Supplemental Terms

Part A. General Supplemental Terms

Definitions

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.

"Aggregate Data" means aggregate, anonymized data related to Merchant's transactions in connection with the Noon Food 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 Noon Food’s reasonable judgment, causes it or its Affiliates to have concern for the reputation of its brand, including, but not limited to, high cancellation or non-acceptance rates (as determined by Noon Food) and matters related to the alleged violation of any Applicable Laws.

“Cancellation Fee” means a Fee charged to the Merchant in case Merchant cancels the Order for any reason after accepting it on Noon Food Tool.

"Cash Order" means an order where Noon Food allows a Customer to pay for a given Item provided by Merchant, and all associated fees and charges resulting from that transaction, in cash.

"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, Noon Food 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 Noon Food Platform 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 the Merchant.

"Customer Feedback" means the information provided by a Customer in response to prompting by the Noon Food Platform, including rating of Item(s) and comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the Noon Food Platform, and either the delivery services (provided by either a Noon Food Delivery Partner or Merchant Delivery Partner) or the Pickup Method experience.

“Delivery Charge” means a delivery charge collected by Noon Food from Customer.

"Delivery Partner" means a person who intends to provide on demand delivery services on a Merchant’s behalf using the Noon Food Platform. References to "Delivery Partners" should be read to include both Noon Food Delivery Partners and Merchant Delivery Partners.

“Delivery Service Fee” means a Fee paid by Merchant to Noon Food in consideration for the use of the Noon Food Delivery Services. Merchant's Delivery Service Fee is specifically set forth in the Order Form.

"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.

"Device Fee" means a Fee paid by Merchant to Noon Food for a device to access the Noon Food Tools.

“Fees" means any applicable fees charged by Noon Food to the Merchant and revised from time to time as per the as set forth in the Order Form and revised from time to time as per the provisions of the Agreement.

"Feedback" means information provided by Merchant to Noon Food including feedback, suggestions, comments, ideas, or other concepts relating to Noon Food’s products and services.

"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, pandemics, strikes, work stoppage or other labor disturbances, war or sabotage.

“Go Live Date” means the date when Merchant receives the first Order on Noon Food Platform.

“Hybrid” means the Orders are fulfilled by Noon Food Delivery Partner or Restaurant Fulfilled Method or the Pickup Method.

"Indemnified Party" means the party receiving indemnification from the Indemnifying Party.

"Indemnifying Party" means the party providing indemnification to the Indemnified Party.

"Invoice Details" means information required for the accurate calculation and preparation of invoices by Noon Food.

"Item" means food, beverage, or any other product made available by Merchant to Customer via the Noon Food Platform.

"Item Revenue" means the gross amount charged by the Merchant to any Customer that is attributable to any Item(s) placed through Noon Food Platform, less all (i) applicable taxes, (ii) discounts being offered by the Merchant on the Noon Food Platform, (if any) and (iii) packaging, delivery and any other charges levied by the Merchant.

“Item Payment” means the Retail Price of the Item(s) sold by Merchant via the Noon Food Platform (including any VAT or other sales tax).

"Losses" means any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees).

"Marks" means the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party or its Affiliates.

“Marketplace Service Fee” means a Fee paid by Merchant to Noon Food in consideration for the use of the Marketplace Services. Merchant's Marketplace Service Fee is specifically set forth in the Order Form.

"Marketplace Services" means certain services made available by Noon Food and/or its Affiliates to Merchant to facilitate the marketing, sale and provision Items by Merchant to Customers, including on-demand lead generation, marketing, operational, delivery, logistic, and other support.

"Meal Voucher Order" means an order where Noon Food allows a Customer to pay for a given Order provided by Merchant, and some or all associated fees and charges resulting from that transaction, with a meal voucher.

“Menu” means a list of food, beverages, and other Items made available by the Merchant via the Noon Food Platform and that may be ordered by a Customer.

“Merchant” means the other party entity identified in the onboarding tool.

"Merchant Delivery Charge" means a delivery charge collected by Noon Food on behalf of Merchant from Customers for Items transferred via the Restaurant Fulfilled Method.

"Merchant Delivery Partner" means an employee, contractor, worker or agent of Merchant who provides delivery services on a Merchant’s behalf, arranged independently of Noon Food.

"Merchant Marketing Materials" means videos, still images or other materials provided by Merchant to Noon Food for use in connection with the display of Merchant’s Items on the Noon Food Platform.

"Method" means a method by which Items requested by a Customer through the Noon Food Platform may be transferred from Merchant to such Customer.

"Noon Food" means Noon Food LLC, a company registered in the United Arab Emirates (“UAE”).

"Noon Food 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 Noon Food, is deemed to be a competitor of the Noon Food Platform.

"Noon Food Data" means all data related to the access and use of the Noon Food Services and Noon Food Tools, including but not limited to all Personal Data related to Merchant and Customers.

"Noon Food Delivery Partner" means an employee, contractor, worker or agent of Noon Food who intends to provide on demand delivery services on a Merchant’s behalf using the Noon Food Platform.

"Noon Food Delivery Service" means the delivery and logistic services that Noon Food shall make available to Merchant allowing Items to be transferred from Merchant to Customer via Noon Food Delivery Partners.

"Noon Food Marketing Materials" means video, still images and/or other materials created by Noon Food (or a party designated by Noon Food acting on Noon Food’s behalf) for marketing and other efforts related to the Noon Food Platform.

"Noon Food Platform" means a website, application or other technology interface made available by Noon Food and/or its Affiliates to Customers, on a royalty-free basis, to purchase Items and, if applicable, delivery services from Merchant.

“Noon Food Services” means the services mentioned in the Order Form and other services provided through Noon food tools.

"Offer" means a short-term promotional offer that is created and fulfilled by Merchant that is intended to stimulate Customer demand through the Noon Food Platform (e.g., discounts).

"Offer Costs" means the amount spent by Merchant on an Offer.

"Offer Materials" means, with respect to an Offer, all suitable material to be provided by Merchant including artwork of Merchant’s trade marks and trade names.

"Offer Tools" means proprietary, automated tools provided by Noon Food to Merchant which allow Merchant to create and provide Offers to Customers.

“Order” means a combination of food and/or beverage ordered by the Customer through the Merchant via the Noon Food Platform. "Order" is a subset of "Item," and any terms and conditions related to "Items" also apply to "Orders."

“Payment Processing Fee” means a Fee paid by the Merchant to Noon Food in consideration for the use of the Payment Processing Services. Merchant's Payment Processing Fee is specifically set forth in the Order Form.

“Payment Processing Services” means the payment processing functionality facilitated by the Noon Food Tools for Orders.

"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.

“Photographic Content Fee” means a Fee paid by Merchant to Noon Food in consideration for the photography of a Merchant’s Menu for use on the Noon Food Platform.

"Pickup Item" means an Item transferred by Merchant to Customer via the Pickup Method.

"Pickup Method" means a Method whereby Merchant may allow Customers to collect Items requested from a specified location without the involvement of a Delivery Partner.

"Representatives" means with respect to a party, it’s or its Affiliates’ respective officers, directors, employees or agents.

"Required Documentation" means all documentation required by Noon Food from Merchant, including but not limited to business license, identification, tax identification, information regarding VAT status, banking documentation, and all Invoice Details.

"Restaurant” means a restaurant listed on Noon Food Platform and having the same brand name.

"Restaurant Fulfilled Cash Order" means an order where Noon Food permits a Customer to pay for a given Item provided by Merchant and all associated fees and charges resulting from that transaction in cash.

"Restaurant Fulfilled Method" means a Method whereby Merchant foregoes the Noon Food Delivery Services and uses Merchant Delivery Partners to fulfill delivery of Items requested by Customers.

"Retail Price" means the original listed price determined by Merchant for each Item to be made available for sale via the Noon Food Platform prior to any discounts or promotions.

“Revenue Transfer” means the calculation of Item Revenue to be transferred from Noon Food to Merchant.

"Substandard Item" means any Item that fails to meet the Criteria or standards required by Applicable Laws.

"Supplemental Terms" means the General Supplemental Terms, the Specific Supplemental Terms, VIP Program’s Terms,  and any other terms applicable to the use of the Noon Food Services, Noon Food Tools, and/or Noon Food Platform and shared with the Merchant.

“Transportation Method” means the mode of transportation used by a Delivery Partner to transport Items from the Merchant to Customer.

"Term" means the Initial Term together with all Renewal Terms.

"Territory" means United Arab Emirates.

"VAT" means any Value Added Taxes, General Service Taxes and/or similar sales taxes.

"Virtual Restaurant" means an additional menu that is made available from Merchant’s premises under a different trading name.

"Virtual Restaurant Data" means information provided by Noon Food from time to time and related to cuisine demand, consumer preferences and restaurant case studies to help inform Merchant’s Virtual Restaurant menu choices.

“VIP Customer/VIP Customer Order” means a Customer whose net order amount is AED 30 or more.

“VIP Merchant” means the Merchant or Restaurants authorized by the Merchant to participate in VIP Program.

1.      Noon Food Services.

General. Noon Food and/or its Affiliates will make the applicable Noon Food Services available to Merchant including, but not limited to, the Marketplace Service, Delivery Service, and Payment Processing Service. The Noon Food Services are solely for use by Merchant, subject to the terms of this Agreement.

a.      Appointment of Limited Payment Collection Agent.

i. Merchant hereby appoints Noon Food as Merchant’s limited payment collection agent solely for the purpose of: (A) accepting payment of the Retail Price of Items (plus any applicable VAT and other fees collected on Merchant’s behalf) sold by Merchant via the Noon Food Platform, via the Payment Processing Services facilitated by the Noon Food Tools, and (B) transferring to Merchant the Retail Price (plus VAT and any other fees collected on Merchant’s behalf) less the retained Fees and any refunds given to the Customers on behalf of Merchant.

ii. Merchant agrees that payment collected by Noon Food on Merchant’s behalf will be considered the same as payment made directly to Merchant.

iii. Merchant further authorizes Noon Food to collect gratuities (if any) that are paid on the Noon Food Platform voluntarily by Customers to Delivery Partners acting on behalf of Merchant. For deliveries made via the Noon Food Delivery Service, Merchant agrees that Noon Food may remit the full value of such gratuities directly to Delivery Partners. For deliveries made via the Restaurant Fulfilled Method, Noon Food shall remit the full value of any gratuities to Merchant. It is the sole responsibility of Merchant to make sure that any applicable gratuities are properly transferred to the Delivery Partners.

iv.  If reasonable, Noon Food may adjust the transfer of Item Revenue collected on Merchant’s behalf for reasons including, but not limited to, failure to fulfil the provision of an Item as ordered. Merchant may dispute any such adjustments through the Noon Food Tools within fourteen (14) calendar days of Merchant being notified of such adjustment. Noon Food reserves the right to, and Merchant authorizes Noon Food 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.

v. In exceptional circumstances only (as determined by Noon Food in its sole discretion, acting reasonably), Noon Food 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.

vi. Noon Food 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)(v) 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.

vii. Noon Food may engage any of its Affiliates to perform the activity of limited payment collection agent. Such engagement may be subject to additional terms.

b. Cash. Noon Food and/or its Affiliates may allow Customers to pay for a given Item (and, if applicable, delivery services) provided by Merchant, and all associated fees and charges resulting from that transaction, in cash (a "Cash Order").

c. Meal Vouchers. Noon Food and/or its Affiliates may allow Customers to pay for a given Order 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, Noon Food will not act as limited payment collection agent for Meal Voucher Orders and Merchant will receive direct settlement of Item Revenue from a third-party meal voucher issuer.

d. Noon Food Tools. Noon Food may make available certain Noon Food Tools to Merchant, and Merchant may access and use those Noon Food Tools solely in connection with Merchant’s use of the Noon Food Services. The Noon Food Tools, including all intellectual property rights therein, are and shall remain the property of Noon Food, its Affiliates or their respective licensors. Neither this Agreement nor Merchant’s use of the Noon Food Tools or Noon Food Data conveys or grants to Merchant any rights in or related to the Noon Food Tools or Noon Food Data, except for the limited license granted above.

e.  Noon Food Platform. Merchant acknowledges and agrees that once it has accepted a request for an order of Items, the Noon Food Platform may provide certain information about Merchant to the Customer, including Merchant’s name and contact number. As between Merchant and Noon Food, Noon Food will retain sole and absolute control over the Noon Food Platform (and all elements of the user experience and user interface relating to the Noon Food Platform), including, without limitation, with respect to:

i.           the personalization of the Noon Food Platform 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 Noon Food Platform to optimize reliability or efficiency on the Noon Food Platform.

g. No Service Guarantee. Noon Food and its Affiliates do not guarantee the availability or uptime of the Noon Food Tools or Noon Food Platform. Merchant acknowledges and agrees that the Noon Food Tools and Noon Food Platform may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Noon Food Tools and Noon Food Platform may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and Noon Food and its Affiliates are not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.

h.  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. Noon Food and its Affiliates provide, and Merchant accepts, the Noon Food Tools and Noon Food Platform on an "as is" and "as available" basis. Noon Food and its Affiliates do not represent, warrant or guarantee that its access to or use of the Noon Food Tools or Noon Food Platform: (i) will be uninterrupted or error free; or (ii) will result in any requests for orders of Items (and delivery, if applicable). Noon Food and its Affiliates make no representations, warranties or guarantees as to the actions or inactions of Customers who may request or receive Items (and delivery services, if applicable), and Noon Food and its Affiliates do not screen or otherwise evaluate Customers. By using the Noon Food Tools, Merchant acknowledges and agrees that Merchant or a Delivery Partner may be introduced to a third party that may pose harm or risk to Merchant, Delivery Partners or other third parties. Merchant and their Delivery Partners are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Noon Food Services and Noon Food Tools. Noon Food does not represent, warrant or guarantee the safety of any Items. Notwithstanding Noon Food’s appointment as limited payment collection agent of Merchant for the purpose of accepting payment from Customers on its behalf, Noon Food and its Affiliates expressly disclaim all liability for any act or omission of Merchant, any Delivery Partners employed by Merchant, any Customer or other third party.

i.  Complaints. In connection with the provision of Noon Food Services to Merchant, Noon Food, on behalf of Merchant, may respond to complaints by Customers about Items and/or delivery sold by Merchant via the Noon Food Platform.

j.  Suspension of Noon Food Services. Noon Food, at its sole discretion, reserves the right to temporarily or permanently suspend, in whole or in part, Merchant’s access to the Noon Food Services and Noon Food Tools if:

i            Merchant fails to provide Required Documentation in a timely manner;

ii.           Merchant’s account is in arrears;

iii.           A Brand Matter has occurred in accordance with clause VI of the Order Form; or

iv.           Merchant is, or Noon Food reasonably believe Merchant is, in breach of this Agreement.

2. Merchant’s Obligations.

a.  Availability of Items. Merchant will make Items available for purchase through the Noon Food Platform during its normal business hours.

i. 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.

ii. 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 Noon Food Platform. Noon Food, at its sole discretion, reserves the right to remove from the Noon Food Platform any Item for sale by Merchant deemed unsuitable for sale on the Noon Food Platform.

 iii. Service Level Agreements. Merchant acknowledges and agrees that it will:

1.        Accept or reject an Order made by a Customer via the Noon Food Platform within five (5) minutes of receiving the Order via the Noon Food Tools; and

2.        Complete preparation of the Order within twenty (20) minutes of accepting the Order via the Noon Food Tools.

Failure to meet these Service Level Agreements may result in (a) a temporary or permanent suspension of Merchant’s access to the Noon Food Services and Noon Food Tools in accordance with clause 1(j) of these Supplemental Terms or (b) a refund to the Customer in accordance with clause 2(b)(iii) of these Supplemental Terms.

b.   Item Inventory and Delivery Services.

i. Merchant acknowledges and agrees that neither Noon Food nor any Noon Food Delivery Partner takes title to any Item. Merchant remains responsible for the delivery of Items and shall maintain possession, control and care of the Items at all times in full compliance with Applicable Laws.

ii. 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 delivery of the Items to a Customer. Merchant agrees that, for purposes of delivery of Items, Delivery Partners shall operate under cover of the Merchant’s retail and health and safety licenses, registrations, authorizations and privileges and control.

iii. Merchant is 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). Noon Food may deduct refunds from the Item Revenue transmitted to Merchant under this Agreement.  Merchant acknowledges and agrees that it will be responsible for any refunds made for the following reasons:

1.        Merchant does not meet the Service Level Agreements described in section 2(a)(iii) for an Order;

2.        Merchant cancels an order after accepting; or

3.       Customer complains of wrong Items, missing Items, or about the food that can be proven via photographic evidence.

c. Documentation. Merchant will provide all documentation required by Noon Food (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 Noon Food with, and maintaining, accurate bank account information.

d.   Restrictions. Merchant will not, and will not allow any third party to: (i) use the Noon Food Services, the Noon Food Tools, or any other transactional, operational, performance or other data or information that is related to the sale of the Items (and, if applicable, delivery) to Customers through the Noon Food Platform to compete with Noon Food, its Affiliates or the Noon Food Services; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the Noon Food Services or Noon Food 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 Noon Food Services or Noon Food Tools (except as otherwise authorized by Noon Food).

e.   Tax. Merchant is responsible for ensuring the accuracy of its own tax filings.

3.   Ratings. Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the Noon Food Platform to provide a rating of such Item(s) (and, if applicable, delivery) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the Noon Food Platform, and either the delivery services or the Pickup Method experience ("Customer Feedback"). Noon Food reserves the right to use, share, and display Customer Feedback in any manner in connection with the business of Noon Food without attribution to or approval of Merchant. Noon Food 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 Noon Food’s content policies.

4.  Method Restrictions and Limitations.

a.  Method Settings. Merchant may have the ability to select multiple Methods. If and when available, Merchant can select either or both the Noon Delivery Services and the Restaurant Fulfilled Method for delivery of future orders of Items to its Customers. Merchant may apply its selections to some or all future orders. Merchant may modify its Method selection at any time. However, the selected Method for an order cannot be modified after the order has been placed. All Orders pending at the time Merchant modifies its Method must be completed via the Method selected when the Order was placed. The proper Method for each Order will be reflected in Merchant’s order dashboard available via the Noon Food Tools. Noon Food may modify delivery settings on Merchant’s behalf.

b.  Delivery Radius Modification. Noon Food, at its discretion, reserves the right to modify Merchant’s delivery radius for reasons including, without limitation, to prevent or otherwise limited unfulfilled orders.

c. Temporary Usage Restriction. Noon Food, at its discretion, reserves the right to restrict or otherwise limit Merchant’s access to the Noon Food Platform for a period of time for reasons including, without limitation, to prevent or otherwise limited unfulfilled orders.

d.  Transfer Restrictions. The following restricted items may not be transferred via the Noon Food Platform: 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.

5.  Marketing and Promotional Activities.

a.  Marketing. Noon Food may showcase the availability of Merchant’s Items via the Noon Food Platform through various promotional activities including, without limitation, social media channels, websites, advertisements, blogs or other media available now or hereinafter created. Noon Food (or a party designated by Noon Food acting on Noon Food’s behalf) may create video, still images and/or other materials for marketing and other efforts related to the Noon Food Platform ("Noon Food Marketing Materials"). Merchant agrees that Noon Food Marketing Materials (including, without limitation, all intellectual property rights therein) are and will remain the sole and exclusive property of Noon Food. Additionally, Merchant may choose to provide videos, still images and/or other materials to Noon Food ("Merchant Marketing Materials") for use in connection with the display of Merchant’s Items on the Noon Food Platform, and Merchant hereby grants Noon Food 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 Noon Food 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.

b.  No Additional Amounts. Merchant acknowledges and agrees that, through advertising and marketing, Noon Food may seek to attract new merchants to Noon Food and to increase existing users of the Noon Food Services and Noon Food Platform. 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.

c.  Noon Food Promotional Offers. Noon Food may provide promotional Offers to Customers on the Merchant’s behalf through the Noon Food Platform. The scope of such Offers will be defined by Noon Food. If Offer is entirely funded by Noon Food, Merchant acknowledges and agrees that Noon Food may discount Merchant’s Items at Noon Food’s discretion. If Offer is at least partially funded by the Merchant, Noon Food may only make an Offer available to Customers with written consent of Merchant.

i.Service Fees. When an Offer is funded entirely by Noon Food, the Marketplace Service Fee and Delivery Service Fee will be calculated as described in the Agreement and will not change, regardless if the Offer is applied as a discount to the Retail Price of the Item or to delivery. For the avoidance of doubt, in instances where an Offer has been applied as discount to the Retail Price of the Item and is funded entirely by Noon Food, the Marketplace Service Fee will be charged on the full Retail Price.

d.   Merchant Promotional Offers. Noon Food may authorize Merchant to use certain automated tools that allow Merchant to provide promotional Offers to Customers through the Noon Food Platform 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.

i.  Merchant Promotional Offers. Subject to this Agreement and any other guidelines or eligibility criteria for Offers that Noon Food may make available from time to time, Noon Food hereby authorizes Merchant to use Noon Food’s proprietary, automated tools ("Offer Tools") to create and provide Offers to Customers. Unless otherwise specified by Noon Food, Merchant will be 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. Each Offer will be subject to Noon Food’s approval. Merchant is responsible for providing to Noon Food Offer Materials in a format and within deadlines specified by Noon Food for such to be reproduced for the provision of the Offer to Customers.

 ii. Enhanced Promotional Placements. Subject to Noon Food Platform functionality, Noon Food 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 Noon Food Platform functionality.

iii.  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 Noon Food). For free or reduced Delivery Charge Offers, Merchant will be solely responsible for the reduction to the amount that Noon Food collects from Customers with respect to the Delivery Charge.

iv. Reporting and Offer Costs. Noon Food will use good faith efforts to provide Merchant with reasonable information regarding Merchant's Offers, which may include, without limitation, the Offer Costs and the number of Items sold in connection with an Offer. Noon Food, in its sole discretion, may highlight Offers and/or the results of Offer in its own marketing materials.

v.  Service Fees. For Items where a Merchant Offer has been applied as a discount to the Retail Price of the Item, Noon Food will charge Merchant a Marketplace Service Fee based on the discounted Retail Price and not the full Retail Price. If Merchant's Offer consists of a discount on delivery, the Delivery Service Fee will be calculated as described in the Agreement and will not change. Merchant agrees that Merchant is solely responsible for Offer Costs and that Noon Food may deduct Offer Costs from Merchant's Item Revenue. If Merchant is paid for an Item, it is responsible for the Marketplace Service Fee and relevant Offer Costs.

vi. Modification, Suspension, Discontinuation. Noon Food 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 Noon Food 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.

e.  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.

6.  Virtual Restaurants.

a.  Definition. A Merchant who currently offers Items via the Noon Food Platform may, under certain conditions, operate a Virtual Restaurant. All Virtual Restaurant Items are sold by Merchant.

b.  Merchant’s Responsibilities. Without prejudice to any other provision of this Agreement, a Merchant operating a Virtual Restaurant must adhere to the following conditions:

i.  Merchant represents and warrants that Merchant will prepare and sell all Items from Virtual Restaurant at Merchant’s restaurant premises.

ii.  If this premises address changes, Merchant will provide Noon Food with no less than seven (7) days’ advance written notice.

iii.  The Virtual Restaurant trading name is Merchant’s Mark and is subject to the indemnification provision of the Agreement. Merchant represents and warrants that (A) the Virtual Restaurant trading name does not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights and (B) it has the right to display the Virtual Restaurant trading name on the Noon Food Platform. Merchant agrees that Noon Food may remove Virtual Restaurant from the Noon Food Platform if Noon Food reasonably believes that it may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

iv.  Noon Food may provide Merchant with Virtual Restaurant Data. Merchant agrees that any Virtual Restaurant Data provided by Noon Food or its Affiliates to Merchant constitutes Confidential Information.

v. In consideration for access to Virtual Restaurant Data, Merchant will not enter into any agreement to make Items available via Virtual Restaurant, or using the same or similar menu or trading name to Virtual Restaurant, with any Noon Food Competitor.

7. Payment and Taxes.

a.  Fees and Taxes.

i. Payment Terms. All Fees under this Agreement will be paid in Arab Emirates Dirhams. Noon Food will deduct any Fees from the payment Noon Food collects from Customer on Merchant’s behalf, as detailed below.

ii. Revenue Transfer. Revenue Transfer under each Method is outlined in the applicable Specific Supplemental Terms. Item Revenue will be transferred fortnightly.Invoice for Fees will be generated to the Merchant on a weekly basis. . Noon Food reserves the right to (a) settle owed amounts through subsequent revenue transfer till such amounts are recovered (b)  settle owed amounts through the revenue transfer of another Merchant branch or restaurant using the Noon Food Services, (b) direct a Noon Food Affiliate to settle owed amounts if Merchant has contracted with the Affiliate for services, and/or (c)  suspend the Merchant’s access to the Noon Food Services in accordance with clause 1(j)(ii) of these Supplemental Terms.

iii. 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.

iv.  Marketing. In accordance with clause 9 of the Supplemental Terms, Noon Food may invoice the Merchant for agreed upon joint Offers or marketing campaigns as agreed on mutually by the Parties. Merchant authorizes Noon Food to raise invoices its behalf, if necessary, for any services provided by Merchant to Noon Food.

v.  Taxes on Fees.

1. All Fees payable pursuant to this Agreement shall be deemed to be exclusive of Value Added Tax (VAT). The term "VAT" includes any VAT, GST and/or similar sales taxes.

2.  If VAT is chargeable on any Fees, the Merchant shall pay to Noon Food an amount equal to the amount of the VAT in addition to and at the same time as payment of the Fees.

3. Fees shall be paid free and clear of and without deduction for or on account of withholding tax (if applicable). If Merchant is required to make such a deduction or withhold such tax, the sum payable by Merchant shall be increased to the extent necessary to ensure that Noon Food receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be made.

b. Retail Price of Items and Taxes.

 i. Merchant is the "retailer" or "seller" of all Items. Merchant is 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 Noon Food Platform (the "Retail Price"). The Retail Price for each Item will include VAT, but Merchant is solely responsible for determining and setting all applicable VAT and identifying and informing Noon Food of the appropriate VAT amount for Noon Food to charge Customers on Merchant’s behalf for Items available on the Noon Food Platform. To the extent that applicable VAT rate is not determined by Merchant, Merchant expressly authorizes Noon Food to make such determination on its behalf and Merchant hereby acknowledges and agrees that Noon Food will have no liability for the accuracy of any such determination. Merchant expressly authorizes Noon Food, at Merchant’s direction, to collect such VAT on Merchant’s behalf.

ii. 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.

c.  Reporting. Noon Food will provide Merchant with information regarding the number of Items sold by Merchant to its Customers. Noon Food will also provide information to Merchant regarding any refunds given to its Customers by Noon Food on Merchant’s behalf, including the date of the transaction, the Item(s) refunded, the reason for the refund and any other information Noon Food is permitted to provide under applicable privacy laws and regulations.

d.  Invoices. For the Orders received and accepted by the Merchant through Noon Food Platform, Merchant will be responsible for issuing invoice to the Customer. Noon Food will raise an invoice to the Merchant for the Fees.  

8. Marks.

Subject to this Agreement, each party hereby grants to the other party (and, in the case of Noon Food, to its Affiliates) a limited, non-exclusive 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 Noon Food in connection with making Items available through the Noon Food Platform 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, and will ensure that Merchant Delivery Partners do not, try to register or otherwise use and/or claim ownership in any of the Noon Food 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. 

9. Confidential Information; Personal Data; Feedback.

a.  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 Noon Food 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".

b. Privacy. Merchant agrees to use Personal Data provided to Merchant by Noon Food solely for the purpose of providing Items to Customers under this Agreement. Merchant agrees to use Personal Data provided to Merchant by Noon Food solely by using the Noon Food Tools provided by Noon Food and shall not copy, store, retain, remove from the Noon Food Tools or otherwise process the Personal Data. Only in the Restaurant Fulfilled Method, Merchant is permitted to copy Personal Data provided via the Noon Food Tools and share it with its Delivery Partners for the sole purpose of providing Items to Customers in accordance with this Agreement, and will be responsible for compliance with applicable data protection regulations as a data controller, or the responsible party, for such Personal Data as specified in clause 5(a) of the Restaurant Fulfilled Method Specific Supplemental Terms.

c.  Aggregate Data. Merchant acknowledges that Noon Food may use aggregate, anonymized data related to Merchant’s transactions in connection with the Noon Food 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 Noon Food may share Aggregate Data with such third party to enable the provision of Noon Food Services to Merchant.

d. Third Party Disclosure. Merchant acknowledges that Noon Food may share Merchant contact information (including name, address, email, and phone number) with third parties necessary to Merchant's onboarding on the Noon Food Platform, including logistics and/or delivery service providers (for the delivery of tablets or other equipment), as well as photography services (for any photography which may be provided by a third-party provider on behalf of Noon Food).

e.  Passwords. Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Noon Food Tools and related Noon Food Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.

f.  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.

g. Feedback. Merchant may, but is not obligated to, provide or otherwise make available to Noon Food certain feedback, suggestions, comments, ideas, or other concepts relating to Noon Food’s products and services ("Feedback"). However, to the extent that Merchant provides or otherwise makes available Feedback to Noon Food, Merchant hereby grants to Noon Food 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.

10.  Representation and Warranties; Indemnification; Limitation of Liability.

a. 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 in its performance of this Agreement; and (v) the content, media and other materials used or provided as part of this Agreement shall not infringe or otherwise violate the intellectual property rights, rights of publicity or other proprietary rights of any third party. Merchant represents and warrants that (i) all nutritional and allergen information that is made available through the Noon Food Platform is, and at all times will remain, accurate and compliant with all Applicable Laws, (ii) it is solely responsible for any liability arising from the purchase and consumption of Items by Customers or third parties, and (iii) the individual clicking to accept terms through the dashboards is authorized by Merchant to bind, and does hereby bind, Merchant to such terms. Merchant agrees and ensures that all food law requirements are fulfilled, in particular regarding allergens and/or origin of products of animal origin to the extent required by Applicable Laws.

b. 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, including  Delivery Partners making Restaurant Fulfilled deliveries) in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s (in Merchant’s case, including via their Delivery Partners) 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.

c.  Merchant will indemnify, defend and hold harmless the Noon Food 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 Noon Food 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 Noon Food 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 Noon Food or its employees, agents or Delivery Partners. With respect to the indemnities in (F) and (G) above, approval by a Noon Food Party of any Offer or use of any Offer Materials shall not affect this right of indemnification.

d. 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.

e. Limit of Liability.  Except for a party’s indemnification obligations or a breach of confidentiality obligations as set out in the General Supplemental Terms: (i) in no event shall either party be liable for any claim for indirect or consequential damages of any kind, including loss of business profits, or damages for loss of business of Merchant or any third party arising out of this Agreement, or loss or inaccuracy of data of any kind, or loss of or damage to goodwill, whether based on contract, tort or any other legal theory, even if such party has been advised of the possibility of such damages; and (ii)  Noon Food’s total cumulative liability of each and every kind under this Agreement shall not exceed 300 AED. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies.

11.  Insurance. During the Term and for one (1) year thereafter, each party will maintain sufficient insurance coverage to meet its obligations under this Agreement and by law.

12. Governing Law and Jurisdiction.

a. This Agreement shall be governed by and construed in accordance with the laws of Dubai. Both parties irrevocably submit to the exclusive jurisdiction of the courts of Dubai.

13.  General.

a.  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.

b. Modification. Any modification or amendment to the Order Form shall be effective only if in writing and signed by both parties, provided that Noon Food reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Any modification or amendment to the Supplemental Terms shall be in accordance with clause III(B) of the Order Form.

c. 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.

d. 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.

e.  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 Noon Food. Noon Food 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. Noon Food 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 labor law, tax law or social security law perspective), between Noon Food (and/or its Affiliates) and Merchant or Noon Food (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 Noon Food (and/or Noon Food’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 Noon Food 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.

g.  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."

h. Liability. Nothing herein limits or excludes (nor is intended to limit or exclude) any statutory rights that Merchant or Noon Food may have under Applicable Laws that cannot be lawfully limited or excluded.

i. Payment Processing Errors. Noon Food reserves the right, in its sole discretion, to seek reimbursement from Merchant if Noon Food discovers payment processing errors. Noon Food 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 Noon Food to use any or all of the above methods to seek reimbursement.

  Part  B. Specific Supplemental Terms

Section 1: Noon Food Delivery Service Terms

The following Specific Supplemental Terms govern the use of the Noon Food Delivery Services.

1. Noon Food Delivery Service. Upon Merchant agreeing to the Order Form, Definitions, General Supplemental Terms and Specific Supplemental Terms governing the Noon Food Delivery Service, and contingent upon completion of any additional verification steps, the Noon Food Tools will be made available to Merchant to access and request on-demand delivery services provided by Noon Food Delivery Partners allowing Items to be transferred from Merchant to Customer via Noon Food Delivery Partners.

2. Payment.

a.  Delivery Service Fee. In consideration for Delivery Services provided to the Merchant, Noon Food will charge Merchant a Delivery Service Fee in the amount set forth in the Order Form for each Order delivered by Noon Food via the Noon Food Platform.

b.  Delivery Charge. Noon Food may, in its sole discretion, charge a Customer a Delivery Charge for delivery of Items to Customer.

c.  Revenue Transfer.  Noon Food will transfer to Merchant the total Item Payment (including any VAT or other sales tax collected on Merchant’s behalf) earned by Merchant, Fees.

3.   Batched Trips. Noon Food may, at its sole discretion, arrange for one Noon Food Delivery Partner to deliver orders to multiple Customers as part of the same trip. Batched trips may include multiple orders from Merchant, or one or more orders from Merchant combined with one or more orders from other merchants using the Noon Food Platform.

Section 2: Restaurant Fulfilled Terms

If the Merchant choses to forego the Noon Food Delivery Services, the following Specific Supplemental Terms govern the Restaurant Fulfilled Method and Items delivered to Customers on behalf of Merchant by Merchant Delivery Partners. All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.

1. Restaurant Fulfilled Items. Upon Merchant agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Restaurant Fulfilled Method, and contingent upon completion of any additional verification steps, the Noon Food Tools will be made available to Merchant for it to (a) access and request lead generation, demand prediction, payment processing and other related services in connection with its sale and delivery of Items; and (b) fulfil the delivery of its Items using Merchant Delivery Partners.

2.  Payment.

a.  Service Fee. In consideration for the Marketplace Services and Payment Processing Services in connection with the Restaurant Fulfilled Method, Noon Food will charge Merchant a Marketplace Service Fee and Payment Processing Fee in the amount set forth in the Order Form for each Item sold by Merchant via the Noon Food Platform when delivery is undertaken by the Merchant.

b. Merchant Delivery Services. Merchant will pay Merchant Delivery Partners for their delivery services provided to Merchant at its sole discretion, and Merchant is at all times solely responsible for providing payment to Merchant Delivery Partners. If Merchant is paid for an order, Merchant is responsible for the Marketplace Service Fee even if a Merchant Delivery Partner is unable to complete the delivery. If applicable, Merchant authorizes Noon Food to collect a delivery charge from Customers on its behalf (the "Merchant Delivery Charge").

c.  Revenue Transfer. Noon Food will transfer to Merchant the total (i) Item Payment earned by Merchant (other than with respect to Restaurant Fulfilled Cash Orders); (ii) Merchant Delivery Charge collected from Customers on Merchant’s behalf (other than Merchant Delivery Charges directly collected by Merchant Delivery Partners with respect to Restaurant Fulfilled Cash Orders) (iii) gratuity paid by a Customer in respect of delivery services, if applicable, less Fees.

3.  Merchant Delivery Terms.

a. Provision of Delivery Services. If Merchant chooses for delivery services to be fulfilled by a Merchant Delivery Partner, Merchant will need to provide the Merchant Delivery Partner with certain Customer Information provided to Merchant through the Noon Food Tools, including (as applicable) the drop-off location of the applicable Items to be delivered and the name and phone number of the Customer. In order to enhance Customer’s satisfaction with the delivery services, it is recommended that a Merchant Delivery Partner: (i) follow Merchant’s instructions for drop-off details (e.g., the location within the building address to pick-up/drop-off a package, etc.); and (ii) wait at least ten (10) minutes for the Customer to appear at the requested pick-up or drop-off location. Merchant represents and warrants that it shall not, and shall ensure that all Merchant Delivery Partners do not, contact any Customers or use any of the Customer’s Personal Data collected in the course of providing the delivery services for any reason other than for the purposes of fulfilling delivery services. As between Noon Food and Merchant, Merchant acknowledges and agrees that: (a) Merchant and Merchant Delivery Partners shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of delivery services; and (b) except for the Noon Food Services and Noon Food Tools, Merchant shall provide all necessary equipment, tools and other materials, at Merchant’s expense, necessary to perform delivery services.

b.  Merchant’s Relationship with Customers. Noon Food and its Affiliates are not responsible or liable for the actions or inactions of a Customer in relation to the activities of Merchant, Merchant Delivery Partners or any Transportation Method. Merchant acknowledges and agrees that each Merchant Delivery Partner shall have the sole responsibility for any obligations or liabilities to Merchant, Customers or other third parties that arise from a Merchant Delivery Partner’s provision of delivery services. Merchant acknowledges and agrees that: (a) Merchant and each Merchant Delivery Partner is solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all Applicable Laws) regarding any acts or omissions of a Customer or other third party; and (b) Noon Food or its Affiliates may release Merchant’s or Merchant Delivery Partner’s contact and/or insurance information to a Customer upon such Customer’s reasonable request (e.g., in connection with an accident).

c. Merchant’s Relationship with Noon Food. Merchant acknowledges and agrees that Noon Food’s provision to Merchant of the Noon Food Services creates a legal and direct business relationship between Merchant and Noon Food. Noon Food does not, and shall not be deemed to, direct or control Merchant or its Merchant Delivery Partners generally or in its or their performance under this Agreement specifically, including in connection with the operation of its business, the provision of delivery services, the acts or omissions of Merchant Delivery Partners, or the operation and maintenance of any Transportation Method. Merchant and Merchant Delivery Partners retain the sole right to determine when, where and for how long each of them will utilize the Noon Food Services. Merchant will not, and will ensure that its Merchant Delivery Partners do not: (a) display Noon Food’s or any of its affiliates’ names, logos or colors on any Transportation Method; or (b) wear a uniform or any other clothing displaying Noon Food ’s or any of its affiliates’ names, logos or colors. The foregoing does not apply if Merchant and Noon Food have agreed otherwise in writing or if so required by law. Merchant acknowledges and agrees that Merchant has complete discretion to operate its independent business and direct its Merchant Delivery Partners at its own discretion, including the ability to provide services at any time to any third party separate and apart from the delivery services. Merchant understands that it retains the complete right to: (i) provide delivery services to its existing Customers; and (ii) use other software application services in addition to the Noon Food Services.

d. Merchant’s Relationship with Merchant Delivery Partners. Merchant shall have the sole responsibility for any obligations or liabilities to Merchant Delivery Partner that arise from its relationship with Merchant Delivery Partners (including the provision of delivery services). Merchant acknowledges and agrees that it exercises sole control over the Merchant Delivery Partners and will comply with (a) all Applicable Laws (including tax, social security and employment laws where applicable) governing or otherwise applicable to its relationship with Merchant Delivery Partners; (b) industry best practice in respect of working conditions and compensation for Merchant Delivery Partners. Notwithstanding Merchant’s rights, if applicable, to take recourse against Merchant Delivery Partners, Merchant acknowledges and agrees that it is at all times responsible and liable for the acts and omissions of Merchant Delivery Partners vis-à-vis Customers, Noon Food and its Affiliates, even where such liability may not be mandated under Applicable Law. Merchant hereby indemnifies Noon Food against any claims brought by or against Merchant Delivery Partners.

e.Batched Trips. Merchant agrees that Merchant’s Delivery Partners can deliver maximum 2 Orders received through Noon Food Platform only, as part of the same trip. For the avoidance of doubt, it is clarified that Merchant Delivery Partners will not club any other orders received from Noon’s Competitor or its own orders in the same trip along with Orders received from Noon Food Platform.

4. Merchant Delivery Partners and Transportation Methods.

a. Merchant Delivery Partner’s Requirements. Merchant acknowledges and agrees that each Merchant Delivery Partner shall at all times: (i) hold and maintain (A) a valid applicable license with the appropriate level of certification to operate the Transportation Method assigned to each Merchant Delivery Partner (e.g., a driver’s license if the Transportation Method is a motor vehicle), and (B) all licenses, permits, approvals and authority applicable to Merchant and/or Merchant Delivery Partner that are necessary to provide delivery services to third parties in the Territory; (ii) provide the delivery services in a professional manner with due skill, care and diligence; and (iii) maintain high standards of professionalism, service and courtesy. Merchant will undertake background and driving record checks from time to time, to the extent that such checks would be undertaken by a prudent Merchant exercising reasonable skill and care. Merchant acknowledges and agrees that Noon Food reserves the right, at any time in Noon Food ’s sole discretion, to (i) deactivate or otherwise restrict Merchant from accessing or using the Noon Food Services and/or Noon Food Tools, and/or (ii) request that Merchant prevent an Merchant Delivery Partner from providing delivery services on behalf of Merchant in connection with the Noon Food Services, in each case if Merchant and/or an Merchant Delivery Partner fails to meet the requirements set forth in this Agreement. In the event that Noon Food requests that Merchant prevents an Merchant Delivery Partner from providing delivery services on behalf of Merchant in connection with the Noon Food Services, Merchant shall procure compliance with such request.

b. Transportation Method Requirements. Merchant acknowledges and agrees that any Transportation Method will at all times be: (i) properly registered and licensed to operate as a delivery vehicle in the Territory (if the Transportation Method is a vehicle); (ii) owned or leased by Merchant, or otherwise in its lawful possession; (iii) suitable for performing the delivery services contemplated by this Agreement; and (iv) maintained in good operating condition, consistent with industry safety and maintenance standards for a Transportation Method of its kind and any additional standards or requirements in the applicable Territory, and in a clean and sanitary condition.

c. Taxes. Merchant acknowledges and agrees that Merchant is required to: (i) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of delivery services and receipt of the Noon Food Services as required by Applicable Law; and (ii) provide Noon Food with all relevant tax information (including a valid VAT number belonging to Merchant and/or any Merchant Delivery Partner, if obtaining a VAT number is required of Merchant and/or any Merchant Delivery Partner by Applicable Law). Merchant further acknowledges and agrees that Merchant and each of its Merchant Delivery Partners are responsible for taxes on their own income arising from the performance of delivery services. Notwithstanding anything to the contrary in this Agreement, Noon Food may in its reasonable discretion, and Merchant accordingly gives consent to Noon Food and its affiliates to, based on applicable tax and regulatory considerations, collect and remit taxes resulting from the provision of delivery services and/or provide any of the relevant tax information Merchant and/or any Merchant Delivery Partner has provided pursuant to the requirement mentioned above, directly to the applicable governmental tax authorities on Merchant’s and/or the applicable Merchant Delivery Partner’s behalf or otherwise.

5.  Privacy.

a. Merchant agrees to retain Personal Data provided to Merchant by Noon Food solely by using the software and tools provided by Noon Food, except that Merchant may provide Merchant Delivery Partners with the Personal Data specified in this Agreement. To the extent that any Personal Data is printed or written on a receipt and transferred to the Merchant Delivery Partner, Merchant shall procure that (i) the Merchant Delivery Partner transfers such receipt to the Customer on delivery of the Item(s); or (ii), if the delivery services cannot be completed, the Merchant Delivery Partner returns such receipt to Merchant and Merchant disposes of such receipt.

b. Subject to Applicable Law, Noon Food and its Affiliates may provide to Merchant, a Customer, an insurance company and/or relevant authorities and/or regulatory agencies any information (including Personal Data and Confidential Information) about Merchant or an Merchant Delivery Partner or any delivery services provided hereunder if: (i) there is a complaint, dispute or conflict, including an accident, between an Merchant Delivery Partner and Merchant or an Merchant Delivery Partner and a Customer; (ii) it is necessary to enforce the terms of this Agreement; (iii) it is required, in Noon Food ’s or any Affiliate’s sole discretion, by Applicable Law or regulatory requirements (e.g., Noon Food or its Affiliates receive a subpoena, warrant, or other legal process for information); or (iv) it is necessary, in Noon Food ’s or any Affiliate’s sole discretion, to (A) protect the safety, rights, property or security of Noon Food or its Affiliates, the Noon Food Services, the Noon Food Tools or any third party; (B) to protect the safety of the public for any reason including the facilitation of insurance claims related to the Noon Food Services; (C) to detect, prevent or otherwise address fraud, security or technical issues; (D) to prevent or stop activity which Noon Food or any of its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity; or (v) it is required or necessary, in Noon Food ’s or any Affiliate’s sole discretion, for insurance or other purposes related to Merchant and/or its Merchant Delivery Partners. Merchant understands, and will make Merchant Delivery Partners aware, that Noon Food and its Affiliates may retain Merchant and Merchant Delivery Partners’ Personal Data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated.

c. Noon Food and its Affiliates may collect Merchant or Merchant Delivery Partners’ Personal Data during the course of Merchant’s use of the Noon Food Services, or from third parties. Such information may be processed by Noon Food and its Affiliates, third parties and service providers, in accordance with its privacy policy (https://www.noon.com/uae-en/privacy-policy).

6.  Insurance.

a.  Prior to the Effective Date of the Agreement, Merchant must obtain the coverage required at its sole cost and expense. Merchant agrees to review the terms and conditions of such coverage to ensure that it provides the amounts of coverage required while Merchant and its Merchant Delivery Partners are using a vehicle to provide delivery services. As between Merchant and Noon Food, it is Merchant’s sole responsibility to inform its insurer of the use of its vehicles while providing delivery services.

b.  Merchant agrees to maintain during the Term all compulsory insurance required by Applicable Law to provide delivery services in the Territory. This shall include any applicable compulsory motor vehicle liability insurance on all vehicles operated by Merchant and Merchant Delivery Partners under this Agreement which provides protection against bodily injury and property damage to Merchant and/or Merchant Delivery Partners, and third parties at levels of coverage that satisfy the minimum requirements to operate a motor vehicle being used for delivery services on the public roads within the Territory.

7. Representations and Warranties; Disclaimers. Merchant’s representation and warranty to comply with all Applicable Laws in the performance of the Agreement (as per clause 12 of the General Supplemental Terms) shall include holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide (i) delivery services using the Transportation Method pursuant to this Agreement, and (ii) delivery services to third parties in the Territory generally.

8. Tax Indemnity. Merchant shall comply with all of its obligations under tax and social security laws to the extent applicable to this Agreement. Merchant shall indemnify Noon Food and its Affiliates from all tax liabilities, duties, levies, claims and penalties that may be imposed on Merchant or on Noon Food and/or its affiliates as a result of Merchant’s failure to comply with any of its tax obligations. In particular, but without limitation to the foregoing, such taxes or duties shall include taxes, wages or other duties or withholdings (including any wage tax, social insurance premiums or employee insurance premiums) arising in the event that the relationship described in this Agreement, contrary to the intention and meaning of the parties, should be held to be an employment agreement between Noon Food and Merchant by any fiscal or social security authority.

9.  Relationship of the Parties.

a.  Merchant has no authority to bind Noon Food and/or its Affiliates and Merchant undertakes not to hold itself out, and to ensure that each Merchant Delivery Partner does not hold herself or himself out, as an employee, worker, agent or authorized representative of Noon Food and/or its Affiliates. Where, by implication of mandatory law or otherwise, Merchant or any Merchant Delivery Partner may be deemed an employee, worker, agent or representative of Noon Food or an Affiliate of Noon Food, Merchant undertakes and agrees to indemnify, defend (at Noon Food’s option) and hold Noon Food and its affiliates harmless from and against any claims by any person, entity, regulators or governmental authorities based on such implied employment, agency or representative relationship.

 Merchant expressly acknowledges and agrees that by agreeing to this Agreement, Merchant intends to perform delivery services in a non-incidental manner and, as such, Noon Food will consider Merchant and Merchant Delivery Partners to be taxable persons in accordance with all applicable VAT and indirect tax legislation.

 Section 3: Pick Up Method Terms

The following Specific Supplemental Terms govern the Pickup Method and Items provided to Customers via the Pickup Method. All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.

1.  Pickup Items. Upon Merchant agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Pickup Method, and contingent upon completion of any additional verification steps, the Noon Food Tools will be made available, if and while available by Noon Food in its sole discretion, to Merchant for it to allow Customers to collect Items requested via the Noon Food Platform from a specified location without the involvement of a Delivery Partner. Merchant agrees to make Items available via the Noon Food Platform during its normal business hours, and as further set forth in this clause or mutually agreed between the parties in writing.

2.  Payment.

a .Marketplace Service Fee. In consideration for the Marketplace Services provided to the Merchant, Noon Food will charge Merchant a Marketplace Service Fee in the amount set forth in the Order Form. If payment is made via the Noon Food Platform, Noon Food will charge Merchant a Payment Processing Fee in the amount set forth in the Order Form. There shall be no additional Fee for each Item sold bthe y Merchant via the Noon Food Platform and collected by the Customer without involvement of a Delivery Partner.

b. Delivery Services. Pickup Items do not require the involvement of a Delivery Partner. As such, for Pickup Items, no delivery services are provided, so there is no Delivery Charge.

c. Revenue Transfer. Noon Food will transfer to Merchant the total (i) Item Payment earned by Merchant (other than with respect to Pickup Cash Orders), less Fees  (such final transferred amount being the "Pickup Item Revenue").

Part C: VIP Program

The following terms and conditions govern the VIP Program.

1.Eligibility

During the Term of the Agreement, Merchant can participate or nominate the Restaurants to participate in the VIP Program by opting for it on Noon Food Tool or writing to Noon Food at [e-mail]..

2.Opt-out

Merchant can opt-out from the VIP Program at any time by giving Noon Food seven (7) days advance notice by writing to Noon Food at [e-mail]..  During the notice period, the Merchant will be responsible for adhering to the VIP Programs terms and conditions and honor all the obligations under it. Post completion of the notice period, the Fees applicable to Non-VIP Merchant will be applicable.

3.Termination or suspension:

The VIP Program has no predetermined termination date and may continue until such time as Noon Food decides to terminate the VIP Program, at any time, with or without notice.

If Noon Food believes that the Merchant’s use of the VIP Program  may be in breach of law or the Agreement, Noon Food reserves the right to (i) suspend or terminate the participation in VIP Program with immediate effect; (ii) suspend Noon Food Tools and Platform access; (iii) terminate the Agreement; and/or (iv) take such other action as Noon Food deems reasonable in the circumstances.