EFFECTIVE: September 5, 2018
1. ChowCall Responsibilities. ChowCall will:
1.1. Display your logo and a listing of the Merchant stores that are identified on the Sign-Up Sheet or an appendix to the Sign-Up Sheet or otherwise confirmed by ChowCall in writing that are within the ChowCall coverage area ("Merchant Stores");
1.2. Display a menu of all food and beverage items sold at Merchant Stores ("Merchant Products");
1.3. Accept orders for Merchant Products through ChowCall's proprietary system (the "ChowCall Service" or the "ChowCall Platform") from ChowCall customers ("Orders"); 1.4. Communicate with your designated representative for each Merchant Store about each Order;
1.5. Forward each Order to a third-party delivery contractor ("Driver"), so that the Driver can pick up the applicable Merchant Product(s) from the Merchant Store to deliver to the ChowCall customer (“Customer"); and
2. Merchant Responsibilities. Merchant will:
2.1. Provide ChowCall with electronic copies of the Merchant's take-out or delivery menu, including the price of each item on that menu, and notify ChowCall of any updates or changes to the Merchant's take-out or delivery menu within 3 business days from the date of change. Any updates or changes (including to prices) will take effect after 3 business days from the date of our receipt of your written notice of the change. (Any changes received after the close of our normal business hours will be deemed received on the following business day.) Merchant may not charge ChowCall Customers a higher price than the price listed for each menu item on its then-current menu. After sign-up Merchant is responsible for updating its menu via the ChowCall web portal;
2.2. Accept all Orders placed through the ChowCall Services, as described on Merchant's then-current menu;
2.3. Promptly confirm all Orders placed through the ChowCall Services in the manner prescribed by us;
2.4. Prepare each Order for pickup by a Driver at the designated time, with all of the service items (i.e, utensils, napkins, etc) normally included in any delivery or take-out order by the Merchant; 16774561v1
2.5. Process Orders in the same manner as other orders received in the Merchant Stores;
2.6. Notify ChowCall of each Merchant Store’s days and hours of operation and accept Orders through the ChowCall Services throughout those hours of operation. If a Merchant Stores days or hours of operation change, you must notify ChowCall at least 3 business days in advance. Merchant is responsible for updating hours of operation via the ChowCall web portal. If weather, casualty or other unforeseen circumstance requires you to modify the days or hours of operation of any Merchant Store, you will notify ChowCall at your earliest opportunity; and
2.7. Notify all Merchant Store staff members of the relationship with ChowCall immediately upon execution of this Agreement.
3. Refunds and Re-Orders. If ChowCall has to submit a re-order on a Customer's Order,
Merchant will prepare the Order to the same specifications as the original Order at its expense.
4. Discontinuation of Merchant Products or Services.
If we determine, in our reasonable determination, that continuing to support Orders of a particular Merchant Product or Merchant Store could subject ChowCall to undue regulatory risk or other liability, or subject Drivers to threats to their safety or property, we may remove such Merchant Product and/or Merchant Store from the ChowCall Services without notice to you.
5. Order Equipment.
Merchant will install and utilize any equipment reasonably required by ChowCall for Merchant to receive Orders (including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders) ("Order Equipment"). Any Order Equipment provided by ChowCall will remain our sole property and may be used solely in connection with the Services. You will be responsible for any damage to or loss of any Order Equipment provided by ChowCall, the replacement cost of which may be deducted by ChowCall from amounts remitted to you for Orders.
6. Payment, Fees, and Taxes.
ChowCall will remit the menu price (plus tax) of Orders filled by Merchant each week as described on the Sign-Up Sheet, provided that ChowCall shall be entitled to deduct from such payment the “Fees Paid by You” as detailed in the Sign-Up Sheet. If Merchant has opted for a tablet subscription, ChowCall will also deduct a weekly fee, as set forth on the Sign-Up Sheet. ChowCall retain the right to charge any Customer additional fees (e.g., a delivery fee, service fee, or an additional markup for Merchant Products). Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Products under this Agreement and remitting such taxes, duties, and other governmental charges to the appropriate authorities.
7. Payment Processing.
Payment processing services for Merchants are provided by Stripe and are subject to the Stripe Terms of Service (collectively, the "Stripe Services Agreement"). By agreeing to these Terms, you agree to be bound by the Stripe Services Agreement, as it may be modified by Stripe from time to time. As a condition of ChowCall enabling payment processing services through Stripe, you agree to provide ChowCall accurate and complete information about you and your business, 16774561v1 and you authorize ChowCall to share it and transaction information related to your use of the payment processing services provided by Stripe.
8. Merchant Content and Trademark.
During the Term, Merchant grants to ChowCall a royalty-free, non-exclusive, limited, revocable, non-transferable, non- sublicenseable right and license to use the content provided by Merchant to ChowCall, including without limitation, menus, photographs, trademarks, and logos for ChowCall to use in providing services to Merchant.
Either party may terminate this Agreement for any reason at any time upon written notice. Neither Merchant nor ChowCall will be required to pay any fee in connection with a termination by either party or be liable to the other as a result of termination of this Agreement for any damages, for the loss of goodwill, prospective profits or anticipated income, or on account of any expenditures, investments, leases or commitments made by either Merchant or ChowCall.
10. Modifications of These Terms.
ChowCall reserves the right, to change, suspend, or discontinue the Services (including without limitation, the availability of any feature or content) at any time, for any reason. We may revise these Terms from time to time. The changes will not be retroactive, and the most current version of the terms will be at https://www.chowcall.net/terms. We will notify you of material revisions via a service notification or an email to the email associated with your account. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
11. Representations and Warranties.
11.1. Each party represents and warrants that it has the full right, power, and authority to enter into and perform its obligations under this Agreement without breaching any obligation to any third party.
11.2. THE SERVICES, AND ANY EQUIPMENT ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND, AND EACH PARTY HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES. Merchant acknowledges that the operation of the Services may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and ChowCall shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Services.
11.3. MERCHANT REPRESENTS AND WARRANTS THAT TO THE BEST OF ITS KNOWLEDGE, THE OPERATION OF ITS BUSINESS AND PREPARATION AND SALE OF FOOD AND BEVERAGE ITEMS WILL AT ALL TIMES COMPLY WITH ALL APPLICABLE LAWS, RULES, STANDARDS AND REGULATIONS, INCLUDING THOSE RELATING TO REGULATORY PERMITS AND LICENSES, FOOD SAFETY, AND SANITATION.
11.4. Both Parties acknowledge that neither party has received any assurances for future business or that any investment by a party will be recovered or recouped or that such party will obtain any anticipated amount of profits by virtue of this Agreement. Neither Party will be responsible to the other Party for any expectation of revenue or profit related to the Services.
Each party (the "Indemnifying Party") will defend, indemnify, pay, and hold harmless the other party, its subsidiaries and affiliates, and their respective officers, directors, shareholders, employees, and agents (the "Indemnified Party") from and against any third-party claims arising from: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party's personnel (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); or (ii) the violation of the intellectual property of a third party by the Indemnifying Party's Materials; provided that in each case the Indemnified Party provides the Indemnifying Party with (a) prompt notice of any claims, (b) the option to assume sole control over defense and settlement of any claim, and (c) reasonable assistance in connection with such defense and settlement (at the Indemnifying Party's expense).
13.Limitation of Liability.
Except with respect to amounts payable to third parties under Section 11, (i) neither party will be liable to the other under this Agreement, for indirect, special, punitive or consequential damages, and (ii) each party's maximum aggregate liabilities related to or in connection with this Agreement shall not exceed [$2,000]; provided, however that this limitation shall not apply to any liability related to intellectual property infringement.
Nothing in these Terms is to be construed as creating an agency, partnership, joint venture or franchise relationship between ChowCall and Merchant, and except as expressly set forth herein, each party shall be responsible for its own costs of performance hereunder. As set forth on the Sign-Up Sheet executed between Merchant and ChowCall, these Terms form part of an Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. Except as set forth herein, no amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default. This Agreement is governed by and interpreted in accordance with the laws of the [Commonwealth of Virginia] without regard to the conflicts of laws principles thereof. The parties hereby consent to exclusive jurisdiction in the courts of [Norfolk, Virginia]. Merchant may not assign this Agreement in whole or in part without ChowCall's prior written consent. ChowCall may freely assign this Agreement. This Agreement will be binding upon, and inure to the benefit of, the permitted successors and assigns of each party, but shall not confer any rights or remedies upon any other third party. All notices, requests, consents and other communications hereunder must be in writing, and delivered by overnight courier to the addresses set forth on the Sign- Up Sheet (or any updated address properly noticed hereunder). If any provision of this Agreement is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality or unenforceability will not affect any other provisions of this Agreement, and this Agreement will be construed as if such invalid, illegal or unenforceable provision had never been contained here.