These Additional Terms apply to any order for Additional Products and Services requested by Restaurant and are being entered into pursuant to the Agreement between Restaurant and ChowNow, which is hereby incorporated by reference. Capitalized terms not defined in these Additional Terms are as defined in the Agreement.
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. BACKGROUND AND ACCEPTANCE.
Restaurant and ChowNow have entered into the Agreement pursuant to which ChowNow granted Users certain rights to access and use the Platform. These Additional Terms specify the terms under which Restaurant may order Additional Products and Services. Please read these Additional Terms carefully before submitting any order for Additional Products and Services, because by submitting any such order, Restaurant agrees to be bound by these Additional Terms. The person submitting any order represents that he or she is an authorized representative of Restaurant capable of binding Restaurant to these Additional Terms. If there is any conflict between these Additional Terms and the terms of the Agreement, these Additional Terms shall prevail.
2. TERMS SPECIFIC TO WEBSITE DESIGN AND DEVELOPMENT SERVICES.
- ChowNow and/or its third-party service providers shall purchase the domain(s) selected by Restaurant (subject to availability) and design and develop the website (the “Website”) as agreed by the Parties, using the tools, templates, and methodologies of ChowNow and its third-party service providers (the “Tools and Templates”).
- As between the Parties, Restaurant shall own all right, title, and interest in and to all Restaurant Content that is uploaded to the Website, and ChowNow (or its third-party service providers, as applicable) shall own all right, title, and interest in and to the Tools and Templates and the Website, excluding any Restaurant Content.
- With respect to the Restaurant Content, Restaurant hereby grants ChowNow the rights and licenses set forth in Section 1.2 of the Agreement.
- During any month that Restaurant pay ChowNow to host the Website (the “Hosting Term”), ChowNow or its third-party hosting providers shall host the Website. After the Hosting Term: (i) ChowNow and its hosting providers shall no longer host the Website; (ii) ChowNow shall transfer the domain to Restaurant; and (iii) Restaurant shall cease all use of the Website, although Restaurant may continue to use any Restaurant Content.
- THE WEBSITE IS PROVIDED “AS IS” AND “AS AVAILABLE, AND CHOWNOW AND ITS THIRD-PARTY SUPPLIERS, LICENSORS, AND SERVICE PROVIDERS HEREBY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NEITHER CHOWNOW NOR ITS THIRD-PARTY SUPPLIERS, LICENSORS, OR SERVICE PROVIDERS MAKE ANY WARRANTY THAT THE WEBSITE WILL BE ERROR FREE OR THAT ACCESS THERETO WILL BE CONTINUOUS OR UNINTERRUPTED.
3. TERMS SPECIFIC TO MARKETING SERVICES.
- The parties shall agree on the scope and timing of all marketing services, any deliverables to be created by ChowNow (the “Deliverables”), and the Fees, expenses, and taxes associated therewith.
- ChowNow shall retain all intellectual property rights in and to the Deliverables, including all copyrights and trademarks; provided, however: (i) upon the payment of all Fees, expenses, and taxes due and owing for such Deliverable, ChowNow shall be deemed to have granted Restaurant a non-exclusive, irrevocable, world-wide, perpetual, fully paid-up, and royalty-free license to use, reproduce, distribute, create derivative works of, publicly perform, publicly display, modify, maintain, support, and otherwise exploit such Deliverable; (ii) if ChowNow creates a Deliverable solely, exclusively, and specifically for Restaurant, such as a logo, and ChowNow agrees in a writing that such Deliverable is to considered a “work-made-for-hire” within the meaning of the Copyright Act of 1976, as amended, Restaurant shall own all right, title, and interest in and to such Deliverable, including all intellectual property rights, upon Restaurant’s payment in full of all Fees, expenses, and taxes due and owing for such Deliverable and such Deliverable shall be considered a “work-made-for-hire; and (iii) in the event (and to the extent) that any Deliverable described in subsection (ii) above does not constitute a “work-made-for-hire,” ChowNow assigns to Restaurant (upon Restaurant’s payment in full of all Fees, expenses, and taxes due and owing for such Deliverable) all rights, title, and interest in and to such Deliverable, including all intellectual property rights.
- ChowNow represents and warrants that it shall perform any marketing services in a professional and workmanlike manner.
4. TERMS SPECIFIC FOR WIRELESS PRINTERS, LTE TABLETS, AND OTHER ADDITIONAL PRODUCTS.
- CHOWNOW, NOT BEING THE SUPPLIER OR MANUFACTURER OF THE WIRELESS PRINTERS OR ANY OF THE OTHER ADDITIONAL PRODUCTS SOLD ON THE PLATFORM OR THE SUPPLIERS’ OR MANUFACTURERS’ AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE WIRELESS PRINTERS OR SUCH OTHER ADDITIONAL PRODUCTS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
- To the extent permissible under the applicable suppliers’ and/or manufacturers’ warranties, upon Restaurant’s complete payment of the Add-On Fees and taxes in connection with a purchase for Wireless Printers and/or other Additional Products, ChowNow shall use commercially reasonable efforts to pass through such warranties to Restaurant and otherwise facilitate the resolution of any warranty issues between Restaurant and such third parties with respect to the Wireless Printers and/or other Additional Products.
- The warranty information for the Wireless Printers can be found at http://www.starmicronics.com/supports/supportmain.aspx.
- To the extent Restaurant has opted to lease an LTE Tablet with wireless access that permits Restaurant to use the LTE Tablet for functionalities outside of the ChowNow mobile application, Restaurant shall not use more than 1 GB/month of data (the “Maximum Monthly Data Usage”). ChowNow reserves the right to charge Restaurant $15.00 per GB/month of data usage in excess of the Maximum Monthly Data Usage.
Payment for all orders for Additional Products and Services is governed by Section 4 of the Agreement.