This Agreement (the “Agreement”) is a legal agreement between the restaurant set forth on the registration page (“Restaurant”) and ChowNow, Inc. (“ChowNow”). This Agreement specifies the terms under which Restaurant may access and use the Platform and order Additional Products and Services. Please read this Agreement carefully before accessing the Platform or ordering any Additional Products and Services, because by accessing the Platform, ordering any Additional Products and Services, clicking “I Agree,” or otherwise manifesting Restaurant’s assent to this Agreement, Restaurant agrees to be bound by the terms of this Agreement. If Restaurant does not agree to (or cannot comply with) all of the terms of this Agreement, do not access or use the Platform or order any Additional Products or Service. The person executing this Agreement on behalf of Restaurant represents that he or she is an authorized representative of Restaurant capable of legally binding it to this Agreement.
The definitions for some of the defined terms used in this Agreement are set forth in Section 13. The definitions for other defined terms are set forth elsewhere in this Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Restaurant and ChowNow (collectively, the “Parties” and each, a “Party”) hereby agree as follows:
1. SUBSCRIPTION TO THE PLATFORM; LICENSES; TABLET COMPUTER AND WIRELESS PRINTERS; RESTRICTIONS ON USE; CUSTOMER MEMBERSHIP; ADDITIONAL PRODUCTS AND SERVICES; INCORPORATED TERMS.
- 1.1 Access to the Platform. Subject to the terms and conditions of this Agreement, ChowNow hereby grants to Restaurant during the Term a limited, non-exclusive, and non-transferable (except as permitted under Section 11) right to authorize Users to access and use the Platform. Restaurant shall be responsible to ChowNow for any and all acts and omissions of its Users and any other person who accesses and uses the Platform using any of User’s login credentials. The Platforms may be modified by ChowNow from time to time. Without limiting the generality of the foregoing, ChowNow reserves the right to change the availability of any feature, function, or Content relating to the Platform, at any time, without notice or liability. During the Term, the iOS Branded Apps shall be under Restaurant’s developer account with Apple, and upon termination of this Agreement, ChowNow shall disconnect the Branded Apps from the Platform and remove them (or direct Restaurant to remove them) from the applicable distribution platform (e.g., the iOS Branded Apps shall be removed from Apple’s App Store).
- 1.2 License Grants to Restaurant Content and Restaurant Marks.
- Subject to the terms of this Agreement, Restaurant hereby grants to ChowNow during the Term:
- (i) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, modify, translate, render into an audible and/or visual format, publicly-display, and publicly-perform the Restaurant Content in any and all media now known or hereafter devised, in whole or in part, in connection with the Platform and any services ChowNow performs for Restaurant pursuant to the Additional Terms, but solely to the extent necessary for ChowNow to provide the Platform or perform such services. ChowNow’s license to modify the Restaurant Content is limited to modifying it to fit the format of the Platform and in connection with its provision of services to Restaurant pursuant to the Additional Terms. In the event Restaurant does not approve of any modifications made by ChowNow to the Restaurant Content, Restaurant may notify ChowNow and ChowNow will cooperate with Restaurant to format the Restaurant Content in a manner that is appropriate for the Platform and reasonably acceptable to Restaurant; and
- (ii) a non-exclusive, worldwide, fully paid-up, royalty-free right and license to use, copy, encode, store, archive, distribute, transmit, render into an audible and/or visual format, publicly-display, and publicly-perform the Restaurant Marks in any and all media now known or hereafter devised: (1) in connection with the presentation, marketing, advertising, and/or promotion of the Restaurant; (2) in connection with the Platform and ChowNow’s performance of any services pursuant to the Additional Terms; and (3) with the prior consent of Restaurant, in connection with the marketing, advertising, and promotion of ChowNow and the Platform; provided, however, that pursuant to Section 10, ChowNow may list Restaurant as a client of ChowNow and a user of the Platform (using Restaurant’s name and logos, if any) without having to obtain Restaurant’s consent. All goodwill generated by ChowNow’s use of the Restaurant Marks as set forth herein shall inure to the benefit of Restaurant.
- ChowNow shall have the right to sublicense the rights and licenses set forth in Section 1.2(a) to any subcontractors performing services on ChowNow’s behalf and/or in connection with any derivative sites or distribution arrangements concerning the Platform, including, without limitation, co-branded versions of the Platform, Social Media Ordering (as defined and described in Section 1.7(e)), and/or ChowNow badges, widgets, or links embeddable on third-party sites. All sublicenses granted pursuant to this Section will be subject to the same restrictions that apply to ChowNow with respect to the use of the Restaurant Content and the Restaurant Marks; provided, however, that with respect to any Social Media Ordering, ChowNow may sublicense such rights to the social media platforms on a perpetual basis.
- Subject to the terms of this Agreement, Restaurant hereby grants to ChowNow during the Term:
- 1.3 Tablet Computer and Wireless Printers.
- ChowNow shall deliver to the address indicated by Restaurant, or shall have delivered on its behalf, a tablet computer fully configured for the Platform, along with certain additional equipment, such as a stand, charger, and other accessories (collectively, the “Tablet”). Restaurant may opt for an LTE Tablet, if Restaurant is located in the United States, which will have full LTE functionality (the “LTE Tablets”). In addition, as an optional feature if Restaurant is located in the United States, Restaurant may purchase or lease wireless receipt printers through ChowNow (the “Wireless Printers”). LTE Tablets and Wireless Printers are Additional Products hereunder and are subject to the Additional Terms. Restaurant shall promptly, and in no event more than five (5) business days after ChowNow’s delivery of the Tablet and, if applicable, any Wireless Printers, inspect them for damages and defects. In the event Restaurant discovers a damage or defect with the Tablet and/or any Wireless Printer, Restaurant shall promptly, and in no event more than one (1) business day of discovery of such damage or defect, notify ChowNow in writing of such damage or defect. If Restaurant fails to provide ChowNow with the notification described in this Section with respect to the Tablet and/or any Wireless Printer within the first five (5) business days after delivery, Restaurant shall be deemed to have irrevocably accepted such item(s). In the event that Restaurant timely and properly rejects the Tablet and/or any Wireless Printer in accordance with this Section, ChowNow shall be responsible for replacing the damaged or defective item(s).
- CHOWNOW, NOT BEING THE SUPPLIER OR MANUFACTURER OF THE TABLET OR THE WIRELESS PRINTERS, NOR THE SUPPLIERS’ OR MANUFACTURERS’ AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE TABLET OR THE WIRELESS PRINTERS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
- Restaurant acknowledges and agrees that the Tablet (including any LTE Tablet) is being leased to Restaurant, at no cost, for use solely in connection with the Platform pursuant to this Agreement. In addition, if Restaurant leases any Wireless Printers from ChowNow, Restaurant acknowledges and agrees that they are being leased to Restaurant, at the prices provided to Restaurant by ChowNow, for use solely in connection with the Platform pursuant to this Agreement. For the avoidance of doubt, Restaurant shall not (and shall not permit any third party to) use the Tablet and/or any leased Wireless Printers for any purpose other than to connect to the Platform. Such prohibited activities include, without limitation, using the Tablet and/or any leased Wireless Printers: (i) to process in-house orders not processed through the Platform; (ii) to play games; (iii) to use mobile applications; (iv) to access the Internet; (v) to print anything other than Orders; (vi) to stream music or video content; (vii) as a hotspot; or (vii) for tethering the Internet to other devices, including, but not limited to, for credit card processing. Restaurant shall use the Tablet and/or any leased Wireless Printers in a careful and proper manner, in compliance with their instructions and manuals and all applicable laws and regulations. In the event Restaurant returns any Wireless Printer (whether leased or purchased from ChowNow) within thirty (30) days of such lease or purchase, ChowNow reserves the right to charge Restaurant a restocking fee at ChowNow’s then-current restocking price as provided to Restaurant.
- Title to the Tablet and any leased Wireless Printers shall at all times remain with ChowNow or one of ChowNow’s financial vendors. Restaurant shall have no right, title, or interest in or to the Tablet or any leased Wireless Printers except the right to possession and use thereof during the Term and pursuant to the terms and conditions in this Agreement. The Tablet and any leased Wireless Printers shall remain personal property, regardless of whether or not they are affixed to any real property at Restaurant’s location. Restaurant shall at all times protect and defend, at Restaurant’s sole cost and expense, ChowNow’s title and interest in and to the Tablet and leased Wireless Printers from and against all claims, liens, encumbrances, and legal processes of any trustee in bankruptcy, receiver, creditor, or other successor of Restaurant and keep the Tablet and any leased Wireless Printers free and clear from all such claims, liens, processes, and any other encumbrance. Restaurant shall not sublease, transfer, or dispose of the Tablet or any leased Wireless Printers or grant or permit any lien on them. Restaurant agrees that it will not mortgage or otherwise encumber the Tablet or any leased Wireless Printers.
- ChowNow shall have the right to mark the Tablet and any leased Wireless Printers in a distinct and conspicuous manner with the name of ChowNow followed by the words “Property of ChowNow” or other appropriate words designated by ChowNow. Restaurant shall not alter, deface, or remove any of ChowNow’s ownership identification plates or markings and, upon ChowNow’s request, Restaurant shall affix or re-affix such identification.
- The Tablet and any leased Wireless Printers shall be and remain located in the Restaurant, and Restaurant or its employees shall not remove them, or permit (by act or omission) them to be removed, from the Restaurant without the prior written consent of ChowNow in each instance.
- Restaurant shall immediately notify ChowNow of any problems with the Tablet and/or any leased Wireless Printers and shall use Restaurant’s best efforts to work with ChowNow to pursue any warranty claims that ChowNow may have in relation to them from their manufacturers. As between the Parties: (i) ChowNow shall be responsible for all repair and maintenance of the Tablet and any leased Wireless Printers; provided, however, that Restaurant shall be solely responsible for the costs of any repairs and maintenance necessitated by Restaurant’s or its employees’ negligence or misuse of them, including theft; and (ii) Restaurant shall be responsible for all repair and maintenance of any Wireless Printers that Restaurant purchases.
- Upon ChowNow’s receipt or issuance of a termination notice as set forth in Section 5.2, Restaurant shall return the Tablet, any leased Wireless Printer, and their respective accessories and equipment to ChowNow within thirty (30) days of Restaurant’s final day of service, by delivering them in a manner consistent with the manufacturers’ recommendations and practices, to such place or on board such carrier (packed properly and in accordance with the manufacturers’ instructions) as ChowNow shall specify, or, at ChowNow’s option, Restaurant shall cooperate with ChowNow in the disposition of such items. Provided ChowNow has not instructed Restaurant to dispose of the items, if the items are not in ChowNow’s possession within thirty (30) days of Restaurant’s final day of service, ChowNow may, in its sole discretion, automatically authorize Restaurant’s credit card, bank account, or other approved facility provided during the registration process in the amounts set forth in the price list provided to Restaurant by ChowNow; provided, however, if Restaurant subscribed only to the Marketplace Platform and ChowNow does not possess such information, Restaurant shall promptly provide the same to ChowNow, and ChowNow may, in its sole discretion, automatically authorize Restaurant’s credit card, bank account, or other approved facility for such sums. If the Tablet screen is cracked, ChowNow may charge an additional fee as set forth in such price list. ChowNow reserves the right to retain such sums as a deposit (the “Deposit”) until such items are returned to ChowNow in good working order pursuant to and in accordance with this Section. Upon such return, ChowNow shall promptly credit Restaurant the amount of the Deposit. If one or more of the items are not returned, or if any of the items are returned damaged, ChowNow reserves the right to retain the Deposit or a portion thereof at ChowNow’s reasonable discretion. Restaurant shall ensure that the Tablet and any leased Wireless Printers will be returned to ChowNow free and clear of all claims, liens, processes, and any other encumbrances
- 1.4 Restrictions on Use.
- Restaurant will not (and will not permit any third party to) make any use or disclosure of the Platform, the Data, or the Tablet that is not expressly permitted under this Agreement. Without limiting the foregoing, Restaurant will not (and will not permit any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (ii) modify, adapt, translate, or reproduce the Platform; (iii) resell, distribute, or sublicense the Platform, the Tablet, or any leased Wireless Printers; make the Platform, the Tablet, or any leased Wireless Printers available on a “service bureau” basis; or otherwise allow any third party to use or access the Platform, the Tablet, or any leased Wireless Printers; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform, the Tablet, or any leased Wireless Printers; (v) use the Platform, the Data, the Tablet, or any leased Wireless Printers in violation of any applicable law or regulation or for any purpose not specifically permitted in this Agreement; (vi) introduce into the Platform, the Tablet, or any leased Wireless Printers any software, virus, worm, “back door,” Trojan Horse, or similar harmful code; or (vii) provide Restaurant’s or any User’s login credentials to any third party.
- Restaurant is expressly prohibited from selling or offering for sale any tobacco or nicotine products including, but not limited to, cigarettes and e-cigarettes, through the Platform
- 1.5 Customer Membership.
- Restaurant may opt-in to ChowNow’s customer membership program (the “Customer Membership Program”), which permits Customers to pay an annual fee (the “Customer Membership Fee”) entitling Customers to discounts from the Restaurant location(s) for which they have paid the Customer Membership Fee on Orders placed through the Platform. The discounts will be tiered as follows:
Customer Membership Fee Discount $25.00 10% off each Order $40.00 15% off each Order $100.00 25% off each Order
- Restaurants who sign up for the Customer Membership Program will be required to indicate which of their location(s) will participate. Customers who sign up will be required to pay the Customer Membership Fee on a per-location basis. Accordingly, if Restaurant has signed up multiple locations, Customer’s discount under the Customer Membership Program will apply only to the location(s) for which Customer has paid the Customer Membership Fee.
- Each Customer’s membership is good for one (1) year from the date of sign-up and payment of the Customer Membership Fee. Restaurant may opt out of the Customer Membership Program at any time; provided, however, that after the date of opt-out, Restaurant must maintain service with ChowNow, and continue to honor all discounts under the Customer Membership Program, for one (1) year from the date of its last Customer Membership Program sign-up.
- Under the Customer Membership Program, discounts shall apply only to one (1) Order per day per location. Membership is non-transferable, and the Customer Membership Fee is non-refundable. Further, membership shall not automatically renew at the end of each year, and, accordingly, Customers will be required to sign up again if they want to continue participation in the Customer Membership Program; provided, however, that ChowNow reserves the right to modify or cancel the Customer Membership Program at any time.
- If Restaurant desires to participate in the Customer Membership Program, Restaurant will be required to accept the terms and conditions of this Section 1.5 via email acceptance, or as otherwise directed by ChowNow. Restaurant will be required to indicate which of its location(s) will participate in the Customer Membership Program. In addition to the terms of this Section 1.5, Restaurant will be permitted, but not obligated, to set forth its own Customer-facing terms and conditions of the Customer Membership Program. The Customer-facing terms may not contradict the terms of this Section 1.5. Any such Customer-facing terms must be clear, conspicuous, and comply with all applicable laws and regulations.
- The Customer Membership Fee will be billed and collected through ChowNow’s payment processor, and Restaurant will be forwarded the Customer Membership Fee, less applicable credit card charges on a daily basis, separately from Restaurant’s daily disbursements for Orders.
- Some jurisdictions do not permit the discounting of alcohol products. It is Restaurant’s responsibility, and not the responsibility of ChowNow, to know and comply with the laws, rules, and regulations of its applicable jurisdiction(s). If Restaurant is participating in the Customer Membership Program, and the laws, rules, and regulations governing Restaurant’s jurisdiction(s) do not permit the discounting of alcohol products, then Restaurant shall not sell alcohol products through the Platform in such jurisdictions.
- Restaurant may opt-in to ChowNow’s customer membership program (the “Customer Membership Program”), which permits Customers to pay an annual fee (the “Customer Membership Fee”) entitling Customers to discounts from the Restaurant location(s) for which they have paid the Customer Membership Fee on Orders placed through the Platform. The discounts will be tiered as follows:
- 1.6 Additional Products and Services.Restaurant may order Additional Products and Services at any time during the Term on notice to ChowNow, including through the Platform, via e-mail, or by phone. All such orders shall be governed by this Agreement and the additional terms (the “Additional Terms”), as the same may be amended by ChowNow from time to time
- 1.7 Incorporated Terms. Restaurant’s use of Google Wallet, Google Pay, Google Maps, Apple Pay, and, if Restaurant is located in qualified regions of the United States, the On-Demand Delivery option (collectively, the “Third-Party Services”), is subject to the following additional terms and conditions, which are hereby incorporated by reference and binding upon Restaurant and which may be updated by the applicable third-party service provider from time to time without notice to Restaurant (the “Incorporated Terms”). In the event of any inconsistency or conflict between the Incorporated Terms and the terms of this Agreement, such Incorporated Terms shall govern with respect to Restaurant’s use of the Third-Party Services. Google and Apple are not parties to any Order and will not be responsible for any disputes between Restaurant and any Customer
- For Google Wallet and Google Pay:
To use Google Pay, Restaurant shall register with Google Pay as a merchant and agree to additional Google terms and conditions including, without limitation, the Google Pay API Terms of Service. In connection with the Google Pay registration and related Google Incorporated Terms, the term “Integrator” shall refer to ChowNow and the term “Merchant” shall refer to Restaurant.
- For Apple Pay:
The current version of the iOS Developer Program License Agreement, available at Apple’s Member Center at https://developer.apple.com/app-store/review/, which ChowNow can provide Restaurant upon request.
- For the ChowNow Integrated Delivery Option:
The ChowNow Integrated Delivery service providers (each, an “Integrated Provider”) are currently Jolt and Door Dash. A link to Jolt’s Incorporated Terms are found here: https://1d7sto310ga413bj3q1hesc9-wpengine.netdna-ssl.com/wp-content/uploads/Jolt-Delivery-Engagement-Agreement.pdf; a link to Door Dash’s Incorporated Terms are found here: https://help.doordash.com/merchants/s/terms-of-service-us?language=en_US. If Restaurant has opted into ChowNow Integrated Delivery then the Incorporated Terms of each of the Integrated Providers that serve Restaurant’s region are applicable to Restaurant, and incorporated into this Agreement (provided, however, that with respect to the Door Dash Incorporated Terms, only those related to Door Dash Drive shall be incorporated into this Agreement, and those terms governing the Door Dash Marketplace shall not be incorporated herein). ChowNow periodically adds new Integrated Providers to its network, and ChowNow reserves the right to update the list of Integrated Providers from time to time, with or without notice to Restaurant. Restaurant is responsible for checking the link to the Integrated Providers’ Incorporated Terms periodically for updates. Restaurant acknowledges and agrees that by opting in to the ChowNow Integrated Delivery option, all transactions through such ChowNow Integrated Delivery option shall be facilitated by ChowNow, but shall ultimately be made directly between Restaurant and the Integrated Provider, and ChowNow shall not be a party to such transactions. Accordingly, ChowNow shall have no liability to any party in connection with any transactions between Restaurant and Integrated Providers.
- Social Media Ordering:
ChowNow permits diners to place orders through various social media platforms (“Social Media Ordering”). The current list of such social media platforms and the terms governing those order (the “Social Media Terms”) are set forth in the Additional Terms. The Social Media Terms are deemed Incorporated Terms hereunder.
- For Google Wallet and Google Pay:
- 1.8 Unaffiliated Delivery Services. If Restaurant does not opt into ChowNow Integrated Delivery, or, in addition to delivery by Integrated Providers, certain Orders may be delivered by non-affiliated third-party delivery (“Unaffiliated Delivery Services”). Restaurant’s use of Unaffiliated Delivery Services is at Restaurant’s own risk. Restaurant represents and warrants to ChowNow that Restaurant will cause each Unaffiliated Delivery Service to execute a written agreement with Restaurant that requires such Unaffiliated Delivery Service to (i) comply with all applicable federal, state, and local laws, rules, and regulations, including, without limitation, applicable privacy and data protection laws and regulations; and (ii) use Data solely for the purpose of delivering Orders and for no other purpose (each, an “Unaffiliated Delivery Service Agreement”).
2. ACCOUNT SET UP, MAINTENANCE OF ACCOUNT, AND CHOWNOW WIDGET.
- 2.1 Account Set Up. Upon executing this Agreement, Restaurant shall provide certain location and payment data. Thereafter, upon setting up Restaurant’s account on the Platform, Restaurant will be required to create a unique sign-in name (“Sign-In Name”) and password (“Password”), and provide certain additional information that will assist in authenticating Restaurant when Restaurant’s Users log into the Platform in the future (“Unique Identifiers”). When creating the account, Restaurant must provide true, accurate, current, and complete information. Restaurant is solely responsible for the confidentiality and use of Restaurant’s Sign-In Name, Password, and Unique Identifiers, as well as for any use, misuse, or communications entered through the Platform using one or more of them. Restaurant will promptly inform ChowNow of any need to deactivate a Password or Sign-In Name, or change any Unique Identifier. ChowNow will not be liable for any loss or damage caused by any unauthorized use of Restaurant’s account.
- 2.2 Maintenance of Account. As ChowNow’s business evolves, it may require additional information, authorizations, and permissions from Restaurant from time to time in order to provide Restaurant access to and usage of the Platform and perform its other obligations under this Agreement. When requested by ChowNow, Restaurant shall promptly provide all such information, authorizations, and permissions in accordance with ChowNow’s request. When doing so, Restaurant shall provide true, accurate, current, and complete information. Failure to provide the same may result in the loss of some features of the Platform to Restaurant or immediate termination of Restaurant’s account. To the extent Restaurant is required to provide any personal information in connection with such requests, ChowNow shall protect such information in the same manner it protects its other confidential information and shall use such information only to service Restaurant’s account. To clarify, the personal information that Restaurant may be required to provide so that ChowNow can comply with its Know Your Customer obligations as permitted under the USA Patriot Act (https://www.justice.gov/archive/ll/highlights.htm), is as follows: Restaurant’s full legal name and tax identification number, plus either (i) Restaurant’s principal’s first and last name, last four digits of his/her social security number, and date of birth, or (ii) a color copy of Restaurant’s principal’s driver’s license.
- 2.3 ChowNow Widget. If Restaurant has subscribed to the Direct Platform, in order to integrate Restaurant’s website with the Direct Platform, Restaurant hereby grants ChowNow the right, during the Term, to embed the ChowNow widget in Restaurant’s website. To the extent that Restaurant has a web developer that is capable of integrating the ChowNow Widget, Restaurant may authorize that person to do so. To the extent permission to do so is required from a third party acting on Restaurant’s behalf (e.g., Restaurant’s hosting provider, webmaster, etc.), Restaurant will assist ChowNow in promptly obtaining such permission and providing any necessary access credentials. Restaurant shall promptly, and within no more than three (3) business days, inspect the installation of the ChowNow widget on Restaurant’s website and notify ChowNow in writing if Restaurant is not satisfied with the installation.
3. CANADA’S ANTI-SPAM LEGISLATION.
- If Restaurant is located in Canada, Restaurant is responsible for ensuring that all electronic communications between Restaurant and its Customers comply with Canada’s Anti-Spam Legislation (“CASL”), including, but not limited to, any electronic messages sent to Customer email addresses accessed through Restaurant’s dashboard. ChowNow does not represent that it has obtained the consent of any Customer to receive marketing and promotional messages, and Restaurant is solely responsible for ensuring compliance with CASL for any electronic messages Restaurant sends to Customers. If Restaurant is not located in Canada, please note that this Section 3 shall not apply
4. FEES; PAYMENT; TAXES; AND SUBSCRIPTION PLANS.
- 4.1 Fees. If Restaurant has subscribed to the Direct Platform, as consideration for the rights to use the Direct Platform as set forth herein, Restaurant shall pay ChowNow its then-current fee (the “Subscription Fee”) for the applicable subscription period selected by Restaurant and any of its then-current set-up fees (“Set-Up Fees”). For the avoidance of doubt, there is no Subscription Fee to use the Marketplace Platform. Additionally, if Restaurant orders any Additional Products and Services through the functionality of the Platform, it shall pay ChowNow’s then-current add-on fees (the “Add-On Fees”). ChowNow may modify any of the foregoing fees at any time on written notice to Restaurant (including via Restaurant’s individual account in its admin.chownow.com dashboard), and any such modification shall go into effect thirty (30) days after such notice. The Subscription Fee and Set-Up Fee shall be locked for the first year of any annual subscription to the Direct Platform and for the first two (2) years of any two (2) year subscription to the Direct Platform.
- 4.2 Refunds; Cancellation Fee. Click here to view ChowNow’s refund policy (the “Refund Policy”), which is hereby incorporated into and made part of this Agreement. If Restaurant cancels its subscription to the Direct Platform prior to onboarding or cancels its subscription to the Marketplace Platform at any time, Restaurant will not be subject to a cancellation fee (“Cancellation Fee”). If Restaurant cancels its subscription to the Direct Platform during or after the account onboarding process (as set forth in Section 2.1 and Section 2.2), ChowNow shall impose on Restaurant a Cancellation Fee in the amount of $199. If a Cancellation Fee is assessed, ChowNow may offset it against the refund of prepaid service fees or Set-Up Fee that Restaurant agreed to and paid. If such fees paid are less than the Cancellation Fee, then Restaurant shall promptly pay ChowNow the difference. If such fees paid are greater than the Cancellation Fee, then the difference may be refunded to Restaurant at ChowNow’s reasonable discretion as set forth in this Section 4.2.
- 4.3 Taxes. In connection with: (i) any orders for Additional Products and Services; and (ii) any subscriptions to the Direct Platform, Restaurant shall also pay ChowNow any applicable taxes due and owing to any governmental authority, such as sales, VAT, and use taxes, but excluding any taxes imposed or based on ChowNow’s income (collectively, “Taxes”).
- 4.4 Payments to ChowNow. ChowNow shall authorize Restaurant’s credit card, bank account, or other approved facility provided during the registration process for the full payment of any and all fees due hereunder (collectively, “Fees”) and Taxes, and Restaurant hereby consents to the same. If Restaurant is in the United States, all payments will be charged and made in U.S. dollars. If Restaurant is outside the United States or any of its possessions or territories, all payments will be charged and made in Restaurant’s local currency. Fees shall begin to accrue and be charged upon the sooner of: (i) the date Restaurant can begin taking Orders; or (ii) thirty (30) days after the Effective Date. Within thirty (30) days after termination of this Agreement, ChowNow reserves the right to charge Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes. Fees and Taxes for any Additional Products and Services shall be charged upon execution of the applicable order.
- 4.5 Payments to Restaurant; Google and Yelp Orders. ChowNow currently uses Stripe, Inc. (“Stripe”) to collect credit card payments in connection with Orders. ChowNow also offers a point-of-sale integration provided by Square, Inc. (the “Square POS Integration”), the use of which by Restaurant shall be subject to those applicable Square POS Integration terms in the Additional Terms. ChowNow reserves the right to use other third-party payment processors at any time during the Term on notice to Restaurant. ChowNow enforces a maximum dollar amount of $4,000 per Order (including Social Media Ordering) (the “Maximum Order Amount”) and will not accept Orders in excess of the Maximum Order Amount. ChowNow reserves the right to modify such Maximum Order Amount at any time without notice.
- In order to use the Platform, Restaurant must enter into the Connected Account Agreement (“CAA”) with Stripe and its sponsoring bank. The CAA is available at https://stripe.com/connect/account-terms. By accepting this Agreement, Restaurant agrees: (i) that Restaurant has downloaded or printed the CAA; and (ii) that Restaurant has reviewed and agreed to the CAA. Please note that ChowNow is not a party to the CAA, and that Restaurant, Stripe, and Stripe’s sponsoring bank are the three (3) parties to the CAA, and, accordingly, ChowNow has no obligations or liability to Restaurant under the CAA. If Restaurant has questions regarding the CAA, it should contact Stripe as described in the CAA. If payment for an Order is processed through Stripe, the next business day after an Order settles, which will ordinarily be one (1) to two (2) business days from the actual Order date (depending upon Restaurant’s bank’s settlement process), the following sum shall be deposited into the bank account to which Restaurant has directed payment: the amounts for all executed Orders for which Restaurant has not yet been paid, less (x) any allowances actually made or taken for Order refunds; (y) any third-party delivery charges; and (z) the following credit card transaction charges: (1) other than if through the Square POS Integration, MasterCard, Visa, and Discover: 2.8% + $.10 per Order; and (2) other than if through the Square POS Integration, American Express: 3.5% + $.15 per Order. To the extent Order refunds cannot be automatically deducted from the sums otherwise due to Restaurant hereunder, Restaurant hereby authorizes ChowNow and/or Stripe to automatically issue an ACH transaction and deduct from Restaurant’s designated bank account the amount of such Order refunds on a daily basis. To the extent the terms set forth in Section 4.5(a)(z) above conflict with the terms contained in Restaurant’s CAA, the terms of Section 4.5(a)(z) shall prevail.
- Except as otherwise provided herein, ChowNow shall assume any consumer chargebacks, and such sums shall not be deducted from the amounts owed to Restaurant under Section 4.5(a). Notwithstanding the foregoing, ChowNow reserves the right to investigate chargebacks, and Restaurant agrees to provide information requested by ChowNow in connection therewith. In the event ChowNow determines, in its sole (but reasonable) discretion, that any chargeback (or series of chargebacks) is the result of, or arose in connection with, any fraudulent or illegal activity on the part of Restaurant and/or the applicable consumer(s), ChowNow shall notify Restaurant, and Restaurant shall, and hereby does, authorize ChowNow and/or Stripe to automatically issue an ACH transaction and deduct from Restaurant’s designated bank account the amount of such fraudulent or illegal chargeback. Further, ChowNow shall not, under any circumstances, assume any chargeback issued to a consumer who is an employee, owner, or Affiliate of the applicable Restaurant in dispute.
- RESTAURANT EXPRESSLY ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT CHOWNOW IS NOT AND SHALL NOT BE LIABLE FOR ANY SUMS THAT STRIPE FAILS TO REMIT TO RESTAURANT IN CONNECTION WITH THE ORDERS, AND RESTAURANT’S SOLE RECOURSE SHALL BE DIRECTLY AGAINST STRIPE, PURSUANT TO THE CAA. RESTAURANT HEREBY FULLY, FINALLY, AND FOREVER RELEASES CHOWNOW FROM ANY AND ALL CLAIMS ARISING OUT OF STRIPE’S FAILURE TO REMIT PAYMENT IN CONNECTION WITH THE ORDERS.
- If Restaurant’s account has been set up to accept Yelp and/or Google Orders, Restaurant hereby authorizes ChowNow to process such Orders. In connection with any Yelp and Google Orders, ChowNow is scheduled to receive payments from the applicable third-party platforms on a weekly basis. Within ten (10) business days of receiving payment from a third-party platform for Yelp or Google Orders, the following sum shall be deposited into the bank account Restaurant directs: the amounts for all such Yelp and/or Google Orders for which Restaurant has not yet been paid, less (i) any allowances actually made or taken for refunds; (ii) any third-party delivery charges; and (iii) ten percent (10%) of such Orders, (which includes the cost of food, beverage, and credit card processing fees). To the extent refunds cannot be automatically deducted from the sums otherwise due to Restaurant hereunder, Restaurant hereby authorizes ChowNow to automatically issue an ACH transaction and deduct from Restaurant’s designated bank account the amount of such refunds on a weekly basis. For the avoidance of doubt, ChowNow assumes any consumer chargebacks subject to Section 4.5(b), and such sums shall not be deducted from the amounts owed to Restaurant under this Section 4.5(d).
- If Restaurant opts-in to ChowNow’s profit protection program (“Profit Protection”), Restaurant may increase its Menu prices solely in connection with Google Orders to account for the fees and compensation set forth in Section 4.5(d)(iii) above.
- 4.6 Taxes On Orders.In connection with all Orders, Restaurant represents, warrants, and covenants to ChowNow that Restaurant shall: (i) ensure that the tax rates set forth in Restaurant’s ChowNow dashboard are accurate, complete, and up-to-date; (ii) update and change such tax rates in the dashboard if the tax rates change; and (iii) pay all applicable sales, use, and other such taxes related to all Orders and the processing of such Orders for Customers (excluding any taxes imposed or based on ChowNow’s income).
- 4.7 Subscription Plans for Direct Platform. At any time during the Term, if Restaurant originally selected a month-to-month subscription to the Direct Platform, it may convert to an annual or two (2) year subscription plan on thirty (30) days’ notice to ChowNow. After the first or second year of the Term, if Restaurant originally selected an annual or two (2) year subscription to the Direct Platform, such subscription shall be automatically converted to a month-to-month plan for the remainder of the Term. Restaurant may add new locations at any time during the Term on notice to ChowNow, including through the Platform, via e-mail, or by phone.
- 4.8 PCI Compliance. ChowNow is responsible for the security of cardholder data received from Restaurant and/or Customers, including, without limitation, when ChowNow uses third-party payment processors to process Orders. To the extent that ChowNow stores, processes, or transmits cardholder data, ChowNow complies with the most current version of the Payment Card Industry Data Security Standard (PCI-DSS) and other applicable laws, rules, and regulations.
5. TERM, TERMINATION, AND SUSPENSION.
- 5.1 Term. This Agreement shall commence on the Effective Date and continue until terminated by either Party in accordance with Section 5.2 below (the “Term”).
- 5.2 Termination and Suspension.
- Either Party may terminate this Agreement for a material breach by the other Party where such breach is not cured within five (5) days of written notice of such breach.
- If Restaurant has subscribed only to the Marketplace Platform, it may terminate this Agreement at any time, for any or no reason, on written notice to ChowNow (without penalty or liability).
- ChowNow may terminate this Agreement at any time, for any or no reason, upon thirty (30) days’ prior written notice to Restaurant (without penalty or liability).
- Further, ChowNow may terminate this Agreement immediately, upon notice to Restaurant, if ChowNow determines in its sole, reasonable discretion, that Restaurant has acted in a manner that disparages ChowNow or otherwise exhibits behavior toward ChowNow or its staff that is contrary to ChowNow’s code of ethics and business conduct, or if ChowNow discovers that Restaurant has sold, offered for sale, or attempted to sell cigarettes or other tobacco or nicotine products through the Platform, which are expressly prohibited.
- If Restaurant has subscribed to the Direct Platform and desires to terminate this Agreement for convenience and without cause, it shall: (i) submit a cancellation request form (available upon request from ChowNow’s Support Team or Restaurant Success Team); or (ii) complete a cancellation consultation call with its Restaurant Success Manager. The purpose of this process is for ChowNow to review account details and provide the return process for any leased hardware. Upon completion of this cancellation process, this Agreement shall automatically terminate in thirty (30) days.
- ChowNow may suspend access to the Platform or remove some or all Restaurant Content in ChowNow’s sole discretion, if ChowNow reasonably believes that Restaurant, Restaurant’s patrons, or any third party is engaged in: (x) any activity that may harm ChowNow, its systems, or any third-party systems; or (y) fraudulent or illegal activity or any other activity that could result in legal liability to ChowNow or any third party.
- Further, ChowNow may suspend access to the Direct Platform if Restaurant fails to make a payment on time.
- Any such suspension may continue until the activity causing the suspension has been cured, and ChowNow has received satisfactory assurances that it will not recur.
- 5.3 Hibernation Period. At any time during the Term, Restaurant may, upon written notice to ChowNow, temporarily pause its subscription to the Direct Platform for a period of up to six (6) months (the “Hibernation Period”). Restaurant shall be responsible for certain de-activation and re-activation fees associated with the Hibernation Period, including, without limitation, the cost of shipping leased equipment (including Tablets and Wireless Printers) to ChowNow during the Hibernation Period and back to Restaurant upon expiration of the Hibernation Period.
- 5.4 Effect of Termination. Upon termination of this Agreement:
- Restaurant shall be paid any amounts payable under Section 4.5(a) and Section 4.5(d);
- ChowNow shall charge Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes pursuant to Section 4.4 and any other amounts due under this Agreement; and
- Except as set forth in the last sentence in Section 1.2(b), all rights and licenses granted hereunder will immediately cease, and Restaurant will immediately cease all access to and use of the Platform and return the Tablet and any leased Wireless Printers as set forth in Section 1.3, and ChowNow may draw against the Deposit, as set forth in Section 1.3.
- If the ChowNow widget was previously installed on Restaurant’s website, ChowNow shall remove it from Restaurant’s website if ChowNow has the credentials to do so, otherwise Restaurant’s web developer shall do so.
- 5.5 Survival. The following provisions will survive termination of this Agreement: Section 1.3 (“Tablet Computer and Wireless Printers”); Section 1.6 (“Additional Products and Services”); Section 1.7 (“Incorporated Terms”); Section 5.4 (“Effect of Termination”), Section 6 (“Ownership; Data & Privacy”), Section 7 (“Representations and Warranties; Disclaimer”), Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), Section 11 (“Miscellaneous Provisions”), Section 13 (“Definitions”), and this Section 5.5 (“Survival”).
- 6.1 Intellectual Property. ChowNow owns and shall own all right, title, and interest in and to the Platform, including the Branded Apps, the ChowNow Platform Data, and as between ChowNow and Restaurant, Third-Party Order Data; in each case together with all modifications, enhancements, revisions, changes, copies, partial copies, translations, compilations, and derivative works thereto, including all copyrights and other intellectual property rights relating thereto (the “ChowNow Intellectual Property”). Restaurant will have no rights with respect to the ChowNow Intellectual Property other than those expressly granted hereunder. Restaurant owns and shall own all right, title, and interest in and to the Restaurant Content and the Restaurant Marks, including all copyrights and other intellectual property rights relating thereto (the “Restaurant Intellectual Property”). ChowNow will have no rights with respect to the Restaurant Intellectual Property other than those expressly granted hereunder.
- 6.2 Data. All Order Data shall be jointly owned by ChowNow and Restaurant. Except as otherwise provided herein, during the Term and indefinitely thereafter, the Order Data may be used by either Party for internal business purposes, for purposes of performing under this Agreement, and for other lawful purposes in accordance with all applicable laws, rules, and regulations, including, without limitation, applicable privacy and data protection laws and regulations. Subject to the terms and conditions of this Agreement, ChowNow hereby grants to Restaurant during the Term a limited, non-exclusive, non-transferable (except as permitted under Section 11 below) right to use Third-Party Order Data for internal business purposes and for purposes of performing under this Agreement. In addition, Restaurant may disclose Order Data and/or Third-Party Order Data to third parties with which Restaurant contracts, provided that (i) such third parties are required by contract to treat such Order Data and/or Third-Party Order Data as confidential information and at all times maintain the confidentiality of such Data; (ii) such disclosure is not a “sale” under applicable privacy and data protection laws and regulations; and (iii) such third parties are not permitted to “sell” (as defined under applicable privacy and data protection laws and regulations) such Order Data or Third-Party Order Data. Notwithstanding the foregoing, Restaurant hereby represents, warrants, and covenants that it shall not “sell” the Order Data or Third-Party Order Data, in any respects, in whole or in part. Additionally, Restaurant will not (and will not permit any third party to): (a) make any use or disclosure of Order Data or Third-Party Order Data that is not expressly permitted under this Agreement; (b) modify, adapt, translate, or reproduce the Order Data or Third-Party Order Data, except as expressly permitted under this Agreement; (c) remove or modify any proprietary marking or restrictive legends placed on Order Data or Third-Party Order Data; or (d) use the Order Data or Third-Party Order Data in violation of any applicable laws or regulations, including, without limitation, applicable privacy and data protection laws and regulations, or for any purpose not specifically permitted in this Agreement.
- 6.3 Privacy and Data Security.
- Each Party shall reasonably cooperate with the other Party in connection with such other Party’s obligations under applicable privacy and data protection laws and regulations in respect of Order Data and Third-Party Order Data that is PII processed by such other Party in connection with this Agreement, including, to the extent required thereunder, reasonably assisting with responding to, and complying with, verifiable consumer or data subject requests
- During the Term, each Party shall implement and maintain commercially reasonable administrative, technical, and physical safeguards designed to prevent a Security Incident.
- Each Party will notify the other Party without undue delay (and in any event, within seventy-two (72) hours), upon becoming aware of a Security Incident. The notifying Party shall (i) investigate and reasonably cooperate with the other Party regarding the Security Incident; (ii) provide the other Party with such information as the other Party may reasonably request regarding such Security Incident, unless prohibited by applicable law or law enforcement; and (iii) confer with the other Party in good faith with respect to appropriate remediation steps, including, but not limited to, addressing data breach notification requirements under applicable privacy and data protection laws and regulations.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
- 7.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) it has the full right, power, and authority to enter into this Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; and (ii) the execution and delivery of this Agreement by it and the performance of its obligations hereunder are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, with respect to Restaurant, any franchise agreement.
- 7.2 Additional Representations, Warranties, and Covenants of Restaurant. In addition to the representations and warranties set forth in Section 7.1, Restaurant represents, warrants, and covenants that: (i) the prices it charges Customers through the Platform shall be the same prices (or lower) that it charges customers not using the Platform (with the exception of prices under the Profit Protection program, if applicable); (ii) it shall periodically update the prices on the Platform to ensure that it is in compliance with the representation set forth in Section 7.2(i); (iii) it shall timely and properly process all Orders (including Social Media Ordering) and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders shall be as favorable as those extended to its other customers not using the Platform; (iv) for any Orders that are scheduled to be delivered to a Customer by a third-party delivery service or by Curbside Pickup, Restaurant shall package the Order appropriately for delivery or pickup (including any protection necessary in the event of inclement weather) and use commercially reasonable efforts to ensure that such Order is available for pickup upon the third-party delivery service’s arrival or upon the Customer’s arrival (for Curbside Pickup); (v) if it has signed up for On-Demand Delivery, it shall not offer alcohol on its online Menu through the Platform, and if it attempts to do so, ChowNow may, in its sole discretion, terminate Restaurant’s participation in the On-Demand Delivery program; (vi) it understands the applicable alcohol control laws in its jurisdiction, and when a Customer places an Order that includes alcohol, Restaurant shall abide by such laws, including, without limitation, checking Customer’s ID at the time of delivery to confirm that Customer is permitted to purchase and receive the alcohol; (vii) the Restaurant Content and the Restaurant Marks and ChowNow’s exercise of any license granted hereunder, do not and will not, infringe the rights of any third party, including, without limitation, any intellectual property rights, rights of publicity, rights of personality, rights of privacy, rights to payment of royalties, moral rights, rights of attribution, or any other rights of third parties not specifically identified in this Agreement; (viii) Restaurant has acquired all third-party clearances, permissions, and licenses which are necessary in connection with ChowNow’s use of the Restaurant Content and the Restaurant Marks and/or ChowNow’s exercise of any license granted hereunder, and ChowNow shall not be obligated to pay any fees in connection therewith; (ix) Restaurant shall not accept Orders in excess of the Maximum Order Amount; and (x) it shall comply with all applicable federal, state, and local laws, rules, and regulations in the conduct of its business and in the performance of its obligations under this Agreement, including, without limitation, laws relating to advertising, the Internet, promotions, and unfair business practices. Restaurant is solely responsible for ensuring that the Restaurant Content is at all times accurate, complete, and up to date on the Platform including, without limitation, Restaurant’s Menu, hours, address, pricing, and promotions. ChowNow is not responsible for any Restaurant Content that is incorrectly entered or out of date on the Platform
- 7.3 Disclaimer.
- CHOWNOW CANNOT GUARANTEE THAT THE PLATFORM WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY RESTAURANT WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM, ITS COMPONENTS, AND ANY OTHER MATERIALS AND SERVICES PROVIDED BY CHOWNOW HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CHOWNOW MAKES NO GUARANTEE REGARDING THE REVENUE RESTAURANT MAY OR MAY NOT EARN THROUGH THE PLATFORM. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1 AND SECTION 7.2, NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, THE DATA, THE RESTAURANT CONTENT, THE RESTAURANT MARKS, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. TO THE EXTENT THAT A PARTY MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
- CHOWNOW HAS MADE EVERY EFFORT TO DISPLAY THE TABLETS, WIRELESS PRINTERS, AND ADDITIONAL PRODUCTS AND SERVICES AS ACCURATELY AS POSSIBLE ON THE PLATFORM. HOWEVER, THE FINAL PRODUCTS AND/OR SERVICES DELIVERED IN CONNECTION WITH ANY TRANSACTION MAY VARY FROM THE IMAGES VIEWED ON THE PLATFORM DUE TO A NUMBER OF FACTORS THAT ARE NOT WITHIN OUR CONTROL. THESE FACTORS INCLUDE, BUT ARE NOT LIMITED TO, SYSTEM CAPABILITIES AND CONSTRAINTS OF RESTAURANT’S COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCTS AND SERVICES. ALTHOUGH CHOWNOW WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE TABLETS, WIRELESS PRINTERS, AND ADDITIONAL PRODUCTS AND SERVICES CONFORM TO RESTAURANT’S EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL TABLETS, WIRELESS PRINTERS, ADDITIONAL PRODUCTS AND SERVICES, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE PLATFORM MAY CONTAIN INFORMATION ON TABLETS, WIRELESS PRINTERS, AND ADDITIONAL PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A TABLET, WIRELESS PRINTER, OR ADDITIONAL PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH TABLET, WIRELESS PRINTER, OR ADDITIONAL PRODUCT AND SERVICE IS OR WILL BE AVAILABLE IN RESTAURANT’S LOCATION. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. CHOWNOW IS NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM.
- ORDERS MAY BE DELIVERED BY THIRD-PARTY DELIVERY SERVICES THAT ARE PARTNERED WITH CHOWNOW AND/OR UNAFFILIATED DELIVERY SERVICES. CHOWNOW IS NOT LIABLE TO RESTAURANT, CUSTOMERS, OR ANY THIRD PARTIES FOR ANY ACTS OR OMISSIONS OF UNAFFILIATED DELIVERY SERVICES, AND RESTAURANT USES SUCH UNAFFILIATED DELIVERY SERVICES AT ITS OWN RISK.
8. LIMITATION OF LIABILITY.
EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS) ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. EXCEPT TO THE EXTENT OTHERWISE EXPRESSLY PROVIDED IN THIS SECTION, EACH PARTY’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THIS AGREEMENT WILL NOT EXCEED THE SUBSCRIPTION FEES PAID TO CHOWNOW HEREUNDER DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM; PROVIDED, HOWEVER, IF RESTAURANT SUBSCRIBES ONLY TO THE MARKETPLACE PLATFORM (FOR WHICH THERE IS NO SUBSCRIPTION FEE), RESTAURANT’S AGGREGATE LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED $2,500 AND CHOWNOW’S AGGREGATE LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED $100. NOTWITHSTANDING THE FOREGOING: (I) THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO: (A) DAMAGES ARISING FROM A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS; (C) ANY DAMAGE TO OR LOSS OF THE TABLET AND/OR ANY LEASED WIRELESS PRINTERS; OR (D) RESTAURANT’S BREACH OF SECTION 1.4; (II) CHOWNOW’S AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER ANY ORDER FOR ADDITIONAL PRODUCTS AND SERVICES WILL NOT EXCEED THE SUMS ACTUALLY PAID TO CHOWNOW UNDER THE APPLICABLE ORDER; AND (III) THE AGGREGATE LIABILITY OF CHOWNOW AND ITS DELIVERY SERVICE VENDOR FOR ANY SINGLE ON-DEMAND DELIVERY ORDER WILL NOT EXCEED TWO HUNDRED FIFTY DOLLARS ($250).
Each Party shall indemnify, defend, and hold harmless the other Party, and the other Party’s officers, directors, employees, attorneys, and agents (collectively, the “Indemnified Parties”) from and against any and all losses, liabilities, damages, fines, and all related costs and expenses, including reasonable legal fees and disbursements and costs of investigation, litigation, settlement, judgment, interest, and penalties (collectively, “Losses”) incurred by such Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from, relating to, or alleging that the Party has breached any of its representations and warranties hereunder. In addition, Restaurant shall indemnify, defend, and hold harmless the ChowNow Indemnified Parties from and against any and all Losses incurred by such ChowNow Indemnified Parties in connection with any third-party claim, action, or proceeding to the extent arising from or relating to: (i) Restaurant’s breach or alleged breach of the Incorporated Terms and/or Section 4.6; (ii) an Unaffiliated Delivery Service’s breach of this Agreement or any Unaffiliated Delivery Service Agreement, or violation of applicable law; (iii) an Adverse Event; or (iv) the processing of Orders for alcoholic beverages and the purchase and/or consumption of alcoholic beverages by Customers
During the Term, ChowNow shall have the right, but not the obligation, to publicly announce in any and all media, including on the Platform and through social media, that Restaurant is a client of ChowNow and a user of the Platform. In addition, upon the reasonable request of ChowNow, the Parties shall jointly issue at least one (1) press release (or more, if mutually agreed by the Parties) announcing their relationship. The specific timing and content of each such press release shall be mutually determined by the Parties
11. MISCELLANEOUS PROVISIONS.
The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. Neither Party shall be liable to the other Party for any failure to perform its obligations hereunder to the extent such failure results from any cause beyond its reasonable control. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable, or sub-licensable by either Party, except with the other Party’s prior written consent, except to an Affiliate or to a successor to all or substantially all of that Party’s assets or business (for which no consent of the other Party is required), and provided that, in the case of Restaurant’s assignment to such an Affiliate or successor of Restaurant’s assets, the assignee shall (i) assume all obligations of Restaurant hereunder (including equipment leases) and become a party to this Agreement; and (ii) provide ChowNow with all necessary onboarding information, including location and payment data, the last four digits of assignee’s social security or tax identification number, and furnish ChowNow with all forms and documents reasonably requested, including, without limitation, Form SS-4. ChowNow shall not be liable to Restaurant or any Restaurant assignee for any liabilities or losses incurred in connection with the assignment. This Agreement is entered into in the State of California and shall be governed by, and construed in accordance with, the domestic laws of the State of California, without giving effect to its principles of conflicts of laws. Any litigation based hereon, or arising out of or in connection with a default by either Party in the performance of its obligations hereunder, shall be brought and maintained and adjudicated exclusively in an arbitration in Los Angeles, CA pursuant to the rules and procedures of AAA and enforceable in any court of competent jurisdiction. Each Party hereby irrevocably submits to the jurisdiction of such arbitration and irrevocably agrees to be bound by any judgment rendered thereby. Notwithstanding the foregoing, ChowNow may bring an action for injunctive relief in any court of competent jurisdiction. Both Parties agree that this Agreement, the Incorporated Terms, and the Additional Terms is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. Any modification to this Agreement must be in a writing signed by both Parties or in a writing acknowledged and accepted by both Parties (e.g., an e-mail or a click-through modification); provided, however, that ChowNow may modify this Agreement and/or the Additional Terms at any time by posting such modification on Restaurant’s individual account in Restaurant’s admin.chownow.com dashboard, and any such modification shall go into effect thirty (30) days after it is so posted. It is Restaurant’s responsibility to check for such modifications on a regular basis. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other Party in any respect whatsoever.
12. GOVERNMENT USE.
- 12.1 U.S. Government Use. This Section 12 applies whenever Restaurant is a department, agency, or other instrumentality of the U.S. federal government, or any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement, or other activity with the U.S. federal government. In such case, the terms and conditions of this Section shall pertain to Restaurant’s use of the Platform and Additional Products and Services and shall supersede any conflicting contractual terms or conditions.
- 12.2 Commercial Computer Software. The Platform is “Commercial computer software” within the meaning of the applicable acquisition regulations (e.g., FAR 2.101). The Platform is a work with all rights reserved to ChowNow under the copyright laws of the United States.
- 12.3 Exceptions for U.S. Government. Restaurant’s indemnification obligations set forth in Section 9 and the choice of law and forum set forth in Section 11 shall not apply to the U.S. federal government, but shall continue to apply to prime contractors and subcontractors of the U.S. federal government. Disputes with the U.S. federal government shall be subject to resolution to the Contract Disputes Act of 1978, as amended. All other provisions of this Agreement remain in effect as written.
- DEFINITIONS. Defined terms have the meanings set forth in this Section 12 and elsewhere in this Agreement when capitalized, and may be read in singular, plural, or an alternative tense as the context requires.
- 13.1 “Additional Products and Services” means products and services, other than access to the Platform, that Restaurant may order from ChowNow, including, without limitation, website development services, marketing services, paper products, data connectivity, Wireless Printers, and Tablets.
- 13.2 “Adverse Event” means any negative symptoms experienced by an individual that are associated with the handling and/or consumption of any items in an Order (including Social Media Ordering), including, without limitation, allergic reactions, bacterial infections, and viruses.
- 13.3 “Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
- 13.4 “Branded Apps” means the Restaurant-branded mobile applications set up by ChowNow. Branded Apps for iOS are called “iOS Branded Apps.”
- 13.5 “ChowNow Platform Data” means data collected by or through the Platform (which may include PII of Customers), excluding Order Data and Third-Party Order Data.
- 13.6 “Curbside Pickup” means an order placed via the Platform for pickup by Customer in which Restaurant personnel deliver the order directly to Customer’s vehicle upon Customer’s arrival at Restaurant (e.g., in the parking lot or curbside).
- 13.7 “Customer” means a unique profile that submits an Order.
- 13.8 “Data” means ChowNow Platform Data, Order Data, and Third-Party Order Data, collectively.
- 13.9 “Direct Platform” means ChowNow’s proprietary direct social and mobile meal-ordering platform, which is accessed via ChowNow’s Facebook social plugin for Restaurant’s Facebook page, the Branded Apps, and/or Restaurant’s website. The Direct Platform shall also include the Branded Apps.
- 13.10 “Effective Date” means the date Restaurant accepted this Agreement.
- 13.11 “Marketplace Platform” means ChowNow’s proprietary platform that allows Customers to order from new restaurants, which is accessed via ChowNow’s website, www.chownow.com, and/or ChowNow’s dedicated Marketplace website, eat.chownow.com; ChowNow’s Google Place Actions plugin; and/or ChowNow’s mobile application.
- 13.12 “Menu” means Restaurant’s menu submitted to ChowNow, as updated by Restaurant from time to time.
- 13.13 “On-Demand Delivery” means delivery of Orders using ChowNow’s network of local and regional third-party delivery service providers, which Restaurants may opt into in connection with their use of the Platform.
- 13.14 “Order” means an order for Restaurant’s food and/or
- beverages submitted by a Customer through ChowNow via the Platform, or, when referring to Social Media Ordering, through ChowNow via the applicable social media platform.
- 13.15 “Order Data” means data included in an Order collected by or through the Platform (which may include PII of Customers), excluding Third-Party Order Data.
- 13.16 “Personally Identifiable Information” or “PII” means any piece of information which can be used to uniquely identify, contact, or locate a single person, or can be used with other sources to uniquely identify a single person.
- 13.17 “Platform” means the ChowNow platform or platforms to which Restaurant subscribes under this Agreement (i.e., the Direct Platform and/or the Marketplace Platform.
- 13.18 “Restaurant Content” means any content submitted by Restaurant to ChowNow, including, without limitation, the Menu.
- 13.19 “Restaurant Marks” means all trademarks, service marks, logos, and other distinctive brand features that are contained in the Restaurant Content.
- 13.20 “Security Incident” means the unauthorized or unlawful processing, destruction, alteration, or access of PII of Customers by a third party, or the unauthorized or unlawful disclosure of PII of Customers to a third party.
- 13.21 “Term” has the meaning specified in Section 5.1.
- 13.22 “Third-Party Data” means data included in an Order provided by a third-party partner (including, without limitation, social media platforms in connection with Social Media Ordering) to ChowNow through the Platform (which may include PII of Customers).
- 13.23 “User” means an employee, contractor, or agent of Restaurant who is authorized by Restaurant to access and use the Platform on Restaurant’s behalf on the terms and conditions of this Agreement; provided, however, that any contractors’ or agents’ access to and use of the Platform will be limited to their provision or receipt of services to Restaurant.