Marketplace Addendum Effective Date: December 29, 2023
1. PREAMBLE. Go4Food owns and operates the Go4Food Platform that connects Merchants, Go4Drivers and Customers for the pickup and/or delivery of Merchant Products. The “Merchant” listed above desires to market the availability of Merchant Locations through the Go4Food Platform. Merchant’s use of the Go4Food Platform shall be referred to herein as the “Program”. For clarity, the Program will include each product, service, promotion, or program elected by Merchant in this Marketplace Addendum, as may be amended by the Parties. Go4Food is not a merchant, food preparation business, reseller, or delivery service; it is an online marketing and connection platform.
2.1. “Go4Food Platform” for purposes of this Marketplace Addendum means, individually or collectively, (a) any online marketplace offered by Go4Food 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 Go4Food. References to the “Go4Food Platform” include the Go4Food Platform Documentation. The Go4Food Platform is a “Go4Food Product” as defined in the Terms of Service. From time to time, Go4Food may list 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 Merchant.
2.2. “Marketplace” means Go4Food’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 Go4Food website or mobile application for delivery by a Go4Driver to the Customer or for pickup by Customer.
2.3. “Merchant Location(s)” has the meaning ascribed to it in the Terms of Service. For purposes of this Marketplace 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 that 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 Go4Food for participation in the Program.
2.4. “Pickup Program” means the Go4Food program through which a Customer places a Pickup Order through the Go4Food Platform from a Merchant Location.
3. RESPONSIBILITIES AND PROCEDURES.
3.1. Go4Food Responsibilities. Go4Food will: (i) promote Merchant, Merchant Locations, and the menu of Merchant Products at each Merchant Location through the Go4Food Platform; (ii) accept Orders for Merchant Products through the Go4Food Platform from Customers; (iii) forward each Order to the relevant Merchant Location; (iv) for Delivery Orders, make the Order opportunity available to Go4Drivers, so that the Go4Driver 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, 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 Go4Food as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or permanent in nature). Go4Food reserves the right to take into account the impact of a Merchant’s conduct on both the customer experience and the Go4Food brand when determining the Merchant’s prominence, participation in programs such as Go4Pass, and/or availability on the Go4Food 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 Go4Food with Merchant’s menu, including the price of each item; (ii) monitor Merchant’s menu and store information on the Go4Food Platform, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify Go4Food of any errors or changes in writing (email is sufficient); (iii) accept and confirm Orders from Go4Food in a prompt and timely manner; (iv) prepare Merchant Products for each Order for pickup by a Go4Driver, or the Customer, as applicable, at the designated time; (v) process Orders in the order in which they are received; (vi) notify Go4Food of its days and hours of operation, including on holidays, and remain open for business on Go4Food the same days and hours of operation as Merchant’s in-store business; notify Go4Food of any changes to Merchant’s hours of operations on holidays; and notify Go4Food if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation; (vii) notify all Merchant Location staff members of the relationship with Go4Food, and train staff members on receiving and fulfilling Go4Food Orders as soon as practicable upon execution of this Marketplace 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 Go4Food any inaccuracies; and (x) if Go4Food 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. Go4Food acknowledges that Merchant is solely responsible for the prices of its menu items, which may vary based on factors such as location, time of the year, or competition from other restaurants.
3.3. Additional Responsibilities for the Pickup Program. During the Term, once Go4Food or Merchant’s point of sale provider enables the ability for Merchant to set different prices for Merchant Products under the PickUp Program than the prices for such Merchant Products for delivery, Merchant shall ensure that pricing of Merchant Products under the PickUp Program is not greater than the pricing of the same Merchant Products for pickup (a) in-store and (b) on any other third party food ordering and/or delivery platform. In the event that Merchant increases the pricing of Merchant Products for pick-up above the in-store prices of the same Merchant Products, Go4Food may enforce the terms of this Agreement, including any combination of and not limited to: applying a higher commission rate to affected Orders, requiring Merchant to reimburse affected Customers for the difference between the Merchant Product listed for PickUp and the lower in-store price, charging Merchant an additional fee, and/or adjusting the pricing of Merchant Products available under the PickUp Program, in addition to any other right or remedy available at law or in equity.
4. FEES. Go4Food shall receive a Commission Rate in exchange for Go4Food promoting Merchant through the Go4Food Platform. The Commission Rate for Orders placed under the applicable Go4Food program is 15% or as set forth on the Rate Card (if any). Go4Food will remit the cost of Orders fulfilled by Merchant each week following the week in which the Orders were fulfilled on a consistent day of this week. The exact day in this week is subject to change with no less than 10 days’ notice to Merchant by email or service notification. The amounts remitted will include (1) the pre-tax total of all Orders for the prior week (Monday-Sunday) plus (2) Collected Taxes (as defined below) unless the parties agree to an alternative arrangement in writing, less (3) 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 week. Merchant may have the opportunity to sign up to receive daily payments through the Merchant Portal. Merchant agrees Go4Food may charge the Customer fees, including but not limited to delivery fees, service fees, surcharge fees, and Small Order Fees where applicable in Go4Food’s sole discretion.
5. TAXES. Go4Food 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 Go4Food Platform (“Collected Taxes”). In any jurisdiction where Go4Food is required to remit Collected Taxes as a marketplace facilitator, Go4Food will be responsible for remitting such taxes to the appropriate tax authorities. Any Collected Taxes that are not required to be remitted under the marketplace facilitator laws will remain the responsibility of the Merchant and Merchant will be responsible for remitting any such portion of Collected Taxes to the appropriate tax authorities. In all other jurisdictions, Go4Food will send Collected Taxes to Merchant, and Merchant will be responsible for remitting the total amount of Collected Taxes to the appropriate tax authorities of those jurisdictions. For clarity, Go4Food 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 Go4Food charges to the Customer.
6. PAYMENT PROCESSING. Merchant acknowledges that Go4Food uses a payment processor to collect Order amounts from Customers and remit payment to Merchant. In order to receive payment, Merchant is required to have an account with this payment processor during the Term. Go4Food reserves the right to change its payment processor at any time during the Term and Merchant will provide Go4Food with any information required to set up a payment account with any such alternate payment processor.
7. ORDER EQUIPMENT. With respect to the Go4Food Platform, if Merchant does not integrate its POS system with the Go4Food Platform, Merchant will install the equipment agreed by the parties for Merchant to receive and process Orders, which may include: a tablet, fax machine, or other automated, electronic means of receiving Orders. If the parties agree that any Order Equipment is provided by Go4Food, Merchant will pay Go4Food an Order Equipment Fee if set forth in the Rate Card, in exchange for the right to use the Order Equipment to access the Go4Food Platform in order to receive, process, and accept Marketplace and Pick Up Orders. Any Order Equipment provided by Go4Food will remain Go4Food’s sole property and may be used solely in connection with the provision or receipt of services under the Agreement and for purposes related to fulfilling Merchant’s responsibilities under this Marketplace Addendum. Merchant will inspect all hardware, and shall notify Go4Food in writing (email sufficient) if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. Merchant will be responsible for any damage to or loss of any Order Equipment provided by Go4Food (excluding ordinary wear and tear), which shall be promptly reimbursed by Merchant (at the replacement cost thereof). Go4Food may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments. Merchant agrees to pay all agreed subscription fees and deposits charged by Go4Food for Order Equipment, and agrees Go4Food may deduct such fees and deposits from amounts payable by Go4Food to Merchant.
8. REFUNDS AND SUPPORT. In the event a Customer submits a complaint about his or her Order via Go4Food’s support channels, Go4Food 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. Go4Food shall be responsible for any refund, credit or re-order that is caused by the delivery of Orders or Go4Drivers.
9. TERM AND TERMINATION. This Marketplace Addendum may be terminated pursuant to the terms of the Terms of Service.