Distributor Legal Center

Unless otherwise agreed, the following terms apply to the Agreements entered into on or after October 1, 2024. For Agreements entered into before October 1, 2024, please see the relevant terms here.

Atlantic Food Waste Partners LLC dba Choco (“Choco”) operates a cloud-based order management and communication platform for distributors (e.g., wholesalers) and their customers (e.g., restaurants) in the food industry ("Cloud Service") and provides related Onboarding and Support Services as well as Integration Services s (collectively “Implementation Services” and, together with the Cloud Service, each a “Service” and collectively the “Services”). A description of each Service is available here.

This Main Services Agreement (“MSA”) governs the provision and use of the Services. Distributor agrees to be bound by the MSA by either executing an Order Form which incorporates the MSA or by accessing and/or making use of the Free Services (as defined in section 1.3 below). Capitalized terms not otherwise defined in the MSA shall have the meaning assigned to them elsewhere in the Agreement.

THEREFORE, in consideration of the foregoing, Choco and Distributor (each a "Party" and collectively the "Parties") agree as follows:

1. Scope of the Services

1.1 Access to Cloud Service. Choco hereby grants Distributor a non-exclusive, non-transferable, non sublicensable right to access and use the Cloud Service during the term of the Agreement, solely for its own business operations and in accordance with the terms and conditions of the Agreement. Distributor is responsible for arranging the necessary equipment and the internet connection to use the Cloud Service. Distributor will have no right to any specific design or specific functionalities beyond the scope of the Cloud Service agreed in the Order Form.

1.2 Choco Deliverables. While providing Services, Choco may create deliverables for Distributor (“Choco Deliverables”). Choco hereby grants Distributor a non-exclusive, non-transferable, non-sublicensable right to use the Choco Deliverables during the term of the Agreement and in accordance with the terms and conditions thereof. Distributor shall not make any modifications or use the Choco Deliverables for any other purposes than achieving the purpose of the Agreement without prior written approval of Choco.

1.3 Free Services. Choco may offer certain features of the Cloud ServicesService free of charge, such as trial periods, beta versions or delivery of orders from the restaurants using the Cloud Service in a digital form (the “Free Services”). An entity benefiting from the Free Services shall be deemed asto constitute a Distributor and shall be subject to the terms of the Agreement governing use of the Cloud Service as long as it benefits from the Free Services. Distributor acknowledges that Choco reserves the right to modify or terminate Distributor’s access to the Free Services or any part thereof, at any time and for any reason in its sole discretion without any notice or liability to Distributor.FreeDistributor. Free Services are provided as-is and, to the maximum extent permitted by applicable law, Choco shall not be liable for any damages, costs, or expenses resulting from the use of the Free Services. To the extent such full exclusion of liability is not enforceable, Choco’s (including its legal representatives’, employees’, agents’ and Vicarious Agents’ (as defined in section 12.3 below)) aggregate liability shall be limited to USD 100 (one hundred United States Dollars). In the event of a conflict between this section 1.3 and the rest of the Agreement, this section 1.3 shall take precedence.

1.4 Service Specific Terms. Some Services may be subject to additional terms specific to that Service, such as Integration GTCs, Onboarding GTCs and White-Label GTCs . Distributor agrees to be bound by the applicable Service Specific Terms by signing the Order Form or by accessing or using the Services covered by Service Specific Terms.

1.5 Availability. Choco will make commercially reasonable efforts to make the Cloud Service available 98% of the time, based on a monthly average. Excluded therefrom are necessary planned maintenance work as well as disruptions that are not within Choco’s sphere of influence (such as force majeure events, downtime that results from a third party’s equipment, software or technology or internet connectivity issues). If possible, Choco shall in a timely manner notify Distributor about planned maintenance work. Nevertheless, Choco expressly reserves the right to carry out unannounced maintenance work, if necessary, particularly where this is required for data and operational security.

1.6 Modifications. Distributor acknowledges and agrees that Choco may update the Cloud Service at its own discretion, provided that if any such update materially diminishes any of the features and functionality previously made available through the Software, the Distributor may object to the changes. In case of an objection by the Distributor, Choco may terminate the Agreement or offer the Distributor a reasonable remedy at its own discretion.

1.7 Third Party Components. Certain components of the Cloud Service may be provided through third party services. Any such components that Distributor could recognize as being subject to third-party rights, including open-source licences, will be subject to applicable third party and open-source software licences. Above all, any components that Choco discloses as third-party content in the Agreement, in the Cloud Service or in any Choco policies will be deemed recognizable within the meaning of the previous sentence. Distributor agrees that availability of the Cloud Service or certain features may be dependent on the corresponding availability of the third-party services. Choco is not responsible for any interruptions or issues with the Cloud Service caused by the third-party components. The maps functionality on the Cloud Service is provided through Google Maps as a third party component. By making use of the Cloud Service and the maps functionality, Distributor agrees to be bound by Google's Terms of Service including  Google Privacy Policy.

1.8 AI-powered Services. The Cloud Service may encompass functionalities that are powered by artificial intelligence (“AI”). Distributor will retain ownership over the input it provides and the output generated by AI based on the input, both of which shall constitute Distributor Data (as defined in section 3.1 below). Choco does not guarantee the accuracy, completeness and reliability of the output generated by AI and, to the extent permitted by law, disclaims all warranties and liability for such output. To the extent such full exclusion of liability is not enforceable, Choco’s (including its legal representatives’, employees’, agents’ and Vicarious Agents’) aggregate liability shall be limited to one-hundred (100) USD. Output generated by AI may not be unique to Distributor and it does not represent Choco’s views. Distributor undertakes to comply with the fair use policies of Choco’s third party service providers when using AI-powered functionalities. In the event of a conflict between this section and the rest of the Agreement, this section shall take precedence.

1.9 Third Party Services. Choco may make some ancillary services or add-ons that are offered by third parties (“Third Party Services”) available on the Cloud Service, subject to the specific terms and conditions of the third party service provider. Distributor will need to enter into a separate contractual relationship with the relevant third party service provider to be able make use of such Third Party Services and acknowledges that a third-party service provider may refuse to enter into an agreement with Distributor at its own discretion. Choco may have access to certain Distributor information included these Third-Party Services to facilitate communication and enable their provision, and will treat such information as Distributor Data. Choco does not control the Third-Party Services and is not responsible, directly or indirectly, for any damage or loss resulting from the use of or reliance on these Third-Party Services. Any interactions Distributor has with the third party service provider are solely between Distributor and the third party service provider, and Choco assumes no liability for any issues arising from the Distributor’s agreements or dealings with these third party service providers. For the avoidance of doubt, Third Party Services will not be considered as the Services as defined under this MSA and will not be subject to the Agreement. Distributor shall be fully responsible for its use of the Third Party Services and shall indemnify Choco against any third-party claims, fines, and costs (including legal fees) arising from Distributor’s breach of its agreement with the third party service provider, applicable laws and regulations (such as scheme rules).
 

2. Access and Use of Cloud Service

2.1 Authorised Users. The licence granted to Distributor is limited to its employees, agents or contractors who are authorised by Distributor to use the Services (“Authorised Users”). Distributor is responsible for its Authorised Users’ compliance with the Agreement, including Choco’s policies on the use of the Cloud Service and for all of their acts and omissions. Distributor shall ensure that its Authorised Users keep the access data of their accounts confidential and shall inform Choco without undue delay if there is any suspicion that the access data may have become known to unauthorised persons. Distributor is solely responsible for all activities that occur under the accounts of its Authorised Users.

2.2 Usage Rules and Restrictions. Distributor shall use the Cloud Service only for offering products that address food and hotel industry needs and comply with all laws applicable to its access and use of the Cloud Service. Distributor shall not (a) reproduce, copy, modify, adapt, or create derivative works, reverse engineer, decompile or engage in any action with the attempt to obtain the source code of the Cloud Service (except as permitted by mandatory law); (b) sublicense, sell, rent, distribute, transfer or provide a third party access to the Cloud Service or otherwise allow the use of the Cloud Service for the benefit of any third party; (c) engage in any conduct that interferes with or threatens the security, integrity or performance of the Cloud Service including any related systems; (d) send any malicious code (e.g., viruses, worms, Trojan horses or other malware) through Cloud Service; (e) attempt to interfere with or otherwise circumvent any security measures, authentication mechanisms or any functional restrictions on the Cloud Service intended to limit its use; (f) use the Cloud Service in order to build a product or service which competes with the Cloud Service; (g) use any software, devices, robots or any other means to scrape data from the Cloud Service; (h) use the Cloud Service for fraudulent purposes; (i) make unfair use of the Cloud Service or (j) use the Cloud Service to send unsolicited commercial communications. If the Cloud Service allows Distributor to modify a Customer’s order or place orders on a Customer’s behalf, Distributor agrees to do so only with the clear instructions or explicit consent of the relevant Customer.

2.3 The relationship with the Customers. Distributor is solely responsible for its use of the Cloud Service, such as for the contact it establishes with other companies, all communications sent via or in connection with the Cloud Service, the content and availability of the products and for the proper management of orders. By making the Cloud Service available, Choco merely provides the infrastructure for placing and managing orders and for communication. Choco itself will not directly or indirectly become a party to the relationship between Distributor and the restaurants who are placing orders from Distributor (the “Customer(s)”). Each order (individual sale and purchase of products) shall be concluded solely between Distributor and the relevant Customer. Choco will have no liability whatsoever with regard to the performance of those orders and shall not be a party to disputes of any kind between Distributor and its Customers (such as disputes relating to incorrect deliveries or late payments).

2.4 Support and Maintenance: Choco shall offer standard support services to assist Distributor in using the Cloud Service during regular working hours. Choco will also provide maintenance services at its own discretion, including error corrections, updates, and upgrades, as deemed necessary to ensure the Cloud Service's continued functionality. Support and maintenance do not cover issues resulting from Distributor’s misuse, unauthorised modifications or third-party systems.

3. Distributor Data and Responsibilities

3.1 Distributor Data. Distributor shall retain all right, title and interest in and to information, images, texts, data, files, Distributor Deliverables and other materials that is transmitted, submitted or otherwise made available by or on behalf of Distributor to Choco in the course of Distributor's access and use the Services ("Distributor Data"). Distributor shall solely be responsible for the Distributor Data and shall ensure its accuracy, integrity and reliability throughout the term of the Agreement. Distributor grants Choco a non-exclusive, royalty-free and worldwide license to collect, process, reproduce, modify, host, store, disclose, display and perform all necessary acts on the Distributor Data for the purposes of operating the Cloud Service and providing the Services to Distributor. Distributor agrees that Choco may collect, analyze and use information about Distributor’s use of the Services (“Usage Data”) and Distributor Data internally for research, security, analytics purposes and for improving its Services. Choco shall be entitled to create aggregated and/or de-identified information derived from Usage Data and Distributor Data and use such information at its own discretion without being subject to any limitations, to the extent it does not identify Distributor, its Customers or any person. Choco may sublicense or transfer the rights granted herein to its Vicarious Agents. 

3.2 Limitations on the Distributor Data. Distributor represents, warrants and covenants that it will not upload, submit or otherwise make available to Choco through or in connection with the Cloud Service (i) Social Security numbers or other government-issued identification numbers; (ii) protected health information subject to the Health Insurance Portability and Accountability Act (HIPAA) or other information regarding an individual’s medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; (iii) health insurance information; (iv) biometric information; (v) passwords to any online accounts; (vi) tax return data; (vii) information subject to the Gramm-Leach-Bliley Act, Fair Credit Reporting Act or the regulations promulgated under either such law; (viii) information subject to restrictions under applicable privacy or data protection laws governing personal data of children, including, without limitation, all information about children under 16 years of age; or (xi) any information that falls within any special categories of data (as defined in the General Data Protection Regulation (Regulation (EU) 2016/679) and its UK analogue (collectively, “GDPR”)).

3.3 Distributor Warranties. Distributor warrants that (i) it owns or will obtain the necessary rights and permissions to share the Distributor Data with Choco and to authorize the use of the Distributor Data by Choco as contemplated in this Agreement; (ii) the Distributor Data and its use by Choco as contemplated in this Agreement do not violate any third-party rights or applicable laws; (iii) it will provide the required information notices and obtain necessary consents under data protection laws for lawfully transferring data to Choco and enabling Choco to lawfully collect and process Distributor Data for the provision of the Services, as further described under the Data Processing Agreement; (iv) it will comply with laws applicable to communications sent through the Cloud Service, including but not limited to those relating to obtaining consent (if necessary) and complying with opt-out requests; (v) the Distributor Data will not include any illegal, defamatory, inappropriate, offensive, hateful or violent content. 

3.4 Removal. Choco is not obliged to monitor the Distributor Data but reserves the right to do so at its own discretion. Choco may, without prior notice, remove or disable access to any Distributor Data (including the products offered via the Cloud Service) (i) if it violates the Agreement including Choco policies made available to Distributor, (ii) if it constitutes illegal content such as illegal hate speech, terrorist content, unlawful discriminatory content, or any content that the applicable laws render illegal or (iii) if it is likely to give rise to complaints by third parties or other Choco customers. Due account of the fundamental rights and freedoms and legitimate interests of all parties involved will be taken when making decisions about removal of the Distributor Data. Choco will comply with binding orders of courts and supervisory authorities to remove any illegal Distributor Data from the Cloud Service.

3.5 Backup. Choco will use commercially reasonable efforts to ensure integrity and availability of the Distributor Data. Notwithstanding the foregoing Distributor shall be solely responsible for the Distributor Data and shall take back-ups on a regular basis and commensurately with the risk.

3.6 Distributor Indemnity. Distributor shall indemnify and hold Choco, its employees, representatives and Vicarious Agents harmless from and against any claims, losses, liabilities, damages and expenses (including reasonable attorneys’ fees) asserted against them by a third party arising out of (i) Distributor's (including its Authorised Users’) use of the Services, (ii) the Distributor Data, (iii) performance of orders submitted to the Distributor, or (iv) Distributor’s (including its Authorised Users’) violation of applicable laws. Choco shall notify Distributor without undue delay about any claims asserted by third parties and shall, upon request, provide the information and documents required for the defence. Moreover, Choco at its own discretion will either surrender the right of defence to Distributor or undertake such defence in consultation with Distributor. In particular, Choco shall neither acknowledge nor dispute any claims asserted by third parties without consulting with Distributor, except where Distributor has not responded to Choco's notification of the claim within a reasonable time period.

3.7 Cooperation. Distributor shall cooperate with Choco in good faith and provide all necessary information as reasonably required by Choco for the proper performance of the Services in a timely manner. All information provided by Distributor shall be up-to-date, complete, and accurate, and Distributor shall notify Choco in writing in case of any changes. Choco will not be liable for any delays in the provision of the Services caused by Distributor’s failure to provide Choco with the required information or cooperation.

3.8 Personal information. With respect to the personal information that Choco processes on behalf of Distributor for the provision of the Services, the Parties enter into a Data Processing Agreement available here ("DPA") and which is incorporated by reference into this MSA.

4. Fees and Payment

4.1 Fees. Distributor shall pay Choco the fees agreed to in the Order Form or elsewhere in writing for the provision of the Services (the “Fees”). Unless expressly agreed otherwise in the Order Form, the Fees consist of a recurring monthly fee for the use of the Cloud Service (“Subscription Fee”) and a monthly or one-time fee for the Implementation Services (“Implementation Fee”). If the Parties agree on a monthly Implementation Fee, the Implementation Fee shall be payable for a maximum period of five (5) months.

4.2 Payment. If the Parties agree on a monthly Implementation Fee, the Implementation Fee shall be payable at the beginning of each month of the Implementation Phase up to the maximum duration set forth in section 4.1 above. If the Parties agree on a one-time Implementation Fee, the Implementation Fee shall be payable at the Effective Date (as defined in section 8.1 below). The Subscription Fee shall be payable on the Subscription Start Date (as defined in section 8.1 below) and at the beginning of each subsequent month of the Subscription Term (as defined in section 8.1 below). Unless expressly agreed otherwise in the Order Form, all invoiced amounts shall be due within two weeks of the date on the invoice and paid by direct debit. In case of late payment, Choco reserves the right to charge interest at the maximum rate permitted by law as well as an appropriate penalty fee and any actual reasonable collection costs, upon presentation of supporting documentation. If such delay continues for more than two (2) weeks, Choco may block Distributor’s access to the Services until the outstanding amount is paid in full.

4.3 Taxes. Unless expressly agreed otherwise in the Order Form, all amounts are net amounts in US Dollars. The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Distributor will be responsible for payment of all such taxes (other than taxes based on Choco’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Cloud Service to Distributor. Distributor will make all payments of fees and commissions to Choco free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees and commissions to Choco will be Distributor’s sole responsibility, and Distributor will provide Choco with official receipts issued by the appropriate taxing authority, or such other evidence as the Choco may reasonably request, to establish that such taxes have been paid.

4.4 Discounts. Unless otherwise specified in the Order Form, any discounts are valid only for the relevant Subscription Term in which they are provided and do not automatically extend or apply to subsequent terms, renewals, or extensions.

5. Intellectual Property

5.1 Reservation of Rights. Distributor acknowledges and agrees that Choco and/or its licensors own or otherwise have all the necessary intellectual property rights in the Choco Deliverables, together with any related technology any intellectual property rights related thereto or embodied therein such as any systems, application programming interfaces or Integrations developed by or on behalf of Choco including any improvements or modifications to the foregoing. Distributor does not have any rights in or to the Cloud Service and the Choco Deliverables, except for the limited express rights granted in this Agreement. In addition, Choco reserves all right, title, interest and ownership of aggregated and/or de-identified information derived from User Data and Customer Data.

5.2 Feedback. Both during and after the Term, Distributor allows Choco to use, copy, disclose and exploit any suggestions and other feedback provided by Distributor and its Authorised Users freely in order to improve and enhance the Services and for development of other services in any manner without any obligation, royalty, attribution or restriction based on intellectual property rights or otherwise.

5.3 Trademark License. Distributor grants Choco a non-exclusive, worldwide licence to use Distributor's trademarks for operating the Cloud Service and for the performance of the Agreement. Choco shall be specifically entitled to display the trademark on Distributor's Distributor profile and to grant sublicenses to its Vicarious Agents to the extent necessary for the performance of the Agreement. Otherwise, the right of use may not be transferred or assigned.

5.4 Customer Reference. Choco may use Distributor’s name and logo in its marketing materials, presentations and similar communications to refer to Distributor as a customer. Distributor may revoke this consent any time by giving prior written notice.

6. Confidentiality

6.1 Duty of Confidentiality. The Parties undertake to keep confidential any information and documents of the disclosing party, which are either to be regarded as confidential due to the nature of the information or the circumstances of their disclosure or have been designated or marked as confidential by the disclosing party, such as business and/or trade secrets ("Confidential Information") and to use them exclusively for the purposes allowed under this Agreement. The technical components, documentation and the source code of the Cloud Service and the terms of the Order Form shall be considered as Confidential Information of Choco. The receiving party shall undertake reasonable technical and organizational measures to protect Confidential Information.

6.2 Disclosure of Confidential Information. The receiving party is entitled to disclose Confidential Information of the disclosing party solely (i) to its employees, contractors, Vicarious Agents or consultants on a need to know basis for the performance of this Agreement, provided that they are bound by the confidentiality obligations at least as protective as those contained herein, (ii) in a legal proceeding, (iii) where required by law, (iv) to third parties upon prior written approval of the disclosing party. Affiliated companies of the receiving party will not be considered third parties if the receiving party holds a majority of capital and voting rights. When requests are made by judicial or administrative authorities relating to the disclosure of Confidential Information, the receiving party shall without undue delay notify the disclosing party thereof in writing, to the extent permitted by law.

6.3 Exclusions from Confidentiality. Confidential Information does not include information that (i) was already known to the receiving party prior to disclosure, (ii) is generally known or becomes known to public through no fault of the receiving party, (iii) is independently developed by the receiving party itself without access to the Confidential Information of the disclosing party or (iv) was brought to the attention of or shared with the receiving party by a bona fide third party authorized to do so.

6.4 Duration of Confidentiality. The duty of confidentiality shall commence upon gaining knowledge of the Confidential Information and will continue for the entire term of this Agreement. In addition, the duty of confidentiality shall remain in place for a period of three (3) years after cessation of the Agreement, unless statutory provisions provide for a longer confidentiality obligation. In particular, any business secrets shall be treated confidentially for as long as they are business secrets.

7. Suspension

7.1 Suspension. Choco is entitled, but not obliged, to monitor Distributor’s and its Authorized Users’ use of the Services and may suspend Distributor's or its any of its Authorized Users’ access to the Cloud Service (i) if Choco reasonably believes a violation of the Agreement has occurred, (ii) if the suspension is necessary for technical or security reasons or to avert imminent damage to Choco, Distributor or third parties or (iii) if Choco is obliged to suspend access by law. Choco will use commercially reasonable efforts to provide advance notice of suspension, unless prohibited by law. Choco shall lift the suspension if the reason for the suspension no longer exists. Choco will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Distributor may incur as a result of a suspension triggered by its Authorized Users’ own acts or omissions.

8. Term and Termination

8.1 Term. The Agreement shall commence on the date identified as the effective date on the Order Form (“Effective Date”). The term of the Agreement comprises the “Implementation Phase” and the “Subscription Term”. The Implementation Phase starts with the Effective Date and ends on the date when integration is complete, meaning that order information (meaning the list of ordered products, their product IDs and quantities), order’s expected delivery date and the Customer number are successfully transmitted and integrated into Distributor's ERP or designated system (“Subscription Start Date”). Whilst additional components may be identified and assessed by the Parties depending on the specific functionalities of Distributor’s systems during the Implementation Phase, these will not be considered in determining the Subscription Start Date. If Integration is not in scope there won't be an Implementation Phase and the Effective Date will be considered as the Subscription Start Date. The Subscription Term starts on the Subscription Start Date and continues for a period of twelve (12) months or as otherwise indicated in the Order Form. The Subscription Term shall be renewed for successive periods of twelve (12) months if the Agreement is not terminated in writing by either Party with three (3) months' prior notice before the end of the respective Subscription Term. Choco may update the terms of the Agreement, including the Fees, with effect from the start of a renewal term by giving notice to Supplier before commencement of the renewal term.

8.2 Termination for Cause. Either Party may terminate the Agreement if the other Party materially breaches this Agreement, and such breach remains uncured for more than thirty (30) days after receipt of written notice of such breach. This clause shall not apply to breach of limited warranty provided by Choco as per section 8 and the exclusive remedies of Distributor are listed therein.

8.3 Termination by Choco. Choco may terminate this Agreement immediately upon written notice; if (i) Distributor has repeatedly placed Distributor Data or products that is not permissible under the Agreement; (ii) Distributor is in default of its payment obligations for more than two (2) weeks; (iii) Distributor becomes insolvent, files for or has filed against it, a petition of bankruptcy or (iv )if Distributor acts against use restrictions set out in section 2.2. 

8.4 Effects of Termination. When the Agreement for the Services offered against remuneration is terminated Distributor shall lose its access to the Services, with the exception of the Free Services which may be still provided to the Distributor at Choco’s sole discretion. After termination, Choco will have no obligation to Distributor to continue storing Distributor Data and will delete the Distributor Data in its systems upon Distributor’s request or in line with its retention policy, whichever is earlier. Notwithstanding the foregoing, Choco will be entitled to retain the Distributor Data if Choco is obliged to do so by law or to the extent that the Distributor Data is required for accounting and documentation purposes or for the operation of the Cloud Service.

8.5 Survival. The sections 1.3 (Free Services), 3.6 (Indemnification), 4 (Fees and Payment), 6 (Confidentiality), 8.4 (Effects of Termination) and 10 (Limitation of Liability) and others which by their nature are intended to survive, shall survive after termination or expiration of this Agreement.

9. Warranty

9.1 Limited Warranty. Choco provides a limited warranty against defects in the Services. A defect is deemed to exist in case of any significant deviations from the functional scope of the Services as described in the Agreement that render the use of the Service impossible or greatly restricted. Distributor shall without undue delay notify Choco in writing of any defect and provide all information that is available to Distributor and is necessary for Choco to identify, reproduce, analyze and remedy the defect. Furthermore, Distributor shall assist Choco in remedying defects free of charge and in a reasonable manner. Choco will either rectify the defect or deliver the impacted Service once again at its discretion and within a reasonable period of time upon receiving written notification of the defect. The provision of instructions for use, with which Distributor can reasonably workaround the defects, will also be deemed to be a remedy of defects. If Choco is unable to reasonably implement the remedies, then unless Choco and Distributor agree on a reasonable alternative remedy (such as giving the Distributor a reasonable discount on the affected services), then Distributor’s sole and exclusive remedy shall be to terminate the Agreement. Choco's sole responsibility and Distributor's sole exclusive remedies against defects are set out in this section.

9.2 Exclusion from Warranty. This limited warranty does not apply (i) to any defects caused by unauthorized use, abuse, negligence or equipment of Distributor, (ii) to any defects not notified by Distributor within 30 days upon noticing the defect.

9.3 Limitation period. The limitation period for warranty claims is one year, unless they are based on intentional acts or omissions or gross negligence or relate to losses resulting from death, physical injury or impairment of health.

9.4 DISCLAIMER OF WARRANTY. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS,” AND CHOCO MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. CHOCO DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES CHOCO GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE SERVICES.

10. Limitation of Liability

10.1 LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF CHOCO (INCLUDING ITS LEGAL REPRESENTATIVES, EMPLOYEES, AGENTS AND VICARIOUS AGENTS) ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO CHOCO IN CONNECTION WITH THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL CHOCO HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY.

10.2 DISCLAIMER OF CONSEQUENTIAL AND RELATED DAMAGES. TO THE FULLEST EXTEND PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL CHOCO (AND ITS LEGAL REPRESENTATIVES, EMPLOYEES, AGENTS AND VICARIOUS AGENTS) BE LIABLE TO Distributor FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF CHOCO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

10.3 EXCLUSIONS FROM LIMITATION OF LIABILITY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY.

11. Final Provisions

11.1 Amendments. Choco may amend this Agreement with effect for the future. Any amendments and side agreements to this Agreement must be made in writing. In case of minor or cosmetic amendments that do not affect Distributor, the amendments shall be posted on Choco's website. In other cases, Choco will provide Distributor with notice before the changes enter into force and allow Distributor a reasonable time to review. Amendments shall be deemed as agreed by Distributor if Distributor has not expressly objected to them by the time they take effect. In case of objection, unless the Parties mutually agree upon another resolution, either party may terminate this Agreement as its sole and exclusive remedy in connection with such amendment and/or objection. Notwithstanding the foregoing, Choco may amend its policies from time to time to make necessary

adjustments due to changes in its Services or laws without prior notice.

11.2 Assignment and Subcontracting. Distributor shall not, without the prior written consent of Choco, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement. Choco may at any time assign, transfer or deal in any other manner with all or any of its rights or obligations under this Agreement without Distributor’s consent. If Choco subcontracts any of its obligations to its subcontractors or affiliates (“Vicarious Agents”), Choco will remain responsible for their acts and

omissions.

11.3 Entire Agreement and Order of Precedence. This Agreement includes the Order Form, MSA (including DPA), applicable Service Specific Terms and Choco’s policies that are made available to the Distributor. It shall constitute the entire agreement between the Parties regarding the provision and use of the Services. The Agreement shall supersede any previous agreements, communications, representations and understandings between them, whether written or oral, relating to this subject matter. In case of any inconsistency or conflict between the provisions of this Agreement, the following order of precedence shall apply: Order Form, Service Specific Terms, DPA and the MSA.

11.4 Headings. Headings or titles used in this agreement are for convenience and reference purposes only and shall not be considered in the interpretation or construction of any provision of this Agreement.

11.5 Waiver and Severability. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver, nor shall it prevent or restrict the further exercise of any right or remedy. If any part of this Agreement is determined to be invalid or unenforceable by a competent court, that part shall be deemed deleted, but this shall not affect the validity and enforceability of the rest of the Agreement.

11.6 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

11.7 Governing Laws and venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The Parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for New York, New York for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

These Integration General Terms and Conditions (the "Integration-GTC") together with the Main Services Agreement (the “MSA”) govern Choco’s performance of Integration Services consisting of development of a technical infrastructure for digital transmission of information between the Cloud Service and Distributor’s enterprise resource planning (the “ERP”) system (the “Integration”) and the Parties’ obligations in relation to that.

These Integration-GTC, together with the Annex-1 attached thereto, constitute an integral part of the Agreement entered into between Choco and Distributor. Capitalised terms not otherwise defined in these Integration-GTC shall have the meanings assigned to them in the Agreement. In the event of any inconsistency between these Integration-GTC and the Agreement, the order of precedence prescribed in the MSA shall apply.

1. Subject Matter of the Integration-GTC

1.1 The subject matter of these Integration-GTC is the development of the Integration until its delivery to Distributor. Once accepted by Distributor, the Integration shall constitute a part of the Cloud Service.

1.2 Integrations built by or on behalf of the Distributor do not fall under the scope of these Integration GTC and Choco does not assume any responsibility for such integrations.

1.3 The services of Distributor’s ERP provider that are accessed through the Integration do not fall under the scope of the Agreement and are solely governed by the terms and conditions of the specific ERP provider.

2. Provision of the Integration Services

2.1 If the Parties agree on a minimum number of active Customers for the launch of the Integration Services in the Order Form, then Choco will start to perform the Integration Services only once that minimum number is reached. A Customer shall be deemed active if it has placed at least one order with Distributor using the Cloud Service in the relevant calendar month (“Active Customer”). If the minimum number is not reached within twelve months from the Effective Date of the Agreement, either Party shall be entitled to terminate the Integration Services, unless Choco has already commenced with the performance of the Integration Services.

2.2 The Parties shall mutually agree on the scope and channel of Integration, based on the standard content, channels and file formats supported by Choco as described in Annex-1. In case of any subsequent additions or changes to the agreed-upon scope, Choco reserves the right to adjust the timelines and charge additional Fees taking into consideration any extra efforts required to implement the changes. Distributor shall ensure that Choco only gets access and permissions to the agreed transmission content and not to any other information that is not necessary for the Integration.

2.3 Distributor shall provide Choco with a distinct technical contact person from its ERP provider who shall have sufficient technical knowledge and capacity to cooperate with Choco for the provision of the Integration Services.

2.4 Upon request, Distributor shall provide and shall ensure that its ERP provider provides Choco with all information required by Choco for the provision of the Integration Services in a timely manner, including sample catalog files, sample order files, API docs, documentation related to the system environment as well as with staging credentials and access rights to its ERP system and the test environment.

2.5 If Distributor cannot provide any test environment, then Distributor shall alternatively provide Customer information with which Choco can perform integration tests. Unless delivery of the test results is automated, Distributor shall provide Choco with the test results. Distributor shall ensure that the provided test environment corresponds to the same technical parameters as the live product environment. Distributor will provide Choco with (test) access data of the selected authentication method. Any Choco Deliverables provided by Choco for the Integration Services as well as instructions regarding their use shall be deemed Confidential Information of Choco and Distributor shall not be entitled to edit, distribute or post publicly the documentation or instructions for use.

2.6 Distributor shall inform Choco in a timely manner about any upcoming adjustments to its technical systems that could have an impact on the functionality of the Integration Services or the performance of Choco's obligations under the Agreement. Choco will not be responsible for any delays or defects in the transmission of orders due to updates not notified on time.

3 Acceptance Procedure

3.1 The Integration shall be deemed complete when the customer number, order information (meaning the list of ordered products, their product IDs and quantities) and order’s expected delivery date are transmitted into the Distributor's ERP system. These constitute the conclusive list of main functionalities of the Integration. Whilst additional components may be identified and assessed by the Parties depending on the specific functionalities of Distributor’s systems during the Implementation Phase, these will not be considered in determining the date that Integration is complete.

3.2 When these main functionalities are ready, Choco shall either (i) conduct a live test in a meeting with the Customer, during which the Distributor shall accept the Integration if the functionalities are working, or (ii) submit the Integration to the Customer for testing at their convenience. Should the main functionalities not perform as expected during live test, Choco shall promptly address the defects and resubmit the Integration for acceptance.

3.3 In the event that the Integration is submitted for the Customer’s independent testing, the Customer shall have a period of one (1) week from the date of submission to test and provide written acceptance. Should the main functionalities not perform as expected, Distributor shall immediately notify Choco of such defects in writing and Choco shall promptly address the defects and resubmit the Integration for acceptance. If the Customer fails to respond or provide acceptance within this period, and no material bugs or issues are reported, the Integration shall be deemed accepted at the conclusion of the one (1) week period.

3.4 Acceptance by the Distributor may not be unreasonably withheld due to minor flaws or defects that do not materially affect the functionality of the Integration. Choco shall within a reasonable period of time use commercially reasonable efforts to remedy such insignificant defects after acceptance.

3.5 With respect to defects that were known to Distributor at the time of formal acceptance but were not reported by Distributor, defects that would have been obvious in the course of a proper inspection or defects that were otherwise not known to Distributor due to negligence, Distributor will not be entitled to the rights related to defects as governed in section 9 of the MSA on Warranty, otherwise any defects that occur and notified to Choco after formal acceptance will be subject to section 9 of the MSA on Warranty.

 

Annex 1 - Integration Services

This Annex sets out the standard scope of Integration, in particular the transmission content, transmission channels, file formats and technical procedures supported by Choco. Distributor-specific customizations may be possible subject to additional charges.

A. Transmission Content

It is possible to transmit different components through an Integration, such as orders, Product Catalog, prices, order confirmation, images, customer lists, Order Guides of Customers, order updates and edits. The standard transmission content is the customer number, order information (meaning the list of ordered products, their product IDs and quantities) and order’s expected delivery date. Parties will agree on the transmission content in the technical coordination meeting. After such meeting, there may be a possibility for adding more components to the scope subject to additional charges.

B. Data Transmission
Data transmission may consist of one or a combination of the following technical channels:

1. HTTP(s) API
2. (S)FTP Server
a) Hosting by Choco
b) Hosting by the Distributor or a third-party provider
3. Choco App for an ERP system (Connector)

 More details on the transmission channels are given below:

 1. HTTP(s) API
Choco supports the following authentication:

•Oauth 1.0 and 2.0
•Basic Auth
•Open ID

All other types of authentication (SAML, TLS, JWT,... ) require detailed technical review and may be subject to additional fees. Choco will keep all credentials strictly confidential and use them only for the purpose of Integration.

Choco supports all common methods (GET, POST, PUT, PATCH) with a transmission of orders placed via POST and a retrieval of product catalogs via GET. Distributor will ensure endpoint availability throughout the entire term of the contract. Choco will repeat erroneous transmissions, but cannot guarantee a transmission in the absence of available endpoints.

2. (S)FTP server

a) Hosting by Choco
Choco shall make a (S)FTP (SSH) server available and shall provide Distributor with username, password, URL and port. Distributor will be granted CRUD rights for the folders in question. Choco will provide separate (S)FTP servers for test and live operation.

b) Hosting by the Distributor
Distributor shall provide Choco with the username, password, URL and port of the (S)FTP server. Distributor shall ensure the availability of the endpoints throughout the entire term of the Agreement. Choco will repeat faulty transmissions but cannot guarantee a transmission in the absence of available endpoints.

3. Choco-App for an ERP system (Connector)

Choco provides system-side integration for selected ERP systems via an app or another standardized interface, whereby Choco builds a connector between the Cloud Service and Distributor’s ERP.

 C. File Formats
Choco supports multiple file formats for the exchange: CSV, XML, JSON, TXT, Excel, EDI, X12. In the event there are unclear or missing specifications from the Distributor, Choco shall provide files in a standard format (including documentation).

D. Technical Procedure
1. Orders from Cloud Service to Distributor
After the Integration is delivered (deployed in the production environment), Choco will send the orders to Distributor in real time via one of the transmission channels or shall make them available on an (S)FTP server. The Distributor shall import the orders in real time into its own ERP system. The purchase orders will follow the prescribed format, but will at a minimum contain (if not explicitly defined otherwise):

•Order number (unique)
•Product numbers (as specified by Distributor)
•Distributor number
 

2. Product catalogs from Distributor to Cloud Service
Distributor shall regularly send a (complete and up to date) Product Catalog and/or Order Guides of its Customers to Choco or make them available via one of the selected transmission technologies. Choco shall import them in real time or at least every 24 hours (unless explicitly defined otherwise).

Technical procedure for transmission of other components shall be agreed by the Parties. Unless agreed otherwise, both Parties shall use commercially reasonable efforts to transmit all components through Integration in real time.

*no other changes than replacing "Supplier" with "Distributor"

These Onboarding and Support General Terms and Conditions (the "O&S-GTC") together with the Main Services Agreement (the “MSA”) govern Choco’s performance of the Onboarding and Support Services as described in the Order Form or agreed elsewhere between the Parties (“O&S Services”) and the Parties’ obligations in relation to that.

These O&S-GTC constitute an integral part of the Agreement entered into by and between Choco and Distributor. Capitalized terms not otherwise defined herein shall have the respective meanings assigned to them in the Agreement. In the event of any inconsistency between these O&S-GTC and the Agreement, the order of precedence prescribed in the MSA shall apply.

1. Provision of the O&S Services

1.1 The Parties shall agree on a project plan for providing the O&S Services and Distributor shall appoint a project manager who will attend all the meetings and complete or arrange for completion of all Distributor activities as outlined in the project plan.

1.2 At the sole discretion of Choco, training may be given via workshops, training materials, dedicated point of contacts or any alternative methods. The Parties shall mutually agree on the time, duration, group of participants and location of such training. Unless otherwise agreed, training shall take place virtually. Both Parties shall be entitled to postpone agreed training dates with reasonable notice in advance of the agreed date.

1.3 Subject to a respective agreement between the Parties, Choco shall create Choco Deliverables for the purpose of introducing the Cloud Service to Distributor’s Customers. Distributor shall use the Choco Deliverables only for the purpose they are created for and shall be solely responsible for the use of the Choco Deliverables, including the uses made by Choco upon Distributor’s instructions.

2. Distributor Obligations and Warranties

2.1 Distributor shall provide Choco with all information, documents and other materials required for onboarding Distributor and its Customers to the Cloud Service, setting up their accounts and implementing the Cloud Service (the “Distributor Deliverables”) in a timely manner upon Choco’s request. Such information includes, without limitation, Distributor’s delivery days, cut-off times and its product catalogue containing all the products in Distributor’s product range together with their designation, product number, name, ID, availability, order unit, list price and image (“Product Catalogue”), which will be displayed in Distributor’s account on the Cloud Service to its Customers.

2.2 Distributor Deliverables also include a list of all - or the number specified in the Order Form – of Customers to be onboarded to the Cloud Service, including at least the customer number, name, address, telephone number, email address of the Customer, as well as telephone number and email address of one contact person, and order history of those Customers for the last two hundred (200) days in order to be turned into individual shopping lists for the Customers (“Order Guide”). Unless explicitly requested by Distributor, any Customer related information provided throughout the Agreement may be used by Choco for onboarding purposes.

2.3 If there are Customers who are already registered with the Cloud Service, Distributor shall provide the Order Guides of such Customers immediately upon signing the Agreement. If a Customer registers for the use of the Cloud Service for the first time, then Distributor shall provide Choco with the Order Guides of such Customers without undue delay (but no later than within twenty-four (24) hours). Distributor shall ensure that the products reported in the Order Guides are also listed in the Product Catalogue and that the products in the Order Guide and in the Product Catalogue can be assigned to each other by means of a clear, identical product number.

This White Label Terms and Conditions (the “WL-TC”) together with the Main Services Agreement (“MSA”) govern branding of the Choco's mobile app with Distributor’s name and logo (the “WL-App”), licensing of the WL-App to Distributor’s Customers and the operation and maintenance of the WL-App.

The WL-TC constitutes a Service Specific Term and is incorporated into the Agreement entered into by and between Choco and Distributor by reference. Capitalized terms not otherwise defined herein shall have the respective meanings assigned to them elsewhere in the Agreement. In the event of any inconsistency or conflict between the WL-TC and the MSA, WL-TC shall prevail.

1. License Grant. Choco hereby grants to Distributor a limited, revocable, non-exclusive, non-transferable license to use the WL-App, and grants Distributor the right to sublicense the WL-App to Distributor’s Customers during the term of the Agreement to access and use it solely for placing orders from Distributor and for communication with Distributor, subject to the Choco’s End-User Terms (as defined below) and the terms agreed herein. The WL-App may not be used on behalf of or for the benefit of a third party other than Distributor.

2. Branding. The WL-App will be branded with the Distributor's name and logo. It will include an acknowledgement as "Powered by Choco". Distributor is solely responsible for securing its own copyrights, trademarks and all other intellectual property rights for use of Distributor’s name and logo in the WL-App.

3. Hosting and support. The WL-App will be operated, hosted and maintained by Choco and any customer support to Distributor’s Customers will be provided by Choco in accordance with Choco’s standard support policies.

4. App submission. The WL-App will be submitted to the mobile application stores under Distributor’s developer account. Distributor is responsible for maintaining its developer account in good standing and for all associated costs. Distributor will provide Choco with administrator access to its developer account to submit the WL-App for listing on the respective application stores and to maintain the WL-App.

5. Marketing. Distributor may market and promote the WL-App on any form of media, but shall not claim any ownership of the WL-App.
 

6 Use by Customers. Distributor’s Customers shall not further sublicense nor distribute the WL-App, and use of the WL-App by the Customers shall be subject to Choco’s “Terms of Service” or any other end user terms as determined by Choco (“Choco End-User Terms”). The WL-App will be provided to Distributor’s Customers and such individual end users who are personnel of the Customers, on a strictly “as is” basis, and for free (i.e. Distributor cannot charge its Customers for the WL-App licensed hereunder). Distributor will remain responsible and liable towards Choco for all of its Customers and their end users’ (whether authorized or not) use of the WL-App in accordance with Choco End-User Terms and for their acts and omissions. Choco reserves the right to suspend Distributors’ Customers access to the WL-App in the event of any violation of Choco End-User Terms.

7. Functionality of WL-App. WL-App will enable Distributor’s Customers to communicate with the Distributor and place orders to Distributor. Choco may make additional functionalities available in the WL-App at its own discretion, but it makes no commitment or gives no guarantee to do so. Distributor acknowledges and accepts that not all of the functionalities available in the Choco's mobile app will be available in the WL-App and that Choco is under no obligation to make any additional functionalities available other than the ones indicated in the first sentence of this section.

8. Fees. The Fees for making the WL-App available will be agreed in the Order Form signed between the Parties or elsewhere in writing. 

9. Use by Distributor. The terms of the MSA will continue to govern the use of the WL-App by Distributor and its Authorized Users.

10. Limitation of liability. Choco’s warranties regarding use of the WL-App by Distributor’s Customers and its sole liability arising out of use of the WL-App by Distributor’s Customers are limited to those set out in the Choco End-User Terms. Specifically, Distributor understands that the WL-App is provided to Distributor’s Customers on an “as is” and “as available” basis without any warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Distributor shall be solely liable towards its Customers for any amounts and claims beyond what is undertaken in Choco End-User Terms.

11. Intellectual property. Distributor acknowledges and agrees that Choco and/or its licensors own or otherwise have all the necessary intellectual property rights in the WL-App and all derivative works thereto. Distributor does not have any rights in or to the WL-App, except for the limited express rights granted in this WL-TC.

12. Indemnification by Distributor. Distributor will indemnify, hold harmless, and defend Choco, its licensors, service providers, and their respective affiliates, directors, officers, agents, and employees, from and against any third party claim, suit, or proceeding arising out of or related to (i) any claims related to any infringement or violation of a copyright, trademark, trade secret, or confidentiality obligation by any Distributor branding and any other materials provided or published by Distributor on the WL-App, (ii) Distributor’s or its Customers’ and their users negligent acts or omissions in the operation of the WL-App, and their material breach of Distributor’s obligations, representations, warranties or covenants contained herein.

13. Miscellaneous. Unless specifically set forth in this WL-TC, all references to the Cloud Service in the Agreement shall include the WL-App as well.

*no other changes than replacing "Supplier" with "Distributor"

This Data Processing Agreement (“DPA”) is entered into between the Distributor entity identified in the Order Form executed between the parties and Atlantic Food Waste Partners LLC d/b/a Choco(“Choco”), (each “Party” and together the “Parties”).

Recitals

Under an Order Form concluded by and between the Parties, which is governed by the Main Services Agreement (“MSA”) and Service Specific Terms (altogether, the “Agreement”), Choco has agreed to provide Distributor with the provision of the Onboarding and Support Services, Cloud Services, and Integration Services (the “Services”). For the purposes of providing the Services to Distributor and facilitating provision of Third Party Services, Choco may have access to, collect, or be provided with, Distributor Personal Data (defined below) and process it in line with Distributor's instructions.

This DPA is supplemental to, and forms an integral part of, the Agreement. In case of any conflict or inconsistency with the terms of the Agreement, this DPA will take precedence over the terms of the Agreement to the extent of such conflict or inconsistency.

1. Definitions

For the purposes of this DPA:

“CCPA” means the California Consumer Privacy Act of 2018 as amended by the California Privacy Rights Act of 2020, as set forth in California Civil Code § 1798.100 et seq. and all other applicable laws or regulations relating to the processing of personal information promulgated thereunder. Other terms that have meanings ascribed to them in the CCPA, including but not limited to “business”, “business purposes”, “commercial purposes”, “collects”, “collected”, “collection”, “consumer”, “de-identified”, “personal information”, “sell”, “selling”, “sale”, “sold”, “service provider” or “third party” shall have the same meaning as in the CCPA.

“Consumer” means the California individual to whom Distributor Personal Data relates.

“Subcontractor” means any processor engaged by Choco or by any other Subcontractor of Choco, which agrees to receive from Choco, or from any other Subcontractor of Choco, Distributor Personal Data intended for processing activities to be carried out on behalf of Distributor and in accordance with its instructions, the terms of this DPA and the terms of the Services Agreement.

“Distributor Personal Data” means any personal data and/or personal information regarding a Consumer, as applicable, provided by Distributor to Choco in connection with the Services or in the course of Choco’s performance of the Services.

2. Status of Parties; Details of the processing activities

2.1 The Parties agree that with respect to the provision of Services, as applicable, as to processing of the personal information, Distributor is the “Business” and Choco is the “Service Provider”, as such terms are defined in the CCPA.

2.2 Choco and any person acting under its authority, including Subcontractors and those acting under the Subcontractor’s authority shall process Distributor Personal Data pursuant to the written instructions provided by Distributor to Choco, and attached hereto as Schedule 1, and only to the extent necessary to fulfil its obligations under this DPA. Any additional instructions outside of the scope of Schedule 1 shall be agreed upon, in writing, by both Parties.

2.3 Distributor warrants and represents that it has obtained all necessary consents and complied with all obligations required by CCPA for making available any Distributor Personal Data to Choco and for allowing collection of Distributor Personal Data by Choco on the Distributor’s behalf under the Services Agreement. 

3. Obligations of Choco

3.1 Choco agrees:

(a)to process Distributor Personal Data only:

(i) on behalf of Distributor and/or the applicable Business and in accordance with Distributor's documented instructions unless otherwise required by the CCPA;

(ii) for the purpose of carrying out the Services or as otherwise instructed by Distributor; and

(iii) in compliance with this DPA and the CCPA.

(b) that it shall not process the Distributor Personal Data other than on Distributor’s documented instructions in the Agreement, which include processing to detect data security incidents, protecting against fraudulent or illegal activity, maintaining and improving the Services, managing Distributor’s account, creation of datasets of aggregate consumer information and deidentified information, appointing Subcontractors, and any other business purpose or operational purpose permissible under the CCPA for a service provider that does not cause Choco to lose its Service Provider status.

(c) that it shall not (i) sell the Distributor Personal Data, (ii) retain, use or disclose the Distributor Personal Data for any purpose other than for the business purposes, including retaining, using, or disclosing the personal information for a commercial purpose other than providing the Services or carrying out the instructions of Distributor, or (iii) retain, use, or disclose the Distributor Personal Data outside of the Business relationship between Distributor and Choco.

(d) that it shall promptly notify Distributor of any requests, complaints, messages, or any other notices received from any third party regarding the processing of the Distributor Personal Data under this DPA (including requests from Consumers to correct, or limit or restrict use of such Consumers’ personal information), and that it will reasonably assist Distributor with its obligations to reply to or comply with requests, provided that Choco reserves the right to reimbursement from Distributor for any reasonable costs incurred as a result of providing such assistance.

(e) that if it is legally required to process Distributor Personal Data otherwise than as instructed by Distributor, it shall notify Distributor before such processing occurs, unless the law requiring such processing prohibits Choco from notifying Distributor on an important ground of public interest, in which case it shall notify Distributor as soon as that law permits it to do so.

(f) that it will provide reasonable assistance to Distributor in fulfilling its legal obligations under the CCPA, and will not knowingly carry out, or omit, any act, that would cause the Distributor to be in breach of the CCPA.

(g) that it has implemented and will maintain reasonable technical, organisational, and security measures to protect Distributor Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, appropriate to the risks represented by the processing and the nature of Distributor Personal Data to be protected. It shall be incumbent upon Distributor to determine whether these measures are sufficient with respect to the circumstances surrounding the data processing that are not known by Choco.

(h) to take reasonable steps to ensure that its personnel who have access to the Distributor Personal Data have committed themselves to confidentiality or are under appropriate statutory obligation of confidentiality.

(i) to inform a Consumer making a request that it should submit the request directly to Distributor.

(j) To notify Distributor if it makes a determination that it can no longer meet its obligations under the CCPA.

(k) to allow for and contribute to audits and assessments, including inspections, conducted by Distributor or another auditor mandated by Distributor, upon terms mutually agreeable to the Parties, to the extent that such information is within Choco’s control and Choco is not precluded from disclosing such information by applicable law, a duty of confidentiality, or any other obligation owed to a third party.

4. Subcontractors

Distributor acknowledges that Choco may transfer Distributor Personal Data to Subcontractors and Distributor hereby authorizes Choco to engage and appoint such Subcontractors to process Distributor Personal Data. Distributor also permits each Subcontractor to appoint a Subcontractor on its behalf when necessary. Distributor understands and acknowledges that all Subcontractors authorized by Distributor are acting under the authority and subject to the direct instructions of Distributor. Choco may continue to use those Subcontractors already engaged by Choco, as listed on Schedule 2, or to engage new Subcontractors to process Personal Data. Choco will update the list of sub-processors in Schedule 2 when engaging with new Subcontractors. If Distributor wants to receive an individual notification of an update to the list of Subcontractors, it shall sign up to the notification mechanism available in Schedule 2. Choco shall impose substantially similar data protection obligations vis-à-vis its Subcontractors which are no less protective than those set forth in this DPA and will remain liable to Distributor for the performance of its Subcontractors under this DPA.

5. Allocation of costs

Except as otherwise specified in this DPA, each Party shall perform its obligations under this DPA at its own cost.

6. Return or Deletion of Distributor Personal Data

Upon Distributor’s or a Consumer’s request, Choco will delete any Distributor Personal Data at any time during the term of this DPA. Alternatively, upon written request of Distributor or Consumer after expiration or termination of this DPA, Choco will securely destroy all Distributor Personal Data for Distributor. Notwithstanding the foregoing, Choco may decline the deletion requests from Distributor or Consumer if any applicable laws prevent Choco or Subcontractors from doing so.

7. Liability

Each Party’s liability towards the other Party in connection with this DPA will be limited in accordance with the applicable terms of the Agreement. Distributor acknowledges that Choco relies on Distributor’s directions as to the processing of Distributor Personal Data on behalf of Distributor in connection with Choco’s provision of the Services. Consequently, Choco will not be liable under this DPA or the Agreement for any claim resulting from (a) any action or omission by Choco resulting from Choco’s compliance with Distributor’s instructions or (b) Distributor’s failure to comply with its obligations under the CCPA.

8. Miscellaneous

8.1 Schedule 1 and 2 constitute an integral and inseparable parts of this DPA. In the event of inconsistencies between the provisions of this DPA and other agreements between the Parties, the provisions of this DPA shall prevail. In cases of doubt, this DPA shall prevail, in particular, where it cannot be clearly established whether a clause relates to a Party’s data protection obligations.

8.2 Should any provision or condition of this DPA be held or declared invalid, unlawful or unenforceable by a competent authority or court, then the remainder of this DPA shall remain valid. Such an invalidity, unlawfulness or unenforceability shall have no effect on the other provisions and conditions of this DPA to the maximum extent permitted by law. The provision or condition affected shall be construed either: (a) to be amended in such a way that ensures its validity, lawfulness and enforceability while preserving the Parties’ intentions, or if that is not possible, (ii) as if the invalid, unlawful or unenforceable part had never been contained in this DPA.

8.3 Any amendments to this DPA shall only be effective in they are made in writing duly signed by authorised representatives of the Parties hereto.

Schedule 1

Data Processing Instructions

Purposes

The Distributor Personal Data shall be processed for the provision of and improving the Services and for facilitating the provision of Third Party Services if necessary.

Consumers

The personal data concerns the following categories of data subjects (please specify):

Personal Data relevant to the Services and Third Party Services, the extent of which is determined and controlled by Distributor in its sole discretion, and which may include, but is not limited to Personal Data relating to the following categories of data subjects:

• Employees or contact persons of Distributor’s prospects and customers
• Employees, consultants, agents, advisors, freelancers of Distributor (who are natural persons)
• Distributor’s users authorized by Distributor to use the Services

Categories of data

The personal data concerns the following categories of data (please specify):

Personal Data relevant to the Services, the extent of which is determined and controlled by Distributor in its sole discretion, and which may include, but is not limited to the following categories of Personal Data:

• First and last name
• Position
• Contact information (company, email, phone, physical business address)
• ID data
• Device data
• Onboarding messages statistics
• In-App Campaign message statistics
• Any other data provided directly or indirectly by Distributor, its Authorized Users and/or Personnel of its Customers

Special categories of data (if appropriate)

The personal data concerns the following special categories of data (please specify): None. The personal data processed will not include sensitive personal data including information about racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, sex life, government issued identification numbers, health or medical records, financial information and criminal records.

Processing operations

The personal data will be subject to the following basic processing activities (please specify): Collect, store, and process Distributor Personal Data to perform, operate, maintain, support and improve the Services pursuant to the Agreement, including the activities such as detecting data security incidents, protecting against fraudulent or illegal activity, managing Distributor’s account, creating datasets of aggregate consumer information and deidentified information and appointing subcontractors and for intermediating for Third Party Services. Cloud Service includes order and message transmissions and provision of the related analytics, processing of orders via Choco-AI, enabling sending communications via email and other available formats and provision of related analytics.

Duration

The personal data will be processed by Choco for the duration of the Services Agreement.
 

Schedule 2

You may find the list of Subcontractors and notification mechanism for new Subcontractors at https://legal.choco.com/supplier-subprocessors.  

*no other changes than replacing "Supplier" with "Distributor"

The following contains a description of the Services. Distributor shall only receive the Services which are included in the signed Order Form or which are subsequently agreed to by the Parties in writing. Capitalised terms used in this Service Description shall have the meaning assigned to them elsewhere in the Agreement.

• Cloud Service:
  • Choco Order Management: Cloud-based web platform and mobile app (Choco App) featuring omnichannel order management and communication solutions which provide the ability to:
    • digitise order intake across a broad range of channels through Choco-App (in-app orders) and Choco-AI (email, text, WhatsApp, voicemail)
    • integrate orders seamlessly into Distributor’s ERP systems for simplified workflows
    • receive overviews of Customers’ order trends to better manage customer relationships,
    • offer a differentiated e-commerce ordering experience for Customers by bringing Distributor’s product catalogue to life in the preferred channel
    • gain control over order inflow by defining minimum order values, delivery days and cut-off time
    • easily promote products and run targeted marketing campaigns
    • easily set access rights and permissions to staff members based on their role
    • obtain access to product and tech support through Choco’s customer support
    • obtain access to support and advice from industry thought leaders with the Choco customer success team.
  • Choco White Label App: Obtain access to, and receive ongoing maintenance for, a bespoke version of the Choco-App which incorporates and operates under Distributor's logo and branding and thereby provides a premium brand experience for Distributor’s Customers when interacting online
    
     
• Implementation Services:
  
   
  • Onboarding and Support Services:
    • comprehensive support for account setup ensuring the digitization of product catalogs and tailoring the Choco App to specific needs
    • in-depth training sessions for Distributors and their teams, guiding them on how to effectively use the Cloud Service
    • assistance for Distributors in introducing the Cloud Service to Customers, executing joint promotional activities to drive adoption, and setting up Customer accounts for immediate use. This process ensures a smooth transition and maximises operational efficiency from day one
    • best practice advisory on operational questions ranging from IT infrastructure, to process enhancements and sales related optimization
    • pre-training for Choco-AI: Bespoke Distributor-specific optimisation of AI models using historical order information to ensure the highest level of accuracy
      
       
  • Integration Services:
    • comprehensive integration services connecting the Cloud Service with Distributors’ ERP systems enabling seamless data synchronisation and process automation across both platforms
    • ensure real-time data flow and improve the overall efficiency of order management operations for all relevant ERP systems through Choco’s standard connectors or customer builds