Effective: August 20th , 2020
This Merchant Managed Delivery Sales Channel Addendum (“Merchant Managed Delivery Addendum”) applies to Merchant’s use of the Merchant Managed Delivery Sales Channel (as such term is defined in the General Terms and below) and is hereby incorporated into the Agreement between Proton and Merchant, which includes the General Terms currently available at: https://www.yamimeal.com/legal/proton-general-terms-and-conditions/, as may be updated from time to time, any Sales Channel Addenda or Order Form used by Merchant and any other Supplemental Terms. Capitalized terms not otherwise defined in this Merchant Managed Delivery Addendum will have the meanings assigned to such terms in the rest of the Agreement and, in the event of a conflict between the Merchant Managed Delivery Addendum and any of the other terms and conditions of the Agreement, the Merchant Managed Delivery Addendum will control.
“Merchant Managed Delivery Staff (MMDS)” means employees, contractors, workers or agents of Merchant who provide delivery services on a Merchant’s behalf, arranged independently of Proton.
“Merchant Managed Delivery Sales Channel” Merchant may sell Items through the Yamimeal App to Customers who access and request on-demand or scheduled delivery services provided by MMDS.
“Customer Information” means information about a Customer or that Customer’s Personal Data made available to Merchant or MMDS in connection with a request for and use of delivery devices, which may include delivery drop-off location, a Customer’s name or company name, a Customer’s contact information, a Customer’s signature, and a Customer’s photo, as well as any other relevant details specific to the items to be delivered.
“Transportation Method” means a mode of transportation that will be used by the MMDS for the purpose of providing delivery services in accordance with, and subject to, any other applicable standards with respect to such Transportation Method.
2.1. Provision of delivery services. As between Proton and Merchant, Merchant acknowledges and agrees that: (a) Merchant and MMDS will be solely responsible for determining the most effective, efficient and safe manner to perform each instance of delivery services; and (b) except for the Yamimeal Tools, Merchant will provide all necessary equipment, tools and other materials, at Merchant’s own expense, necessary to perform delivery services. It is recommended that: (i) Merchant provides detailed instructions for pickup and drop-off (e.g., the location within the building address to pick-up/drop-off a package, etc.) to MMDS; and (ii) MMDS wait at least ten (10) minutes for a Customer to appear at the requested drop-off location prior to leaving or cancelling the delivery services. Merchant will not, and will ensure that all MMDS do not contact any Customers or use any Customer Information collected in the course of providing the delivery services for any reason other than for the purposes of fulfilling delivery services for that Customer’s particular order. Merchant will not retain Customer Information or any of the Customer’s personal data for longer than it takes to fulfill the delivery services for that Customer’s particular order.
2.2. Merchant Relationship with Customers. Proton and its Affiliates are not responsible or liable for the actions or inactions of a Customer in relation to any of Merchant’s activities, any MMDS or any Transportation Method. Merchant acknowledges and agrees that each MMDS member (“MMDS member”) will have the sole responsibility for any obligations or liabilities to Merchant, Customers or other third parties that arise from or relate to Merchant’s or MMDS’s provision of delivery services. Merchant acknowledges and agrees that Merchant and each MMDS member is each solely responsible for: (i) any liability arising from or relating to a Customer or any other third party in connection with the delivery services and (ii) taking such precautions as may be reasonable and proper, including, without limitation, maintaining insurance in accordance with applicable laws and conducting thorough background check investigations in connection with the delivery services; and (b) Proton or its Affiliates may release the contact and/or insurance information of Merchant and/or MMDS member to a Customer upon such Customer’s reasonable request (e.g., in connection with an accident). Merchant will provide evidence of such precautions upon Proton’s request.
2.3. Merchant Relationship with MMDS. Merchant will have the sole responsibility for any obligations or liabilities to MMDS that arise from or relate to Merchant’s relationship with MMDS (including in connection with the provision of delivery services). Merchant acknowledges and agrees that Merchant exercises sole control over the MMDS and will comply with: (i) all applicable laws (including tax, gratuity, social security and employment laws) and regulations applicable to Merchant’s relationship with MMDS and (ii) industry best practice in respect of working conditions and compensation for MMDS, including the distribution of any gratuities. As between the parties, Merchant acknowledges and agrees that Merchant is at all times responsible and liable for the acts and omissions of MMDS vis-à-vis Customers, Proton and its Affiliates, even where such liability may not be mandated under applicable law.
3.1. Delivery Fee and Tax. Merchant is solely responsible for determining the fee that will be charged to the Customer for all Items delivered by MMDS pursuant to this Agreement (“Delivery Fee”). Merchant will provide Proton with the desired Delivery Fee and Proton will display this Delivery Fee on the App for all applicable Items. For the sake of clarity, the Delivery Fee will not include Sales Tax, but Merchant is solely responsible for determining all applicable Sales Tax and identifying and informing Proton of the appropriate Sales Tax and other fee amount for Proton to charge Merchant’s Customers on Merchant’s behalf for Delivery Fees charged under this agreement for Merchant’s Items delivered by MMDS. Proton reserves the right to charge Merchant’s Customers additional delivery fees on Merchant’s behalf, including but not limited to, a small basket fee.
3.2. Delivery Area and Delivery Timing. Merchant is responsible for determining the geographic area in which MMDS will be able to deliver Merchant’s Items to Customers (“Merchant Delivery Area”). In relation to events such as inclement weather, high traffic, or poor driving conditions (“Adverse Delivery Events”) Proton may limit the Merchant Delivery Area, at Proton’s discretion and without notice to Merchant, to ensure safe and reliable Merchant Managed delivery services. Merchant acknowledges that Proton will use the Merchant Delivery Area to limit the Merchant’s ability to sell Items only to those potential Customers who request delivery within the Merchant Delivery Area through the MMDS. Merchant is also responsible for providing Proton with projected timelines for the preparation of Merchant’s Item orders. Proton will use Merchant’s preparation timelines and Proton’s internal projection of delivery time in determining the estimated time for delivery that will be displayed in App for all Merchant’s applicable Items. Merchant acknowledges that Proton’s systems may require adjustments to Merchant Delivery Area.
3.3. Item Order Support. Merchant is solely responsible for providing all Customer support for Items sold through the Merchant Managed Delivery Sales Channel. Merchant will provide Proton with a customer service phone number that will be displayed to Customers in the Yamimeal App so that Customers may direct their support inquiries to Merchant. Merchant is solely responsible for resolving all complaints and issues raised for Items delivered through the Merchant Managed Delivery Sales Channel and will accept and respond to all related customer service inquiries from Customers.
4.1. MMDS Requirements. Merchant acknowledges and agrees that all MMDS will, at all times: (a) hold and maintain (i) a valid applicable license with the appropriate level of certification to operate the Transportation Method assigned to each MMDS (e.g., a driver’s license if the Transportation Method is a motor vehicle), and (ii) all licenses, permits, approvals and authority applicable to Merchant and/or MMDS that are necessary to provide delivery services to third parties in the territory; (b) provide the delivery services in a professional manner with due skill, care and diligence; and (c) maintain high standards of professionalism, service and courtesy. Merchant agrees to undertake background and driving record checks on MMDS before they can provide delivery services on Merchant’s behalf and from time to time thereafter. Merchant acknowledges and agrees that Proton reserves the right, at any time in Proton’s sole discretion, to restrict Merchant or MMDS from accessing or using the Yamimeal Platform if Merchant or such MMDS fails to meet any applicable requirements.
4.2. Transportation Method Requirements. Merchant acknowledges and agrees that any Transportation Method will, at all times, be: (a) properly registered and licensed to operate as a delivery vehicle in the territory (if the Transportation Method is a vehicle); (b) owned or leased by Merchant, or otherwise in Merchant’s lawful possession; (c) suitable for performing the delivery services contemplated by this Agreement; and (d) maintained in good operating condition, consistent with industry safety and maintenance standards for a Transportation Method of its kind and any additional standards or requirements in the applicable territory, and in a clean and sanitary condition.
4.3. Documentation. To the extent required by applicable law, Merchant must retain all copies of any required licenses, permits, approvals, authority, registrations and certifications prior to Merchant’s and the applicable MMDS provision of any delivery services.
5.1. Merchant acknowledges and agrees that, after completion of an instance of delivery services, Merchant and/or Customers may be prompted by Proton’s technology platform to provide a rating of such delivery services and MMDS and, optionally, to provide comments or feedback about such delivery services and MMDS.
5.2. Proton and its affiliates reserve the right to use, share and display the ratings and comments of Merchant, MMDS, and Customers in any manner in connection with the business of Proton and its Affiliates, without attribution to or approval from Merchant or the applicable MMDS. Merchant acknowledges and agrees that Proton and its Affiliates are distributors (without any obligation to verify) and not publishers of the ratings or comments of Merchant or any MMDS, provided that Proton and its Affiliates reserve the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other personal information, or violate any privacy laws, other applicable laws, or Proton’s or its Affiliates’ content policies.
6.1. Delivery Services. Notwithstanding anything to the contrary in the General Terms, Merchant will pay MMDS for their delivery services provided to Merchant at Merchant’s sole discretion (but at all times in compliance with applicable laws and regulations), and Merchant is at all times solely responsible for providing payment to MMDS, including the distribution of any gratuities. Merchant acknowledges and agrees that Merchant is required to: (a) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of delivery services and receipt of the Yamimeal Tools as required by applicable law; and (b) provide Proton with all relevant tax information. Merchant further acknowledges and agrees that Merchant and each MMDS Member is responsible for taxes on their own receipts arising from the performance of delivery services.