Restaurant Terms & Conditions
1. Caviar Responsibilities
If applicable, Caviar, LLC, a wholly-owned subsidiary of Doordash, Inc. (“Caviar”) will work with Restaurant to add the Menu Items and price charged for each Menu Item (collectively, “Prices”) to the Caviar Platform. Caviar will notify Restaurant of each Order when received from Customers using the Services. For each Order confirmed as accepted by Restaurant Caviar will: (a) coordinate the Customer pick up and/or Caviar Delivery, if applicable, of the Order; (b) charge and collect from Customer the price for the Menu Items ordered and all applicable fees and taxes; and (c) remit Restaurant Revenue Share and Payout Report in accordance with the terms of this Agreement. Provided Restaurant complies with its responsibilities in Section 2, for Caviar Delivery Orders Caviar shall be responsible for the quality of the Menu Items after courier pick up and delivery.
2. Restaurant Responsibilities
Restaurant shall, in a timely manner: (a) provide Restaurant’s location(s), the Menu Items and corresponding Prices; (b) participate in a photo shoot of Menu Items arranged by Caviar, if applicable; and (c) provide nutritional information for Menu Items, where legally required. When Customers place Orders, Restaurant shall in a timely manner: (x) accept Orders via the Caviar Platform, email, fax, and/or phone, as applicable; (y) prepare and properly package the correct Menu Items for pick up and/or delivery, as applicable; and (z) coordinate Restaurant Powered Delivery, if applicable, of the Order with the Customer. Restaurant is solely responsible for the quality, condition, availability, packaging and freshness of the Menu Items prior to pick up (either by Customer or Caviar Delivery) and, in the case of Restaurant Powered Delivery, Restaurant is solely responsible for the quality, condition, availability, packaging and freshness of the Menu Items until delivery of the Menu Items to the Customer, and that Menu Items are of similar quality and taste as the same items Restaurant serves to its other customers. Restaurant is solely responsible for the conduct and actions of its delivery personnel, including, as necessary, any screening, supervision, or discipline of its delivery personnel. Restaurant will require its direct and indirect employees, subcontractors, and agents of Restaurant, including, but not limited to, delivery personnel, (“Restaurant Personnel”) to comply with the applicable terms of this Agreement. Restaurant will be liable for the work performed by, and for the acts and omissions of, all Restaurant Personnel. From time to time, Caviar may impose additional charges for which Restaurant will be liable, for example: order errors or delays caused by Restaurant, missing items, equipment damage, or Restaurant closures without notice (“Restaurant Charges”). Furthermore, unless otherwise agreed to in writing, Restaurant agrees the price of each Menu Item on the Caviar Platform will not be greater than the price charged for that Menu Item on any other food ordering and/or delivery platform(s). In the event such Menu Items cost more on the Caviar Platform than on any other food ordering and/or delivery platform(s) Caviar will have the sole discretion to update the price for each Menu Item on the Caviar Platform to accurately reflect the lowest amount offered on any other food ordering and/or platform(s). Restaurant agrees to Caviar deducting such difference in cost from Orders in future payouts to the Restaurant. In addition, Caviar will have the sole discretion to update the Total Price for each Menu Item on the Caviar Platform. Additionally, Caviar retains the sole discretion to make edits to any content uploaded to the Caviar Platform by Restaurant, including the discretion to remove images and language deemed inappropriate by Caviar, edit typographical or grammatical errors or inconsistencies, and remove any Menu Items added by Restaurant.
Restaurant shall be solely responsible for: (a) setting the correct applicable Tax amount; (b) verifying that the Tax amount reflected on the Payout Report is correct; (c) filing all Tax returns; and (d) remitting all required Tax due in connection with the sale of Menu Items to the appropriate taxing authorities. Restaurant agrees to provide to Caviar, upon request, all documentation necessary to support its compliance as it relates to its timely payment of taxes, including proof of payment and tax returns and associated workpapers with Caviar order reference numbers. Notwithstanding the above, Restaurant authorizes Caviar to accept tax exemption certificates submitted by Customers, and to refund to applicable Customers the sales tax assessed (the “Sales Tax Refund”) on their Caviar orders with Restaurant. Caviar will process all such Customer requests on behalf of Restaurant by accepting the tax exemption certificate and issuing the Sales Tax Refund to Customers. Caviar will provide to Restaurant the tax exemption certificate along with the order information to which the exemption applies. Restaurant is responsible for validating the authenticity and accuracy of all tax exemption certificates submitted by Customers. In the event of any dispute involving a tax exemption certificate or the Sales Tax Refund, Restaurant must contact the applicable Customer for a resolution.
Either Party may terminate this Agreement, with or without cause, upon thirty (30) days’ prior written notice to the other Party, unless otherwise agreed to in writing.
5. Limited License
Restaurant grants Caviar a revocable, non-exclusive, royalty-free, limited license (the “License”) to reproduce, use and display Restaurant’s name, logo, and trademarks (collectively, “Trademarks”) on the Caviar Platform and general marketing materials to advertise the Services including images and descriptions of the Menu Items. Caviar’s use of the Trademarks shall inure to the sole benefit of Restaurant. Caviar shall not use the Trademarks in any manner that would injure or demean the reputation of Restaurant, the Trademarks, or the goodwill associated therewith. Caviar shall not alter, change, edit or otherwise modify any of the Trademarks. Upon termination of this Agreement, Caviar shall cease all use of the Trademarks and take commercially reasonable action to remove all promotional and advertising materials containing any Trademarks from the marketplace. In the event that Caviar pays for photography of Menu Items or other materials as part of marketing the Services, the Parties agree Caviar shall own such materials, and that Restaurant shall not use any such materials without Caviar’s prior written consent. Caviar shall cease use of materials referencing Restaurant or Menu Items upon termination of this Agreement. Notwithstanding the foregoing, Restaurant may not use such photographs in connection with any other delivery or ordering services that are in direct competition with Caviar, as determined by Caviar.
The Parties shall not disclose any of the terms and conditions of this Agreement, including each Party’s revenue share percentage, to any third party unless required by law, with the exception of those persons who have a need to know and agree to treat the information as confidential, such as a Party’s attorneys and accountants.
7. Customer Data
8. Mutual Representation and Warranties
Each Party represents and warrants that it: (a) has full power and authority to enter into this Agreement and perform its obligations hereunder; and (b) shall comply with all applicable laws and regulations, including any applicable federal, state, and local laws related to Restaurant’s sale of Menu Items consisting of alcoholic beverages or other non-perishable non-food items (collectively, “Laws”).
9. Restaurant Representation and Warranties
Restaurant hereby represents and warrants that: (a) Caviar’s use of the Trademarks hereunder does not and will not infringe or violate any trademark or other intellectual property of any third party; (b) the Prices for the Menu Items shall not be greater than the prices charged for the Restaurant’s Menu Items on any other food ordering and/or delivery platform(s); (c) Menu Item nutritional information provided by Restaurant is complete and accurate; and (d) sales Tax information provided by the Restaurant is accurate. In the event Caviar provides Restaurant an iPad, Restaurant represents and warrants it shall: (w) comply with the T-Mobile iPad Addendum, if applicable; (x) use the iPad strictly for the limited purpose of receiving and processing Orders from Caviar hereunder; (y) promptly return the iPad in good, working order upon termination of this Agreement; and (z) be liable to Caviar for any inappropriate use, damage, or repairs due to Restaurant’s misuse, negligence or willful misconduct (other than normal wear and tear), including replacing any such iPad at its own cost and expense. In the event that Restaurant sells Menu Items consisting of alcoholic beverages, Restaurant represents and warrants that it has obtained all necessary and applicable local state permits and/or licenses for selling and serving alcohol off premises for all Restaurant locations selling such Menu Items on the Caviar Platform.
10. Caviar Indemnification Obligations
Caviar, at its expense, will defend, indemnify, and hold harmless Restaurant against all loss, cost, liability, damages and expense, including attorneys’ fees, from third party claims arising out of Caviar’s obligations or performance under this Agreement, including claims related to: (a) the death of or injury to any person in its performance of the Services; (b) Caviar’s infringement or misappropriation of intellectual property rights; and (c) Caviar’s failure to redeem or fulfill any Customer’s Order that was accepted and timely prepared for Caviar Delivery by Restaurant.
11. Restaurant Indemnification Obligations
Restaurant, at its expense, will defend, indemnify, and hold harmless Caviar against all loss, cost, liability, damages and expense, including reasonable attorneys’ fees, from third party claims arising out of Restaurant’s or Restaurant Personnel’s obligations or performance under this Agreement, including, without limitation, claims or allegations related to: (a) the death of or injury or harassment to any person resulting from Restaurant’s performance of its obligation hereunder; (b) Restaurant’s failure to fulfill any of its Customer’s Orders that were accepted by Restaurant; (c) Restaurant’s infringement or misappropriation of intellectual property rights; (d) computation and payment of Tax; (e) the quality, preparation, packaging and condition of the Menu Items prior to being picked up by Customer or local courier, or until delivered to Customer by Restaurant Powered Delivery, as applicable; (f) the completeness and accuracy of nutritional information for Menu Items provided by Restaurant; (g) Restaurant’s or Restaurant Personnel’s failure to comply with any applicable Laws; and (h) the acts or omissions of Restaurant’s Personnel.
EXCEPT FOR THE EXPRESS WARRANTIES MADE HEREIN, THE SERVICES ARE PROVIDED “AS IS” AND CAVIAR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, CONCERNING THE SUBJECT MATTER OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CAVIAR DOES NOT REPRESENT OR WARRANT THAT OPERATION OF THE CAVIAR PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, NOR SHALL CAVIAR BE DEEMED AS ACTING AS RESTAURANT’S AGENT OR REPRESENTATIVE WHEN PROVIDING ITS SERVICES HEREUNDER. RESTAURANT AGREES THAT IT SHALL RELEASE CAVIAR OF ANY AND ALL LIABILITY THAT MAY ARISE FROM ALCOHOLIC OR OTHER NON-FOOD ITEMS RESTAURANT ELECTS TO MAKE AVAILABLE FOR SALE THROUGH THE SERVICES.
13. LIMITATION OF LIABILITY
EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CAVIAR’S AGGREGATE DAMAGES HEREUNDER SHALL BE LIMITED TO THE VALUE OF THE TOTAL ORDERS FULFILLED BY CAVIAR IN THE TWELVE (12) MONTHS LEADING UP TO THE CLAIM.
Both Parties shall, at their sole cost and expense, maintain in full force and effect during the Term of this Agreement Commercial General Liability insurance for any and all claims for damages due to bodily injury (including death), personal injury, or property damage in an amount equal to one million dollars ($1,000,000) for each occurrence and two million dollars ($2,000,000) in the aggregate.
This Agreement: (a) supersedes any prior agreements or understandings between the Parties; (b) constitutes the entire agreement between the parties; and (c) may be amended by Caviar at any time. Caviar will provide Restaurant with notice that Caviar deems to be reasonable if such changes are material, by communicating such changes to Restaurant. Restaurant’s continued use of the Services after notice signifies its acceptance. The laws of the State of California, excluding its conflict of laws provisions, govern this Agreement. The Parties consent to the exclusive jurisdiction of state and/or federal courts of San Francisco, California, and expressly waive any objection or defense based upon lack of personal jurisdiction or venue in connection with any dispute arising out of or relating to this Agreement. If a court or other tribunal of competent jurisdiction holds that a provision of this Agreement is illegal, invalid, or unenforceable, such provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. Failure to enforce any provision will not constitute a waiver. Sections 3, 5, 6, 7, 9, 10, 11, 12, 13, and 15 of this Agreement will survive the termination of this Agreement. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.