For all purposes of this Agreement, capitalized words have specific definitions. At the end of this Agreement you will find a list of definitions for capitalized words that are not defined elsewhere in this Agreement.
BEFORE USING THE OSPREY PLATFORM (“PLATFORM”) PLEASE READ THESE TERMS AND CONDITIONS WITH CARE. BY SIGNING UP OR USING THE PLATFORM, YOU, ANY ENTITIES YOU REPRESENT, AND ALL OF YOUR PARTICIPATING STORE LOCATIONS AGREE TO AND ARE BOUND BY THESE TERMS AND CONDITIONS, AS WELL AS ANY OTHER TERMS, AGREEMENTS, OR POLICIES PRESENTED TO YOU ON YOUR SIGN-UP FORM.
1. Relationship between Osprey and Retailer.
Osprey is a technology company that develops and uses technology to connect Retailers, Customers, and independent delivery contractors (“Drivers”) to facilitate the delivery of goods and services, as defined in these terms. Retailer acknowledges that the agreements being made and any relationships or transactions will not create a new entity, organization, partnership, joint venture, or fiduciary. Retailer agrees that the relationship between Retailer and Osprey is governed by these Terms and that both Retailer and Osprey are independent businesses.
2. Core Responsibilities.
During the Marketplace Term, Osprey and Retailer have the following responsibilities:
Osprey will perform the following responsibilities in a timely manner:
(a) list and display Retailer’s logo
(b) list Retailer’s participating locations ("Retailer Stores"); and
(c) display a Menu or Catalog of Retailer’s products on the Osprey Platform
(d) accept Orders from Customers through the Osprey Platform
(e) send each Order to the correct store; and
(f) send each Order to a Driver with relevant details so the Driver can pick up the Order’s product(s) to be delivered to the Customer
(g) conforming to the agreement between Retailer and Osprey, and to the Commission Rate that Retailer is shown and agrees to after signing up, pay the Retailer after deducting the Commission and any other Fees
(h) handle all customer support issues that arise relating to the ordering or delivery of Retailer Products, or Customer accounts
Retailer will perform the following responsibilities in a timely manner:
(a) Provide Osprey with a copy of the Retailer’s Menu(s) of products that will be displayed on the Osprey Platform, including the price, description, and image for each item on the said menu(s) and, if working with another third-party service, Retailer shall ensure that product prices are not greater than prices set on other third-party ordering or delivery platforms
(b) Monitor Retailer’s Menu(s) to ensure all products, including their price, description, and photos are up-to-date and to promptly make changes to Retailer’s Menu to display the most accurate and up-to-date information, or;
(c) Notify Osprey in writing of any errors or changes to the Retailer’s Menu if the Retailer is unable to make changes
(d) Accept all Orders that are sent by Osprey to Retailer
(e) Confirm all Orders that are sent by Osprey to Retailer
(f) Prepare the products from each Order for pickup from a Driver or Customer at an appointed time
(g) Process all Orders in the order in which they are received by the Retailer
(h) Provide Osprey with Retailer’s hours of operation and remain open on the Osprey Platform for the same hours as in-store hours, and notify Osprey in writing of any changes to Retailer’s hours of operation, including holidays, or if the Retailer is or plans to change their hours of operation
(i) Notify all employees and staff members of the relationship between Retailer and Osprey immediately upon implementation of this Agreement
(j) Review and confirm any transactions, Fees, or orders on a continuous basis through the Retailer Hub, and notify Osprey of any changes, inaccuracies, or issues with said transactions, Fees, or orders; and
(k) Handle all customer support issues that arise related to anything other than the ordering or delivery of Retailer Products, or Customer accounts.
3. Core Responsibilities for Pickup.
During the Pickup Term, Osprey shall have the same responsibilities as those listed in Section 2(i)(a)-(h) and the Retailer shall have the same responsibilities as those listed in Section 2(ii)(a)-(k).
4. Refunds and re-orders.
Refunds and re-orders will be addressed according to the following terms:
In the event that Osprey has to refund, re-order, or credit a Customer’s order, the Retailer must prepare the products of the original order to the same specifications listed in the original order to be picked up by a driver at an appointed time, and the Retailer must endure the full cost of the refund, re-order or credit, unless the reasoning for the refund, re-order or credit was the fault of a Driver or Osprey. Osprey, in its sole discretion, may issue a refund, re-order, or credit of a Customer’s order.
In the event that Osprey has to refund, re-order, or credit a Pickup order, the Retailer must prepare the products of the original order to the same specifications listed in the original order to be picked up by a driver at an appointed time, and the Retailer must endure the full cost of the refund, re-order or credit, unless the reasoning for the refund, re-order or credit was the fault of a Driver or Osprey. Osprey, in its sole discretion, may issue a refund, re-order, or credit of a Customer’s order.
Retailer will install all necessary equipment needed to receive and process Osprey Orders. Such equipment may include without limitation a fax machine, laptop or desktop computer, smartphone, tablet, or other means of receiving and processing orders. Retailer acknowledges that Osprey is not responsible for providing any such equipment and Retailer bears the full responsibility of ensuring the equipment is installed and ready for use upon execution of this Agreement.
If Retailer chooses, Osprey may provide the Retailer with a tablet (“Osprey Equipment”) for the purpose of fulfilling the Retailer’s responsibilities as set forth in these Terms. If Osprey provides the Retailer with Osprey Equipment, Osprey will also deduct a monthly fee from the Retailer’s account for use of the Osprey Equipment. Retailer acknowledges and agrees that any equipment provided by Osprey to the Retailer remains the sole and exclusive property of Osprey, and, excluding wear and tear from regular use, Retailer will be responsible for, and must notify Osprey in writing of any damages to equipment provided by Osprey. Retailer will be responsible for any damages to Osprey Equipment, and will reimburse Osprey for any damages or loss of such equipment. Upon termination of this agreement by either party, Retailer must return all equipment provided by Osprey, and Osprey may charge the Retailer any reasonable Fees, including any cost to return, replace, or repair such equipment.
6. Payment Processing Services.
7. Retailer Content and Trademarks.(a) During the Term of this Agreement, the Retailer grants Osprey a royalty-free, non-transferable, revocable, non-sublicensable, limited license and right to use and display the Retailer’s Content in exchange for supplying the Retailer with the Services listed herein. As mentioned within, Retailer Content includes without limitation any logos, trademarks, product or business photos, products, customer reviews, or any other Content or public property that Retailer has provided to Osprey either through the Osprey Platform or through Retailer’s website.
(b) All photographs of products, menus, logos, or store banners that the Retailer provides to Osprey or uploads to the Osprey Platform must meet the photograph requirements set forth by Osprey. If Osprey determines that any photographs do not meet the photograph requirements, Osprey may remove said photographs or request the Retailer upload or provide a new one. If a new one cannot be provided, or if the new one still does not meet Osprey’s photograph requirements, Osprey may remove the product entirely until an acceptable photograph can be provided.
8. Confidential Information.
(a) All information that is confidential or proprietary, financial, business, or any materials of the party that is providing information (the “Disclosing Party”) to the other party (the “Receiving Party”), whether orally or physically disclosed, in connection with this agreement, shall be deemed “Confidential Information”. Unless otherwise agreed upon in writing by Osprey, any data that Osprey makes available or provides to the Retailer through the Osprey Platform (“Osprey Data”) is to be considered Confidential Information and property of Osprey.
(b) Confidential Information shall not include any information that (i) was or becomes public information other than by the fault of the Receiving Party; (ii) was rightfully known by the Receiving Party, and was not disclosed as confidential, prior to the acceptance of this Agreement; (iii) the Receiving Party can prove through documentary records was not created or developed with, through access to, or in reference to any Confidential Information; or (iv) was or is disclosed to the Receiving Party on a non-confidential basis from a third-party who, to the Receiving Party’s knowledge, was not obligated to maintain the confidentiality of such information at the time it was disclosed.
9. Data, Privacy, and Security.
Retailer acknowledges and agrees that they may not under any circumstances other than to comply with the Terms of this Agreement obtain, access, transfer, retain, sell, and/or process any Osprey Data. Retailer agrees to keep all Osprey Data physically, digitally, and technically safe from all unauthorized access. Furthermore, Retailer agrees not to provide any third-party access to Osprey Data or with Retailer’s access credentials. Retailer agrees to be held fully and financially responsible for all damages that result from a data breach on the Retailer’s part for failure to comply with these Terms.Retailer acknowledges and agrees that under no circumstances shall the Retailer allow or encourage themselves or a third-party to steal, obtain, transfer, retain, sell, distribute, or otherwise gain access to the Osprey Platform source code; or to alter, damage, reverse-engineer, or otherwise change the services provided by and through the Osprey Platform; or attempt to bypass, breech, or otherwise infiltrate upon any security measures or technologies of the Osprey Platform.
Upon seven (7) days prior written notice the Retailer may terminate this Agreement for any reason. Osprey may terminate this Agreement, or any section, content or portion of this Agreement, at any time and for any reason upon written notice.
11. Revisions and Modifications.
Osprey, in its sole discretion, retains the right to disable, change, remove, or suspend the Osprey Platform or any of its features at any time. Osprey, in its sole discretion, retains the right (but assumes no obligation to) remove Retailer Products or Content that it determines poses a threat to Osprey’s Brand or Brand image, or that it determines could subject Osprey to regulatory, health, safety or otherwise liability risks. Osprey reserves the right to make modifications and revisions to this Agreement at any time. We will alert Retailers of any revisions or modifications to these Terms through an email or an alert through the Platform. By continuing to access or use the Platform after the revisions are effective, you agree to be bound by the Terms of the revised or modified Agreement.
12. Warranties and Representations.
Each party warrants that by entering into this Agreement it is not violating or otherwise breaching any obligation to itself or a third-party and that it retains the right, authority, and power to enter into this Agreement and perform its obligations of this Agreement.Each party warrants that while performing any obligation or responsibility under this Agreement, or otherwise performing this Agreement entirely, it will respect and comply with all local, state, and federal laws including, but not limited to; data privacy laws; intellectual property laws; proprietary property laws; labor laws; and tax laws.Retailer warrants and agrees that (i) Retailer will fully comply with all food safety rules, laws, regulations, standards, and guidelines, including those dealing with packaging, sanitation, and accessory items (including, but not limited to forks, knifes, napkins, food packaging containers, cups, and straws) (ii) Retailer will disclose any and all allergies on the Retailer’s Menu in the Retailer Product description(s) (iii) Retailer will not list or include any age-restricted products on its Menu on the Osprey Marketplace (including, but not limited to tobacco, alcohol, an nicotine products) without also entering into a separate agreement with Osprey and (iv) Retailer will not disclose any information related to a Customer or Driver to a third-party except as to comply with the law or a court order, including if Retailer is subpoenaed to do so. OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, OSPREY MAKES NO WARRANTY WITH RESPECT TO ANY TECHNOLOGY, GOODS, SERVICES, RIGHTS OR OTHER SUBJECT MATTER OF THIS AGREEMENT AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON INFRINGEMENT WITH RESPECT TO ANY AND ALL OF THE FOREGOING. Both parties recognize and accept that neither party has any expectation of recovering an investment or achieving an anticipated amount of revenue or profits as a result of this Agreement. Retailer acknowledges that from time to time the Osprey Platform, Osprey Marketplace, or any other Services provided by Osprey may experience technical, legal, or other troubles that may hinder its ability to function. Retailer acknowledges that Osprey is neither responsible for any of these troubles nor does Osprey guarantee results from using the Osprey Platform or any Services provided by Osprey.
Each Party (“Indemnifying Party”) will indemnify, defend and hold harmless the other, its affiliates, respective directors, officers, employees and agents (“Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including any reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to (i) the willful misconduct and/or gross negligence of the Indemnified Party in connection with the performance of this agreement (ii) . Retailer further agrees that, at its own expense, Retailer will indemnify, defend, and hold harness Osprey, its subsidiaries, affiliates, officers, employees, directors, and agents against any and all claims proceeded against Osprey by a third-party in connection to or arising from violation of health and safety code, or of law, regulation, or rule applicable to the Retailer’s Product(s) or responsibilities under this Agreement, including any claims of illness, bodily injury, or death resulting from Retailer’s Product(s) made or have been made available through the Osprey Marketplace or Platform.
14. Limitation of Liability.
TO THE GREATEST EXTENT GRANTED BY APPLICABLE LAW, OSPREY’S MAXIMUM AGGREGATE LIABILITY IN CONNECTION WITH OR ARISING FROM THIS AGREEMENT SHALL NOT EXCEED $10,000. OSPREY WILL NOT BE LIABLE TO THE RETAILER 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 DAMAGE OR THE POSSIBILITY THEREOF WAS DISCLOSED TO, KNOWN TO, OR FORESEEABLE BY THE PARTY FROM WHOM SUCH DAMAGES ARE SOUGHT. REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES, THE PRECEDING LIMITATION OF LIABILITY AND BARRING OF DAMAGES SHALL STILL APPLY. OSPREY WILL NOT BE LIABLE TO THE RETAILER UNDER ANY CIRCUMSTANCES FOR ANY LOSS OF PERMITS OR LICENSES, INCLUDING THOSE REQUIRED FOR OPERATION OF THE RETAILER’S BUSINESS.
15. Dispute Resolution and Arbitration.
THE FOLLOWING SECTION CONTAINS IMPORTANT INFORMATION REGARDING HOW DISPUTES WILL BE HANDLED BETWEEN YOU AND OSPREY. IT LIMITS THE WAYS YOU CAN SEEK RELIEF AND REQUIRES YOU TO ARBITRATE WITH OSPREY.
Any controversy or claim arising out of or relating to this Agreement, including any question regarding its validity, termination, existence, or obligations, or the breach thereof, shall be settled by arbitration, rather than in court. All arbitrations shall be administered virtually by JAMS (the “Arbitrator”) and will conform to the Comprehensive Arbitration Rules and Procedures (“JAMS Rules”), which are included in this clause solely for reference. The parties agree that the Arbitrator, not a local, state, or federal court or agency, retains sole authority in resolving any and all controversy, claims, or disputes that arise challenging the enforceability, legality, validity, obligations, or the breach of this Agreement. In the event of a controversy, claim, or dispute arising out of or relating to this Agreement (i) the complaining party shall notify the other party of the dispute in writing (ii) both parties shall attempt to resolve any and all disputes in good faith for thirty (30) days subsequent to receiving the notice and (iii) in the event the dispute(s) are not resolved thirty (30) days subsequent to receiving the notice, the complaining party shall seek relief solely through arbitration. The parties further agree that:The language of the arbitration proceeding will be English.The legal location of all arbitration proceedings will be virtual via Zoom.The arbitral tribunal shall be appointed exclusively by JAMS in compliance with the JAMS Rules.The arbitration proceeding will not accompany any other matters, parties, proceedings, or third-parties.To keep all information regarding the dispute confidential to the full extent permitted by law. Such information includes without limitation the dispute itself, content of the arbitration, awards, and any content provided by either party. Each party shall be entitled to pay its share of the arbitration fees, including the filing fee, and any expenses of the arbitration or of JAMS. The Arbitrator’s decision is final and binding on you and Osprey.If the JAMS Rules and the FAA does not apply to any dispute arising out of this Agreement or the enforcement of said Agreement, that dispute shall be resolved by the governing laws of the state of North Carolina.
Waiver of Class or Consolidated Action.
YOU AND OSPREY AGREE TO WAIVE ANY RIGHT TO RESOLVE ANY DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, REPRESENTATIVE OR COLLECTIVE BASIS. ALL DISPUTES ARISING WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE SOLVED ON AN INDIVIDUAL BASIS AND NOT A CLASS BASIS. DISPUTES ARISING FROM MULTIPLE OR MORE THAN ONE MERCHANT MAY NOT BE ARBITRATED IN CONJUNCTION WITH ONE ANOTHER OR CONSOLIDATED. In the event that a dispute results in this waiver of class or consolidated action becoming unenforceable or invalid
Waiver of Jury Trial.
To the fullest extent permitted by applicable law each party waives any constitutional and statutory right to sue in court and receive a trial by judge or jury. Instead, each party agrees to resolve any and all disputes arising out of this Agreement in good faith or by arbitration as stated in Section 15 "Arbitration".
This Arbitration Agreement will survive any termination of your relationship with Osprey.
EXCEPT AS SET FORTH HEREIN, OSPREY MAKES NO REPRESENTATIONS OR WARRANTIES AND EXPLICITLY DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, INCLUDING WITHOUT LIMITATION MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. RETAILER ACKNOWLEDGES AND AGREES THAT OSPREY IS NEITHER A DELIVERY SERVICE NOR DOES IT PROVIDE COURIER SERVICES. SERVICES PROVIDED THROUGH THE OSPREY PLATFORM ARE PROVIDED BY THIRD-PARTY INDEPENDENT CONTRACTORS WHO ARE NOT EMPLOYEES, AFFILIATES, OR AGENTS OF OSPREY.
17. Attorney’s Fees.
In the event of any legal action taken to enforce the Terms within this Agreement the prevailing party shall be entitled to recover its reasonable attorney’s fees from the other party.
18. Partner Relationship Code of Conduct.
Retailer agrees to adhere to Osprey’s Partner Code of Conduct and acknowledges that Osprey retains the right to update this Code of Conduct at any time. Osprey reserves the right to seek all available remedies for any violations of the Partner Code of Conduct including without limitation the right to revoke or restrict Retailer’s access to Osprey Services.
19. Class Action Waiver.
THE PARTIES WAIVE ANY RIGHT TO ASSERT ANY CLAIMS AGAINST THE OTHER PARTY AS A REPRESENTATIVE OR MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION, EXCEPT WHERE SUCH WAIVER IS PROHIBITED BY LAW OR DEEMED BY A COURT OF LAW TO BE AGAINST PUBLIC POLICY. TO THE EXTENT EITHER PARTY IS PERMITTED BY LAW OR COURT OF LAW TO PROCEED WITH A CLASS OR REPRESENTATIVE ACTION AGAINST THE OTHER, THE PARTIES AGREE THAT: (I) THE PREVAILING PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEYS’ FEES OR COSTS ASSOCIATED WITH PURSUING THE CLASS OR REPRESENTATIVE ACTION (NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT); AND (II) THE PARTY WHO INITIATES OR PARTICIPATES AS A MEMBER OF THE CLASS WILL NOT SUBMIT A CLAIM OR OTHERWISE PARTICIPATE IN ANY RECOVERY SECURED THROUGH THE CLASS OR REPRESENTATIVE ACTION.
Severability: Except as otherwise provided in this Agreement, if any part of this Agreement is declared unlawful or unenforceable, the remainder of this Agreement shall remain in full force and effect.The failure of Osprey to enforce any right or section in these Terms shall not constitute a waiver of such right or section unless acknowledged and agreed to by Osprey in writing.
Captions: Captions appearing in this Agreement are for convenience only and do not in any way limit, amplify, modify, or otherwise affect the terms and provisions of this Agreement.
No Joint-Venture: No joint-venture, agency, entity, or employment relationship exists between You and Osprey, or any of Osprey’s third-party providers, as a result of this Agreement and/or use of the Services, Software, or the Platform.
Governing Law: This Agreement is governed by the laws of the State of North Carolina.
Transfer: This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Osprey without restriction. Any attempted transfer or assignment in violation hereof shall be null and void. This Agreement binds and ensures to the benefit of each party and the party’s successors and permitted assigns.
Entire Agreement: These Terms comprise the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Consent to Jurisdiction: Retailer agrees that, except as set forth in Section 15, the Parties hereby consent to exclusive jurisdiction in the courts of Raleigh, North Carolina.
Capitalized words not defined above have the following definitions:
“Driver” means a third-party independent delivery contractor.
“Customer” shall be any customer who places an order for the Retailer through the Osprey Marketplace.
“Osprey Marketplace” means Osprey’s exclusive online platform(s) where customers browse for Retailers, browse Retailers’ products or menus, and/or place orders from Retailers through Osprey mobile applications for delivery from a Driver to the Customer, or for Pickup by the Customer. This shall be referred to interchangeably as the “Osprey Platform” or the “Platform”.
“Retailer” means the store, restaurant, and/or entity that has agreed to participate in and/or use the Osprey Services.
“Retailer Hub” is the website and web application where the Retailer can and should verify any Fees, transactions, orders, as well as make changes to their account.
"Fees" are any fees that Osprey may charge the Retailer for use of the Osprey Services, including without limitation any subscription, marketing, replacement, damage, refund, replacement, or credit fees.
“Menu” means the list of products, items, or goods that the Retailer has chosen to include in their store(s) on the Osprey Platform. This shall be referred to interchangeably as “Catalog”
“Retailer Products” refers to any product offered by the Retailer for delivery or Pickup at the Retailer’s store(s).
“Osprey Pickup” or “Pickup” means the service customers can use to place orders from Retailers for pick up or takeout at or in the Retailer’s store(s).
"Pickup Term" means the term of the agreement between Osprey Technologies, Inc. and the Retailer for Osprey Pickup.
“Marketplace Term” is the term of the agreement between Osprey Technologies, Inc. and the Retailer for the Osprey Marketplace.
“Personal Information” is deemed as any information that can be (i) reasonably used to identify or verify an individual (including but not limited to global positioning system (GPS) data, credentials for access to services, or any other information that may be considered as “personal information” or “personal data” under all applicable laws); or (ii) information that can be used to identify an individual (including, but not limited to names, phone numbers, addresses, email addresses, and signatures).
“Commission” is the rate and fee, charged as a percentage of revenues generated by or for the Retailer on the Osprey Platform, that Osprey charges the Retailer for the promotion and listing of the Retailer and any participating Retailer Stores on the Osprey Platform.