Terms of Service – Merchant Partner 

Canada 

UrbanCart.ca Merchants 

Effective: November 1, 2020 

BEFORE YOU USE THE URBANCART.CA PLATFORM (“PLATFORM”) PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH BASKETEGY INC. (O/A URBANCART.CA) OR USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS (“YOU” OR “MERCHANT”) AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET. 

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. 

  •      Definitions
  •      UrbanCart.caCore Responsibilities.
  •      Merchant Core Responsibilities.
  •      Refunds and Re-Orders.
  •      Order Equipment.
  •      Payment, Fees, and Taxes.
  •      Payment Processing.
  •      Use of Merchant Content and Trademark.
  •      Confidential Information.
  •      Data Privacy.
  •      Termination.
  •      Modifications.
  •      Representations and Warranties; Disclaimer.
  •      Indemnification.
  •      Limitation of Liability.
  •      Insurance.
  •      Dispute Resolution.
  •      General Provisions.

  

  1. Definitions

a.      “Urbaneer” means independent third-party delivery contractor. 

b.     “Delivery API” means the UrbanCart.ca application programming interface (API) that allows the Merchant to exchange information with UrbanCart.ca. 

c.     “UrbanCart.ca Data” shall mean any information that UrbanCart.ca provides or makes accessible to Merchant through the UrbanCart.ca Platform, including without limitation Personal Information. 

d.     “Customer” means the customer who places an order for Merchant products through the UrbanCart.ca Marketplace, UrbanCart.ca Delivery or Pick-Up. 

e.     “UrbanCart.ca Marketplace” means UrbanCart.ca’s proprietary online communication platform where Customers can view and search for the menus of Merchants and/or place an order for Merchant Products via the UrbanCart.ca website or mobile application for delivery by an Urbaneer to the Customer. This is also referred to herein as the UrbanCart.ca Platform. 

f.      “UrbanCart.ca Delivery” means the platform that enables delivery fulfillment for orders placed directly with the Merchant by the Customer. 

g.     “UrbanCart.ca Services” means UrbanCart.ca Marketplace, UrbanCart.ca Delivery and Pick-Up, as applicable. 

h.     “Delivery Orders” means orders placed by Merchant for delivery fulfilment by UrbanCart.ca. 

i.      “Delivery Term” means the term of the agreement between UrbanCart.ca and Merchant for UrbanCart.ca Delivery. 

j.      “Marketplace Orders” means orders for Merchant Products through the UrbanCart.ca Marketplace from UrbanCart.ca customers. 

k.     “Merchant” means the restaurant or other entity that has agreed to participate in the UrbanCart.ca Services. 

l.      ”Merchant Portal” is an online website, accessible at https://www.UrbanCart.ca/merchant through which Merchant may and regularly should review and confirm its transactions, fees and charges and account on the Platform. 

m.   “Merchant Products” includes all products offered for take-out or delivery orders at Merchant Stores. 

n.     “Merchant Stores” means the Merchant restaurant locations that participate in the UrbanCart.ca Services. 

o.     “Marketplace Term” means the term of the agreement between UrbanCart.ca and Merchant for the UrbanCart.ca Marketplace. 

p.     “Pick–Up” means the online UrbanCart.ca communication platform where Customers can place an order for Merchant Products for pick up by the customer or the customer’s agent at a Merchant location.  

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

r.     “Pick–Up Term” means the term of the agreement between UrbanCart.ca and Merchant for the Pick-Up. 

s.     “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). 

t.     “Platform Fee” means the fees collected by UrbanCart.ca as a commission in exchange for promoting and featuring the Merchant and Merchant Store(s) on the UrbanCart.ca Platform, which is charged as a percentage of revenues transacted on the UrbanCart.ca Platform. 

u.     “Scheduled Order” shall mean an Order to be fulfilled at a particular time later in the same day or at a later date. 

v.     “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 Merchant to request delivery fulfillment and provide information necessary to enable such delivery fulfillment. 

  

2. The Parties’ Relationship: UrbanCart.ca provides an online marketplace platform using web-based technology that connects Merchants, independent delivery contractors (“Urbaneers”) and customers. (“Platform”), as described in these Terms for UrbanCart.ca Marketplace, UrbanCart.ca Delivery and Pick-Up. UrbanCart.ca is not a merchant or delivery service; it is an online connection platform. Merchant and UrbanCart.ca agree they are independent businesses whose relationship is governed by the Sign-Up Sheet and these Terms. Nothing in the Parties’ agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between UrbanCart.ca and Merchant (or Merchant’s employees, representatives or locations), UrbanCart.ca and Urbaneer, or UrbanCart.ca and customers. Except as expressly set forth in the Sign-Up Sheet and these Terms, each Party shall be responsible for its own expenses, profits and losses. 

  

3. Marketplace Core Responsibilities. For Merchants that have agreed to participate in the UrbanCart.ca Marketplace, UrbanCart.ca and Merchant shall have the following responsibilities during the Marketplace Term: 

a.     UrbanCart.ca Core Responsibilities. UrbanCart.ca will, in a timely manner: 

                                          i.        Display Merchant’s logo; a listing of the Merchant Stores; and a menu of Merchant Products on the UrbanCart.ca Platform; 

                                         ii.        Accept Marketplace Orders from Customers; 

                                        iii.        Forward each Marketplace Order to the relevant Merchant Store; and 

                                        iv.        Forward each Marketplace Order to an Urbaneer, so that the Urbaneer can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer. 

                                         v.        Pay the Merchant in accord with the Parties’ agreements, deducting applicable Platform Fees, marketing fees, subscription fees and Activation Fees.  

b.     Merchant Core Responsibilities. Merchant will, in a timely manner: 

                                          i.        Provide UrbanCart.ca with the Merchant’s in-store or take-out menu, including the price of each item on such menu; 

                                         ii.        Monitor Merchant’s menu and store information on the UrbanCart.ca Marketplace, promptly make updates via the Merchant portal to reflect the most up-to-date products, pricing and other information or immediately notify UrbanCart.ca of any errors or changes in writing; 

                                        iii.        Accept all Marketplace Orders placed by UrbanCart.ca from Merchant’s then-current menu; 

                                        iv.        Confirm all Marketplace Orders from UrbanCart; 

                                         v.        Prepare the Merchant Products for each Marketplace Order for Pick-Up by an Urbaneer at the designated time; 

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

                                       vii.        Notify UrbanCart.ca of any changes to the pricing, availability, description, or other characteristics of the Merchant Products; 

                                     viii.        Notify UrbanCart.ca of its days and hours of operation, and remain open for business on UrbanCart.ca the same days and hours of operation as Merchant’s in-store business; notify UrbanCart.ca of any changes to Merchant’s hours of operations on holidays; and notify UrbanCart.ca if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation; 

                                        ix.        Notify all Merchant store staff members of the relationship with UrbanCart.ca immediately upon execution of this Agreement; and 

                                         x.        Provide the same utensils, napkins, bags and other materials that Merchant would typically provide in a standard take-out or delivery order, subject to Section 15(3)(i). 

                                        xi.        On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to UrbanCart.ca any inaccuracies. 

  

4.     UrbanCart.ca Delivery Core Responsibilities. For Merchants that have agreed to participate in UrbanCart.ca Delivery, UrbanCart.ca and Merchant shall have the following responsibilities during the Delivery Term: 

a.     UrbanCart.ca Core Responsibilities. UrbanCart.ca will, in a timely manner: 

                                          i.        Provide Merchant with an online order form or access to the Delivery API to submit requests for deliveries, or receive information through a Third Party Platform; 

                                         ii.        Forward requests to a Urbaneer, so that the Urbaneer can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer. 

b.     Merchant Core Responsibilities. Merchant will: 

                                          i.        Via the online order form, the Delivery API, or a Third Party Platform, provide information requested by UrbanCart.ca including the Customer’s address, contact information, and any special instructions required for delivery; 

                                         ii.        Accept and collect payments from Customers for their respective orders; 

                                        iii.        Notify Customers prior to placing a Delivery Order that their telephone numbers and other personal contact information will be shared with UrbanCart.ca to enable deliveries to be made by Urbaneers and, in connection with the applicable deliveries, request the Customer’s consent to receive delivery status updates by e-mail, text messages, and telephone calls from UrbanCart.ca and Urbaneers; and 

                                        iv.        Notify UrbanCart.ca if a Customer has not consented to receive delivery updates or has placed any restrictions on types of delivery updates such Customer consents to receive (e.g., no texts). Merchant hereby consents to receiving text messages and email confirmations from UrbanCart.ca providing status updates and delivery confirmations in connection with each delivery. 

                                         v.        On an ongoing basis, review and confirm the transactions, fees and charges on invoices and via the Merchant Portal, and promptly communicate to UrbanCart.ca any inaccuracies. 

c.     Delivery Operating Procedures. 

                                          i.        Order Placement. Merchant agrees to submit a Delivery Order for delivery fulfillment, immediately upon receipt of scheduled delivery request, and provide an estimated “ready–time” in advance of scheduled pick-up. Exceptions will be mutually agreed to by the Parties. 

                                         ii.        Hours of Operation. The pick–up and drop–off of deliveries will be scheduled to take place during UrbanCart.ca’s standard hours of availability, as may be updated from time to time in UrbanCart.ca’s sole discretion. Merchant agrees to abide by the following standard procedures: (i) to notify UrbanCart.ca of any changes to its hours of operations on statutory holidays with reasonable advance notice; and (ii) to notify UrbanCart.ca with reasonable advance notice if a Merchant location closes earlier than standard hours of operation or plans to close earlier than standard hours of operation. 

                                        iii.        Delivery Radii. UrbanCart.ca will only accept Delivery Orders to be delivered within a certain preset delivery radius based on either the Merchant or the End-Customer location, which will be communicated to Merchant. 

                                        iv.        Cancellations. Fees owed for any Scheduled Orders cancelled within twenty-four (24) hours are non-refundable. If provided more than two (2) hours notice, but less than twenty-four (24) hours notice, UrbanCart.ca will make reasonable efforts to accommodate changes. Fees owed for any Delivery Orders cancelled after a Urbaneer has accepted a delivery opportunity will be non-refundable. 

                                         v.        Notification. Merchant agrees to notify all staff members in Merchant Stores of Merchant’s relationship with UrbanCart.ca prior to submitting any delivery requests to UrbanCart.ca. 

  

5.     Pick-Up Core Responsibilities. For Merchants that have agreed to participate in the Pick-Up program, during the Pick-Up Term, UrbanCart.ca will have the same responsibilities as set forth in Section 3(a)(i) – 3(a)(iii) and Merchant will have the same responsibilities as set forth in Section 3(b)(i) – (xi). 

 

6.     Refunds and Re-Orders. Refunds and re-orders will be addressed as follows: 

a.     Marketplace Refunds. In the event that UrbanCart.ca, in its sole reasonable discretion, has to issue a refund, credit or re-order on a Customer’s Order, Merchant 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 the Urbaneer or UrbanCart.ca. 

b.     Delivery Refunds. Merchant acknowledges and agrees that UrbanCart.ca shall be responsible only for facilitating the delivery of Merchant Product(s) to Customers. Merchant shall be solely responsible for any customer complaints regarding Merchant Product(s), including without limitation, complaints regarding the nature, quality, content, number, or packaging of Merchant Product(s). Merchant agrees not to refer any Customer complaints directly to UrbanCart.ca. Any complaints regarding the timeliness or quality of an Urbaneer’s delivery service shall be reported by Merchant to UrbanCart.ca. If the completion of a Delivery Order is more than 45 minutes late and due to fault of UrbanCart.ca, UrbanCart.ca will reimburse Merchant for all or a portion of the delivery cost of the applicable Delivery Order. If Merchant elects to refund a Customer for any reason, such election shall not obligate UrbanCart.ca to provide a corresponding reimbursement to Merchant. In the event that a Merchant Product has been visibly damaged with proof from customer, UrbanCart.ca may reimburse Merchant for all or a portion of the order subtotal. For the purposes of this agreement, “Merchant Product” is the actual food or beverage item, not the packaging that contains the Merchant Product. In no event shall UrbanCart.ca be obligated to issue any refunds directly to Customers. 

c.     Pick-Up Refunds. UrbanCart.ca shall be responsible for customer support issues relating to the ordering of Merchant Products and issues relating to a Customer’s UrbanCart.ca account. All other customer issues or complaints will be Merchant’s sole responsibility. In the event that UrbanCart.ca, in its sole discretion, determines to issue a refund, credit or re-order for an Customer’s Order, Merchant will prepare the food to the same specifications as the original Pick-Up Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order. 

  

7.     Order Equipment. With respect to the UrbanCart.ca Marketplace, Merchant will install any equipment reasonably required by UrbanCart.ca for Merchant to receive and process Orders (including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders) (“Order Equipment”). If any Order Equipment is provided by UrbanCart.ca, Merchant will pay UrbanCart.ca an Order Equipment Fee, as set forth in the Sign-Up Sheet, in exchange for the right to use the Order Equipment to access the UrbanCart.ca Platform in order to receive, process, and accept Marketplace Orders. Any Order Equipment provided by UrbanCart.ca will remain Urban Cart’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant will inspect all hardware and shall notify UrbanCart.ca in writing if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. UrbanCart.ca may restrict or rescind Merchant’s right to use the UrbanCart.ca Platform at any time. Merchant will be responsible for any damage to or loss of any Order Equipment provided by UrbanCart.ca (excluding ordinary wear and tear), which will be promptly reimbursed by Merchant (at the replacement cost thereof). UrbanCart.ca may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments. Merchant agrees to pay all subscription fees and deposits reasonably charged by UrbanCart.ca for Order Equipment, and agrees UrbanCart.ca may deduct such fees and deposits from amounts payable by UrbanCart.ca to Merchant. 

  

8.     Payment, Fees, Title and Taxes. Payment, fees, and taxes shall be addressed as follows: 

a.     UrbanCart.ca Marketplace and Pick-Up. UrbanCart.ca will pay for Marketplace and Pick-Up Orders fulfilled by Merchant each week on a consistent day of the week, subject to change with no less than 10 days notice to Merchants by email or service notification. UrbanCart.ca shall be entitled to deduct from such payments Platform Fees, marketing fees, Activation Fees and subscription fees. If Merchant has opted for UrbanCart.ca to provide Order Equipment, UrbanCart.ca will also deduct a weekly Order Equipment Fee, as set forth on the Sign-Up Sheet, in exchange for the Merchant’s right to use the Order Equipment to access the UrbanCart.ca Platform in order to receive, process, and accept Orders. Merchant agrees UrbanCart.ca may charge the customer fees, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, and Small Order Fee where applicable in UrbanCart.ca’s sole discretion. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. Merchant shall also be responsible for all taxes, duties, and other governmental charges on the Platform Fee, which UrbanCart.ca shall be responsible for withholding and remitting to the appropriate authorities. In the event that Merchant raises the price for a menu item, UrbanCart.ca shall not be required to remit the higher price to the Merchant until 3 business days after the Merchant first provides notice to  UrbanCart.ca of such pricing change. 

b.     UrbanCart.ca Delivery. Merchant will pay UrbanCart.ca fee per Delivery Order as mutually agreed. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. As agreed by the parties, payment of all fees under this Section 8(b) shall be as follows: (i) Merchant shall pay the fees by credit card or ACH at the time of ordering, or (ii) UrbanCart.ca shall invoice Merchant on a monthly basis and Merchant shall pay the invoice within seven (7) days of receipt of such invoice. If any fee is not paid in full by the due date, UrbanCart.ca may assess interest on the unpaid amount for the period beginning on the Payment Date and ending on the date that the amount is paid in full. The amount of interest to be paid shall not exceed the maximum rate under applicable law. 

c.     Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to UrbanCart.ca in writing any claimed inaccuracies, so that UrbanCart.ca has the prompt opportunity to address and resolve any issues and so such issues do not persist, which UrbanCart.ca and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to UrbanCart.ca any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order. Merchant 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 Merchant does not communicate a written claim or objection to UrbanCart.ca regarding such transaction, fee, charge or order within such 60-day period. 

d.     Title: Merchant agrees that Merchant holds title to the goods or products that Merchant provides through the Platform until the goods are picked up from Merchant, and that title passes from the Merchant to the customer upon Pick-Up at the Merchant’s location. Merchant agrees that neither the Urbaneer nor UrbanCart.ca holds title to or acquires any ownership interest in any goods or products that Merchant prepares or provides through the Platform. 

  

9.     Payment Processing. 

Payment processing services for Merchants on the UrbanCart.ca Marketplace and Pick-Up are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, Merchant agrees to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of UrbanCart.ca enabling payment processing services through Stripe, Merchant agrees to provide UrbanCart.ca accurate and complete information about Merchant’s representative and its business, and Merchant authorizes UrbanCart.ca to share it and transaction information related to Merchant’s use of the payment processing services provided by Stripe. Stripe has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1. 

  

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

a.     During the Marketplace Term or Pick-Up Term, as applicable, Merchant grants to UrbanCart.ca  royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicenseable right and license to use and display the Merchant  Content in the provision of providing services to Merchant. As used herein, “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), trademarks, logos and other materials provided by Merchant to UrbanCart.ca. 

b.     If photographs of Merchant’s menu items are not available or if they do not meet UrbanCart.ca’s requirements, as reasonably determined by UrbanCart.ca, then Merchant consents to UrbanCart.ca engaging a professional photographer to take photographs of Merchant’s menu items and display such photographs on the UrbanCart.ca Marketplace as representations of Merchant’s menu items; provided that Merchant may contact UrbanCart.ca support to have such photographs removed from the Merchant’s store listing and, in such event, UrbanCart.ca will comply in a timely manner. Merchant may also choose to update or remove photos using their Merchant Portal. 

  

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, UrbanCart.ca Data is the Confidential Information of UrbanCart.ca. 

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. 

  1. General. Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner UrbanCart.ca Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep UrbanCart.ca Data secure from unauthorized access and maintain the accuracy and integrity of UrbanCart.ca Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to UrbanCart.ca Data, Merchant will immediately notify UrbanCart.ca, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by UrbanCart.ca. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by UrbanCart.ca and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the UrbanCart.ca Platform and will be responsible for damages resulting from sharing Merchant’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Merchant’s account. Merchants 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 UrbanCart.ca Platform; damage, destroy or impede the services provided through the UrbanCart.ca Platform; transmit injurious code; or bypass or breach any security protection on the UrbanCart.ca Platform. 
  1. Delivery API. During the Term, UrbanCart.ca grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Delivery API solely to transmit information to facilitate the UrbanCart.ca Delivery services. Merchant 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 Delivery 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 Delivery API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Delivery API; (iv) use the Delivery API in any manner or for any purpose that violates any law or regulation; and (v) use the Delivery 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 Delivery API) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature. 

13.   Termination. 

Merchant may terminate this Agreement for any reason at any time upon 7 days prior written notice. UrbanCart.ca 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 Merchant nor UrbanCart.ca 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 Merchant or UrbanCart.ca. 

  

14.   Modifications. 

UrbanCart.ca 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. UrbanCart.ca may, at its sole discretion, remove Merchant Products or Stores from the UrbanCart.ca Marketplace if UrbanCart.ca determines that such Merchant Product or Merchant Store could subject UrbanCart.ca to undue regulatory risk, health and safety risk, or other liability. UrbanCart.ca 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 https://www.UrbanCart.ca/merchant/merchant-terms/. We will notify Merchants 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. 

 

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

  1. 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. 
  1. 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. 
  1. Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health, 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 UrbanCart.ca of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform UrbanCart.ca of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Merchant’s menu items listed on the UrbanCart.ca Marketplace, (iv) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the UrbanCart.ca Marketplace or request delivery of any age-restricted products through the UrbanCart.ca Platform without first entering into a separate agreement with UrbanCart.ca memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state/province in which such products will be sold, (v) it will not disclose any information related to an Urbaneer or a consumer to a third party (except as required to comply with law or pursuant to a court order) and (vi) it will comply with its obligations under Section 3(b)(iii) and 3(b)(iv) of this Agreement. 
  1. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, URBANCART.CA HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE URBANCART.CA PLATFORM, THE DELIVERY API, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Merchant 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 UrbanCart.ca shall not be responsible to Merchant 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 UrbanCart.ca 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. 

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 UrbanCart.ca, Urbaneers (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 11, 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”). In addition, Merchant will defend, indemnify and hold harmless UrbanCart.ca 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 Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of UrbanCart.ca. 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. UrbanCart.ca assumes no liability, and shall have no liability, for any infringement claim pursuant to section 16(iii) above based on Merchant’s access to and/or use of the UrbanCart.ca Platform following notice of such an infringement claim; any unauthorized modification of the UrbanCart.ca Platform by Merchant; or Merchant’s combination of the UrbanCart.ca 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, UNPAID AMOUNTS OWED TO URBANCART.CA BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER 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) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) 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, each party 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, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled 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 URBANCART.CA AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 19 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”. 

  1. Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or UrbanCart.ca may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). UrbanCart.ca and Merchant agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration Agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. In that regard, this Arbitration Agreement shall be binding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST URBANCART—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH URBANCART.CA, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST URBANCART.CA IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. 
  2. Arbitration Rules and Forum. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to UrbanCart.ca’s registered agent. The arbitration will be administered by the International Centre for Dispute Resolution Canada under its rules and pursuant to the terms of this Agreement before one arbitrator mutually agreed upon by the parties, and if no agreement can be reached within thirty (30) days of commencement of arbitration, then by one arbitrator appointed by the ICDR. The arbitration shall take place in Toronto, Ontario, or any other jurisdiction mutually agreed upon by Merchant and UrbanCart.ca. The arbitration shall be conducted in accordance with the ICDR arbitration rules then in effect. Payment of all filing, administration, and arbitration fees will be governed by ICDR’s rules. If ICDR is not available to arbitrate, the parties will select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the country where you live or at another mutually agreed location. 
  3. Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and UrbanCart.ca. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and UrbanCart.ca. 
  4. Waiver of Jury Trial. YOU AND URBANCART.CA WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and UrbanCart.ca are instead electing to have claims and disputes resolved by arbitration, except as specified in Section 19(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited. 
  5. Waiver of Class or Consolidated Actions; Severability. YOU AND URBANCART.CA GREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor UrbanCart.ca is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 20, and all other provisions of this Section 19 (Dispute Resolution) shall remain in force. If any provision of this Section 19 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 19. 
  6. Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor UrbanCart.ca can force the other to arbitrate as a result of this Agreement. To opt out, you must notify UrbanCart.ca in writing of your intention to opt out by sending a letter, by First Class Mail, to UrbanCart.ca (c/o Basketegy Inc. ), 14 Strandhill Rd., Scarborough ON, Canada M1J 3B1. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked no later than 30 days after your first order on the Platform. Your notice must include your name and address, your UrbanCart.ca username (if any), the email address you used to set up your UrbanCart.ca account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one merchant, and letters that purport to opt out multiple merchants will not be effective as to any. No merchant (or his or her agent or representative) may effectuate an opt out on behalf of other persons. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us. 
  7. Survival. This Arbitration Agreement will survive any termination of your relationship with UrbanCart.ca. 
  8. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if UrbanCart.ca makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.  

20.  Litigation Class Action Waiver: To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 19, Merchant agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Merchant opted out of the Arbitration Provision or any other reason, will be conducted solely on an individual basis, and Merchant 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 Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Merchant 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 restaurant concept licensed by Merchant 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 UrbanCart.ca to the Franchisee. 

22.  Partner Code of Conduct. Merchant agrees to comply with the Partner Code of Conduct (https://www.UrbanCart.ca/partner/code-of-conduct) which may be updated by UrbanCart.ca from time to time. 

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

24.  General Provisions. 

As set forth on the Sign-Up Sheet between Merchant and UrbanCart.ca, the Sign-Up Sheet 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 Province of Ontario without regard to the conflicts of laws principles thereof. Merchant agrees that, except as set forth above in Section 19 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of Ontario, Canada. Merchant may not assign this Agreement in whole or in part without UrbanCart.ca’s prior written consent. UrbanCart.ca 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 Sign-Up Sheet (or any updated address properly noticed hereunder). UrbanCart.ca’s address is 14 Strandhill Rd., Scarborough, Ontario, Canada M1J 3B1. 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.