Distributor Terms and Conditions

1. Definitions

1.1. The following terms,

when used in this Agreement will have the following meanings:

“Affiliate” means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists.  For the purposes of this definition, “Control” means beneficial ownership of 50% or more of the voting power or equity in an entity.

“Confidential Information” means any information or data disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure.  However, “Confidential Information” will not include any information which (a) is in the public domain through no fault of receiving party; (b) was properly known to receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information.

“Customer Data” means any data, content or materials that Customer (including its Users) submits to its Pepper Platform accounts.

“Documentation” means Pepper’s then-current standard usage documentation for the Pepper Product.

“Service Start Date” The date on which the services are first made available to the Customer by Pepper. Unless explicitly stated otherwise, the Service Start Date shall mark the commencement of billing and service obligations, overriding the Effective Date.

“Effective Date” means the date of the initial Order Form entered into between Customer and Pepper.

“Order Form” means an ordering document or online order entered into between Customer and Pepper, or online ordering flow completed by Customer, in each case that sets forth the applicable Pepper Platform to which Customer is subscribing, pricing therefor (including in relation to overages ), permitted number of users  and subscription term, and that references these Terms and Conditions.

“Pepper Platform” means the SaaS-based platform that enables distributors of food, beverages and related supplies to communicate with their restaurant, retail and wholesale operators and to receive, track and manage orders from such operators, developed by Pepper, as further described  in the applicable Order Form.

“Third Party Services” means any product, add-on or platform not provided by Pepper that Customer elects to use with the Pepper Platform.

Access to Platform

1.2. Pepper Platform.

During the Term, Pepper will use commercially reasonable efforts to make the Pepper Platform available to Customer via the Internet pursuant to this Agreement.  Subject to the terms and conditions of this Agreement, Pepper hereby grants Customer a limited, nonexclusive, nontransferable (except as set forth in Section 9), non-sublicensable right to access and use the Pepper Platform during the Term solely for Customer’s internal business purposes.  Additionally, and to the extent Customer purchases a subscription to Pepper’s payment processing product offering, Customer acknowledges and agrees that such payment processing is handled by a third party payment processor, Adyen, to facilitate payments between the operator and Customer. Customer further acknowledges and agrees that Customer and the applicable operator are responsible for the resolution of any disputes, refunds and/or other related issues with respect to transactions processed by the payment processor hereunder.

1.3. Restrictions and Responsibilities.

Customer will not use the Pepper Platform for any purpose other than the purposes expressly set forth herein.  Customer may not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Pepper Platform; (b) modify, translate, or create derivative works based on the Pepper Platform; (c) use the Pepper Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels.  Customer acknowledges that Pepper’s provision of the Pepper Platform is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer’s systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form or in Pepper’s policies provided to Customer), and Customer will provide all such cooperation in a diligent and timely manner.  Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Pepper Platform, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like.  Customer will also be responsible for maintaining the confidentiality of Customer’s usernames, passwords and account details, and for any actions taken by parties with access to such usernames and passwords.   Customer agrees not to disclose such usernames and passwords to any third parties (other than employees of Customer).  Customer will inform Pepper immediately if it discovers that any such username and/or password has been disclosed or made available to a third party, or that any unauthorized third party is otherwise accessing or using the Pepper Platform.  Without limiting any other rights or remedies set forth herein or available pursuant to law, Pepper may immediately suspend Customer’s access to the Pepper Platform if Customer is in breach of any term or condition of this Agreement.

In addition to the foregoing obligations, Customer further agrees that each product, item, or list of inventory provided to or uploaded the Pepper Platform (a) will be new, suitable for the purpose for which it is intended, of good quality and free of defects in design, construction, materials, and workmanship, and (b) will comply with all laws for the relevant locations of distribution. Products or items not manufactured in compliance with the foregoing will be removed from the Pepper Platform within Pepper’s sole discretion.  Customer will additionally ensure that the applicable manufacturer follows reasonable and proper procedures for verifying that all products and items are safe and comply with all applicable laws, and that following initial distribution of the products, Customer continuously follows reasonable and proper procedures for verifying that each future batch of such products or items also are in full compliance with all laws.

1.4. License to Customer Data.

Customer hereby grants to Pepper a non-exclusive, royalty-free, fully paid up, non-sublicensable (except to contractors and consultants performing services on behalf of Pepper), non-transferable (except as set forth in Section 9) right and license to copy, distribute, display, create derivative works of and otherwise use Customer Data to (a) provide the Pepper Platform and otherwise perform Pepper’s obligations under this Agreement, (b) improve and develop Pepper’s products and services, including by training and developing models and/or algorithms, and (c) create deidentified data (“Deidentified Data”), which Deidentified Data will not identify Customer or any individuals associated therewith.  For the avoidance of doubt, Deidentified Data is not Customer Data.

1.5. Feedback.

Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Pepper with respect to the Pepper Platform.  Pepper will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Customer hereby grants to Pepper a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback. Customer acknowledges and agrees that Feedback is not Confidential Information (as defined below).

1.6. Third Party Services.

The Pepper Platform may enable access to or integration with certain Third Party Services which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party. The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services. Some Third Party Services may provide Pepper with access to certain information that Customer has provided to such Third Party Services. Any data, information or other materials related to Customer collected via or received by Pepper from any Third Party Service will be deemed Customer Data. Pepper has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability or completeness of information shared by or available through the Third Party Services, or on the privacy practices of the Third Party Services. Pepper will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services. Pepper enables these Third Party Services merely as a convenience and the integration or inclusion of such Third Party Services does not imply an endorsement or recommendation. Any dealings Customer has with third parties while using the Pepper Platform are between Customer and the third party. Pepper is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.

1.7. Service Levels; Support.

Pepper will use reasonable efforts consistent with prevailing industry standards to provide the Pepper Platform in a manner that minimizes errors and interruptions in accessing the Pepper Platform. The Pepper Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Pepper or by third-party providers, or because of other causes beyond Pepper’s reasonable control, but Pepper will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Pepper’s control.

1.8. Data Security.

Pepper will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Data; (ii) protect against threats or hazards to the security or integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data.  In furtherance of the foregoing, Pepper will maintain the administrative, physical and technical safeguards to protect the security of Customer Data that are described in the Pepper security page located at https://www.usepepper.com/solutions/security (the “Security Page”) posted as of the Effective Date (and as the Security Page may be updated by Pepper in a manner that does not materially decrease the applicable protections).

1.9. Maintenance and Support.

Support functions related to maintaining normal functionality within the Pepper Platform will be provided by Pepper to Customer as part of the service fees set forth in the Order Form. Any additional maintenance and/or support services requested by Customer may be provided in Peppers sole discretion and, if provided, shall be included in an Order Form reflecting such maintenance and/or support services and the applicable fees.

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2. Ownership; Reservation of Rights

Customer acknowledges and agrees that, as between the parties, Pepper retains all right, title and interest in and to the Pepper Platform and all associated intellectual property rights.  Pepper grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Pepper Platform.  Customer will acquire no right, title, or interest in and to the Pepper Platform other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, except for the limited rights expressly granted to Pepper under this Agreement, Customer retains all right, title and interest in and to the Customer Data.

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3. Fees; Payment Terms

3.1. Fees; Payment Terms.

Customer will pay Pepper the fees set forth in the applicable Order Form. Customer will pay those amounts due and not disputed in good faith within fifteen (15) days of the date of receipt of the applicable invoice (the "Payment Period"), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify Pepper within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable. Pepper may revise the fees (including any applicable discount) at the end of the initial term or then current renewal term, upon thirty (30) prior written notice to Customer (which may be sent by email); provided, however, Pepper may, in its sole discretion, modify its pricing and fees prior to Customer's then current renewal term. If payment of any fees is not made when due and payable, a late fee will accrue at the rate of the lesser of one and one-half percent (1.5%) per month or the highest legal rate permitted by law and Customer will pay all reasonable expenses of collection. Payment obligations are non-cancelable and fees paid are non-refundable.

3.2. Net of Taxes.

All amounts payable by Customer to Pepper hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, knowhow payments, customs, privilege, excise, sales, use, valueadded and property taxes (collectively "Taxes").  Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Pepper.  Customer will not withhold any Taxes from any amounts due Pepper.

‍3.3 Transaction Fees

Transaction fees applicable to payments processed through the Services may vary based on rates charged by third-party payment processors and card networks. Both the applicable transaction rates and the structure or methodology by which such transaction fees are calculated may change from time to time due to changes in third-party fees, card network rules, regulatory requirements, or Pepper's payment processing arrangements. Pepper will provide Customer with at least sixty (60) days' prior notice of any changes to transaction rates or fee structure before such changes become effective.

4. Term, Termination

4.1. Term.

Subject to earlier termination as set forth in this Agreement, this Agreement will commence on the Effective Date set forth in the Order Form and continue for the initial term set forth in the Order Form (the “Initial Term”), and will automatically renew for additional periods of one (1) year, unless either party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term (each, a “Renewal Term”, and together with the Initial Term, the “Term”).  Either party may terminate this Agreement immediately upon written notice to the other party if such other party materially breaches any material provision of this Agreement and does not cure such material breach within thirty (30) days after receiving written notice thereof.

4.2. Effect of Termination.

Upon any expiration or termination of the Agreement, all rights granted hereunder and all obligations of Pepper to provide the Pepper Platform will immediately terminate and (a) Customer will cease use of the Pepper Platform; and (b) each party will return or destroy all copies or other embodiments of the other party’s Confidential Information.

4.3. Survival.

Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections  1.3, 2, 3, 4.2, 5.3, 6.3, 7, 8,  and 9 will survive.

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5. Confidentiality

5.1. Definition of Confidential information.

“Confidential Information” means, subject to the exceptions set forth in Section 6 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the “Discloser”) to the other party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof.

5.2. Exceptions to Confidential Information.

Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.

5.3. Use and Disclosure of Confidential Information.

The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder.  The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees and contractors who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees or contractors are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.  The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.

5.4. Disclosures Required by Law.

In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection. 

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6. Representations, Warranties and Disclaimer

6.1. Representations and Warranties.

Each party represents and warrants to the other party that (a) such party has the required power and authority to enter into this Agreement and to perform its obligations hereunder; (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party; and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both parties.

6.2. Customer Representations and Warranties.

Customer represents, warrants and covenants that (a) it has all rights necessary to permit Pepper to use the Customer Data as contemplated hereunder and (b) the Customer Data will be true, accurate and complete.

6.3. Disclaimer.

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PEPPER PLATFORM IS PROVIDED ON AN “AS-IS” BASIS AND PEPPER DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  PEPPER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. PEPPER DOES NOT WARRANT THAT THE PEPPER PLATFORM IS ERROR-FREE, DOES NOT GUARANTEE THE ACCURACY OF ANY DATA OR INFORMATION PROVIDED, OR THAT OPERATION OF THE PEPPER PLATFORM WILL BE SECURE OR UNINTERRUPTED.  PEPPER IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY SERVICES, DOES NOT GUARANTEE THE ACCURACY OF ANY DATA OR INFORMATION RECEIVED FROM SUCH THIRD PARTY, AND MAY CEASE MAKING ANY THIRD PARTY SERVICE AVAILABLE IN ITS DISCRETION. 

6.4. Beta Products.

FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN A PROGRAM WITH PEPPER WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES OR DOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY PEPPER. THE BETA PRODUCTS ARE NOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”.  PEPPER DOES NOT PROVIDE ANY INDEMNITIES, SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATION THERETO.  CUSTOMER OR PEPPER MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS AT ANY TIME. 

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7. Limitations of Liability

EXCEPT FOR A PARTY’S, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS,] TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM

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8. Indemnification

8.1. Indemnification by Pepper.

Pepper will defend Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) against any third party claim, allegation or legal action (a “Claim”) arising from an allegation that Customer’s authorized use of the Pepper Platform infringes any intellectual property right of a third party. Further, Pepper will indemnify the Customer Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.  Notwithstanding the foregoing, Pepper’s indemnification obligation will not apply to claims to the extent arising from (a) modification of the Pepper Platform by any party other than Pepper without Pepper’s express consent; (b) the combination, operation, or use of the Pepper Platform with other product(s), data or services where the Pepper Platform would not by itself be infringing; or (c) unauthorized or improper use of the Pepper Platform.  If the use of the Pepper Platform by Customer has become, or in Pepper’s opinion is likely to become, the subject of any claim of infringement, Pepper may at its option and expense (i) procure for Customer the right to continue using the Pepper Platform as set forth hereunder, (ii) replace or modify the Pepper Platform to make it non-infringing so long as the Pepper Platform has at least equivalent functionality, (iii) substitute an equivalent for the Pepper Platform or (iv) if options (i)-(iv) are not reasonably practicable, terminate this Agreement.  This Section 8.1 states Pepper’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

8.2. Indemnification by Customer.

Customer will defend Pepper and the officers, directors, agents, and employees of Pepper (“Pepper Indemnified Parties”) against any Claims arising from (a) any use by Customer of the Pepper Platform in violation of this Agreement, (b) the Customer Data or (c) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services.  Further, Customer will indemnify the Pepper Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.

8.3. Indemnification Procedure.

Customer will defend Pepper and the officers, directors, agents, and employees of Pepper (“Pepper Indemnified Parties”) against any Claims arising from (a) any use by Customer of the Pepper Platform in violation of this Agreement, (b) Customer’s breach Section 1.3; (c) the Customer Data or (d) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services.  Further, Customer will indemnify the Pepper Indemnified Party against any damages actually awarded or paid in connection therewith, including any reasonable attorneys’ fees.

9. General

Customer agrees that Pepper may (a) list and/or identify Customer’s name (including by displaying any Customer trademark) to identify the business relationship between the parties on Pepper’s website and in other marketing and advertising collateral and (b) publish a case study with respect to Customer’s use of the Pepper Platform.  This Agreement shall be construed and governed according to the internal substantive and procedural laws of the State of New York excluding choice of law principles, and the parties agree to exclusively resolve disputes in the State or Federal courts located in New York, New York. The relationship of the parties established by this Agreement is that of independent contractors. Pepper reserves the right in its sole discretion and at any time and for any reason to modify these Terms. With respect to each Order Form, any modifications to these Terms shall become effective upon the date of Customer’s next renewal of such Order Form. It is Customer’s responsibility to review these Terms from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s next renewal. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery.  Notices to the Customer may be sent to the address listed on the Customer’s applicable Order Form or email address provided by Customer when Customer creates its Pepper account.

Notices to Pepper must be sent to 900 Broadway Suite 704, New York, NY 10003.  No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, will not be construed as a waiver of such provision or option and will in no way affect that party’s right to enforce such provisions or exercise such option. If any provision of this Agreement is invalid or unenforceable in any jurisdiction, the other provisions of this Agreement will remain in full force and effect in such jurisdiction and will be liberally construed in order to effectuate the purpose and intent of this Agreement.

Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control (“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.  This Agreement may not be assigned, transferred, delegated or subcontracted, in whole or in part, by a party without the prior written consent of the other party, provided that each party may assign this Agreement to an Affiliate or in connection with the sale of all or substantially all of such party’s equity, business or assets. This Agreement may be executed in any number of counterparts, each of which will be deemed an original and all of which taken together will constitute one signed agreement between the parties.

Credit Report Service Addendum To the Pepper Platform Terms of Service

This Addendum between Pomegranate Technologies, Inc. d/b/a Pepper (“Pepper” “we” “us” “our”) and the customer identified in the applicable Order Form ("Customer" “you” “your”) supplements the Pepper Platform Terms and Conditions (the “Agreement”). This Addendum governs your use of the services provided by Pepper, through which Pepper may obtain Consumer Report Data from Providers as your agent (“Service(s)”). In a conflict between this Addendum and the Agreement, this Addendum controls. Defined terms used but not defined here have the meanings in the Agreement.

1. Definitions. 
   
   1. Authorized User. An employee or contractor of Customer authorized by Customer to access Consumer Report Data solely for the Permitted Purpose on a need-to-know basis.
   2. Consumer Report Data. The limited consumer information Pepper obtains on Customer's behalf through the Consumer Reporting Service. This is not a full consumer credit report. It may include business credit information only if Pepper approves such use in writing.
   3. FCRA. The Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq., and all implementing regulations, including Regulation V.
   4. Permitted Purpose. The sole authorized use of Consumer Report Data: to evaluate whether a specific individual Consumer is a suitable contractor or business partner for Customer. Expressly excludes employment purposes, purposes in connection with personal, family or household purpose transactions, and all other purposes.
   5. PII. Any information that uniquely identifies an individual, except for information lawfully available from government records unless Applicable Law requires its protection.
   6. Secondary User. A third party that has received prior written approval from both Pepper and the Upstream Provider to receive Consumer Report Data from Customer.
   7. Provider. Any consumer reporting agency, reseller of consumer reports, or other service provider from which Pepper may obtain Consumer Report Data on your behalf to provide the Services. 
2. The Service
   
   1. Pepper is not a consumer reporting agency under the FCRA. In connection with the Consumer Reporting Service, Customer hereby appoints Pepper to act solely as Customer's limited agent to obtain Consumer Report Data from the Provider. Customer is a "user of consumer reports" under the FCRA and assumes full legal responsibility for every data request as if Customer had obtained the data directly. 
   2. Customer hereby appoints Pepper as its limited agent to obtain Consumer Report Data on its behalf from the Provider. Customer authorizes Pepper to share information about Customer and the Consumer subjects of the requested Consumer Report Data with the Provider and its vendors as necessary to provide the Service and to satisfy Customer's compliance obligations. 
   3. Consumer Report Data is obtained from Provider, and Pepper provides such information to Customer “AS IS” and “WHERE IS”.  Pepper merely acts as a conduit of the Consumer Report Data that it receives from Provider(s), and makes no representation or warranty as to its accuracy, completeness, or fitness for any purpose. Customer is solely responsible for all decisions made on the basis of Consumer Report Data. The Service is subject to additional limitations that may be imposed on Pepper by the Provider, and Customer agrees to comply with all such limitations, as communicated by Pepper in this Addendum or otherwise. Customer may only use the Service in the United States, and only for Consumers located in the United States. Sharing Consumer Report Data outside the United States and its territories is strictly prohibited unless Pepper and the Provider agree in writing. 
3. Consumer Authorization. Before requesting any Consumer Report Data, Customer must obtain valid “written instructions” as that term is defined by the FCRA, from the Consumer to whom the data relates, directing Customer and Pepper, as Customer’s agent, to obtain the Consumer Report Data for a Permitted Purpose.  Customer must also obtain the Consumer’s consent for (i) Customer to share the Consumer’s information with Pepper; (ii) Pepper to share the Consumer’s information with Provider(s) and their respective vendors; and for (iii) Providers and Pepper to share the Consumer Report Data with Customer for a Permitted Purpose, in each case, in the course of providing the Service. Customer must implement commercially reasonable procedures to verify the identity of each Consumer providing such written instructions and consent to share data. Customer must retain all written instructions for at least 60 months from the date of inquiry and must produce them to Pepper within 10 business days of a written request (or sooner if required by a regulatory inquiry or investigation). Pepper may review and audit Customer's Written Instructions methodology, electronic consent systems, and Consumer authentication processes. Customer must cooperate and make relevant personnel, systems, and records available.
4. Permitted Purpose; Prohibited Uses.
   
   1. One Permitted Purpose. Customer may request Consumer Report Data only to evaluate whether a specific Consumer is a suitable contractor or business partner. Customer certifies each request is solely for this purpose. Consumer Report Data may never be used for employment purposes, regardless of whether the Consumer is also being considered as a potential employee. Consumer Report Data relates to individual Consumers. Customer may request credit information about a business entity or its principals only with Pepper's prior written approval, which Pepper may revoke at any time. Customer acknowledges that business history reports (as distinct from personal credit histories) may fall outside the FCRA, and that Customer must use any such reports solely for non-FCRA purposes. 
   2. No Unauthorized Access. Customer may not give any unauthorized person access to the Consumer Reporting Service without Pepper's prior written approval. Consumer Report Data may only be ordered and used in connection with the Permitted Purpose, for the specific Consumer or business principal identified in each request. Customer must not operate in any business area that the Provider has identified as prohibited (as communicated by Pepper from time to time). Customer must promptly notify Pepper if its business activities change in any way that conflicts with these restrictions. Customer may not communicate or disclose the underlying Consumer Report Data itself to any third party; provided, however that Customer shall comply with its obligations as a user of Consumer Report Data under FCRA. 
5. Use, Storage, and Sharing Limitations.  Each report of Consumer Report Data result may be used once only. Customer may not re-access or re-process data for the same Consumer unless it has obtained fresh Written Instructions and Pepper has separately authorized a new request. Customer may not retain Consumer Report Data in any database or repository, except to the minimum extent required by Applicable Law. Any legally required retention must be: documented with its legal basis; kept in a secure, separate location; restricted to Authorized Users with a need to know; and deleted as soon as the legal obligation expires. Customer must keep all Consumer Report Data strictly confidential. Customer may not disclose, share, sublicense, resell, or redistribute Consumer Report Data to any parent, subsidiary, affiliate, or other third party, except: (i) to the Consumer who is the subject of the data, where an Adverse Action (as defined in FCRA) has been taken on the basis of the data, to the extent required by Applicable Law; or (ii) as otherwise required by law. Unauthorized disclosure is a material breach of this Addendum. Customer may not combine Consumer Report Data with any other information, dataset, or database, for any purpose. Customer may not attempt to reverse-engineer any scoring methodology or identify the underlying data used to generate Consumer Report Data. Customer may not attempt to re-identify, de-anonymize, or otherwise determine the identity of any Consumer from anonymized or aggregated data, and must implement reasonable safeguards to prevent Authorized Users from doing so.
6. Regulatory Compliance. 
   
   1. Users. Customer acknowledges its obligations as a user of consumer reports under the FCRA and agrees to comply with all applicable requirements. 15 U.S.C. § 1681 ET SEQ. PROVIDES THAT ANY PERSON WHO KNOWINGLY AND WILLFULLY OBTAINS INFORMATION ON A CONSUMER FROM A CREDIT REPORTING AGENCY UNDER FALSE PRETENSES SHALL BE FINED UNDER TITLE 18, UNITED STATES CODE, IMPRISONED FOR NOT MORE THAN TWO YEARS, OR BOTH. 
   2. Applicable Law. Customer is solely responsible for determining the legal requirements applicable to its use of Consumer Report Data, including, but not limited to, the FCRA, the California Credit Reporting Agencies Act, the Vermont Consumer Credit Law, and all other relevant federal, state and municipal law, and in each case, complying with all applicable law in all respects. Personal credit histories of natural persons are covered by the FCRA even where used for a business purpose.  If Consumer Report Data includes a credit score, Customer must comply with all applicable disclosure requirements under 15 U.S.C. § 1681g(f) and any instructions from Pepper or the Provider regarding the use and disclosure of credit scores.
   3. Notices and Disputes. Customer must notify Pepper within five (5) business days (or sooner if required by law) of: (a) any regulatory inquiry, investigation, or enforcement action relating to Customer's use of Consumer Report Data; (b) any Consumer dispute or complaint relating to Consumer Report Data; and (c) when Customer becomes aware that it, or any of its employees, agents or subcontractors, has failed to comply with applicable law relating to this Addendum. Customer must promptly forward all Consumer disputes about the accuracy or content of Consumer Report Data to Pepper and cooperate with Pepper in resolving them. Customer must retain records of all Consumer disputes and related communications for at least five (5) years.
7. Security. Customer must restrict access to Consumer Report Data and the Service to authorized employees or subcontractors that the Customer has explicitly determined may use the Service on behalf of the Company and has a need to know to perform their job functions (“Authorized User”). Customer is responsible for all actions taken by any Authorized User, or any other person to whom Company or an Authorized User grants access, even if they exceed their authority. Customer must ensure all Authorized Users are trained the requirements of this Addendum, FCRA and other applicable law, their data security obligations, and Customer's acceptable use policies before being granted access. Company must inform all such persons of the requirements of this Addendum. Customer must maintain a comprehensive written information security program with organizational, administrative, physical, and technical safeguards that satisfy Applicable Law (including the FTC Safeguards Rules). Before disclosing any PII obtained through the Service to any subcontractor, consultant, or agent, Customer must first obtain a confidentiality and non-disclosure agreement from that party that is no less restrictive than this Addendum. Customer must maintain a written emergency management plan that sets out response procedures, personnel responsibilities, and a process for notifying Pepper of a security incident, consistent with industry standards and Applicable Law.
8. Breach of Security. In addition to any obligations set forth in the Agreement, Customer must notify Pepper within 72 hours of learning of an actual or suspected security breach suffered by Customer or any of its subcontractors, which involves the unauthorized access to the Service or any Credit Report Data or PII obtained through the Service. Customer must take commercially reasonable steps to remedy it, notify affected individuals and government agencies where required by law, and cooperate with Pepper in any investigation. Customer must bear reasonable, documented costs incurred by Pepper or the Provider as a direct result of the security breach. Pepper or a Provider may require Customer to provide each affected Consumer with credit monitoring services for at least one year (or longer if required by law).
9. Representations and Warranties. As of the time Customer agrees to this Addendum, and each time Customer submits a request to Pepper to obtain Consumer Report Data, and throughout the term of this Addendum, Customer represents, warrants and covenants that: (i) it has a valid Permitted Purpose for each Consumer Report Data request; (ii) it will comply with all FCRA and all other applicable law as a user of consumer reports and otherwise in connection with its use of the Service; (iii) all information it provides when requesting Consumer Report Data is accurate and complete to its best knowledge; (iv) it has obtained, and maintained a copy of, written instructions from the Consumer to obtain the Consumer Report Data, as required by FCRA, before each request; and (v) it does not operate in any business area prohibited by the Provider (as communicated by Pepper from time to time), and will notify Pepper promptly if that changes.
10. Audit. Pepper and the Provider may, upon reasonable prior written notice, inspect, audit, and verify Customer's records, systems, and processes during normal business hours to verify compliance with this Addendum. Audits must be conducted in a manner that minimizes business disruption and are subject to reasonable confidentiality obligations. Pepper bears its own audit costs unless the audit reveals material non-compliance by Customer, in which case Customer bears reasonable audit costs. In the event of a suspected material breach or regulatory requirement, an audit may be conducted without prior notice.
11. Suspension & Termination of Service. 
    
    1. Provider Restriction. If the Provider directs Pepper to restrict Customer's access to the Service, that action will be taken immediately. Pepper will notify Customer promptly thereafter.
    2. Pepper's Right to Suspend. Pepper may suspend Customer's access to the Service if Pepper determines or reasonably suspects that Customer has breached this Addendum, that continued delivery of Consumer Report Data poses regulatory or legal risk, that Pepper cannot verify Customer's compliance status, or that a regulatory authority requires suspension.
    3. Termination. Either party may terminate Customer's access to the Service upon the end of any initial or renewal term provided in any Order Form for this Service. If no such term is provided in an Order Form, either party may terminate the Service at any time, with or without cause, on 30 days' written notice to the other party. Pepper may terminate immediately on written notice if Customer materially breaches this Addendum or Applicable Law and fails to cure within 10 business days of such notice, if Pepper reasonably believes that continued delivery of the Service presents an unreasonable legal risk to Pepper, at the direction of any regulatory authority or Provider, or  if Customer becomes subject to a regulatory enforcement action or consent order, or other litigation or contractual restriction, that materially affects its ability to comply.
    4. Post-Termination. Upon expiration or termination, Customer must promptly delete or destroy all Consumer Report Data (except where retention is legally required), and certify such deletion or destruction to Pepper within 10 business days.
12. Disclaimer of Warranties. PEPPER AND THE UPSTREAM PROVIDER MAKE NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED — INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES ARISING FROM COURSE OF DEALING OR PERFORMANCE — WITH RESPECT TO THE CONSUMER REPORTING SERVICE OR ANY CONSUMER REPORT DATA, INCLUDING AS TO ITS ACCURACY, VALIDITY, COMPLETENESS, OR UNINTERRUPTED AVAILABILITY. CONSUMER REPORT DATA IS A STATISTICAL TOOL AND IS NOT INTENDED TO PREDICT ANY PARTICULAR OUTCOME WITH RESPECT TO ANY CONSUMER. CUSTOMER IS SOLELY RESPONSIBLE FOR ALL DECISIONS IT MAKES ON THE BASIS OF CONSUMER REPORT DATA.
13. Limitation of Liability. Except where prohibited by law, and except for liability arising from (i) gross negligence or willful misconduct, (ii) breach of confidentiality obligations, or (iii) violation of applicable data protection or privacy laws, neither Pepper nor any Provider will be liable to Customer for any special, incidental, or consequential damages (including lost profits, business interruption, or data loss) arising out of this Addendum, whether or not advised of the possibility of such damages. Pepper’s maximum liability under this Addendum is capped at the total fees Customer paid for the Service in the preceding 12 months.
14. Indemnification. Customer will defend, indemnify, and hold harmless Pepper, all Providers, all other third party service providers of Pepper, and their respective affiliates, officers, directors, employees, and agents, from and against any third-party claims, losses, and expenses (including reasonable attorneys' fees) arising directly from Customer's negligence, willful misconduct, or violation of Applicable Law or this Addendum in connection with its use of the Service — including claims arising from unauthorized use or disclosure of Consumer Report Data (including by any Authorized User or subcontractor), failure to provide required FCRA notices, or breach of this Addendum.

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