Effective: September 25, 2024

BEFORE YOU USE THE MAVI.IO (DBA ONMYWAY) MARKETPLACE, STOREFRONT, OR ANY OTHER Mavi.io (DBA ONMYWAY) PRODUCT OR SERVICE PLEASE READ THESE TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY. BY EXECUTING THE MERCHANT SERVICE ORDER WITH MAVI.IO (DBA ONMYWAY) OR USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AS STATED IN THE MERCHANT SERVICE ORDER AND ALL OF YOUR PARTICIPATING MERCHANT LOCATIONS ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN ADDITION TO THE TERMS ON YOUR MERCHANT SERVICE ORDER OR STOREFRONT ORDER ADDENDUM. MAVI.IO (DBA ONMYWAY) MAY REVISE THESE TERMS FROM TIME TO TIME. WE WILL NOTIFY YOU 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.

SECTION 13 (GOVERNING LAW & DISPUTE RESOLUTION) OF THE TERMS OF SERVICE 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 13 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 13 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

BY ENTERING INTO THESE TERMS OF SERVICE WITH MAVI.IO (DBA ONMYWAY), YOU AGREE TO COMPLY WITH APPLICABLE LOCAL LAWS AND GUIDELINES AS DESCRIBED BELOW IN SECTION 7.

These Terms of Service, together with the Service Order (“Service Order”), Service Addendum, (“Service Addendum”) and other attachments or exhibits thereto, (the “Agreement”) between Mavi.io (DBA ONMYWAY), and Merchant is effective as of the date that you enter into the Service Order with Mavi.io (DBA ONMYWAY). In the event of a conflict between any of the terms in this Terms of Service and/or the Merchant Deal Sheet, the conflict will be construed in the following order of precedence: 1) Service Addendum, 2) Service Order, and 3) any other term in these Terms of Service.

1.                PREAMBLE. Mavi.io (DBA ONMYWAY) provides a suite of products, services, and technology solutions to enable merchants to grow their businesses, including online marketplace(s), self-delivery, demand generation, certain promotions or marketing services, and such other services as offered by Mavi.io (DBA ONMYWAY) from time to time. Merchants are restaurants, grocery stores, and/or businesses that sell products and/or services to consumers. Mavi.io (DBA ONMYWAY) and Merchant wish to enter into a partnership pursuant to the terms set forth in this Agreement. Merchant may opt into certain Mavi.io (DBA ONMYWAY) Services by entering into the applicable Service Addendum. This Agreement applies to all Merchant Locations (physical and/or virtual) owned, operated, managed, and/or franchised by Merchant, unless excluded in an attached exhibit or mutually agreed in writing. For Merchants operating a franchisee or similar structure, please refer to Section 14.12.

 2.                OPERATING PROCEDURES.

2.1.    Mavi.io (DBA ONMYWAY) Responsibilities. Mavi.io (DBA ONMYWAY) will perform the obligations listed in the applicable Service Addendum.

2.2.    Merchant Responsibilities. Merchant will: (a) perform the obligations listed in the applicable Service Addendum and maintain all applicable permits and licenses required of it to operate, provide services, and sell Merchant Products; (b) notify Mavi.io (DBA ONMYWAY) of its days and hours of operation, including on holidays; (c) notify relevant Merchant Location staff members of the relationship with Mavi.io (DBA ONMYWAY) and obligations of the Merchant Location; (d) not use any customer Personal Information received from Mavi.io (DBA ONMYWAY) in relation to providing the customer services for any reason other than for the purposes of fulfilling the services for that customer’s particular order; (e) not retain customer Personal Information or any of the customer’s Personal Information for longer than it takes to fulfill the delivery services for that customer’s particular order; (f) maintain the accuracy of all materials and data provided to Mavi.io (DBA ONMYWAY), including but not limited to hours of operation, Merchant Product availability and offerings, promotions; (g) prepare, handle, store, label, and package all Merchant Products in accordance with applicable laws, including without limitation food safety standards, laws related to the Merchant Products or packaging materials used, and, if applicable alcohol sales and safety laws; and (h) will have the sole responsibility for any obligations or liabilities to the Merchant Location, customers or other third parties that arise from or relate to the Merchant's or Merchant Location’s provision of services.

2.3.    Malware. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products or services (including the applicable Mavi.io (DBA ONMYWAY) Service and/or Merchant Application) any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.

2.4.    Hours of Operation. Mavi.io (DBA ONMYWAY) will only accept Orders during the operating hours for the applicable Mavi.io (DBA ONMYWAY) Service, which may vary by Merchant Location and will be separately communicated by Merchant.

2.5.    Pick-up Area and Fulfillment Timing.  The Merchant is responsible for determining the Merchant’s pick-up area and shall ensure safe and reliable Merchant managed pick-up areas. The Merchant acknowledges that Mavi.io (DBA ONMYWAY) will use the Merchant’s provided data (e.g., hours of operations, menu, inventory, etc.) to limit the Merchant’s ability to sell Merchant Products only to those potential customers who place an order within the Merchant’s provided data. The Merchant is also responsible for providing Mavi.io (DBA ONMYWAY) with projected timelines for the preparation of the Merchant's Product orders. Mavi.io (DBA ONMYWAY) may use the Merchant’s preparation timelines, geolocation of customers and Merchant Locations, Mavi.io (DBA ONMYWAY)’s internal projection of fulfillment time, and other technologies and data available to Mavi.io (DBA ONMYWAY), in determining the estimated time for delivery that will be displayed in the Mavi.io (DBA ONMYWAY) Service marketplace for all of the Merchant's applicable Merchant Products. Any geolocation tracking will be dependent on the individual consent of the Merchant Location and customers and will cease upon completion of each order. The Merchant acknowledges that Mavi.io (DBA ONMYWAY)’s systems may require adjustments to the Merchant’s services, fulfillment, timelines, and Merchant Product availability.

2.6.    Modifications. Mavi.io (DBA ONMYWAY) reserves the right, at its sole discretion, to change, suspend, or discontinue any Mavi.io (DBA ONMYWAY) Service (including the availability of any feature or content) or Merchant Location at any time. Merchant shall not list or include any Merchant Products or Locations that subject Mavi.io (DBA ONMYWAY) to undue regulatory risk, health and safety risk, or other liability. Any such Merchant Products or Locations are subject to removal by Mavi.io (DBA ONMYWAY). If applicable, Mavi.io (DBA ONMYWAY) may, at its sole discretion, remove any Merchant virtual brand concept from the Mavi.io (DBA ONMYWAY) Service, if Mavi.io (DBA ONMYWAY) determines that such virtual brand concept does not meet and maintain certain eligibility requirements as communicated by Mavi.io (DBA ONMYWAY), provided, however, that Mavi.io (DBA ONMYWAY) shall use commercially reasonable efforts to inform Merchant of such removal.

2.7.    Multiple Accounts.  If the Merchant creates separate accounts in the Mavi.io (DBA ONMYWAY) Services and agrees to separate agreements for each account in the Mavi.io (DBA ONMYWAY) Services, then the agreement associated with each account in the Mavi.io (DBA ONMYWAY) Services will apply to the Merchant Locations associated with that account.

2.8.    Mavi.io Data Use.

2.8.1.  Merchant Use of Mavi.io (DBA ONMYWAY) Data.  The Merchant may use Mavi.io (DBA ONMYWAY) Data for the sole purposes of fulfilling the order of Items by end users and viewing its sales-related data either singularly (only Mavi.io (DBA ONMYWAY) Data) or aggregated with other third-party data, which may include sales data of Mavi.io (DBA ONMYWAY) competitors, and for no other purpose.

2.8.2.  Except for the purposes specified herein, the Merchant must not store, aggregate, or otherwise use Mavi.io (DBA ONMYWAY) Data in any manner (including, by way of example and without limitation, disclosing Mavi.io (DBA ONMYWAY) Data to Mavi.io (DBA ONMYWAY)  Competitors, using Mavi.io (DBA ONMYWAY) Data to target service partners with competitors’ advertisements or promotions, or intentionally using Mavi.io (DBA ONMYWAY) Data to provide a benefit to an Mavi.io (DBA ONMYWAY) competitor).

2.8.3.  Accuracy of Information.  The Merchant remains solely responsible for determining all applicable Sales Tax and other fees and identifying and informing Mavi.io (DBA ONMYWAY) (including by way of Olo, as applicable) of the appropriate Sales Tax and other fee amounts for Mavi.io (DBA ONMYWAY)  to charge Customers on the Merchant’s behalf for Items available on the Apps.

Mavi.io (DBA ONMYWAY) Data means all data sent to the Merchant’s POS by third parties (including Olo) via the respective third-party’s APIs on behalf of Mavi.io (DBA ONMYWAY)  (e.g., an end user’s first name and certain other information as necessary for the Merchant to fulfill end user orders). For clarity, Mavi.io (DBA ONMYWAY) Data constitutes proprietary information and must be treated as such under this Agreement. For added clarity, and for the purposes of this Agreement, Mavi.io (DBA ONMYWAY) Data must not include any Personal Information. Should the parties mutually agree in writing to transfer any Personal Information in connection with this Agreement, the parties will enter into a separate data processing agreement or related agreement as required by applicable laws.

3.  PAYMENTS. Merchant agrees to pay the Fee(s) as agreed in the Service Addendum and as described in the Service Fees terms of the Service Order for the applicable Mavi.io (DBA ONMYWAY) Service. Except as expressly set forth in this Agreement, each Party is responsible for its own costs. Merchant agrees to communicate to Mavi.io (DBA ONMYWAY) any Dispute, disagreement, or issue with a transaction, Fee, or Order, including those made in connection with fraudulent transactions or payments, within fourteen (14) days of the applicable transaction, Fee, or Order.

4.  TAXES. Merchant is responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products under this Agreement, and remitting such taxes, duties, and other governmental charges to the appropriate authorities. In many jurisdictions, Mavi.io (DBA ONMYWAY) may be required to collect sales, use or similar taxes from the Customer and remit such taxes directly to the tax authority. In such jurisdictions, Mavi.io (DBA ONMYWAY) will inform Merchant that Mavi.io (DBA ONMYWAY) will remit any applicable taxes to the tax authority and Mavi.io (DBA ONMYWAY) will be relieved of any responsibility to remit such applicable taxes to Merchant. Additional terms related to the Parties’ respective tax obligations may be set forth in the applicable Service Addendum.

5.  INTELLECTUAL PROPERTY; LICENSE.

5.1. Intellectual Property; Ownership.  Mavi.io (DBA ONMYWAY) owns all right, title and interest, including without limitation all intellectual property rights and other rights, in and to Mavi.io (DBA ONMYWAY) Services, applications, APIs, tools, materials, User Generated Content, and any enhancements, modifications and derivative works thereof, and all Intellectual Property Rights therein, and any suggestions, ideas, enhancements, requests, feedback, recommendations, or other information provided by Subscriber to Mavi.io (DBA ONMYWAY)  or any other party during the Term. This Agreement is not a sale and does not convey to Subscriber any rights of ownership in or related to the Software, Services, or intellectual Property Rights of Mavi.io (DBA ONMYWAY) . Mavi.io (DBA ONMYWAY)’s logo and the product names associated with the Software and Services are trademarks of Mavi.io (DBA ONMYWAY)  (or its licensors, where applicable) and no right or license is granted to Subscriber to use them except as provided herein. “Intellectual Property Rights” means all worldwide intellectual property rights, including without limitation, copyrights, trademarks, service marks, trade secrets, trade dress, know-how, inventions, patents, patent applications, moral rights and all other proprietary rights, whether registered or unregistered.

5.2.    Use of Mavi.io (DBA ONMYWAY) Services. During the Term, Mavi.io (DBA ONMYWAY) grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, and fully paid-up license to access the Mavi.io (DBA ONMYWAY) Service solely to transmit information to facilitate orders for pick up in accordance with the terms of this Agreement. Mavi.io (DBA ONMYWAY) owns and retains all rights, title, and interest in Mavi.io (DBA ONMYWAY) IP.

5.3.    Mavi.io (DBA ONMYWAY) Service Restrictions. Merchant will not and will not permit or authorize any third party to: (a) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Mavi.io (DBA ONMYWAY) Service; (b) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Mavi.io (DBA ONMYWAY) Service; (c) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Mavi.io (DBA ONMYWAY) Service unless such actions are authorized by compulsory provisions of applicable law; (d) use the Mavi.io (DBA ONMYWAY) Service in any manner or for any purpose that violates any Law; and (e) use the Mavi.io (DBA ONMYWAY) Service for a reason other than as specifically provided or intended under this Agreement (which includes the applicable Service Addendum).

5.4.    Merchant Content and Trademark; Photographs of Merchant Products.

5.4.1.  Merchant Content, Generally. Merchant grants to Mavi.io (DBA ONMYWAY) and its Affiliates a royalty-free, non-exclusive, limited, revocable, assignable and transferable right and license to use and display the Merchant Content, Customer communications and feedback, and User Generated Content in the provision of services to Merchant, including, where applicable, listing Merchant as a merchant on the Mavi.io (DBA ONMYWAY) Service, referencing Merchant as a Mavi.io (DBA ONMYWAY) partner, promoting Mavi.io (DBA ONMYWAY)’s products and services, and sharing Merchant Content with third parties, including third party services which enable Mavi.io (DBA ONMYWAY) Customers to access Mavi.io (DBA ONMYWAY) Services (including its web pages) for Orders.

5.4.2.  Merchant Marketing Materials. The Merchant may provide to Mavi.io (DBA ONMYWAY)  or its Affiliates and hereby authorizes Mavi.io (DBA ONMYWAY) or its Affiliates to copy and use Merchant Marketing Materials in connection with the display of the Merchant’s Products on the Apps (including to optimize Merchant’s menu on its “storefront”), the marketing and promotion of the Apps or Merchant, and the availability of the Merchant’s Products via the Apps. The Merchant grants Mavi.io (DBA ONMYWAY)  and its Affiliates a worldwide, non-exclusive, perpetual, irrevocable, transferable, sub-licensable, fully paid-up and royalty free license to use, publicly display or perform, copy, modify, create derivative works of, distribute, and otherwise exploit in any manner such Merchant Marketing Materials in all formats and distribution channels now known or hereafter devised (including in connection with the Services and Mavi.io (DBA ONMYWAY)'s business, and on third-party sites and services) and in connection with the Merchant’s Products and other promotional activities relating to the Mavi.io (DBA ONMYWAY) Services and platforms, without further notice to or consent from you, and without the requirement of payment to you or any other person or entity. To the extent that the Merchant Marketing Materials contain any third party materials, the Merchant is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for Mavi.io (DBA ONMYWAY)  to be able to use the Merchant Marketing Materials in accordance with this Agreement.

5.4.3.  If photographs of Merchant Products are not available or if they do not meet Mavi.io (DBA ONMYWAY)’s requirements, as reasonably determined by Mavi.io (DBA ONMYWAY), then Merchant consents to Mavi.io (DBA ONMYWAY): (i) engaging a professional photographer to take photographs of Merchant Products or other products; (ii) enhancing the quality of Merchant’s existing photographs; (iii) using stock photographs of the Merchant Products or other products; and/or (iv) using photographs from Merchant’s website or social media channels, and displaying such photographs on the applicable Mavi.io (DBA ONMYWAY) Service as representations of Merchant Products; provided that Merchant may contact Mavi.io (DBA ONMYWAY) support to have such photographs removed from the Merchant’s store listing and, in such event, Mavi.io (DBA ONMYWAY) will comply in a timely manner.

5.4.4.  The Merchant represents and warrants that it has all required authorizations to receive information from Mavi.io (DBA ONMYWAY) about the Merchant Locations, franchisees, and/or managed participants and Merchant Locations, franchisees, and/or managed participants’ Locations, including Confidential Information. If the Merchant is also a Participant, the Merchant authorizes Mavi.io (DBA ONMYWAY)  to share information with its franchisor (including its franchisor’s parent companies or Affiliates, as applicable), about the Merchant, its Locations, and including Merchant’s Confidential Information. The Merchant also authorizes Mavi.io (DBA ONMYWAY)  and its Affiliates to disclose the terms of this Agreement to the Merchant’s Merchant Locations, franchisees, and/or managed participants in connection with executing contracts that reference this Agreement with such Merchant Locations, franchisees, and/or managed participants.

5.4.5.  Other Brands.  If the Merchant makes items available on the Mavi.io (DBA ONMYWAY)  platform using trademarks and/or copyrights that are not related to the Merchant’s brand as the Merchant’s “storefront” or trading name on the Mavi.io (DBA ONMYWAY) platform, then the terms and conditions of this Agreement will still apply to those items, in the absence of a separate agreement covering those trademarks and/or copyrights that are not related to the Merchant’s brand and/or intellectual property. For clarity, trademarks or copyrights used on items themselves do not constitute “using trademarks and/or copyrights that are not related to the Merchant’s brand”, and this section applies to the trademarks used by the Merchant for its “storefront” or trading name on the Mavi.io (DBA ONMYWAY) platform.

5.5.    Goodwill. If Licensee, in the course of performing this Agreement, acquires any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Licensor: (a) when and as such acquisition of goodwill or reputation occurs; (b) without any separate payment or other consideration of any kind to Licensee. Licensee agrees to take all such actions reasonably necessary to effect such vesting. Licensee will not contest the validity of any of the Marks or Licensor’s exclusive ownership of them. During the Term, Licensee will not adopt, use or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of the Marks or any word or mark confusingly similar to them in any jurisdiction. As it pertains to Mavi.io (DBA ONMYWAY), Mavi.io (DBA ONMYWAY)’s parent company (if applicable) may be considered a “Licensor” hereunder.

5.6.    Feedback. Merchant may provide Mavi.io (DBA ONMYWAY) with Feedback. Merchant hereby grants and agrees to grant Mavi.io (DBA ONMYWAY) all rights, title, and ownership of such Feedback on an unrestricted basis.

6.  TERM AND TERMINATION.

6.1.    Term. The Agreement will begin on the Effective Date and continue until terminated in accordance with this Agreement, or once all Service Addendum hereunder have terminated or expired, whichever is earlier.

6.2.    Termination.  Merchant may terminate this Agreement or any Service Addendum for any reason at any time upon sixty (60) days’ prior written notice to Mavi.io (DBA ONMYWAY), subject to any termination fee set forth in Merchant’s Service Order. Mavi.io (DBA ONMYWAY) may terminate this Agreement or any Service Addendum for any reason at any time upon written notice. Either Party may terminate this Agreement immediately, (a) in the event of a material breach by the other Party or (b) if the other Party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. If either Party terminates the Agreement, all Service Addendum shall automatically terminate.

6.3.    Survival.  Sections 3 (Payments), 4 (Taxes), 5 (License), 6 (Term and Termination), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Data Privacy and Security), 13 (Governing Law, Arbitration, Class Action Waiver), and 14 (Miscellaneous) and rights and obligations in this Agreement which, by their nature, should (or by their express terms do) survive or extend beyond the termination or expiration of this Agreement, shall so survive and extend.

7.      REPRESENTATIONS, WARRANTIES, AND WAIVERS.

7.1.    Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the full right, power, and authority to enter into and perform its obligations under this Agreement, including any Service Addendum; (b) its performance of its obligations under this Agreement will not result in a breach of any obligation to any third party; (c) such Party’s Marks and materials owned, licensed, developed or used in performance of this Agreement do not knowingly infringe or violate any third-party intellectual property right; (d) it will obtain any necessary permits, consents, certificates, approvals, inspections, releases, authorizations, and licenses and/or file any registration forms (if any) in connection with performing its obligations under this Agreement; and (e) it will comply with all applicable law, regulations, and rules in operating its business and performing its responsibilities hereunder (including, if applicable to Merchant, all such Laws regarding health, food safety, sanitation, food packaging and labeling, including required consumer-facing warnings and calorie information).

7.2.    Merchant. Merchant represents and warrants that: (a) it will inform Mavi.io (DBA ONMYWAY) of any warnings, charges, opt-ins, and instructions related to Merchant Products that become required in the future; (b) if applicable, it will disclose common allergens in any Merchant Products items listed on or sold through the Mavi.io (DBA ONMYWAY) Service; (c) it will not include any products restricted by Mavi.io (DBA ONMYWAY) (“Restricted Items”) as a Merchant Product available on a Mavi.io (DBA ONMYWAY) Service of any Restricted Items through the Mavi.io (DBA ONMYWAY) Service, provided that Mavi.io (DBA ONMYWAY) may allow promotion, sale of certain Restricted Items after Merchant has entered into a separate agreement with Mavi.io (DBA ONMYWAY) memorializing such promotion, sale and/or collection of such products in compliance with the Laws of the applicable jurisdiction in which such products will be sold; (d) it will not disclose any information related to a Mavi.io (DBA ONMYWAY) Customer to a third party (except as required to comply with Law or pursuant to a court order); (e) it will comply with the guidelines Mavi.io (DBA ONMYWAY) publishes that govern any Merchant Content posts on the applicable Mavi.io (DBA ONMYWAY) Service or Merchant Portal; (f) it shall not offer incentives or payments for reviews or ratings of its business on the Mavi.io (DBA ONMYWAY) Services; and (g) it shall not use the Mavi.io (DBA ONMYWAY) Services for any purpose that is detrimental to Mavi.io (DBA ONMYWAY) or the Mavi.io (DBA ONMYWAY) Service. The list of Restricted Items is available at [https://www.onmywayretail.com/restricted-products] and is updated by Mavi.io (DBA ONMYWAY) from time to time.

7.3.    Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1(c), TO THE EXTENT PERMITTED BY APPLICABLE LAW, MAVI.IO (DBA ONMYWAY)  HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY MAVI.IO (DBA ONMYWAY) PRODUCT, AND EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS IMPLIED, OR STATUTORY RELATED TO EQUIPMENT OR SERVICES PROVIDED TO THE OTHER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. Merchant acknowledges that the operation of the Mavi.io (DBA ONMYWAY) Service may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Mavi.io (DBA ONMYWAY) 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 Mavi.io (DBA ONMYWAY) Service or services. 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.

7.4.    Compliance with Local Laws; Waivers. Each Party agrees to comply with applicable local laws and guidelines (“Local Laws”) currently in effect or enacted in the future. To the extent that Merchant avails of the Mavi.io (DBA ONMYWAY) Services in jurisdictions where industry specific Local Laws apply, Merchant agrees that all such Local Laws, including those listed at [https://www.onmywayretail.com/local-codes] are incorporated herein by reference. Merchant acknowledges that Merchant has read and understood all applicable Waivers, including those related to fee limits, detailed in the abovementioned hyperlink. This list is non-exhaustive, and it shall be each Party’s responsibility to identify and comply with any additional laws that apply to their operations.

7.5.    Remedies. In the event of a breach of Section 7.1(c), the non-breaching Party’s sole remedy, and the breaching Party’s sole liability, is indemnification pursuant to Section 8.1(d).

8.      INDEMNIFICATION.

8.1.    Indemnification. The Indemnifying Party will, at its own expense defend the Indemnified Party to the fullest extent permitted by Law, and also indemnify the Indemnified Party for any and all Losses arising out of any third-party claim that alleges or results from: (a) any breach of Section 7 by the Indemnifying Party or its Personnel; (b) the gross negligence or more culpable act or omission of the Indemnifying Party or Personnel (including any reckless misconduct) in connection with the performance of this Agreement; (c) bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party or its Personnel (including any reckless or willful misconduct) (or, in the case of Merchant as the Indemnifying Party, caused by Merchant Products or any violation or alleged violation Section 7.1(e) as it pertains to Merchant Products, except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Mavi.io (DBA ONMYWAY); and (d) infringement or misappropriation of the intellectual property rights of any third party by the Indemnifying Party’s services (including, in the case of Mavi.io (DBA ONMYWAY), the Mavi.io (DBA ONMYWAY) Service, and in the case of Merchant, the Merchant Applications) or Marks.

8.2.    Process. The Indemnified Party shall provide the Indemnifying Party with: (a) prompt notice of any claims, which in no event shall be later than thirty (30) calendar days after the Indemnified Party knew or reasonably should have known that the Indemnifying Party’s defense obligation had been triggered; (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 of the claim, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense and settlement at its own expense. 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.

8.3.    Exclusions. Notwithstanding Section 8.1(d) and for clarity: (a) the Indemnifying Party shall have no duty to defend any third-party allegations of intellectual property infringement or misappropriation (an “IP Claim”) arising out of or related to the conduct of persons or entities other than the Indemnifying Party or its Personnel; and (b) in the case of Mavi.io (DBA ONMYWAY), Mavi.io (DBA ONMYWAY) shall have no duty to defend an IP Claim to the extent such IP Claim would not have occurred without Merchant’s use of the Mavi.io (DBA ONMYWAY) Service in combination with a Merchant Application, or other Merchant-provided product, process, step, structure, data, or business method, and/or Merchant’s unauthorized modification of the Mavi.io (DBA ONMYWAY) Service. Notwithstanding Section 8.1(a), Mavi.io (DBA ONMYWAY) shall have no duty to defend or Indemnify Merchant for taxes, duties, and other governmental charges.  In addition, Mavi.io (DBA ONMYWAY) has no obligation to indemnify Merchant for any infringement claim to the extent that it arises out of or is based upon (i) Merchant’s use of the Services in combination with third-party products or services not authorized by Mavi.io (DBA ONMYWAY) or the Service Order and Service Addendum, as applicable; (ii) any aspect of the Services configured specifically for Merchant to comply with designs, requirements, or specifications required by or provided by or on Merchant’s behalf; (iii) use of the Services by Merchant, any user, or any third party outside the scope of the rights granted in this Agreement; (iv) failure of Merchant, any user, or any third party to use the Services in accordance with the documentation or any instructions provided by Mavi.io (DBA ONMYWAY); (v) failure of Merchant to use the most recent version of the Services (including any updates or upgrades provided to Merchant by Mavi.io (DBA ONMYWAY)); or (vi) any unauthorized modification of the Services.

9.      LIMITATION OF LIABILITY.

9.1.    Direct Damages Only. Except with respect to amounts payable to third parties under Section 8, neither Party will be liable to the other for consequential, special, incidental, punitive, exemplary, or indirect damages or for lost profits, lost revenues, harm to goodwill, or the costs of procuring replacement services, regardless of whether such damages were foreseeable. This limitation will apply to all claims under all theories of law and equity, except where prohibited by Law.

9.2.    Limitation. Except in the event of a Party’s gross negligence or willful misconduct, or payment obligations, and where prohibited by Law (collectively, the “LOL Exclusions”) or a Party’s indemnification obligations in this Agreement, the total liability of either Party to the other will not exceed $250,000.00. The total liability of either Party to the other for the LOL Exclusions will not exceed $1,000,000.00. For clarity, a Party’s obligation to pay third parties under Section 8 are uncapped.

9.3.    Franchisees or Syndications. For Merchants operating a franchise or similar structure, this limitation of liability applies to all Merchant Locations and all franchisees cumulatively and not individually.

10.   CONFIDENTIALITY.

10.1. Precedence. The terms of this Section 10 supersede any non-disclosure or confidentiality agreement entered into by the Parties prior to the Effective Date of this Agreement.

10.2. Includes. Confidential Information includes information about the Discloser’s business, including product designs, product plans, software and technology, financial information, marketing plans, business opportunities, pricing information, discounts, inventions, and know-how, to the extent disclosed to the Recipient hereunder, and all other information that the Recipient knew, or reasonably should have known, was Confidential Information of the Discloser. Confidential Information also includes the terms and conditions of this Agreement and the existence of the discussions between the Parties. Confidential Information includes trade secrets as defined under applicable law (which includes the Uniform Trade Secrets Act).

10.3. Does Not Include. Confidential Information does not include information that: (a) is independently developed; (b) is or becomes public knowledge through no breach of this Agreement; or (c) is received from a third party under circumstances that do not create a reasonable suspicion that such information has been misappropriated or improperly disclosed.

10.4. Recipient Obligations. The Recipient shall: (a) use Confidential Information only as necessary to perform its obligations and/or exercise its rights under this Agreement; (b) hold Confidential Information in strict confidence and take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential materials); (c) not divulge any Confidential Information to any third party except as provided herein; and (d) not copy or reverse engineer any materials disclosed under this Agreement, or remove any proprietary markings from any Confidential Information.

10.5. Recipient Personnel. The Discloser acknowledges that the Recipient’s Personnel may have access to the Discloser’s Confidential Information. Any such Recipient Personnel given access to any Confidential Information must have a legitimate “need to know,” and the Recipient shall remain responsible for Recipient Personnel’s compliance with the terms of this Agreement.

10.6. Disclosure of Confidential Information. A Recipient may disclose Confidential Information as compelled by a court or regulator of competent authority, provided that the Recipient provides the Discloser with prompt written notice of such request, to the extent such notice is legally permissible and reasonably practicable.

11.   DATA, DATA PRIVACY AND SECURITY.

11.1. Merchant agrees not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Mavi.io (DBA ONMYWAY) Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep Mavi.io (DBA ONMYWAY) Data secure from unauthorized access and maintain the accuracy and integrity of Mavi.io (DBA ONMYWAY) Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to Mavi.io (DBA ONMYWAY) Data, Merchant will immediately notify Mavi.io (DBA ONMYWAY), consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Mavi.io (DBA ONMYWAY). Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Mavi.io (DBA ONMYWAY) and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the Mavi.io (DBA ONMYWAY) Service 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 Mavi.io (DBA ONMYWAY) Service; damage, destroy or impede the services provided through the Mavi.io (DBA ONMYWAY) Service; transmit injurious code; or bypass or breach any security protection on the Mavi.io (DBA ONMYWAY) Service. For purposes of clarity, Mavi.io (DBA ONMYWAY) Data is the Confidential Information of Mavi.io (DBA ONMYWAY).

11.2. Any additional data privacy and security terms required in order to comply with the privacy regulations applicable to the Parties’ partnership in other countries may be set forth in the applicable Service Addendum. The Recipient will establish, maintain, and implement an information security program, including appropriate administrative, technical, organizational, and physical safeguards, that are designed to: (a) ensure the security and confidentiality of Personal Information provided by the Discloser; (b) protect against threats or hazards to the security or integrity of such Personal Information; (c) protect against unauthorized access to or use of such Personal Information; and (d) ensure the proper disposal or destruction of such Personal Information. Each Party shall at all times comply with applicable data privacy and security Laws. If the Recipient becomes aware of any unauthorized access to or loss of Personal Information, it shall promptly report such incident to the Discloser and take appropriate remedial actions.

11.3. Without limiting any other provision of this Agreement, the Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Information, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including any Personal Information, for the purpose of re-identification, targeted marketing, or any other similar purpose. For clarity, this section does not restrict the Merchant in its use of Personal Information, either on its own or in conjunction with data collected from sources other than the Mavi.io (DBA ONMYWAY) Services and platforms, that the Merchant obtained directly from the data subjects in question, in accordance with the Merchant’s own privacy policy.

12.   INSURANCE.

12.1. General. The insurance amounts indicated are minimum requirements and not limits of liability, and they are not to be construed as a Party’s consent to substitute its financial liability in excess of the amounts provided in Section 9.

12.2. Minimum Requirements.

12.2.1. For Merchants with greater than $1,000,000.00 in annual sales across all Mavi.io (DBA ONMYWAY) Service(s), each Party will maintain at its sole cost and expense: (a) worker's compensation and employers’ liability insurance with limits no less than the minimum amount required by applicable law for each accident, including occupational disease coverage; (b) commercial general liability insurance, including product liability, and excess liability endorsements of $1,000,000.00 per occurrence; (c) cybersecurity insurance up to $2,000,000.00 per claim and in the aggregate; and (d) umbrella/excess liability insurance up to $5,000,000.00 and in the aggregate.

12.2.2. For Merchants with less than $1,000,000.00 in annual sales across all Mavi.io (DBA ONMYWAY) Service(s), each Party will maintain at its sole cost and expense: (a) worker's compensation and employers’ liability insurance with limits no less than the minimum amount required by Law for each accident, including occupational disease coverage; (b) commercial general liability insurance, including product liability, and excess liability endorsements of $1,000,000.00 per occurrence; (c) cybersecurity insurance up to $1,000,000.00 per claim and in the aggregate; and (d) umbrella/excess liability insurance up to $2,000,000.00 and in the aggregate.

12.3. Coverage. The policy limits stated above may be met in the form of primary and umbrella/excess coverage. Such insurance is primary and not contributory with the other Party’s insurance.

13.   GOVERNING LAW & DISPUTE RESOLUTION.

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

13.1. Governing Law and Arbitration. This Agreement is governed by and interpreted in accordance with the laws of the State of Florida without regard to the conflicts of laws principles thereof.

13.2. Scope of Arbitration Agreement. Any Dispute shall be finally resolved by binding arbitration except claims: (a) in small claims court, so long as the matter advances only on an individual (non-class, non-representative) basis; and (b) for injunctive relief arising out of the infringement or other misuse of intellectual property rights (such as a Party’s Marks or Mavi.io (DBA ONMYWAY) IP). Mavi.io (DBA ONMYWAY) 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 and shall be binding upon and enforceable by not only the parties, but also their affiliates, subsidiaries, and their respective 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 MAVI.IO (DBA ONMYWAY) —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 MAVI.IO (DBA ONMYWAY) , 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 MAVI.IO (DBA ONMYWAY)  IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

13.3. Informal Resolution. You and Mavi.io (DBA ONMYWAY) agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and Mavi.io (DBA ONMYWAY) therefore agree that, before either you or Mavi.io (DBA ONMYWAY) demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Mavi.io (DBA ONMYWAY) that you intend to initiate an informal dispute resolution conference, email [notices@mavi.io], providing your name, telephone number associated with your Mavi.io (DBA ONMYWAY) account (if any), the email address associated with your Mavi.io (DBA ONMYWAY) account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

13.4. Arbitration Rules and Forum. This arbitration agreement shall be governed by the Federal Arbitration Act in all respects. If the rules and procedures of the Federal Arbitration Act cannot apply, the state law governing arbitration agreements in the state of the Merchant Location most closely associated with the Dispute shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 19(b). The arbitration will be conducted by ADR Services, Inc. pursuant to the most current version of its rules available at https://www.adrservices.com/services/arbitration-rules/ and pursuant to the terms of this Agreement. In the event of a conflict between the two, the provisions of this Arbitration Agreement shall supersede any and all conflicting arbitration administrator’s rules or procedures. Arbitration demands filed with ADR Services, Inc. must include (1) the name, telephone number, mailing address, and e-mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration. The fees that shall apply to arbitrations administered by ADR Services, Inc. are set forth on ADR Services, Inc.’s website at https://www.adrservices.com/rate-fee-schedule/. Payment of all filing, administration, and arbitration fees will be governed by ADR Services, Inc.’s General Fee Schedule and ADR Services, Inc.’s rules. However, if required by law, Mavi.io (DBA ONMYWAY) will pay the portion of the initial case opening fees (if any) that exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. If ADR Services, Inc. is not available to arbitrate, the parties will mutually 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 county where you live or at another mutually agreed location. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute. The parties agree that all of the arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by law. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Arbitration Agreement, either party may seek to enjoin the arbitration proceeding in court, and the arbitration shall automatically be stayed pending the outcome of that proceeding.

13.5. Arbitration Appeal. If the arbitration award includes any injunction or a monetary award that exceeds $100,000, then either party shall have the right to appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing party within fourteen (14) days after the award has become final. ADR Services shall administer the appeal consistent with the JAMS Optional Arbitration Appeal Procedures, available at https://www.jamsadr.com/appeal/.

13.6. 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, except with respect to the Waiver of Class or Consolidated Actions, the enforceability of which can only be determined by a court. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court or arbitration administrator. The arbitration will decide the rights and liabilities, if any, of you and Mavi.io (DBA ONMYWAY). 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 Mavi.io (DBA ONMYWAY) subject to Section 13.5.

13.7. Waiver of Jury Trial.  YOU AND MAVI.IO (DBA ONMYWAY)  WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and Mavi.io (DBA ONMYWAY) are instead electing to have all Disputes resolved by arbitration, except as specified in Section 13.2 above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

13.8. Waiver of Class or Consolidated Actions; Severability. YOU AND MAVI.IO (DBA ONMYWAY)  AGREE 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, consolidated, and representative actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Mavi.io (DBA ONMYWAY) 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 14.1, after the conclusion of the arbitration of any arbitrable claims, and all other provisions of this Section 13 (Dispute Resolution) shall remain in force.  The parties also waive the right to bring any claims for public injunctive relief.  If, however, this waiver of public injunctive relief claims is deemed invalid or unenforceable with respect to a particular claim or dispute, then all such claims and disputes will then be resolved in arbitration. Notwithstanding any other provision in this Agreement, any claim that all or part of this Waiver of Class or Consolidated Actions is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. If any provision of this Section 13 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 13. Nothing in this provision shall prevent you or Mavi.io (DBA ONMYWAY) from participating in a class-wide, collective, or representative settlement of claims.

13.9. Opt-Out. Mavi.io (DBA ONMYWAY)’s updates to these Terms of Service do not provide a new opportunity to opt out of the Arbitration Agreement if you had previously agreed to a version of Mavi.io (DBA ONMYWAY)’s Terms of Service and did not validly opt out of arbitration. Mavi.io (DBA ONMYWAY) will continue to honor the valid opt outs of merchants who validly opted out of the Arbitration Agreement in a prior version of the Terms of Service. When you create a Mavi.io (DBA ONMYWAY) account you have the option to opt out of this Arbitration Agreement at such time. If you do so, neither you nor Mavi.io (DBA ONMYWAY) can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Mavi.io (DBA ONMYWAY) in writing of your intention to opt out by sending a letter, by First Class Mail, to Mavi.io (DBA ONMYWAY), 111 NE 1st St, 8th Floor Suite #88958, Miami, FL 33132. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked by the later of 30 days after this Terms of Service update or 30 days after your first order on the Platform. Your notice must include your name and address, your Mavi.io (DBA ONMYWAY) username (if any), the email address you used to set up your Mavi.io (DBA ONMYWAY) 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.

13.10.                Survival. This Arbitration Agreement will survive any termination of your relationship with Mavi.io (DBA ONMYWAY).

13.11.                Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Mavi.io (DBA ONMYWAY) makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to Mavi.io (DBA ONMYWAY).

14.   MISCELLANEOUS.

14.1. Litigation Class Action Waiver. To the extent allowed by Law, separate and apart from the Arbitration Agreement found in Section 13, Merchant agrees that any proceeding to litigate in court any Dispute, whether because Merchant opted out of the Arbitration Agreement 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. The enforceability of this Litigation Class Action Waiver shall only be determined by a court of competent jurisdiction. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void, or voidable with respect to a particular claim or Dispute, then all such claims or Disputes will be resolved in court, after the conclusion of the arbitration of any arbitrable claims or Disputes, and the remainder of this Arbitration Agreement shall remain in full force and effect.

14.2. Relationship of the Parties. Notwithstanding any provision herein to the contrary, each Party is an independent contractor with respect to its performance of its obligations hereunder. Nothing contained herein is deemed to create the relationship of partnership, principal, and agent, or joint venture between the Parties. Neither Party has any right or authority to incur obligations of any kind in the name of, or for the account of, the other Party nor to commit or bind the other Party to any contract or other obligation. Under no circumstances is either Party considered to be, nor will either Party hold itself out as, an employee, agent, franchisee, or joint venturer of the other Party.

14.3. Regulatory Fees. If there is a Change in Law, Mavi.io (DBA ONMYWAY) may pass through such fees and/or costs generated as a result of the Change in Law to Merchant in the affected jurisdiction(s) with 15 days’ written notice. Merchant may terminate this Agreement in part with respect to the affected jurisdiction by providing Mavi.io (DBA ONMYWAY) with 15 days’ written notice from the date of Mavi.io (DBA ONMYWAY)’s notice. Notwithstanding the foregoing, either Party may exercise its termination rights hereunder, either in whole or in part as it pertains to the affected store or jurisdiction.

14.4. Partner Code of Conduct. Merchant will comply with the version of the Partner Code of Conduct published as of the Effective Date at the following hyperlink: [https://www.onmywayretail.com/partner-code-of-conduct], or such other internal code of conduct in effect with Merchant, that Merchant affirms substantially conforms with the Partner Code of Conduct. Mavi.io (DBA ONMYWAY) shall also comply with the Partner Code of Conduct.

14.5. Counterparts. This Agreement may be executed in one or more counterparts and signed copies may be picked-up by email, in which event, each of which is deemed an original, and all of which together constitute one agreement.

14.6. Entire Agreement. This Agreement represents the entire agreement between Mavi.io (DBA ONMYWAY) and Merchant with respect to the subject matter hereof and supersedes all prior agreements with respect to the subject matter hereof.

14.7. No Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both Parties. The waiver by any Party of any breach or default will not constitute a waiver of any different or subsequent breach or default.

14.8. Assignment. Merchant may not assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of Mavi.io (DBA ONMYWAY), which consent may not be unreasonably withheld, and any attempted assignment without such consent will be void; provided that Merchant (and for clarity, Mavi.io (DBA ONMYWAY)  may assign this Agreement without such consent, to an Affiliate, or in connection with any merger, consolidation, sale of all or substantially all of the Merchant’s assets, or any other similar transaction. Subject to the foregoing in this Section 14.8, this Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each Party. This Agreement will not confer any rights or remedies upon any person other than the Parties, their respective successors, and permitted assigns.

14.9. Enforcement. 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 herein.

14.10.                Notices.  Legal notices to either Party shall be sent to the applicable address on the first page of the Merchant Deal Sheet, or such other address as the Party communicates in writing.

14.11.                Promotional Programs; Future Program Changes. This Section 14.11 applies only if Merchant operates a franchisee, syndication, or similar structure.

14.11.1.  Future Program Changes.  From time to time during the Term, Merchant and Mavi.io (DBA ONMYWAY) may desire to implement efficient enrollment processes that will enable Eligible Franchisees to participate in new Mavi.io (DBA ONMYWAY) products, promotions or services and/or effect changes to the commercial terms pursuant to which Mavi.io (DBA ONMYWAY) provides its services to such Eligible Franchisees (“Future Program Changes”).

14.11.2.  To the extent that Merchant is responsible for enrolling Eligible Franchisees to Future Program Changes, Mavi.io (DBA ONMYWAY) agrees that Merchant may do so in the form of an opt-in, an opt-out, or similar mass sign-up system (“Enrollment Protocol”), provided that Merchant shall administer such Enrollment Protocol in compliance with Law and pursuant to its franchise Service Addendums with the Eligible Franchisees. Furthermore, Merchant agrees to defend, indemnify, and hold Mavi.io (DBA ONMYWAY) harmless from and against Losses with respect to claims of Eligible Franchisees arising out of or related to the Enrollment Protocol or the enrollment of such Eligible Franchisee to the Future Program Changes.

14.11.3.  To the extent that Mavi.io (DBA ONMYWAY) is responsible for enrolling Eligible Franchisees to Future Program Changes, Merchant agrees that Mavi.io (DBA ONMYWAY) may do so in the form of an Enrollment Protocol, provided that Mavi.io (DBA ONMYWAY) shall administer such Enrollment Protocol in compliance with Law. Furthermore, Mavi.io (DBA ONMYWAY) agrees to defend, indemnify, and hold Merchant harmless from and against Losses with respect to claims of Eligible Franchisees arising out of or related to the Enrollment Protocol or for Mavi.io (DBA ONMYWAY)’s error during the enrollment of such Eligible Franchisee to the Future Program Changes.

14.12.                Franchisees. This Section 14.12 applies only if Merchant operates a franchisee or similar structure. Merchant’s Eligible Franchisees may use certain Mavi.io (DBA ONMYWAY) Services hereunder pursuant to the terms and conditions of this Agreement, provided that: (a) Merchant has executed the requisite Service Addendum; and (b) the individual franchisee enters into the Franchisee Agreement. For purposes of the Agreement, an “Eligible Franchisee” means a franchisee of Merchant that has signed the Franchisee Agreement. Merchant shall indemnify, defend, and hold Mavi.io (DBA ONMYWAY) harmless against any third-party suits, fees, costs or expenses resulting from a dispute between Merchant and any of Merchant’s Franchisees relating to or arising from conduct of the Merchant (including former Franchisees). Mavi.io (DBA ONMYWAY) acknowledges that Merchant is not responsible or liable for any Eligible Franchisee’s acts, omissions or performance, including an Eligible Franchisee’s payment obligations, under the Franchisee Agreement or other agreement between Mavi.io (DBA ONMYWAY) and Eligible Franchisee. In Sections 2 (Operating Procedures), 3 (Payments), 4 (Taxes), 5.1 (Use of Mavi.io (DBA ONMYWAY) Services), and 5.2 (Mavi.io (DBA ONMYWAY) Service Restrictions), “Merchant” shall be replaced with “Eligible Franchisee.” In Sections 6 (Term and Termination), 7 (Representations and Warranties), 8 (Indemnification), 10 (Confidentiality), 11 (Data Privacy and Security), and 12 (Insurance) “Merchant” shall be replaced with “Merchant and Eligible Franchisee”.

14.13.                Use Only Where Legally Allowed.  Merchant shall not access or use the Mavi.io (DBA ONMYWAY) Services or any portion of the Mavi.io (DBA ONMYWAY) Services if it is not legally allowed to do so where it is located.

14.14.                Third-Party Add-On Features. From time to time, Mavi.io (DBA ONMYWAY) may make available third-party add-on features (“Third-Party Add-On Features”) for use with the Mavi.io (DBA ONMYWAY) Services. Third-Party Add-On Features are not included within the definition of Mavi.io (DBA ONMYWAY) Services under this Agreement, and Mavi.io (DBA ONMYWAY) hereby expressly disclaims all warranties, express, implied, or statutory, regarding Third-Party Add-On Features, including but not limited to any implied warranties of merchantability, title, satisfactory quality or results, or fitness for a particular purpose and non-infringement. Mavi.io (DBA ONMYWAY) also makes no representations or warranties regarding availability of any Third-Party Add-On Feature. Third-Party Add-On Features may be discontinued by Mavi.io (DBA ONMYWAY) and/or the third-party provider at any time, with or without cause.

14.15.                Communications from Mavi.io (DBA ONMYWAY). Merchant agrees to receive communications from Mavi.io (DBA ONMYWAY), its affiliates, including via email, text message, calls, and push notifications to the mobile telephone number Merchant provides to Mavi.io (DBA ONMYWAY). Merchant also agrees that it may receive communications generated by automatic telephone dialing systems which may deliver pre-recorded messages.  Merchant acknowledges that it can opt out of promotional SMS at any time by texting “STOP.” Message and data rates may apply.

14.16.                Copyright Infringement.  If you believe that your work has been copied and posted on the Mavi.io (DBA ONMYWAY) Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Mavi.io (DBA ONMYWAY) Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Mavi.io (DBA ONMYWAY)’s Copyright Agent for notice of claims of copyright infringement is as follows:

Global Headquarters

111 NE 1st St, 8th Floor Suite #88958

Miami, FL 33132

15.   ADDITIONAL TERMS FOR NON-ENTERPRISE MERCHANTS.

15.1. Fees.

15.1.1.     Mavi.io (DBA ONMYWAY) shall be entitled to deduct from such payments Mavi.io (DBA ONMYWAY)’s Commission Rate, marketing fees (for identifiable orders), activation fees, subscription fees, transaction fees, credit card processing fees, and any other fees which Mavi.io (DBA ONMYWAY) may notify you regarding with at least seven (7) days’ advance written notice.

15.1.2. To the extent that a third party provider provides services to Merchant on basis of an agreement between third party provider and Merchant via the Mavi.io (DBA ONMYWAY) Service (for example, a middleware provider) and charges fees to Mavi.io (DBA ONMYWAY), Mavi.io (DBA ONMYWAY) may pass through such third party’s fees to Merchant.

15.1.3. 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 Mavi.io (DBA ONMYWAY) in writing (email shall suffice for written notice) any claimed inaccuracies, so that Mavi.io (DBA ONMYWAY) has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Mavi.io (DBA ONMYWAY) and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to Mavi.io (DBA ONMYWAY) any disagreement, non-conformity or any issue with any transaction, fee, charge or order, including in connection with fraudulent transactions or payments, within fourteen (14) days of the transaction, fee or order.

15.2. Benefit Programs. Merchant may qualify for special pricing and product benefits, such as commission rebates, described as determined by Mavi.io (DBA ONMYWAY) in its sole discretion.  In the event of any such benefit programs, Mavi.io (DBA ONMYWAY) will provide qualifying Merchants with such terms.

16.   DEFINITIONS. Note that certain terms may not appear in these Terms of Service but may appear in the Merchant Deal Sheet, Service Fee, or a Service Addendum.

16.1. “Affiliate” means an entity controlled by, controlling or under common control with a Party.

16.2. “Change in Law” means a material change in (or change in enforcement thereof) Law, labor standard or unionization pertaining to independent contractors and/or the sale of goods.

16.3. “Commission” means the fee Mavi.io (DBA ONMYWAY) charges Merchant for an Order, which is calculated by multiplying (i) the applicable Commission Rate by (ii) the subtotal for the Merchant Products ordered by the Customer, excluding all applicable taxes and other governmental fees and surcharges, such as an applicable local bottle deposit fee.

16.4. “Commission Rate” means the percentage, indicated in the Service Fees terms of the Service Order for the applicable Mavi.io (DBA ONMYWAY) Service, that Mavi.io (DBA ONMYWAY) shall charge Merchant on each Order.

16.5. “Confidential Information” means all confidential, proprietary, or nonpublic information provided by the Discloser to the Recipient that a reasonable industry participant would deem to be confidential, as further described in Section 10.

16.6. “Customer” means “Mavi.io (DBA ONMYWAY) Customer” and “Merchant Customer” collectively or individually, as the context requires.

16.7. “Discloser” means the Party disclosing Confidential Information.

16.8. “Dispute” means any dispute, claim or controversy arising out of, relating to, or in connection with this Agreement, including the breach, termination, enforcement, interpretation or validity thereof (as well as the determination of the formation, scope, or applicability of the arbitration agreement in Section 13) or the relationship between the Parties, their affiliates and subsidiaries, and each of their respective owners, directors, managers, and personnel.

16.9. “Mavi.io (DBA ONMYWAY) Customer” means the end user accessing the Mavi.io (DBA ONMYWAY) Service to place an Order.

16.10.                “Mavi.io (DBA ONMYWAY) Data” means any information that Mavi.io (DBA ONMYWAY) provides or makes accessible to Merchant, including Personal Information.

16.11.                “Mavi.io (DBA ONMYWAY) IP” includes all patents, patent applications, inventions, copyrights, trade secrets, Marks, ideas, images (including descriptions of such images), domain names, and any and all other works and materials developed by Mavi.io (DBA ONMYWAY) (including all intellectual property rights therein and thereto), and similar rights owned by Mavi.io (DBA ONMYWAY) that are embodied in the Mavi.io (DBA ONMYWAY) Service or any other Mavi.io (DBA ONMYWAY) technology or platform.

16.12.                “Mavi.io (DBA ONMYWAY) Service” means the Mavi.io (DBA ONMYWAY) technology that Merchant accesses or Mavi.io (DBA ONMYWAY) provides, as defined in the applicable Service Addendum, in each case, that will allow information to be exchanged between Merchant (which may include Merchant Applications and/or a Third Party Platform) and Mavi.io (DBA ONMYWAY). References to the “Mavi.io (DBA ONMYWAY) Service” include the Mavi.io (DBA ONMYWAY) Service Documentation.

16.13.                “Mavi.io (DBA ONMYWAY) Service Documentation” means documentation, specifications, and other materials (whether written or electronic) that describe the operation or function of a Mavi.io (DBA ONMYWAY) Service.

16.14.                “Fee” means the fee or commission rate indicated in the Service Fees terms of the Service Order for the applicable Mavi.io (DBA ONMYWAY) Service, plus all tips paid by Customer, and may include separate fees for different Order types, if applicable.

16.15.                “Feedback” means any comments, suggestions, or ideas for improvement regarding the Mavi.io (DBA ONMYWAY) Service or the Mavi.io (DBA ONMYWAY) Service Documentation, or Merchant’s evaluation and use thereof.

16.16.                “[i]ncluding” means “including without limitation”.

16.17.                “Indemnified Party” means the Party entitled to or seeking indemnification, pursuant to the terms of this Agreement, and its affiliates, respective officers, directors, shareholders, Personnel, successors, and permitted assigns.

16.18.                “Indemnifying Party” means the Party indemnifying the other Party pursuant to the terms of this Agreement.

16.19.                “Law” means all laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to the referenced Party.

16.20.                “Licensee” means the Party receiving the license described in Section 5.

16.21.                “Licensor” means the Party granting the license described in Section 5. As it pertains to Mavi.io (DBA ONMYWAY), an Affiliate of Mavi.io (DBA ONMYWAY) may be considered a “Licensor” hereunder.

16.22.                “Losses” means the resulting judgments, fines, settlements, court costs, and attorneys’ fees that are incurred by the Indemnified Party, in each case finally awarded by a court of competent jurisdiction.

16.23.                “Marks” means the corporate names, trade names, trademarks, service marks, and logos (including third-party marks to which the Licensor has rights and uses in its business). This includes “MAVI.IO (DBA ONMYWAY) ”marks, as well as any successor marks or designations.

16.24.                “Merchant Application” means the software and/or system(s) that are used by Merchant (if any) to provide digital order solutions and services to Customers generally, including Merchant’s website.

16.25.                “Merchant Content” includes, without limitation, data, materials, promotional information and content, images, logos, descriptions, products, product labels, menus, photographs, or other media or materials provided by Merchant (either provided by Merchant or on Merchant’s website, social media, or other managed account), business information and Merchant Product descriptions (either provided by Merchant or on Merchant’s website), trademarks, logos, Merchant name, location, url, phone number, and other materials provided by Merchant to Mavi.io (DBA ONMYWAY).

16.26.                “Merchant Customer” means the Customer accessing the Merchant Application(s) to place an Order.

16.27.                “Merchant Location” means the Merchant store (including but not limited to, physical retail, virtual, ghost kitchens, etc.) location, warehouse, or restaurant that are within the territory serviced by Mavi.io (DBA ONMYWAY) and includes: (a) Merchant Locations owned and operated by Merchant and/or its affiliates, and/or (b) Merchant Locations owned and operated by franchisees of Merchant or its affiliates which have signed the Franchisee Agreement.

16.28.                “Merchant Portal” means the portal made available by Mavi.io (DBA ONMYWAY) to Merchant which provides Merchant with Order sales information and other functionality in connection with Merchant’s relationship with Mavi.io (DBA ONMYWAY). For purposes of the Agreement, the Merchant Portal is a Mavi.io (DBA ONMYWAY) Service.

16.29.                “Merchant Product” means the products (e.g., food, beverages, groceries, retail items, services, offerings, etc.) prepared, distributed, or sold by Merchant.

16.30.                “Personnel” means a Party’s employees, agents, contractors, or subcontractors.

16.31.                “OLO” means Mobo Systems, Inc. doing business as Olo, as may be rebranded from time to time.

16.32.                “Third Party APIs” means automated programming interfaces owned by third parties (including but not limited to Olo) which facilitate the receipt and transmission of menu and order data between Mavi.io (DBA ONMYWAY) and third-party partners who are mutual customers of both the thrid party and Mavi.io (DBA ONMYWAY), such as the Merchant.

16.33.                “Order” means Pick Up Orders, Merchant services or other customer offerings, collectively.

16.34.                “Order Equipment” means any equipment reasonably required by Mavi.io (DBA ONMYWAY) for Merchant to receive, process and accept Orders (including a tablet or other technology capable of receiving Orders).

16.35.                “Party” means Mavi.io (DBA ONMYWAY) or Merchant, as the context requires.

16.36.                “Personal Information” means any information that (a) relates to an identified or identifiable natural person (including names, telephone numbers, addresses, signatures, email addresses, and/or other unique identifiers); or (b) that can reasonably be used to identify or authenticate an individual, directly or indirectly (including 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, including, if applicable, the General Data Protection Regulation (GDPR)), which is collected and/or handled by any of the Parties in connection with this Agreement.

16.37.                “Pick Up Order” means an Order that the Customer picks up at the Merchant Location, instead of delivered to Customer.

16.38.                “POS” means a point of sale system.

16.39.                “Service Addendum” means an addendum to this Agreement that describes the Mavi.io (DBA ONMYWAY) Service that Merchant accesses pursuant to the terms herein.

16.40.                “Service Fee(s)” means the schedule that details the rates and fees that Merchant shall pay for the Mavi.io (DBA ONMYWAY) Service(s) that Merchant opts into and/or uses.

16.41.                “Recipient” means the Party receiving Confidential Information.

16.42.                “Scheduled Order” means an Order that the Customer or Merchant indicates should be picked up at some point in the future.

16.43.                “Term” means the period from the Effective Date until the date of termination.

16.44.                “Third Party Platform” means a third party’s technology interface, such as a middleware technology platform, other than the Mavi.io (DBA ONMYWAY) and Merchant Applications, that enables Merchant to request fulfillment and/or provide information necessary to enable such fulfillment.

16.45.                “Weblink” means a link from Merchant’s website through an “order now” button that directs traffic to the Merchant Location online ordering page on the Mavi.io (DBA ONMYWAY) Service, or other POS (e.g., Olo), as applicable.

PRODUCT ADDENDUMS

Addendum I: Merchant Managed Pickup Addendum

ADDENDUM I: MERCHANT MANAGED PICKUP ADDENDUM

Effective Date: September [26], 2024

This Merchant Managed Pickup Addendum (this “Managed Pickup Addendum”) is incorporated into the Agreement. All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Merchant Deal Sheet, in this Managed Pickup Addendum, or in the Terms of Service between the parties.

1.  PREAMBLE. Mavi.io (DBA ONMYWAY) owns and operates the Mavi.io (DBA ONMYWAY) Platform that connects Merchants and Customers for Customers to place Orders for pick up fulfillment by Merchant. Merchant desires to market the availability of Merchant Locations through the Mavi.io (DBA ONMYWAY) Platform (such use of the Mavi.io (DBA ONMYWAY) Platform, the “Program”). For clarity, the Program will include each product, service, promotion, or program elected by Merchant in this Managed Pickup Addendum. The Parties agree that Mavi.io (DBA ONMYWAY) is not a merchant, food preparation business, reseller, or pick up service; it is an online connection platform.

2.  DEFINITIONS.

2.1.   “Minimum Order Subtotal” means the minimum amount the Order must be (excluding taxes, fees, and tips) for the Small Order Fee not to be charged.

2.2.   “Managed Pickup  Fee” means, as set forth in the Service Fee, the pick-up fee set by the Merchant that the Customer is charged for a Managed Pickup Order.

2.3.   “Managed Pickup  Order” means an Order placed through the Mavi.io (DBA ONMYWAY) Platform for pick-up by Merchant’s Customer.

3.  RESPONSIBILITIES.

3.1.   Mavi.io (DBA ONMYWAY) Responsibilities. Mavi.io (DBA ONMYWAY) will: (a) display Merchant, Merchant Locations, and the menu of Merchant Products at each Merchant Location through the Mavi.io (DBA ONMYWAY) Platform; (b) accept Orders for Merchant Products through the Mavi.io (DBA ONMYWAY) Platform from Customers; (c) forward each Order to the relevant Merchant Location; (d) if applicable, for Pickup Orders, notify the Customer to pick up the Order; and (e) pay the Merchant as set forth in Section 4 below, deduct the agreed applicable Commission Rate, marketing fees for each applicable Order, subscription fees (if any), activation fees (if any), and any other fees (and, in each case, as may be adjusted by Mavi.io (DBA ONMYWAY) as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature). Mavi.io (DBA ONMYWAY) reserves the right to take into account the impact of a Merchant’s conduct on both the customer experience and the Mavi.io (DBA ONMYWAY) brand when determining the Merchant’s prominence, participation in Mavi.io (DBA ONMYWAY) programs and/or availability on the Mavi.io (DBA ONMYWAY) Platform. That conduct includes but is not limited to timeliness and accuracy of orders fulfilled, customer ratings and reviews, customer concerns regarding food quality or food safety, detrimental price inflation and/or customer complaints about price inflation, and any conduct that may violate our Partner Code of Conduct.

3.2.   Merchant Responsibilities. Merchant will: (a) provide Mavi.io (DBA ONMYWAY) with Merchant’s Menu, including the price of each item; (b) monitor Merchant’s menu and store information on the Mavi.io (DBA ONMYWAY) Platform, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify Mavi.io (DBA ONMYWAY) of any errors or changes in writing (email is sufficient); (ii) accept and confirm Managed Pickup  Orders from Mavi.io (DBA ONMYWAY) in a prompt and timely manner; (c) prepare Merchant Products for each Managed Pickup  Order for pickup by the Customer at the designated time; (d) process Managed Pickup  Orders in the order in which they are received; (e) notify Mavi.io (DBA ONMYWAY) of its days and hours of operation, including on holidays, and remain open for business on Mavi.io (DBA ONMYWAY) the same days and hours of operation as Merchant’s in-store business; notify Mavi.io (DBA ONMYWAY) of any changes to Merchant’s hours of operations on holidays; and notify Mavi.io (DBA ONMYWAY) if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation; (f) notify all Merchant Location staff members of the relationship with Mavi.io (DBA ONMYWAY), and train staff members on receiving and fulfilling Managed Pickup  Orders as soon as practicable upon execution of this Managed Pickup Addendum and on an ongoing basis; (ix) use its standard business practices to prepare Merchant Products that are the subject of each Managed Pickup  Order and provide the same utensils, napkins, bags, and other materials that Merchant typically would provide in a standard take-out or pick up order; (g) on an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to Mavi.io (DBA ONMYWAY) any inaccuracies; and (h) if Mavi.io (DBA ONMYWAY) collects and passes tips from Customers to Merchant, Merchant will distribute such tips in accordance with applicable law, including but not limited to tip pooling laws. Mavi.io (DBA ONMYWAY) acknowledges that Merchant is solely responsible for the prices of its menu items, which may vary based on factors such as location, time of the year, or competition from other restaurants.

3.3.   Additional Responsibilities for the Pickup Program. During the Term, once Mavi.io (DBA ONMYWAY) or Merchant’s point of sale provider enables the ability for Merchant to set different prices for Merchant Products under the Managed Pickup Program than the prices for such Merchant Products for delivery, Merchant shall ensure that pricing of Merchant Products under the Managed Pickup Program is not greater than the pricing of the same Merchant Products for pickup in-store. In the event that Merchant increases the pricing of Merchant Products for pick-up above the in-store prices of the same Merchant Products, Mavi.io (DBA ONMYWAY) may enforce the terms of this Agreement, including any combination of and not limited to: applying a higher commission rate to affected Managed Pickup  Orders, requiring Merchant to reimburse affected Customers for the difference between the Merchant Product listed for pick up and the lower in-store price, charging Merchant an additional fee, and/or adjusting the pricing of Merchant Products available for pick up, in addition to any other right or remedy available at law or in equity.

3.4.   Additional Responsibilities for Merchant Products that are alcoholic. Merchant agrees that its personnel will tender an Order from Merchant’s licensed premises only to the verified legal aged Customer, verifying the information provided by the applicable Mavi.io (DBA ONMYWAY) Customer. Upon delivering an Order, Merchant represents and warrants that its personnel will only confirm the Order with the Mavi.io (DBA ONMYWAY) Customer (a) is at least the legal drinking age in the Applicable Jurisdiction; and (b) is not visibly intoxicated. “Applicable Jurisdictions” means any jurisdiction that permits sales of Merchant Products that are alcoholic for pick-up from time to time during the Term.

4.  FEES.  Mavi.io (DBA ONMYWAY) shall receive a Commission Rate in exchange for Mavi.io (DBA ONMYWAY) promoting Merchant through the Mavi.io (DBA ONMYWAY) Platform. The Commission Rate for Managed Pickup  Orders placed under the applicable Mavi.io (DBA ONMYWAY) program is set forth on the Service Fee. Mavi.io (DBA ONMYWAY) will pay for Managed Pickup  Orders fulfilled by Merchant each week following the week in which the Orders were fulfilled on a consistent day of this week. The exact day in this week is subject to change with no less than 10 days’ notice to Merchant by email or service notification. The amounts remitted will include (a) the pre-tax total of all Managed Pickup  Orders for the prior week (Monday-Sunday), plus (b) Collected Taxes (as defined below), plus (c) the Managed Pickup  Fee charged for all Orders for the prior week, plus (d) the agreed Small Order Fee charged for all Small Orders for the prior week, plus (e) any tips provided by the Customer, less (f) the aggregate Commission Rate, agreed fees for marketing and promotional deals (if any), error fees associated with Merchant’s incorrect preparation of Orders, and Order Equipment fees (if any) for such week. Merchant agrees Mavi.io (DBA ONMYWAY) may charge the Customer fees, including but not limited to delivery fees, service fees, surcharge fees, and Small Order Fees where applicable in Mavi.io (DBA ONMYWAY)’s sole discretion.

5.  TAXES. Mavi.io (DBA ONMYWAY) shall charge and collect from Customers the applicable value added, goods and services, state and local sales, use, or similar taxes for the Merchant Products sold on the Mavi.io (DBA ONMYWAY) Platform and applicable customer fees charged by the Merchant to the Customer (“Collected Taxes”). In any jurisdiction where Mavi.io (DBA ONMYWAY) is required to remit Collected Taxes as a marketplace facilitator, Mavi.io (DBA ONMYWAY) will be responsible for remitting such taxes to the appropriate tax authorities. Any Collected Taxes that are not required to be remitted under the marketplace facilitator laws will remain the responsibility of the Merchant and Merchant will be responsible for remitting any such portion of Collected Taxes to the appropriate tax authorities. In all other jurisdictions, Mavi.io (DBA ONMYWAY) will send Collected Taxes to Merchant, and Merchant will be responsible for remitting the total amount of Collected Taxes to the appropriate tax authorities of those jurisdictions. For clarity, Mavi.io (DBA ONMYWAY) will be responsible for the remittance of any value added, goods and services, sales, use, or similar tax related to Customer fees for services supplied by Mavi.io (DBA ONMYWAY), including but not limited to a Service Fee. Merchant will be responsible for the remittance of any goods and services, sales, use, or similar tax related to Customer fees for services supplied by Merchant, including but not limited to a Managed Pickup  Fee and Small Order Fee.

6.  PAYMENT PROCESSING.  Merchant acknowledges that Mavi.io (DBA ONMYWAY) uses a payment processor to collect Order amounts from Customers and remit payment to Merchant. In order to receive payment, Merchant is required to have an account with this payment processor during the Term. Mavi.io (DBA ONMYWAY) reserves the right to change its payment processor at any time during the Term and Merchant will provide Mavi.io (DBA ONMYWAY) with any information required to set up a payment account with any such alternate payment processor.

7.  ORDER EQUIPMENT. With respect to the Mavi.io (DBA ONMYWAY) Platform, if Merchant does not integrate its POS system with the Mavi.io (DBA ONMYWAY) Platform, Merchant will install the equipment agreed by the parties for Merchant to receive and process Orders, which may include: a tablet, fax machine, or other automated, electronic means of receiving Orders. If the parties agree that any Order Equipment is provided by Mavi.io (DBA ONMYWAY), Merchant will pay Mavi.io (DBA ONMYWAY) an Order Equipment Fee if set forth in the Service Fee, in exchange for the right to use the Order Equipment to access the Mavi.io (DBA ONMYWAY) Platform in order to receive, process, and accept Marketplace and Pickup Orders. Any Order Equipment provided by Mavi.io (DBA ONMYWAY) will remain Mavi.io (DBA ONMYWAY)’s sole property and may be used solely in connection with the provision or receipt of services under the Agreement and for purposes related to fulfilling Merchant’s responsibilities under this Marketplace Addendum. Merchant will inspect all hardware and shall notify Mavi.io (DBA ONMYWAY) in writing (email sufficient) if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. Merchant will be responsible for any damage to, or loss of any Order Equipment provided by Mavi.io (DBA ONMYWAY) (excluding ordinary wear and tear), which shall be promptly reimbursed by Merchant (at the replacement cost thereof). Mavi.io (DBA ONMYWAY) may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments. Merchant agrees to pay all agreed subscription fees and deposits charged by Mavi.io (DBA ONMYWAY) for Order Equipment and agrees Mavi.io (DBA ONMYWAY) may deduct such fees and deposits from amounts payable by Mavi.io (DBA ONMYWAY) to Merchant.

8.  REFUNDS AND SUPPORT. In the event a Customer submits a complaint about his or her Order via Mavi.io (DBA ONMYWAY)’s support channels, Mavi.io (DBA ONMYWAY) may, in its sole reasonable discretion, issue a re-order, credit, partial refund, or full refund to such Customer. Merchant shall 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 re-order, credit or refund, as applicable, if the complaint was caused by Merchant or Merchant Products, including missing and incorrect Managed Pickup  Orders or the delivery of Managed Pickup  Orders by Merchant. For clarity, Mavi.io (DBA ONMYWAY) shall not be responsible for any refund, credit or re-order that is caused by the delivery of Managed Pickup  Orders.

9.  TERM AND TERMINATION. This Managed Pickup Addendum may be terminated pursuant to the terms of the Terms of Service