Merchant Terms of Service - NZ - English (Section 1 - 9)
Each product addendum can be viewed at the respective URLs immediately below:
● Alcoholic Beverage Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-alcohol
● Drive Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-drive
● Flexible Fulfillment Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-flexible
● Marketplace Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-marketplace
● Self-Delivery Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-self-delivery
● Storefront Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-storefront
Effective: 13 July 2022
BEFORE YOU USE THE DOORDASH MARKETPLACE, PICKUP, STOREFRONT, DOORDASH DRIVE, SELF-DELIVERY, OR ANY OTHER DOORDASH PRODUCT OR SERVICE PLEASE READ THESE TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH DOORDASH OR USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AS STATED IN THE SIGN-UP SHEET AND ALL OF YOUR PARTICIPATING MERCHANT LOCATIONS ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET OR STOREFRONT ORDER ADDENDUM.
These Terms of Service, together with the Sign-Up Sheet, the applicable Product Addenda, and other attachments or exhibits hereto, (the “Agreement”) between DoorDash and Merchant is effective as of the date that you enter into the Sign-Up Sheet with DoorDash. In the event of a conflict between any of the terms in this Terms of Service, a Product Addendum, and/or the Sign-Up Sheet, the conflict will be construed in the following order of precedence: 1) Section 15 (Additional Terms for Non-Enterprise Merchants), 2) Product Addenda, 3) any other term in these Terms of Service, 4) Sign-Up Sheet.
1. PREAMBLE. DoorDash provides a suite of products, services, and technology solutions to enable merchants to grow their businesses, including online marketplace(s), white label fulfillment, demand generation, certain promotions or marketing services, and warehousing, among others. Merchants are restaurants, grocery stores, and/or businesses that sell products to consumers. DoorDash and Merchant wish to enter into a partnership pursuant to the terms set forth in this Agreement. Merchant may opt into certain DoorDash Products by entering into the applicable Product Addendum. This Agreement applies to all Merchant Locations owned or operated by Merchant, unless excluded in an attached exhibit or mutually agreed in writing. For Merchants operating a franchisee or similar structure, please refer to Section 14.11.
2. OPERATING PROCEDURES.
2.1. DoorDash Responsibilities. DoorDash will perform the obligations listed in the applicable Product Addenda.
2.2. Merchant Responsibilities. Merchant will: (a) perform the obligations listed in the applicable Product Addenda; (b) notify DoorDash of its days and hours of operation, including on holidays; and (c) notify relevant Merchant Location staff members of the relationship with DoorDash, and train staff members on receiving and fulfilling DoorDash Orders as soon as practicable upon execution of this Product Addendum and on an ongoing basis.
2.3. Malware. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products or services (including the applicable DoorDash Product and/or Merchant Application) any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.
2.4. Hours of Operation. DoorDash will only accept Orders during the operating hours for the applicable DoorDash Product, which may vary by Merchant Location and will be separately communicated to Merchant.
2.5. Delivery Areas. To ensure delivery quality, DoorDash will only accept Orders to be delivered within a certain preset delivery area. DoorDash will separately communicate to Merchant the maximum delivery area applicable to Merchant and/or each Merchant Location.
2.6. This paragraph applies only if Merchant uses a Third Party Platform. During the Term, DoorDash will be Merchant’s sole preferred provider and/or have the right of first refusal (“Preferred Provider”) for all Orders that are located within DoorDash’s service area. Both Parties acknowledge that this provision does not conflict with, or result in a breach or default of, any previously existing agreements, terms, or conditions to which such Party may be bound, such as an exclusivity agreement or most favored nation clause.
2.7. This paragraph applies only if the DoorDash Platform is Merchant’s Exclusive Platform. If the DoorDash Platform is designated as Merchant’s Exclusive Platform, Merchant agrees it will neither contract with any other third-party food ordering and/or delivery provider or platform, nor otherwise permit or consent to Merchant’s inclusion in any third-party food ordering and/or delivery provider or platform. Furthermore, Merchant agrees that it will make best efforts to block and/or reject orders placed with Merchant Locations by any other third-party food ordering and/or delivery provider or platform. Merchant will demonstrate to DoorDash that it has used commercially reasonable efforts to request such third-party food ordering and/or delivery provider or platform to take down Merchant's Locations from its platform.
2.8. Modifications. DoorDash reserves the right, at its sole discretion, to change, suspend, or discontinue any DoorDash Product (including the availability of any feature or content) at any time. Merchant shall not list or include any Merchant Products or Locations that subject DoorDash to undue regulatory risk, health and safety risk, or other liability. Any such Merchant Products or Locations are subject to removal by DoorDash. If applicable, DoorDash may, at its sole discretion, remove any Merchant virtual brand concept from the DoorDash Product, if DoorDash determines that such virtual brand concept does not meet and maintain certain eligibility requirements as communicated by DoorDash, provided, however, that DoorDash shall use commercially reasonable efforts to inform Merchant of such removal.
2.9. Redelivery. 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 an additional delivery.
3. PAYMENTS. Merchant agrees to pay the Fee(s) as agreed in the Product Addendum and as described in the Rate Card for the applicable DoorDash Product. Except as expressly set forth in this Agreement, each Party is responsible for its own costs. Merchant agrees to communicate to DoorDash any Dispute, disagreement, or issue with a transaction, Fee, or Order, including those made in connection with fraudulent transactions or payments, within 14 days of the applicable transaction, Fee, or Order. All dollar amounts (including any fees, charges, prices or amounts payable or receivable) listed in these Terms of Service are (a) in New Zealand dollars, and (b) stated on a plus GST (if any) basis, except where noted. GST will be payable in addition to and at the same time as any amounts payable under these Terms of Service.
4. TAXES.
4.1. Merchant is responsible for all taxes (including GST), duties, and other governmental charges on the sale of Merchant Products under this Agreement, and remitting such taxes, duties, and other governmental charges to the appropriate authorities. To the extent that DoorDash may be required to collect GST or any other taxes from the Customer and remit such taxes directly to the tax authority, DoorDash will inform Merchant that DoorDash will remit any applicable taxes to the tax authority and DoorDash will be relieved of any responsibility to remit such applicable taxes to Merchant. Additional terms related to the Parties’ respective tax obligations may be set forth in the applicable Product Addendum.
4.2. Merchant represents and warrants that Merchant is registered for GST, and will remain registered for GST, at all times during the Term.
4.3. Merchant is the “retailer” or “supplier” of Merchant Products for purposes of GST, and Merchant is responsible for remitting all GST and any other applicable taxes and other governmental charges on the sale of food/products. Merchant is responsible for setting the price (including GST) for each Merchant Product to be made available on the DoorDash Platform. The prices communicated to DoorDash will be the end prices payable by the consumer. For each Merchant Product, Merchant will provide to DoorDash information on the applicable tax amounts and rates included in the prices, including GST. Merchant is responsible for providing DoorDash New Zealand with the price inclusive of GST for each item to be made available on the DoorDash Platform. Merchant shall provide the applicable rates for GST and any other applicable taxes and other governmental charges. If Merchant does not provide the applicable rates for GST and any other applicable taxes and other governmental charges, Merchant expressly authorizes DoorDash to make this provision on its behalf, and hereby confirms that DoorDash assumes no liability for the accuracy of this provision. If the Merchant provides the applicable rates for GST and any other applicable taxes and other governmental charges after DoorDash made the provision on behalf of the Merchant, DoorDash will endeavor to apply such rate change requested by the Merchant as soon as possible after receiving the request from the Merchant; the change will not be retroactive. Merchant acknowledges that Customer may purchase Merchant Product through the DoorDash Platform using credits in the Customer’s DoorDash account associated with a gift card purchased from DoorDash (and, if Merchant uses Self-Delivery, that Customer may use such credits to purchase services provided by Merchant for Self-Delivery Orders). Merchant and DoorDash agree, for GST purposes, that the supply of goods and services made by Merchant to Customer which the Customer pays for (in whole or in part) by using the gift card credit will be treated as a taxable supply, and not the prior issuance of the gift card by DoorDash.
4.4. Merchant Invoice. DoorDash will issue Merchant with a tax invoice in accordance with the GST Act, or in the event that the GST Act no longer requires a tax invoice to be issued, alternative taxable supply information that complies with the GST Act, with respect to Fees payable by the Merchant as such Fees become payable by the Merchant.
4.5. Customer Invoice. Merchant is responsible for providing Customer with a tax invoice in accordance with the GST Act, or in the event that the GST Act no longer requires a tax invoice to be issued, alternative taxable supply information that complies with the GST Act, with respect to the Merchant Products sold on the DoorDash Platform, if requested by Customer.
4.6. To the extent legally permissible, DoorDash may send or transfer any documentation or information electronically to Merchant.
5. LICENSE.
5.1. Use of DoorDash Products. During the Term, DoorDash grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, and fully paid-up license to access the DoorDash Product solely to transmit information to facilitate deliveries or pick up in accordance with the terms of this Agreement. DoorDash owns and retains all rights, title, and interest in DoorDash IP.
5.2. DoorDash Product Restrictions. Merchant will not and will not permit or authorize any third party to: (a) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the DoorDash Product; (b) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the DoorDash Product; (c) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the DoorDash Product unless such actions are authorized by compulsory provisions of applicable law; (d) use the DoorDash Product in any manner or for any purpose that violates any Law; and (e) use the DoorDash Product for a reason other than as specifically provided or intended under this Agreement (which includes the applicable Product Addendum).
5.3. Merchant Content and Trademark; Photographs of Merchant Products.
5.3.1. Merchant grants to DoorDash a royalty-free, non-exclusive, limited, revocable, and non-transferable right and license to use and display the Merchant Content in the provision of services to Merchant, including, where applicable, listing Merchant as a merchant on the DoorDash Product, referencing Merchant as a DoorDash partner, promoting DoorDash’s products and services, and sharing Merchant Content with third parties, including third party services which enable DoorDash Customers to access DoorDash Products (including its web pages) for Orders.
5.3.2. If photographs of Merchant Products are not available or if they do not meet DoorDash’s requirements, as reasonably determined by DoorDash, then Merchant consents to DoorDash: (i) engaging a professional photographer to take photographs of Merchant Products or other products; (ii) enhancing the quality of Merchant’s existing photographs; (iii) using stock photographs of the Merchant Products or other products; and/or (iv) using photographs from Merchant’s website or social media channels, and displaying such photographs on the applicable DoorDash Product as representations of Merchant Products; provided that Merchant may contact DoorDash support to have such photographs removed from the Merchant’s store listing and, in such event, DoorDash will comply in a timely manner.
5.4. Goodwill. If Licensee, in the course of performing this Agreement, acquires any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Licensor: (a) when and as such acquisition of goodwill or reputation occurs; (b) at the expiration or termination of this Agreement; and (c) without any separate payment or other consideration of any kind to Licensee. Licensee agrees to take all such actions reasonably necessary to effect such vesting. Licensee will not contest the validity of any of the Marks or Licensor’s exclusive ownership of them. During the Term, Licensee will not adopt, use or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of the Marks or any word or mark confusingly similar to them in any jurisdiction. As it pertains to DoorDash, DoorDash’s parent company (if applicable) may be considered a “Licensor” hereunder. This Section 5 is intended to be for the benefit of, and enforceable by, DoorDash’s parent company for the purposes of Part 2, Subpart 1 of the Contract and Commercial Law Act 2017.
5.5. Feedback. Merchant may provide DoorDash with Feedback. Merchant hereby grants and agrees to grant DoorDash all rights, title, and ownership of such Feedback on an unrestricted basis.
5.6. Retention of Title. Merchant acknowledges that notwithstanding any Order Equipment being provided by DoorDash to the Merchant for use by the Merchant that ownership and title to the Order Equipment will remain with DoorDash at all times and that the retention of title in the Order Equipment gives rise to a security interest (as defined under the Personal Property Securities Act 1999) (PPSA) in all Order Equipment supplied by DoorDash to Merchant pursuant to the addendum. Merchant undertakes to promptly do all things, execute all documents and/or provide any information which DoorDash may reasonably require to enable DoorDash to perfect and maintain the perfection of its security interest in the Order Equipment (including by registering a financing statement), give DoorDash not less than 14 days’ prior written notice of any proposed change in its name and/or any other change of its details, and immediately on request by DoorDash (and at Merchant’s expense) obtain from any third party such agreements and waivers of any security interest that any third party may have in relation to the Order Equipment to ensure that at all times DoorDash has a first ranking security interest in the Order Equipment. Merchant waives its rights to receive a copy of any verification statements under the PPSA and agrees that as between DoorDash and Merchant, Merchant will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the PPSA; and where DoorDash has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
6. TERM AND TERMINATION.
6.1. Term. The Agreement will begin on the Effective Date and continue until terminated in accordance with this Agreement, or once all Product Addenda hereunder have terminated or expired, whichever is earlier.
6.2. Termination. Either Party may terminate this Agreement or any Product Addendum for any reason at any time upon seven (7) days’ prior written notice to the other Party. Either Party may terminate this Agreement immediately, (a) in the event of a material breach by the other Party or (b) if the other Party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. If either Party terminates the Agreement, all Product Addenda shall automatically terminate.
6.3. Survival. Sections 3 (Payments), 4 (Taxes), 5 (License), 6 (Term and Termination), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Data Privacy and Security), 13 (Governing Law, Arbitration, Class Action Waiver), and 14 (Miscellaneous) and rights and obligations in this Agreement which, by their nature, should (or by their express terms do) survive or extend beyond the termination or expiration of this Agreement, shall so survive and extend.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Mutual Representations and Warranties. 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, including any Product Addendum; (b) its performance of its obligations under this Agreement will not result in a breach of any obligation to any third party; (c) such Party’s Marks and materials owned, licensed, developed or used in performance of this Agreement do not knowingly infringe or violate any third-party intellectual property right; (d) it will obtain any necessary permits, consents, certificates, approvals, inspections, releases, authorizations, and licenses and/or file any registration forms (if any) in connection with performing its obligations under this Agreement; and (e) it will comply with all applicable law, regulations, and rules in operating its business and performing its responsibilities hereunder (including, if applicable to Merchant, all such Laws regarding health, food safety, sanitation, food packaging and labeling, including required consumer-facing warnings and calorie information).
7.2. Merchant. Merchant represents and warrants that: (a) it will inform DoorDash of any warnings, charges, opt-ins, and instructions related to Merchant Products that become required in the future; (b) if applicable, it will disclose common allergens in any Merchant Products items listed on or sold through the DoorDash Product; (c) it will not include any age-restricted products (including to alcohol and tobacco) in as a Merchant Product available on a DoorDash Product, or request delivery of any age-restricted products through the DoorDash Product without first entering into a separate agreement with DoorDash memorializing the promotion, sale, and delivery of such products in compliance with the Laws of the applicable jurisdiction in which such products will be sold; (d) it will not disclose any information related to a Dasher or a DoorDash Customer to a third party (except as required to comply with Law or pursuant to a court order); and (e) it will comply with the guidelines DoorDash publishes that govern any Merchant Content posts on the applicable DoorDash Product or Merchant Portal.
7.3. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1(c), TO THE EXTENT PERMITTED BY APPLICABLE LAW, DOORDASH HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY DOORDASH PRODUCT, AND EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS IMPLIED, OR STATUTORY RELATED TO EQUIPMENT OR SERVICES PROVIDED TO THE OTHER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. Merchant acknowledges that it is acquiring DoorDash’s services in trade for the purposes of section 43(2) of the Consumer Guarantees Act 1993 (“CGA”) and section 5D of the Fair Trading Act 1986 (“FTA”), and that Merchant will not assert or attempt to assert any rights or claims against DoorDash under the provisions of the CGA, or sections 9, 12A and 13 of the FTA.
7.4. Remedies. In the event of a breach of Section 7.1(c), the non-breaching Party’s sole remedy, and the breaching Party’s sole liability, is indemnification pursuant to Section 8.1(d).
8. INDEMNIFICATION.
8.1. Indemnification. The Indemnifying Party will, at its own expense defend the Indemnified Party to the fullest extent permitted by Law, and also indemnify the Indemnified Party for any and all Losses arising out of any third-party claim that alleges or results from: (a) any breach of Section 7 by the Indemnifying Party or its Personnel; (b) the gross negligence or more culpable act or omission of the Indemnifying Party or Personnel (including any reckless misconduct) in connection with the performance of this Agreement; and (c) infringement or misappropriation of the intellectual property rights of any third party by the Indemnifying Party’s services (including, in the case of DoorDash, the DoorDash Product, and in the case of Merchant, the Merchant Applications) or Marks.
8.2. Process. The Indemnified Party shall provide the Indemnifying Party with: (a) prompt notice of any claims, which in no event shall be later than thirty (30) calendar days after the Indemnified Party knew or reasonably should have known that the Indemnifying Party’s defense obligation had been triggered; (b) the option to assume sole control over defense and settlement of any claim; and (c) reasonable assistance in connection with such defense and settlement of the claim, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense and settlement at its own expense. The Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent.
8.3. Exclusions. Notwithstanding Section 8.1(d) and for clarity: (a) the Indemnifying Party shall have no duty to defend any third-party allegations of intellectual property infringement or misappropriation (an “IP Claim”) arising out of or related to the conduct of persons or entities other than the Indemnifying Party or its Personnel; and (b) in the case of DoorDash, DoorDash shall have no duty to defend an IP Claim to the extent such IP Claim would not have occurred without Merchant’s use of the DoorDash Product in combination with a Merchant Application, or other Merchant-provided product, process, step, structure, data, or business method, and/or Merchant’s unauthorized modification of the DoorDash Product. Notwithstanding Section 8.1(a), DoorDash shall have no duty to defend or Indemnify Merchant for taxes, duties, and other governmental charges.
9. LIMITATION OF LIABILITY.
9.1. Direct Damages Only. Except with respect to amounts payable to third parties under Section 8, neither Party will be liable to the other for consequential, special, incidental, punitive, exemplary, or indirect damages or for lost profits, lost revenues, harm to goodwill, or the costs of procuring replacement services, regardless of whether such damages were foreseeable. This limitation will apply to all claims under all theories of law and equity, except where prohibited by Law.
9.2. Limitation. Except in the event of a Party’s gross negligence or willful misconduct, or payment obligations, and where prohibited by Law (collectively, the “LOL Exclusions”) or a Party’s indemnification obligations in this Agreement, the total liability of either Party to the other will not exceed $500,000.00. The total liability of either Party to the other for the LOL Exclusions will not exceed $2,000,000.00. For clarity, a Party’s obligation to pay third parties under Section 8 are uncapped.
9.3. Franchisees. For Merchants operating a franchise or similar structure, this limitation of liability applies to all Merchant Locations and all franchisees cumulatively and not individually.
