Merchant Terms of Service.

This agreement is entered into by Fiesto Inc. (“FIESTO”) and the Merchant named on: (i) the FIESTO Merchant application or (ii) the cover page(s) (the “Merchant”), each a “Party” and together the “Parties.” In consideration of the mutual covenants contained in the Merchant Agreement (as defined in Section 1.3 below), each Party, agrees to meet their respective obligations in relation to receiving, preparing, delivering or processing orders for food, drinks and other items (“Food”) from the Merchant to customers who place orders through FIESTO’s online portal (“Customers”) at http://getfiesto.com and its affiliated websites, applications, proprietary technology, ordering platforms and other platforms, if any (collectively, the “Website”), as set out in these terms and conditions.

Unless otherwise indicated, the “FIESTO, Inc.” means FIESTO or its Affiliates. “Affiliate” means, in respect to a person, any other person that, directly or indirectly, controls, is controlled by, or is under common control with such person, and “control” means the ability to appoint a majority of members of a person’s board of directors or similar management body or the ownership of a majority of a person’s issued capital.

The Parties acknowledge and agree that the “Merchant Agreement” is comprised of the applicable Merchant application or cover page(s) agreed to by Merchant; these Terms and Conditions; the Website terms of service, FIESTO’s policies and guidelines including FIESTO’s Privacy Policy, currently available at http://getfiesto.com/privacy-policy (which may be amended or updated by FIESTO from time to time); and any schedules, appendice or documents attached hereto or incorporated by reference. The Merchant Agreement constitutes the entire agreement between the Merchant and FIESTO with respect to the subject matter hereof.

The Merchant will cause each of its franchisees and licensees, if any, and any future franchisees and licensees (each a “Franchisee”) which receive any services provided by FIESTO, to be bound by this Merchant Agreement and comply with all applicable Merchant obligations and performance requirements set forth in this Merchant Agreement. In any event, the Merchant will be directly liable to FIESTO, INC. for any acts or omissions of any Franchisee.

The contract for the purchase of Food is between the Merchant and the Customer. The Network Access Contribution (as defined on the cover page(s) or Merchant application) is owed to FIESTO as a commission for each Order. The Network Access Contribution is in consideration of the privilege and benefits gained from connecting the Merchant to the Customer on the Website.

If the Merchant uses or intends to use the Website, then the Merchant must download a copy of the FIESTO Merchant app (the “Merchant App”) and log in using the Merchant’s credentials in order to process orders through the Website.

The Merchant can use its own compatible device to connect to the Website, or the Merchant may acquire a tablet through FIESTO. The Merchant acknowledges and agrees that any tablet acquired from FIESTO for use on the FIESTO online portal is provided only with any manufacturer’s warranties to the extent transferable to the Merchant at the time of purchase. FIESTO provides no warranties and makes no representations of any kind in relation to the tablets, including the future compatibility of the tablets, and FIESTO provides no support, repair or replacement for such tablets and all supplies, parts or components must be purchased at the sole cost of the Merchant.

If the Merchant rent a tablet through , the rent will be deducted from any amount payable to the Merchant on the every week statement (as defined below) that the Merchant receives from FIESTO. If the amount payable to the Merchant (if any) on such first Statement is insufficient to pay the purchase price in full, the portion of the purchase price left after such first Statement shall be deducted from the subsequent Statement(s), as needed, until payment in full of the tablet purchase price. FIESTO reserves the right to charge the Merchant for the tablet at a time or in a manner other than as specified herein.

The Merchant grants FIESTA, INC. a license to use the Merchant’s name, menu, logo and other material or information provided by the Merchant for the purposes of publishing and displaying such information on the Website during the Term. The Merchant represents and warrants to FIESTA, INC. that the Merchant’s name, menu, logo and other material or information provided by the Merchant to FIESTA, INC. do not violate, infringe or otherwise breach any patent, copyright, trademark, trade secret or other proprietary rights of any third party (including without limitation any licensor or franchisor).

The Merchant agrees to receive, process and prepare for pick-up by Customer or courier, or delivery by the Merchant to the Customer (if agreed to by FIESTO), in a timely manner, orders as placed by Customers via the Website (each an “Order”) using skill, care, diligence and quality consistent with best industry practices and all applicable laws. Food must correspond to what is stated in the order as received by the Merchant without error, be of good and fair quality within the description of the Food and be adequately contained, packaged, and labeled, and be safe for consumption. The Merchant will review all Customer comments included in the Order and will ensure that all Food is prepared in accordance with such comments including, but not limited to, ensuring that any Food prepared from Orders takes into account any Customer allergies that are disclosed.

The Merchant will accept all Orders, including Orders for pick up by the Customer (Pickup Order”) and Cash Orders (defined below) where applicable, and will immediately communicate any inability to fulfill an Order. The Merchant must ensure that its hours of operation (the “Opening Hours”), and any changes to such Opening Hours, are accurately shown on the Website (either by updating such Operating Hours via the Merchant portal on the Website where available, or by otherwise informing FIESTO). The Merchant must remain online and able to always accept Orders during the Opening Hours, save in case of closures for emergencies or planned closures, the duration of which has been communicated to FIESTO in writing in advance if reasonably possible. Upon Customer placing an Order, FIESTO will communicate to the Merchant an estimated time by which the Food will be prepared and ready for pickup by the Customer or the courier (the “Pickup Time”). If the Food cannot be prepared and ready by the original estimated Pickup Time, the Merchant may immediately adjust the estimated Pickup Time to the earliest time that the Merchant is able to prepare the Order. The Customer may cancel the Order at no cost if the estimated Pickup Time is adjusted. For Delivery Orders, FIESTO may adjust the estimated Pickup Time from time to time. If the Food is not prepared and ready to be picked up when the courier arrives or at the adjusted Pickup Time or if the Merchant is unable or unwilling to promptly fulfill an Order (including if the Merchant is offline during the Opening Hours), FIESTO may charge the Merchant a fee and may remit some or all of such fee to the Customer. For more information on the current fee practices, please review the information provided on Merchant portal on the Website and review FIESTO’s Customer Satisfaction and Courier Delay Guidelines, the current version of which is attached hereto as Schedule “1”. FIESTO may amend the Customer Satisfaction and Courier Delay Guidelines from time to time and notwithstanding anything else in this Agreement, amendments to the Customer Satisfaction and Courier Delay Guidelines shall take effect immediately upon notice to the Merchant.

The Merchant agrees that it will at all times allow Customers the option to pay for Orders (i) using either a credit or debit card or other electronic means via the Website (“Card Orders”) or, (ii) where the Merchant arranges its own delivery, and subject to section 3.4, directly to Merchant (not via the Website) from the Customer, courier or other third party (“Cash Orders”).

If, at any time after the first 120 days of the Term, the aggregate amount paid for Card Orders is not more than the aggregate value of any debts owing by the Merchant to FIESTO, the Merchant agrees that FIESTO may at its discretion process Card Orders only on behalf of the Merchant until all such debts are cleared.

Prior to providing the Food to the Customer or courier for pick up, as the case may be, the Merchant shall verify that the Order provided to the Customer or courier for pick up is the Order intended to be picked up by the Customer or courier. FIESTO reserves the right to pass on to the Merchant any and all costs, fees and penalties it incurs, including but not limited to credit or debit card chargebacks, should the Merchant fail to comply with its obligations under this Section 3.5.

The Merchant undertakes to refer positively to and not to disparage FIESTO, INC. or the Website during the Term or post termination including in relation to any publicity regarding the Orders and the Website and must not at any time actively encourage Customers to place a future order directly with the Merchant, nor attempt to direct orders placed with the Merchant through any website other than the Website. Where the Merchant agrees to market FIESTO or the Website by means of menus, stickers or other relevant advertising material, the Merchant agrees to do so only in accordance with FIESTO’s guidelines and instructions. Upon termination of this Merchant Agreement, the Merchant will no longer market, display or reference FIESTO, INC. or the Website and will return or destroy, at FIESTO’s sole discretion, any advertising materials (including any stickers) provided to it by FIESTO and the Merchant will delete any of FIESTO’s apps from all of the Merchant’s devices and, if it has not done so already, destroy any data or personal data (‘’Personal Data’’) in the Merchant’s possession or control. The Merchant will also promptly stop using FIESTO’s intellectual property both online and offline (for example, the Merchant will remove any links to the Website which may exist on the Merchant’s own website) and agrees to continue not to disparage FIESTO, INC. or the Website.

The Merchant will promptly provide to FIESTO all menu information to be displayed on the Website including (but not limited to) food, prices and allergy information. The Merchant will be solely responsible for ensuring that both the information displayed on the Website, and information provided directly to any Customers contacting you to request details relating to the Goods, is accurate, complete and up to date and complies with all applicable regulations and laws (including but not limited to in relation to allergy information). Customers will be directed to contact the Merchant with any questions regarding allergens. FIESTO does not undertake to check and is not liable for checking allergen information on your behalf. The Merchant will promptly report to FIESTO, either by updating its own menu via the Merchant portal (where such functionality is available) or by otherwise notifying FIESTO in writing, any errors in the menu information displayed on the Website or any changes to the Merchant’s menu including any allergy information.

The Merchant will inform FIESTO of any particular or special tax considerations of the Merchant or the Food (for example any bakery item tax exemption or sugar taxes etc.).

The Merchant agrees that the menu prices it provides for display on the Website must be no less favorable than those offered to a Customer via the Merchant’s own online channels and will not offer a customer any discounts or redeem any coupons which are not also (where it is technically possible to do so) offered via the Website. FIESTO may, at its sole discretion, choose to allow the Merchant to increase menu item prices to more than the Merchant’s prices on its own online channels for the purposes of the Website.

The Merchant will at all times comply with all health, safety, sanitary, food standards and information and any other laws, regulations, permits, licenses, orders, codes and directions of any governmental authority or agency relating to the operation of the Merchant and the preparation, handling, processing and delivery of any Food pursuant to an Order. The Merchant agrees that FIESTO has the right to inspect the Merchant’s premises on no less than 24 hours’ notice, for FIESTO to satisfy itself of the Merchant’s compliance with this Section 3.10 or for any other reasonable purpose.

The Merchant confirms and undertakes that it has obtained and will obtain and maintain any consents, licenses, permits, approvals or authorizations (“Consents”) that may be required in connection with, and it is not party to and will not enter into any agreement which would be breached by, or under which any default would occur as a result of, signing this Merchant Agreement or performing any of its terms or generally running its business. If the Merchant’s business, name, brand or logo is or becomes subject to any license or franchise arrangements, the Merchant confirms that it has obtained or will obtain any required Consents from its licensors or franchisors for the use and inclusion on the Website of such business, name, brand or logo, and will fully indemnify FIESTO, INC. for any losses, damages or claims made against or incurred by FIESTO, INC. due to any failure to obtain or maintain such Consents. The Merchant will notify FIESTO in writing immediately if the Merchant breaches any term of this Merchant Agreement including if any of the Consents described in this Section 3.11 are revoked or suspended, or the Merchant is otherwise unable to rely on or benefit from any such Consents for any reason.

FIESTO may provide assistance with dealing with payment, cancellations and complaints arising between the Merchant and the Customer. FIESTO may provide refunds or compensation to a customer if (i) an Order is cancelled, (ii) there is a complaint about any of the Food (including, if the Food is different from the Food ordered or any item is missing) or (iii) FIESTO deems it necessary or desirable, in FIESTO’s sole discretion, for the purpose of maintaining the Merchant or FIESTO’s reputation or goodwill. FIESTO may provide the refund or compensation by payment to Customer’s payment credit or debit card or providing the Customer with FIESTO credits. The Merchant authorizes FIESTO to, in FIESTO’s reasonable discretion, provide the Customer with a refund or compensation on the Merchant’s behalf and the Merchant will be liable to FIESTO for such amounts including the amount of FIESTO credits. When determining the amount and apportioning the responsibility between the Merchant and FIESTO for the refund or compensation, FIESTO consider if the Merchant has prepared the Food in accordance to the Order and the cause of the Order cancellation or Customer complaint and FIESTO’s Customer Satisfaction and Courier Delay Guidelines.

FIESTO will use its reasonable efforts to satisfy any reasonable request for a refund or rebate of any Network Access Contributions made by the Merchant in relation to any Card Orders that have been subject to FIESTO error. Please review FIESTO’s Customer Satisfaction and Courier Delay Guidelines and any other information or guidelines provided by FIESTO from time to time, including via the Merchant portal on the Website.

The Merchant will be solely responsible for self-assessing, claiming and remitting all its applicable taxes.

The Merchant represents and warrants that it is and will at all times remain compliant with all laws, regulations and regulatory guidance containing rules for the protection of individuals with regard to the processing of Personal Data including applicable national, federal, provincial or state legislation and/or binding regulations implementing or made pursuant to them, as amended or updated from time to time and/or any successor legislation (‘’Data Protection Legislation’’) including without limitation ensuring that all Personal Data is collected, used, disclosed, safeguarded, retained and maintained in accordance with the applicable privacy legislation and the then-current FIESTO Privacy Policy currently available at http://getfiesto.com/privacy-policy (which may be amended or updated by FIESTO from time to time). The Merchant will use Customer Personal Data: (i) provided to it by FIESTO, if any, or (ii) collected by the Merchant in connection with the preparation, processing, and delivering of an Order, if any, for the sole purpose of preparing, processing and delivering the Order. The Merchant will not use such Customer Personal Data for any other purposes and will not disclose such Customer Personal Data to third parties.

Merchant shall not store any Personal Data for longer than is required to fulfill any order, and in any event shall not store any Personal Data for longer than 24 hours after its receipt.

The Merchant has implemented and will maintain appropriate Security Measures (as defined in this clause), internal controls and information Security Measures routines intended to protect Personal Data against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction to ensure a level of security appropriate to the risk presented by processing Personal Data. For the purpose of this clause Security Measures shall mean the physical, technical, organizational security measures necessary to ensure the adequate protection of Personal Data, in compliance with applicable Data Protection Legislation.

The Merchant shall notify FIESTO without delay (and in any event within twenty-four (24) hours) of any Security Incident and FIESTO shall be entitled to conduct any verification relating to confidentiality requirements. For the purpose of this clause Security Incident shall mean the suspected or actual accidental or deliberate or unlawful or unauthorized acquisition, destruction, loss, alteration, access, use or disclosure of Personal Data transmitted, stored or otherwise processed, or any other breach in the protection of such information, including any violation or attempted violation by any person of any obligation concerning the confidentiality of Personal Data in the meaning ascribed to in Data Protection Legislation in connection with this agreement.

Merchant shall fully cooperate with FIESTO in respect of any Security Incident, including but not limited to develop and execute a response plan. Merchant agrees that FIESTO shall have the sole right to determine: (i) whether notice of the Security Incident is to be provided to any individuals, regulators, law enforcement agencies, consumer reporting agencies, or others as required by law or regulation, or otherwise in our discretion; and (ii) the contents of such notice, whether any type of remediation may be offered to affected persons, and the nature and extent of any such remediation. Notwithstanding the foregoing, Merchant shall at FIESTO’s request co-operate and shall assist in the coordination of any notice as FIESTO may direct.

Merchant shall, at its own expense, use best efforts to immediately contain, mitigate and remedy any Security Incident, reduce the risk of injury and prevent any further Security Incident or recurrence of such Security Incident, including, but not limited to taking any and all action necessary to comply with Data Protection Legislation. Merchant shall reimburse FIESTO for all actual costs incurred by FIESTO in responding to and mitigating damages caused by any Security Incident, including all costs of notice and/or remediation. Further, it is expressly agreed that FIESTO may, in its sole discretion, cease processing Personal Data or other data with Merchant if such action may reasonably mitigate the Security Incident.

Following the granting of royal assent to any federal or provincial legislation intended to amend or replace applicable Data Protection Legislation or to introduce or amend similar privacy law within provincial jurisdiction (“New Privacy Law”), or at such earlier time as the final form of such New Privacy Law may be reasonably certain, FIESTO shall be entitled to notify Merchant of its intent to renegotiate these additional data protection clauses (and/or other relevant terms agreed between Merchant and FIESTO) to make such changes as are necessary or advisable as a result of the New Privacy Law (collectively “New Privacy Law Amendments”). Upon Merchant’s receipt of such notice, the parties will negotiate the New Privacy Law Amendments in good faith. For clarity, the obligation to negotiate the New Privacy Law Amendments in good faith do not limit either party’s obligation to comply with applicable law including the New Privacy Law, and any failure of Merchant to comply with the New Privacy Law (including, for clarity, a failure arising solely from the passage of the New Privacy Law) shall constitute a material breach triggering FIESTO’s right to terminate the agreement without liability.

The Merchant will keep the Merchant’s premises, including any entrance or pathway to the premises, in safe and clean order.

The Merchant will not be discourteous to Customers, couriers or representatives of FIESTO, INC..

Without limiting the Merchant’s obligations to comply with all applicable laws and regulations, if the Merchant sells alcohol products, (i) the information provided by the Merchant must include the volume and ABV of each alcohol product offered for sale by the Merchant via the Website; and (ii) in the case of a Pickup Order or where the Merchant is arranging delivery to the Customer, the Merchant must ensure that the Customer (or the person that the Merchant provides the alcohol product to, if different) is of legal age in the applicable jurisdiction. The Merchant may not, without our prior written approval, which can be withheld, delayed or made subject to conditions at our sole discretion, list any and all goods which are illegal to sell or deliver (or faciliate the sale or delivery of) to a Customer, including goods requiring a specific license, regitration or identity or age verification.

The Merchant will promptly report to FIESTO in writing any actual, suspected or anticipated breach of the Merchant Agreement. The Merchant will promptly provide reasonable evidence to FIESTO of compliance with the terms of the Merchant Agreement upon FIESTO’s request, including food health and safety certificates.

The Merchant will pay FIESTO a Network Access Contribution for each Order as indicated on the cover page(s) or application of this Merchant Agreement. FIESTO reserves the right to charge the Merchant a different Network Access Contribution for Pickup Orders and Delivery Orders (as defined below) and FIESTO may amend the Network Access Contribution Amounts at any time, in accordance with section 10.1 herein.

In addition, the Merchant will pay FIESTO, a Merchant Processing Fee if / as indicated on the cover page(s) or application of this Merchant Agreement. FIESTO may amend the Merchant Processing Fee amount at any time, in accordance with section 10.1 herein.

FIESTO may charge a Customer any fee or charge for FIESTO’s or a third party’s (such as a courier) benefit (“Customer Fees”), including a delivery charge or additional fees for Card Orders, in FIESTO’s sole discretion. The Merchant may agree to subsidize FIESTO for Customer Fees from time to time.

FIESTO will pay to the Merchant the total amount for Orders paid by credit card or debit card or other electronic means via the Website (the “FIESTO Payments”) less any Network Access Contribution or any other fees owed to FIESTO in accordance with the provisions of the Merchant Agreement.

Notwithstanding Section 4.4, FIESTO will not be obligated to make any FIESTO Payment for any credit card or debit card payment that is withheld due to a failure of the Merchant to prepare and deliver an accurate Order or fraudulent use of the credit or debit card used to place and pay for the Order and, if such payment has already been made, to recover from and charge the Merchant the full amount of such payment.

FIESTO will provide an invoice to the Merchant (the “Statement”) once a week (the time between Statement is hereafter referred to as the “Billing Period”). The Statement will include: (i) the total amount charged by the Merchant to the Customer for Orders (which for greater certainty does not include the Customer Fees but including the value of the goods plus any delivery charges levied by Merchant) plus any applicable taxes; (ii) the total amount of all Network Access Contributions, (iii) any other applicable charges, refunds or fees payable to FIESTO by the Merchant specified in this Merchant Agreement or otherwise agreed upon by the Merchant and FIESTO (such as in relation to “top placement” or discount offer platform services) (the Network Access Contributions and such fees and charges, collectively the “Merchant Payments”); and (iv) the total amount owing for the Billing Period (the “Total Amount Payable”), such amount being equal to the FIESTO Payments less Merchant Payments less the amount of any Cash Orders placed during the Billing Period and paid to the Merchant.

If there are any amounts payable by FIESTO to the Merchant (i.e. if the Total Amount Payable is a positive number), FIESTO will pay such amount to the Merchant by direct deposit within 14 days of the later of the date of the Statement or receipt of required information to make such direct deposit.

If there are any amounts payable by Merchant to FIESTO (i.e. the Total Amount Payable is a negative number), such amount will be due and payable by the Merchant to FIESTO within 14 days of the date of the Statement and thereafter all unpaid amounts will accrue interest at a rate of 19.56% per annum (or 1.5% per month) or the highest rate permitted by law, whichever is lower and may be set-off by FIESTO, INC. in accordance with section 4.9.

Where any payments are overdue to FIESTO, INC. from the Merchant, FIESTO, INC. may set off the amounts outstanding against any amount otherwise payable to the Merchant in any subsequent Statement including, for greater certainty, any sums received from Card Orders for the Merchant. The Merchant is liable to FIESTO, INC. for any costs reasonably incurred in connection with the settling or recovery of an overdue payment, and FIESTO, INC. set off-off such costs in accordance with this section. The Merchant acknowledges and agrees that it is not entitled to withhold any payments owed to FIESTO, INC. for any reason and it will not have any right of set-off against FIESTO, INC.

If the Merchant disagrees with the Statement, the Merchant must notify FIESTO of its disagreement within 14 days after the date of the Statement. If the Merchant fails to notify FIESTO of any disagreement within such 14-day period, the Merchant will be deemed to have irrevocably accepted and agreed with the Statement.

FIESTO agrees to use best efforts to display on the Website information about and create a profile for the Merchant (the “Profile”) which includes the Merchant’s name, logo, address and menu in order to allow Customers to order Food from the Merchant (the “Website Access”).

FIESTO will use best efforts to set up the Merchant’s initial Profile on the Website within 14 days of the Merchant providing complete and correct Profile information and other reasonably requested information by FIESTO, including Merchant name, address, email address, phone number, menu information and a copy of its logo, to FIESTO.

If the Merchant and FIESTO agree, FIESTO may create, host and maintain a website for the Merchant (the “Hosted Site”) with a domain name to be determined by FIESTO (the “Website Design Services”), and FIESTO will work with the Merchant to design and operate the Hosted Site in a manner acceptable to the Parties acting reasonably. All title to and ownership of the Hosted Site (including any software and code contained therein but excluding the Merchant’s name, menu and logo), and the domain name to the Hosted Site belongs to FIESTO or FIESTO’s licensors and will remain with FIESTO or FIESTO’s licensors at all times. FIESTO may display the Merchant Profile on the Hosted Site and may provide a link to the Website that enables customers to place Orders via the Hosted Website. FIESTO will, promptly following receipt of a request from the Merchant to do so, and may in its sole discretion at any time and for any reason, permanently remove or otherwise disable the Hosted Website (provided that nothing in this paragraph will prevent FIESTO from re-using the domain name for such other purposes as it sees fit). For greater certainty, all of the Merchant’s obligations in respect of the Website as set out in this Merchant Agreement will also apply in respect of the Hosted Site. FIESTO may at its sole discretion, upon the Merchant’s request, permit and/or enable the Merchant to provide a link (the “Link”) to the Website on the Merchant’s own website (the “Merchant Own Website”) (“Website Linking”). The Link will: (i) provide a link to the Website and enable customers to place Orders via the Merchant Own Website; and (ii) include FIESTO’s logo (as provided by FIESTO). All intellectual property in the Link (including FIESTO’s logo) shall at all times remain the property of FIESTO. The Merchant agrees with FIESTO that it shall, promptly following receipt of a request from FIESTO, and in any event upon termination of this Merchant Agreement, permanently remove or otherwise disable the Link (including FIESTO’s logo) on the Merchant Own Website. For greater certainty, any orders placed by customers for the Merchant via the Hosted Site or the Link shall be considered “Orders” for the purposes of this Merchant Agreement and subject to the commissions and fees and the other provisions of this Merchant Agreement. FIESTO reserves the right to implement, amend or update policies with respect to the Hosted Site and/ or Link from time to time and any such policy shall be incorporated herein by reference.

FIESTO may provide or make available hardware or software to the Merchant for the purpose of receiving or managing Orders or other purposes relating to this Agreement (the “Product”). The Product software remains FIESTO’s property, or that of FIESTO’s licensors at all times. The Merchant is authorized to use this software during the Term in accordance with any end-user license which FIESTO may give the Merchant notice of from time to time. The Merchant must ensure compliance with the terms of that license by the Merchant’s employees and contractors. The Merchant must not, and the Merchant must ensure that the Merchant’s employees and contractors do not reverse engineer, decompile, disassemble, crack or otherwise misuse the Product software, and the Merchant will use reasonable efforts to keep the functionality of the Product software confidential to the Merchant and the Merchant’s employees and contractors. FIESTO may upgrade or alter the Product hardware or Product software at any time. The Merchant must follow any lawful instructions FIESTO give the Merchant in relation to the use of the Product hardware or software. FIESTO may remotely access the Product software at any time for any lawful reason, in particular to update the software or to perform software maintenance.

FIESTO will use its commercially reasonable efforts to make the Website and, if applicable, the Hosted Site available for use by Customers 24 hours per day. FIESTO Group will not be responsible for any lack of availability or functionality of the Website and, if applicable, the Hosted Site, caused for whatever reason.

FIESTO is entitled to interrupt the access to the Website and, if applicable, the Hosted Site at any time without notice to the Merchant for any reason including for the purposes of maintaining and updating the Website and Hosted Site. In connection therewith, FIESTO will use reasonable efforts to ensure that such interruption is as brief as possible and if possible takes place at a time when the number of Orders being processed is at a minimum.

FIESTO will use commercially reasonable efforts to change or update any information about the Merchant displayed on the Website and, if applicable, the Hosted Site within 7 business days (being a weekday that banks are open for business in Canada excluding any statutory holidays) of receiving a written request for such changes from the Merchant. FIESTO may, upon agreement with the Merchant, provide the Merchant with the ability to update its own information on the Website or, if applicable, the Hosted Site. For greater certainty, if the Merchant is provided such ability, it will be solely responsible and liable for any loss or damages arising from any changes or updates made by the Merchant.

FIESTO may display on the Website, ratings and comments (“Reviews”) provided by Customers regarding the Merchant or an Order. FIESTO Group assumes no responsibility or liability to Merchant for any Reviews, and FIESTO Group is not under any obligation to Merchant to display, remove or edit any Reviews.

Merchant will not post, or cause any other party to post any Reviews about Merchant or which otherwise breach any guidelines for Reviews published by FIESTO from time to time.

For each Order that FIESTO arranges for delivery to the Customer (“Delivery Order”), FIESTO will arrange for a third party courier to collect the Food in respect of that Delivery Order from the Merchant’s premises and deliver the Food to the Customer (the “Delivery Services”). Couriers may accept and retain tips given at the Customer’s discretion. FIESTO may transmit data regarding Delivery Orders to couriers (including but not limited to the Customer’s Personal Data , order items and value). FIESTO is under no obligation to provide the Delivery Services. If the Food is not ready for pickup, FIESTO may charge the Merchant a fee. Please review FIESTO’s Customer Satisfaction and Courier Delay Guidelines included with this Merchant Agreement, and any other information or guidelines provided by FIESTO from time to time, including via the Merchant portal on the Website.

The Merchant acknowledges that ownership of the Website (including any software and code contained therein) remains with FIESTO and does not pass to the Merchant.

If and where applicable, the Merchant may choose to purchase certain menu photography services from FIESTO (“Menu Photographs”). For greater certainty, FIESTO may only provide such menu photography services in selected locations and at selected times, each as determined by FIESTO in its sole discretion.

FIESTO may contract with a third party provider (“Provider) to arrange and conduct photography sessions (each a “Photo Shoot”). FIESTO may, at its discretion, post any or all of the photographs from the Photo Shoot (“Photos”) on the Website. FIESTO is not responsible for the conduct of any third party including Provider or any independently contracted party of Provider.

FIESTO may cancel the Menu Photographs at any time without liability and for any reason. For clarity, FIESTO shall have no obligation to refund the Service Charges to the Merchant for any reason including, without limitation, termination of this Merchant Agreement before or after a Photo Shoot having taken place. Upon termination of this Merchant Agreement, the Merchant shall no longer be eligible to participate in a Photo Shoot.

After FIESTO receives a Merchant’s order for Menu Photographs as selected on the cover page(s), FIESTO will forward to Provider, the Merchant’s name, address, telephone number, email address, contact person’s name, details of the selected Menu Photographs package and any other information that may be required for the purpose of arranging the Photo Shoot (collectively, the “Order Details”). The Merchant will provide FIESTO any Order Details required. The Merchant consents to FIESTO sharing the Order Details with Provider and the Merchant grants FIESTO the authority to give Provider consent, on its behalf, and to share Order Details with the photographer.

Provider will assign an independently contracted photographer to the Merchant, and will share the Order Details with the photographer. Provider or the photographer will contact the Merchant using the Order Details to arrange the Photo Shoot. The Merchant acknowledges and agrees that it will act reasonably and that it is responsible for coordinating the time and place of the Photo Shoot with the photographer. If the Merchant needs to cancel the Photo Shoot after it has been scheduled, the Merchant must give both the photographer and FIESTO no less than twenty-four (24) hours’ notice, or a cancellation fee may apply.

The Merchant acknowledges and agrees that it is its responsibility to work cooperatively with the photographer and to comply with any applicable guidelines to ensure the success of the Photo Shoot.

After Provider has sent the Photos to FIESTO, FIESTO will review and publish the Photos on the Website based on the Menu Photographs package ordered by the Merchant. FIESTO has final editorial and artistic control over all content published on the Website, including the Photos, and may curate, select, edit, and otherwise exercise control over which Photos are displayed, and how the Photos are displayed. For example, FIESTO may refuse to publish any Photos that it considers defamatory, offensive, illegal, that violate intellectual property rights or that are otherwise objectionable or do not meet FIESTO standards. If the Merchant is not satisfied with the quality of the Photos after they have been published, it may contact FIESTO within thirty (30) days of publication and FIESTO will, at its option, either arrange a second photo shoot or refund the Merchant an amount equal to the Service Charges paid by the Merchant, as long as, in FIESTO’s reasonable opinion, the Merchant made a reasonable effort to comply with section 5(a).6 herein and any such refund shall be accounted for on the Statement received by the Merchant following such refund, by way of credit. If FIESTO arranges for a second photo shoot or refunds the Merchant as aforesaid, it may take the Photos off the Website.

The Merchant may be charged for Menu Photographs and in this event the price of the applicable Menu Photographs package will be outlined on the cover page(s), plus applicable fees (for example, cancellation fees), plus applicable taxes (the “Service Charges”). FIESTO will charge the Merchant by automatically deducting any Service Charges from any amount payable to the Merchant set out in the first Statement that the Merchant receives from FIESTO. If any amount payable to the Merchant as set out in such first Statement is insufficient to pay the Service Charges in full, the unpaid balance of the Service Charges will automatically be deducted from any amount payable to the Merchant as set out in the following Statement that the Merchant receives from FIESTO and any subsequent Statement thereafter until the Service Charges are paid in full. FIESTO may also require that the Merchant pay the Service Charges or any portion thereof directly to FIESTO and such amount will become due and payable by the Merchant to FIESTO within fourteen (14) calendar days from the date of such request. Notwithstanding anything else in this section, FIESTO reserves the right to, in its sole discretion, charge the Merchant the Service Charges at a time or in a manner other than as specified in this section.

FIESTO retains all copyright, trademark rights, or other intellectual property rights in the Photos.To the extent that you have copyright, trademark rights, or other intellectual property rights in the Photos or anything contained therein, or the ability to license those rights to FIESTO (collectively “Merchant Content”), you grant FIESTO a worldwide, irrevocable, transferable, assignable, sublicensable, non-exclusive license to publish, reproduce, and otherwise use the Merchant Content. If you obtain FIESTO’s prior written permission, FIESTO may provide you with copies of the Photos and grant you a royalty free license to use Photos for your own promotional purposes (for example, on your website or your social media pages).

In the event the Merchant elects to receive additional content than that which is included in the Menu Photograph package it selected on the cover page(s), the Merchant will be charged for such additional content at FIESTO’s sole discretion. For example, the Merchant may be charged the price of the next Menu Photograph package priced immediately above the then selected package instead.

In the event the Merchant instead elects to provide its own photographs of menu items and upload these via the Merchant portal, it takes full responsibility for any imagery uploaded and warrants that it will not under any circumstances upload any imagery which may be deemed illegal, offensive, defamatory of any third party, in breach of the intellectual property rights of any third party or otherwise objectionable. Additionally, such photographs should depict the menu item in a fair, reasonable and accurate manner and should not mislead the consumer in any manner whatsoever, in relation to the nature and/or quality of the menu item. FIESTO reserves the right to remove any imagery it deems, in its sole discretion, to be in breach of this clause, but does not undertake to check and is not liable for checking such imagery.

If, in FIESTO’s sole opinion, the Merchant is in default of its obligations under this Merchant Agreement or otherwise may operate in a manner which may be harmful to FIESTO, INC.’s business, goodwill or reputation, including without limitation by reason of allegations or evidence of: i.non-payment or late payment of amounts due from the Merchant; ii.sub-standard customer service (e.g. Merchant employees being impolite to Customers or couriers; the Merchant erring in the preparation of Orders; the Merchant making late deliveries of Orders etc.); iii.the Merchant being unable or unwilling to receive or process Orders; or iv.the Merchant is not complying with applicable laws and regulations (e.g. failing food safety checks) or does not have the necessary Consents for the use and inclusion on the Website of its business, name, brand or logo; then without limiting its other rights or remedies, FIESTO may at any time suspend provision of any or all the access, service or product under this Merchant Agreement (including by removing the Merchant’s Profile from the Website without notice) or any access, service or product that it provides to the Merchant under a separate agreement without any liability to FIESTO, INC.. The suspension of the access, service or product will continue until the default or relevant issue has been remedied to the satisfaction of FIESTO (acting reasonably

To the extent legally permitted, and except as otherwise provided herein, FIESTO, INC. expressly disclaims and excludes all warranties, representations and conditions, express or implied, including those of quality, merchantability, merchantable quality, durability, fitness for a particular purpose and those arising by statute in connection with its products and services hereunder.

FIESTO, INC. will not be liable for any loss or damage incurred by the Merchant, whether of money (including profit), opportunity, goodwill, or reputation, or any special, direct, indirect, or consequential damages arising out of this Merchant Agreement including for any product or service provided by FIESTO, INC. to the Merchant via the Website, any Order received by the Merchant or any Food prepared and delivered to a Customer, and provided further that FIESTO, INC.’s liability to the Merchant for any cause whatsoever will be limited to the total amount of Network Access Contributions paid by the Merchant to FIESTO under this Merchant Agreement in the previous 12 months from the first date which the cause of action giving rise to the liability arose.

The Merchant will defend and indemnify FIESTO, INC. and hold it fully harmless from any and all losses or claims made against FIESTO, INC. by a Customer or other third party arising out of: (i) any breach of the Merchant’s obligations and responsibilities under this Merchant Agreement, including but not limited to failure to accurately prepare Food in accordance with the Order, the improper preparation, processing, handling or delivery of Food, and failure to verify credit card information; (ii) ny negligent, willful or fraudulent act or omission by the Merchant or its representatives in connection with the performance by the Merchant of its obligations and responsibilities under this Merchant Agreement; (iii) any failure to obtain or maintain any Consents; (iv) any breach of any applicable laws, regulations, permits, licences, orders, codes or directions of any governmental authority or agency; and (v) any violation or infringement of intellectual property rights by the Merchant.

Notwithstanding anything else in this Merchant Agreement, there will be no limit to any indemnity for losses or claims to be paid by the Merchant to FIESTO, INC. arising out of (i) any death or personal injury caused by any act, omission, or negligence of the Merchant and its employees and representatives, or (ii) fraud or intentional misrepresentation or wilful misconduct by the Merchant or its employees and representatives.

FIESTO, INC. will not be liable to the Merchant if it is unable either wholly or in part to perform its obligations under this Merchant Agreement because of any disabling cause or event not within the control of FIESTO, INC. which, using reasonable efforts, FIESTO, INC. is unable to prevent or overcome (including acts of God, war, acts of domestic or foreign governments, acts of terrorism, court orders or decrees, change of laws, regulations or government policies, sabotage, riot, fire, lightning, flood, storm, tornado, earthquake or other natural calamity, strike, lockout or other labour unrest, explosion or other catastrophe, accident, power or other utility failure, an inability to obtain power, communication line failure, or delay occasioned by carriers, suppliers or other persons providing goods or services to FIESTO, INC. under contract).

The Merchant warrants that the information in respect of the Merchant on the cover pages or application to the Merchant Agreement or pursuant to this Merchant Agreement is up-to-date, accurate and complete. The Merchant must let FIESTO know if any information is incorrect and will provide adequate written notice prior to any change of ownership of the Merchant or any change to bank account details. Failure to notify FIESTO may result in FIESTO paying monies to a bank account controlled by the outgoing owner(s) or an incorrect bank account. The Merchant will fully indemnify FIESTO, INC. and hold FIESTO, INC. harmless against any losses, damages or claims made against FIESTO, INC. by the new owner(s) or otherwise incurred by FIESTO, INC. due to any failure by the Merchant to provide timely notification of a change in accordance with this section 8.1.

This Merchant Agreement comes into force when agreed to by both Parties (the “Start Date”) and will continue until such time as the Merchant Agreement is terminated in accordance with its provisions (the “Term”).

FIESTO or the Merchant may at any time terminate this Merchant Agreement for any reason upon giving 30 days’ written notice to the other Party. The Merchant will immediately delete the Merchant App from all applicable devices upon termination.

Upon termination of this Merchant Agreement, the Merchant will remain the owner of any tablet purchased pursuant to this Agreement for use on the FIESTO platform.

FIESTO will use reasonable efforts to remove or disable the Merchant’s Profile on the Website and any Hosted Website reasonably promptly following termination of this Merchant Agreement. However, the Merchant acknowledges and accepts that cached versions of these sites may continue to exist in the web browsers and web servers of search engines and customers following such termination, and agrees that FIESTO, INC. has no control over, and will not have any liability to the Merchant (whether based on infringement of intellectual property rights or otherwise) in connection with the foregoing.

FIESTO may amend any of the terms of this Merchant Agreement, including the Network Access Contribution amount, any Merchant processing fee amount or any other fee payable by the Merchant to FIESTO at any time. Non-material changes such as clarifications will become effective on the date written notice (including by email, letter, fax) is provided to the Merchant. For substantive, material amendments the Merchant will be notified 30 days’ prior to their intended effective date. The Merchant may object in writing to a material amendment within 14 days after receiving notice from FIESTO.. If the Merchant objects to an amendment, the Parties will use their best efforts to reach a mutually satisfactory resolution to the objection. Any amendments will be interpreted in a manner consistent with the terms and conditions set out in this Merchant Agreement.

FIESTO may, without the consent of the Merchant, assign this Merchant Agreement or any of its rights or benefits hereunder to any Affiliate or any third party.

The Merchant may not assign any of its rights or benefits under this Merchant Agreement without prior written consent from FIESTO. FIESTO will require any permitted assignee to enter into an agreement with FIESTO assuming all of the Merchant’s rights and obligations.

The Merchant consents to receiving from time to time direct marketing communications relating to FIESTO, INC.’s products or services or those of FIESTO, INC.’s selected partners via e-mail, post, fax or other means of communication. If the Merchant market’s FIESTO or the Website by means of menus, stickers or other advertising material, the Merchant will do so in accordance with FIESTO’s guidelines and instructions.

The Merchant and FIESTO covenant and agree to treat the terms of this Merchant Agreement as confidential information. The Parties further agree that they will not, either during the term of this Merchant Agreement or at any time thereafter, disclose, divulge or otherwise communicate, whether orally, in writing or otherwise, to any person or persons the terms of this Merchant Agreement except as is reasonably necessary for the fulfilment of the terms of this Merchant Agreement or with the prior written consent of the other Party.

If any of the terms or conditions of the Merchant Agreement are declared wholly or partly invalid, the remainder of the Merchant Agreement will remain in full force and effect and any wholly or partly invalid terms or conditions may be replaced by valid terms or conditions agreed between the Parties, so as to maintain the relationship between the Parties in similar manner as if the terms or conditions had not been declared invalid.

Sections 1, 3.7, 4.8 - 4.10, 7, 9.4, and 12.2 to 12.7 will survive termination of this Merchant Agreement.

This Merchant Agreement is to be construed according to the laws of the province of Ontario and the laws of Canada applicable therein. Any controversy, dispute, disagreement or claim arising out of, relating to or in connection with this Agreement or any breach thereof, including any question regarding its existence, validity or termination (a “Dispute”), shall be finally and conclusively resolved by arbitration except disputes relating to confidentiality covenants or intellectual property rights or for injunctive relief. If the Dispute is not resolved after twenty (20) business days of a Party serving notice on the other Party that there is a Dispute, the Parties agree that the Dispute will be finally resolved by confidential arbitration before a single arbitrator in accordance with the Arbitration Rules of the ADR Institute of Canada, Inc. The seat of arbitration will be Ontario or as otherwise agreed by the Parties, acting reasonably. There will be no appeals of any kind. The language of the arbitration will be English.

Nothing contained herein will be deemed to create any relationship of joint venture or partnership between the Parties. No Party will have any power to commit, contract for or otherwise obligate another Party.

In the event of a conflict between this English language version of the Merchant Agreement and the French language version of the Merchant Agreement, this English language version will prevail. En cas d’incompatibilité entre la présente version anglaise de l’Entente avec les Merchants et sa version française, cette version anglaise prévaudra.