Effective for Qualified Referrals (as defined below) submitted on or after July 9, 2024.
These Terms and Conditions (the “Terms”) apply to Otter’s Referral Program (the “Program”). By submitting a referral or otherwise participating in the Program, you hereby acknowledge and accept our privacy policy and these Terms. Please note that these Terms require you to accept binding arbitration.
Program Eligibility and Bonus Payment Amounts
Individuals, consultants, investors, and friends in the United States who refer a US/CA restaurant to Otter for POS payment processing and other related tech services through the online portal described in the connected website may be eligible to receive a bonus payment in the following amounts: (i) $2000 per Qualified Referral for Otter POS Payment Processing Services, and (ii) $500 per Qualified Referral for Direct to Consumer Services / Kiosk Services / Catering Services (each a “Bonus Payment”). All amounts shall be in CAD for locations located in Canada and USD for locations located in the United States.
Who is Not Eligible to Participate?
- All CSS employees, and their immediate family and household members (there is a separate Employee Referral Program);
- Employees of an authorized Otter reseller, including their immediate family and household members;
- Restaurant owners, operators, or decision-makers responsible for making the purchasing decision referring their own restaurants;
- Franchisors responsible for making the purchasing decision referring their own franchisees; and
- Individuals who are under 18 years old.
Referral Requirements
Subject to these Terms, for each “Qualified Referral” that meets the following criteria, you will receive the applicable Bonus Payment listed below. A “Qualified Referral” is a restaurant customer that:
- you refer to Otter through the online referral form (only referrals through the online portal shall be accepted);
- is not an existing lead in the Otter sales system;
- demonstrably interested in the applicable tech services and is a decision-maker capable of entering into a contract for the applicable tech services;
- enters into an definitive agreement (within 3 months of submission) with Otter for the respective tech services described above, and has been live, active, and paying customer for at least one month; and
- reaches the following minimum order thresholds per location within the first full month of operation (per location): (i) $15,000 in order volume processed for Otter POS Payment Processing Services, (ii) $3,000 in order volume processed for Kiosk Services, or (iii) $2,000 in order volume processed for Catering or Direct to Consumer Services.
Bonus Payments
The Bonus Payment for a restaurant brand or group will be as follows. A restaurant brand or group is defined as either a franchise group or corporate entity and its affiliates (each “Restaurant Group”). In addition, each location shall be defined as a new physical location and excludes virtual brands. The maximum amount earned for the first location of each Restaurant Group shall be limited to $2000. For each additional location that meets the Qualified Referral criteria for each Restaurant Group, the referrer may be eligible to receive a Bonus Payment of $200. The maximum number of referrals for each Restaurant Group is capped at 10 locations. The Bonus Payment shall only be available for all tech service purchases and new location referrals within 3 months (and may be extended at Otter’s sole discretion) of the submission of the Qualified Referral.
Otter will determine, in its sole discretion, whether a referral is a Qualified Referral eligible for a Bonus Payment and reserve the right to disqualify any referrer at any time for any reason from participation in the Program for reasons including but not limited to Otter’s good faith belief that referrer has violated these Terms. Subject to the terms herein, there is no limit to the number of referrals an individual can submit, or eligible Bonus Payments for Qualified Referrals an individual may receive, while the Program is in effect. Unless otherwise agreed by the parties in writing, each Bonus Payment will be made by direct deposit. Referrer must enroll in the Otter referral portal (“Referral Portal”), and provide a W-9 and ACH information. In order to receive the Bonus Payment and timely payment of the Bonus Payment is dependent on timely enrollment in the Referral Portal. Referrer is solely responsible for reporting and remitting all taxes in connection with any amounts received in connection with the Referral Program.
If a referrer does not enroll in the Referral Portal and provide the information requested in the Portal to receive a Bonus Payment (or supplemental Bonus as described below) within 30 days of Bonus Payment generation, the referrer shall not receive a Bonus Payment for that Qualified Referral.
Modifications
Otter reserves the right to modify these Terms or terminate the Program at any time, in its sole discretion, without notice. These Terms are governed by the laws of the State of California.
Arbitration
BY ENTERING INTO THESE TERMS, EACH PARTY IS REQUIRED TO USE ARBITRATION TO RESOLVE CLAIMS OR DISPUTES ON AN INDIVIDUAL BASIS, AS FURTHER SET FORTH IN THIS SECTION. Except for claims or disputes related to a party’s intellectual property, each party agrees that any claim or dispute arising out of or relating to these Terms, or any breach thereof, shall be settled by binding arbitration before a single arbitrator, and not in a court of law. The arbitration will be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. A party who desires to initiate arbitration must provide the other party with a written demand for arbitration as specified in such rules. Unless the parties agree in writing otherwise, the arbitration will be conducted in the city of Los Angeles, California. The award and decision of the arbitrator will be conclusive and binding upon all parties, and judgment upon the award may be entered in any court of competent jurisdiction. The arbitrator will have the right to include in the award any relief which he or she deems proper in the circumstances, only to the extent permitted by these Terms and applicable law, provided that the arbitrator will not have the authority to award exemplary or punitive damages. The arbitrator shall award the prevailing party its reasonable attorneys’ fees and expenses. Each party hereby agrees that arbitration will be conducted on an individual, not a class‑wide, basis and that any arbitration proceeding between you and Otter will not be consolidated with any other arbitration proceeding involving Otter or any other person or entity. In the event any portion of this Arbitration section is deemed unenforceable or invalid, the unenforceable or invalid provision or provisions will be restricted or severed from this Arbitration section, in order to preserve as much of the parties’ Arbitration section as possible.
Confidential Information
You agree to protect the confidentiality of any nonpublic information of a confidential or proprietary nature that you obtain in connection with these Terms (“Confidential Information”). You will not retain or use the Confidential Information except to the extent necessary for you to perform these Terms, and you will not disclose Confidential Information to any third party except to your accountants, attorneys or other agents on a confidential basis, or as required by law (for example, to comply with a subpoena), provided that prior to any disclosure required by law you give advance written notice to Otter and allow Otter to object and seek protective treatment or pursue other actions regarding such Confidential Information. The foregoing obligations will survive the termination of these Terms. You agree these Terms constitute Otter Confidential Information and you will not disclose to any third party other than as necessary to participate in the Program. You may not issue a press release or otherwise refer to Otter in any manner in connection with the Program or these Terms, without the prior written consent of Otter.
Indemnification
You will indemnify, hold harmless and (at Otter’s option) defend Otter and its affiliates, and their respective directors, officers, employees, and agents from and against all claims, losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees) with respect to any third party claim arising out of or related to: (a) your performance of and conduct in connection with the Program and these Terms (including any misrepresentations to any Qualified Referrals); (b) allegations that any content or other material you distribute, display or perform infringes or violates any intellectual property right, right of publicity, or other proprietary right (except to the extent the allegedly infringing material was originally provided by Otter to you for such distribution, display or performance); (c) allegations that any of the messages you send or calls made or received that violate relevant laws, including but not limited to CAN-SPAM Act, TCPA or relevant state laws; (d) your failure to satisfy any debt, obligation or liability; or (e) your breach of these Terms. Unless Otter elects to control the defense, you will assume the defense of the indemnified claim through counsel designated by you and reasonably acceptable to Otter, and Otter may, at its expense, participate in the defense with its own counsel. You will not settle or compromise any indemnified claim, or consent to the entry of any judgment, without written consent of Otter, which will not be unreasonably withheld. Otter will reasonably cooperate with you in the defense of an indemnified claim, provided that you reimburse Otter for its costs and expenses as they are incurred to provide such cooperation.
Indemnification
You will indemnify, hold harmless and (at Otter’s option) defend Otter and its affiliates, and their respective directors, officers, employees, and agents from and against all claims, losses, liabilities, damages, costs and expenses (including reasonable attorney’s fees) with respect to any third party claim arising out of or related to: (a) your performance of and conduct in connection with the Program and these Terms (including any misrepresentations to any Qualified Referrals); (b) allegations that any content or other material you distribute, display or perform infringes or violates any intellectual property right, right of publicity, or other proprietary right (except to the extent the allegedly infringing material was originally provided by Otter to you for such distribution, display or performance); (c) allegations that any of the messages you send or calls made or received that violate relevant laws, including but not limited to CAN-SPAM Act, TCPA or relevant state laws; (d) your failure to satisfy any debt, obligation or liability; or (e) your breach of these Terms. Unless Otter elects to control the defense, you will assume the defense of the indemnified claim through counsel designated by you and reasonably acceptable to Otter, and Otter may, at its expense, participate in the defense with its own counsel. You will not settle or compromise any indemnified claim, or consent to the entry of any judgment, without written consent of Otter, which will not be unreasonably withheld. Otter will reasonably cooperate with you in the defense of an indemnified claim, provided that you reimburse Otter for its costs and expenses as they are incurred to provide such cooperation.
Disclaimer and Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT: (A) THE PROGRAM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND OTTER EXPRESSLY DISCLAIMS ALL WARRANTIES, CONDITIONS AND TERMS OF ANY KIND, WHETHER EXPRESS OR IMPLIED BY STATUTE, COMMON LAW OR CUSTOM, INCLUDING, BUT NOT LIMITED TO, WARRANTIES AS TO PRODUCTS OR SERVICES OFFERED THROUGH THE USE OF THE PROGRAM, IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) WE MAKE AND GIVE NO WARRANTY THAT (i) THE PROGRAM WILL MEET YOUR REQUIREMENTS, (ii) THE PROGRAM WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND (iii) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE PROGRAM WILL MEET YOUR EXPECTATIONS, AND (C) ANY MATERIAL OBTAINED THROUGH THE USE OF THE PROGRAM IS ACCESSED AT YOUR OWN DISCRETION AND RISK.
YOU UNDERSTAND AND AGREE THAT WE SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES. TO THE FULLEST EXTENT POSSIBLE BY LAW, OTTER’S MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE PROGRAM, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.