--- title: US Premium date: 2024-07-09T13:54:00+02:00 author: Gozde canonical_url: "https://legal.choco.com/uspremium" section: Pages --- Latest version Effective October 1, 2024 Effective November 1, 2023 Effective September 18, 2022 ## Main Services Agreement Effective October 23, 2025 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 complimentary Onboarding and Support Services as well as Integration Services (collectively “**Implementation Services**” and, together with the Cloud Service, each a “**Service**” and collectively the “**Services**”). A description of each Service is available[ here](https://legal.choco.com/uspremium#services), as may be updated by Choco from time to time. This Main Services Agreement (“**Agreement**”) governs the provision and use of the Services. Distributor agrees to be bound by the Agreement by either executing an Order Form which incorporates the Agreement or by accessing and/or making use of the Free Services (as defined in section 1.3 below). Capitalized terms not otherwise defined herein shall have the meaning assigned to them elsewhere in the Agreement. By accepting this Agreement, you acknowledge and agree that (1) you are entering into this Agreement on behalf of the distributor identified in the Order Form or the entity on whose behalf you are acting (“**Distributor**”); and (2) you have full power and authority to bind the Distributor to the terms and conditions of this 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.** Distributor may subscribe to the Cloud Services by executing an order form (“**Order Form**”). Subject to Distributor’s payment of Subscription Fees, Choco hereby grants Distributor a non-exclusive, non-transferable, non-sublicensable right to access and use the Cloud Service during the period for which Distributor subscribed to a Cloud Service (“**Subscription Term**”), solely for its own business operations and in accordance with the terms and conditions of the Agreement. Distributor’s license is limited to the separately licensable components of the Cloud Service as identified in the applicable Order Form, optional add-ons are not included unless they are specifically mentioned. 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 Implementation Services.** Choco shall provide the Implementation Services as set out in the applicable Order Form or as otherwise mutually agreed in writing between the Parties. Optional add-ons, premium tiers, and on-site services are excluded unless expressly agreed in writing. Implementation Services are performed remotely. Where on-site services are agreed, the Distributor shall reimburse Choco for all reasonable travel costs and expenses. The Distributor shall appoint a project manager responsible for attending project meetings and ensuring completion of all Distributor activities in accordance with the agreed project plan. **1.3 Free Services.** Choco may offer certain features of the Cloud ServicesService free of charge, such as trial periods, proof of concept, 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](https://legal.choco.com/uspremium#integration) and[ White-Label GTCs](https://legal.choco.com/uspremium#wl) . To the extent such Services are provided to Distributor, the applicable Service Specific Terms are incorporated into this Agreement by reference. 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 unavailability caused by factors that are outside of Choco’s reasonable control (such as force majeure events, downtime that results from Distributor’s or a third party’s equipment or software , 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 that Distributor subscribed to, the Distributor may object to the changes. In case of a timely objection by Distributor, Parties may agree on a reasonable remedy, or either Party may terminate the Agreement and Choco will refund the Distributor any pre-paid Fees on a pro-rata basis for the remainder of the Subscription Term. **1.7 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. **1.8 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 Agreement 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. Each user account (or seat) is personal to the designated Authorised User and may not be shared with any other individual. 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, any functional restrictions or applicable usage allowance; (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 in breach of the Agreement, (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 Agreement. **4. Fees and Payment** **4.1 Fees.** Distributor shall pay Choco the fees agreed to in the Order Form or otherwise in writing for the provision of the Services (the “**Fees**”). Unless expressly agreed otherwise in the Order Form, the Fees consist of (i) a recurring fee for the use of the Cloud Service (“**Subscription Fee**”), payable for the duration of the Subscription Term, and (ii) fees for the Implementation Services (“**Implementation Fee**”). Except otherwise specifically agreed in the Agreement, the Fees are non-refundable. If any Fees are calculated based on the number of active Customers, a Customer shall be deemed an Active Customer if it has placed at least one order with the Distributor using the Cloud Service during the relevant calendar month (“**Active Customer**”). **4.2 Payment.** Distributor shall pay the applicable Fees pursuant to the billing and payment terms set out in the Order Form. Invoices will be issued at the beginning of the agreed payment interval and unless expressly agreed otherwise in the Order Form, all invoiced amounts shall be due within two weeks of the date on the invoice. Choco’s default payment method is direct debit however Choco may, at its discretion, accept alternative payment methods, including credit card or any other methods it deems acceptable. 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. . By providing direct debit and/or credit card information, Distributor authorizes Choco to charge the applicable payment method for all Fees as they become due under this Agreement. **4.3 Taxes.** All amounts stated in the Order Form 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. **4.5 Usage Allowance and Fee Adjustment.** Distributor’s subscription may be subject to usage allowance (such as per number of seats, order volumes, or plan level) set out in the applicable Order Form, which represents the maximum capacity Distributor is allowed to use. Choco may monitor Distributor’s use of the Services. If Distributor exceeds the applicable usage allowance, Choco will notify and work with Distributor to seek to reduce Distributor’s usage so that it conforms to agreedthat allowance. If it’s not possible to reduce Distributor’s usage, Choco may adjust Distributor’s subscription to reflect Distributor’s actual usage for the remainder of the term. Once adjusted Subscription Fee may not be decreased until the end of the then current Subscription Term, even if there is a subsequent reduction in the scope of use. If Distributor repeatedly exceeds the applicable usage allowance, Choco reserves the right to charge for past excess usage in accordance with Choco’s then-current list pricing. **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 Cloud Service and any deliverables it may create for Distributor, together with any related technology any intellectual property rights related thereto or embodied therein such as any systems, application programming interfaces and Integrations developed by or on behalf of Choco including any improvements or modifications to the foregoing. Choco grants Distributor a limited license on the deliverables that Choco may create specifically for Distributor on a non-exclusive basis, limited with the term and purpose of the Agreement. Distributor does not have any rights in or to the Cloud Service and the deliverables Choco may create, 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. **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 commences on the date Distributor first accepts it and remains in effect until the termination or expiration of the last Order Form in line with this Agreement. The Parties may execute multiple Order Forms under this Agreement, and any such subsequent Order Forms shall be governed by this Agreement without altering its date of entry into force. **8.2 Subscription Term.** The Subscription Term and its start date shall be as specified in the applicable Order Form. Subscription Term shall automatically renew for successive periods of 12-month terms, unless either Party gives the other at least three (3) months' prior written notice of non-renewal before the end of the respective Subscription Term. Choco may update the terms of this Agreement, including the applicable Fees, by providing reasonable notice to the Distributor prior to the start of any renewal term in order to reflect changes in market condition. If such changes are notified to Distributor less than three (3) months before the renewal date, the Distributor may choose not to renew the Agreement without penalty. **8.3 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 9 and the exclusive remedies of Distributor are listed therein. **8.4 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. **8.5 Effects of Termination.** If an Agreement, including any Order Form, is terminated by Distributor in accordance with the “Termination for Cause” section above, Choco will refund Distributor any prepaid Fees covering the period after the effective date of the termination. Except in the case of a termination for cause by Distributor, upon termination any unpaid Fees covering the remainder of the term will become immediately due and payable. 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. **8.6 Survival.** The sections 1.3 (Free Services), 3.6 (Indemnification), 4 (Fees and Payment), 6 (Confidentiality), 8.5 (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 determines it cannot correct the defect, 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.** The Agreement incorporates the Order Form(s), the applicable Service Specific Terms, DPA 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: DPA, Order Form, Service Specific Terms and main body of the Agreement **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. ## Main Services Agreement *Updated on April 8, 2025 to replace the term “Supplier” with “Distributor.” All references to “Distributor” in these terms shall be deemed to include the previously used term “Supplier” as well. There are no other changes that affect the content of the legal terms.* 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 (collectively “**Implementation Services**” and, together with the Cloud Service, each a “**Service**” and collectively the “**Services**”). A description of each Service is available[ here](https://legal.choco.com/uspremium#services). 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,](https://legal.choco.com/uspremium#integration)[ Onboarding GTCs](https://legal.choco.com/uspremium#oandm) and[ White-Label GTCs](https://legal.choco.com/uspremium#wl) . 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](http://www.google.com/intl/en/policies/terms) including [ Google Privacy Policy](https://policies.google.com/privacy?hl=en%5C&gl=us). **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 payable by direct debit. Choco may, at its discretion, accept alternative payment methods, including credit card or any other methods it deems acceptable. 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.** All amounts stated in the Order Form 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 Cloud Service, 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. **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. ## Main Services Agreement (US) Choco operates a cloud-based order management and communication platform for suppliers and buyers (restaurants) in the food industry (the "**Cloud Service**"). Choco further offers professional services in connection with the use of the Cloud Service, such as onboarding and integration services (the “**Professional Services**”). Together with the Free Services (as defined below), the Cloud Service and the Professional Services collectively referred to as the “**Services**”. This Main Services Agreement (the “**MSA**”) are entered into between Atlantic Food Waste Partners LLC dba Choco (“**Choco**”) and the entity that has executed an order form (together with any annexes, the “**Order Form**”) that references the MSA or the entity that accesses and uses the Services as a supplier user (“**Supplier**”). The MSA, and the order form among the parties that references the MSA (together with any annexes thereto, the “**Order Form**”), any special provisions which govern any services provided by Choco under the respective agreed packages in the Order Form (the "**Service Specific Terms**") constitute the complete understanding between the parties on the subject matter (collectively, the “**Agreement”)** and is effective on the earlier of: (a) the date that the Order Form is fully executed by the parties, whether in the form of a document, or an online application page or form, or (b) Supplier’s initial access to and use of the Services (“**Effective Date**”). By entering into an Order Form and/or otherwise accessing or using the Services, Supplier agrees to be bound by the MSA and the other terms and conditions of the Agreement. If Supplier does not accept the MSA, Supplier is not authorized to access or use the Cloud Service. Capitalised terms not otherwise defined in the MSA will have the respective meanings assigned to them elsewhere in the Agreement. THEREFORE, in consideration of the foregoing, Choco and Supplier (hereinafter each a "**Party**" and collectively the "**Parties**") agree as follows: **1. Scope of the Services** **1.1 Access to Cloud Service.** Choco hereby grants Supplier 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. Supplier is responsible for arranging the necessary equipment and the Internet connection to be able to use the Cloud Service. Supplier 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 Professional Services.** Parties may agree on provision of Professional Services in the Order Form or elsewhere in writing, which shall be governed by this Agreement. While providing Professional Services, Choco may create deliverables for Supplier (the “**Choco Deliverables**”). Choco hereby grants Supplier 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. Supplier 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 Cloud Services 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 as a Supplier 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. Supplier acknowledges that Choco reserves the right to modify or terminate Supplier’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 Supplier.Free Services are provided as-is and to the maximum extent permitted by applicable law, Choco shall not be liable for any damages, costs, 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’) aggregate liability shall be limited to one-hundred (100) USD). In the event of a conflict between this clause and the rest of the Agreement, this section shall take precedence. **1.4 Service Specific Terms.** Some Services may be subject to additional terms specific to that Service. Supplier 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 Supplier 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.** Supplier 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 Supplier may object to the changes. In case of an objection by the Supplier, Choco may terminate the Agreement or offer the Supplier 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 Supplier 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. Supplier 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, Supplier agrees to be bound by Google's[ Terms of Service](http://www.google.com/intl/en/policies/terms) including [Google Privacy Policy](https://policies.google.com/privacy?hl=en%5C&gl=us). **1.8 AI-powered Services.** The Cloud Service may encompass functionalities that are powered by artificial intelligence (the “AI”). Supplier will retain ownership over the input it provides and the output generated by AI based on the input, both of which shall constitute Supplier Data (as defined 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 Supplier and it does not represent Choco’s views. Supplier undertakes to comply with the fair use policies of Choco’s third party service providers when using AI-powered functionalities, available here. In the event of a conflict between this section and the rest of the Agreement, this section shall take precedence. **2. Access and Use of Cloud Service** **2.1 Authorised Users.** The licence granted to Supplier is limited to its employees, agents or contractors who are authorised by Supplier to use the Services (the “**Authorised Users**”). Supplier 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. Supplier 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. Supplier is solely responsible for all activities that occur under the accounts of its Authorised Users. **2.2 Usage Rules and Restrictions.** Supplier shall use the Cloud Services 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. Supplier 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. **2.3 The relationship with the Customers.** Supplier 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 Supplier and the restaurants who are placing orders from Supplier (the “**Customer(s)**”). Each order (individual sale and purchase of products) shall be concluded solely between Supplier 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 Supplier and its Customers (such as disputes relating to incorrect deliveries or late payments). Supplier is solely responsible for the proper management of orders, and for its relationship and communication with its Customers and with any other third parties that it may engage with using the Cloud Service. **2.4 Cooperation.** Supplier 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 Supplier shall be up-to-date, complete, and accurate, and Supplier 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 Supplier’s failure to provide Choco with the required information or cooperation. **3. Supplier Data and Responsibilities** **3.1 Supplier Data.** Supplier shall retain all right, title and interest in and to information, images, texts, data, files, Supplier Deliverables and other materials that is transmitted, submitted or otherwise made available by or on behalf of Supplier to Choco in the course of Supplier's access and use the Services (the "**Supplier Data**"). Supplier shall solely be responsible for the Supplier Data and shall ensure its accuracy, integrity and reliability throughout the term of the Agreement. Supplier grants Choco a non-exclusive, royalty-free and worldwide licence to collect, process, reproduce, modify, host, store, disclose, display and perform all necessary acts on the Supplier Data for the purposes of operating the Cloud Service and providing the Services to Supplier. Supplier agrees that Choco may collect, analyze and use information about Supplier’s use of the Services (“**Usage Data**”) and Supplier 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 User Data and Supplier Data and use such information at its own discretion without being subject to any limitations, to the extent it does not identify Supplier, its Customers or any person. Choco may sublicense or transfer the rights granted herein to its Vicarious Agents. **3.2 Limitations on the Supplier Data.** Supplier 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 Supplier Warranties.** Supplier warrants that (i) it owns or will obtain the necessary rights and permissions to share the Supplier Data with Choco and to authorise the use of the Supplier Data by Choco as contemplated in this Agreement; (ii) 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 Supplier Data for the provision of the Services, as further described under the Data Processing Agreement; (iii) the Supplier Data and its use by Choco as contemplated in this Agreement do not violate any third-party rights or applicable laws; (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 and (v) the Supplier Data will not include any illegal, defamatory, inappropriate, offensive, hateful or violent content. **3.4 Removal.** Choco is not obliged to monitor the Supplier Data but reserves the right to do so at its own discretion. Choco may, without prior notice, remove or disable access to any Supplier Data (including the products offered via the Cloud Service) (i) if it violates the Agreement including Choco policies made available to Supplier, (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 Supplier Data. Choco will comply with binding orders of courts and supervisory authorities to remove any illegal Supplier Data from the Cloud Service. **3.5 Backup.** Choco will use commercially reasonable efforts to ensure integrity and availability of the Supplier Data. Notwithstanding the foregoing Supplier shall be solely responsible for the Supplier Data and shall take back-ups on a regular basis and commensurately with the risk. **3.6 Supplier Indemnity.** Supplier shall indemnify and hold Choco, its employees, representatives, 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) Supplier's (including its Authorised Users’) use of the Services, (ii) the Supplier Data, (iii) performance of orders submitted to the Supplier, or (iv) Supplier’s (including its Authorised Users’) violation of applicable laws. Choco shall notify Supplier 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 Supplier or undertake such defence in consultation with Supplier. In particular, Choco shall neither acknowledge nor dispute any claims asserted by third parties without consulting with Supplier, except where Supplier has not responded to Choco's notification of the claim within a reasonable time period. The provisions of this provision shall apply to contractual penalties as well as to fines and administrative penalties imposed by courts or regulators insofar as Supplier is responsible for them. 3.7 **Personal information.** With respect to the personal information that Choco processes on behalf of Supplier 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 Agreement. **4. Fees and Commissions, Reporting, Payment** **4.1 Fees.** Supplier 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 indicated in the Order Form, the Fees consist of recurring monthly fees for the use of the Cloud Service (the “**Monthly Fee**”) and a one-time fee for Professional Services (the “**Implementation Fees**”). Parties may agree on a minimum monthly fee in the Order Form (the “**Minimum Monthly Fee**”). If the amount of Monthly Fee in a calendar month falls below the amount of the Minimum Monthly Fee, then Supplier shall pay Choco the Minimum Monthly Fee. **4.2 Payment.** Unless expressly agreed otherwise in the Order Form, the Fees shall be invoiced monthly in arrears and 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 Supplier’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 Supplier 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 Supplier. Supplier 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 Supplier’s sole responsibility, and Supplier 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 Calculation of Monthly Fees.** Supplier is aware that the Cloud Service transmits to Choco an evaluation of the orders transmitted to Supplier via the Cloud Service during a calendar month (the “**Order Evaluation”**) for the purpose of calculation the Monthly Fees. Monthly Fees shall be calculated in accordance with the method agreed in the Order Form and based on the Order Evaluation. Upon request, Supplier shall without undue delay provide Choco with any additional information and evidence necessary for calculating the Fees and verifying the accuracy of the information provided by Supplier. In case of a conflict between the information provided by Supplier and the Order Evaluation, the Order Evaluation shall take precedence and be used as a basis for calculation. **4.5 Audit.** Choco is entitled to have the accuracy of the information provided by Supplier verified by an independent auditor, who shall be bound by confidentiality obligations and not be a competitor of Supplier. The audit may take place once each calendar quarter at Supplier's premises during Supplier's normal business hours. Choco shall give Supplier at least two (2) weeks' prior notice of any such audit. The auditor shall disclose audit findings to Choco to the extent that the findings deviate from the information provided by Supplier; otherwise, the auditor may confirm to Choco only the accuracy of the information provided by Supplier. Supplier shall be obligated to provide the auditor with all information and disclose all documents that are necessary for the performance of the reviews. If a review by the auditor reveals a deviation of more than 5% to the detriment of Choco, then Supplier shall bear the costs of the respective audit and the Fees shall be calculated based on amounts identified by the auditor; otherwise Choco shall bear the costs of the respective audit. **5. Intellectual Property** **5.1 Reservation of Rights.** Supplier acknowledges and agrees that Choco and/or its licensors own or otherwise have all the necessary intellectual property rights in the Choco Deliverables and the Cloud Service, 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 with any improvements or modifications to the foregoing. Supplier 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, Supplier allows Choco to use, copy, disclose and exploit any suggestions and other feedback provided by Supplier 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.** Supplier grants Choco a non-exclusive, worldwide licence to use Supplier's trademarks for operating the Cloud Service and for the performance of the Agreement. Choco shall be specifically entitled to display the trademark on Supplier's supplier 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 Supplier’s name and logo in its marketing materials, presentations and similar communications to refer to Supplier as a customer. Supplier 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 organisational 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 authorised 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 Supplier’s and its Authorized Users’ use of the Services and may suspend Supplier'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, Supplier 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 Supplier 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 Effective Date indicated in the Order Form and shall have a term of twelve (12) months unless terminated earlier pursuant to the Agreement. The Agreement shall be extended for successive periods of twelve (12) months if it is not terminated in writing by either Party upon three (3) months' notice to the end of the respective Agreement period. 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 Supplier are listed therein. **8.3 Termination by Choco.** Choco may terminate this Agreement immediately upon written notice; if (i) Supplier has repeatedly placed Supplier Data or products that is not permissible under the Agreement; (ii) Supplier is in default of its payment obligations for more than two (2) weeks; (iii) Supplier becomes insolvent, files for or has filed against it, a petition of bankruptcy or (iv)if Supplier acts against use restrictions set out in section 2.2. Choco may terminate the Agreement for convenience without having to give any reasons any time with a notice period of one (1) month. **8.4 Effects of Termination.** When the Agreement for the Services offered against remuneration is terminated Supplier shall lose its access to the Services, with the exception of the Free Services which may be still provided to the Supplier at Choco’s sole discretion. After termination, Choco will have no obligation to Supplier to continue storing Supplier Data and will delete the Supplier Data in its systems upon Supplier’s request or in line with its retention policy, whichever is earlier. Notwithstanding the foregoing, Choco will be entitled to retain the Supplier Data if Choco is obliged to do so by law or to the extent that the Supplier 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 Commissions, Reporting, 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. Supplier shall without undue delay notify Choco in writing of any defect and provide all information that is available to Supplier and is necessary for Choco to identify, reproduce, analyze and remedy the defect. Furthermore, Supplier 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 Supplier 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 Supplier agree on a reasonable alternative remedy (such as giving the Supplier a reasonable discount on the affected services), then Supplier’s sole and exclusive remedy shall be to terminate the Agreement. Choco's sole responsibility and Supplier'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 Supplier, (ii) to any defects not notified by Supplier 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 SUPPLIER 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 Supplier, the amendments shall be posted on Choco's website. In other cases, Choco will provide Supplier with notice before the changes enter into force and allow Supplier a reasonable time to review. Amendments shall be deemed as agreed by Supplier if Supplier 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.** Supplier 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 Supplier’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, DPA, applicable Service Specific Terms and Choco’s policies that are made available to the Supplier. 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. ## **Software-as-a-Service Terms and Conditions** These Software-as-a-Service Terms and Conditions (the “**SaaS-GTC**”) are entered into between Atlantic Food Waste Partners LLC dba Choco (“**Choco**”) and the entity that has executed an order form (together with any annexes, the “**Order Form**”) that references the SaaS-GTC or the entity that accesses and uses the Software as a supplier user (“**Supplier**”). The SaaS-GTC, and the order form among the parties that references the SaaS GTC (together with any annexes thereto, the “**Order Form**”), any special provisions which govern any services provided by Choco under the respective agreed packages in the Order Form (the "**Special Provisions**") constitute the complete understanding between the parties on the subject matter (collectively, the “**Contract**”) and is effective on the earlier of: (a) the date that the Order Form is fully executed by the parties, whether in the form of a document, or an online application page or form, or (b) Supplier’s initial access to and use of the Software (“**Effective Date**”). By entering into an Order Form and/or otherwise accessing or using the Software, Supplier agrees to be bound by the SaaS-GTC and the other terms and conditions of the Contract. If Supplier does not accept the SaaS-GTC, Supplier is not authorized to access or use the Software. **Preamble** Choco operates the Choco cloud solution (Software-as-a-Service, or “SaaS”), which, amongst others, enables suppliers in the food industry to receive orders digitally, simplify order processing for restaurant businesses ("**Customers**") and to communicate efficiently with them ("**Software**") and offers services. Customers are afforded an opportunity to conveniently place and manage orders with all their suppliers using the Software. The Supplier wishes to use the Software and/or benefit from the services to simplify order processing for its customers and to be able to solicit new customers. NOW THEREFORE, in consideration of the foregoing, Choco and the Supplier (hereinafter referred to individually as a "**Party**" and collectively as the "**Parties**") hereby enter into the following agreement: **1 Subject Matter and Order of Priority** 1.1 The Software is intended only for business enterprises. The Supplier represents and warrants that it uses the Software as a business enterprise and is an entity that is duly incorporated, validly existing and in good standing under the laws of its state of incorporation. Choco reserves the right to verify the Supplier’s enterprise status at any time, particularly on the basis of the information and documents that were provided during the formation of the Contract. Upon request, the Supplier shall without undue delay provide Choco with any additional evidence required for this purpose. 1.2 If there are any inconsistencies between the Order Form, the SaaS-GTC and the Special Provisions, then the relevant provisions shall apply in the order of priority prescribed below: Order Form Annexes to the Order Form Special Provisions SaaS-GTC, retrievable at https://legal.choco.com/uspremium#saas **2 Choco’s Services** **2.1 Access to the Software and services** 2.1.1 For the limited term of the Contract, Choco shall provide the Supplier with access to the Software via the Internet. The use requirements and scope of the Software and the services that Choco will provide can be found in the Order Form. Beyond the agreed scope, the Supplier will have no right to any specific design or specific functionalities of the Software and of the services performed by Choco. Supplier acknowledges and agrees that Choco may update the Software 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 Supplier may object to the changes. In case of an objection by the Supplier, Choco may terminate the Contract or offer the Supplier a reasonable remedy at its own discretion. 2.1.2 Operation and maintenance of the Software shall be the responsibility of Choco. Choco shall not be responsible for any issues related to or arising from internet connectivity issues and any internet or telecommunications network disruptions which are beyond Choco’s control. The Supplier has no right to access the source codes of the Software. 2.1.3 Unless otherwise agreed, Choco will make commercially reasonable efforts to make the Software available 98% based on a monthly average, i.e., the Software could be unavailable for up to 15 hours per month. Excluded therefrom are necessary planned maintenance work as well as disruptions that are not within Choco’s sphere of influence (including, for example, force majeure events or failures caused by the Supplier’s incorrect operation). If possible, Choco shall in a timely manner notify Supplier in text form about planned maintenance work. Nevertheless, Choco expressly reserves the right to carry out unannounced maintenance work, if necessary, particular where this is required for data and operational security. 2.1.4 Choco shall provide the Supplier with documentation concerning the Software as well as instructions regarding its use and shall do so in English by posting them electronically online for retrieval. The Supplier shall not be entitled to edit, distribute or post publicly the documentation or instructions for use. No printed documentation will be due. 2.1.5 If Choco is obligated to provide support services under a particular package agreed to between the Parties in an Order Form, then Choco shall provide such support services in the scale, at the times and within the response times as agreed in the Order Form or as described in the Special Provisions. 2.1.6 Choco will be entitled in its own discretion to engage subcontractors, including its affiliates, (“**Vicarious Agents**”) for the performance of services. **2.2 Offer of Products; Orders; Placement of Product Contracts; Choco’s role.** 2.2.1 In connection with using the Software, the Supplier will be able to offer its Customers the opportunity to purchase goods and products ("**Products**"), to digitally receive corresponding orders for Products placed by the Customers via the Software or other communication channels specified by the Supplier ("**Orders**"), and to communicate with the Customers. 2.2.2 The Supplier may enter into contracts with Customers for the purchase and delivery of Products ("**Product Contracts**") by using the Software and on the basis of purchase orders. 2.2.3 The Supplier is solely responsible for its use of the Software, such as for the contact it establishes with other companies, all communications sent via or in connection with the Software, the content and availability of the Products, for all communications sent via or in connection with the Software, for all information or other content uploaded, submitted or otherwise made available by or on behalf of Supplier through or in connection with the Software and for the proper management of orders. Choco merely provides the infrastructure for offering Products, communication and managing orders and shall have no liability to Customers. 2.2.4 In general, regarding the communication between the Supplier and the Customers and especially if the Supplier concludes Product Contracts with Customers via the Software, then Choco will be merely acting as a messenger in transmitting the declarations of intent that are made by the Supplier and the relevant Customer and are aimed at concluding Product Contracts and will itself not become a party to the Product Contracts. Each Product Contract shall be concluded solely between Supplier and the relevant Customer. Neither the Supplier nor the relevant Customer will have any rights vis-à-vis Choco under a Product Contract; Choco shall not be responsible for the proper performance of the respective Product Contract, and instead the Supplier and the relevant Customer will have that responsibility. Choco will have no liability whatsoever with regard to the performance of the Product Contracts, and above all not with regard to its proper performance or with regard to any defects to, the Products sold. Choco shall not be a party to disputes of any kind between the Supplier and its Customers, including any disputes that may arise during the conclusion or execution of Product Contracts nor for relationship or communications between the Supplier and the Customers. 2.2.5 The Supplier has no right against Choco to compel the conclusion of Product Contracts. **3 Ownership; License; Open-Source Software.** 3.1 The Software, together with any related technology any intellectual property rights related thereto or embodied therein and with any improvements or modifications to the foregoing (collectively, the “**Choco IP**”), are the exclusive property of Choco or its licensors, or the foregoing have the necessary intellectual property rights in the Software. Supplier will not (a) allow any third party to access the Choco IP, except as expressly allowed in an Order Form; (b) modify, adapt, alter or translate the Choco IP; (c) sublicense, sell, transfer or otherwise allow the use of the Choco IP for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code of the Choco IP; (e) interfere in any manner with the operation of the Software or the hardware and network used to operate the Software; (f) modify, copy or make derivative works based on any part of the Choco IP or documentation; (g) access or use the Choco IP to build a similar or competitive product or service; (h) attempt to access the Choco IP through any unapproved interface; or (i) otherwise use the Software in any manner inconsistent with applicable law. 3.2 Upon commencement of the Contract, Choco grants the Supplier for the term of the Contract a non-exclusive, revocable, non sublicensable, non-transferrable license to use the Software in accordance with the Contract, solely in connection with the Supplier’s internal business operations. The license granted to the Supplier is limited to use of the Software by its authorized users. 3.3 Certain components of the Software and services may be provided through third party services. Any such components that the Supplier could recognize as being subject to third-party rights, including open-source licenses, will be excluded from the grant of rights and will be subject to applicable third party and open-source software licenses. Above all, any components that Choco discloses as third-party content in the Order Form, in the Software or in accompanying text files will be deemed recognizable within the meaning of the previous sentence. The Supplier agrees that availability of the Software 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 Software caused by the third party services. **4 Supplier Obligations** **4.1 Access and data security; Cooperation; Contact information.** 4.1.1 The Supplier shall independently ensure that it is able to accept Choco’s services. In particular, Choco’s delivery of the hardware and software required for those services is not a component of the Contract. The Supplier is responsible for the operation and availability of its own company software. 4.1.2 The Supplier shall be responsible for the security of all passwords, access codes, technical specifications, connectivity standards or protocols, or other relevant procedures, as may be necessary to allow Supplier to access the Software (“**Access Mechanisms**”) and may make such information or procedures accessible to authorized users, who are the Supplier’s employees or contractors, only. Supplier’s authorized users are subject to all of the terms and conditions of the Contract applicable to Supplier and the Supplier is responsible for all acts or omissions of its authorized employees and also for all acts performed by unauthorized persons who accessed the Software by using the Supplier’s Access Mechanisms. The Supplier will obligate authorized employees to keep Access Mechanisms confidential and secure. The Supplier shall inform Choco without undue delay if there is any suspicion that such Access Mechanisms may have become known to unauthorized persons or that the Software may otherwise contain or be subject to security issues, vulnerabilities or other compromises. 4.1.3 The Supplier represents, warrants and covenants that it will not upload, submit or otherwise make available to Choco through or in connection with the Software (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**”)). 4.1.4 The Supplier shall refrain from any conduct that jeopardizes or interferes with the functioning of the Software or intrudes into or damages Choco’s systems and shall not access or process any content or data that the Supplier is not authorized to access or process. The Supplier shall comply with all security measures and protections and the functional and other restrictions of the Software and shall, in particular, not remove, override, disable or otherwise circumvent any protection or authentication mechanisms. The Supplier shall ensure that its transmitted information and content posted via the Software is not infected with harmful computer programs (e.g., viruses, worms, Trojan horses or other malware) and that it does not upload or send any content intended to induce third parties - including other suppliers or customers - to disclose confidential information (e.g., passwords), to harass third parties, to automatically redirect third parties to other Internet offers outside the Software, to violate the rights of third parties. The Supplier shall refrain from any other conduct that will impair the intended operation of the Software or the IT infrastructure of Choco or to otherwise violate applicable law. 4.1.5 The Supplier shall solely be responsible for its data and content, which are stored, processed and otherwise transmitted to Choco in connection with the Software (defined as “Supplier Content” in section 4.3.1), and shall make back-ups of Supplier Content on a regular basis and commensurately with the risk, insofar as this is technically feasible for it to do. The foregoing shall apply both to the Supplier’s data and content on the local systems and to that data and content which Supplier stores on the IT infrastructure hosted by Choco. The Supplier shall specifically back-up such data and content, which is described in this subsection and which the Supplier is obligated to store by law or regulation. 4.1.6 The operation and configuration of the Software is the Supplier’s responsibility. Insofar as Choco provides the Supplier with guidance, recommendations, tips or advice within the Software or offers information or analysis results generated by the Software, this information will be automatically generated and shall serve as non-binding information intended to support the Supplier in its business decision-making. Such support services do not release the Supplier from checking the accuracy of the respective information and from taking into account all other circumstances relevant in the context of the decision-making process. 4.1.7 The Supplier shall designate a contact person in its company who will be authorized to receive and issue declarations of intent in connection with the Contract dealings with Choco. 4.1.8 The Supplier warrants that the information provided in the context of concluding the Contract is accurate and complete. The Supplier shall be obligated to keep such information up-to-date and to notify Choco about any changes without undue delay. This information includes, above all, data on the Supplier’s contact and business information. 4.1.9 Upon request, the Supplier shall provide Choco with all further information that Choco, in its sole discretion, requires for the proper performance of the service and Software. This information includes, above all, information which is marked as required within the Software (e.g., information regarding the Supplier's order preferences, including delivery territory, minimum order value, delivery dates). 4.1.10 The Supplier shall ensure that it will process all orders received via the Software or via the delivery methods specified to Choco within a reasonable period of time and in a manner customary in the market. 4.1.11 In order to enable Choco to import the order lists of Supplier's Customers into the Software, the Supplier shall in a timely manner provide Choco with the names, Customer numbers and individual order lists of such Customers who have already registered for the use of the Software or who already order from Supplier via the Software. If the Supplier's Customers register for the use of the Software for the first time during the term of the Contract, then the Supplier shall provide Choco with the individual order lists of such Customers without undue delay (but no later than within twenty-four (24) hours). The Supplier will be free to provide Choco - instead of the individual order lists of relevant Customers - with the order history of the Products ordered from the Supplier in the last thirty (30) days. Supplier shall ensure that the Products reported in the order lists are also listed in the Product catalog and that the Products in the order list and in the Product catalog can be assigned to each other by means of a clear, identical Product number. 4.1.12 If the Parties have agreed on the "Premium" package in the Order Form, then the Supplier shall without undue delay provide Choco with a Product catalog covering all Products and Product groups of Supplier's total product range. The Product catalog shall contain items with the following minimum requirements: designation, Product number, availability, order unit, list price. **4.2 Products; Required information** 4.2.1 Unless expressly agreed otherwise, the Supplier may offer and sell via the Software only Products that address food and hotel industry needs. 4.2.2 It is the Supplier's responsibility to ensure that it offers and sells via the Software only those Products that it is lawfully authorized to offer and sell. The Supplier shall provide any and all information as required by law about the Supplier and its company and about the Products offered and sold. **4.3 Supplier Content; Use of the Software; Blocking** 4.3.1 The Supplier shall retain any and all rights to information, images, texts, documents, data, files and other contents which are uploaded or submitted to Choco by or on behalf of Supplier in the course of Supplier's use of the Software and services ("**Supplier Content**"). The Supplier warrants that it has obtained all licenses and permissions needed for Choco to use the Supplier Content in accordance with the Contract and is solely responsible for the accuracy, quality and legality of the Supplier Content. 4.3.2 The Supplier grants Choco a non-exclusive, perpetual and geographically unrestricted right to use, host, store, display, reproduce, modify and distribute such Supplier Content (i) for the performance and purposes of the Contract including for purposes of operating the Software and providing services, (ii) for security and fraud prevention purposes, (iii) research and analytics purposes, and (iv) to grant sublicenses to its Vicarious Agents to the extent necessary for the performance of the Contract. Otherwise, the right of use may not be transferred or assigned. Choco shall retain all rights in the aggregated or deidentified information and may use it at its own discretion, to the extent it does not identify the Supplier, its Customers or any other person. 4.3.3 Furthermore, the Supplier grants Choco a non-exclusive and geographically unrestricted right to use the Supplier's trademarks for the performance of the Contract. Choco shall be specifically entitled to use the trademarks for purposes of operating the Software, including displaying them on the Supplier's supplier profile, and to grant sublicenses to its Vicarious Agents to the extent necessary for the performance of the Contract. Otherwise, the right of use may not be transferred or assigned. Choco shall use Supplier’s trademarks in accordance with Supplier’s applicable branding guidelines. The Supplier may withdraw this license any time after the termination of the Contract upon at least 30 days’ prior written notification to Choco. 4.3.4 The Supplier warrants that the Supplier Content does not infringe any third-party rights (for example, privacy and self determination rights, rights to one's own image, copyrights, trademark rights, etc.) and does not otherwise violate applicable law (for example, data protection rules) (such content, "**Prohibited Content**") and that Supplier has obtained all licenses or permissions needed for Choco to use the Supplier Content to use the Services. Supplier is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Supplier Content. 4.3.5 Choco is entitled to block or remove Prohibited Content and the offer of impermissible Products under subsection 4.2, upon weighing the interests of both parties; the same rule will apply if Choco is obligated by law to do so, based on a complaint by a Customer or a third party, a court judgment or regulatory order. 4.3.6 The Supplier warrants that in connection with its use of the Software, it will comply with all applicable laws, regulations and legal rules, including those imposed by copyright, fair dealing, youth protection, food and data protection laws. In particular, the Supplier shall use the Software exclusively as permitted by the Contract and in compliance with all laws, rules, statutory provisions, court judgments, regulatory directives, including the legal requirements related to telecommunications or to advertising or promotional communications (including, without limitation, laws, rules and requirements prohibiting or otherwise regulating the sending of unsolicited advertising emails). Supplier may not use the Software to order to build a product or service which competes with the Software. 4.3.7 Choco will also be entitled to block individual Products, upon weighing the interests of both parties, if Choco has reasonable indications that the Supplier's Product offering is unlawful, misleading or for other reasons likely to give rise to complaints by third parties or to unreasonably high user complaints. Choco will be entitled to block the Supplier's access to the Software, terminate this Contract or take any other remedial actions that are reasonably necessary, if a. there are indications that the Supplier's Access Mechanisms have been or are being misused or that the Access Mechanisms have been or are being provided to an unauthorized third party or that such Access Mechanisms are being used by more than one natural person; b. there are other indications of compromise or threats to security, including any actual or reasonably suspected data breach or security incident or indications that unauthorized third parties have otherwise gained access to the Software provided to the Supplier; c. the blocking is necessary for technical reasons; d. Choco is legally, judicially or officially obligated to block; e. the Supplier places Prohibited Content on the Software; f. the Supplier offers impermissible Products as described in subsection 5.2; g. the Supplier is more than two (2) weeks in arrears on the payment of the agreed fees or commissions in accordance with Section 6 of the Contract; or h. the Supplier has stored incorrect or invalid contact data, and communication between Choco and the Supplier is no longer possible; or i. the blocking is necessary to avert imminent damage to Choco, the Supplier or third parties or to mitigate damage that has occurred. Unless prohibited by applicable law, Choco shall notify the Supplier if it blocks the Supplier’s access to the Software, including the reasons for it, in text or written form and shall allow the Supplier to comment on the blocking, provided that the announcement and/or waiting for the comment is reasonable (upon weighing the interests of both parties) and is compatible with the purpose of the blocking. Choco shall unblock the use of the Software for the Supplier if the reason for the blocking no longer exists. **4.4 Indemnification** 4.4.1 The Supplier shall defend, indemnify and hold Choco, its employees, representatives and Vicarious Agents (the “Choco Indemnified Parties”) harmless from and against any and all claims, losses, liabilities, damages or expenses (including reasonable attorneys’ fees) asserted against the Choco Indemnified Parties by third parties and triggered by the Supplier's use of the Software (including in connection with Supplier's offer of Products, Product orders, Supplier Content, Prohibited Content and the conclusion, performance or proper fulfillment of Product Contracts). 4.4.2 Choco shall notify Supplier without undue delay about any claims asserted by third parties and shall, upon request, provide the information and documents required for the defense. Moreover, Choco at its own discretion will either surrender the right of defense to the Supplier or undertake such defense in consultation with the Supplier. In particular, Choco shall neither acknowledge nor dispute any claims asserted by third parties without consulting with the Supplier, except where the Supplier has not responded to Choco's notification of the claim within a reasonable time period. The provisions of this provision shall apply to contractual penalties as well as to fines and administrative penalties imposed by courts or regulators insofar as the Supplier is responsible for them. **5 Fees and Commissions, Reporting, Payment** 5.1 If the Parties have agreed in the Order Form on a package, the use of which requires the Supplier to pay fees and/or commissions, then the following provisions shall apply. 5.2 As consideration for the use of the Software and services provided under agreed package(s), the Supplier shall pay Choco the fees and commissions agreed to in the Order Form 5.3 Unless expressly agreed otherwise in the Order Form, the Software shall transmit to Choco on a monthly basis (per calendar month) an evaluation of the orders transmitted to the Supplier via the Software (excluding personal data) ("**Order Evaluation**") for the purpose of calculating the commission. In this case, Choco shall calculate the respective commission due on the basis of a calculated total value of goods ("**Estimated Gross Merchandise Value**"). The Estimated Gross Merchandise Value shall be calculated by Choco multiplying the number of Products ordered according to the Order Evaluation by the price of the Products on the Supplier's standard price list. The Supplier shall in a timely manner provide Choco with the standard price list valid at the time of the transmitted orders. If the Parties agree in the Order Form that fees and/or commissions will be calculated based on the actual Gross Merchandise Value generated by the Supplier through Choco in a calendar month ("**Precise Gross Merchandise Value**"), then the Supplier shall provide Choco with the monthly Precise Gross Merchandise Value no later than the 10th day of the next month (or by such other date as may be agreed in the Order Form); upon request, the Supplier shall without undue delay provide Choco with any evidence necessary to verify the Precise Gross Merchandise Value. 5.4 Choco is entitled to have the Precise Gross Merchandise Value and the correctness of the information provided by the Supplier in this respect verified by an independent auditor, who is bound to secrecy and is not a competitor of the Supplier, and to do so once each calendar quarter at the Supplier's premises during the Supplier's normal business hours. Choco shall give the Supplier in writing at least two (2) weeks' prior notice of any such review. Choco shall contractually obligate the auditor to ensure that (i) the reviews do not unreasonably interfere with the Supplier's ordinary business operations and (ii) the auditor will disclose to Choco information on the Precise Gross Merchandise Value to the extent that the Precise Gross Merchandise Value deviates from the information provided by the Supplier; otherwise, the auditor may confirm to Choco only the accuracy of the information provided by the Supplier. The Supplier shall be obligated to provide the auditor with all information and disclose all documents that are necessary for the performance of the reviews. If a review by the auditor reveals a deviation of more than 5% to the detriment of Choco between the Precise Gross Merchandise Value and the information provided by Supplier, then the Supplier shall bear the costs of the respective review; otherwise, Choco shall bear the costs of the respective review and the commission shall be calculated based on the Precise Gross Merchandise Value identified by the auditor. 5.5 Unless expressly agreed otherwise in the Order Form, fees and commissions shall be invoiced monthly in arrears and all invoiced amounts shall be due within two weeks of invoicing. 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 costs incurred by Choco for collecting late payments. 5.6 Unless expressly agreed otherwise in the Order Form, all amounts are net amounts in US Dollars. 5.7 The fees and commissions 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 Supplier 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 Software to Supplier. Supplier 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 Supplier’s sole responsibility, and Supplier 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. **6 Warranties; Disclaimers.** 6.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND SOFTWARE 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. 6.2 Except with respect to its services and Software offered free of charge, Choco provides a warranty against defects in the delivered Software and services. In case of a breach of the warranty against defect, the Supplier’s sole and exclusive remedies and Choco’s sole liability are set out below. Such warranty will not apply to the extent such defects arise, in whole or in part, from (a) any use of the services or Software not in accordance with this Contract; (b) any use of the services or Software in combination with other products, equipment, software or data not supplied by Choco; or (c) any modification of the Software by any person other than Choco or its authorized agents. 6.3 Defects are defined as any material deviations from the functional scope of the Software and services as agreed in the Order Form. 6.4 If the services and the Software provided by Choco under this Contract are defective, then Choco shall, at its choice and within a reasonable period of time following receipt of the notice of defect communicated by the Supplier in written or text form, either remedy the defects or deliver the services once again, subject to Section 6.5. When using third-party software which Choco has licensed for the Supplier’s use, the remedying of defects shall consist of the procurement and installation of generally available upgrades, updates or patches. The provision of instructions for use, with which the Supplier can reasonably workaround defects that have occurred in order to use the Software in accordance with the Contract, will also be deemed to be a remedy of defects. 6.5 If Choco is unable to reasonably implement the remedies in Section 6.4, then unless Choco and Supplier agree on a reasonable alternative remedy (such as giving the Supplier a reasonable discount on the affected services), then Supplier’s sole and exclusive remedy shall be to terminate the Contract. 6.6 The Supplier shall without undue delay, and in any case within thirty (30) days following the performance of the defective services, notify Choco in written or text form about any defect that occurs. The notice of defects must contain all information that is available to the Supplier and is necessary for Choco to identify, reproduce, analyze and remedy the defect. Furthermore, the Supplier shall assist Choco in remedying defects free of charge and in a reasonable manner. 6.7 The prescription (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. **7 Limitation of Liability** 7.1 With respect to its services and Software offered free of charge, the full and aggregated liability of Choco (together with its legal representatives, employees, agents and Vicarious Agents, the “**Choco Parties**”) for any damages arising under this Contract shall be limited to one-hundred (100) USD. 7.2 EXCEPT AS OTHERWISE SET FORTH IN SECTION 7.1, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF THE CHOCO PARTIES ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS CONTRACT 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. 7.3 TO THE FULLEST EXTEND PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE CHOCO PARTIES BE LIABLE TO SUPPLIER 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 CONTRACT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. 7.4 The limitations on liability shall apply mutatis mutandis in favor of the Choco Parties. 7.5 NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY. **8 Confidentiality; Feedback** 8.1 The Parties undertake to keep confidential confidential any information and documents of the respective other 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 of this Contract and not to make them accessible to third parties other than as permitted hereunder. The receiving party shall undertake reasonable technical and organizational measures to prevent unauthorized access or disclosure of Confidential Information. Third parties within the meaning of this Contract shall also include companies affiliated with the respective receiving party and in which the receiving party does not hold a majority of capital and voting rights. The employees of the receiving party as well as other third parties engaged by it (including subcontractors and freelancers) shall be obligated accordingly. 8.2 Choco’s Confidential Information shall include, without limitation, the technical components and the source codes of the Software as well as all technologies of Choco, information provided by Choco about the Software or in the context of support requests or cooperation for the purpose of troubleshooting, as well as this Contract including the annexes thereto, the Order Form and the agreed terms and conditions. 8.3 The receiving party is entitled to disclose the Confidential Information of the disclosing party, (i) to its employees, trainees, representatives, Vicarious Agents or consultants on a need to know basis if and to the extent such disclosure is necessary for the performance of this Contract and if they are bound by the confidentiality obligations at least as protective as those contained herein, (ii) in a legal proceeding, (iii) if the disclosure is mandatory by law or (iv) upon prior written approval of the disclosing party. When requests are made by judicial or administrative authorities relating to the disclosure of Confidential Information, to the extent legally permissible, the receiving party shall without undue delay notify the disclosing party thereof in writing or in text form. The receiving party shall further reasonably support the disclosing party in its efforts to prevent the disclosure of the Confidential Information. 8.4 The duty of confidentiality shall not apply to the extent that the Confidential Information was already known to the receiving party prior to disclosure (except with respect to personal data), is generally known or becomes known to the public through no fault of the receiving party or with respect to Confidential Information that was independently developed by the receiving party itself without access to the Confidential Information of the disclosing party or was brought to the attention of the receiving party by a bona fide third party authorized to do so. The parties reserve the right to make disclosures if mandated by law. If the receiving party invokes one or more of the aforementioned reasons, then it must substantiate them by submitting suitable evidence. 8.5 The duty of confidentiality shall commence upon gaining knowledge of the Confidential Information and will continue for the entire term of this Contract. In addition, the duty of confidentiality shall remain in place for a period of three (3) years from termination or the end of the Contract term, unless statutory provisions provide for a longer confidentiality obligation. In particular, any trade secrets shall be treated confidentially for as long as they are trade secrets. 8.6 During the period in which this duty of confidentiality remains binding, Confidential Information shall be returned without undue delay, undamaged and in full upon the first request made by Choco. Choco may also mandate that certain Confidential Information be destroyed, deleted or placed in safekeeping and that the execution thereof be confirmed in writing by the Supplier. The above provisions in this section shall apply only to the extent that it does not significantly impair the contractually conforming use of the contractually-defined service. 8.7 The foregoing provisions do not establish any rights of use under intellectual property law. All rights of use granted under this Contract shall remain unaffected by the above provisions. 8.8 Both during and after the Term, Choco may (a) use any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services or otherwise provided by Supplier, including Authorized Users, in order to improve and enhance the Software and the Services and for other development, diagnostic and corrective purposes for those or other offerings of Choco. **9 Term and Termination** 9.1 Unless otherwise expressly agreed in the Order Form, the Contract shall commence on the Effective Date and shall have a term of twelve (12) months from the commencement of the Contract (the “**Term**”). 9.2 Unless otherwise expressly agreed in the Order Form, the Contract shall be extended for successive contract periods of twelve (12) months each, if it is not terminated in writing by one of the Parties upon three (3) months' notice to the end of the respective contract period. Choco may update the terms of the Contract, including the fees and commissions, at each renewal, which will be communicated to the Supplier three (3) months before the end of each respective contract period. 9.3 Choco may terminate the Contract for convenience without having to give any reasons any time with a notice period of one (1) month. The Parties reserve their respective rights to terminate for good cause immediately upon notice to the other party if the other party materially breaches this Contract, and such breach remains uncured 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 6 and the exclusive remedies of the Supplier are listed therein. 9.4 Choco may terminate this Contract immediately upon written notice if: a. the Supplier has repeatedly - and despite previous warning from Choco - placed Prohibited Content on the Software; b. the Supplier offers impermissible Products as defined in subsection 4.2; c. the Supplier breaches its duty of confidentiality under Section 8 or a breach of provisions related to Choco IP under Section 3; or d. the Supplier is more than four (4) weeks in arrears on the payment of the fees pursuant to Section 6, and Choco has sent the Supplier a notice of termination in text form or in written form that threatens termination to take effect in two (2) weeks. 9.5 Unless prohibited by applicable law, within a reasonable period of time following termination or expiration of the Contract, for any reason whatsoever, Choco shall delete the Supplier Content to the extent technically possible upon Supplier’s request. Choco is entitled, but not obliged, to retain and store the Supplier Content for security or back-up reasons for a period of two (2) weeks after the termination or expiration of the contractual relationship. The Supplier is directly responsible for any download of the Supplier Content during the period of time which the back-up copies are stored. Choco will also be entitled to retain Supplier Content beyond the termination of the contractual relationship if Choco is obliged to do so by law, court order or regulatory order (including reasons based on commercial and tax law) or to the extent that the Content is required for accounting, documentation and billing purposes or for security or fraud prevention purposes or for the operation of the Software. 9.6 The sections 3 (Ownership), 5.4 (Supplier indemnification), 6 (Fees and Commissions, Reporting, Payment), 8 (Limitation of Liability), 9 (Confidentiality) and others which by their nature are intended to survive, shall survive after termination or expiration of this Contract. **10 Amendments to this Contract** Choco may amend this Contract with effect for the future. In case of minor or cosmetic amendments that do not negatively affect the Supplier, the amendments shall not be directly notified but posted in Choco's website, indicating the date of entry into force thereof. If there are material changes to the Contract, Choco will provide the Supplier with notice before the changes enter into force and allow the Supplier a reasonable time to review. Amendments shall be deemed as agreed by the Supplier if the Company 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. **11 Final Provisions** 11.1 Choco may use the Supplier’s name and logo in its lists of customers on its public website and promotional materials. Supplier may revoke this consent any time without giving any reasons. 11.2 This Contract is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. Except with respect amendments under Section 10, any amendments, modifications, and side agreements to this Contract must be made in writing signed by a duly authorized representative of each Party. This requirement also applies to this written form clause itself.Choco is an independent contractor, and nothing in this Contract will be construed to create a partnership, joint venture, or agency relationship between the Parties. Supplier will not have and will not represent to any third party that it has, any authority to act on behalf of Choco. 11.3 If any provision of this Contract is, for any reason, held to be invalid or unenforceable, the other provisions of this Contract will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. 11.4 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 Contract 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. 11.5 Neither party will assign or otherwise transfer this Contract without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that Choco may assign this Contract in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of Supplier. The terms of this Contract will be binding upon the parties and their respective successors and permitted assigns. 11.6 This Contract 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 Contract. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Contract. 11.7 This Contract may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. ## Service Specific Terms Latest version Effective November 15, 2024 Effective November 01, 2023 Effective November 18, 2022 ## Integration-GTC Effective October 23, 2025 **1. Subject Matter of the Integration-GTC** 1.1 The subject matter of these Integration-GTC is the 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”) 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 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. 2.2 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. 2.3 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. 2.4 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 documentation 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. 2.5 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 and live 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 Distributor, during which Distributor shall accept the Integration if the functionalities are working, or (ii) submit the Integration to Distributor 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 Distributor's independent testing, Distributor 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 Distributor fails to respond or provide acceptance within this period, and no material bugs or issues are reported, the Integration shall be deemed accepted and live 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. ## Integration GTC *Updated on April 8, 2025 to replace the term "Supplier" with "Distributor".* 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 he 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 Efective 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 eforts 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 sucient 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. hese 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 afect the functionality of the Integration. Choco shall within a reasonable period of time use commercially reasonable eforts to remedy such insignificant defects aer 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 aer formal acceptance will be subject to section 9 of the MSA on Warranty. Annex 1 - Integration Services his 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 diferent components through an Integration, such as orders, Product Catalog, prices, order confirmation, images, customer lists, Order Guides of Customers, order updates and edits. he standard transmission content is the customer number, order information (meaning the list of ordered products, their product IDs, quantities) and order’s expected delivery date. Parties will agree on the transmission content in the technical coordination meeting. Aer such meeting, there may be a possibility for adding more components to the scope subject to additional charges. B. Data ransmission 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 Aer 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. he Distributor shall import the orders in real time into its own ERP system. he 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 eforts to transmit all components through Integration in real time. ## **Integration General Terms and Conditions** 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 Supplier’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 Supplier. 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 Supplier. Once accepted by Supplier, the Integration shall constitute a part of the Cloud Service. 1.2 Integrations built by or on behalf of the Supplier 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 Supplier’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 Supplier 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. Supplier 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 Supplier 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, Supplier 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 Supplier cannot provide any test environment, then Supplier shall alternatively provide Customer information with which Choco can perform integration tests. Unless delivery of the test results is automated, Supplier shall provide Choco with the test results. Supplier shall ensure that the provided test environment corresponds to the same technical parameters as the live product environment. Supplier 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 Supplier shall not be entitled to edit, distribute or post publicly the documentation or instructions for use. 2.6 Supplier 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. **3. Acceptance Procedure** 3.1 Choco shall submit the Integration to Supplier for inspection and acceptance and shall notify Supplier about such submission. Supplier shall test and inspect the Integration for its conformity with these Integration GTC and shall do so within a reasonable period of time which shall not be longer than two (2) weeks. The Supplier shall notify Choco immediately of any defects in writing (email acceptable). 3.2 Supplier shall declare its formal acceptance in writing if the Integration is essentially in conformity with these Integration-GTC. Formal acceptance by Supplier may not be refused due to insignificant flaws or defects. Choco shall within a reasonable period of time use commercially reasonable efforts to remedy such insignificant defects after formal acceptance, provided Supplier has notified Choco in writing thereof during the inspection of conformity and prior to formal acceptance. 3.3 If, within a period of three (3) weeks after submission of the Integration, Supplier no longer reports any more significant defects or if Supplier agrees to deployment of the Integration into production environment, then the Integration shall be deemed formally accepted. 3.4 With respect to defects that were known to Supplier at the time of formal acceptance, defects that would have been obvious in the course of a proper inspection or defects that were otherwise not known to Supplier due to negligence or that were not reported by Supplier, Supplier 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. 3.5 If the Integration is delivered partially per component, the acceptance procedure shall apply mutadis mutandis to each part. **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. Supplier-specific customizations may be possible subject to additional charges. **A. Transmission Content** It is possible to transmit different components through an Integration. At a minimum, an Integration will transmit orders from Cloud Service to Supplier and Product Catalogs from Supplier to Cloud Service. In addition to this minimum content, Choco supports transmission of prices, order comments, order confirmation, images, customer lists, Order Guides of Customers, order updates and edits. 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 Supplier 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. Supplier 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 Supplier with username, password, URL and port. Supplier 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 Supplier** Supplier shall provide Choco with the username, password, URL and port of the (S)FTP server. Supplier 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 Supplier’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 Supplier, Choco shall provide files in a standard format (including documentation). **D. Technical Procedure** **1. Orders from Cloud Service to Supplier** After the Integration is delivered (deployed in the production environment), Choco will send the orders to Supplier in real time via one of the transmission channels or shall make them available on an (S)FTP server. The Supplier 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 Supplier) •Supplier number **2. Product catalogs from Supplier to Cloud Service** Supplier 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,bothPartiesshall usecommerciallyreasonableeffortstotransmitall componentsthrough Integration in real time. ## **Integration Terms and Conditions** **Preamble** Choco operates a software solution ("**Software**"), which enables Suppliers in the food industry to receive orders digitally, to view order histories with restaurant operators ("**Customers**") and to communicate efficiently with them. Choco and the Supplier have agreed to the Supplier’s use of the Software on the basis of an Order Form, including its annexes ("**Order Form**"), and the Software-as-a-Service General Terms and Conditions, including the annexes thereto ("**SaaS-GTC**"), which serve as the foundation for the operation and use of the Software. In connection with Choco’s operation of the Software and the Supplier’s use thereof, the Supplier intends to have Choco perform the integration services described more specifically in these Integration General Terms and Conditions, including the annexes thereto ("**Integration-GTC**"). NOW THEREFORE, in consideration of the foregoing, the Parties enter into the following agreement: **1 Other Applicable Provisions and Order of Priority** 1.1 If terms that are used in these Integration-GTC are not defined in these Integration-GTC but are defined in the SaaS-GTC, then these terms shall have the meaning ascribed to them in the SaaS-GTC. 1.2 In addition to the provisions of these Integration-GTC, the provisions of the Order Form and the SaaS-GTC are incorporated by reference (including, without limitation Sections 3, 6, 7 and 8) and shall apply to the services provided under these Integration-GTC, and be considered a material part of these Integration-GTC. 1.3 If there are any inconsistencies between the Integration-GTC, the Order Form, the SaaS-GTC and the other applicable Special Provisions, then the relevant provisions will apply in the order of priority prescribed in SaaS-GTC. 1.4 To the extent that personal data is processed for the provision of services under these Integration-GTC, the data processing agreement stipulated in the SaaS-GTC shall apply. **2 Subject Matter of the Integration-GTC** 2.1 The subject matter of these Integration-GTC is Choco’s performance of the integration services ("**Integration Services**"), as described more specifically in **Annex 1,** in exchange for payment by the Supplier of the fees and commissions agreed to in the Order Form. 2.2 The following services are not the subject matter of these Integration-GTC: a. Choco’s operation of the Software, and the Supplier’s use of the Software, as well as b. the transmission of information and data - following the performance of the Integration Services - between the Parties viathe technical infrastructure that Choco creates for the Supplier in the course of performing the Integration Services. These services shall be governed exclusively by the SaaS-GTC and the Special Provisions applicable thereto. **3 Duties of Choco** 3.1 Choco shall perform the Integration Services specified in **Annex 1** in accordance with the provisions of these Integration-GTC. 3.2 If the Parties agree on a minimum number of users for the launch of the integration, then Choco shall be obliged to perform the Integration Services only when the agreed minimum number of the Supplier’s active Customers has been reached. A Customer shall be deemed active if it has placed at least one order with Supplier using the Software in the relevant calendar month. If the minimum number is not reached within twelve (12) months, then both Parties shall be entitled to terminate these Integration-GTC without having to give notice, unless Choco has already commenced the performance of the Integration Services. 3.3 Choco shall provide the Supplier with documentation of the Integration Services as well as instructions regarding their use and shall do so in English by posting them electronically online for retrieval. The Supplier shall not be entitled to edit, distribute or post publicly the documentation or instructions for use. No printed documentation will be due. **4 Rights of Use** 4.1 In performing the Integration Services, Choco grants the Supplier the non-exclusive, revocable, non-sublicensable, non-transferrable right to use the Integration Services in accordance with these Integration-GTC for the term of the Contract. The Supplier’s more extensive legal rights will remain unaffected. 4.2 Any components of the Integration Services that the Supplier could recognize as being subject to third-party rights, including open source licenses, will be excluded from the grant of rights and will be governed by the terms and conditions of the applicable third-party license. Above all, any components that Choco discloses as third-party content in the Order Form, in the software, in the Integration Services or in accompanying text files will be deemed recognizable within the meaning of the previous sentence. **5 Duties of the Supplier** 5.1 The Supplier shall provide the cooperation services specified in **Annex 1.** Upon request, the Supplier shall provide Choco with all information that is required for the integration, including all necessary documentation related to the system environment as well as any required access and access rights. 5.2 The Supplier shall without undue delay provide Choco with a product catalog covering all products and product groups in the Supplier's overall product range ("**Product Catalog**"). 5.3 The Supplier shall without undue delay provide Choco with the order records of all customer bases as well as the customer numbers and order lists or, optionally, the order history for the last two-hundred (200) days of those customers who place orders with the Supplier via the Software. 5.4 Supplier 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 Contract (including obligations in connection with the operation of the Software on the basis of the SaaS-GTC and the Special Provisions applicable thereto). **6 Remuneration** The fees and commissions owed by the Supplier for the services are set forth in the Order Form. Unless otherwise expressly agreed, all invoiced amounts shall be due within two (2) weeks of invoicing. 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 costs incurred by Choco for collecting late payments. **7 Formal Acceptance** 7.1 The Integration Services to be provided by Choco in accordance with these Integration-GTC shall be formally inspected and accepted by the Supplier in accordance with the following provisions. 7.2 Choco shall provide the Integration Services to the Supplier for formal inspection and acceptance and shall notify Supplier about such provision. 7.3 The Supplier shall inspect the Integration Services for their conformity with the Integration-GTC and shall do so within a reasonable period of time, which shall not exceed three weeks. The Supplier shall notify Choco immediately of any defects in writing (email acceptable). 7.4 The Supplier shall provide Choco with its formal acceptance in writing if the Integration Services are materially in conformity with the contract. Formal acceptance by the Supplier may not be refused due to insignificant flaws or defects. Choco shall within a reasonable period of time use commercially reasonable efforts to remedy such insignificant defects after formal acceptance, provided the Supplier has notified Choco in writing thereof during the inspection of conformity with the contract and prior to formal acceptance. 7.5 If, within a period of four weeks after the provision of the Integration Services, Choco has not received notice of formal rejection or acceptance or if the Supplier puts the Integration Services into productive operation, then the Integration Services shall be deemed formally accepted. 7.6 With respect to defects that were known to the Supplier at the time of formal acceptance, defects that would have been obvious in the course of a proper inspection or defects that were otherwise not known to the Supplier due to negligence or that were not reported by the Supplier, the Supplier will not be entitled to the rights related to defects as governed under in section 8 below. **8 Warranty** 8.1 Choco shall, solely in accordance with the following provisions, provide warranties against any defects in the Integration Services. 8.2 A defect will be deemed to exist if the Integration Service does not materially conform to the functions and specifications conclusively stated in **Annex 1** or if these functions provide defective results so that the use of the Integration Service is impossible or greatly restricted. 8.3 The Supplier shall without undue delay notify Choco in writing or in text form about any defects that could occur. It shall describe the defects in detail and attach all of its available information that is necessary or useful to enable Choco to analyze, reproduce and remedy the defects. 8.4 If it turns out that a defect reported by the Supplier does not actually exist or is not attributable to the Integration Service, then Choco will be entitled to charge the Supplier for the expenses incurred in connection with the analysis and other processing, based on Choco's standard hourly rates. 8.5 If the Integration Services to be provided by Choco are defective, then Choco shall, at its choice and within thirty (30) days after receipt of the Supplier's notice of defect, either remedy the Integration Services or deliver them again. Choco may also remedy the defect by issuing instructions to the Supplier by telephone, in writing or electronically or by offering a workaround solution. 8.6 If both remedies under subsection 8.5 fail, the parties shall agree on a a reasonable remedy (such as giving the Supplier a reasonable discount on the affected services or terminating the Contract), or, in the absence of such agreement, Supplier may terminate the Agreement, which shall be the Supplier’s sole and exclusive remedy against breach of warranty. 8.7 The foregoing is Supplier’s sole and exclusive remedy and Choco’s entire liability for breach of warranty for the Integration Services. 8.8 THE EXPRESS WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE SERVICES, DELIVERABLES AND DOCUMENTATION, AND COMPANY HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE OR WARRANTIES OF INFORMATION, SERVICES, OR UNINTERRUPTED ACCESS. 8.9 All claims by the Supplier shall become time barred twelve (12) months from the time that Supplier became aware, or reasonably should have become aware, of the fact or event giving rise to the cause of action (or, if sooner the expiry of the applicable statute of limitations). **9 Legal Defects, Third-Party Rights** 9.1 A defect in title will exist if the Supplier could not be effectively granted the rights required for the contractual use of the Integration Services. 9.2 If a third party asserts an infringement of intellectual property rights against the Supplier due to the use of the Integration Services, then the Supplier shall inform Choco thereof without undue delay and shall relinquish the defense against such assertions to Choco. In doing so, the Supplier shall provide Choco with all reasonable support. In particular, the Supplier shall provide Choco in writing with all necessary information about the use and possible processing of the programs and shall provide Choco with the requisite documents for this purpose. 9.3 To the extent that third-party rights are infringed, Choco may, at its own choice, remedy the infringement by: obtaining from the third party, who is holding the intellectual property right, a license or a right of use for the benefit of the Supplier that would suffice for the purposes of these Integration-GTC, or modifying the infringing Integration Service without having material effects on its function or replacing the infringing Integration Service with another Integration Service, the contractually-compliant use of which does not infringe any intellectual property rights and does not materially diminish its functions or updating the status of the Integration Service, the contractually-compliant use of which does not infringe any third-party intellectual property rights. **Annex 1 - Integration Services** **A. Transmission Content** By way of the Integration Services, Choco is creating a technical infrastructure for the Supplier to transfer orders digitally from its own Customers directly into its ordering system and also to confirm them electronically. Moreover, based on this technical infrastructure, it is possible to transfer complete and customer-specific product catalogs to Choco. A distinction can therefore be made between the following transmission content, the transmission of which takes place on the basis of such technical infrastructure: 1\. Orders from Choco to the Supplier 2\. Product catalogues from the Supplier to Choco 3\. Order confirmations from the Supplier to Choco In general, the components 1. ,2. and 3. can be used independently of each other, although a combination of 1. and 2. is recommended. After technical coordination and agreement, there is a possibility for additional Integration Services to facilitate the transfer of more content (e.g., Supplier data and invoice data). The Supplier shall provide Choco with the written technical documentation about the impacted systems and interfaces that are required for the Integration Services. **B. Data Transmission and File Formats** Data transmission may consist of any combination of the following technical channels: 1\. **HTTP(s) API (encryption, format and authentication are specified by the Supplier)** 2\. **Email** 3\. **(S)FTP Server** a. **Hosting by Choco** b. **Hosting by the Supplier or a third-party provider** 4\. **Choco App for an ERP system** The file formats for the exchange (EDI, JSON, XML, CSV,... ) are specified by the Supplier, and Choco will adapt to such specifications, provided that this is technically feasible. In the event there are unclear or missing specifications from the Supplier, Choco shall provide files in a standard format (including documentation). 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. 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. Supplier-specific customizations are possible. The Supplier 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\. **Email** Choco supports sending customized files via email - these are an extension to Choco's existing order emails. 3. **(S)FTP server** **Hosting by Choco** Choco shall make a (S)FTP (SSH) server available and shall provide the Supplier with username, password, URL and port. The Supplier will be granted CRUD rights for the folders in question. Choco will provide separate (S)FTP servers for test and live operation. **Hosting by the Supplier** The Supplier shall provide Choco with the username, password, URL and port of the (S)FTP server. The Supplier shall ensure the availability of the endpoints throughout the entire term of the Contract. Choco will repeat faulty transmissions but cannot guarantee a transmission in the absence of available endpoints. 4\. **Choco-App for an ERP system** Choco provides system-side integration for selected ERP systems via an app or another standardized interface. To that end, the technical and legal details are based on the terms of use stored in the respective app. **C. Technical Procedure** **1 Orders from Choco to the Supplier** After the Integration Services have been performed, Choco will send the orders to the Supplier in real time via one of the transmission technologies or shall make them available on an (S)FTP server. The Supplier shall in a timely manner import the orders (within at least 24 hours) into its own inventory management 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 the Supplier) Supplier number **2 Product catalogues from Supplier to Choco** Following the implementation of the Integration Services, the Supplier shall regularly send a (complete) product catalog and/or customer-specific product catalogues 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) and provide a new version to the relevant Suppliers. Product catalogues or product lists contain at least: Product number Product name Product unit Product availability (min. binary available / not available) Product category Product ID for unique identification of the product List price of the product **3 Order confirmations from the Supplier to Choco** The Supplier shall send as a processing confirmation a document via a selected transmission technology to Choco. Choco shall process it in a timely manner (within at least 2 hours) and inform the ordering user about the confirmation. **D. Cooperation Services of the Supplier** **1 Preparation for commissioning** The Supplier shall provide Choco with a distinct technical contact person for the integration implementation. In preparation for an implementation, the Supplier shall provide sample files or clear documentation (in English) of the content specified in Annex 1 (A). Furthermore, the Supplier will provide Choco with (test) access data of the selected authentication method. If the Supplier cannot provide any test environment, then the Supplier shall alternatively provide customer data with which Choco can perform integration tests. Unless delivery of the test results is automated, the Supplier shall provide Choco with the test results. The Supplier shall ensure that the test environment provided by it corresponds to the same technical parameters as the live environment. **2 Commissioning** Choco and the Supplier shall determine a common time for commissioning (launching) the integration. In the alternative, the commissioning can also occur in phases (e.g., based on specific customer groups). For commissioning, the Supplier shall provide Choco with access data to its live environment. ## White Label GTCs Effective June 1, 2024 *Updated on April 8, 2025 to replace "Supplier" with "Distributor"* This White Label Terms and Conditions (the “WL-TC”) together with the Main Services Agreement (“MSA”) govern branding of the Choco's eCommerce 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 as determined by Choco (“Choco ToS”). 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 ToS 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 ToS. **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 ToS. 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 ToS. **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. ## Additional Terms for Choco Checkout **Additional Terms for Choco Checkout** Choco Checkout is a payment processing service provided by a third party service provider. These terms are in addition to Choco Checkout terms agreed between the Distributor and Choco, and form an integral part of the Agreement between the Parties. **Save Customer Payment Method** Choco Checkout enables the Distributor to save the payment method of its Customers in order to charge their future purchase. Card details will be stored securely by the third party payment service provider Adyen NV and will not be accessible by Choco or by the Distributor at any time. Nothing herein shall be construed as limiting the Distributor’s right to collect the payments from their customers by other lawful means. Following additional terms apply to saving and charging customer payment methods. **1. Compliance Responsibilities** Distributor is solely responsible for compliance with all laws, regulations, and network rules applicable to collection, storage and use of customer payment details; and for obtaining valid authorization from its Customers via credit card, ACH or any other available payment method. Choco may assist in facilitating credit card authorizations, but Distributor remains fully responsible for their validity and compliance. For ACH payments, Distributor must independently obtain and store legally valid authorizations in accordance with applicable laws and NACHA rules. **2. Distributor warranties** The Distributor warrants that: 1. It will only charge its Customers for their fulfilled orders and for the amounts that have been accurately invoiced, 2. It will not initiate a payment where the applicable invoice has already been paid, 3. will promptly stop charging a Customer upon receipt of the Customer’s withdrawal of consent. **3. Liability** Distributor is solely liable for the use of saved payment methods and for the amounts charged to its Customers. The Distributor shall indemnify and hold harmless Choco from any claims, losses, or liabilities arising out of or related to such use, including any unauthorized or erroneous charges. **4. Suspension and Termination** Choco, the relevant scheme owners and the third party payment service provider reserve the right to suspend or terminate the Distributor’s use of the saved payment methods, in whole or in part, without prior notice: 1. In the event of non-compliance with these terms; 2. For fraud prevention or security purposes; 3. Or as otherwise necessary to protect their legitimate business interests. Latest version Effective May 7th, 2024 ## Data Processing Agreement Effective January 15, 2025 *\*Updated on April 8, 2025 to replace "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, operating White Label App, 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 . *\*no other changes than replacing "Supplier" with "Distributor"* ## **Data Processing Agreement** This Data Processing Agreement (“DPA”) is entered into between the Supplier 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 A. Under an Order Form concluded by and between the Parties, which is governed by the Master Services Agreement (“MSA”) and Service Specific Terms (altogether, the “Agreement”), Choco has agreed to provide Supplier with the provision of the Onboarding and Support Services, Cloud Services, and Integration Services (the “Services”). For the purposes of providing the Services to Supplier, Choco may have access to, collect, or be provided with, Supplier Personal Data (defined below) in relation to which Supplier is subject to certain obligations. B. This DPA enables Supplier to comply with its obligations when providing or allowing access to Supplier Personal Data by Choco. 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 Supplier 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, Supplier Personal Data intended for processing activities to be carried out on behalf of Supplier and in accordance with its instructions, the terms of this DPA and the terms of the Services Agreement. “Supplier Personal Data” means any personal data and/or personal information regarding a Consumer, as applicable, provided by Supplier 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, Supplier 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 Supplier Personal Data pursuant to the written instructions provided by Supplier 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 Supplier warrants and represents that it has obtained all necessary consents and complied with all obligations required by CCPA for making available any Supplier Personal Data to Choco and for allowing collection of Supplier Personal Data by Choco on the Supplier’s behalf under the Services Agreement. 3\. Obligations of Choco 3.1 Choco agrees: (a)to process Supplier Personal Data only: (i) on behalf of Supplier and/or the applicable Business and in accordance with Supplier's documented instructions unless otherwise required by the CCPA; (ii) for the purpose of carrying out the Services or as otherwise instructed by Supplier; and (iii) in compliance with this DPA and the CCPA. (b) that it shall not process the Supplier Personal Data other than on Supplier’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 Supplier’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 Supplier Personal Data, (ii) retain, use or disclose the Supplier 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 Supplier, or (iii) retain, use, or disclose the Supplier Personal Data outside of the Business relationship between Supplier and Choco. (d) that it shall promptly notify Supplier of any requests, complaints, messages, or any other notices received from any third party regarding the processing of the Supplier 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 Supplier with its obligations to reply to or comply with requests, provided that Choco reserves the right to reimbursement from Supplier for any reasonable costs incurred as a result of providing such assistance. (e) that if it is legally required to process Supplier Personal Data otherwise than as instructed by Supplier, it shall notify Supplier before such processing occurs, unless the law requiring such processing prohibits Choco from notifying Supplier on an important ground of public interest, in which case it shall notify Supplier as soon as that law permits it to do so. (f) that it will provide reasonable assistance to Supplier in fulfilling its legal obligations under the CCPA, and will not knowingly carry out, or omit, any act, that would cause the Supplier to be in breach of the CCPA. (g) that it has implemented and will maintain reasonable technical, organisational, and security measures to protect Supplier 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 Supplier Personal Data to be protected. It shall be incumbent upon Supplier 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 Supplier 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 Supplier. (j) To notify Supplier 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 Supplier or another auditor mandated by Supplier, 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 Supplier acknowledges that Choco may transfer Supplier Personal Data to Subcontractors and Supplier hereby authorizes Choco to engage and appoint such Subcontractors to process Supplier Personal Data. Supplier also permits each Subcontractor to appoint a Subcontractor on its behalf when necessary. Supplier understands and acknowledges that all Subcontractors authorized by Supplier are acting under the authority and subject to the direct instructions of Supplier. 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 Supplier 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 Supplier 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 Supplier Personal Data Upon Supplier’s or a Consumer’s request, Choco will delete any Supplier Personal Data at any time during the term of this DPA. Alternatively, upon written request of Supplier or Consumer after expiration or termination of this DPA, Choco will securely destroy all Supplier Personal Data for Supplier. Notwithstanding the foregoing, Choco may decline the deletion requests from Supplier 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. Supplier acknowledges that Choco relies on Supplier’s directions as to the processing of Supplier Personal Data on behalf of Supplier 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 Supplier’s instructions or (b) Supplier’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** This Schedule forms part of the DPA. **Purposes** The Supplier Personal Data shall be processed for the provision of the Onboarding and Support Services, Cloud Service, and Integration Services. **Consumers** The personal data concerns the following categories of data subjects (please specify): Personal Data relevant to the Services, the extent of which is determined and controlled by Supplier 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 Supplier’s prospects and customers Employees, consultants, agents, advisors, freelancers of Supplier (who are natural persons) Supplier’s users authorized by Supplier 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 Supplier 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 Supplier, 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 Supplier 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 Supplier’s account, creating datasets of aggregate consumer information and deidentified information and appointing subcontractors. **Duration** The personal data will be processed by Choco for the duration of the Services Agreement. **Schedule 2** **Subcontractors** **Name** **Entity Location** **Purpose** Amazon Web Services, Inc. USA Location of processing: EU West 1 (Ireland, EU) Cloud Infrastructure Google Cloud EMEA Limited Ireland Location of processing: EU West 1 (Ireland, EU) Cloud Storage Salesforce.com Germany GmbH Germany Location of processing: EU43 (Frankfurt, Germany; Paris, France) CRM Invisible Technologies Inc USA Back-office services Iterable, Inc USA CRM Mindbridge Private Limited Pakistan Back-office services Lobster DATA GmbH Germany Integration tool N8N GmbH Germany Integration tool Salesloft Inc USA Communication tool Twilio Ireland Limited Ireland Communication tool The Mail Track Company, S.L. Spain Customer outreach tool Segment.io, Inc. US Location of processing: S3 AWS (Ireland, EU) Customer data platform Aircall SAS France Customer outreach tool OpenAI, L.L.C. USA Generative AI services Choco Communications DACH GmbH Germany Intra-group services Choco Communications Espagna SL Spain Intra-group services Choco Communications SAS France Intra-group services Atlantic Food Waste Partners LLC dba Choco USA Intra-group services We may need to add new Subcontractors to the list above. If you'd like to receive a notification of these new Subcontractors, you can subscribe to our emailing list on this link: https://choco.com/us/subprocessors. ## Service Description **Services Description** The following outlines the Services made available by Choco. Distributor shall be entitled only to those Services expressly set out in the applicable Order Form or otherwise agreed in writing by the Parties. Capitalised terms not defined herein shall have the meaning given in the Agreement. All Services are provided subject to Choco’s standard terms and conditions, unless expressly agreed otherwise in writing. **1. Cloud Services** Choco provides a modular, cloud-based software platform delivered on a software-as-a-service (SaaS) basis. The Cloud Services consist of core platform components and optional add-ons, as further described below. **1.1 CustomerHub** CustomerHub is the foundational customer relationship management (CRM) layer of the Choco platform. CustomerHub includes: - Centralised customer data management - Customer insights and segmentation - Account ownership and role assignment - Activity logging and engagement tracking - Fall-off and retention monitoring **1.2 eCommerce** Choco eCommerce provides a digital purchasing experience for customers through mobile and web-based storefronts. Features are grouped into three commercial packages: Base, Grow, and Advanced. Depending on the commercial package purchased, eCommerce may include: **Base** - Branded digital storefront (white label app) or Choco App - Product marketing and promotional tools - Customer favourites and reorder functionality - Automated and AI-driven product recommendations - Customer messaging and chat **Grow** - Includes all Base features, plus: - Branded digital storefront (web) **Advanced** - Includes all Grow features, plus: - Public branded storefront - Invoice presentation - Product Information Management (PIM) Optional eCommerce add-ons (availability may be region-dependent) include: - Endless Aisle (extended catalogue and drop-ship fulfilment) - Punchout integrations with third-party procurement systems **1.3 SalesHub** SalesHub is the sales execution and enablement layer of the Choco CRM, built on CustomerHub, and supports end-to-end sales workflows. SalesHub includes: - Sales dashboards and reporting - Pipeline visibility and forecasting - Prospecting and lead management tools - Sales activity tracking and proposal management **1.4 OrderAgent** OrderAgent is an AI-powered solution for automated order capture and processing. OrderAgent enables the customer to: - Capture orders across multiple formats and channels - Process multilingual orders - Validate orders against inventory data - Enforce margin limits and commercial controls **2. Implementation Services** Choco may provide professional services to support the deployment, configuration and adoption of the Cloud Services, as specified in the applicable Order Form. **2.1 Onboarding Services** Onboarding Services include: - Project governance and delivery management - Discovery, requirements gathering, and solution scoping - Functional and technical solution design - Platform configuration, branding, and setup - Go-live support - Training and enablement materials **2.2 Integration Services** Integration services include: - Technical integration design, build, testing, and validation - Synchronisation of customer, product, catalogue, historical data import - ERP and third-party system integrations Integration scope, performance, and availability are dependent on the customer’s systems, data quality, and third-party providers. **2.3. Customer Success Services** Customer Success Services include: - Adoption and value optimisation support - Virtual training and change enablement - Platform reliability and integration monitoring - End-user support via live chat, email, and messaging channels Optional Customer Success Services, subject to separate commercial agreement, may include: - Business reviews and governance meetings - Onsite enablement and change management services - Administrative and operational support services - Data services, including data mapping, transformation, enrichment, and quality support - Advanced or custom reporting - Custom development and bespoke technical services - ERP upgrade, replacement, or re-integration support ### **Third-Party Services\*** #### **Choco CheckOut** A digital B2B payment solution designed for efficient order settlement. CheckOut enables the Distributor to: - Facilitate secure payment collection during or post-order - Minimize administrative overhead for accounts receivable - Ensure secure processing via integrated payment gateways \*Third Party Services do not fall under the scope of the Services provided by Choco, and their use is subject to and governed by the terms of the third party service providers. Choco does not take any responsibility for these services. - [ Main Services Agreement ](#saas) - Service Specific Terms - [ • Integration-GTC ](#integration) - [ • White Label GTCs ](#wl) - [ • Additional Terms for Choco Checkout ](#checkout) - [ Data Processing Agreement ](#dpaatlantic) - [ Service Description ](#services)