LeafyQuick Retailer Terms
Updated March 21st, 2019
These LeafyQuick Retailer Terms (“Terms”) apply to the service relationship between LeafyQuick Inc., its subsidiaries and affiliates (collectively, “LeafyQuick” or “LQ”) and the retailer (“Retailer”) signing up for the Services (as defined herein). These Terms, and any other terms set forth in the sign-up process will be together referred to as the “Agreement.” The Agreement is entered into as of the date Retailer signs up for the Services (“Effective Date”). THE SECTION BELOW ENTITLED “DISPUTE RESOLUTION” HAS A MANDATORY ARBITRATION PROVISION. IT AFFECTS RETAILER’S LEGAL RILQTS. PLEASE READ IT.
- Rights and Obligations of LQ
- a) LQ will enable customers to purchase product from Retailer via (i) LQ’s proprietary ordering, advertising, delivery logistics and billing system at leafyquick.com and at LQ’s sole option, its associated web-based and mobile properties and apps, collectively known as (the “LQ Platform”); and (ii) at LQ’s sole option, at any properties partnered with LQ (together with the LQ Platform, the “Systems.” The foregoing will not apply to any Retailer that has not signed up for Marketing Services until such Retailer elects to receive such Marketing Services.
- b) MARKETING SERVICES (IF SELECTED): LQ will include Retailer on the Systems as provided herein and will enable the transmission of orders to Retailer for pickup or delivery (the “Marketing Services”). The Marketing Services, together with the Delivery Services and the POS Services (each as defined below), will be referred to herein as the “Services.”
- c) DELIVERY SERVICES (IF SELECTED): LQ will connect Retailer with delivery service providers through LQ’s proprietary logistics platform(s) (the “Delivery Services”). LQ will have the sole right to determine the particulars of the Delivery Services, including, without limitation, the delivery fee, delivery area and availability. For clarity, LQ does not itself provide delivery or logistics services; instead, LQ provides a platform for Retailers to connect with delivery service providers to transport orders to customers and to receive information relating thereto. LQ delivery service providers are independent contractors who access LQ’s proprietary technologies to provide on-demand delivery and logistics services, and such independent contractors control the method and manner in which they deliver orders. Accordingly, LQ will not be liable or responsible for any delivery service providers or any errors or misrepresentations made by them.
- d) LQ owns all right, title, and interest in and to the LQ Platform and any content supplied by LQ, and will have sole editorial control over the LQ Platform, including the presentation of any content provided by Retailer (“Retailer Content”). Retailer Content may include, without limitation, products, photographs, trademarks and logos. For the term of the Agreement and for six (6) months thereafter, Retailer hereby grants to LQ a royalty-free, worldwide, sub-licensable, transferable, fully paid-up, irrevocable right and license to use the Retailer Content on the Systems, and for marketing and promotional purposes via any means now known or hereinafter developed. Retailer owns all right, title, and interest in and to the Retailer Content, subject to the license granted to LQ herein. LQ may remove Retailer Content on the Systems at any time if it believes, in its sole discretion, that such Retailer Content violates any applicable laws, infringes upon any third-party rights, or otherwise impacts the integrity of the Systems.
- e) TO THE FULLEST EXTENT PERMITTED BY LAW, AND OTHER THAN AS EXPRESSLY PROVIDED IN THE AGREEMENT, LQ DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT, THE SYSTEMS, THE SERVICES, AND ANY USE THEREOF, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND LQ WILL NOT BE LIABLE TO RETAILER FOR DAMAGES RESULTING FROM THE FAILURE OF THE SYSTEMS, SERVICES OR RETAILER CONTENT. LQ WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO RETAILER FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO LOST PROFITS, LOSS OF BUSINESS, LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. LQ’S MAXIMUM LIABILITY UNDER THE AGREEMENT WILL BE THE AMOUNT OF COMMISSIONS EARNED BY LQ DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GAVE RISE TO SUCH DAMAGES. THE FOREGOING LIMITATIONS WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THE AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
- Rights and Obligations of Retailer
- a) Retailer will prepare product placed via the Systems (i) consistent with product descriptions; (ii) in compliance with all applicable health and safety requirements; (iii) in accordance with industry standards; and (iv) during the hours of operation provided by Retailer to LQ. Retailer will ensure that its products, hours of operation, and other particulars required for LQ to perform the Services are up to date. Retailer will ensure that its product descriptions are sufficiently detailed as to ingredients and allergens, and contain any other health or safety notices that are recommended or required by applicable law, rule or regulation.
- b) Retailer products available for purchase through the Systems must be substantially similar to those items available in-store and through any other digital ordering channel. Retailer item pricing through the Systems must be at least as favorable to the consumer as that which is available at Retailer’s standard location or offered to any third-party service, and LQ may update item pricing through the Systems to match more favorable terms of available elsewhere.
- c) Retailer consents to receiving phone calls, faxes, emails, text messages and any other communications made available by and on behalf of LQ as they may relate to the Systems, Services and terms governing Retailer’s use of the Systems and Services, including without limitation, marketing or transactional matters. Retailer hereby consents to the recording of telephone conversations related to the Systems and Services and will ensure Retailer’s employees, service providers and agents are informed of the same and consent to recording by LQ. If Retailer accepts phone orders, Retailer must advise those placing phone orders that CSC (Card Security Code)/CVV/CVV2 should not be transmitted over the phone.
- d) Retailer will not, and will not permit any third party to, market to or solicit any customer or company obtained through the Systems or via the Services for any purpose. For example, but without limitation, Retailer may not solicit a customer or order directly from Retailer or through a third-party. For the avoidance of doubt, the foregoing does not apply to any customer or company whose existence and information Retailer obtained independently of the Systems and Services.
- e) Retailer will maintain the confidentiality of all non-public information that it acquires in the course of performing the Agreement, including without limitation all Customer Data (as defined below), as well as the terms and conditions of the Agreement (collectively, the “Confidential Information”). Retailer will not disclose to any third parties or use in any way other than as necessary to perform its obligations hereunder, LQ’s Confidential Information. Retailer will ensure that Confidential Information will only be made available to those of its employees and agents who have a need to know such Confidential Information and who are be bound by written obligations of confidentiality at least as protective as those set forth herein. Upon expiration or termination of the Agreement and as requested by LQ, Retailer will deliver to LQ (or destroy at LQ’s election) any and all materials or documents containing the Confidential Information, together with all copies thereof in whatever form.
- f) “Customer Data” means (i) any and all information about customers generated or collected by LQ or Retailer through the Systems or Services, which may include but is not limited to, customer’s name, delivery address(es), email address(es), phone number(s), and customer preferences and tendencies and (ii) any information that may otherwise be considered “personal data” or “personal information” under applicable law. Retailer acknowledges that all Customer Data is the sole and exclusive property of LQ. Accordingly, Retailer will use Customer Data for the sole purpose of fulfilling applicable customer orders or otherwise satisfying Retailer’s obligations hereunder. Retailer (and any other persons to whom Retailer provides any Customer Data only as necessary to perform the Agreement) will implement and maintain comprehensive administrative, physical and technical safeguards in accordance with current industry best practices in order to protect, handle, and secure Customer Data. Retailer will also be responsible for any breach of this provision by any third-party service provider engaged by Retailer. Retailer will notify LQ in a secure manner immediately upon a data security breach or any reasonable suspicion thereof or any other unauthorized disclosure of Confidential Information, and assist and cooperate with LQ concerning any remedial measures and any disclosures to affected parties, in each case as requested by LQ or required under applicable law.
- h) If Retailer is a franchisee of a franchisor (“Franchisor”) that has negotiated a master agreement with LQ (“Master Agreement”), Retailer consents to the sharing of certain sales reporting data with Franchisor pursuant to the Master Agreement. i) Retailer represents, warrants and covenants: (i) it has the authority to enter into the Agreement and to grant the rights granted hereunder, and doing so will not violate any other agreement to which it is a party; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) the Retailer Content will not infringe or otherwise violate the rights of any third party; (iv) it will comply with all applicable retail food, beverage (including alcohol) or other health and safety codes, rules or regulations, as well as any other laws applicable to its business (including without limitation the obligation to pay tips to delivery and other workers, if any); (v) it will provide accurate tax rates and calculations to LQ; and (vi) it will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms. Retailer will indemnify and hold LQ (including its directors, employees, officers, agents) harmless from any and all claims, actions, proceedings and damages arising out of Retailer’s activities, including, without limitation, (i) any third-party transactions or financing arrangement; (ii) Retailer’s provision, calculation, reporting or remission of taxes; or (iii) any breach or alleged breach of the representations, warranties or covenants set forth in the Agreement. LQ will provide prompt notice to Retailer of any potential claim subject to indemnification hereunder. Retailer will assume the defense of the claim through counsel designated by it and reasonably acceptable to LQ, provided that LQ may use counsel of its choice at its own expense. Retailer will not settle or compromise any claim or consent to the entry of any judgment without the written consent of LQ, which will not be unreasonably withheld. LQ will reasonably cooperate with Retailer in the defense of the claim, at Retailer’s expense.
- Payment Terms
- a) In consideration for Retailer’s access to the applicable Systems and Services, Retailer will pay to LQ the Marketing Commission (for delivery by LQ, as applicable) and Delivery Commission (as applicable) provided in the sign up process (collectively, the “Commissions”). Except as otherwise specified, the Commissions apply to the product total on all orders placed through the Systems. The Delivery Commission does not apply to pickup orders or self-delivery orders. In the event Retailer does not use or ceases to use Delivery Services, the Marketing Commission will apply to the product total and any delivery fee charged by Retailer. For Retailers that do not use Delivery Services, the Marketing Commission will be charged on telephone orders originating from the Systems based on the average Marketing Commission actually charged on Retailer’s previous six (6) non-telephone orders. The Commissions may be amended by LQ upon three (3) days’ prior written notice to Retailer (email sufficient), provided that Retailer does not cancel the Agreement during such notice period.
- b) LQ will transmit via check or Automated Clearing House (“ACH”) to Retailer the “Payment Amount” at mutually agreed intervals. “Payment Amount” means the “Grand Total” (which includes the product total, tax, plus any tips and delivery fees for orders not using Delivery Services) received by LQ for orders placed during the relevant billing period (“Billing Period”), less (i) the applicable Commissions, (ii) the processing fee (inclusive of credit charges) on the Grand Total, (iii) tax collected on orders to be reported/remitted by LQ, and (iv) the amount of refunds or discounts granted to customers. Platforms associated with LQ affiliates and partners may deposit their Payment Amounts to Retailers separately.
- c) Retailer will provide to LQ accurate and complete sales tax rates and computations (including, without limitation, any applicable state and local taxes) applicable to items and will provide reasonable advance notice to LQ of any required changes to such rates and/or computations. Retailer will report and remit all sales tax collected through the Systems to the applicable taxing authorities. ONLY FOR RETAILERS IN WASHINGTON, PENNSYLVANIA, FLORIDA, AND UTAH: Notwithstanding the foregoing, LQ will report and remit all sales tax collected to the applicable taxing authorities. Retailer will be responsible for such reporting and remitting in all other locations. Updates to LQ tax reporting and remitting practices may be made upon written notice to Retailer.
- a) The Agreement may be cancelled by either party for any reason (or no reason) upon three (3) days’ prior written notice to the other party; provided, however, that LQ may suspend the Services or access to the Systems during any time it believes Retailer is in violation of the Agreement.
- b) If either party wishes to cancel placement on any particular platform(s) and/or the Delivery Services, in each case, while remaining on the other platform(s) and/or retaining the other Services, it may do so at any time upon three (3) days’ prior written notice to the other party. Notwithstanding anything to the contrary herein, in the event that only placement on the such platform and/or the Delivery Services are cancelled, the Agreement will continue in full force and effect, except that: (A) “Services” will be redefined to refer only to the remaining Service(s), (B) “Commission” will be redefined to refer only to the Commission(s) applicable to the remaining Services, and (C) any obligations of LQ with respect to the cancelled Service(s) will be of no further force and effect.
- Dispute ResolutionRetailer and LQ agree that all claims or disputes arising out of the Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which are available at www.adr.org. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Parties are responsible for their own attorneys’ fees. The arbitration proceeding will take place in New York, NY, unless otherwise agreed. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein and/or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
- Notices. All notices under the Agreement will be in writing and will be deemed to have been duly given if given on the earliest to occur of (i) upon delivery, or refusal of delivery, if personally delivered; (ii) on the third business day after deposit with the United States Postal Service if sent by certified mail; (iii) on the first business day after delivery to a nationally recognized overnight courier if sent by such a courier; and (iv) on the day transmitted, as indicated by the transmission confirmation, if given by email (however, any notice transmitted by email after 5:00 PM local time at the destination of the recipient or on a day other than a business day will be considered given on the next business day). All notices to Retailer will be sent to Retailer at the email address provided by the authorized representative during the signup process or such other address provided by Retailer and accepted by LQ in writing. All notices to LQ will be sent to the below, unless otherwise provided by LQ:
LeafyQuick Holdings Inc.
101 West Grand Avenue., Ste. 212
Chicago, IL 60654
Attn: Legal Department