ChowNow Referral Program Agreement

This ChowNow Referral Program Agreement (this “Agreement”) is a legal agreement between ChowNow, Inc. (“ChowNow”) and the individual or company (“Referring Party”) set forth on the ChowNow Referral Program portal (the “Portal”) managed by ChowNow’s third-party administrator (the “Administrator”). Please read this Agreement carefully, because by clicking “I Agree” or otherwise manifesting assent to this Agreement, Referring Party agrees to be bound by the terms of this Agreement. If you are executing this Agreement on behalf of a company, you represent that you are an authorized representative of such company Party capable of binding it to this Agreement.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ChowNow and Referring Party hereby agree as follows:

1. APPOINTMENT.

ChowNow hereby engages Referring Party to market and promote: (i) to potential customers various subscriptions to ChowNow’s offerings (“Subscriptions”); and/or (ii) to individual consumers ChowNow’s mobile application (the “App”), in each case to prospective Qualified Leads (as defined below) located in the United States or Canada (the “Territory”). Nothing in this Agreement will be construed to limit ChowNow’s right to engage other lead generators or to pursue such opportunities itself.

2. DUTIES OF REFERRING PARTY.

2.1 Marketing Efforts. Referring Party will use commercially reasonable efforts to market and promote the Subscriptions and/or the App to Qualified Leads within the Territory using the marketing materials provided by ChowNow or marketing materials created by Referring Party pursuant to the terms of this Agreement (collectively, the “Marketing Materials”). If ChowNow objects to Referring Party’s use or distribution of any Marketing Materials, including the sites on which the Marketing Materials appear, Referring Party shall promptly, and in any case within two (2) business days, address such objection to the reasonable satisfaction of ChowNow. If ChowNow provides any affiliate links (“Links”) to Referring Party in order to track referrals, Referring Party shall use such Links exactly as provided by ChowNow.

2.2 Marketing Restrictions.

2.2.1 Referring Party shall not distribute any Marketing Materials on sites, apps, platforms, or locations that contain: (i) material that infringes, misappropriates, or violates a third party’s intellectual property, privacy, publicity, or other rights; (ii) hate‐related or abusive material and/or material advocating discrimination against individuals or groups; (iii) material promoting or related to violence of any kind; (iv) obscene or sexually explicit material or anything that exploits minors; (v) material that violates, encourages, or incites violation of any applicable laws, including any criminal laws; or (vi) material that violates applicable law.

2.2.2 Referring Party shall publish or otherwise distribute Marketing Materials hereunder in strict compliance with all applicable laws and regulations, including, without limitation, laws prohibiting deceptive and misleading advertising and marketing, email marketing laws (including the federal CAN-SPAM Act (15 U.S.C. § 7701)), laws governing testimonials (including the FTC’s Revised Endorsements and Testimonials Guides (16 CFR Part 255 of the Code of Federal Regulations)), and all guidelines issued by the FTC. Referring Party is solely responsible for ensuring Referring Party’s compliance with all laws. ChowNow retains the sole and exclusive discretion to determine whether Referring Party’s marketing and conduct is in compliance with all laws. Referring Party must plainly disclose in any marketing of ChowNow products and services a disclosure that Referring Party is a marketer of ChowNow substantially as follows: “We are a participant in the ChowNow Referral Program, a marketing program designed to provide a means for us to earn commissions by referring customers and users to ChowNow.” Any Links or Marketing Materials must clearly identify ChowNow as the destination website and may not misrepresent or alter ChowNow’s offers in any way. Referring Party must notify ChowNow of any complaint received by Referring Party regarding any marketing conducted hereunder within twenty-four (24) hours of receiving such complaint.

2.3 Qualified Leads. As described in further detail on the Portal, Referring Party may track its Qualified Leads via the Portal. For the purposes of this Agreement, a “Qualified Lead” means: (i) a business (in such case, a “Potential Subscriber”) that, as reasonably determined by ChowNow: (a) is not already a customer of ChowNow, or affiliated with any customer of ChowNow; and (b) has not had any marketing contact from ChowNow (or any of its other lead generators or business partners) or been referred to ChowNow at any time during the twelve (12) months preceding the date Referring Party notifies ChowNow of the referral; and (ii) an individual who has never downloaded and used the App (in such case, a “New App User”).

2.4 Cooperation and Assistance. For each Potential Subscriber, Referring Party will provide ChowNow with such commercially reasonable cooperation and assistance as may be requested by ChowNow in connection with the pursuit of selling a Subscription to such Potential Subscriber, including, but not limited to: (i) cooperation and assistance in the preparation of proposals, and (ii) attendance at virtual meetings or phone calls with the Potential Subscriber.

2.5 No Authority to Bind ChowNow. Referring Party will not, orally or in writing, accept or approve any obligation on behalf of ChowNow, nor will it represent itself to be the employee, agent, or exclusive representative of ChowNow, or as having the authority to bind ChowNow in any manner. Any order obtained by Referring Party will be binding upon ChowNow only if and when accepted by ChowNow in writing, including by e-mail, in ChowNow’s sole and absolute discretion.

2.6 Costs. Referring Party will be solely responsible for its costs incurred in connection with this Agreement.

2.7 Restriction on Certain Activities. During the Term (as defined below), Referring Party will not (directly or indirectly through any associated company) promote, sell, license, or offer to sell or license (or assist any third party to promote, sell, license, or offer to sell or license) any third-party online or mobile ordering system in the Territory. If any court determines that the duration, activities restricted, or geographic scope, or any combination thereof, of the foregoing provision are unreasonable and that such provision is to that extent unenforceable, Referring Party agrees that the provision shall remain in full force and effect for the greatest time period, with respect to the broadest type of activities described, and in the greatest geographic area that would not render it unenforceable.

3. COMMISSIONS.

As the sole compensation due to Referring Party, ChowNow will pay Referring Party the commissions, as described and set forth at https://get.chownow.com/commissions/ (the “Commissions”).

4. TERM AND TERMINATION.

4.1 Term. The term of this Agreement begins when ChowNow approves Referring Party’s participation in the ChowNow Referral Program and Referring Party accepts this Agreement and ends when terminated in accordance with Section 4.2 (the “Term”).

4.2 Termination. This Agreement may be terminated as follows:

4.2.1 Either party may terminate this Agreement for convenience at any time upon seven (7) days’ prior, written notice to the other party.

4.2.2 If either party commits a material breach of this Agreement, the other party may terminate this Agreement upon two (2) days prior, written notice to the breaching party; provided, however, that this Agreement will not terminate if such breach is cured by the end of such two (2) day period.

4.3 Effect of Expiration or Termination. In the event of any termination of this Agreement: (i) Referring Party will cease all marketing activities hereunder; (ii) Referring Party will (as requested by ChowNow) promptly destroy or return to ChowNow all copies of any proposals, specifications, pricing information, or other Confidential Information (as defined below); and (iii) unless this Agreement is terminated by ChowNow pursuant to Section 4.2.2, ChowNow will pay Referring Party any Commissions then due and owing as set forth in Section 3 above. Except as provided in the preceding sentence, upon any termination of this Agreement, ChowNow will not be required to pay Referring Party any amounts whatsoever, and Referring Party hereby waives any and all indemnities, termination damages, or special damages of any other kind.

4.4 Survival. The following provisions will survive any termination or expiration of this Agreement: Section 4.3 (“Effect of Expiration or Termination”), this Section 4.4 (“Survival”), Section 7 (“Indemnity”), Section 8 (“Confidential Information”), and Section 9 (“General Provisions”).

5. LIMITED LICENSE TO USE CHOWNOW MARKS.

ChowNow hereby grants to Referring Party a paid-up, royalty-free, limited, non-exclusive, non-transferable, right and license (without the right to sublicense) to use ChowNow’s trademarks, service marks, and/or logos (collectively, the “Trademarks”) throughout the Territory during the Term solely for Referring Party to perform its obligations hereunder. Referring Party acknowledges that it may not display ChowNow’s Trademarks in any way except as provided herein or with the prior written permission of ChowNow. Referring Party acknowledges that ChowNow owns all right, title, and interest in and to its Trademarks and the goodwill of the business related thereto and that all uses of the Trademarks by Referring Party shall inure solely to the benefit of ChowNow. Referring Party shall not during the Term of this Agreement or thereafter: (i) apply anywhere in the world for registration in its own name or assist another in seeking registration in its name of the Trademarks or any mark or domain name consisting thereof or confusingly similar thereto or dilutive thereof; (ii) use the Trademarks in any manner or commit any other act likely to jeopardize the rights of ChowNow; (iii) challenge ChowNow’s exclusive ownership to or the validity of the Trademarks, any application therefor, or any registration thereof; or (iv) use, authorize, or knowingly permit the use of the Trademarks in any manner that would tend to devalue, injure, or dilute the goodwill or reputation of ChowNow or the Trademarks.

6. REPRESENTATIONS AND WARRANTIES.

Referring Party represents and warrants that: (i) it shall perform its obligations hereunder in a professional, workmanlike, and timely manner in accordance with all applicable laws, rules, and regulations; (ii) any Marketing Materials it creates shall not violate, misappropriate, or infringe the intellectual property, privacy, publicity, or other rights of any third party; and (iii) it shall not make any representations or warranties about ChowNow, ChowNow’s products or services, the Subscriptions, or the Apps beyond those set forth in the Marketing Materials provided to Referring Party by ChowNow.

7. INDEMNITY.

Referring Party will indemnify, defend, and hold harmless ChowNow, the Administrator, and their respective affiliates, officers, directors, employees, and agents from any and all claims, demands, damages, actions, liabilities, costs, and expenses (including reasonable attorneys’ fees) in connection with Referring Party’s gross negligence, willful misconduct, breach of this Agreement, or violation of applicable law.

8. Confidential Information.

8.1 Confidential Information. Referring Party acknowledges that ChowNow’s financial and business information (including, but not limited to, customer lists, supplier information, pricing, product specifications, and documentation) constitute proprietary and confidential information of ChowNow or its suppliers (“Confidential Information”) and that the protection of the Confidential Information is of the highest importance. Referring Party will keep the Confidential Information in strict confidence, will not disclose the Confidential Information except as allowed by this Agreement, will take appropriate steps to ensure that persons authorized to have access to the Confidential Information refrain from any unauthorized reproduction or disclosure of the Confidential Information, and will restrict access to and disclosure of the Confidential Information to Referring Party personnel who have a need to know and who have agreed to treat the Confidential Information in accordance with this Section 8. If Referring Party becomes aware of any unauthorized disclosure or use of the Confidential Information, Referring Party will immediately notify ChowNow and will, upon ChowNow’s request, take whatever action is appropriate.

8.2 Legends. Referring Party acknowledges that the Confidential Information, including any copies made by Referring Party or Qualified Leads, is and will remain the sole property of ChowNow or its licensors. Referring Party will not remove any notice of copyright, trade name, trademark, or any other proprietary notice from the Confidential Information.

9. GENERAL PROVISIONS.

9.1 Relationship of the Parties. This Agreement does not create any relationship of agency, partnership, or employment between the parties. Referring Party is and will at all times remain an independent contractor. In no event will either party be deemed to act as the agent or legal representative of the other party, either express or implied, nor will either party have the express or implied right or power to act for or enter into any agreement on behalf of the other party or to otherwise bind the other party. Under no circumstance will either ChowNow or Referring Party represent or hold itself out as an agent of the other party.

9.2 Disclaimer. CHOWNOW EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, CHOWNOW MAKES NO REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE AMOUNT OF COMMISSIONS THAT MAY BE GENERATED BY REFERRING PARTY HEREUNDER.

9.3 Governing Law and Forum. This Agreement, and any and all disputes directly or indirectly arising out of or relating to this Agreement, will be governed by and construed in accordance with the laws of the State of California, without reference to the choice of law rules thereof. Each of the parties hereby irrevocably consents and submits to the exclusive jurisdiction of the state and federal courts located in Los Angeles, California, for any such disputes, and hereby irrevocably waives any objections to the laying of venue in such courts.

9.4 No Waiver. The failure of either party to act upon any right, remedy, or breach of this Agreement will not constitute a waiver of that or any other right, remedy, or breach. No waiver will be effective unless made in writing and signed by an authorized representative of the waiving party.

9.5 Notices. All notices to a party under this Agreement (other than routine operational communications) will be delivered by hand or sent by express mail courier to such party’s address stated in the Portal. Each party agrees to keep the other party informed of any changes to addresses.

9.6 Amendments. ChowNow reserves the right to modify the terms and conditions of this Agreement in its sole discretion at any time, and such changes will be effective immediately upon notice to Referring Party or being posted on the ChowNow Referral Program portal managed by the Administrator. If any modification is unacceptable to Referring Party, Referring Party’s sole recourse is to terminate this Agreement. Referring Party’s continued participation in the ChowNow Referral Program after modification to the terms and conditions of this Agreement constitutes Referring Party’s binding acceptance to the change.

9.7 Assignment. Referring Party will not assign, delegate, or otherwise transfer any of its rights or duties under this Agreement without the prior, written consent of ChowNow, which consent may be given or withheld in ChowNow’s sole and absolute discretion. Any assignment, delegation, or other transfer not in accordance with this Section will be null and void. This Agreement is binding upon and will inure to the benefit of each party and their respective permitted successors or assigns.

9.8 Unenforceable Provisions. If any provision of this Agreement is held unenforceable by a court of competent jurisdiction, the other provisions will remain in full force and effect. If legally permitted, the unenforceable provision will be replaced with an enforceable provision that as nearly as possible gives effect to the parties’ intent.