Terms & Conditions

CHOWLY ONLINE TERMS FOR RESTAURANTS

Updated on September 13, 2023

These terms, together with the Onboarding Form, constitute the services agreement between the entity using the Software or receiving the Services (“Restaurant”) and Chowly, Inc., a Delaware corporation (“Chowly”). The parties agree as follows:

1. Definitions

(a.) “End User” means the individual who placed the order.

(b.)“Order Data” means all information submitted by End Users, and may include name, physical address, phone number, email address, items ordered, preferences, and special instructions.

(c.)“Services” means the proprietary services Chowly provides to Restaurant under this agreement, including access to and use of the Software.

(d.) “Software” means any combination of the below proprietary services or products that Chowly provides to facilitate the transfer of order, menu, and other related data. Some of these products may integrate with Restaurant point-of-sale systems or printer devices.

• First-party web ordering
• First-party mobile app ordering (iOS or Android)
• Kiosk ordering
• TOOS ordering integrations
• Google ordering
• Delivery-as-a-Service
• Dynamic Pricing
• Restaurant Control Center Access

(e.) “Taxes” means any sales, use and other applicable taxes or duties that the Services may be subject to, however designated, including without limitation, withholding taxes, royalties, know‐how payments, customs, privilege, excise, sales, use, value‐added and property taxes.

(f.) “TOOS” means third party online ordering software and related technology services that allow End Users to place orders.

2. Services: Use and Restrictions

(a.) During the Term, and subject to Restaurant’s compliance with all of its obligations, Chowly will provide the Services to Restaurant. Chowly may, in its sole discretion, make any changes to the Services that it deems necessary or useful to: (a) maintain or enhance the quality or delivery of Chowly’s services, the competitive strength of or market for Chowly’s services or the cost efficiency or performance of the services; or (b) to comply with applicable law.

(b.) As part of the Services, Chowly shall provide Restaurant with a private-label Google plug-in which will allow End Users to order from Restaurant through Google (the “Google Ordering”). Restaurant shall select Chowly as the “default” or “preferred” provider of Google Ordering through the Google interface. Restaurant authorizes Chowly to share Restaurant’s data with Google to enable and manage the Google Ordering. Chowly may optimize Restaurant’s menu(s) by providing enhancements such as adding photos or descriptions, and increasing the Base Order Value for menu items. “Base Order Value” means the initial base price that Restaurant provides to Chowly for menu items before any up-charging by Restaurant or Chowly. Restaurant retains 100% of any amounts it upcharges to the Base Order Value, and Chowly retains 100% of any amounts it upcharges to the Base Order Value. Restaurant may opt out of the Google Ordering by emailing Chowly at googleordering@chowly.com and stating in the email the name and address of the location opting out.

(c.) Restaurant may elect to utilize first party ordering software as part of the Services. Content, design and display elements and preferences are subject to Restaurant’s discretion and Restaurant’s sole responsibility; Chowly is not responsible for how menu content, pricing, images, and other related information (collectively, the “Menu Data”) appears on Restaurant’s website, mobile app(s) or in-store kiosks. Restaurant understands and agrees that it (not Chowly) is responsible for ensuring that Restaurant’s website, mobile app(s) or in-store kiosks and the substance and display of Menu Data is in compliance with all applicable laws, including the Americans with Disabilities Act. If a Restaurant elects to use first party ordering software with in-store kiosks, Chowly hereby grants to Restaurant a personal, nontransferable, nonexclusive, limited license to use the first party ordering software solely for the purpose of enabling online ordering on its kiosks.

(d.) As part of the Services, Chowly may refer Restaurant to courier services that deliver orders (the “Delivery Partners”). Following Restaurant’s engagement of a Delivery Partner, Restaurant understands and agrees that (i) Restaurant, not Chowly, is responsible for complying with such Delivery Partner’s terms of service, privacy policy, and any other rules or policies that the Delivery Partner requires; (ii) Delivery Partner, not Chowly, is responsible for all order fulfillment, delivery and related support matters; and (iii) if a driver has been dispatched before Restaurant cancels the order, Restaurant is responsible, and must reimburse Chowly and payment processing partner, for fees that Chowly and its payment processing partner would have received on the order.

(e.) Chowly provides the Services solely and exclusively for Restaurant’s own use and access directly related to its business and confined solely to its own servers and within its place of business. Restaurant shall not use the Services except in compliance with the terms of this agreement.

(f.) If Chowly receives any feedback from Restaurant relating to the Services, Restaurant hereby licenses such feedback to Chowly, without compensation.

(g.) Chowly will provide on-going assistance to Restaurant for technical, administrative and service-oriented issues relating to the utilization, transmission and maintenance of the Services as Restaurant may reasonably request and Chowly may reasonably accommodate, in any mode of communication that Chowly deems appropriate (e.g., text, phone, and email). Support for technical, administrative and service-related matters may be requested at chowly.help.

3. Representations.

Restaurant represents to Chowly that:

(a.) Neither this agreement, nor the Services performed by Chowly in accordance with or to satisfy its obligations pursuant to the agreement, violates or will violate the terms of any agreement between Restaurant and a third party;

(b.) Restaurant complies with all applicable law in operating its business, including the preparation and sale of food and beverages;

(c.) Restaurant is responsible for the quality of its food and beverages;

(d.) Menu Data, including any modifications, is complete, current, and accurate;

(e.)  Data does not violate any third party intellectual property rights;

(f.) Restaurant shall frequently review Menu Data as displayed on TOOS, Google, and Restaurant’s websites, apps, and in-store kiosks (as applicable) to ensure that the information is complete, current, and accurate;

(g.) it will provide Chowly with accurate information on the taxes owed by End Users on orders placed, will promptly notify Chowly in writing of any changes to or inaccuracies in such information (whether as provided to Chowly or as displayed to End Users), and agrees that Restaurant is solely responsible for any losses relating to incorrect tax information;

(h.) it will not reidentify or attempt to reidentify, and it will prohibit its employees, agents, and affiliates from reidentifying or attempting to reidentify, any personal information of End Users that may be associated with orders that Chowly processes in deidentified or encrypted form as part of the Services;

(i.) when it provides Chowly with direct access to Restaurant’s accounts on third-party platforms, it consents to Chowly’s use of such platforms as an agent of Restaurant for purposes of enabling Chowly to deliver the Services required by this agreement, and therefore Chowly’s use will not constitute a violation of a third party’s rights;

(j.) Restaurant shall not, and shall not permit or authorize any third party to, reverse engineer, disassemble, decompile, copy, distribute, transfer, reproduce, or archive any portion of the Software or other parts of the Services or data provided by Chowly;

(k.) Restaurant is responsible for all Claims relating to Restaurant’s business and all acts and omissions of its service providers, merchants, vendors, and agents; and

(l.) Restaurant represents that it is not engaged in, and will not engage in, the operation of any illegal business and will not use, or permit anyone else to use, the Services for any illegal purpose.

(m.) Chowly may require Restaurant to cease its use of the Services immediately if, in the sole reasonable judgment of Chowly, Chowly believes that Restaurant’s use is outside the scope of the permitted use as set forth in this agreement.

4. Term and Termination

(a.) This agreement is effective as of Restaurant’s first use of the Services (the “Effective Date”).

(b.) If Restaurant has selected the monthly payment plan, the “Term” of this agreement shall be for one month following the Effective Date, thereafter automatically renewing every month, until either party provides at least 30 days’ prior written notice of termination to the other party. For security and quality control purposes, a valid termination notice requires an authorized representative of Restaurant to complete and submit a termination request form located at https://chowly.help/s/cancellation-request, and to meet with Chowly by phone, video, or in person to discuss the termination request.

(c.) If Restaurant has selected the annual payment plan, the “Term” of this agreement shall be for one year from the Effective Date (the “Initial Term”), thereafter automatically renewing for successive one-year periods (each, a “Renewal Term”) until either party provides a valid written notice of termination to the other party at least 60 days before the end of the Initial Term or a Renewal Term. Chowly may impose an early termination fee on any Restaurant with an annual payment plan that attempts to terminate this agreement before the end of the Initial Term or a Renewal Term and not pursuant to section 4(e)(i) or 4(e)(iii) below. For example, if there are still six months remaining on the Initial Term or Renewal Term, Chowly may require immediate payment of remaining fees owed (i.e., an amount equal to six months * Restaurant’s monthly fee).

(d.)

(e.) This agreement will also terminate upon any of the following conditions:

(i.)Either party may terminate the agreement upon the occurrence of a material breach thereof by the other party, which breach is not cured (or for which a detailed remedial plan is not presented to the terminating party) within 30 days after notice is given by the terminating party;

(ii.) If Restaurant fails to pay fees when due under this agreement that are not the subject of a good faith dispute, which failure is not cured within 10 business days after Chowly provides Restaurant with written notice, Chowly may, in addition to pursuing any remedies available to it under the law, suspend its performance of Services until Restaurant pays the undisputed fees in full, or immediately terminate this agreement following notice to Restaurant; or

(iii.) Either party becoming insolvent or the subject of a bankruptcy, conservatorship, receivership or similar proceeding, or making a general assignment for the benefit of its creditors.

(f.) Following termination, Restaurant must uninstall and destroy all copies of the Software in its possession and discontinue use of the Services.

5. Intellectual Property

(a.) Restaurant acknowledges and agrees that, as between Restaurant and Chowly, Chowly exclusively owns all rights, title, and interest in, to and related to the Software and the Services, as such may be modified, upgraded and/or enhanced from time to time, including all ownership and intellectual property rights therein resulting from or relating to performance of the Services, including, patents, copyrights, trademarks, trade secrets, rights of publicity, rights of privacy, sui generis database rights, moral rights, and other intellectual property or proprietary rights anywhere in the world. All other rights in and to the Services are expressly reserved by Chowly and the respective third-party licensors.

(b.) Restaurant hereby acknowledges and agrees that Chowly may, by means of the Software or Services, gather and compile Order Data, and that Chowly may use such data for any lawful purpose which may include disclosure to third parties for Chowly’s commercial purposes. Restaurant hereby consents to such gathering, compilation and disclosure.

(c.) Neither party may use any trademark service marks, names, logos, or other identifiers of the other party without the other party’s prior written consent; however, Restaurant may use Chowly’s name for the purpose of source attribution and Chowly may publicly identify Restaurant as a customer and may generally describe the Services provided to Restaurant as part of Chowly’s sales and marketing efforts. Each party authorizes the other party to use its trademarks to the extent permitted in this subsection (c), subject to usage guidelines that the other party may provide.

6. Fees and Payment Terms

(a.) Fees. For its services, Restaurant agrees to pay Chowly all fees as outlined in the Onboarding Form, until the effective termination date of this agreement. Restaurant agrees to pay Chowly a one-time set up fee per location, and a monthly fee per location in advance of each month (with the first monthly fee due on the day the Onboarding Form is signed). Restaurant will pay any per transaction fees the month after the Services commence. All locations covered under this agreement are subject to a $35 per month minimum fee per location, unless otherwise specified in the Onboarding Form. 

(b.) Google Ordering Fees. For each order placed through Google Ordering, regardless of End User discounts, credits and chargebacks, Restaurant shall pay (a) Chowly’s payment processing partner $0.30 per order, plus 2.9% of the amount the End User paid for the order (including Additional Expenses), and (b) Chowly up to 10% of the Base Order Value (excluding Additional Expenses and excluding payments described in (a)). “Additional Expenses” means any taxes, tips, delivery fees, and other service fees associated with an order.

(c.) Payment Due Dates. All fees are due on the invoice date. Automatic payment of invoices is required. Restaurant is responsible for having sufficient funds in the applicable account and for providing Chowly with current, up-to-date payment information. Any portion of any fees owed to Chowly remaining unpaid 30 days or more beyond the invoice date may be subject to interest of 1.5% per month or the maximum permitted by law, whichever is less.

(d.) Payment Method. Restaurant hereby authorizes Chowly to automatically charge the fees using the credit card information that Restaurant has provided to Chowly or using ACH on the invoice date. Restaurant represents that if it is paying the fees by ACH, it has verified its bank account for ACH authorization before Services commence. Services are deemed to have commenced when any product or service described in section 1(d) is available to Restaurant.

(e.) Taxes for the Services. All fees stated in this agreement are exclusive of Taxes. Restaurant is responsible for paying any applicable Taxes for the Services (other than those taxes based on the income of Chowly) and any related penalties or interest to the relevant tax authority. Restaurant will not withhold any Taxes from any amounts due to Chowly.

(f.) Additional Services. Restaurant may elect to receive additional services during the Term. However, Chowly is not obligated to deliver such additional services and Restaurant is not obligated to pay for such additional services until the parties agree in writing as to the scope of the additional services, the fees to be paid for such additional services, and any additional terms that may be necessary.

(g.) Fee Increases. Chowly may, by providing Restaurant with written notice at least 30 days prior to the end of a monthly invoicing period, change the fees for all or any portion of the Services. Such fee changes will become effective on the first day of the subsequent monthly invoicing period.

7. Confidentiality

(a.) During the Term and for five years thereafter, neither party shall disclose Confidential Information disclosed to it by the other party or use such information other than for purposes of the agreement. “Confidential Information” means all communications, documents and other information, whether in written, oral, electronic, or other form, which a party furnishes or otherwise discloses (the “Discloser”) to the other party (the “Recipient”) relating to the business relationship between Chowly and Restaurant, including the terms of this agreement.

(b.) Confidential Information does not include any information that:

(i.) is or becomes generally known to the public not as a result of a disclosure by the Recipient;

(ii.) is already known by the Recipient prior to disclosure by the Discloser;

(iii.) is received by the Recipient from a third party without restriction on disclosure and without breach of any confidentiality agreement by such third party; or

(iv.) is independently developed by the Recipient without reliance upon the Discloser’s information.

(c.) After the termination or expiration of the agreement, at the Discloser’s written request, the Recipient shall promptly (but no later than 14 days following the request) destroy the Discloser’s Confidential Information and certify in writing that this action has occurred. Recipient may retain Confidential Information to the extent contained in deleted emails and electronic documents which are archived by or on behalf of Recipient consistent with Recipient’s standard archival processes but which, in the ordinary course of operations, are not accessible by the individuals who created or received such emails or documents.

8. Restaurant Indemnification. Restaurant shall defend and indemnify Chowly and its shareholders, directors, officers, employees and agents, from and against any and all liabilities, damages, awards, settlements, losses, claims, and expenses, including reasonable attorneys’ fees and costs of investigation (collectively, “Claims”), due to any claim by a third party arising from or in connection with (a) Restaurant’s gross negligence, willful misconduct, or breach of any of its representations or obligations in this agreement, (b) any use of the Services that is not in accordance with this agreement, or (c) any claim relating to the Services or Restaurant’s use of the Services that is brought by or on behalf of an End User, employee or contractor of Restaurant, Delivery Partner, TOOS or point-of-sale company.

9. Limitation of Liability. Neither Chowly nor its employees, agents, or affiliates is liable to Restaurant for any indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by Chowly’s use of reasonable diligence, even if Chowly had been advised or should be aware of the possibility of such damages.  In no event is Chowly liable to Restaurant for any punitive damages. The aggregate monetary liability of Chowly and any of its employees, agents or affiliates under any theory of law will not exceed the fees that Restaurant paid to Chowly under this agreement in the six months preceding the first act giving rise to liability.

10. Disclaimer of Warranties. Restaurant accepts the Services “as is”, with no implied warranty of any kind, including implied warranties of merchantability, noninfringement of intellectual property rights, course of performance, course of dealing and usage of trade.

11. General

(a.) The parties agree to attempt to resolve any dispute relating to this agreement by mediation, which shall be conducted under the then-current mediation procedures of The CPR Institute or any other mediation procedures upon which the parties may agree. The parties further agree that their good-faith participation in mediation is a condition precedent to pursuing any other available legal (but not equitable) remedy.

(b.) Restaurant acknowledges that violating this agreement may cause substantial and irreparable injury to Chowly for which remedies at law may not be adequate. Accordingly, Restaurant agrees that Chowly shall be entitled to injunctive relief with respect to any breach, or threatened breach, of this agreement, and that such right shall be in addition to any other rights or remedies to which Chowly may be entitled at law or in equity. The rights and remedies provided for in this agreement are cumulative and shall be in addition to any other rights and remedies provided by law or in equity.

(c.) Either party may commence the mediation process by providing written notice to the other party, setting forth the subject of the dispute and the relief requested. Within ten business days after the receipt of the notice, the other party shall deliver a written response. The initial mediation session will be held within 30 days after the initial notice. The parties agree to share the costs and expenses of the mediation (which does not include the expenses incurred by each party for its own legal representation in connection with the mediation).

(d.) The parties further agree that mediation proceedings are settlement negotiations, and that all offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties or their agents will be confidential and inadmissible in any subsequent legal proceeding involving the parties; provided, however, that evidence that would be independently admissible or discoverable will not be rendered inadmissible or non-discoverable as a result of its use in the mediation.

(e.) The parties agree that any settlement agreement that they may enter into during the mediation process is fully binding and enforceable by any court with jurisdiction of the dispute. The party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including reasonable attorneys’ fees, to be paid by the party against whom enforcement is ordered.

(f.) If a dispute is not settled by mediation, the parties agree that that the exclusive venue for the litigation of any claim arising out of this agreement will be the state and federal courts located in Chicago, Illinois and Cook County, United States. The parties irrevocably consent to the personal jurisdiction of these courts and irrevocably waive, to the fullest extent permitted by law, any objection thereto.

(g.) Governing Law. This agreement will be governed in all respects by the laws of the State of Illinois as they apply to agreements entered into and to be performed entirely within Illinois between Illinois residents, without regard to conflict of law provisions.

(h.) Force Majeure. Chowly shall not be liable for any default or delay in the performance of its obligations hereunder due to acts of God, war, terrorism, natural disasters, earthquakes, fire, riots, floods, and other similar events, to the extent such event is beyond Chowly’s reasonable control and only for the duration of such event.

(i.) The parties agree that any controversy that may arise under this agreement is likely to involve complicated and difficult issues, and therefore each party irrevocably and unconditionally waives any right it may have to a trial by jury in any legal action relating to this agreement or the transactions contemplated hereby.

(j.) Except for notices pursuant to sections 2(b), 2(f), and 4, all notices regarding this agreement shall be delivered to Restaurant by Chowly sending an email to the email address provided by Restaurant for the delivery of notices as set forth herein and to Chowly by Restaurant sending an email to notices@chowly.com. Notice shall be deemed given on the day of delivery.

(k.) Restaurant may not assign its rights or delegate its obligations under this agreement without Chowly’s prior written consent. Chowly may assign its rights under this agreement. Any purported assignment in violation of this section will be void.

(l.) The failure of either party at any time or times to require full performance of any provision hereof will in no manner affect the right of such party to later enforce the same.

(m.) If a court of competent jurisdiction declares any provision of this agreement to be invalid, unlawful or unenforceable as drafted, the parties intend that such provision be amended and construed in a manner designed to effectuate the purposes of the provision to the fullest extent permitted by law. If such provision cannot be so amended and construed, it shall be severed, and the remaining provisions shall remain unimpaired and in full force and effect to the fullest extent permitted by law.

(n.) The rights and obligations of the parties set forth in Sections 1, 4, 5, 7 through 11 and any provisions that reference a period after termination or expiration, will survive to the maximum extent permitted by law or for the period so referenced.

(o.) This agreement constitutes the entire agreement between the parties with respect to its subject matter, and supersedes all other agreements, proposals, negotiations, representations or communications relating to the subject matter. Both parties acknowledge that they have not been induced to enter this agreement by any representations or promises not specifically stated in this agreement. Chowly may, without notice to Restaurant, amend this agreement by posting a revised version of this agreement online, and Restaurant’s continued use of the Services following such date will constitute Restaurant’s acceptance of the revised version.