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Please review our participation agreement
Please review our
BY CHECKING THE "ACCEPT" BOX NEXT TO THIS AGREEMENT AT OUR WEBSITE, YOU WILL ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD AND AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS MERCHANT PARTICIPATION AGREEMENT. PLEASE NOTE THAT SECTION 5 CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER, WHICH AFFECTS YOUR LEGAL RIGHTS. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT ACCESS OR USE OUR WEBSITES.

This agreement is entered into by and between you (hereinafter referred to as "Merchant") and Mercato, Inc. (hereinafter referred to as "Mercato").

1. Term. This Agreement may be terminated by either party for any reason with 90 days notice to the other party.

2. Obligations of Parties:

2.1. Rights and Obligations of Mercato, Inc. (Mercato)

2.1.1. Mercato agrees to enable customers to purchase food from Merchant via Mercato's proprietary ordering system/advertising service at Mercato and associated apps, (collectively the "System").

2.1.2. Mercato agrees to include certain content (including without limitation photographs, trademarks, recipes and logos) provided by Merchant (the "Merchant Content") on the System. Mercato owns all right, title, interest and copyright in and to the System and any content supplied by Mercato and will have sole editorial control over the System and the Services, including the presentation of the Merchant Content.

2.1.3. Mercato will transmit orders to Merchant for processing (the "Services"). Mercato EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SYSTEM, SERVICE, INCLUDING WITHOUT LIMITATION IMPLIED OR EXPRESS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Services are provided on an "as is" and "as available" basis, and Mercato shall not be liable for damages resulting from the failure of the System, Services or Merchant Content.

2.1.4. Mercato may assist merchant in onboarding, with actions including but not limited to taking photos of product. Any photos produced by Mercato are the property of Mercato, Inc. and may be used in marketing and promotional materials, or any other capacity.

2.2. Rights and Obligations of Merchant.

2.2.1. Merchant agrees to use its best efforts to prepare and deliver orders placed via the System (the "Orders") in accordance with the specifications (regarding delivery hours, minimum charges, etc.) set forth on this form or transmitted with the orders (the "Specifications").

2.2.2. Merchant is responsible for maintaining accurate pricing on the Mercato website, and honoring the prices it posts to the System.

2.2.3. The Specifications and item pricing must be at least as favorable to the consumer as that which is available at the Merchant's physical location.

2.2.4. Merchant hereby grants to Mercato a perpetual, royalty-free worldwide right and license to use the Merchant Content on the System and for marketing and promotional purposes via any means now known or hereinafter developed.

2.2.5. Merchant owns all right, title, interest and copyright in and to the Merchant Content, subject to the license granted to Mercato herein.

2.2.6. Merchant agrees that it will maintain the confidentiality of all non-public information that Merchant acquires in the course of performing this Agreement, including without limitation all customer information, as well as the terms and conditions of this Agreement (the "Confidential Information').

2.2.7. Merchant will not directly market to or solicit any consumer or company obtained through the System or via the Services for the purpose of soliciting that customer to order directly from Merchant or through a 3rd party.

2.2.8. Merchant agrees to be bound by Mercato's Terms of Use, which may be amended from time to time by Mercato.

2.2.9. Merchant will indemnify and hold Mercato (including its directors, employees, officers, agents and affiliates) harmless from any and all claims, actions, proceedings and damages arising out of Merchant's activities or any breach or alleged breach of these representations and warranties.

3. Payment & Fees.

3.1. A 12% commission will be charged on each Order. The commission will be charged on the total dollar amount of the order, excluding any delivery fees, tips, or taxes, which will not be subject to commission.

3.2. On a bi-weekly basis, Mercato will mail or submit electronically to Merchant the "Payment Amount". Payment Amount means the "Grand Total" (including product, tax, tip and delivery or other fees) received by Mercato on behalf of Merchant for Orders in a bi-weekly time period or such other time period as the parties may agree (the "Billing Period"), less Commission set forth in 3.1.

4. Representations, Warranties & Covenants

4.1. Merchant represents, warrants and covenants to Mercato that:

4.1.1. It has the authority to enter into this Agreement, and doing so won't violate any other agreement to which it is a party;

4.1.2. The Merchant Content won't violate the rights of any 3rd party;

4.1.3. It will comply with all laws, rules and regulations relating to the preparation, sale and delivery of products Merchant sells, including any laws regarding timely and full payment of tips to delivery employees, as well as any other laws applicable to its business, including wage and hour laws; and

4.1.4. It will remit to the applicable taxing authority all legally-required taxes and will file all required tax returns and forms.

4.1.5. Merchant shall maintain at it's own expense all insurance in accordance with industry standards, including but not limited to:

4.1.5.1. Workers' Compensation insurance in accordance with it's local the laws and, providing statutory benefits and covering loss resulting from injury, sickness, disability or death of employees of Seller.

4.1.5.2. Employer's liability insurance with minimum limits of five-hundred thousand dollars ($500,000) per accident.

4.1.5.3. Commercial general liability insurance against claims for personal injury (including bodily injury and death) and property damage. Such insurance shall a minimum limit of five-hundred thousand dollars ($500,000) per occurrence and in the annual aggregate for bodily injury and property damage.

4.1.5.4. Commercial or business automobile liability insurance for coverage of owned, non-owned and hired vehicles, with a minimum limit of five-hundred thousand dollars ($500,000) combined single limit for bodily injury and property damage. Merchant is only required to offer this type of insurance if the merchant is processing their own deliveries.

4.2. Merchants Negative Covenants:

4.2.1. During the term of this agreement, Merchant will not make it's inventory available for sale through any other 3rd party online-marketplaces.

4.3. Representation & Warranties of Mercato

4.3.1 It is duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation;

5. Disputes

5.1. If you have a dispute with Mercato you agree to contact us first and attempt to work it out amicably.

5.2. Mandatory Arbitration: If we're unable to work out a solution amicably, both you and Mercato agree to final and binding arbitration as the sole method of resolving any disputes, claims, or causes of actions arising out of your use of the Services or these Terms.

5.3. CLASS ACTION WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES' INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE ACTION, OR NON-PAGA REPRESENTATIVE PROCEEDING (COLLECTIVELY "CLASS ACTION WAIVER"). THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS OR ENGAGE IN ANY CLASS ARBITRATION. YOU AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MERCATO ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

5.4. In any lawsuit in which (1) the complaint is filed as a class action, collective action or non-PAGA representative action; and (2) the civil court of competent jurisdiction in which the complaint was filed finds the Class Action Waiver is unenforceable (and such finding is confirmed by appellate review if review is sought), the Class Action Waiver shall be severable from this Agreement and in such instances, the class action, collective action and/or non-PAGA representative action must be litigated in a civil court of competent jurisdiction and not as a class, collective or non-PAGA representative arbitration.

5.5. PAGA WAIVER: TO THE EXTENT PERMISSIBLE BY LAW, THERE WILL BE NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT, HEARD, OR ARBITRATED ON A GROUP BASIS OR IN ANY ACTION IN WHICH A PARTY SEEKS TO REPRESENT OTHER INDIVIDUAL(S) IN A PRIVATE ATTORNEY GENERAL ACTION ("PAGA WAIVER"). PAGA CLAIMS MAY ONLY BE ARBITRATED ON AN INDIVIDUAL BASIS.

5.6. In any lawsuit in which (1) the complaint is filed as a private attorney general action seeking to represent any individual(s) other than the named plaintiff; and (2) the civil court of competent jurisdiction in which the complaint was filed finds the PAGA Waiver is unenforceable (and such finding is confirmed by appellate review if review is sought), the PAGA Waiver shall be severable from this Agreement and in such instances, the private attorney general action must be litigated in a civil court of competent jurisdiction and not as a private attorney general arbitration.

5.7. Notwithstanding any other clause contained in this Agreement, any claim that all or part of the Class Action Waiver or PAGA Waiver is invalid, unenforceable, unconscionable, void or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The Class Action Waiver and PAGA Waiver shall be severable when a dispute is filed as an individual action and severance is necessary to ensure that the individual action proceeds in arbitration.

5.8. Arbitration Procedures and Location: The arbitration shall be administered by JAMS under its Comprehensive Rules in effect at the time the arbitration demand is made. The current rules, effective July 1, 2014, can be found here: http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS arbitration rules can be found here: http://www.jamsadr.com/rules-clauses/. In the event of any conflict between the rules and this Agreement, this Agreement shall apply. The Parties agree to submit to the jurisdiction of a single neutral arbitrator selected in accordance with the JAMS Comprehensive Rules.

5.9. The arbitration will be held in San Diego County, California, or any other location we mutually agree upon in writing.

5.10. Arbitration Fees: The JAMS rules will govern payment of all arbitration fees and each party will be responsible for their own fees under those rules.

5.11. Exceptions to Mandatory Arbitration: Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. For such claims, both parties agree to the exclusive jurisdiction of the state and federal courts in San Diego County, California.

6. Indemnity by Merchant. Merchant shall release, indemnify, defend, and hold harmless Mercato, and its directors, officers, employees, agents, and representatives against and from any and all actions, suits, losses, costs, damages, injuries, liabilities, claims, demands, penalties and interest, including reasonable costs and attorneys' fees ("Claims") resulting from, or arising out of or in any way connected with (i) any event, circumstance, act, or incident relating to the Orders delivered by Merchant, (v) any Governmental Charges for which Merchant is responsible hereunder, or (vi) any other adverse claims against the Merchant, in all cases including, without limitation, any Claim for or on account of injury, bodily or otherwise, to or death of persons, or for damage to or destruction of property belonging to Merchant or others, excepting only such Claim to the extent caused by the willful misconduct or gross negligence of Mercato, and/or its directors, officers, employees, agents, and representatives.

7. Miscellaneous.

7.1. Notice - Unless otherwise provided in this Agreement, any Notice to Meracto.com shall be provided through email to the address provided below:

To Mercato: notices@mercato.com

Notice to Merchant will be provided to email address on file. Merchant is responsible for maintaining accuracy of contact information in their accounting settings.

7.2. Entire Agreement -This Agreement, which shall be governed by California law, constitutes the entire agreement between the parties and supersedes any prior understanding (written or oral) on the subject matter hereof.

7.3. Mercato reserves the right to change or modify these Terms at any time and in our sole discretion. If Mercato makes any changes to these Terms, we will provide notice of such changes, such as by updating the "Last Updated" date at the top of these Terms, sending you an email notification or providing notice through the Websites. Your continued use of the Website will confirm your acceptance of the revised Terms. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you access or use the Websites. If you do not agree to any amended Terms, you must immediately stop accessing and using our Websites.

7.4. In the event that any portion of this Agreement is held to be unenforceable, the remainder of the provisions shall remain in full force and effect.

7.5. In the event of a breach, in addition to any remedies at law or in equity, the non-breaching party shall be entitled to obtain specific performance and immediate injunctive relief. Failure by either party to require performance or claim breach will not be construed as a waiver.

7.6. Merchant may not assign this Agreement without the prior written consent of Mercato, and if permission is secured, the assignor will provide Mercato with advance written notice so that payment can be directed appropriately.

7.7. This Agreement shall be binding on the parties' permitted heirs, successors and assigns.

7.8. Independent Contractors. The Parties are independent contractors. Nothing contained herein shall be deemed to create an association, joint venture, partnership or principal/agent relationship between the Parties hereto or to impose any partnership obligation or liability on either Party. Neither Party shall have any right, power or authority to enter into any agreement or commitment, act on behalf of, or otherwise bind the other Party in any way.

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