This BRAND PROGRAM AGREEMENT (this “Agreement”) is made and entered into as of the date set forth in the Addendum (the “Addendum”) between the parties of even date herewith and incorporated herein (the “Effective Date”) by and between Restaurant as a Service, LLC, a Delaware limited liability company (“RaaS”) and the Partner set forth in the Addendum with reference to the following mutual understandings:
NOW, THEREFORE, for the mutual promises, representations and warranties and other good and valuable consideration set forth herein, the receipt and sufficiency of which is hereby acknowledged and shall not be disputed, the Parties hereby agree as follows:
Definitions. In addition to other terms defined elsewhere in this Agreement, the following terms shall have the meaning set forth below:
“Additional Fees” means any additional fees which RaaS may implement from time to time upon written notice to the Partner, including but not limited to upfront fees, annual fees, retention fees or other fees collected by RaaS to cover (i) costs of operating the RaaS platform, including delivery platform fees, commissions, or related charges collected by the Delivery Platform (or in the case of native delivery platforms, the actual cost to RaaS associated therewith), (ii) any costs associated with the implementation or use by Partner of the Sales Platform, including but not limited to any hardware damage, restocking, termination or other fees associated with the Sales Platform or passed through to RaaS by the Sales Platform partner or (iii) promoting the RaaS or Partner Products on the Delivery Platforms including promotional fees or similar fees which may be determined by RaaS and passed through to the Partner hereunder.
“Applicable Law” means any applicable federal, state, local, or other law, rule, regulation, ordinance, or the like whatsoever, including, without limitation, all applicable health and safety and employment and labor laws.
“Collected Revenue” means the amount collected by RaaS or Partner from the Delivery Platform or native ordering channels for consumer’s purchase of the Products, excluding delivery fees, sales and similar taxes.
“Confidential Information” means any and all technical and non-technical information disclosed by RaaS or its affiliates to Partner, or otherwise acquired by Partner in connection with this Agreement, including, without limitation: (a) the terms and conditions of this Agreement; (b) trade secrets; (c) business or operational information, ideas, techniques, business methods, business plans, know-how, processes, procedures, software programs, customer lists, marketing plans, information regarding future products and/or services, specifications, vendors, business relationships, and (d) all other information that Partner knew or should have reasonably known under the circumstances was Confidential Information.
“Deemed Aggregate Revenue” means the Collected Revenue for all Products sold by Partner during the prior month from a RaaS Branded Store. Deemed Aggregate Revenue excludes any taxes collected from the consumer.
“Delivery Platform” means the applicable native or third-party online food ordering or delivery platform either via website or mobile web platform
“Intellectual Property” shall mean all worldwide rights in and to intellectual property, including without limitation rights to inventions, trade secrets, know-how, technology, research tools, data, software, improvements and rights of authorship and attribution, whether or not protected by patents or copyrights, and including, without limitation, any Recipes, trade secrets, vendor information, methods, processes, training techniques, patent applications, patents, trade secret rights, copyrights, trademarks, good will and other exclusive or non-exclusive rights pertaining to intellectual property owned or controlled by RaaS.
“License Fee” means an amount equal to (a) the percentage identified on the Addendum hereto, multiplied by (b) the amount of Deemed Aggregate Revenue (as defined above) achieved with respect to sales of Products from a RaaS Branded Store.
“Marketing Fee” means an amount equal to (a) the percentage identified on the Addendum hereto, multiplied by (b) the amount of Deemed Aggregate Revenue (as defined below) achieved with respect to sales of Products from a RaaS Branded Store.
“Network Partner” means a third party that has contracted with RaaS to prepare RaaS Branded Products.
“New Products” means the products and services offered for sale (including recipes for such products or services, as applicable) by (a) RaaS, including by any RaaS Branded Store (but excluding the Partner Products) or (b) any Branding Partner other than Partner.
“Personal Information and Data” means any information or data obtained from or provided by Partner pursuant to this Agreement including the various platforms hereunder that (i) identifies or can be used to identify an individual (including names, telephone numbers, addresses, signatures, email addresses, and/or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (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).
“Partner Assets” means (a) Partner’s Intellectual Property (b) Partner’s name and description, (c) Partner’s photos or other images; (d) the nutritional and caloric information and data, in, to and for Partner Products.
“Partner Products” means collectively and as applicable, the products and services offered for sale (including recipes for such products or services, as applicable) on Partner’s menu from time to time.
“Protected Territory” means a geographic area within (i) a half (0.5) mile radius from the physical location of Partner within an Urban territory, (ii) a two (2) mile radius from the physical location of Partner within a Suburban territory, which urban/suburban designation shall be set forth on the Addendum or (iii) such other area as may be more specifically set forth on the Addendum.
“RaaS Branded Products” means the products and services offered for sale (including Recipes for such products or services, as applicable) by (a) RaaS, including by any RaaS Branded Store or (b) any Network Partner.
“RaaS Brands” means all Intellectual Property, proprietary, and other property rights owned or used by RaaS or its affiliates in connection with a RaaS Branded Stores, and the products and services marketed and distributed thereunder.
“RaaS Branded Store” means a virtual store or restaurant marketed and distributed by RaaS (or another Network Partner) under one or more RaaS Brands on one or more online ordering and delivery platforms that feature one or more third-party products and sometimes sold as a single unit.
“RaaS Fees” means the License Fee, the Marketing Fee, the Software Fees, and any Additional Fees which may be prescribed by RaaS from time to time as set forth herein.
“Recipes” means RaaS’ proprietary recipes and food preparation knowledge for the Licensed Products.
“Refunds” means refunds, credits, chargebacks, penalty charges, or any retrieval costs incurred by RaaS in connection with an order issue (including, order delay or error). Refunds excludes any issue caused solely by RaaS’s gross negligence or willful misconduct.
“Software Fees” means a software fee of twenty four dollars and ninety cents ($24.90) for tablet only or twenty nine dollars and ninety cents ($29.90) for tablet plus printer, per week commencing during the initial weeks payout, and which may be increased or decreased from time to time in RaaS’ sole discretion upon written notice to Partner.
“Startup Fee” means an amount equal to (a) the percentage identified on the Addendum hereto, multiplied by (b) the amount of Deemed Aggregate Revenue (as defined above) achieved with respect to sales of Products from a RaaS Branded Store.
“White-label Products” means Partner Products that have been rebranded by RaaS as part of the White Label model set forth in Section 2.2 herein, in accordance with this Agreement.
Partnership Models. Subject at all times to the License granted below and other restrictions and limitations herein, Partner shall have the right to prepare, package, sell and/or fulfill the Licensed Products by means of one or more of the various partnership models as set forth below, in each case at the direction of RaaS as more specifically set forth next to each Licensed Product on the Addendum hereto or as may be communicated by RaaS to Partner in writing from time to time during the Term:
License. Subject to the terms and conditions contained in this Agreement, and to all restrictions and limitations herein, RaaS hereby grants to Partner a limited and specific license, during the Term and in the Protected Territory to utilize the RaaS Intellectual Property only to prepare, package, sell and/or fulfill orders of the RaaS Brands included in the Licensed Products as set forth herein. Partner shall not utilize the RaaS Intellectual Property in any manner not specifically authorized under this Agreement, and all other rights not specifically granted herein, shall not be included in the License and are hereby expressly reserved by RaaS.
Use of Marks. All uses by Partner of the RaaS Intellectual Property, along with the trademarks, service marks and logos (collectively, the “Marks”) shall be in strict compliance with all rules established by RaaS and in a manner designed to enhance the good will associated with the Intellectual Property. Partner shall only utilize the Marks in the exact form and design provided to Partner by RaaS, and Partner shall not change, alter or modify the Marks without the prior written approval of RaaS in each instance. Subject to the RaaS approval rights herein, the Marks may be displayed in all advertising, promotional and marketing materials (“Advertising Materials”) whether in print or digital form, in a manner to be approved by RaaS. All Advertising Materials shall be submitted to RaaS for prior written approval before dissemination to the public. In the event RaaS does not respond in writing to any approval request hereunder within ten (10) days of receipt of the request, RaaS shall be deemed to have dis-approved of such use.
Quality Control. In order to maintain the standards of quality associated with the Marks, Recipes an d other RaaS Intellectual Property, Partner shall strictly adhere to all quality standards communicated by RaaS during the Term. In connection with any partnership model that requires Partner to prepare the Licensed Products utilizing the RaaS Intellectual Property, Partner shall only purchase ingredients and supplies designated and approved by RaaS. Partner shall not deviate from any Recipe in any manner without the prior written consent of RaaS. RaaS or any representative thereof shall have the right to inspect the Location from time to time during regular business hours, without prior notice, to ensure that Partner is maintaining all standards of quality associated with the Marks and the Recipes. To the extent that Partner does not adhere to quality standards hereunder, upon written notice by RaaS to Partner detailing such non-adherence, Partner shall as soon as commercially reasonable, address and cure such non-adherence issues. If Partner fails to cure such non-adherence issues hereunder, such failure shall be deemed a material breach of this Agreement.
Partner hereby appoints RaaS as its agent for the purposes of advertising, marketing, and facilitating the sale and delivery of Partner Products as set forth in this Agreement. Partner hereby grants to RaaS an irrevocable, worldwide, royalty-free, non-exclusive right to (a) sell the Partner Products and (b) use any Partner Assets in connection with such marketing and electronic distribution of the Partner Products. Each Partner Product may be marketed and distributed by RaaS, as an agent for Partner, in RaaS’s sole discretion under any RaaS Branded Store and at such price as RaaS sets from time to time (the “Retail Price”). RaaS may, but is not required to, use any of the Partner Assets in connection with marketing such Partner Product.
Partner shall promptly prepare, cook and package each Licensed Product so ordered in the same manner as Partner prepares, cooks and packages sales of the same products by Partner directly, subject in all cases to such alterations with respect to preparation and packaging (including without limitation recipes and ingredients) as RaaS may prescribe to Partner in writing from time to time, including but not limited to any promotions or other third party materials or packaging which may be required by RaaS from time to time. To the extent required by applicable law, Partner will provide all necessary ingredient, allergen and caloric information for each Licensed Product.
In addition to requesting Partner prepare, cook and package Licensed Products, RaaS may request Partner prepare, cook and package New Products which are then sold by a RaaS Branded Store. Partner shall promptly prepare, cook and package each New Product in accordance with RaaS’s instructions. RaaS may, but is not required to, use any of the Partner Assets in connection with such New Products. RaaS hereby grants to Partner a revocable, royalty-free, non-exclusive right under RaaS’s Intellectual Property in New Product, during the Term, solely to prepare, cook and package the New Product for the benefit of RaaS. In the event Partner needs to purchase ingredients or other supplies in order to prepare, cook or package any New Products pursuant to this paragraph and this Agreement, then Partner must purchase the same directly from the RaaS or third party vendors identified to Partner.
Partner shall not change any of the Licensed Products (including with respect to the ingredients, composition thereof, or the Retail Price prescribed by RaaS), add or remove products or services from Partner’s menu, or the Partner Assets, except with 30 days’ prior written notice to RaaS. Partner is solely responsible for all Refunds. The parties agree that although RaaS may operate the RaaS Branded Store as a platform for the sale of Partner Products, RaaS is merely an agent of Partner in connection with such sale.
Partner shall have the exclusive rights to sell the Licensed Products in the Protected Territory, such that RaaS will not enter into Brand Program Agreements with another Network Partner that is physically located within the Protected Territory during the Term, provided however, that Partner understands and agrees that (i) nothing herein shall restrict RaaS from contracting with Network Partners to sell any other RaaS Brands, RaaS Branded Products or other products, within the Protected Territory and (ii) the Protected Territory relates only to the boundaries around the physical locations of Network Partners within which RaaS cannot contract as set forth herein, and does not address delivery radiuses that any particular Network Partner or Delivery Platform may implement from time to time (“Delivery Radius”), which Delivery Radiuses are outside of RaaS’ control and may overlap.
In order to effectively facilitate online orders, RaaS will utilize Stripe as a third-party payment facilitator for purposes of facilitating sales and reporting of the Products that the Partner must utilize and that may or may not include a tablet, a printer, or both (the “Sales Platform”) And Partner is obligated to use the same in connection with the sale of any products under this Agreement. While RaaS may provide these hardware items at no cost to the partner at RaaS’ sole discretion, the partner will be responsible for the maintenance and upkeep of the hardware and RaaS reserves the right to bill the partner if any replacement hardware is ever needed as well as any fees upon termination in the event the hardware is not returned, as more specifically set forth below. This includes both lost or broken hardware. Partner also agrees that when requested by any third-party software or hardware service provider, Partner shall enter into and consent to such third party’s data waiver forms as a condition to the effectiveness of this Agreement. By entering into this Agreement, Partner acknowledges that it has read and agrees to the terms of the Stripe Connected Account Agreement which can be found here: https://stripe.com/connect-account/legal. Failure to use the Sales Platform as required herein without the written consent of RaaS shall be a material breach of this Agreement.
Sale of Alcohol Items through Uber Eats. To the extent Partner is selling and/or delivering any alcoholic beverages (“Alcohol Items”) or other age restricted items, it is Partner’s responsibility to verify the age and identity of the Customer and confirm that the Customer is not intoxicated when delivering Alcohol Items to the Customer (for the Partner or RaaS managed delivery sales channel) or when the Customer picks up the alcohol from Partner (for the Non-Delivery Sales Channel). Partner disclaims Portier and its affiliates (including Uber) from any and all liability related to Partner’s noncompliant delivery of Alcohol Items via these Sales Channels. In addition, any Partner selling Alcohol Items shall expressly review and agree to the terms of the Uber Eats Merchant Addendum and the Alcohol Addendum found here: https://raas.com/brand-program/ubereats and Grubhub Alcohol Terms found here: https://raas.com/brand-program/grubhub and Partner shall fully indemnify RaaS from and against any breaches of any of such terms thereof by Partner.
Term; Termination. The initial term of this Agreement shall commence on the Effective Date and shall continue for one (1) year unless earlier until terminated in accordance with this Agreement (the “Initial Term”). Unless earlier terminated by either party as set forth herein, the Initial Term shall automatically renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Term”). RaaS may terminate this Agreement for any or no reason with twenty four (4) hours’ notice to the Partner (email sufficient). Either party may terminate this Agreement in the event of a material breach by the other party, which remains uncured after thirty (30) days’ written notice of such breach. Upon termination of this Agreement, Partner shall (a) return all RaaS property and Confidential Information in Partner’s possession, and (b) submit a final invoice to RaaS. Outstanding payment obligations and Sections 1, 7, 8, 9, 11, 12, and 13-21 of this Agreement shall survive any termination of this Agreement.
Revenue from sales of the products through the Delivery Platforms or native ordering channels may be collected by RaaS, on behalf of Partner, or directly by Partner. RaaS shall endeavor to have all payment for any Products sold by Partner pursuant to this Agreement to be paid directly to RaaS by the Delivery Platforms or native ordering channels, and Partner shall take whatever steps necessary to authorize and effect the same. All Collected Revenue from In-Person dining shall be collected by Partner directly. On the payment schedule set forth herein, as applicable, the party that received payment form the Delivery Platform shall pay to the other the Fees required herein. In the event RaaS receives payment from the Delivery Platform, RaaS shall pay Partner an amount (hereinafter, the “Partner Payment”) equal to (a) the Deemed Aggregate Revenue plus any taxes collected by RaaS from the Delivery Platform (which Partner is responsible for paying pursuant to this Agreement), minus (b) Refunds; and (c) the RaaS Fees (which RaaS shall be entitled to receive and retain from the amounts payable to Partner). In the event the Partner receives the payment for the Products directly from the Delivery Platform or In-Person Dining, it shall remit the RaaS Fees to RaaS as set forth herein. The Partner Payment is exclusive of all applicable taxes. Partner shall be the seller with respect to the sale of any Partner Products, Licensed Product or New Product, and Partner agrees to be responsible for the payment of any taxes assessed in connection therewith, including, but not limited to, all sales, use, VAT or similar taxes. Upon RaaS’s request, Partner shall provide RaaS with copies of evidence of remittance to the appropriate agency(ies) of all sales, use, VAT and similar taxes. Subject to the foregoing, each party shall be responsible for the payment of its own tax liability arising from this Agreement. RaaS shall have the right to immediately terminate this Agreement in the event Partner failed (or there is a credible allegation that Partner failed) to pay any such taxes.
Payments via Sales Platform. All payments for products sold hereunder shall be made and managed through the Sales Platform and subject to the Stripe Connected Account Agreement. Partner expressly understands and agrees that any amounts owed to RaaS hereunder may be either deducted directly by RaaS through Partner’s connected bank account or deducted by RaaS prior to any distributions to Partner hereunder.
Inspection and Audit: In the event of a material breach of this Agreement by Partner (and for up to six (6) months from the date RaaS provides written notice to Partner of such breach), RaaS shall have the right upon fourteen (14) days written notice to inspect the books and records of Partner insofar as same pertains to the Products only, including Collected Revenue, calculation of RaaS Fees and other matters hereunder. The cost and expense of any such audit shall be borne by RaaS, unless such audit reveals any underpayments by Partner to RaaS in excess of five percent (5%) of the actual amounts due to RaaS, in which event Partner shall pay for the reasonable documented costs and expenses of such audit. In the event of any underpayment being determined, then, without prejudice to or limitation of any of RaaS’ other rights and remedies, Partner shall promptly pay to RaaS the amount underpaid. Operating Expenses: For the avoidance of doubt, RaaS shall not be liable for any costs or expenses of Partner in connection with Partner’s performance under this Agreement or otherwise, including, without limitation, legal fees and court costs relating to operations; computer hardware and software acquisition costs; license fees and other maintenance and consulting fees; wages, salary and fringe benefits costs for employees; insurance premium payments; accounting, legal, and consulting fees, including fees related to preparation of tax returns, financial and tax audits, investigations and other claims; lease expenses and real estate obligations; equipment acquisition, lease and maintenance costs; product and supply costs; and utilities.
Operating Expenses: For the avoidance of doubt, RaaS shall not be liable for any costs or expenses of Partner in connection with Partner’s performance under this Agreement or otherwise, including, without limitation, legal fees and court costs relating to operations; computer hardware and software acquisition costs; license fees and other maintenance and consulting fees; wages, salary and fringe benefits costs for employees; insurance premium payments; accounting, legal, and consulting fees, including fees related to preparation of tax returns, financial and tax audits, investigations and other claims; lease expenses and real estate obligations; equipment acquisition, lease and maintenance costs; product and supply costs; and utilities.
Right to Offset; Deduction. Without prejudice or limitation of RaaS’ other rights and remedies, RaaS shall have the right to withhold, deduct and offset any amounts it may owe to Partner hereunder for any shortfalls or other amounts owed by not paid by Partner to RaaS hereunder.
Partner acknowledges that, as between Partner and RaaS, RaaS owns all right, title, and interest, including all Intellectual Property, in and to the Confidential Information, RaaS Brands, RaaS Branded Stores, New Products (including, without limitation, any Recipes, trade secrets, vendor information, methods, processes, training techniques and otherwisewhich shall constitute a RaaS trade secret), technology and systems underlying such RaaS Branded Stores, and any suggestions, ideas, enhancement requests, feedback, recommendations and/or other data or information provided by Partner or any other party relating to RaaS Branded Stores (collectively, the “RaaS IP”). Partner will, and hereby does, assign any right, title, or interest in or to the RaaS IP to RaaS.
During the Term of this Agreement, Partner hereby grants to RaaS, under Partner’s Intellectual Property, a nonexclusive, paid-up, royalty-free, transferable, irrevocable and worldwide right and license, including the right sublicense, to use, modify, and otherwise exploit in any manner, Partner Products and Partner Assets in connection with the sale and distribution of New Products, including future products, services or business derived therefrom.
For clarity, Section 10.2 shall grant RaaS the perpetual right to make (or have made) and sell any New Product (or variations thereof), and RaaS shall have the right to license or disclose any Partner Intellectual Property to Partner in order to have such New Products (or variations thereof) made and sold. This Section 12.3 shall survive any termination or expiration of this Agreement.