The following terms and conditions shall apply to Restaurant’s purchase of a Direct-1 Subscription. All capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the General Terms.
1. Access to the Direct Platform
Subject to the terms and conditions of the Agreement, ChowNow hereby grants to Restaurant during the Term a limited, non-exclusive, and non-transferable (except as permitted under the General Terms) right to authorize Users to access and use the Direct Platform. The Direct Platform is accessed via ChowNow’s Facebook social plugin for Restaurant’s Facebook page, the Branded Apps, and/or Restaurant’s website. 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 Direct Platform using any of User’s login credentials. The Direct Platform 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 Direct 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 the Agreement, ChowNow shall disconnect the Branded Apps from the Direct 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).
2. ChowNow Widget
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 ChowNow 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. Direct-1 Subscription Plans
At any time during the Term, if Restaurant originally selected a month-to-month subscription to the Direct Platform (a Direct-1 Subscription), 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 Direct-1 Subscription, 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. Hibernation Period.
At any time during the Term, Restaurant may, upon written notice to ChowNow, temporarily pause its Direct-1 Subscription 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, LTE Tablets, and Wireless Printers) to ChowNow during the Hibernation Period and back to Restaurant upon expiration of the Hibernation Period.
5. Cancellation Fees.
If Restaurant cancels its Direct-1 Subscription prior to the processing of the first Order on the Platform, 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 any Fees pre-paid by Restaurant. 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 shall be refunded to Restaurant.
6. 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 6 shall not apply.
7. Customer Membership.
- 7.1 Restaurant may opt into 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 Restaurant location(s) for which they have paid the Customer Membership Fee on Orders placed through the Platform. The discounts shall be offered in three (3) tiers, with greater annual Customer Membership Fees entitling Customers to greater discounts. Restaurant may work with ChowNow to customize such tiers, provided three (3) tiers must always be offered under the Customer Membership Program. If customized tiers are not agreed to in writing by Restaurant and ChowNow, the discounts will be tiered as set forth in the chart below. If Restaurant opts to customize its tiers at any time during the course of its participation in the Customer Membership Program, Restaurant must honor all prior tier structures with respect to any and all Customer memberships sold under such prior tier structures.
Tier Customer Membership Fee Discount Bronze $25.00 10% off each Order Silver $40.00 15% off each Order Gold $100.00 25% off each Order
- 7.2 If Restaurant opts into the Customer Membership Program, it will be required to indicate which of its 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.
- 7.3 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 in the event Restaurant cancels its Customer Membership Program, (i) Restaurant shall inform all Customers who have purchased membership of such cancelation, (ii) Restaurant shall continue to honor all Customer memberships that are then in effect until such time that each membership expires; and (iii) ChowNow shall issue pro-rated refunds of the Customer Membership Fees to any Customers in which continuation of their then-current memberships are no longer possible (for example, if the Restaurant location in which they purchased such membership closes), and ChowNow shall automatically charge Restaurant for such refunds.
- 7.4 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.
- 7.6 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.
- 7.7 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.