bqn U.S. Merchant Terms and Conditions

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

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

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

1. GENERAL.

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

2. SERVICES.

2.1 Items and Services.

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

If Merchant is eligible to offer the sale and fulfillment of alcoholic beverages in designated U.S. states (“Alcohol Items”), Merchant’s sale of Alcohol or Marijuana Items via the Services shall be subject to the Terms of Use for Alcohol or Marijuana Sales (“Alcohol Terms”) available here [bqn.io/alcohol-terms].

The definition of Items shall include Alcohol or Marijuana Items as applicable and referenced within the Agreement. If any conflict between these Terms and the Alcohol or Marijuana Terms, the Alcohol or MarijuanaTerms shall govern with respect to Alcoholic Items and these Terms shall govern with respect to Items.

2.2 Additional Tools.

In connection with the Services, bqn and its affiliates may also make available to Merchant a website, mobile application or other technology interface for Merchant to access and use the Services (collectively, the “Tools”), which may include bqn’s and its affiliates’ proprietary technology platform, through which Merchant may, among other things, receive, accept and fulfill requests for Items from Customers and receive insights and analytics regarding Merchant’s performance and history using the Services.

The Tools may include functionality for Merchant to obtain Sponsored Listing placements. Such Sponsored Listings are governed by the terms located here.

2.3 The Application(s).

bqn and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase Items from Merchant and request delivery services for said Items from Delivery People (as defined below), who retrieve such Items from Merchant and deliver such Items to such Customers (the “Platform”). Delivery People are independent contractors, and as such, they reserve the right to refuse to accept any Item in their sole discretion.

3. bqn OBLIGATIONS.

3.1 Access to Services.

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

3.2 Technology, Not Delivery, Services.

Merchant agrees neither bqn nor its affiliates provide any delivery services. Rather, bqn provides technology services that both (i) enable Merchant to connect with Delivery People to seek, receive and fulfill on-demand requests for delivery services by or on behalf of Customers seeking delivery services. Delivery People perform their delivery services for (and are paid by) the Merchant. “Delivery Person” is defined as an independent contractor that intends to seek, receive and fulfill on-demand requests for delivery services using bqn’s proprietary technology under license from bqn or its affiliates.

4. MERCHANT OBLIGATIONS.

4.1 Availability of Items.

Merchant will make Items available for purchase through the Platform (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Merchant will prepare, handle, store, label and package all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”) and, if applicable, all applicable laws, rules, and regulations for the handling and labeling of Alcohol or Marijuan Items (“Alcohol Safety Standards”). Merchant will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and Merchant is responsible for ensuring that all Items meet the applicable Criteria. If Merchant fails to prepare or supply Items in accordance with Food or Alcohol or Marijuana Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), bqn may, in its sole discretion, remove such Item from the Platform. Items that contain (or may contain) an endangered species may not be made available for purchase through, and will be removed from, the Platform. Merchant represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the Platform is, and at all times will remain, accurate. In addition, Merchant will ensure that the contents of its menu includes each Items Criteria (including any notifications about ingredients, nutritional information, allergen information, alcoholic content (if applicable), etc.) are accurate and comply with all applicable laws and regulations.

4.2 Item Responsibility.

Merchant shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within Merchant’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with Merchant’s internal standards. bqn may, in its sole discretion, deduct reimbursement costs from the payment bqn remits to Merchant in accordance with this Section 4. The current policy for refunds and Substandard Items is located here: http://t.bqn.com/ordererrorsguide. Merchant agrees that neither bqn nor the Delivery Person takes title to any Item at any time.

4.3 Devices.

If bqn supplies a tablet or other mobile device (“Device”) to Merchant to use in connection with the availability of Items via the Platform, Merchant agrees that: (i) Device(s) may only be used for the purpose of accepting orders via the Platform, and (ii) Device(s) may not be transferred, loaned, sold or otherwise provided in any manner to any third party. Devices(s) will at all times remain the property of bqn and/or its affiliates, and upon expiration or termination of the Agreement, or the extended absence of all of Merchant’s location(s) from the Platform for longer than forty-five (45) days, Merchant will return all applicable Device(s) to bqn within ten (10) days. If Merchant receives a wireless data plan for the Device, bqn may charge a weekly reimbursement to Merchant for the costs associated with the wireless data plan of each applicable Device. Merchant agrees that the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear, may result in a fee (“Damage Fee”). Merchant agrees that bqn may deduct the reimbursement or Damage Fee from the Item Revenue prior to remittance of such Item Revenue to Merchant.

4.4 Third Party Services.

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

4.5 Use Restrictions.

In connection with the access to and use of the Services and Tools, Merchant will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Tools or Services (except as otherwise authorized by bqn); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, U.S. Treasury Department’s Office of Foreign Assets Control, or any other government agency. Merchant will not (and will not allow any third party to) use the Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the Platform (collectively, “bqn Data”) to directly or indirectly compete with bqn or its affiliates or the Services, including, without limitation, bqn Data that Merchant receives from bqn by way of a Third Party Access Service.

4.6 Item Restrictions.

The following restricted Items may not be featured or sold via the Platform: people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, items containing endangered species or any items that Merchant does not have permission to offer. bqn may remove from—or otherwise limit your ability to post to—a Merchant’s menu any Items bqn deems prohibited or inappropriate in its sole discretion. For clarity, alcohol or marijuana is only permitted on the Platform if Merchant has agreed to bqn’s separate Alcohol or Marijuana Order Form for specified States.

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

4.8 Messaging and Contact Information.

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

5. FEES AND TAXES.

5.2 Services Fee.

Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be calculated as follows:

Merchant will pay a monthly fee for use of the bqn platform for coordinating deliveries.  The merchant shall have the option to select either a subscription tier or a usage fee model.  The current subscription fee price point will be posted on the website.  Our delivery fee structure is based on a time based pricing delivery model as estimated by our geolocation service at the price per minute schedule displayed at the time of ordering a delivery. The delivery fee will not change once the delivery has been ordered.  Delivery fee pricing is subject to change based on driver demand and other market conditions. Subscription, usage and delivery fees are posted on our website [bqn.io/pricing-overview].        

5.5 Activation Fee.

Unless otherwise agreed to by the Parties, in consideration of bqn’s work to activate Merchant on the Platform, Merchant will pay to bqn an activation fee based on the current fee structure. 

5.6 Taxes.

Merchant is solely responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law. The term “Sales Tax” includes any sales, sellers use, transaction privilege, privilege, general excise, gross receipts, food & beverage, and similar transaction taxes, as well as any bottle, bag, plastic, or other similar fees. 

5.8 Appointment of Limited Payment Collection Agent.

Merchant is solely responsible for providing bqn with, and maintaining, accurate bank account information. Merchant hereby appoints bqn and its affiliates, as the case may be, as Merchant’s limited payment collection agent solely for the purpose of accepting payment for delivery charges if any portion of the delivery fee captured by bqn is covered by the customer via the payment processing functionality facilitated by the Tools, and, if applicable, any refunds given to Customers for merchandise or product issues requiring delivery refunds. bqn and its affiliates reserve the right to collect any amounts in connection with such adjustments by debiting the payment method or Merchant’s bank account on record, or otherwise seeking reimbursement from Merchant by any lawful collection methods available. Merchant authorizes bqn and its affiliates to use any or all of the above methods to seek such adjustments and reimbursements. By agreeing to these terms, Merchant gives bqn and its affiliates express consent to compensate customers for delivery fees by covering the cost from Merchant’s account.

5.9 Payment Compliance.

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

5.10 Additional Information.

bqn may, from time to time, require Merchant to provide certain additional information (“Additional Information”) pertaining to, Merchant location, Merchant establishment type (e.g., garden center or hardware store), or to comply with other applicable laws or regulations. Additional Information may include, but is not limited to: temperature, container, weight, volume, setup, controlled substances, delivery instructions or intended use. Merchant is solely responsible for providing requested Additional Information to bqn in a timely manner. If Merchant fails to provide Additional Information in response to notification and request by bqn in a timely manner, bqn expressly reserves the right to temporarily remove Merchant’s access to the platform until such Additional Information is received.

6. REPORTING.

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

7. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES.

7.1 Marks.

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

7.2 No Development.

EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate agreement between bqn and Merchant prior to the commencement of any such activities.

7.3 Marketing.

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

7.5 Publicity.

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

8. PROPRIETARY INFORMATION; FEEDBACK.

8.1 Definition.

“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of Merchant’s Items to Customers through the Platform and the terms and conditions of this Agreement. Proprietary Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes bqn and its Affiliates to disclose the terms of this Agreement to Merchant’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Proprietary Information, together with all copies thereof in whatever form.

8.2 Passwords.

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

8.3 Data Re-Identification Restriction.

Without limiting any other provision of this Agreement, including any provision in this Section, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any personal data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any personal data, for the purpose of re-identification, targeted marketing, or any other similar purpose.

8.4 Feedback.

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

10. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

10.1 Representations and Warranties.

Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of Merchant, all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, Merchant further represents and warrants that to the extent Merchant has franchisees who participate in any activities under this Agreement, Merchant will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.

10.2 DISCLAIMER.

EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

11. INDEMNITY.

11.1 Indemnified Claims.

Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless the other, its affiliates and respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents in their performance of this Agreement; (ii) any claims that, if true, would be a material breach of any of the Indemnifying Party’s representations or warranties in this Agreement; or (iii) any claims that the Marks provided by the Indemnifying Party infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the bqn Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Merchant’s failure to provide accurate and complete descriptions or Additional Information for Items, including information transmitted through a Device, point-of-sale, or Third Party Access Service, sufficient for accurate Sales Tax calculations; (C) Merchant’s failure to comply with a notice with respect to Unsupported Items; or (D) any claim related to Merchant’s failure to perform obligations contained in Section 2 of the Terms of Use for Alcohol or Marijuana Sales, if applicable, except in the case of each of (A)-(D) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of bqn or its employees, agents or Delivery People.

11.2 Procedure.

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

12. LIMITS OF LIABILITY.

EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF MERCHANT OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED $100,000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.

13. INSURANCE.

During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability and, if required by law, Worker’s Compensation insurance. The Commercial General Liability insurance policy limits will be One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and Two Million Dollars ($2,000,000) in aggregate.  All policies will be written by reputable insurance companies with a Best’s policyholder rating of not less than A-. Such insurance will not be cancelled or materially reduced without thirty (30) days’ prior written notice to the other party. Upon a party’s request, the other party will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.

14. SUPPLEMENTAL TERMS.

Merchant will comply with the applicable then-current Community Guidelines, currently available at https://www.bqn.io/terms-and-conditions/ (“Community Guidelines”). Notwithstanding anything to the contrary, the terms and conditions of bqn’s Privacy Policy, currently available at: hhttps://www.bqn.io/terms-and-conditions/, are incorporated and apply to bqn’s collection, use and processing of personal data.

15. TERM AND TERMINATION.

This Agreement shall become effective on the date first set forth above (the “Effective Date”) and shall continue in effect from month to month thereafter as the parties may mutually agree. Either party may terminate this Agreement, in whole or in part, in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part, at any time without cause by giving thirty (30) days’ prior written notice of termination to the other party, with the exception being that should either party attempt to terminate this Agreement during an active Promotion period, such termination will not take effect until such Promotion period has ended. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, bqn may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving Merchant that, in bqn’s reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations and Sections will survive the expiration or termination of this Agreement.

16. NOTICE.

Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to bqn should be provided to bqn Limited, 9615 East County Line Rd, Ste B-414 Centennial, CO 80112. Notices to Merchant should be provided to the address provided by Merchant. 

17. DISPUTE RESOLUTION AND ARBITRATION.

17.1 Arbitration.

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

1. i) The Arbitrator’s award will be final and binding and judgment on the award rendered by the Arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be confirmed in a court of competent jurisdiction.
2. ii) A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the JAMS Rules.

iii) The seat, or legal place, of arbitration will be Denver, Colorado USA.

1. iv) The language to be used in the arbitral proceedings will be English.
2. v) The arbitral tribunal will be composed of a sole arbitrator, which shall be nominated and appointed by JAMS in accordance with the JAMS Rules.
3. vi) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.

vii) The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

viii) Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else. Notwithstanding any other provision of this Arbitration Provision or the JAMS Rules, disputes in court or arbitration regarding the validity, enforceability, conscionability or breach of this Class Action Waiver, or whether this Class Action Waiver is void or voidable, may be resolved only by the court and not by an arbitrator. In any case in which (1) the dispute is filed as a class or collective action and (2) there is a final judicial determination that all or part of this Class Action Waiver is unenforceable, the class or collective action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of this Class Action Waiver that is enforceable shall be enforced in arbitration.

1. ix) Arbitrator fees and expenses plus any expenses of JAMS shall be split equally between the parties. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.
2. x) Notwithstanding any choice of law or other provision in this Agreement, the parties agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and JAMS Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and JAMS Rules are found to not apply to any issue that arises under this Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of Colorado.

17.2 Waiver of Jury Trial.

Each party hereby waives to the fullest extent permitted by applicable law, any right it may have to a trial by jury of any arbitrable claim under this Agreement and in connection with the enforcement of an arbitral award rendered pursuant to this agreement. Each party (i) certifies that no representatives, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of such litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party hereto have been induced to enter into this Agreement.

18. DIVERSITY AND INCLUSION.

Merchant will not, in its use of the bqn Services or the bqn Tools under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between bqn and Merchant. Merchant acknowledges and agrees that upon bqn’s receipt of evidence of Merchant’s discrimination under any of these categories, bqn will have the right to immediately terminate this Agreement following notice to Merchant.

19. ADDITIONAL TERMS.

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