Terms of Service - New Zealand
DoorDash Merchants
Each product addendum can be viewed at the respective URLs immediately below:
● Alcoholic Beverage Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-alcohol
● Drive Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-drive
● Flexible Fulfillment Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-flexible
● Marketplace Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-marketplace
● Self-Delivery Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-self-delivery
● Storefront Product Addendum: https://help.doordash.com/merchants/s/nz-addendum-storefront
Effective: 13 July 2022
BEFORE YOU USE THE DOORDASH MARKETPLACE, PICKUP, STOREFRONT, DOORDASH DRIVE, SELF-DELIVERY, OR ANY OTHER DOORDASH PRODUCT OR SERVICE PLEASE READ THESE TERMS OF SERVICE (“TERMS OF SERVICE”) CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH DOORDASH OR USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AS STATED IN THE SIGN-UP SHEET AND ALL OF YOUR PARTICIPATING MERCHANT LOCATIONS ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THESE TERMS OF SERVICE IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET OR STOREFRONT ORDER ADDENDUM.
These Terms of Service, together with the Sign-Up Sheet, the applicable Product Addenda, and other attachments or exhibits hereto, (the “Agreement”) between DoorDash and Merchant is effective as of the date that you enter into the Sign-Up Sheet with DoorDash. In the event of a conflict between any of the terms in this Terms of Service, a Product Addendum, and/or the Sign-Up Sheet, the conflict will be construed in the following order of precedence: 1) Section 15 (Additional Terms for Non-Enterprise Merchants), 2) Product Addenda, 3) any other term in these Terms of Service, 4) Sign-Up Sheet.
1. PREAMBLE. DoorDash provides a suite of products, services, and technology solutions to enable merchants to grow their businesses, including online marketplace(s), white label fulfillment, demand generation, certain promotions or marketing services, and warehousing, among others. Merchants are restaurants, grocery stores, and/or businesses that sell products to consumers. DoorDash and Merchant wish to enter into a partnership pursuant to the terms set forth in this Agreement. Merchant may opt into certain DoorDash Products by entering into the applicable Product Addendum. This Agreement applies to all Merchant Locations owned or operated by Merchant, unless excluded in an attached exhibit or mutually agreed in writing. For Merchants operating a franchisee or similar structure, please refer to Section 14.11.
2. OPERATING PROCEDURES.
2.1. DoorDash Responsibilities. DoorDash will perform the obligations listed in the applicable Product Addenda.
2.2. Merchant Responsibilities. Merchant will: (a) perform the obligations listed in the applicable Product Addenda; (b) notify DoorDash of its days and hours of operation, including on holidays; and (c) notify relevant Merchant Location staff members of the relationship with DoorDash, and train staff members on receiving and fulfilling DoorDash Orders as soon as practicable upon execution of this Product Addendum and on an ongoing basis.
2.3. Malware. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products or services (including the applicable DoorDash Product and/or Merchant Application) any viruses, worms, defects, Trojan horses, malware, or any items of a destructive nature.
2.4. Hours of Operation. DoorDash will only accept Orders during the operating hours for the applicable DoorDash Product, which may vary by Merchant Location and will be separately communicated to Merchant.
2.5. Delivery Areas. To ensure delivery quality, DoorDash will only accept Orders to be delivered within a certain preset delivery area. DoorDash will separately communicate to Merchant the maximum delivery area applicable to Merchant and/or each Merchant Location.
2.6. This paragraph applies only if Merchant uses a Third Party Platform. During the Term, DoorDash will be Merchant’s sole preferred provider and/or have the right of first refusal (“Preferred Provider”) for all Orders that are located within DoorDash’s service area. Both Parties acknowledge that this provision does not conflict with, or result in a breach or default of, any previously existing agreements, terms, or conditions to which such Party may be bound, such as an exclusivity agreement or most favored nation clause.
2.7. This paragraph applies only if the DoorDash Platform is Merchant’s Exclusive Platform. If the DoorDash Platform is designated as Merchant’s Exclusive Platform, Merchant agrees it will neither contract with any other third-party food ordering and/or delivery provider or platform, nor otherwise permit or consent to Merchant’s inclusion in any third-party food ordering and/or delivery provider or platform. Furthermore, Merchant agrees that it will make best efforts to block and/or reject orders placed with Merchant Locations by any other third-party food ordering and/or delivery provider or platform. Merchant will demonstrate to DoorDash that it has used commercially reasonable efforts to request such third-party food ordering and/or delivery provider or platform to take down Merchant's Locations from its platform.
2.8. Modifications. DoorDash reserves the right, at its sole discretion, to change, suspend, or discontinue any DoorDash Product (including the availability of any feature or content) at any time. Merchant shall not list or include any Merchant Products or Locations that subject DoorDash to undue regulatory risk, health and safety risk, or other liability. Any such Merchant Products or Locations are subject to removal by DoorDash. If applicable, DoorDash may, at its sole discretion, remove any Merchant virtual brand concept from the DoorDash Product, if DoorDash determines that such virtual brand concept does not meet and maintain certain eligibility requirements as communicated by DoorDash, provided, however, that DoorDash shall use commercially reasonable efforts to inform Merchant of such removal.
2.9. Redelivery. Orders requiring redelivery due to Merchant’s error, including Merchant Personnel providing an incorrect or incomplete Order to the Dasher, are subject to Fees as an additional delivery.
3. PAYMENTS. Merchant agrees to pay the Fee(s) as agreed in the Product Addendum and as described in the Rate Card for the applicable DoorDash Product. Except as expressly set forth in this Agreement, each Party is responsible for its own costs. Merchant agrees to communicate to DoorDash any Dispute, disagreement, or issue with a transaction, Fee, or Order, including those made in connection with fraudulent transactions or payments, within 14 days of the applicable transaction, Fee, or Order.
4. TAXES.
4.1. Merchant is responsible for all taxes (including GST), duties, and other governmental charges on the sale of Merchant Products under this Agreement, and remitting such taxes, duties, and other governmental charges to the appropriate authorities. To the extent that DoorDash may be required to collect GST or any other taxes from the Customer and remit such taxes directly to the tax authority, DoorDash will inform Merchant that DoorDash will remit any applicable taxes to the tax authority and DoorDash will be relieved of any responsibility to remit such applicable taxes to Merchant. Additional terms related to the Parties’ respective tax obligations may be set forth in the applicable Product Addendum.
4.2. Merchant represents and warrants that Merchant is registered for GST, and will remain registered for GST, at all times during the Term.
4.3. Merchant is the “retailer” or “supplier” of Merchant Products for purposes of GST, and Merchant is responsible for remitting all GST and any other applicable taxes and other governmental charges on the sale of food/products. Merchant is responsible for setting the price (including GST) for each Merchant Product to be made available on the DoorDash Platform. The prices communicated to DoorDash will be the end prices payable by the consumer. For each Merchant Product, Merchant will provide to DoorDash information on the applicable tax amounts and rates included in the prices, including GST. Merchant is responsible for providing DoorDash New Zealand with the price inclusive of GST for each item to be made available on the DoorDash Platform. Merchant shall provide the applicable rates for GST and any other applicable taxes and other governmental charges. If Merchant does not provide the applicable rates for GST and any other applicable taxes and other governmental charges, Merchant expressly authorizes DoorDash to make this provision on its behalf, and hereby confirms that DoorDash assumes no liability for the accuracy of this provision. If the Merchant provides the applicable rates for GST and any other applicable taxes and other governmental charges after DoorDash made the provision on behalf of the Merchant, DoorDash will endeavor to apply such rate change requested by the Merchant as soon as possible after receiving the request from the Merchant; the change will not be retroactive. Merchant acknowledges that Customer may purchase Merchant Product through the DoorDash Platform using credits in the Customer’s DoorDash account associated with a gift card purchased from DoorDash (and, if Merchant uses Self-Delivery, that Customer may use such credits to purchase services provided by Merchant for Self-Delivery Orders). Merchant and DoorDash agree, for GST purposes, that the supply of goods and services made by Merchant to Customer which the Customer pays for (in whole or in part) by using the gift card credit will be treated as a taxable supply, and not the prior issuance of the gift card by DoorDash.
4.4. Merchant Invoice. DoorDash will issue Merchant with a tax invoice in accordance with the GST Act, or in the event that the GST Act no longer requires a tax invoice to be issued, alternative taxable supply information that complies with the GST Act, with respect to Fees payable by the Merchant as such Fees become payable by the Merchant.
4.5. Customer Invoice. Merchant is responsible for providing Customer with a tax invoice in accordance with the GST Act, or in the event that the GST Act no longer requires a tax invoice to be issued, alternative taxable supply information that complies with the GST Act, with respect to the Merchant Products sold on the DoorDash Platform, if requested by Customer.
4.6. To the extent legally permissible, DoorDash may send or transfer any documentation or information electronically to Merchant.
5. LICENSE.
5.1. Use of DoorDash Products. During the Term, DoorDash grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, and fully paid-up license to access the DoorDash Product solely to transmit information to facilitate deliveries or pick up in accordance with the terms of this Agreement. DoorDash owns and retains all rights, title, and interest in DoorDash IP.
5.2. DoorDash Product Restrictions. Merchant will not and will not permit or authorize any third party to: (a) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the DoorDash Product; (b) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the DoorDash Product; (c) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the DoorDash Product unless such actions are authorized by compulsory provisions of applicable law; (d) use the DoorDash Product in any manner or for any purpose that violates any Law; and (e) use the DoorDash Product for a reason other than as specifically provided or intended under this Agreement (which includes the applicable Product Addendum).
5.3. Merchant Content and Trademark; Photographs of Merchant Products.
5.3.1. Merchant grants to DoorDash a royalty-free, non-exclusive, limited, revocable, and non-transferable right and license to use and display the Merchant Content in the provision of services to Merchant, including, where applicable, listing Merchant as a merchant on the DoorDash Product, referencing Merchant as a DoorDash partner, promoting DoorDash’s products and services, and sharing Merchant Content with third parties, including third party services which enable DoorDash Customers to access DoorDash Products (including its web pages) for Orders.
5.3.2. If photographs of Merchant Products are not available or if they do not meet DoorDash’s requirements, as reasonably determined by DoorDash, then Merchant consents to DoorDash: (i) engaging a professional photographer to take photographs of Merchant Products or other products; (ii) enhancing the quality of Merchant’s existing photographs; (iii) using stock photographs of the Merchant Products or other products; and/or (iv) using photographs from Merchant’s website or social media channels, and displaying such photographs on the applicable DoorDash Product as representations of Merchant Products; provided that Merchant may contact DoorDash support to have such photographs removed from the Merchant’s store listing and, in such event, DoorDash will comply in a timely manner.
5.4. Goodwill. If Licensee, in the course of performing this Agreement, acquires any goodwill or reputation in any of the Marks, all such goodwill or reputation will automatically vest in Licensor: (a) when and as such acquisition of goodwill or reputation occurs; (b) at the expiration or termination of this Agreement; and (c) without any separate payment or other consideration of any kind to Licensee. Licensee agrees to take all such actions reasonably necessary to effect such vesting. Licensee will not contest the validity of any of the Marks or Licensor’s exclusive ownership of them. During the Term, Licensee will not adopt, use or register, whether as a corporate name, trademark, service mark, or other indication of origin, any of the Marks or any word or mark confusingly similar to them in any jurisdiction. As it pertains to DoorDash, DoorDash’s parent company (if applicable) may be considered a “Licensor” hereunder. This Section 5 is intended to be for the benefit of, and enforceable by, DoorDash’s parent company for the purposes of Part 2, Subpart 1 of the Contract and Commercial Law Act 2017.
5.5. Feedback. Merchant may provide DoorDash with Feedback. Merchant hereby grants and agrees to grant DoorDash all rights, title, and ownership of such Feedback on an unrestricted basis.
5.6. Retention of Title. Merchant acknowledges that notwithstanding any Order Equipment being provided by DoorDash to the Merchant for use by the Merchant that ownership and title to the Order Equipment will remain with DoorDash at all times and that the retention of title in the Order Equipment gives rise to a security interest (as defined under the Personal Property Securities Act 1999) (PPSA) in all Order Equipment supplied by DoorDash to Merchant pursuant to the addendum. Merchant undertakes to promptly do all things, execute all documents and/or provide any information which DoorDash may reasonably require to enable DoorDash to perfect and maintain the perfection of its security interest in the Order Equipment (including by registering a financing statement), give DoorDash not less than 14 days’ prior written notice of any proposed change in its name and/or any other change of its details, and immediately on request by DoorDash (and at Merchant’s expense) obtain from any third party such agreements and waivers of any security interest that any third party may have in relation to the Order Equipment to ensure that at all times DoorDash has a first ranking security interest in the Order Equipment. Merchant waives its rights to receive a copy of any verification statements under the PPSA and agrees that as between DoorDash and Merchant, Merchant will have no rights under (or by reference to) sections 114(1)(a), 116, 120(2), 121, 125, 126, 127, 129, 131, 133 and 134 of the PPSA; and where DoorDash has rights in addition to those in Part 9 of the PPSA, those rights will continue to apply.
6. TERM AND TERMINATION.
6.1. Term. The Agreement will begin on the Effective Date and continue until terminated in accordance with this Agreement, or once all Product Addenda hereunder have terminated or expired, whichever is earlier.
6.2. Termination. Either Party may terminate this Agreement or any Product Addendum for any reason at any time upon seven (7) days’ prior written notice to the other Party. Either Party may terminate this Agreement immediately, (a) in the event of a material breach by the other Party or (b) if the other Party ceases to do business, becomes insolvent, or seeks protection under any bankruptcy or comparable proceedings. If either Party terminates the Agreement, all Product Addenda shall automatically terminate.
6.3. Survival. Sections 3 (Payments), 4 (Taxes), 5 (License), 6 (Term and Termination), 7 (Representations and Warranties), 8 (Indemnification), 9 (Limitation of Liability), 10 (Confidentiality), 11 (Data Privacy and Security), 13 (Governing Law, Arbitration, Class Action Waiver), and 14 (Miscellaneous) and rights and obligations in this Agreement which, by their nature, should (or by their express terms do) survive or extend beyond the termination or expiration of this Agreement, shall so survive and extend.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the full right, power, and authority to enter into and perform its obligations under this Agreement, including any Product Addendum; (b) its performance of its obligations under this Agreement will not result in a breach of any obligation to any third party; (c) such Party’s Marks and materials owned, licensed, developed or used in performance of this Agreement do not knowingly infringe or violate any third-party intellectual property right; (d) it will obtain any necessary permits, consents, certificates, approvals, inspections, releases, authorizations, and licenses and/or file any registration forms (if any) in connection with performing its obligations under this Agreement; and (e) it will comply with all applicable law, regulations, and rules in operating its business and performing its responsibilities hereunder (including, if applicable to Merchant, all such Laws regarding health, food safety, sanitation, food packaging and labeling, including required consumer-facing warnings and calorie information).
7.2. Merchant. Merchant represents and warrants that: (a) it will inform DoorDash of any warnings, charges, opt-ins, and instructions related to Merchant Products that become required in the future; (b) if applicable, it will disclose common allergens in any Merchant Products items listed on or sold through the DoorDash Product; (c) it will not include any age-restricted products (including to alcohol and tobacco) in as a Merchant Product available on a DoorDash Product, or request delivery of any age-restricted products through the DoorDash Product without first entering into a separate agreement with DoorDash memorializing the promotion, sale, and delivery of such products in compliance with the Laws of the applicable jurisdiction in which such products will be sold; (d) it will not disclose any information related to a Dasher or a DoorDash Customer to a third party (except as required to comply with Law or pursuant to a court order); and (e) it will comply with the guidelines DoorDash publishes that govern any Merchant Content posts on the applicable DoorDash Product or Merchant Portal.
7.3. Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1(c), TO THE EXTENT PERMITTED BY APPLICABLE LAW, DOORDASH HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING ANY DOORDASH PRODUCT, AND EACH PARTY DISCLAIMS ALL WARRANTIES, EXPRESS IMPLIED, OR STATUTORY RELATED TO EQUIPMENT OR SERVICES PROVIDED TO THE OTHER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. Merchant acknowledges that it is acquiring DoorDash’s services in trade for the purposes of section 43(2) of the Consumer Guarantees Act 1993 (“CGA”) and section 5D of the Fair Trading Act 1986 (“FTA”), and that Merchant will not assert or attempt to assert any rights or claims against DoorDash under the provisions of the CGA, or sections 9, 12A and 13 of the FTA.
7.4. Remedies. In the event of a breach of Section 7.1(c), the non-breaching Party’s sole remedy, and the breaching Party’s sole liability, is indemnification pursuant to Section 8.1(d).
8. INDEMNIFICATION.
8.1. Indemnification. The Indemnifying Party will, at its own expense defend the Indemnified Party to the fullest extent permitted by Law, and also indemnify the Indemnified Party for any and all Losses arising out of any third-party claim that alleges or results from: (a) any breach of Section 7 by the Indemnifying Party or its Personnel; (b) the gross negligence or more culpable act or omission of the Indemnifying Party or Personnel (including any reckless misconduct) in connection with the performance of this Agreement; and (c) infringement or misappropriation of the intellectual property rights of any third party by the Indemnifying Party’s services (including, in the case of DoorDash, the DoorDash Product, and in the case of Merchant, the Merchant Applications) or Marks.
8.2. Process. The Indemnified Party shall provide the Indemnifying Party with: (a) prompt notice of any claims, which in no event shall be later than thirty (30) calendar days after the Indemnified Party knew or reasonably should have known that the Indemnifying Party’s defense obligation had been triggered; (b) the option to assume sole control over defense and settlement of any claim; and (c) reasonable assistance in connection with such defense and settlement of the claim, at the Indemnifying Party’s expense. The Indemnified Party may participate in the defense and settlement at its own expense. The Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent.
8.3. Exclusions. Notwithstanding Section 8.1(d) and for clarity: (a) the Indemnifying Party shall have no duty to defend any third-party allegations of intellectual property infringement or misappropriation (an “IP Claim”) arising out of or related to the conduct of persons or entities other than the Indemnifying Party or its Personnel; and (b) in the case of DoorDash, DoorDash shall have no duty to defend an IP Claim to the extent such IP Claim would not have occurred without Merchant’s use of the DoorDash Product in combination with a Merchant Application, or other Merchant-provided product, process, step, structure, data, or business method, and/or Merchant’s unauthorized modification of the DoorDash Product. Notwithstanding Section 8.1(a), DoorDash shall have no duty to defend or Indemnify Merchant for taxes, duties, and other governmental charges.
9. LIMITATION OF LIABILITY.
9.1. Direct Damages Only. Except with respect to amounts payable to third parties under Section 8, neither Party will be liable to the other for consequential, special, incidental, punitive, exemplary, or indirect damages or for lost profits, lost revenues, harm to goodwill, or the costs of procuring replacement services, regardless of whether such damages were foreseeable. This limitation will apply to all claims under all theories of law and equity, except where prohibited by Law.
9.2. Limitation. Except in the event of a Party’s gross negligence or willful misconduct, or payment obligations, and where prohibited by Law (collectively, the “LOL Exclusions”) or a Party’s indemnification obligations in this Agreement, the total liability of either Party to the other will not exceed $500,000.00. The total liability of either Party to the other for the LOL Exclusions will not exceed $2,000,000.00. For clarity, a Party’s obligation to pay third parties under Section 8 are uncapped.
9.3. Franchisees. For Merchants operating a franchise or similar structure, this limitation of liability applies to all Merchant Locations and all franchisees cumulatively and not individually.
10. CONFIDENTIALITY.
10.1. Precedence. The terms of this Section 10 supersede any non-disclosure or confidentiality agreement entered into by the Parties prior to the Effective Date of this Agreement.
10.2. Includes. Confidential Information includes information about the Discloser’s business, including product designs, product plans, software and technology, financial information, marketing plans, business opportunities, pricing information, discounts, inventions, and know-how, to the extent disclosed to the Recipient hereunder, and all other information that the Recipient knew, or reasonably should have known, was Confidential Information of the Discloser. Confidential Information also includes the terms and conditions of this Agreement and the existence of the discussions between the Parties. Confidential Information includes trade secrets as defined under applicable law (which includes the Uniform Trade Secrets Act).
10.3. Does Not Include. Confidential Information does not include information that: (a) is independently developed; (b) is or becomes public knowledge through no breach of this Agreement; or (c) is received from a third party under circumstances that do not create a reasonable suspicion that such information has been misappropriated or improperly disclosed.
10.4. Recipient Obligations. The Recipient shall: (a) use Confidential Information only as necessary to perform its obligations and/or exercise its rights under this Agreement; (b) hold Confidential Information in strict confidence and take reasonable precautions to protect such Confidential Information (including, without limitation, all precautions Recipient employs with respect to its own confidential materials); (c) not divulge any Confidential Information to any third party except as provided herein; and (d) not copy or reverse engineer any materials disclosed under this Agreement, or remove any proprietary markings from any Confidential Information.
10.5. Recipient Personnel. The Discloser acknowledges that the Recipient’s Personnel may have access to the Discloser’s Confidential Information. Any such Recipient Personnel given access to any Confidential Information must have a legitimate “need to know,” and the Recipient shall remain responsible for Recipient Personnel’s compliance with the terms of this Agreement.
10.6. Disclosure of Confidential Information. A Recipient may disclose Confidential Information as compelled by a court or regulator of competent authority, provided that the Recipient provides the Discloser with prompt written notice of such request, to the extent such notice is legally permissible and reasonably practicable.
11. DATA PRIVACY AND SECURITY.
11.1. Any additional data privacy and security terms required in order to comply with the privacy regulations applicable to the Parties’ partnership in other countries may be set forth in the applicable Product Addendum. The Recipient will establish, maintain, and implement an information security program, including appropriate administrative, technical, organizational, and physical safeguards, that are designed to: (a) ensure the security and confidentiality of Personal Information provided by the Discloser; (b) protect against threats or hazards to the security or integrity of such Personal Information; (c) protect against unauthorized access to or use of such Personal Information; and (d) ensure the proper disposal or destruction of such Personal Information. Each Party shall at all times comply with applicable data privacy and security Laws. If the Recipient becomes aware of any unauthorized access to or loss of Personal Information, it shall promptly report such incident to the Discloser and take appropriate remedial actions.
11.2. To the extent that DoorDash Data includes any Personal Information, the Merchant agrees:
(a) not to access, collect, store, retain, transfer, use or otherwise process in any manner the DoorDash Data other than as permitted by this Agreement or otherwise permitted by law;
(b) not to access, collect, store, retain, transfer, use or otherwise process in any manner the DoorDash Data for Merchant’s own purposes;
(c) not to disclose the DoorDash Data to any person except as permitted by this Agreement or required by law;
(d) to only process DoorDash Data to the extent reasonably necessary for lawful purposes connected with this Agreement and to ensure that its methods of processing are fair, lawful and do not unreasonably intrude on the affairs of any individual;
(e) if Merchant becomes aware or reasonably suspects any unauthorised or unlawful processing of, or any accidental loss, damage, destruction, alteration of or disclosure of the DoorDash Data, including any security incident, (“Breach”) Merchant will:
(i) immediately (and in any event no later than 24 hours after becoming aware of the Breach) report the Breach to DoorDash;
(ii) provide DoorDash with all reasonable assistance to enable DoorDash to comply with its legal obligations in respect of the Breach (including in making any necessary notifications to regulatory authorities and/or affected individuals);
(iii) cooperate in any investigations or enquiries of the Breach by any regulatory authority or law enforcement agency; and
(iv) take such actions to mitigate the Breach and, at its own cost, cooperate in investigating and mitigating the effects of the same;
(f) not transfer the DoorDash Data outside of New Zealand without DoorDash’s prior written consent;
(g) notify DoorDash if the Merchant receives a request from an individual to exercise the individual’s rights under the Privacy Act 2020 to access and/or correct their personal information and provide reasonable assistance in responding to each such access or correction request;
(h) not retain the DoorDash Data for longer than is needed to fulfil the purpose for which it was provided;
(i) to comply at all times with applicable data privacy and security Laws, including the Privacy Act 2020; and;
(j) Merchant will ensure that any subcontractor, subprocessor, or other third party processing DoorDash Data (a “Subprocessor”) on the Merchant’s behalf is aware of, and has agreed for the benefit of, and enforceable by both the Merchant and DoorDash for the purposes of Part 2, Subpart 1 of the Contract and Commercial Law Act 2017, to comply fully with all of the Merchant’s obligations under this clause, provided that the Merchant will at all times remain primarily liable to DoorDash for all of that Subprocessor's acts and omissions and DoorDash will not be deemed to have accepted any liability to any Subprocessor, or to have released the Merchant from any liability under this clause, by reason of the Merchant having appointed any Subprocessor under this clause.
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 $1,500,000.00 in annual sales across all DoorDash Product(s), each Party will maintain at its sole cost and expense: (a) commercial general liability insurance, including product liability, and excess liability endorsements of $1,500,000.00 per occurrence; (b) cybersecurity insurance up to $3,000,000.00 per claim and in the aggregate; and (c) umbrella/excess liability insurance up to $7,500,000.00 and in the aggregate.
12.2.2. For Merchants with less than $1,500,000.00 in annual sales across all DoorDash Product(s), each Party will maintain at its sole cost and expense: (a) commercial general liability insurance, including product liability, and excess liability endorsements of $1,500,000.00 per occurrence; (b) cybersecurity insurance up to $1,500,000.00 per claim and in the aggregate; and (c) umbrella/excess liability insurance up to $3,000,000.00 and in the aggregate.
12.3. DoorDash Requirements. In addition, DoorDash will 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, ARBITRATION, CONSOLIDATED ACTIONS WAIVER.
13.1. Governing Law and Arbitration. This Agreement is governed by New Zealand law. The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement. To the extent relevant, the parties agree that the provisions of the United Nations Convention on Contracts for the International Sales of Goods will not apply to this Agreement.
13.2. Arbitration Agreement. Any Dispute shall be finally resolved by binding arbitration except claims: (a) in small claims court, so long as the matter advances only on an individual (non-class, non-representative) basis; and (b) for injunctive relief arising out of the infringement or other misuse of intellectual property rights (such as a Party’s Marks or DoorDash IP). Any reference to arbitration under this clause will be deemed a submission to arbitration within the meaning of the Arbitration Act 1996. The Parties further agree that any and all arbitration proceedings, including any discovery, hearings and rulings, shall be confidential to the fullest extent permitted by Law provided that if the parties involved in any Dispute are unable to agree on an arbitrator within five (5) business days after delivery by one party to the other of any written notice setting out the Dispute and requiring the matter in Dispute to be referred to arbitration by a single arbitrator in accordance with this clause, either party may by written notice request that an arbitrator be appointed by the President of the New Zealand Law Society, whose appointment will be binding on the parties. Judgment on the resulting award may be entered in any court having jurisdiction. This arbitration agreement explicitly supersedes any and all different or contradictory terms included in the Agreement. This arbitration agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement, and explicitly supersedes any and all different or contradictory terms included in the Agreement.
13.3. Consolidated Actions Waiver. To the extent allowed by Law, separate and apart from Section 13.2, Merchant agrees that any proceeding to litigate in court any Dispute arising out of or relating to this Agreement will be conducted solely on an individual basis, and Merchant agrees not to seek to have any controversy, claim or Dispute heard as on a class, representative, or collective basis (“Consolidated Actions 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 Consolidated Actions Waiver shall only be determined by a court of competent jurisdiction. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void, or voidable with respect to a particular claim or Dispute, then all such claims or Disputes will be resolved in court, after the conclusion of the arbitration of any arbitrable claims or Disputes, and the remainder of this Section 13.3 shall remain in full force and effect. The Parties also waive the right to bring any claims for public injunctive relief. If, however, this waiver of public injunctive relief claims is deemed invalid or unenforceable with respect to a particular claim or Dispute, then all such claims and Disputes will then be resolved in arbitration.
13.4. Fees. In the event of any Dispute, the Party prevailing in such Dispute shall be entitled to collect from the other Party all costs incurred in such Dispute, including administrative, attorneys’ fees, costs of collection, and filing fees and the arbitrator’s fees and costs.
14. MISCELLANEOUS.
14.1. 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.
14.2. 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.
14.3. 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.
14.4. 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.
14.5. 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.
14.6. 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.
14.7. 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 14.7, 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.
14.8. 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.
14.9. 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.
14.10. Promotional Programs; Future Program Changes. This Section 14.10 applies only if Merchant operates a franchisee or similar structure.
14.10.1. 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”).
14.10.2. 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.
14.10.3. 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.
14.11. Franchisees. This Section 14.11 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”.
14.12. Partner Code of Conduct. Merchant agrees to comply with the Partner Code of Conduct (https://help.doordash.com/s/partner-code-of-conduct-nz) which may be updated by DoorDash from time to time.
14.13. No relationship. Other than as provided for in the Section 14.11, no obligation or other legal relationship is created between DoorDash and an Eligible Franchisee by this Agreement, other than, in the case of an Eligible Franchisee, by virtue of the Franchisee Agreement. This agreement does not confer any right, benefit or privilege on any such Eligible Franchisee or any other person.
14.14. Tipping. The Parties acknowledge and agree that tips are not customary in New Zealand and any tip requirements provided for in the Agreement will only apply to the extent tips are implemented.
14.15. Consent to communications.
14.15.1. The Merchant expressly agrees:
(a) to accept and receive communications from or on behalf of DoorDash and its corporate affiliates, Dashers, or other third parties providing services to Merchant or to or on behalf of DoorDash, including communications via email, SMS/text message, direct message, chat, calls, and push notifications to the contact information that Merchant has provided to DoorDash (including, without limitation, to the Merchant’s primary contact and to all store locations where Merchant is operating and engaged with DoorDash in connection with this business relationship)
(b) that SMS/text messages and calls (including pre-recorded/automated message calls) may be delivered to Merchant’s phone or device including via an automatic telephone dialing system.
14.15.2. The communications may include, without limitation, commercial or marketing messages; transactional or relationship messages (e.g. messages about Services, security, responses to communications initiated by Merchants, updates to policies/legal agreements (e.g., privacy policies, terms of service)); newsletters; research; and customer support). For Merchants who have started but not yet completed the onboarding process, we may transmit or initiate communications regarding the onboarding process and our services as well as marketing communications. Message and data rates may apply and message frequency may vary. If there are changes to the contact information for a Merchant (e.g., email address, phone number), Merchant agrees to update Merchant’s contact details with DoorDash to help prevent or limit DoorDash inadvertently communicating with someone else.
14.15.3. The opt-out options for communications are set out below. If Merchant opts-out of receiving communications via one channel (e.g., email) that opt-out will only apply to the specific channel for which the opt-out is submitted (e.g., if Merchant opts-out of receiving email communications, it will not apply to phone calls that DoorDash may send). Please see the following for more information:
(a) For email communications that permit an opt-out (e.g., commercial/marketing messages), there is an opt-out mechanism in the messages. For certain transactional or relationship email messages (e.g., messages about Services, security, responses to communications initiated by Merchant, earnings for Merchant Services, updates to policies/legal agreements (e.g., privacy policies, terms of service)) the only opt-out option is to delete the Merchant’s account; and
(b) For phone calls, Merchant can submit a request to be added to DoorDash’s internal do not call list by making the request during the call or contacting DoorDash Support at help.doordash.com.
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 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 Platform (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 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 inclusive of GST for the Merchant Products ordered by the Customer.
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 Platform 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. “GST” means goods and services tax charged under the GST Act at the rate prevailing from time to time.
16.21. “GST Act” means the Goods and Services Tax Act 1985.
16.22. “including” means “including without limitation”.
16.23. “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.
16.24. “Indemnifying Party” means the Party indemnifying the other Party pursuant to the terms of this Agreement.
16.25. “Law” means all laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees, or orders of any governmental authority applicable to the referenced Party.
16.26. “Licensee” means the Party receiving the license described in Section 5.
16.27. “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.
16.28. “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.
16.29. “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”, “
16.30. “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.
16.31. “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.
16.32. “Merchant Customer” means the Customer accessing the Merchant Application(s) to place an Order.
16.33. “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.
16.34. “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.
16.35. “Merchant Product” means the products (e.g., food, beverages, groceries, retail items, etc.) prepared, distributed, or sold by Merchant.
16.36. “Personnel” means a Party’s employees, agents, contractors, or subcontractors.
16.37. “Personal Information” has the meaning given to that term set out in the Privacy Act 2020.
16.38. “Order” means Delivery Orders and Pick Up Orders collectively.
16.39. “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).
16.40. “Party” means DoorDash or Merchant, as the context requires.
16.41. “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.
16.42. “Pick Up Order” means an Order that the Customer picks up at the Merchant Location, instead of being delivered by a Dasher.
16.43. “Product Addendum” means an addendum to this Agreement that describes the DoorDash Product that Merchant accesses pursuant to the terms herein.
16.44. “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.
16.45. “Recipient” means the Party receiving Confidential Information.
16.46. “Scheduled Order” means an Order that the Customer or Merchant indicates should be delivered at some point in the future.
16.47. “Term” means the period from the Effective Date until the date of termination.
16.48. “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.
16.49. “Unattended Order” means an Order that the Dasher leaves at the Customer’s front door or similar location.
16.50. “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, ARBITRATION, CONSOLIDATED ACTIONS WAIVER.
6.1. Governing Law and Arbitration. This Agreement is governed by New Zealand law. The parties submit to the non-exclusive jurisdiction of the New Zealand courts in respect of all matters relating to this Agreement. To the extent relevant, the parties agree that the provisions of the United Nations Convention on Contracts for the International Sales of Goods will not apply to this Agreement.
6.2. Arbitration Agreement. Any Dispute shall be finally resolved by binding arbitration except claims: (a) in small claims court, so long as the matter advances only on an individual (non-class, non-representative) basis; and (b) for injunctive relief arising out of the infringement or other misuse of intellectual property rights (such as a Party’s Marks or DoorDash IP). Any reference to arbitration under this clause will be deemed a submission to arbitration within the meaning of the Arbitration Act 1996. The Parties further agree that any and all arbitration proceedings, including any discovery, hearings and rulings, shall be confidential to the fullest extent permitted by Law provided that if the parties involved in any Dispute are unable to agree on an arbitrator within five (5) business days after delivery by one party to the other of any written notice setting out the Dispute and requiring the matter in Dispute to be referred to arbitration by a single arbitrator in accordance with this clause, either party may by written notice request that an arbitrator be appointed by the President of the New Zealand Law Society, whose appointment will be binding on the parties. Judgment on the resulting award may be entered in any court having jurisdiction. This arbitration agreement explicitly supersedes any and all different or contradictory terms included in the Agreement. This arbitration agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement, and explicitly supersedes any and all different or contradictory terms included in the Agreement.
6.3. Consolidated Actions Waiver. To the extent allowed by Law, separate and apart from Section 6.2, Franchisee agrees that any proceeding to litigate in court any Dispute arising out of or relating to this Agreement will be conducted solely on an individual basis, and Franchisee agrees not to seek to have any controversy, claim or Dispute heard as on a class, representative, or collective basis (“Consolidated Actions Waiver”). Franchisee further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all Parties to any such proceeding. The enforceability of this Consolidated Actions Waiver shall only be determined by a court of competent jurisdiction. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void, or voidable with respect to a particular claim or Dispute, then all such claims or Disputes will be resolved in court, after the conclusion of the arbitration of any arbitrable claims or Disputes, and the remainder of this Section 6.3 shall remain in full force and effect. The Parties also waive the right to bring any claims for public injunctive relief. If, however, this waiver of public injunctive relief claims is deemed invalid or unenforceable with respect to a particular claim or Dispute, then all such claims and Disputes will then be resolved in arbitration.
6.4. Fees. In the event of any Dispute, the Party prevailing in such Dispute shall be entitled to collect from the other Party all costs incurred in such Dispute, including administrative, attorneys’ fees, costs of collection, and filing fees and the arbitrator’s fees and costs.
7. CHANGE OF CONTROL. In the event there is a change or transfer in ownership of a Franchisee Location, Franchisee agrees that Franchisee will (1) notify DoorDash thirty (30) days prior to such change or transfer of ownership and (2) provide DoorDash with all relevant details related to the change or transfer of ownership, including the new owner’s contact information, the date of the change or transfer of ownership, and the relevant terms of the change or transfer of ownership (i.e., the existing amounts owed to DoorDash related to such Franchisee Location). In order for DoorDash to provide services to any new owner of a Franchisee Location, any amounts owed to DoorDash must be fully paid. DoorDash may elect, in its sole discretion, to perform a credit review on a new owner before providing services to such new owner.
8. MISCELLANEOUS. Notices under this Franchisee Agreement to each Party shall be sent to the respective address and contact set forth above. This Franchisee Agreement, including the incorporated Agreement, sets forth the entire agreement between DoorDash and Franchisee with respect to the subject matter hereof. This Franchisee Agreement supersedes and replaces in its entirety any agreement entered into between DoorDash and Franchisee for the Franchisee Locations prior to the Franchisee Effective Date.