Merchant Terms & Conditions

Modified on Fri, 12 Nov 2021 at 09:23 AM


  • Definitions

  • Skipcart Core Responsibilities.

  • Merchant Core Responsibilities.

  • Refunds and Re-Orders.

  • Payment, Fees, and Taxes.

  • Payment Processing.

  • Use of Merchant Content and Trademark.

  • Confidential Information.

  • Data Privacy.

  • Termination.

  • Modifications.

  • Representations and Warranties; Disclaimer.

  • Indemnification.

  • Limitation of Liability.

  • Insurance

  • Dispute Resolution.

  • General Provisions.

This Skipcart Platform Agreement (the “Agreement”) is entered into upon receipt  (the “Effective Date”) by and between Skipcart Delivery LLC a Texas Limited Liability Company (“Skipcart”) located at 711 Navarro St San Antonio, TX 78205 (the “Merchant”),  Merchant and Skipcart may be referred to in this Agreement individual as a “Party” and collectively as the “Parties.”

In consideration of the mutual promises in this Agreement, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows.

1. Definitions

  1.  “Customer” means the customer who places an order for Merchant products through Skipcart Direct or Pick Up.

  2. Delivery API” means the Skipcart application programming interface (API) that allows the Merchant to exchange information with Skipcart.

  3. Direct Orders” means orders placed by Merchant for delivery fulfilment by Skipcart.

  4. Direct Term” means the term of the agreement between Skipcart and Merchant for Skipcart Direct. 

  5. Merchant” means the restaurant or other entity that has agreed to participate in the Skipcart Services.

  6. Merchant Products” includes all products offered for take-out or delivery orders at Merchant Stores.

  7. Merchant Stores” means the Merchant restaurant or retail locations that participate in the Skipcart Services.

  8. Personal Information” shall mean any information exchanged under this Agreement 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) that 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).

  9. "PickUp" means the online Skipcart communication platform where Customers can place an order for Merchant Products for pick up by the Customer or the Customer's agent at a Merchant Store.  

  10. PickUp Term” means the term of the agreement between Skipcart and Merchant for the PickUp.

  11. Schedule for Later Order” shall mean an Order to be fulfilled at a particular time later in the same day or at a later date.

  12. Skipcart Data” shall mean any information that Skipcart provides or makes accessible to Merchant through the Skipcart Platform, including without limitation Personal Information. 

  13. Skipcart Direct” means the platform that enables delivery fulfillment for orders placed directly with the Merchant by the Customer.

  14. Skipcart Services” means Skipcart Direct and PickUp, as applicable.

  15. Term” means the period of time beginning on the Effective Date of this Agreement and ending on the later of the expiration of the Direct Term and the Pickup Term.

  16. Third Party Platform” means a technology interface, such as a middleware technology platform, other than the online order form and the Delivery API that enables Merchant to request delivery fulfillment and provide information necessary to enable such delivery fulfillment.

2.  The Parties' Relationship:  Skipcart provides an online platform using web-based technology that connects Merchants and Drivers, as described in these Terms for Skipcart Direct.   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 Services are not intended to be contract carriage as defined in 49 U.S.C. § 13102(4) and § 14101(b).  Merchant and Skipcart agree they are independent businesses whose relationship is governed by these Terms.  Nothing in the Parties' agreements, relationship or transactions shall create or be construed as creating an agency, fiduciary or joint venture relationship between Skipcart and Merchant (or Merchant's employees, representatives or locations), Skipcart and Driver, or Skipcart and Customers.  Except as expressly set forth in these Terms, each Party shall be responsible for its own expenses, profits and losses. 

3. Skipcart Direct Core Responsibilities. Skipcart and Merchant shall have the following responsibilities during the Direct Term:

  1. Skipcart Core Responsibilities. Skipcart will, in a timely manner:

    1. Provide Merchant with an online order form or access to the Delivery API to submit requests for deliveries, or receive information through a Third Party Platform; 

    2. Forward requests to a Driver, so that the Driver can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer.

  2. Merchant Core Responsibilities. Merchant will: 

    1. Via the online order form, the Delivery API, or a Third Party Platform, provide information requested by Skipcart including the Customer’s address, contact information, and any special instructions required for delivery;

    2. Accept and collect payments from Customers for their respective orders; 

    3. Notify Customers prior to placing a Direct 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; and 

    4. Notify Skipcart if a Customer has not consented to receive delivery updates or has placed any restrictions on 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.

    5. On an ongoing basis, review and confirm the transactions, fees and charges on invoices and via the Merchant Portal, and promptly communicate to Skipcart any inaccuracies.

  3. Direct Operating Procedures.

  4. Order Placement. Merchant agrees to submit a Direct Order for delivery fulfillment at least two (2) hours in advance of scheduled delivery. ASAP orders can be submitted at any time.  Exceptions will be mutually agreed to by the Parties.

  5. Hours of Operation. The pickup and dropoff 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 federal holidays with reasonable advance notice; and (ii) to notify Skipcart with reasonable advance notice if a Merchant Store closes earlier than standard hours of operation or plans to close earlier than standard hours of operation.

  6. Delivery Radii. Skipcart will only accept Direct Orders to be delivered within a certain preset delivery radius based on either the Merchant or the End-Customer location, which will be communicated to the Merchant.

  7. Cancellations. Fees owed for any Direct Orders cancelled within twenty-four (24) hours of a Schedule for Later 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. Fees owed for any Direct Orders cancelled after a Driver has accepted a delivery opportunity will be non-refundable.

  8. 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.

4. PickUp Core Responsibilities. To the extent applicable, during the PickUp Term, Skipcart will have the same responsibilities as set forth in Section 3(a)(i) - 3(a)(ii), and Merchant will have the same responsibilities as set forth in Section 3(b)(i) - (v). 

5. Refunds and Re-Orders. Refunds and re-orders will be addressed as follows:

  1. Direct 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. 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 Direct Order is more than 120 minutes late and due to fault of Skipcart or a Driver, Skipcart will reimburse Merchant for all or a portion of the delivery cost of the applicable Direct Order. If Merchant elects to refund a Customer for any reason, such election shall not obligate Skipcart to provide a corresponding reimbursement to Merchant. 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. For the purposes of this agreement, “Merchant Product” is the actual food or beverage item, not the packaging that contains the Merchant Product. In no event shall Skipcart be obligated to issue any refunds directly to Customers.

  2. PickUp Refunds.  All customer issues or complaints will be Merchant’s sole responsibility. In the event that Skipcart, in its sole discretion, determines to issue a refund, credit or re-order for a Customer’s Order, Merchant will prepare the food to the same specifications as the original PickUp Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order.

6. Payment, Fees, Title and Taxes. Payment, fees, and taxes shall be addressed as follows:

  1. Skipcart Direct. Merchant will pay Skipcart a fee per Direct Order as mutually agreed in Exhibit A. 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. Skipcart shall invoice Merchant for payment of all fees on a monthly basis and Merchant shall pay the invoice within fourteen (14) days of receipt of such invoice. If any undisputed fee is not paid in full by the due date, Skipcart may assess interest on the unpaid amount for the period beginning on the payment date 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. 

  2. Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to Skipcart in writing any claimed inaccuracies, so that Skipcart has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Skipcart and Merchant agree is in the best interests of both parties and their commercial relationship.  Merchant agrees to communicate to Skipcart any disagreement, non-conformity or any issue with any transaction, fee, charge or order within sixty (60) days of the transaction, fee or order.  Merchant 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 Merchant does not communicate a written claim or objection to Skipcart regarding such transaction, fee, charge or order within such 60-day period. 

  3. Title:  Merchant agrees that Merchant holds title to the goods or products that Merchant provides through the Platform until the goods are picked up from Merchant, and that title passes from the Merchant to the Customer upon pickup at the Merchant Store.  Merchant agrees that neither the Driver nor Skipcart holds title to or acquires any ownership interest in any goods or products that Merchant prepares or provides through the Platform.

7. Confidential Information.

  1. 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 this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, Skipcart Data is the Confidential Information of Skipcart.

  2. 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 this Agreement; (ii) was or becomes public domain 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 any Confidential Information.

  3. 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 this Agreement; (ii) except subject to its compliance with Section 7(d), not disclose or permit access to Confidential Information other than to its or any of its 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 this Agreement, and 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.

  4. 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 7(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.

8. Data Privacy and Security.

  1. General. Merchant agrees not to access, collect, store, retain, transfer, use or otherwise process in any manner Skipcart Data, including without limitation Personal Information, except as required to perform under this Agreement. 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 will not: (i) allow any third party to use the Skipcart Platform; (ii) copy, modify, rent, lease, sell, distribute, reverse engineer or otherwise attempt to gain access to the source code of the Skipcart Platform; (iii) damage, destroy or impede the services provided through the Skipcart Platform; (iv) transmit injurious code; or (V) bypass or breach any security protection on the Skipcart Platform.

  2. Delivery API. During the Term, Skipcart grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Delivery API solely to transmit information to facilitate the Skipcart Direct services. Merchant will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Delivery API; (ii) circumvent 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; and (v) use the Delivery API for a reason other than as specifically provided or intended under this Agreement. 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, or any items of a destructive nature.

9. Term and Termination.

This Agreement commences on the Effective Date and continues for a period of one (1) year (the “Initial Term”). This Agreement will renew automatically at the end of the Initial Term (and each Renewal Term, if any) for successive one (1) year periods (each a “Renewal Term”), unless the Agreement is terminated in accordance with this Agreement. For the avoidance of doubt, this Agreement will automatically renew unless either Party has provided thirty (30) days prior written notice prior to the expiration of the Initial Term or the current Renewal Term. 

Merchant may terminate this Agreement for any reason at any time upon thirty (30) days prior written notice. Skipcart may terminate this Agreement or any promotion under this Agreement for any reason at any time upon written notice. Neither Merchant nor Skipcart 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 Merchant or Skipcart.

10. Modifications.

Skipcart reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. Skipcart also may revise these Terms from time to time. The changes will not be retroactive. We will notify Merchants of material revisions via a service notification or an email to the email address associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.

11. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.

  1. Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.

  2. Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, 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. For the avoidance of doubt, Skipcart represents and warrants that Merchant’s use of the Platform in accordance with this Agreement does not infringe the intellectual property rights of any third party.

  3. Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health (including Proposition 65 in California), food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation,  (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 or a consumer 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(iii) and 3(iv) of this Agreement.

  4. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, SKIPCART HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SKIPCART PLATFORM, THE DELIVERY API, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Merchant acknowledges that the operation of the Platform 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 Platform nor for any guarantee of results with respect to the Skipcart services or 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 this Agreement.

12. Indemnification.

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 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 or covenants set forth in Section 7 and Section 8, and Section 11 of this Agreement;  (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”). 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 retail food or other health and safety code, rule, or regulation related to Merchant Product(s), 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). 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 14(iii) above based on: (i) Merchant’s access to and/or use of the Skipcart Platform following notice of such an infringement claim; (ii) any unauthorized modification of the Skipcart Platform by Merchant; or (iii) Merchant’s combination of the Skipcart Platform with third party programs, services, data, hardware, or other materials, if no infringement would have occurred without such combination.

13. Limitation of Liability.


14. Insurance.

During the Term of the Agreement 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 this Agreement.

15. Dispute Resolution. This Agreement shall be construed in accordance with and governed by the internal substantive and procedural laws of Texas applicable to contracts made and to be fully performed therein, without giving effect to the principles of conflicts of law thereof.  Each party hereby irrevocably agrees that any action, suit or proceeding between or among the parties arising in connection with any disagreement, dispute, controversy or claim arising out of or relating to this Agreement or any related document shall be brought only to the exclusive jurisdiction of the state and federal courts which serve Bexar County, Texas, and each party hereby consents to the jurisdiction of such courts and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such proceeding in any such court is improper or has been brought in an inconvenient forum.  THE PARTIES WAIVE ALL RIGHTS TO A TRIAL BY JURY.

15. Skipcart Code of Conduct. Merchant agrees to comply with the Skipcart Code of Conduct ( which may be updated by Skipcart from time to time. 

16. 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 cellular telephone number Merchant provides to Skipcart. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Skipcart, its affiliated companies and/or Drivers. Merchant may opt out of such communications in Merchant’s Account Settings or by replying “STOP” from the mobile device receiving such messages.

17. 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. This Agreement is governed by and interpreted in accordance with the laws of the State of Texas without regard to the conflicts of laws principles thereof. Merchant agrees that, except as set forth above in Section 15 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of San Antonio, TX. Merchant may not assign this Agreement in whole or in part without Skipcart’s prior written consent. Skipcart 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 the Parties' agreements must be in writing, and delivered by overnight courier to the addresses set forth on the attached signature page or to such updated address as requested by either party in a manner set forth in this Section 20. If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.

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