Potluck

Terms of Service – United States

Potluck Provider Partners

Effective: October 26, 2021

Summary of Potluck Fees to Provider Partners

Provider Partner also agrees to an annual membership fee of $500 per year. In addition, for Orders processed through the Potluck Platform, Provider Partner agrees to pay a Commission Fee (“Commission Fee”) that is calculated as a percent of the Menu Base Price for food, beverages and other merchandise for the following services:

• B2C
  • Recipes owned/uploaded by Provider Partner: 10% on Consumer Orders based on Menu Base Prices for items prepared by the Provider (food, beverages) and other merchandise
  • Recipes not^[1] owned/uploaded by Provider Partner: 15% of the Menu Base Price for items prepared by the provider.  See Schedule B for additional details.

Excluded from the B2C Commission Fee calculation are any Provider Partner discounts, delivery charges, tips, and sales tax.  Delivery charges will be paid by consumers.

• B2B

The Potluck platform allows businesses to place orders in bulk from other established Provider Partners on the platform. Those businesses are not required to be active Provider Partners themselves but they will nonetheless be onboarded in similar fashion as Provider Partners on the platform and be subject to the same terms. As a Bulk Business Buyer placing orders from other Provider Partners, the only fee applicable to you is the following:

• 20% of the bulk order charge to the Bulk Business Buyer (bakeries, farmers, producers etc.)

There will be no additional charges for delivery to the seller.

BEFORE YOU USE THE POTLUCK MARKETPLACE, PLEASE READ THESE TERMS CAREFULLY. BY USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS (“YOU” OR “PROVIDER PARTNER”) AGREE TO BE BOUND BY THESE TERMS.

SECTION 19 OF THIS AGREEMENT 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 19 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 19 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

1. Definitions.

a. “Commission Fee” means the commission rate charged by Potluck in exchange for promoting and featuring the Provider Partner and Provider Partner Store(s) on the Potluck Platform, which is charged as a percentage of revenues transacted on the Potluck Platform calculated on a pre-tax basis and excludes delivery expense and other items.

b. “Deliverer” means independent third-party delivery contractor.

c. “Delivery” means Orders placed by Members for delivery fulfillment through the Potluck network.

d. “Delivery API” means the Potluck application programming interface (API) that allows the Provider Partner to exchange information with Potluck related to Deliveries.

e. “Market Term” means the term of the agreement between Potluck and Provider Partner for Potluck Market.

f. “Marketplace API” means the Potluck application programming interface (API) that allows the Provider Partner to exchange information with Potluck.

g. “Marketplace Orders” means Orders for Provider Partner Products through the Potluck Platform from Members for delivery by Deliverers.

h. “Marketplace Term” means the term of the agreement between Potluck and Provider Partner for the Potluck Platform.

i. “Member” means the Member who places an Order for Provider Partner Products through the Potluck Platform or accesses a recipe on the platform.

j. “Menu Base Price” is the list price for Food or Beverages prepared by a Partner Provider and the list price for other products sold (like produce or shelf stable products).

k. “Order” means a Marketplace Order, a Pickup Order, or a Delivery Order, as applicable.

l. “Order Equipment” means and includes any equipment reasonably required by Potluck for Provider Partner to receive and process Orders, including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders.

m. “Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, 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).

n. “Pickup Orders” means Orders for Provider Partner Products through the Potluck Platform from Members for pickup by the Member.

o. “Pickup Process” means Members can view and search for the menus and products of Provider Partners and place an Order for Provider Partner Products via the Potluck Platform for pickup by the Member.

p. “Potluck Data” shall mean any information that Potluck provides or makes accessible to Provider Partner through the Potluck Platform, including without limitation Personal Information.

q. “Potluck Market” means the platform that enables delivery fulfillment for Orders placed directly with the Provider Partner by the Member.

r. “Potluck Marketplace” is the place where Members can order Provider Partner Products or available for sale recipes via the Potluck website or mobile application for delivery by a Deliverer to the Member or for pickup by  the Member.

s. “Potluck Platform” or “Potluck Marketplace” means Potluck’s proprietary online communication platform where Members can view and search for the products, menus, recipes of Provider Partners, and Non-Provider Partner Recipes.

t. “Potluck Services” means the services offered through the Potluck Platform.

u. “Provider Partner” means the restaurant or other entity that has agreed to participate in the Potluck Services and also includes all Recipe Uploaders.

v. “Provider Partner Portal” is an online platform, accessible at https://www.onePotluck.com/Providers (and that may be made accessible via other applications), through which Provider Partner may and regularly should review and confirm its transactions, fees and charges and account on the Potluck Platform.

w. “Provider Partner Products” includes all products offered for purchase, take-out or delivery orders at Provider Partner Stores.

x. “Provider Partner Stores” means the Provider Partner store locations that participate in the Potluck Services and includes: (i) Provider Partner Stores owned and operated by Provider Partner or its affiliates, and/or (ii) Provider Partner Stores owned and operated by Franchisees of Provider Partner or its affiliates.

y. “Recipe Uploader” shall mean an Entity or person who uploads a recipe onto the Potluck Platform for others to use.  Recipe Uploaders are considered Provider Partners for the purpose of this agreement.

z. “Schedule for Later Order” shall mean an Order to be fulfilled at a particular time later in the same day or at a later date.

aa. “Terms” means the provisions herein.

ab. “Third Party Platform” means a technology interface, such as a middleware technology platform, other than the online order form and the Delivery API that enables Provider Partner to request delivery fulfillment and provide information necessary to enable such delivery fulfillment.

2. The Parties’ Relationship.

Potluck provides the Potluck Marketplace using web-based technology that connects Provider Partners, Recipe Uploaders, Deliverers and Members, as described in these Terms for the Potluck Platform. Potluck may list Providers Partner on the Potluck Marketplace subject to the Commission Fee(s) set forth in Schedule B upon advance written notice to Provider Partner. Potluck is not a Provider Partner, seller of goods, or delivery service; it is an online connection platform. Provider Partner and Potluck agree they are independent businesses whose relationship is governed by schedule B, these Terms, and any applicable terms between the Parties. Nothing in the Parties’ agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between Potluck and Providers (or Providers employees, representatives or locations), Potluck and Deliverer, or Potluck and Members. Except as expressly set forth in the Schedule B, these Terms, and any applicable terms between the Parties, each Party shall be responsible for its own expenses, profits and losses.

3. Potluck Marketplace and Core Responsibilities.

For Providers that have agreed to participate in the Potluck Marketplace, Potluck and Providers shall have the following responsibilities during the Marketplace Term:

a. Potluck Core Responsibilities. Potluck will, in a timely manner:

i. Display Provider Partner’s logo; a listing of the Provider Partner Stores; and a menu of Provider Partner Products on the Potluck Platform;

ii. Accept Marketplace Orders from Members;

iii. Pay the Provider Partner in accordance with the Parties’ agreements, less items outlined in Schedule B and any other fees (in each case, as may be adjusted by Potluck as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature). 

iv. Provide Provider Partner with an online order form or receive information through a Third Party Platform;

v. Accept and collect payments from Members for their respective Marketplace Orders;

vi. Via the online order form, the Delivery API, or a Third Party Platform, provide information to Provider Partner including the Member’s address, contact information, and any special instructions required for delivery;

vii. Notify Members prior to placing a Delivery Order that their telephone numbers and other personal contact information will be shared with Drivers to enable deliveries and, in connection with the applicable deliveries, request the Member’s consent to receive delivery status updates by e-mail, text messages, and telephone calls from Potluck and Deliverers;

viii. Notify Provider if a Member has not consented to receive delivery updates or has placed any restrictions on types of delivery updates such Member consents to receive (e.g., no texts).

ix. Maintain reasonable privacy measures for proprietary and other sensitive Provider partner information.

b. Provider Partner Core Responsibilities. Provider Partner will, in a timely manner:

i. Provide Potluck with the Provider Partner’s in-store or take-out menu, including the price of each item on such menu;

ii. Monitor Provider Partner’s menu and store information on the Potluck Platform, promptly make updates via the Provider Partner Portal to reflect the most up-to-date products, pricing and other information or immediately notify Potluck of any errors or changes in writing;

iii. Accept all Marketplace Orders placed on Potluck from Provider Partner’s then-current menu;

iv. Confirm all Marketplace Orders from Potluck;

v. Prepare the Provider Partner Products for each Marketplace Order and provide designated time windows for pickup by a Deliverer or Member;

vi. Process Marketplace Orders in the order in which they are received;

vii. Update Provider Partner’s profile with any changes to the pricing, availability, description, or other characteristics of the Provider Partner Products;

viii. Update Provider Partner’s profile with Potluck of its days and hours of operation, and remain open for business on Potluck the same days and hours of operation as Provider Partner’s in-store business; notify Potluck of any changes to Provider Partner’s hours of operations on holidays; and notify Potluck if Provider Partner closes earlier than Provider Partner’s standard hours of operation or plans to close earlier than Provider Partner’s standard hours of operation;

ix. Notify all Provider Partner store staff members of the relationship with Potluck immediately upon execution of this Agreement;

x. Provide the same utensils, napkins, bags and other materials that Provider Partner would typically provide in a standard take-out or delivery order, subject to our Sustainability Guide attached hereto as Schedule A.

xi. On an ongoing basis, review and confirm the transactions, fees and charges on Orders via the Provider Partner Portal, and promptly communicate to Potluck any inaccuracies; and

xii. If Potluck collects and passes tips from Members to Provider Partner, Provider Partner will distribute such tips in accordance with applicable law, including but not limited to tip pooling laws.

xiii. Recipe Uploader warrants that recipe content posted, including pictures, is not copyrighted by others and is their creation or taken from the public domain.

xiv. Consents to receiving text messages and email confirmations from Potluck providing status updates and delivery confirmations in connection with each delivery.

xv. Providers will cooperate with Potluck in its efforts to provide the support services hereunder, including without limitation by providing as much detail as available about Service Errors, making its personnel available, and taking all such reasonable measures requested by Potluck in order to detect and provide further information with respect to each Error.

xvi. Provider will further grant Potluck such access to information of the Member’s and its Members’ personnel, their respective technological platforms and any relevant third-party networks and other suppliers of the Member or its Members as may be necessary to enable Potluck to perform its obligations under these Terms.

xvii. Represents to Potluck that they are licensed in their state of operation and are in compliance with state, county, city health department rules and regulations.

xviii. Shall be responsible for all payments, fees and deposits required to perform agreed to services. Provider Partner agrees to indemnify and hold Potluck harmless for any Payment or liability brought on by Provider Partner operations.

ix. Agrees to provide suitable facilities for agreed to services.  The facility utilized must meet city, county and state health department rules and regulations for operation being conducted. Provider Partner agrees to arrange for, or personally provide access to said facility to accommodate for any required inspections in accordance with execution of agreed to services.  Provider Partner acknowledges responsibility for any and all liability arising from their operations and execution of agreed to services rendered.

xx. Agrees to full responsibility of all financial arrangements provided in Schedule B.

4.     Delivery Operating Procedures and Third Party Services.

a. Order Placement. Potluck agrees to arrange Delivery or Pickup using the Potluck Platform or Member Order.

b. Hours of Operation. The pickup and drop-off of deliveries will be scheduled to take place during Provider Partner’s standard hours of availability. Provider Partner agrees to abide by the following standard procedures: (i) to update Provider Partner’s profile of any changes to its hours of operations on federal holidays with reasonable advance notice; and (ii) to update Provider Partner’s profile on Potluck with reasonable advance notice if a Provider Partner location closes earlier than standard hours of operation or plans to close earlier than standard hours of operation.  Order could be scheduled to be picked up later in the Day or in the future (Schedule for Later Order).

c. Delivery Radius. Potluck will only accept Orders to be delivered within a certain preset delivery radius based on the delivery radius provided by the Provider Partner.

d. Cancellations. In the event of a Member Order cancellation, Provider Partner will be responsible for any non-refundable delivery fees.

e. Notification. Provider Partner agrees to notify all staff members in Provider Partner Stores of Provider Partner’s relationship with Potluck prior to submitting any delivery requests to Potluck.

f. Third Party Provider Services.

i. Provider Partner shall provide access to Potluck and/or its third party vendors (“Third-Party Provider”) with the data, required systems, support and operations personnel required to receive the services provided by such Third Party Provider.

ii.   Provider Partner will safeguard the confidentiality of Provider Partner’s password(s) and user account name(s) for the Third Party Provider service and is responsible for any use by Provider Partner or other users occurring under its accounts (unless such usernames and passwords have been used by third parties with no fault of Provider Partner). Provider Partner will not (nor will Provider Partner permit any third party to): (a) make the Third Party Provider service available to any third party (via, a services arrangement, service bureau, lease, sale, resale, or otherwise) except for third party contractors performing services on behalf of Provider Partner; (b) modify, adapt, or otherwise create derivative works of the Third Party Provider service, software that is used by Third Party Provider to provide the Third Party Provider service or the documentation; (c) circumvent any usage or access limits on the use of the Third Party Provider service; (d) damage, disable, overburden, impair, or disrupt the Third Party Provider service or attempt to gain unauthorized access to any systems or networks that connect thereto or otherwise interfere with the operation of the Third Party Provider service or in any way with the use or enjoyment of the Third Party Provider service by others; or, (e) use the Third Party Provider service or any information obtained therefrom in any unlawful manner or for any unlawful purpose or in any jurisdiction where any such use is illegal. 

iii. Third Party Provider shall not be liable to Provider Partner for any delay or failure of performance if such delay or failure is caused by any occurrence or condition beyond Third Party Provider reasonable control, including weather conditions, earthquake, fire, flood, externally caused transmission interferences, satellite failure, war, riot, pandemic, labor unrest, acts of terrorism, and civil disturbance (each an “Event of Force Majeure”).  If a delay or failure of performance by Third Party Provider is caused by an Event of Force Majeure, Third Party Provider shall notify Potluck and/or Provider Partner and shall be excused from obligations of performance without any liability under this Agreement to the extent and for the period of time that such performance is prevented or hindered by the Event of Force Majeure.

iv. For your information only: The following program service levels shall apply to Third Party delivery service companies that Potluck may engage as a service to our Provider Partners:

PROGRAM SERVICE LEVELS:

KPI	Action	Acceptable	Penalty
On-Time %	Product delivery shall be completed within the Timing SLA’s identified within this Exhibit at the Acceptable Rate or greater. Any Member location that has not been serviced by OneRail over the preceding thirty (30) days shall be exempted from this provision for sixty (60) days following the first delivery executed by OneRail from the Member’s location.	90%	3% reduction in the delivery service fee.
Platform Compliance	3rd party Contractor using a mobile application that is connected to the Platform Services by way of the ODTI Logistics Partner API.	100%	1% reduction in delivery service fee.
Proof of Delivery (POD)	Contractor must trigger “Delivered” status in their mobile app and capture a signature file of the receiving Member upon delivery.[2]	100%	1% reduction in service fee.
Cargo Loss/Damage (1)	Contractor will not lose or damage any Member product	100%	OneRail is responsible for cost of product as well as cost of redelivery

5. Pickup Process

For Provider Partners that offer pickup of Orders at their place of business, the calculation of the total Member remittance to Partner Provider is the same except the Member will not be charged a delivery fee. All other responsibilities outlined in this document are the same for a picked-up Order as a delivered Order. 

6. Refunds and Re-Orders.                                                             

Refunds and re-orders will be addressed as follows:

a.  Marketplace Order Refunds.

In the event that Potluck, in its sole reasonable discretion, has to issue a refund, credit or re-order on a Member’s Order, Provider Partner will prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the fault of Potluck.  All refunds will be issued by Potluck and through the Potluck Platform.  Members will be instructed to lodge any Member complaints through the Potluck platform, including without limitation, Member complaints regarding Provider Partner Product(s), complaints regarding the nature, quality, content, number, or packaging of Provider Partner Product(s). If a Provider Partner issues a refund directly to a Member, Potluck is not liable to reimburse the Provider Partner. 

b. Delivery Refunds.

Unless mentioned and arranged otherwise specifically by Potluck, Provider Partner acknowledges and agrees that Potluck has no responsibility for facilitating the delivery of Provider Partner Product(s) to Members. Any complaints regarding the timeliness or quality of a Deliverer’s delivery service shall be reported by Provider Partner to Potluck. If Provider Partner elects to refund a Member for any reason, such election shall not obligate Potluck to provide a corresponding reimbursement to Provider Partner. In the event that a Provider Partner Product has been visibly damaged with proof from Member, Provider Partner will be required to seek a refund from the Deliverer if they so wish. Unless mentioned otherwise, Potluck takes no liability for damaged food, beverages, or packaging. If Potluck receives complaints from the Member with proof of a delivery delayed beyond a reasonable time without reasonable cause (e.g. bad weather, traffic jams, force majeure etc.), reasonableness to be determined at Potluck’s discretion, Potluck may issue a partial or full refund, or a Potluck credit to the Member, and withhold payment to the Provider Partner. 

7. Order Equipment.

With respect to the Potluck Platform, Provider Partner will install any equipment reasonably required by Potluck for Provider Partner to receive and process Orders (including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders) (“Order Equipment”).

8. Payment, Fees, Title and Taxes.

Payment, fees, and taxes shall be addressed as follows:

a. Payment and Fees. See Schedule B for payment terms. 

b. Taxes.  Potluck shall be responsible when applicable, for all taxes, duties, and other governmental charges on the sale of Provider Partner Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. Provider Partner is solely responsible for updating any menu prices on its own shop.

c. To the extent that a third-party provider provides services to Provider Partner via the Platform (for example, a middleware provider) and charges fees to Potluck, Potluck may pass through such third party’s fees to Provider Partner.

d. In some jurisdictions in the United States, Potluck may be required to determine and calculate when to collect sales, use, or similar taxes from the Member.  Potluck will have the responsibility to remit such taxes directly to the tax authority.

e. Provider Partner agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on Orders and invoices and via the Provider Partner Portal, and to promptly communicate to Potluck in writing any claimed inaccuracies, so that Potluck has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Potluck and Provider Partner agree is in the best interests of both parties and their commercial relationship. Provider Partner agrees to communicate to Potluck 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. Provider Partner shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and Order if Provider Partner does not communicate a written claim or objection to Potluck regarding such transaction, fee, charge or Order within such 14-day period.

f. Provider Partner agrees that Provider Partner holds title to the goods or products that Provider Partner provides through the Platform until the goods are picked up from Provider Partner, and that title passes from the Provider Partner to the Member upon pickup at the Provider Partner’s location. Provider Partner agrees that neither the Deliverer nor Potluck holds title to or acquires any ownership interest in any goods or products that Provider Partner prepares or provides through the Platform.

9. Payment Processing and Member Complaints

Potluck will be responsible for Payment processing. 

Potluck may respond to complaints by Members about items sold by Provider Partner via the Potluck Platform.  In more serious situations, such as fraud (including any charges for items that Members did not place) or Member complaints, Potluck reserves the right to cancel a payment entirely. By agreeing to these Terms, Partner Provider gives Potluck express consent to adjust payments collected on Provider Partner’s behalf.

10. Providers Content and Trademark; Photographs of Menu Items.

a.    During the Marketplace Term, Providers grant to Potluck a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use and display the Providers Content in the provision of services to Provider Partner, including listing Providers on the Potluck Platform, referencing Providers Partner as a Potluck partner, and promoting Potluck’s products and services. As used herein, “Provider Partner Content” includes, without limitation, menus, recipes, photographs (either provided by Providers or on Providers website), business information and Providers Product descriptions (either provided by Providers or on Providers website), trademarks, logos, Providers name, and other materials provided by Providers to Potluck.

b.    If photographs of Provider Partner’s menu items or Recipes are not available or if they do not meet Potluck’s requirements, as reasonably determined by Potluck, then Providers consents to Potluck (i) engaging a professional photographer to take photographs of Provider Partner’s menu items or other products, (i) enhancing the quality of Provider’s existing photographs, (ii) using stock photographs of the menu item or other products, or (iii) using photographs from Provider’s website or social media channels, and displaying such photographs on the Potluck Platform as representations of Provider Partner’s menu items; provided that Provider Partner may contact Potluck support to have such photographs removed from the Provider Partner’s store listing and, in such event, Potluck will comply in a timely manner.

11. Confidential Information.

a.    The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the Terms of this Agreement. Without limiting the foregoing, Potluck Data is the Confidential Information of Potluck.

b.    Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.

c.    The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 11(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.

d.    If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 11(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole expense, in opposing or seeking protective limitations on disclosure.

12. Data Privacy and Security.

a. General.

Provider Partner agrees not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Potluck Data, including without limitation Personal Information, except as required to perform under this Agreement. Provider Partner shall keep Potluck Data secure from unauthorized access and maintain the accuracy and integrity of Potluck Data in Provider Partner’s custody or control by using appropriate organizational, physical and technical safeguards. If Provider Partner becomes aware of any unauthorized access to Potluck Data, Provider Partner will immediately notify Potluck, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Potluck. Provider Partner agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Potluck and will be responsible for damages resulting from Provider Partner’s failure to comply. Provider Partner will not allow any third party to use the Potluck Platform and will be responsible for damages resulting from sharing Provider Partner’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Provider Partner’s account. Provider Partners may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Potluck Platform; damage, destroy or impede the services provided through the Potluck Platform; transmit injurious code; or bypass or breach any security protection on the Potluck Platform.

b. Marketplace API.

During the Market Term, Potluck grants to Provider Partner a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Marketplace API solely to transmit information to facilitate the Potluck Market services. Provider Partner will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Marketplace API; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Marketplace API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Marketplace API; (iv) use the Marketplace API in any manner or for any purpose that violates any law or regulation; and (v) use the Marketplace API for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Marketplace API) any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.

c. Passwords. Provider Partner is responsible for maintaining the integrity of information related to Provider Partner’s access and use of the Potluck Platform, including any password, login or key information. Provider Partner represents and warrants that Provider Partner will not share such information with any third party.

13. Termination.

Provider Partner may terminate this Agreement for any reason at any time upon ninety (90) days’ prior written notice. Potluck may terminate this Agreement or any promotion under this Agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Provider Partner nor Potluck will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Provider Partner or Potluck. Notwithstanding termination of this Agreement, Provider Partner shall fulfill any outstanding Marketplace Orders in accordance with the Terms of this Agreement.

14. Modifications.

Potluck reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. Potluck may, at its sole discretion, remove Provider Partner Products or Stores from the Potluck Platform if Potluck determines that such Provider Partner Product or Provider Partner Store could subject Potluck to undue regulatory risk, health and safety risk, or other liability. Potluck may, at its sole discretion, remove any Provider Partner virtual brand concept from the Potluck Platform if Potluck determines that such virtual brand concept does not meet and maintain certain eligibility requirements as communicated by Potluck. Potluck also may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at provider terms of service. We will notify Provider Partners of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

Potluck reserves the right to update this agreement when it deems clarifications or additional information is needed.

15. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.

a. Each party represents and warrants that 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.  Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.

b. Provider Partner further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health (including Proposition 65 in California), food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, (ii) it has informed Potluck of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Provider Partner Product(s) and it will inform Potluck of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Provider Partner’s menu items listed on the Potluck Platform, (iv) it will only list menu items or products for sale, product descriptions, and prices on the Potluck Platform, (v) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Provider Partner’s menus on the Potluck Platform or request delivery of any age-restricted products through the Potluck Platform without first entering into a separate agreement with Potluck memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, (vi) it will not disclose any information related to a Deliverer or a Member to a third party (except as required to comply with law or pursuant to a court order), (vii) it will comply with the guidelines Potluck publishes that govern any content Provider Partner posts on the Potluck Platform or Provider Partner Portal, (viii) it will comply with its obligations under Section 4(b)(iii) and 4(b)(iv) of this Agreement and (ix) it will comply with Potluck’s Sustainability and Ethics Code attached hereto as Schedule A.

c. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, POTLUCK HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE POTLUCK PLATFORM, THE MARKETPLACE API, DELIVERY API, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF PROVIDER PARTNERABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE SERVICE, IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS WITHOUT WARRANTY OR CONDITION OF ANY KIND 

Provider Partner acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Potluck shall not be responsible to Provider Partner or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the Potluck Services or Platform. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.

d. The parties understand and agree that Potluck acts as an independent contractor in the selling, negotiating, providing, and arranging for food and service deliveries for compensation 

16. Indemnification.

Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the “Indemnified Party”) from and against any and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of Potluck, Deliverers (or, in the case of Provider Partner as the Indemnifying Party, caused by the Provider Partner Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 11 and Section 12, and Section 15 of this Agreement; (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”); or (iv) in the case of Provider Partner as the Indemnifying Party, Provider Partner’s failure to distribute tips as required by applicable law. In addition, Provider Partner will defend, indemnify and hold harmless Potluck from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Provider Partner Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Potluck. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. Potluck assumes no liability, and shall have no liability, for any infringement claim pursuant to section 15 above based on Provider Partner’s access to and/or use of the Potluck Platform following notice of such an infringement claim; any unauthorized modification of the Potluck Platform by Provider Partner; or Provider Partner’s combination of the Potluck Platform with third-party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.

17. Limitation of Liability.

EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT,  AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION), , (I) POTLUCK WILL NOT BE LIABLE TO PROVIDER PARTNER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) POTLUCK’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY POTLUCK TO PROVIDER PARTNER IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

18. Insurance.

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

19. Dispute Resolution.

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH POTLUCK AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 19 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

Except to the extent applicable law provides otherwise, this Agreement will be governed by the laws of the state of Georgia, U.S.A., excluding its conflict of law provisions, and the proper venue for any disputes arising out of or relating to the same will be the state and federal courts in Fulton County, Georgia. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court without the posting of a bond), any dispute arising under this Agreement shall be finally settled in accordance with the Comprehensive Arbitration Rules of the Judicial Arbitration and Mediation Service, Inc. (“JAMS”) by three arbitrators appointed in accordance with such Rules. Such arbitration shall take place in Atlanta, Georgia, in the English language and the arbitral decision may be enforced in any court. The prevailing party in any action or proceeding to enforce this Agreement shall be entitled to costs and attorneys’ fees.

20. Litigation Class Action Waiver. 

To the extent allowed by applicable law, separate and apart from the Arbitration Agreement found in Section 19, Provider Partner agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Provider Partner opted out of the Arbitration Agreement or any other reason, will be conducted solely on an individual basis, and Provider Partner agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Provider Partner acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Provider Partner further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.

21. Franchisees. 

Franchisees operating a branded restaurant or store concept licensed by Provider Partner may participate in the Program pursuant to the Terms and conditions of this Agreement provided that the individual franchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement in substantially the same form as the Supplemental Agreement provided by Potluck to the Franchisee. Unless the parties mutually agree otherwise in writing, all Provider Partner owned branded restaurant(s) and store concept(s) shall be included and subject to the terms hereunder.

22. Partner Code of Conduct.

Provider Partner agrees to comply with the Potluck Sustainability Code and Code of Ethics set forth in Schedule A, which may be updated by Potluck from time to time.

23. Communications from Potluck.

Provider Partner agrees to accept and receive communications from Potluck or Deliverers, including via email, text message, calls, and push notifications to the cellular telephone number Provider Partner provides to Potluck. Provider Partner acknowledges that Provider Partner may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Potluck, its affiliated companies and/or Deliverers. Provider Partner may opt out of such communications in Provider Partner’s Account Settings or by replying “STOP” from the mobile device receiving such messages.

24. Attorneys’ Fees.

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

25. General Provisions.

As set forth on Schedule B between Provider Partner and Potluck, the Schedule B and these Terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. This Agreement is governed by and interpreted in accordance with the laws of the State of Delaware without regard to the conflicts of laws principles thereof. Provider Partner agrees that, except as set forth above in Section 19 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in Fulton County, Georgia. Provider Partner may not assign this Agreement in whole or in part without Potluck’s prior written consent. Potluck may freely assign this Agreement. This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. All notices, requests, consents and other communications under the Parties’ agreements must be in writing, and delivered by overnight courier to the addresses set forth on the Schedule B (or any updated address properly noticed hereunder). Potluck’s address is 1167 Byrnwyck Rd NE, Atlanta, GA 30319. 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 here.

26. DIVERSITY AND INCLUSION.

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

Schedule A

Potluck Sustainability Code

Potluck identifies and supports the ongoing need to drive sustainability within its platform and as such recognizes the need for Provider Partners to comply with all applicable environmental laws.  Provider Partners on the Potluck Platform will be encouraged to have systems in place to ensure safe management of waste, air emissions and wastewater discharge.  At a minimum, Provider Partners must follow all applicable laws and regulations.   Potluck will support and seek out Provider Partners who are engaged in finding ways to minimize the use of nonrenewable resources, use resources efficiently and directionally, and identify with working on minimizing the environmental impact of their operations.

Potluck, through this Sustainability Code recommends, where applicable, that their Provider Partners use recycled or biodegradable packaging materials. 

Potluck recommends all corrugated packaging contain a minimum of 70 percent post-consumer recycled content and that Provider Partners be able to provide documentation to substantiate the actual percentage of recycled content.

Potluck Code of Ethics

As a Potluck Provider Partner, you have a responsibility to our Members, personnel and the community. 

You hereby agree to:

• Maintain the highest standards of legal and ethical standards in all business conduct and interactions.
• Actively promote and encourage the highest level of integrity within the specialty food trade.
• Cooperate in good faith with other Potluck Members and work with them toward the advancement of the Potluck’s community purpose.
• Be fair, equitable and respectful to all colleagues, employees, associates, competitors, Members, and the public, in your business and professional relationships.
• Treat all suppliers honestly, fairly and objectively.
• Observe all applicable state, federal, foreign or international laws and regulations pertaining to the production, processing, labeling, handling and distributing of Potluck products.
• Provide a safe working environment.
• Avoid dealing with those who use any form of forced labor, whether prison labor, indentured labor, bonded labor or otherwise exploitative working relationships.
• Avoid any unfair or deceptive practice and always present our products and services in an honest and forthright manner.
• Refrain from discriminatory practices in dealing with employees, providers and Members.
• Comply in good faith with contractual obligations.
• Represent Potluck, its positions, policies and the community in a positive, constructive and professional manner.
• Act in a manner consistent with and to uphold this code of ethics.

Compliance

In addition to the legal standards mentioned in this Code, Provider Partners shall comply with all other applicable laws related to the delivery of their products or services to Potluck.

Potluck expects Provider Partners to implement systems and controls to promote compliance with applicable laws and the principles set forth in this Code, including policies, training, monitoring and auditing mechanisms. Provider Partners shall also apply these or similar principles to the subcontractors and suppliers they work with in providing goods and services to Potluck.

Audits & Assessment

Potluck reserves the right to assess and monitor Provider Partners’ compliance with this Code. 

Potluck reserves the right to conduct interim screenings, via audits, to evaluate whether Provider Partners are complying with the agreed requirements.

If any violation of this Code of Conduct comes to the attention of Potluck, which violation cannot be resolved within a reasonable period of time, Potluck reserves the right to terminate all agreements with the Provider Partner for cause and/or preclude the Provider Partner from conducting any future business with Potluck. Once notified of a violation, Provider Partners must promptly implement corrective actions and send notice of such corrective actions to Potluck.

Schedule B – Provider Partner Term, Details and Fees

Potluck and Provider Partner agree as follows:

1. Term: Potluck and Provider Partner agree that this Agreement between the parties is for Provider Partner defined operating model (See Partner Provider Agreement) that shall commence on the day of Provider Partner registration and continue until terminated by either party with appropriate notice.
2. Provider Partner Details:

a. Provider Partner Service Provided will include some or all of the following and will be  adequately listed by the Provider Partner.

• Catering, Meal Prep
• Perishable Food Sales
• Recipe Uploads
• Shelf Stable Food Sales
• Merchandise Sales

b. Provider Partner agrees to conduct themselves as defined by Potluck in Schedule A.
c. All specific or additional service level requirements to be provided are contained in the proposal provided by Potluck. Attached hereto as Schedules “A and B”, and by this reference is incorporated to this binding agreement.

3. Financial Commitments:

For Orders processed through the Potluck Platform, Provider Partner agrees to pay a Commission Fee (“Commission Fee”) that is calculated as a percent of the Menu Base Price for food, beverages and other merchandise.  Excluded from the Commission Fee calculation are Provider Partner discounts, delivery charges, tips, and sales tax. Provider Partner agrees to pay the following Commission Fees for the following services:

• B2C
  • 10% on Consumer Orders based on Menu Base Prices for Provider uploaded and prepared Recipes (food, beverages) and other merchandise
  • 15% of the Menu Base Price for Non-Provider uploaded Recipes that they prepared by the provider but for which he does not own the right.  See Schedule B for additional details.

Excluded from the B2C Commission Fee calculation are any Provider Partner discounts, delivery charges, tips, and sales tax.  Delivery charges will be paid by consumers.

• B2B
  • 20% for bulk orders from businesses.

There will be no additional charges for delivery to the seller.

Potluck will remit Members’ payments to Provider Partners excluding Sales Tax, Credit Card Fees (based on a percentage of dollar value of transaction but Potluck will pay other fees), Potluck Commission Fees described in the above paragraph and Delivery Charges (which are pass through expenses that Potluck will pay).  Potluck warrants that there are no hidden fees or fees after the transaction occurs to be charged to Provider Partner.

4. Settlement of Transactions Due: 

For B2C transactions, Provider Partner agrees to a monthly pay out of the total transactions for the month which will be posted as a line item on a monthly transaction report.  Potluck agrees to pay Provider Partner all monies due and payable no later than 5 business days after the end of the month.

For B2B transactions, Provider Partner agrees to a payout on the second (2nd) and fourth (4th) Friday of the current month for all orders completed and successfully delivered prior to such time.

5. Agreement Acknowledgement: Potluck and Provider Partner hereby consent to and agree that the Agreement is proper in the designated County and State under which Potluck and Provider Partner operate.

6. Obligation of Heirs and Assigns:  The Terms of this Agreement shall be binding upon the heirs and assigns of both parties.

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[1] Potluck chefs or other Providers may upload recipes intended to be licensed to other Providers.

[2] If the Member requests contactless delivery, a typed name, and a photograph of the Order at the designated destination will meet this requirement rather than an electronic signature.