Terms and condition
The following terms have the respective meanings given to them below:
"Affiliate" means an entity that owns or controls, is owned or controlled by or is or under common control or ownership of a party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.
"Agreement" means the Definitions and the Supplemental Terms.
"Aggregate Data" means aggregate, anonymized data related to Merchant's transactions in connection with the Goodie Bag Food Co Services.
"Applicable Law" shall mean all applicable laws, statutes, regulations and codes from time to time in force (including without limitation all applicable data protection and privacy laws).
"Brand Matter" means an event that, in Goodie Bag Food Co's reasonable judgement, causes it or its Affiliates to have concern for the reputation of its brand, including, but not limited to, matters related to the alleged violation of any Applicable Laws.
“Big Goodie Bag” means a "Goodie Bag" containing food sufficient for a full meal.
"Confidential Information" means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (the "Discloser") to the other (the "Recipient"), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes, without limitation, transactional, operational, performance and other data or information (including, Goodie Bag Food Co Data, Customer’s information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational) and/or that is related to the sale of Merchant’s Items to Customers through the Goodie Bag Food Co App and the terms and conditions of this Agreement. Confidential Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient.
"Criteria" means any quality, portion, size, ingredient, allergen, origin or nutritional information or rules and regulations that govern the adequacy of Items.
"Customer" means a customer of Goodie Bag Food Co.
"Customer Feedback" means information provided by a Customer in response to prompting by the Goodie Bag Food Co App, including rating of Item(s) and comments or feedback related to the Customer’s experience with Merchant and the relevant Item(s) on the Goodie Bag Food Co App.
"Dispute" means any dispute, action, claim, controversy or cause of action among the parties arising out of or in connection with the Agreement or any term condition or provision hereof, including without limitation any of the same relating to the existence, validity, interpretation, construction, performance, enforcement and termination of the Agreement.
“Discounted Price” means the price of an Item set by Goodie Bag Food Co.
"Effective Date" means the date specified in the terms and conditions.
"Fees" means any applicable fees collected by Goodie Bag Food Co from the Discount Price, including the Service Fee, Transaction Fee, and the Damage Fee.
"Feedback" means information provided by Merchant to Goodie Bag Food Co including feedback, suggestions, comments, ideas, or other concepts relating to Goodie Bag Food Co's products and services. Have we integrated this into the PWA?
"Force Majeure Event" means occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage.
"Goodie Bag" means any combination of surplus food and/or beverage transferred by Merchant to Customer via the Goodie Bag Food Co App. "Meal" is a subset of "Item," and any terms and conditions related to "Items" also apply to "Meals." "Marketplace Meal," are subsets of "Meal."
“Goodie Bag Description” means an accurate and honest description of the potential Items that may be sold within a Big or Small Goodie Bag on the Goodie Bag Food Co App.
"Goodie Bag Food Co Competitor" means any person engaged in the lead-generation, demand prediction, payment processing or other related services for the delivery of food and beverages who, in the reasonable determination of Goodie Bag Food Co, is deemed to be a competitor of the Goodie Bag Food Co App.
"Goodie Bag Food Co Data" means all data related to the access and use of the Goodie Bag Food Co Services and Goodie Bag Food Co Tools, including but not limited to all Personal Data related to Merchant and Customers.
"Goodie Bag Food Co App" means a website, application or other technology interface made available by Goodie Bag Food Co and/or its Affiliates to Customers, on a royalty-free basis, to purchase Items and, if applicable, delivery services from Merchant.
"Goodie Bag Food Co Marketing Materials" means video, still images and/or other materials created by Goodie Bag Food Co (or a party designated by Goodie Bag Food Co acting on Goodie Bag Food Co's behalf) for marketing and other efforts related to the Goodie Bag Food Co App.
"Goodie Bag Food Co Services" means certain services made available by Goodie Bag Food Co and/or its Affiliates to Merchant to facilitate the marketing, sale and provision Items by Merchant to Customers, including on-demand lead generation, payment processing, marketing, operational and other support.
"Goodie Bag Food Co Tools" means a website, application and/or other technology interface,made available by Goodie Bag Food Co and/or its Affiliates to Merchant, on a royalty-free basis, in connection with the Goodie Bag Food Co Services.
"Indemnified Party" means the party receiving indemnification from the Indemnifying Party. "Indemnifying Party" means the party providing indemnification to the Indemnified Party.
"Item" means any surplus food, beverage, or any other product made available by Merchant to Customer via the Goodie Bag Food Co App.
“Item Listing” means any surplus food that is listed on the Goodie Bag Food Co App as a “Goodie Bag” available to Customers for purchase.
"Item Revenue" means the Discounted price (plus VAT and any other fees collected on Merchant’s behalf) less the retained Fees (including the Service Fee, Transaction Fee, and/or Damage Fee, where applicable), and any refunds given to the Customers on behalf of Merchant.
"Losses" means any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees).
"Marketplace Discount" means a discount of the Marketplace Service Fee, provided by Goodie Bag Food Co to Merchant.
"Marketplace Item" means an Item transferred by Merchant to Customer via the Marketplace Method.
"Marketplace Item Payment" means the Discounted Price of the Item(s) sold by Merchant via the Goodie Bag Food Co App (including any VAT or other sales tax).
"Marketplace Item Revenue" means the total Marketplace Item Payment (including any VAT or other sales tax collected on Merchant’s behalf) earned by Merchant, less (1) the Marketplace Service Fee (modified to reflect the Marketplace Discount, if any), (2) the Transaction Fee of $0.50 per purchase, and (3) any refunds given on behalf of Merchant to Customers.
"Marketplace Meal" means any combination of surplus food and/or beverage transferred by Merchant to Customer via the Marketplace Method. "Marketplace Meal" is a subset of "Marketplace Item".
"Marks" means the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party or its Affiliates.
“Merchant Profile” means the page that displays the information about a specific Merchant on the Goodie Bag Food Co App and Goodie Bag Food Co Tools.
"Meal Voucher Order" means an order where Goodie Bag Food Coallows a Customer to pay for a given Meal provided by Merchant, and some or all associated fees and charges resulting from that transaction, with a meal voucher.
"Merchant" means the party who entered into the Agreement with Goodie Bag Food Co.
"Merchant Marketing Materials" means videos, still images or other materials provided by Merchant to Goodie Bag Food Co for use in connection with the display of Merchant’s Items on the Goodie Bag Food Co App.
"Method" means a method by which Items requested by a Customer through the Goodie Bag Food Co App may be transferred from Merchant to such Customer.
"Notice Period" means a period of reasonable notice, as allowed by Applicable Law, after which amended Supplemental Terms will take effect.
"Offer" means a short-term promotional offer that is created and fulfilled by Merchant that is intended to stimulate Customer demand through the Goodie Bag Food Co App (e.g., discounts).
"Offer Materials" means, with respect to an Offer, all suitable material to be provided by Merchant including artwork of Merchant’s trademarks and trade names.
"Offer Tools" means proprietary, automated tools provided by Goodie Bag Food Co to Merchant which allow Merchant to create and provide Offers to Customers.
"Personal Data" means any information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Pickup Time” means the specific time set by the merchant on the Goodie Bag Food Co App for a Customer to pick up the Item
"Representatives" means with respect to a party, its or its Affiliates’ respective officers, directors, employees or agents.
"Required Documentation" means all documentation required by Goodie Bag Food Co from Merchant, including but not limited to business license, identification, tax identification, information regarding VAT status, banking documentation, and all Invoice Details.
"Discounted Price" means the original listed price determined by Goodie Bag Food Co for each Item to be made available for sale via the Goodie Bag Food Co App prior to any discounts or promotions.
"Service Fee" means a Fee collected by Goodie Bag Food Co from the Discounted Price paid by the Customer in consideration for the use of the Goodie Bag Food Co Services. Goodie Bag Food Co collects the Service Fee of $1.50 on every Item sold.
“Small Goodie Bag” means a Goodie Bag Food Co containing a smaller portion of food that does not suffice a full meal..
"Substandard Item" means any Item that fails to meet the Criteria or standards required by Applicable Laws.
“Surplus Food” means extra, unsold food (ingredients, pre-made meals, etc.) a marchant possesses.
"Supplemental Terms" means the Definitions, the General Supplemental Terms, the Specific Supplemental Terms and any other terms applicable to the use of the Goodie Bag Food Co Services, Goodie Bag Food Co Tools, and/or Goodie Bag Food Co App and shared with the Merchant.
"Term" means the Initial Term together with all Renewal Terms.
“Transaction Fee” means the $0.50 charge applied to a customer purchase on the Goodie Bag Food Co App
“Payment Processor” means the third party responsible for processing payments on the Goodie Bag Food Co App. Specifically referring to the company Stripe, Inc.
“Transaction Fee” means the fee incurred by Goodie Bag Food Co from their Payment Processor for every transaction facilitated by the Goodie Bag Food Co App.
"VAT" means any VAT, GST and/or similar sales taxes.
Goodie Bag Food Co may amend the Supplemental Terms from time to time, as allowed by Applicable Law, upon giving a reasonable Notice Period and by Goodie Bag Food Co posting such amended Supplemental Terms on this website or Goodie Bag Food Co otherwise making such amended Supplemental Terms available to Merchant. However, the Notice Period will not apply where an amendment is required by law or relates to the expansion or introduction of new services or functionalities to the existing Goodie Bag Food Co Services and/or Goodie Bag Food Co Tools or any other change which is effectively favorable to Merchant and does not reduce the scope of its rights or increase its responsibilities. Merchant’s continued access to or use of the Goodie Bag Food Co Services and/or Goodie Bag Food Co Tools after such amended Supplemental Terms become effective constitutes Merchant’s consent to be bound by the amended Supplemental Terms.
Goodie Bag Food Co Services.
General. Goodie Bag Food Co will make the applicable Goodie Bag Food Co Services available to Merchant including, but not limited to, on-demand lead generation, payment processing, marketing, operational and other support. Neither Goodie Bag Food Co or Merchant provide its Customers with delivery services. The Goodie Bag Food Co Services are solely for use by Merchant, subject to the terms of this Agreement. The Goodie Bag Food Co Services are to be used by Merchants free of charge (subject to change) and have the ability to stop using Goodie Bag Food Co Services at any point in time with a given Notice Period.
Appointment of Limited Payment Collection Agent.
Merchant hereby appoints Goodie Bag Food Co as Merchant’s limited payment collection agent solely for the purpose of: (A) accepting payment of the Discounted Price of Items (plus any applicable VAT and other fees collected on Merchant’s behalf) sold by Merchant via the Goodie Bag Food Co App, via the payment processing functionality facilitated by the Goodie Bag Food Co Tools, and (B) transferring to Merchant the Discounted Price (plus VAT and any other fees collected on Merchant’s behalf) less the retained Fees (including the Service Fee, Transaction Fee, and/or Damage Fee, where applicable), and any refunds given to the Customers on behalf of Merchant ("Item Revenue");
Merchant agrees that payment collected by Goodie Bag Food Co on Merchant’s behalf will be considered the same as payment made directly to Merchant.
If reasonable, Goodie Bag Food Co may adjust the transfer of Item Revenue collected on Merchant’s behalf for reasons including, but not limited to, failure to fulfill the provision of an Item as ordered. Merchant may dispute any such adjustments through the Goodie Bag Food Co Tools within fourteen (14) calendar days of Merchant being notified of such adjustment. Goodie Bag Food Co reserves the right to, and Merchant authorizes Goodie Bag Food Co to collect the amount of such adjustments via a deduction from the Item Revenue collected on Merchant’s behalf, or by debiting Merchant’s payment method on record, or otherwise seeking reimbursement from Merchant.
In exceptional circumstances only (as determined by Goodie Bag Food Co in its sole discretion, acting reasonably), Goodie Bag Food Co reserves the right to temporarily or permanently cancel or suspend a payment to Merchant. The foregoing exceptional circumstances shall include, but not be limited to, any legal or regulatory risk or potential breach of Applicable Laws associated with the transfer of such payment to Merchant, the actual or expected initiation of insolvency or bankruptcy proceedings against Merchant and any failure by Merchant to provide the Required Documentation in accordance with clause 1(j) of these General Supplemental Terms.
Goodie Bag Food Co may, from time to time, request information from Merchant to confirm Merchant’s identity as may be necessary under any applicable compliance obligations before transferring any payments to Merchant and may refuse to process payments owed to Merchant in accordance with clause 1(b)(vi) of these General Supplemental Terms if there exists a legal or regulatory risk or potential breach of law or regulation associated with such transfer to Merchant.
Merchant agrees to allow Goodie Bag Food Co to set the prices of both the Big Goodie Bag and Small Goodie Bags that will be listed on the Goodie Bag Food Co App. The set prices are a Discounted Price of the standard retail price of the original items sold. The prices set will be fair market prices and can be disputed by the merchant by filing a complaint directly to Goodie Bag Food Co through the Goodie Bag Food Co Tools.
Meal Vouchers. Goodie Bag Food Co and/or its Affiliates may allow Customers to pay for a given Meal provided by Merchant and some or all associated fees and charges resulting from that transaction with a meal voucher (a "Meal Voucher Order"). In certain circumstances, Goodie Bag Food Co will not act as limited payment collection c. agent for Meal Voucher Orders and Merchant will receive direct settlement of Item Revenue from a third party meal voucher issuer.
Goodie Bag Food Co Tools. Goodie Bag Food Co may make available certain Goodie Bag Food Co Tools to Merchant, and Merchant may access and use those Goodie Bag Food Co Tools solely in connection with Merchant’s use of the Goodie Bag Food Co Services. The Goodie Bag Food Co Tools, including all intellectual property rights therein, are and shall remain the property of Goodie Bag Food Co, its Affiliates or their respective licensors. Neither this Agreement nor Merchant’s use of the Goodie Bag Food Co Tools or Goodie Bag Food Co Data conveys or grants to Merchant any rights in or related to the Goodie Bag Food Co Tools or Goodie Bag Food Co Data, except for the limited license granted above.
Goodie Bag Food Co App. Merchant acknowledges and agrees that once it has accepted a request for an order of Items, the Goodie Bag Food Co App may provide certain information about Merchant to the Customer, including Merchant’s name and contact number. As between Merchant and Goodie Bag Food Co, Goodie Bag Food Co will retain sole and absolute control over the Goodie Bag Food Co App (and all elements of the user experience and user interface relating to the Goodie Bag Food Co App), including, without limitation, with respect to:
the personalisation of the Goodie Bag Food Co App for Customers;
the prioritization and display of options available to Customers;
the search functionality and results provided to Customers;
and adding, removing or otherwise modifying any feature or functionality made available through the Goodie Bag Food Co App to optimize reliability or efficiency on the Goodie Bag Food Co App.
No Service Guarantee. Goodie Bag Food Co and its Affiliates do not guarantee the availability or uptime of the Goodie Bag Food Co Tools or Goodie Bag Food Co App. Merchant acknowledges and agrees that the Goodie Bag Food Co Tools and Goodie Bag Food Co App may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Goodie Bag Food Co Tools and Goodie Bag Food Co App may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Goodie Bag Food Coand its Affiliates are not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
Disclaimer of Warranties. This clause applies only to the maximum extent permitted by Applicable Law, and does not (and is not intended to) override any rights that Merchant has pursuant to Applicable Law. Goodie Bag Food Co and its Affiliates provide, and Merchant accepts, the Goodie Bag Food Co Tools and Goodie Bag Food Co App on an "as is" and "as available" basis. Goodie Bag Food Co and its Affiliates do not represent, warrant or guarantee that its access to or use of the Goodie Bag Food Co Tools or Goodie Bag Food Co App: (i) will be uninterrupted or error free; or (ii) will result in any requests for orders of Items. Goodie Bag Food Co and its Affiliates make no representations, warranties or guarantees as to the actions or inactions of Customers who may request or receive Items, and Goodie Bag Food Co and its Affiliates do not screen or otherwise evaluate Customers. By using the Goodie Bag Food Co Tools, Merchant acknowledges and agrees that Merchant may be introduced to a third party that may pose harm or risk to Merchant or other third parties. Merchant is advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Goodie Bag Food Co Services and Goodie Bag Food Co Tools. Goodie Bag Food Co does not represent, warrant or guarantee the safety of any Items. Notwithstanding Goodie Bag Food Co's appointment as limited payment collection agent of Merchant for the purpose of accepting payment from Customers on its behalf, Goodie Bag Food Co and its Affiliates expressly disclaim all liability for any act or omission of Merchant, any Customer, or other third party.
Complaints. In connection with the provision of Goodie Bag Food Co Services to Merchant, Goodie Bag Food Co, on behalf of Merchant, may respond to complaints by Customers about Items sold by Merchant via the Goodie Bag Food Co App or Goodie Bag Food Co Tools. Customers may also pursue the same legal action against a Merchant as a regular Customer could.
Suspension of Goodie Bag Food Co Services. Goodie Bag Food Co, at its sole discretion, reserves the right to temporarily or permanently suspend, in whole or in part, Merchant’s access to the Goodie Bag Food Co Services and Goodie Bag Food Co Tools if:
Merchant fails to provide Required Documentation in a timely manner;
Merchant’s account is in arrears;
Merchant is, or Goodie Bag Food Co reasonably believes Merchant is, in breach of this Agreement.
Goodie Bag Food Co Data Collection. Goodie Bag Food Co reserves the right to collect data from the Merchant while using the Goodie Bag Food Co Services. The Data that will be collected from the merchant include: revenue, Goodie Bag Food Cos sold, outstanding bags, partner profile information (email, password, banking account and routing number) and listing frequency. The data collected will be maintained in line with the Data Policy Terms below.
Merchant’s Obligations.
Upon the Merchant creating a profile on the Goodie Bag Food Co App, Merchant accepts these terms and in doing so this agreement is effective immediately. The agreement shall last indefinitely until it is otherwise terminated by either party with a given Notice Period.
Availability of Items. Merchant will make Items available for purchase through the Goodie Bag Food Co App during its normal business hours.
Merchant will prepare, handle and store all Items in accordance with Applicable Laws, which shall include, without limitation, all laws, rules and regulations governing time or temperature controls required for food hygiene and safety.
Merchant will determine any Criteria that apply to Items and Merchant is responsible for ensuring that the Items meet the applicable Criteria as displayed to Customers in the Goodie Bag Food Co App. Goodie Bag Food Co, at its sole discretion, reserves the right to remove from the Goodie Bag Food Co App any Item for sale by Merchant deemed unsuitable for sale on the Goodie Bag Food Co App.
Merchant is allowed to list or sell food on the Goodie Bag Food Co App that otherwise might not be up to the Merchant’s typical in-store standards. The Item may be slightly burnt, deformed, mishandled, or not up to the Merchant’s presentation standard. However, these types of Items still must be in accordance with Applicable Laws and Criteria.
Merchant acknowledges that they are the sole possessor, creator, producer, handler, of all Items they sell on the Goodie Bag Food Co App. In no condition shall Items from a third party be sold on the Goodie Bag Food Co App from a Merchant. Doing so will result in suspension from the Goodie Bag Food Co Services.
Merchant is not required to list an Item at any given time. If Surplus Food shall be available, the Merchant acknowledges that they can store the Surplus Food to be repurposed, sold, relisted, or disposed of another time.
Item Inventory.
Merchant acknowledges and agrees that Goodie Bag Food Co does not take title to any Item. Merchant remains responsible for the preparation and transfer of Items and shall maintain possession, control and care of the Items at all times in full compliance with Applicable Laws.
Merchant shall remain responsible for complying with all health and safety laws and regulations applicable in relation to all Items, up to and including the time of pickup of the Items to a Customer.
Merchant is not responsible for costs related to reimbursement to Customers in the event any such Customer(s) request a refund for Substandard Items or otherwise unsatisfactory Item(s) (including, without limitation, any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable. Goodie Bag Food Co reserves the right to refund customers the full Discount Price in the event(s) described above.
Item Listing. Merchant acknowledges and agrees to list Surplus Food available on the Goodie Bag Food Co App as either a Big Goodie Bag or Small Goodie Bag. Merchant is responsible for setting a Pickup Time in which they are able to prepare and store the "Goodie Bag" until the customer arrives to pickup the Item. The Merchant will use good judgement and is responsible for fulfilling all “Goodie Bags” listed on the Goodie Bag Food Co App. Failure to fulfill listed “Goodie Bags” on the Goodie Bag Food Co App can result in restriction of access or suspension to the Goode Bag App. Merchant reserves the right to cancel an Item before it is Reserved by a Customer. Merchants must not cancel a purchased Item. Doing so can result in restriction from the Goodie Bag Food Co App.
Goodie Bag Food Co Description. Merchant agrees to provide an honest description of the potential Items a Customer may receive when purchasing a "Goodie Bag". This will be displayed on the Merchant Profile on the Goodie Bag Food Co App and Goodie Bag Food Co Tools. Merchant acknowledges providing a false description can result in restriction or suspension from the Goodie Bag Food Co App. The "Goodie Bag" description is subject to change with reasonable cause such as new potential items to go in bags or removal of other potential items.
Documentation. Merchant will provide all documentation required by Goodie Bag Food Co (including but not limited to business license, identification, tax identification, information regarding VAT status, banking documentation, and all Invoice Details) ("Required Documentation"). Merchant is solely responsible for providing Goodie Bag Food Co with, and maintaining, accurate bank account information.
Restrictions. Merchant will not allow any third party to: (i) use the Goodie Bag Food Co Services, the Goodie Bag Food Co Tools, or any other transactional, operational, performance or other data or information that is related to the sale of the Items to Customers through the Goodie Bag Food Co App; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Goodie Bag Food Co Services or Goodie Bag Food Co Tools (except to the extent that Applicable Law prohibits reverse engineering restrictions); or (iii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the Goodie Bag Food Co Services or Goodie Bag Food Co Tools (except as otherwise authorized by Goodie Bag Food Co).
Tax. Merchant is responsible for ensuring the accuracy of its own tax filings.
Ratings.
Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the Goodie Bag Food Co App to provide a rating of such Item(s) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Goodie Bag Food Co and the relevant Item(s) on the Goodie Bag Food Co App. Goodie Bag Food Co reserves the right to use, share, and display Customer Feedback in any manner in connection with the business of Goodie Bag Food Co without attribution to or approval of Merchant. Goodie Bag Food Co reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy laws and regulations or other Applicable Laws, or violate Goodie Bag Food Co's content policies.
Reporting.
Goodie Bag Food Co will provide Merchant with information regarding the number of Items sold by Merchant to its Customers. Goodie Bag Food Co will also provide information to Merchant regarding any refunds given to its Customers by Goodie Bag Food Co on Merchant’s behalf, including the date of the transaction, the Item(s) refunded, the reason for the refund and any other information Goodie Bag Food Co is permitted to provide under applicable privacy laws and regulations.
Fees, Discounted Price of Items and Taxes.
Fees and Taxes.
Fees. In consideration for the use of the Goodie Bag Food Co Services, Goodie Bag Food Co will collect a "Service Fee" and “Transaction Fee” (and any other applicable fees collected by Goodie Bag Food Co from the Discounted Price, the "Fees") from every "Goodie Bag" sold. These fees will be taken from the Discounted Price paid by the Customer. Goodie Bag Food Co will collect $1.50 for the Service Fee on every "Goodie Bag" purchased by a Customer. An additional $0.50 Transaction Fee will be collected for every "Goodie Bag" sold. Fees are subject to change with a given Notice Period.
Payment Terms. All Fees under this Agreement will be paid in United States Dollars. Goodie Bag Food Co will deduct any Fees from the payment Goodie Bag Food Co collects from Customer and Merchant’s behalf, as detailed below.
Costs and Expenses. Except as may be expressly set forth in this Agreement, each party will be responsible for its expenses and costs in connection with this Agreement.
Taxes on Fees.
All Fees payable pursuant to this Agreement shall be deemed to be exclusive of Value Added Tax 1. (VAT). The term "VAT" includes any VAT, GST and/or similar sales taxes.
If VAT is chargeable on any Fees, Goodie Bag Food Co may collect from the Discounted Price an amount equal to the amount of the VAT in addition to and at the same time as payment of the Fees.
Discounted Price of Items and Taxes.
Merchant is the "retailer" or "seller" of all Items. Merchant is not responsible for determining and setting the original listed price, prior to any discounts or promotions, for each Item to be made available for sale via the Goodie Bag Food Co App (the "Discounted Price"). The Discounted Price for each Item will include VAT. To the extent that applicable VAT rate is not determined by Merchant, Merchant expressly authorizes Goodie Bag Food Co to make such determination on its behalf and Merchant hereby acknowledges and agrees that Goodie Bag Food Co will have no liability for the accuracy of any such determination. Merchant expressly authorizes Goodie Bag Food Co, at Merchant’s direction, to collect such VAT on Merchant’s behalf.
Merchant is solely responsible for the remittance of all applicable VAT, sellers use, transaction privilege, privilege, general excise, gross receipts, meals tax and similar transaction taxes in connection with the sale of Items.
Invoices.
For each order completed using the Goodie Bag Food Co App, Goodie Bag Food Co may issue an invoice and/or receipt for Items to Customers on Merchant's behalf provided that Merchant has completed the required Invoice Details. Merchant may dispute invoices and/or receipts issued by Goodie Bag Food Co on Merchant's behalf within a period not exceeding three (3) days from the issuance date of the invoice and/or receipt. Failing this, Merchant is deemed to have validated said invoice and/or receipt.
Method Restrictions and Limitations.
Temporary Usage Restriction. Goodie Bag Food Co, at its discretion, reserves the right to restrict or otherwise limit Merchant’s access to the Goodie Bag Food Co App for a period of time for reasons including, without limitation, to prevent or otherwise limit unfulfilled orders.
Transfer Restrictions. The following restricted items may not be transferred via the Goodie Bag Food Co App: people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, or any items that Merchant does not have permission to transfer.
Marks.
Subject to this Agreement, each party hereby grants to the other party (and, in the case of Goodie Bag Food Co, to its Affiliates) a limited, nonexclusive and non-transferable license during the Term to use such party’s respective Marks, on a royalty free basis, in connection with the activities related to this Agreement. This license includes the right to reproduce, adapt and represent (in connection with all or part of the activities related to this Agreement) the Marks for the entire world, using all means and media, and without any restriction of any kind as regards exploitation methods, number of prints, dissemination or utilization. All uses of a party’s Marks (owned or licensed, as applicable) by the other party will be in the form and format specified or approved by the party that owns (or is a licensee of, as applicable) such Marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party. Any use or display of Merchant’s Marks by Goodie Bag Food Co in connection with making Items available through the Goodie Bag Food Co App in the ordinary course of business will not require any such prior, express, written consent. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the party that owns (or is a licensee of, as applicable) such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Merchant agrees that it will not try to register or otherwise use and/or claim ownership in any of the Goodie Bag Food Co Marks, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.
Marketing and Promotional Activities.
Marketing. Goodie Bag Food Co may showcase the availability of Merchant’s Items via the Goodie Bag Food Co App through various promotional activities including, without limitation, social media channels, websites, advertisements, blogs or other media available now or hereinafter created. Goodie Bag Food Co (or a party designated by Goodie Bag Food Co acting on Goodie Bag Food Co's behalf) may create video, still images and/or other materials for marketing and other efforts related to the Goodie Bag Food Co App ("Goodie Bag Food Co Marketing Materials"). Merchant agrees that Goodie Bag Food Co Marketing Materials (including, without limitation, all intellectual property rights therein) are and will remain the sole and exclusive property of Goodie Bag Food Co. Additionally, Merchant may choose to provide videos, still images and/or other materials to Goodie Bag Food Co ("Merchant Marketing Materials") for use in connection with the display of Merchant’s Items on the Goodie Bag Food Co App, and Merchant hereby grants Goodie Bag Food Co a non-exclusive, royalty free right to use, reproduce, adapt, represent, and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the Goodie Bag Food Co Services, for the entire world, during the Term, using all means and media, and without any restriction other than as required by Applicable Law as regards exploitation methods, number of prints, dissemination or utilization.
No Additional Amounts. Merchant acknowledges and agrees that, through advertising and marketing, Goodie Bag Food Co may seek to attract new merchants to Goodie Bag Food Co and to increase existing users of the Goodie Bag Food Co Services and Goodie Bag Food Co App. Merchant acknowledges and agrees such advertising or marketing does not entitle Merchant to any additional monetary amounts beyond the amounts expressly stated in this Agreement.
Merchant Promotional Offers. Goodie Bag Food Co may authorize Merchant to use certain automated tools that allow Merchant to provide promotional Offers to Customers through the Goodie Bag Food Co App in accordance with the terms of this Agreement. Merchant agrees that it is solely responsible for fulfilling and, subject to technical and functional limitations of the automated tools, defining the Offers provided by Merchant to its Customers.
Goodie Bag Food Co Promotional Offers. Subject to this Agreement and any other guidelines or eligibility criteria for Offers that Goodie Bag Food Co may make available from time to time, Goodie Bag Food Co is solely responsible for defining each Offer (within the scope of functionality provided by the Offer Tools), including, without limitation, the start date, end date, and budget for each Offer. Merchant is responsible for providing to Goodie Bag Food Co Offer Materials in a format and within deadlines specified by Goodie Bag Food Co for such to be reproduced for the provision of the Offer to Customers.
Enhanced Promotional Placements. Subject to Goodie Bag Food Co App functionality, Goodie Bag Food Co may provide enhanced promotional placement or other visual treatment for the Offers through the start and end date identified by Merchant. Merchant acknowledges that the time period of enhanced promotional placement for an Offer (if applicable) may vary due to a number of factors including Merchant’s budget, the start and end date for an Offer, and other Goodie Bag Food Co App functionality.
Merchant’s Responsibilities. Merchant will honor and fulfill the terms of the Offer. Merchant represents and warrants that Merchant will run all Offers in accordance with all Applicable Laws which apply to the Offers. Merchant represents and warrants that Merchant possesses all necessary authority, rights, licenses, consents and permissions to run the Offer (including, without limitation, the rights to any Offer Materials provided to Goodie Bag Food Co).
Service Fees. For Items where an Offer has been applied as a discount to the Discounted Price of the Item, Goodie Bag Food Co will still collect a Service Fee and Transaction Fee.
Modification, Suspension, Discontinuation. Goodie Bag Food Co reserves the right, at any time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the Offer Tools or the ability for Merchant to provide Offers. Merchant agrees that neither Goodie Bag Food Co nor any of its Affiliates shall be liable to Merchant (or to any third party) for the Offer or the Offer Tools, including for any modification, suspension or discontinuance of the Offer or the Offer Tools or providing Merchant with the ability to provide Offers.
Publicity. Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.
Confidential Information; Personal Data; Feedback.
Confidentiality. Each Recipient agrees that it will not disclose the Discloser’s Confidential Information to any third parties other than Representatives, or use it in any way other than as necessary to perform this Agreement. Each Recipient will ensure that Confidential Information will only be made available to those of its Representatives who have a need to know such Confidential Information and who, prior to any disclosure of such Confidential Information, are bound by written obligations of confidentiality with respect to such Confidential Information that are no less stringent than those set forth in this Agreement. Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes Goodie Bag Food Co to disclose the terms of this Agreement to Merchant’s franchisees in connection with executing contracts that reference this Agreement with such franchisees) and (ii) a Recipient is required to disclose certain Confidential Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose (to the extent legally permissible) and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form. Neither party makes any representation or warranty that Confidential Information is complete or accurate; all Confidential Information is provided "as is".
Privacy. Merchant agrees to use Personal Data provided to Merchant by Goodie Bag Food Co solely for the purpose of providing Items to Customers under this Agreement. Merchant agrees to use Personal Data provided to Merchant by Goodie Bag Food Co solely by using the Goodie Bag Food Co Tools provided by Goodie Bag Food Co and shall not copy, store, retain, remove from the Goodie Bag Food Co Tools or otherwise process the Personal Data. In respect of any Personal Data transferred by Goodie Bag Food Co to Merchant, the parties agree that they shall enter into the Data Processing Agreement (controller to controller) in substantially the form attached at Addendum A, included as part of the Aggregator Method Specific Supplemental Terms.
Aggregate Data. Merchant acknowledges that Goodie Bag Food Co may use aggregate, anonymized data related to Merchant’s transactions in connection with the Goodie Bag Food Co Services ("Aggregate Data"). If Merchant allows a third party to provide technology services to Merchant in connection with Merchant’s obligations under this Agreement, then Goodie Bag Food Co may share Aggregate Data with such third party to enable the provision of Goodie Bag Food Co Services to Merchant.
Third Party Disclosure. Merchant acknowledges that Goodie Bag Food Co may share Merchant contact information (including name, address, email, and phone number) with third parties necessary to Merchant's onboarding on the Goodie Bag Food Co App, including logistics and/or delivery service providers (for the delivery of Devices or other equipment), as well as photography services (for any photography which may be provided by a third-party provider on behalf of Goodie Bag Food Co).
Passwords. Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Goodie Bag Food Co Tools and related Goodie Bag Food Co Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.
Data Identification Restriction. Without limiting any other provision of this Agreement, including any provision in this clause, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including, without limitation, any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including, without limitation, any Personal Data, for the purpose of re-identification, targeted marketing, analytics or any other similar purpose.
Feedback. Merchant may, but is not obligated to, provide or otherwise make available to Goodie Bag Food Co certain feedback, suggestions, comments, ideas, or other concepts relating to Goodie Bag Food Co's products and services ("Feedback"). However, to the extent that Merchant provides or otherwise makes available Feedback to Goodie Bag Food Co, Merchant hereby grants to Goodie Bag Food Co a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use, reproduce, adapt, represent and otherwise exploit such Feedback, during the Term, using all means and media, and without any restriction of any kind with regard to exploitation methods, number of prints, dissemination or utilization.
Indemnification.
Each party (the "Indemnifying Party") will indemnify, defend and hold harmless the other party, its Affiliates and their respective directors, officers, employees and agents (the "Indemnified Party") from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, "Losses") with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents (in Merchant’s case excluding Goodie Bag Food Co to the extent they are Merchant’s agents) in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s representations, warranties or covenants in this Agreement; and (iii) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party.
Merchant will indemnify, defend and hold harmless the Goodie Bag Food Co Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, (B) Merchant’s failure to determine the applicable VAT and other fees charged; (C) Merchant’s failure to apply correct VAT rates, including those rates adjusted by Goodie Bag Food Co on Merchant’s behalf; (D) VAT, other fees, penalties, interest and other costs related to Merchant’s obligations; (E) Merchant copying, storing, retaining, removing from the Goodie Bag Food Co Tools or otherwise processing the Personal Data, except as permitted by clause 11(b) of these General Supplemental Terms; (F) any third party claim for actual or alleged infringement of a third party’s intellectual property or other proprietary rights arising out of or in connection with any Offer run by Merchant and use of Offer Materials; and/or (G) any third party claim arising out of or in connection with the manufacture, production, distribution, handling, advertising, consumption or use of, or otherwise relating to, any Offer run by Merchant, whether or not any claim arises during the Term of the Agreement, except in the case of each of (A)-(E) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of Goodie Bag Food Co or its employees or agents. With respect to the indemnities in (F) and (G) above, approval by an Goodie Bag Food Co Party of any Offer or use of any Offer Materials shall not affect this right of indemnification.
Each Indemnified Party will provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.
Governing Law and Dispute Resolution.
Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the United States of America without regard to its conflict of laws provisions.
Dispute Resolution. In the event of any Dispute, the parties shall first endeavor an amicable settlement by good faith consultation and negotiation. If the dispute remains unresolved, the party shall resolve the dispute throught the issue form located on the Goodie Bag Food Co App and/or Tools. Goodie Bag Food Co will directly take action to resolve the dispute with appropriate solutions.
General
Waiver. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.
Severability. If any provision of the Agreement is held to be illegal, invalid or unenforceable, in whole or in part, such provision or part thereof shall to that extent be deemed not to form part of the Agreement but the legality, validity and enforceability of the remainder of the Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of the Agreement.
Force Majeure Event. Any delay in or failure by either party in the performance of this Agreement shall be excused if and to the extent such delay or failure is caused by a Force Majeure Event. The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under the Agreement.
Assignment. Merchant may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of Goodie Bag Food Co. Goodie Bag Food Co may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement without consent or notification. Goodie Bag Food Co shall be expressly discharged from all obligations and responsibilities arising after the assignment or transfer. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns.
Relationship between the Parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment or worker relationship (including from a labour law, tax law or social security law perspective), between Goodie Bag Food Co (and/or its Affiliates) and Merchant or Goodie Bag Food Co (and/or its Affiliates); and (b) except as specified in this Agreement, no joint venture, partnership, or agency relationship exists between Goodie Bag Food Co (and/or Goodie Bag Food Co's Affiliates) and Merchant. No party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party shall be solely responsible for its employees and contractors used in connection with this Agreement. Except as otherwise expressly provided herein with respect to Goodie Bag Food Co acting as the limited payment collection agent solely for the purpose of collecting payment from Customers on behalf of Merchant, the relationship between the parties under this Agreement is solely that of independent contractors.
Entire Agreement. This Agreement contains the full and complete understanding and agreement between the parties and supersedes all prior and contemporary understandings and agreements, whether oral or written. In this Agreement, the words "including" and "include" mean "including, but not limited to."
Third Party Beneficiaries. Merchant acknowledges that there are no third party beneficiaries to this Agreement. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims.
Liability. Nothing herein limits or excludes (nor is intended to limit or exclude) any statutory rights that Merchant or Goodie Bag Food Co may have under Applicable Laws that cannot be lawfully limited or excluded.
Payment Processing Errors. Goodie Bag Food Co reserves the right, in its sole discretion, to seek reimbursement from Merchant if Goodie Bag Food Co discovers payment processing errors. Goodie Bag Food Co may deduct from Merchant's Item Revenue, debit Merchant's payment method on file, or seek reimbursement from Merchant by any other lawful means to correct any errors. Merchant authorizes Goodie Bag Food Co to use any or all of the above methods to seek reimbursement.
The following Specific Supplemental Terms govern the use of the Marketplace Method and the general availability of Items via the Goodie Bag Food Co App reserved for Customers on behalf of Merchant ("Marketplace Items"). All undefined, capitalized terms will have the meaning set forth in the Definitions or the General Supplemental Terms.
Marketplace Items. Upon Merchant agreeing to the Definitions, General Supplemental Terms and Specific Supplemental Terms governing the Marketplace Method, and contingent upon completion of any additional verification steps, the Goodie Bag Food Co Tools will be made available to Merchant. The Goodie Bag Food Co Services in connection with the Marketplace Method include, without limitation: (a) providing on-demand lead generation, payment processing, marketing, onboarding, operational and other support services in connection with the sale of Marketplace Items by Merchant via the Goodie Bag Food Co App.
Payment.
Marketplace Service Fee. In consideration for the Goodie Bag Food Co Services in connection with the Marketplace Method, Goodie Bag Food Co will charge Customer Fees for each Marketplace Item sold by Merchant via the Goodie Bag Food Co App.
Collections. Merchant acknowledges and agrees that in consideration of Goodie Bag Food Co's provision of lead generation, demand prediction, and other related services provided via the Goodie Bag Food Co App under the Agreement, Goodie Bag Food Co has a right to collect the Fees from the Discounted Price paid by the Customer.
Revenue Transfer. Goodie Bag Food Co will transfer to Merchant the total Marketplace Item Payment (including any VAT or other sales tax collected on Merchant’s behalf) earned by Merchant, less (1) the Fees (modified to reflect the Marketplace Discount, if any) and (3) any refunds given on behalf of Merchant to Customers (such final transferred amount being the "Marketplace Item Revenue")
Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)
Data transfer agreement between
Goodie Bag Food Co Food Co., located at 7333 Old Post Road, Boulder 80301 (the "data exporter")
And
Merchant, identified within the Agreement, as accepting these Clauses (the "data importer"), each a "party"; together the "parties".
The parties have agreed on the following Standard Contractual Clauses (the "clauses") in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Annex A.
The clauses are effective from the date the data importer entity has clicked to accept these clauses. If you are accepting on behalf of the data importer, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand the clauses; and (iii) you agree, on behalf of the party that you represent, to the clauses. The parties agree that where data importer has been presented with these clauses and clicked to accept these terms electronically, such acceptance shall constitute execution of the entirety of the clauses by both parties, subject to the effective date described above.
Definitions
For the purposes of the clauses:
"personal data", "special categories of data/sensitive data", "process/processing", "controller", "processor", "data subject" and "supervisory authority/authority" shall have the same meaning.
"the data exporter" shall mean the controller who transfers the personal data;
the data importer" shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
"clauses" shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.
I. Obligations of the data exporter
The data exporter warrants and undertakes that:
The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.
II. Obligations of the data importer
The data importer warrants and undertakes that:
It will have in place appropriate technical and organizational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
It will have in place procedures so that any third party it authorizes to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorized or required by law or regulation to have access to the personal data.
It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
It will process the personal data for purposes described in the transfer, and has the legal authority to give the warranties and fulfill the undertakings set out in these clauses.
It will identify to the data exporter a contact point within its organization authorized to respond to enquiries concerning processing of the personal data, and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfill its responsibilities under clause III (which may include insurance coverage).
Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
It will process the personal data, at its option, in accordance with:
the data protection laws of the country in which the data exporter is established, or
i. the data processing principles set forth in AnnexA.
Data importer to indicate which option it selects: the data processing principles set forth in Annex A
iI. Data importer accepts by virtue of accepting these clauses.
the third party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or
data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer
III. Liability and third party rights
Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
IV. Law applicable to the clauses
These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(h), which shall apply only if so selected by the data importer under that clause.
V. Resolution of disputes with data subjects or the authority
In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.
The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.
Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.
VI. Termination
In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
In the event that:
the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (a);
compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;
the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;
a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occur;
then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.the transfer
The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.
VII. Variation of these clauses
The parties may not modify these clauses except to update any information in the transfer, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.
Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in the transfer or subsequently authorized by the data subject.
Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
Security and confidentiality: Technical and organizational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations.
Data used for marketing purposes: Where data is processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to "opt-out" from having his data used for such purposes.
Automated decisions: For purposes hereof "automated decision" shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
such decisions are made by the data importer in entering into or performing a contract with the data subject, and
the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties, or
where otherwise provided by the law of the data exporter.