This Agreement (the “Agreement”) is a legal agreement between the restaurant set forth on the registration page (“You” or “Restaurant”) and ChowNow, Inc. (“ChowNow”). This Agreement specifies the terms under which You 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 your assent to this Agreement, You agree to be bound by the terms of this Agreement. If You do 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 binding it to this Agreement.
The definitions for some of the defined terms used in this Agreement are set forth in Section 12. 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; 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, non-transferable (except as permitted under Section 11 below) right to authorize Users to access and use the Direct Platform and the Discover Platform (unless Restaurant has opted out of the Discover Platform). Restaurant shall be responsible to ChowNow for any and all acts or omissions of the Users. 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. References to the “Platform” in this Agreement shall refer to the Direct Platform and the Discover Platform (but shall only refer to the Direct Platform if Restaurant has opted out of the Discover Platform), both of which may be amended by ChowNow from time to time.
- 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 whole or in part, through the Platform and in connection with any services ChowNow performs for Restaurant pursuant to the Additional Terms (as defined below), but solely to the extent necessary for ChowNow to 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; 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 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 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) (i) to any subcontractors performing services on ChowNow’s behalf; and (ii) in connection with any derivative site or distribution arrangement concerning the Platform, including, without limitation, co-branded versions of the Platform and/or ChowNow badges or widgets 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.
- 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 You 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 peripherals (collectively, the “Tablet”). In addition, as an optional feature if You are located in the United States, You may purchase or lease wireless receipt printers through ChowNow (the “Wireless Printers”). You 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 and confirm in writing that they are in good repair and condition and that You are satisfied with and have accepted them. In the event You discover a defect with the Tablet and/or any Wireless Printer, You shall promptly, and in no event more than one (1) business day of discovery of such defect, notify ChowNow in writing of such defect. If You fail to provide ChowNow with the notification described in this Section with respect to the Tablet and/or any Wireless Printer, You shall be deemed to have accepted them. In the event that You timely and properly reject the Tablet and/or any Wireless Printer in accordance with this Section, ChowNow shall be responsible for contacting the appropriate supplier(s) and/or manufacturer(s) and either obtaining a replacement or ensuring that the Tablet and/or the Wireless Printer are properly repaired.
- 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.
- You acknowledge and agree that the Tablet is being leased to You, at no cost, for use solely in connection with the Platform pursuant to this Agreement. In addition, if You are leasing any Wireless Printers, You acknowledge and agree that they are being leased to You, at the prices set forth on the Platform on the Pricing page, for use solely in connection with the Platform pursuant to this Agreement. For the avoidance of doubt, You 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 to: (i) process in-house orders not processed through the Platform; (ii) play games; (iii) use mobile applications; (iv) access the Internet; or (v) print anything other than Orders and Marketplace Orders. You shall use the Tablet and/or any leased Wireless Printers in a careful and proper manner in conformity with their instructions and manuals and all applicable laws. In addition, You shall not use the Tablet or any leased Wireless Printers in any manner that could reasonably be expected to impair the applicability of suppliers’ and/or manufacturers’ warranties or render them unfit for their originally intended use nor permit any person other than authorized and competent personnel to operate them.
- Title to the Tablet and any leased Wireless Printers shall at all times remain in ChowNow. You 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 conditions in this Agreement. The Tablet and any leased Wireless Printers shall remain personal property, notwithstanding the manner in which they may be affixed to any real property. You shall at all times protect and defend, at Your own cost and expense, the title and interest of ChowNow from and against all claims, liens, and legal processes of any trustee in bankruptcy, receiver, creditor, or other successor of You and keep the Tablet and any leased Wireless Printers free and clear from all such claims, liens, processes, and any other encumbrance. You shall not sublease, transfer, or dispose of the Tablet or any leased Wireless Printers or grant or permit any lien on them. You agree that You 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. You shall not alter, deface, or remove any of ChowNow’s ownership identification plates or markings and, upon ChowNow’s request, You shall affix or re-affix such identification.
- The Tablet and any leased Wireless Printers shall be located in the Restaurant, and You shall not remove, or permit (by act or omission) them to be removed from the Restaurant without the prior written consent of ChowNow.
- You shall immediately notify ChowNow of any problems with the Tablet and/or any leased Wireless Printers, and shall use Your best efforts to work with ChowNow to pursue any warranty claims that ChowNow may have in relation to them. 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 You shall be solely responsible for the costs of any repairs and maintenance necessitated by Your negligence or misuse of them; and (ii) You shall be responsible for all repair and maintenance of any Wireless Printers that You purchase.
- Upon ChowNow’s receipt or issuance of a termination notice as set forth in Section 5.2, 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 amount of $500 for each Tablet and additional charges for any additional ChowNow equipment provided to Restaurant (e.g., leased Wireless Printers) and 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 Section 1.3(i). Upon such return, ChowNow shall promptly credit Restaurant the amount of the Deposit. If one or more of the items are not returned, ChowNow shall retain the applicable portion of the Deposit. If any of the items are returned damaged, ChowNow shall retain the applicable portion of the Deposit as set forth in Section 1.3(i).
- Upon termination of this Agreement, or at any other time upon demand by ChowNow, You, at Your sole expense, shall, as directed by ChowNow, either (i) return the Tablet and any leased Wireless Printers to ChowNow 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 (ii) fully cooperate with ChowNow in the disposition of the Tablet and any leased Wireless Printers. You 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 and in the same condition as when delivered to You, reasonable wear and tear excepted. At any time, upon any total or partial loss of or damage to the Tablet and/or any leased Wireless Printers during the Term, You shall be responsible for, and ChowNow may automatically draw against the Deposit and/or Your credit card, bank account, or other approved facility provided during the registration process, the value to replace or repair them, in whole or in part.
- 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 Branded Apps, 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 Branded Apps; (ii) modify, adapt, translate, or reproduce the Platform or the Branded Apps; (iii) resell, distribute, or sublicense the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers; make the Platform, the Branded Apps, 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 Branded Apps, the Tablet, or any leased Wireless Printers; (iv) remove or modify any proprietary marking or restrictive legends placed on the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers; (v) use the Platform, the Branded Apps, 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; or (vi) introduce into the Platform, the Branded Apps, the Tablet, or any leased Wireless Printers any software, virus, worm, “back door,” Trojan Horse, or similar harmful code.
- 1.5 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.
- 1.6 Incorporated Terms. Your use of Google Wallet, Android Pay, Google Maps, Apple Pay, and, if You are 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 You and which may be updated by the applicable third-party service provider from time to time without notice to You (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 Your use of the Third-Party Services. Google and Apple are not parties to any Order and will not be responsible for any disputes between You and any Customer.
- For Google Wallet and Android Pay:
- 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 You upon request.
- For the On-Demand Delivery Option:
A list of each On-Demand Delivery service provider (each, a “Delivery Provider”), along with each of such Delivery Provider’s Incorporated Terms, are found here for New York City and here for Los Angeles. If You have opted into On-Demand Delivery, then the Incorporated Terms of each of the Delivery Providers that serve Your region are applicable to You, and incorporated into this Agreement. ChowNow periodically adds new Delivery Providers to its network, and ChowNow reserves the right to update the list of Delivery Providers from time to time, with or without notice to You. You are responsible for checking the link to the Delivery Providers’ Incorporated Terms periodically for updates. Restaurant acknowledges and agrees that by opting in to the On-Demand Delivery option, all transactions through such On-Demand Delivery option shall be directly between Restaurant and the Delivery 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 Delivery Provider.
- For Google Wallet and Android Pay:
2. REGISTRATION, MAINTENANCE OF ACCOUNT, AND CHOWNOW WIDGET.
- 2.1 Registration. During the registration process, ChowNow requires You to create an account, which may include a unique sign-in name (“Sign-In Name”), password (“Password”), and perhaps certain additional information that will assist in authenticating You when Your Users log into the Platform in the future (“Unique Identifiers”). When creating the account, You must provide true, accurate, current, and complete information. Restaurant is solely responsible for the confidentiality and use of Your 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. You 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 Your account.
- 2.2 Maintenance of Account. As ChowNow’s business evolves, it may require additional information, authorizations, and permissions from You after You register in order to provide You access to and usage of the Platform and perform its other obligations under this Agreement. When requested by ChowNow, You shall promptly provide all such information, authorizations, and permissions in accordance with ChowNow’s request. When doing so, You 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 You or immediate termination of Your account. To the extent You are required to provide any personal information in connection with such requests (e.g., the last four digits of Your social security number so ChowNow can comply with its Know Your Customer obligations), ChowNow shall protect such information in the same manner it protects its other sensitive information and shall use such information only to service Your account.
- 2.3 ChowNow Widget. In order to integrate Your website with the Direct Platform, You hereby grant ChowNow the right, during the Term, to embed the ChowNow widget in Your website. To the extent permission to do so is required from a third party acting on Your behalf (e.g., Your hosting provider, webmaster, etc.), you will assist us in promptly obtaining such permission and any necessary access credentials.
3. PRIVACY; CANADA’S ANTI-SPAM LEGISLATION.
3.2 Canada’s Anti-Spam Legislation. If You are located in Canada, You are responsible for ensuring that all electronic communications between You and Your Customers comply with Canada’s Anti-Spam Legislation (“CASL”), including, but not limited to, any electronic messages sent to Customer email addresses accessed through Your dashboard. ChowNow does not represent that it has obtained the consent of any Customer to receive marketing and promotional messages, and You are solely responsible for ensuring compliance with CASL for any electronic messages You send to Customers. If You are not located in Canada, please note that this Section 3.2 shall not apply.
4. FEES; PAYMENT; TAXES; AND SUBSCRIPTION PLANS.
- 4.1 Fees; Refund Policy; Taxes. As consideration for the rights to use the Direct Platform granted in Section 1, Restaurant shall pay ChowNow its then-current fee (the “Direct Subscription Fee”) for the applicable subscription period selected by Restaurant and any of its then-current set-up fees (“Set-Up Fees”). Additionally, if Restaurant orders any Additional Products and Services through the functionality of the Direct Platform, it shall pay ChowNow’s then-current add-on fees (the “Add-On Fees” and collectively with the Subscription Fees and the Set-Up Fees, the “Direct Fees”). As consideration for the rights to use the Discover Platform granted in Section 1 (unless you have opted out of the Discover Platform), Restaurant shall pay ChowNow a fee (the “Finder’s Fee”) equal to thirty percent (30%) of each First Time Order in accordance with Section 4.2. ChowNow may modify the Direct Fees and the Discover 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 Direct Subscription Fee shall be locked for the first year of any annual subscription. Click here to view ChowNow’s refund policy (the “Refund Policy”), which is hereby incorporated into and made part of this Agreement. Notwithstanding anything to the contrary contained in the Refund Policy, ChowNow may, at its sole, reasonable discretion, agree to refund Restaurant certain fees paid in the event Restaurant cancels its subscription; provided, however, that ChowNow reserves the right to withhold from any refund, and retain, an amount equal to its then-current Set-Up Fees, whether or not such Set-Up Fees were charged to Restaurant at registration. In connection with: (i) any orders for Additional Products and Services; and (ii) any subscriptions commencing or renewing on or after March 1, 2016, 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”).
- 4.2 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 the Fees and Taxes, and Restaurant hereby consents to the same. If Your restaurant is in the United States, all payments will be charged and made in U.S. dollars. If Your restaurant is outside the United States or any of its possessions or territories, all payments will be charged and made in your local currency. Fees shall begin to accrue and be charged the sooner of: (i) the date You can begin taking Orders or Marketplace Orders; or (ii) thirty (30) days after the Effective Date. Within thirty (30) days after termination of this Agreement, ChowNow shall 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.
- 4.3 Payments to Restaurant; Marketplace Orders.
- ChowNow may use Stripe, Inc. (“Stripe”) or Braintree, a division of PayPal, Inc. (“Braintree”), to collect credit card payments in connection with Orders.
- You 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, You agree: (i) that You have downloaded or printed the CAA; and (ii) that You have reviewed and agree to the CAA. Please note that ChowNow is not a party to the CAA and that You, Stripe, and Stripe’s sponsoring bank are the three parties to the CAA and that ChowNow has no obligations or liability to You under the CAA. If You have questions regarding the CAA, please 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 Your bank’s settlement process), the following sum shall be deposited into the bank account You direct payment: the amounts for all executed Orders for which You have not yet been paid, less (i) any allowances actually made or taken for returns; (ii) any third-party delivery charges; and (iii) the following credit card transaction charges: (x) MasterCard, Visa, and Discover: 2.8% + $.10 per Order; and (y) American Express: 3.5% + $.15 per Order. To the extent returns cannot be automatically deducted from the sums otherwise due to You hereunder, You hereby authorize ChowNow and/or Stripe to automatically issue an ACH transaction and deduct from Your designated bank account the amount of such returns on a daily basis. For the avoidance of doubt, ChowNow assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to You under this Section 4.3(a). To the extent the terms set forth in Section 4.3(a)(iii) above conflict with the terms contained in Your CAA, the terms of Section 4.3(a)(iii) shall prevail.
- You must enter into the Merchant Services Agreement (“MSA”) with Braintree and its sponsoring bank. The MSA is available at www.braintreepayments.com/agreements/merchant. By accepting this Agreement, You agree: (i) that You have downloaded or printed the MSA; and (ii) that You have reviewed and agree to the MSA. Please note that ChowNow is not a party to the MSA and that You, Braintree, and Braintree’s sponsoring bank are the three parties to the MSA and that ChowNow has no obligations or liability to You under the MSA. If You have questions regarding the MSA, please contact Braintree at 877.434.2894. If payment for an Order is processed through Braintree, the next business day after an Order settles, which can be one (1) to three (3) business days from the actual Order date (depending upon Your bank’s settlement process), the following sum shall be deposited into the bank account You direct payment: the amounts for all executed Orders for which You have not yet been paid, less (i) any allowances actually made or taken for returns; (ii) any third-party delivery charges; and (iii) the following credit card transaction charges: (x) MasterCard, Visa, and Discover: 2.8% + $.10 per Order; and (y) American Express: 3.5% + $.15 per Order. To the extent returns cannot be automatically deducted from the sums otherwise due to You hereunder, You hereby authorize ChowNow and/or Braintree to automatically issue an ACH transaction and deduct from Your designated bank account the amount of such returns on a weekly basis. For the avoidance of doubt, ChowNow assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to You under this Section 4.3(b). To the extent the terms set forth in Section 4.3(b)(iii) above conflict with the terms contained in Your MSA, the terms of Section 4.3(b)(iii) shall prevail.
- RESTAURANT EXPRESSLY ACKNOWLEDGES, AGREES, AND UNDERSTANDS THAT CHOWNOW IS NOT AND SHALL NOT BE LIABLE FOR ANY SUMS THAT STRIPE AND/OR BRAINTREE FAILS TO REMIT TO RESTAURANT IN CONNECTION WITH THE ORDERS, AND RESTAURANT’S SOLE RECOURSE SHALL BE DIRECTLY AGAINST STRIPE OR BRAINTREE, AS APPLICABLE, PURSUANT TO THE CAA OR MSA, AS APPLICABLE. RESTAURANT HEREBY FULLY, FINALLY, AND FOREVER RELEASES CHOWNOW FROM ANY AND ALL CLAIMS ARISING OUT OF STRIPE’S AND/OR BRAINTREE’S FAILURE TO REMIT PAYMENT IN CONNECTION WITH THE ORDERS.
- You hereby authorize ChowNow to process Marketplace Orders. In connection with any Marketplace Orders, ChowNow is scheduled to receive payments from the applicable third-party platforms on a weekly basis. Within two (2) business days of receiving payment from a third-party platform for Marketplace Orders, the following sum shall be deposited into the bank account You direct payment: the amounts for all such Marketplace Orders for which You have 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 Marketplace Orders. To the extent refunds cannot be automatically deducted from the sums otherwise due to You hereunder, You hereby authorize ChowNow to automatically issue an ACH transaction and deduct from Your designated bank account the amount of such refunds on a weekly basis. For the avoidance of doubt, ChowNow assumes any consumer chargebacks, and such sums shall not be deducted from the amounts owed to You under this Section 4.3(d).
- 4.4 Taxes On Orders and Marketplace Orders. In connection with all Orders and Marketplace Orders, You shall: (i) ensure that the tax rates set forth in Your ChowNow dashboard are correct; (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 Marketplace Orders and the processing of such Orders and Marketplace Orders for Customers (excluding any taxes imposed or based on ChowNow’s income).
- 4.5 Subscription Plans. At any time during the first year of the Term, Restaurant, if it originally selected a month-to-month subscription, may convert to an annual subscription plan on thirty (30) days’ notice to ChowNow. After the first year of the Term, if the Restaurant originally selected an annual 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.
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: (i) for a material breach by the other Party where such breach is not cured within five (5) days of written notice of such breach; and (ii) any time, for any or no reason, upon thirty (30) days prior written notice to the other Party (without penalty or liability). 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 part is engaged in: (i) any activity that may harm ChowNow, its systems, or any third-party systems; or (ii) fraudulent or illegal activity or any other activity that could result in legal liability to ChowNow or any third party. 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 this Agreement:
- Restaurant shall be paid any amounts payable under Section 4.3(a), Section 4.3(b), and Section 4.3(d);
- ChowNow shall charge Restaurant’s credit card, bank account, or other approved facility for any outstanding Fees and Taxes pursuant to Section 4.2 and any other amounts due under this Agreement; and
- 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.
- ChowNow shall remove the ChowNow widget from Your website, and You shall assist us in doing so.
- 5.4 Survival. The following provisions will survive termination of this Agreement: Section 1.3 (“Tablet Computer and Wireless Printers”); Section 1.5 (“Additional Products and Services”); Section 1.6 (“Incorporated Terms”); Section 5.3 (“Effect of Termination”), Section 6 (“Ownership”), Section 7 (“Representations and Warranties; Disclaimer”), Section 8 (“Limitation of Liability”), Section 9 (“Indemnification”), Section 11 (“Miscellaneous Provisions”), Section 12 (“Definitions”), and this Section 5.4 (“Survival”).
- 6.2 Usage of Data. Although Restaurant owns all Data, it hereby represents, warrants, and covenants that is shall not sell, license, or commercialize the Data, in any respects, in whole or in part; provided, however, that it may use such Data in connection with its performance of its obligations hereunder and to market and promote its own goods and service, subject to all privacy laws and its and ChowNow’s privacy policies.
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; (ii) 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, privacy, promotions, and unfair business practices; and (iii) 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; (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 Marketplace Orders and make them available to Customers, and the timeliness, quality, and other characteristics of the Orders and Marketplace Orders shall be as favorable as those extended to its other customers not using the Platform; (iv) for any Orders or Marketplace Orders that are scheduled to be delivered to a Customer by a third-party delivery service, Restaurant shall package the Order or Marketplace Order appropriately for delivery (including any protection necessary in the event of inclement weather) and use commercially reasonable efforts to ensure that such Order or Marketplace Order is available for pickup upon the third-party delivery service’s arrival; (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 on the On-Demand Delivery program; (vi) it understands the applicable alcohol control laws in its jurisdiction, and when a Customer places an Order or Marketplace 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; and (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.
- 7.3 Disclaimer.
- CHOWNOW CANNOT GUARANTEE THAT THE PLATFORM OR THE BRANDED APPS WILL BE AVAILABLE AT ALL TIMES, OR THAT EVERY ERROR IN THE PLATFORM OR PROBLEM RAISED BY YOU WILL BE RESOLVED. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 7.1, THE PLATFORM, THE BRANDED APPS, AND THEIR COMPONENTS, AND ANY OTHER MATERIALS PROVIDED BY CHOWNOW HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CHOWNOW MAKES NO GUARANTEE REGARDING THE LEVEL OF REVENUE YOU MAY 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 BRANDED APPS, 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 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 YOUR COMPUTER, MANUFACTURING PROCESS ISSUES, AND THE AVAILABILITY OF PRODUCTS AND SERVICES. ALTHOUGH CHOWNOW WILL EXERCISE COMMERCIALLY REASONABLE EFFORTS TO HELP ENSURE THAT THE TABLETS AND ADDITIONAL PRODUCTS AND SERVICES CONFORM TO YOUR EXPECTATIONS, VARIATIONS SOMETIMES OCCUR. ALL TABLETS, ADDITIONAL PRODUCTS AND SERVICES, SPECIFICATIONS, AND OFFERINGS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE PLATFORM MAY CONTAIN INFORMATION ON TABLETS AND ADDITIONAL PRODUCTS AND SERVICES, NOT ALL OF WHICH ARE AVAILABLE IN EVERY LOCATION. A REFERENCE TO A TABLET OR ADDITIONAL PRODUCT OR SERVICE ON THE PLATFORM DOES NOT IMPLY THAT SUCH TABLET OR ADDITIONAL PRODUCT AND SERVICE IS OR WILL BE AVAILABLE IN YOUR LOCATION. THE PLATFORM MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. WE ARE NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL, TECHNICAL, OR PRICING ERRORS LISTED ON THE PLATFORM.
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. 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) YOUR 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, You 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) Your breach or alleged breach of the Incorporated Terms and/or Section 4.4; (ii) an Adverse Event; or (iii) the processing of Orders and/or Marketplace 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 You are 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. In conjunction with the initial press release, You, if requested by ChowNow, shall make one (1) or more representatives available for a strategic press interview.
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 a successor to all or substantially all of that Party’s assets or business (for which no consent of the other Party is required). 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 Your individual account in Your 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.
- 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.
- 12.1 “Additional Products and Services” means products and services, other than access to the Platform, that You may order from ChowNow, including, without limitation, ChowNow Discover, website development services, marketing services, paper products, data connectivity, and Wireless Printers.
- 12.2 “Adverse Event” means any negative symptoms experienced by Customers that are associated with the handling and/or consumption of any items in an Order or Marketplace Order.
- 12.3 “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.
- 12.4 “Branded Apps” means the Restaurant-branded mobile applications set up by ChowNow.
- 12.5 “Customer” means a party that submits an Order or Marketplace Order.
- 12.6 “Direct Platform” means ChowNow’s Direct social and mobile meal-ordering platform, which is accessed via ChowNow’s Facebook social plugin for Your Facebook page, the Branded Apps, and/or Your website; and shall also include the Tablet and the Branded Apps.
- 12.7 “Discover Platform” means ChowNow’s marketplace meal-ordering platform enabling Customers to discover new restaurants, which is accessed via ChowNow’s website, www.chownow.com, and/or ChowNow’s dedicated Discover website, eat.chownow.com; ChowNow’s Google Place Actions plugin; and/or ChowNow’s mobile application.
- 12.8 “Data” means data collected by or through the Platform, including, without limitation the PII of Customers.
- 12.9 “Effective Date” means the date You accepted this Agreement.
- 12.10 “First Time Order” means the first Order placed by a Customer through the Discover Platform for a particular Restaurant location, excluding: (i) instances in which the same Customer previously ordered through the Direct Platform for the same Restaurant location; and (ii) subsequent Orders placed by the same Customer at the same Restaurant location.
- 12.11 “Marketplace Orders” means Orders that originate on any third-party platform, such as Yelp, that are processed by ChowNow.
- 12.12 “Menu” means Your menu submitted to ChowNow, as updated by You from time to time.
- 12.13 “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.
- 12.14 “Order” means a meal order for Your food and/or beverages submitted by Customers through ChowNow via the Platform.
- 12.15 “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.
- 12.16 “Restaurant Content” means any content submitted by You to ChowNow, including, without limitation, the Menu.
- 12.17 “Restaurant Marks” means all trademarks, service marks, logos, and other distinctive brand features that are contained in the Restaurant Content.
- 12.18 “Term” has the meaning specified in Section 5.1.
- 12.19 “User” means an employee or agent of Restaurant who accesses and uses the Platform on the terms and conditions of this Agreement.
YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.