Chowbotics Terms and Conditions
Effective: February 10, 2021
BEFORE YOU USE THE PRODUCTS OR SOFTWARE, PLEASE READ THESE TERMS CAREFULLY. BY ACCESSING OR USING THE PRODUCTS OR SOFTWARE, YOU, ANY ENTITIES THAT YOU REPRESENT AND ALL OF YOUR PARTICIPATING STORE LOCATIONS (“YOU” or “PARTNER”) AGREE TO BE BOUND BY THESE TERMS IN ADDITION TO ANY OTHER AGREEMENT IN WRITING.
THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS THAT YOU AND CHOWBOTICS, INC. (“CHOWBOTICS” OR “US”) HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED BEFORE THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, SECTION C(6) SETS FORTH THE ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN THE PARTIES TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
I. PRODUCT TERMS
- Acceptance and Cancellation of Order. Chowbotics’ performance under this Agreement is subject to Chowbotics’s confirmation that Partner has provided sufficient credit approval or materials. In the event of cancellation of the Trial or this Agreement by Partner prior to shipment, Partner shall pay Chowbotics the actual expenses incurred by Chowbotics as a result of the cancellation.
- Installation at Trial Location(s). Partner shall, at its expense, prepare a suitable site at the Trial Location(s) for the installation of the Product(s). Partner shall bear all installation charges. Partner expressly acknowledges that Partner shall not move, transfer, or relocate any Product(s) without Chowbotics’ consent.
- Right of Inspection. Partner shall have the right to inspect the Product(s). Within 72 hours after installation of the Product(s), Partner must give written notice to Chowbotics of any claim with respect to the condition, quality or grade of the Product(s) or non‐conformance to this Failure of Partner to comply with these conditions constitutes irrevocable acceptance of the Product(s) by Partner. In the event the Product(s) do not conform to the standards set forth in this Agreement, Partner’s sole remedy and Chowbotics’s sole obligation shall be, at Chowbotics’s option, to either (a) replace the non-conforming Product(s) at Chowbotics’s expense or (b) credit Partner the amount of the purchase price of the non‐conforming Product(s) upon Partner’s return of the Product(s) to Chowbotics. Partner should keep all packing materials through the Trial Term. In the event that the Product(s) fail to pass Partner’s inspection, (a) Chowbotics shall coordinate shipping back to Chowbotics (if necessary) at Chowbotics’ expense, and (b) the Trial Fee will be waived. See Exhibit A for the limited warranty on Product(s).
- Packing Materials. Partner shall keep all packing materials in good working order to be used to return machine to Chowbotics at the end of the Trial
- Restrictions. Partner shall not distribute, sell, transfer, lease, loan, host, assign or sublicense the Product(s) without Chowbotics’ prior written consent.
- Partner shall indemnify and hold Chowbotics harmless from and against any and all third-party claims, loss, damages, liabilities, costs, and expenses including attorneys’ fees (each, a “Claim“) arising out of Partner’s breach of this Agreement or any other improper food preparation or storage practices by Partner. Chowbotics shall indemnify and hold Partner harmless from and against any Claim that Chowbotics (a) the Product(s) or an element of the Product(s) breached such third party’s intellectual property, or (b) that Chowbotics did not have requisite authority or rights to sell the Product(s) hereunder.
- Compliance with Law and Chowbotics Recommendations. Partner’s use of the Product(s) shall comply with all applicable laws, regulations and ordinances including but not limited to any food safety, U.S. Food and Drug Administration (“FDA”) rules or guidelines, Hazard Analysis Critical Control Point (“HACCP”) plan for properly cooking, cooling and storing food. Partner shall comply with all Documentation regarding use of the Product(s), including the following (a) all prepared items and greens that are used in the Sally robot shall be replaced a minimum of every 4 days, with the exception of nuts, seeds and cheese, which may be stored in Sally up to 1 month; (b) Sally’s food canisters must be cleaned, sanitized and dried each time fresh ingredients are loaded into the machine; (c) all food items that are placed in Sally’s food canisters must be cooled to under 40 degrees Fahrenheit before canisters are filled. At any time prior to, or after, installation of the Product(s), Chowbotics may provide Partner with additional, or updated, Documentation regarding use of its Product(s).
- Transfer of Title. Transfer of title to the Product(s) transfers to Partner upon shipment of the Product(s) to the Location. If, at the end of the Trial Term, Partner elects not to purchase the Product(s), title to the Product(s) shall revert back to Chowbotics upon Chowbotics’ receipt of the returned Product(s).
- Maintenance of Product(s) Partner is responsible for maintaining any Product(s) received related to the Agreement and ensuring that the Product(s) are returned to the Chowbotics in good working condition. Partner shall bear all costs of repair or replacement, other than average usage “wear and tear.”
II. SOFTWARE TERMS
- “Data” means information or data obtained, received or collected from Partner’s usage of the Software.
- “License Term” means 12 months from the Effective Date of the Agreement. The License Term shall automatically renew in 12 month increments.
- “Order Form” means the Chowbotics Order Form or other document setting forth what Partner is purchasing from Chowbotics.
- “Third Party Software” means software that belongs to neither party hereto, that is furnished with or as part of the Software, which may include open source software.
- Ownership, License, and Use.
- Software Ownership. The Software and Documentation are protected by copyright and other intellectual property laws and treaties. Chowbotics or its licensors retain the title, copyright, and other intellectual property rights in the Software and Documentation, including permitted copies. Partner does not acquire any rights, express or implied, other than those expressly granted in this Agreement. The Software and Documentation are licensed, not sold. Nothing in this Agreement constitutes a waiver of our rights under U.S. or international copyright law or any other law.
- Feedback. Partner may provide Chowbotics with suggestions, comments or other feedback with respect to the Software. Feedback is voluntary. Chowbotics may use feedback for any purpose, including improvement of the Software, without obligation or restriction of any kind.
- License. Subject to Partner’s compliance with the terms and conditions of this Agreement, Chowbotics and its third party licensors grant Partner a limited, personal, nontransferable, non-exclusive license during the License Term to download, install and/or use the Software and Documentation on the Product(s) that Partner purchased. Partner is responsible for ensuring Partner’s personnel, contractors, and any other person that uses Partner’s instance or version of the Software and Documentation (“Personnel”) comply with all relevant terms of this Agreement. Any failure of Partner or Personnel to comply will constitute a breach by Partner..
- Updates. The terms and conditions of this Agreement shall apply to any upgrades, updates, bug fixes or modified versions (collectively, “Updates”) or additional copies of the Software or Documentation. Notwithstanding any other provision of this Agreement: (a) Partner has no license or right to use any such Updates or additional copies unless Partner, at the time of acquiring them, already holds a valid license to the Software associated with such Updates and have paid any required Fees for such Software; and (b) use of additional copies of the Software is limited to backup purposes only. By downloading or using any Updates, Partner’s rights with respect to the Updates are subject to the terms of Chowbotics’s then-current policies and procedures associated with such Updates.
- Third Party Software. Notwithstanding the license granted to Partner in this Agreement, Partner acknowledges that the Software may be accompanied by, or contain certain Third Party Software. Chowbotics shall provide the applicable license terms and other information regarding the Third Party Licenses upon request. To the extent inconsistent with the terms of this Agreement, Third Party Licenses shall be governed by the applicable license, and Partner hereby agrees to be bound by the terms of such Third Party Licenses.
- Restrictions. Except as otherwise expressly provided in this Agreement, this Agreement excludes any right to, and Partner shall not: (a) distribute, sell, transfer, lease, loan, host, assign or sublicense the Software or Partner’s license rights under this Agreement, whether voluntarily or by operation of law, to any third party, directly or indirectly, and any such attempted transfer, assignment or sublicense shall be void; (b) use or allow use of the Software on any hardware other than Product(s); (c) modify, reproduce, decompile, decrypt, disassemble, reverse engineer, create derivative works of, translate or otherwise reduce to human-readable form any Software (other than Software that is provided in source code format), to gain access to trade secrets or confidential information in the Software; (d) circumvent any copy-protection, hardware version controls, or license enforcement; or attempt to do any of the foregoing, except to the extent expressly permitted by applicable law; (e) combine, commingle, or integrate any Software with open source software or incorporate open source software into any Software that may add any additional open source software requirements, obligations, or licensing terms to the Software (except for authorized Third Party Software); (f) disclose to any third party any results of benchmarking or other testing generated in connection with Partner’s use of Software, including without limitation any comparisons of the Software or Equipment with any other products; (g) provide a third party with a copy of or access to the Software (including, without limitation, source code), in any manner, (if Partner do so, Partner will be responsible to Chowbotics for all acts of such third party); (h) remove from the Software (or fail to include in any copy) any readme files, notices, headers, disclaimers, marks or labels; (i) use or allow use of the Software in violation of any applicable law or regulation or to support or facilitate any illegal activity; or (j) use or allow use of any other software with the Product(s), other than the Software and authorized Third Party Software. Notwithstanding any other provision of this Agreement, Partner shall not attempt to circumvent any security or access restrictions relevant to Software versions or features therein. Partner shall be liable to Chowbotics for any damages, injury or harm caused to Chowbotics as a result of Partner’s violation of any of these limitations or restrictions.
- Proprietary Notices. Partner agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Partner may make such backup copies of the Software as may be necessary for Partner’s lawful use, provided Partner affixes to such copies all copyright, confidentiality, and proprietary notices that appear on the original.
- Reservation of Rights. The Software and Documentation are owned by Chowbotics and its licensors, and are protected by copyright, patent, trademark, and trade secret laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws. As between Partner and Chowbotics, the Software, including without limitation intellectual property rights therein and thereto, are the sole and exclusive property of Chowbotics. All Software is licensed to Partner, not sold. Chowbotics reserves all rights not expressly granted in this Agreement, and no rights or licenses shall be deemed or interpreted to be granted or transferred hereunder, whether by implication, estoppel, or otherwise. Partner shall not provide the Software, Documentation, or details regarding the operation of the Software and/or the Product(s), or any other confidential and/or proprietary information to any third party.
- By Chowbotics. Chowbotics will pay costs and damages finally awarded in any suit against Partner to the extent based on a finding that use of the Software as licensed hereunder infringes any US patent, copyright, or trademark provided that Partner: (a) promptly inform Chowbotics of the alleged infringement in writing; (b) provide Chowbotics the exclusive right to defend and settle the suit, at Chowbotics’s expense; and (c) provide all reasonable information and assistance requested for the defense. Chowbotics shall have no liability for any infringement that is based upon or arises out of: (i) compliance with Partner’s instructions, specifications or designs; (b) combinations with other equipment, software or materials, not supplied by Chowbotics; or (c) Partner’s failure to implement any Update to the Software furnished by Chowbotics. In the event any Software is determined or believed by Chowbotics to infringe the rights of a third party, Chowbotics may, at its sole option and expense, elect to: (1) modify the Software so that it is non-infringing; (2) replace the Software with non-infringing Software that is functionally equivalent or superior in performance; (3) obtain a license for Partner to continue to use the Software as provided hereunder; or (4) if none of the foregoing can be achieved despite the reasonable efforts of Chowbotics, terminate the license for the infringing Software, have Partner return or destroy such Software, and refund to Partner any prepaid licensing fees for the infringing Software. The foregoing states the sole and exclusive obligations of Chowbotics for intellectual property infringement.
- By Partner. Partner shall defend Chowbotics and hold Chowbotics, its affiliates, directors, employees, and representatives harmless against any liabilities, losses, damages, demands, claims, suits, and proceedings as well as fees, expenses and other costs of any kind or nature, including, without limitation, any attorney fees, expert fees, filing fees, judgments, and settlement amounts associated therewith, as and when incurred, arising out of or related to Partner’s use of the Software or any breach or alleged breach by Partner of any obligation, representation or warranty contained in this Agreement and pay any amounts finally awarded or agreed to in settlement of any such claim.
- Government Purchasers. The Software and Documentation are “commercial items” as defined at FAR 2.101 comprised of “commercial computer software” and “commercial computer software documentation” as those terms are used in FAR 12.212. Consequently, regardless of whether Partner is the United States Government or a department or agency thereof, Partner shall acquire only those rights with respect to the Software and Documentation that are set forth in this Agreement.
- Export. The Software and Documentation supplied by Chowbotics under this Agreement are subject to export controls under the laws and regulations of the United States and any other applicable countries’ laws and regulations. Partner shall comply with such laws and regulations governing export, re-export, import, transfer and use of Chowbotics Software and Documentation and will obtain all required federal and local authorizations, permits, or licenses. Partner and Chowbotics each agree to provide the other information, support documents, and assistance as may reasonably be required by the other in connection with securing authorizations or licenses.
- Software Audit. Partner agrees that Chowbotics may audit Partner’s use of the Software for compliance with these terms, upon reasonable notice. Partner agrees to cooperate fully with Chowbotics and its authorized agents in any such audit to assist in accurately determining Partner’s compliance with the terms and conditions of this Agreement. In the event that such audit reveals any use of the Software by Partner other than in full compliance with the terms of this Agreement, Partner shall reimburse Chowbotics for all reasonable expenses related to such audit in addition to any other liabilities Partner may incur as a result of such non-compliance.
III. TERMS GOVERNING BOTH THE PRODUCT(S) AND SOFTWARE
- Payment/Returns. Unless otherwise specified in the Order Form, any license or subscription fees with respect to the Software and Product(s) are due and payable no later than thirty (30) days after the date of invoice. Late invoices shall be subject to interest of 1.5% per month (or the maximum rate permitted by law if less) plus any expenses of collection. Chowbotics reserves the right to suspend and/or terminate access to the Software and/or Products if any fees payable hereunder are past due. Such suspension or termination shall not relieve Partner from its obligation to pay all amounts due under this Agreement or an Order Form. All payments must be made in U.S. Dollars. All fees are non-refundable except as provided herein.
- Taxes. All prices are exclusive of any sales, use, excise or other taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable to Partner. Partner shall be responsible for all such charges, costs and taxes; provided that Partner shall not be responsible for any tax imposed upon Chowbotics based on Chowbotics’s income. If a tax authority subsequently finds that any Tax payment related to any sale or service to Partner was insufficient and requires additional payment by Chowbotics, Chowbotics will make such payment and Partner will reimburse Chowbotics for such additional tax payments (including, without limitation, any interest, levies, and penalties). Chowbotics will not be responsible for any tax or other amount assessed to Partner by any government agency based on Partner’s net income, gross revenue, or for any other reason.
- Freight. Except as provided herein, Partner is responsible for the cost of freight of shipping any Product(s) included in the Trial Agreement both from the Chowbotics to the Trial Location(s) and from the Trial Location(s) back to Chowbotics. Chowbotics may designate a different return shipping address than the originating address, however, all addresses shall be located in the contingent United States.
- Partner Costs. Partner is responsible for all telecommunication or Internet connections and associated fees required to access or use the Software and/or Product(s), as well as the Product(s) and all other utilities, HVAC, hardware and software on Partner’s site.
- Term and Termination. Partner agrees upon termination of this Agreement to cease using the Software and either return to Chowbotics or destroy all copies of the Software and Documentation in Partner’s possession. Termination of this Agreement will automatically terminate all licenses granted herein. The protections in this Agreement relating to intellectual property protection, confidentiality, disclaimers, and liability limitations shall survive any termination of this Agreement. For absolute clarity, at the end of the Trial Term, this Agreement shall automatically renew and these terms shall apply to all future use of the Product(s) and Software.
- Confidential Information. “Confidential Information” means: (a) the Software and Documentation; (b) the technology, ideas, know-how, documentation, processes, algorithms and trade secrets embodied in the Software and Product(s); (c) any passwords, logins, or software keys related to the Software; (d) any other information in written or electronic media that is identified as “confidential,” “proprietary” or with a similar legend at the time of such disclosure; and (e) any other information that a reasonable person would understand to be confidential by the nature of the circumstances, context, or content.
- Legal Terms.
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY ANTICIPATED PROFITS, NOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR CONNECTED WITH THIS AGREEMENT OR THE PRODUCT(S) OR SOFTWARE, REGARDLESS OF WHETHER A CLAIM IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. EXCEPT FOR PARTNER’S PAYMENT OBLIGATIONS OR PARTNER’S BREACH OF CHOWBOTICS’ INTELLECTUAL PROPERTY RIGHTS, A PARTY’S AGGREGATE CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL LIST PRICE OF THE PRODUCT(S) SOLD HEREUNDER. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE WARRANTY IN EXHIBIT A FAILS OF ITS ESSENTIAL PURPOSE.
- DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPRESSLY CONTAINED IN THIS AGREEMENT (INCLUDING EXHIBIT A), CHOWBOTICS DISCLAIMS AND MAKES NO PERFORMANCE REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCT(S), THE SOFTWARE, OR ANY OF CHOWBOTICS’ SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR GUARANTEE OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
- Equitable Relief. Partner agrees that a material breach of this Agreement adversely affecting Chowbotics’s intellectual property rights may cause irreparable injury to Chowbotics for which monetary damages would not be an adequate remedy, and Chowbotics shall be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law.
- Data Ownership. In connection with Partner’s use of the Product(s) and the Software, Chowbotics may obtain, receive, or collect data or information, including Partner’s contact information, computer system, installation, or usage specific data (collectively, the “Data“). Partner hereby grant Chowbotics a non-exclusive, worldwide, fully paid-up, royalty-free, perpetual and irrevocable license to: (a) use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely to facilitate the performance of sales and services by Chowbotics and its Affiliates (including, but not limited to, quality, safety, energy, and security analytics, product and service diagnostics and prognostics, and reporting), and to facilitate or improve Partner’s use of the Product(s); (b) use and aggregate the Data in support of Chowbotics’s marketing and sales activities; and (c) use Data , in a form which does not personally identify Partner, to improve our products, including the Product(s), Software and services and we may share anonymous aggregate data with our third party suppliers and service providers.
- Governing Law
- Governing Law. The Agreement is subject with the laws of the State of Delaware, without regard to its conflicts of laws principles. Neither the provisions of the United Nations Convention on Contracts for the International Sale of Goods nor those of the Uniform Computer Information Transactions Act shall apply.
- Arbitration. Any dispute, controversy or claim arising out of, relating to or in connection with this Agreement, including the breach, termination or validity thereof, shall be finally resolved by binding arbitration, rather than in court, except that (1) Partner may assert claims in small claims court if Partner’s claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) Partner or Chowbotics may seek injunctive relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). Chowbotics and Partner agree that, because both are business entities that mutually benefit from streamlined and confidential resolution, this arbitration agreement shall apply to all disputes arising from or relating to the subject matter of this Agreement or the relationship between the parties and their personnel. In that regard, this Arbitration Agreement shall be binding upon and enforceable by not only the parties, but also their affiliates, and their owners, officers, directors, managers and employees. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement. This Arbitration Agreement is governed by the Federal Arbitration Act in all respects. Before a party may begin an arbitration proceeding, that party must send notice of an intent to initiate arbitration. The arbitration will be conducted by JAMS under its rules and pursuant to the terms of this Agreement, but in the event of a conflict between the two, the provisions of this Arbitration Agreement shall supersede any and all conflicting arbitration administrator’s rules or procedures. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. Payment of all filing, administration, and arbitration fees will be governed by JAMS’s rules. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The arbitrator’s decision is final and binding on Partner and Chowbotics.
- Waiver of Jury Trial. PARTNER AND DOORDASH WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND RECEIVE A JUDGE OR JURY TRIAL. Partner and Chowbotics are instead electing to have claims and disputes resolved by arbitration. There is no judge or jury in arbitration, and court review of an arbitration award is limited.
- Waiver of Class or Consolidated Actions; Severability. PARTNER AND DOORDASH AGREE TO WAIVE ANY RIGHT TO RESOLVE CLAIMS WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT ON A CLASS, COLLECTIVE, OR REPRESENTATIVE BASIS. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE MERCHANT CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If, however, this waiver of class or consolidated actions is deemed invalid or unenforceable with respect to a particular claim or dispute, neither you nor Chowbotics is entitled to arbitration of such claim or dispute. Nothing in this provision shall prevent you or Chowbotics from participating in a class-wide settlement of claims.
- Entire Agreement. This Agreement, and any amendment or addendum to this Agreement that accompanies the Software and Product(s), is the complete and exclusive agreement between Chowbotics and Partner, and supersede all prior agreements, whether written or oral, relating to the Software and Product(s). No additional or different terms in any purchase order or other similar document furnished by Partner will be binding on Chowbotics and all such terms are deemed rejected.
- Amendment. This Agreement may not be changed or modified except by an instrument in writing signed by a duly authorized representative of Chowbotics.
- Enforceability. If for any reason a court of competent jurisdiction finds any provision of this Agreement or portion thereof, to be unenforceable, that provision of the Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
- Assignment. Chowbotics may assign this Agreement or delegate its responsibilities upon written notice to Partner. Partner may not assign this Agreement, its rights or licenses, or delegate its duties, hereunder, nor may any successor entity of Partner assume such rights, licenses or duties, in whole or in part, directly or indirectly, whether by sale of stock or assets, merger, change of control, operation of law, or otherwise, without Chowbotics’s prior written consent. Any assignment or assumption in violation of the foregoing shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective permitted successors and assigns.
- No Waiver. Chowbotics’s failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. Chowbotics’s waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of the Agreement.
- Force Majeure. Chowbotics’s obligations hereunder are subject to delay, modification, rescission and/or cancellation by Chowbotics in the event of any cause beyond Chowbotics’s control, including, but not limited to, fires, floods, strikes or other labor disputes, accidents to machinery, acts of sabotage, riots, shortages of material, delay in transportation or lack of reasonably available transportation facilities or restrictions imposed by federal, state, local or other governmental authority.
- Captions. The captions in this Agreement are for convenience only and shall not limit or otherwise affect any of the terms or conditions of this Agreement.
- Statute of Limitations. Any action resulting from any breach on the part of Chowbotics as to the sale of the Products must be commenced within one year after the cause of action has accrued.
EXHIBIT A TO THE CHOWBOTICS AGREEMENT CHOWBOTICS STANDARD PRODUCT WARRANTY
This Chowbotics Standard Product Warranty is made part of the Chowbotics Agreement (“Agreement”) attached hereto. The following warranty only applies to Product(s) and Software (as defined in Exhibit B and/or the applicable Order Form) that are purchased from and installed by or at the direction of Chowbotics. Chowbotics does not offer a warranty on any canisters or assemblies (paddles, shafts, shufflers , lids, and latches).
- Warranty. Chowbotics warrants to Partner that Sally will be free from material defects in materials under normal use and conditions for a period of twelve (12) months after the date on which Sally is installed by Chowbotics (“Warranty Period“) at the original location or such other location as Chowbotics installs or moves the Sally (“Original Location“) , subject to the terms set forth herein. In the event that Partner submits a valid claim during the Warranty Period that there has been a failure of the Sally due to a defect in materials or workmanship, subject to the warranty exclusions set forth below, Chowbotics will arrange for the Sally to be repaired at the Original Location. The warranty service will be without charge for labor or parts, if it occurs during normal business hours (8:00 a.m. to 5:00 p.m., local time, Monday through Friday, excluding federal holidays). If Partner requires that warranty service be performed outside normal business hours (“Emergency Service“), Partner will be charged for, and agrees to pay, additional labor costs incurred by Chowbotics as a result of the Emergency Service.
- Exclusions. This warranty does not apply to or cover expenses related to (a) a Sally that has been altered or modified by anyone who is not a representative of Chowbotics, (b) a Sally that is used outside the permitted or intended uses documented by Chowbotics including Partner’s failure to maintain the Sally or other Product(s) as documented, (c) the cost of repairs made or attempted by anyone other than a Chowbotics-authorized personnel, (d) damage to the Sally caused by foreign object interference, (e) a Sally that has been moved without Chowbotics’ authorization, (f) use of the Sally with ingredients or supplies that are outside of the Specifications: (g) claims due to moving, shipping, or relocating the Sally from the Original Location to another without consultation with Chowbotics; (h) other equipment installed after the installation date, which interferes with the performance of the Product; or (i) failure to clean the Sally daily. Partner may contact Chowbotics at 650-372-3700 if Partner has any questions about whether Partner is authorized to make any modification, extension or addition to Sally or the Product(s). If any term is held to be illegal or unenforceable, the legality or enforceability of the remaining terms shall not be affected or impaired.
- Exclusive Remedy. THE FOREGOING WARRANTY REPRESENTS THE FULL EXTENT OF CHOWBOTICS’ LIABILITY WITH RESPECT TO THE PRODUCT(S). PARTNER’S RIGHT TO REPAIR AS SPECIFIED ABOVE IS PARTNER’S SOLE AND EXCLUSIVE REMEDY AGAINST CHOWBOTICS. IN NO EVENT SHALL CHOWBOTICS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE OR DATA, ARISING OUT OF OR RELATING TO THE SALE OR USE OF THE PRODUCT(S), EITHER DURING OR AFTER THE WARRANTY PERIOD.
- Warranty. Chowbotics warrants for a period of ninety (90) days from first execution on Sally (“First Use”), that the Software will substantially conform with the Documentation. Partner’s sole and exclusive remedy and the entire liability of Chowbotics under this limited warranty shall be: (a) for Chowbotics to use commercially reasonable efforts to promptly correct any non-conformities; or (b) at Chowbotics’s option, to refund the fees paid for such Software. This warranty shall be void if Partner attempts to modify the Software in any way or use the Software in breach of this Agreement. Chowbotics makes no representation or warranty, express or implied, that the operation of the Software will be uninterrupted or error free, or that the functions contained in the Software will meet or satisfy Partner’s intended use or requirements.
- Exclusions: To the maximum extent permitted by law the foregoing limited warranty is in lieu of all other warranties, express or implied, and Chowbotics and its licensors disclaim any and all implied warranties or conditions, including (without limitation) any warranty of title, noninfringement of third party rights, merchantability or fitness for a particular purpose or any warranty under ucita. no oral or written information, marketing or promotional materials, or advice given by Chowbotics or its authorized representatives shall create any additional warranties or in any way increase the scope of the express warranties provided in this Section. Some jurisdictions do not allow the exclusion of implied warranties, and if so, this exclusion shall not apply to Partner in such jurisdiction(s).
- Exclusive Remedy. THE FOREGOING WARRANTY REPRESENTS THE FULL EXTENT OF CHOWBOTICS’ LIABILITY WITH RESPECT TO THE SOFTWARE. IN NO EVENT SHALL CHOWBOTICS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY LOSS OF PROFITS, REVENUE OR DATA, ARISING OUT OF OR RELATING TO THE SALE OR USE OF THE SOFTWARE, EITHER DURING OR AFTER THE WARRANTY PERIOD.
- Chowbotics will provide training to Partner’s team members for managing the Product(s) identified below. Partner will run Sally (identified below) on a day-to-day basis. Chowbotics will provide access to our customer support resources as needed.
- Partner and Chowbotics will mutually agree on the criteria for success prior to commencement of the trial based on marketing and launch strategy as well as Sally placement within Partner’s Trial Location(s). The success criteria as shared by the Partner team is below:
- Average Bowls Per Day: __
- Partner agrees to work with Chowbotics to assess and maximize their “Sally Ownership Score” prior to commencement of the Trial.
- Partner will share all relevant consumer and operational data with Chowbotics in an effort to make Sally more efficient and the partnership beneficial for both parties. For clarity, Partner shall not share consumer personal information with Chowbotics.
- Partner will communicate a decision related to purchasing or not purchasing Sally the Robot before the end of the Trial Term. If a decision is made to purchase, a Purchase Order will be signed by Partner and provided to Chowbotics before the end of the Trial Term. If a decision is made to not purchase, freight charges for shipping the Sally back to Hayward, CA, will be paid by Partner. Partner agrees to retain the shipping crate for return shipment, if necessary.
- One (1) Sally the Salad Robot (“Sally”)
- Two (2) sets of canisters and one (1) 1 Chow TV per location
- Access to Chowbotics Customer Support
- Chowbotics’ computer software, programs, technology, cloud application, services, firmware and associated media and any updates, upgrades or enhancements thereto, or portions thereof
- Other documentation on permissible uses and maintenance as may be provided by Chowbotics, including any documentation related to the Software, either in print or electronic, and which may include end user manuals, operation instructions, installation guides, release notes, and on-line help files regarding the use of the Software (defined below) (collectively, “Documentation”)
- ChowCloud robot management portal
- Partner shall pay the Trial Fee on the first page of this Agreement within 7 days of executing this Agreement. Partner shall pay the Full Purchase Price within 30 days of the end of the Trial Term.