Referral Terms - ChowNow

This Referral Agreement (the “Agreement”) is a legal agreement between the company or individual person, as applicable,m set forth on the registration page (“You”and ChowNow, Inc. (“ChowNow”). This Agreement specifies the terms under which You may participate in ChowNow’s referral program. Please read this Agreement carefully, because by clicking “I Agree,” accessing and using the Platform (as defined below), or otherwise manifesting assent to this Agreement, You agree to be bound by the terms of this Agreement and the terms and conditions of our Privacy Policy, which are hereby incorporated by reference.

1. Eligibility

You may refer restaurants to only if you are an individual who is at least 18 years of age as of the date of enrollment, a resident of the United States (excluding any U.S. territories, including Puerto Rico) or Canada and have the capacity to enter into binding contract.  ChowNow employees and customers are not eligible to participate.  We are under no obligation to accept any individual as an Insider, and may accept or reject any Insider in our sole and complete discretion.

2. Account Management

2.1 In order to receive payment of any Commissions (as defined below) due and owing to You, You must accurately provide Your correct name or business name, current address, Tax Identification Number (“TIN”) or Social Security Number (“SSN”), and maintain the accuracy of records with ChowNow.

2.2 ChowNow will attempt to process Commission payments due under this Agreement on a timely basis.  However, any claim for payments not credited accurately must be received by ChowNow within ninety (90) days of the date of the Qualified Lead’s (as defined below) activation on the ChowNow service, or such claim shall be deemed waived.

3. Financial Terms

3.1 You have the opportunity to earn a commission (“Commission”) by referring to ChowNow Qualifying Leads (as defined below). For the purposes of this Agreement, a “Qualifying Lead” means a restaurant that, as reasonably determined by ChowNow: (i) is not already – and has never been – a customer of ChowNow, or affiliated with any customer of ChowNow, (ii) has not had any marketing contact from ChowNow or been referred to ChowNow at any time during the six (6) months preceding the date You contact (or provide us the required information about) such restaurant via the Platform, (iii) is not owned or controlled by You (i.e., You may not refer Yourself or Your business), and (iv) activates and pays for a new ChowNow service subscription within sixty (60) days after Your referral via the Platform.

3.2 Only one referrer can earn a Commission for each Qualifying Lead that registers for ChowNow. ChowNow reserves the right to audit Your participation in the Referral Program at any time, including after any Commission payment has been made, to ensure compliance with this Agreement and to take appropriate action in the event of fraud, malfeasance, or any other non-compliance. Commissions for qualifying leads that register for ChowNow equal one-hundred and fifty ($150) per each Qualifying Lead; For the avoidance of doubt, the Commission excludes all other monies ChowNow receives from such Qualifying Lead, including, without limitation, any set-up, installation, add-on, or professional service fees. Referrers in Canada will be sent $150 gift-credit to Amazon.com in Canadian dollars equivalent to $150 US Dollars for each qualifying lead that registers for ChowNow.

3.3 Your Commissions shall be calculated by ChowNow on a calendar monthly basis. ChowNow shall pay You Your Commissions within thirty (30) days after the close of each calendar month for Commissions earned during the previous calendar month.

4. Intellectual Property

The Referral Webpage contains material, such as data, software, text, graphics, images, audiovisual works, and other material provided by or on behalf of ChowNow (collectively referred to as the “Content”).  The Content may be owned by us or by third parties.  The Content is protected under both United States and foreign laws.  Unauthorized use of the Content may violate copyright, trademark, and other laws.  You have no rights in or to the Content, and You will not use the Content except as permitted under this Agreement.  No other use is permitted without prior written consent from us.  You must retain all copyright and other proprietary notices contained in the original Content on any copy You make of the Content.  You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way other than in connection with Your referral to us of prospective Qualifying Leads.  The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.

If You violate any part of this Agreement, Your permission to access and/or use the Content and the Platform automatically terminates, and You must immediately destroy any copies You have made of the Content.

The trademarks, service marks, and logos of ChowNow (“ChowNow Trademarks”) used and displayed on the Platform are registered and unregistered trademarks or service marks of ChowNow. Other company, product, and service names located on the Platform may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with the ChowNow Trademarks, the “Trademarks”). Nothing on the Platform should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without our prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by us in writing. All goodwill generated from the use of the ChowNow Trademarks inures to our benefit.

Elements of the Platform are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated, in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without our express, written consent for each and every instance.

5. Communications to Us

We encourage You to contact us with questions and suggestions.  Please be advised that with respect to any communications You provide us, including, but not limited to, feedback, questions, comments, suggestions, and the like, we shall be free to use any ideas, concepts, know-how, or techniques contained in Your communications for any purpose whatsoever, including, but not limited to, the development, production, and marketing of products and services that incorporate such information, without compensation to you.

6. No Warranties; Limitation of Liability

THE PLATFORM AND THE CONTENT ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND.  WE DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, FITNESS FOR PARTICULAR PURPOSE, AND WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  WE MAKE NO REPRESENTATIONS OR WARRANTIES AS TO HOW MUCH YOU MAY EARN IN COMMISSIONS, IF ANYTHING.

IN NO EVENT SHALL WE BE LIABLE TO YOU (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM YOU) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, LOSS OF USE, LOSS OF COST OR OTHER SAVINGS, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT, OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THE PLATFORM, THE CONTENT, THE INSIDER PROGRAM, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF WHETHER WE WERE ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF.  OUR MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THE PLATFORM, THE CONTENT, THE INSIDER PROGRAM, OR OTHERWISE ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE AGGREGATE AMOUNT OF THE COMMISSIONS DUE AND PAYABLE TO YOU UNDER THIS AGREEMENT, BUT NOT YET PAID.  SOME STATES DO NOT ALLOW EXCLUSIONS OF CERTAIN WARRANTIES OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.  IN SUCH STATES, OUR WARRANTIES AND OUR LIABILITY SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

THE PLATFORM AND THE CONTENT MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS LISTED ON THE PLATFORM. THE PLATFORM MAY CONTAIN INFORMATION ON PRODUCTS OR SERVICES WHICH ARE NOT AVAILABLE IN EVERY LOCATION. A REFERENCE TO A PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH PRODUCT OR SERVICE IS OR WILL BE AVAILABLE TO YOUR QUALIFYING LEADS. WE RESERVE THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE PLATFORM AND/OR THE INSIDER PROGRAM AT ANY TIME WITHOUT NOTICE.

7. Indemnification

You agree to defend, indemnify, and hold us and our officers, directors, employees, successors, licensees, and assigns harmless from and against any claims, actions, or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from Your breach of this Agreement or Your access to, use, or misuse of the Platform or the Content.  We shall provide notice to You of any such claim, suit, or proceeding and shall assist You, at Your expense, in defending any such claim, suit, or proceeding.  We reserve the right, at Your expense, to assume the exclusive defense and control of any matter that is subject to indemnification under this section.  In such case, You agree to cooperate with any reasonable requests assisting our defense of such matter.

8. Confidential Information

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

8.2 You acknowledge that the Information, including any copies made by You or Qualifying Leads, is and will remain the sole property of ChowNow or its licensors.  You will not remove any notice of copyright, trade name, trademark, or any other proprietary notice from the Information.

9. Termination of the Agreement

We reserve the right, in our sole discretion, to restrict, suspend, or terminate this Agreement and Your access to the Platform, at any time and for any reason without prior notice or liability.  We reserve the right to change, suspend, or discontinue all or any part of the Platform and/or the Insider Program at any time without prior notice or liability.  In the event we terminate this Agreement for any reason other than Your breach of this Agreement, we shall pay You for all Commissions due and payable under Section 3.

10. General Provisions

10.1 YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE PLATFORM, THE INSIDER PROGRAM, OR THIS AGREEMENT MUST COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

10.2 The relationship between You and ChowNow shall not be that of partners, agents, or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between us for any purposes, including federal income tax purposes.  ChowNow and You, in performing any of our respective obligations hereunder, shall be independent contractors or independent parties and shall independently discharge our respective contractual obligations.  NEITHER PARTY SHALL HAVE THE AUTHORITY TO BIND THE OTHER PARTY BY CONTRACT OR OTHERWISE OR TO MAKE ANY REPRESENTATIONS OR GUARANTEES ON BEHALF OF THE OTHER PARTY.

10.3 This Agreement is personal to You, and therefore may not be assigned, in whole or in part, without our prior, written permission.  Each of the parties’ respective rights and obligations under this Agreement shall be binding on and shall inure to the benefit of the parties hereto and each of their respective permitted successors and assigns.

10.4 The failure of either party hereto to enforce any of the provisions of this Agreement, or the waiver thereof in any instance, shall not be construed as a general waiver or relinquishment on its part of any such provision, but the same shall nevertheless be and remain in full force and effect.

10.5 This Agreement 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, we may bring an action for injunctive relief in any court of competent jurisdiction.

10.6 This Agreement constitutes the entire and final agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior agreements relating to the subject matter hereof, which are of no further force or effect.

10.7 This Agreement may be modified or supplemented only by an instrument in writing executed by each party and delivered to the party relying on the writing.

10.8 If any section, subsection, sentence, clause, phrase, or other portion of this Agreement is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion.  Such declaration shall not affect the validity of the remaining portions hereof, which other portions shall continue in full force and effect.

10.9 Sections 3.5 (until all Commissions due and payable are paid), 5, 6, 7, 9, and 11 shall survive the termination of this Agreement.

YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.