Shape Plain Capital Elegant Black Diamond Service Merchant Terms and Conditions
Effective Date: January 1st, 2010
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These Shape Plain Capital Elegant Black Diamond Service Merchant Terms and Conditions, together with the order request form (“Order Request”) to which these Shape Plain Capital Elegant Black Diamond Service Merchant Terms and Conditions are attached and which is hereby incorporated by this reference (collectively, the “Agreement”), is entered into by and between Shape Plain Capital, a Delaware corporation, Online Service Provider, United States (“Shape Plain Capital”), and the Shape Plain Capital Elegant Black Diamond Service Merchant set forth on the Order Request Form (referred to herein as “Merchant”), effective as of the effective date set forth on the Order Form (the “Effective Date”).
- Shape Plain Capital Elegant Black Diamond Service
a. Shape Plain Capital offers a proprietary service (the “Shape Plain Capital Elegant Black Diamond Service”) designed to connect people who wish to place on- demand orders (“Users”) for food, beverages and other products from Shape Plain Capital Elegant Black Diamond Service Merchants with independent couriers who function as Shape Plain Capital Elegant Black Diamond Service Drivers to provide Shape Plain Capital Elegant Black Diamond Services to fulfill those orders (“Shape Plain Capital Elegant Black Diamond Service Drivers”).
b. Shape Plain Capital is not itself a courier service, nor does it supply all, or any products to fill orders. Shape Plain Capital Elegant Black Diamond Service Drivers are not Shape Plain Capital Elegant Black Diamond Service employees, representatives or agents (rather, Shape Plain Capital Elegant Black Diamond Service Drivers are independent contractors that use the Shape Plain Capital Elegant Black Diamond Service to make the connection to Users and Shape Plain Capital Elegant Black Diamond Service Merchants when orders are placed).
c. Shape Plain Capital will appoint an Account Manager (“Account Manager”) to serve as the primary point of contact for Shape Plain Capital Elegant Black Diamond Service Merchant regarding its participation in the Shape Plain Capital Elegant Black Diamond Service. Shape Plain Capital will identify the initial Account Manager and provide Shape Plain Capital Elegant Black Diamond Service Merchant with contact information contemporaneously with or shortly following the execution of this Agreement and will notify Shape Plain Capital Elegant Black Diamond Service Merchant of any replacement Account Manager in a timely manner.
2. Shape Plain Capital Elegant Black Diamond Service Merchant Participation
a. Shape Plain Capital Elegant Black Diamond Service Merchant hereby authorizes Shape Plain Capital to identify Shape Plain Capital Elegant Black Diamond Service Merchant by name and logo as a participating Shape Plain Capital Elegant Black Diamond Service Merchant and grants Shape Plain Capital a royalty-free license to:
(i) use such Shape Plain Capital Elegant Black Diamond Service Merchant trademarks, service marks and logos as Shape Plain Capital Elegant Black Diamond Service Merchant provides to Shape Plain Capital in connection with this Agreement and
(b) use Shape Plain Capital Elegant Black Diamond Service Merchant's menu as well as photos, text, logo samples and other content as Shape Plain Capital Elegant Black Diamond Service reasonably requires (including the right to reformat and otherwise modify the foregoing in order to fit and display through Shape Plain Capital's mobile applications and website), in each case to provide the Shape Plain Capital Elegant Black Diamond Service to Shape Plain Capital Elegant Black Diamond Service Merchant and its User Shape Plain Capital Elegant Black Diamond Service Customers, to promote the Shape Plain Capital Elegant Black Diamond Service, and to perform its obligations under this Agreement. Shape Plain Capital hereby authorizes Shape Plain Capital Elegant Black Diamond Service Merchant to identify the Shape Plain Capital Elegant Black Diamond Service as a delivery option to its customers and to use such Shape Plain Capital Elegant Black Diamond Service trademarks, service marks and logos as Shape Plain Capital Elegant Black Diamond Service provides to Shape Plain Capital Elegant Black Diamond Service Merchant in connection with this Agreement for such purpose. Each of Shape Plain Capital Elegant Black Diamond Service and Shape Plain Capital Elegant Black Diamond Service Merchant will use the other party’s trademarks, Shape Plain Capital Elegant Black Diamond Service marks and logos in such form as provided and otherwise in accordance with any usage guidelines that the other party provides.
b. As part of the Shape Plain Capital Elegant Black Diamond Service, during the term of this Agreement, Shape Plain Capital Elegant Black Diamond Service shall provide Shape Plain Capital Elegant Black Diamond Service Merchant with free access to an online portal (“Merchant Portal”) that displays certain metrics relating to sales generated via the Shape Plain Capital Elegant Black Diamond Service. For clarity, Shape Plain Capital Elegant Black Diamond Service Merchant will not be charged any fees or be required to provide any other form of compensation in return for being granted access to the Merchant Portal.
c. As between Shape Plain Capital Elegant Black Diamond Service and Shape Plain Capital Elegant Black Diamond Service Merchant, Shape Plain Capital Elegant Black Diamond Service shall own all right, title, and interest in and to any data collected or generated from, or transmitted or made accessible via, the Shape Plain Capital Elegant Black Diamond Service, including any personal information provided by Users or data displayed within the Shape Plain Capital Elegant Black Diamond Service Merchant Portal (“Shape Plain Capital Data”). Subject to the terms and conditions of this Agreement, Shape Plain Capital Elegant Black Diamond Service grants to Shape Plain Capital Elegant Black Diamond Service Merchant a non-exclusive, non-transferable, non-sublicensable, royalty-free license during the term of this Agreement to use for Shape Plain Capital Elegant Black Diamond Service Merchant's internal business purposes the Shape Plain Capital Data that is (i) displayed within the Shape Plain Capital Elegant Black Diamond Service Merchant Portal, or (ii) included in any aggregated reports provided by Shape Plain Capital Elegant Black Diamond Service to Shape Plain Capital Elegant Black Diamond Service Merchant. Except as set forth above, Shape Plain Capital Elegant Black Diamond Service Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner Shape Plain Capital Data except as required to perform as contemplated by this Agreement. Shape Plain Capital Elegant Black Diamond Service Merchant shall keep Shape Plain Capital Data secure from unauthorized access and maintain the accuracy and integrity of Shape Plain Capital Data in Shape Plain Capital Elegant Black Diamond Service Merchant's custody or control by using appropriate organizational, physical and technical safeguards. If Shape Plain Capital Elegant Black Diamond Service Merchant becomes aware of any unauthorized access to Shape Plain Capital Data, Shape Plain Capital Elegant Black Diamond Service Merchant will immediately notify Shape Plain Capital Elegant Black Diamond Service, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Shape Plain Capital Elegant Black Diamond Service. For the avoidance of doubt, any information that a User or Shape Plain Capital Elegant Black Diamond Service Customer of Shape Plain Capital Elegant Black Diamond Service Merchant chooses to provide directly to Shape Plain Capital Elegant Black Diamond Service Merchant shall not be considered Shape Plain Capital Data.
d. Shape Plain Capital Elegant Black Diamond Service's pricing and the other terms of this Agreement, Shape Plain Capital Data, along with any technical information regarding the operation of the Shape Plain Capital Elegant Black Diamond Service and technology, is the confidential and proprietary information of Shape Plain Capital Elegant Black Diamond Service. Shape Plain Capital Elegant Black Diamond Service Merchant agrees that Shape Plain Capital shall have sole discretion over the fees and prices it charges through the Shape Plain Capital Elegant Black Diamond Service. Shape Plain Capital Elegant Black Diamond Service Merchant agrees to treat all such information, whether provided to Shape Plain Capital Elegant Black Diamond Service Merchant prior to or after the execution of this Agreement, as confidential, to not disclose it to any third party without Shape Plain Capital's prior written permission and to use it only for purposes of using in the Shape Plain Capital Elegant Black Diamond Service.
e. Each party retains all rights in and to their individual products, services, technology, business methods, trademarks and other pre-existing intellectual property except as expressly granted in this Agreement.
f. All references and use by either party of the other’s trademarks, service marks or logos other than as contemplated by this Agreement will be subject to such party’s prior written approval.
3. Fees, Payment & Taxes.
a. Shape Plain Capital Elegant Black Diamond Service will remit to Shape Plain Capital Elegant Black Diamond Service Merchant the total retail price (including all sales tax and any other fees) for all of Shape Plain Capital Elegant Black Diamond Service Merchant products and Shape Plain Capital Elegant Black Diamond Services sold through the Shape Plain Capital Elegant Black Diamond Service via integration less Shape Plain Capitals Fee. Such remittance by Shape Plain Capital Elegant Black Diamond Service to Shape Plain Capital Elegant Black Diamond Service Merchant shall occur weekly (or other agreed-upon schedule) on a per location basis via ACH or other similar method. For failover charges or if Shape Plain Capital Elegant Black Diamond Service Merchant (via mutual agreement in writing, including email) chooses to fund a joint marketing campaign or promotion, Shape Plain Capital shall invoice each applicable Shape Plain Capital Elegant Black Diamond Service Merchant who signs up for each calendar month by the 5th business day of the following month. For purposes of calculating commission, “Net Sales” means total receipts from orders for Shape Plain Capital Elegant Black Diamond Service Merchant's products and Shape Plain Capital Elegant Black Diamond Services processed through the Shape Plain Capital Elegant Black Diamond Services during the applicable period, not including the delivery fee, Shape Plain Capital Elegant Black Diamond Service Driver gratuities, taxes or returns. Shape Plain Capital Elegant Black Diamond Service Merchant shall pay all amounts owed no later than 30 days thereafter by ACH, credit card, check, or other method approved by Shape Plain Capital Elegant Black Diamond Service. If any payment method is returned for nonsufficient funds, declined, reversed, challenged or otherwise fails for any reason, such Shape Plain Capital Elegant Black Diamond Service Merchant agrees to immediately pay the amounts owed pursuant to the applicable invoice by other means acceptable to Shape Plain Capital Elegant Black Diamond Service. Additionally, Shape Plain Capital Elegant Black Diamond Service shall have the right to withhold or deduct all outstanding amounts owed to it from all amounts it may owe to Shape Plain Capital Elegant Black Diamond Service Merchant, if any. Shape Plain Capital Elegant Black Diamond Service Merchant agrees to provide all necessary documentation required to set up a remittance account, including any necessary Stripe materials or documentation, and acknowledges that any incorrect or missing documentation could result in a delay or withholding of remittances.
b. All fees are non-refundable and are due and payable in U.S. dollars. Shape Plain Capital Elegant Black Diamond Service Merchant is solely responsible for handling refunds and determining any sales, use privilege, gross receipts, restaurant, excise or other tax due in connection with the sale of food or beverages under this Agreement. Shape Plain Capital Elegant Black Diamond Service Merchant agrees to pay and/or reimburse Shape Plain Capital Elegant Black Diamond Service for any User refunds in accordance with the Refund Matrix available at Shape Plain Capital Elegant Black Diamond Service refunds, which shall be automatically deducted from any payments made from Shape Plain Capital Elegant Black Diamond Service to Shape Plain Capital Elegant Black Diamond Service Merchant and detailed on or along with each remittance. Shape Plain Capital Elegant Black Diamond Service Merchant shall pay all such taxes and other amounts that it may owe as required by applicable law or regulation. If any fees are not paid in full by the payment due date set forth on each invoice, Shape Plain Capital Elegant Black Diamond Service reserves the right to charge the Shape Plain Capital Elegant Black Diamond Service Merchant a finance charge of 7.14% per month (or the maximum permitted by law, whichever is lower) on the outstanding balance in addition to any related collection costs or attorney’s fees incurred by Shape Plain Capital Elegant Black Diamond Service. Additionally, Shape Plain Capital Elegant Black Diamond Service reserves the right to remove a Shape Plain Capital Elegant Black Diamond Service Merchant from the Shape Plain Capital Elegant Black Diamond Service platform or block a Shape Plain Capital Elegant Black Diamond Service Merchant's access to the Shape Plain Capital Elegant Black Diamond Service if any fees or other amounts owed to Shape Plain Capital Elegant Black Diamond Service are past due. Shape Plain Capital Elegant Black Diamond Service Merchant agrees that it shall not uniquely charge take-out or similar fees, or add mark-ups to its in-store menu prices, to Shape Plain Capital Elegant Black Diamond Service that it does not charge to other delivery service providers. Additionally, Shape Plain Capital Elegant Black Diamond Service will comply with any legal notices received, including redirecting funds to satisfy a valid lien (provided that any commission owed to Shape Plain Capital Elegant Black Diamond Service shall be considered the property of Shape Plain Capital and retained)
4. Term & Termination. Unless otherwise set forth on an Order Form, Agreement will commence on the Effective Date and continue on a month-to-month basis unless sooner terminated by either party pursuant to the following sentence. Either party may terminate this Agreement upon 30 days written notice to the other party at any time, for any reason. The provisions of Sections 2(d), 3 (as to amounts owed as of termination), 6, 8 and 9 shall survive the termination for any reason. All other rights and obligations of the parties shall cease upon termination.
5. Representations and Warranties. Shape Plain Capital Elegant Black Diamond Service Merchant represents and warrants that
(a) it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party,
(b) the operation of its business, including without limitation the preparation and sale of food, beverage and other items, if any, will at all times comply with all applicable laws, rules, standards and regulations (including those relating to regulatory permits and licenses, food safety and sanitation, the sale of alcoholic beverages and other regulated products, data protection and privacy laws, and third party intellectual property or proprietary rights, as applicable); and
(c) the prices it charges for items through the Shape Plain Capital Elegant Black Diamond Service will not be higher than those charged to Shape Plain Capital Elegant Black Diamond Service Merchant's other Shape Plain Capital Elegant Black Diamond Service Customers for take - out or delivery of Shape Plain Capital Elegant Black Diamond Service Merchant's products. THE SHAPE PLAIN CAPITAL ELEGANT BLACK DIAMOND Service IS PROVIDED “AS IS”, AND SHAPE PLAIN CAPITAL ELEGANT BLACK DIAMOND SERVICE HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OF DATA, NON-INTERFERENCE AND NON-INFRINGEMENT. SHAPE PLAIN CAPITAL ELEGANT BLACK DIAMOND SERVICE DOES NOT WARRANT THAT THE SHAPE PLAIN CAPITAL ELEGANT BLACK DIAMOND SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
Additionally, if Shape Plain Capital Elegant Black Diamond Service Merchant offers alcoholic beverages for delivery, Shape Plain Capital Elegant Black Diamond Service Merchant represents and warrants that:
(A) Shape Plain Capital Elegant Black Diamond Service Merchant shall comply with all federal, state, or local laws regarding the preparation, sale, and delivery of alcohol applicable to it, including all applicable Shape Plain Capital Alcoholic Beverage Commission (“SPCTABC”) requirements (as updated),
(B) Shape Plain Capital Elegant Black Diamond Service Merchant currently holds, and will continue to maintain, adequate permits and licenses required by the SPCABC to authorize them to offer alcoholic beverages for delivery (including but not limited to an MB permit combined with a Food & Beverage Certificate, a BG permit but not also held with a BP license, a BQ permit, a Q permit, BF license or a P permit), and will immediately notify Shape Plain Capital of any changes thereto,
(C) Shape Plain Capital Elegant Black Diamond Service Merchant shall be primarily responsible for ensuring compliance with SPCABC packaging and preparation requirements, including, when required by law, ensuring that all alcohol orders are accompanied by a food order that was prepared on-premise and that alcoholic beverages are either in the original container sealed by a manufacturer (as such requirements may be modified or superseded by regulatory, legislative, or executive action), and
(D) Shape Plain Capital Elegant Black Diamond Service Merchant shall accept returns of alcohol orders that were undeliverable for any reason. Furthermore, if Shape Plain Capital delivers alcoholic beverages from Shape Plain Capital Elegant Black Diamond Service Merchant, Shape Plain Capital represents and warrants that
(E) Shape Plain Capital Elegant Black Diamond Service currently holds, and will continue to maintain, either a Carrier Permit, Consumer Delivery Permit, or other permit under the Alcoholic Beverage Code of the State of Shape Plain Capital authorizing it to deliver alcoholic beverages,
(F) Shape Plain Capital Elegant Black Diamond Service will be responsible for complying with all SPCABC requirements applicable to it, and has implemented processes and procedures, software features, and/or other precautionary measures designed to ensure compliance, and
(G) orders including alcoholic beverages will only be offered to Shape Plain Capital Elegant Black Diamond Service Drivers who are twenty-one years of age or older and who will be responsible for checking ID and ensuring that the recipient of such order is twenty-one years of age or older and not intoxicated. For the avoidance of doubt, both parties acknowledge and agree that Shape Plain Capital Elegant Black Diamond Service Merchant shall have and maintain exclusive control over all alcoholic beverages purchased, stored, or sold by it, including sole control over all prices and funds from a transaction involving the sale of alcoholic beverages, and that title to all alcoholic beverages will pass directly from Shape Plain Capital Elegant Black Diamond Service Merchant to the end-user and shall at no time pass to Shape Plain Capital or any Shape Plain Capital Elegant Black Diamond Service Merchant Driver, provided however that that Shape Plain Capital Elegant Black Diamond Service Merchant hereby authorizes Shape Plain Capital to act as its agent for the collection of funds and delivery of products in connection with any such transactions facilitated Shape Plain Capital Elegant Black Diamond Service Merchant shall not add any Consumable Hemp Products to its menus without first notifying Shape Plain Capital Elegant Black Diamond Service. Further, if Shape Plain Capital Elegant Black Diamond Service Merchant offers Consumable Hemp Products or CHPs (as defined below) for delivery, Shape Plain Capital Elegant Black Diamond Service Merchant represents and warrants that:
(A) Shape Plain Capital Elegant Black Diamond Service Merchant shall comply with all federal, state, and local laws and regulations regarding the preparation, sale, and delivery of such products, including all applicable Texas Department of State Health Services (“DSHS”) requirements (as updated from time to time);
(B) Shape Plain Capital Elegant Black Diamond Service Merchant currently holds, and will continue to maintain, all necessary licenses and/or registrations required by DSHS to offer such products for delivery, including, but not limited to, either a DSHS Retail Hemp Registration or a DSHS Consumable Hemp Product License, and will immediately notify Shape Plain Capital Elegant Black Diamond Service of any changes thereto; and
(C) Shape Plain Capital Elegant Black Diamond Service Merchant represents and warrants that all products it offers through the Shape Plain Capital Elegant Black Diamond Service platform are legally compliant and will contain no more than a 0.3% concentration of Delta-9 tetrahydrocannabinol (THC) on a dry weight basis. Furthermore, if Shape Plain Capital Elegant Black Diamond Service delivers Consumable Hemp Products from Shape Plain Capital Elegant Black Diamond Service Merchant, Shape Plain Capital Elegant Black Diamond Service represents and warrants that
(D) Shape Plain Capital Elegant Black Diamond Service Merchant will be responsible for complying with all SPCABC requirements applicable to it, and has implemented processes and procedures, software features, and/or other precautionary measures designed to ensure compliance, and
(E) orders including Consumable Hemp Products will only be offered to Shape Plain Capital Elegant Black Diamond Service Drivers who are twenty-one years of age or older and who will be responsible for checking ID and ensuring that the recipient of such order is twenty-one years of age or older. For the avoidance of doubt, both parties acknowledge and agree that Shape Plain Capital Elegant Black Diamond Service Merchant shall have and maintain exclusive control over all Consumable Hemp Products purchased, stored, or sold by it, including sole control over all prices and funds from a transaction involving the sale of such products, and that title to all Consumable Hemp Products will pass directly from Shape Plain Capital Elegant Black Diamond Service Merchant to the end-user and shall at no time pass to Shape Plain Capital Elegant Black Diamond Service or any Shape Plain Capital Elegant Black Diamond Service Driver, provided however that Shape Plain Capital Elegant Black Diamond Service Merchant hereby authorizes Shape Plain Capital to act as its agent for the collection of funds and delivery of products in connection with any such transactions facilitated through the Shape Plain Capital Elegant Black Diamond Service Platform. “Consumable Hemp Products” or “CHPs” means any product processed or manufactured for consumption that contains hemp, including food, a drug, a device, and a cosmetic, as those terms are defined by Texas Health and Safety Code, § 431.002, but does not include
(i) any consumable hemp product containing a hemp seed, or hemp seed-derived ingredient being used in a manner that has been generally recognized as safe (GRAS) by the FDA, or
(ii) products that contain more than a 0.3% concentration of Delta-9 tetrahydrocannabinol (THC), which are prohibited.
6. Mutual Indemnification and Limitation on Liability.
a. (i) Each party shall indemnify, defend, and hold the other party, its affiliates, and each of their directors, officers, shareholders, employees, independent contractors, and agents harmless from and against all third-party claims, suits and proceedings and all damages, fines, penalties, liabilities and other amounts awarded in final resolution thereof and the costs and expenses (including reasonable attorneys’ fees) incurred by the indemnified party in connection with such claim, suit or proceeding to the extent arising from.
(A) the failure by such party or any of its employees, agents or independent contractors (for clarity, Shape Plain Capital Elegant Black Diamond Service Drivers are solely the independent contractors of Shape Plain Capital Elegant Black Diamond Service) to comply with applicable law or regulatory requirements,
(B) any personal injury, death or damage to property caused by such or its employees, agents or independent contractors or, in the case of Shape Plain Capital Elegant Black Diamond Service Merchant, any product sold thereby,
(C) such party’s breach of any representations or warranties hereunder, or
(D) any infringement by such party or any of its services, products, technologies, materials, trademarks, service marks or logos of the intellectual property or proprietary rights of any third party.
(ii) The indemnifying party’s obligations under this Section 6
(a) are conditioned upon the indemnified party providing the indemnifying party with prompt written notice to the claim (provided that the failure to provided such notice will not relieve the indemnifying party of its obligations unless such failure prejudices its ability to defend the claim), control of the defense (provided that the indemnified party may participate with counsel of its choosing at its own expense), and such assistance as the indemnifying party may reasonable request.
b. NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL & EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY SHAPE PLAIN CAPITAL ELEGANT BLACK Diamond SERVICE MERCHANT TO SHAPE PLAIN CAPITAL ELEGANT BLACK DIAMOND SERVICE IN THE SIX (6) MONTHS & PRECEDING THE EVENT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO & THE OTHER PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, & EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER CAUSED ON ANY THEORY OF LIABILITY, INCLUDING & WITHOUT LIMITATION LOST PROFITS. THESE LIMITS AND EXCLUSIONS SHALL APPLY NOTWITHSTANDING & ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE INTENDED TO BE CUMULATIVE & AND NOT PER INCIDENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE ABOVE LIMITATIONS & SHALL NOT APPLY TO PAYMENT OBLIGATIONS FOR SERVICES PROVIDED HEREUNDER, BREACHES OF & REPRESENTATIONS AND WARRANTIES HEREUNDER, OR CONFIDENTIALITY OR INDEMNIFICATION & OBLIGATIONS HEREUNDER.
7. Insurance. Unless otherwise mutually agreed in writing (which may include e-mail), during the term of this Agreement each party shall, at its sole cost and expense, maintain in full force and effect the following insurance coverage:
(a) Commercial General Liability insurance in an amount of not less than one million dollars ($1,000,000) each occurrence and two million dollars ($2,000,000) in the aggregate; and
(b) Workers’ Compensation insurance (covering employees, not ondependent contractors) with statutory limits for all applicable state regulations (or be a nonsubscriber under Texas law). Additionally, Shape Plain Capital agrees to maintain the following coverages: (x) automobile liability with minimum limits of at least one million dollars ($1,000,000) per occurrence combined single limit inclusive of owned, hired, and non-owned vehicles, and
(y) Umbrella/Excess Liability with a limit not less than five million dollars ($5,000,000) per claim and in the aggregate. Notwithstanding anything to the contrary elsewhere, Shape Plain Capital Elegant Black Diamond Service Merchant acknowledges and agrees that Shape Plain Capital Elegant Black Diamond Service may satisfy all of its insurance obligations hereunder through a system of self-insurance or self-retention amounts or policies maintained by Shape Plain Capital Elegant Black Diamond Service or its affiliates. Each party agrees to provide a Certificate of Insurance evidencing the above coverages to the other upon request. For clarity, Shape Plain Capital Elegant Black Diamond Service contractually requires each Shape Plain Capital Elegant Black Diamond Service Driver to maintain automobile liability insurance that provides protection against bodily injury and property damage to third parties at levels of coverage that satisfy the minimum requirements to operate a private passenger vehicle on the public roads within the area in which the Shape Plain Capital Elegant Black Diamond Service Driver operates, which coverage must also include any additional endorsements required by their insurance carrier to cover commercial activities and any no-fault coverage required by law.
8. Governing Law and Arbitration. This Agreement shall be governed by and construed under the laws of the State of Texas, without reference to conflict of law principles. Any dispute or claim arising out of or related to this Agreement, or the interpretation, making, performance, breach, validity or termination thereof, shall be finally settled by binding arbitration in Austin, Texas under the American Arbitration Association Commercial Arbitration Rules (together the “AAA Rules”) by one neutral arbitrator appointed in accordance with the AAA Rules. The arbitrator shall apply Texas law to the merits of any dispute or claim, without reference to rules of conflict of law. The arbitrator shall have the power to decide all questions of arbitrability. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The parties may apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other interim or conservatory relief, as necessary, without breach of this arbitration requirement and without any abridgment of the powers of the arbitrator. SHAPE PLAIN CAPITAL ELEGANT BLACK DIAMOND SERVICE MERCHANT AGREES TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS.
9. Miscellaneous. The relationship of the parties established hereby is that of independent contractors; neither party has authority to bind the other. This Agreement is the entire agreement and understanding of the parties relating to the subject matter herein and supersedes all prior discussions between them. Any notice required or permitted hereby shall be deemed given three days after deposit with postal authorities if sent by registered mail, postage prepaid, addressed to the other party at the address shown on the first page of this Agreement or other address provided for such purpose. Shape Plain Capital Elegant Black Diamond Service Merchant may not assign its rights and obligations hereunder without the written consent of Shape Plain Capital Elegant Black Diamond Service. Shape Plain Capital Elegant Black Diamond Service may assign this Agreement at its discretion. If any provision of this Agreement is unlawful, void or unenforceable, that provision is deemed severable from this Agreement and does not affect the validity and enforceability of remaining provisions. Any purported assignment in violation of the foregoing will be void. Any amendments to and waivers under this Agreement shall only be valid if in writing and signed by an authorized representative.
10. Shape Plain Capital Elegant Black Diamond Service Merchant Integration. With respect to any orders fulfilled any form of integration with Shape Plain Capital Elegant Black Diamond Service Merchant, the following terms shall apply and supersede any conflicting language elsewhere (solely with respect to such specific transactions):
- Locations: Please complete Exhibit A to list all Shape Plain Capital Elegant Black Diamond Service Merchant locations which the parties intend to integrate.
- Remittance: Shape Plain Capital Elegant Black Diamond Service will remit to Shape Plain Capital Elegant Black Diamond Service Merchant the total retail price (including all sales tax and any other fees) for all of Shape Plain Capital Elegant Black Diamond Service Merchant products and services sold through the Shape Plain Capital Elegant Black Diamond Service via integration less Shape Plain Capital Elegant Black Diamond Service's Fee. Such remittance by Shape Plain Capital Elegant Black Diamond Service to Shape Plain Capital Elegant Black Diamond Service Merchant shall occur weekly (or other agreed-upon schedule) on a per location basis via ACH. Additionally, Shape Plain Capital Elegant Black Diamond Service Merchant hereby authorizes Shape Plain Capital Elegant Black Diamond Service to invoice or charge the bank account or credit card on file for the monthly amount for failover deliveries (defined as deliveries that encounter an error when transmitting through integration and are converted to traditional in-person orders that are paid for via credit card at the POS by Shape Plain Capital Elegant Black Diamond Service Driver) equal to the total amount of commissions due on each order (calculated as the pre-tax order total multiplied by applicable commission percentage). Shape Plain Capital Elegant Black Diamond Service Merchant may opt-out of failover by emailing their account representative.
- Reporting: Shape Plain Capital Elegant Black Diamond Service will provide a partner portal whereby a Shape Plain Capital Elegant Black Diamond Service Merchant can view data regarding their transactions and remittances for all Shape Plain Capital Elegant Black Diamond Service Merchant products and services sold through the Shape Plain Capital Elegant Black Diamond Service via integration.
- Integration Platforms. The parties acknowledge that some integrations may be facilitated by the use of a third party integration platform (such as Olo, Toast, or Stream), and in such cases (i) Shape Plain Capital Elegant Black Diamond Service Merchant will be responsible for managing its locations, hours, and menus through such platform(s), and (ii) Shape Plain Capital Elegant Black Diamond Service Merchant authorizes the sharing of such information with such platform(s) to facilitate delivery orders. Shape Plain Capital Elegant Black Diamond Service account representatives will provide Shape Plain Capital Elegant Black Diamond Service Merchant with the contact information and instructional documentation relating to the platforms to ensure effective management thereof.