SKIPCART DELIVERY TERMS OF SERVICE
LAST UPDATED SEPTEMBER 15, 2022
PLEASE READ THE SKIPCART DELIVERY TERMS OF SERVICE (THE “TERMS”) CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND SKIPCART. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THESE TERMS OF SERVICE, HAVE TAKEN TIME TO CONSIDER THE CONSEQUENCES OF THIS IMPORTANT DECISION AND HEREBY ACCEPT ALL TERMS AND CONDITIONS CONTAINED OR REFERENCED HEREIN. BY CLICKING YOU AGREE TO THESE TERMS OR BY USING THE SKIPCART SERVICES, YOU HEREBY ACCEPT ALL THE TERMS AND CONDITIONS CONTAINED OR REFERENCED HEREIN. IF YOU ACCEPT THE TERMS OR USE THE SKIPCART SERVICES OR DELIVERY API ON BEHALF OF AN ENTITY OR OTHER THIRD PARTY, YOU HEREBY (a) ACCEPT THESE TERMS ON BEHALF OF YOURSELF AND SUCH THIRD PARTY AND (b) REPRESENT AND WARRANT THAT YOU HAVE ALL NECESSARY RIGHTS AND AUTHORITY TO DO SO.
IMPORTANT: THESE TERMS INCLUDE AN ARBITRATION AGREEMENT. PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW IN SECTION 20 CAREFULLY, AS IT WILL REQUIRE YOU TO RESOLVE DISPUTES WITH SKIPCART ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION.
“Aggregator” means the person or entity that operates a system to facilitate online delivery services, allowing Merchants registered on the platform to select delivery service providers and then place orders with those delivery service providers to deliver their products to Customers.
“Aggregator Platform” means a technology interface, such as a middleware technology platform, that enables Merchants to request delivery fulfillment of their products and provide information necessary to enable such delivery fulfillment.
“Customer” means the customer who places an order for Merchant’s products through a platform/marketplace for delivery fulfillment through the Aggregator Platform.
Customer Orders” means orders placed by a Customer with a Merchant for delivery fulfilment by Drivers.
“Delivery API” means the Skipcart application programming interface (API) that allows Aggregator or Merchant to exchange information with Skipcart for the fulfillment of delivery orders.
“Driver” means a person who works as an independent contractor (or other arrangement other than as an employees) for Skipcart to provide delivery services.
“Merchant” means the restaurant or other entity that engages Skipcart through the Aggregator Platform or Merchant’s platform/marketplace for the Skipcart Services.
“Merchant Products” includes all products and goods offered by Merchant at Merchant Stores for delivery to Customers.
“Merchant Stores” means the Merchant restaurant or retail locations that utilize the Skipcart Services to connect with Drivers to deliver Merchant Products.
“Personal Information” shall mean any information exchanged under these Terms that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) can reasonably be used to authenticate an individual (including without limitation, 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).
“Schedule for Later Order” shall mean a Customer Order to be fulfilled at a particular time later in the same day or at a later date.
“Skipcart Data” shall mean any information that Skipcart provides or makes accessible to Aggregator or Merchant through the Aggregator Platform or Delivery API, including without limitation Personal Information.
“Skipcart Services” means providing an online platform using web-based technology and APIs to enable the delivery fulfillment of Merchant Products by independent Drivers.
2. The Parties' Relationship. Skipcart uses web-based technology and APIs for the scheduling and delivery of goods and products by independent Drivers. For the avoidance of doubt, Skipcart is not a Broker, Freight Forwarder, Motor Carrier or Shipper as such terms may be defined in rules or regulations issued by the Federal Motor Carrier Safety Administration or in any other similar rules or regulations or by any other governmental body. Merchant acknowledges that the Skipcart Services are not intended to be contract carriage as defined in 49 U.S.C. § 13102(4) and § 14101(b). Merchant and Skipcart agree that they are independent businesses whose relationship is governed by these Terms. Nothing in these Terms, the relationship or the transactions are intended or will be construed to create or establish any employment, agency, partnership, fiduciary or joint venture relationship between Skipcart and Merchant, Skipcart and Drivers, or Skipcart and Customers. The parties expressly disclaim such relationship, agree that they are acting solely as independent contractors hereunder, and agree that the parties have no fiduciary duty to one another or any other special or implied duties that are not expressly stated herein. Except as expressly set forth in these Terms, each party shall be responsible for its own expenses, profits and losses.
3. Core Responsibilities. Skipcart and Merchant shall have the following responsibilities:
Skipcart Core Responsibilities. Skipcart will, in a timely manner:
Provide Merchant through the Aggregator Platform or Delivery API a manner to submit requests for Skipcart Services; and
Forward requests to a Driver, so that the Driver can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to a Customer.
Merchant Core Responsibilities. Merchant will:
Via the Aggregator Platform or Delivery API, provide information requested by Skipcart, including the Customer’s address, contact information, and any special instructions required for delivery;
Be responsible for the application of promotions or loyalty rewards, and the calculation, collection, and remittance of any and all sales tax;
Notify Customers prior to placing a Customer Order that their telephone numbers and other personal contact information will be shared with Skipcart to enable deliveries to be made by Drivers and, in connection with the applicable deliveries, request the Customer’s consent to receive delivery status updates by e-mail, text messages, and telephone calls from Skipcart and Drivers;
Notify Skipcart if a Customer has not consented to receive delivery updates or has placed any restrictions on the types of delivery updates such Customer consents to receive (e.g., no texts); Merchant hereby consents to receiving text messages and email confirmations from Skipcart providing status updates and delivery confirmations in connection with each delivery; and
If the platform/marketplace used by Merchant includes functionalities to enable Customers to tip Drivers for the delivery services, remit one-hundred percent (100%) of all such tips to Skipcart through the Delivery API. Skipcart is not responsible for the payment to Drivers of any tips that Merchant does not promptly pay to Skipcart in connection with an Order.
Order Placement. Customers place orders for delivery of the Merchant Products through the Aggregator Platform or Merchant’s platform/marketplace. Merchant selects Skipcart Services for delivery fulfillment in advance of the scheduled delivery through the Aggregator Platform or Merchant’s platform/marketplace. Skipcart confirms Customer Orders by sending a confirmed delivery response.
Hours of Operation. The pickup and drop off of deliveries will be scheduled to take place during Skipcart’s standard hours of availability, as may be updated from time to time at Skipcart's sole discretion. Merchant agrees to abide by the following standard procedures: (i) to notify Skipcart of any changes to its hours of operations on holidays with reasonable advance notice; and (ii) to notify Skipcart with reasonable advance notice if a Merchant Store closes or plans to close earlier than standard hours of operation.
Delivery Radii. Skipcart will only accept Customer Orders to be delivered within a certain preset delivery radius based on either the Merchant’s (or the Merchant Store’s) or the Customer’s location, which will be communicated to the Merchant.
Notification. Merchant agrees to notify all staff members in Merchant Stores of Merchant’s relationship with Skipcart prior to submitting any delivery requests to Skipcart.
Driver Dashboard. If Merchant does not have the capability to track Drivers’ locations through the Delivery API, Skipcart may grant Merchant access to a Skipcart dashboard solely for that purpose.
4. Refunds and Late Deliveries. Refunds and late deliveries will be addressed as follows:
Customer Complaints/Refunds. Merchant acknowledges and agrees that Skipcart shall be responsible only for facilitating the delivery of Merchant Product(s) to Customers. Merchant shall be solely responsible for any Customer complaints regarding Merchant Product(s), including without limitation, complaints regarding the nature, quality, content, number, or packaging of Merchant Product(s). Merchant agrees not to refer any Customer complaints regarding Merchant Products directly to Skipcart. If Aggregator or Merchant elects to refund a Customer for any reason, such election shall not obligate Skipcart to provide a corresponding reimbursement to Aggregator or Merchant. Fees owed for any Customer Orders cancelled after a Driver has accepted a delivery opportunity will be non-refundable.
Late Deliveries. Any complaints regarding the timeliness or quality of a Driver’s delivery service shall be reported by Merchant to Skipcart. If the completion of a Customer Order is more than 120 minutes late and such is due to fault of Skipcart or a Driver, Skipcart will reimburse Aggregator for all or a portion of the delivery fee of the applicable Customer Order. In the event that a Merchant Product has been visibly damaged with proof from a Customer, Skipcart may reimburse Merchant for all or a portion of the order subtotal. The Merchant Product does not include the packaging that contains the Merchant Product. In no event shall Skipcart be obligated to issue any refunds directly to Customers.
Cancellations of Schedule for Later Orders. Fees owed for any Customer Orders cancelled within twenty-four (24) hours of a Schedule for Later Order delivery are non-refundable. If a cancellation is provided with more than two (2) hours notice, but less than twenty-four (24) hours notice, Skipcart will make reasonable efforts to accommodate changes.
5. Payment, Fees and Title.
Fees. Merchant will pay Aggregator a fee for delivery of Customer Orders. Skipcart and Drivers are paid by Aggregator for deliveries. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities.
Title: Merchant agrees that (i) Merchant holds title to all Merchant Products until the Merchant Products are picked up from the Merchant Store; (ii) title passes from Merchant to Customer upon pickup by a Driver at the Merchant Store; and (iii) neither the Driver nor Skipcart holds title to or acquires any ownership interest in any Merchant Products.
6. Confidential Information.
The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with these Terms, whether orally or in physical form, and shall include the terms of these Terms. Without limiting the foregoing, Skipcart Data is the Confidential Information of Skipcart.
Disclosing Party’s Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with these Terms; (ii) was or becomes public other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to Disclosing Party’s Confidential Information.
The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with these Terms; (ii) except subject to its compliance with Section 6(d) below, not disclose or permit access to Confidential Information other than to its affiliates or any of their employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with these Terms, and who, prior to any such disclosure, are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most similarly sensitive information and in no event less than a reasonable degree of care. The Receiving Party shall be liable for a breach of the obligations under this Section 6 by its Representatives.
If the Receiving Party is compelled by applicable law to disclose any Confidential Information, then, to the extent permitted by applicable law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 6(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.
7. Data Privacy and Security and Intellectual Property.
Data Privacy and Security.
Merchant will obtain or will have obtained all necessary consents from and given all required notices to any applicable third parties, including Customers, for Merchant to transmit data provided by or relating to such third parties through the Aggregator Platform or Delivery API for use as contemplated in these Terms. Each party’s collection, storage, processing, disclosure and use of any such data shall comply in all material respects with all applicable laws and regulations and the terms and conditions of these Terms. Each party agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner the other party’s data (with respect to Merchant, including Skipcart Data), including Personal Information, except as required to perform under these Terms.
Merchant shall keep Skipcart Data secure from unauthorized access and maintain the accuracy and integrity of Skipcart Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to Skipcart Data, Merchant will immediately notify Skipcart, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Skipcart. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Skipcart and will be responsible for damages resulting from Merchant’s failure to comply. Merchant shall indemnify and hold Skipcart harmless from and against all losses, damages, liabilities, judgments, awards, penalties, interest, fines, costs, and fees or any other expenses of whatever kind, including reasonable attorneys’ fees, incurred by Skipcart arising out of or relating to the accidental, unauthorized or unlawful destruction, loss, alteration, use or disclosure of, or access to. Skipcart Data to the extent arising from Merchant’s breach of its obligations under these Terms.
Intellectual Property and License Grant.
Skipcart owns all right, title and interest in and to the Delivery API and any enhancements, modifications and derivatives thereto. All rights not expressly granted hereunder are reserved to Skipcart.
While these Terms are in effect and to the extent direct access is needed by Merchant to interact with Skipcart, Skipcart grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited license to access the Delivery API solely to transmit information to facilitate the Skipcart Services.
Merchant shall not and shall not permit any other individual or entity to: (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Delivery API; (ii) circumvent, bypass or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to, the Delivery API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Delivery API; (iv) use the Delivery API in any manner or for any purpose that violates any law or regulation; (v) damage, destroy or impede the services provided through the Delivery API; (vi) transmit injurious code; or (vii) use the Delivery API for a reason other than as specifically provided or intended under these Terms. Each party agrees not to perform any action with the intent of introducing to the other party’s systems, products, or services (including the Delivery API) any viruses, worms, defect, Trojan horses, malware, ransomware or any items of a destructive nature.
8. Term and Termination.
These Terms will be in effect for so long as Merchant utilizes the Skipcart Services or until terminated in accordance with these Terms.
Merchant may terminate these Terms for any reason at any time upon thirty (30) days prior written notice to Skipcart. Skipcart may terminate these Terms or any promotion under these Terms for any reason at any time upon notice to Merchant. Neither Merchant nor Skipcart will be (i) required to pay any fee, not otherwise owed under these Terms prior to termination, or (ii) liable to the other for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Merchant or Skipcart solely as a result of termination of these Terms.
In the event either party commits a material breach of these Terms and fails to cure that breach within thirty (30) days after receiving written notice of the breach, the non-breaching party may terminate these Terms on written notice.
Upon termination of these Terms, all rights granted to Merchant under these Terms shall terminate, and Merchant must immediately cease access to and use of the Delivery API.
9. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.
Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under these Terms without breaching any obligation to any third party.
Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of these Terms, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.
Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations (and where applicable regulatory guidance) relating to licenses, health and safety codes (including Proposition 65 in California), food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), food safety and sanitation, and the transportation and delivery of age-restricted products, as well as any other laws applicable to its business, (ii) it has informed Skipcart of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform Skipcart of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will not disclose any information related to a Driver to a third party (except as required to comply with law or pursuant to a court order), and (iv) it will comply with its obligations under Section 3(b) of these Terms.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SKIPCART HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THESE TERMS, THE SKIPCART SERVICES AND THE DELIVERY API, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. MERCHANT’S USE OF THE DELIVERY API IS AT MERCHANT’S SOLE RISK. THE DELIVERY API IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. Merchant acknowledges that the operation of the Delivery API may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors, and Skipcart shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Delivery API nor for any guarantee of results with respect to the Skipcart Services. Both Parties acknowledge that neither party has any expectation or has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of these Terms.
Each party (the “Indemnifying Party”) will defend, indemnify, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (collectively, the “Indemnified Party”) from and against any and all claims, damages, losses, fines, penalties and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party or its employees and, in the case of Skipcart, Drivers, or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products; (ii) any claims that the Indemnifying Party breached its representations, warranties, covenants or obligations set forth in Sections 6, 7 and 9 of these Terms; and (iii) the violation of the intellectual property of a third party solely by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, technology or other intellectual property. In addition, Merchant will defend, indemnify and hold harmless Skipcart from any and all Losses related to any violation or alleged violation of any applicable law, code, rule or regulation, including, without limitation, those related to health, safety or retail food, or the sale and/or delivery of age restricted products, except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Skipcart or a Driver. In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (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 (at the Indemnifying Party’s expense). If the Indemnifying Party has assumed sole control over the defense, the Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, 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. Skipcart assumes no liability, and shall have no liability, for any infringement claim pursuant to Section 10(iii) above based on: (i) Merchant’s access to and/or use of the Delivery API following notice of such an infringement claim; (ii) any unauthorized modification of the Delivery API by Merchant; or (iii) Merchant’s combination of the Delivery API with software, programs, services, data, hardware, or other materials not provided by Skipcart, if no infringement would have occurred without such combination.
11. Limitation of Liability.
EXCEPT WITH RESPECT TO (A) DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILLFUL MISCONDUCT, (B) UNPAID AMOUNTS OWED TO SKIPCART FOR SKIPCART SERVICES IN EXCESS OF THE LIMIT BELOW, AND (C) AMOUNTS PAYABLE UNDER SECTION 10 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THESE TERMS, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITY RELATED TO OR IN CONNECTION WITH THESE TERMS SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE TO SKIPCART FOR THE SKIPCART SERVICES PROVIDED TO MERCHANT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
During the Term and for one year after, each party will maintain adequate insurance, including Commercial General Liability insurance, in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under these Terms.
13. Choice of Law and Venue. These Terms are governed by and construed in accordance with the laws of the State of Texas, U.S.A., without giving effect to any conflict of law principles, except as may be otherwise provided in Section 20 below. Any claim or dispute arising under or related to these Terms not subject to Section 20 shall be brought in the state or federal courts located in San Antonio, Texas, and Merchant hereby accepts such courts as the exclusive venue for any such claims.
14. Skipcart Code of Conduct. Merchant agrees to comply with the Skipcart Code of Conduct (https://docs.google.com/document/d/1WSdzXhajegtGZbwQTUp_YFZK5ynSBV2TA5JOa_jb2Ic/edit?usp=sharing) which may be updated by Skipcart from time to time.
15. Communications from Skipcart. Merchant agrees to accept and receive communications from Skipcart or Drivers, including via email, text message, calls, and push notifications, to the telephone number Merchant provides to Skipcart. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or receive prerecorded messages sent by or on behalf of Skipcart, its affiliated companies and/or Drivers.
16. Third-Party Services. In using the Aggregator Platform or other products or services provided by Skipcart, Merchant may encounter advertisements, promotions or other content related to products or services provided by third parties (“Third-Party Services”). Skipcart does not control or endorse any Third-Party Services, and has no involvement with the applicable third party’s provision thereof. Merchant’s uses of Third-Party Services and dealings or correspondence with third-party providers thereof are solely between Merchant and the applicable third-party providers. Skipcart is not liable for any loss or damage of any sort incurred in relation to Merchant’s use of Third-Party Services. Merchant acknowledges and agrees that its use of Third-Party Services and interactions with third-party providers thereof are at Merchant’s sole risk.
17. Notice. All notices must be in writing. Skipcart may provide notice to Merchant by sending a message to the email address provided by Merchant to Skipcart, if so provided, pursuant to this Section 17. Notices provided by email will be effective when Skipcart sends the email. Merchant may give notice to Skipcart, with such notice deemed given when received by Skipcart, at any time by first class mail or pre-paid post to:
c/o: Legal Department
711 Navarro St, Suite 220
San Antonio, TX 78205
18. Agreement Changes. SKIPCART MAY IN ITS SOLE DISCRETION AND AT ANY TIME (A) REVISE THESE TERMS, OR (B) CHANGE ANY ASPECT OF THE DELIVERY API. SKIPCART WILL PROVIDE NOTICE OF ANY REVISIONS TO THESE TERMS BY POSTING THE REVISED TERMS TO THE SKIPCART WEBSITE. TO THE MAXIMUM EXTENT PERMITTED BY APPLIICABLE LAW, MERCHANT’S CONTINUED USE OF THE SKIPCART SERVICES AFTER THE DATE THE REVISED TERMS ARE POSTED CONSTITUTES MERCHANT’S ACCEPTANCE OF SUCH REVISED TERMS. IF ANY CHANGE IS FOUND INVALID, VOID OR UNENFORCEABLE FOR ANY REASON, THAT CHANGE IS SEVERABLE AND DOES NOT AFFECT THE VALIDITY AND ENFORCEABILITY OF ANY REMAINING CHANGES OR OTHER TERMS AND CONDITIONS CONTAINED IN THESE TERMS.
19. General Provisions.
As set forth between Merchant and Skipcart, these Terms constitute an integrated agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend, including without limitation Sections 5, 6, 7(a) and (b) 1) and 3), 10, 11, 12, 13, 17, 19 and 20. Merchant may not assign these Terms in whole or in part without Skipcart’s prior written consent. Skipcart may freely assign these Terms. These Terms are binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. If any provision of these Terms are held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of these Terms, and these Terms will be construed as if such invalid, illegal or unenforceable provision had never been contained here. Any reference in these Terms to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa. The words such as “herein,” “hereinafter,” “hereof,” and “hereunder” refer to these Terms as a whole and not merely to a subdivision in which such words appear unless the context otherwise require. The word “including” or any variation thereof means “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
20. Dispute Resolution/Arbitration Agreement
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES MERCHANT TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH SKIPCART AND LIMITS THE MANNER IN WHICH MERCHANT CAN SEEK RELIEF FROM US.
Limitations/Dispute Resolution/Agreement to Binding Arbitration Between Merchant and Skipcart
Any legal actions against Skipcart must be commenced within two years after the claim arose. Except for any disputes, claims, suits, actions, causes of action, demands, or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 7(b) or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets, or patents, Merchant and Skipcart agree
to waive Merchant’s and Skipcart’s respective rights to have any and all Disputes arising from or related to these Terms, the Skipcart Services or the Delivery API resolved in a court, and
to waive Merchant’s and Skipcart’s respective rights to a jury trial.
Instead, any Dispute arising out of or relating to the Skipcart Services or these Terms will be settled by binding arbitration before JAMS, Inc. and in accordance with the JAMS Comprehensive Arbitration Rules and Procedures. The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, Merchant either
acknowledges and agrees that Merchant has read and understands the rules of JAMS, or
waives Merchant’s opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
Rules and Process
ANY SUCH DISPUTE SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY DISPUTE OF ANY OTHER PARTY. Each party shall be responsible for its costs incurred in such arbitration. The arbitration will be conducted in San Antonio, Texas, and judgment on the arbitration award may be entered into by any court having jurisdiction thereof. The award of the arbitrator shall be final and binding upon the parties without appeal or review. Merchant has the right to opt out of binding arbitration within thirty (30) days of the date Merchant first accepted the terms of this Section 20 by writing to: Attn: Legal Department, Skipcart Corporation, 711 Navarro St, Suite 220, San Antonio, TX 78205. In order to be effective, the opt-out notice must include Merchant’s legal name and clearly indicate Merchant’s intent to opt out of binding arbitration. BY OPTING OUT OF BINDING ARBITRATION, MERCHANT IS AGREEING TO RESOLVE DISPUTES ON AN INDIVIDUAL BASIS IN A COURT LOCATED IN SAN ANTONIO, TEXAS. Notwithstanding the foregoing, Skipcart may immediately seek any interim or preliminary injunctive relief from any court of competent jurisdiction, as necessary to protect its rights or property (including intellectual property rights).
Alcohol Delivery Addendum (only applicable to merchants who will use Skipcart for alcohol delivery)
ALCOHOL DELIVERY ADDENDUM
This Alcohol Delivery Addendum (this “Addendum”) to the Skipcart Delivery Agreement or Skipcart Delivery Terms of Service (each, the “Agreement”) by and between Skipcart and Merchant. All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Agreement. If there is a conflict between this Addendum and the Agreement, the provisions of this Addendum will control.
1.1. “Alcohol Laws” means all federal, state/provincial and local laws, regulations, ordinances, rules and alcoholic beverage regulatory agency policies relating to the provision, sale and/or delivery of alcoholic beverages.
1.2. “Alcohol Licenses” means all applicable permits, licenses, permit endorsements and/or authorizations from federal, state/provincial and/or local alcoholic beverage licensing authorities.
1.3. “Alcoholic Beverages” means alcoholic beverages sold by Merchant.
1.4. “Delivery Records” means all delivery information that Merchant is required to retain by applicable Alcohol Laws.
“Orders” means orders for Alcoholic Beverages placed by Customers through Merchant’s platform or a Third Party Platform.
“Third Party Platform” means a technology interface, such as a middleware technology platform, that enables merchants to request delivery fulfillment of their products and provide information necessary to enable such delivery fulfillment.
2. SELLER OF RECORD. Merchant is the seller of all Alcoholic Beverages under this Addendum. Skipcart shall not receive any proceeds for the sale of Alcoholic Beverages.
3. FEES. Merchant will pay Skipcart the applicable fees for facilitating the delivery of Alcoholic Beverages as provided by Aggregator or Skipcart to Merchant in advance.
4. DELIVERY, RETURNS AND RECORDS.
4.1. Merchant is responsible and liable for verifying that the addresses to where the Alcoholic Beverages shall be delivered are within a jurisdiction and area that Merchant is legally able to sale Alcoholic Beverages under Alcohol Laws and in accordance with Merchant’s Alcohol Licenses.
4.2 A Driver will pick up the Order from Merchant’s premises and deliver only to the delivery address provided by the Merchant through its platform or a Third Party Platform. Title for all Alcoholic Beverages sold under this Agreement shall pass directly from Merchant to Customer upon pickup by the Driver at the Merchant’s location. Upon delivering an Order, Drivers shall verify that: Customer is (i) at least the legal drinking age in the applicable jurisdiction, and (ii) not visibly intoxicated.
4.2. Skipcart shall not process any returns, exchanges, or substitutions of Alcoholic Beverages that have been delivered to Customers. Skipcart will inform Customers that requests for returns or exchanges should be handled directly by Merchant, in accordance with Merchant’s standard return policy. Merchant will handle all customer support issues relating to such refunds or returns. Merchant is solely responsible for the issuance of any refunds, to the extent permitted under applicable law.
4.3. An Order will be deemed undeliverable if: (i) Customer does not present valid identification indicating that he or she is at least the legal drinking age in the applicable jurisdiction; (ii) Customer is visibly intoxicated; (iii) Customer is not available to receive the delivery; (iv) the Alcoholic Beverage is damaged prior to delivery to Customer; or (v) there are other circumstances, as determined in Skipcart’s or the Driver’s sole discretion, that would render the delivery of the Alcoholic Beverage unreasonable or unlawful. In the event that an Alcoholic Beverage is undeliverable, Skipcart will communicate to Merchant that the delivery was not completed, and, pursuant to Merchant’s direction, Skipcart shall prompt the Driver to return the Alcoholic Beverage to the Merchant location from which it was picked up.
4.4. Merchant shall maintain and retain Delivery Records in a manner fully compliant with Alcohol Laws. Merchant further agrees to maintain the confidentiality of all Customer and recipient data contained in the Delivery Records and not use such data for any purpose other than to maintain records as required by Alcohol Laws. Merchant agrees to indemnify, defend, and hold harmless Skipcart against all liabilities, damages, and costs incurred by Skipcart as a result of any violation by Merchant of this provision.
5. REPRESENTATIONS AND WARRANTIES. In addition to the representations and warranties set forth in the Agreement and elsewhere in this Addendum, and notwithstanding anything in the Agreement to the contrary, Skipcart and Merchant make the following representations, warranties, and covenants.
5.1. Mutual. Skipcart and Merchant hereby represent and warrant that each complies and shall continue to comply during the term of the Agreement with all applicable laws (including without limitation Alcohol Laws) necessary for each to perform its obligations under this Addendum and the Agreement (including, with respect to Merchant, any laws, rules or regulations in applicable jurisdictions that require Merchant to sell Alcoholic Beverages along with food products, or that impose other restrictions or requirements related to the sale of Alcoholic Beverages).
5.2. Skipcart. Skipcart hereby represents and warrants that it shall ensure that Drivers fulfilling delivery of Orders that include Alcoholic Beverages: (1) will be at least the legal drinking age in the applicable jurisdiction; (2) will have received materials where required by Alcohol Laws relating to the delivery of Alcoholic Beverages, including verifying 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 Merchant upon request for purposes of Merchant’s compliance with Alcohol Laws.
5.3. Merchant. Merchant hereby represents and warrants that:
it shall promptly inform Skipcart of any regulatory or governmental inquiry that could reasonably jeopardize Merchant’s legal ability to sell or deliver Alcoholic Beverages or otherwise perform its obligations under this Addendum and the Agreement;
it holds and will maintain in good standing throughout the term of this Agreement the Alcohol Licenses required for the sale of Alcoholic Beverages to consumers in the applicable jurisdictions, including but not limited to any Alcohol Licenses required to accept orders for Alcoholic Beverages from consumers directly or through a third party via the internet and/or to deliver Alcoholic Beverages to consumers;
it currently complies with and will continue to comply with all Alcohol Laws, and that it is responsible for alcoholic beverage regulatory compliance related to Skipcart’s activities and any sales or deliveries of Alcoholic Beverages under this Addendum and the Agreement; and
Orders will be fulfilled based on and under its legal rights under its Alcohol Licenses.
6. INDEMNIFICATION. In addition to the obligations sets forth in Section 10 (Indemnification) of the Agreement, each party will defend, indemnify, pay and hold harmless the other party from and against all Losses with respect to any third-party claims arising from the breach of any representations or warranties or covenants made under this Addendum. Notwithstanding the foregoing, Merchant assumes all responsibility for, shall bear all liabilities and expenses and shall indemnify and hold Skipcart harmless from all Losses caused by any act or omission by Merchant, including, but not limited to, (i) bodily injury, property damage or injury to personal or business character or reputation sustained by any person or caused to any person or property, and (ii) any fines or penalties relating to the production, sale, and/or delivery of the Alcoholic Beverages, excluding however any Losses solely to the extent caused by the negligence of Skipcart or any Driver.
7. LIMITATION OF LIABILITY. EXCEPT WITH RESPECT TO (A) DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILLFUL MISCONDUCT, (B) UNPAID AMOUNTS OWED TO SKIPCART FOR SKIPCART SERVICES IN EXCESS OF THE LIMIT BELOW, AND (C) AMOUNTS PAYABLE UNDER SECTION 10 (INDEMNIFICATION) OF THE AGREEMENT AND SECTION 6 OF THIS ADDENDUM, THE PARTIES AGREE THAT (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS ADDENDUM, FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO THE COSTS OF PROCURING REPLACEMENT SERVICES, LOST PROFITS, LOST REVENUE OR HARM TO GOODWILL, REGARDLESS OF WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (B) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS ADDENDUM SHALL NOT EXCEED THE TOTAL AMOUNT RECEIVED BY SKIPCART UNDER THIS 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.
8. SURVIVAL. Sections 6 and 7 of this Addendum will survive the termination or expiration of this addendum.
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