Bbot Merchant Terms and Conditions
Effective Date: September 10, 2024
These Bbot Merchant Terms and Conditions (the “Terms”) are entered into between Bbot, LLC. and its affiliates (“Bbot”) and you by (i) your signing or entering into a separate proposal, order form or other agreement for the Service (as defined below) with Bbot (a “Bbot Order Form”), (ii) your signing or entering into a separate proposal, order form or other agreement for the Service with a third-party partner of Bbot (“Bbot Partner”) that incorporates these Terms by reference (a “Partner Order Form”), or (iii) otherwise accessing or using the Service as a merchant. If you are entering into these Terms on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms, in which case the terms “you”, “your” and “Customer” shall refer to such entity and its affiliates.
If you do not have such authority, or if you do not agree with these Terms, you must not accept these Terms and may not use the Service. These Terms contain, among other things, warranty disclaimers, liability limitations and use limitations, and are part of the Bbot Order Form or Partner Order Form (each, an “Order Form”), as applicable, entered into by you (collectively, “Agreement”). If you did not enter into an Order Form, then references to this “Agreement” mean these Terms. There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof. If you entered into a Partner Order Form that incorporates these Terms by reference, you agree that Bbot is an express intended third-party beneficiary of such Partner Order Form and may enforce these Terms against you as if Bbot were an original signatory to such Partner Order Form. In the event of a conflict between these Terms and the Bbot Order Form, the Bbot Order Form shall control.
BBOT MAY REVISE THESE TERMS FROM TIME TO TIME AND WILL NOTIFY CUSTOMER OF MATERIAL REVISIONS VIA A SERVICE NOTIFICATION OR AN EMAIL TO THE EMAIL ADDRESS ASSOCIATED WITH CUSTOMER’S ACCOUNT. BY CONTINUING TO ACCESS OR USE THE SERVICE AFTER THOSE REVISIONS BECOME EFFECTIVE, CUSTOMER AGREES TO BE BOUND BY THE REVISED TERMS. IF ANY CHANGE TO THE TERMS IS NOT ACCEPTABLE, CUSTOMER’S ONLY REMEDY IS TO STOP USING THE SERVICES AND SEND A CANCELLATION EMAIL TO BB-SUPPORT@DOORDASH.COM.
Unless otherwise agreed to in writing by both parties, Bbot’s Universal Service Level Agreement is hereby incorporated into this Agreement by reference.
1. SaaS services
1.1 “Service” or “Services” means the online ordering and/or delivery service provided by Bbot, and includes, but is not limited to, (a) the Bbot services described on the applicable Order Form, including any Bbot implementation, information, communication, or marketing services, and (b) all APIs and software, including each branded application, that may be made available by Bbot in connection with the Service (the “Software”), and any data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively the “Content”). Any new features added to or augmenting the Service are also subject to this Agreement. The Service is provided on a subscription basis for a set term designated in the Order Form (each a “Subscription Term”). Customer shall purchase and Bbot shall provide the Service specified in the applicable Order Form pursuant to this Agreement.
1.2 From time to time, Bbot may make available additional services. Customer’s participation in additional services is voluntary, and separate pricing will be set forth and agreed-upon for services outside the scope of the Order Form. For purposes of this Agreement, any such additional services shall be considered “Services.”
1.3 As part of the Services, Bbot may be required to acquire and maintain one or more domain names containing Customer’s name, brand, service mark, or trademarks (collectively, “Customer Marks”). Such domain names will be used by Bbot only to provide the Services to Customer. Customer hereby grants Bbot and its affiliates a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use the Customer Marks in connection with the Service or the marketing thereof. Bbot may, but is not obligated to, transfer such domain names to Customer at the end of the Subscription Terms. Customer agrees to pay Bbot a transfer fee for any such transfer of domain names to Customer.
1.4 By using Bbot’s smart ordering Service, Customer understands and expressly acknowledges that Customer retains ultimate responsibility of the Customer’s end user (“End User”) experience. These responsibilities include but are not limited to confirming End User’s eligibility to purchase a product, especially in the case of beverages containing alcohol, and handling end user complaints. In no circumstance will Customer refer any End Users to Bbot for any issues related to End User’s experience with Customer. Customer will not configure the Service to collect any sensitive data (e.g., social security numbers, driver’s license numbers, personal bank account numbers, passport or visa numbers, etc.) or any other data that Bbot may prohibit from time to time.
1.5 As part of the registration process, Customer may be required to create an account with Bbot (“Account”), in which case Customer will identify an administrative username and password for the Account. Customer is responsible for maintaining the confidentiality of its login, password and account for all activities that occur under its Account, including but not limited to any monetary implications or charges associated with loss of access controls to its Account or Customer’s own negligence or violation of this Agreements. Bbot reserves the right to access Customer’s Account in order to respond to its requests for technical support. Customer agrees to (a) immediately notify Bbot of any unauthorized use of Customer’s password or account or any other breach of security, and (b) ensure that Customer exits from its Account at the end of each session when accessing the Service. Bbot will not be liable for any loss or damage arising from Customer’s failure to comply with this Section. Customer is expressly prohibited from sharing its login, password, and/or Account with any other person or third party, including but not limited to via a group email account.
1.6 The terms and conditions of this Agreement shall apply to any upgrades, updates, bug fixes, or modified versions (collectively, “Updates”) or additional copies of the Software. Notwithstanding any other provision of this Agreement: (a) Customer has no license or right to use any such Updates or additional copies unless Customer, at the time of acquiring them, already holds a valid license to the Software associated with such Updates and has paid any required Fees for such Software; and (b) use of additional copies of the Software is limited to backup purposes only. By downloading or using any Updates, Customer’s rights with respect to the Updates are subject to the terms of Bbot’s then-current policies and procedures associated with such Updates.
2. Restrictions and responsibilities
2.1 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt or authorize, encourage or support others’ attempts, to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software; (b) modify, translate, hack or create derivative works based on the Services or any Software; (c) sublicense, resell, rent, lease, transfer, assign or otherwise use the Services or any Software, including for timesharing or service bureau purposes or otherwise for the benefit of a third party (other than End Users as intended through the Service); (d) remove any proprietary notices or labels; (e) circumvent any copy-protection, version controls, or license enforcement; or attempt to do any of the foregoing, except to the extent expressly permitted by applicable law; (f) combine, commingle, or integrate any Software with open source software or incorporate open source software into any Software that may add any additional open source software requirements, obligations, or licensing terms to the Software (except for authorized third-party software); or (g) use the Service outside the scope expressly permitted herein, in any unlawful manner, (including without limitation in violation of any export control, data, or privacy laws (including the General Data Protection Regulation, the California Consumer Protection Act (“CCPA”)), CAN-SPAM Act, PCI, and similar data protection privacy, and marketing laws (collectively, “Privacy Laws”) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components. Customer shall not sell or make available illegal goods or services, including but not limited to illegal drugs or alcohol without applicable licenses. Customer will communicate with an End User only in accordance with applicable Privacy Laws and the End User’s preferences, as recorded in the Services. Customer will not communicate with an End User that has opted-out of such communications. Customer agrees to reference the preferences recorded in the Services before communicating with an End User. Bbot is not responsible for any communications sent by Customer. Notwithstanding any other provision of this Agreement, Customer shall not attempt to circumvent any security or access restrictions relevant to Software versions or features therein. Customer shall be liable to Bbot for any damages, injury, or harm caused to Bbot as a result of Customer’s violation of any of these limitations or restrictions. Any violation of the restrictions in this paragraph shall be considered a material breach of this Agreement.
2.2 Subject to this Agreement, to the extent Bbot permits Customer to download or install any APIs or other Software, Bbot hereby grants Customer a non-exclusive, non-transferable, non-assignable, non-sublicensable license to use such Software (in object code format) during the Term only in connection with the Services. Notwithstanding the license granted to Customer in this Agreement, Customer acknowledges that the Software may be accompanied by, or contain certain third-party software. Bbot shall provide the applicable license terms and other information regarding the third-party licenses upon request. To the extent inconsistent with the terms of this Agreement, third-party licenses shall be governed by the applicable license, and Customer hereby agrees to be bound by the terms of such third-party licenses. Customer acknowledges that Bbot or its licensors retain the title, copyright, and other intellectual property rights in the Software, including permitted copies. Customer does not acquire any rights, express or implied, other than those expressly granted in this Agreement. The Software is licensed, not sold.
2.3 Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.4 Customer represents, covenants, and warrants that (i) Customer will use the Services only in compliance with Bbot’s standard published policies then in effect and all applicable laws and regulations, including but not limited to Privacy Laws and intellectual property laws, and (ii) Customer shall promptly notify Bbot if Customer learns of any unauthorized access or a security breach related to the Service. Customer is solely responsible for all data, information, feedback, suggestions, text, content and other materials that Customer uploads, posts, delivers, provides or otherwise transmits or stores (hereafter “post(ing)”) in connection with or relating to the Service (“Customer Content”). By posting Customer Content on or through the Service, Customer hereby does and shall grant Company a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Customer Content in connection with the Service or the marketing thereof. Bbot has the right, but not the obligation, to monitor the Service, Content, or Customer Content. Customer further agrees that Bbot may, at its sole discretion, remove or disable any Customer Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Customer Content), or for no reason at all.
2.5 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). In some cases, Customer may have the option to purchase Equipment from Bbot. In these cases, purchases are non-refundable, and Customer remains responsible for any maintenance, repairs, or replacements required. Customer shall also be responsible for maintaining the physical security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment (including any monetary damages) with or without Customer’s knowledge or consent. Customer shall be responsible for protecting access to its account with secure passwords and shall not share login credentials, including but not limited to using a group email account.
2.6 Customer agrees (a) to participate in reasonable marketing activities that promote the benefits of the Service to potential customers, and (b) to Bbot’s use of Customer’s name, logo, and other identifying marks on Bbot’s website and in Bbot’s promotional materials. Customer further agrees that Bbot may disclose that Customer is a customer of Bbot.
2.7 Customer agrees to allow Bbot permission to use default credentials to log into Customer’s local network and access Customer’s printers for troubleshooting and support.
2.8 Customer understands that the operation of the Service, including Customer Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices, and (c) transmission to Bbot’s third-party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, Customer acknowledges that it bears sole responsibility for adequate security, protection and backup of Customer Content. Bbot will have no liability to Customer for any unauthorized access or use of any Customer Content, or any corruption, deletion, destruction or loss of any Customer Content.
2.9 Customer is and will be solely responsible for compliance with all applicable laws relating to Customer’s products and services, such as obtaining the necessary licenses and enforcing any identification requirements, including those related to selling alcohol to End Users. Customer will cooperate with Bbot and any Bbot Partner to prevent the unlawful sale or provision of alcoholic beverages to any End Users. Customer represents and warrants that it will not include alcohol (or any other products restricted by Bbot) for sale through the Service, or request delivery of any such items through the Service, provided that Bbot may allow promotion, sale or delivery of certain restricted items after Customer has entered into a separate agreement with Bbot (or obtained the consent of a third-party delivery network if applicable) memorializing such promotion, sale, and/or delivery of such products in compliance with the laws of the applicable jurisdiction in which such products will be sold.
2.10 If Customer is executing a Bbot Order Form to receive Services on behalf of multiple food preparation businesses (“Restaurant Partners”), Customer shall be responsible for all acts and omissions of such Restaurant Partners in connection with this Agreement and shall ensure that Restaurant Partners agree to the onboarding terms provided by Bbot prior to receiving the Services. Customer represents and warrants that (i) Customer’s commercial terms and/or agreement with Restaurant Partner contain provisions that are substantially similar to the terms of this Agreement, (ii) Customer has obtained the necessary licenses, consents, and authorizations from its Restaurant Partners to enable Customer to enter into this Agreement, and (iii) Customer has the right and license to use, and sub-license Restaurant Partners’ name, logo, and any other trademarks to Bbot for the purpose of providing the Services. Customer shall indemnify, defend, and hold Bbot harmless against any suits, fees, costs, or expenses resulting from a dispute between Customer and any current and former Restaurant Partners relating to or arising from conduct of the Customer or this Agreement.
3. Confidentiality; Proprietary Rights
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, financial information or other confidential or proprietary information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Bbot includes, without limitation, non-public information regarding features, functionality and performance of the Service. Confidential Information of Customer includes, without limitation, non-public data provided by Customer to Bbot to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information, and (b) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Receiving Party may furnish such Confidential Information to (i) the Receiving Party’s employees, officers, directors, agents, independent contractors, service providers, subcontractors, and consultants (“Representatives”) who are required to have access to such Confidential Information in connection with the Service, and (ii) the Receiving Party’s professional advisers (e.g., lawyers and accountants), in each case, during the time that the Receiving Party is permitted to retain such Confidential Information hereunder; provided that any and all such Representatives, and professional advisors are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information at least as protective of the Confidential Information as the terms set forth in this Agreement.
3.2 The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public other than by the fault of the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of or reference to any Confidential Information of the Disclosing Party.
3.3 Notwithstanding anything to the contrary herein, the Receiving Party may disclose the Disclosing Party’s Confidential Information as required by judicial process or otherwise by law; provided that, prior to such disclosure, to the extent permitted by applicable law, the Receiving Party shall: (a) promptly notify the Disclosing Party of any actual or threatened legal compulsion of disclosure, and any actual legal obligation of disclosure, and (b) cooperate with the Disclosing Party’s reasonable, lawful efforts to resist, limit or delay disclosure.
3.4 Customer shall own all right, title and interest in and to the Customer Data. Bbot shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.5 Notwithstanding anything to the contrary, Bbot shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Bbot will be free (during and after the term hereof) to (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Bbot offerings, and (b) disclose such data in de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.6 Customer may elect from time to time to provide suggestions or comments regarding enhancements or functionality or other feedback (“Feedback”) to Bbot with respect to the Services. Bbot will have full discretion to determine whether to proceed with the development of the requested enhancements, new features or functionality. Bbot will have the full, unencumbered right, without any obligation to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with Bbot’s products and Services. Bbot shall own all rights to the Feedback provided by Customer.
3.7 Notwithstanding anything to the contrary, to the extent an End User agrees to, enters into or acknowledges Bbot’s user terms and/or Privacy Policy (collectively, “Bbot User Terms”), Customer agrees that Bbot may use and disclose any and all information or data provided by End Users in connection with the creation of a user account with Bbot or use of a Bbot API or other Software, such End User’s interactions with any Bbot product or Services or any transaction with Customer (“User Information”) in accordance with the Bbot User Terms. Such User Information will be deemed Customer Data hereunder.
3.8 Customer acknowledges and agrees that if it elects to integrate with any of Bbot’s integration partners (an “Integration Partner”), any data shared with such Integration Partner shall be subject to the terms of use and privacy policy of that Integration Partner upon acceptance of such integration.
4. Payment of fees and taxes
4.1 Customer will pay Bbot (or the applicable third-party partner under the Partner Order Form) the applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the service capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Bbot reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term (as defined below) or the current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). If Customer believes that Bbot has billed Customer incorrectly, Customer must contact Bbot no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Bbot’s customer support department at bb-support@doordash.com.
4.2 To facilitate payment for the Services via bank account, credit card, or debit card, Bbot uses Stripe, Inc. and its affiliates (“Stripe”), or other third-party payment processors (“Payment Processor(s)”). These payment processing services are provided by Payment Processors and are subject to the applicable Payment Processor’s terms and conditions, privacy policy, and all other relevant agreements (collectively, the “Payment Processor Agreements”). In the case of Stripe, you are subject to the Stripe terms and conditions and other policies available at https://stripe.com/legal and Stripe’s Global Privacy Policy available at https://stripe.com/privacy (collectively, the “Stripe Agreements”). By agreeing to these Terms, Customers that use the payment functions of the Service also agree to be bound by the Stripe Agreements and applicable Payment Processor Agreements for the payment function the Customer is using, as the same may be modified by Stripe and/or the applicable Payment Processor from time to time. As a condition of Bbot enabling payment processing services through Stripe and/or the Payment Processors, you represent and warrant to Bbot that all information you provide about your payment instruments and/or bank accounts is true and that you are authorized to use such payment instrument and/or bank account, as applicable. You also authorize Bbot to share such information and other transaction information related to your payment for the Service with Stripe and/or the Payment Processors. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You hereby authorize Stripe and/or the applicable Payment Processor to store and continue billing your specified payment method even after such payment method has expired, to avoid interruptions in payment for your use of the Service. Please contact Stripe and/or the applicable Payment Processor for more information. Bbot assumes no liability or responsibility for any payments you make through the Service.
4.3 Bbot may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Bbot no later than thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes, including sales, use, excise, personal property, services, value added taxes, taxes of a similar nature, and final withholding taxes, associated with Services and/or items and goods used in connection with the Services, other than taxes based on Bbot’s net income.
5. Transfer of funds, Refunds
5.1 Definitions. "Customer Gross Revenue" means all revenue received by Customer through use of the Service. "Customer Net Revenue" means Customer Gross Revenue less any Bbot software service fees, card processing fees, chargebacks, refunds, sales commissions to Customer's partners, and other expenses agreed to by the parties in writing as reducing Customer Gross Revenue.
5.2 Transfer of Funds. Customer shall set up a merchant account with Payment Processor (the "Customer Merchant Account") and is responsible for supplying Payment Processor with accurate and complete information, including any personal information required to complete set-up of the Customer Merchant Account. Bbot will transfer Customer Net Revenue it receives to the Customer Merchant Account. As between Bbot and Customer, the Customer Merchant Account will be under Customer's sole control. Bbot is not responsible for lost or delayed bank transfers that are caused by Customer's incorrect setup of the Customer Merchant Account. Customer represents and warrants that it complies with Payment Card Industry Data Security Standards.
5.3 Refunds. If Customer fails to provide an End User with the product or service that the End User ordered, Bbot reserves the right to provide a refund to the End User for the product or service. If an End User's purchase is refunded for any reason prior to Bbot transferring the funds from such purchase to Customer, Bbot will not transfer such funds to Customer and will not charge Customer the Bbot software service fees associated with such purchase.
5.4 Credit Card Processing Fees. Bbot’s base processing rate for credit card processing fees is based on the Payment Processor’s fees, plus a per order fee depending on Customer’s venue and its use case. This per order fee is found in the Order Form.
5.5 Chargebacks. Customer is responsible for any chargebacks initiated or completed by an End User. If Bbot becomes aware that an End User is disputing a charge, Bbot will use commercially reasonable efforts to rebut such dispute. If Bbot is unsuccessful in such rebuttal, Customer will promptly reimburse Bbot for the full amount of such disputed charge.
5.6 Taxes. Bbot shall charge and collect from End User the applicable value added, goods and services, state and local sales, use, or similar taxes for Customer’s products sold on the Software (“Collected Taxes”). In any jurisdiction where Bbot is required to remit Collected Taxes as a marketplace facilitator, Bbot will be responsible for remitting such taxes to the appropriate tax authorities. Any Collected Taxes that are not required to be remitted under the marketplace facilitator laws will remain the responsibility of the Customer and Customer will be responsible for remitting any such portion of Collected Taxes to the appropriate tax authorities. In all other jurisdictions, Bbot will send Collected Taxes to Customer, and Customer will be responsible for remitting the total amount of Collected Taxes to the appropriate tax authorities of those jurisdictions. Customer shall provide Bbot the applicable rates (including a ‘0’ rate for Customer products that are exempt from tax) for Collected Taxes and any other applicable taxes and other governmental charges that Customer must collect and remit for each Customer product that Customer makes available on the Software. If Customer (i) does not provide the applicable rates for Collected Taxes and any other applicable taxes and other governmental charges, and/or (ii) requests that Bbot to determine the applicable rates for Collected Taxes and any other applicable taxes and other governmental charges, Customer expressly authorizes Bbot to calculate Collected Taxes on its behalf, and hereby agrees that Bbot is not responsible for any liability associated with the accuracy of such calculation of Collected Taxes. If the Customer provides the applicable rates for Collected Taxes and any other applicable taxes and other governmental charges after Bbot calculated Collected Taxes on behalf of the Merchant, DoorDash will endeavor to apply such rate change requested by the Customer as soon as possible after receiving the request from the Customer; the change will not be retroactive, and Bbot is not responsible for any liability associated with the accuracy of the calculation of Collected Taxes during the the period where Bbot determined the applicable rates for Collected Taxes and any other applicable taxes and other governmental charges. Customer’s use of Bbot’s determination of the applicable rates for Collected Taxes and any other applicable taxes and other governmental charges in no way constitutes the provision of legal or tax advice by Bbot.
6. Term and Termination
6.1 Subject to earlier termination as provided below, this Agreement is for the service or subscription term as specified in the Order Form (“Initial Service Term”) and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination by written notice at least sixty (60) days prior to the end of the then-current Term. If Customer did not enter into an Order Form, this Agreement will be in effect until terminated by either party upon written notice to the other party.
6.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon termination, all rights of Customer to use the Service will terminate. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. Representations and Warranties; Disclaimer
7.1 Customer represents and warrants to Bbot that (a) Customer has the full power and authority to enter into this Agreement, (b) Customer owns all Customer Content and Customer Marks or has obtained all permissions, releases, rights or licenses required to engage in its activities in connection with the Services (and allows Bbot to use the Customer Content and Customer Marks to provide the Service) without obtaining any further releases or consents or violating, infringing, or misappropriating any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, (c) the Customer Content does not contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing, and (d) if Customer is an individual, Customer is eighteen (18) years of age or older.
7.2 Bbot shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services, or if the parties enter into a Service Level Agreement, Bbot shall maintain the Services as set forth therein. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Bbot or by third-party providers, or because of other causes beyond Bbot’s reasonable control, Bbot shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption, or if applicable, as set forth in the Service Level Agreement. However, Bbot does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND BBOT DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
8. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY, BBOT, ITS AFFILIATES, AND THIRD-PARTY VENDORS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY VENDORS), AND THEIR RESPECITVE OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOST PROFITS, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE; (C) FOR ANY MATTER BEYOND BBOT’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO BBOT (OR BY BBOT’S PARTNER TO BBOT, IN THE CASE OF A PARTNER AGREEMENT) FOR THE SERVICES UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT BBOT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION WILL APPLY TO ALL CLAIMS UNDER ALL THEORIES OF LAW AND EQUITY, EXCEPT WHERE PROHIBITED BY LAW.
9. Indemnification
9.1 Customer shall defend, indemnify, and hold harmless Bbot, it’s Affiliates, and their respective officers, representatives, contractors, and employees from and against any third-party claims, actions or demands (“Claims”), including without limitation reasonable attorneys’ fees, arising or resulting from (i) Customer’s breach of this Agreement, (ii) any Customer Content, or Customer’s access, contribution to, use or misuse of the Service, (iii) Customer’s violation of the intellectual property rights of any third party, (iv) Customer’s violation of any applicable law, rule or regulation in connection with its performance under this Agreement, and (v) Customer’s negligence or willful misconduct. Bbot shall provide prompt notice to Customer of any such Claim. Bbot reserves the right to assume the exclusive defense and control of any Claim that is subject to indemnification under this section. Customer agrees to cooperate with any reasonable requests assisting Bbot’s defense of such Claim.
9.2 Bbot will defend, indemnify, and hold harmless Customer from and against any third-party Claims brought against Customer based upon an allegation that Customer’s use of the Service or Software as contemplated by this Agreement, infringes such third party’s copyrights or misappropriates such third party’s trade secrets, and Bbot will pay all costs and damages finally awarded against Customer by a court of competent jurisdiction as a result of any such Claim; provided, however, that Customer (a) promptly notifies Bbot in writing of such Claim, (b) promptly gives Bbot the right to control and direct the investigation, preparation, defense and settlement of such Claim, with counsel of Bbot’s own choosing (provided that Customer will have the right to reasonably participate, at its own expense, in the defense or settlement of any such Claim), and (c) gives assistance and full cooperation for the defense of the same. Bbot will not settle or compromise any such Claim without the prior written consent of Customer, which may not be unreasonably withheld, conditioned or delayed. If the use of the Service or Software by Customer has become, or in Bbot’s opinion is likely to become, the subject of any infringement Claim, Bbot may, at its sole option, (x) procure for Customer a license to continue using the Service or Software as set forth hereunder, (y) replace the Service or Software with a non-infringing Service or Software that is functionally equivalent or superior in performance, or (z) if options (x) and (y) are not reasonably practicable, terminate this Agreement for the infringing Service or Software, have Customer return or destroy the Software, and refund to Customer any prepaid fees for the infringing Service or Software. Notwithstanding the foregoing, Bbot will have no liability or obligation under this Section 9 or otherwise with respect to any Claim based upon (A) any Customer Data, (B) use of the Service or Software outside the scope of this Agreement, (C) modification of the Service or Software in accordance with Customer’s specifications or instructions or by any person or entity other than Bbot, without Bbot’s express written consent, (D) any third-party software components used in connection with, or embedded in, the Service or Software, (E) the combination, operation or use of the Service or Software with other applications, portions of applications, products, data or services not provided by Bbot, or (F) use of the Service or Software by Customer after Customer has been notified of the potential infringement. This Section 9.2 states Bbot’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.
10. Software Audit
Customer agrees that BBot may audit Customer’s use of the Services and Software for compliance with these terms, upon reasonable notice. Customer agrees to cooperate fully with Bbot and its authorized agents in any such audit to assist in accurately determining Customer’s compliance with the terms and conditions of this Agreement. In the event that such audit reveals any use of the Services or Software by Customer other than in full compliance with the terms of this Agreement, Customer shall reimburse Bbot for all reasonable expenses related to such audit in addition to any other liabilities Bbot may incur as a result of such non-compliance.
11. Dispute Resolution.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH BBOT AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT.”
11.1 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.
11.2 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 Bbot IP). Bbot 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 BBOT—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 BBOT, 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 BBOT IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR.
11.3 Informal Resolution. You and Bbot agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and Bbot therefore agree that, before either you or Bbot 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 Bbot that you intend to initiate an informal dispute resolution conference, email Merchant.Informal.Resolution@doordash.com, providing your name, telephone number associated with your Bbot account (if any), the email address associated with your Bbot 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.
11.4 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 Bbot, it must be sent by email to the counsel who represented Bbot 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, Bbot 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.
11.5 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/.
11.6 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 Bbot. 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 Bbot subject to Section 11.5.
11.7 Waiver of Jury Trial. YOU AND BBOT 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 11.2 above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
11.8 Waiver of Class or Consolidated Actions; Severability. YOU AND BBOT 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 Bbot 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 15, after the conclusion of the arbitration of any arbitrable claims, and all other provisions of this Section 11 (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 11 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 11. Nothing in this provision shall prevent you or Bbot from participating in a class-wide, collective, or representative settlement of claims.
11.9 Opt Out. Bbot’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 Bbot’s Terms of Service and did not validly opt out of arbitration. Bbot 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 Bbot 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 Bbot can force the other to arbitrate as a result of this Agreement. To opt out, you must notify Bbot in writing of your intention to opt out by sending a letter, by First Class Mail, to Bbot, LLC c/o 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 Bbot username (if any), the email address you used to set up your Bbot 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.
11.10 Survival. This Arbitration Agreement will survive any termination of your relationship with Bbot.
11.11 Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if Bbot 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 Bbot.
12. Miscellaneous; Notices
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Bbot’s prior written consent. Bbot may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Bbot in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. Unless otherwise elected by Bbot in a particular instance, Customer hereby expressly agrees to submit to the exclusive personal jurisdiction of the federal and state courts in San Francisco, California for the purpose of resolving any dispute relating to Customer’s access to or use of the Service, and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
All notices to Bbot should be delivered to the following address:
Bbot, LLC.
℅ DoorDash, Inc.
303 2nd Street, South Tower, Suite 800
San Francisco, CA 94107
Email: legal@doordash.com
Attn: DoorDash Legal
13. Privacy
Our Privacy Policy, available at https://help.doordash.com/legal/document?type=mx-bbot-privacy-policy®ion=US&locale=en-US, governs Bbot’s collection and use personal information regarding Customers. Our End User Privacy Policy, available at https://help.doordash.com/legal/document?type=bbot-end-user-privacy-policy®ion=US&locale=en-US, explains our handling of End User personal information. These Privacy Policies are incorporated into these Terms by reference.
14. Data Processing Addendum
To the extent the processing of personal information or personal data included in Customer Data is subject to the GDPR, the UK Data Protection Act 2018 and/or the CCPA, Customer and Bbot shall be subject to and comply with the Data Processing Addendum, attached as https://help.doordash.com/legal/document?type=cx-bbot-data-processing-addendum®ion=US&locale=en-US which is incorporated into and forms an integral part of these Terms including its schedules and appendices.
15. Litigation Class Action Waiver.
To the extent allowed by Law, separate and apart from the Arbitration Agreement found in Section 11, Customer agrees that any proceeding to litigate in court any Dispute, whether because Customer opted out of the Arbitration Agreement or any other reason, will be conducted solely on an individual basis, and Customer 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 Customer acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”) . Customer 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.
Questions?
Please contact us at bb-support@doordash.com for any questions regarding these Terms or the Service.