WaiCart Alcohol Delivery Terms of Service

This is a supplement to existing terms of service between WaiCart and Suppliers that use WaiCart Services through On-Demand Delivery. UNDER NO CIRCUMSTANCES WILL WaiCart. BE LIABLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM THE DELIVERY OF ALCOHOL PRODUCTS.

Legal notices: info@WaiCart.com

This Alcoholic Delivery Terms of Service supplement for WaiCart (this “Supplement”) to the WaiCart Fulfillment Agreement, the WaiCart “Supplement”, the Supplier Services Agreement or the Delivery & Promotion Agreement (the “Agreement”) between WaiCart and Supplier is effective as of the “supplement” Effective Date. All capitalized terms used and not defined herein shall have the meanings ascribed to them in the Agreement. By enabling WaiCart to deliver Alcohol Products to customers, Supplier, Winery & Craft Beer distillers agrees to amend the terms and conditions of the Agreement as of that date (the “Supplement” Effective Date”).

1. BACKGROUND.

The Parties entered into the Agreement to deliver Supplier Products to Supplier’s customers as part of orders placed by such customers through Supplier’s channels in certain markets in the United States. Supplier is a licensed alcoholic beverage retailer, and the Parties wish to incorporate the following terms specific to the delivery of Alcohol Products to consumers in Applicable Jurisdictions. In consideration of the mutual covenants and agreements stated in this Supplement, and for other good and valuable consideration, the receipt and sufficiency of which is acknowledged, the Parties agree to amend the Agreement as follows.

2. DEFINITIONS.

2.1. “Alcohol Laws” means all federal, state, and local laws pertaining to the sale of Alcohol Products, regulations, ordinances, rules, and Alcohol Product regulatory agency policies.

2.2. “Alcohol Licenses” means all applicable Alcohol Licenses, permits, license and/or permit endorsements, and/or authorizations from state and/or local Alcohol Product licensing authorities.

2.3. “Alcohol Products” means alcoholic beverages and other products sold by Supplier.

2.4. “Applicable Jurisdictions” means any jurisdiction that permits sales of Alcohol Products for delivery from time to time during the Term.

2.5. “Delivery Records” means all delivery information that Supplier is required to record or retain by applicable Alcohol Laws.

2.6. “Damages” means all liability, cost, expense, claim, loss or damages caused by any act or omission by Supplier, including, but not limited to, injury (whether to body, property, personal or business character or reputation) sustained by any person or to any person or to any property relating to the production, sale, and/or delivery of the Alcohol Products which may result from the sale or distribution of the Alcohol Products under this Agreement (but excluding any Damages solely to the extent they arise from the negligence of WaiCart or any WaiCart).

2.7. “End Customer” means the purchasing consumer.

2.8. “Supplier Product” means a product sold by Supplier.

2.9. “Order” means an order for Alcohol Products placed by an End Customer.

2.10. “Party” means WaiCart or Supplier, as the context requires.

2.11. “Term” means the period beginning on the Supplement Effective Date and continuing until the earlier of (i) for each Applicable Jurisdiction, until a change in any Alcohol Law(s) (or enforcement thereof) prohibits Supplier from selling Alcohol Products for pickup or delivery in such Applicable Jurisdiction(s), or (ii) this Supplement is terminated by either Party upon notice to the other Party.

3. ALCOHOL LAWS AND LICENSING.

3.1. Alcohol Laws. Supplier represents and warrants that it currently complies with and will continue to comply with all Alcohol Laws, and that it is responsible for alcoholic beverage regulatory compliance related to WaiCart’s activities and any sales or deliveries of Alcohol Products under this Agreement. Supplier will only send orders to WaiCart during hours where alcohol delivery is legal in the Applicable Jurisdiction. Supplier will offer Alcohol Products for delivery only to the extent authorized by Supplier’s Alcohol Licenses, and in factory sealed containers authorized under Supplier’s Alcohol Licenses and the applicable Alcohol Laws.

Supplier will not offer Alcohol Products in “kegs” or other containers the volume of which are 7.75 gallons or more.

3.2. Alcohol Licenses. Supplier represents and warrants that it holds and will maintain in good standing throughout the term of this Agreement the Alcohol Licenses required for the sale of Alcohol Products directly to consumers in Applicable Jurisdictions, including but not limited to any Alcohol Licenses required to accept orders for Alcohol Products from consumers direct or through a third party via the internet and/or to deliver Alcohol Products to consumers. Supplier acknowledges and agrees that Customer Orders will be fulfilled based on and under its legal rights under its Alcohol Licenses.

3.3. Seller of Record. Supplier is the seller of all Alcohol Products under the Agreement. Supplier further agrees that it shall be solely responsible for the issuance of any refunds, to the extent permitted under state law. Supplier shall at all times be solely responsible for determining the selection and setting the price of all Alcohol Products sold in connection with this Agreement. For avoidance of doubt, title for all Alcohol Products sold under this agreement shall pass directly from Supplier to the End Customer on Supplier’s licensed premises prior to WaiCart taking possession of any Alcohol Products for delivery.

3.4. WaiCart Obligations. WaiCart holds no federal or state alcoholic beverage retail permits or licenses in its name and WaiCart conducts its activities under this Agreement on Supplier’s behalf at Supplier’s express direction, and under the authority of Supplier’s Alcohol Licenses as Supplier’s agent. WaiCart shall not have the authority to offer, solicit, peddle, or sell alcoholic beverages and will not be deemed to have offered, solicited, peddled, or sold any Alcohol Products sold by Supplier.

3.5. Change in Laws. In the event that any government agency or regulatory body provides guidance that any terms of this Supplement are in violation of, or prohibited by, any Alcohol Laws, such terms shall be deemed to be amended or deleted to conform to such Alcohol Laws. Alternatively, in such circumstances, either Party may terminate this Agreement upon written notice to the other Party.

4. DELIVERY PROCESS.

4.1. Supplier Responsibilities. The Supplier responsibilities mirror those of the Agreement.

4.2. WaiCart Responsibilities. In addition to the WaiCart responsibilities in the Agreement, WaiCarts will pick up Orders from Supplier’s licensed premises and deliver them to the addresses provided by the applicable End Customers. Upon delivering an Order, WaiCarts shall: (1) request and review valid, government-issued identification demonstrating that the recipient is 21 years of age or older; (2) verify that the recipient is not visibly intoxicated or otherwise in an unsafe or inappropriate situation (for example, if the recipient is of legal age but appears to be in the company of only teenagers); and (3) collect and record Delivery Records.

4.3. Records. WaiCart will provide all such records to Supplier for Supplier’s record-keeping requirements pursuant to Alcohol Laws. Supplier shall maintain and retain Delivery Records in a manner fully compliant with Alcohol Laws. Supplier further agrees to maintain the confidentiality of all End Customer and recipient data contained in the Delivery Records and not use such data for any purpose other than to maintain records as required by Alcohol Laws. Supplier agrees to indemnify, defend, and hold harmless WaiCart against all liabilities, damages, and costs incurred by WaiCart as a result of any violation by Supplier of this provision.

5. STATE-SPECIFIC PROVISIONS.

If Supplier operates locations in the following states, these provisions will apply. Supplier acknowledges these state-specific provisions are not inclusive of all Alcohol Laws, and that Supplier may be subject to additional Alcohol Laws.

5.1. Texas: Supplier will not offer delivery to addresses in dry counties or counties or localities where the sale or delivery of Alcohol Products is prohibited. Supplier represents and warrants that it has the necessary capabilities to accurately comply with wet and dry regulatory restrictions in Texas.

5.2. Oregon: Supplier warrants that it has obtained Same-Day Delivery approval from the Oregon Liquor Control Commission. Supplier will affix a notice to the outermost surface of each package containing Alcohol Products that states: “Contains alcohol: signature of person age 21 years or older required for delivery”. Supplier further agrees that it will not send WaiCart orders (i) containing Alcohol Products after 8:30 p.m. or (ii) containing a quantity of Alcohol Products that exceeds the quantity limitation imposed by OR. Admin. Rs. 845-006-0392, 845-006-0396, and any other applicable state laws or regulations for the time of day at which the order is placed.

5.3. Virginia: WaiCarts assigned to fulfill orders containing Alcohol Products will act as agents of the Supplier in compliance with Va. Code Ann. § 4.1-212.1(C). Pursuant to 3 Va. Admin. Code 5-70-225(F), Supplier 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 the Supplier’s Delivery Permit number.

5.4. Washington: Supplier will affix a notice to the outermost surface of each package containing Alcohol Products that states all of the following: (a) the package contains “liquor”; (b) the recipient must be 21 years of age or older; and (c) delivery to intoxicated persons is prohibited.

6. PAYMENTS.

6.1. Processing. Supplier agrees that it shall pay WaiCart any fees due to WaiCart under the Agreement for all Orders that are placed in the Applicable Jurisdictions and include Alcohol Products.

6.2. Returns.

6.2.1. WaiCart shall not process any returns, exchanges, or substitutions of Alcohol Products that have been delivered to End Customers. WaiCart will inform End Customers that requests for returns or exchanges should be handled directly by Supplier, in accordance with Supplier’s standard return policy and applicable state laws. Supplier will handle all End Customer support issues relating to such refunds or returns.

6.2.2.An Alcohol Product will be deemed undeliverable in the following circumstances: (i) the recipient does not present valid identification indicating that he or she is at least 21 years of age, (ii) the recipient is visibly intoxicated; (iii) the recipient is not available to receive the delivery in person; (iv) the Alcohol Product is damaged prior to delivery to the recipient; or (v) there are other circumstances that would render the delivery of the Alcohol Product unreasonable or unlawful, as determined in WaiCart’s sole discretion. In the event that an Alcohol Product is undeliverable, WaiCart will communicate to Supplier that the delivery was not completed and Pursuant to Supplier’s direction, WaiCart may return the Alcohol Product to the Supplier Location from which it was picked up or attempt redelivery, subject to restocking and/or redelivery fees.

7. REPRESENTATIONS AND WARRANTIES.

In addition to the representations and warranties set forth in the Agreement, and notwithstanding anything in the Agreement to the contrary, the Parties make the following representations, warranties, and covenants.

7.1. Mutual. WaiCart and Supplier 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 this Supplement and the Agreement.

7.2. WaiCart. WaiCart hereby represents and warrants that it shall ensure that WaiCarts fulfilling Orders that include Alcohol Products: (1) will be 21 years of age or older; (2) will have received orientation materials relating to the delivery of Alcohol Products in accordance with Alcohol Beverage Laws, including verifying that recipients are at least 21 years of age and identifying whether individuals are visibly intoxicated; and (3) will collect information required for record-keeping purposes by Alcohol Laws.

7.3. Supplier. Supplier hereby represents and warrants that Supplier (i) shall promptly inform WaiCart of any regulatory or governmental inquiry that could reasonably jeopardize Supplier’s legal ability to sell or deliver Alcohol Products or otherwise perform its obligations under this Agreement; (ii) holds and will maintain in good standing throughout the term of this Agreement the Alcohol Licenses required for the sale of Alcohol Products directly to consumers in Applicable Jurisdictions, including but not limited to any Alcohol Licenses required to accept orders for Alcohol Products from consumers direct or through a third party via the internet and/or to deliver Alcohol Products to End Customers; and (iii) currently complies with and will continue to comply with all Alcohol Laws, and that it is responsible for alcoholic beverage regulatory compliance related to WaiCart’s activities and any sales or deliveries of Alcohol Products under this Agreement.

8. INDEMNIFICATION.

The Indemnifying Party will defend, indemnify, pay and hold harmless the Indemnified Party from and against any third-party claims arising from the breach of any representations or warranties or covenants made under this Supplement. Notwithstanding the foregoing, Supplier assumes all responsibility for, shall bear all liabilities and expenses and shall indemnify and hold WaiCart harmless from all Damages caused by any act or omission by Supplier, including, but not limited to, injury (whether to body, property, personal or business character or reputation) sustained by any person or to any person or to any property relating to the production, sale, and/or delivery of the Alcohol Products which may result from the sale or distribution of the Alcohol Products under this Agreement (but excluding any Damages solely to the extent they arise from the negligence of WaiCart or any WaiCart).

9. LIMITATION OF LIABILITY.

THE PARTIES AGREE THAT (i) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS SUPPLEMENT, FOR INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, AND (ii) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS SUPPLEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY UNDER THE AGREEMENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING ANY CLAIM.

10. CONFLICT.

If there is a conflict between the provisions of this Supplement and the Agreement, the provisions of this Supplement will control.