The CoBuilders Merchant Terms of Service

BEFORE YOU USE THE COBUILDERS MARKETPLACE OR ANY OTHER THE COBUILDERS PRODUCT OR SERVICE PLEASE READ THESE TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY. 

BY SIGNING UP WITH THE COBUILDERS OR USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AS STATED IN THE SIGN-UP FORM AND ALL OF YOUR PARTICIPATING MERCHANT LOCATIONS ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET OR FASTART ORDER ADDENDUM. THE COBUILDERS MAY REVISE THESE TERMS FROM TIME TO TIME. WE WILL NOTIFY YOU OF MATERIAL REVISIONS VIA A SERVICE NOTIFICATION OR AN EMAIL TO THE EMAIL ADDRESS ASSOCIATED WITH YOUR ACCOUNT. BY CONTINUING TO ACCESS OR USE THE SERVICES AFTER THOSE REVISIONS BECOME EFFECTIVE, YOU AGREE TO BE BOUND BY THE REVISED TERMS.

SECTION 13 (GOVERNING LAW, ARBITRATION, CONSOLIDATED ACTIONS WAIVER) OF THE TERMS OF SERVICE CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 13.2. (ARBITRATION AGREEMENT) SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE THE DISPUTE RESOLUTION SECTION FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

BY ENTERING INTO THESE TERMS OF SERVICE WITH THE COBUILDERS, YOU AGREE TO COMPLY WITH APPLICABLE LOCAL LAWS AND GUIDELINES. ADDITIONALLY, YOU UNDERSTAND AND ACKNOWLEDGE THAT YOU MAY BE WAIVING YOUR RIGHTS AND OPTING OUT OF FEE LIMITS UNDER CERTAIN LAWS. THESE RIGHTS AND YOUR WAIVER(S) ARE DESCRIBED BELOW IN SECTION 7 AND ARE ACCESSIBLE AT LOCAL LAWS USA.

These Terms of Service, together with the Sign-Up Sheet, the applicable Product Addenda, and other attachments or exhibits hereto, (the “Agreement”) between The CoBuilders and Merchant is effective as of the date that you enter into the Sign-Up Sheet with The CoBuilders. In the event of a conflict between any of the terms in this Terms of Service, a Product Addendum, and/or the Sign-Up Sheet, the conflict will be construed in the following order of precedence: 1) Section 15 (Additional Terms for Non-Enterprise Merchants), 2) Product Addenda, 3) any other term in these Terms of Service, 4) Sign-Up Sheet.

1. PREAMBLE. The CoBuilders provides a suite of products, services, and technology solutions to enable merchants to grow their businesses, including online marketplace(s), white label fulfillment, demand generation, and certain promotions or marketing services, among others. Merchants are house cleaning businesses, professional cleaners, and/or professional cleaning teams that provide cleanings services to businesses. The CoBuilders and Merchant wish to enter into a partnership pursuant to the terms set forth in this Agreement. Merchant may opt into certain The CoBuilders Products by entering into the applicable Product Addendum. This Agreement applies to all Merchant Locations owned or operated by Merchant, unless excluded in an attached exhibit or mutually agreed in writing. For Merchants operating a franchisee or similar structure, please refer to Section 14.11.

2. OPERATING PROCEDURES.

2.1. The CoBuilders Responsibilities. The CoBuilders will perform the obligations listed in the applicable Product Addenda.

2.2. Merchant Responsibilities. Merchant will: (a) perform the obligations listed in the applicable Product Addenda; (b) notify The CoBuilders of its days and hours of operation, including on holidays; and (c) notify relevant Merchant Location staff members of the relationship with The CoBuilders, and train staff members on receiving and fulfilling The CoBuilders Orders as soon as practicable upon execution of this Product Addendum and on an ongoing basis.

2.3. Malware. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products or services (including the applicable The CoBuilders Product and/or Merchant Application) any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.

2.4. Hours of Operation. The CoBuilders will only accept Orders during the operating hours for the applicable The CoBuilders Product, which may vary by Merchant Location and will be separately communicated to Merchant.

2.5. Service Areas. To ensure service quality, The CoBuilders will only accept Orders to be provided within a certain preset service area. The CoBuilders will separately communicate to Merchant the maximum service area applicable to Merchant and/or each Merchant Location.

2.6. This paragraph applies only if Merchant uses a Third Party Platform. During the Term, The CoBuilders will be Merchant’s sole preferred provider and/or have the right of first refusal (“Preferred Provider”) for all Orders that are located within The CoBuilders’s service area. Both Parties acknowledge that this provision does not conflict with, or result in a breach or default of, any previously existing agreements, terms, or conditions to which such Party may be bound, such as an exclusivity agreement or most favored nation clause.

2.7. This paragraph applies only if The CoBuilders Product is Merchant’s Exclusive Platform. If The CoBuilders Product is designated as Merchant’s Exclusive Platform, Merchant agrees it will neither contract with any other third-party house cleaning and/or cleaning service provider or platform, nor otherwise permit or consent to Merchant’s inclusion in any third-party house cleaning ordering and/or cleaning service provider or platform. Furthermore, Merchant agrees that it will make best efforts to block and/or reject orders placed with Merchant Locations by any other third-party house cleaning and/or cleaning service provider or platform. Merchant will demonstrate to The CoBuilders that it has used commercially reasonable efforts to request such third-party house cleaning and/or cleaning service provider or platform to take down Merchant's Locations from its platform.

2.8. Modifications. The CoBuilders reserves the right, at its sole discretion, to change, suspend, or discontinue any The CoBuilders Product (including the availability of any feature or content) or Merchant Location at any time. Merchant shall not list or include any Merchant Products or Locations that subject The CoBuilders to undue regulatory risk, health and safety risk, or other liability. Any such Merchant Products or Locations are subject to removal by The CoBuilders. If applicable, The CoBuilders may, at its sole discretion, remove any Merchant virtual brand concept from The CoBuilders Product, if The CoBuilders determines that such virtual brand concept does not meet and maintain certain eligibility requirements as communicated by The CoBuilders, provided, however, that The CoBuilders shall use commercially reasonable efforts to inform Merchant of such removal.

2.9. Redelivery. Orders requiring redelivery due to Merchant’s error, including Merchant Personnel providing poor or incomplete Service to the Customer, are subject to Fees as an additional service.

3. PAYMENTS. Merchant agrees to pay the Fee(s) as agreed in the Product Addendum and as described in the Rate Card for the applicable The CoBuilders Product. Except as expressly set forth in this Agreement, each Party is responsible for its own costs. Merchant agrees to communicate to The CoBuilders any Dispute, disagreement, or issue with a transaction, Fee, or Order, including those made in connection with fraudulent transactions or payments, within fourteen (14) days of the applicable transaction, Fee, or Order.

4. TAXES. Merchant is responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products under this Agreement, and remitting such taxes, duties, and other governmental charges to the appropriate authorities. In many jurisdictions, The CoBuilders may be required to collect sales, use or similar taxes from the Customer and remit such taxes directly to the tax authority. In such jurisdictions, The CoBuilders will inform Merchant that The CoBuilders will remit any applicable taxes to the tax authority and The CoBuilders will be relieved of any responsibility to remit such applicable taxes to Merchant. Additional terms related to the Parties’ respective tax obligations may be set forth in the applicable Product Addendum.

5. LICENSE.

5.1. Use of The CoBuilders Products. During the Term, The CoBuilders grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, and fully paid-up license to access The CoBuilders Product solely to transmit information to facilitate deliveries or pick up in accordance with the terms of this Agreement. The CoBuilders owns and retains all rights, title, and interest in The CoBuilders IP.

5.2. The CoBuilders Product Restrictions. Merchant will not and will not permit or authorize any third party to: (a) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit The CoBuilders Product; (b) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to The CoBuilders Product; (c) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of The CoBuilders Product unless such actions are authorized by compulsory provisions of applicable law; (d) use The CoBuilders Product in any manner or for any purpose that violates any Law; and (e) use The CoBuilders Product for a reason other than as specifically provided or intended under this Agreement (which includes the applicable Product Addendum).

5.3. Merchant Content and Trademark; Photographs of Merchant Products.

5.3.1.         Merchant grants to The CoBuilders a royalty-free, non-exclusive, limited, revocable, and non-transferable right and license to use and display the Merchant Content in the provision of services to Merchant, including, where applicable, listing Merchant as a merchant on The CoBuilders Product, referencing Merchant as a The CoBuilders partner, promoting The CoBuilders’s products and services, and sharing Merchant Content with third parties, including third party services which enable The CoBuilders Customers to access The CoBuilders Products (including its web pages) for Orders.

5.3.2.         If photographs of Merchant Products are not available or if they do not meet The CoBuilders’s requirements, as reasonably determined by The CoBuilders, then Merchant consents to The CoBuilders: (i) engaging a professional photographer to take photographs of Merchant Products or other products; (ii) enhancing the quality of Merchant’s existing photographs; (iii) using stock photographs of the Merchant Products or other products; and/or (iv) using photographs from Merchant’s website or social media channels, and displaying such photographs on the applicable The CoBuilders Product as representations of Merchant Products; provided that Merchant may contact The CoBuilders support to have such photographs removed from the Merchant’s store listing and, in such event, The CoBuilders will comply in a timely manner.

5.4. Goodwill. If Licensee, in the course of performing this Agreement, acquires any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Licensor: (a) when and as such acquisition of goodwill or reputation occurs; (b) at the expiration or termination of this Agreement; and (c) without any separate payment or other consideration of any kind to Licensee. Licensee agrees to take all such actions reasonably necessary to effect such vesting. Licensee will not contest the validity of any of the Marks or Licensor’s exclusive ownership of them. During the Term, Licensee will not adopt, use or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of the Marks or any word or mark confusingly similar to them in any jurisdiction. As it pertains to The CoBuilders, The CoBuilders’s parent company (if applicable) may be considered a “Licensor” hereunder.

5.5. Feedback. Merchant may provide The CoBuilders with Feedback. Merchant hereby grants and agrees to grant The CoBuilders all rights, title, and ownership of such Feedback on an unrestricted basis.

6. TERM AND TERMINATION.

6.1. Term. The Agreement will begin on the Effective Date and continue until terminated in accordance with this Agreement, or once all Product Addenda hereunder have terminated or expired, whichever is earlier.

6.2. Termination. Merchant may terminate this Agreement or any Product Addendum for any reason at any time upon seven (7) days’ prior written notice to The CoBuilders. The CoBuilders may terminate this Agreement or any Product Addendum for any reason at any time upon written notice. Either Party may terminate this Agreement immediately, (a) in the event of a material breach by the other Party or (b) if the other Party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. If either Party terminates the Agreement, all Product Addenda shall automatically terminate.

6.3. Survival. Sections 3 (Payments), 4 (Taxes), 5 (License), 6 (Term and Termination), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Data Privacy and Security), 13 (Governing Law, Arbitration, Class Action Waiver), and 14 (Miscellaneous) and rights and obligations in this Agreement which, by their nature, should (or by their express terms do) survive or extend beyond the termination or expiration of this Agreement, shall so survive and extend.

7. REPRESENTATIONS, WARRANTIES, AND WAIVERS.

7.1. Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the full right, power, and authority to enter into and perform its obligations under this Agreement, including any Product Addendum; (b) its performance of its obligations under this Agreement will not result in a breach of any obligation to any third party; (c) such Party’s Marks and materials owned, licensed, developed or used in performance of this Agreement do not knowingly infringe or violate any third-party intellectual property right; (d) it will obtain any necessary permits, consents, certificates, approvals, inspections, releases, authorizations, and licenses and/or file any registration forms (if any) in connection with performing its obligations under this Agreement; and (e) it will comply with all applicable law, regulations, and rules in operating its business and performing its responsibilities hereunder (including, if applicable to Merchant, all such Laws regarding health, cleaning products safety, sanitation, cleaning services and labeling, including required consumer-facing warnings and calorie information).

7.2. Merchant. Merchant represents and warrants that: (a) it will inform The CoBuilders of any warnings, charges, opt-ins, and instructions related to Merchant Products that become required in the future; (b) if applicable, it will disclose common allergens in any Merchant Products items listed on or sold through the The CoBuilders Product; (c) it will not include any products restricted by The CoBuilders (“Prohibited Behaviors”) as a Merchant Product available on a The CoBuilders Product, or request cleaning of any Restricted services through the The CoBuilders Product, provided that The CoBuilders may allow promotion, sale or delivery of certain Prohibited Behaviors after Merchant has entered into a separate agreement with The CoBuilders memorializing such promotion, sale, and/or delivery of such service in compliance with the Laws of the applicable jurisdiction in which such products will be sold; (d) it will not disclose any information related to a Dasher or a The CoBuilders Customer to a third party (except as required to comply with Law or pursuant to a court order); (e) it will comply with the guidelines The CoBuilders publishes that govern any Merchant Content posts on the applicable The CoBuilders Product or Merchant Portal; (f) it shall not offer incentives or payments for reviews or ratings of its business on The CoBuilders Products; and (g) it shall not use the The CoBuilders Products for any purpose that is detrimental to The CoBuilders or The CoBuilders Product. The list of Prohibited Behaviors is available at https://www.thecobuilders.com/house-cleaning-services/safety/prohibited-behaviors/ and is updated by The CoBuilders from time to time.

7.3. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1(c), TO THE EXTENT PERMITTED BY APPLICABLE LAW, The CoBuilders HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY The CoBuilders PRODUCT, AND EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS IMPLIED, OR STATUTORY RELATED TO EQUIPMENT OR SERVICES PROVIDED TO THE OTHER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. Merchant acknowledges that the operation of the The CoBuilders Product may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and The CoBuilders shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to The CoBuilders Product or services. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement.

7.4. Compliance with Local Laws; Waivers. Each Party agrees to comply with applicable local laws and guidelines (“Local Laws”) currently in effect or enacted in the future. To the extent that Merchant avails of The CoBuilders Products in jurisdictions where industry specific Local Laws apply, Merchant agrees that all such Local Laws, including those listed at LOCAL LAWS USA are incorporated herein by reference. Merchant acknowledges that Merchant has read and understood all applicable Waivers, including those related to fee limits, detailed in the abovementioned hyperlink. This list is non-exhaustive and it shall be each Party’s responsibility to identify and comply with any additional laws that apply to their operations.

7.5. Remedies. In the event of a breach of Section 7.1(c), the non-breaching Party’s sole remedy, and the breaching Party’s sole liability, is indemnification pursuant to Section 8.1(d).

8. INDEMNIFICATION.

8.1. Indemnification. The Indemnifying Party will, at its own expense defend the Indemnified Party to the fullest extent permitted by Law, and also indemnify the Indemnified Party for any and all Losses arising out of any third-party claim that alleges or results from: (a) any breach of Section 7 by the Indemnifying Party or its Personnel; (b) the gross negligence or more culpable act or omission of the Indemnifying Party or Personnel (including any reckless misconduct) in connection with the performance of this Agreement; (c) bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party or its Personnel (including any reckless or willful misconduct) (or, in the case of Merchant as the Indemnifying Party, caused by Merchant Products or any violation or alleged violation Section 7.1(e) as it pertains to Merchant Products, except to the extent such Losses were caused directly by the gross negligence or willful misconduct of The CoBuilders, including Dashers); and (d) infringement or misappropriation of the intellectual property rights of any third party by the Indemnifying Party’s services (including, in the case of The CoBuilders, The CoBuilders Product, and in the case of Merchant, the Merchant Applications) or Marks.

8.2. Process. The Indemnified Party shall provide the Indemnifying Party with: (a) prompt notice of any claims, which in no event shall be later than thirty (30) calendar days after the Indemnified Party knew or reasonably should have known that the Indemnifying Party’s defense obligation had been triggered; (b) the option to assume sole control over defense and settlement of any claim; and (c) reasonable assistance in connection with such defense and settlement of the claim, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense and settlement at its own expense. The Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent.

8.3. Exclusions. Notwithstanding Section 8.1(d) and for clarity: (a) the Indemnifying Party shall have no duty to defend any third-party allegations of intellectual property infringement or misappropriation (an “IP Claim”) arising out of or related to the conduct of persons or entities other than the Indemnifying Party or its Personnel; and (b) in the case of The CoBuilders, The CoBuilders shall have no duty to defend an IP Claim to the extent such IP Claim would not have occurred without Merchant’s use of The CoBuilders Product in combination with a Merchant Application, or other Merchant-provided product, process, step, structure, data, or business method, and/or Merchant’s unauthorized modification of The CoBuilders Product. Notwithstanding Section 8.1(a), The CoBuilders shall have no duty to defend or Indemnify Merchant for taxes, duties, and other governmental charges.

9. LIMITATION OF LIABILITY.

9.1. Direct Damages Only. Except with respect to amounts payable to third parties under Section 8, neither Party will be liable to the other for consequential, special, incidental, punitive, exemplary, or indirect damages or for lost profits, lost revenues, harm to goodwill, or the costs of procuring replacement services, regardless of whether such damages were foreseeable. This limitation will apply to all claims under all theories of law and equity, except where prohibited by Law.

9.2. Limitation. Except in the event of a Party’s gross negligence or willful misconduct, or payment obligations, and where prohibited by Law (collectively, the “LOL Exclusions”) or a Party’s indemnification obligations in this Agreement, the total liability of either Party to the other will not exceed $250,000.00. The total liability of either Party to the other for the LOL Exclusions will not exceed $1,000,000.00. For clarity, a Party’s obligation to pay third parties under Section 8 are uncapped.

9.3. Franchisees. For Merchants operating a franchise or similar structure, this limitation of liability applies to all Merchant Locations and all franchisees cumulatively and not individually.

10.     CONFIDENTIALITY.

10.1.    Precedence. The terms of this Section 10 supersede any non-disclosure or confidentiality agreement entered into by the Parties prior to the Effective Date of this Agreement.

10.2.    Includes. Confidential Information includes information about the Discloser’s business, including product designs, product plans, software and technology, financial information, marketing plans, business opportunities, pricing information, discounts, inventions, and know-how, to the extent disclosed to the Recipient hereunder, and all other information that the Recipient knew, or reasonably should have known, was Confidential Information of the Discloser. Confidential Information also includes the terms and conditions of this Agreement and the existence of the discussions between the Parties. Confidential Information includes trade secrets as defined under applicable law (which includes the Uniform Trade Secrets Act).

10.3.    Does Not Include. Confidential Information does not include information that: (a) is independently developed; (b) is or becomes public knowledge through no breach of this Agreement; or (c) is received from a third party under circumstances that do not create a reasonable suspicion that such information has been misappropriated or improperly disclosed.

10.4.    Recipient Obligations. The Recipient shall: (a) use Confidential Information only as necessary to perform its obligations and/or exercise its rights under this Agreement; (b) hold Confidential Information in strict confidence and take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential materials); (c) not divulge any Confidential Information to any third party except as provided herein; and (d) not copy or reverse engineer any materials disclosed under this Agreement, or remove any proprietary markings from any Confidential Information.

10.5.    Recipient Personnel. The Discloser acknowledges that the Recipient’s Personnel may have access to the Discloser’s Confidential Information. Any such Recipient Personnel given access to any Confidential Information must have a legitimate “need to know,” and the Recipient shall remain responsible for Recipient Personnel’s compliance with the terms of this Agreement.

10.6.    Disclosure of Confidential Information. A Recipient may disclose Confidential Information as compelled by a court or regulator of competent authority, provided that the Recipient provides the Discloser with prompt written notice of such request, to the extent such notice is legally permissible and reasonably practicable.

11.     DATA PRIVACY AND SECURITY.

11.1.    Merchant agrees not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner The CoBuilders Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep The CoBuilders Data secure from unauthorized access and maintain the accuracy and integrity of The CoBuilders Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to The CoBuilders Data, Merchant will immediately notify The CoBuilders, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by The CoBuilders. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by The CoBuilders and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use The CoBuilders Product and will be responsible for damages resulting from sharing Merchant’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Merchant’s account. Merchants may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the The CoBuilders Product; damage, destroy or impede the services provided through The CoBuilders Product; transmit injurious code; or bypass or breach any security protection on The CoBuilders Product. For purposes of clarity, The CoBuilders Data is the Confidential Information of The CoBuilders.

11.2.    Any additional data privacy and security terms required in order to comply with the privacy regulations applicable to the Parties’ partnership in other countries may be set forth in the applicable Product Addendum. The Recipient will establish, maintain, and implement an information security program, including appropriate administrative, technical, organizational, and physical safeguards, that are designed to: (a) ensure the security and confidentiality of Personal Information provided by the Discloser; (b) protect against threats or hazards to the security or integrity of such Personal Information; (c) protect against unauthorized access to or use of such Personal Information; and (d) ensure the proper disposal or destruction of such Personal Information. Each Party shall at all times comply with applicable data privacy and security Laws. If the Recipient becomes aware of any unauthorized access to or loss of Personal Information, it shall promptly report such incident to the Discloser and take appropriate remedial actions.

12.     INSURANCE.

12.1.    General. The insurance amounts indicated are minimum requirements and not limits of liability, and they are not to be construed as a Party’s consent to substitute its financial liability in excess of the amounts provided in Section 9.

12.2.    Minimum Requirements.

12.2.1.       For Merchants with greater than $1,000,000.00 in annual sales across all The CoBuilders Product(s), each Party will maintain at its sole cost and expense: (a) worker's compensation and employers’ liability insurance with limits no less than the minimum amount required by applicable law for each accident, including occupational disease coverage; (b) commercial general liability insurance, including product liability, and excess liability endorsements of $1,000,000.00 per occurrence; (c) cybersecurity insurance up to $2,000,000.00 per claim and in the aggregate; and (d) umbrella/excess liability insurance up to $5,000,000.00 and in the aggregate.

12.2.2.       For Merchants with less than $1,000,000.00 in annual sales across all The CoBuilders Product(s), each Party will maintain at its sole cost and expense: (a) worker's compensation and employers’ liability insurance with limits no less than the minimum amount required by Law for each accident, including occupational disease coverage; (b) commercial general liability insurance, including product liability, and excess liability endorsements of $1,000,000.00 per occurrence; (c) cybersecurity insurance up to $1,000,000.00 per claim and in the aggregate; and (d) umbrella/excess liability insurance up to $2,000,000.00 and in the aggregate.

12.3.    The CoBuilders Requirements. In addition, The CoBuilders will maintain automobile liability insurance covering The CoBuilders and Dashers (regardless of whether the vehicles driven by such Dashers are owned by The CoBuilders, Dashers or a third party) of $1,000,000.00 per occurrence. The CoBuilders will require all Dashers to maintain a current and valid automobile insurance policy with limits of liability at least equal to any minimum limits of liability required under Law.

12.4.    Coverage. The policy limits stated above may be met in the form of primary and umbrella/excess coverage. Such insurance is primary and not contributory with the other Party’s insurance.

13.     GOVERNING LAW, ARBITRATION, CONSOLIDATED ACTIONS WAIVER.

13.1.    Governing Law and Arbitration. This Agreement is governed by and interpreted in accordance with the laws of the State of Delaware without regard to the conflicts of laws principles thereof. The Parties hereby consent to exclusive jurisdiction in the courts of San Francisco, California, except as set forth in Section 13.2.

13.2.    Arbitration Agreement. Any Dispute shall be finally resolved by binding arbitration except claims: (a) in small claims court, so long as the matter advances only on an individual (non-class, non-representative) basis; and (b) for injunctive relief arising out of the infringement or other misuse of intellectual property rights (such as a Party’s Marks or The CoBuilders IP). This arbitration agreement shall be governed by the Federal Arbitration Act in all respects. If the rules and procedures of the Federal Arbitration Act cannot apply, the state law governing arbitration agreements in the state of the Merchant Location most closely associated with the Dispute shall apply. The arbitration will be conducted by ADR Services, Inc. pursuant to the most current version of its rules available at https://www.adrservices.com/services/arbitration-rules/. The Parties further agree that any and all arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by Law. Judgment on the resulting award may be entered in any court having jurisdiction. This arbitration agreement explicitly supersedes any and all different or contradictory terms included in the Agreement. This arbitration agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement, and explicitly supersedes any and all different or contradictory terms included in the Agreement.

13.3.    Consolidated Actions Waiver. To the extent allowed by law, separate and apart from Section 13.2, Merchant agrees that any proceeding to litigate in court any Dispute arising out of or relating to this Agreement will be conducted solely on an individual basis, and Merchant agrees not to seek to have any controversy, claim or Dispute heard as on a class, representative, or collective basis (“Consolidated Actions Waiver”). Merchant further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all Parties to any such proceeding. The enforceability of this Consolidated Actions Waiver shall only be determined by a court of competent jurisdiction. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void, or voidable with respect to a particular claim or Dispute, then all such claims or Disputes will be resolved in court, after the conclusion of the arbitration of any arbitrable claims or Disputes, and the remainder of this Section 13.3 shall remain in full force and effect. The Parties also waive the right to bring any claims for public injunctive relief. If, however, this waiver of public injunctive relief claims is deemed invalid or unenforceable with respect to a particular claim or Dispute, then all such claims and Disputes will then be resolved in arbitration.

13.4.    Fees. In the event of any Dispute, the Party prevailing in such Dispute shall be entitled to collect from the other Party all costs incurred in such Dispute, including administrative, attorneys’ fees, costs of collection, and filing fees and the arbitrator’s fees and costs.

14.     MISCELLANEOUS.

14.1.    Relationship of the Parties. Notwithstanding any provision herein to the contrary, each Party is an independent contractor with respect to its performance of its obligations hereunder. Nothing contained herein is deemed to create the relationship of partnership, principal, and agent, or joint venture between the Parties. Neither Party has any right or authority to incur obligations of any kind in the name of, or for the account of, the other Party nor to commit or bind the other Party to any contract or other obligation. Under no circumstances is either Party considered to be, nor will either Party hold itself out as, an employee, agent, franchisee, or joint venturer of the other Party.

14.2.    Regulatory Fees. If there is a Change in Law, The CoBuilders may pass through such fees and/or costs generated as a result of the Change in Law to Merchant in the affected jurisdiction(s) with 15 days’ written notice. Merchant may terminate this Agreement in part with respect to the affected jurisdiction by providing The CoBuilders with 15 days’ written notice from the date of The CoBuilders’s notice. Notwithstanding the foregoing, either Party may exercise its termination rights hereunder, either in whole or in part as it pertains to the affected store or jurisdiction.

14.3.    Prohibited Behaviors. Merchant will comply with the version of the Prohibited Behaviors published as of the Effective Date at the following hyperlink: https://www.thecobuilders.com/house-cleaning-services/safety/prohibited-behaviors/, or such other internal code of conduct in effect with Merchant, that Merchant affirms substantially conforms with the Prohibited Behaviors. The CoBuilders shall also comply with the Prohibited Behaviors.

14.4.    Counterparts. This Agreement may be executed in one or more counterparts and signed copies may be delivered by email, in which event, each of which is deemed an original, and all of which together constitute one agreement.

14.5.    Entire Agreement. This Agreement represents the entire agreement between The CoBuilders and Merchant with respect to the subject matter hereof, and supersedes all prior agreements with respect to the subject matter hereof.

14.6.    No Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both Parties. The waiver by any Party of any breach or default will not constitute a waiver of any different or subsequent breach or default.

14.7.    Assignment. Neither Party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent may not be unreasonably withheld, and any attempted assignment without such consent will be void; provided that either Party may assign this Agreement without such consent, to an Affiliate, or in connection with any merger, consolidation, sale of all or substantially all of the assigning Party’s assets, or any other similar transaction. Subject to the foregoing in this Section 14.7, this Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each Party. This Agreement will not confer any rights or remedies upon any person other than the Parties, their respective successors, and permitted assigns.

14.8.    Enforcement. If any provision of this Agreement is held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality, or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal, or unenforceable provision had never been contained herein.

14.9.    Notices. Legal notices to either Party shall be sent to the applicable address on the first page of the Sign-Up Sheet, or such other address as the Party communicates in writing.

14.10.  Promotional Programs; Future Program Changes. This Section 14.10 applies only if Merchant operates a franchisee or similar structure.

14.10.1.     Future Program Changes. From time to time during the Term, Merchant and The CoBuilders may desire to implement efficient enrollment processes that will enable Eligible Franchisees to participate in new The CoBuilders products, promotions or services and/or effect changes to the commercial terms pursuant to which The CoBuilders provides its services to such Eligible Franchisees (“Future Program Changes”).

14.10.2.     To the extent that Merchant is responsible for enrolling Eligible Franchisees to Future Program Changes, The CoBuilders agrees that Merchant may do so in the form of an opt-in, an opt-out, or similar mass sign-up system (“Enrollment Protocol”), provided that Merchant shall administer such Enrollment Protocol in compliance with Law and pursuant to its franchise Product Addendums with the Eligible Franchisees. Furthermore, Merchant agrees to defend, indemnify, and hold The CoBuilders harmless from and against Losses with respect to claims of Eligible Franchisees arising out of or related to the Enrollment Protocol or the enrollment of such Eligible Franchisee to the Future Program Changes.

14.10.3.     To the extent that The CoBuilders is responsible for enrolling Eligible Franchisees to Future Program Changes, Merchant agrees that The CoBuilders may do so in the form of an Enrollment Protocol, provided that The CoBuilders shall administer such Enrollment Protocol in compliance with Law. Furthermore, The CoBuilders agrees to defend, indemnify, and hold Merchant harmless from and against Losses with respect to claims of Eligible Franchisees arising out of or related to the Enrollment Protocol or for The CoBuilders’s error during the enrollment of such Eligible Franchisee to the Future Program Changes.

14.11.  Franchisees. This Section 14.11 applies only if Merchant operates a franchisee or similar structure. Merchant’s Eligible Franchisees may use certain The CoBuilders Products hereunder pursuant to the terms and conditions of this Agreement, provided that: (a) Merchant has executed the requisite Product Addenda; and (b) the individual franchisee enters into an agreement in substantially the same form as the Franchisee Agreement attached to this Agreement as Exhibit A. For purposes of the Agreement, an “Eligible Franchisee” means a franchisee of Merchant that has signed the Franchisee Agreement. Merchant shall indemnify, defend, and hold The CoBuilders harmless against any third-party suits, fees, costs or expenses resulting from a dispute between Merchant and any of Merchant’s Franchisees relating to or arising from conduct of the Merchant (including former Franchisees). The CoBuilders acknowledges that Merchant is not responsible or liable for any Eligible Franchisee’s acts, omissions or performance, including an Eligible Franchisee’s payment obligations, under the Franchisee Agreement or other agreement between The CoBuilders and Eligible Franchisee. In Sections 2 (Operating Procedures), 3 (Payments), 4 (Taxes), 5.1 (Use of The CoBuilders Products), and 5.2 (The CoBuilders Product Restrictions), “Merchant” shall be replaced with “Eligible Franchisee.” In Sections 6 (Term and Termination), 7 (Representations and Warranties), 8 (Indemnification), 10 (Confidentiality), 11 (Data Privacy and Security), and 12 (Insurance) “Merchant” shall be replaced with “Merchant and Eligible Franchisee”.

14.12.  Use Only Where Legally Allowed. Merchant shall not access or use The CoBuilders Products or any portion of The CoBuilders Products if it is not legally allowed to do so where it is located.

14.13.  Third-Party Add-On Features. From time to time, The CoBuilders may make available third-party add-on features (“Third-Party Add-On Features”) for use with The CoBuilders Products. Third-Party Add-On Features are not included within the definition of The CoBuilders Products under this Agreement, and The CoBuilders hereby expressly disclaims all warranties, express, implied, or statutory, regarding Third-Party Add-On Features, including but not limited to any implied warranties of merchantability, title, satisfactory quality or results, or fitness for a particular purpose and non-infringement. The CoBuilders also makes no representations or warranties regarding availability of any Third-Party Add-On Feature. Third-Party Add-On Features may be discontinued by The CoBuilders and/or the third-party provider at any time, with or without cause.

14.14.  Communications from The CoBuilders. Merchant agrees to receive communications from The CoBuilders, its affiliates, and Dashers, including via email, text message, calls, and push notifications to the mobile telephone number Merchant provides to The CoBuilders. Merchant also agrees that it may receive communications generated by automatic telephone dialing systems which may deliver pre-recorded messages.  Merchant acknowledges that it can opt out of promotional SMS at any time by texting “STOP.” Message and data rates may apply.

14.15.  Copyright Infringement. If you believe that your work has been copied and posted on The CoBuilders Products in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on The CoBuilders Products of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for The CoBuilders’s Copyright Agent for notice of claims of copyright infringement is as follows: General Counsel, The CoBuilders, Inc., 303 2nd St, Suite 800, San Francisco, CA 94107.

15. ADDITIONAL TERMS FOR NON-ENTERPRISE MERCHANTS.

15.1.    Fees.

15.1.1.       The CoBuilders shall be entitled to deduct from such payments The CoBuilders’s Commission Rate, marketing fees (for identifiable orders), activation fees, subscription fees, and any other fees which The CoBuilders may notify you regarding with at least seven (7) days’ advance written notice.

15.1.2.       To the extent that a third party provider provides services to Merchant on basis of an agreement between third party provider and Merchant via The CoBuilders Product (for example, a middleware provider) and charges fees to The CoBuilders, The CoBuilders may pass through such third party’s fees to Merchant.

15.1.3.       Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to The CoBuilders in writing (email shall suffice for written notice) any claimed inaccuracies, so that The CoBuilders has the prompt opportunity to address and resolve any issues and so such issues do not persist, which The CoBuilders and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to The CoBuilders any disagreement, non-conformity or any issue with any transaction, fee, charge or order, including in connection with fraudulent transactions or payments, within fourteen (14) days of the transaction, fee or order.

15.2.    Premier Plan Rebate. If The CoBuilders offers Merchant a Premier Plan then, as part of such Premier Plan, The CoBuilders will make available a feature to eligible Merchants where The CoBuilders will refund a Merchant’s commission fees for a given month if the Merchant completed less than 20 orders during such month (the “Premier Plan Rebate”). In order to qualify for the Premier Plan Rebate for a given month, Merchants must (1) have a Commission Rate higher than 28%, (2) sign up for the Premier Plan via the Sign-Up Sheet, (3) cancel fewer than 5 orders during the month, and (4) maintain "open hours" on The CoBuilders at least for 90% of the store hours the Merchant has set on the Merchant Portal. The CoBuilders may cancel the Premier Plan upon seven (7) days’ prior notice at its discretion.

16. DEFINITIONS. Note that certain terms may not appear in these Terms of Service but may appear in the Sign-Up Sheet, Rate Card, or a Product Addendum.

16.1.    “Affiliate” means an entity controlled by, controlling or under common control with a Party.

16.2.    “Change in Law” means a material change in (or change in enforcement thereof) Law, labor standard or unionization pertaining to independent contractors and/or the delivery of services.

16.3.    “Commission” means the fee The CoBuilders charges Merchant for an Order, which is calculated by multiplying (i) the applicable Commission Rate by (ii) the subtotal for the Merchant Products ordered by the Customer, excluding all applicable taxes and other governmental fees and surcharges, such as an applicable local bottle deposit fee.

16.4.    “Commission Rate” means the percentage, indicated in the Rate Card for the applicable The CoBuilders Product, that The CoBuilders shall charge Merchant on each Order.

16.5.    “Confidential Information” means all confidential, proprietary, or nonpublic information provided by the Discloser to the Recipient that a reasonable industry participant would deem to be confidential, as further described in Section 10.

16.6.    “Customer” means “The CoBuilders Customer” and “Merchant Customer” collectively or individually, as the context requires.

16.7.    “Cleaner” means a person contracted by The CoBuilders to perform the applicable services.

16.9.    “Service Order” means an Cleaning Service that is provided by a Cleaner.

16.10.  “Discloser” means the Party disclosing Confidential Information.

16.11.  “Dispute” means any dispute, claim or controversy arising out of, relating to, or in connection with this Agreement, including the breach, termination, enforcement, interpretation or validity thereof (as well as the determination of the formation, scope, or applicability of the arbitration agreement in Section 13) or the relationship between the Parties, their affiliates and subsidiaries, and each of their respective owners, directors, managers, and personnel.

16.12.  “The CoBuilders Customer” means the end user accessing The CoBuilders Product to place an Order.

16.13.  “The CoBuilders Data” means any information that The CoBuilders provides or makes accessible to Merchant, including Personal Information.

16.14.  “The CoBuilders IP” includes all patents, patent applications, inventions, copyrights, trade secrets, Marks, ideas, images (including descriptions of such images), domain names, and any and all other works and materials developed by The CoBuilders (including all intellectual property rights therein and thereto), and similar rights owned by The CoBuilders that are embodied in the The CoBuilders Product or any other The CoBuilders technology or platform.

16.15.  “The CoBuilders Product” means The CoBuilders technology that Merchant accesses or The CoBuilders provides, as defined in the applicable Product Addendum, in each case, that will allow information to be exchanged between Merchant (which may include Merchant Applications and/or a Third Party Platform) and The CoBuilders. References to the “The CoBuilders Product” include the The CoBuilders Product Documentation.

16.16.  “The CoBuilders Product Documentation” means documentation, specifications, and other materials (whether written or electronic) that describe the operation or function of a The CoBuilders Product.

16.17.  “Exclusive Platform” means that The CoBuilders Product is the Merchant’s exclusive third-party house cleaning and/or cleaning service provider or platform.

16.18.  “Fee” means the fee or commission rate indicated in the Rate Card for the applicable The CoBuilders Product, plus all tips paid by Customer, and may include separate fees for different Order types, if applicable.

16.19.  “Feedback” means any comments, suggestions, or ideas for improvement regarding the The CoBuilders Product or The CoBuilders Product Documentation, or Merchant’s evaluation and use thereof.

16.20.  “including” means “including without limitation”.

16.21.  “Indemnified Party” means the Party entitled to or seeking indemnification, pursuant to the terms of this Agreement, and its affiliates, respective officers, directors, shareholders, Personnel, successors, and permitted assigns.

16.22.  “Indemnifying Party” means the Party indemnifying the other Party pursuant to the terms of this Agreement.

16.23.  “Law” means all laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to the referenced Party.

16.24.  “Licensee” means the Party receiving the license described in Section 5.

16.25.  “Licensor” means the Party granting the license described in Section 5. As it pertains to The CoBuilders, an Affiliate of The CoBuilders may be considered a “Licensor” hereunder.

16.26.  “Losses” means the resulting judgments, fines, settlements, court costs, and attorneys’ fees that are incurred by the Indemnified Party, in each case finally awarded by a court of competent jurisdiction.

16.27.  “Marks” means the corporate names, trade names, trademarks, service marks, and logos (including third-party marks to which the Licensor has rights and uses in its business). This includes “The CoBuilders”, “FASTART”, ”” and “ ” marks, as well as any successor marks or designations.

16.28.  “Merchant Application” means the software and/or system(s) that are used by Merchant (if any) to provide digital order solutions and services to Customers generally, including Merchant’s website.

16.29.  “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), business information and Merchant Product descriptions (either provided by Merchant or on Merchant’s website), trademarks, logos, Merchant name, location, url, phone number, and other materials provided by Merchant to The CoBuilders.

16.30.  “Merchant Customer” means the Customer accessing the Merchant Application(s) to place an Order.

16.31.  “Merchant Location” means the Merchant store, location, warehouse, or restaurant that are within the territory serviced by The CoBuilders and includes: (a) Merchant Locations owned and operated by Merchant and/or its affiliates, and/or (b) Merchant Locations owned and operated by franchisees of Merchant or its affiliates which have signed the Franchisee Agreement.

16.32.  “Merchant Portal” means the portal made available by The CoBuilders to Merchant which provides Merchant with Order sales information and other functionality in connection with Merchant’s relationship with The CoBuilders. For purposes of the Agreement, the Merchant Portal is a The CoBuilders Product.

16.33.  “Merchant Product” means the products (e.g., cleaning services, cleaning products, drying products, retail items, etc.) provided by Merchant.

16.34.  “Personnel” means a Party’s employees, agents, contractors, or subcontractors.

16.35.  “Order” means Cleaning Orders collectively.

16.36.  “Order Equipment” means any equipment reasonably required by The CoBuilders for Merchant to receive, process and accept Orders (including a tablet or other technology capable of receiving Orders).

16.37.  “Party” means The CoBuilders or Merchant, as the context requires.

16.38.  “Personal Information” means any information that (a) relates to an identified or identifiable natural person (including names, telephone numbers, addresses, signatures, email addresses, and/or other unique identifiers); or (b) that can reasonably be used to identify or authenticate an individual, directly or indirectly (including name, contact information, precise location information, access credentials, persistent identifiers, and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law, including, if applicable, the General Data Protection Regulation (GDPR)), which is collected and/or handled by any of the Parties in connection with this Agreement.

16.39.  “Pick Up Order” means an Order that the Customer picks up at the Merchant Location, instead of being delivered by a Dasher.

16.40.  “Product Addendum” means an addendum to this Agreement that describes The CoBuilders Product that Merchant accesses pursuant to the terms herein.

16.41.  “Rate Card” means the schedule that details the rates and fees that Merchant shall pay for The CoBuilders Product(s) that Merchant opts into and/or uses.

16.42.  “Recipient” means the Party receiving Confidential Information.

16.43.  “Scheduled Order” means an Order that the Customer or Merchant indicates should be delivered at some point in the future.

16.44.  “Term” means the period from the Effective Date until the date of termination.

16.45.  “Third Party Platform” means a third party’s technology interface, such as a middleware technology platform, other than The CoBuilders Product and Merchant Applications, that enables Merchant to request cleaning fulfillment and/or provide information necessary to enable such cleaning fulfillment.

16.46.  “Unattended Order” means an Order that the Dasher leaves at the Customer’s front door or similar location.

16.47.  “Weblink” means a link from Merchant’s website through an “order now” button that directs traffic to the Merchant Location online ordering page on The CoBuilders Product.

EXHIBIT A - FRANCHISEE AGREEMENT

This Franchisee Agreement (the “Franchisee Agreement”) is between The CoBuilders and Franchisee. As it pertains to this Franchisee Agreement, The CoBuilders and Franchisee are each a “Party”. By entering into a Franchisee Sign-Up Sheet with The CoBuilders, the duly authorized representatives of the Parties agree to the terms and conditions of this Franchisee Agreement.

1. FRANCHISOR AGREEMENT. Franchisee’s franchisor (“Franchisor”) has entered into a master services agreement with The CoBuilders ("Agreement"), which may be attached hereto. The Agreement provides that Franchisee may elect to use certain The CoBuilders Products that Franchisor has enabled in its Agreement, provided that Franchisee executes this Franchisee Agreement. Accordingly, to use such in The CoBuilders Products, Franchisee agrees to be subject to all terms and conditions of this Franchisee Agreement and all terms and conditions of the Agreement, including any Product Addendum, as the same may be amended from time to time by The CoBuilders and Franchisor, which are incorporated into this Franchisee Agreement by reference. For clarity, unless otherwise indicated in this Franchisee Agreement or in the Agreement, all references to “Merchant” in the Agreement include Franchisee. Franchisee acknowledges and agrees that the limits set forth in the Limitation of Liability provision in the Agreement shall apply to Franchisor and all franchisees in the aggregate. All references to “Merchant Locations” shall be deemed references to Franchisee’s stores (“Franchisee Locations”). Any other terms not otherwise defined herein shall have the definitions set forth in the Agreement. Under no circumstances shall anything in this Franchisee Agreement be construed to authorize Franchisee to amend, modify, or adjust the Agreement between The CoBuilders and Franchisor.

2. TERM OF FRANCHISEE AGREEMENT. This Franchisee Agreement shall commence on the Franchisee Effective Date and will expire upon the earlier of: (a) the date of the expiration or termination of the Agreement; or (b) the date this Franchisee Agreement is terminated pursuant to Section 3 of this Franchisee Agreement.

3. ELIGIBLE FRANCHISEE. If Franchisee ceases to possess the rights as a franchisee of Franchisor then this Franchisee Agreement will terminate as soon as The CoBuilders is notified of such rights being lost. Either Party may terminate this Franchisee Agreement upon seven (7) days’ prior written notice to the other Party for any reason in its sole discretion. Termination of this Franchisee Agreement will not be considered a breach of this Franchisee Agreement or the Agreement. Nothing in this Franchisee Agreement or the Agreement is intended to prevent The CoBuilders and Franchisee, if it is no longer an Eligible Franchisee, from entering into a new agreement following termination of this Franchisee Agreement.

4. MERCHANT OF RECORD. Franchisee is solely responsible and liable to The CoBuilders to pay all Fees, payments, charges, and taxes associated with The CoBuilders Products, in addition to complying with Franchisee’s other obligations under the Agreement and this Franchisee Agreement. Franchisee will be The CoBuilders’s merchant of record for sales completed in a The CoBuilders Product provided under this Franchisee Agreement. The Parties acknowledge and agree that any breach of this Franchisee Agreement or the Agreement by Franchisee will not be considered a breach by Franchisor of the Agreement.

5. PAYMENT PROCESSING. Payment and payment processing terms are set forth in the Product Addendum between Franchisor and The CoBuilders. If Franchisee uses Connected Account Products, Attachment A attached hereto is required.

6. GOVERNING LAW, ARBITRATION, CONSOLIDATED ACTIONS WAIVER.

6.1. Governing Law and Arbitration. This Agreement is governed by and interpreted in accordance with the laws of the State of Delaware without regard to the conflicts of laws principles thereof. The Parties hereby consent to exclusive jurisdiction in the courts of San Francisco, California, except as set forth in Section 6.2.

6.2. Arbitration Agreement. Any Dispute shall be finally resolved by binding arbitration except claims: (a) in small claims court, so long as the matter advances only on an individual (non-class, non-representative) basis; and (b) for injunctive relief arising out of the infringement or other misuse of intellectual property rights (such as a Party’s Marks or The CoBuilders IP). This arbitration agreement shall be governed by the Federal Arbitration Act in all respects. If the rules and procedures of the Federal Arbitration Act cannot apply, the state law governing arbitration agreements in the state of the Franchisee Location most closely associated with the Dispute shall apply. The arbitration will be conducted by ADR Services, Inc. pursuant to the most current version of its rules available at https://www.adrservices.com/services/arbitration-rules/. The Parties further agree that any and all arbitration proceedings, including any discovery, hearings and rulings, shall be confidential to the fullest extent permitted by Law. Judgment on the resulting award may be entered in any court having jurisdiction. This arbitration agreement explicitly supersedes any and all different or contradictory terms included in the Agreement. This arbitration agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement, and explicitly supersedes any and all different or contradictory terms included in the Agreement.

6.3. Consolidated Actions Waiver. To the extent allowed by Law, separate and apart from Section 6.2, Franchisee agrees that any proceeding to litigate in court any Dispute arising out of or relating to this Agreement will be conducted solely on an individual basis, and Franchisee agrees not to seek to have any controversy, claim or Dispute heard as on a class, representative, or collective basis (“Consolidated Actions Waiver”). Franchisee further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all Parties to any such proceeding. The enforceability of this Consolidated Actions Waiver shall only be determined by a court of competent jurisdiction. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void, or voidable with respect to a particular claim or Dispute, then all such claims or Disputes will be resolved in court, after the conclusion of the arbitration of any arbitrable claims or Disputes, and the remainder of this Section 6.3 shall remain in full force and effect. The Parties also waive the right to bring any claims for public injunctive relief. If, however, this waiver of public injunctive relief claims is deemed invalid or unenforceable with respect to a particular claim or Dispute, then all such claims and Disputes will then be resolved in arbitration.

6.4. Fees. In the event of any Dispute, the Party prevailing in such Dispute shall be entitled to collect from the other Party all costs incurred in such Dispute, including administrative, attorneys’ fees, costs of collection, and filing fees and the arbitrator’s fees and costs.

7. CHANGE OF CONTROL. In the event there is a change or transfer in ownership of a Franchisee Location, Franchisee agrees that Franchisee will (1) notify The CoBuilders thirty (30) days prior to such change or transfer of ownership and (2) provide The CoBuilders with all relevant details related to the change or transfer of ownership, including the new owner’s contact information, the date of the change or transfer of ownership, and the relevant terms of the change or transfer of ownership (i.e., the existing amounts owed to The CoBuilders related to such Franchisee Location). In order for The CoBuilders to provide services to any new owner of a Franchisee Location, any amounts owed to The CoBuilders must be fully paid. The CoBuilders may elect, in its sole discretion, to perform a credit review on a new owner before providing services to such new owner.

8. MISCELLANEOUS. Notices under this Franchisee Agreement to each Party shall be sent to the respective address and contact set forth above. This Franchisee Agreement, including the incorporated Agreement, sets forth the entire agreement between The CoBuilders and Franchisee with respect to the subject matter hereof. This Franchisee Agreement supersedes and replaces in its entirety any agreement entered into between The CoBuilders and Franchisee for the Franchisee Locations prior to the Franchisee Effective Date.