GiftAMeal Terms & Services Agreement

1.               SERVICES AND LITE PLAN. In consideration for the purchase of a plan, FoodShare, LLC d/b/a GiftAMeal (“GiftAMeal”) shall provide access to the following marketing process to the undersigned restaurant(s) (each a “Restaurant” and collectively, “Restaurants”), according to all of the terms and conditions outlined in this Terms and Services Agreement (“Agreement”): Subject to Section 20 of this Agreement, GiftAMeal will include each Restaurant on the list of restaurants on GiftAMeal’s mobile application (“GiftAMeal App”). After ordering dine-in at a Restaurant, the user (each a “User” and collectively, “Users”) may take a photo of their experience on the GiftAMeal App. Each time a User does this, GiftAMeal shall pay a food bank the amount necessary to fund the distribution of one meal (each a “Meal” and collectively, “Meals”) from the food bank to a local food pantry (estimated 10-33 cents). The User may also share a photo of their experience on select social media outlets to prompt GiftAMeal to fund the distribution of additional meals. Restaurant will be listed on GiftAMeal’s website, provided periodic promotional materials, will have an email (one time) sent to Users that have subscribed to GiftAMeal emails (“Email Subscribers”), and GiftAMeal will provide Restaurant with a monthly update on Meals at Restaurant. (These services are collectively referred to as the “Lite Services”). If Restaurant selects the GiftAMeal Lite Plan (“Lite”), then GiftAMeal will provide Restaurant with all of the Lite Services and will donate a baseline of 50 Meals per month (or 30 Meals per month if the cost per Meal at a given food bank is 50 cents or greater).

2.               STANDARD PLAN. If Restaurant selects the GiftAMeal Standard Plan (“Standard”), then GiftAMeal will provide Restaurant with all of the Lite Services as well as the following additional services if requested by Restaurant, subject to Section 20 of this Agreement: (a) the ability for Users to use GiftAMeal for Restaurant for off-site purchases, (b) featuring on the GiftAMeal’s website through a blog article (if requested by Restaurant), (c) post 1 Tweet and 1 Facebook post (or Instagram post, at GiftAMeal’s discretion) per month on GiftAMeal’s official social media accounts related to Restaurant, (d) send out one email to Email Subscribers (maximum one per quarter), which may also include other GiftAMeal partners’ content, (e) the ability for Users to give a private rating on their experience at Restaurant, (f) the ability for Users that give a positive rating (as determined by GiftAMeal) to be prompted to share their experience on an external review platform (GiftAMeal is not responsible for anything the user posts on external review platforms or if certain review platforms cease to allow GiftAMeal to link directly to their platform), (g) the ability for Users that give a negative rating (as determined by GiftAMeal) to share private feedback for how Restaurant can improve (“Standard Services”). If Restaurant selects Standard, then GiftAMeal will donate a baseline of 100 Meals per month (or 60 Meals per month if the cost per Meal at a given food bank is 50 cents or greater).

3.               PREMIUM PLAN. If Restaurant selects the GiftAMeal Premium Plan (“Premium”), then GiftAMeal will provide Restaurant with all of the Standard Services as well as the following services, subject to Section 20 of this Agreement: (a) featured placement of the closest Premium restaurant to a User’s location at the top of the partner list on the GiftAMeal App, (b) featured placement on GiftAMeal’s App map of partners to differentiate Restaurant from non-Premium GiftAMeal partners, (c) administration of one survey to Users that have provide their email addresses and have used GiftAMeal at Restaurant and provide insights to Restaurant, if requested by Restaurant, (e) access to select User demographics and photo captions, if requested by Restaurant, (f) access to select photos taken by Users at Restaurant, if requested by Restaurant and provided at GiftAMeal’s discretion, (g) donate a baseline of 200 Meals per month (or 120 Meals per month if the cost per Meal at a given food bank is 50 cents or greater) (“Premium Services”) (the Lite Services, Standard Services, and Premium Services collectively shall be the “Services”).


4.               TERM.  The term (“Term”) of this Agreement shall be twelve calendar months commencing on the Start Date. Either party can terminate this Agreement by providing 30 calendar days’ written notice (Restaurant may terminate select locations by giving GiftAMeal 30 calendar days’ specific written notice), in accordance with the provisions of Section 10 of this Agreement.  If at the end of the Term, neither party has provided notice of termination, then the Term will be automatically renewed for another twelve calendar months under the same terms of the previous contract (“Renewal Term”).


5.               FEES.

                  5.1             Restaurant shall pay the amounts set forth in GiftAMeal's then current fee list (“Fees”), as seen on the GiftAMeal Restaurant Sign Up Form (which is incorporated herein by this reference), without setoff, deduction, withholding or allowances. The Fees are subject to change from time to time in GiftAMeal’s sole discretion. GiftAMeal will notify Restaurant of changes to its applicable fee list, and such changes will become effective 30 days following such notice. Restaurant shall make all payments of Fees in accordance with Section 5 of this Agreement. Restaurant 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.  Regardless of form of payment, Restaurant shall make all payments of Fees within 30 calendar days after receipt of GiftAMeal’s invoice.

                  5.2             All Fees and other amounts payable by Restaurant under this Agreement are exclusive of taxes and similar assessments. Restaurant 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 Restaurant hereunder, other than any taxes imposed on GiftAMeal's income. If GiftAMeal has the legal obligation to pay or collect taxes for which Restaurant is responsible under this Agreement, the appropriate amount shall be invoiced to and paid by Restaurant, unless Restaurant gives GiftAMeal a valid tax exemption certificate authorized by the appropriate taxing authority.

                  5.3             If any payment remains outstanding more than 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 the highest rate permitted under applicable law, calculated daily and compounded monthly, whichever is lower;  (b) Restaurant 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 Restaurant or any other person by reason of any such action.

6.               RESTAURANT’S OBLIGATIONS. Restaurant shall provide GiftAMeal with a PDF, PNG, or JPG of each Restaurant’s logo.

7.               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. Restaurant shall be prohibited from altering or modifying GiftAMeal’s Branding Material without GiftAMeal’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.


8.               OWNERSHIP OF TECHNOLOGY.  GiftAMeal is and shall at all times be the sole owner of the GiftAMeal App, including any web-based version thereof, and nothing in this Agreement shall be construed to grant any ownership, right, title, or interest in or to the GiftAMeal App, or any of GiftAMeal’s intellectual property or technology, to Restaurant. GiftAMeal specifically disclaims any and all liability for mistakes, errors, or bugs in coding related to or within the GiftAMeal App. Restaurant specially acknowledges and agrees to this disclaimer and agrees to hold GiftAMeal harmless for any and all issues related to GiftAMeal’s intellectual property or technology.  Restaurant understands and agrees that it is obligated to pay the Fees referenced in Section 5 of this Agreement without exception, and even if issues arise related to technology.


9.               NATURE OF PAYMENTS TO FOOD BANKS AND RESTRICTIONS ON ADVERTISING.  Any and all payments made by GiftAMeal to a food bank under this Agreement, including the payments and funding of meal distribution described in Sections 1-3, shall be made to a food bank of GiftAMeal’s choice, in its sole discretion.  Restaurant shall not advertise or publish in any manner the name of any specific food bank or charity in connection with this Agreement with GiftAMeal, nor shall Restaurant make any statements about tax deductibility. Any and all advertising of Restaurant’s use of the GiftAMeal App shall be in a form approved in writing in advance by GiftAMeal.  GiftAMeal shall not be responsible for Restaurant’s compliance with federal, state, or local law, including with respect to charitable giving, cause-marketing, or registrations of any type.  Restaurant understands and agrees that it will be solely responsible for all legal obligations imposed upon it and its relationship with GiftAMeal by the federal government and its state and local jurisdiction(s).


10.             TERMINATION. The parties’ obligations under this Agreement shall remain in full force and effect until the end of the Term and the Renewal Term, if applicable, unless earlier terminated in accordance with Section 4. Restaurant may terminate this Agreement with 30 days’ notice for any reason or no reason.  GiftAMeal may terminate this Agreement with 30 days’ notice for any reason or no reason, or alternatively, it may immediately terminate this Agreement, in its sole discretion, if: (a) Restaurant has materially breached this Agreement,  (b) usage at a Restaurant is irregular, (c) there are security concerns regarding the GiftAMeal App’s use at a Restaurant, or (d) Restaurant’s financial condition, lack of transactions, poor performance as defined by GiftAMeal, or other conditions warrant early termination of this Agreement. If a Restaurant pays upfront, the payment is non-refundable in the event of termination, regardless of which party terminated the Agreement.  Notwithstanding the above, the provisions of Sections 12-16, and 21 of this Agreement shall continue after the end of the Term and any Renewal Term and shall survive termination of this Agreement.


11.             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 by: (a) email,(b) in person, by overnight courier, or (c) by mail (registered or certified mail, postage prepaid, return-receipt requested) to the respective parties as follows: If to GiftAMeal: Email: | Address: GiftAMeal, 4579 Laclede Ave. #475, St. Louis, MO 63108. If to Restaurant:  The email and address specified on the GiftAMeal Restaurant Sign Up Form


12.             DISCLAIMER OF WARRANTIES.  GiftAMeal does not make any specific warranties or promises about the GiftAMeal App or the Services, including about the functioning of the GiftAMeal App or the Services, or their reliability, accessibility, availability, or ability to meet Restaurant’s needs.  The GiftAMeal App and the Services are provided AS-IS, without any express or implied warranties including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, OR non-infringement.


13.             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’s laws other than the State of Missouri.


14.             INDEMNIFICATION AND HOLD HARMLESS.  Restaurant agrees to defend, hold harmless and indemnify GiftAMeal and any of its members, officers, directors, employees, agents, transferees, affiliates, and assigns from and against any claims, losses, damages, liabilities, costs, expenses (including reasonable attorneys’ fees and related costs), or obligations arising out of or resulting from: (a) a third party claim, demand, or suit based on any person’s patronage of, entry into, or time spent in, Restaurant(s), including but not limited to ingestion of any item provided by Restaurant(s) to such persons, food poisoning and/or other personal injury; (b) claims by third parties against GiftAMeal for the use of Restaurant’s Branding Material as provided herein; (c) any improper (which shall include any advertisement, publication, or statement not approved by GiftAMeal as described in Section 9) or unlawful advertisement, publication, statement, or other marketing document or item issued in relation to this Agreement or Restaurant’s relationship with GiftAMeal or the food banks to which GiftAMeal donates. GiftAMeal agrees to defend, hold harmless, and indemnify Restaurant 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 attorneys’ fees and related costs), or obligations arising out of or resulting from GiftAMeal’s negligent misuse of Restaurant’s Branding Material included on GiftAMeal App.


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


16.             OWNERSHIP.  Any and all software and content provided by GiftAMeal will remain property of GiftAMeal, including but not limited to software and technology integrated into Restaurant’s Technology as described in Section 8.


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


18.             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.


19.             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.


20.             AMENDMENTS.  No amendments and/or supplements to this Agreement (other than as specified in this Agreement, particularly with regard to GiftAMeal’s unilateral ability to modify future Fees) shall be valid and binding unless the same be in writing and executed by each party to this Agreement. Notwithstanding the foregoing, GiftAMeal reserves the right to amend or change the Lite, Standard, and Premium plans, including the offerings or inclusions thereof, at any time in its sole discretion, with or without notice to Restaurant.


21.             LIMITATION OF DAMAGES.  Restaurant 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 Restaurant are limited to the total invoiced dollar value of the Services provided by GiftAMeal and paid by Restaurant. GiftAMeal is not responsible for any special, incidental, indirect or consequential damages (including loss of profits) incurred by Restaurant 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.


22.             AUTHORITY.  Each signatory to this Agreement represents and warrants to the other party that it/he/she has full power and authority to enter into this Agreement and to grant the rights and incur the obligations contemplated herein.