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Addendum to Tech Services Terms of use

Last Updated:
January 25, 2021

PLEASE CAREFULLY READ THIS AMENDMENT TO THE TECH SERVICES TERMS OF USE.  BY CLICKING ACCEPT, YOU AGREE TO THE TERMS AND CONDITIONS OF THE ADDITIONAL PRODUCTS AND YOU AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS ADDENDUM.  

The following is added as a new Section to the Tech Services Terms of Use.

(i) We are constantly looking to evolve and create new products and services to make your use of the Tech Services more efficient and useful. As such, we developed new products and services (collectively, “Additional Products”) which you can use in accordance with the terms below. 

(ii) Additional Products You Have Elected to Use

  1. Website Services. The Website Services allows you to use the Tech Services in a self-serve manner to develop and create a website.  Website Services shall be considered a Tech Service. 
  2. Intellectual Property
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  3. Users of the Website Services (whether you or others) may provide us with content, including without limitation text, photos, images, music, audio, videos, fonts, logos, stickers, code and any other materials (“User Content"). Your User Content stays yours, except for the limited rights that enable us to provide, improve, promote and protect the Tech Services as described in this Agreement. User Content includes without limitation content you post to the Website Services.
  4. When you provide User Content via the Services, you grant us (including our third party hosting providers acting on our behalf) a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable, transferable right and license to use, host, store, reproduce, modify, create derivative works of (such as those resulting from translations, adaptations or other changes we make so that User Content works better with the Tech Services), communicate, publish, publicly display, publicly perform and distribute User Content for the limited purposes of allowing us to provide, improve, promote and protect the Tech Services. 
  5. Any and all Order Data made through the Website Services shall be owned by us. We grant you a limited, non-exclusive, royalty free, revocable right to use the Order Data (with exception to any Personal Information) solely as needed to perform the services requested by the end user or end customer. “Order Data” shall mean any and all end user order information including without limitation Personal Information. “Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).
  6. You represent and warrant that you own all rights to your User Content or otherwise have (and will continue to have) all rights and permissions necessary to use, share, display, transfer and license your User Content via the Tech Services and in the manner set forth in this Agreement. If we use your User Content in the ways described in this Agreement, you represent and warrant that such use will not infringe or violate the rights of any third party, including without limitation any copyrights, trademarks, privacy rights, publicity rights, contract rights, trade secrets or any other intellectual property or proprietary rights. Also, content on the Tech Services may be protected by others' intellectual property, trade secret or other rights. Please don't copy, upload, download or share content unless you have the right to do so.

  1. Privacy. In certain circumstances you may receive Personal Information to perform the Services. However, except as otherwise authorized in writing or as required to fulfill the order, you agree not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Order Data. If you become aware of any unauthorized access to Personal Information, you will immediately notify us, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by us. You agree to implement and use security procedures, protocols or access credentials as reasonably requested by us and will be responsible for damages resulting from your failure to comply. You may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Website Services; damage, destroy or impede the services provided through the Website Services; transmit injurious code; or bypass or breach any security protection on the Website Services. Both parties agree to the terms of Exhibit A to this Addendum. 
  2. Indemnifications. Unless prohibited by applicable law, you agree to indemnify and defend us and our affiliates (including their respective officers, directors, employees and agents) and hold them harmless against any liabilities, damages and costs (including reasonable attorney fees and final settlement amounts) from any claims or legal proceedings (including actions by government authorities) arising out of or relating to: (i) any infringement or misappropriation of the intellectual property of any third party for any User Content you post on the Website Services, and (ii) violation of any applicable laws (including any data privacy laws and Tax laws).
  3. Taxes.

  1. You are responsible and liable for determining any and all Taxes required to be assessed, incurred, collected, paid or withheld for all sales and other transactions arising from the use of the Tech Services. You also are responsible and liable for (a) determining whether Taxes apply to your sale of menu items, products and services, payments received, and any other transactions arising from or out of your use of the Tech Services, and (b) calculating, collecting, reporting or remitting any Taxes to the appropriate tax and revenue authorities. Any guidance, estimates, or other information provided on the Tech Services related to Taxes is not intended to be tax advice and purely for informational purposes and shall not be taken as tax advice. We specifically disclaim any and all liability for such Taxes. 
  2. We may be obligated under applicable laws to report certain information to tax and revenue authorities (“Tax Information”) and/or you with respect to your use of the Tech Services. Upon request, you shall provide us with the necessary information to complete any applicable Tax Information reporting and recertify such information from time to time, as may be required by applicable law. If you use our Tech Services you acknowledge that we may report to the applicable tax and revenue authorities the required Tax Information (including the total amount of payments you received during the relevant reporting period). We also may, but are not obligated to, send to you the Tax Information reported. 
  3. Taxes include any and all present or future taxes, charges, fees, levies or other assessments, including, without limitation, income, telecommunications, value-added, goods and services tax or similar taxes, gross receipts, excise, real or personal property, sales, withholding, social security, occupation, use, severance, environmental, license, net worth, payroll, employment, franchise, transfer and recording taxes, fees and charges, imposed by any domestic or foreign taxing authority (“Taxes”).

  1. Limitations. You represent, warrant, and agree that you will not otherwise use the Website Services in a manner that:
  2. Violates any law, ordinance, or regulation, including privacy, employment, and other laws referenced above;
  3. Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
  4. Jeopardizes the security of your account or anyone else’s (such as allowing someone else to log in to the Website Services as you);
  5. Attempts, in any manner, to obtain the password, account, or other security information from any other user;
  6. Violates the security of any computer network, or cracks any passwords or security encryption codes;
  7. “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Website Services (through use of manual or automated means);

(iii) In addition, we may create and require compliance with additional policies, rules and regulations when participating in the Additional Products. We will provide you with 3 days prior written notice before such policies, rules, or regulations take into effect. Notwithstanding anything to the contrary, we may modify or discontinue the Additional Products at any time, and we can suspend or terminate your use of the Additional Products at any time with or without notice to you. You may terminate this Addendum (but not the Agreement) by providing three (3) days written notice to us. 

(iv) IT IS UNDERSTOOD THAT THE ADDITIONAL PRODUCTS MAY CONTAIN ERRORS, MAY NOT FUNCTION PROPERLY, AND ARE PROVIDED FOR LIMITED TESTING AND FEEDBACK ONLY. THE ADDITIONAL PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WE AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. YOUR USE OF THE ADDITIONAL PRODUCTS IS AT YOUR OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, OUR AND OUR AFFILIATES TOTAL LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE ADDITIONAL PRODUCTS SHALL BE LIMITED TO $500. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

Exhibit A

DATA PROCESSING ADDENDUM

This Data Processing Addendum (“DPA”) to any agreement that links to this DPA (the “Agreement”) relating to certain Services entered into between Otter (“Otter”) and the customer as described in the Agreement (“Vendor”), to reflect the parties’ agreement about the Processing of Personal Data, when applicable, in accordance with the requirements of Data Protection Laws. References to the Agreement will be construed as including without limitation this DPA. In event of any conflict or inconsistency between the provisions of the Agreement and DPA, the terms of this DPA shall prevail.  

  1. Definitions. “Data Protection Laws” means all applicable laws data privacy and security laws and regulations, including, but not limited to the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”), California Consumer Privacy Act of 2018 (“CCPA”), Personal Data Protection Act 2012 (Singapore) and the Privacy Act 1998 (Cth) (“Australian Privacy Principles”); “Personal Data” means  information relating to an identified or identifiable natural person, or as otherwise defined by Data Protection Laws; “Data Subject,” “Controller,” “Processor,” and Processing” shall have the meaning as defined under the GDPR, or the applicable Data Protection Laws. Any capitalized terms not defined herein shall have the respective meanings given to them in the Agreement.
  2. Processing of Personal Data. 

  1. Roles of the Parties. The parties acknowledge and agree that, each party is an independent controller in common and not a joint controller. Each party shall comply with Data Protection Laws and its obligations in connection with the processing of Personal Data. Data Protection Laws may in the future change, or be scheduled to change. In such instances, upon the reasonable request by either party, the parties shall promptly meet to discuss, agree and document appropriate changes to the DPA. 
  2. Data Requests and Complaints. Each party may deal at its discretion with all data subject requests and complaints that it receives directly from a Data Subject or the person making the complaint. Each party will also agree to provide reasonable and prompt assistance as reasonably needed to respond to such inquiries or to other complaints received by the Data Subject. The Vendor shall notify Otter of data subject requests within 3 days of receipt by the Vendor of such data subject request or complaint involving Otter.
  3. Obligations of the Parties. Each Party represents and warrants at all times that: (i) it has the necessary right and authority to enter into this DPA and to perform its obligations herein; (ii) its execution and performance under this DPA and the Agreement will not violate any agreement to which it is a party; and (iii) it has provided all required information to Data Subjects. Without limiting the foregoing, each Party will maintain a publicly-accessible privacy policy on its website  that is in compliance with Data Privacy Laws. Each Party will notify the other Party in writing of any action or instruction of the other Party under this DPA or the Agreement which, in its opinion, infringes applicable Data Privacy Laws. Subject to this DPA, each Party, acting as a Controller, may Process the Controller Personal Data in accordance with, and for the purposes permitted in, the Agreement.

  1. Security.  Vendor will implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk posed by the Processing of Personal Data, taking into account the costs of implementation; the nature, scope, context, and purposes of the Processing; and the risk of varying likelihood and severity of harm to the Data Subjects. In assessing the appropriate level of security, Vendor shall weigh the risks presented by processing, in particular from accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to personal data transmitted, stored or otherwise processed. Upon becoming aware of a Personal Data Breach, if the Vendor is obligated by Data Protection Laws, Vendor will notify Otter without undue delay (but not later than 24 hrs. after becoming aware of the Personal Data Breach) and will provide information and cooperation relating to the Personal Data Breach as reasonably requested by Otter. Such information will be considered the Confidential Information of Vendor. “Personal Data Breach” means a breach of security of the Services leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Otter Personal Data. 
  2. Data Transfer to Third Parties.  In certain circumstances, Vendor may request Otter assist in the transferring of Personal Data to Vendor processors or service providers. In such circumstances, Vendor hereby directs Otter to process and transfer such Personal Data to third parties of Vendor’s choosing. If required under Data Protection Laws, such measures may include (without limitation) transferring Personal Data to a recipient in a country that provides adequate protection for personal data, to a recipient that has achieved binding corporate rules authorization, or to a recipient that has executed standard contractual clauses adopted or approved by the European Commission. In addition, Vendor hereby authorizes, appoints, and directs Otter, as agent for Vendor, to enter into Controller to Processor Standard Contractual Clauses or any other legal document reasonably necessary for Otter to provide Services. 
  3. Limitation of Liability. To the fullest extent allowed under any Data Protection Law, each party’s and all of its affiliates’ liability, taken together in the aggregate, arising out of or related to this DPA whether in contract, tort or under any other theory of liability, is subject to the “Limits of Liability” section of the Agreement, and any reference in such section to the liability of a party means the aggregate liability of that party and all of its affiliates under the Agreement and this DPA. For the avoidance of doubt, Vendor’s and its affiliates’ total liability for all claims from the Otter arising out of or related to the Agreement and each DPA shall apply in the aggregate for all claims under both the Agreement and this DPA. If required by Data Protection Laws, Vendor shall be liable for the acts and omissions of its sub-processors to the same extent Vendor would be liable if performing the services of each sub-processor directly under the terms of this DPA. 
  4. Governing Law. The parties agree that (1) governing law of this DPA, and (2) the forum for all disputes in respect of this DPA, shall be the same as set out in the Agreement, unless otherwise required by applicable Data Protection Laws.

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