Merchant Terms of Service - US - English (Section 12 - 25)

12. INSURANCE.

12.1. General. The insurance amounts indicated are minimum requirements and not limits of liability, and they are not to be construed as a Party’s consent to substitute its financial liability in excess of the amounts provided in Section 9.

12.2. Minimum Requirements.

12.2.1. For Merchants with greater than $1,000,000.00 in annual sales across all DoorDash Product(s), each Party will maintain at its sole cost and expense: (a) worker's compensation and employers’ liability insurance with limits no less than the minimum amount required by applicable law for each accident, including occupational disease coverage; (b) commercial general liability insurance, including product liability, and excess liability endorsements of $1,000,000.00 per occurrence; (c) cybersecurity insurance up to $2,000,000.00 per claim and in the aggregate; and (d) umbrella/excess liability insurance up to $5,000,000.00 and in the aggregate.

12.2.2. For Merchants with less than $1,000,000.00 in annual sales across all DoorDash Product(s), each Party will maintain at its sole cost and expense: (a) worker's compensation and employers’ liability insurance with limits no less than the minimum amount required by Law for each accident, including occupational disease coverage; (b) commercial general liability insurance, including product liability, and excess liability endorsements of $1,000,000.00 per occurrence; (c) cybersecurity insurance up to $1,000,000.00 per claim and in the aggregate; and (d) umbrella/excess liability insurance up to $2,000,000.00 and in the aggregate.

12.3. Automobile Liability Insurance. In addition, DoorDash may maintain automobile liability insurance covering DoorDash and Dashers (regardless of whether the vehicles driven by such Dashers are owned by DoorDash, Dashers or a third party) of $1,000,000.00 per occurrence. DoorDash will require all Dashers to maintain a current and valid automobile insurance policy with limits of liability at least equal to any minimum limits of liability required under Law.

12.4. Coverage. The policy limits stated above may be met in the form of primary and umbrella/excess coverage. Such insurance is primary and not contributory with the other Party’s insurance.

13. GOVERNING LAW & DISPUTE RESOLUTION.

PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH DOORDASH AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”

13.1. Governing Law and Arbitration. This Agreement is governed by and interpreted in accordance with the laws of the State of Delaware without regard to the conflicts of laws principles thereof.

13.2. Scope of 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). DoorDash and Merchant agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration Agreement shall apply to all Disputes and shall be binding upon and enforceable by not only the parties, but also their affiliates, subsidiaries, and their respective owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST DOORDASH—AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH DOORDASH, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST DOORDASH IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.

13.3. Informal Resolution. You and DoorDash agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and DoorDash therefore agree that, before either you or DoorDash demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify DoorDash that you intend to initiate an informal dispute resolution conference, email [email protected], providing your name, telephone number associated with your DoorDash account (if any), the email address associated with your DoorDash account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

13.4. Arbitration Rules and Forum. This arbitration agreement shall be governed by the Federal Arbitration Act in all respects. If the rules and procedures of the Federal Arbitration Act cannot apply, the state law governing arbitration agreements in the state of the Merchant Location most closely associated with the Dispute shall apply. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration and certifying completion of the informal dispute resolution conference pursuant to paragraph 19(b). If this notice is being sent to DoorDash, it must be sent by email to the counsel who represented DoorDash in the informal dispute resolution process, or if there was no such counsel then by mail to General Counsel, at 303 2nd Street, South Tower, Suite 800, San Francisco, CA 94107. The arbitration will be conducted by ADR Services, Inc. pursuant to the most current version of its rules available at https://www.adrservices.com/services/arbitration-rules/ and pursuant to the terms of this Agreement. In the event of a conflict between the two, the provisions of this Arbitration Agreement shall supersede any and all conflicting arbitration administrator’s rules or procedures. Arbitration demands filed with ADR Services, Inc. must include (1) the name, telephone number, mailing address, and e-mail address of the party seeking arbitration; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good-faith calculation of the amount in controversy, enumerated in United States Dollars (any request for injunctive relief or attorneys’ fees shall not count toward the calculation of the amount in controversy unless such injunctive relief seeks the payment of money); and (4) the signature of the party seeking arbitration. The fees that shall apply to arbitrations administered by ADR Services, Inc. are set forth on ADR Services, Inc.’s website, available as of June 23, 2022 at https://www.adrservices.com/rate-fee-schedule/. Payment of all filing, administration, and arbitration fees will be governed by ADR Services, Inc.’s General Fee Schedule and ADR Services, Inc.’s rules. However, if required by law, DoorDash will pay the portion of the initial case opening fees (if any) that exceeds the filing fee to file the case in a court of competent jurisdiction embracing the location of the arbitration. If ADR Services, Inc. is not available to arbitrate, the parties will mutually select an alternative arbitral forum. You may choose to have the arbitration conducted by telephone, video conference, based on written submissions, or in person in the county where you live or at another mutually agreed location. To the extent there is a dispute over which arbitration provider shall administer the arbitration, only a court (and not an arbitrator or arbitration administrator) can resolve that dispute, and the arbitration shall be stayed until the court resolves that dispute. The parties agree that all of the arbitration proceedings, including any discovery, hearings, and rulings, shall be confidential to the fullest extent permitted by law. If at any time the arbitrator or arbitration administrator fails to enforce the terms of this Arbitration Agreement, either party may seek to enjoin the arbitration proceeding in court, and the arbitration shall automatically be stayed pending the outcome of that proceeding.

13.5. Arbitration Appeal. If the arbitration award includes any injunction or a monetary award that exceeds $100,000, then either party shall have the right to appeal that award to an arbitration appellate panel. The notice of appeal must be served, in writing, on the opposing party within fourteen (14) days after the award has become final. ADR Services shall administer the appeal consistent with the JAMS Optional Arbitration Appeal Procedures, available as of June 23, 2022 at https://www.jamsadr.com/appeal/.

13.6. Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable, except with respect to the Waiver of Class or Consolidated Actions, the enforceability of which can only be determined by a court. All disputes regarding the payment of arbitrator or arbitration-organization fees including the timing of such payments and remedies for nonpayment, shall be determined exclusively by an arbitrator, and not by any court or arbitration administrator. The arbitration will decide the rights and liabilities, if any, of you and DoorDash. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and DoorDash subject to Section 13.5.

13.7. Waiver of Jury Trial. YOU AND DOORDASH WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and DoorDash are instead electing to have all Disputes resolved by arbitration, except as specified in Section 13.2 above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

13.8. Waiver of Class or Consolidated Actions; Severability. YOU AND DOORDASH AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class, consolidated, and representative actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor DoorDash is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 14.1, after the conclusion of the arbitration of any arbitrable claims, and all other provisions of this Section 13 (Dispute Resolution) shall remain in force. 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. Notwithstanding any other provision in this Agreement, any claim that all or part of this Waiver of Class or Consolidated Actions is unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. If any provision of this Section 13 is adjudged to be void or otherwise unenforceable, in whole or in part, the void or unenforceable provision shall be severed and such adjudication shall not affect the validity of the remainder of this Section 13. Nothing in this provision shall prevent you or DoorDash from participating in a class-wide, collective, or representative settlement of claims.

13.9. Opt Out. DoorDash’s updates to these Terms of Service do not provide a new opportunity to opt out of the Arbitration Agreement if you had previously agreed to a version of DoorDash’s Terms of Service and did not validly opt out of arbitration. DoorDash will continue to honor the valid opt outs of merchants who validly opted out of the Arbitration Agreement in a prior version of the Terms of Service. If you create a DoorDash account for the first time on or after June 23, 2022, you may opt out of this Arbitration Agreement. If you do so, neither you nor DoorDash can force the other to arbitrate as a result of this Agreement. To opt out, you must notify DoorDash in writing of your intention to opt out by sending a letter, by First Class Mail, to DoorDash, Inc., 303 2nd Street, South Tower, Suite 800, San Francisco, CA 94107. Any attempt to opt out by email will be ineffective. To be effective, your opt-out notice must be postmarked by the later of 30 days after this Terms of Service update or 30 days after your first order on the Platform. Your notice must include your name and address, your DoorDash username (if any), the email address you used to set up your DoorDash account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. The letter may opt out, at most, only one merchant, and letters that purport to opt out multiple merchants will not be effective as to any. No merchant (or his or her agent or representative) may effectuate an opt out on behalf of other persons. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us.

13.10. Survival. This Arbitration Agreement will survive any termination of your relationship with DoorDash.

13.11. Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if DoorDash makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to DoorDash.

14. MISCELLANEOUS.

14.1. Litigation Class Action Waiver. To the extent allowed by Law, separate and apart from the Arbitration Agreement found in Section 13, Merchant agrees that any proceeding to litigate in court any Dispute, whether because Merchant opted out of the Arbitration Agreement or any other reason, will be conducted solely on an individual basis, and Merchant agrees not to seek to have any controversy, claim or Dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”) . Merchant 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 Litigation Class Action 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 Arbitration Agreement shall remain in full force and effect.

14.2. Relationship of the Parties. Notwithstanding any provision herein to the contrary, each Party is an independent contractor with respect to its performance of its obligations hereunder. Nothing contained herein is deemed to create the relationship of partnership, principal, and agent, or joint venture between the Parties. Neither Party has any right or authority to incur obligations of any kind in the name of, or for the account of, the other Party nor to commit or bind the other Party to any contract or other obligation. Under no circumstances is either Party considered to be, nor will either Party hold itself out as, an employee, agent, franchisee, or joint venturer of the other Party.

14.3. Regulatory Fees. If there is a Change in Law, DoorDash may pass through such fees and/or costs generated as a result of the Change in Law to Merchant in the affected jurisdiction(s) with 15 days’ written notice. Merchant may terminate this Agreement in part with respect to the affected jurisdiction by providing DoorDash with 15 days’ written notice from the date of DoorDash’s notice. Notwithstanding the foregoing, either Party may exercise its termination rights hereunder, either in whole or in part as it pertains to the affected store or jurisdiction.

14.4. Partner Code of Conduct. Merchant will comply with the version of the Partner Code of Conduct published as of the Effective Date at the following hyperlink: https://www.doordash.com/partner/code-of-conduct, or such other internal code of conduct in effect with Merchant, that Merchant affirms substantially conforms with the Partner Code of Conduct. DoorDash shall also comply with the Partner Code of Conduct.

14.5. Counterparts. This Agreement may be executed in one or more counterparts and signed copies may be delivered by email, in which event, each of which is deemed an original, and all of which together constitute one agreement.

14.6. Entire Agreement. This Agreement represents the entire agreement between DoorDash and Merchant with respect to the subject matter hereof, and supersedes all prior agreements with respect to the subject matter hereof.

14.7. No Waiver. No amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both Parties. The waiver by any Party of any breach or default will not constitute a waiver of any different or subsequent breach or default.

14.8. Assignment. Neither Party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other Party, which consent may not be unreasonably withheld, and any attempted assignment without such consent will be void; provided that either Party may assign this Agreement without such consent, to an Affiliate, or in connection with any merger, consolidation, sale of all or substantially all of the assigning Party’s assets, or any other similar transaction. Subject to the foregoing in this Section 14.8, this Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each Party. This Agreement will not confer any rights or remedies upon any person other than the Parties, their respective successors, and permitted assigns.

14.9. Enforcement. 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 herein.

14.10. Notices. Legal notices to either Party shall be sent to the applicable address on the first page of the Sign-Up Sheet, or such other address as the Party communicates in writing.

14.11. Promotional Programs; Future Program Changes. This Section 14.11 applies only if Merchant operates a franchisee or similar structure.

14.11.1. Future Program Changes. From time to time during the Term, Merchant and DoorDash may desire to implement efficient enrollment processes that will enable Eligible Franchisees to participate in new DoorDash products, promotions or services and/or effect changes to the commercial terms pursuant to which DoorDash provides its services to such Eligible Franchisees (“Future Program Changes”).

14.11.2. To the extent that Merchant is responsible for enrolling Eligible Franchisees to Future Program Changes, DoorDash agrees that Merchant may do so in the form of an opt-in, an opt-out, or similar mass sign-up system (“Enrollment Protocol”), provided that Merchant shall administer such Enrollment Protocol in compliance with Law and pursuant to its franchise Product Addendums with the Eligible Franchisees. Furthermore, Merchant agrees to defend, indemnify, and hold DoorDash harmless from and against Losses with respect to claims of Eligible Franchisees arising out of or related to the Enrollment Protocol or the enrollment of such Eligible Franchisee to the Future Program Changes.

14.11.3. To the extent that DoorDash is responsible for enrolling Eligible Franchisees to Future Program Changes, Merchant agrees that DoorDash may do so in the form of an Enrollment Protocol, provided that DoorDash shall administer such Enrollment Protocol in compliance with Law. Furthermore, DoorDash agrees to defend, indemnify, and hold Merchant harmless from and against Losses with respect to claims of Eligible Franchisees arising out of or related to the Enrollment Protocol or for DoorDash’s error during the enrollment of such Eligible Franchisee to the Future Program Changes.

14.12. Franchisees. This Section 14.12 applies only if Merchant operates a franchisee or similar structure. Merchant’s Eligible Franchisees may use certain DoorDash Products hereunder pursuant to the terms and conditions of this Agreement, provided that: (a) Merchant has executed the requisite Product Addenda; and (b) the individual franchisee enters into an agreement in substantially the same form as the Franchisee Agreement attached to this Agreement as Exhibit A. For purposes of the Agreement, an “Eligible Franchisee” means a franchisee of Merchant that has signed the Franchisee Agreement. Merchant shall indemnify, defend, and hold DoorDash harmless against any third-party suits, fees, costs or expenses resulting from a dispute between Merchant and any of Merchant’s Franchisees relating to or arising from conduct of the Merchant (including former Franchisees). DoorDash acknowledges that Merchant is not responsible or liable for any Eligible Franchisee’s acts, omissions or performance, including an Eligible Franchisee’s payment obligations, under the Franchisee Agreement or other agreement between DoorDash and Eligible Franchisee. In Sections 2 (Operating Procedures), 3 (Payments), 4 (Taxes), 5.1 (Use of DoorDash Products), and 5.2 (DoorDash Product Restrictions), “Merchant” shall be replaced with “Eligible Franchisee.” In Sections 6 (Term and Termination), 7 (Representations and Warranties), 8 (Indemnification), 10 (Confidentiality), 11 (Data Privacy and Security), and 12 (Insurance) “Merchant” shall be replaced with “Merchant and Eligible Franchisee”.

14.13. Use Only Where Legally Allowed. Merchant shall not access or use the DoorDash Products or any portion of the DoorDash Products if it is not legally allowed to do so where it is located.

14.14. Third-Party Add-On Features. From time to time, DoorDash may make available third-party add-on features (“Third-Party Add-On Features”) for use with the DoorDash Products. Third-Party Add-On Features are not included within the definition of DoorDash Products under this Agreement, and DoorDash hereby expressly disclaims all warranties, express, implied, or statutory, regarding Third-Party Add-On Features, including but not limited to any implied warranties of merchantability, title, satisfactory quality or results, or fitness for a particular purpose and non-infringement. DoorDash also makes no representations or warranties regarding availability of any Third-Party Add-On Feature. Third-Party Add-On Features may be discontinued by DoorDash and/or the third-party provider at any time, with or without cause.

14.15. Communications from DoorDash. Merchant agrees to receive communications from DoorDash, its affiliates, and Dashers, including via email, text message, calls, and push notifications to the mobile telephone number Merchant provides to DoorDash. Merchant also agrees that it may receive communications generated by automatic telephone dialing systems which may deliver pre-recorded messages. Merchant acknowledges that it can opt out of promotional SMS at any time by texting “STOP.” Message and data rates may apply.

14.16. Copyright Infringement. If you believe that your work has been copied and posted on the DoorDash Products in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the DoorDash Products of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for DoorDash’s Copyright Agent for notice of claims of copyright infringement is as follows: General Counsel, DoorDash, Inc., 303 2nd St, Suite 800, San Francisco, CA 94107.

15. ADDITIONAL TERMS FOR NON-ENTERPRISE MERCHANTS.

15.1. Fees.

15.1.1. DoorDash shall be entitled to deduct from such payments DoorDash’s Commission Rate, marketing fees (for identifiable orders), activation fees, subscription fees, and any other fees which DoorDash may notify you regarding with at least seven (7) days’ advance written notice.

15.1.2. To the extent that a third party provider provides services to Merchant on basis of an agreement between third party provider and Merchant via the DoorDash Product (for example, a middleware provider) and charges fees to DoorDash, DoorDash may pass through such third party’s fees to Merchant.

15.1.3. Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to DoorDash in writing (email shall suffice for written notice) any claimed inaccuracies, so that DoorDash has the prompt opportunity to address and resolve any issues and so such issues do not persist, which DoorDash and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to DoorDash any disagreement, non-conformity or any issue with any transaction, fee, charge or order, including in connection with fraudulent transactions or payments, within fourteen (14) days of the transaction, fee or order.

15.2. Premier Plan Rebate. If DoorDash offers Merchant a Premier Plan then, as part of such Premier Plan, DoorDash will make available a feature to eligible Merchants where DoorDash will refund a Merchant’s commission fees for a given month if the Merchant completed less than 20 orders during such month (the “Premier Plan Rebate”). In order to qualify for the Premier Plan Rebate for a given month, Merchants must (1) have a Commission Rate higher than 28%, (2) sign up for the Premier Plan via the Sign-Up Sheet, (3) cancel fewer than 5 orders during the month, and (4) maintain "open hours" on DoorDash at least for 90% of the store hours the Merchant has set on the Merchant Portal. DoorDash may cancel the Premier Plan upon seven (7) days’ prior notice at its discretion.

16. DEFINITIONS. Note that certain terms may not appear in these Terms of Service but may appear in the Sign-Up Sheet, Rate Card, or a Product Addendum.

16.1. “Affiliate” means an entity controlled by, controlling or under common control with a Party.

16.2. “Change in Law” means a material change in (or change in enforcement thereof) Law, labor standard or unionization pertaining to independent contractors and/or the delivery of goods.

16.3. “Commission” means the fee DoorDash charges Merchant for an Order, which is calculated by multiplying (i) the applicable Commission Rate by (ii) the subtotal for the Merchant Products ordered by the Customer, excluding all applicable taxes and other governmental fees and surcharges, such as an applicable local bottle deposit fee.

16.4. “Commission Rate” means the percentage, indicated in the Rate Card for the applicable DoorDash Product, that DoorDash shall charge Merchant on each Order.

16.5. “Confidential Information” means all confidential, proprietary, or nonpublic information provided by the Discloser to the Recipient that a reasonable industry participant would deem to be confidential, as further described in Section 10.

16.6. “Customer” means “DoorDash Customer” and “Merchant Customer” collectively or individually, as the context requires.

16.7. “Dasher” means a person contracted by DoorDash to perform the applicable services.

16.8. “DashPass” means DoorDash’s subscription program for DoorDash Customers pursuant to which DoorDash Customers will receive $0 delivery fees and reduced service fees on qualifying Orders placed with participating Merchant Locations on the applicable DoorDash Product. In order to continue to qualify for DashPass inclusion, Merchant and/or Merchant Locations may be required to meet and maintain certain additional eligibility requirements as communicated by DoorDash. Merchant acknowledges that the terms of participation in DashPass do not conflict with, or result in a breach of, any previously existing agreements or terms to which Merchant may be bound.

16.9. “Delivery Order” means an Order that is delivered by a Dasher.

16.10. “Discloser” means the Party disclosing Confidential Information.

16.11. “Dispute” means any dispute, claim or controversy arising out of, relating to, or in connection with this Agreement, including the breach, termination, enforcement, interpretation or validity thereof (as well as the determination of the formation, scope, or applicability of the arbitration agreement in Section 13) or the relationship between the Parties, their affiliates and subsidiaries, and each of their respective owners, directors, managers, and personnel.

16.12. “DoorDash Customer” means the end user accessing the DoorDash Product to place an Order.

16.13. “DoorDash Data” means any information that DoorDash provides or makes accessible to Merchant, including Personal Information.

16.14. “DoorDash IP” includes all patents, patent applications, inventions, copyrights, trade secrets, Marks, ideas, images (including descriptions of such images), domain names, and any and all other works and materials developed by DoorDash (including all intellectual property rights therein and thereto), and similar rights owned by DoorDash that are embodied in the DoorDash Product or any other DoorDash technology or platform.

16.15. “DoorDash Product” means the DoorDash technology that Merchant accesses or DoorDash provides, as defined in the applicable Product Addendum, in each case, that will allow information to be exchanged between Merchant (which may include Merchant Applications and/or a Third Party Platform) and DoorDash. References to the “DoorDash Product” include the DoorDash Product Documentation.

16.16. “DoorDash Product Documentation” means documentation, specifications, and other materials (whether written or electronic) that describe the operation or function of a DoorDash Product.

16.17. “Exclusive Platform” means that the DoorDash Product is the Merchant’s exclusive third-party food ordering and/or delivery provider or platform.

16.18. “Fee” means the fee or commission rate indicated in the Rate Card for the applicable DoorDash Product, plus all tips paid by Customer, and may include separate fees for different Order types, if applicable.

16.19. “Feedback” means any comments, suggestions, or ideas for improvement regarding the DoorDash Product or the DoorDash Product Documentation, or Merchant’s evaluation and use thereof.

16.20. “including” means “including without limitation”.

16.21. “Indemnified Party” means the Party entitled to or seeking indemnification, pursuant to the terms of this Agreement, and its affiliates, respective officers, directors, shareholders, Personnel, successors, and permitted assigns.

16.22. “Indemnifying Party” means the Party indemnifying the other Party pursuant to the terms of this Agreement.

16.23. “Law” means all laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to the referenced Party.

16.24. “Licensee” means the Party receiving the license described in Section 5.

16.25. “Licensor” means the Party granting the license described in Section 5. As it pertains to DoorDash, an Affiliate of DoorDash may be considered a “Licensor” hereunder.

16.26. “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.

16.27. “Marks” means the corporate names, trade names, trademarks, service marks, and logos (including third-party marks to which the Licensor has rights and uses in its business). This includes “DOORDASH”, “DASHER” , “DASHMART”, “”, and “” marks, as well as any successor marks or designations.

16.28. “Merchant Application” means the software and/or system(s) that are used by Merchant (if any) to provide digital order solutions and services to Customers generally, including Merchant’s website.

16.29. “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), business information and Merchant Product descriptions (either provided by Merchant or on Merchant’s website), trademarks, logos, Merchant name, location, url, phone number, and other materials provided by Merchant to DoorDash.

16.30. “Merchant Customer” means the Customer accessing the Merchant Application(s) to place an Order.

16.31. “Merchant Location” means the Merchant store, location, warehouse, or restaurant that are within the territory serviced by DoorDash and includes: (a) Merchant Locations owned and operated by Merchant and/or its affiliates, and/or (b) Merchant Locations owned and operated by franchisees of Merchant or its affiliates which have signed the Franchisee Agreement.

16.32. “Merchant Portal” means the portal made available by DoorDash to Merchant which provides Merchant with Order sales information and other functionality in connection with Merchant’s relationship with DoorDash. For purposes of the Agreement, the Merchant Portal is a DoorDash Product.

16.33. “Merchant Product” means the products (e.g., food, beverages, groceries, retail items, etc.) prepared, distributed, or sold by Merchant.

16.34. “Personnel” means a Party’s employees, agents, contractors, or subcontractors.

16.35. “Order” means Delivery Orders and Pick Up Orders collectively.

16.36. “Order Equipment” means any equipment reasonably required by DoorDash for Merchant to receive, process and accept Orders (including a tablet or other technology capable of receiving Orders).

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

16.38. “Personal Information” means any information that (a) relates to an identified or identifiable natural person (including names, telephone numbers, addresses, signatures, email addresses, and/or other unique identifiers); or (b) that can reasonably be used to identify or authenticate an individual, directly or indirectly (including name, contact information, precise location information, access credentials, persistent identifiers, and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law, including, if applicable, the General Data Protection Regulation (GDPR)), which is collected and/or handled by any of the Parties in connection with this Agreement.

16.39. “Pick Up Order” means an Order that the Customer picks up at the Merchant Location, instead of being delivered by a Dasher.

16.40. “Product Addendum” means an addendum to this Agreement that describes the DoorDash Product that Merchant accesses pursuant to the terms herein.

16.41. “Rate Card” means the schedule that details the rates and fees that Merchant shall pay for the DoorDash Product(s) that Merchant opts into and/or uses.

16.42. “Recipient” means the Party receiving Confidential Information.

16.43. “Scheduled Order” means an Order that the Customer or Merchant indicates should be delivered at some point in the future.

16.44. “Term” means the period from the Effective Date until the date of termination.

16.45. “Third Party Platform” means a third party’s technology interface, such as a middleware technology platform, other than the DoorDash Product and Merchant Applications, that enables Merchant to request delivery fulfillment and/or provide information necessary to enable such delivery fulfillment.

16.46. “Unattended Order” means an Order that the Dasher leaves at the Customer’s front door or similar location.

16.47. “Weblink” means a link from Merchant’s website through an “order now” button that directs traffic to the Merchant Location online ordering page on the DoorDash Product.

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 & DISPUTE RESOLUTION. Franchisee and DoorDash agree that any Dispute shall be resolved pursuant to Sections 13 and 14.1 of the foregoing Merchant Terms of Service.

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.