Restaurant Agreement
By entering into an Order Form with ChowNow, Inc. (“ChowNow”) the restaurant referenced on such Order Form (“Restaurant”) agrees to be bound by the terms of such Order Form, as well as the General Terms, Service Terms, and Additional Terms found below and at their respective hyperlinks (collectively, the “Agreement”). All capitalized terms used in the Order Form and not defined shall have the meanings set forth in the Agreement.
Execution of such an Order Form constitutes Restaurant’s ordering of the Subscription Type and any applicable Additional Products and Services referenced therein for the specified Initial Term. The person who executes such Order Form represents that he or she is an authorized representative of the Restaurant capable of legally binding it to the Agreement.
| Terms | When Applicable |
|---|---|
| General Terms (below) | The General Terms are applicable to every Order Form. |
| Core Terms | The Core Terms are applicable to every Order Form. |
| Pro Terms | Pro Terms are applicable if Restaurant’s Order Form specifies a Pro Subscription. |
| Tablet and Wireless Printer Terms | The Tablet and Wireless Printer Terms apply to Tablets and Wireless Printers that are leased or purchased from ChowNow |
| Additional Terms | The Additional Terms are applicable if Restaurant orders any Additional Products and Services, whether through an Order Form or through the Platform |
| Cuboh Terms | The Cuboh Terms are applicable if Restaurant orders any Cuboh Products and Services. |
1. Definitions. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in the Agreement.
These General Terms specify the terms under which Restaurant may access and use the Services, and to order Additional Products and Services, in each case, in accord with the Service Terms and Additional Terms.
1.1 “Additional Products and Services” means products and services, other than access to the Services, that Restaurant may order from ChowNow, including, without limitation, website development services, marketing services, paper products, data connectivity, Wireless Printers, and Tablets.
1.2 “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, without limitation, allergic reactions, bacterial infections, and viruses.
1.3 “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.
1.4 “Agreement” has the meaning set forth in the preamble.
1.5 “Branded Apps” means any Restaurant-branded mobile applications set up by ChowNow in connection with a Pro Subscription. Branded Apps for iOS are called “iOS Branded Apps.”
1.6 “ChowNow” has the meaning set forth in the preamble
1.7 “ChowNow Platform Data” means data collected by or through the Services (which may include PII of Customers), excluding Order Data and Third-Party Order Data.
1.8 “Core” means ChowNow’s product that includes an ordering link on their website, OBN integration and listing in the ChowNow app and website.
1.9 “Credit Card Processing Charges” means the following credit card processing fees payable on each Order: For Core and Pro Subscriptions: United States: $0.20 plus 2.95%; Canada: $0.20 plus 2.95%; and For use of the Third Party POS Integration: $0.30 plus 2.9%.
1.10 “Curbside Pickup” means an order placed via the Services 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).
1.11 “Customer” means a unique profile that submits an Order.
1.12 “Data” means ChowNow Platform Data, Order Data, and Third-Party Order Data, collectively.
1.13 “Pro Platform” (formerly Direct Platform) means ChowNow’s proprietary social and mobile meal-ordering platform through which Customers order directly from Restaurant.
1.14 “Effective Date” means the date Restaurant executed the Order Form.
1.15 “Fees” mean, collectively, the Subscription Fees, Set-Up Fees, Marketing Fee, and Add-On Fees.
1.16 “Flex Delivery” means delivery of Orders using ChowNow’s network of local and regional third-party delivery service providers, which Restaurant may opt into in connection with its use of the Services.
1.17 “General Terms” means these General Terms as set forth below.
1.18 “Marketing Fee” means fourteen percent (14%) for a Restaurant with an Order Better Network Subscription, payable by Restaurant to ChowNow on each Subtotal, calculated by multiplying the percentage by each Subtotal.
1.19 “Support Local Fee” means the variable fee that ChowNow charges to Customers for every order placed through the Core Platform.
1.20 “Core Platform” means ChowNow’s proprietary platform that allows Customers to order from new restaurants.
1.21 “Menu” means Restaurant’s menu submitted to ChowNow by or on behalf of Restaurant, or collected by ChowNow (manually or through automated means) from Restaurant’s website, as updated by Restaurant from time to time.
1.22 “Order” means an order for Restaurant’s food and/or beverages submitted by a Customer through ChowNow via the Platform, or, when referring to the Order Better Network, through ChowNow via the applicable Order Better Network Partner.
1.23 “Order Better Network” means, collectively, ChowNow’s integration abilities between the Order Better Network Partners to facilitate Orders.
1.24 “Order Better Network Participant” means any third-party platform that has an agreement with ChowNow to integrate such third-party platform with ChowNow’s Services to facilitate Orders.
1.25 “Order Data” means data included in an Order collected by or through the Platform or Order Better Network (which may include PII of Customers), excluding Third-Party Order Data.
1.26 “Party” means each of Restaurant and ChowNow.
1.27 “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.
1.28 “Platform” means the ChowNow platform or platforms to which Restaurant subscribes under the Order Form (i.e., the Marketplace Platform and/or the Pro Platform).
1.29 “Pricing Page” means the webpage(s) that may be navigated to by visiting our pricing page, located at https://get.chownow.com/our-pricing/
1.30 “Pro” means ChowNow’s customizable platform that includes an ordering link on the website, OBN Integration, listing in ChowNow app and website, Flex Delivery, automated email marketing and a Branded App.
1.31 “Restaurant” has the meaning set forth in the preamble.
1.32 “Restaurant Content” means any content submitted to ChowNow by Restaurant or a third party on Restaurant’s behalf, as well as any content collected by ChowNow (manually or through automated means) from Restaurant’s website, including, without limitation, the Restaurant Marks, the Menu, and any photographs, images, videos, text, and sound recordings.
1.33 “Restaurant Marks” means all of Restaurant’s trademarks, service marks, logos, and other distinctive brand features.
1.34 “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.
1.35 “Service Terms” means the following documents to the extent the applicable Services described therein are ordered by Restaurant via the Order Form: (i) Core Terms; and (ii) the Pro Terms.
1.36 “Services” mean the services provided directly or indirectly by ChowNow under this Agreement, including without limitation access to and use of the Platform, Order Better Network, and ChowNow Marketplace.
1.37 “Set up Fee” means a one (1) time implementation fee of one hundred ninety-nine dollars ($199) for Core. Note that the Pro Platform may assess unrelated set up fees as part of the Subscription Fee.
1.38 “Subscription Fees” shall be the applicable Subscription Fees for Restaurant’s Subscription Type that are set forth on the Pricing Page, available at https://get.chownow.com/our-pricing.
1.39 “Subscription Type” means the Subscription Type indicated on Restaurant’s Order Form, which shall be either a ‘Core Subscription’ or a ‘Pro Subscription’.
1.40 “Subtotal” means is the amount due and owing to ChowNow by a Customer for products in connection with an Order through the Order Better Network, excluding taxes, tip, delivery fees, and any additional fees.
1.41 “Tablet Fee” means a monthly fee of twenty dollars ($20).
1.42 “Term” has the meaning specified in [Section 5.1] of these General Terms.
1.43 “Third-Party Data” means data included in an Order provided by a third-party partner (including, without limitation, Order Better Network Partners) to ChowNow through the Platform (which may include PII of Customers).
1.44 “User” means an employee, contractor, or agent of Restaurant who is authorized by Restaurant to access and use the Platform or Order Better Network on Restaurant’s behalf, subject to 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.
2. LICENSES; RESTRICTIONS ON USE; CUSTOMER MEMBERSHIP; ADDITIONAL PRODUCTS AND SERVICES; INCORPORATED TERMS; CURBSIDE PICKUP.
2.1 License Grants to Restaurant Content and Restaurant Marks; License Grant to Photographs.
2.1(a). Subject to the terms of the Agreement, Restaurant hereby grants to ChowNow a non-exclusive, worldwide, perpetual, fully paid-up, royalty-free right and license to use, copy, encode, collect, retrieve (including by automated means), store, archive, distribute, transmit, modify, edit, render into an audible and/or visual format, publicly-display, and publicly-perform the Restaurant Content and the Restaurant Marks in any and all media now known or hereafter devised in connection with: (i) the presentation, marketing, advertising, and/or promotion of the Restaurant; (ii) Platform or other the Services and ChowNow’s performance of any services pursuant to the Additional Terms; and (iii) in connection with the marketing, advertising, and promotion of ChowNow, the Services, the Platform, the Order Better Network, and/or the Additional Products and Services. All goodwill generated by ChowNow’s use of the Restaurant Marks as set forth herein shall inure to the benefit of Restaurant. ChowNow’s license to modify and/or edit the Restaurant Marks is limited to modifying them to fit the format of the Services and in connection with its provision of services to Restaurant pursuant to the Additional Terms. In addition to its rights under Section 5.2(f), ChowNow may reject or remove from the Services some or all Restaurant Content, in ChowNow’s sole discretion, for aesthetic or other good-faith reasons.
2.1(b). ChowNow shall have the right to sublicense the rights and licenses set forth in Section 2.1(a) to any Order Better Network Partner any subcontractors performing services on ChowNow’s behalf and/or to any third parties in connection with any derivative sites or distribution arrangements concerning the Services, including, without limitation, co-branded versions of the Platform, and/or ChowNow badges, widgets, and/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 the Order Better Network, ChowNow may sublicense such rights to the Order Better Network Partners on a perpetual basis.
2.1(c). With Restaurant’s permission, ChowNow and/or its third-party photographers and/or videographers may enter the Restaurant on dates and times mutually agreed by the Parties for the purpose of photographing, filming, and/or videotaping the premises; Restaurant’s food, beverages, menus, and signage; and/or individuals (e.g., employees and patrons) from whom Restaurant has obtained written permission using a consent form provided by ChowNow (“Photography Services“). Restaurant shall pay ChowNow for the Photography Services at the fees agreed between the Parties. Notwithstanding anything to the contrary, ChowNow will own and retain all right, title, and interest in and to any photographs, films, and videotapes created in connection with the foregoing (the “Materials“) and may use the Materials for any business purpose, subject to the limitations set forth in this Agreement on ChowNow’s rights to use the Restaurant Content and Restaurant Marks, to the extent included or contained in any Materials. Restaurant acknowledges and agrees that it shall have no claim to compensation for the rights granted under this Section 2.1(c). Subject to the terms of the Agreement, ChowNow hereby grants to Restaurant a non-exclusive, worldwide, perpetual, fully paid-up, royalty-free right and license to use, copy, distribute, transmit, modify, edit, publicly-display, and publicly-perform the Materials in any and all media now known or hereafter devised solely in connection with the marketing, advertising, and promotion of Restaurant.
2.2 RESERVED.
2.3 Restrictions on Use.
2.3(a). Restaurant will not (and will not permit any third party to) make any use or disclosure of the Platform, the Order Better Network, 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 or the Order Better Network; (ii) modify, adapt, translate, or reproduce the Platform or the Order Better Network; (iii) resell, distribute, or sublicense the Platform, the Order Better Network, the Tablet, or any leased Wireless Printers; make the Platform, the Order Better Network, 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 Order Better Network, the Tablet, or any leased Wireless Printers; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform, the Order Better Network, 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 Order Better Network, 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.
2.3(b). 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 or Order Better Network.
2.4 Incorporated Terms.
2.4(a). Restaurant’s use of Stripe (as defined below), Google Wallet, Google Pay, Google Maps, Apple Pay, other third party providers as applicable, 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 listed in this section or separately provided by ChowNow to Restaurant, 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 Stripe: 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://policies.google.com/privacy https://payments.google.com/payments/apis-secure/get_legal_document?ldo=0&ldt=privacynotice, https://payments.google.com/payments/apissecure/get_legal_document?ldo=0&ldt=buyertos&ldr=US, and https://payments.developers.google.com/terms/sellertos . By accepting the Agreement, Restaurant agrees that Restaurant has: (i) downloaded or printed the CAA; and (ii) 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.
For Google Wallet and Google Pay: Applicable terms and policies are available at: https://policies.google.com/privacy https://payments.google.com/payments/apis-secure/get_legal_document?ldo=0&ldt=privacynotice https://payments.google.com/payments/apis-secure/get_legal_document?ldo=0&ldt=buyertos&ldr=US https://payments.developers.google.com/terms/sellertos
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, which are available at https://payments.developers.google.com/terms/sellertos. 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 Google Maps: Certain functions of the Platform permit or require Restaurant to use Google Maps implementation. Google Maps implementation is provided solely as a convenience to Restaurant and not as an endorsement by ChowNow of the content on Google Maps. ChowNow is not responsible for the content of Google Maps and does not make any representations or warranties of any kind regarding the functionality, reliability, or accuracy of Google Maps. A link to Google Maps additional terms is available at https://payments.developers.google.com/terms/sellertos. In addition to such additional terms, by using Google Maps Restaurant is also bound by the Google privacy policy available at https://policies.google.com/privacy.
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 Flex Delivery Option<:> Restaurant can opt into ChowNow’s Flex Delivery service. Currently, the ChowNow Flex Delivery service providers (each, an “Integrated Provider”) are Uber and Door Dash. A link to Uber’s Incorporated Terms is available at: https://www.uber.com/legal/en/document/?name=uber-direct-api-terms-and conditions; and a link to Door Dash’s Incorporated Terms is available at: https://help.doordash.com/legal/document?type=mx-terms-of-service®ion=US&locale=en-US.
2.4(b). If Restaurant has opted into Flex Delivery then the Incorporated Terms of each of the Integrated Providers that serve Restaurant’s region are applicable to Restaurant and incorporated into the Agreement; provided, however, that with respect to the Door Dash Incorporated Terms, only those related to Door Dash Drive (including the “Restricted Item Addendum” and/or “Alcohol Product Addendum” as applicable) shall be incorporated into the Agreement, and those terms governing the Door Dash Marketplace shall not be incorporated herein; and provided further that ChowNow shall determine which Integrated Provider shall be used for each Flex Delivery subject to any additional written agreements by ChowNow and the Restaurant. ChowNow periodically adds new Integrated Providers to its Flex Delivery 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 into the Flex Delivery option, all transactions through such Flex 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. Further, Restaurant shall solely be responsible for identifying applicable menu items that fall under the following Category designations: Adult Beverages, Alcohol, Alcoholic Beverages, Alcoholic Drinks, Beer, Cocktails, Craft Beer, Domestic Beer, Hard Liquor, Imported Beer, Margaritas, Sake, Sparkling Wines, Spirits, White Wines, Wine, Wine Coolers, Red Wine. Restaurant shall tag each item under the proper Category. Failure by the Restaurant to do so may result in rejection or removal from Flex Delivery by ChowNow.
2.4(c). Unaffiliated Delivery Services. If Restaurant does not opt into Flex 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 the Data solely for the purpose of delivering Orders and for no other purpose (each, an “Unaffiliated Delivery Service Agreement“).
2.5 Curbside Pickup. If Restaurant opts-in to Curbside Pickup at one or more of its locations, Restaurant agrees that its personnel shall promptly deliver Orders to Customers’ vehicles when they arrive at the Restaurant location (e.g., in the parking lot or curbside). Restaurant shall use the features on the Platform that permit Restaurant to communicate with Customers to determine when they have arrived and where their vehicle is located. All information about Customer vehicles shall be used by ChowNow in compliance with ChowNow’s privacy policy, available at available at https://get.chownow.com/legal/privacy-policy/. Curbside Pickup is available to all Subscription Types.
3. ACCOUNT SET UP, MAINTENANCE OF ACCOUNT.
3.1 Account Set Up. Upon executing this Agreement, Restaurant shall provide to ChowNow 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.
3.2 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 related services, 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, including PII, 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. The PII 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 (available at 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.
4. FEES; PAYMENT; TAXES; AND SUBSCRIPTION PLANS
4.1 Fees. The Fees owed to ChowNow depend upon the Services ordered by Restaurant. ChowNow charges a Marketing Fee on Subtotals for Restaurant’s use of the Order Better Network. If Restaurant has subscribed to the Pro Platform, Restaurant shall pay ChowNow its then-current fee (the “Subscription Fee”) for the applicable subscription period selected by Restaurant. For the avoidance of doubt, there is no Subscription Fee or Marketing Fee charged to Restaurant for its use of the Marketplace Platform. Further, if Restaurant orders any Additional Products and Services through the functionality of the Services, it shall pay ChowNow’s then-current add-on fees (the “Add-On Fees”), or as otherwise outlined below. 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. Further, ChowNow reserves the right to offset against any amounts owed to it by the Restaurant related to Services or hardware provided by ChowNow to Restaurant under this Agreement, including any applicable Marketing Fee, and may deduct from money owed to Restaurants for Orders, as described in Section 4.5 below.
4.2 Refunds; Cancellation Fee. ChowNow’s Refund Policy, which is available at here to view ChowNow’s Refund Policy, which is hereby incorporated into and made part of this Agreement. Restaurant may be subject to a cancellation fee (“Cancellation Fee”) with respect to certain Services as may be specified in the applicable Service Terms.
4.3 Taxes. In connection with: (i) any orders for Additional Products and Services; and (ii) any subscriptions to a Platform, or Order Better Network, 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 (collectively, “Fees”) and Taxes due hereunder, 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 expiration or termination of this Agreement for any reason, 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. ChowNow currently uses Stripe, Inc. (“Stripe”) to collect credit card payments in connection with Orders. ChowNow also offers a direct point-of-sale integration provided by Square, Inc. and Toast, Inc. (a “Third Party POS Integration”), Restaurant’s use of which shall be subject to those applicable Third Party 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 four thousand dollars ($4,000) per Order (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 applicable Marketing Fee; and (z) for each Order: (1) if utilizing Third Party POS Integration $.30 plus 2.9%, otherwise (2) the Credit Card Processing Charges. For clarity, ChowNow shall retain any Marketplace Diner Fee collected from Customers and shall not pay any portion thereof to Restaurant. 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, SUBJECT 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.
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 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.
ChowNow may terminate the Agreement or any portion thereof 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 the Agreement or any portion thereof 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 or Order Better Network, which are expressly prohibited.
If Restaurant has subscribed only to a Marketplace Subscription, an Order Better Network Subscription, or an Essentials Subscription, it may terminate the Agreement at any time, for any or no reason, on written notice to ChowNow (without penalty or liability).
If Restaurant has a Pro Subscription 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 Order Better Network, 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 Pro Platform (and other features included with a Pro Subscription, if applicable) 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 Effect of Termination. Upon termination of the Agreement within a reasonable period following termination;
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 for the licenses granted in Section 2.1, 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 LTE Tablets and leased Wireless Printers as set forth in the Tablet and Wireless Printer Terms, and ChowNow may draw against the Deposit, as set forth in the Tablet and Wireless Printer Terms.
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 promptly do so (and in no event later than thirty (30) days following the effective date of termination).
5.4 Survival. The following provisions will survive any expiration or termination of the Agreement: Section 1 (“Definitions”); Section 2.4 (“Incorporated Terms”); Section 5.3 (“Effect of Termination”); Section 6 (“Ownership, Data, and Privacy”); Section 7 (“Representations and Warranties; Disclaimer”); Section 8 (“Limitation of Liability”); Section 9 (“Indemnification”); Section 11 (“Miscellaneous Provisions”); this Section 5.4 (“Survival”), the Tablet and Wireless Printer Terms, the Tablet and Wireless Printer Terms, and any survival clauses in the applicable Service Terms and Additional Terms.
6. OWNERSHIP, DATA & PRIVACY
6.1 Intellectual Property. ChowNow owns and shall retain all right, title, and interest in and to the Order Better Network, 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 12 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 and security 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.
During the Term, ChowNow shall publish to Customers (via a pop-up located on Restaurant’s website and in the Branded Apps, if applicable) a link to ChowNow’s privacy policy that describes the ways in which ChowNow collects, uses, discloses, and protects PII of Customers.
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.
Restaurant will notify ChowNow without undue delay (and in any event, within seventy-two (72) hours), upon becoming aware of a Security Incident. Restaurant shall (i) investigate and reasonably cooperate with ChowNow regarding the Security Incident; (ii) provide ChowNow with such information as ChowNow may reasonably request regarding such Security Incident, unless prohibited by applicable law or law enforcement; and (iii) confer with ChowNow 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 the Agreement, to discharge its obligations hereunder, and to grant the licenses granted hereunder; and (ii) the execution and delivery of the 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. 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 or Order Better Network shall be the same prices (or lower) that it charges customers not using the Platform or Order Better Network (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 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 Flex Delivery, it shall not offer alcohol on its online Menu through the Platform or Order Better Network, unless it agrees to be subject to the Flex Delivery service provider’s additional terms relating to alcohol sales, and if it attempts to do so without such agreement or in the event that ChowNow reasonably suspects Restaurant may be in violation of terms, ChowNow may, in its sole discretion, terminate Restaurant’s participation in the Flex 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 and Order Better Network 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 or Order Better Network. In the event Restaurant breaches its representations and warranties set forth in subsections (i) or (ii) of this Section 7.2, Restaurant shall be liable to the Customer for, and ChowNow shall automatically deduct from Restaurant’s account, the difference between the prices charged to a Customer and the prices offered for the same item(s) by Restaurant outside of the Platform or Order Better Network (except where Restaurant participates in the Profit Protection program with respect to the Order Better Network).
7.3 Disclaimer.
CHOWNOW CANNOT GUARANTEE THAT THE PLATFORM, ORDER BETTER NETWORK, OR ANY OF THE SERVICES 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, ORDER BETTER, AND THEIR RESPECTIVE COMPONENTS, THE MATERIALS, 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 OR ORDER BETTER NETWORK. EXCEPT AS EXPRESSLY SET FORTH IN [SECTION 7.1] AND [SECTION 7.2], NEITHER PARTY MAKES ANY WARRANTY WITH RESPECT TO THE PLATFORM, ORDER BETTER NETWORK, 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 AND ORDER BETTER NETWORK MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. CHOWNOW IS NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS.
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 FEES PAID TO CHOWNOW UNDER AN APPLICABLE ORDER FORM 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 OR ORDER BETTER NETWORK (FOR WHICH THERE IS NO SUBSCRIPTION FEE), RESTAURANT’S AGGREGATE LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED TWO THOUSAND FIVE HUNDRED DOLLARS ($2,500) AND CHOWNOW’S AGGREGATE LIABILITY FOR DIRECT DAMAGES WILL NOT EXCEED ONE HUNDRED DOLLARS ($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 FLEX DELIVERY ORDER WILL NOT EXCEED TWO HUNDRED FIFTY DOLLARS ($250).
9. INDEMNIFICATION.
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 made under the Agreement. In addition, Restaurant shall indemnify, defend, and hold harmless the ChowNow Indemnified Parties and Order Better Network Partners from and against any and all Losses incurred by such ChowNow Indemnified Parties and/or Order Better Network Partners 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 5.5;] (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.
10. PUBLICITY.
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. In the event of any dispute between the parties concerning the terms and provisions of this Agreement, the Party prevailing in such dispute shall be entitled to collect from the other Party all costs incurred in such dispute, including reasonable attorneys’ fees. 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 administrative dashboard, available at 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.
13. ORDER BETTER NETWORK TERMS
The following terms and conditions shall apply to Restaurant’s participation in the Order Better Network. All capitalized terms used herein and not otherwise defined shall have the meanings ascribed to them in the General Terms.
1. Access to the Order Better Network. Subject to the terms and conditions of the Agreement, ChowNow shall enable Customers to submit Orders through the Order Better Network.
2. Order Better Network Participant Terms. If any Order Better Network Participant imposes any additional terms and conditions in connection with Orders originating on its platform, ChowNow shall provide Restaurant notice of such additional terms, and Restaurant must comply with the same.
3. Marketing Fee. Restaurant shall pay ChowNow a Marketing Fee on all of Restaurant’s Orders received through the Order Better Network.
4. Fees. Restaurant shall pay ChowNow a Set Up Fee and Tablet Fee, as applicable. For the avoidance of doubt, if a Restaurant subscribes to both the Order Better Network and Marketplace, the Restaurant will only be responsible for payment of the Set-Up Fee and Tablet Fee as if it were paying for one subscription, so as to not incur duplicative charges.
5. Profit Protection Program. Restaurant shall be opted into ChowNow’s profit protection program (“Profit Protection”), Restaurant may increase its Menu prices solely in connection with Orders received through the Order Better Network to account for the Marketing Fee on an Order. Restaurants may opt out of participation in the Order Better Network, Profit Protection, or both by providing written notice to ChowNow.
