These Terms of Use for Alcohol and Marijuana Delivery (“Alcohol and Marijuana Delivery Terms”), made subject to the terms and conditions of the agreement between Merchant and bqn Limited(“bqn”) related to Merchant’s access to the App(s) Sales Channels (the “Agreement”), shall govern Merchant’s rights and obligations related to the sale by Merchant of Alcohol Items (defined below) via the App(s).
1. GENERAL
Upon acceptance, these Alcohol and Marijuana Delivery Terms are incorporated by reference into and hereby made a part of the Agreement. Subject to these Alcohol and Marijuana Delivery Terms, the definition of “Items” (or “Products,” as applicable) in the Agreement shall now be expanded to include Alcohol Items. Capitalized terms not otherwise defined in these Alcohol and Marijuana Delivery Terms shall have the meanings assigned to such terms in the General Terms or elsewhere in the Agreement.
These Alcohol and Marijuana Delivery 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 and Marijuana Delivery Terms do not alter Merchant’s relationship with bqn. Except as modified herein, the remaining terms of the Agreement shall remain unchanged and in full force and effect and these Alcohol and Marijuana Delivery Terms shall prevail in the event of any conflict with the terms of the Agreement.
2. TERMS RELATED TO THE SALE OF ALCOHOL ITEMS VIA THE bqn APP
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:
2.1. 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 App(s) and/or Required Licenses to sell and deliver Alcohol Items in a given state or local jurisdiction.
2.2. Role of the Parties
For the avoidance of doubt, (i) bqn is an unlicensed entity that facilitates the promotion, marketing, and/or sale of Alcohol Items by third parties via the App(s); and (ii) Merchant is a licensed seller of alcoholic beverages that wishes to sell 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.
2.3. 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.
2.4. Alcohol Licenses
Before Merchant may offer Alcohol Items for sale via the App(s), Merchant shall provide copies of applicable Required Licenses to bqn. Merchant will (i) immediately notify bqn of any change or modification to any of its Required Licenses (e.g., expiration, revocation, renewal, termination, etc.), and (ii) immediately provide bqn with any new or updated Required Licenses. Merchant acknowledges that bqn 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.
2.5. 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.
2.6. Hours Availability
Merchant agrees that bqn may modify the hours during which Alcohol Items are available for purchase and delivery from Merchant on the bqn App in accordance with applicable law and regulation as well as operational considerations of the bqn App. bqn will use reasonable efforts to notify Merchant of any such modifications.
2.7. Payment Instructions
Merchant instructs bqn (including its affiliates for purposes of this clause) to (i) collect payments for Alcohol Items that Customers purchase from Merchant via the App(s) (“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 App(s) (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 bqn (“Merchant Account”); (iii) withhold from Customer Payments any fees or obligations owed to bqn, and withhold from Customer Payments, and then deliver to, any fees or obligations owed to the Delivery Person.
2.8. Returns Generally
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.
2.9. 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.
3. FULFILLMENT METHODS
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.
4. DELIVERY TERMS
4.1. Delivery Person
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. bqn 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.
4.2. Return Fee
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.
6. FEES
Unless otherwise agreed to by the parties or modified by requirement of applicable laws and regulations, the Fee bqn charges Merchant for the sale of Alcohol Items shall be as described in the Agreement:
6.1 Flat-Based Fee
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 bqn shall charge Merchant a flat fee (the “Alcohol Service Fee”) for delivery of all Alcohol Items. For clarity, bqn shall continue to charge Merchant the applicable Fee for all other Items as set forth elsewhere in the Agreement. bqn will invoice Merchant for any owed Alcohol Service Fee(s) and Merchant shall make such payment in accordance with the terms of such invoice.
7. STATE-SPECIFIC PROVISIONS
Without limiting any other term of these Alcohol and Marijuana Delivery Terms, Merchant represents and warrants that, if applicable, it will comply with the following state laws and regulations:
7.1. 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.
7.2. Oregon
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.”