Upon acceptance, these Alcohol Sales Terms are incorporated by reference into and hereby made a part of the Agreement. Subject to these Alcohol Sales Terms, the definition of “Items” (or “Meals,” as applicable) in the Agreement shall now be expanded to include Alcohol Items. Capitalized terms not otherwise defined in these Alcohol Sales Terms shall have the meanings assigned to such terms in the General Terms or elsewhere in the Agreement.
These Alcohol Sales Terms contain the parties’ full and complete understanding and agreement relating to the subject matter hereof and supersede all prior and contemporary understandings and agreements, whether oral or written, related to such subject matter. For clarity, these Alcohol Sales Terms do not alter Merchant’s relationship with Portier. Except as modified herein, the remaining terms of the Agreement shall remain unchanged and in full force and effect and these Alcohol Sales Terms shall prevail in the event of any conflict with the terms of the Agreement.
Merchant may choose to make alcoholic beverages (“Alcohol Items”) available for sale via theApp(s), subject to applicable laws and regulations and the following terms and conditions:
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 App(s) and/or Required Licenses to sell and deliver Alcohol Items in a given state or local jurisdiction.
For the avoidance of doubt: (i) Portier does not hold a Required License for the sale of Alcohol Items and only facilitates the promotion, marketing, and/or sale of Alcohol Items by third parties via the App(s); (ii) Merchant is a licensed seller of alcoholic beverages that wishes to sell Alcohol Items via the App(s); (iii) Merchant, in its sole discretion, sets the price of Alcohol Items that Merchant offers for sale via the App(s) and at Merchant’s Locations; and (iv) Merchant enters into contracts with Customers for the sale of Alcohol Items via the App(s). Orders for Alcohol Items solicited via the App(s) 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.
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.
Before Merchant may offer Alcohol Items for sale via the App(s), Merchant shall provide copies of applicable Required Licenses to Portier. Merchant will (i) immediately notify Portier of any change or modification to any of its Required Licenses (e.g., expiration, revocation, renewal, termination, etc.), and (ii) immediately provide Portier with any new or updated Required Licenses. Merchant acknowledges that Portier may remove Alcohol Items from Merchant’s menu on theApp(s) or suspend Merchant’s account entirely if it fails to comply with its obligations herein.
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 App(s) in accordance with applicable law and regulation as well as operational considerations of the App(s). Portier will use reasonable efforts to notify Merchant of any such modifications.
Merchant and Portier acknowledge and agree that: (i) Merchant and/or Portier have entered into agreements with third parties to collect payments from Customers on Merchant’s behalf for sales that occur via the App(s); (ii) Merchant has control over the all payments for all Items, including Alcohol Items, that Customers purchase from Merchant via the App(s) (“Customer Payments”); (iii) as an exercise of Merchant’s control over the Customer Payments, Merchant instructs Portier to, on Merchant’s behalf and pursuant to Merchant’s instructions, administer an account into which Customer Payments would be held once collected from Customers on Merchant’s behalf, administered, opened by Portier or its Affiliates on behalf (the “Merchant FBO Account”); (iv) Merchant has received the full amount of the Customer Payments upon transfer of the Customer Payments to Merchant FBO Account and maintains full control over the Customer Payments while held in the Merchant FBO Account; and (v) Merchant shall determine further disbursements from the Merchant FBO Account by providing instructions to Portier.
Consistent with Merchant’s control over Customer Payments received by Merchant in its Merchant FBO Account described above, Merchant provides standing and default instructions to Portier or its service provider (including the affiliates of either for purposes of this clause) to: (i) administer the Merchant FBO Account on Merchant’s behalf and pursuant to Merchant’s instructions; (ii) process Customer Payments into the Merchant FBO Account; (iii) after the Merchant FBO Account has received the full amount of the Customer Payments, for Merchant’s convenience, disburse funds as follows: (a) to the bank account that Merchant provides to Portier or its service provider, all amounts less fees or obligations owed to Portier and the Delivery Person; (b) to Portier, any fees or obligations owed to Portier; and (c) to the Delivery Person, any fees or obligations owed to the Delivery Person. Regulatory requirements may require that Merchant maintain an individual account with a service provider to collect Customer Payments. In such case, Merchant will be subject to terms entered into directly with the service provider, which may be subject to change. Merchant may be required to provide, directly to Portier’s service provider, client information, address, license and any additional information as may be further required. Merchant grants permission to Portier and its service provider to set up Merchant’s merchant account with Portier’s account with the service provider so as to accept payments on Portier’s website or mobile application. Merchant retains discretion to provide alternative, substitute, or supplemental payment instructions to Portier at any time. Subject to the limitations of the Agreement, to the extent required by payment card industry standards, and without limiting any of Merchant’s own obligations under the Agreement, Portier will maintain the security of cardholder data to the extent and while it stores, processes, or transmits such data on behalf of Merchant.
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.
i) Such Delivery Person is unable to deliver an Alcohol Item pursuant to applicable law;
ii) The Customer is unable to accept an Alcohol Item pursuant to applicable law;
iii) 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.
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 App(s) 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.
If Merchant elects to offer Alcohol Items via the Full Service 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.
If Merchant elects to offer Alcohol Items via the Merchant Managed Delivery and/or Pick-Up Sales Channels, Merchant acknowledges and agrees to the following:
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 Pick-Up Sales Channel). Merchant disclaims Portier and its affiliates (including Uber Technologies, Inc.) 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 Pick-Up Sales Channels. Merchant agrees that in order for Portier to issue a refund, Merchant must first notify Portier of such return.
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.
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 as described in the Agreement:
Notwithstanding the foregoing, if any of Merchant’s Locations are in states or jurisdictions that prohibit percentage-based fees for delivery of Alcohol Items, Merchant agrees that Portier shall charge Merchant a flat fee (the “Alcohol Service Fee”) for 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.
If Fee Cap Laws limit the Fees attributable to Merchant’s sale of Alcohol Items that Portier may charge Merchant at a Location, notwithstanding the Fees set out in this Agreement, Portier will charge Merchant a Fee attributable to Merchant’s sale of Alcohol Items as permitted by those Fee Cap Laws for that Location. “Fee Cap Laws” means laws, rules, regulations, orders or ordinances that limit the Fees attributable to Merchant’s sale of Alcohol Items that Portier may charge Merchant under this Agreement.
Without limiting any other term of these Alcohol Sales Terms, Merchant represents and warrants that, if applicable, it will comply with the following state laws and regulations:
In compliance with Iowa Code § 123.64A and guidance from the Iowa Alcoholic Beverages Division (“IABD”) (available at https://abd.iowa.gov/alcohol/state-iowa-alcohol-law/laws-important-business-operation) Merchant hereby authorizes Portier, along with Delivery Persons that accept requests from Customers to fulfill orders containing Alcohol Items, to act as Merchant’s agents for the purpose of facilitating the delivery and delivering such Alcohol Items. Merchant agrees, as required to comply with the Iowa Code or any regulation enacted by IABD, to submit the Third-Party Delivery of Alcoholic Beverages form to IABD (provided by IABD at https://stateofiowa.seamlessdocs.com/f/abd_third_party_delivery) using the following details under Third-Party Agent Information: Portier, LLC; 1515 3rd Street, San Francisco, CA 94115; (415) 612-8582.
Under Louisiana state law, the Merchant is prohibited from paying a percentage of the total receipts for alcoholic beverages as a requirement of any contract with Portier. If any of Merchant’s Locations are in Louisiana, such Locations will be charged an Alcohol Service Fee.
Merchant shall place all Alcohol Items in packaging that is conspicuously labeled with following:
“Contains alcohol: signature of persons 21 years or older required for delivery.”
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.
The Merchant must submit this Agreement to the authorities as and if required by law, rule, or regulation.