These 7NOW Program Terms (these “Terms“) are: (1) by and between 7NOW LLC (“7NOW“) and the entity that has executed a 7NOW Merchant Agreement with 7NOW (such entity, “Merchant“, and such executed 7NOW Merchant Agreement, including all exhibits thereto, the “7NOW Merchant Agreement“); and (2) effective on the effective date of the 7NOW Merchant Agreement (the “Effective Date“). These Terms and the 7NOW Merchant Agreement may be referred to together as the or this “Agreement“, and 7NOW and Merchant may be referred to in these Terms individually as a “Party” and together as the “Parties“. If Merchant does not agree to these Terms, then Merchant may not access or use the Services. All capitalized terms used but not defined in these Terms will have the meanings given to them in the 7NOW Merchant Agreement. Exhibit A contains definitions applicable to these Terms and the 7NOW Merchant Agreement. Merchant and 7NOW hereby agree as follows:

1.              Services.

1.1.           License Restrictions. Except as expressly permitted in this Agreement, Merchant will not, and will not permit any other person or third party to, access or use the Services to: (a) copy, modify, or prepare derivative works or improvements of the Services or Documentation, or any part of the foregoing, in any form; (b) rent, lease, loan, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services, Documentation, or any part of the foregoing to any third party, including on or in connection with the internet or any time-sharing, service bureau, software-as-a-service, cloud, or other technology or service; (c) reverse engineer, disassemble, decompile, adapt, or otherwise attempt to derive or gain access to the source code or any non-public underlying ideas, algorithms, structure, or organization of the Services, or any part of any of the foregoing, in whole or in part; (d) attempt to defeat, avoid, bypass, remove, deactivate, breach, or otherwise circumvent any security device or protection (including software protection mechanisms) in any Services (including any mechanism used to restrict or control the functionality of any of the foregoing), or access or use the Services other than through the use of valid access credentials; (e) input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner (i) any computer, software, firmware, hardware, system, or network or any application or function of any of the foregoing or (ii) the security, integrity, confidentiality, or use of any data processed thereby; and (f) remove, delete, alter, or obscure any trademarks, warranties, disclaimers, or any copyright, trademark, patent, or other Intellectual Property or proprietary rights notices in or from any Services, including any copy thereof. 7NOW may monitor the use of the Services to ensure quality, improve 7NOW products and services, and verify Merchant’s compliance with this Agreement.

1.2.           Additional Merchant Responsibilities.

(a)    Merchant is solely responsible for (i) ensuring that Merchant Criteria (as defined in the 7NOW Merchant Agreement) are met, (ii) all reimbursement costs relating to refunds to Customers for Failed Merchant Goods (defined below) or any other related issues within Merchant’s control (including, if applicable, any costs associated with retrieving any such Failed Merchant Goods or otherwise unsatisfactory Merchant Goods), including, by way of example and not by limitation, Merchant Goods that are not cooked thoroughly, are not prepared in accordance with any Merchant Criteria or any of Merchant’s internal standards, or are missing or incomplete, (iii) determining and setting the retail price for each Merchant Good, excluding separately stated Sales Taxes (such price, the “Retail Price“) (7NOW may, in its discretion, run promotions or discounts on the 7NOW Platform or app that are funded by 7NOW), (iv) except as required pursuant to any Marketplace Facilitator Laws, the collection and remittance of all applicable Sales Taxes as and where required under Applicable Law, (v) providing 7NOW with and maintaining accurate information regarding the Merchant Bank Account, (vi) all franchisees and other persons or entities that own and operate any Location, (vii) providing to 7NOW requested Tax Information in a timely manner, and (viii) obtaining and maintaining the security, integrity, and control of (x) its premises and equipment and (y) usernames, access passwords, login, and key information to its 7NOW Platform account, and any other information related to its access and use of the 7NOW Platform or the Services. Merchant is fully liable for all acts or omissions of its Employees that occur under its 7NOW Platform account, regardless of whether such acts or omissions are authorized by Merchant.

(b)    Merchant is the “merchant of record”, “retailer”, or “seller of record” of Merchant Goods to be made available for sale on the 7NOW Platform. Merchant agrees that it will not make any Merchant Good available under this Agreement at a price higher than the Retail Price or an amount that Merchant is charging for similar Merchant Goods through any comparable platform for food delivery services.

1.3.           Merchant Goods. 7NOW may remove a Merchant Good from the 7NOW Platform if 7NOW reasonably determines: (a) Merchant failed in preparing any Merchant Good in accordance with Food Safety Laws, (b) any Merchant Good fails to meet the Merchant Criteria; (c) any Merchant Good contains or may contain an endangered species, or (d) if 7NOW reasonably determines that any particular Merchant Good would subject 7NOW to undue risk or other liability under Applicable Law or related to health and safety of customers (each such good, a “Failed Merchant Good“). Merchant will be responsible for all refunds except to the extent that a refund to a Customer is due to 7NOW’s actions (e.g., handling, tampering, alteration, or use). Notwithstanding the immediately preceding sentence, in no event will 7NOW be responsible for processing refunds to a Customer that is unable to provide adequate transactional support and evidence in favor of the refund. Merchant will sell all Merchant Goods under its retail and food delivery license privileges to the extent required by Applicable Law.

1.4.           Customer Support. 7NOW will provide support to Customers to resolve any issues with an Order. 7NOW may collect and use any data provided by Customers to determine the cause(s) for any requested refund, and such data will be considered 7NOW Data.

2.              Proprietary and Data Rights.

2.1.           Feedback and Ratings. Merchant may provide to 7NOW Feedback at any time. Merchant hereby irrevocably assigns and transfers and, to the extent any such assignment cannot be made at present, will assign and transfer to 7NOW all ownership, right, title, interest and other worldwide Intellectual Property rights in and to all such Feedback. 7NOW will be free to use, disclose, reproduce, and otherwise exploit such Feedback in 7NOW’s sole discretion, with no obligation or restriction whatsoever, including any obligations relating to compensation. All Feedback will be considered the sole and exclusive property of 7NOW. 7NOW may permit Customers to provide on the 7NOW Platform comments, feedback, or ratings regarding their experience with Merchant and the relevant Merchant Goods (such comments, feedback, or ratings, “Customer Feedback“), 7NOW may exhibit, share, and otherwise use Customer Feedback within the 7NOW Platform without attribution to or approval from Merchant. 7NOW serves as a distributor, and not publisher, of Customer Feedback and may edit or remove Customer Feedback containing objectionable content (e.g., obscenities), disclosing any Personal Data, violating any Applicable Laws (including privacy laws), or violating 7NOW’s content policies.

2.2.           Merchant Data. As between Merchant and 7NOW, Merchant is and will remain the sole and exclusive owner of all right, title, and interest in and to all Merchant Data. Merchant hereby grants to 7NOW a non-exclusive, royalty-free, non-transferable, and non-sublicensable right and license to use and display Merchant Data to provide the Services. 7NOW may, without Merchant’s permission, share Merchant Data with third-party software providers that operate integrations between Merchant, 7NOW, and such third party. Merchant is solely responsible for the accuracy, quality, content, and legality (including compliance with all Applicable Law) of Merchant Data. 7NOW may remove Merchant Data from the 7NOW Platform at any time if it reasonably determines that such Merchant Data violates this Agreement or Applicable Law. 7NOW will use commercially reasonable efforts to notify Merchant in advance of such changes where practicable.

2.3.           Customer Data. In the course of providing the Services to Merchant or receiving the Services from 7NOW, both 7NOW and Merchant may collect, store, and use Customer Data. Each Party’s use of Customer Data will be in compliance with Applicable Law. Merchant may use Customer Data solely as necessary to identify an Order at each Location of Merchant, including independently owned locations branded as Merchant.

2.4.           Usage Data. Notwithstanding anything to the contrary in this Agreement, 7NOW may use Merchant Data and Customer Data to create anonymized or aggregated data that does not identify Merchant (such anonymized or aggregated data, “Usage Data“). Usage Data will not be considered Merchant Data, and Usage Data will be the sole and exclusive property of 7NOW. Usage Data may: (a) include data analysis across 7NOW, 7NOW Affiliates, and 7NOW merchants, customers, and partners; and (b) be used for any lawful purpose, including to use, disclose, compile, distribute, and publish anonymous statistical or analytical data regarding the performance, provision, and operation of the Services or the development of new services. Without limitation of any other provision of this Agreement, Merchant will not merge any data collected or obtained in connection with this Agreement, including Personal Data, with data collected from any other source or using any data collected or obtained in connection with this Agreement, including Personal Data, for the purpose of re-identifying individuals, targeted marketing, or any other similar purposes.

2.5.           Merchant Marks. Merchant hereby grants to 7NOW a nonexclusive, royalty-free right and license to use and display Merchant Marks on its website, marketing collateral, and other public disclosures, or to otherwise identify Merchant as a customer of 7NOW. Except as otherwise set forth in this Agreement, 7NOW obtains no rights in the Merchant Marks. Merchant retains all right, title and interest in and to the Merchant Marks.

2.6.           Title. Neither 7NOW nor any entity providing services to Customers on its behalf take title to any Merchant Good at any time, and title to Merchant Goods will pass to Customer once possession of the Merchant Goods is taken from the applicable Location.

2.7.           Reservation of Rights. 7NOW reserves any rights not expressly granted in this Agreement.

3.              Payment, Reconciliation, and Taxes.

3.1.           Payment. Payment will be as set forth in the 7NOW Merchant Agreement.

3.2.           Taxes.

(a)    Merchant is responsible for the collection and remittance of all applicable Sales Taxes where required under Applicable Law except as required pursuant to Marketplace Facilitator Laws. Merchant hereby grants authorization to 7NOW for the collection of applicable Sales Taxes on behalf of Merchant. Such collection will be based on Merchant-provided information on or through the 7NOW Platform. Because the 7NOW Platform’s functionality may be based on interpretations of Applicable Laws as well as information obtained from taxing authorities, Merchant’s use of the 7NOW Platform, including any communications between Merchant and 7NOW, will not, in any way, constitute, or be deemed to constitute, any provision of legal or tax advice. In Marketplace Facilitator Jurisdictions and as of a date specified by 7NOW (the “Transfer Date“), 7NOW may determine the amount of applicable Sales Tax that 7NOW will collect and remit to the applicable taxing authority based on item descriptions. Such determination will be based on Tax Information from Merchant and Merchant Good descriptions. For each Marketplace Facilitator Jurisdiction: 7NOW will collect Sales Taxes and remit such amounts on its own account to the applicable taxing authority. A list of jurisdictions in which 7NOW will collect and remit Sales Taxes to taxing authorities (and associated Transfer Dates) may be found in Exhibit B (List of Jurisdictions), as updated from time to time. 7NOW will act in good faith to notify Merchant in writing at least thirty (30) days prior to any Transfer Date to allow Merchant to make or deploy any necessary changes to Merchant’s systems. Prior to any Transfer Date or launching of a Location in a Marketplace Facilitator Jurisdiction, the Parties shall cooperate to align on the application of the particular Marketplace Facilitator Laws to the sale of Merchant Goods via the 7NOW Platform.

(b)    If Merchant has a reasonable belief that the computation of Sales Taxes is inaccurate or otherwise erroneous, Merchant will promptly notify 7NOW of such perceived inaccuracy or error. Upon prior notice to Merchant, 7NOW may remove affected Merchant Goods from Merchant’s menu on the 7NOW Platform if the Sales Taxes charged by Merchant violate or are otherwise not in accordance with any law, rule, or regulation. In the event of such removal, Merchant will be entitled to re-submit to 7NOW, for 7NOW’s review, any removed items, and the Parties will engage in good-faith cooperation to determine whether the 7NOW Platform can correctly collect the required Sales Taxes. From time to time and as reasonably necessary for the proper determination, calculation, collection, and remittance of Sales Taxes or compliance with other Applicable Laws, Merchant may be required by 7NOW to provide information pertaining to particular Merchant Goods or particular sales of Merchant Goods (collectively, “Tax Information“). Tax Information may include, but is not limited to: Stock Keeping Units (“SKUs“), Global Trade Item Numbers (“GTINs“), Universal Product Codes (“UPCs“), weight, nutritional facts, identity of preparer, container, temperature, volume, quantities, inclusion of utensils, serving/portion size, whether the item is “ready-to-eat”, ingredients, method of preparation (e.g., diced, grated, or sliced), or intended use.

4.              Representations and Warranties.

4.1.           Mutual Obligations. Each Party will: (a) not perform any action with the intent of introducing to the other Party’s systems, products, or services any viruses, worms, defects, Trojan horses, malware or any items of a destructive nature; (b) not defame, abuse, harass, stalk, or threaten others or promote or facilitate unlawful online gambling or disruptive commercial messages or advertisements; (c) conduct its business in a manner that reflects favorably on the products or services of the other Party and the good name, goodwill, and reputation of the other Party; (d) not use web scraping, web harvesting, or web data extraction methods to extract data from the other Party; and (e) avoid deceptive, misleading, or unethical practices that would be detrimental to the other Party or the public.

4.2.           Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (a) this Agreement has been duly executed and delivered by such Party and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; (b) no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement; (c) it has all requisite ownership rights or licenses to perform its obligations, and make all grants made by it, under this Agreement free and clear of any conflicting agreements, adverse claims, or interests of any person; (d) it will comply with all Applicable Law (including Data Privacy Law) in the exercise of its rights and obligations under this Agreement, including, without limitation, obtaining all licenses and permits necessary for its performance under this Agreement; and (e) it will make no false or misleading representations with respect to the other Party or its products or services.

4.3.           Merchant Representations and Warranties. Merchant represents and warrants that: (a) it has all rights necessary to upload the Merchant Data to the Services and to otherwise have such Merchant Data used or shared, as applicable, by 7NOW in relation to the Services; (b) all nutritional information for Merchant Goods, including allergen information or calorie count, that is made available through the 7NOW Platform is, and at all times will remain, materially accurate and complies, and at all times will comply, with Applicable Law; (c) it will not share with any third party any information related to its access and use of the 7NOW Platform or the Services, including any usernames, access passwords, login, and key information to its 7NOW Platform account; (d) Merchant will fulfill all of its obligations to each Customer and will provide information it has to 7NOW to resolve any consumer dispute or complaint; (e) neither Merchant, Employees nor Locations will retain or store any data prohibited by Applicable Law or engage in any unauthorized use, transfer or disclosure of data; (f) Merchant has all necessary rights, licenses, permits, consents, and authorizations to bind its franchisees or other owners of Locations to the terms of this Agreement; and (g) Merchant’s use of the Services will comply with the terms of this Agreement.

4.4.           7NOW Representations and Warranties. 7NOW represents and warrants Merchant that, during the Term, the Services will materially conform to all Documentation for the Services (if any), which Documentation may be updated by 7NOW from time to time. Merchant’s sole and exclusive remedy for 7NOW’s breach of this warranty is limited to 7NOW correcting the non-conforming Services at no additional charge to Merchant, provided that Merchant provides 7NOW with such written notice within thirty (30) days of identifying such non-conformity.


5.              Indemnification.

5.1.           Mutual Indemnification. Each Party (in such capacity, the “Indemnifying Party“) will indemnify, defend, and hold harmless the other Party, its Affiliates, and each of its and their officers, shareholders, directors, employees, agents, and customers (each, an “Indemnified Party” of the other Party), from and against all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs and fees or any other expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses“), incurred by an Indemnified Party as a result of any third-party claim, demand, suit, action, investigation, allegation or any other proceeding (“Third-Party Claim“) made in connection with, or otherwise related to, directly or indirectly, that the Indemnified Party’s use of Services (or, if Merchant is the Indemnifying Party, 7NOW’s use of any Merchant Data or Merchant Intellectual Property) infringes upon or misappropriates the Intellectual Property rights of such third party.

5.2.           Merchant Indemnification. Merchant will indemnify, defend, and hold harmless all Indemnified Parties of 7NOW from and against all Losses incurred by an Indemnified Party of 7NOW as a result of any Third-Party Claim made in connection with, or otherwise related to, directly or indirectly: (i) physical injury to or death of any person or damage to tangible property caused by any negligent or intentionally wrongful act or omission of Merchant or any Merchant Third-Party Provider relating to this Agreement; (ii) Merchant’s use of the Services in violation of this Agreement, or breach of any of Merchant’s representations or warranties contained in this Agreement; (v) any Sales Tax assessment applicable to Merchant Goods in non-Marketplace Facilitator Jurisdictions or the failure to provide accurate and timely information, including Tax Information used to determine Sales Tax; (vi) Merchant’s alleged or actual failure to comply with any Applicable Laws (including those related to health, safety, labeling, or retail food or the sale or delivery of age restricted products, as well as Data Privacy Laws) in connection with this Agreement; or (vii) any Security Incident or Merchant’s failure to comply with security obligations, except to the extent that such Losses were caused directly by the gross negligence or willful misconduct of 7NOW.

5.3.           Procedures. For any Third-Party Claim specified in this Section 5, the Indemnified Party will provide notice of such Third-Party Claim promptly to the Indemnifying Party. Failure to provide such notice will not waive any rights of the Indemnified Party or relieve the Indemnifying Party of its obligations under this Section 5 except to the extent that the Indemnifying Party can demonstrate that it is materially prejudiced by such failure. The other Party will further provide to the Indemnifying Party, at the Indemnifying Party’s expense, all available information, assistance, and authority to defend. The Indemnifying Party will not compromise or settle any Third-Party Claim without the other Party’s prior written consent. If the Services become, or in 7NOW’s opinion are likely to become, the subject of a Third-Party Claim covered by Section 5.1 (Mutual Indemnification), 7NOW may, at its option and expense, either (i) procure for Merchant the right to continue exercising the rights made available under this Agreement; (ii) replace or modify the Services so that they become non-infringing or non-misappropriating; or (iii) refund to Merchant prepaid fees for any unused portion of the then-current term of the Services, if any, following which 7NOW may terminate this Agreement upon written notice to Merchant. Notwithstanding anything to the contrary in this Agreement, this Section 5 will not apply to any Intellectual Property infringement or misappropriation Third-Party Claims arising from (a) the combination of the 7NOW Platform or Services with other equipment, software, or products not supplied by 7NOW, (b) designs, specifications, or modifications originated or requested by Merchant, (c) the failure of Merchant to comply with any instructions given by 7NOW to Merchant in relation to such Third-Party Claims brought against Merchant, where such compliance would have avoided or mitigated such Third-Party Claim, (d) Merchant’s failure to install an update provided by 7NOW that would have avoided or mitigated such claim, (e) allegations of infringement made by a non-practicing entity, or (f) any claims that are attributable to Merchant’s fraud, gross negligence, or intentional misconduct. This Section 5 represents the sole and exclusive remedy of Merchant, and the entire liability and obligation of 7NOW, with respect to infringement and misappropriation.


7.              Confidentiality.

7.1.           Use of Confidential Information and Protective Measures. The Confidential Information of each Party is the property of that Party. The receiving Party will use the same degree of care as it uses to protect its own Confidential Information of like nature, but no less than reasonable care. Each Party will: (a) hold in confidence all Confidential Information of the other Party; (b) use such Confidential Information only to perform its obligations or exercise its rights under this Agreement; and (c) not transfer, display, convey or otherwise disclose or make available such Confidential Information to any person or entity, except to its respective Receiver Personnel. The receiving Party will cause its Receiver Personnel to handle the disclosing Party’s Confidential Information in compliance with this Agreement, and is fully liable to the disclosing Party for any failure of its Receiver Personnel to do so, to the same extent as if such failure had been that of the receiving Party. The receiving Party may disclose the Confidential Information of the disclosing Party in response to a valid court order or request, or Applicable Law (including under applicable Data Privacy Laws), on the condition that the receiving Party: (a) promptly notify the disclosing Party in writing of such request within forty-eight (48) hours of receipt of such request and in any event prior to such disclosure, such that the disclosing Party will have a reasonable opportunity to obtain a protective order, (b) complies with all reasonable directions of the disclosing Party with respect to such disclosure, and (c) assists the disclosing Party, at the disclosing Party’s expense, in any attempt to limit or prevent the disclosure of the Confidential Information. The receiving Party will only disclose the minimum amount of Confidential Information legally required.

7.2.           Return or Destruction of Confidential Information. Except as set forth in the “Effect of Termination” section of the 7NOW Merchant Agreement, upon written notice from the disclosing Party or upon the effective date of the termination of this Agreement, the receiving Party will: (i) at its own expense and at disclosing Party’s sole discretion, promptly either return or destroy the disclosing Party’s Confidential Information and provide the disclosing Party with certification of such return or destruction upon written request, and (ii) cease all further use of the other Party’s Confidential Information, whether in tangible or intangible form, except in either case for: (a) any Confidential Information that the receiving Party is required to retain pursuant to any Applicable Law, (b) any Confidential Information stored by the receiving Party in such a way that it would be commercially impracticable to delete such Confidential Information.

8.              Insurance.

8.1.           Each Party (in such capacity, the “Insuring Party“) will during the Term have and maintain in force, from reputable insurance carriers with an A.M. Best rating of no less than A- and a financial size category of no less than X or its equivalent by a recognized insurance rating service that is duly licensed by the appropriate governmental authorities, the following insurance coverage which will be primary and non-contributing with respect to any other insurance or self-insurance that may be maintained by the other Party:

(a)    worker’s compensation insurance, including occupational illness or disease coverage, or other similar social insurance in accordance with the laws of the nation, province, state, or territory exercising jurisdiction over the Insuring Party’s employees;

(b)    general liability insurance, written on an “occurrence” basis with combined single and aggregate limits as set forth in (i) and (ii) directly below for bodily injury and property damage in a form providing coverage not less than a standard commercial general liability policy including hazards of operation coverage, products/completed operations coverage, and contractual liability coverage:

(i)             For Merchants with one to two Locations: at least $1,000,000 per occurrence and $2,000,000 aggregate;

(ii)            For Merchants with three or more Locations: at least $2,000,000 per occurrence and $4,000,000 aggregate;

(c)    professional errors and omissions insurance with minimum limits of liability of $2,000,000 per occurrence;

(d)    comprehensive automobile liability insurance covering all vehicles used by the Insuring Party in the performance of its obligations under this Agreement, covering any type of vehicle, whether owned, non-owned, hired, or leased, in a combined single limit of $1,000,000 per occurrence to protect both Parties for claims of bodily injury (including death) and property damage;

(e)    network security and cyber liability insurance policy, either combined or separate, with limits not less than $2,000,000 per occurrence and $2,000,000 in the aggregate; covering liability and defense costs arising out of the acts, errors or omissions, of the Insuring Party and its agents, contractors and employees, the failures and errors of any products provided by the Insuring Party, or the failure of the Insuring Party to protect the security of any computer or other electronic network. Such policy will also include coverage for all costs incurred to respond to the theft, loss, transmission of a virus and including business interruption, data loss, computer fraud, funds transfer loss, cyber extortions, unauthorized disclosure, wrongful collection or access to information, and all damages resulting from such breach, including fines and penalties imposed;

(f)     employee dishonesty and computer fraud coverage for loss arising out of or in connection with any fraudulent or dishonest acts committed by the Insuring Party or its Representatives, acting alone or in collusion with others, in a minimum amount of $1,000,000; and

(g)    if any of the above minimum primary insurance amounts are reached in the form of a commercial umbrella or excess liability coverage policy, such policy must provide coverage at least as broad as the underlying policies, including the comprehensive general liability insurance policy and the automobile liability insurance policy.

8.2.           All such insurance will cover the acts and omissions of the Insuring Party and its employees, agents, and subcontractors performing services under this Agreement, and this Section will not be construed as limiting in any way the extent to which the Insuring Party may be held liable for payment for Losses to persons or property resulting from its activities under this Agreement or the activities of any of the Insuring Party’s employees or other persons for whom the Insuring Party is otherwise responsible. Merchant will ensure that its subcontractors (excluding independent delivery service providers), if any, maintain insurance coverage as specified in this Section. If insurance policies are on a claims made basis, coverage shall be maintained for a period of two (2) years following termination of this Agreement. Coverage under such policies will be primary without any right of contribution from any insurance maintained by the additional insureds and, except for workers’ compensation and professional liability insurance, the other Party will be included as an additional insured. The obligation to carry insurance required by this Agreement will not limit or modify in any way any liabilities or obligations of the Insuring Party under this Agreement. Insurance will be independent of the indemnity provisions of this Agreement, and insurance under this Agreement is not designed solely to guarantee payment of the Insuring Party’s indemnity obligations.

9.              Miscellaneous.

9.1.           Force Majeure. Neither Party will be in default of its obligations under this Agreement and will be excused from performance to the extent its performance is (a) delayed or prevented by an event beyond such Party’s reasonable control, including any act of God, earthquake, flood, national disaster, strike, embargo, riots, sabotage, utility or transmission disruption or outage, equipment or widespread communications network or internet failure, governmental or regulatory changes, acts of declared or undeclared war, terrorism, fire, unforeseen vendor issues, or pandemic.

9.2.           Publicity. 7NOW or a party that it designates to act on its behalf may take still images and video for marketing and other efforts related to the 7NOW Platform (“Marketing Media“). Marketing Media and all Intellectual Property rights therein are and will remain the sole and exclusive property of 7NOW. If Merchant provides still images, videos, or other materials to 7NOW for use in connection with (a) the display of Merchant Goods on the 7NOW Platform, (b) the availability of Merchant Goods via the 7NOW Platform, and (c) the marketing and promotion of the 7NOW Platform, Merchant is solely responsible, and will secure any and all rights, licenses, consents, and permissions necessary, and hereby grants to 7NOW a non-exclusive, revocable, fully paid-up, and royalty-free license to use and display such provided materials in accordance with this Section 9.2. Merchant will not use 7NOW’s name or trademarks or refer to 7NOW directly or indirectly in any media release, public announcement, or public disclosure relating to this Agreement, without 7NOW’s written consent prior to each such use or release.

9.3.           Governing Law; Jury Trial and Class Action Waiver. The laws of the state of Texas govern all matters arising out of or in connection with this Agreement, including all claims, actions, and causes of action arising out of or in connection with this Agreement (“Disputes“) but excluding rules of conflicts of law that would result in the choice of another jurisdiction’s laws, except that the Uniform Computer Information Transactions Act will not apply even if adopted as part of the laws of the State of Texas. The Parties expressly disclaim the application of the United Nations Convention on the International Sale of Goods to this Agreement. Each Party hereby expressly and irrevocably waives its right to a jury trial for any Dispute whatsoever. To the maximum extent permitted by law, no class or collective actions or proceedings in connection with any Dispute, or the performance, breach, termination, interpretation, enforceability, or validity of such Dispute, can be asserted in arbitration, litigation, or otherwise, and the Parties hereby expressly and irrevocably waive all rights to bring such actions or proceedings.

9.4.           Entire Agreement; Cumulative Remedies; Assignment. This Agreement (including the 7NOW Merchant Agreement, these Terms, and all attached Exhibits hereto and thereto) constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes any prior or contemporaneous agreement or understanding, whether written or oral, between the Parties with respect to such subject matter. In the event of a conflict among terms in this Agreement, the following is the order of precedence in interpretation: (a) these Terms; (b) the Exhibits of these Terms; and (c) the 7NOW Merchant Agreement. This Agreement may be amended or modified only by a written agreement signed by the Parties. The remedies stated under this Agreement are cumulative and do not exclude other remedies to which a Party is lawfully entitled. Merchant may not assign, subcontract, delegate or otherwise convey this Agreement, or any of its rights and obligations under this Agreement, to any entity without the prior written consent of 7NOW. 7NOW may assign, subcontract, delegate or otherwise convey this Agreement to any Affiliate of 7NOW or to the surviving or acquiring entity in the event of any merger, acquisition of stocks or assets, reorganization or other similar restructuring involving 7NOW.

9.5.           Severability; Waiver; Relationship of the Parties. If any provision of this Agreement is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and the remaining provisions of this Agreement will be unimpaired and this Agreement will continue in full force and effect. The failure of either Party to insist upon strict performance or to seek a remedy for breach of any term of this Agreement, or to exercise any right, remedy, or election in this Agreement or permitted by law or equity, will not constitute or be construed as a waiver or relinquishment in the future of such term, right, remedy or election. Any consent, waiver, or approval by either Party of any act or matter will not be effective unless delivered by written notice signed by an authorized representative of the consenting, waiving, or approving Party. Nothing in this Agreement is intended or will be construed to create or establish any agency, partnership or joint venture relationship between the Parties.

9.6.           Counterparts; Execution; Interpretation; Survival. This Agreement may be executed in any number of counterparts, each of which will be an original. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. Unless the context of this Agreement requires otherwise, (a) the words “include”, “includes”, and “including” are deemed to be followed by the words “without limitation”; and (b) the word “or” is not exclusive. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument. Together with all provisions of this Agreement (including those provisions in the 7NOW Merchant Agreement) and in addition to the sections that survive in the 7NOW Merchant Agreement, the following Sections of these Terms shall survive the termination or expiration of this Agreement: Sections 1.1, 2, 4.5, 59, and Exhibit A (Definitions).






1.     7NOW API” means the 7NOW application programming interface.

2.     “7NOW Data” means all data or information processed, compiled, summarized, or derivative versions of such data or information, and any insights that may be learned from such data or information that may exist in any system, database, or record that is either (i) provided by or on behalf of 7NOW or its customers to Merchant, or (ii) is processed by or on the 7NOW Platform, in each of (i) and (ii) pursuant to this Agreement. 7NOW Data includes Personal Data.

3.     7NOW Intellectual Property” means: (i) the Intellectual Property of 7NOW and its Affiliates and their respective licensors, including any deliverables, (ii) 7NOW Data, (iii) the 7NOW Platform, and (iv) all worldwide rights in any of the foregoing (including copyrights, moral rights, patent rights, trade secret rights and trademark rights) existing now or in the future, and all applications and registrations therefor.

4.     7NOW Platform” means 7NOW’s proprietary platform, which includes the 7NOW API, that enables Employees and Customers to interface with, access, and use the Services.

5.     Affiliate” means, with respect to a Party, that Party’s parents, subsidiaries or any other entity that directly or indirectly Controls, is Controlled by, or is under common Control with that individual, organization or entity at any time during the Term. “Control” (including, with correlative meanings, the terms “Controlled by” and “under common Control with“), means the possession, directly or indirectly, of the power to direct or exercise a controlling influence over the management or policies of such entity, whether through the ownership of voting securities or by contract.

6.     Alcohol or Restricted Items Addendum” means 7NOW’s standard addenda that governs provision and sale of alcohol, tobacco, or other age-restricted items by Merchant in connection with the Services.

7.     Applicable Law” means all federal, state, provincial, local and foreign laws, rules, regulations, regulatory guidance, and industry best practice (as may be enacted or amended from time to time) applicable to each Party or its business. For the purposes of this Agreement, Applicable Law includes Data Privacy Laws and Food Safety Laws.

8.     Confidential Information” means any non-public information of the disclosing Party that is either marked as being “Confidential” or “Proprietary” or under the circumstances of disclosure, or due to the type of information, should reasonably be considered as confidential or proprietary. 7NOW Confidential Information includes 7NOW Data and the existence and terms of this Agreement. Confidential Information does not include information that: (i) is in or enters the public domain without breach of this Agreement and through no act of the receiving Party, (ii) the receiving Party was lawfully in possession of, without any obligation of confidentiality or nondisclosure, prior to receiving it from the disclosing Party, (iii) the receiving Party can demonstrate was developed by the receiving Party independently and without use of or reference to the disclosing Party’s Confidential Information, or (iv) the receiving Party receives from a third party without restriction on disclosure and without breach of a nondisclosure obligation.

9.     Customer(s)” means users who place orders through the 7NOW Platform.

10.   Customer Data” means data and information, which may include Personal Data, collected by 7NOW via the Services, such as when a Customer enters payment information, submits an online order, enrolls in a loyalty program or requests a digital receipt, and may include: (i) contact information (such as name, phone number, email address, etc.); (ii) information about the transaction; (iii) Customer purchase history; and (iv) location information.

11.   Customer Payments” means a payment made to 7NOW by a Customer for Merchant Goods.

12.   Data Privacy Laws” means any and all applicable laws, regulations, or other pronouncements having the effect of law that: (i) relate to the confidentiality, processing, privacy, security, protection, transfer, or trans-border data flow of Personal Data; (ii) relate to the privacy or interception, recording or monitoring of communications; (iii) provide rights to an individual whose Personal Data is being processed; or (iv) that triggers a duty to notify an individual whose Personal Data has been, or may have been, the subject of a Personal Data Breach.

13.   Documentation” refers to any user manuals, guides, or other written materials provided by 7NOW that accompany the Services or the 7NOW Platform.

14.   Employees” means Merchant’s employees, agents, and contractors who are authorized by Merchant to use the Services.

15.   Feedback” means suggestions, enhancement requests, ideas, feedback, recommendations, or other input about the Services or 7NOW Platform.

16.   “Intellectual Property” means (i) works of authorship, including computer programs, (ii) inventions (whether or not patentable), (iii) trade secrets, and (iv) trademarks.

17.   Location(s)” means the location(s) for which Merchant is agreeing to purchase or license, as applicable, the 7NOW Services, as reflected in the 7NOW Merchant Agreement, or subsequently amended by written agreement (email shall suffice).

18.   Marketplace Facilitator Jurisdiction” means a jurisdiction with Marketplace Facilitator Laws in effect that are applicable to 7NOW beginning on the effective date of such legislation.

19.   Marketplace Facilitator Laws” means laws commonly known as “marketplace facilitator” laws that may require 7NOW to collect and remit Sales Taxes directly to the taxing authority.

20.   Merchant API” means the Merchant application programming interface (“API“).

21.   Merchant Bank Account” means the bank account (or accounts) designated by Merchant for the facilitation of transactions, settlement of Net Sales Proceeds or payment of fees under this Agreement.

22.   Merchant Data” means any files, graphics, images, text, emails, data, or other information submitted by Merchant in the course of using the Services or collected by 7NOW, including Merchant’s name, address, contact information, Employee information, product data (including images thereof), loyalty program information, logos and brand images, nutritional, ingredient, and allergen information, information relating to age restrictions or other warnings or risks, promotional information, advertisements, and other information or material submitted by Merchant to 7NOW through the Services, excluding Customer Data. Merchant Data may include Personal Data, whether from Merchant’s Employees or otherwise.

23.   Merchant Goods” means any and all products offered by Merchant for pickup or delivery at the Locations.

24.   Merchant Intellectual Property” means (i) all Intellectual Property authored, invented, or otherwise created by Merchant: (a) without use of, or reference to, or otherwise containing any 7NOW Intellectual Property; and (b) outside of and independent of Merchant’s performance under this Agreement; and (ii) all worldwide rights in any of the foregoing (including copyrights, moral rights, patent rights, trade secret rights and trademark rights) existing now or in the future, and all applications and registrations therefor. Merchant Intellectual Property includes Merchant Marks.

25.   Merchant Marks” means Merchant’s business name, logo, trademarks, service marks, images, domain names, and other similar content provided to 7NOW for use in connection with the Services.

26.   Merchant Third-Party Providers” means Merchant’s agents, contractors, representatives, and any other persons or entities providing services to Merchant in support of Merchant’s performance of its obligations under this Agreement.

27.   Net Sales Proceeds” means funds remitted by 7NOW to Merchant resulting from Customer Payments, less all applicable fees due and owing relative to the applicable transaction and Sales Taxes that are required to be by paid by 7NOW as a marketplace.

28.   Orders” means orders placed by Customers on the 7NOW Platform for Merchant Goods.

29.   Personal Data” means all information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with an identifiable individual or such person’s household, computer system, mobile device, or other similar data regulated by Data Privacy Laws which is provided to, or collected by, Merchant on behalf of 7NOW in connection with this Agreement regardless of the form in which it is provided to Merchant and regardless of whether Personal Data is received by Merchant in a manner that commingles the Personal Data with information that is not Personal Data.

30.   “Personal Data Breach” means any misuse, compromise, or unauthorized, accidental, or unlawful access, disclosure, acquisition, destruction, loss, or alteration of Personal Data, including any circumstance pursuant to which Data Privacy Laws require either notification to be given to affected parties or other activity in response to such circumstance. Personal Data Breaches are a type of Security Incident.

31.   Receiver Personnel” means the directors, officers, employees, agents, contractors, accountants, auditors and legal and financial advisors of the receiving Party who: (i) need to know such Confidential Information of the disclosing Party to allow the receiving Party to perform its obligations or exercise its rights under this Agreement; and (ii) are under confidentiality, privacy, and data security obligations at least as protective as those set forth in this Agreement as applicable and with respect to the kinds of Confidential Information those Receiver Personnel receive where such obligations are memorialized in written, valid and enforceable agreements between such Receiver Personnel and the Party providing the Receiver Personnel with Confidential Information.

32.   Representatives” means a Party’s respective officers, employees, directors, consultants, agents, professional advisors (e.g., attorneys, auditors, financial advisors, accountants and other professional representatives), contractors and third-party service providers.

33.   Sales Tax” means any sales, privilege, transaction privilege, general excise, sellers use, gross receipts, and similar transaction taxes, as well as any bag, plastic, bottle, or other similar fees chargeable to Customers pursuant to applicable tax law.

34.   Security Incident” means, with respect to any 7NOW Data Processed by Merchant or a Merchant Third-Party Provider under the Services Agreement, the accidental, inadvertent, unauthorized, or unlawful destruction, alteration, disclosure of, access to, acquisition of corruption, sale, rental, or other processing of such 7NOW Data. Security Incidents include Personal Data Breaches.

35.   Services” means the 7NOW API, 7NOW Platform, and the 7NOW-Platform-supported integrations with third parties or customer support, and any other current or future services offered by 7NOW under this Agreement, as further set forth in this Agreement.






Jurisdictions Where 7NOW Collects and Remits Sales Tax

Transfer Dates