Last Updated: April 2024

Welcome to Wonder.  These Wonder Spot terms and conditions (these “Terms”) (including the Order Form into which these Terms are incorporated (the “Order Form”)) are a condition of doing business and will constitute a binding agreement between Wonder Group, Inc. (together with its affiliates and subsidiaries, “Wonder”, “we”, “us” and “our”) and you (“Partner”) regarding our Wonder Spot partnership (our “Agreement”).

IMPORTANT NOTICE: THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION AND A WAIVER OF CLASS ACTION RIGHTS AS DETAILED BELOW.

The terms “Partner”, “you” and “your” refer to the entity entering into this Agreement with us and all of its participating locations, and the individual who accepts this Agreement on Partner’s behalf represents that they have the authority to bind Partner.    

1.     Onboarding.  Promptly following your acceptance of this Agreement, you will provide Wonder with complete and accurate copies of all information, forms and/or other documents required to become an active, participating Wonder Spot Partner who makes Wonder available to its employees at a designated location mutually agreed between Wonder and Partner (the “Spot Location”).  Partner will promptly notify Wonder of all updates to this information.  The parties will agree Wonder will not have any obligations under this Agreement until we have received such information.

2.     Wonder’s Services and Obligations. Wonder provides the “Wonder Platform”, consisting of a proprietary technology (the “Wonder App”) and related online services (the “Wonder Services”), which together facilitate the marketing, sale and fulfillment of delivery or pickup orders for food and beverage items and other products (collectively, “Orders”) to customers (“Customers”) in those geographic locations served by Wonder, as such locations may change from time to time (the “Service Area”).  All Customers or any other individuals who access or use the Wonder Platform will be bound by the Wonder Terms of Service as then set forth on the Wonder Platform.  As part of the Wonder Spot partnership, Customers may place Orders for delivery to the Spot Location, which may be delivered by individuals hired or contracted by Wonder (“Delivery Persons”) or by the applicable Wonder restaurant partner directly, independently of Wonder.  Wonder Services may include payment processing, marketing and promotional services and operational and other support services.  Wonder will be responsible for (a) providing applicable Wonder Services to Partner necessary for the Wonder Spot partnership in accordance with this Agreement, (b) displaying Partner’s trademarks, service marks, trade names, logos, slogans, identifying symbols and indicia (collectively, “Brand Features”) on the Wonder Platform, (c) accepting Orders from Customers on the Wonder Platform, (d) arranging for a Delivery Person to deliver each Order to the Wonder Spot, and (e) responding to Customer complaints.  Wonder may activate or suspend Partner from the Wonder Platform and the Wonder Spot partnership in it sole discretion at any time.  The operation of the Wonder Platform and Wonder’s business shall be conducted in Wonder’s sole discretion.

3.     Spot Assets. The parties will mutually agree on the installation of certain shelving and/or signage (the “Spot Assets”) at the Spot Location. Title to all Spot Assets (and all other tangible and intangible property provided by Wonder) will remain with Wonder.  Partner represents and agrees that during the Term: (i) the installation and ongoing operation of the Spot Assets are permitted under applicable laws and Partner’s real property lease or other agreement(s), (ii) Partner has all permits and/or licenses required under applicable law to maintain the Spot Assets, (iii) the Spot Assets shall only be used for Wonder food and other products (and no other products), and (iv) the Partner shall not partner or agree with any other third party restaurant or food provider (other than any food delivery network) to install or maintain any assets or concepts that are similar to the Spot at the Spot Location. In the event of termination or expiration for any reason, Wonder may (but is not required to) request Partner remove and return the Spot Assets at Partner’s cost and in accordance with Wonder’s instructions, and Partner shall complete such removal and return process as indicated by Wonder.

4.     Delivery. 

a.     Partner will support the logistics for Wonder’s delivery to the Spot Assets, including access to the Spot Assets and Spot Location, badge access if necessary, or a Partner representative to enable deliveries.  Wonder and Partner will agree logistical information regarding delivery to the Spot Location including, but not limited to, delivery day(s), ordering hours, and delivery window.  Deliveries made by Wonder within thirty (30) minutes of the delivery window will be considered timely for purposes of this Agreement. 

b.     Wonder (either itself, or through a third party contractor) will deliver orders to the Spot Location on mutually designated days at or around a mutually agreed time (subject to issues outside of Wonder’s control, e.g., inability of delivery services to fulfill orders due to closure, etc.) as set forth in the Order Form.  

c.      In the event that Partner cannot provide such access, Wonder may immediately terminate this Agreement, at which time Wonder may request the removal and return all Spot Assets.  Until all Spot Assets are returned to Wonder, any and all amounts due to Partner under this Agreement may be withheld by Wonder.  Additionally, Partner will be responsible for all costs associated with Wonder’s inability to access the Spot Location and/or Assets.

5.     Fees and Payment. 

a.     Fees.  Wonder shall be entitled to the Wonder Fees and Customer Fees. "Wonder Fees” means the fees collected by Wonder in exchange for promoting and featuring Partner on the Wonder Platform and on Wonder Spot, as set forth in the Order Form.  Partner agrees Wonder may charge Customers fees, such as a delivery fee, service fee, surcharge fee, or small order fees, in Wonder’s sole discretion (“Customer Fees”). As between the parties, Wonder shall retain all Customer Fees. To the extent that a third-party provider provides services to Partner via the Wonder Platform and charges fees to Wonder, Wonder may pass through such third party’s fees to Partner. Wonder reserves the right to suspend Partner from the Wonder Platform if Partner’s account is in arrears. Except as may be expressly agreed in this Agreement, each party will be responsible for its expenses and costs during its performance under this Agreement.   

b.     Customers must pay for all Orders, inclusive of any Customer Fees, via the Wonder App and no portion of any Order may be paid for in cash.  Wonder may collect tips from Customers and, if Wonder does so collect tips, Wonder will distribute such tips in accordance with applicable law.   

c.      Partner is solely responsible for providing Wonder with, and maintaining, accurate bank account information.   

d.     Spot Credits.  The parties agree that Partner may provide a Wonder credit in the amount set forth in the Order Form (the “Spot Credit”) to all Customers who are employed by Partner at the applicable Spot Location who sign up for a Wonder account using a Partner work email address. Partner shall furnish Wonder with the following information regarding each such Customer: (i) employee first and last name and (ii) a Partner work email address, and (iii) any other information reasonably requested by Wonder. Partner shall be solely responsible for updating such information from time to time. Partner shall ensure that it has secured all necessary rights for Wonder and its service providers to use the information provided for the purposes set forth in the Agreement. Partner authorizes and approves Wonder to use such information for marketing Wonder and the Wonder Spot. Unless otherwise agreed in the Order Form, each individual Spot Credit will expire daily at 12 am EST, or as otherwise agreed by the parties. For the avoidance of doubt, Wonder shall not be responsible for any errors or inaccuracies in the Customer information and any Partner employee shall be eligible for Spot Credit (even if such employee is no longer employed by Partner. Promptly after the end of each calendar month during the Term, Wonder will provide Partner with a report which will contain the following information for such prior calendar month: (i) total aggregate dollar amount of Spot Credits, (ii) total number of Wonder Spot orders placed, (iii) itemized dollar amount of Spot Credits per day per account (listed by company work email address).  Promptly, but in any event within 15 days of receiving such report, Partner shall reimburse Wonder for the entire aggregate amount of Spot Credits via wire instructions to the account as designated by Wonder or, at Wonder’s option, Wonder will charge Partner on a monthly recurring basis in advance by automatically billing the payment method that is on file.

e.     Disputes.  Partner agrees, on an ongoing basis, to review and confirm all transactions and information provided by Wonder and, if applicable, to communicate any disagreement or issue to Wonder in writing within ten (10) business days of Partner’s receipt of such information.  Partner shall be deemed to have waived any claim or objection not communicated to Wonder in such timeframe.

6.     Title.  Partner agrees that Wonder holds title to the goods or products provided through the Wonder Platform until such good are delivered to the Spot Location, at which point, such title shall pass to Partner.

7.     Customer Support; Refunds; Reorders and Cancellations. 

a.     Customer Support. Wonder shall be responsible for fielding Customer support issues, such as those relating to: (i) Customer’s Wonder account; (ii) the quality of the Wonder goods; and (iii) issues or damage to Customer’s Order to the extent caused by Wonder.  Partner shall promptly report the same to Wonder. The parties will cooperate to implement and maintain at all times Customer service escalation procedures to ensure each party receives the Customer complaints for which it is responsible. Partner agrees to respond to and escalate Customer complaints in accordance with those scripts provided to it by Wonder and such other guidelines as Wonder may provide from time to time.   

b.     Refunds, Reorders and Cancellations. The parties acknowledge and agree that: (i) charges paid by Customers for completed Orders are final and non-refundable; (ii) Wonder has no obligation to provide refunds, credits or re-orders, including for orders cancelled by Customers prior to pick up or delivery, but may grant them in our discretion; and (iii) credits are nontransferable, not exchangeable for cash, and subject to expiration. In the event that Wonder, in its sole discretion, issues a refund, credit or re-order on a Customer Order, Partner will bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the fault of Wonder or Wonder decides in its sole discretion to cover such cost. If Partner elects to refund a Customer for any reason, such election shall not obligate Wonder to provide a corresponding reimbursement to Partner.   

8.     Intellectual Property; Marketing and Promotions.

a.     Partner’s Brand Features.

                                               i.     Subject to the terms and conditions herein, Partner hereby grants to Wonder and its affiliates a limited, non-exclusive, fully-paid up, royalty-free and non-transferable (except to Wonder-designated third parties and affiliates) right and license during the Term to use Partner’s Brand Features solely in connection with the provision of the Services set forth herein to Partner and referencing Partner as a Wonder Spot Partner. No other consent or notification is required for Wonder to use such Partner Brand Features in this manner.

                                              ii.     Partner acknowledges that Wonder or its affiliates may remove Partner’s Brand Features from the Wonder Platform if Wonder or its affiliates receive notice or otherwise reasonably believe that such Brand Features may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights of any third party.   

                                             iii.     To the extent that the Partner Brand Features contain any third-party materials, Partner is solely responsible for and will secure any and all rights, licenses, consents and permissions reasonably required for Wonder to be able to use the Partner Brand Features in accordance with this Agreement.

b.     Wonder’s Brand Features. Subject to the terms and conditions herein, Wonder hereby grants to Partner a limited, non-exclusive, fully-paid up, royalty-free and non-transferable right and license during the Term to use Wonder’s Brand Features as provided to Partner in connection with the advertising, marketing and promotion of Wonder and Wonder Spot, subject to Wonder’s prior express written consent in each instance. For clarity, all uses of Wonder’s Brand Features will be in the form and format specified or approved by Wonder and shall conform to Wonder’s brand guidelines as provided to Partner from time to time.   

c.      Retained Rights. As between the parties, each party agrees that the other party shall retain all intellectual property rights, including rights in patents, copyrights, trademarks, and trade secrets (collectively, “Intellectual Property Rights”) in and to such other party’s Brand Features. Except as expressly set forth in this Agreement, no licenses are granted by either party to the other with respect to such party’s Brand Features and all rights not expressly licensed hereunder are expressly reserved. All goodwill related to the use of a party’s Brand Features by the other party will inure to the benefit of the owner of such Brand Features.   

d.     Promotions.  Wonder may, in its sole discretion, offer discounts, specials and other promotions that are designed and fulfilled by Wonder.

9.     Confidentiality.   

a.     Scope of Confidential Information. “Confidential Information” means any and all information disclosed by one party (the “Discloser”) to the other party (the “Recipient”), directly or indirectly, in writing, orally, electronically, or in any other form, that is designated, at or before the time of disclosure, as confidential or proprietary, or provided under circumstances reasonably indicating that the information is confidential or proprietary. Confidential Information includes: (i) information, ideas or materials of a technical or creative nature, such as research and development results, designs and specifications, computer source and object code, patent applications, and other materials and concepts relating to Wonder’s products, services, processes, technology or other Intellectual Property Rights; (ii) information, ideas or materials of a business nature, including non-public financial information; information regarding profits, costs, marketing, purchasing, sales, customers, suppliers, contract terms, employees and salaries; product development plans; business and financial plans and forecasts; marketing and sales plans and forecasts; and, in the case of Wonder, Performance Data; and (iii) the terms and conditions of this Agreement (including any Supplemental Terms). Notwithstanding the foregoing, Confidential Information does not include information that: (a) is or becomes generally available to the public through no breach of this Agreement (including any Supplemental Terms) or any other agreement by the Recipient; (b) is or was known by the Recipient at or before the time such information was received from the Discloser, as evidenced by the Recipient’s tangible (including written or electronic) records; (c) is received from a third party that is not under an obligation of confidentiality to the Discloser with respect to such information; or (d) is independently developed by the Recipient without any breach of this Agreement (including any Supplemental Terms), as evidenced by the Recipient’s contemporaneous tangible (including written or electronic) records.   

b.     Confidentiality Obligations. Each party agrees that during the Term and thereafter it: (i) shall hold all Confidential Information of the other party in confidence and trust for the benefit of the other party; (ii) shall not copy or use (or allow any of its affiliates, employees, contractors or agents (each, a “Representative”) to copy or use) any Confidential Information of the other party, except as is necessary to perform under this Agreement (provided such Representatives also agree to maintain the confidentiality of such Confidential Information); and (iii) shall not disclose or otherwise make available any such Confidential Information to any third party except as authorized in writing and in advance by the other party. Specifically, and without limiting the foregoing, the Recipient will exercise the same level of care to avoid inadvertent or unauthorized disclosure of Confidential Information of the Discloser that it uses for its own confidential information, but shall exercise no less than reasonable care. If the Recipient is required to disclose Confidential Information of the Discloser pursuant to the order of any court, governmental agency or arbitrator, or pursuant to applicable law, the Recipient shall provide the Discloser with prompt written notice of such requirement (to the extent legally permissible) in order to allow the Discloser the opportunity to seek a protective order or other appropriate relief. Partner will cause its Representatives to comply with this Section and will be solely responsible for any breach of this Section by any of its Representatives. Upon the termination of this Agreement and as requested by the Discloser, each Recipient will return to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form.   

10.  Data Privacy and Security.  In connection with Wonder’s enabling Customers to make Orders for delivery to such Customers by means of the Wonder Platform, Wonder may access, collect, store, retain, transfer, distribute, use, disclose, or otherwise process Personal Data of such Customers (“Wonder Customer Data”). As between Wonder and Partner, Wonder will own all right, title and interest in and to all Wonder Customer Data, and shall be under no obligation to share with or disclose to Partner any Wonder Customer Data. Wonder Customer Data constitutes the Confidential Information of Wonder. Partner may not, during and after the Term, sell, rent, license, share, transfer, distribute or otherwise disclose any Wonder Customer Data obtained by Partner pursuant to this Agreement to any third party, including any competitor of Wonder or its affiliates. Partner will maintain the accuracy and integrity of all Wonder Customer Data in Partner’s possession, custody or control, and will keep the same secure from unauthorized access by using appropriate organizational, physical and technical safeguards. If Partner becomes aware of any unauthorized access to any Wonder Customer Data, Partner will immediately notify Wonder via email, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Wonder. As used herein, “Personal Data” means any information obtained in connection with this Agreement: (i) relating to an identified or identifiable natural person; (ii) that can reasonably be used to identify or authenticate an individual, including name, contact information, precise location information, or other unique identifiers; and (iii) any information that may otherwise be considered “personal data” or “personal information” under applicable law.

11.  Performance Data. Wonder may (in its sole discretion) provide Partner with information about Wonder Spot, such as aggregated information regarding the number of Orders delivered to the Wonder Spot and such other performance or analytic data as Wonder may provide to from time to time (collectively, “Performance Data”). Partner agrees to access, collect, store, retain, use, or otherwise process such Performance Data solely for its internal business purposes. For clarity, Partner may not, during and after the Term, sell, rent, license, share, transfer, distribute or otherwise disclose any Performance Data to any third party, including any competitor of Wonder or its affiliates.   

12.  Feedback. Partner may, but is not obligated to, provide Wonder or its affiliates certain feedback, suggestions, comments, ideas, or other concepts relating to Wonder’s and/or its affiliate’s products and services (collectively, “Feedback”). By sending us any Feedback, you represent and warrant that you have the right to disclose the Feedback and the Feedback does not contain the confidential or proprietary information of any third party or violate any third party rights. By providing us with Feedback, you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works from, publish, distribute and sublicense the Feedback.  

13.  Customer Reviews and Ratings. Partner acknowledges and agrees that a Customer may be prompted by Wonder to provide a rating of Customer’s experience with Wonder and, at such Customer’s option, to provide reviews, ratings, comments or feedback related to the Customer’s experience (collectively, “Customer Reviews”). Wonder and its affiliates reserve the right to use, share, and display Customer Reviews in any manner in connection with Wonder and its affiliates business without attribution to or approval of Partner. Partner acknowledges that Wonder and its affiliates are distributors (without any obligation to verify) and not publishers of Customer Reviews, provided that Wonder and its affiliates reserve the right to edit or remove Customer Reviews in the event that such Customer Reviews include obscenities or other objectionable content, include Personal Data, violate any privacy or other applicable laws, or Wonder’s or its affiliates’ content policies.    

14.  Term; Termination and Suspension.

a.     Term. Unless otherwise set forth in the Order Form, this Agreement is effective as of the date of your acceptance (the “Effective Date”) and shall remain in full force and effect until such time as Partner’s participation in the Wonder Platform as a Wonder spot Partner is terminated in accordance with the terms hereof or the earlier termination or suspension of the Wonder Platform (the “Term”).   

b.     Termination and Suspension.

                                               i.     Partner may terminate this Agreement (and, accordingly, Partner’s participation in the Wonder Platform as a Wonder Spot Partner) for any reason at any time upon seven days’ prior written notice to Wonder; provided that Partner may terminate this Agreement immediately upon written notice to Wonder (i) in the event Wonder materially breaches this Agreement and fails to cure such breach within 30 days’ written notice thereof.

                                              ii.     Wonder may terminate or suspend this Agreement, in whole or in part, for any reason at any time upon seven days’ prior written notice to Partner; provided, that Wonder may terminate or suspend this Agreement, in whole or in part, immediately upon written notice to Partner (i) in the event Partner materially breaches this Agreement and fails to cure such breach within seven days’ written notice thereof, or (ii) in the event Partner engages in any conduct which, in Wonder’s reasonable judgment, would bring Wonder or its affiliates into public disrepute, contempt or scandal or could expose Wonder or its affiliates to liability to a third party, including matters related to the violation or alleged violation of any applicable retail food or other health or safety code.    

c.      Effect of Termination. All payment obligations, any other provision which, by its nature or express terms, is intended to survive the termination or suspension of Partner’s account shall survive the termination or suspension of Partner’s account (including all representations and warranties, indemnification obligations and limitations of liability hereunder). Upon termination of this Agreement for any reason: (i) at Wonder’s election, each party shall promptly return or destroy all Confidential Information of the other party in such party’s possession or control (including, in the case of Partner, any Wonder Customer Data and Credentials); and (ii) any license granted pursuant to this Agreement to the other party’s intellectual property or trademarks terminates concurrent with the effective date of termination.   

15.  Changes to the Services. We reserve the right to improve or otherwise change the features and functionality of, or our policies relating to, the Wonder Platform, Wonder Spot or other Wonder services (collectively, the “Services”) at any time and in our sole discretion, without notice and without liability to you. This Agreement will apply to the updated version of the Services. Additionally, notwithstanding anything to the contrary herein, we reserve the right to suspend or discontinue any of the Services altogether in our sole discretion, at any time, and without liability to you.   

16.  Changes to this Agreement. Wonder reserves the right to modify this Agreement at any time and in our sole discretion, including to the “DISPUTE RESOLUTION AND ARBITRATION” provisions set forth below. Wonder will notify you of any changes to this Agreement by: (i) posting an updated version of this Agreement to the Services; or (ii) emailing a copy of the updated version of this Agreement to you at the email address associated you provided.  You should regularly review the Services and the email provided for any such notices or messages, as your continued use of the Services after any such changes were so posted or sent to you (as applicable) constitutes your agreement to such changes. If you do not agree to such changes, then you may terminate this Agreement immediately upon written notice to Wonder given within 15 days of your receipt of notice of the applicable changes.   

17.  Representations and Warranties; Disclaimer.

a.     Representations and Warranties. Each party hereby represents and warrants that: (i) it has the full power and authority to enter into this Agreement and perform its obligations hereunder without breaching any obligation to any third party; (ii) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (iii) it will comply with all applicable laws and regulations in the performance of this Agreement and any activities hereunder; (iv) the Brand Features, or any other content or assets provided by one party to the other pursuant to this Agreement shall not infringe, misappropriate or otherwise violate the Intellectual Property Rights, rights of publicity, or other proprietary rights of any third party. Partner further represents and warrants that: (i) all Brand Features submitted by Partner to Wonder are owned by Partner or, as necessary, Partner has obtained all rights for Wonder to use such Brand Features as described in this Agreement, and (ii) all information, data and other documentation provided hereunder provided by Partner Menu shall, at all times during the Term, be complete and accurate and not contain any misrepresentations or fraudulent claims.   

b.     DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WONDER DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES OR, IF AND AS APPLICABLE, ORDER EQUIPMENT, INCLUDING ANY WARRANTIES (i) OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (ii) OF INFORMATIONAL CONTENT OR ACCURACY, (iii) OF NON-INFRINGEMENT, (iv) OF PERFORMANCE, (v) OF TITLE, (vi) THAT THE WONDER PLATFORM WILL OPERATE IN AN ERROR FREE, TIMELY, SECURE, OR UNINTERRUPTED MANNER, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, (vii) THAT ANY DEFECTS OR ERRORS IN THE WONDER PLATFORM WILL BE CORRECTED, OR (viii) THAT THE WONDER PLATFORM IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE PLATFORM.   

18.  Indemnification.

a.     Wonder’s Indemnity. Wonder shall indemnify, defend and hold harmless Partner, its affiliates, and its and their respective directors, officers, employees, agents, successors, licensees, suppliers, and assigns and other representatives from and against any and all losses, liabilities, damages, penalties, judgments and settlements, as well as all costs and expenses (including, reasonable outside attorneys’ fees and costs) (collectively, “Damages”) incurred in connection with any and all third-party claims, demands, actions, suits, investigations, arbitrations and other proceedings (collectively, “Claims”) arising out of or in connection with: (i) Wonder’s actual or alleged breach of its representations, warranties and/or covenants herein; (ii) the gross negligence, willful misconduct or fraud in performance of this Agreement by Wonder or any of its employees, third-party contractors or agents; and/or (iii) any bodily injury (including death) to Customers to the extent caused by the acts or omissions of Wonder or its employees, third-party contractors or agents.   

b.     Partner’s Indemnity. Partner shall indemnify, defend (if required by Wonder and with counsel reasonably acceptable to Wonder) and hold harmless Wonder, its affiliates, and its and their respective directors, officers, employees, agents, successors, licensees, suppliers, and assigns and other representatives from and against any and all Damages incurred in connection with any and all Claims arising out of or in connection with: (i) Partner’s actual or alleged breach of its representations, warranties and/or covenants herein; (ii) the gross negligence, willful misconduct or fraud in performance of this Agreement by Partner or any of its employees, third-party contractors or agents; (iii) any bodily injury (including death) to Customers to the extent caused by the acts or omissions of Partner or its employees, third-party contractors or agents relating to the subject matter of this Agreement; (iv) any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation; and/or (v) any allegation that Partner’s Brand Features or any other content, information or assets provided by Partner’s pursuant to this Agreement (and the exercise of the rights granted herein with respect thereto) infringe, misappropriate or otherwise violate the Intellectual Property Rights, rights of publicity, or other proprietary rights of any third party.   

c.      Indemnification Procedure. Any party seeking indemnification hereunder (an “Indemnitee”) must give the party from whom indemnification is sought (the “Indemnitor”): (i) prompt written notice of the Claim (provided that its failure to do so will not relieve the Indemnitor of its obligations under this Section, except to the extent it is materially prejudiced thereby); (ii) reasonable cooperation, at the Indemnitor’s request and expense, in the defense of such Claim; and (iii) the right to assume sole control over or participate in the defense and settlement of any such Claim; provided, however, that the Indemnitor shall not, without the prior written approval of the Indemnitee (which shall not be unreasonably withheld or delayed), settle any Claim unless such settlement (a) is solely for monetary damages (for which the Indemnitor shall be responsible), (b) does not impose injunctive or other equitable relief on any of the Indemnitees, and (c) includes an unconditional release of each of the Indemnitees from all liability relating to the compromised or settled Claim. 

19.  LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO LIABILITY (i) ARISING FROM OR RELATED TO A BREACH BY A PARTY OF ANY (a) OF ITS OBLIGATIONS UNDER THE CONFIDENTIALITY OR DATA PRIVACY AND SECURITY SECTIONS OF THESE TERMS OR (b) LICENSES GRANTED TO SUCH PARTY BY THE OTHER PARTY HEREUNDER, OR (ii) CAUSED BY A PARTY’S FRAUD OR WILLFUL MISCONDUCT, AND WITHOUT LIMITING EITHER PARTY’S OBLIGATIONS UNDER SECTION 14, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL: (1) EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, REGULATION, COMMON LAW PRECEDENT OR OTHERWISE, EVEN IF WONDER OR PARTNER HAVE BEEN ADVISED OF THE POSSIBILITY OF DAMAGES; OR (2) EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER FOR ALL CLAIMS RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT EXCEED THE AMOUNTS PAID AND PAYABLE TO PARTNER BY WONDER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO THE LIABILITY.   

20.  Dispute Resolution and Arbitration; Class Action Waiver.     

a.     Scope of Agreement to Arbitrate. This Section is intended to be interpreted broadly and governs any and all disputes between the parties, including claims arising out of or relating to any aspect of the relationship between the parties, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including claims related to advertising, and any content available on or through the Wonder Platform); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below. By accepting this Agreement, you agree to resolve any and all disputes with Wonder as set forth below.   

b.     Initial Dispute Resolution. Most disputes can be resolved without resort to litigation. Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Wonder, and good faith negotiations shall be a condition to either party initiating a lawsuit or arbitration.   

c.      Binding Arbitration. If the parties do not reach an agreed-upon solution within a period of thirty 30 days from the time informal dispute resolution is initiated, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to this Agreement (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of the Wonder Platform shall be finally settled by binding arbitration administered by JAMS in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of this Agreement or the Privacy Policy, including any claim that all or any part of this Agreement is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be written and shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To start an arbitration, you must do the following: (i) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (ii) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, 620 Eighth Ave., NY Times Building, 34th Floor, New York, NY 10018 USA; and (iii) send one copy of the Demand for Arbitration to Wonder Group, Inc., 4 World Trade Center, 150 Greenwich Street, 57th Floor, New York, NY 10006, Attention: Legal Department.   

d.     The arbitration proceedings and arbitration award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors and senior management.   

e.     Each party shall pay its own proportionate share of arbitrator fees and expenses plus fees and expenses of JAMS. The arbitrator shall be entitled to award the foregoing arbitration and administrative fees and expenses as damages in their discretion.   

f.      The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.   

g.     You and Wonder agree that any arbitration will take place in the state in which you reside. You and Wonder further agree to submit to the personal jurisdiction of any federal or state court in New York County, New York in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.   

h.     Class Action Waiver. The parties further agree that the arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND WONDER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this Section is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above (but not the remainder of this Agreement) shall be deemed null and void in their entirety and the parties shall be deemed to have not agreed to arbitrate disputes.   

i.       Exception for Litigation of Intellectual Property Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect its Intellectual Property Rights.   

21.  Governing Law. This Agreement and the relationship between you and Wonder shall be governed in all respects by the laws of the State of New York, without regard to its conflict of law provisions. Any claim or dispute either party may have against the other that is not subject to arbitration must be resolved by a court located in New York County, New York. Each party agrees to submit to the personal jurisdiction of the federal and state courts located within New York County, New York for the purpose of litigating all such claims or disputes that are not subject to arbitration, and waives any right it may have to assert the doctrine of forum non conveniens or to object to venue to the extent that any proceeding is conducted in accordance herewith.   

22.  Notices. Any and all notices permitted or required to be given hereunder will be sent to the address listed below, or such other address as may be provided, and deemed duly given: (i) upon actual delivery, if delivery is by hand; (ii) one day after being sent by overnight courier, charges prepaid; or (iii) by electronic mail to the designated recipient. Notices to Wonder should be provided via hand delivery or overnight courier to Wonder Group, Inc., 4 World Trade Center, 150 Greenwich Street, New York, NY 10006, Attention: Legal Department, and via electronic mail to [email protected]. Notices to Partner should be provided to the address provided by Partner.   

23.  Communications. Partner agrees to accept and receive communications from Wonder or Wonder’s third party contractors, including via email, text message, calls, and push notifications to the cellular telephone number Partner provides to Wonder. Partner acknowledges that Partner may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Wonder, its affiliates and/or Wonder or Wonder’s third party contractors. Partner may opt out of such communications in Partner’s account settings or by replying “STOP” from the mobile device receiving such messages.   

24.  Publicity. Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.

25.  Supplemental Terms. In some instances, additional guidelines, rules, or terms that are posted on the Services or made available to you apply to your use of the Services, such as promotion terms, use policies or terms related to certain features and functionalities (collectively, “Supplemental Terms”). Supplemental Terms are in addition to, and will be deemed a part of, your agreement with Wonder. Supplemental Terms will prevail over this Agreement in the event of a conflict. Wonder will provide notice of any changes to any Supplemental Terms by: (i) posting an updated version of the Supplemental Terms to the Services; or (ii) emailing a copy of the updated version of this Agreement to you at the email address you provided.  Your continued use of the applicable Services after any such changes were so posted or sent to you (as applicable) constitutes your agreement to such changes. If you do not agree to such changes, then you may terminate this Agreement immediately on written to Wonder given any time within 15 days of your receipt of notice of the applicable changes.   

26.  General Provisions. This Agreement (including all Supplemental Terms) constitutes the full and complete agreement between the parties relating to the subject matter hereof, and supersedes all prior agreements and communications, with respect to the subject matter hereof; provided, however, that if there is any conflict between this Agreement and the Order Form, the provisions of the Order Form shall control. Partner may not assign, transfer, delegate or subcontract this Agreement, in whole or in part, without Wonder’s prior written consent. In this Agreement, “including” means “including, without limitation,” and examples are illustrative and not the sole examples of a particular concept. The headings are included for convenience of reference only and shall be ignored in the construction or interpretation hereof. References to Sections are to Sections of this Agreement unless otherwise specified. Wonder may freely assign transfer, delegate or subcontract this Agreement, in whole or in part. This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. Any purported assignment, transfer, delegation or subcontract in violation of this Section will be null and void. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here. The failure of either party to enforce, at any time or for any period of time, the provisions hereof or thereof, or the failure of either party to exercise any option herein or therein, will not be construed as a waiver of such provision or option and will not affect that party’s right to enforce such provisions or exercise such option. Any delay in or failure by either party in the performance of this Agreement will be excused if and to the extent such delay or failure is caused by decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war, terrorism or similar force majeure events (each being a “Force Majeure Event”). The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under this Agreement. Nothing in this Agreement will be deemed to create any joint venture, joint enterprise, or agency relationship between the parties (except as otherwise expressly set forth above), and neither party will have the right to enter into contracts on behalf of, to legally bind the other party. Each party will be solely responsible for its employees and contractors used in connection with such party’s performance of its obligations under this Agreement.