Additional Terms for Alcohol Sales

Updated July 12, 2023

These Additional Terms for Alcohol Sales (“Alcohol Terms”) supplement and, to the extent of any inconsistency, supersede the agreement entered into between GH and Merchant (Merchant may also be identified as Restaurant), including, as applicable, the Grubhub Restaurant Terms and any agreement governing the provision of the Grubhub Direct Services by Grubhub to Merchant (collectively, the “Agreement”). These Alcohol Terms are hereby incorporated into the Agreement in their entirety and govern Merchant’s obligations regarding the sale of alcoholic beverages on the Systems.  Capitalized terms used but not defined herein have the meanings set forth in the Agreement.  All references to “Systems” herein shall be deemed to include any Grubhub Direct Website.  Except as otherwise specifically set forth herein, the terms and conditions of the Agreement shall remain in full force and effect.

In the event that Merchant includes alcoholic beverages in its menu on the Systems, Merchant agrees to comply with all obligations set forth in these Alcohol Terms.

1. Merchant Obligations.
   1. Applicable Law.  Merchant represents, warrants, and covenants that it will comply with all applicable laws, rules, regulations, ordinances, alcohol product regulatory agency policies and advisories, and industry marketing codes in connection with the sale of alcoholic beverages, including, if applicable, the delivery, advertising and promotion of alcoholic beverages (“Applicable Alcohol Laws”) on the Systems.  Merchant agrees that the sale and, if applicable, delivery of alcoholic beverages on the Systems (the “Alcohol Sales”) are based on and subject to the Liquor Licenses, as defined below, and are limited to the jurisdictions in which the Liquor Licenses are issued and in which Grubhub permits alcohol sales and/or delivery on its Systems.  Merchant will not offer Alcohol Sales to be delivered to any locations where such sales are prohibited by Applicable Alcohol Laws, the Liquor Licenses, or Grubhub policy.
   2. Licensing.  Merchant represents, warrants, and covenants that it maintains and will continue to maintain a valid and active liquor license and all other applicable licenses, permits, and registrations for the sale, distribution, and (if applicable) delivery of alcoholic beverages (collectively, “Liquor Licenses”). Merchant will provide GH with a copy of the Liquor Licenses (including any conditions accompanying such Liquor Licenses) and all renewals thereof, and will immediately notify GH if any Liquor License is not renewed or is revoked, canceled, surrendered or expired at any time during the Term.  Merchant agrees to abide by the terms of its Liquor License(s), including but not limited to regarding types of alcoholic beverages it is permitted to offer on the Systems.  Merchant agrees that it will provide GH with any additional information that GH may request from Merchant to confirm that Merchant is authorized and permitted to sell alcoholic beverages on the Systems.  For clarity but without limitation, Merchant acknowledges that Grubhub does not have any Liquor Licenses in its name and that Grubhub facilitates Alcohol Sales at Merchant’s explicit direction and under the authority of Merchant’s Liquor Licenses. Merchant is the seller of record for the Alcohol Sales on the Systems, and title for the applicable alcoholic beverage shall pass directly from Merchant to the purchasing customer (the “Customer”).
   3. No Conditions.  Merchant represents, warrants, and covenants that there are no conditions, stipulations or other limitations on its Liquor Licenses that would preclude the off-premises sale of alcoholic beverages or delivery of alcoholic beverages through the Systems.
   4. Merchant’s Own Delivery.  Merchant represents, warrants, and covenants that for all orders containing alcohol that are made available for Customer pickup or are delivered by Merchant, its employees, agents, contractors or affiliates (collectively, “Merchant Delivery Providers”), Merchant will: (1) request and review a valid, government-issued identification indicating that the recipient is at least 21 years of age; (2) confirm that the recipient is not visibly intoxicated; and (3) collect and retain delivery records, including recipient signature, as required by Applicable Alcohol Laws.
   5. Seller of Record. Merchant agrees that it is the seller of all alcoholic beverages under the Agreement. Merchant shall at all times be solely responsible for determining the selection and setting the price of all alcoholic beverages sold through the Systems, and Merchant shall have the opportunity to review, and to accept or reject, all orders for alcoholic beverages.
   6. Promotions and Perks.  Merchant shall not provide any marketing materials or offer any promotion on the Systems (including discounts, Perks, rewards, or other loyalty programs) except to the extent such marketing and promotion complies with all Applicable Alcohol Laws.  
   7. Menu Items, Menu Tagging and Hours.  Merchant acknowledges and agrees that it is solely responsible for ensuring that all alcoholic beverages included in its menu on the Systems (i) are of the type authorized for sale and delivery on the Systems under Merchant’s Liquor Licenses; (ii) are properly tagged as alcoholic beverage items in accordance with the instructions and guidelines made available by GH from time to time; and (iii) are only made available for sale to Customers in accordance with any restrictions imposed by any Applicable Alcohol Laws regarding the days or hours on which alcoholic beverages may be sold from Merchant’s location (e.g. but without limitation, restrictions on Sunday sales), including any limitations set forth on Merchant’s Liquor Licenses.
   8. Returns of Orders Containing Alcohol.  If Merchant is using the Delivery Services, Merchant acknowledges that certain orders containing alcoholic beverages may be undeliverable, as determined by GH or its delivery service provider (“Grubhub Delivery Provider”). Merchant agrees that it shall accept all returns of undeliverable alcoholic beverages, and Merchant shall ensure that its premises remain accessible for Grubhub Delivery Providers for a reasonable period of time following the end of Merchant’s menu hours to permit Grubhub Delivery Providers sufficient time to return any undeliverable orders.
   9. Refunds. Merchant acknowledges and agrees that it shall be solely responsible for the issuance of any refunds on alcoholic beverages, to the extent permitted and to the extent required under Applicable Alcohol Laws.
   10. Packaging and Labeling Requirements; Quantities. Merchant acknowledges and agrees that it is solely responsible for selling alcoholic beverages through the Systems only in containers, sizes, and quantities approved for sale under all Applicable Alcohol Laws, and for ensuring that the packaging of orders containing alcoholic beverages complies with any packaging and labeling requirements set forth in any Applicable Alcohol Laws.
   11. Recordkeeping and Reporting. Merchant acknowledges and agrees that it is solely responsible for maintenance and retention of records related to sale and deliveries of alcoholic beverages (“Alcohol Records”), and Merchant agrees to maintain such records as required under any Applicable Alcohol Laws. Merchant further agrees to maintain the confidentiality of the contents of the Alcohol Records (including any Customer information), which shall not be used for any purpose other than what is explicitly provided in Applicable Alcohol Laws.  Merchant acknowledges and agrees that it is solely responsible for complying with any and all reporting and notice obligations required for Liquor License holders under the Applicable Alcohol Laws (including, but not limited to, the obligations in SLA Advisory 2021-23 for New York Liquor License holders, as applicable).
   12. Verification. In the event that Merchant performs its own delivery to Customers or accepts orders for Customer pickup, in both cases for orders placed via the Systems, upon delivery or pick-up, Merchant shall be solely responsible for verifying: (i) the age and identity of the Customer; and (ii) that the customer is not intoxicated.
   13. Dry Counties and Localities. Merchant will not offer delivery to addresses in dry counties, localities, or precincts where selling or delivering alcoholic beverages is prohibited under Applicable Alcohol Laws. Further, Merchant represents, warrants, and covenants that it is capable of complying with, and will fully comply with, all applicable wet and dry regulatory restrictions.
2. Payments for Alcohol Orders.  Merchant acknowledges and agrees that Merchant will pay GH reasonable fees for its Services, as set forth in the  Agreement. GH may, at any time, require Merchant to register with Stripe Connect, a third-party payment services provider, as a condition for listing alcoholic beverages on its menu. If applicable in Merchant’s jurisdiction, the payment processing services for Merchant are provided by Stripe Connect and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). If applicable to Merchant, by agreeing to these Alcohol Terms or continuing to operate as a merchant on the Systems, Merchant agrees to be bound by the Stripe Services Agreement and any other legal terms provided by Stripe applicable to Merchant’s use of Stripe Connect, as the same may be modified by Stripe from time to time. As a condition of GH enabling payment processing services through Stripe, Merchant agrees to provide GH accurate and complete information about Merchant and its business, and Merchant authorizes GH to share such information as well as transaction information related to Merchant’s use of the payment processing services provided by Stripe.  By using Stripe Connect, Merchant acknowledges and agrees that (a) Customer payments for all orders containing alcohol beverages will be processed by Stripe Connect, (b) all proceeds for the sale of alcoholic beverages shall be remitted to Merchant, (c) GH shall not receive any proceeds for the sale of alcoholic beverages, and (d) Merchant shall be the merchant of record for any credit card transaction.
   1. Where Applicable Alcohol Laws require a flat-fee payment in lieu of percentage-based payments for Alcohol Sales, Grubhub may: (i) charge Merchant a flat-fee for its Services related to alcoholic beverage menu items (which flat-fee will be communicated to Merchant prior to institution); and (ii) apply percentage-based payments set forth in the Agreement to any non-alcoholic menu items included in the same order.  Where Grubhub deems it appropriate to charge a flat-fee for Alcohol Sales, it will invoice Merchant for such aggregate fees in accordance with a predetermined methodology.
3. Delivery Service Providers.  If Merchant is using the Delivery Services for alcoholic beverages, Merchant acknowledges that orders will be delivered to Customers by Grubhub Delivery Providers.  For all properly tagged orders containing alcoholic beverages, GH will provide instructions, in-app prompts and/or tools to assist the Grubhub Delivery Providers in completing the delivery in a compliant manner.  By using the Delivery Services for alcoholic beverages, Merchant agrees that GH will not be liable for any failure by a Grubhub Delivery Provider to comply with Applicable Alcohol Laws.
4. Suspension & Termination.  Merchant agrees that GH has the right to suspend, limit, or discontinue Merchant’s ability to sell, advertise or promote alcoholic beverages on the Systems at any time in GH’s sole discretion. This includes suspending or discontinuing Merchant’s use of the Delivery Services to deliver alcoholic beverages.
5. Representations & Warranties. In addition to those set forth above, the Parties make the following representations, warranties, and covenants.
   1. Mutual. The Parties hereby represent and warrant that each complies and shall continue to comply during the term of the Agreement with all applicable laws necessary for each to perform its obligations under these Alcohol Terms.
   2. Grubhub. For all orders containing alcohol that have been properly tagged as alcohol by the Merchant and are delivered by Grubhub Delivery Providers, Grubhub represents, warrants and covenants that it will ensure that all Grubhub Delivery Providers: (1) are 21 years of age or older; (2) have received materials and training relating to the delivery of alcohol products, including verifying that recipients are at least 21 years of age and observing whether recipients of the alcoholic beverages are visibly intoxicated; and (3) will collect transaction records as required under Applicable Alcohol Laws, and use reasonable commercial measures to make such records available to Merchant upon request (no more than once per year).
   3. Merchant. For all orders containing alcohol that are delivered by Merchant Delivery Providers, Merchant represents, warrants and covenants that it will ensure that all Merchant Delivery Providers: (1) are 21 years of age or older; and (2) have received materials relating to the delivery of alcohol products, including verifying that recipients are at least 21 years of age and observing whether recipients of the alcoholic beverages are visibly intoxicated; and (3) collect required records set forth in Applicable Alcohol Laws, and use reasonable commercial measures to make such records available to Grubhub upon request (no more than once per year).  
6. Indemnification. Each party will defend, indemnify and hold harmless the other party (including its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees and agents) from and against any third-party claims arising from any breach by the indemnifying party of any representation or warranty or covenant made under these Alcohol Terms. Notwithstanding the foregoing, Merchant assumes all liability for and shall indemnify and hold Grubhub harmless from all damages caused by any act or omission by Merchant, including, but not limited to any injury sustained by any individual or property arising from the sale or distribution of alcoholic beverages under this Agreement (but excluding any damages solely to the extent arising from actions of Grubhub or its Grubhub Delivery Providers).
7. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, (i) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR INDIRECT, WILLFUL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE ALCOHOL TERMS, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF BUSINESS, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN IF THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING, AND (ii) EACH PARTY’S MAXIMUM LIABILITY UNDER THESE ALCOHOL TERMS WILL BE THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM MERCHANT UNDER THE AGREEMENT DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH DAMAGES. FOR THE AVOIDANCE OF DOUBT, DAMAGES ARISING OUT OF OR RELATED TO THESE ALCOHOL TERMS APPLY FOR PURPOSES OF THE LIABILITY CAP UNDER THE AGREEMENT. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL SURVIVE ANY EXPIRATION OR TERMINATION OF THESE ALCOHOL TERMS OR THE AGREEMENT.
8. Miscellaneous.  GH reserves the right to update and modify these Alcohol Terms at any time at its sole discretion, provided that such modifications will be applied only prospectively.  Merchant agrees that GH has the right to notify Merchant of updates to these Alcohol Terms by posting them on the Systems. Therefore, Merchant should review these Alcohol Terms before listing alcoholic beverages on the Systems. These Alcohol Terms may not be amended by Merchant unless such amendment is signed by an authorized representative of GH. If any provision of the Alcohol Terms is found by a court of competent jurisdiction or regulatory agency to be invalid, unenforceable or in violation of any Applicable Alcohol Laws, then that provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect.