GiftAMeal Terms & Services

1.               SERVICES. GiftAMeal shall provide the following services (“Services”) to the restaurant(s) designated in GiftAMeal Sign Up Form (“Sign Up Form”) attached hereto (each a “Restaurant” and collectively, “Restaurants”): GiftAMeal will include each Restaurant on the list of restaurants on GiftAMeal’s mobile application (“GiftAMeal App”). After dining at a Restaurant, the diner (“Diner”) may verify their location at the Restaurant and take a photo on the GiftAMeal App. Each time a user verifies their location at a GiftAMeal partnered restaurant through using the GiftAMeal App, GiftAMeal shall pay a food bank the amount necessary to fund the distribution of a meal from the food bank to a local food pantry. The Diner may also share a photo of his/her food on select social media outlets to prompt GiftAMeal to fund the distribution of an additional meal. GiftAMeal will donate to a food bank to fund the distribution of a minimum of 50 meals worth of food per month.

2.               STANDARD SERVICES. If Owner selects the GiftAMeal Standard Package (“Standard”), then GiftAMeal will provide Owner with the following services. GiftAMeal will give the Restaurant featured placement on GiftAMeal’s website to differentiate the Restaurant from Beginner locations on the GiftAMeal App. GiftAMeal will post 1 Tweet and 1 Facebook post per month on GiftAMeal’s official social media accounts related to the Restaurant or on Instagram at GiftAMeal’s discretion. GiftAMeal will send out one customized push notification for the Restaurant each month at a date/time set by the Restaurant if requested. GiftAMeal send out one email per month promoting a special deal or event at the Restaurant to its user base if requested. Other partner restaurant content may be included as well in the same email. GiftAMeal will donate to a food bank to fund the distribution of a minimum of 100 meals worth of food per month.

3.               PREMIUM SERVICES. If Owner selects the GiftAMeal Premium Package (“Premium”), then GiftAMeal will provide Owner with the following services. Each Restaurant will be labeled as a GiftAMeal Premium Restaurant on select GiftAMeal marketing materials, the GiftAMeal website, and on the GiftAMeal App. The Owner receives permission to use its Premium status in its marketing materials, subject to prior approval from GiftAMeal. GiftAMeal will give the Restaurant featured placement on GiftAMeal’s website to differentiate the Restaurant from non-Premium locations on the GiftAMeal App. GiftAMeal will feature the closest Premium restaurant to a user’s location at the top of the restaurant list on the GiftAMeal App. GiftAMeal will feature one badge for the Restaurant for users to encourage loyalty if requested by the Restaurant. GiftAMeal will spend 2 hours per month to review and advise the Restaurant on its social media strategy if requested. GiftAMeal will help generate social media content if requested for one post per month. GiftAMeal will email a survey to users that have used GiftAMeal at the Restaurant and provide insights to the Restaurant if requested. GiftAMeal will donate to a food bank to fund the distribution of a minimum of 150 meals worth of food per month.

 

4.               TERM. 

                  The term (“Term”) of this Agreement between GiftAMeal and Owner shall be twelve (12) calendar months commencing on the Start Date. If at the end of the Term neither party terminates within 30 days, then the term will be automatically renewed for another twelve (12) calendar months under the same terms of the previous contract.

5.               Fees.

                  5.1             Owner shall pay the amounts set forth in GiftAMeal's then current fee list (“Fees”), as seen on Sign Up Form, without setoff, deduction, withholding or allowances. The Fees are subject to change from time to time in GiftAMeal’s sole discretion. GiftAMeal will notify Owner of changes to its applicable fee list, and such changes will become effective thirty (30) days following such notice. Owner shall make all payments of Fees in accordance with Section 5 of this Agreement. Owner shall make all payments in US dollars by (i) check mailed to the address specified for notice to GiftAMeal in Section 9, (ii) wire or electronic funds transfer to an account designated in writing from time to time by GiftAMeal, or (iii) pre-authorized ACH or credit card charges as specified in Exhibit A.

                  5.2             All Fees and other amounts payable by Owner under this Agreement are exclusive of taxes and similar assessments. Owner is responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental or regulatory authority on any amounts payable by Owner hereunder, other than any taxes imposed on GiftAMeal's income. If GiftAMeal has the legal obligation to pay or collect taxes for which Owner is responsible under this Agreement, the appropriate amount shall be invoiced to and paid by Owner, unless Owner provides GiftAMeal with a valid tax exemption certificate authorized by the appropriate taxing authority.

 

6.               BILLING AND PAYMENT.

 

                  6.1             Owner shall pay all Fees and other amounts payable under this Agreement within thirty (30) calendar days after receipt of GiftAMeal's invoice. Owner shall make all payments in US dollars by check mailed to the address specified for notice to GiftAMeal in Section 9.

 

                  6.2             If any payment remains outstanding more than thirty (30) days after the applicable due date then, in addition to all other remedies available to GiftAMeal: a) GiftAMeal may charge interest on the past due amount from the date due until the date paid, at the rate of one percent (1%) per month, or, if lower, the highest rate permitted under applicable law, calculated daily and compounded monthly;  b) Owner shall reimburse GiftAMeal for all reasonable costs incurred by GiftAMeal in collecting any late payments or interest, including attorneys' fees, court costs and collection agency fees; and c) GiftAMeal may disable, withhold, suspend or revoke Services until all past due amounts, interest, fees and costs have been paid, without incurring any obligation or liability to Owner or any other person by reason of any such action.

 

7.               OWNER’S OBLIGATIONS. Owner shall provide GiftAMeal with a PDF or JPG of each Restaurant’s logo. Owner shall also place a GiftAMeal window decal, if provided by GiftAMeal, on each Restaurant’s front window.

 

8.               LICENSING. Each party hereby grants to the other party a non-exclusive, non-transferable, worldwide license to use such party’s trademarks, logos, marketing collateral, and all other artwork, graphics, icons, and other branding material and promotional content provided by a party to the other party (hereafter known as “Branding Material”) solely for the purpose of promoting and fulfilling GiftAMeal’s program goal. Additionally, the above-mentioned material may be used for press releases for the purposes of indicating the parties’ business relationship in connection with presentations, marketing materials, and the like. Both parties shall be prohibited from altering or modifying the other party’s Branding Material without the other party’s prior written consent. Both parties agree to use the other party’s material with goodwill and to protect the other party’s rights in accordance with current state and federal trademark law.

 

9.               TERMINATION. The parties’ obligations related to the GiftAMeal App shall remain in full force and effect until the end of the Term, unless earlier terminated under this paragraph. Either party may terminate this Agreement by giving the other party thirty (30) calendar days advance written notice. Restaurant may decide to terminate select locations by giving GiftAMeal thirty (30) calendar days advance written notice. If a Restaurant pays upfront, the payment is non-refundable even in the event of termination. GiftAMeal may immediately terminate its obligations under this Agreement in its sole discretion if Owner has materially breached this Agreement, or if, in GiftAMeal’s sole discretion (a) usage at a Restaurant is irregular, (b) there are security concerns regarding the App’s use at a Restaurant, or (c) a Restaurant’s financial condition, lack of transactions, poor performance as defined by GiftAMeal, or other conditions warrant early termination of this Agreement. Notwithstanding the above, the indemnity and hold harmless, limitation of damages, ownership and confidentiality provisions of this Agreement shall continue after then end of the Term and shall survive termination of this Agreement.

 

10.             NOTICES AND PAYMENT ADDRESS.  Any payment, notice or other communication provided for herein or given hereunder to a party hereto shall be in writing and shall be given either by (a) email or (b) in person, by overnight courier, or by mail (registered or certified mail, postage prepaid, return-receipt requested) to the respective parties as follows:

 

If to GiftAMeal: Email: andrew@giftameal.com | Address: Andrew Glantz, 6985 Snow Way, Box 7510, St. Louis, MO 63130

If to Owner:  The email and address specified on the Sign Up Form

 

11.             GOVERNING LAW. The Agreement shall be governed by and construed in accordance with the laws of the State of Missouri, without giving effect to any choice of law rules or provisions (whether of the state of Missouri or any other jurisdiction) that would cause the application of any other jurisdiction other than the State of Missouri.

 

12.             INDEMNIFICATION AND HOLD HARMLESS.  Owner agrees to defend, hold harmless and indemnify GiftAMeal and any of its members, partners, officers, directors, employees, agents, transferees, affiliates, and assigns from and against any claims, losses, damages, liabilities, costs, expenses (including reasonable attorney fees and related costs), or obligations arising out of or resulting from (a) a third party claim, demand, or suit based, on any persons’ patronage of, entry into, or time spent in, Owner’s Restaurants, including but not limited to ingestion of any item provided by the Restaurants to such persons, food poisoning and/or other personal injury, and (b) claims by third parties against GiftAMeal for the use of Owner’s Branding Material as provided herein. This also holds true for a disclaimer of warranties if the app is unavailable at any time or place. GiftAMeal agrees to defend, hold harmless, and indemnify Owner and any of its members, partners, officers, directors, employees, agents, transferees, affiliates, and assigns from and against claims, losses, damages, liabilities, costs, expenses (including reasonable attorney fees and related costs), or obligations arising out of or resulting from GiftAMeal’s negligent misuse of the Owner’s Branding Material included on the mobile application.

 

13.             CONFIDENTIALITY.  It is agreed that neither the Owner, nor its respective agents and representatives, shall disclose in any manner the terms and conditions of this Agreement to anyone not a party to it.

 

14.             OWNERSHIP.  Any and all software provided by GiftAMeal will remain property of GiftAMeal as will GiftAMeal’s social media.

 

15.             SEVERABILITY.  If any part of this Agreement is not enforceable, the remaining provisions will remain valid and enforceable.

 

16.             EXECUTION IN COUNTERPARTS.  This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to each of the other parties.

 

17.             AGREEMENT CONSTITUTES ENTIRE UNDERSTANDING.  This Agreement and any instrument or document referred to herein, including the GiftAMeal Restaurant Sign Up Form and the ACH / Credit Card Payments Agreement in Exhibit A, if applicable, constitute the entire understanding and the complete and exclusive statement of the terms and conditions of the entire agreement of the parties; the terms hereof cannot be varied, contradicted, explained or supplemented by an oral agreement or representation; and any and all prior agreements, understandings or representations are hereby terminated and cancelled in their entirety and are of no force or effect.

 

18.             AMENDMENTS.  No amendments and/or supplements to this Agreement (other than as specified in this Agreement) shall be valid and binding unless the same be in writing and executed by each party to this Agreement.

 

19.             LIMITATION OF DAMAGES.  Owner and GiftAMeal agree that to the fullest extent permitted by law, all claims for damages of any kind arising out of the Services furnished under this Agreement by GiftAMeal to Owner are limited to the total invoiced dollar value of the Services provided by GiftAMeal and paid by Owner.  GiftAMeal is not responsible for any special, incidental, indirect or consequential damages (including loss of profits) incurred by Owner as a result of GiftAMeal’s performance or nonperformance of Services. Said limitation shall apply regardless of the legal basis for the claim, including but not limited to claims based on breach of contract, negligence, or breach of warranty.

 

20.             AUTHORITY.  The individual signees of this Agreement between GiftAMeal and Owner represent and warrant to the other party that it has full power and authority to enter into this Agreement and to grant the rights granted herein.

EXHIBIT A

ACH / CREDIT CARD PAYMENTS AGREEMENT

 

The undersigned hereby authorizes GiftAMeal, or its designee, to initiate periodic charges to the account specified below for any Fees due by Restaurant under the GiftAMeal Terms and Services Agreement. Restaurant hereby authorizes the financial institution to honor such debit entries or credit card charges. GiftAMeal shall notify Restaurant of the amount due and the scheduled payment date at least seven calendar days prior to initiating any transaction hereunder. Restaurant may stop this automatic payment, or change its designation of card or bank, by notifying GiftAMeal, in writing, at least three business days prior to the scheduled payment date. GiftAMeal will require written confirmation of an oral stop-payment order within fourteen calendar days. Restaurant also authorizes adjustment entries in the event of erroneous transactions. Restaurant agrees to hold GiftAMeal harmless for any expenses, including fees, incurred as a result of its inability to process a scheduled preauthorized transaction due to Restaurant having supplied incorrect information, a stop payment order, or there being insufficient funds or credit in the account. In case any transaction initiated hereunder is rejected for insufficient funds or lack of sufficient credit, Restaurant understands and agrees that GiftAMeal may attempt to process the transaction again at any time within 30 days of the scheduled payment date. If the scheduled payment date falls on a weekend or a banking holiday, the payment will be initiated on the next banking day. Restaurant acknowledges that any ACH debit made under this agreement shall be made in accordance with the National Automated Clearinghouse Association rules, and governed by the laws of the state of Missouri. This agreement shall apply to and amend any and all existing business agreements between the parties solely with respect to the terms for pre-authorized payment.  Any other agreement between Restaurant and GiftAMeal remains in full force and effect.