This Addendum to the UberEats Platform Order Form (“Addendum”) is entered into and made effective as of the date last executed by the Parties (“Amendment Effective Date”), by and between Family Style Inc. (“Merchant”) and Portier, LLC (“Portier”) and is made a part of the UberEats Platform Order Form (“Agreement”) for Uber Eats between Portier and Family Style Inc. with an Effective Date of January 20, 2020. Whereas Family Style Inc. has the full rights to license, sublicense and otherwise use the brand “WineSnob”, as well as the full rights to sell and make any Special Items (e.g. alcohol) sold under the WineSnob Tile available on the Uber Eats and Postmates Apps, and the parties agree to amend the Agreement as follows:
Definitions. Capitalized terms, not otherwise defined herein, shall have the meaning ascribed in the Agreement.
This Uber Eats Virtual Restaurant Addendum (“Addendum”) is entered into and made effective as of the date last set forth below (“Addendum Effective Date”) by and between Portier, LLC (“Portier”), Postmates LLC (“Postmates”) and Family Style, Inc. (“Merchant” or “you”). This Addendum is governed by and hereby incorporated into the terms and conditions of that certain UberEATS Platform Order Form (or related governing Uber Eats agreement) between Merchant and Portier (the “Order Form”). If no such Order Form exists between the parties, this Addendum is governed by and hereby incorporated into the Uber Eats U.S. Merchant Terms and Conditions available at https://www.uber.com/legal/uber-eats/terms/en-us/ (the “General Terms”), as may be updated from time to time. This Addendum, together with the Order Form or the General Terms, as applicable, will constitute a separate, enforceable agreement between Merchant and Portier (collectively, the “Agreement”), provided that all references to “Items” elsewhere in the Agreement will be deemed to apply to “Special Items,” respectively, for the purposes of this Addendum. In the event of any conflict between this Addendum and any other term of the Agreement, this Addendum will govern, but only with respect to the specific conflict.
Subject to the foregoing, any capitalized term(s) undefined in this Addendum shall have the meaning set forth in the Agreement and, except where noted, all other terms of the Agreement shall remain unchanged and in full effect. As further described below, the parties agree that in exchange for Portier providing Merchant with certain tile placement on its proprietary Uber Eats App and/or Postmates App, Merchant will make Special Items (defined below) available via the Marketplace during its normal business hours.
Whereas Merchant wishes to have an additional tile on the Uber Eats App and/or the Postmates App under its brand “WineSnob,” the Parties agree as follows:
The Promotion. The parties wish to engage in a special promotional activity where, during the VR Term, Portier will provide Merchant with certain “WineSnob” tile placements (“WineSnob Tile”) on the Uber Eats App and the Postmates App (collectively the “Uber Eats App”) to make available for consumer purchase items for sale (each, a “Special Item”) via the Marketplace (the “Promotion”). Portier will supply Merchant with a WineSnob Tile provided that Family Style, Inc. (“Family Style”), including its Licensees, if applicable, are authorized to sell Special Items, including, without limitation, alcohol. In order to maintain eligibility for the Promotion, Merchant must meet Portier’s quality and volume standards, as communicated and may be amended by Portier from time to time. In connection with the Promotion, Merchant agrees that Portier may make necessary changes to Merchant’s WineSnob Tile in the Uber Eats App as required by Merchant (e.g., menu changes, pricing, etc.)
VR Term and Termination. Subject to Marketplace product functionality, the Promotion will begin on the Addendum Effective Date and, unless earlier terminated as provided below, will be coterminous with the Agreement (“VR Term”). Portier may terminate this Addendum at any time upon fourteen (14) days written notice to Merchant. For clarity, unless agreed to by each party in writing, the termination of this Addendum shall have no bearing on the remainder of the Agreement.
Availability. Merchant will make Special Items available via the Marketplace during the VR Term. Merchant represents and warrants that Merchant (and/or Merchant’s Licensees) will prepare and sell all such Special Items at Merchant’s normal, fully licensed and permitted kitchen or retail/business location, as applicable.
Merchant Account. In order for the Special Items to appear under the WineSnob Tile in the Uber Eats App, Merchant will need to set up an additional account with Uber (“Merchant VR Account”). For the sake of clarity, although a separate account will be set up, all Special Items requested via the WineSnob Tile are sold by Merchant, subject to the terms and conditions of the Agreement.
Materials. Any and all data and materials provided by Portier to Merchant either verbally or in writing in connection with the Promotion, including but not limited to information about demand and eater preference, sample templates, recipes and menus, pricing, etc., are deemed Confidential Information of Portier and shall be treated as such under the Agreement.
WineSnob Tile Marks; Intellectual Property. Notwithstanding any other term of the Agreement, Merchant agrees Merchant is wholly responsible for providing the name and logos to be used for the WineSnob Tile (“VR Tile Marks”). For the sake of clarity, the VR Tile Marks and the name, logos, or images associated with any Special Items will constitute Merchant’s Marks and will be treated as such under the Agreement (e.g., with regards to Merchant’s trademark license grant, representations and warranties, and indemnification obligations). Without limiting anything in the Agreement, Merchant represents and warrants that the VR Tile Marks do not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights. Merchant agrees that Portier may deactivate the Promotion and remove Merchant’s VR Tile Marks and Special Items from the Uber Eats App if Portier receives notice or otherwise reasonably believes that Merchant’s VR Tile Marks may infringe, misappropriate, or otherwise violate the intellectual property rights or other proprietary rights of any third party. Merchant further agrees that Merchant will not bring suit or otherwise assert any claim against the Portier Indemnified Parties, or assert a defense against any claim asserted by the Portier Indemnified Parties, before any court, arbitrator, mediator or administrative agency anywhere in the world, alleging infringement of the VR Tile Marks.
Payment. For each Special Item sold by Merchant via the Eats App, Merchant will pay Portier as follows: the retail price of all Special Items (the “Retail Price“) that a Merchant sells via the Eats App (excluding any Sales Tax collected on its behalf) multiplied by 15% (the “Fee”). For clarity, the Fee does not include any applicable taxes. Portier will remit to Merchant the total Retail Price collected for all Special Items that Merchant sells via the Eats App (including any Sales Taxes collected on its behalf) less: (a) the retained Fee; and (b) any refunds given to Customers (such final remitted amount being the “Special Item Revenue”). All Special Item Revenue that is duly owed to Merchant will be remitted within fourteen (14) business days of the sale of the Special Item. Subject to the foregoing, Portier will typically make such payment on a weekly basis.
Licensees. If Merchant subcontracts, contracts, engages, associates or otherwise partners with subcontractors, agents, retailers, licensees or other third parties in connection with the sale of Items or Special Items under this Agreement (collectively, “Licensees”), Merchant represents and warrants that: (a) it shall obligate such Licensees to comply with all appropriate terms and conditions of the Agreement, including, but not limited to, this Addendum and the Alcohol Addendum [we will need to have each operating partner sign these terms, so we need to incorporate them into our agreement with them. We can attach as an exhibit or a hyperlink and have them expressly agree to all of these agreements.]; (b) Merchant shall be solely responsible for the acts, omissions, negligence and misconduct of all its Licensees with respect to the sale of Items, Special Items (e.g. alcohol), Uber Eats Services and/or this Agreement; (c) Merchant shall also be solely responsible for all payment and payment disputes pertaining to Licensees; (d ) Merchant shall further ensure that its insurance coverage adequately addresses any liability which may be incurred or sustained by its Licensees; (e) Merchant’s contractual arrangements with any and all of Licensees will require the Licensees to comply with any and all applicable laws, including, without limitation, regulations governing the sale, distribution and delivery of alcohol, as well as laws regulating the flow of funds related to the sale, distribution, and delivery of alcohol, as well as laws regulating Merchant’s financial interest in entities (including but not limited to the Licensees) engaged in the sale, distribution, or delivery of alcohol; and (f) Merchant will ensure that Portier has timely and full access to the name of Merchant’s Licensees who are the licensed retailers selling alcohol for each Customer Order (for purposes of consumer-facing receipts).
Additional Indemnification. In addition to the other indemnification requirements set forth in the Agreement, Merchant will indemnify, defend and hold harmless Portier Indemnified Parties from and against any and all Losses with respect to (a) any third party claims arising out of the acts, omissions, negligence or misconduct of any Merchant’s Licensees in connection with the sale of Items, Special Items (including, without limitation, alcohol), the Uber Eats Service and/or this Agreement; (b) any claim made by any Licensee, including, without limitation, claims for payment, claims related to worker’s compensation, unemployment, wages, misclassification or any other employment or labor regulation, and claims for personal injury or property damage; (c ) any claim arising out of Merchant’s obligations under this Agreement or breach of this Agreement, including, without limitation, Section 8 (Licensees) above; and (d) Merchant or any Licensee violating applicable law, including, without limitation, regulations governing the sale, distribution and delivery of alcohol.
Upon signing by both parties, this Amendment represents a binding and enforceable legal contract between you and Portier as of the Amendment Effective Date.
Accepted and Agreed:
|By: Portier, LLC||By (Merchant):|
|Title: Authorized Signatory||Title: Authorized Signatory|
Now, therefore, the parties agree to additional or modified obligations under the Agreement as follows:
As of the Addendum Effective Date, the terms of this Addendum, including Merchant’s obligations related to the sale of Alcohol Items via the Uber Eats App, are incorporated by reference into and made a part of the Agreement. Subject to the terms herein, the definition of “Items” (or “Meals,” as applicable) in the Agreement shall now include Alcohol Items. This Addendum contains the parties’ full and complete understanding and agreement relating to the subject matter hereof and supersedes all prior and contemporary understandings and agreements, whether oral or written, related to such subject matter. For clarity, this Addendum does not otherwise alter the parties’ relationship.
TERMS RELATED TO THE SALE OF ALCOHOL ITEMS VIA THE UBER EATS APP
Merchant may choose to make alcoholic beverages (“Alcohol Items”) available for sale via the Uber Eats App, subject to applicable laws and regulations and the following terms and conditions:
Representations and Warranties
Merchant represents and warrants that (a) Merchant shall comply with all laws and regulations related to the sale of Alcohol Items applicable to Merchant, including without limitation, all laws and regulations related to the promotion, packaging, sale, taxation and delivery of Alcohol Items; and (b) Merchant has and will continue to have during the Term of the Agreement all licenses, permits, or similar authorizations that may be required for it to sell Alcoholic Items (“Required Licenses”), including without limitation, Required Licenses for the specific categories of Alcohol Items that Merchant makes available via the Uber Eats App and/or Required Licenses to sell and deliver Alcohol Items in a given state or local jurisdiction.
Role of the Parties
For the avoidance of doubt, (i) Portier is an unlicensed entity that facilitates the promotion, marketing, and/or sale of Alcohol Items by third parties via the Uber Eats App; and (ii) Merchant is a licensed seller of alcoholic beverages that wishes to sell Alcohol Items via the Uber Eats App. Orders for Alcohol Items solicited via the Uber Eats App will be transmitted to Merchant. Merchant is responsible for, will be clearly identified during, and shall control the sale of any orders for Alcohol Items, including any decisions regarding accepting, fulfilling, and rejecting orders for Alcohol Items.
Alcohol Laws and Requirements
Each party is responsible for taking any steps it deems reasonably necessary to inform itself of the applicable laws, codes, regulations, licenses, and any other similar requirements related to the sale and delivery of Alcohol Items.
Upon Portier’s request, Merchant shall provide copies of applicable Required Licenses to Portier. Merchant will immediately notify Portier of any change, expiration, revocation, renewal, or termination of any applicable Required Licenses and will, upon Portier’s request, provide copies of any new applicable Required Licenses to Portier.
Packaging and Labeling
Merchant will package Alcohol Items appropriately for delivery, including (i) any protection necessary to prevent tampering or damage due to any cause, including inclement weather or the nature of the Alcohol Items themselves; and (ii) any labeling required by law, including but not limited to including a statement that the package contains alcohol and may only be delivered to a person 21 years or older with valid proof of age and identity.
Merchant agrees that Portier may modify the hours during which Alcohol Items are available for purchase and delivery from Merchant on the Uber Eats App in accordance with applicable law and regulation as well as operational considerations of the Uber Eats App. Portier will use reasonable efforts to notify Merchant of any such modifications.
Merchant instructs Portier (including its affiliates for purposes of this clause) to (i) collect payments for Alcohol Items that Customers purchase from Merchant via the Uber Eats App (“Customer Payments”) on Merchant’s behalf into an FBO account held for the benefit of Merchant and other merchants who sell Alcohol Items on the Uber Eats App (the “FBO Alcohol Account”); (ii) then transfer, on Merchant’s behalf, Customer Payments from the FBO Alcohol Account to the bank account that Merchant provides to Portier (“Merchant Account”); (iii) withhold from Customer Payments any fees or obligations owed to Portier, and withhold from Customer Payments, and then deliver to, any fees or obligations owed to the Delivery Person.
Merchant acknowledges that the Delivery Person or Customers may be required to return the Alcohol Item to Merchant for the below reasons. Merchant agrees to accept the return of Alcohol Items in such cases. Merchant understands and agrees that if such Alcohol Item is returned, Merchant shall not be paid for such items.
Such Delivery Person is unable to deliver an Alcohol Item pursuant to applicable law;
The Customer is unable to accept an Alcohol Item pursuant to applicable law;
The Alcohol Item in question constitutes a Substandard Item (defined in the Agreement) as determined by the Delivery Person or Customer. In the event Merchant provides an Alcohol Item that is a Substandard Item, Merchant is responsible for disposing of such Substandard Item.
Promotions and Advertising
Merchant agrees to follow all laws and regulations related to its advertisement and promotion of Alcohol Items, including but not limited to, only creating Merchant Promotions for Alcohol Items that comply with applicable local laws, Alcohol and Tobacco Tax and Trade Bureau and Federal Trade Commission guidelines, and following industry best practices.
As permitted by applicable laws and regulations, Merchant may make Alcohol Items for sale via the Uber Eats App via the following Sales Channels: Marketplace, Merchant Managed Delivery, and Non-Delivery, subject to Merchant eligibility for such Sales Channel and the below additional terms and conditions for usage of such Sales Channel.
MARKETPLACE SALES CHANNEL TERMS
If Merchant elects to offer Alcohol Items via the Marketplace Sales Channel, Merchant agrees to the following:
Each Delivery Person shall deliver Alcohol Items under and pursuant to Merchant’s Required Licenses and, as necessary, as Merchant’s third-party beneficiary. Merchant agrees that Delivery People shall conduct the delivery and are therefore responsible for verifying the age and identity of Customers and confirming Customers are not intoxicated when completing delivery. Portier shall provide in-app screens and tools for Delivery People to help complete Customer ID verifications compliantly. Where applicable or required by law, the in-app screen may enable the Delivery Person to capture a photo of the Customer’s ID and signature.
If a Delivery Person is unable to deliver an Alcohol Item(s) due to an act or omission of the Customer who purchased the Alcohol Item(s) from Merchant, then Merchant agrees that the Customer may be charged a fee for the return (the “Return Fee”), the amount of which shall be determined according to the standard fares charged by Delivery People in the region. Merchant agrees that it has no right to the Return Fee and the Return Fee will be used to pay the Delivery Person for the return of the Alcohol Item.
MERCHANT MANAGED DELIVERY AND NON-DELIVERY SALES CHANNEL TERMS
If Merchant elects to offer Alcohol Items via the Merchant Managed Delivery and/or Non-Delivery Sales Channels, Merchant acknowledges and agrees to the following:
Verification of Customer
Merchant agrees it is Merchant’s responsibility to verify the age and identity of the Customer and confirm that the Customer is not intoxicated when delivering Alcohol Items to the Customer (for the Merchant Managed Delivery Sales Channel) or when the Customer picks up the alcohol from Merchant (for the Non-Delivery Sales Channel). Merchant disclaims Portier and its affiliates (including Uber) from any and all liability related to Merchant’s noncompliant delivery of Alcohol Items via these Sales Channels.
Merchant agrees to notify Portier via the Uber Tools or by contacting Portier support if Merchant is unable to compliantly sell Alcohol Item(s) to a Customer via the Merchant Managed Delivery and Non-Delivery Sales Channels. Merchant agrees that in order for Portier to issue a refund, Merchant must first notify Portier of such return.
Merchant Managed Return Fee
If Merchant Managed Delivery Staff is unable to deliver an Alcohol Item due to the act or omission of the Customer who purchased such Alcohol Item from Merchant, then Merchant agrees that the Customer may be charged a return fee (the “Merchant Managed Return Fee”), the amount of which shall be determined by Portier. If the Customer is charged a Merchant Managed Return Fee, Portier shall remit such fee to Merchant.
SALES CHANNEL FEES
Unless otherwise agreed to by the parties or modified by requirement of applicable laws and regulations, the Fee Portier charges Merchant for the sale of Alcohol Items shall be calculated as follows:
Marketplace Sales Channel
Portier will charge Merchant a fee percentage of 15% for each Alcohol Item sold via the Uber Eats App through the Marketplace Sales Channel;
Non-Delivery Sales Channel
Portier will charge Merchant a fee percentage of 15% for each Alcohol Item sold via the Uber Eats App through the Non-Delivery Sales Channel;
Merchant Managed Delivery Sales Channel
Portier will charge Merchant a fee percentage of 10% for each Alcohol Item sold via the Uber Eats App through the Merchant Managed Delivery Sales Channel.
Notwithstanding the foregoing, if any of Merchant’s Locations are in states or jurisdictions that prohibit percentage-based fees for delivery of Alcohol Items, Portier shall charge Merchant a flat fee of $4.99 (the “Alcohol Service Fee”) for facilitating the delivery of all Alcohol Items. For clarity, Portier shall continue to charge Merchant the applicable Fee for all other Items as set forth elsewhere in the Agreement. Portier will invoice Merchant for any owed Alcohol Service Fee(s) and Merchant shall make such payment in accordance with the terms of such invoice.
Without limiting any other term of this Addendum, Merchant represents and warrants that, if applicable, it will comply with the following state laws and regulations:
Virginia: Delivery Persons assigned to fulfill orders containing Alcohol Items will act as Merchant’s agent in compliance with Va. Code Ann. § 4.1-212.1(c). Pursuant to 3 Va. Admin. Code 5-70-225(F), Merchant will affix a notice in 16-point type or larger in a conspicuous location on the outside of each package of Alcohol Products to be delivered in Virginia that states: “CONTAINS ALCOHOLIC BEVERAGES; SIGNATURE OF PERSON AGED 21 YEARS OR OLDER REQUIRED FOR DELIVERY.” Such notice shall also contain Merchant’s Delivery Permit number. Further, in accordance with Va. Code Ann. § 4.1-212.1(c) , Merchant shall be vicariously liable for any administrative violations of Va. Code Ann. § 4.1-212.1 or § 4.1-304 committed by a Delivery Person relating to any deliveries of Alcohol Items made on behalf of Merchant.
Agreed and Accepted:
|By: Portier, LLC||By (Merchant):|
|Title: Authorized Signatory||Title: Authorized Signatory|