Last Updated: June 8, 2022
By (1) placing and/or accepting an order via the services, tools, or app (as defined herein) or (2) executing an order form or related agreement that references these terms, Customer hereby accepts and agrees to be bound by 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 "Customer" 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 described herein.
1. General.
Upon consent or acceptance as provided above, these Customer Terms and Conditions ("Terms") are an agreement between the company either identified within the Notch sign up process or that executes an Order Form or related agreement (in either case, “Customer” or “You”) and VenderHero US Inc. (“Notch,” which is a wholly owned subsidiary of VenderHero Inc. (“Notch”)). Upon acceptance of these Terms, Customer may request access to Sales Channels (as described in more detail herein) and Services. Such request(s) may require acceptance of additional addenda, terms or conditions, and/or terms of use by Customer. Notch maintains sole discretion for initial and/or ongoing provision of any such Sales Channel(s) or Service(s). These Terms may be subject to and/or incorporate an Order Form between Customer and Notch (the “Order Form”), and/or any applicable Sales Channel Addenda, Product Addenda, or terms of use (these Terms, together with any such Order Form, addenda, or terms of use, collectively, the “Agreement”). Customer’s access to and use of the Services and Tools (as defined herein) is subject to the Agreement and may be modified or updated by Notch/Notch from time to time, effective upon posting an updated version of these Terms and/or an applicable Product or Sales Channel Addenda. Customer is responsible for updating contact information and regularly reviewing the Agreement and any applicable Product or Sales Channel Addenda for updates and information from Notch/Notch. Continued use of the Services, Tools, and/or App(s) after any such modifications or updates shall constitute Customer’s consent to such changes.
2. Services.
2.1 Items and Services.
Notch and its affiliates make available certain proprietary technology services that facilitate the marketing, sale, and fulfillment of orders for items (“Items”) to Customer from Vendors (as defined below), including product catalog availability and pricing, order processing, proprietary information services, onboarding, operational and other support services (the “Services”).
2.2 Additional Tools.
In connection with the Services, Notch and its affiliates may also make available to Customer a website, mobile application or other technology interface for Customer to access and use the Services (collectively, the “Tools”), which may include Notch’s and its affiliates’ proprietary technology platform, through which Customer may, among other things, place, receive, and modify requests for Items from Vendors and receive insights and analytics regarding Customer’s performance and history using the Services.
2.3 The Application(s).
Notch and its affiliates may also make available to Customers its proprietary technology that enables Customers to purchase Items from vendors and request delivery services for said Items from Vendors (as defined below), who retrieve such Items for Customer and deliver such Items to such Customers (the “App(s)”). Vendors are independent contractors, and as such, they reserve the right to accept, modify, and refuse to accept any Item in their sole discretion.
2.4 Orders: Notch will enable Customer to purchase items from their existing vendor in which they have a previous relationship with using Notch’s Technology.
2.5 Pricing of Products Listed: Notch will list items at the pricing provided by Customer and/or Vendor(s).
2.6 Invoicing & Payment:
3. Notch obligations.
3.1 Access to Services.
Subject to the terms and conditions of this Agreement, Notch and its affiliates may make available the applicable Services to Customer, solely for use by Customer at locations that are owned and operated by Customer (each, a “Location”). In addition, Notch may make available certain Tools to Customer, and Customer may access and use those Tools solely in connection with Customer’s use of the Services. For the avoidance of doubt, as between Customer and Notch, Notch will retain sole control over the App(s) (and all elements of the Customer experience and interface relating to the App(s)), including: (i) the personalization of the App(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 App(s) to optimize reliability or efficiency on the App(s).
3.2 Technology, Not Delivery, Services.
Customer agrees neither Notch nor its affiliates provide any delivery services. Rather, Notch provides technology services that both (i) enable Customer to connect with Vendors who may sell Items to Customer
4. Fees & Billing.
4.1 Subscription and Onboarding Fee Plan.
Customer agrees to pay Notch such Subscription Fee and Onboarding Fee to access and use Notch services pursuant to the Customer Agreement entered into between Notch and Customer. Notch grants you a limited, revocable, non-exclusive, non-transferable license to access and use the applicable Services during the course of the Customer Agreement. Onboarding Fees are non-refundable and non-transferrable.
4.2 Billing of Subscription and Onboarding Fees.
Notch will bill all necessary onboarding fees and monthly/annual subscription fees upon completion date of the Customer Agreement entered into between Notch and Customer. Recurring Subscription Fees will be billed monthly on the day of the completion of the Customer Agreement entered into between Notch and Customer. For any additional locations that join the Notch Platform will be prorated according to the monthly or annual billing cycle.
4.3 Service Fee Plan.
Customer agrees to pay Notch such Service Fee in consideration of the payment processing of ordered items (“Items”) to Customer from Vendors (as defined below).
Unless 1) otherwise displayed in the Tools or agreed to by the parties or; 2) modified by requirement of applicable laws or regulations, the Fee shall be calculated as follows:
i) Notch will charge a 2.5% for all transactions paid through Notch Pay to be withdrawn from the funds that are remitted to the supplier
ii) Funds will be directly deposited into the supplier bank account
iii) Customer is responsible for ensuring that supplier bank account is added onto the Notch Product (Training will be provided on how to on-board suppliers)
4.4 Refunds
All refunds will be applied to in the form of a customer credit for any refunded fees related to this agreement.
4.5 Price Changes
We may change the price of the Services at any time and if you have a recurring purchase, we will notify you by email, or other reasonable manner, at least 15 days before the price change. If you do not agree to the price change, you must cancel and stop using the Services before the price change takes effect. If there is a fixed term and price for your Service offer, that price will remain in force for the fixed term.
4.6 Disputed Charges
If You believe that Notch has invoiced You incorrectly, You must contact Notch no later than 30 days after the invoice date in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, You agree to pay any undisputed amounts in accordance with the payment terms herein, and You and Notch will discuss the disputed amounts in good faith in order to resolve the dispute.
4.7 Late Payment
You may not withhold or setoff any amounts due under this Agreement. Notch reserves the right to revoke or alter terms or suspend Your access to Notch until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of half a percent (0.5%) weekly (26% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. We reserve the right to revoke or alter terms and suspend access to your ability to place orders until payment is made.
4.8 Taxes
You will be responsible for and pay all applicable taxes on the transactions contemplated in connection with this Agreement.
4.9 Suspension
Any suspension of the Services or Your use of or access to Notch pursuant to the terms of this Agreement will not excuse Your obligation to make payments under this Agreement.
5. Commissary guidelines (if applicable).
5.1 General.
Notch represents, warrants and agrees that Notch’s online ordering platform (the “Portal”) shall provide the following for the Commissary:
i) The Commissary will be able to offer their locations centralized mobile and web digital ordering
ii) The Commissary will be able to receive orders via Notch Connect, Email & SMS
iii) Payment options will be accepted and facilitated through the Portal for Commissary’s locations
iv) The Commissary will use Notch Connect to fulfill all orders placed via the Portal from the locations
5.2 Pricing and Events.
Pricing on the Portal will reflect pricing the Commissary wants to display. Commissary must establish with Notch the date for which updated price lists are to be submitted. Once that date is set, it’s the expectation that the Commissary send the updated price list 24 hours in advance of the effective date for net new orders (one full business day before new prices go into effect). Commissary agrees to honour the price displayed at time of buyer’s order. Any edits, modifications or changes must be made in Notch Connect prior to fulfillment and a new price list needs to be sent to Notch to update Portal.
Payments made on the Portal from individual location will be managed and facilitated by Notch
Notch will pay Commissary for all orders placed once a week netting out any service fees or refunds on paid when paid terms with Locations after the order has been fulfilled on Notch Connect. Notch will pay based on orders fulfilled in Notch Connect net of the Notch fees.
Taxes: If applicable, the Commissary will bear all taxes, duties, and other governmental charges arising out of or resulting from this Agreement. The parties agree that the Commissary will be making sales of Products to the End User and is the seller of record of the Products. Except as expressly set forth herein, Notch is acting as the agent of the End User for Customer Orders placed under this Agreement, and title shall pass from the Commissary to the End User. Commissary will be responsible for remitting all sales taxes on Customer Orders to the appropriate tax authorities.
5.3 Credit Awards (for buyer’s on Terms).
It is the responsibility of the Commissary to assess the credit worthiness of each location. Notch acts as the execution arm for said Commissary in using technology and automations to collect on behalf of the Commissary. All risk exposure around bad debt remains with the Commissary.
Notch, will make every effort to collect outstanding receivable(s) from the location’s on behalf of the Commissary. In the case whereby, a buyer’s terms are exceeded, interest begins to accrue for the location based on the interest terms as outlined in Appendix A
Notch commits to clearly communicate with the Commissary in the form of analytics around buyers who have exceeded credit limits and have receivables that are aged past due. All efforts will be made to continue to collect those funds until the Commissary and Notch have deemed that a balance has become uncollectible.
5.4 Orders.
Notch will enable the Commissary to list products it wishes to make available for sale to any of the Commissary’s Locations using the Commissary’s Notch account.
5.5 Price Updates.
It is the expectation that the Commissary sends the updated price list 24 hours in advance of the effective date for net new orders (one full business day before new prices go into effect). Commissary agrees to honour price on purchase order at the date and time of location’s order. Any edits, modifications or changes must be made in Notch Connect prior to fulfillment.
5.6 Assignment.
You will not assign this Agreement to any third party without Notch’s prior written consent. Notch may assign this Agreement or any rights under this Agreement to any third party without your consent. Any assignment in violation of this section will be void. This Agreement will inure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.
5.7 Privacy & Confidentiality.
Any information that is obtained by Notch for the Commissary’s Portal is considered extremely confidential and will not be disclosed by Notch. Notch agrees to not disclose the confidential information obtained from The Commissary or via the Portal unless required to do so by law, and in such case Notch shall forthwith notify the Commissary of such required disclosure. Notch agrees that it will not, disclose or make available, to any person or entity, any personal information relating to or in connection with the information disclosed by the Commissary or on the Portal.
5.8 Compliance with Laws.
The Commissary will access and use the Notch Platform and otherwise perform its duties and obligations under this Agreement in compliance with all applicable laws, including but not limited to, food safety laws. The Commissary agrees that the Services will not include the delivery of hazardous or quantity restricted products. The Commissary will ensure that all products are of good and marketable quality and are suitable for their intended purpose.
6. Buyer representation & partnership announcements.
6.1 Buyer representations.
You represent and warrant that You have the right and authority to enter into this Agreement and bind Buyer to this Agreement. You agree to keep Your Notch account credentials strictly confidential, and to only permit individuals who are similarly authorized to bind to this agreement to use them.
6.2 Use of name and logo.
Customer consents to Notch’s use of its name and logo for the purposes of partnership announcements, press releases and Notch’s customer list (which may be published on its website, and in hard copy materials, displayed in Notch facilities, or any other marketing materials related to the promotion of Notch and Notch services indicating that Customer is a user of Notch and Notch services.) Logo, name, and references to the Customer may be removed / use discontinued upon request. Customer may use the Notch name and logo for purposes contemplated in this Agreement with prior consent from Notch.
7. General provisions.
7.1 Assignment
You will not assign this Agreement to any third party without Notch’s prior written consent. Notch may assign this Agreement or any rights under this Agreement to any third party without Your consent. Any assignment in violation of this section will be void. This Agreement will insure to the benefit of and be binding upon the parties, their permitted successors and permitted assignees.
7.2 Choice of law
This Agreement and any action related thereto will be governed by and construed in accordance with the laws in effect in the Province of Ontario, without regard to conflicts of law principles.
7.3 Disputes
The parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Notch from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
7.4 Force majeure
Neither Party will be liable for delays caused by any event or circumstances beyond Company’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Company’s employees), Internet service failures or delays, or the unavailability or modification by third parties of telecommunications or hosting infrastructure or third party websites.
7.5 Entire agreement
This Agreement shall supersede any prior promises, agreements, representations, undertakings or implications whether made orally or in writing between Notch and Buyer relating to the subject matter of this Agreement.
7.6 Severability
Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
7.7 Amendments
No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby.
7.8 Indemnification
Each party will defend, indemnify, and hold harmless the other party, its Affiliates, and its and their representatives (collectively, the “Indemnitees”) against all liabilities, damages, and costs (including settlement costs, fines, penalties, and reasonable attorneys’ fees) (collectively, “Losses”) incurred by any Indemnitee to the extent arising out of, or relating to, any actual or threatened third party claim (“Claim”) arising from or in connection with a party’s breach of its representations and warranties under this Agreement. Buyer shall defend, indemnify, and hold harmless Notch and its Indemnitees from any Losses for any Claims related to the non-conformity or defect of any Product (including any product liability), except to the extent caused by Notch. Any damages to property shall be dealt with directly between Buyer and Supplier.
7.9 Limitation of liability
Notwithstanding anything to the contrary contained in this agreement, to the maximum extent permitted by applicable law, Notch will not, under any circumstances, be liable to Buyer for any consequential, indirect, incidental, punitive, special, or exemplary damages or lost profits, loss of revenue, or loss of business arising out of or related to this agreement, even if Notch is apprised of the likelihood of such damages occurring. Notwithstanding anything to the contrary contained in this agreement, to the maximum extent permitted by applicable law, under no circumstances will Notch’s total liability of any kind arising out of or related to this agreement (including warranty claims), regardless of the forum and regardless of whether any action or claim is based on contract, tort, negligence, or otherwise, exceed the total amount of service fees paid by Buyer to Notch under this agreement in the preceding twelve (12) month period (determined as of the date of any final judgment in an action).
Each provision of this agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this agreement between the parties.
This allocation is reflected in the pricing and other terms and conditions offered by Notch to Buyer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this agreement. The limitations in this section will apply notwithstanding the failure of the essential purpose of any limited remedy in this agreement.
7.10 Terms and termination
This Agreement will commence upon the Effective Date and continue for a period of twelve (12) months after the Effective Date (the “Term”), unless this Agreement is earlier terminated in accordance with this Section. The agreement shall auto renew on a month-to-month basis afterwards. Either Party may terminate this Agreement upon the date that is one hundred eighty (180)(the “Trial Period”) days following the Contract Date (the “Agreement”) by providing the other Party written notice of such termination at least thirty (30) days prior to the expiration of the Trial Period. After the Trial Period and during the Term, either Party may terminate this Agreement for any reason by providing at least thirty (30) days written notice to the other Party once the initial terms are complete. Further, either Party may immediately terminate this Agreement if: (a) the other Party has committed a material breach that has not been cured within thirty (30) days after receiving written notice of such material breach, or (b) a receiver is appointed for the other Party or its property or the other Party becomes insolvent or is unable to pay its debts as they become due.
7.11 Electronic transmission
This Agreement may be executed in one or more counterparts and delivered via email or electronic transmission in PDF format, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.
7.12 Contact
If you have any questions regarding these Website Terms and Conditions or intellectual property matters, or if you have any legal concern relating to VendorHero or its business, please contact VendorHero / Notch at: support@notchordering.com
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