United States – Own Your Marketplace (OYM) Product Addendum  

This Own Your Marketplace (OYM) Product Addendum (this “OYM Addendum”) is incorporated into the Agreement. All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Sign-Up Application, in this OYM Addendum, or in the Terms of Service between the parties.

1.  PREAMBLE. PO3S owns and operates the PO3S Platform that connects Merchants, Delivery Networks, and Customers for the pickup, delivery, and dine-in of Merchant Products. Merchant desires to market the availability of Merchant Locations through the PO3S Platform (such use of the PO3S Platform, the “Program”). For clarity, the Program will include each product, service, promotion, or program elected by the Merchant under this OYM Addendum. The Parties agree that PO3S is not a merchant, food preparation business, reseller, or delivery service; it is an online marketing and connection platform.

2.  DEFINITIONS.

2.1. “PO3S Platform” for purposes of this OYM Addendum means, individually or collectively, (a) any online marketplace offered by PO3S and/or its Affiliates through which Customers may place orders from merchants for pickup and/or delivery, and (b) the Merchant Portal, in each case, that will allow information to be exchanged between Merchant and PO3S. References to the “PO3S Platform” include the PO3S Platform Documentation. The PO3S Platform is a “PO3S Product” as defined in the Terms of Service. From time to time, PO3S may list the Merchant on one or more of its marketplaces subject to the Commission Rate(s) set forth in the Rate Card upon advance written notice to the Merchant.

2.2. “Marketplace” means PO3S’s proprietary online communication platform where Customers can view and search for the menus of Merchants and/or place an order for Merchant Products via the PO3S-provided website or mobile application for delivery by a PO3S Delivery Network to the Customer or for pickup by Customer or dine-in at the restaurant.

2.3. “Merchant Location(s)” has the meaning ascribed to it in the Terms of Service. For purposes of this OYM Addendum, “Merchant Locations” may also include: (i) Merchant Locations owned and operated by Merchant or its affiliates, and/or (ii) Merchant Locations owned and operated by franchisees of Merchant or its affiliates which have signed a Franchisee Agreement. “Merchant Locations” also includes both Brick and Mortar Merchant Locations and Virtual Kitchen Merchant Locations. “Brick and Mortar Merchant Location” means a physical location where the Merchant operates as a walk-in restaurant. “Virtual Kitchen Merchant Locations” means a Merchant owned or licensed virtual brand operated out of one or more Merchant or Eligible Franchisee operated and approved by PO3S for participation in the Program.

2.4. “Pickup Program” means the PO3S program through which a Customer places a Pickup Order through the PO3S Platform from a Merchant Location.

3.  RESPONSIBILITIES AND PROCEDURES.

3.1. PO3S Responsibilities. PO3S will: (i) display Merchant, Merchant Locations, and the menu of Merchant Products at each Merchant Location; (ii) accept Orders for Merchant Products through the PO3S Platform from Customers; (iii) forward each Order to the relevant Merchant Location; (iv) for Delivery Orders, make the Order opportunity available to Delivery Networks, so that the Delivery Person accepting the opportunity can pick up the applicable Merchant Product(s) from the applicable Merchant Location to deliver to the Customer, or, if applicable, for Pickup Orders, notify the Customer to pick up the Order; and (v) pay the Merchant as set forth in Section 4 below, for Dine-in Orders, notify the Merchant about the dine-in order and table associated with the order, 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 PO3S as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature). PO3S reserves the right to take into account the impact of a Merchant’s conduct on both the customer experience and the PO3S brand when determining the Merchant’s prominence and/or availability on the PO3S 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: (i) provide PO3S with Merchant’s menu, including the price of each item; (ii) monitor Merchant’s menu and store information on the PO3S Platform, promptly make updates via the Restaurant Order-Taking App to reflect the most up-to-date products, and other information or immediately notify PO3S of any errors or changes in writing (email is sufficient); (iii) accept and confirm Orders from PO3S in a prompt and timely manner; (iv) prepare Merchant Products for each Order for pickup by a Delivery Person, or the Customer, as applicable, at the designated time; (v) process Orders in the order in which they are received; (vi) notify PO3S of its days and hours of operation, including on holidays, and remain open for business on PO3S the same days and hours of operation as Merchant’s in-store business; notify PO3S of any changes to Merchant’s hours of operations on holidays; and notify PO3S if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation via App or Email; (vii) notify all Merchant Location staff members of the relationship with PO3S, and train staff members on receiving and fulfilling PO3S Orders as soon as practicable upon execution of this OYM Addendum and on an ongoing basis; (viii) use its standard business practices to prepare Merchant Products that are the subject of each Order and provide the same utensils, napkins, bags, and other materials that Merchant typically would provide in a standard take-out or delivery order; (ix) on an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to PO3S any inaccuracies; and (x) if PO3S 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. PO3S 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.

4.  FEES. PO3S shall receive a Commission Rate in exchange for PO3S promoting Merchants. The Commission Rate for Orders placed under the applicable PO3S program is set forth on the Rate Card. PO3S will remit the cost of Orders fulfilled by the Merchant bi-weekly in which the Orders were fulfilled on a consistent day of the payout week. The exact day of the payout week is subject to change with no less than 10 days’ notice to the Merchant by email or service notification. The amounts remitted will include (1) the pre-tax total of all Orders for the payout period plus (2) Collected Taxes (as defined below) unless the parties agree to an alternative arrangement in writing plus (3) Merchant Payout Tips after deducting 3.2% processing fee, less (4) the aggregate Commission Rate, agreed fees for marketing and promotional deals (if any), any error fees associated with Merchant’s incorrect preparation of Orders, and Order Equipment fees (if any) for such payout period. Merchants may have the opportunity to sign up to receive weekly if eligible. Merchant agrees PO3S may charge the Customer fees, including but not limited to delivery fees, service fees, surcharge fees, and Small Order Fees where applicable in PO3S’s sole discretion.

5.  TAXES. PO3S 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 PO3S Platform (“Collected Taxes”). In any jurisdiction where PO3S is required to remit Collected Taxes as a marketplace facilitator, PO3S 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 the Merchant will be responsible for remitting any such portion of Collected Taxes to the appropriate tax authorities. In all other jurisdictions, PO3S will send Collected Taxes to the Merchant, and the Merchant will be responsible for remitting the total amount of Collected Taxes to the appropriate tax authorities of those jurisdictions. For clarity, PO3S will be responsible for the collection and remittance of any value-added, goods and services, sales, use, or similar tax related to Customer fees, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, and Small Order Fee, that PO3S charges to the Customer.

6.  PAYMENT PROCESSING. Merchant acknowledges that PO3S uses a payment processor to collect Order amounts from Customers and remit payment to Merchant. In order to receive payment, the Merchant is required to provide any information required during the Term. PO3S reserves the right to change its payment processor at any time during the Term and the Merchant will provide PO3S with any information required to set up a payment account with any such alternate payment processor.

7.  ORDER EQUIPMENT. With respect to the PO3S Platform, Merchant need to have a mobile or tablet device that can download the Restaurant Order-Taking App that can be found in the App Store and Google Play and connected with a printer to start using the PO3S Product

8.  REFUNDS AND SUPPORT. In the event of a Customer complaint about his or her Order placed via PO3S, the Merchant 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 Orders.
9. DISPUTE. In the event of a Customer filing a dispute with his or her bank, PO3S will contact the Restaurant for evidence such as a receipt signature via email, and deduct the disputed amount plus a $20 dispute fee to the next payout. The disputed amount will be released in the next payout if the customer’s bank decides to release the fund, otherwise, PO3S will inform the Merchant if the customer’s bank releases the fund back to the customer.

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