Merchant-Funded Promotions Terms and Conditions – U.S.
Last Updated: October 14, 2019
These Restaurant-Funded Promotions Terms and Conditions (“Restaurant Promo Terms”) are expressly incorporated into and made a part of your (“you”, or “Restaurant”) Yesmeal Agreement (either an Order Form or a Master Framework Agreement, the “Restaurant Agreement”) with Proton Technology, LLC or one of its affiliates (“Proton” or “Yesmeal”) and, together with the terms of the Restaurant Agreement, shall constitute a separate, enforceable agreement between Proton and you. In the event of any conflict between these Restaurant Promo Terms and the Restaurant Agreement, these Restaurant Promo Terms shall govern as applied to the subject matter herein. Subject to the foregoing, undefined, capitalized terms in these Restaurant Promo Terms will have the meaning set forth in the Restaurant Agreement.
Together with the Restaurant Agreement, these Restaurant Promo Terms govern the Restaurant’s ability to offer Promotions (as defined below) to your customers through the Yesmeal Platform. Proton and its affiliates may create additional posted guidelines, rules, and terms and conditions applicable to a Promotion, which when posted will hereby be immediately incorporated by reference into these Restaurant Promo Terms.
By creating, offering and funding Promotions, (whether through the Promotion Tools (as defined below) or by filling out and returning the Form (as defined below) either verbally or in writing), you agree to be bound by these Restaurant Promo Terms.
- Promotions. Subject to the terms and conditions of the Restaurant Agreement and any other guidelines or eligibility criteria for Promotions that Protonmay make available from time to time, Proton hereby authorizes Restaurant to create short-term Restaurant offers that are designed and fulfilled by the Restaurant to stimulate customer demand, including, without limitation, discounts and special offers, and displayed to customers (“Promotion”). Unless otherwise specified by Proton, Restaurants will be solely responsible for defining each Promotion (within the scope of functionality provided by Yesmeal), including, without limitation, the start date, end date, and maximum budget for each Promotion (“Promotion Budget”). For the purpose of Clarity, each Promotion will begin on the start date specified by you and will continue until the end date specified by you or the Promotion Budget is used up, whichever is first.
- Creating Promotions. These Restaurant Promo Terms shall apply for all Restaurant-funded Promotions offered by the Restaurant to your customers, regardless of the methodology used to create such Promotion. By using the Promotion Tools or authorizing an Yesmealrepresentative to create a promotion on your behalf, you agree such Promotion shall be subject to these Restaurant Promo Terms.
- Self-Serve Promotion Tools. Protonhereby authorizes you to use Proton’s proprietary, automated, self-service tool located within the Yesmeal Platform to create Promotions for your customers (the “Promotion Tools”), subject to such Promotion Tools functionality and technical capability. You agree to only use and access such Promotion Tool within its functionality and technical capability and shall not circumvent or otherwise exploit the tool in such a way that is not intended.
- Promotion Form. You may also create Promotions by completing and sending Protona Promotion Form in substantially the form attached hereto as Exhibit A (the “Form”). You acknowledge and agree that each time you submit to Protona completed Form, you agree such Promotion shall be subject to these Restaurant Promo Terms. Such Form may be provided to Proton in writing or by verbal confirmation, such as over the telephone. If the terms of the Promotion are verbally confirmed by you to Proton, Proton shall return to you a copy of such completed Form. You will have a specified time period to confirm such Promotion prior to it being offered to your customers on the Yesmeal App and such confirmation will constitute an agreement with Proton under the terms of these Restaurant Promo Terms. If you do not confirm such Promotion in the specified time it will be deemed rejected and Proton shall not feature such Promotion on the Yesmeal App.
- Your Responsibilities. You will honor and fulfill the terms of the Promotions offered by you to your customers through the end date of the Promotion. You represent and warrant that you will run your Promotions in accordance with applicable laws and that you have all necessary authority, rights, licenses, consents and permissions to run your Promotions (including, without limitation, the rights to provide information or creative materials about your Promotion to Proton). You will be solely responsible for the fees associated with the Promotion as described below. Notwithstanding anything to the contrary in the Restaurant Agreement, Restaurant acknowledges and agrees that Restaurant will not be able to terminate its relationship with Protonuntil the end of a Promotion, including terminating the Restaurant Agreement.
- ProtonResponsibilities. Proton will use good faith efforts to provide you with reasonable information regarding your Promotions, which may include, without limitation, the amount you have spent on Promotions and the number of Meals sold in connection with Promotions. Subject to Marketplace functionality, Proton may, at its sole discretion, provide enhanced promotional placement or other visual treatment for the Promotions through the start and end date identified by Restaurant. Restaurant acknowledges that the time period of enhanced promotional placement for a Promotion may vary due to a number of factors including Restaurant’s Promotion Budget, the start and end date for a Promotion identified by Restaurant, and Marketplace functionality.
- Fees. When a Promotion is applied to a given Meal, Restaurant agrees that Protonmay deduct the value of the Promotion from the Retail Value of the Meal, such that your customer only pays for the post-Promotion price of the Meal (the “Post-Promotion Retail Price”), until you have either met your Promotion Budget or the Promotion has expired in accordance with the end date provided to your customers. Your Service Fee will be calculated as follows: the Post-Promotion Retail Price of a Meal sold by you via the Marketplace (excluding any sales tax collected on your behalf), multiplied by the Service Fee percentage in your Restaurant Agreement. If you are paid for a Meal, you are responsible for the Service Fee.
- Marketing Channels: The parties may showcase the availability of the Promotion in the YesmealApp. Restaurant understands and agrees that any marketing outside of the Yesmeal App, including but not limited to marketing in social media and paid channels, is prohibited without a separate agreement and prior, express, written approval of such marketing initiatives and promotional assets by Proton.
- Other. Protonreserves the right to update or make changes to these Restaurant Promo Terms from time to time in its sole discretion, including, without limitation, by posting a revised version of this Addendum on https://yesmeal.com/ (or any successor website thereto). You can determine when these terms were last revised by referring to the “Last Updated” legend at the top of these Restaurant Promo Terms. Proton reserves the right, at any time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the ability for Restaurant to offer Promotions, with or without notice. You agree that neither Proton nor any of its affiliates shall be liable to you (or to any third party) for any modification, suspension or discontinuance of the Promotion Tools or providing Restaurant with the ability to offer Promotions. Except as specifically amended by these Restaurant Promo Terms, the terms and conditions of the Restaurant Agreement and any amendments thereto shall remain in full force and effect.