Skip to content

CHOWBUS PRIVACY POLICY

 

CHOWBUS RESTAURANT TECHNOLOGY AGREEMENT

 

This Chowbus Restaurant Technology Agreement (“Agreement”) is entered into as of (“Effective Date”) by and between Chowbus Inc. (“Chowbus”) and the entity listed below (“Restaurant”). The details set forth in Attachment 1 regarding the software, hardware and additional features being offered to Restaurant hereunder are incorporated herein by reference. In consideration of the mutual promises contained herein and the mutual benefits to be derived therefrom, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

  • THE CHOWBUS RESTAURANT TECHNOLOGY SOFTWARE AND SYSTEM.
    • The Chowbus Restaurant Technology Software. Subject to the terms of this Agreement, Chowbus will make available to Restaurant its proprietary restaurant technology (including, without limitation, point-of-sale and “Smart Ordering” software), which may consist of one or more of the following: device-based software operated locally, cloud-based software accessed via the Internet, and mobile applications for use by Restaurant (collectively, the “Chowbus Restaurant Technology Software”). Restaurant agrees that Chowbus, at its election, may make change to or add features, functionality, or components of the Chowbus Restaurant Technology Software from time-to-time.
    • Hardware. Chowbus will sell to Restaurant the hardware indicated on Attachment 1 for use in conjunction with the Chowbus Restaurant Technology Software (the “Chowbus Restaurant Technology Hardware”). Chowbus may provide a credit for the equipment, but Restaurant is responsible for any potential taxes on the hardware. Chowbus makes no representation or warranty with respect to any such hardware. In the event that third-party software is necessary to enable the use of the Chowbus Restaurant Technology Hardware, Restaurant shall be responsible for acquiring such software and any necessary rights from the applicable third party and is responsible for all costs associated with the operation and maintenance of such third-party software. Restaurant will pay all shipping costs incurred delivering the Chowbus Restaurant Technology Hardware. Without limiting the foregoing, Restaurant agrees that as a condition of using the Chowbus Restaurant Technology Hardware, it will be subject to the terms and conditions of any of the device’s pre-installed software.
    • The Chowbus Restaurant Technology System License. The Chowbus Restaurant Technology Software together with the Chowbus Restaurant Technology Hardware, any user or technical documentation or materials (collectively “Documentation”) provided by Chowbus is referred to in this Agreement as the “Chowbus System” or the “Chowbus Restaurant Technology System.” Subject to Restaurant’s compliance with the terms of this Agreement, Chowbus grants to Restaurant a limited, non-exclusive, non-transferable, non-sublicensable right to use and access the Chowbus Restaurant Technology System solely for supporting its internal point of sales functions at the location or locations set forth in Attachment 1 during the term of this Agreement. The use of cloud-based software or mobile applications may require the acceptance of additional Chowbus terms and conditions and policies at the time of installation or first operation.

    • Other Features / Applications. From time to time, restaurants may purchase, and/or Chowbus may make available, additional features and applications in conjunction with the Chowbus Restaurant Technology System (“Additional Functionality”). Additional Functionality may be offered to restaurants at additional cost and may be subject to additional terms which will be set forth in an updated version of Attachment 1, which once executed, will be incorporated into this Agreement by reference.
    • Third Party Payment Providers. Unless otherwise agreed by the parties in writing, the Chowbus Restaurant Technology System includes applicable payment processing functionality provided through a third-party payment processor or gateway (as of the Effective Date, Stripe Technologies, Inc.).
  • TERM & TERMINATION. This Agreement will begin on the Effective Date and continue for the period set forth in Attachment 1 (the “Minimum Commitment Term”). After the expiration of the Minimum Commitment Term, this Agreement will continue on a month-to-month basis unless terminated by either party for any or no reason on 10 days’ prior written notice to the other party. Additionally, either party may terminate this Agreement if the other party is in material breach that it has failed to cure within 30 days after receipt of written notice from the non-breaching party. Upon any such termination, Restaurant will: (i) cease use of the Chowbus Restaurant Technology System and all of its components; and (ii) return all Chowbus proprietary materials. In the event Restaurant fails to pay for any related Early Termination Fees within 15 days upon termination, Chowbus will be entitled to collect Restaurant’s hardware set forth in Attachment 1. Provisions that are intended to survive such termination will survive. In the event of any termination by Chowbus due to Restaurant’s uncured material breach, and without limiting any other right or remedy Chowbus may have, Chowbus will be entitled to retain up to 2 months’ worth of fees paid by Restaurant to Chowbus hereunder, which may be collected from Restaurant’s deposit for use of the Chowbus Restaurant Technology Hardware set forth on Attachment 1.

 

  • RESTAURANT  OWNED-LOCATIONS; FRANCHISEE LOCATIONS.

Restaurants (“Locations”) owned and operated by Restaurant located in the United States that will utilize the Chowbus System hereunder are set forth in Attachment 1 (each, a “Restaurant-Owned Location”, as updated from time to time). Any franchisees, including. without limitation, Restaurant’s franchisees and Restaurant’s master franchisees and their affiliates and sub-franchisees, that have the right to own and operate Locations (each a, “Franchisee” and collectively, the “Franchisees”) that will utilize the Chowbus System hereunder

will do so pursuant to the Franchisee Addendum attached hereto as Attachment 3. Locations owned by Franchisees that will utilize the Chowbus System hereunder also are set forth in Attachment 1 (each, a “Franchisee-Owned Location”, as updated from time to time). For the avoidance of doubt, entering into a Franchisee Addendum is voluntary and at each Franchisee’s sole discretion; provided however, Chowbus and a Franchisee shall not amend any executed Franchisee Addendum, except upon the prior written consent of Restaurant. For further avoidance of doubt, a Franchisee that is a master franchisee shall have the right, in its sole discretion. to consent to the use of Chowbus as a service provider and to the terms and conditions of this Agreement and the Franchisee Addendum, and to decide whether to activate its affiliates and subfranchisees.

 

  • RESTRICTIONS. Restaurant will not, directly, or through any employee, consultant, contractor, agent or other third-party: (i) use the Chowbus System to collect any data other than in connection with the purpose hereunder, or gather competitive intelligence about Chowbus or its present or anticipated business;
  • use the Chowbus System in violation of applicable laws including, without limitation, privacy and data protection laws;
  • decompile, disassemble, reverse assemble, modify, translate, reverse engineer or otherwise attempt to derive source code, algorithms, tags, specifications, architecture, structure or other elements of the Chowbus Restaurant Technology System, in whole or in part; (iv) circumvent or disable any security or other technological features of the Chowbus System; (v) sell, resell, distribute, host, lease, rent, license or sublicense, in whole or in part, the Chowbus Restaurant Technology System; (vi) create derivative works based upon the Chowbus Restaurant Technology Software; (vii) disclose or publish, without Chowbus’ prior written consent, performance or capacity statistics or the results of any benchmark test performed on the Chowbus Restaurant Technology System; (viii) use the Chowbus Restaurant Technology System in a manner not authorized under the Documentation, or

(ix) in any way access or use the Chowbus Restaurant Technology System to directly or indirectly develop, promote, distribute, sell or support any product or service that is competitive with the Chowbus Restaurant Technology System.

  • OWNERSHIP. Except as expressly licensed in this Agreement, Chowbus owns all right, title and interest (including all intellectual property rights) in and to the Chowbus System and any improvements, modifications, and enhancements thereto. Upon any termination or expiration of this Agreement, and upon receipt of any Early Termination Fees, Restaurant has ownership of any received Restaurant Technology Hardware. Chowbus will not accept any returns for refunds or credit.

  •     FINANCIAL TERMS.
    • Platform Fees. Except with respect to any Free Trial Period set forth in Attachment 1, recurring platform fees associated with Restaurant’s use of the Chowbus Restaurant Technology System (i.e., subscription fees) will be paid as follows: (i) to Chowbus on a monthly basis in advance. Restaurant agrees to payment of all amounts due hereunder via ACH/direct debit and against the account identified on Attachment 2. A fee of $35.00 will be due for any charge made hereunder that is rejected by Restaurant’s financial institution for any reason; or (ii) as a deduction against Restaurant’s daily payouts described in Section 5(b) below (deducted on the 1st of each month) Chowbus reserves the right to change such fees at any time. Network Fees is defined as Interchange fee + Scheme fee + Gateway & Admin Fee
    • Usage-Based Remittance to Restaurant. Payments to Restaurant from its end consumers that are processed through the Chowbus Restaurant Technology System will be remitted by Chowbus to Restaurant within 2 business days of payment to the account identified on Attachment 2, less any fees owed to Chowbus and any applicable refunds, adjustments or chargebacks.
    • Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, accessible by any jurisdiction whatsoever (collectively, “Taxes”). Restaurant is responsible for paying all Taxes associated with its purchases hereunder. If Chowbus has the legal obligation to pay or collect Taxes for which Restaurant is responsible under this section, Chowbus will invoice Restaurant and Restaurant will pay that amount unless Restaurant provides Chowbus with a valid tax exemption certificate authorized by the appropriate taxing authority. To the extent Taxes were not invoiced and subsequently deemed to be assessable, Restaurant will pay and Chowbus will remit these Taxes to the appropriate tax jurisdiction, unless evidence is provided to Chowbus that the Taxes have been paid directly to the tax jurisdiction.  Chowbus is solely responsible for taxes assessable against it based on its income, property and employees.
  • FEEDBACK AND RESTAURANT DATA.
    • (a) Feedback. Restaurant may in its discretion provide Chowbus with any suggestions, comments or other feedback regarding the Chowbus System (“Feedback”). Restaurant hereby grants to Chowbus a perpetual, irrevocable right and license to freely use, disclose, reproduce, license, distribute and otherwise commercialize (through multiple tiers) any such Feedback in any current or future Chowbus products and services.
    • (b) Restaurant Data. Restaurant will own all data relating to its end consumers and to the commercial transactions processed using the Chowbus Restaurant Technology System (collectively, “Restaurant Data”). Restaurants will comply with all applicable privacy laws in the course of collecting, storing and using the Restaurant Data. Subject to the foregoing, any data collected through the Chowbus Restaurant Technology System may be freely used on an aggregated and/or anonymized basis by Chowbus for its own business purposes. Restaurants may have the ability through the Chowbus System to edit or delete Restaurant Data. Restaurant acknowledges and agrees that (i) Restaurant is responsible for all consequences of any such edit or deletion and will indemnify Chowbus for any losses or costs to Chowbus that result from any such edit or deletion, (ii) such edits and deletions are intended to be permanent and it may not be possible to recover the Restaurant Data as it existed before any edit or deletion, (iii) Restaurant is responsible for any edit or change made using Restaurant’s password, account or other credentials to access the Chowbus System and will implement appropriate data, cyber and personnel security measures to prevent unauthorized edits or deletions, (iv) Restaurant will make edits or deletions of Restaurant Data only for a proper purpose and will not make any edit or deletion that violates any applicable law, regulation, court order, contract, litigation hold notice or other data preservation notice or requirement (collectively, or any of these is, a “Data Hold Violation”) and (iv) Chowbus may, in its sole discretion eliminate or suspend Restaurant’s ability to edit or delete Restaurant Data using the Chowbus System and expects to do so if Chowbus concludes that Chowbus is or may be required to do so to avoid a Data Hold Violation by Chowbus.
    • Chowbus as a “Service Provider”. To the extent Restaurant Data contains personal information as defined by the California Consumer Privacy Act (“CCPA”) and that is subject to the CCPA (“CA Personal Information”), Chowbus processes such CA Personal Information as a “Service Provider” as defined by the CCPA and this Section 7(c) shall apply to such processing. Chowbus agrees to use the CA Personal Information as necessary to provide the Chowbus System and otherwise perform its obligations hereunder. Restaurant agrees that it is only providing such CA Personal Information for the limited purposes identified in this paragraph. With regard to such CA Personal Information, Chowbus agrees to: (i) comply with the CCPA, as applicable; (ii) provide the same level of protection to such Personal Information as is required by the CCPA; and (iii) notify Restaurant if Chowbus determines it can no longer meet the obligations of the CCPA. Restaurant may take reasonable and appropriate steps to stop and remediate unauthorized use of CA Personal Information upon the receipt of such notice. Chowbus further agrees it shall not: (1) “sell” or “share”, as such terms are defined by the CCPA, CA Personal Information; (2) retain, use, or disclose CA Personal Information for any purpose outside of the business purposes identified herein or outside of the parties’ business relationship; and (3) combine the CA Personal Information with CA Personal Information received from other third parties. Restaurant agrees that it shall notify Chowbus of any requests made by Restaurant’s end consumers related to such end consumer’s CA Personal Information with sufficient information to enable a response. Chowbus agrees to comply with such requests to the extent required by the CCPA. Restaurant may take reasonable and appropriate steps to help ensure that the Personal Information is used in a manner consistent with the CCPA.
    • Chowbus as a “Processor”. To the extent Restaurant Data contains personal information as defined by applicable U.S. state data privacy laws other than the CCPA (“Applicable U.S. Data Privacy Laws”), and that is subject to such Applicable U.S. Data Privacy Laws (“Personal Information”), Chowbus processes such Personal Information as a “Processor” as defined by the Applicable U.S. Data Privacy Laws and this Section 7(d) shall apply to such processing. The parties agree that the nature and purpose of the processing of such Personal Information is for Chowbus to provide the Chowbus System and otherwise perform its obligations hereunder during the term of this Agreement. With respect to such Personal Information, Chowbus agrees to: (i) ensure each person processing the Personal Information is subject to a duty of confidentiality with regard to the Personal Information; (ii) require any subcontractors processing such Personal Information to comply with Chowbus’ obligations related to such Personal Information herein; (iii) delete or return, at Restaurant’s choice, Personal Information at the termination of the Agreement, unless otherwise required by law; (iv) upon reasonable request, make available information necessary solely as necessary to demonstrate compliance with this Section 7(d), and shall reasonably allow or provide reasonable cooperation to assessments Restaurant is required to conduct under Applicable U.S. Data Privacy Laws. Taking into account the context of the processing, Chowbus agrees to implement appropriate technical and organizational measures designed to ensure a level of security appropriate to the risk related to such Personal Information. To the extent required by Applicable U.S. Data Privacy Laws, Chowbus agrees to stop processing Personal Information on request by the Restaurant made in accordance with an end consumer’s authenticated request. Further, to the extent required by Applicable U.S. Data Privacy Laws, Restaurant hereby permits the processing of Personal Information by Chowbus’ current subcontractors and Chowbus agrees to provide a reasonable opportunity for Restaurant to reasonably object to any new subcontractors engaged to process Personal Information. Notwithstanding the foregoing, to the extent Chowbus cannot resolve Restaurant’s objection to such subcontractor, after the Minimum Commitment Period, either party may terminate this Agreement pursuant to Section 2.
  • CONFIDENTIALITY. If the parties have previously entered into the nondisclosure agreement (“NDA”), all Confidential Information (as defined in the NDA) exchanged between the parties under this Agreement will be subject to such NDA. Notwithstanding the foregoing, if the parties have not entered into any NDA, then the parties agree that the following constitutes “Confidential Information” that will not be disclosed by either party to any other party: (a) the terms of this Agreement; (b) all non-public information disclosed by a party to the other party hereunder including the Chowbus Software in source and object code form and all Documentation; and (c) all Feedback and all other information of Restaurant or Chowbus obtained through use of the Chowbus System, including without limitation Restaurant Data. Confidential Information does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations or becomes public through no fault of the recipient.
  • REPRESENTATIONS & WARRANTIES. Restaurant represents, warrants and covenants that: (a) it has the authority to enter into this Agreement and to grant the rights granted hereunder, and doing so will not violate any other agreement to which it is a party; (b) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its origin; (c) it will comply with all applicable retail food, beverage (including alcohol) and other applicable health and safety codes, rules or regulations, as well as any other laws applicable to its business, (d) it has all necessary rights, permissions and consent to share the Restaurant Data set forth in Section 6 (including from the applicable end consumers and third-party food ordering platforms); and (e) restaurant will provide reasonable care for all of the equipment; Chowbus has sole responsibility of determining if a product is damaged and the cost of replacement; if an equipment is lost, the restaurant is responsible for compensating Chowbus up to the full amount of the price of the equipment.
  • INDEMNIFICATION. Restaurant will indemnify and hold Chowbus and its directors, employees, officers, contractors and agents harmless from any and all claims, actions, proceedings and damages arising out of Restaurant’s activities, including: (a) any third-party transactions or financing arrangement; (b) any Taxes payable hereunder; or (c) any breach or alleged breach of the representations, warranties or covenants set forth in Agreement. Chowbus will provide prompt written notice to Restaurant of any potential claim subject to indemnification hereunder. Restaurant will assume the defense of the claim through counsel designated by it and reasonably acceptable to Chowbus, provided that Chowbus may use counsel of its choice at its own expense. Restaurant will not settle or compromise any claim or consent to the entry of any judgment without Chowbus’ prior written consent. Chowbus will reasonably cooperate with Restaurant in the defense of the claim, at Restaurant’s expense.
  • WARRANTY DISCLAIMER. THE CHOWBUS SYSTEM IS PROVIDED “AS IS” SOLELY FOR THE PURPOSE OF THIS AGREEMENT, AND CHOWBUS DOES NOT WARRANT THAT THE CHOWBUS Restaurant Technology SYSTEM WILL OPERATE WITHOUT ERROR OR INTERRUPTION. CHOWBUS SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, TITLE, QUALITY, ACCURACY AND FITNESS FOR A PARTICULAR PURPOSE.
  • LIMITATION OF LIABILITY. CHOWBUS’ TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID TO CHOWBUS BY RESTAURANT IN THE PRECEDING 6 MONTH PERIOD. IN NO EVENT WILL CHOWBUS HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF THESE DAMAGES. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT. RESTAURANT AGREES THAT CHOWBUS WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS WITH USE OF OR ACCESS TO ANY PART OF THE CHOWBUS Restaurant Technology SYSTEM RESULTING FROM OR INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OF CHOWBUS’ REASONABLE CONTROL.
  • ARBITRATION. Restaurant and Chowbus agree that all claims or disputes arising out of this Agreement will be decided by an arbitrator through arbitration and not by a judge or jury (“Arbitration Agreement”). This Arbitration Agreement is governed by the Federal Arbitration Act (“FAA”) and evidences a transaction involving commerce. The arbitration will be conducted before a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), which are available at www.adr.org. The arbitrator’s fees and the costs will be shared equally by the parties, unless prohibited by law. Each party is responsible for its own attorneys’ fees. The arbitration proceeding will take place in New York, New York, unless otherwise agreed in writing. A court of competent jurisdiction will have the authority to enter judgment on the arbitrator’s decision and award. The parties agree to bring any claim or dispute in arbitration on an individual basis only, and not as a class or collective action, and there will be no right or authority for any claim or dispute to be brought, heard or arbitrated as a class or collective action (“Class Action Waiver”). Regardless of anything herein or the applicable AAA Rules, the interpretation, applicability or enforceability of the Class Action Waiver may only be determined by a court and not an arbitrator. The following claims are excluded from this Arbitration Agreement: (a) claims in small claims court; (b) claims to enforce or to prevent the actual or threatened violation of a party’s intellectual property rights; (c) claims for temporary relief in connection with an arbitrable controversy; and (d) claims that are non-arbitrable per the applicable federal statute.
  • MISCELLANEOUS. This Agreement will be governed by the laws of the State of New York without reference to conflict of law principles. Neither party will assign this Agreement, directly or indirectly, by operation of law or otherwise, without the prior written consent of the other party, except that Chowbus may assign this Agreement without consent to an affiliated or related entity or in the event of a sale of all or substantially all of its stock, assets or business. This Agreement, together with any NDA, is the entire agreement between the parties relating to the subject matter hereof. No waiver or modification of this Agreement will be valid unless in writing signed by each party. If any provision of this Agreement is declared illegal, null or void or contrary to public policy, it shall be deleted and shall not affect the validity of any other term or condition of this Agreement. The terms of any purchase order or any other document that conflict with, or in any way purport to amend, any of the terms of this Agreement   are hereby specifically objected to and will be of no force or effect. The use of “including” in this Agreement means “including, without limitation”. Any translation of this Agreement provided is for convenience only. To the extent of any discrepancy between the English language version and the translation, the English language version shall govern.