exclusive, royalty-free license to use your branding which includes your logos, name and website address(es) for the Term in Canada. You warrant and undertake that your branding does not and will not infringe any third party intellectual property rights.  We can use your branding on the DBC Platform, for marketing purposes and as reasonably necessary to provide the DBC Services.

During the Term, you grant to DBC a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use and display the Retailer Content in the provision of services to you, including listing you as a Retailer on the DBC Platform, referencing you as a DBC partner, and to promote DBC’s products and services. As used herein, “Retailer Content” includes, without limitation, name and website address(es), menus, photographs (either provided by Retailer or on Retailer’s website), trademarks, logos and other materials provided by Retailer to DBC. You warrant and undertake that the Retailer Content does not and will not infringe any third party intellectual property rights and that we can use your Retailer Content on the DBC Platform, for marketing purposes and as reasonably necessary to provide the DBC Services.

If photographs of Retailer’s menu items are not available or if they do not meet DBC’s requirements, as reasonably determined by DBC, then Retailer consents to DBC (i) engaging a professional photographer to take photographs of Retailer’s menu items (ii) enhancing the quality of Retailer’s existing photographs or (iii) using stock photos of the menu item, and displaying such photographs on the DBC Platform as representations of Retailer’s menu items; provided that Retailer may contact DBC support to have such photographs removed.

Data

Except for these limited licenses:

• DBC retains ownership of and all rights in and to DBC branding; and
• You retain ownership of and all rights in and to your branding. 

We may collect data about your use of DBC Services. By using the DBC Platform and the DBC Services you agree to us collecting and using this information. We may use this information for various purposes, including to improve, maintain, protect and develop our products, and to provide services to you.

10. Suspension and termination

We may suspend your use of the DBC Platform on giving you notice if we know or suspect you have breached these terms, or if we otherwise consider suspension reasonably necessary taking account of all relevant circumstances. 

We will give you the reasons for the suspension where permitted by law. We will maintain the suspension until you have remedied the breach to our reasonable satisfaction, or we no longer consider the suspension necessary in the circumstances.

These terms take effect on acceptance (see above) and continue until terminated by either party giving 7 days’ written notice to the other. If permitted by law and where we consider immediate termination necessary in the circumstances, we may give you written notice to terminate these terms with immediate effect. 

Email shall suffice for written notice.

Neither Retailer nor DBC will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Retailer or DBC. However, termination of these terms shall not relieve either party from liability for breach of any provision nor for payment of commissions or monies due from one to the other prior to termination.

DBC reserves the right, at its sole discretion, to change, suspend, or discontinue the DBC Platform (including without limitation, the availability of any feature or content) at any time. DBC may, at its sole discretion, remove Retailer Products from the DBC Platform if DBC determines that such Retailer Product or Retailer could subject DBC to undue regulatory risk, health and safety risk, or other liability.

LEGAL TERMS

11. Data Privacy and Security

 

Retailer agrees it will comply with all applicable all applicable data protection and privacy laws.

 

Each party agrees to provide reasonable and prompt assistance to the other party as necessary to assist the other party to ensure compliance with its obligations under data protection and privacy laws and enable the other party to comply with data subject requests and/or respond to other queries or complaints received from Customers or supervisory authorities, in each case related to personal information.

 

Retailer will not allow any third party to use the DBC Platform and will be responsible for damages resulting from sharing Retailer’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Retailer’s account. Retailers may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the DBC Platform; damage, destroy or impede the services provided through the DBC Platform; transmit injurious code; or bypass or breach any security protection on the DBC Platform.

12. WARRANTY DISCLAIMER AND INDEMNIFICATION

 

EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DBC HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE DBC PLATFORM, DBC EQUIPMENT OR DBC SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF RETAILERABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Retailer acknowledges that the operation of the DBC Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and DBC shall not be responsible to Retailer or others for any such interruptions, errors, or problems or an outright discontinuance of the DBC Platform nor for any guarantee of results with respect to the DBC Services or DBC Platform. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of these terms.

 

Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of DBC, Matched Drivers (or, in the case of Retailer as the Indemnifying Party, caused by the Retailer Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants; (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”); or (iv) in the case of Retailer as the Indemnifying Party, Retailer’s failure to distribute tips as required by applicable law. In addition, Retailer will defend, indemnify and hold harmless DBC from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Retailer Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of DBC. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. DBC assumes no liability, and shall have no liability, for any infringement claim based on Retailer’s access to and/or use of the DBC Platform following notice of such an infringement claim; any unauthorized modification of the DBC Platform by Retailer; or Retailer’s combination of the DBC Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.

13. LIMITATION OF LIABILITY

 

EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO DBC BY RETAILER IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 12 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL APPLY TO THE EXTENT PROHIBITED BY LAW.

14. INSURANCE

 

During the Term and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under these terms.

15. Dispute Resolution

 

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH DBC AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 15 SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

 

1. Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or DBC may seek injunctive relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). DBC and Retailer agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration Agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. In that regard, this Arbitration Agreement shall be binding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the effective date of these terms. CASES MAY BE FILED AGAINST DBC IN THE FUTURE THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH DBC, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST DBC IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

 

1. Arbitration Rules and Forum. This Arbitration Agreement is governed by the Commercial Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to DBC’s registered agent. The arbitration will be administered by the International Centre for Dispute Resolution Canada under its rules and pursuant to these terms before one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days of commencement of arbitration, then by one arbitrator appointed by the ICDR. The arbitration shall take place in Vancouver, British Columbia, or any other jurisdiction mutually agreed upon by Retailer and DBC. The arbitration shall be conducted in accordance with the ICDR arbitration rules then in effect. Payment of all filing, administration, and arbitration fees will be governed by ICDR’s rules. If ICDR is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location.

 

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

 

1. Waiver of Jury Trial. YOU AND DBC WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and DBC are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 15(1) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

 

1. Waiver of Class or Consolidated Actions; Severability. YOU AND DBC AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE RETAILER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor DBC is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 16, and all other provisions of this Section 15 (Dispute Resolution) shall remain in force. If any provision of this Section 15 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 15. Nothing in this provision shall prevent you or DBC from participating in a class-wide settlement of claims.

 

1. Opt Out. DBC’s updates to these terms do not provide a new opportunity to opt out of the Arbitration Agreement if you had previously agreed to a version of DBC’s terms and did not validly opt out of arbitration. DBC will continue to honor the valid opt outs of Retailers who validly opted out of the Arbitration Agreement in a prior version of the Terms of Service. To opt out, you must notify DBC in writing of your intention to opt out by sending a letter, by First Class Mail, to DBC Technologies Ltd., 480 – 1500 West Georgia St., Vancouver, BC, V6G 2Z6. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked no later than 30 days after your first order on the DBC Platform. Your notice must include your name and address, your DBC username (if any), the email address you used to set up your DBC account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one Retailer, and letters that purport to opt out multiple Retailers will not be effective as to any. No Retailer (or his or her agent or representative) may effectuate an opt out on behalf of other persons. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.

 

1. Survival. This Arbitration Agreement will survive any termination of your relationship with DBC.

 

16. Litigation Class Action Waiver

 

To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 16, Retailer agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Retailer opted out of the Arbitration Provision or any other reason, will be conducted solely on an individual basis, and Retailer agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Retailer acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Retailer further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.

 

17. Confidentiality

You covenant and agree that you shall not, during the Term, except in the performance of obligations hereunder, or at any time after the termination of these Terms, communicate or disclose to any person or use for his account, without the prior written consent of DBC, any confidential information (see below), business information, observations, data, written material, records or documents relating to the business and affairs of DBC or any of its affiliates, including, without limitation, any trade secrets, customer lists, information relating to sources of customers or prospects, financial, personnel and customer information, and any confidential information concerning the business or affairs of any supplier, creditor, lender, shareholder or customer of DBC or any of its affiliates which was obtained or acquired by you during the Term of these Terms.  

The words “confidential information” include but are not limited to: (a) personal data identifying or relating to any of DBC’s customers (including but not limited to names, addresses and other personal information such as dietary requirements and details of other household members), suppliers or employees; (b) training materials, and other confidential material provided to you during the course of DBC’s onboarding process; (c) details of relationships or arrangements with DBC’s other suppliers and business partners, including but not limited to restaurants; (d) details of DBC’s business methods, finances, pricing strategy, marketing or development plans or strategies; and (e) any other information you know to have been divulged to you by DBC, or by a third party in the course of performing services, in confidence.

18. General Provisions

 

In any legal action to enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its reasonable attorneys’ fees and costs from the other party.

 

These terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these terms shall so survive and extend.

 

These terms are governed by and interpreted in accordance with the laws of the Province of British Columbia without regard to the conflicts of laws principles thereof, and except as set forth above in Section 15 (“Dispute Resolution”), the parties hereby attorn to the non-exclusive jurisdiction of the Courts of British Columbia.

 

Retailer may not assign this Agreement in whole or in part without DBC’s prior written consent. DBC may freely assign this Agreement. 

 

This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party.

 

All notices, requests, consents and other communications under these must be in writing, and delivered (unless otherwise permitted) by overnight courier to the addresses most recently notified). DBC’s address is 480 – 1500 West Georgia St., Vancouver, BC, V6G 2Z6.

 

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

 

All monies which are referred to in this Agreement are, unless expressly stated otherwise, expressed in lawful money of Canada for Canada and USD for USA.