Merchant Member Agreement
Terms and Conditions
These Terms and Conditions and the Order Form agreed to by Merchant Member whose name appears on the Order Form (collectively, the “Agreement”) set forth the terms and conditions on which Delivery.com, LLC is willing to provide to Merchant Member certain listing and other services using the Site (as defined below). In the event of a conflict between the Order Form and these Terms and Conditions, these Terms and Conditions shall govern and control. Merchant Member hereby agrees as follows:
1. Definitions. As used in this Agreement: the terms “we”, “our”, “us” and "ours" mean Delivery.com, LLC; the terms “Merchant Member”, “you” or “your” mean the entity which is agreeing to these terms and conditions and your franchisees; the tern “Credit Card Order Amount” means the total amount received by us for the orders placed with you on or using the Site by the Site customers transmitted by us to you during the applicable Payment Period and paid for by the Site customers using credit cards (e.g., American Express, Discover, Visa and/or MasterCard), debit cards (e.g., bank and/or university issued) or gift cards only (in each case, including tax, delivery, convenience or similar charges or fees and gratuities) net of charge-backs and fraudulent charges; the term “Delivery List” means a complete list of food, beverages, household, flower, gift and other items and/or dry cleaning, wash and fold, tailoring, alteration, clothing repairs, cobbler and other services, in each case, available for pick up, delivery and/or takeout, their prices, availability and, where applicable, images; the term “Other Services Fees” means the total amount of fees corresponding to the Other Services Type agreed by you on the applicable Order Form as well as applicable miscellaneous service administration fees, unless, in each case, paid by credit card, debit card or check as agreed by you on the applicable Order Form; the term “Payment Period” means the period selected on the applicable Order Form; the term “Processing Fees” means the total amount of Customer Service Fees plus Account Statement Fees plus Payment Processing Fees plus Delivery List Administration Fees and/or applicable miscellaneous listing fees, in each case, during the applicable Payment Period; the term “Site” means, collectively, our website, currently with the domain name delivery.com, and any and all mobile web, hybrid and/or native application and/or site version thereof on or using which customers may place orders for food, beverages, household, flower, gift and other items and/or dry cleaning, wash and fold, tailoring, alteration, clothing repairs, cobbler and other services for pick up, delivery and/or takeout; the term “Total Sales Amount” means the subtotal (i.e., before our discounts and promotions) dollar amount of all the orders placed with you on or using the Site by the Site customer excluding tax, gratuities, delivery charges and your discounts and promotions (but including convenience or similar charges and fees) transmitted by us to you during the applicable Payment Period and paid for by the Site customers using all types of payment, including credit cards, debit cards, gift cards or cash; and “including”, “includes”, “e.g.” and the like mean “including, without limitation”. Account Statement Fees, Customer Service Fees, Delivery List Administration Fees, Payment Processing Fees, Payment Method and Service Fees are stated on the applicable Order Form. All other capitalized terms used in the Agreement are defined below.
2. Merchant Member’s Obligations. (A) You agree to promptly provide to us any and all information and content, including your Delivery List, images, logo and graphics, in each case, in the format reasonably requested by us from time to time to enable us to provide to you the credit card processing services, listing and other services using the Site. You represent and warrant that (i) you hold and shall continue during the term of this Agreement to hold any and all permits, authorizations and licenses necessary and/or required to operate your business; (ii) any and all information, images and content provided by you or on your behalf in connection with the credit card processing services, listing and/or other services we provide to you and/or this Agreement is accurate, current and complete and you have the right to provide and we have the right to use such information, images and content in connection with credit card processing services, listing and/or other services we provide to you and/or this Agreement without violation of any proprietary or other right of any third party or any law, rule or regulation; (iii) you operate and shall continue to operate your business in compliance with all applicable laws, rules and regulations and (iv) you have the legal right and full power and authority to execute and deliver, and to perform your obligations under this Agreement and all the documents which are to be executed by you as contemplated by this Agreement. (B) Any and all information of, about or relating to Site customers (including email addresses, postal addresses, phone numbers) that may be provided to you by us or on our behalf and/or that may be available to you via the Site (collectively, “User Information”) is confidential and proprietary to us. You shall not disclose to any third party or use any User Information for any purposes other than delivering to such Site customers their orders for food, beverages, household, flower, gift and/or other items and/or dry cleaning, wash and fold, tailoring, alteration, clothing repairs, cobbler and/or other services for pick up, delivery and/or takeout, in each case, placed by such customers on or using the Site. Upon termination of this Agreement, and in any event upon our written request from time to time, you shall promptly delete any and all User Information in your possession or control. (C) You agree to comply with any and all applicable laws, rules, regulations and ordinances as well as any and all requirements of the credit card associations, credit card processors and ours in connection with this Agreement, credit card processing services, listing and/or other services we may provide to you and any and all laws, rules, regulations and ordinances applicable to your business and/or operations. You agree not to disclose the terms or conditions of this Agreement, except to your officers, directors, employees, attorneys and accountants with a need to know who are bound by a duty of confidentiality. (D) You shall maintain the same prices for the food, beverages, household, flower, gift and other items and/or dry cleaning, wash and fold, tailoring, alteration, clothing repairs, cobbler and other services, in each case, listed on the Site as you do in your physical store and on your website and shall honor discounts and promotions offered or advertised by you from time to time. You agree to accept any and all orders placed with you on or using the Site by the Site customers, honor the prices and products and/or services description quoted on the Site at the time the order is placed and timely update the Delivery List, including price and item description and availability changes. (E) For the avoidance of doubt, you may accept cash for orders placed with you on or using the Site by the Site customer unless (i) agreed otherwise by you on the applicable Order Form, or (ii) notified by us to you in writing from time to time; in each case unless prohibited by applicable law. (F) You shall install any equipment reasonably required by us in connection with receiving and/or fulfilling orders (“Equipment”) and you shall promptly reimburse Delivery.com for any damage to or loss of any such Equipment.
3. Use of Name, Logo and Delivery List. You shall not use our or our affiliates’ name(s), trademark(s), service mark(s) or trade name(s) without our prior written consent on a case by case basis, which, if given, may be withdrawn at any time. You agree that we may, from time to time, list item(s) from the Delivery List on the Site, websites that we own and/or operate as well as third party websites in connection with the Site and/or in the regular course of our business, including for the purposes of connecting users and/or sending orders to the Site. In addition, you agree, consent to and authorize our use of your and your affiliates’ name(s), trade name(s), trademark(s), service mark(s), logo(s), Delivery List, and any and all information, images and content provided by you or on your behalf (collectively, “Merchant Member Information”) in connection with our credit card processing services, listing and other services, this Agreement, the Site and/or in the regular course of our business, including for the purposes of connecting users and/or sending orders to the Site. You hereby consent to our use of any Merchant Member Information as set forth in this Section 3, in each case, with or without notice to you, without any fee, license or charges payable by us, and you hereby waive any and all rights, claims and causes of action of any kind whatsoever that you may have, now or in the future, in connection with any such use. For the avoidance of doubt, we may reference your name as one of our merchant members, including in our standard marketing materials or press releases.
4. Credit Card Processing Services; Fees; Taxes. (A) In connection with credit card processing for the orders placed with you on or using the Site by the Site customers, following the end of the applicable Payment Period you will be paid the following amount using the applicable Payment Method: Credit Card Order Amount less Service Fees less Processing Fees less credit card processing fees (i.e., 2.75% times Credit Card Order Amount plus US$.25) per order placed with you on or using the Site by the Site customers transmitted to you during the applicable Payment Period and paid for by the Site customers using credit cards or debit cards only) less, where selected on the applicable Order Form, Other Services Fees. (B) In the event that a payment attempted to be made to you fails, including because any of the information you provided is incomplete, inaccurate or untrue, you shall promptly pay us a US$2.00 fee per failed payment attempt. (C) In the event that Credit Card Order Amount is less than the sum total of the Service Fees, Processing Fees, credit card processing fees and Other Services Fees (collectively, “Fees”), you shall promptly pay to us the amount by which the Fees exceed the Credit Card Order Amount as indicated on your account statement issued by us and accessible to you (whether assessed by you or not) by mail or on the Site, as agreed by you on the applicable Order Form. (D) Any and all sales, use and other taxes which may be levied as a result of this Agreement shall be your responsibility, excluding taxes based on our net income. To help you comply with your regulatory obligations, we have included in the applicable Order Form a field titled “Sales Tax” that will allow us to add the applicable sales tax, if any, indicated by you (or by us on your behalf) to the orders placed with you by the Site customers on or using the Site. You represent and warrant that the percentage of the sales tax indicated on the applicable Order Form and the comments provided by you in the Sales Tax Comments field of the applicable Order Form comply with any and all applicable laws, rules and regulations, as may be amended from time to time. Unless indicated by you in writing in the Sales Tax Comments field of the applicable Order Form, you authorize us to apply such tax percentage, if any, on your behalf to all items in the Delivery List. (E) As a courtesy, we may, from time to time, give Site users an option to pay a gratuity (also referred to as a tip) for the delivery of an Order. Gratuities will be remitted to you and, without limiting anything set forth herein, you agree that you shall promptly pay in full to your delivery personnel any and all such gratuities.
5. Legal Process. You hereby acknowledge and agree that, without limiting anything set forth herein, and without limiting or affecting any of our rights at law or in equity: (A) following receipt of any subpoena, regulatory authority or regulator request or order relating to you are authorized, without notice to you, unless otherwise required by law, to provide the subpoenaing or requiring party with any and all information that is requested or that we otherwise believe to be relevant in connection with such subpoena or requirement; (B) following receipt of any notice of levy, process in attachment, or other proceeding relating to you, we are authorized, without notice to you, unless otherwise required by law, to withhold payments to you of so much of the balance of your account and pay such amount to the court, creditor, or other party in accordance with applicable law, in each case, without liability to you; and (C) we may, at any time, without notice to you, set off any liability of Merchant Member to Delivery.com against any liability of Delivery.com to Merchant Member, whether either liability is present or future, liquidated or unliquidated, and whether or not either liability arises under this Agreement.
6. Term; Termination; Survival. The term of this Agreement shall commence on the date set forth in the signature block on the applicable Order Form and shall continue until terminated by you by at least sixty (60) days prior written notice to us. We may terminate this Agreement by a written notice to you, in each case, in whole or in part, at any time and for any or no reason, including in the event of any breach of Section 2(B). In addition, we may suspend any services hereunder at any time, with or without notice. Following termination of this Agreement, Merchant Member’s listing and Delivery List will be reasonably promptly removed from the Site, provided, however, that this Agreement shall continue in full force and effect until such listing and Delivery List are removed or cease to be accessible to the Site customers. Sections 2(B) and Sections 3 to 9 shall survive termination of this Agreement.
7. Disclaimers; Limitation of Liability; Indemnification.
(A) WE HEREBY EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, GUARANTIES, CONDITIONS, COVENANTS AND REPRESENTATIONS RELATING TO THE SITE AND ANY SERVICES, INCLUDING, ANY RELATING TO MERCHANTABILITY, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, TIMELINESS, ABSENCE OF VIRUSES OR DAMAGING OR DISABLING CODE, ANY WARRANTIES OR REPRESENTATIONS THAT THE SITE OR SERVICES OR ACCESS TO ANY PORTION OF THE SITE OR SERVICES WILL BE (I) UNINTERRUPTED OR ERROR-FREE, OR (II) THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTABLE OR CORRECTED, OR OTHER ATTRIBUTES, WHETHER EXPRESS OR IMPLIED (IN LAW OR IN FACT), ORAL OR WRITTEN, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. WE HAVE NO RESPONSIBILITY TO INFORM OF ANY DIFFICULTIES WE OR OTHER THIRD PARTIES EXPERIENCE CONCERNING USE OF THE SITE OR SERVICES OR TO TAKE ANY ACTION IN CONNECTION WITH THOSE DIFFICULTIES. UNLESS OTHERWISE REQUIRED BY APPLICABLE LAWS, WE ALSO WILL HAVE NO DUTY OR OBLIGATION TO VERIFY, CORRECT, COMPLETE OR UPDATE THE SITE OR SERVICES OR ANY CONTENT DISPLAYED IN OR AVAILABLE THROUGH THE SITE OR SERVICES. THE SITE AND SERVICES ARE BEING PROVIDED “AS IS” AND “AS AVAILABLE”.
You shall indemnify and hold harmless us, our affiliates and our and their officers, partners, employees, agents, vendors and the Site customers (collectively, “Indemnified Parties”) from and against any and all claims, demands, losses, costs, liabilities, damages and expenses (including investigation fees and reasonable attorneys' fees) related to or arising out of: (a) any breach of this Agreement by you or on your behalf, (b) advertising or other information, images or content provided to us by you or on your behalf, (c) any of your operations or acts or omissions (including of any member(s) of your network (including subcontractors) that fulfill the orders placed with you on or using the Site by the Site customer) and/or of your or their employees or agents, and/or (d) any other services provided by us. (For the avoidance of doubt, this includes claims for tax liabilities, libel, plagiarism, copyright infringement, trademark and trade dress infringement, and unauthorized use of a person’s name or image.) You represent and warrant that you have the right to provide to us any and all advertising and other information, images and content and such information, images and content is not infringing, misappropriating or violating any rights of any third parties. Indemnified Parties shall have no liability (whether arising under contract, negligence, tort, breach of statutory duty or otherwise) for any damages or loss of any kind, including direct, loss of profit, lost business, loss of revenue or opportunity (in each case, whether direct or indirect), or any indirect, punitive or consequential, even if they were advised of the possibility thereof, that occur or may occur as a result of your listing or advertising on the Site, credit card services provided to you, listing and/or any other services provided to you, including any and all activities, directly or indirectly, related to or in connection with the fulfillment of orders or your listing or advertising on the Site (collectively, the “Services”), including incorrect listings or conveyance of banking information, fraudulent orders, non-payment by the Site customers or any other damages.
8. Marketing of Delivery.com. You agree to: (i) prominently display our promotional and/or advertising materials (as provided by us from time to time) in your physical store, including a window sign and a cash register sticker; (ii) insert flyers or cards advertising the Site (as provided by us from time to time) into all bags or packaging containing orders placed on or using the Site; and (iii) include our logo and brief marketing message (as provided by us from time to time) on your delivery/takeout menus and/or products/services lists. You shall ensure that no marketing or similar materials of any other company that offers online ordering or that aggregates merchant listings as its primary business shall be included with or as part of packaging of the delivered food, beverages, household, flower, gift or other items and/or dry cleaning, wash and fold, tailoring, alteration, clothing repairs, cobbler and other services for pick up, delivery and/or takeout ordered by the Site customers. You agree that during the term of this Agreement, you shall not, directly or indirectly, provide services that, in the reasonable judgment of Delivery.com, compete with or that may compete with the ones provided by Delivery.com.
standard version February 2020