(a) Depending on Restaurant’s Subscription Type or as otherwise provided in an Order Form, ChowNow may deliver to the address indicated by Restaurant, or have delivered on its behalf, a tablet computer fully configured for the applicable Services, along with certain additional equipment, such as a stand, charger, and other accessories (collectively, the “Tablet”). Restaurant may opt for an LTE Tablet, if Restaurant is located in the United States, which will have full LTE functionality (the “LTE Tablet”). (For purposes of this Agreement, the term “Tablet” shall include LTE Tablets unless otherwise expressly noted). In addition, as an optional feature if Restaurant is located in the United States, Restaurant may purchase or lease wireless receipt printers through ChowNow (the “Wireless Printers”). LTE Tablets and Wireless Printers are Additional Products and Services hereunder and are subject to the Additional Terms. Restaurant shall promptly, and in no event more than five ⑸ business days after ChowNow’s delivery of the Tablet or Wireless Printer, inspect them for damages and defects. In the event Restaurant discovers a damage or defect with the Tablet or Wireless Printer, Restaurant shall promptly, and in no event more than one ⑴ business day of discovery of such damage or defect, notify ChowNow in writing of such damage or defect. If Restaurant fails to provide ChowNow with the notification described in this Section with respect to the Tablet or Wireless Printer within the first six ⑹ business days after delivery, Restaurant shall be deemed to have irrevocably accepted such item(s). In the event that Restaurant timely and properly rejects the Tablet or Wireless Printer in accordance with this Section, ChowNow shall be responsible for replacing the damaged or defective item(s). For clarity, Tablets and Wireless Printers for use in connection with the Services must be leased or purchased (as applicable) from ChowNow, and cannot be leased or purchased from third parties.
(b) CHOWNOW, NOT BEING THE SUPPLIER OR MANUFACTURER OF THE TABLET OR THE WIRELESS PRINTERS, NOR THE SUPPLIERS’ OR MANUFACTURERS’ AGENT, MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE TABLET OR THE WIRELESS PRINTERS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.
(c) Restaurant acknowledges and agrees that the Tablet and Wireless Printers are leased to Restaurant (unless Restaurant opts to purchase a Wireless Printer), and are leased at the prices provided to Restaurant by ChowNow, for use solely in connection with the Services pursuant to the Agreement. For the avoidance of doubt, Restaurant shall not (and shall not permit any third party to) use the Tablet or leased Wireless Printers for any purpose other than to connect to the Services. Such prohibited activities include, without limitation, using the items: (i) to process in-house orders not processed through the Services; (ii) to play games; (iii) to use mobile applications; (iv) to access the Internet; (v) to print anything other than Orders; (vi) to stream music or video content; (vii) as a hotspot; or (vii) for tethering the Internet to other devices, including, but not limited to, for credit card processing. Restaurant shall use the Tablet and/or leased Wireless Printers in a careful and proper manner, in compliance with their instructions and manuals and all applicable laws and regulations. In the event Restaurant returns any Wireless Printer (whether leased or purchased from ChowNow) within thirty (30) days of such lease or purchase, ChowNow reserves the right to charge Restaurant a restocking fee at ChowNow’s then-current restocking price as provided to Restaurant. 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 Services, Restaurant shall not use more than .5 GB/month of data (the “Maximum Monthly Data Usage”). ChowNow reserves the right to charge Restaurant $15.00 per .5 GB/month of data usage in excess of the Maximum Monthly Data Usage (calculated on a pro-rata basis after the Maximum Monthly
(d) Title to the Tablet and leased Wireless Printers shall at all times remain with ChowNow or one of ChowNow’s financial vendors. Restaurant shall have no right, title, or interest in or to the Tablet or leased Wireless Printers, except the right to possession and use thereof during the Term and pursuant to the terms and conditions in the Agreement. The Tablet and leased Wireless Printers shall remain personal property, regardless of whether or not they are affixed to any real property at Restaurant’s location. Restaurant shall at all times protect and defend, at Restaurant’s sole cost and expense, ChowNow’s title and interest in and to the Tablet and leased Wireless Printers from and against all claims, liens, encumbrances, and legal processes of any trustee in bankruptcy, receiver, creditor, or other successor of Restaurant and keep such items free and clear from all such claims, liens, processes, and any other encumbrance. Restaurant shall not sublease,
transfer, or dispose of the Tablet or leased Wireless Printers or grant or permit any lien on them. Restaurant agrees that it will not mortgage or otherwise encumber the Tablet or leased Wireless Printers.
(e) ChowNow shall have the right to mark the Tablet and leased Wireless Printers in a distinct and conspicuous manner with the name of ChowNow followed by the words “Property of ChowNow” or other appropriate words designated by ChowNow. Restaurant shall not alter, deface, or remove any of ChowNow’s ownership identification plates or markings and, upon ChowNow’s request, Restaurant shall affix or re-affix such identification.
(f) The Tablet and leased Wireless Printers shall be and remain located in the Restaurant, and Restaurant or its employees shall not remove them, or permit (by act or omission) them to be removed, from the Restaurant without the
prior written consent of ChowNow in each instance.
(g) Restaurant shall immediately notify ChowNow of any problems with the Tablet and leased Wireless Printers and shall use Restaurant’s best efforts to work with ChowNow to pursue any warranty claims that ChowNow may have in relation to them from their manufacturers. As between the Parties: (i) ChowNow shall be responsible for all repair and maintenance of the Tablet and leased Wireless Printers; provided, however, that Restaurant shall be solely responsible
for the costs of any repairs and maintenance necessitated by Restaurant’s or its employees’ negligence or misuse of them, including theft; and (ii) Restaurant shall be responsible for all repair and maintenance of any Wireless Printers that Restaurant purchases.
(h) Upon ChowNow’s receipt or issuance of a termination notice as set forth in Section 5.2 of the Agreement, Restaurant shall return the Tablet and leased Wireless Printer, and their respective accessories and equipment to
ChowNow within thirty (30) days of Restaurant’s final day of service, by delivering them in a manner consistent with the manufacturers’ recommendations and practices, to such place or on board such carrier (packed properly and in accordance
with the manufacturers’ instructions) as ChowNow shall specify, or, at ChowNow’s option, Restaurant shall cooperate with ChowNow in the disposition of such items. Provided ChowNow has not instructed Restaurant to dispose of the items, if the
items are not in ChowNow’s possession within thirty (30) days of Restaurant’s final day of service, ChowNow may, in its sole discretion, automatically authorize Restaurant’s credit card, bank account, or other approved facility provided during the registration process in the amounts set forth in the price list provided to Restaurant by ChowNow; provided, however, if Restaurant subscribed only to the Marketplace Platform and ChowNow does not possess such information, Restaurant shall promptly provide the same to ChowNow, and ChowNow may, in its sole discretion, automatically authorize Restaurant’s credit card, bank account, or other approved facility for such sums. If the Tablet screen is cracked, ChowNow may charge an additional fee as set forth in such price list. ChowNow reserves the right to retain such sums as a deposit (the “Deposit”) until such items are returned to ChowNow in good working order pursuant to, and in accordance with, this Section. Upon such return, ChowNow shall promptly credit Restaurant the amount of the Deposit. If one or more of the items are not returned, or if any of the items are returned damaged, ChowNow reserves the right to retain the Deposit or a portion thereof at ChowNow’s reasonable discretion. Restaurant shall ensure that the Tablet and leased Wireless Printers will be returned to ChowNow free and clear of all claims, liens, processes, and any other encumbrances.