(Temp)Storefront Merchant Terms of Service - US/CA/AU - English
Effective: May 3, 2021
BEFORE YOU USE THE PRODUCTS AND SERVICES PLEASE READ THESE TERMS (THIS “AGREEMENT” OR THESE “TERMS”) CAREFULLY. DOORDASH PROVIDES YOU THE SERVICES DESCRIBED HEREIN SUBJECT TO THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. THESE TERMS SET FORTH YOUR AND DOORDASH’S RESPECTIVE RIGHTS AND OBLIGATIONS REGARDING THE PRODUCT. BY EXECUTING THE MASTER AGREEMENT WITH DOORDASH AND USING THE PRODUCTS OR SERVICES, YOU, AND ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR FRANCHISEES AND/OR AFFILIATES (IF ANY) ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THE TERMS HEREIN IN ADDITION TO THE TERMS IN THE MASTER AGREEMENT (AS DEFINED HEREIN). THE TERMS OF THIS AGREEMENT APPLY ONLY TO THE SUBJECT MATTER HEREOF.
DEFINITIONS.
“Affiliate” means any entity that a Party directly or indirectly controls (e.g., subsidiary) or is controlled by (e.g., parent), or with which it is under common control (e.g., sibling).
“Confidential Information” means non-public information in any form and regardless of the method of acquisition that the Discloser designates as confidential to Recipient or should be reasonably known by the Recipient to be Confidential Information due to the nature of the information disclosed and/or the circumstances surrounding the disclosure. Confidential Information of a Party includes that Party’s data.
“Customer Data” means information accessible to Merchant through the Product, which may include personally identifiable information, such as full name, email address, delivery address, and phone number.
“Customer” means a consumer that desires to place an order via the Product.
“Dashers” means the independent contractors that provide delivery services.
“Discloser” means a Party disclosing Confidential Information or data hereunder.
“DoorDash” means the applicable DoorDash entity with whom Merchant has entered into the Master Agreement, which means for Merchants located in Canada, DoorDash Technologies Canada, Inc.; for Merchants located in Australia, DoorDash Technologies Australia Pty Ltd; and for Merchant located in the United States, DoorDash, Inc.
“DoorDash Materials” means any and all software (including object and source code), end-user technical documentation, flow charts, algorithms, documentation, adversary information, report templates, know-how, inventions, techniques, models, DoorDash trademarks, ideas, and any and all other works and materials developed hereunder (including without limitation all intellectual property rights therein and thereto).
“Fees” means any fee(s) as set forth in this Agreement, Order or separately agreed to between the Parties (including Setup Fee, Software Fee, Merchant Fee, Customer Fee, Payment Processing Fee, PickUp Fee, and Delivery Fee).
“Force Majeure Event” means, with respect to a Party, any event or circumstance, whether or not foreseeable, that was outside the control of that Party.
“Indemnified Party” means the Party entitled to or seeking indemnification, pursuant to the terms of this Agreement, and its affiliates, and their respective officers, directors, shareholders, employees, agents, successors, and permitted assigns.
“Indemnifying Party” means the Party indemnifying the other Party pursuant to the terms of this Agreement.
“License Term” means the period of time during which Merchant is authorized by DoorDash to access and use the Product or Service(s) as set forth in the applicable Order.
“Losses” means the resulting judgments, fines, settlements, court costs, and attorneys’ fees that are incurred by the Indemnified Party, in each case finally awarded by a court of competent jurisdiction.
“Master Agreement” means the services agreement that the parties executed for DoorDash Services, which may be via a signed Merchant Services Agreement, Delivery and Promotion Agreement, Drive Agreement, Drive Addendum, Sign-Up Sheet, or the DoorDash Merchant Terms of Service available at: doordash.com/merchant/merchant-terms, or another written document that describes DoorDash’s delivery facilitation obligations.
“Offerings” means, collectively, any Products and/or Services.
“Order” means one of the documents attached hereto and accepted by DoorDash that identifies an Offering and DoorDash’s applicable license metrics. If the terms of an Order contradict those in this Agreement, then only those specific terms on the face of such Order that expressly identify those portions of this Agreement that are to be superseded will prevail over any conflicting terms herein but only with respect to those Offerings ordered on such Order.
“Product” means DoorDash’s products and/or services related to DoorDash’s provision of an online ordering portal ordered by Merchant as set forth in the relevant Order, including any DoorDash Material and any Updates (as applicable) thereto, that may be made available to Merchant from time to time by DoorDash.
“Recipient” means a Party receiving Confidential Information or Data hereunder.
“Representatives” means the Recipient’s employees and contractors, including without limitation, counsel, accountants and financial advisors.
“Services” means any professional services performed by DoorDash for Merchant as defined in an Order.
“Updates” means any correction, update, upgrade, patch, other modification, or addition made by DoorDash to any object code software component of a Product and made available to Merchant by DoorDash from time to time.
PAYMENT AND REFUNDS.
Fee Payment. Merchant will pay the fees for Offerings as set forth in the applicable Order. Merchant will pay the Fees and amounts stated on each Order within thirty (30) days after receipt of the applicable invoice (unless otherwise expressly set forth on the Order). All fees and other amounts are non-refundable (except as otherwise expressly provided in this Agreement) and exclusive of any applicable sales, use, value added, withholding, and other transaction related taxes, and Merchant will pay all such taxes levied or imposed by reason of the transactions hereunder, except for taxes based on DoorDash’s net income or related to DoorDash’s employees.
Customer Fee Refunds. The Fee for a customer order cancelled after a Dasher has been dispatched is non-refundable.
Redelivery. Customer orders requiring redelivery due to Merchant’s error, including Merchant personnel providing an incorrect or incomplete order to the Dasher, are subject to Fees as a separate delivery.
Support. Merchant will have access to DoorDash’s support services if any issues, questions, or concerns relating to deliveries arise.
Chargeback Coverage. Notwithstanding the foregoing and absent Merchant’s fraud, DoorDash shall not charge Merchant for chargebacks.
Tips. Merchant will distribute tips provided by Customers in accordance with applicable law.
ACCESS AND USE RIGHTS.
Access and Use Rights. Subject to the terms and conditions of this Agreement (including DoorDash’s receipt of applicable fees) and each applicable Order, DoorDash grants Merchant, under DoorDash’s intellectual property rights in and to the applicable Product, a non-exclusive, non-transferable, non-sublicensable license to access and use the Products and receive the Services in accordance with this Agreement during the applicable License Term. The license granted under this Agreement to use the Products and receive the Services shall apply automatically to any store you add to the DoorDash Marketplace, unless you expressly remove any store through the Merchant Portal or request in writing (which can be sent to [email protected]) that DoorDash remove any store.
Restrictions. The access and use rights set forth in Section 3.1 do not include any rights to, and Merchant will not, with respect to any Offering (or any portion thereof): (a) alter, translate and/or create derivative works of or otherwise modify an Offering without DoorDash’s permission; (b) sublicense, distribute or otherwise transfer an Offering to any third party; (c) allow third parties to access or use an Offering (except as expressly permitted herein); (d) create public Internet “links” to an Offering or “frame” or “mirror” any Offering content on any other server or wireless or Internet-based device; (e) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code (if any) for an Offering (except to the extent that such prohibition is expressly precluded by applicable law), circumvent its functions, or attempt to gain unauthorized access to an Offering or its related systems or networks; (f) remove or alter any notice of proprietary right appearing on an Offering; (g) use any feature of DoorDash APIs for any purpose other than in the performance of this Agreement; or (h) cause, encourage or assist any third party to do any of the foregoing. Merchant agrees to use an Offering in accordance with laws, rules and regulations directly applicable to Merchant.
Installation and User Accounts. Merchant shall notify DoorDash if Merchant learns of any unauthorized access or use of Merchant’s user accounts or passwords for an Offering.
Services. Services will commence on a mutually agreed upon date. With respect to Services performed on a time and materials basis, DoorDash will notify Merchant of any overages of estimated timelines and obtain Merchant’s consent prior to incurring any overages. Services performed on a fixed fee basis are limited to the scope of services stated in the applicable Order.
Data Use.
Customer Data. DoorDash shall process such Customer Data solely for the purposes set forth in this Agreement and for the benefit of Merchant as part of the Services, unless otherwise required or permitted by law. Merchant agrees to use Customer Data that it receives (a) in compliance with the privacy policy set forth in Exhibit A (the “Privacy Policy”) and (b) in compliance with applicable law, including, without limitation, for Merchants located in Australia, the Privacy Act 1988 (“Privacy Act”); for Merchants located in Canada, Canada’s Anti-Spam Legislation, S.C. 2010, c. 23 (“CASL”) and the Personal Information Protection and Electronic Documents Act (“PIPEDA”) or, where applicable, its provincial-level equivalent; and for Merchants located the United States the Telephone Consumer Protection Act (the “TCPA”) and, if applicable, California Consumer Privacy Act (the “CCPA”), and (c) shall not use DoorDash’s name or logo in such outreach. DoorDash will not be responsible for Merchant’s failure to comply with its obligations in this Section 3.5 with respect to any Customer Data. For Merchants located in Canada, the applicable Privacy Policy is available at https://help.doordash.com/merchants/s/storefront-privacy-policy-template-ca and for Merchants located in Australia, the applicable Privacy Policy is available at https://help.doordash.com/merchants/s/storefront-privacy-policy-template-au.
Consumer Terms and Conditions and Privacy Policy. DoorDash will provide hyperlinks on Product webpages to the Privacy Policy substantially in the form attached as Exhibit A and consumer terms and conditions substantially in the form attached as Exhibit B (“Consumer Terms and Conditions”), which will inform Customers how their information will be processed by Merchant (referred to in both documents as “Company”) and by DoorDash. Merchant is responsible for ensuring that the Privacy Policy and Consumer Terms and Conditions comply with applicable law. DoorDash will insert Merchant’s name and contact information in the Privacy Policy and Consumer Terms and Conditions. Except for the provisions preceding Section 1, including those pertaining to arbitration and limitation of liability, Merchant may otherwise edit the Privacy Policy and Consumer Terms and Conditions provided by DoorDash either in the Merchant Portal if available, or by providing an edited copy of the updated Privacy Policy and Consumer Terms and Conditions to DoorDash at least 5 days in advance of the launch date. For Merchants located in Canada, the applicable Privacy Policy is available at https://help.doordash.com/merchants/s/storefront-privacy-policy-template-ca and Consumer Terms and Conditions is available at https://help.doordash.com/merchants/s/storefront-tos-template-ca and for Merchants located in Australia, the applicable Privacy Policy is available at https://help.doordash.com/merchants/s/storefront-privacy-policy-template-au and Consumer Terms and Conditions is available at https://help.doordash.com/merchants/s/storefront-tos-template-au.
Effect of Termination. Upon termination of this Agreement or the Master Agreement for any reason other than Merchant’s material breach, Merchant may request a copy of the Customer Data associated with Merchant’s orders, subject at all times to the restrictions set forth in Section 3.5.1. Such request must occur within thirty (30) days of the termination effective date.
Restrictions. DoorDash shall not use Customer Data for marketing or promotional purposes.
Personnel. Merchant will be solely responsible for all acts and omissions of its personnel, including, without limitation, breach of the terms of this Agreement applicable to such personnel. DoorDash is not responsible for any acts or omissions of Merchant or Merchant’s personnel with respect to their usage of Customer Data.
Third Party Services. Merchant is responsible for obtaining and maintaining all telecommunications, broadband, computer equipment, and services needed to access and use the Offerings and for paying all charges related thereto.
INTELLECTUAL PROPERTY.
DoorDash’s Intellectual Property. Products are licensed, not sold. DoorDash owns and retains all right, title and interest (including all intellectual property rights) in and to the Offerings and enhancements to the Offerings.
CONFIDENTIALITY.
Definitions. In connection with this Agreement, Recipient may receive Confidential Information from. Discloser. Confidential Information shall not include information that is: (a) is or becomes publicly available (other than by disclosure by Recipient in violation of this Agreement); (b) independently developed by Recipient without use of Discloser’s Confidential Information; or (c) rightfully obtained by Recipient from third parties without an obligation of confidentiality.
Restrictions on Use. Except as allowed in Section 5.3, Recipient shall hold Discloser’s Confidential Information in strict confidence and shall not disclose any such Confidential Information to any third party, other than to its Representatives, its Affiliates and their Representatives, subject to the other terms of this Agreement, and in each case who need to know such information and who are bound by restrictions regarding disclosure and use of such information comparable to and no less restrictive than those set forth herein. Recipient shall be responsible for any breach of the terms in this Section 5 by its Representatives, its Affiliates and their Representatives. Recipient shall not use Discloser’s Confidential Information for any purpose other than as set forth in this Agreement. Recipient shall take the same degree of care that it uses to protect its own confidential information of a similar nature and importance (but in no event less than reasonable care) to protect the confidentiality and avoid the unauthorized use, disclosure, publication, or dissemination of the Discloser’s Confidential Information.
Exceptions. Recipient may disclose Discloser’s Confidential Information: (a) to the extent required by applicable law or regulation; (b) pursuant to a subpoena or order of a court or regulatory, self-regulatory, or legislative body of competent jurisdiction; (c) in connection with any regulatory report, audit, or inquiry; or (d) where requested by a regulator with jurisdiction over Recipient. In the event of such a requirement or request, to the extent permitted, Recipient shall give Discloser prompt written notice of such requirement or request prior to such disclosure and a reasonable opportunity to review and comment upon the disclosure and request confidential treatment or a protective order pertaining thereto prior to making such disclosure.
Destruction. Upon Discloser’s written request, Recipient shall use commercially reasonable efforts to destroy the Confidential Information and any copies or extracts thereof. However, Recipient, its Affiliates and their Representatives may retain any Confidential Information that they are required to keep by applicable law, professional standards, a court, or regulatory agency. Upon Discloser’s request, Recipient will provide Discloser with written confirmation of destruction in compliance with this provision.
Equitable Relief. Each Party acknowledges that a breach of this Section 5 may cause the other Party irreparable injury and damage. Therefore, each Party agrees that those breaches may be stopped through injunctive proceedings in addition to any other rights and remedies which may be available to the injured Party at law or in equity without the posting of a bond.
WARRANTIES AND DISCLAIMER.
Warranties.
Product Warranty. DoorDash warrants that it has used industry standard techniques to prevent the Products at the time of delivery from injecting malicious software viruses into Merchant’s endpoints where the Products are installed.
Services Warranty. DoorDash warrants to Merchant that it will perform all Services in a professional and workmanlike manner consistent with generally accepted industry standards. Merchant’s remedy for a breach of this warranty will be for DoorDash, at its option and expense, to (a) use commercially reasonable efforts to re-perform the non-conforming Services, or (b) refund the portion of the fees paid attributable to the non-conforming Services. If DoorDash cannot correct the breach within thirty (30) days from receipt of notice, then Merchant may terminate the affected portion of the Order and receive a refund of Fees paid for nonconforming or unperformed Services.
Exclusions. The express warranties do not apply if the applicable Product or Service (a) has been modified, except by DoorDash, or (b) has not been installed, used or maintained in accordance with this Agreement or DoorDash Materials.
Representations and Warranties.
Mutual. Each Party represents and warrants that: (a) it has the full right, power and authority to enter into and perform its obligations under this Agreement and that its performance of its obligations under this Agreement will not result in a breach of any obligation to any third party, and (b) it will comply with all applicable law, regulations and rules as it relates to its performance under this Agreement. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE DOORDASH OFFERINGS ARE PROVIDED “AS IS”.
Merchant Warranties.
Franchisees and Other Legal Entities. Merchant represents and warrants that Merchant has the legal authority to bind its franchisees and/or Affiliates (if any) to the terms of this Agreement. Merchant will, at its own expense, defend, indemnify, and hold harmless DoorDash from any claim by a franchisee or a third party arising out of Merchant’s ability to bind Merchant’s franchisees hereunder. This section does not obligate Merchant to provide any franchisee or Affiliate with the Services hereunder.
Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DOORDASH PROVIDES THE PRODUCT AND SERVICES “AS IS,” MAKES NO WARRANTY OF ANY KIND EXPRESS OR IMPLIED WITH REGARD TO THE PRODUCTS OR SERVICES, AND DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS.
INDEMNIFICATION.
Obligations. The Indemnifying Party will at its own expense defend, indemnify and hold harmless the Indemnified Party and will pay the Losses, to the extent arising out of any third-party claim that alleges or arises out of: (a) any breach or alleged breach of any warranties and representations or covenants under this Agreement by the Indemnifying Party or its employees, agents, contractors, or subcontractors; (b) the gross negligence or more culpable act or omission of the Indemnifying Party or its employees, agents, contractors, or subcontractors (including any reckless misconduct) in connection with the performance of this Agreement; (c) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party or its employees, agents, contractors, or subcontractors (including any reckless or willful misconduct); (d) the violation of the intellectual property rights of any third party by the Indemnifying Party; or (e) in the case of Merchant, Merchant’s failure to distribute tips to Merchant’s delivery personnel or as otherwise required by applicable law; provided that in each case the Indemnified Party provides the Indemnifying Party with (i) prompt notice of any claims, (ii) the option to assume sole control over defense and settlement of any claim, and (iii) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party’s expense).
Remedies. If a claim covered under Section 7.1(d) occurs, the Indemnifying Party may at its expense and sole discretion: (a) procure the right to allow the Indemnified Party to continue using the applicable Offering; (b) modify or replace the applicable Offering to become non-infringing; or (c) if neither (a) nor (b) is commercially practicable, terminate Merchant’s license or access to the affected portion of applicable Offering and refund a portion of the pre-paid, unused software and Services Fees paid by Merchant corresponding to the unused period of the License Term.
Exclusions. DoorDash shall have no obligations under this Section if the claim is based upon or arises out of: (a) any modification to the applicable Offering not made by DoorDash, (b) any combination or use of the applicable Offering with or in any third-party software, hardware, process, firmware, or data, to the extent that such claim is based on such combination or use, and/or (c) Merchant’s use of the Offering outside the scope of the rights granted under this Agreement.
LIMITATION OF LIABILITY. EXCEPT IN THE EVENT OF A BREACH OF SECTIONS 3, 4 OR 5, OR A PARTY’S INDEMNIFICATION OBLIGATIONS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT FOR: (a) ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES, OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE, OR (b) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAID TO DOORDASH PURSUANT TO THIS AGREEMENT ONLY DURING THE TWELVE-MONTH PERIOD BEFORE THE CLAIM. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION.
Partner Code of Conduct. Merchant agrees to comply with DoorDash’s Partner Code of Conduct available here: https://www.doordash.com/partner/code-of-conduct.
Taxes. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. In the event that Merchant raises the price for a menu item, DoorDash shall not be required to remit the higher price to the Merchant until three (3) business days after the Merchant first provides notice to DoorDash of such pricing change. For Merchants located in certain jurisdictions in Canada and the United States, DoorDash may be required to collect sales, use, or similar taxes from the Customer and remit such taxes directly to the tax authority. In such jurisdictions, DoorDash will inform Merchant that DoorDash will remit Collected Taxes to the tax authority and DoorDash will be relieved of any responsibility to remit such Collected Taxes to Merchant.
Termination. This Agreement shall remain effective until the earliest of: (i) termination in accordance with this Agreement, or (ii) termination of the Master Agreement. Either Party may terminate this Agreement: (a) upon 30 days’ written notice of a material breach by the other Party, unless the breach is cured within the 30-day notice period; (b) immediately, if the other Party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings; or (c) for convenience upon thirty (30) days’ notice. DoorDash may terminate this Agreement in whole or in part without penalty, upon thirty (30) days’ written notice in the event of a material adverse change in law (or enforcement thereof) that affects DoorDash’s financial or legal ability to provide Services hereunder. If Merchant materially breaches Section 3.1 of this Agreement or fails to pay DoorDash on time (and fails to cure such material breach in accordance herewith), in addition to all other rights and remedies that DoorDash may have at law or in equity, DoorDash may, without terminating this Agreement, and in its sole discretion, suspend Merchant’s access or use of the Offerings. Upon termination of this Agreement for any reason: (i) all Merchant’s access and use rights granted in this Agreement will immediately terminate; (ii) Merchant must promptly cease all use of Offerings; and (iii) each Party shall destroy the other Party’s data and Confidential Information within thirty (30) days and certify to the other Party as to the completion thereof upon request. Sections 1, 2, 4, 5, 7, 8, 10, 11, and 12, as well as any other sections or provisions that, by their nature, should extend beyond the term of this Agreement, shall survive expiration or termination of this Agreement for any reason. If either Party terminates the Master Agreement, this Agreement shall automatically terminate.
GENERAL.
Entire Agreement. This Agreement constitutes the entire agreement between Merchant and DoorDash concerning the subject matter of this Agreement and it supersedes, and its terms govern, all prior proposals, agreements, understandings, or other communications between the parties, oral or written, regarding such subject matter.
Subcontractors. Nothing herein prevents DoorDash from using contractors, subcontractors, service providers, vendors, or other agents to perform its obligations (or a portion thereof) hereunder.
Waiver and Severability; Amendments; Order of Precedence. The failure of either Party to enforce any provision of this Agreement shall not constitute a waiver of any other provision or any subsequent breach. If any provision of this Agreement is held to be illegal, invalid or unenforceable, the provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement may only be amended, or any term or condition set forth herein waived, by written consent of both parties. If there is a conflict between the terms contained in this Agreement and any Order, the terms in the Order will prevail, to the extent the terms expressly conflict with those herein. In the event of a conflict between the terms of (i) either the Master Agreement or the DoorDash Merchant Terms of Service, and (ii) this Agreement, and any Exhibits, this Agreement and its Exhibits shall apply.
Force Majeure. Except for Merchant’s payment obligations, if a Force Majeure Event prevents a Party from complying with any one or more obligations under this Agreement, that inability to comply will not constitute breach. If a Force Majeure Event occurs, the affected Party shall promptly notify the other Party, its effect on performance, and how long the affected Party expects it to last. Thereafter, the affected Party shall update that information as reasonably necessary. If a Force Majeure Event occurs for longer than thirty (30) days, either Party may terminate this Agreement pursuant to Section 10.
Marketing. Notwithstanding Section 5, DoorDash may include Merchant’s name and logo in its marketing materials and/or reference Merchant as a client using the Offerings.
Modifications. DoorDash also may revise the terms herein from time to time and the changes will not be retroactive. DoorDash will notify Merchants of material revisions via a service notification or an email to the email address associated with Merchant’s account. By continuing to access or use the Services after those revisions become effective, Merchant agrees to be bound by the revised terms.
Notices. All legal notices will be given in writing to the addresses on the cover page and will be effective (a) when personally delivered, (b) on the reported delivery date if sent by a recognized international or overnight courier, or (c) five business days after being sent by registered or certified mail (or ten days for international mail).
