Merchant Terms of Service - NZ - English (EXHIBIT A)
EXHIBIT A - FRANCHISEE AGREEMENT
This Franchisee Agreement (the “Franchisee Agreement”) is between DoorDash and Franchisee. As it pertains to this Franchisee Agreement, DoorDash and Franchisee are each a “Party”. By entering into a Franchisee Sign-Up Sheet with DoorDash, the duly authorized representatives of the Parties agree to the terms and conditions of this Franchisee Agreement.
1. FRANCHISOR AGREEMENT. Franchisee’s franchisor (“Franchisor”) has entered into a master services agreement with DoorDash ("Agreement"), which may be attached hereto. The Agreement provides that Franchisee may elect to use certain DoorDash Products that Franchisor has enabled in its Agreement, provided that Franchisee executes this Franchisee Agreement. Accordingly, to use such in DoorDash Products, Franchisee agrees to be subject to all terms and conditions of this Franchisee Agreement and all terms and conditions of the Agreement, including any Product Addendum, as the same may be amended from time to time by DoorDash and Franchisor, which are incorporated into this Franchisee Agreement by reference. For clarity, unless otherwise indicated in this Franchisee Agreement or in the Agreement, all references to “Merchant” in the Agreement include Franchisee. Franchisee acknowledges and agrees that the limits set forth in the Limitation of Liability provision in the Agreement shall apply to Franchisor and all franchisees in the aggregate. All references to “Merchant Locations” shall be deemed references to Franchisee’s stores (“Franchisee Locations”). Any other terms not otherwise defined herein shall have the definitions set forth in the Agreement. Under no circumstances shall anything in this Franchisee Agreement be construed to authorize Franchisee to amend, modify, or adjust the Agreement between DoorDash and Franchisor.
2. TERM OF FRANCHISEE AGREEMENT. This Franchisee Agreement shall commence on the Franchisee Effective Date and will expire upon the earlier of: (a) the date of the expiration or termination of the Agreement; or (b) the date this Franchisee Agreement is terminated pursuant to Section 3 of this Franchisee Agreement.
3. ELIGIBLE FRANCHISEE. If Franchisee ceases to possess the rights as a franchisee of Franchisor then this Franchisee Agreement will terminate as soon as DoorDash is notified of such rights being lost. Either Party may terminate this Franchisee Agreement upon seven (7) days’ prior written notice to the other Party for any reason in its sole discretion. Termination of this Franchisee Agreement will not be considered a breach of this Franchisee Agreement or the Agreement. Nothing in this Franchisee Agreement or the Agreement is intended to prevent DoorDash and Franchisee, if it is no longer an Eligible Franchisee, from entering into a new agreement following termination of this Franchisee Agreement.
4. MERCHANT OF RECORD. Franchisee is solely responsible and liable to DoorDash to pay all Fees, payments, charges, and taxes associated with DoorDash Products, in addition to complying with Franchisee’s other obligations under the Agreement and this Franchisee Agreement. Franchisee will be DoorDash’s merchant of record for sales completed in a DoorDash Product provided under this Franchisee Agreement. The Parties acknowledge and agree that any breach of this Franchisee Agreement or the Agreement by Franchisee will not be considered a breach by Franchisor of the Agreement.
5. PAYMENT PROCESSING. Payment and payment processing terms are set forth in the Product Addendum between Franchisor and DoorDash. If Franchisee uses Connected Account Products, Attachment A attached hereto is required.
6. GOVERNING LAW, ARBITRATION, CONSOLIDATED ACTIONS WAIVER.
6.1. Governing Law and Arbitration. This Agreement is governed by New Zealand law. The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement. To the extent relevant, the parties agree that the provisions of the United Nations Convention on Contracts for the International Sales of Goods will not apply to this Agreement.
6.2. Arbitration Agreement. Any Dispute shall be finally resolved by binding arbitration except claims: (a) in small claims court, so long as the matter advances only on an individual (non-class, non-representative) basis; and (b) for injunctive relief arising out of the infringement or other misuse of intellectual property rights (such as a Party’s Marks or DoorDash IP). Any reference to arbitration under this clause will be deemed a submission to arbitration within the meaning of the Arbitration Act 1996. The Parties further agree that any and all arbitration proceedings, including any discovery, hearings and rulings, shall be confidential to the fullest extent permitted by Law provided that if the parties involved in any Dispute are unable to agree on an arbitrator within five (5) business days after delivery by one party to the other of any written notice setting out the Dispute and requiring the matter in Dispute to be referred to arbitration by a single arbitrator in accordance with this clause, either party may by written notice request that an arbitrator be appointed by the President of the New Zealand Law Society, whose appointment will be binding on the parties. Judgment on the resulting award may be entered in any court having jurisdiction. This arbitration agreement explicitly supersedes any and all different or contradictory terms included in the Agreement. This arbitration agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement, and explicitly supersedes any and all different or contradictory terms included in the Agreement.
6.3. Consolidated Actions Waiver. To the extent allowed by Law, separate and apart from Section 6.2, Franchisee agrees that any proceeding to litigate in court any Dispute arising out of or relating to this Agreement will be conducted solely on an individual basis, and Franchisee agrees not to seek to have any controversy, claim or Dispute heard as on a class, representative, or collective basis (“Consolidated Actions Waiver”). Franchisee further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all Parties to any such proceeding. The enforceability of this Consolidated Actions Waiver shall only be determined by a court of competent jurisdiction. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void, or voidable with respect to a particular claim or Dispute, then all such claims or Disputes will be resolved in court, after the conclusion of the arbitration of any arbitrable claims or Disputes, and the remainder of this Section 6.3 shall remain in full force and effect. The Parties also waive the right to bring any claims for public injunctive relief. If, however, this waiver of public injunctive relief claims is deemed invalid or unenforceable with respect to a particular claim or Dispute, then all such claims and Disputes will then be resolved in arbitration.
6.4. Fees. In the event of any Dispute, the Party prevailing in such Dispute shall be entitled to collect from the other Party all costs incurred in such Dispute, including administrative, attorneys’ fees, costs of collection, and filing fees and the arbitrator’s fees and costs.
7. CHANGE OF CONTROL. In the event there is a change or transfer in ownership of a Franchisee Location, Franchisee agrees that Franchisee will (1) notify DoorDash thirty (30) days prior to such change or transfer of ownership and (2) provide DoorDash with all relevant details related to the change or transfer of ownership, including the new owner’s contact information, the date of the change or transfer of ownership, and the relevant terms of the change or transfer of ownership (i.e., the existing amounts owed to DoorDash related to such Franchisee Location). In order for DoorDash to provide services to any new owner of a Franchisee Location, any amounts owed to DoorDash must be fully paid. DoorDash may elect, in its sole discretion, to perform a credit review on a new owner before providing services to such new owner.
8. MISCELLANEOUS. Notices under this Franchisee Agreement to each Party shall be sent to the respective address and contact set forth above. This Franchisee Agreement, including the incorporated Agreement, sets forth the entire agreement between DoorDash and Franchisee with respect to the subject matter hereof. This Franchisee Agreement supersedes and replaces in its entirety any agreement entered into between DoorDash and Franchisee for the Franchisee Locations prior to the Franchisee Effective Date.
