DoorDash Alcohol Delivery Terms of Service
This is an addendum to existing terms of service between DoorDash and merchants that use DoorDash Services through On-Demand Delivery. UNDER NO CIRCUMSTANCES WILL SQUARE, INC. BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM THE DELIVERY OF ALCOHOL PRODUCTS.
Legal notices: email@example.com
Alcohol Product Addendum Effective Date: May 18th, 2023
This Alcohol Product Addendum (“Alcohol Addendum”) is incorporated into the Agreement. All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Sign-Up Sheet, in this Voice Addendum, or in the Terms of Service between the parties (the “Agreement”). Merchant is a retailer licensed to sell Alcohol Products for pick-up or delivery, and the Parties wish to incorporate the following terms specific to the sale and/or delivery of Alcohol Products to consumers in Applicable Jurisdictions. Merchant agrees to be bound by this Alcohol Addendum by (i) submitting an Alcohol Order, whether directly with DoorDash or through a third party, or (ii) Merchant’s express agreement to these terms.
1.1 “Alcohol Laws” means all applicable federal, state/provincial, and local laws, regulations, ordinances, rules, and policies related to Alcohol Products.
1.2“Alcohol Licenses” means all applicable licenses, permits, license and/or permit endorsements, and/or authorizations from state/provincial and/or local alcohol licensing authorities.
1.3 “Alcohol Products” means age-restricted alcohol beverages or other age-restricted alcohol products identified to DoorDash as such by Merchant and sold by Merchant.
1.4 “Applicable Jurisdictions” means any jurisdiction that permits sales of Alcohol Products for pick-up or delivery from time to time during the Term.
1.5 “End Customer Order” means an order for Alcohol Products placed by an End Customer.
1.6 “Damages” means all liability, cost, expense, claim, loss or damage caused by any act or omission by Merchant, including, but not limited to, injury (whether to body, property, personal or business character or reputation) sustained by any person or to any person or to any property relating to the production, sale, and/or delivery of the Alcohol Products which may result from the sale or distribution of the Alcohol Products under this Alcohol Addendum.
1.7 “DashPass Order” means an End Customer Order placed by an End Customer who has agreed to the terms and conditions of DashPass.
1.8 “DoorDash Product” means the DoorDash technology that Merchant accesses or DoorDash provides that will allow information to be exchanged between Merchant and DoorDash.
1.9 “End Customer” means the purchasing consumer.
1.10 “Include” or “including,” and any variation thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words “without limitation.”
1.11 “Indemnified Party” means the other Party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees and agents.
1.12 “Indemnifying Party” means the Party indemnifying the other Party pursuant to the terms of this Alcohol Addendum.
1.13 “Merchant Location,” as used herein, or “Merchant Store,” as may be used in other parts of the Agreement, shall be treated as equivalent definitions, each meaning the Merchant store, location, warehouse, or restaurant that are within the territory serviced by DoorDash and includes any of the foregoing entities: (a) entities owned and operated by Merchant and/or its affiliates, and/or (b) entities owned and operated by franchisees of Merchant or its affiliates which have signed the Franchisee Agreement.
1.14 “Party” means DoorDash or Merchant, as the context requires.
1.15 “Product” means a product sold by Merchant.
1.16 “Self-Delivery Order” means an Order placed through the DoorDash Product for delivery by Merchant’s delivery personnel.
1.17 “Term” means the period beginning on the Alcohol Addendum Effective Date and continuing until the earlier of (i) for each Applicable Jurisdiction, until a change in any Alcohol Law(s) (or enforcement thereof) prohibits Merchant from selling Alcohol Products for pickup or delivery in such Applicable Jurisdiction(s), or (ii) this Alcoholic Beverage Addendum is terminated by either Party upon notice to the other Party. If either Party terminates the MSA/TOS, this Alcoholic Beverage Addendum shall automatically terminate.
2. ALCOHOL BEVERAGE LICENSING.
2.1 Merchant represents and warrants that it holds and will maintain in good standing throughout the Term the Alcohol Licenses required for the sale of Alcohol Products directly to consumers in Applicable Jurisdictions, including any Alcohol Licenses required to accept orders for Alcohol Products from consumers directly or through a third party via the internet and/or to deliver Alcohol Products to consumers, as applicable. Merchant further represents and warrants that it currently complies with and will continue to comply with all Alcohol Laws, and that it is responsible for Alcohol Law compliance related to its activities and any sales or deliveries of Alcohol Products under this Alcohol Addendum. Merchant acknowledges and agrees that End Customer Orders will be fulfilled based on and under its legal rights under its Alcohol Licenses.
3. SELLER OF RECORD.
3.1 Merchant is the seller of all Alcohol Products under the Agreement. Merchant shall at all times be solely responsible for determining the selection and setting the price of all Alcohol Products sold in connection with this Alcohol Addendum. For avoidance of doubt, title for all Alcohol Products sold under this Alcohol Addendum shall pass directly from Merchant to the End Customer, as applicable, (i) if an Order is placed for delivery by a Dasher, upon pickup by the Dasher at the Merchant’s location, (ii) if an Order is placed as a Self-Delivery Order, at the End Customer’s delivery location upon delivery by Merchant’s delivery personnel to the End Customer, or (iii) if an Order is placed for pick-up by the End Customer, at the Merchant Location location at the time of pick-up.
3.2 The Parties agree that DoorDash shall not receive any proceeds from the sale of Alcohol Products. Merchant acknowledges and agrees that Merchant will pay DoorDash reasonable fees for its marketing and delivery facilitation services, as set forth in the MSA/TOS or as otherwise set forth in this Alcohol Addendum.
4. ALCOHOL PRODUCTS.
4.1 Merchant may only offer Alcohol Products for Self-Delivery Orders placed through the DoorDash Product if Merchant has entered into a Self-Delivery Product Addendum with DoorDash, and, in such event, Merchant represents and warrants that it will not use Flexible Fulfillment or any Dasher delivery fulfillment option for Self-Delivery Orders in Applicable Jurisdictions that do not permit third party delivery fulfillment of orders that contain Alcohol Products.
4.2 Merchant represents and warrants that it will not offer Alcohol Products on the DoorDash Product during days of the week and times of day during which Merchant is not authorized to sell and deliver Alcohol Products under the applicable Alcohol Laws.
4.3 Merchant will offer Alcohol Products for delivery only to the extent authorized by Merchant’s Alcohol Licenses, and in containers and packages authorized under Merchant’s Alcohol Licenses and the applicable Alcohol Laws, including Alcohol Laws related to the delivery method for Alcohol Products. In no case shall Merchant offer Alcohol Products in “kegs” or other containers the volume of which is 7.75 gallons or more on the DoorDash Product.
4.4 In the event that any government agency or regulatory body provides guidance that any terms of this Alcohol Addendum are in violation of, or prohibited by, any Alcohol Laws, such terms shall be deemed to be amended or deleted to conform to such Alcohol Laws. Alternatively, in such circumstances, either Party may terminate this Alcohol Addendum upon written notice to the other Party.
5. PAYMENTS, PROCESSING, PAYMENT AND TAXES.
5.1 Fees/Flat Fees for Orders in Certain States. DoorDash will charge Merchant the fee rate indicated in the MSA for all Orders that are placed in the Applicable Jurisdictions and include Alcohol Products; provided, however, that if any Applicable Jurisdiction requires that DoorDash charge a flat fee for its services related to the sale of Alcohol Products and the fee indicated in the MSA is anything other than a flat fee, DoorDash will instead charge Merchant the applicable fee set forth on Exhibit A. For the avoidance of doubt, Exhibit A shall not apply in the context of Drive Orders or any Order outside the United States.
5.2 Certain End Customer Payments. For End Customer Orders facilitated through Marketplace or Storefront in the United States, Queensland, Australia, and such other jurisdictions as may be identified by DoorDash from time to time, the End Customer’s payment for all End Customer Orders containing Alcohol Products shall be processed by a third-party payment processor, and all proceeds for such End Customer Orders shall be remitted to Merchant. In connection with such End Customer Orders, Merchant agrees to comply with the terms and conditions of Section 2 in Exhibit B.
5.3 To the extent Merchant makes use of the Dasher Shop & Deliver (DSD) Model, whereby Dashers provide Pick and Pack services, Exhibit B applies in the United States and in such other jurisdictions as may be identified by DoorDash from time to time with such modifications as DoorDash deems commercially reasonable, in its sole and absolute discretion, to comply with applicable laws.
6. DELIVERY, AGE, AND RECORDS.
6.1 Upon receipt of an End Customer Order on the DoorDash Product, DoorDash shall transmit the End Customer Order to Merchant for Merchant’s review and approval or rejection.
6.2 If an End Customer Order is placed for delivery fulfillment through DoorDash, a Dasher will pick up the End Customer Order from Merchant’s licensed premises and deliver it only to the delivery address provided by the applicable End Customer. Upon delivering an End Customer Order, Dashers shall be prompted to: (i) check that the recipient is at least the legal drinking age in the Applicable Jurisdiction by scanning and otherwise inspecting the recipient’s government-issued ID; and (ii) check that the recipient is not visibly intoxicated.
6.3 If an End Customer Order is placed for Self-Delivery, Merchant agrees that its delivery personnel will deliver the End Customer Order from Merchant’s licensed premises only to the delivery address provided by the applicable End Customer. Upon delivering an End Customer Order, Merchant represents and warrants that its delivery personnel will only deliver the End Customer Order: (i) if there is a recipient to accept delivery of the Alcohol Product; (ii) such recipient is at least the legal drinking age in the Applicable Jurisdiction; and (iii) such recipient is not visibly intoxicated.
6.4 If an End Customer Order is placed for pick-up at the Merchant’s licensed premises, Merchant represents and warrants that it will only provide the End Customer Order to the End Customer if the End Customer (i) is at least the legal drinking age in the Applicable Jurisdiction; and (ii) is not visibly intoxicated.
6.5 For any delivery fulfillment requested via the DoorDash Drive platform, Merchant represents and warrants that it will collect the necessary consent where required from the End Customer for the collection, storage, and/or use of personally identifiable information to facilitate the process of checking that the recipient of Alcohol Products is at least the legal drinking age in the Applicable Jurisdiction.
7.1 DoorDash shall provide End Customers with credits and/or refunds as set forth in the Agreement, as applicable. DoorDash in its discretion shall determine whether to process any returns, exchanges, or substitutions of Alcohol Products that have been delivered to or picked up by End Customers. If DoorDash does not process returns, exchanges, or substitutions of Alcohol Products, Merchant will solely be responsible for and handle all customer support issues relating to such returns, exchanges, or substitutions. If applicable, any refunds will be processed in accordance with DoorDash’s customer support procedures.
7.2 An Alcohol Product will be deemed ‘undeliverable’ in any of the following circumstances: (i) the recipient does not present valid identification indicating that they are of the legal age to consume an Alcohol Product; (ii) the recipient is visibly intoxicated; (iii) any written instructions provided by the Merchant related to the delivery of the Alcohol Product cannot reasonably be complied with by DoorDash or a Dasher as determined by their respective sole discretion; or (iv) there are circumstances that would render the delivery of the Alcohol Product unreasonable or a violation of applicable laws as determined by DoorDash or a Dasher in their respective sole discretion. In the event that DoorDash facilitates the return of any undeliverable Alcohol Product, Merchant is obligated to accept and process such returns in accordance with applicable law and this Section 8.
8. REPRESENTATIONS AND WARRANTIES.
8.1 In addition to the representations and warranties set forth in the Agreement and elsewhere in this Alcohol Addendum, and notwithstanding anything to the contrary, the Parties make the following representations, warranties, and covenants.
8.2 Mutual. DoorDash and Merchant hereby represent and warrant that each complies and shall continue to comply during the Term with all applicable laws necessary for each to perform its obligations under this Alcohol Addendum and the MSA/TOS (including, with respect to Merchant, any laws, rules or regulations in the Applicable Jurisdiction(s) that require Merchant to sell Alcohol Products along with food products, or that impose other restrictions or requirements related to the sale of Alcohol Products).
8.3 DoorDash. DoorDash hereby represents and warrants that it shall ensure that Dashers fulfilling End Customer Orders for Alcohol Products: (i) will be at least the legal drinking age in the Applicable Jurisdiction; and (ii) will have received materials relating to the delivery of Alcohol Products in accordance with Alcohol Laws, including checking that recipients are at least the legal drinking age in the Applicable Jurisdiction and identifying whether individuals are visibly intoxicated.
8.4 Merchant. Merchant hereby represents and warrants that: (i) it shall promptly inform DoorDash of any regulatory or governmental inquiry that could reasonably jeopardize Merchant’s legal ability to sell or deliver Alcohol Products or otherwise perform its obligations under this Alcohol Addendum; (ii) it is solely responsible with respect to the Parties for tagging and identifying all applicable Merchant Products as Alcohol Products, so that such Merchant Products are designated as age-restricted on the DoorDash Platform and/or in End Customer Orders sent to DoorDash for delivery fulfillment and trigger age-restricted procedures; and (iii) it shall ensure that its delivery personnel fulfilling delivery of End Customer Orders that include Alcohol Products: (1) will be at least the legal drinking age in the Applicable Jurisdiction; (2) will have received materials relating to the delivery of Alcohol Products in accordance with Alcohol Laws, including checking that recipients are at least the legal drinking age in the Applicable Jurisdiction and identifying whether individuals are visibly intoxicated; and (3) will make records available to DoorDash upon request for purposes of DoorDash’s compliance with Alcohol Laws.
In addition to the indemnities set forth in the MSA/TOS, the Indemnifying Party will defend, indemnify, pay, and hold harmless the Indemnified Party from and against any third-party claims arising from the breach of any representations or warranties or covenants made under this Alcohol Addendum. Notwithstanding the foregoing, Merchant assumes all responsibility for, shall bear all liabilities and expenses and shall indemnify and hold DoorDash harmless from all Damages caused by any act or omission by Merchant, including injury (whether to body, property, personal or business character or reputation) sustained by any person or to any person or to any property relating to the production, sale, and/or delivery of the Alcohol Products which may result from the sale or distribution of the Alcohol Products under this Alcohol Addendum (but excluding any Damages solely to the extent they arise from the gross negligence or willful misconduct of DoorDash or any Dasher).
10. LIMITATION OF LIABILITY.
The Parties agree that (i) neither party will be liable to the other, under this Alcohol Addendum, for indirect, special, incidental, exemplary, punitive, or consequential damages, or lost profits, lost revenue, harm to goodwill, the costs of procuring replacement services, or costs of training employees or contractors, regardless of whether such damage was foreseeable, and (ii) each Party’s maximum aggregate liabilities related to or in connection with this Alcohol Addendum shall not exceed the total amount paid or payable by one Party to the other Party under this Alcohol Addendum in the twelve (12) month period immediately preceding any claim. This limitation will apply to all claims under all theories of law and equity, except where prohibited by law.
This Alcohol Addendum begins on the Alcohol Addendum Effective Date and may be terminated pursuant to the terms of the MSA/TOS. DoorDash reserves the immediate right, at its sole discretion, to suspend, discontinue, or terminate, in whole or in part, the delivery fulfillment of any Alcohol Product.
With the exception of Section 6.1 above, if there is a conflict between the provisions of this Alcohol Addendum and the Agreement, the provisions of this Addendum will control. In addition, this Addendum supersedes any prior agreements between or among the Parties concerning the matters governed hereby (namely, Alcohol Products).