Home-Cook Terms and Conditions

Last modified: 23/08/2021

 

CloudCOOK Terms and Conditions

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE OR (2) EXECUTING AN ORDER FORM OR ADDENDUM THAT REFERENCES THESE TERMS, THE HOME-COOK AGREES TO THE TERMS OF THIS AGREEMENT.

IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE THE TERM “HOME-COOK” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

SECTION 17 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT THE PARTIES HAVE AGAINST EACH OTHER ARE RESOLVED. INCLUDING WITHOUT LIMITATION A MANDATORY ARBITRATION PROVISION.

GENERAL

These CloudCOOK Terms and Conditions ("Terms") are hereby accepted and agreed to by the company identified within the CloudCOOK sign-up process ("Home-Cook”, vendor", "Seller" or “You"), and constitute a legally binding agreement by and between the Home-Cook and CloudCOOK (“CloudCOOK” or “Company”). Upon acceptance of these Terms, the Home-Cook may request access to the directory service and Promotions Tools. Such request shall indicate the Home-Cook’s acceptance of any applicable Sales Channel terms (each a “Sales Channel Addendum”) and/or terms for additional product services (a “Product Addendum”). These Terms may be subject to and/or incorporate the CloudCOOK Order Form (“Order Form”), and/or applicable Product or Sales Channel Addenda (these Terms and any such Order Form or any such Addendum collectively, the “Agreement”) or Terms of Use. Home-Cooks’s access to and use of the CloudCOOK Services and CloudCOOK Tools (as defined below) is subject to the Agreement and may be modified or updated by CloudCOOK from time to time, effective upon posting an updated version of these Terms and/or an applicable Product or Sales Channel Addendum on the CloudCOOK website. The Home-Cook is responsible for updating contact information and regularly reviewing the Terms and any applicable Product or Sales Channel Addendum for updates and information from CloudCOOK. Continued use of the CloudCOOK Services after any such modifications or updates shall constitute The Home-Cook’s consent to such changes. Capitalized terms used but not otherwise defined in the Terms shall have the respective meanings ascribed to such terms in the applicable Order Form, Product or Sales Channel Addendum.

  1. SERVICES

2.1 Items and Services

CloudCOOK and its affiliates make available certain proprietary technology services that facilitate the marketing, from Home-Cook to Customers (as defined below), including on-demand lead generation, marketing, advertising and promotional services, proprietary information services, onboarding, operational and other support services (“CloudCOOK Services”).

“Restaurant Items” are defined as foods and beverages that are typically sold by Home-Cooks in a form intended for take-out, and/or delivery. CloudCOOK shall retain sole discretion whether an Item constitutes a Home-Cooked Item and whether the Home-Cook is allowed to advertise such Items via the CloudCOOK Storefront.

The Home-Cook is not allowed to offer the sale and fulfillment of alcoholic beverages or any other item that is not allowed in accordance with any lockdown regulations as published in the South African Government Gazette or otherwise stated by the South African Government.

2.2 Merchant Technology

In connection with the CloudCOOK Services, CloudCOOK and its affiliates may also make available to the Home-Cook a website, mobile application or other technology interface for the Home-Cook to access and use the CloudCOOK Services (collectively, the “CloudCOOK Tools”), which may include CloudCOOK’s and its affiliates’ proprietary technology platform referred to as Sellers Dashboard, through which insights and analytics regarding the Home-Cook’s performance and history using the CloudCOOK Services are provided, and CloudCOOK and its affiliates’ proprietary technology platform referred to as Sellers Dashboard or Home-Cook’s Dashboard, through which the Home-Cook may, among other things, receive feedback, reviews and statistics from Customers engagements.

2.3 CloudCOOK Platform(s)

CloudCOOK and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase Items from the Home-Cook and request delivery services for said Items from Delivery People (as defined below), who retrieve such Items from the Home-Cook and deliver such Items to such Customers at a later stage. (“CloudCOOK Platform(s)”). Delivery People are independent contractors, and as such, they reserve the right to refuse to accept any Item in their sole discretion. At the time of edit of this document as per the date indicated at the top of this agreement, NO ACCESS to the CloudCOOK Platform(s) or Delivery People is currently available and Home-Cooks are required to deliver their own meals or arrange collection with customers contacting them with orders.

2.4 Sales Channels

Home-Cooks may request access to sell and deliver Items via various services provided by CloudCOOK: Directory Listing. By electing to use a Sales Channel, the Home-Cook agrees to accept any relevant Sales Channel Addenda as follows:

  1. i) Directory Listing: The Home-Cook may advertise Items through the “Directory Listing Sales Channel,” whereby the Home-Cook’s Items are presented in the CloudCOOK Platform(s) to Customers who access, and request on-demand delivery services provided by Home-Cooks in their area.
  2. CloudCOOK OBLIGATIONS

3.1 CloudCOOK Services

Subject to the terms and conditions of this Agreement, CloudCOOK and its affiliates will make available the applicable CloudCOOK Services to Home-Cooks, solely for use by Home-Cooks at locations that are owned and operated by Home-Cooks (each, a “Location”). Home-Cooks shall provide CloudCOOK current and accurate Location information throughout the Term of this Agreement. In connection with the provision of CloudCOOK Services to the Home-Cook, CloudCOOK and its affiliates, on behalf of the Hom-Cook, may respond to complaints by Home-Cook’s customers (“Customers”) about Items sold by the Home-Cook. In addition, CloudCOOK may make available certain CloudCOOK Tools to the Home-Cook, and the Home-Cook may access and use those CloudCOOK Tools solely in connection with the Home-Cook’s use of the CloudCOOK Services. For the avoidance of doubt, as between the Home-Cook and CloudCOOK, CloudCOOK will retain sole and absolute control over the CloudCOOK Platform(s) (and all elements of the user experience and user interface relating to the CloudCOOK Platform(s)), including with respect to: (i) the personalization of the CloudCOOK Platform(s) for Customers; (ii) the prioritization and display of options available to Customers; (iii) the search functionality and results provided to Customers; and (iv) adding, removing or otherwise modifying any feature or functionality made available through the CloudCOOK Platform(s) to optimize reliability or efficiency on the CloudCOOK Platform(s).

3.2 Technology, Not Delivery, Services

The Home-Cook agrees neither CloudCOOK nor its affiliates provide any delivery services. Rather, CloudCOOK provides technology services that both (i) enable the Home-Cook to connect with Customers who may purchase Items from the Home-Cook.

  1. HOME-COOK OBLIGATIONS

4.1 Availability of Items

The Home-Cook will supply and update menu’s and images as well as contact information regularly through the CloudCOOK Platform(s) (“Available Items”) during its normal business hours and ensure the Available Items menu is accurate. Home-Cooks will prepare, handle, store, label and package all Items in accordance with applicable laws and regulations, including without limitation all laws, rules and regulations governing time or temperature controls required for food safety (“Food Safety Standards”). Home-Cooks will determine any quality, portion, size, ingredient or other criteria that apply to Items (“Criteria”) and the Home-Cook is responsible for ensuring that all Items meet the applicable Criteria. If the Home-Cook fails to prepare or supply Items in accordance with Food or Alcohol Safety Standards or if any Item fails to meet the Criteria (each, a “Substandard Item”), CloudCOOK may, in its sole discretion, remove such Home-Cook from the CloudCOOK Platform(s). Items that contain (or may contain) an endangered species may not be advertised, and will be removed from the CloudCOOK Platform(s). The Home-Cook represents and warrants that all nutritional information for Items, including calorie count or allergen information, that is made available through the CloudCOOK Platform(s) is, and at all times will remain, accurate. In addition, the Home-Cook will ensure that the contents of its menu includes each Items Criteria (including any notifications about ingredients, nutritional information, allergen information, alcoholic content (if applicable), etc.) are accurate and comply with all applicable laws and regulations.

4.2 Item Responsibility

The Home-Cook acknowledges and agrees that CloudCOOK does not take title to any Item at any time. Notwithstanding, the Home-Cook shall be responsible for any reimbursement costs related to Customer refunds for Substandard Items or other related issues within the Home-Cook’s control (including any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable)), including by way of example, missing or incomplete Items, Items not cooked thoroughly, and Items not prepared in accordance with the Home-Cook’s internal standards. CloudCOOK may, in its sole discretion, terminate the Home-Cook’s membership on its platform.

4.3 Use Restrictions

In connection with the access to and use of the CloudCOOK Services and CloudCOOK Tools, The Home-Cook will not (and will not allow any third party to): (i) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the CloudCOOK Services (except to the extent applicable law prohibits reverse engineering restrictions); (ii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the CloudCOOK Tools or CloudCOOK Services (except as otherwise authorized by CloudCOOK); or (iii) possess or use, or allow the transfer, transmission, export, or re-export of any software or portion thereof in violation of any export control laws or regulations administered by the Republic of South Africa, or any other government agency. The Home-Cook will not (and will not allow any third party to) use the CloudCOOK Services or any other transactional, operational, performance or other data or information that is related to the sale of Items to Customers through the CloudCOOK Platform(s) to directly or indirectly compete with CloudCOOK or its affiliates or the CloudCOOK Services.

4.4 Item Restrictions

The following restricted Items may not be featured via the CloudCOOK Platform(s): people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, items containing endangered species or any items that the Home-Cook does not have permission to offer. CloudCOOK may remove from—or otherwise limit your ability to post to—a Home-Cook’s CloudCOOK menu any Items CloudCOOK deems prohibited or inappropriate. For clarity, alcohol and Tobacco Products is NOT permitted to be advertised on the CloudCOOK Platform(s).

CloudCOOK may restrict the sale of Items via the CloudCOOK Platform(s) based on physical attributes of such Items (e.g., weight (per Item or in aggregate), height, shape, or appropriateness for delivery) where applicable.

  1. FEES AND TAXES

5.1 Fees; Calculation

CloudCook offers a directory listing services at a monthly fee as dictated by the membership plans on the CloudCOOK Platform(s), The Home-Cook will pay CloudCOOK on a monthly basis or a yearly basis depending on the plans available on the CloudCOOK Platform(s) and the specific Sales Channel used to advertise items (“Fee”). The Fee includes any applicable taxes. Unless otherwise agreed to by the parties or modified by requirement of applicable laws or regulations, the Fee shall be a set amount per month subject to change on notification to the Home-Cook.

If required by applicable law or regulation, CloudCOOK may adjust the Fee. All Fees under this Agreement will be paid in South African Rand. CloudCOOK or its affiliates will deduct the Fee from the payment CloudCOOK collects on a monthly / yearly basis. CloudCOOK reserves the right to suspend the Home-Cook’s ability to advertise / list their business through the CloudCOOK platform if the Home-Cook’s account is in arrears. Except as may be expressly agreed in this Agreement, each party will be responsible for its own expenses and costs during its performance under this Agreement.

5.2 Activation Fee

At the time of the edit of this document as indicated by the date at the top of this document CloudCOOK will not be charging the Home-Cook an activation fee and initial support to assist in getting the Home-Cook listed on the CloudCook directory service platform at no cost to the Home-Cook.

5.3 Retail Prices; Taxes.

CloudCOOK Services connect you with Customers who wish to purchase your Items. You are the “The Home-Cook” or “seller” of all Items to be made available for sale via the CloudCOOK Platform(s). As such, you are responsible for determining and setting the retail price for each Item (the “Retail Price”), and you are ultimately responsible for the collection and remittance of all applicable Sales Taxes, where required under applicable law.

  1. INTELLECTUAL PROPERTY; MARKETING AND PROMOTIONAL ACTIVITIES

6.1 Marks

Subject to this Agreement, each party hereby grants to the other party (and, in the case of CloudCOOK, to its affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks in the territory, on a royalty-free basis, in connection with the activities related to this Agreement or any other activities relating to the CloudCOOK Services. For purposes of this Agreement, the term “Marks” will mean the trademarks, service marks, trade names, copyrights, logos, slogans, content, media, materials, identifying symbols and indicia of the applicable party. All uses of a party’s Marks by the other party will be in the form and format specified or approved by the owner of 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 (by email is sufficient). For the avoidance of doubt, however, any use or display of the Home-Cook’s Marks by CloudCOOK or its affiliates in connection with making Items available through the CloudCOOK Platform(s) in the ordinary course of business will not require any such prior, express, written consent. The Home-Cook further agrees that any use or display of CloudCOOK’s Marks will conform to the current version of CloudCOOK’s Brand Guidelines. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the owner of 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. Without limiting anything in the Agreement, the Home-Cook represents and warrants that the Home-Cook’s Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. The Home-Cook agrees that CloudCOOK or its affiliates may remove the Home-Cook’s Marks from the CloudCOOK Platform(s) if CloudCOOK or its affiliates receive notice or otherwise reasonably believe that such Home-Cook’s Marks may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

6.2 No Development

EACH PARTY ACKNOWLEDGES AND AGREES THAT THERE SHALL BE NO DEVELOPMENT OF TECHNOLOGY, CONTENT, MEDIA OR OTHER INTELLECTUAL PROPERTY BY EITHER PARTY FOR THE OTHER PARTY PURSUANT TO THIS AGREEMENT. Any development activities relating to any technology, content, media or other intellectual property must be the subject of a separate written agreement between CloudCOOK and Company prior to the commencement of any such activities.

6.3 Marketing

CloudCOOK and its affiliates may showcase the availability of the Home-Cook’s Items via the CloudCOOK Platform(s) through various promotional activities (e.g., through social media channels, websites, advertisements, or blogs). CloudCOOK (or a party designated by CloudCOOK acting on CloudCOOK’s behalf) may take video and still images for marketing and other efforts related to the CloudCOOK Platform(s) (“CloudCOOK Photographs”). The Home-Cook agrees that CloudCOOK Photographs (including all intellectual property rights therein) are and will remain the sole and exclusive property of CloudCOOK or its affiliates. Additionally, the Home-Cook may provide videos, still image or other materials to CloudCOOK or its affiliates (“Home-Cook Marketing Materials”) for use in connection with the display of the Home-Cook’s Items on the CloudCOOK Platform(s) or the marketing and promotion of CloudCOOK and the availability of your Items via the CloudCOOK Platform(s). The Home-Cook hereby grants CloudCOOK and its affiliates a non-exclusive, perpetual, fully paid-up and royalty free license to use and display such Home-Cook Marketing Materials in connection with the Home-Cook’s Items and other promotional activities relating to the CloudCOOK Services. Without limiting anything in the Agreement, the Home-Cook represents and warrants that the Home-Cook Marketing Materials do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. To the extent that the Home-Cook Marketing Materials contain any third party materials, the Home-Cook is solely responsible for and will secure any and all rights, licenses, consents and permissions necessary for CloudCOOK to be able to use the Home-Cook Marketing Materials in accordance with this Section. The Home-Cook agrees that CloudCOOK or its affiliates may remove the Home-Cook Marketing Materials from the CloudCOOK Platform(s) if CloudCOOK or its affiliates receive notice or otherwise reasonably believe that such Home-Cook Marketing Materials may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

6.4 Promotions

“Promotion(s)” means short-term offers that are advertised on the CloudCOOK Platform(s) to stimulate Customer demand. Subject to CloudCOOK Platform(s) functionality, CloudCOOK may, at its sole discretion, provide enhanced promotional placement or other visual treatment for a Promotion.

  1. i)Home-Cook Promotion(s). Subject to any other guidelines or eligibility criteria for Promotions that CloudCOOK may make available from time to time, CloudCOOK hereby authorizes The Home-Cook to create Promotions that are designed and fulfilled by the Home-Cook (“Home-CookrPromotion(s)”) and send it per email to info@cloudcook.co.za for placement on the slider on the homepage. Unless otherwise specified by CloudCOOK, the Home-Cook will be solely responsible for defining each Home-Cook Promotion (within the scope of functionality provided by CloudCOOK) either through the use of the Promotion Tool (as defined below) or through the Promotion Schedule (as defined below).
  1. CloudCOOK authorizes the Home-Cook to use CloudCOOK’s proprietary, automated, self-service tool located within the CloudCOOK Tools to create Promotions (“Promotion Tool”), subject to such Promotion Tool’s functionality and technical capability. If provided access to the Promotion Tool, the Home-Cook agrees to only use and access such Promotion Tool within its functionality and technical capability and shall not circumvent or otherwise exploit the tool in such a way that is not intended.
  2. The Home-Cook may create a Home-Cook Promotion by completing and providing CloudCOOK with a verbal or written promotion schedule (“Promotion Schedule”). If a verbal Promotion Schedule is provided to CloudCOOK by the Home-Cook, the Home-Cook will have a specified time period to confirm such Promotion Schedule prior to the Promotion being offered and such confirmation will constitute an agreement with CloudCOOK under the terms of this Agreement. To request a form Promotion Schedule, the Home-Cook should contact its customer support representative.
  1. ii) Co-Funded Promotion(s). From time to time, CloudCOOK may agree to fund a portion of the Home-Cook’s Promotion (each, a “Co-Funded Promotion”). For each such Co-Funded Promotion, the parties shall agree to an applicable written Promotion Schedule setting forth: (1) a description of the Co-Funded Promotion; (2) the obligations of each party in relation to such Co-Funded Promotion, including funding obligations; and (3) any other details regarding the Co-Funded Promotion.

iii). Parties’ Obligations. The parties’ obligations for each Promotion will include the following, but may be expanded upon in an applicable Promotion Schedule.

1) The Home-Cook’s Obligations. The Home-Cook will: (A) honor and fulfill the terms of Promotions offered by the Home-Cook (solely or jointly with CloudCOOK) to Customers who have successfully completed their order; (B) be responsible for the fees associated with the Promotion up to the amount the Home-Cook has agreed to fund for such Promotion; and (C) upon reasonable request, supply CloudCOOK with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which CloudCOOK may opt to use in its sole discretion, without payment of any license or other fees and which do not violate the rights of any third party. Notwithstanding anything to the contrary in this Agreement, the Home-Cook acknowledges and agrees that the Home-Cook will not be able to terminate the Agreement while a Promotion is live.

2) CloudCOOK’s Obligations. CloudCOOK will (A) honor and fulfill the terms of Promotions offered by CloudCOOK (solely or jointly with the Home-Cook) to Customers; (B) be responsible for the fees associated with the Promotion up to the amount CloudCOOK has agreed to fund such Promotion; (C) upon reasonable request, supply Home-Cook with marketing materials, including but not limited to, photographs, graphics, audio, video, and copy, which the Home-Cook shall use to market such Promotion, provided that a Promotion Schedule authorizes the Home-Cook to market such Promotion out of the CloudCOOK Platform(s); and (D) use good faith efforts to provide the Home-Cook with reasonable information regarding Promotions, which may include, without limitation, the amount the Home-Cook spent on Promotions and the number of Items sold in connection with Promotions.

6.5 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.

  1. PROPRIETARY INFORMATION; PERSONAL DATA; FEEDBACK

7.1 Definition

“Proprietary Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (“Discloser”) to the other (“Recipient”), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes transactional, operational, performance and other data or information that is related to the sale of the Home-Cook’s Items to Customers and the terms and conditions of this Agreement. Proprietary 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. Each Recipient agrees that it will not disclose to any third parties other than Representatives, or use in any way other than as necessary to perform this Agreement, the Discloser’s Proprietary Information. Each Recipient will ensure that Proprietary Information will only be made available to Recipient’s affiliates and Recipient’s and Recipient’s affiliates officers, directors, employees and agents who have a need to know such Proprietary Information and who, prior to any disclosure of such Proprietary Information, are bound by written obligations of confidentiality with respect to such Proprietary Information that are no less stringent than those set forth in this Agreement (each, a “Representative”). 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 Proprietary Information. The foregoing prohibition on use and disclosure of Proprietary Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and the Home-Cook hereby authorizes CloudCOOK and its Affiliates to disclose the terms of this Agreement to Venor’s franchisees and/or franchisor as applicable in connection with executing contracts that reference this Agreement) and (ii) a Recipient is required to disclose certain Proprietary 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 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 Proprietary Information, together with all copies thereof in whatever form.

7.2 Privacy

The Home-Cook agrees to use, disclose, store, retain or otherwise process Personal Data solely for the purpose of providing Items under this Agreement. The Home-Cook will maintain the accuracy and integrity of any Personal Data provided by CloudCOOK and in the Home-Cook’s possession, custody or control. The Home-Cook agrees to retain Personal Data provided to the Home-Cook by CloudCOOK solely by using the software and tools provided by CloudCOOK. “Personal Data” means any information obtained in connection with this Agreement (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, persistent identifiers, and (iii) any information that may otherwise be considered “personal data” or “personal information” under the applicable law. The Home-Cook agrees and gives permission to CloudCook to list and display all contact information as provided by the Home-Cook on it’s directory listing website, as that is the sole purpose of the platform – to supply customers with Home-Cook contact information and address.

7.3 Passwords

The Home-Cook is responsible for maintaining the integrity of information related to the Home-Cook’s access and use of the CloudCOOK Tools and related CloudCOOK Services, including any password, login or key information. The Home-Cook represents and warrants that the Home-Cook will not share such information with any third party.

7.4 Data Re-Identification Restriction

Without limiting any other provision of this Agreement, including any provision in this Section 7, the Home-Cook will not merge any of the data collected or otherwise obtained in connection with this Agreement, including 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 any Personal Data, for the purpose of re-identification, targeted marketing, or any other similar purpose.

7.5 Feedback

The Home-Cook may, but is not obligated to, provide or otherwise make available to CloudCOOK or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to CloudCOOK’s and its affiliate’s products and services (“Feedback”). However, to the extent that the Home-Cook provides or otherwise makes available Feedback to CloudCOOK or its affiliates, the Home-Cook hereby grants to CloudCOOK and its affiliates a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use and otherwise exploit such Feedback.

  1. RATINGS

The Home-Cook acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the CloudCOOK Platform(s) 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 the Home-Cook and the relevant Item(s) on the CloudCOOK Platform(s) (“Customer Feedback”). CloudCOOK and its affiliates reserve the right to use, share, and display Customer Feedback in any manner in connection with the business of CloudCOOK and its affiliates without attribution to or approval of the Home-Cook. The Home-Cook acknowledges that CloudCOOK and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Feedback, provided that CloudCOOK and its affiliates reserve 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 or other applicable laws, or CloudCOOK’s or its affiliates’ content policies.

  1. REPRESENTATIONS AND WARRANTIES; DISCLAIMER

9.1 Representations and Warranties

Each party hereby represents and warrants that: (i) it has full power and authority to enter into this Agreement and perform its obligations hereunder; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it has not entered into, and during the Term will not enter into, any agreement that would prevent it from complying with or performing under this Agreement; (iv) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder (including all applicable consumer protection, data protection and privacy laws and, in the case of the Home-Cook, all applicable Food Safety Standards); and (v) the Marks used or provided by one party to the other pursuant to this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity, or other proprietary rights of any third party. In addition, the Home-Cook further represents and warrants that to the extent the Home-Cook has franchisees who participate in any activities under this Agreement, the Home-Cook will ensure that such franchisees will comply with, and be subject to, the applicable provisions of this Agreement when participating in such activities.

9.2 DISCLAIMER

EXCEPT AS SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS, AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.

  1. INDEMNITY.

10.1 Indemnified Claims

Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless the other, its affiliates and 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 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; or (iii) any claims that the Marks provided by the Indemnifying Party infringe a third party’s intellectual property rights, to the extent the Indemnified Party used such Marks in accordance with the manner approved by the Indemnifying Party. In addition, you will indemnify, defend and hold harmless the CloudCOOK Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) the Home-Cook’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation; (B) Sales Tax applicable to sales of Restaurant Items in non-Marketplace Facilitator Jurisdictions; (C) The Home-Cook’s failure to provide accurate and complete descriptions or Additional Information for Restaurant Items in Marketplace Facilitator Jurisdictions; (D) Sales Tax applicable to all sales of non-Restaurant Items (regardless of whether such Items are sold through a separate Additional Items Storefront); or (E) any claim related to Home-Cook’s failure to perform obligations contained in Section 2 of the Terms of Use for Alcohol Sales, if applicable, 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 CloudCOOK or its employees, agents or Delivery People.

10.2 Procedure

CloudCook will provide the Home-Cook prompt written notice of any potential claim subject to indemnification hereunder. The Home-Cook will assume the defense of the claim through counsel the Home-Cook designate, however, such counsel must be reasonably acceptable to the Indemnified Party. The Home-Cook 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.

  1. LIMITS OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, INDEMNIFICATION OBLIGATIONS OR A BREACH OF CONFIDENTIALITY OBLIGATIONS: (A) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CLAIM FOR ANY INDIRECT, WILLFUL, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, FOR LOSS OF BUSINESS PROFITS, OR DAMAGES FOR LOSS OF BUSINESS OF ENDOR OR ANY THIRD PARTY ARISING OUT OF THIS AGREEMENT, OR LOSS OR INACCURACY OF DATA OF ANY KIND, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) EACH PARTY’S TOTAL CUMULATIVE LIABILITY OF EACH AND EVERY KIND UNDER THIS AGREEMENT WILL NOT EXCEED R10 000. THE FOREGOING LIMITATION OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES WILL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES.

  1. INSURANCE

During the Term and for one (1) year thereafter, each party will maintain Commercial General Liability.

  1. SUPPLEMENTAL TERMS.

The Home-Cook will comply with the applicable then-current Community Guidelines, (“Community Guidelines”). In addition, supplemental terms may apply to the Home-Cook’s use of the CloudCOOK Services and the CloudCOOK Tools, such as use policies or terms related to certain features and functionality, which may be modified from time to time (collectively, with the Community Guidelines, “Supplemental Terms”). Supplemental Terms are in addition to, and will be deemed a part of, the Agreement. Supplemental Terms will prevail over the Agreement in the event of a conflict. CloudCOOK will use good faith efforts to provide the Home-Cook with written notice of any material updates to the Supplemental Terms, and, if the Home-Cook does not agree to comply with the terms of any such update, the Home Cook may, as its sole and exclusive remedy, terminate this Agreement and cease use of the CloudCOOK Services and CloudCOOK Tools. By continuing to use the CloudCOOK Services or the CloudCOOK Tools, the Home-Cook will be deemed to accept the Supplemental Terms. Notwithstanding anything to the contrary, the terms and conditions of CloudCOOK’s then-current Privacy Policy, currently available at: https://cloudcook.co.za/policies/privacy-policy, will apply to CloudCOOK’s collection, use and processing of Personal Data.

  1. TERM AND TERMINATION

This Agreement will commence on the Effective Date and, unless earlier terminated as provided below, will continue infinitum and will automatically renew on a monthly basis (each, a “Renewal Term” and together with the Initial Term, the “Term”). Either party may terminate this Agreement, in whole without any credit due to the Home-Cook. The CloudCook directory service is a post-paid service and CloudCook will not be liable for any financial compensation should the Home-Cook decide to terminate this agreement before the monthly term has ended, in the event of a material breach by the other party with two (2) days’ prior written notice thereof by the non-breaching party. Either party may terminate this Agreement, in whole or in part (i.e., with respect to any Sales Channel), at any time without cause and without notice. Notwithstanding the foregoing, the termination of this Agreement will not relieve either party of its obligations to fulfill any promotional offer that has been redeemed by Customers in accordance with its terms. In addition, CloudCOOK may suspend or otherwise terminate this Agreement on written notice in the event of a Brand Matter. A “Brand Matter” means an event involving the Home-Cook that, in CloudCOOK’s reasonable judgment, causes it or its affiliates to have significant concern for the reputation of its respective Marks or brand, including matters related to the alleged violation of any applicable retail food or other health or safety code. All payment obligations in all the Sections of this agreement will survive the expiration or termination of this Agreement.

  1. NOTICE

Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (a) upon actual delivery, if delivery is by hand; or (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient. Notices to CloudCOOK should be provided to CloudCOOK, Attn: Legal, P.O. Box 266 , Wingatepark, Pretoria, South Africa, 0153. Notices to the Home-Cook should be provided to the address provided by the Home-Cook. The parties agree that all legal documents (including complaints and subpoenas) directed to CloudCOOK will be served on CloudCOOK’s registered agent for service of process.

  1. DISPUTE RESOLUTION AND ARBITRATION

16.1 Arbitration

  1. i) Dispute Resolution. Any dispute, conflict or controversy, howsoever arising out of or broadly in connection with or relating to this Agreement, including but not limited to those relating to its validity, its construction or its enforceability, shall be first mandatorily submitted to settlement proceedings under the International Chamber of Commerce Amicable Dispute Resolution Rules (“ICC ADR Rules”). If such dispute has not been settled within 60 days after a request for Amicable Dispute Resolution has been submitted under the ICC ADR Rules, such dispute shall be exclusively and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC Arbitration Rules”). The ICC Rules' Emergency Arbitrator provisions are excluded. The dispute shall be resolved by one arbitrator to be appointed in accordance with the ICC Rules. The place of arbitration shall be Johannesburg, South Africa.
  2. ii) The language to be used in the arbitral proceedings will be English.

iii) To the extent permitted by applicable law, the parties agree to keep all materials related to the dispute, including the existence of the dispute itself, content of the arbitration, and all the submissions by the parties in the arbitration and awards rendered by the arbitral tribunal, confidential.

  1. vi) This agreement to arbitrate will not preclude the parties from seeking provisional remedies from a court of competent jurisdiction. The parties each retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights.

vii) Neither party may bring any class, collective, or representative action against the other party, and will preclude a party from participating in or recovering relief under any current or future class, collective, consolidated, or representative action brought against the other party by someone else.

viii) Each party shall pay its own proportionate share of Arbitrator fees and expenses. The Arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in his/her discretion.

16.2 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.

  1. DIVERSITY AND INCLUSION

The Home-Cook will not, in its use of the CloudCOOK Services or the CloudCOOK Tools under this Agreement, discriminate against any customer, employee, contractor or other person or individual on the basis of race, color, gender, pregnancy, marital status, familial status, sexual orientation, gender identity or expression, religion, ancestry, national origin, disability, or age except that programs may target beneficial services for specific participant groups, as agreed upon between CloudCOOK and the Home-Cook. The Home-Cook acknowledges and agrees that upon CloudCOOK’s receipt of evidence of the Home-Cook’s discrimination under any of these categories, CloudCOOK will have the right to immediately terminate this Agreement following notice to the Home-Cook.

  1. ADDITIONAL TERMS

18.1 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.

18.2 Assignment

The Home-Cook 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 CloudCOOK. CloudCOOK 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. CloudCOOK 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. f. 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 CloudCOOK (and/or its Affiliates) and the Home-Cook or CloudCOOK (and/or its Affiliates) and any Delivery Partners; and (b) except as specified in this Agreement, no joint venture, partnership, or agency relationship exists between CloudCOOK (and/or CloudCOOK’s Affiliates) and the Home-Cook or CloudCOOK (and/or CloudCOOK’s Affiliates) and any Delivery Partners. 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. The relationship between the parties under this Agreement is solely that of independent contractors.

18.3 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."