MERCHANT TERMS OF SERVICE – DITYER LLC

Effective Date: 03/25/2023

BEFORE YOU USE THIS PLATFORM OR OUR SERVICES, PLEASE READ THESE MERCHANT TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY. BY EXECUTING A SERVICES SCHEDULE WITH DITYER LLC, a WISCONSIN LIMITED LIABILTY COMPANY (“DITYER,” “WE,” “US,” OR “OUR”), YOU, ANY ENTITIES THAT YOU REPRESENT AS STATED IN THE SERVICES SCHEDULE, AND ALL OF YOUR PARTICIPATING MERCHANT LOCATIONS ("YOU" OR "MERCHANT") SHALL BE BOUND BY THESE TERMS OF SERVICE IN ADDITION TO THE TERMS ON YOUR SERVICES SCHEDULE. DITYER MAY REVISE THESE TERMS FROM TIME TO TIME. BY CONTINUING TO ACCESS OR USE THE SERVICES AFTER THOSE REVISIONS BECOME EFFECTIVE, YOU WILL BE BOUND BY THE REVISED TERMS.

SECTION 13 (GOVERNING LAW & DISPUTE RESOLUTION) OF THE TERMS OF SERVICE CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 13 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

BY ENTERING INTO THESE TERMS OF SERVICE, YOU SHALL COMPLY WITH APPLICABLE LOCAL LAWS AND GUIDELINES. ADDITIONALLY, YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE WAIVING YOUR RIGHTS AND OPTING OUT OF FEE LIMITS UNDER CERTAIN LAWS. THESE RIGHTS AND YOUR WAIVER(S) ARE DESCRIBED BELOW IN SECTION 7.

 

These Terms of Service, together with the Services Schedule, Partner Code of Conduct, and other attachments or exhibits (the “Agreement”) between Dityer and Merchant is effective as of the date that you enter into the Services Schedule with Dityer. In the event of a conflict between any of the terms in this Terms of Service and the Services Schedule, the conflict will be construed in the following order: (1) Services Schedule and (2) Terms of Service.

 

1.  PREAMBLE. Dityer provides a technology platform (the “Software”) connecting customers with businesses (“Merchants”) that sell products to them. Those products are delivered by independent third-party contractors (“Deliverers”) using the Dityer Platform. For purposes of this Agreement, “Software” includes our website located at https://www.dityer.com/ and our mobile software application. “Service” includes our services offered through the Software, which includes the digital platform for purchase and sale of products and logistics with respect to delivery of those products.  By completing the Services Schedule, Merchant shall abide by the terms set forth in this Agreement. This Agreement applies to all Merchant Locations owned or operated by Merchant, unless excluded in an attached exhibit or mutually agreed in writing. 

 

2. OPERATING PROCEDURES.

2.1. Dityer Responsibilities. Dityer shall: (a) place, or allow Merchant to place, any agreed upon Merchant Products as set forth in the Services Schedule on the Dityer Platform; (b) accept Orders for Merchant Products through the Dityer Platform from Customers; (c) forward each Order to the relevant Merchant Location; (d) make the Order available to Deliverers; and (e) pay the Merchant as set forth in Section 4 below, deduct the agreed Fees, marketing fees for each applicable Order, subscription fees (if any), activation fees (if any), and any other fees (and, in each case, as may be adjusted by Dityer as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature). 

2.2. Merchant Responsibilities. Merchant shall: (a) provide Dityer with Merchant’s catalog, including the price of each item; (b) monitor Merchant’s catalog and store information on the Dityer Platform, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify Dityer of any errors or changes in writing (email is sufficient); (c) accept and confirm Orders from Dityer in a prompt and timely manner; (d) prepare Merchant Products for each Order for pickup by a Deliverer, or the Customer, as applicable, at the designated time; (e) process Orders in the order in which they are received; (f) notify Dityer of its days and hours of operation, including on holidays; (g) notify all Merchant Location staff members of the relationship with Dityer, and train staff members on receiving and fulfilling Dityer Orders as soon as practicable upon execution of this Agreement and on an ongoing basis; (h) use its standard business practices to prepare Merchant Products that are the subject of each Order; (i) on an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to Dityer any inaccuracies; and (j) if Dityer collects and passes tips from Customers to Merchant, Merchant will distribute such tips in accordance with applicable law, including but not limited to tip pooling laws. 

2.3. Malware. Each Party shall not perform any action with the intent of introducing to the other Party’s systems, products or services any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.

2.4. Delivery Areas. To ensure delivery quality, Dityer will only accept Orders to be delivered within a certain preset delivery area. Dityer will separately communicate to Merchant the maximum delivery area applicable to Merchant and/or each Merchant Location.

2.5. This paragraph applies only if Merchant uses a Third-Party Platform. During the Term, Dityer will be Merchant’s sole preferred provider and/or have the right of first refusal (“Preferred Provider”) for all Orders that are located within Dityer’s service area. Both Parties acknowledge that this provision does not conflict with, or result in a breach or default of, any previously existing agreements, terms, or conditions to which such Party may be bound, such as an exclusivity agreement or most favored nation clause.

2.6. Modifications. Dityer may change, suspend, or discontinue any Dityer Platform (including the availability of any feature or content) or Merchant Location at any time. Merchant shall not list or include any Merchant Products or Locations that subject Dityer to undue regulatory risk, health and safety risk, or other liability. Dityer may remove any such Merchant Products or Locations. If applicable, Dityer may remove any Merchant virtual brand concept from the Dityer Platform, if Dityer determines that such virtual brand concept does not meet and maintain certain eligibility requirements as communicated by Dityer, provided, however, that Dityer must use commercially reasonable efforts to inform Merchant of such removal.

2.7. Redelivery. Orders requiring redelivery due to Merchant’s error, including Merchant Personnel providing an incorrect or incomplete Order to the Deliverer, are subject to Fees as an additional delivery. Any other Orders requiring redelivery may be subject to Fees as an additional delivery at Dityer’s discretion. 

 

3. PAYMENTS. 

3.1. Fee Procedures.  Fees applicable to Merchant and transactions involving Merchant Products are set forth in the Services Schedule, which will specify whether Merchant has a Marketplace Account or a Software as a Service Account. Dityer shall pay Merchant on a weekly basis for orders placed the preceding week. Dityer’s payments to Merchant shall be calculated as follows: (1) Total Sales, minus (2) applicable Fees. 

3.2. Merchant Fee Obligations. Merchant shall pay the Dityer Platform Fee as set forth in the Services Schedule no later than 7 days after receiving an invoice. Except as expressly set forth in this Agreement, each Party is responsible for its own costs. Merchant shall communicate to Dityer any Dispute, disagreement, or issue with a transaction, Fee, or Order, including those made in connection with fraudulent transactions or payments, within 14 days of the applicable transaction, Fee, or Order.

3.3. Payment Processing. Dityer uses a payment processor to collect Order amounts from Customers and remit payment to Merchant. In order to receive payment, Merchant must have an account with this payment processor during the Term. Dityer reserves the right to change its payment processor at any time during the Term and Merchant will provide Dityer with any information required to set up a payment account with any such alternate payment processor.

4. TAXES. Dityer shall charge and collect from Customers the applicable value added, goods and services, state and local sales, use, or similar taxes for the Merchant Products sold on the Dityer Platform (“Collected Taxes”). In any jurisdiction where Dityer is required to remit Collected Taxes as a marketplace facilitator, Dityer will be responsible for remitting such taxes to the appropriate tax authorities. Any Collected Taxes that are not required to be remitted under the marketplace facilitator laws will remain the responsibility of the Merchant and Merchant shall be responsible for remitting any such portion of Collected Taxes to the appropriate tax authorities.  In all other jurisdictions, Dityer will send Collected Taxes to Merchant, and Merchant will be responsible for remitting the total amount of Collected Taxes to the appropriate tax authorities of those jurisdictions.

 

5. LICENSE.

5.1. Use of Dityer Products. During the Term, Dityer shall grant to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, and fully paid-up license to access the Dityer Platform solely to transmit information to facilitate deliveries or pick up in accordance with the terms of this Agreement. Dityer owns and retains all rights, title, and interest in Dityer IP.

5.2. Dityer Product Restrictions. Merchant shall not and will not permit or authorize any third party to: (a) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Dityer Platform; (b) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Dityer Platform; (c) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Dityer Platform unless such actions are authorized by compulsory provisions of applicable law; (d) use the Dityer Platform in any manner or for any purpose that violates any Law; and (e) use the Dityer Platform for a reason other than as specifically provided or intended under this Agreement.

5.3. Merchant Content and Trademark; Photographs of Merchant Products.

5.3.1. Merchant grants to Dityer a royalty-free, non-exclusive, limited, revocable, and non-transferable right and license to use and display the Merchant Content in the provision of services to Merchant, including, where applicable, listing Merchant as a merchant on the Dityer Platform, referencing Merchant as a Dityer partner, promoting Dityer’s products and services, and sharing Merchant Content with third parties, including third party services which enable Dityer Customers to access the Dityer Platform (including its web pages) for Orders.

5.3.2.  If photographs of Merchant Products are not available or if they do not meet Dityer’s requirements, as reasonably determined by Dityer, then Merchant consents to Dityer: (i)  enhancing the quality of Merchant’s existing photographs; (ii) using stock photographs of the Merchant Products or other products; and/or (iii) using photographs from Merchant’s website or social media channels, and displaying such photographs on the applicable Dityer Platform as representations of Merchant Products; provided that Merchant may contact Dityer support to have such photographs removed from the Merchant’s store listing and, in such event, Dityer will comply in a timely manner.

5.4. Goodwill. If Licensee, while performing this Agreement, acquires any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Licensor: (a) when and as such acquisition of goodwill or reputation occurs; (b) at the expiration or termination of this Agreement; and (c) without any separate payment or other consideration of any kind to Licensee. Licensee agrees to take all such actions reasonably necessary to effect such vesting. Licensee will not contest the validity of any of the Marks or Licensor’s exclusive ownership of them. During the Term, Licensee will not adopt, use or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of the Marks or any word or mark confusingly similar to them in any jurisdiction. 

5.5. Feedback. Merchant may provide Dityer with Feedback. Merchant grants Dityer all rights, title, and ownership of such Feedback on an unrestricted basis. 

5.6. Marketing Materials. Merchant hereby allows Dityer to identify Merchant as a customer and to use Merchant’s Marks: (i) on Dityer’s Platform; (ii) in sales presentations and marketing materials; and (iii) upon Merchant’s prior written consent in each instance, in press releases and in a brief customer profile or case study for use by Dityer for promotional purposes. 

6. TERM AND TERMINATION.

6.1. Term. The Agreement begins on the Effective Date as stated on the Services Schedule and continues until terminated in accordance with this Agreement.

6.2. Termination. Merchant may terminate this Agreement for any reason at any time upon 14 days prior written notice to Dityer. Dityer may terminate this Agreement for any reason at any time upon written notice to Merchant. Either Party may terminate this Agreement immediately if the other Party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. If either Party terminates the Agreement, the Services Schedule will automatically terminate. Upon termination, Merchant shall immediately remit any unpaid Fees to Dityer. 

6.3. Survival. Sections 3 (Payments), 4 (Taxes), 5 (License), 6 (Term and Termination), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Data Privacy and Security), 13 (Governing Law, Arbitration, Class Action Waiver), and 14 (Miscellaneous) and rights and obligations in this Agreement which, by their nature, should (or by their express terms do) survive or extend beyond the termination or expiration of this Agreement, will survive and extend.

 

7. REPRESENTATIONS, WARRANTIES, AND WAIVERS.

7.1. Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the full right, power, and authority to enter into and perform its obligations under this Agreement; (b) its performance of its obligations under this Agreement will not result in a breach of any obligation to any third party; (c) such Party’s Marks and materials owned, licensed, developed or used in performance of this Agreement do not knowingly infringe or violate any third-party intellectual property right; (d) it will obtain any necessary permits, consents, certificates, approvals, inspections, releases, authorizations, and licenses and/or file any registration forms (if any) in connection with performing its obligations under this Agreement; and (e) it will comply with all applicable law, regulations, and rules in operating its business and performing its responsibilities hereunder. 

7.2. Merchant. Merchant represents and warrants that: (a) it will inform Dityer of any warnings, charges, opt-ins, and instructions related to Merchant Products that become required in the future; (b) it will not include any products restricted by Dityer (“Restricted Items”) as a Merchant Product available on a Dityer Platform, or request delivery of any Restricted Items through the Dityer Platform, provided that Dityer may allow promotion, sale or delivery of certain Restricted Items after Merchant has entered into a separate agreement with Dityer memorializing such promotion, sale, and/or delivery of such products in compliance with the Laws of the applicable jurisdiction in which such products will be sold; (c) it will not disclose any information related to a Deliverer or a Dityer Customer to a third party (except as required to comply with Law or pursuant to a court order); (d) it will comply with the guidelines Dityer publishes that govern any Merchant Content posts on the applicable Dityer Platform or Merchant Portal; (e) it shall not offer incentives or payments for reviews or ratings of its business on the Dityer Platform; and (f) it shall not use the Dityer Platform for any purpose that is detrimental to Dityer or the Dityer Platform. The list of Restricted Items is available at https://dityer.com/restrictedproducts and is updated by Dityer from time to time.

7.3. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1(c), TO THE EXTENT PERMITTED BY APPLICABLE LAW, DITYER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY DITYER PLATFORM, AND EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS IMPLIED, OR STATUTORY RELATED TO EQUIPMENT OR SERVICES PROVIDED TO THE OTHER, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. Merchant acknowledges that the operation of the Dityer Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Dityer will not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Dityer Platform nor for any guarantee of results with respect to the Dityer Platform or services. 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 this Agreement.

7.4. Compliance with Local Laws; Waivers. Each Party shall comply with applicable local laws and guidelines (“Local Laws”) currently in effect or enacted in the future. To the extent that Merchant avails itself of the Dityer Platform in jurisdictions where industry specific Local Laws apply, all such Local Laws are incorporated herein by reference. It shall be each Party’s responsibility to identify and comply with any additional laws that apply to their operations.

7.5. Remedies. In the event of a breach of Section 7.1(c), the non-breaching Party’s sole remedy, and the breaching Party’s sole liability, is indemnification pursuant to Section 8.1(e).

 

8. INDEMNIFICATION.

8.1. Dityer Indemnification. To the fullest extent permitted by Law, Merchant shall, at its own expense, defend, hold harmless, and indemnify Dityer for any and all Losses arising out of any third-party claim that alleges or results from: (a) any breach of Section 7 by the Indemnifying Party or its Personnel; (b) the gross negligence or more culpable act or omission of the Indemnifying Party or Personnel (including any reckless misconduct) in connection with the performance of this Agreement; (c) bodily injury (including death) or damage to tangible or real property to the extent caused by Merchant or its Personnel (including any reckless or willful misconduct) (except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Dityer, including Deliverers); (d) any Merchant Product; and (e) infringement or misappropriation of the intellectual property rights of any third party by the Merchant’s services (including, in the case of Dityer, the Dityer Platform, and in the case of Merchant, the Merchant Applications) or Marks.

8.2. Merchant Indemnification. Except as otherwise provided for in Section 8.4, Dityer shall not indemnify Merchant for any action, suit, claim, demand, loss, charge, cost, or expense which Merchant may suffer or incur as a result of or in connection with this Agreement. 

8.3. Process. The Indemnified Party shall provide the Indemnifying Party with: (a) prompt notice of any claims, which in no event shall be later than 30 calendar days after the Indemnified Party knew or reasonably should have known that the Indemnifying Party’s defense obligation had been triggered; (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 of the claim, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense and settlement at its own expense. 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.

8.4. Exceptions. Notwithstanding Section 8.2, Dityer shall indemnify Merchant against any insurance claims which may arise as a result of gross negligence or willful misconduct of a Deliverer, the aggregate liability not to exceed $10,000. 

9. LIMITATION OF LIABILITY.

9.1. Direct Damages Only. Except with respect to amounts payable to third parties under Section 8, neither Party will be liable to the other for consequential, special, incidental, punitive, exemplary, or indirect damages or for lost profits, lost revenues, harm to goodwill, or the costs of procuring replacement services, regardless of whether such damages were foreseeable. This limitation will apply to all claims under all theories of law and equity, except where prohibited by Law.

9.2. Limitation. Except in the event of a Party’s gross negligence or willful misconduct, or payment obligations, and where prohibited by Law (collectively, the “Limitation of Liability Exclusions”) or a Party’s indemnification obligations in this Agreement, the total liability of either Party to the other will not exceed $1,000. The total liability of either Party to the other for the Limitation of Liability Exclusions will not exceed $1,000. For clarity, a Party’s obligation to pay third parties under Section 8 are uncapped.

9.3. Franchisees. For Merchants operating a franchise or similar structure, this limitation of liability applies to all Merchant Locations and all franchisees cumulatively and not individually.

10.     CONFIDENTIALITY.

10.1.    Precedence. The terms of this Section 10 supersede any non-disclosure or confidentiality agreement entered into by the Parties prior to the Effective Date of this Agreement.

10.2.    Confidential Information. Confidential Information includes information about the Discloser’s business, including product designs, product plans, software and technology, financial information, marketing plans, business opportunities, pricing information, discounts, inventions, and know-how, to the extent disclosed to the Recipient hereunder, and all other information that the Recipient knew, or reasonably should have known, was Confidential Information of the Discloser. Confidential Information also includes the terms and conditions of this Agreement and the existence of the discussions between the Parties. Confidential Information includes trade secrets as defined under applicable law (which includes the Uniform Trade Secrets Act).

10.3.    Confidential Information Exclusions. Confidential Information does not include information that: (a) is independently developed; (b) is or becomes public knowledge through no act or omission of the Discloser; or (c) is received from a third party under circumstances that do not create a reasonable suspicion that such information has been misappropriated or improperly disclosed.

10.4.    Recipient Obligations. The Recipient shall: (a) use Confidential Information only as necessary to perform its obligations and/or exercise its rights under this Agreement; (b) hold Confidential Information in strict confidence and take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential materials); (c) not divulge any Confidential Information to any third party except as provided herein; and (d) not copy or reverse engineer any materials disclosed under this Agreement, or remove any proprietary markings from any Confidential Information.

10.5.    Recipient Personnel. The Discloser acknowledges that the Recipient’s Personnel may have access to the Discloser’s Confidential Information. Any such Recipient Personnel given access to any Confidential Information must have a legitimate “need to know,” and the Recipient shall remain responsible for Recipient Personnel’s compliance with the terms of this Agreement.

10.6.    Disclosure of Confidential Information. A Recipient may disclose Confidential Information as compelled by a court or regulator of competent authority, provided that the Recipient provides the Discloser with prompt written notice of such request, to the extent such notice is legally permissible and reasonably practicable.

 

11.     DATA PRIVACY AND SECURITY.

11.1.    Merchant shall not access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Dityer Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep Dityer Data secure from unauthorized access and maintain the accuracy and integrity of Dityer Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to Dityer Data, Merchant must immediately notify Dityer, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Dityer. Merchant shall implement and use security procedures, protocols or access credentials as reasonably requested by Dityer and will be responsible for damages resulting from Merchant’s failure to comply. Merchant shall not allow any third party to use the Dityer Platform and will be responsible for damages resulting from sharing Merchant’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Merchant’s account. Merchants shall 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 Dityer Platform; damage, destroy or impede the services provided through the Dityer Platform; transmit injurious code; or bypass or breach any security protection on the Dityer Platform. For purposes of clarity, Dityer Data is the Confidential Information of Dityer.

11.2.  The Recipient shall establish, maintain, and implement an information security program, including appropriate administrative, technical, organizational, and physical safeguards, that are designed to: (a) ensure the security and confidentiality of Personal Information provided by the Discloser; (b) protect against threats or hazards to the security or integrity of such Personal Information; (c) protect against unauthorized access to or use of such Personal Information; and (d) ensure the proper disposal or destruction of such Personal Information. Each Party shall at all times comply with applicable data privacy and security Laws. If the Recipient becomes aware of any unauthorized access to or loss of Personal Information, it shall promptly report such incident to the Discloser and take appropriate remedial actions.

 

12.     INSURANCE.

12.1.    General. The insurance amounts indicated are minimum requirements and not limits of liability, and they are not to be construed as a Party’s consent to substitute its financial liability in excess of the amounts provided in Section 9.

12.2.    Minimum Insurance Requirements. Each Party shall maintain at its sole cost and expense: (a) worker's compensation and employers’ liability insurance with limits no less than the minimum amount required by Law for each accident, including occupational disease coverage; (b) commercial general liability insurance, including product liability, and excess liability endorsements of $1,000,000 per occurrence; (c) cybersecurity insurance up to $1,000,000 per claim and in the aggregate; and (d) umbrella/excess liability insurance up to $2,000,000 and in the aggregate.

12.3.    Coverage. The policy limits stated above may be met in the form of primary and umbrella/excess coverage. Such insurance is primary and not contributory with the other Party’s insurance.

 

13.     GOVERNING LAW & DISPUTE RESOLUTION.

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER. THIS SECTION OF THIS AGREEMENT WILL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”

13.1.    Governing Law and Arbitration. This Agreement is governed by and interpreted in accordance with the laws of the State of Wisconsin.

13.2.    Scope of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with this Agreement or the use of any Dityer Platform or service provided by Dityer that cannot be resolved informally or in small claims court are to be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement.  All arbitration proceedings will be held in English. This Arbitration Agreement applies to you and Dityer, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or goods provided under the Terms of Service. This Arbitration Agreement will apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST DITYER IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

13.3.   Notice Requirement and Informal Dispute Resolution.  Before either Party may seek arbitration, the Party must first send to the other Party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief.  The Notice to Dityer must be sent to P.O. Box 26293 Milwaukee, WI 53226.  After the Notice is received, you and Dityer may attempt to resolve the claim or dispute informally.  If you and Dityer do not resolve the claim or dispute within 30 days after the Notice is received, either Party may begin an arbitration proceeding.  The amount of any settlement offer made by any Party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.

13.4.   Arbitration Rules and Forum.  Arbitration is to be initiated through the American Arbitration Association (“AAA”), an established alternative dispute resolution provider (“ADR Provider”) that offers arbitration as set forth in this section.  If AAA is not available to arbitrate, the Parties must select an alternative ADR Provider.  The rules of the ADR Provider govern all aspects of the arbitration, including the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms.  The AAA Consumer Arbitration Rules (“Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879.  The arbitration will be conducted by a single, neutral arbitrator.  Any claims or disputes where the total amount of the award sought is less than $10,000 U.S. Dollars may be resolved through binding non-appearance-based arbitration, at the option of the Party seeking relief.  For claims or disputes where the total amount of the award sought is $10,000 U.S. Dollars or more, the right to a hearing will be determined by the Arbitration Rules.  Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the Parties agree otherwise.  If you reside outside of the U.S., the arbitrator must give the Parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  If the arbitrator grants you an award that is greater than the last settlement offer that Dityer made to you prior to the initiation of arbitration, Dityer will pay you the greater of the award or $2,500.  Each Party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider. Each arbitration proceeding, including any discovery, hearings, and rulings, will be confidential to the fullest extent permitted by law. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Arbitration Agreement, either Party may seek to enjoin the arbitration proceeding in court, and the arbitration will automatically be stayed pending the outcome of that proceeding.

13.5.   Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected, the arbitration will be conducted by telephone, online and/or based solely on written submissions; the specific manner will be chosen by the Party initiating the arbitration.  The arbitration will not involve any personal appearance by the Parties or witnesses unless otherwise agreed by the Parties.

13.6.   Time Limits. If you or Dityer pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.

13.7.   Arbitration Appeal. If the arbitration award includes any injunction or a monetary award that exceeds $100,000, then either Party may appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing Party within 14 days after the award has become final. 

13.8.   Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, will resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including any claim that all or any part of this Arbitration Agreement is void or voidable, except with respect to the Waiver of Class or Consolidated Actions, the enforceability of which can only be determined by a court. The arbitrator will determine all disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment. The arbitration will decide the rights and liabilities, if any, of you and Dityer. 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 this Agreement (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 will 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 Dityer subject to Section 13.7.

13.9.   Waiver of Jury Trial. YOU AND DITYER WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Dityer are instead electing to have all Disputes resolved by arbitration, except as specified in Section 13.2 above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

13.10.   Waiver of Class or Consolidated Actions; Severability. YOU AND DITYER 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 MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class, consolidated, and representative actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Dityer 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 14.1, after the conclusion of the arbitration of any arbitrable claims, and all other provisions of this Section 13 (Dispute Resolution) will remain in force. The Parties also waive the right to bring any claims for public injunctive relief. If, however, this waiver of public injunctive relief claims is deemed invalid or unenforceable with respect to a particular claim or dispute, then all such claims and disputes will then be resolved in arbitration. Notwithstanding any other provision in this Agreement, any claim that all or part of this Waiver of Class or Consolidated Actions is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. If any provision of this Section 13 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision will be severed and such adjudication will not affect the validity of the remainder of this Section 13. Nothing in this provision will prevent you or Dityer from participating in a class-wide, collective, or representative settlement of claims.

13.11.   Opt Out. Dityer’s updates to these Terms of Service do not provide a new opportunity to opt out of the Arbitration Agreement if you had previously agreed to a version of Dityer’s Terms of Service and did not validly opt out of arbitration. Dityer will continue to honor the valid opt outs of merchants who validly opted out of the Arbitration Agreement in a prior version of the Terms of Service. If you create a Dityer account for the first time on or after November 1, 2020, you may opt out of this Arbitration Agreement. If you do so, neither you nor Dityer may force the other to arbitrate as a result of this Agreement. To opt out, you must notify Dityer in writing of your intention to opt out by sending a letter, by First Class Mail, to Dityer LLC P.O. Box 26293 Milwaukee, WI 53226. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked by the later of 30 days after this Terms of Service update or 30 days after your first order on the Dityer Platform. Your notice must include your name and address, your Dityer username (if any), the email address you used to set up your Dityer 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 merchant, and letters that purport to opt out multiple merchants will not be effective as to any. No merchant (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. 

13.12.   Survival. This Arbitration Agreement will survive any termination of your relationship with Dityer.

13.13.   Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts will be of no force and effect and must be severed and the remainder of the Agreement will continue in full force and effect.

13.14.   Right to Waive.  Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted.  Such waiver will not waive or affect any other portion of this Arbitration Agreement.

13.15.   Claims not Subject to Arbitration. Despite this Section 13, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets are not subject to this Arbitration Agreement.

13.16.   Courts. In any circumstances where this Arbitration Agreement permits the Parties to litigate in court, the Parties submit to the personal jurisdiction of the courts located within Milwaukee County, Wisconsin, for such purpose. The parties consent to the exclusive jurisdiction of those courts, and each party waives any objections it may now or later have with respect to the venue or convenience of the forum.

13.17.   Emergency Equitable Relief. Despite this Section 13, either Party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration.  A request for interim measures will not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.

13.18.  Modification. Notwithstanding any provision in the Agreement to the contrary, any future material changes Dityer makes to this Arbitration Agreement will not apply to any individual claim(s) that you had already provided notice of to Dityer.

 

14.     MISCELLANEOUS.

14.1.    Litigation Class Action Waiver. To the extent allowed by Law, separate and apart from the Arbitration Agreement found in Section 13, any proceeding to litigate in court any Dispute, whether because Merchant opted out of the Arbitration Agreement or any other reason, will be conducted solely on an individual basis, and Merchant shall not 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 Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). No proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all Parties to any such proceeding. The enforceability of this Litigation Class Action Waiver will only be determined by a court of competent jurisdiction. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void, or voidable with respect to a particular claim or Dispute, then all such claims or Disputes will be resolved in court, after the conclusion of the arbitration of any arbitrable claims or Disputes, and the remainder of this Arbitration Agreement will remain in full force and effect.

14.2.    Relationship of the Parties. Notwithstanding any provision to the contrary, each Party is an independent contractor with respect to its performance of its obligations hereunder. Nothing contained in this Agreement creates the relationship of partnership, principal, and agent, or joint venture between the Parties. Neither Party has any right or authority to incur obligations of any kind in the name of, or for the account of, the other Party nor to commit or bind the other Party to any contract or other obligation. Under no circumstances is either Party considered to be, nor will either Party hold itself out as, an employee, agent, franchisee, or joint venturer of the other Party.

14.3.    Regulatory Fees. If there is a Change in Law, Dityer may pass through such fees and/or costs generated as a result of the Change in Law to Merchant in the affected jurisdiction(s) with 15 days’ written notice. Merchant may terminate this Agreement in part with respect to the affected jurisdiction by providing Dityer with 15 days’ written notice from the date of Dityer’s notice. Notwithstanding the foregoing, either Party may exercise its termination rights, either in whole or in part as it pertains to the affected store or jurisdiction.

14.4.    Partner Code of Conduct. Both Parties shall comply with the version of the Partner Code of Conduct published at https://dityer.com/codeofconduct, or such other internal code of conduct in effect with Merchant, that Merchant affirms substantially conforms with the Partner Code of Conduct. 

14.5.    Counterparts. This Agreement may be executed in one or more counterparts and signed copies may be delivered by email, in which event, each of which is deemed an original, and all of which together constitute one agreement.

14.6.    Entire Agreement. This Agreement represents the entire agreement between Dityer and Merchant with respect to the subject matter hereof, and supersedes all prior agreements with respect to the subject matter hereof.

14.7.    No Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both Parties. The waiver by any Party of any breach or default will not constitute a waiver of any different or subsequent breach or default.

14.8.    Assignment. Neither Party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent may not be unreasonably withheld, and any attempted assignment without such consent will be void; provided that either Party may assign this Agreement without such consent, to an Affiliate, or in connection with any merger, consolidation, sale of all or substantially all of the assigning Party’s assets, or any other similar transaction. Subject to Section 14.8, this Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each Party. This Agreement will not confer any rights or remedies upon any person other than the Parties, their respective successors, and permitted assigns.

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

14.10.    Notices. Legal notices to either Party will be sent to the applicable address on the Services Schedule, or such other address as the Party communicates in writing.

14.11.  Use Only Where Legally Allowed. Merchant shall not access or use the Dityer Platform or any portion of the Dityer Platform if it is not legally allowed to do so where it is located.

14.12.  Third-Party Add-On Features. From time to time, Dityer may make available third-party add-on features (“Third-Party Add-On Features”) for use with the Dityer Platform. Third-Party Add-On Features are not included within the definition of Dityer Platform under this Agreement, and Dityer hereby expressly disclaims all warranties, express, implied, or statutory, regarding Third-Party Add-On Features, including any implied warranties of merchantability, title, satisfactory quality or results, or fitness for a particular purpose and non-infringement. Dityer also makes no representations or warranties regarding availability of any Third-Party Add-On Feature. Third-Party Add-On Features may be discontinued by Dityer and/or the third-party provider at any time, with or without cause.

14.13.  Communications from Dityer. Dityer may send communications to Merchant, including via email, text message, calls, and push notifications. Merchant may opt out of promotional SMS at any time by texting “STOP.” Message and data rates may apply.

14.14.  Copyright Infringement. If you believe that your work has been copied and posted on the Dityer Platform in a way that constitutes copyright infringement, please email [email protected] with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Dityer Platform of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. 

 

15.  ADDITIONAL TERMS FOR NON-ENTERPRISE MERCHANTS.

15.1.    Fees.

15.1.1.       Dityer shall be entitled to deduct from such payments Dityer’s Fees, marketing fees (for identifiable orders), activation fees, subscription fees, and any other fees which Dityer may notify you regarding with at least 7 days’ advance written notice.

15.1.2.       To the extent that a third party provider provides services to Merchant on basis of an agreement between third party provider and Merchant via the Dityer Platform (for example, a middleware provider) and charges fees to Dityer, Dityer may pass through such third party’s fees to Merchant.

15.1.3.       Merchant shall, on an ongoing basis, review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to Dityer in writing (email shall suffice for written notice) any claimed inaccuracies, so that Dityer has the prompt opportunity to address and resolve any issues and so such issues do not persist. Merchant shall communicate to Dityer any disagreement, non-conformity or any issue with any transaction, fee, charge or order, including in connection with fraudulent transactions or payments, within 14 days of the transaction, fee or order.

 

16.  DEFINITIONS. For purposes of the Agreement, the following terms shall have the meanings set forth below. Note that certain terms may not appear in these Terms of Service but may appear in the Services Schedule.

16.1.    “Affiliate” means an entity controlled by, controlling or under common control with a Party.

16.2.    “API Call” means any query, request for information, search request or other call to or via the data APIs.

16.3.    “Change in Law” means a material change in (or change in enforcement thereof) Law, labor standard or unionization pertaining to independent contractors and/or the delivery of goods.

16.4.    “Commission Fee” means the commission fee as set forth in the Services Schedule.

16.5.    “Confidential Information” means all confidential, proprietary, or nonpublic information provided by the Discloser to the Recipient that a reasonable industry participant would deem to be confidential, as further described in Section 10.

16.6.    “Customer” means “Dityer Customer” and “Merchant Customer” collectively or individually, as the context requires.

16.7.    “Deliverer” means an entity or individual that will render the Delivery Order to the Customer.

16.8.    “Delivery Fee” means the fee as set forth in the Services Schedule.

16.9.    “Delivery Order” means an Order that is delivered by a Deliverer.

16.10.  “Discloser” means the Party disclosing Confidential Information.

16.11.  “Dispute” means any dispute, claim or controversy arising out of, relating to, or in connection with this Agreement, including the breach, termination, enforcement, interpretation or validity thereof (as well as the determination of the formation, scope, or applicability of the arbitration agreement in Section 13) or the relationship between the Parties, their affiliates and subsidiaries, and each of their respective owners, directors, managers, and personnel.

16.12. “Dityer API” means the Dityer application programming interface that enables the exchange of information between Dityer and Merchant. 

16.13.  “Dityer Customer” means the end user accessing the Dityer Platform to place an Order.

16.14.  “Dityer Data” means any information that Dityer provides or makes accessible to Merchant, including Personal Information.

16.15.  “Dityer IP” includes all patents, patent applications, inventions, copyrights, trade secrets, Marks, ideas, images (including descriptions of such images), domain names, and any and all other works and materials developed by Dityer (including all intellectual property rights therein and thereto), and similar rights owned by Dityer that are embodied in the Dityer Platform or any other Dityer technology or platform.

16.16.  “Dityer Platform” means the Dityer API, Dashboard, Website, and any related Dityer technology made available by Dityer to Merchant under this Agreement (including any mobile application and web-based platform, if and when developed and made available by Dityer) designed to facilitate the submission and receipt of information regarding Orders and Related Goods. References to the “Dityer Platform” include the Dityer Product Documentation.

16.17.  “Dityer Product Documentation” means documentation, specifications, and other materials (whether written or electronic) that describe the operation or function of a Dityer Platform.

16.18. “Dityer Platform Fee” means the subscription fee Merchant shall pay to Dityer as set forth in the Services Schedule. 

16.19.  “Fees” means the fees indicated in the Services Schedule for the applicable Dityer Platform, including but not limited to, Dityer Platform Fee, Commission Fee, Delivery Fee, Pickup Fee, and Successful Transaction Charge, plus all tips paid by Customer, and may include separate fees for different Order types, if applicable.

16.20.  “Feedback” means any comments, suggestions, or ideas for improvement regarding the Dityer Platform or the Dityer Product Documentation, or Merchant’s evaluation and use thereof.

16.21.  “including” means “including without limitation”.

16.22.  “Indemnified Party” means the Party entitled to or seeking indemnification, pursuant to the terms of this Agreement, and its affiliates, respective officers, directors, shareholders, Personnel, successors, and permitted assigns.

16.23.  “Indemnifying Party” means the Party indemnifying the other Party pursuant to the terms of this Agreement.

16.24.  “Law” means all laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to the referenced Party.

16.25.  “Licensee” means the Party receiving the license described in Section 5.

16.26.  “Licensor” means the Party granting the license described in Section 5. As it pertains to Dityer, an Affiliate of Dityer may be considered a “Licensor” hereunder.

16.27.  “Losses” means the resulting damages, liabilities, judgments, fines, settlements, court costs, and attorneys’ fees that are incurred by the Indemnified Party, in each case finally awarded by a court of competent jurisdiction.

16.28. “Marketplace Account” means an account through which a Merchant may sell its goods and schedule deliveries of its goods using the Software.  

16.29.  “Marks” means a business name, trade names, trademarks, service marks, and logos (including third-party marks to which the Licensor has rights and uses in its business). 

16.30.  “Merchant Application” means the software and/or system(s) that are used by Merchant (if any) to provide digital order solutions and services to Customers generally, including Merchant’s website.

16.31.  “Merchant Content” includes, without limitation, photographs (either provided by Merchant or on Merchant’s website), business information and Merchant Product descriptions (either provided by Merchant or on Merchant’s website), trademarks, logos, Merchant name, location, url, phone number, and other materials provided by Merchant to Dityer.

16.32.  “Merchant Customer” means the Customer accessing the Merchant Application(s) to place an Order.

16.33.  “Merchant Location” means the Merchant store, location, or warehouse that are within the territory serviced by Dityer and includes: (a) Merchant Locations owned and operated by Merchant and/or its affiliates, and/or (b) Merchant Locations owned and operated by franchisees of Merchant or its affiliates which have signed the Franchisee Agreement.

16.34.  “Merchant Portal” means the portal made available by Dityer to Merchant which provides Merchant with Order sales information and other functionality in connection with Merchant’s relationship with Dityer. For purposes of the Agreement, the Merchant Portal is a part of the Dityer Platform.

16.35.  “Merchant Product” means the goods prepared, distributed, and/or sold by Merchant.

16.36.  “Personnel” means a Party’s employees, agents, contractors, or subcontractors.

16.37.  “Order” means Delivery Orders.

16.38.  “Order Equipment” means any equipment reasonably required by Dityer for Merchant to receive, process and accept Orders (including a tablet or other technology capable of receiving Orders).

16.39.  “Party” or “Parties” means Dityer or Merchant, or both, as the context requires.

16.40.  “Personal Information” means any information that (a) relates to an identified or identifiable natural person (including names, telephone numbers, addresses, signatures, email addresses, and/or other unique identifiers); or (b) that can reasonably be used to identify or authenticate an individual, directly or indirectly (including name, contact information, precise location information, access credentials, persistent identifiers, and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law, including, if applicable, the General Data Protection Regulation (GDPR)), which is collected and/or handled by any of the Parties in connection with this Agreement.

16.41.  “Recipient” means the Party receiving Confidential Information.

16.42. “Pickup Fee” means the fee as set forth in the Services Schedule.

16.43.  “Scheduled Order” means an Order that the Customer or Merchant indicates should be delivered at some point in the future.

16.44. “Services Schedule” means the schedule that details the rates and fees that Merchant shall pay for the Dityer Platform that Merchant opts into and/or uses. 

16.45. “Software as a Service (SaaS) Account” means an account used to connect the Dityer Platform to the Merchant’s own website and/or mobile application. 

16.46. “Successful Transaction Charge” means the fee as set forth in the Services Schedule.

16.47.  “Term” means the period from the Effective Date until the date of termination.

16.48.  “Third Party Platform” means a third party’s technology interface, such as a middleware technology platform, other than the Dityer Platform and Merchant Applications, that enables Merchant to request delivery fulfillment and/or provide information necessary to enable such delivery fulfillment.

16.49. “Total Sales” means the gross amount of money that Dityer receives from a Customer for a Merchant Product during an invoice period that will be remitted to the Merchant. 

16.50.  “Unattended Order” means an Order that the Deliverer leaves at the Customer’s front door or similar location.