RESTAURANT RETAILER TERMS AND CONDITIONS
Last updated: 11 Aug 2022
These terms apply to you (being the retailer or restaurant participating in DBC’s Services) (referred to hereinafter as “you”, “your” or “the Retailer”) and your access to and use of the “DBC Platform”, which includes but is not limited to the following apps and websites;
The services provided via the DBC Platform (the “DBC Services”) are provided by “DBC” or “us” (DBC TECHNOLOGIES LTD., a company incorporated pursuant to the laws of British Columba having its registered address at Suite 480 – 1500 West Georgia Street, Vancouver, British Columbia, V6G 2Z6, and doing business as DeliveryBizConnect).
By clicking “Accept” or by having your menu go live on the DBC Platform, you confirm that:
This forms a contract between you and DBC, which commences on the date of your acceptance (as detailed above) until the date upon which the DBC Services are terminated in accordance with these terms (the “Term”). You should save a copy of these terms for your records. We may make changes to these terms, so check back here from time to time. We’ll notify you of material changes before they happen. If you access or use the DBC Services after being notified of a change, you’re deemed to have accepted that change.
You can procure other services (e.g. acting as a “Promoter”) from DBC by agreeing and entering into a separate contract with us. Each additional contract entered into by you and DBC shall form a separate agreement.
You agree that you and DBC are independent businesses whose relationship is governed by these terms, and any other applicable terms as agreed between us. Nothing in these terms or any other agreements relating to the relationship or transactions between us shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between (a) DBC and Retailer (or Retailer’s employees, representatives or locations), (b) DBC and Matched Driver (as defined below), or (c) DBC and Customers (as defined below).
If you have questions about these terms, the DBC Platform or the DBC Services, please contact us.
DBC carries on a business using web-based technology, including the DBC Platform, which matches retailers, mostly restaurants and other outlets with which it has business partnerships, with both independent delivery drivers (“Matched Drivers”) and retail customers (“Customers”). For the avoidance of doubt, DBC is not a retailer, seller of goods, or delivery service; it is an online matching platform provider.
The DBC Platform will display your menu and provide an online ordering process that enables Customers to place an order for delivery (“Delivery Orders”) and/or for pick-up (“Pick-up Orders”).
The Delivery Orders will be delivered by Matched Drivers to Customers at such locations as are notified to the Driver through the DBC Platform. Customers pay a delivery fee for Delivery Orders. You are responsible for setting the fee that Customers pay for delivery.
We will make software available to you to use on any equipment provided to you so that you can use the DBC Platform. This software constitutes DBC IP (see further below) and it remains our property at all times. You must promptly implement any updates, upgrades and/or new versions of such software that we release from time to time.
Upon on-boarding with DBC, you will be required to set-up an account (if you do not already have one) with a recognised payments platform pre-approved by DBC (this will generally be Stripe).
Currently, payment processing services for Retailers on the DBC Platform are provided by Stripe and will be subject to Stripe’s terms and conditions. By agreeing to these terms and setting-up an account with Stripe, you agree to be bound by Stripe’s terms and conditions, as the same may be modified by Stripe from time to time. As a condition to DBC enabling payment processing services through Stripe, you agree to provide DBC accurate and complete information about your representatives and your business, and you authorize DBC to share such information and transaction information related to your use of the payment processing services provided by Stripe.
Payments made by Customers for Delivery Orders and Pick-up Orders are routed through the Stripe platform (“Customer Payments”) and are made directly to DBC and the Retailer via the Stripe payments platform which will automatically split in real-time the Customer Payment between DBC and the Retailer, with you, the Retailer, receiving the net after driver fee, tip and DBC Service fee are deducted.
DBC will remit the relevant delivery fee to the Matched Driver.
You shall be responsible for all taxes, duties, and other governmental charges on the sale of “Retailer Products” (being all products, food and beverages offered for Delivery Orders and Pick-up Orders via the DBC Platform) and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. Retailer shall also be responsible for all taxes, duties, and other governmental charges on monies received in relation to the Customer Sharing Program (as defined below), where applicable.
You agree, on an ongoing basis, to review and confirm all of your transactions, fees and charges on orders and invoices on the DBC Platform, and to promptly communicate to DBC in writing any claimed inaccuracies, so that DBC has the prompt opportunity to address and resolve any issues and so such issues do not persist, which DBC and Retailer agree is in the best interests of both parties and their commercial relationship. Retailer agrees to communicate to DBC any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order. Retailer shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Retailer does not communicate a written claim or objection to DBC regarding such transaction, fee, charge or order within such 60-day period.
You agree that you hold title to the Retailer Products until the Retailer Products are received by the Customer, upon which title passes to the Customer. Retailer agrees that neither the Matched Driver nor DBC holds title to or acquires any ownership interest in any Retailer Products or any other goods or products that Retailer prepares or provides through the DBC Platform.
Customers can access the DBC Platform in several ways, including (a) directly via DBC’s website or (b) where the Customer is directed to the DBC Platform by you via your website.
Where the Customer is directed to the DBC Platform by you via your website, the Customer will only be able to view your menu unless you have opted into the “Customer Sharing Program”. If you opt into the Customer Sharing Program:
For use of the DBC Platform and DBC Services, you shall pay an initial fee of $199.99 for the DBC Sales Maximization Package or $499.98 for the DBC Sales Maximization Package Pro (as defined below) and $99.99 per month thereafter (provided that your sales in such month exceed $500 or you send 1000 communications by text or email in the CRM) based on a rolling-monthly contract, subject to adjustment at the sole discretion of DBC (the “Platform Subscription Fee”).
The prices are subject to change and are not inclusive of any taxes.
Other than the initial fee of $199.99 or $499.98, DBC shall invoice you monthly for the Platform Subscription Fee. Retailer shall pay the invoice within two (2) days of receipt of such invoice. You may also pay the Platform Subscription Fee by credit card (such details being provided to us in advance). If any fee due to DBC, including for the avoidance of doubt, the Platform Subscription Fee, is not paid in full by such due date, DBC may set the DBC Platform to “closed” for the Retailer (meaning Pick-Up Orders and Delivery Orders cannot be processed and your menu will not be displayed), until paid and DBC may assess interest of 1.5%/month on the unpaid amount for the period beginning on the date such amount became due and owing and ending on the date that the amount is paid in full. The amount of interest to be paid shall not exceed the maximum rate under applicable law.
The “DBC Sales Maximization Package” will include a tablet, any other device provided to you, for accessing the DBC Platform and processing Delivery Orders (“DBC Equipment”), and we will also provide you with training and relevant on-boarding materials and DBC policies. We retain title to the DBC Equipment at all times. You must let us know of any faults with, or damage to, the DBC Equipment and give us access to your store during normal business hours to inspect, clean, repair, replace or remove the DBC Equipment. We may charge a reasonable fee for repairing or replacing any DBC Equipment.
The ”DBC Sales Maximization Package Pro” includes all items in the DBC Sales Maximization Package and additionally setup/update/optimize your web assets; Google Business Profile, Bing Business Profile, Facebook Page, Custom Domain, and writing 3 custom restaurant promotion campaigns.
If you choose not to continue using the DBC Services or DBC Platform within 60 days of paying the initial fee of $199.99 for the DBC Sales Maximization Package, you are entitled to a refund of such amount, provided that you return to DBC, in good working order (to the satisfaction of DBC) any and all DBC Equipment provided to you.
If you choose not to continue using the DBC Services or DBC Platform within 60 days of paying the initial fee of $499.98 for the DBC Sales Maximization Package Pro, you are entitled to a refund of $199.99, provided that you return to DBC, in good working order (to the satisfaction of DBC) any and all DBC Equipment provided to you.
On-boarding and menu ‘building’
As DBC is only a matching service, and all transactions run through the payment services platform Stripe or some other DBC pre-approved payment system, all interaction for refunds is handled between you and the Customer directly. In no event shall DBC be obligated to issue any refunds directly to Customers. If you elect to refund a Customer for any reason, such election shall not obligate DBC to provide a corresponding reimbursement to you.
DBC shall reimburse you in the following circumstances only:
You acknowledge that DBC shall be responsible only for customer support issues relating (a) Delivery Order or Pick-Up Order issues caused by the DBC Platform, (b) a Customer’s DBC account or (c) the facilitation of the delivery of Delivery Orders. All other customer issues or complaints will be Retailer’s sole responsibility, including without limitation, complaints regarding the nature, quality, content, number, or packaging of the Retailer Products.
Retailer agrees not to refer any Customer complaints directly to DBC. Any complaints regarding the timeliness or quality of a Matched Driver’s delivery service shall be reported by Retailer to DBC, and DBC will contact the Customer (with the Customer’s consent).
All rights, title and interest in and to the DBC Platform, any software we provide for your use and any other materials we provide to you under or in connection with these terms are and shall at all times remain DBC’s intellectual property (DBC IP). We grant you a limited, non-exclusive, non-transferrable, non-sublicensable, revocable license to use the DBC IP in Canada during the Term for the sole purpose of using the DBC Services.
You must not (and shall not permit any third party to):
DBC grants you a non-exclusive, royalty-free, non-sublicensable, non-transferable license to use DBC branding, which includes the “DBC” logo, name and/or website address for the Term in Canada to allow you to advertise DBC Services at your sites/stores. You must comply with any DBC policy issued from time to time.
You grant us and our affiliates a non-exclusive, royalty-free license to use your branding which includes your logos, name and website address(es) for the Term in Canada. You warrant and undertake that your branding does not and will not infringe any third party intellectual property rights. We can use your branding on the DBC Platform, for marketing purposes and as reasonably necessary to provide the DBC Services.
During the Term, you grant to DBC a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use and display the Retailer Content in the provision of services to you, including listing you as a Retailer on the DBC Platform, referencing you as a DBC partner, and to promote DBC’s products and services. As used herein, “Retailer Content” includes, without limitation, name and website address(es), menus, photographs (either provided by Retailer or on Retailer’s website), trademarks, logos and other materials provided by Retailer to DBC. You warrant and undertake that the Retailer Content does not and will not infringe any third party intellectual property rights and that we can use your Retailer Content on the DBC Platform, for marketing purposes and as reasonably necessary to provide the DBC Services.
If photographs of Retailer’s menu items are not available or if they do not meet DBC’s requirements, as reasonably determined by DBC, then Retailer consents to DBC (i) engaging a professional photographer to take photographs of Retailer’s menu items (ii) enhancing the quality of Retailer’s existing photographs or (iii) using stock photos of the menu item, and displaying such photographs on the DBC Platform as representations of Retailer’s menu items; provided that Retailer may contact DBC support to have such photographs removed.
Except for these limited licenses:
We may collect data about your use of DBC Services. By using the DBC Platform and the DBC Services you agree to us collecting and using this information. We may use this information for various purposes, including to improve, maintain, protect and develop our products, and to provide services to you.
We may suspend your use of the DBC Platform on giving you notice if we know or suspect you have breached these terms, or if we otherwise consider suspension reasonably necessary taking account of all relevant circumstances.
We will give you the reasons for the suspension where permitted by law. We will maintain the suspension until you have remedied the breach to our reasonable satisfaction, or we no longer consider the suspension necessary in the circumstances.
These terms take effect on acceptance (see above) and continue until terminated by either party giving 7 days’ written notice to the other. If permitted by law and where we consider immediate termination necessary in the circumstances, we may give you written notice to terminate these terms with immediate effect.
Email shall suffice for written notice.
Neither Retailer nor DBC will be required to pay any fee in connection with a termination by either party, or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or for any expenditures, investments, leases or commitments made by either Retailer or DBC. However, termination of these terms shall not relieve either party from liability for breach of any provision nor for payment of commissions or monies due from one to the other prior to termination.
DBC reserves the right, at its sole discretion, to change, suspend, or discontinue the DBC Platform (including without limitation, the availability of any feature or content) at any time. DBC may, at its sole discretion, remove Retailer Products from the DBC Platform if DBC determines that such Retailer Product or Retailer could subject DBC to undue regulatory risk, health and safety risk, or other liability.
Retailer agrees it will comply with all applicable all applicable data protection and privacy laws.
Each party agrees to provide reasonable and prompt assistance to the other party as necessary to assist the other party to ensure compliance with its obligations under data protection and privacy laws and enable the other party to comply with data subject requests and/or respond to other queries or complaints received from Customers or supervisory authorities, in each case related to personal information.
Retailer will not allow any third party to use the DBC Platform and will be responsible for damages resulting from sharing Retailer’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Retailer’s account. Retailers may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the DBC Platform; damage, destroy or impede the services provided through the DBC Platform; transmit injurious code; or bypass or breach any security protection on the DBC Platform.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, DBC HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE DBC PLATFORM, DBC EQUIPMENT OR DBC SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF RETAILERABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Retailer acknowledges that the operation of the DBC Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and DBC shall not be responsible to Retailer or others for any such interruptions, errors, or problems or an outright discontinuance of the DBC Platform nor for any guarantee of results with respect to the DBC Services or DBC Platform. 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 (the “Indemnified Party”) from and against any and all claims, damages, losses 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’s personnel and, in the case of DBC, Matched Drivers (or, in the case of Retailer as the Indemnifying Party, caused by the Retailer Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants; (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”); or (iv) in the case of Retailer as the Indemnifying Party, Retailer’s failure to distribute tips as required by applicable law. In addition, Retailer will defend, indemnify and hold harmless DBC from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Retailer Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of DBC. 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). 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. DBC assumes no liability, and shall have no liability, for any infringement claim based on Retailer’s access to and/or use of the DBC Platform following notice of such an infringement claim; any unauthorized modification of the DBC Platform by Retailer; or Retailer’s combination of the DBC Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.
EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO DBC BY RETAILER IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 12 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, 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 LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL APPLY TO THE EXTENT PROHIBITED BY LAW.
During the Term and for one year after, each party will maintain adequate 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.
PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH DBC AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 15 SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.
To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 16, Retailer agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Retailer opted out of the Arbitration Provision or any other reason, will be conducted solely on an individual basis, and Retailer agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Retailer acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Retailer further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.
You covenant and agree that you shall not, during the Term, except in the performance of obligations hereunder, or at any time after the termination of these Terms, communicate or disclose to any person or use for his account, without the prior written consent of DBC, any confidential information (see below), business information, observations, data, written material, records or documents relating to the business and affairs of DBC or any of its affiliates, including, without limitation, any trade secrets, customer lists, information relating to sources of customers or prospects, financial, personnel and customer information, and any confidential information concerning the business or affairs of any supplier, creditor, lender, shareholder or customer of DBC or any of its affiliates which was obtained or acquired by you during the Term of these Terms.
The words “confidential information” include but are not limited to: (a) personal data identifying or relating to any of DBC’s customers (including but not limited to names, addresses and other personal information such as dietary requirements and details of other household members), suppliers or employees; (b) training materials, and other confidential material provided to you during the course of DBC’s onboarding process; (c) details of relationships or arrangements with DBC’s other suppliers and business partners, including but not limited to restaurants; (d) details of DBC’s business methods, finances, pricing strategy, marketing or development plans or strategies; and (e) any other information you know to have been divulged to you by DBC, or by a third party in the course of performing services, in confidence.
In any legal action to enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its reasonable attorneys’ fees and costs from the other party.
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.
These terms are governed by and interpreted in accordance with the laws of the Province of British Columbia without regard to the conflicts of laws principles thereof, and except as set forth above in Section 15 (“Dispute Resolution”), the parties hereby attorn to the non-exclusive jurisdiction of the Courts of British Columbia.
Retailer may not assign this Agreement in whole or in part without DBC’s prior written consent. DBC may freely assign this Agreement.
This Agreement is 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.
All notices, requests, consents and other communications under these must be in writing, and delivered (unless otherwise permitted) by overnight courier to the addresses most recently notified). DBC’s address is 480 – 1500 West Georgia St., Vancouver, BC, V6G 2Z6.
If any provision of these terms is 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.
All monies which are referred to in this Agreement are, unless expressly stated otherwise, expressed in lawful money of Canada for Canada and USD for USA.