Terms of Service

Checago Coffee Merchants/Admins

BEFORE YOU USE THE CHECAGO COFFEE APP MARKETPLACE, PLEASE READ THESE TERMS CAREFULLY. BY EXECUTING THE SIGN-UP SHEET WITH CHECAGO COFFEE APP OR USING THE PLATFORM, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS ("YOU" OR "MERCHANT") AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO THE TERMS ON YOUR SIGN-UP SHEET.

SECTION 19 OF THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION 19 SETS FORTH OUR ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS. THE ARBITRATION AGREEMENT COULD AFFECT YOUR RIGHT TO PARTICIPATE IN PENDING PROPOSED CLASS ACTION LITIGATION. PLEASE SEE SECTION 19 FOR MORE INFORMATION REGARDING THIS ARBITRATION AGREEMENT, THE POSSIBLE EFFECTS OF THIS ARBITRATION AGREEMENT, AND HOW TO OPT OUT OF THE ARBITRATION AGREEMENT.

1. Definitions.

a.       “Pick-up API” means the Checago Coffee application programming interface (API) that allows the Merchant to exchange information with Checago Coffee App..

c.     “Checago Coffee Data” shall mean any information that Checago Coffee provides or makes accessible to Merchant through the Checago Coffee Platform, including without limitation Personal Information.

d.     e.     “Customer” means the customer who places an order for Merchant Products through the Checago Coffee .

f.      “Checago Coffee Marketplace” means Checago Coffee’s proprietary online communication platform where Customers can view and search for the menus of Merchants and/or place an order for Merchant Products via the Checago Coffee App website or mobile application for pickup by Customer or shipping to the Customer.

g.     “Checago Coffee Platform” means Checago Coffee App Marketplace 

h.     “Checago Coffee Souvenirs” means the platform that enables shipping fulfillment for orders placed directly with the Merchant by the Customer.

i.      “Checago Coffee Services” means Checago Coffee Platform and, Checago Coffee Souvenirs, as applicable.

l.      “Marketplace Orders” means orders for Merchant Products through the Checago Coffee Platform from Customers for pickup or shipping  by Merchant.

m.   “Merchant” means the restaurant or other entity that has agreed to participate in the Checago CoffeeServices.

n.     "Merchant Portal" is an app, accessible at Google Play Store and Apple App Store through which Merchant may and regularly should review and confirm its transactions, fees and charges and account on the Platform.

o.     “Merchant Products” includes all products offered for take-out or shipping orders at Merchant Stores.

p.     “Merchant Stores” means the Merchant restaurant locations that participate in the Checago Coffee Services and includes: (i) Merchant Stores owned and operated by Merchant or its affiliates, and/or (ii) Merchant Stores owned and operated by Franchisees of Merchant or its affiliates.

q.     “Marketplace Term” means the term of the agreement between Checago Coffee and Merchant for the Checago CoffeePlatform .

r.      “PickUp Orders” means orders for Merchant Products through the Checago Coffee Platform from Customers for pickup by the Customer.

s.     “Coffee Near Me” means Customers can view and search for the menus of Merchants and place an order for Merchant Products via the Checago Coffee App Platform for pickup by the Customer.

t.      “Order” means a Marketplace Order, a PickUp Order, or a Checago Coffee Souvenir Order, as applicable.

u.     “Order Equipment '' means and includes any equipment reasonably required by Checago Coffee for Merchant to receive and process Orders, including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders.

v.     “Personal Information” shall mean any information exchanged under this Agreement that (i) identifies or can be used to identify an individual (including without limitation, names, telephone numbers, addresses, signatures, email addresses or other unique identifiers); or (ii) that can reasonably be used to authenticate an individual (including without limitation, name, contact information, precise location information, access credentials, persistent identifiers and any information that may be considered ‘personal data’ or ‘personal information’ under applicable law).

w.    “Commission Rate” means the commission fees collected by Checago Coffee in exchange for promoting and featuring the Merchant and Merchant Store(s) on the Checago Coffee Platform, which is charged as a percentage of revenues transacted on the Checago Coffee Platform.

y.     “Terms” means the provisions herein.

z.      “Third Party Platform” means a technology interface, such as a middleware technology platform, other than the online order form and the Checago Coffee Souvenirs API that enables Merchant to request Shipping fulfillment and provide information necessary to enable such shipping fulfillment.

2. The Parties' Relationship. Checago Coffee provides an app marketplace platform using app-based technology that connects Merchants and Customers ("Platform"), as described in these Terms for Checago Coffee Platform and Checago Coffee Souvenirs Merchant and Checago Coffee App agree they are independent businesses whose relationship is governed by the Sign-Up Sheet and these Terms. Nothing in the Parties' agreements, relationship or transactions shall create or be construed as creating an agency, partnership, fiduciary or joint venture relationship between Checago Coffee and Merchant (or Merchant's employees, representatives or locations) and Customers. Except as expressly set forth in the Sign-Up Sheet and these Terms, each Party shall be responsible for its own expenses, profits and losses.

3. Checago Coffee App Platform Core Responsibilities. For Merchants that have agreed to participate in the Checago Coffee App Platform, shall have the following responsibilities during the Marketplace Term:

a.    Checago Coffee App Core Responsibilities. Checago Coffee will, in a timely manner:

                                         i.        Display Merchant’s logo; a listing of the Merchant Stores; and a menu of Merchant Products on the Checago Coffee App Platform;

                                         ii.        Accept Marketplace Orders from Customers;

                                        iii.        Forward each Marketplace Order to the relevant Merchant Store;

                                        iv. Pay the Merchant in accord with the Parties' agreements, deduct the applicable Commission Rate, marketing fees (for identifiable orders), subscription fees,  Activation Fees, and any other fees (in each case, as may be adjusted by Checago Coffee App as required by any applicable statute, regulation, executive order, or other legal requirement that is either temporary or  permanent in nature). 

b.    Merchant Core Responsibilities. Merchant will, in a timely manner:

                                          i.        Provide Checago Coffee with the Merchant’s in-store or take-out menu, including the price of each item on such menu;

                                         ii.        Monitor Merchant’s menu and store information on the Checago Coffee Platform, promptly make updates via the Merchant Portal to reflect the most up-to-date products, pricing and other information or immediately notify Checago Coffee of any errors or changes in writing;

                                        iii.        Accept all Marketplace Orders placed through Checago Coffee App from Merchant’s then-current menu;

                                       iv.        Confirm all Marketplace Orders from Checago Coffee App;

                                        v.        Prepare the Merchant Products for each Marketplace Order for pickup by a Customer at the designated time;

                                       vi.        Process Marketplace Orders in the order in which they are received;

                                      vii.        Notify Checago Coffee App of any changes to the pricing, availability, description, or other characteristics of the Merchant Products;

                                     viii.        Notify Checago Coffee App of its days and hours of operation, and remain open for business on Checago Coffee App the same days and hours of operation as Merchant’s in-store business; notify Checago Coffee App of any changes to Merchant’s hours of operations on holidays; and notify Checago Coffee App if Merchant closes earlier than Merchant’s standard hours of operation or plans to close earlier than Merchant’s standard hours of operation;

                                       ix.        Notify all Merchant store staff members of the relationship with Checago Coffee App immediately upon execution of this Agreement;

                                         x.        Provide the same utensils, napkins, bags and other materials that Merchant would typically provide in a standard take-out or delivery order, subject to Section 15(3)(i);

                                       xi.        On an ongoing basis, review and confirm the transactions, fees and charges on orders via the Merchant Portal, and promptly communicate to Checago Coffee App any inaccuracies; and

                                      xii.        If Checago Coffee App passes tips from Customers to Merchant, Merchant will distribute such tips in accordance with applicable law, including but not limited to tip pooling laws.

4.    Checago Coffee App Souvenirs Core Responsibilities. For Merchants that have agreed to participate in Checago Coffee App Souvenirs and Merchant shall have the following responsibilities during the Shipping Fulfillment Process:

a.   Checago Coffee App Core Responsibilities. Checago Coffee App will, in a timely manner:

                                          i.        Provide Merchant with an online order form or access to the Checago Coffee Souvenirs API to submit requests for deliveries, or receive information through a Third Party Platform;

                                         ii.        Forward requests to Merchants, so that the Merchants can package the applicable Merchant Product(s) from the Merchant Store to deliver to the Customer.

b.    Merchant Core Responsibilities. Merchant will:

                                       i.       Via the app order form, the Checago Coffee Souvenir API, or a Third Party Platform, provide information requested by Checago Coffee App including the Customer’s address, contact information, and any special instructions required for delivery; 

                                         ii.        Accept and collect payments from Customers for their respective orders;

                                       iii.      Notify Customers prior to placing a Checago Coffee Souvenir Order that their telephone numbers and other personal contact information will be shared with Checago Coffee to enable deliveries to be made by USPS and, in connection with the applicable deliveries, request the Customer’s consent to receive delivery status updates by e-mail, text messages, and telephone calls from Checago Coffee and Merchant;

                                  iv.       Notify Checago Coffee if a Customer has not consented to receive delivery updates or has placed any restrictions on types of delivery updates such Customer consents to receive (e.g., no texts). Merchant hereby consents to receiving text messages and email confirmations from Checago Coffee providing status updates and delivery confirmations in connection with each delivery.

                                         v.          On an ongoing basis, review and confirm the transactions, fees and charges on invoices and via the Merchant Portal, and promptly communicate to Checago Coffee any inaccuracies.

c.   Souvenir Shipping Operating Procedures.

                                     i.        Order Placement. Merchant agrees to mail a Checago Coffee Souvenir Order for delivery fulfillment at least twenty-four (24) hours after order has arrived through the Checago Coffee Merchant Portal..

                                    ii.        Cancellations. Fees owed for any Checago Coffee Pick Up Orders or Checago Coffee Souvenirs cancelled within twenty-four (24) hours of a Schedule for Later delivery are non-refundable. If provided more than two (2) hours notice, but less than twenty-four (24) hours notice, Checago Coffee  will make reasonable efforts to accommodate changes..

                                        v.        Notification. Merchant agrees to notify all staff members in Merchant Stores of Merchant’s relationship with Checago Coffee prior to processing any delivery requests from Checago Coffee 

5.     PickUp Program Core Responsibilities. For Merchants that have agreed to participate in the PickUp Program, during the term of the PickUp Program, Checago Coffee will have the same responsibilities as set forth in Section 3(a)(i) - 3(a)(iii) and Merchant will have the same responsibilities as set forth in Section 3(b)(i) - (xii). Furthermore, once Checago Coffee  enables the ability for Merchant to set different prices for Merchant Products under the PickUp Program than the prices for such Merchant Products for delivery, Merchant shall ensure that pricing of Merchant Products under the PickUp Program is not greater than the pricing of the same Merchant Products for pickup (a) in-store and (b) on any other third party food ordering and/or delivery platform. Checago Coffee  will apply the PickUp Commission Rate listed in this Agreement on PickUp Orders placed by Customers under the PickUp Program.

6.     Refunds and Re-Orders. Refunds and re-orders will be addressed as follows:

a.    Marketplace Order Refunds. In the event that Checago Coffee , in its sole reasonable discretion, has to issue a refund, credit or re-order on an Customer’s Order, Merchant will prepare the food to the same specifications as the original Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order, as applicable, unless the refund, credit or re-order is due to the fault of Checago Coffee.

b.    Checago Coffee Souvenir Order Refunds. Merchant acknowledges and agrees that Merchant  shall be responsible for facilitating the delivery of Merchant Product(s) to USPS. Merchant shall be solely responsible for any customer complaints regarding Merchant Product(s), including without limitation, complaints regarding the nature, quality, content, number, or packaging of Merchant Product(s). Merchant agrees not to refer any Customer complaints directly to Checago Coffee. Any complaints regarding the timeliness or quality of USPS delivery service shall be reported by Merchant to Checago Coffee . If Merchant elects to refund a Customer for any reason, such election shall not obligate Checago Coffee  to provide a corresponding reimbursement to Merchant. In the event that a Merchant Product has been visibly damaged with proof from Customer, Checago Coffee  may reimburse Merchant for all or a portion of the order subtotal. For the purposes of this agreement, “Merchant Product” is the actual food or beverage item, not the packaging that contains the Merchant Product. In no event shall Checago Coffee  be obligated to issue any refunds directly to Customers.

c.     PickUp Order Refunds. Checago Coffee  shall be responsible for customer support issues relating to the ordering of Merchant Products and issues relating to an Customer’s Checago Coffee  account. All other customer issues or complaints will be Merchant’s sole responsibility. In the event that Checago Coffee, in its sole discretion, determines to issue a refund, credit or re-order for an Customer’s Order, Merchant will prepare the food to the same specifications as the original PickUp Order (in the case of a re-order) and bear the full cost of that refund, credit or re-order.

7.     Order Equipment. With respect to the Checago Coffee  Platform, Merchant will install any equipment reasonably required by Checago Coffee  for Merchant to receive and process Orders (including, without limitation, a tablet, fax machine, or other automated, electronic means of receiving Orders) (“Order Equipment”). If any Order Equipment is provided by Checago Coffee , Merchant will pay Checago Coffee an Order Equipment Fee, as set forth in the Sign-Up Sheet, in exchange for the right to use the Order Equipment to access the Checago Coffee  Platform in order to receive, process, and accept Marketplace and PickUp Orders. Any Order Equipment provided by Checago Coffee  will remain Checago Coffee ’s sole property and may be used solely for purposes related to fulfilling Merchant’s responsibilities under this Agreement. Merchant will inspect all hardware, and shall notify Checago Coffee  in writing if any Order Equipment is missing or was damaged as soon as practicable after discovering such damage. Checago Coffee  may restrict or rescind Merchant’s right to use the v Platform at any time. Merchant will be responsible for any damage to or loss of any Order Equipment provided by Checago Coffee  (excluding ordinary wear and tear), which will be promptly reimbursed by Merchant (at the replacement cost thereof). Checago Coffee  may recover the replacement cost of damaged or lost Order Equipment by deducting such amount from weekly payments. Merchant agrees to pay all subscription fees and deposits reasonably charged by Checago Coffee for Order Equipment, and agrees Checago Coffee may deduct such fees and deposits from amounts payable by Checago Coffee  to Merchant.

8.     Payment, Fees, Title and Taxes. Payment, fees, and taxes shall be addressed as follows::

a.   Checago Coffee Platform. Checago Coffee  will pay for Marketplace and Souvenir Orders fulfilled by Merchant each week on a consistent day of the week, subject to change with no less than 10 days’ notice to Merchants by email or service notification. Checago Coffee  shall be entitled to deduct from such payments Checago Coffee ’s Commission Rate, marketing fees (for identifiable orders), Activation Fees, subscription fees, and any other fees which Checago Coffee  may notify you regarding with at least 7 days advance written notice. If Merchant has opted for Checago Coffee h to provide Order Equipment, Checago Coffee  will also deduct a weekly Order Equipment Fee, as set forth on the Sign-Up Sheet, in exchange for the Merchant’s right to use the Order Equipment to access the Checago Coffee  Platform in order to receive, process, and accept Orders. Merchant agrees Checago Coffee sh may charge the Customer fees, including but not limited to a Delivery Fee, Service Fee, Surcharge Fee, and Small Order Fee where applicable in Checago Coffee 's sole discretion. Merchant shall be responsible for all taxes, duties, and other governmental charges on the sale of Merchant Products and for remitting such taxes, duties, and other governmental charges to the appropriate authorities. In the event that Merchant raises the price for a menu item, Checago Coffee  shall not be required to remit the higher price to the Merchant until 3 business days after the Merchant first provides notice to  Checago Coffee  of such pricing change.        

c.    To the extent that a third party provider provides services to Merchant via the Platform (for example, a middleware provider) and charges fees to Checago Coffee, Checago Coffee  may pass through such third party’s fees to Merchant.

d.    In some jurisdictions in the United States,Checago Coffee  may be required to collect sales, use, or similar taxes from the Customer and remit such taxes directly to the tax authority. In such jurisdictions, Checago Coffee will inform Merchant that Checago Coffee  will remit Collected Taxes to the tax authority and Checago Coffee will be relieved of any responsibility to remit such Collected Taxes to Merchant.

e.    Merchant agrees, on an ongoing basis, to review and confirm its transactions, fees and charges on orders and invoices and via the Merchant Portal, and to promptly communicate to Checago Coffee in writing any claimed inaccuracies, so that Checago Coffee  has the prompt opportunity to address and resolve any issues and so such issues do not persist, which Checago Coffee and Merchant agree is in the best interests of both parties and their commercial relationship. Merchant agrees to communicate to Checago Coffee  any disagreement, non-conformity or any issue with any transaction, fee, charge or order within 60 days of the transaction, fee or order. Merchant shall be deemed to have acquiesced in and ratified, and to have waived any claim or objection regarding, each transaction, fee, charge and order if Merchant does not communicate a written claim or objection to Checago Coffee  regarding such transaction, fee, charge or order within such 60-day period.

f.      Merchant agrees that Merchant holds title to the goods or products that Merchant provides through the Platform until the goods are picked up from Merchant, and that title passes from the Merchant to the Customer upon pickup at the Merchant’s location. Merchant agrees that Checago Coffee  holds title to or acquires any ownership interest in any goods or products that Merchant prepares or provides through the Platform.

9.     Payment Processing. Payment processing services for Merchants on the Checago Coffee  Platform are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Services Agreement. By agreeing to these Terms, Merchant agrees to be bound by the Stripe Connected Account Agreement and the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of Checago Coffee  enabling payment processing services through Stripe, Merchant agrees to provide Checago Coffee  accurate and complete information about Merchant’s representative and its business, and Merchant authorizes Checago Coffee to share it and transaction information related to Merchant’s use of the payment processing services provided by Stripe. Stripe has been audited by a PCI-certified auditor and is certified to PCI Service Provider Level 1.

10. Merchant Content and Trademark; Photographs of Menu Items.

a.    During the Marketplace Term Merchant grants to Checago Coffee  a royalty-free, non-exclusive, limited, revocable, non-transferable, non-sublicensable right and license to use and display the Merchant Content in the provision of services to Merchant, including listing Merchant as a merchant on the Checago Coffee Platform, referencing Merchant as a Checago Coffee  partner, and to promote Checago Coffee ’s products and services. As used herein, “Merchant Content” includes, without limitation, menus, photographs (either provided by Merchant or on Merchant’s website), trademarks, logos and other materials provided by Merchant toChecago Coffee

b.    If photographs of Merchant’s menu items are not available or if they do not meet Checago Coffee ’s requirements, as reasonably determined by Checago Coffee, then Merchant consents to Checago Coffee  (i) engaging a professional photographer to take photographs of Merchant’s menu items (ii) enhancing the quality of Merchant’s existing photographs or (iii) using stock photos of the menu item, and displaying such photographs on the Checago Coffee  Platform as representations of Merchant’s menu items; provided that Merchant may contact Checago Coffee support to have such photographs removed from the Merchant’s store listing and, in such event, Checago Coffee  will comply in a timely manner.

11. Confidential Information.

a.    The term “Confidential Information” shall mean any confidential or proprietary business, technical or financial information or materials of a party (“Disclosing Party”) provided to the other party (“Receiving Party”) in connection with this Agreement, whether orally or in physical form, and shall include the terms of this Agreement. Without limiting the foregoing, Checago Coffee Data is the Confidential Information of Checago Coffee 

b.    Confidential Information does not include information that: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed to the Receiving Party in connection with this Agreement; (ii) was or becomes public domain other than by the fault of the Receiving Party; (iii) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not at the time under any obligation to maintain its confidentiality; or (iv) the Receiving Party can demonstrate by documentary records was independently developed by the Receiving Party without access to, use of or reference to any Confidential Information.

c.    The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations in accordance with this Agreement; (ii) except subject to its compliance with Section 11(d), not disclose or permit access to Confidential Information other than to its or any of its employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (“Representatives”) who need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement, and prior to any such disclosure are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section; and (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its most/similarly sensitive information and in no event less than a reasonable degree of care.

d.    If the Receiving Party is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall promptly notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 11(c) and provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, in opposing or seeking protective limitations on disclosure.

12. Data Privacy and Security.

a.     General. Merchant agrees not to access, collect, store, retain, transfer, use, disclose, or otherwise process in any manner Checago Coffee Data, including without limitation Personal Information, except as required to perform under this Agreement. Merchant shall keep Checago Coffee Data secure from unauthorized access and maintain the accuracy and integrity of Checago Coffee Data in Merchant’s custody or control by using appropriate organizational, physical and technical safeguards. If Merchant becomes aware of any unauthorized access to Checago Coffee Data, Merchant will immediately notify Checago Coffee, consult and cooperate with investigations and potentially required notices, and provide any information reasonably requested by Checago Coffee. Merchant agrees to implement and use security procedures, protocols or access credentials as reasonably requested by Checago Coffee  and will be responsible for damages resulting from Merchant’s failure to comply. Merchant will not allow any third party to use the Checago Coffee  Platform and will be responsible for damages resulting from sharing Merchant’s login credentials with unauthorized third parties or otherwise permitting unauthorized access to Merchant’s account. Merchants may not allow any third party to copy, modify, rent, lease, sell, distribute, reverse engineer, or otherwise attempt to gain access to the source code of the Checago Coffee Platform; damage, destroy or impede the services provided through the Checago Coffee Platform; transmit injurious code; or bypass or breach any security protection on the Checago Coffee  Platform.

b.     Souvenir API. During the Term, Checago Coffee  grants to Merchant a non-exclusive, royalty-free, non-assignable, non-transferable, non-sublicensable, revocable, limited, fully paid-up license to access the Souvenir API solely to transmit information to facilitate the Checago Coffee Souvenir services. Merchant will not and will not permit or authorize any third party to (i) sell, license, rent, resell, lease, assign (except as permitted herein), transfer, or otherwise commercially exploit the Souvenir API; (ii) circumvent or disable any security or other technological features or measures of, or otherwise gain or attempt to gain unauthorized access to the Souvenir API; (iii) reverse engineer, dissemble, decompile, or otherwise attempt to derive the source code or the underlying ideas, algorithms, structure, or organization of the Souvenir API; (iv) use the Souvenir API in any manner or for any purpose that violates any law or regulation; and (v) use the Souvenir API for a reason other than as specifically provided or intended under this Agreement. Each Party agrees not to perform any action with the intent of introducing to the other Party’s systems, products, or services (including the Souvenir API) any viruses, worms, defect, Trojan horses, malware, or any items of a destructive nature.

13.   Termination. Merchant may terminate this Agreement for any reason at any time upon seven (7) days prior written notice. Checago Coffee may terminate this Agreement or any promotion under this Agreement for any reason at any time upon written notice. Email shall suffice for written notice. Neither Merchant nor Checago Coffee 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 for any expenditures, investments, leases or commitments made by either Merchant or Checago Coffee .

14.   Modifications. Checago Coffee  reserves the right, at its sole discretion, to change, suspend, or discontinue the Platform (including without limitation, the availability of any feature or content) at any time. Checago Coffee  may, at its sole discretion, remove Merchant Products or Stores from the Checago Coffee  Platform if Checago Coffee determines that such Merchant Product or Merchant Store could subject Checago Coffee  to undue regulatory risk, health and safety risk, or other liability. Checago Coffee also 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 checagocoffee.com We will notify Merchants of material revisions via a service notification or an email to the email address 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.

15. Representations and Warranties; Additional Responsibilities; Warranty Disclaimer.

• 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.

• Each party represents and warrants that it will comply with all applicable laws and regulations in its performance of this Agreement, including without limitation (i) all applicable data protection and privacy laws, and (ii) all applicable laws related to third party intellectual property and other proprietary rights.

• Merchant further represents, warrants and agrees that (i) it will comply with all applicable laws, rules, standards and regulations relating to licenses, health , food packaging and accessory items (including but not limited to foodware, plasticware, and other disposable restaurant supplies), and food safety and sanitation, (ii) it has informed Checago Coffee  of any required consumer-facing warnings, charges, opt-in requirements, and instructions associated with Merchant Product(s) and it will inform Checago Coffee  of any such warnings, charges, opt-ins, and instructions that become required in the future, (iii) it will disclose common allergens in any Merchant’s menu items listed on the Checago Coffee  Platform, (iv) it will only list menu items or products for sale, product descriptions, and prices on the Checago Coffee  Platform,  (v) it will not include any age-restricted products (including but not limited to alcohol and tobacco) in Merchant’s menus on the Checago Coffee Platform or request delivery of any age-restricted products through the Checago Coffee Platform without first entering into a separate agreement with Checago Coffee  memorializing the promotion, sale and delivery of such products in compliance with the laws of the applicable state in which such products will be sold, (vi) it will not disclose any information related to a Customer to a third party (except as required to comply with law or pursuant to a court order), (vii) it will comply with the guidelines Checago Coffee  publishes that govern any content Merchant posts on the Checago Coffee Platform or Merchant Portal, and  (viii) it will comply with its obligations under Section 4(b)(iii) and 4(b)(iv) of this Agreement.

• EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE EXTENT PERMITTED BY APPLICABLE LAW, Checago Coffee H HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE Checago Coffee PLATFORM, THE SOUVENIR API, EQUIPMENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, SATISFACTORY QUALITY OR RESULTS, OR FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Merchant acknowledges that the operation of the Platform may from time to time encounter technical or other problems and may not necessarily continue uninterrupted or without technical or other errors and Checago Coffee  shall not be responsible to Merchant or others for any such interruptions, errors, or problems or an outright discontinuance of the Platform nor for any guarantee of results with respect to the Checago Coffee services or Platform. Both Parties acknowledge that neither party has any expectation or 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.

16.   Indemnification. Each party (the “Indemnifying Party”) will defend, indemnify, 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 and all claims, damages, losses and expenses (including reasonable attorney’s fees) (collectively “Losses”) with respect to any third-party claims arising out of or related to: (i) any bodily injury (including death) or damage to tangible or real property to the extent caused by the Indemnifying Party’s personnel and, in the case of Checago Coffee , (or, in the case of Merchant as the Indemnifying Party, caused by the Merchant Products); (ii) any claims that the Indemnifying Party breached its representations, warranties or covenants set forth in Section 11 and Section 12, and Section 15 of this Agreement; (iii) the violation of the intellectual property of the third party by the Indemnifying Party’s logos, trademarks, trade names, menus, documentation, or other intellectual property (collectively, “Materials”); or (iv) in the case of Merchant as the Indemnifying Party, Merchant’s failure to distribute tips as required by applicable law. In addition, Merchant will defend, indemnify and hold harmless Checago Coffee  from any and all Losses related to any violation or alleged violation of any applicable retail food or other health and safety code, rule, or regulation related to Merchant Product(s), except to the extent such Losses were caused directly by the gross negligence or willful misconduct of Checago Coffee . In each case the Indemnified Party shall provide the Indemnifying Party with (a) prompt notice of any claims such that the Indemnifying Party is not prejudiced by any delay of such notification, (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). The Indemnified Party may participate in the defense or settlement of such a claim with counsel of its own choice and at its own expense; however, the Indemnifying Party shall not enter into any settlement agreement that imposes any obligation on the Indemnified Party without the Indemnified Party’s express prior written consent. Checago Coffee  assumes no liability, and shall have no liability, for any infringement claim pursuant to section 16(iii) above based on Merchant’s access to and/or use of the Checago Coffee Platform following notice of such an infringement claim; any unauthorized modification of the Checago Coffee  Platform by Merchant; or Merchant’s combination of the Checago Coffee  Platform with third party programs, services, data, hardware, or other materials which otherwise would not result in such infringement claim.

17.   Limitation of Liability. EXCEPT WITH RESPECT TO DAMAGES ARISING FROM VIOLATIONS OF LAW OR WILFUL MISCONDUCT, UNPAID AMOUNTS OWED TO Checago Coffee BY MERCHANT IN EXCESS OF THE BELOW LIMIT, AND AMOUNTS PAYABLE TO THIRD PARTIES UNDER SECTION 16 (INDEMNIFICATION), TO THE EXTENT PERMITTED BY APPLICABLE LAW, (I) NEITHER PARTY WILL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT, FOR INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST REVENUES, HARM TO GOODWILL, OR THE COSTS FOR PROCURING REPLACEMENT SERVICES, WHETHER BASED ON TORT, CONTRACT OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) EACH PARTY’S MAXIMUM AGGREGATE LIABILITIES RELATED TO OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT PAID OR PAYABLE BY ONE PARTY TO THE OTHER PARTY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

18.   Insurance. During the term of the Agreement and for one year after, each party will maintain adequate insurance in amounts not less than as required by law or that is common practice in such party’s business. Upon request, each party will provide the other with current evidence of coverage. Such insurance shall not be cancelled or materially reduced without thirty (30) days prior written notice. In no event shall the limits of any insurance policy be considered as limiting the liability of a party under this Agreement.

19.   Dispute resolution

The formation, interpretation, and performance of this Agreement and any disputes arising out of it shall be governed by the substantive and procedural laws of Illinois, United States without regard to its rules on conflicts or choice of law and, to the extent applicable, the laws of United States. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the courts located in Illinois, United States, and you hereby submit to the personal jurisdiction of such courts. You hereby waive any right to a jury trial in any proceeding arising out of or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

 Dispute Resolution. PLEASE READ THE FOLLOWING SECTION CAREFULLY. IT REQUIRES YOU TO ARBITRATE DISPUTES WITH Checago Coffee AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF. THIS SECTION 19 OF THIS AGREEMENT SHALL BE REFERRED TO AS THE “ARBITRATION AGREEMENT”.

• Scope of Arbitration Agreement. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or Checago Coffee may seek injunctive relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). Checago Coffee and Merchant agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this Arbitration Agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. In that regard, this Arbitration Agreement shall be binding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. CASES HAVE BEEN FILED AGAINST Checago Coffee —AND OTHERS MAY BE FILED IN THE FUTURE—THAT ATTEMPT TO ASSERT CLASS ACTION CLAIMS, AND BY ACCEPTING THIS ARBITRATION AGREEMENT YOU ELECT NOT TO PARTICIPATE IN SUCH CASES. IF YOU AGREE TO ARBITRATION WITH Checago Coffee , YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY SUCH CLASS, COLLECTIVE, AND/OR REPRESENTATIVE LAWSUIT. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST Checago Coffee  IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. 

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• Informal Resolution. You and Checago Coffee  agree that good-faith informal efforts to resolve disputes often can result in a prompt, low-cost and mutually beneficial outcome. You and Checago Coffee  therefore agree that, before either you or Checago Coffee  demands arbitration against the other, we will personally meet and confer, via telephone or videoconference, in a good-faith effort to resolve informally any claim covered by this mutual Arbitration Agreement. If you are represented by counsel, your counsel may participate in the conference, but you shall also fully participate in the conference. The party initiating the claim must give notice to the other party in writing of its, his, or her intent to initiate an informal dispute resolution conference, which shall occur within 60 days after the other party receives such notice, unless an extension is mutually agreed upon by the parties. To notify Checago Coffee  that you intend to initiate an informal dispute resolution conference, email founders@checagocoffee.com, providing your name, telephone number associated with your Checago Coffee  account (if any), the email address associated with your Checago Coffee account, and a description of your claim. In the interval between the party receiving such notice and the informal dispute resolution conference, the parties shall be free to attempt to resolve the initiating party’s claims. Engaging in an informal dispute resolution conference is a requirement that must be fulfilled before commencing arbitration.  The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the informal dispute resolution process required by this paragraph.

• (f)WE EACH AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Further, you agree that the arbitrator may not consolidate proceedings or more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding, and that if this specific proviso is found to be unenforceable, then the entirety of this arbitration clause shall be null and void. If for any reason a claim proceeds in court rather than in arbitration, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.  If a court of competent jurisdiction finds the foregoing arbitration provisions invalid or inapplicable, you and we each agree to the exclusive jurisdiction and the exercise of personal jurisdiction of the state or federal court located in the Commonwealth of Massachusetts for the purpose of litigating all claims or disputes, and waive any objection as to inconvenient forum. We also both agree that Checago Coffee  may bring suit in court for injunctive relief to enjoin infringement or other misuse of intellectual property rights.

• (g) Arbitrator Powers. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and the Company. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including this Arbitration Agreement). The arbitrator will issue a written statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on you and the Company.

• (h) Waiver of Jury Trial. YOU AND THE COMPANY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. You and the Company are instead electing to have claims and disputes resolved by arbitration, except as specified in section 12(a) above. There is no judge or jury in arbitration, and court review of an arbitration award is limited.

• (i Waiver of Class or Consolidated Actions. YOU AND THE COMPANY AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor the Company is entitled to arbitration of such claim or dispute. Instead, all such claims and disputes will then be resolved in a court as set forth in Section 13.

• (j) Opt Out. You may opt out of this Arbitration Agreement. If you do so, neither you nor the Company can force the other to arbitrate as a result of this Agreement. To opt out, you must notify the Company in writing no later than 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Checago Coffee App username (if any), the email address you used to set up your Checago Coffee App account (if you have one), and a CLEAR statement that you want to opt out of this Arbitration Agreement. You must send your opt-out notice to: checagocoffee@gmaiil.com If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may have entered into with us or may enter into in the future with us. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NOTHING IN THIS AGREEMENT SHALL SUPERSEDE, AMEND, OR MODIFY THE TERMS OF ANY SEPARATE AGREEMENT(S) BETWEEN YOU AND THE COMPANY RELATING TO YOUR WORK AS AN EMPLOYEE OR INDEPENDENT CONTRACTOR, INCLUDING WITHOUT LIMITATION.

• (k) Survival. This Arbitration Agreement will survive any termination of your relationship with the Company.

• (l) Modification. Notwithstanding any provision in the Agreement to the contrary, we agree that if the Company makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice of to the Company.

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20. Litigation Class Action Waiver. To the extent allowed by applicable law, separate and apart from the Mutual Arbitration Provision found in Section 19, Merchant agrees that any proceeding to litigate in court any dispute arising out of or relating to this Agreement, whether because Merchant opted out of the Arbitration Provision or any other reason, will be conducted solely on an individual basis, and Merchant agrees not to seek to have any controversy, claim or dispute heard as a class action, a representative action, a collective action, a private attorney-general action, or in any proceeding in which Merchant acts or proposes to act in a representative capacity (“Litigation Class Action Waiver”). Merchant further agrees that no proceeding will be joined, consolidated, or combined with another proceeding, without the prior written consent of all parties to any such proceeding. If a court of competent jurisdiction determines that all or part of this Litigation Class Action Waiver is unenforceable, unconscionable, void or voidable, the remainder of this Agreement shall remain in full force and effect.

21.   Franchisees. Franchisees operating a branded restaurant or store concept licensed by Merchant may participate in the Program pursuant to the terms and conditions of this Agreement provided that the individual franchisee: (1) is in compliance with its franchise agreement; and (2) enters into an agreement in substantially the same form as the Supplemental Agreement provided by Checago Coffee to the Franchisee. Unless the parties mutually agree otherwise in writing, all Merchant owned branded restaurant(s) and store concept(s) shall be included and subject to the terms hereunder.

22.  Communications from Checago Coffee. Merchant agrees to accept and receive communications from Checago Coffee, including via email, text message, calls, and push notifications to the cellular telephone number Merchant provides to Checago Coffee. Merchant acknowledges that Merchant may receive communications generated by automatic telephone dialing systems and/or which will deliver prerecorded messages sent by or on behalf of Checago Coffee, its affiliated companies 

23.  Attorneys’ Fees. In any legal action to enforce the terms of this Agreement, the prevailing party in such action shall be entitled to recover its reasonable attorneys’ fees and costs from the other party.

24.  General Provisions. As set forth on the Sign-Up Sheet between Merchant and Checago Coffee, the Sign-Up Sheet and these Terms constitute an integrated Agreement between the parties, which supersedes all prior agreements and communications of the parties, oral or written, with respect to the subject matter hereof. The rights and obligations set forth in these Terms, which by their nature should, or by their express terms do, survive or extend beyond the termination or expiration of these Terms shall so survive and extend. This Agreement is governed by and interpreted in accordance with the laws of the State of Illinois without regard to the conflicts of laws principles thereof. Merchant agrees that, except as set forth above in Section 19 (“Dispute Resolution”), the parties hereby consent to exclusive jurisdiction in the courts of the Merchant’s location. Merchant may not assign this Agreement in whole or in part without Checago Coffee’s prior written consent. Checago Coffee may freely assign this Agreement. This Agreement is binding upon, and inures to the benefit of, the employees, representatives, agents, affiliates, franchisors, franchisees, and permitted successors and assigns of each party, but shall not confer any rights or remedies upon any third party. All notices, requests, consents and other communications under the Parties' agreements 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.

Assignment

You may not assign, resell, sub-license or otherwise transfer or delegate any of your rights or obligations hereunder, in whole or in part, without our prior written consent, which consent shall be at our own sole discretion and without obligation; any such assignment or transfer shall be null and void. We are free to assign any of its rights or obligations hereunder, in whole or in part, to any third party as part of the sale of all or substantially all of its assets or stock or as part of a merger.

Changes and amendments

We reserve the right to modify this Agreement or its terms relating to the Mobile Application and Services at any time, effective upon posting of an updated version of this Agreement in the Mobile Application. When we do, we will send you an email to notify you. Continued use of the Mobile Application and Services after any such changes shall constitute your consent to such changes.

Acceptance of these terms

You acknowledge that you have read this Agreement and agree to all its terms and conditions. By accessing and using the Mobile Application and Services you agree to be bound by this Agreement. If you do not agree to abide by the terms of this Agreement, you are not authorized to access or use the Mobile Application and Services.

Contacting us

If you would like to contact us to understand more about this Agreement or wish to contact us concerning any matter relating to it, you may send an email to founders@checagocoffee.com.

Effective: March 10, 2021

Refund policy

Since the Mobile Application offers non-tangible, irrevocable goods we do not provide refunds after the product is purchased, which you acknowledge prior to purchasing any product in the Mobile Application.

You may however sign up for a free fully functioning 30 day trial and try the service before making a purchase.

Contacting us

If you would like to contact us concerning any matter relating to this Refund Policy, you may send an email to founders@checagocoffee.com

This document was last updated on March 10, 2021