Merchant Alcohol Product Addendum - NZ - English

Alcoholic Beverage Addendum Effective Date: 22 January 2022

This Alcoholic Beverage Product Addendum (this “Alcoholic Beverage Addendum”) is incorporated into the Agreement. All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Sign-Up Sheet, in this Alcoholic Beverage Addendum, or in the Terms of Service between the parties.

1. BACKGROUND. The Parties entered into the Agreement to market Merchant Products to Customers as part of Orders placed by Customers through the DoorDash Platform or through Merchant’s own online ordering channel or platform for, as applicable, for delivery by Dashers or Merchant’s own delivery personnel or for pick-up at Merchant Stores by Customers in certain markets. Merchant is a licensed alcoholic beverage retailer or a restaurant licensed to sell alcoholic beverages for pick-up or delivery, and the Parties wish to incorporate the following terms specific to the sale and/or delivery of Alcohol Products to consumers in Applicable Jurisdictions. In consideration of the mutual covenants and agreements stated in this Alcoholic Beverage Addendum, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree to amend the Agreement as follows.

2. DEFINITIONS.

2.1. “Alcohol Laws” means all federal, state/provincial, and local Alcohol Laws, regulations, ordinances, rules, and alcoholic beverage regulatory agency policies.

2.2. “Alcohol Licenses” means all applicable Alcohol Licenses, permits, license and/or permit endorsements, and/or authorizations from state/provincial and/or local alcoholic beverage licensing authorities.

2.3. “Alcohol Products” means alcoholic beverages sold by Merchant.

2.4. “Applicable Jurisdictions” means any jurisdiction that permits sales of Alcohol Products for pick-up or delivery from time to time during the Term.

2.5. “Customer Order” means an order for Alcohol Products placed by a Customer.

2.6. “Delivery Records” means all delivery information that Merchant is required to retain by applicable Alcohol Laws.

2.7. “Damages” means all liability, cost, expense, claim, loss or damages caused by any act or omission by Merchant, including, but not limited to, injury (whether to body, property, personal or business character or reputation) sustained by any person or to any person or to any property relating to the production, sale, and/or delivery of the Alcohol Products which may result from the sale or distribution of the Alcohol Products under this Alcoholic Beverage Addendum (but excluding any Damages solely to the extent they arise from the negligence of DoorDash or any Dasher).

2.8. “Indemnified Party” means the other Party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees and agents.

2.9. “Indemnifying Party” means the Party indemnifying the other Party pursuant to the terms of this Alcoholic Beverage Addendum.

2.10. “Party” means DoorDash or Merchant, as the context requires.

2.11. “Product” means a product sold by Merchant.

2.12. “Self-Delivery Order” means an Order placed through the DoorDash Platform for delivery by Merchant’s delivery personnel.

2.13. “Term” means the period beginning on the Alcoholic Beverage Addendum Effective Date and continuing until the earlier of (i) for each Applicable Jurisdiction, until a change in any Alcohol Law(s) (or enforcement thereof) prohibits Merchant from selling Alcohol Products for pickup or delivery in such Applicable Jurisdiction(s), or (ii) this Alcoholic Beverage Addendum is terminated by either Party upon notice to the other Party. If either Party terminates the, this Alcoholic Beverage Addendum shall automatically terminate.

3. ALCOHOLIC BEVERAGE LICENSING.

3.1. Merchant represents and warrants that it holds and will maintain in good standing throughout the term of this Alcoholic Beverage Addendum the Alcohol Licenses required for the sale of Alcohol Products directly to consumers in Applicable Jurisdictions, including but not limited to any Alcohol Licenses required to accept orders for Alcohol Products from consumers directly or through a third party via the internet and/or to deliver Alcohol Products to consumers, as applicable. Merchant further represents and warrants that it currently complies with and will continue to comply with all Alcohol Laws, and that it is responsible for alcoholic beverage regulatory compliance related to its activities and any sales or deliveries of Alcohol Products under this Alcoholic Beverage Addendum. Merchant acknowledges and agrees that Customer Orders will be fulfilled based on and under its legal rights under its Alcohol Licenses..

4. SELLER OF RECORD.

4.1. Merchant is the seller of all Alcohol Products under the Agreement. Merchant shall at all times be solely responsible for determining the selection and setting the price of all Alcohol Products sold in connection with this Alcoholic Beverage Addendum. For avoidance of doubt, title for all Alcohol Products sold under this Alcoholic Beverage Addendum shall pass directly from Merchant to the Customer, as applicable, (i) if an Order is placed for delivery by a Dasher, upon pickup by the Dasher at the Merchant’s location, (ii) if an Order is placed as a Self-Delivery Order, at the Customer’s delivery location upon delivery by Merchant’s delivery personnel to the Customer, or (iii) if an Order is placed for pick-up by the Customer, at the Merchant Store location at the time of pick-up.

4.2. The Parties agree that DoorDash shall not receive any proceeds for the sale of Alcohol Products. Merchant acknowledges and agrees that Merchant will pay DoorDash reasonable fees for its marketing and delivery facilitation services, as set forth in the Rate Card or as otherwise set forth in this Alcoholic Beverage Addendum.

5. ALCOHOL PRODUCTS ON THE DOORDASH PLATFORM.

This Section 5 applies only if Merchant sells Alcohol Products on the DoorDash Platform.

5.1. Merchant may only offer Alcohol Products for Self-Delivery Orders placed through the DoorDash Platform if Merchant has entered into a Self-Delivery Product Addendum with DoorDash, and, in such event, Merchant represents and warrants that it will not use Flexible Fulfillment or any Dasher delivery fulfillment option for Self-Delivery Orders in Applicable Jurisdictions that do not permit third party delivery fulfillment of orders that contain Alcohol Products.

5.2. Merchant represents and warrants that it will not offer Alcohol Products on the DoorDash Platform during days of the week and times of day during which Merchant is not authorized to sell and deliver Alcohol Products under the applicable Alcohol Laws.

5.3. Merchant will offer Alcohol Products for delivery only to the extent authorized by Merchant’s Alcohol Licenses, and in containers authorized under Merchant’s Alcohol Licenses and the applicable Alcohol Laws, including Alcohol Laws related to the delivery method for Alcohol Products. In no case shall Merchant offer Alcohol Products in “kegs” or other containers the volume of which is 7.75 gallons or more on the DoorDash Marketplace.

5.4. In the event that any government agency or regulatory body provides guidance that any terms of this Alcoholic Beverage Addendum are in violation of, or prohibited by, any Alcohol Laws, such terms shall be deemed to be amended or deleted to conform to such Alcohol Laws. Alternatively, in such circumstances, either Party may terminate this Alcoholic Beverage Addendum upon written notice to the other Party.

6. PAYMENTS AND PROCESSING.

6.1. Customer Payments. For Customer Orders placed on the DoorDash Platform, the Customer’s payment for all Customer Orders containing Alcohol Products shall be processed by a third-party payment processor, and all proceeds for Customer Orders containing Alcohol Products shall be remitted to Merchant.

6.2. Merchant Fees. DoorDash will charge Merchant the fee or rate indicated in the Rate Card for use of the DoorDash Platform for all Orders that are placed in the Applicable Jurisdictions and include Alcohol Products, except that if any Applicable Jurisdiction requires that DoorDash charge a flat fee for its services related to the sale of Alcohol Products through the DoorDash Platform, DoorDash will charge Merchant the applicable fee set forth on Exhibit A.

7. DELIVERY, AGE VERIFICATION, AND RECORDS.

7.1. Upon receipt of a Customer Order on the DoorDash Platform, DoorDash shall transmit the Customer Order to Merchant for Merchant’s review and approval or rejection.

7.2. If a Customer Order is placed for delivery fulfillment through DoorDash, a Dasher will pick up the Customer Order from Merchant’s licensed premises and deliver it only to the delivery address provided by the applicable Customer. Upon delivering a Customer Order, Dashers shall be prompted to: (1) verify that the Customer is at least the legal drinking age in the Applicable Jurisdiction by confirming that the recipient matches the identity of the person who uploaded proof of age at the time of purchase, or by inspecting the recipient’s government-issued ID; and (2) verify that the Customer is not visibly intoxicated.

7.3. If a Customer Order is placed for Self-Delivery, Merchant agrees that its delivery personnel will deliver the Customer Order from Merchant’s licensed premises only to the delivery address provided by the applicable Customer. Upon delivering a Customer Order, Merchant represents and warrants that its delivery personnel will only deliver the Customer Order if the Customer (1) is at least the legal drinking age in the Applicable Jurisdiction; and (2) is not visibly intoxicated.

7.4. If a Customer Order is placed for pick-up at the Merchant’s licensed premises, Merchant represents and warrants that it will only provide the Customer Order to the Customer if the Customer (1) is at least the legal drinking age in the Applicable Jurisdiction; and (2) is not visibly intoxicated.

7.5. Merchant shall maintain and retain Delivery Records in a manner fully compliant with all Alcohol Laws. Merchant shall maintain and retain any Personal Information contained in the Delivery Records in accordance with applicable legislation relating to the privacy or protection or processing of Personal Information (including without limitation the Privacy Act 2020 and any codes of practice issued by the New Zealand Privacy Commissioner from time to time (“Privacy Legislation”)). Merchant further agrees to maintain the confidentiality of all End Customer and recipient data contained in the Delivery Records, to use appropriate technical and organizational safeguards to protect the information against unauthorised access, use and disclosure, and not use such data for any purpose other than to maintain records as required by any Alcohol Laws or as otherwise legally permitted to do so. Merchant agrees to indemnify, defend, and hold harmless DoorDash against all liabilities, damages, and costs incurred by DoorDash as a result of any violation by Merchant of this provision.

7.6. Where required by Alcohol Laws, DoorDash will maintain and retain a register specifying the name and address of each Dasher transporting Alcohol Products.

8. RETURNS. DoorDash shall provide Customers with credits and/or refunds as set forth in the Agreement, as applicable. DoorDash in its discretion shall determine whether to process any returns of Alcohol Products that have been delivered to or picked up by Customers. If DoorDash does not process returns of Alcohol Products, Merchant will handle all customer support issues relating to such returns. If applicable, any refunds will be processed in accordance with DoorDash’s customer support procedures.

9. REPRESENTATIONS AND WARRANTIES. In addition to the representations and warranties set forth in the Agreement and elsewhere in this Alcoholic Beverage Addendum, and notwithstanding anything to the contrary, the Parties make the following representations, warranties, and covenants.

9.1. Mutual. DoorDash and Merchant hereby represent and warrant that each complies and shall continue to comply during the term of the Agreement with all applicable laws necessary for each to perform its obligations under this Alcoholic Beverage Addendum and the Agreement (including, with respect to Merchant, any laws, rules or regulations in the Applicable Jurisdiction(s) that require Merchant to sell Alcohol Products along with food products, or that impose other restrictions or requirements related to the sale of Alcohol Products).

9.2. DoorDash. DoorDash hereby represents and warrants that it shall ensure that Dashers fulfilling Customer Orders that include Alcohol Products: (1) will be at least the legal drinking age in the Applicable Jurisdiction; and (2) will have received materials relating to the delivery of Alcohol Products in accordance with Alcohol Beverage Laws, including verifying that recipients are at least the legal drinking age in the Applicable Jurisdiction and identifying whether individuals are visibly intoxicated.

9.3. Merchant. Merchant hereby represents and warrants that (i) it shall promptly inform DoorDash of any regulatory or governmental inquiry that could reasonably jeopardize Merchant’s legal ability to sell or deliver Alcohol Products or otherwise perform its obligations under this Alcoholic Beverage Addendum; and (ii) it shall ensure that its delivery personnel fulfilling delivery of Customer Orders that include Alcohol Products: (1) will be at least the legal drinking age in the Applicable Jurisdiction; (2) will have received materials relating to the delivery of Alcohol Products in accordance with Alcohol Beverage Laws, including verifying that recipients are at least the legal drinking age in the Applicable Jurisdiction and identifying whether individuals are visibly intoxicated; and (3) will make records available to DoorDash upon request for purposes of DoorDash’s compliance with Alcohol Laws.

10. INDEMNIFICATION. In addition to the indemnities set forth in the Agreement, the Indemnifying Party will defend, indemnify, pay and hold harmless the Indemnified Party from and against any third-party claims arising from the breach of any representations or warranties or covenants made under this Alcoholic Beverage Addendum. Additionally, Merchant assumes all responsibility for, shall bear all liabilities and expenses and shall indemnify and hold DoorDash harmless from all Damages caused by any act or omission by Merchant, including, but not limited to, injury (whether to body, property, personal or business character or reputation) sustained by any person or to any person or to any property relating to the production, sale, and/or delivery of the Alcohol Products which may result from the sale or distribution of the Alcohol Products under this Alcoholic Beverage Addendum (but excluding any Damages solely to the extent they arise from the negligence of DoorDash or any Dasher).

11. LIMITATION OF LIABILITY. THE PARTIES AGREE THAT (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS ALCOHOLIC BEVERAGE ADDENDUM, FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES SUCH AS LOST PROFITS, LOST REVENUE, HARM TO GOODWILL, THE COSTS OF PROCURING REPLACEMENT SERVICES, OR COSTS OF TRAINING EMPLOYEES OR CONTRACTORS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE, AND (B) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS ALCOHOLIC BEVERAGE ADDENDUM SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY UNDER THIS ALCOHOLIC BEVERAGE ADDENDUM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM. THIS LIMITATION WILL APPLY TO ALL CLAIMS UNDER ALL THEORIES OF LAW AND EQUITY, EXCEPT WHERE PROHIBITED BY LAW.

12. TERMINATION. This Alcoholic Beverage Addendum may be terminated pursuant to the terms of the Terms of Service.

13. CONFLICT. If there is a conflict between the provisions of this Alcoholic Beverage Addendum and the Agreement, the provisions of this Addendum will control.

EXHIBIT A

ALCOHOL PRODUCTS PLATFORM FEES

For Customer Orders placed at Merchant Locations in Applicable Jurisdictions that require a flat fee for DoorDash’s services with respect to Alcohol Products, the following Alcohol Products Platform Fees will apply: