1. CONTRACTUAL RELATIONSHIP
Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and CHOWMILL. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. CHOWMILL may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
CHOWMILL may amend the Terms related to the Services from time to time. Amendments will be effective upon CHOWMILL’s posting of such updated Terms at this location or the amended policies or supplemental terms on the applicable Service. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
2. THE SERVICES
The Services constitute a technology platform that enables users of CHOWMILL’s mobile applications or websites provided as part of the Services (each, an “Application”) to arrange meal delivery services with third party restaurants through a network of independent food delivery couriers (the technology platform, and services is collectively “CHOWMILL”). Unless otherwise agreed by CHOWMILL in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use.
YOU ACKNOWLEDGE THAT CHOWMILL IS MERELY A TECHNOLOGY COMPANY FACILITATING THE ORDERING AND DELIVERY OF MEALS. CHOWMILL IS NOT RESPONSIBLE FOR THE THIRD-PARTY FOOD SERVICES’ (RESTAURANTS AND CATERING SERVICES) AND DELIVERY PROVIDERS’ (COURIERS AND DELIVERY DRIVERS) FOOD PREPARATION AND FOOD HANDLING SAFETY. CHOWMILL DOES NOT VERIFY FOOD SERVICES’ AND DELIVERY PROVIDERS’ COMPLIANCE WITH APPLICABLE LAWS OR REGULATION. FURTHERMORE, CHOWMILL HAS NO RESPONSIBILITY OR LIABILITY FOR ACTS BY ANY THIRD-PARTIES, OTHER THAN AS STATED HEREIN.
CHOWMILL does not guarantee that Third Party Providers will deliver every Meal exactly within the timeframe we give you when you initiate a Transaction. In particular, in the case of inclement weather or other events beyond our control that interfere with the ability to deliver your Meal, we will attempt to deliver your Meal as soon as reasonably possible. In the event that timely delivery of your Meal is not feasible, we will cancel your Meal delivery for the period so affected and issue you a credit or refund of the purchase price for that Meal. If a Meal arrives early or late, you agree that you will still accept the Meal and release us from all liability for any loss, damage, or inconvenience that you encounter as a result of early or late delivery.
Subject to your compliance with these Terms, CHOWMILL grants you a limited, non-exclusive, non- sublicensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by CHOWMILL and CHOWMILL’s licensors.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by CHOWMILL; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
THIRD-PARTY SERVICES AND CONTENT
The Services and all rights therein are and shall remain CHOWMILL’s property or the property of CHOWMILL’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner CHOWMILL’s company names, logos, product and service names, trademarks or services marks or those of CHOWMILL’s licensor.
3. YOUR USE OF THE SERVICES
In order to use most aspects of the Services, you must register for and maintain an active personal user Services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to CHOWMILL certain personal information, such as your name, address, mobile phone number and age, as well as at least one valid credit card. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired credit card on file, may result in your inability to access and use the Services or CHOWMILL’s termination of this Agreement with you. You are responsible for all activity that occurs under your Account, and, as such, you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by CHOWMILL in writing, you may only possess one Account.
USER REQUIREMENTS AND CONDUCT
The Service is not available for use by persons under the age of 18. You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive meal delivery services from Third Party Providers unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes (e.g., no transport of unlawful or hazardous materials). You will not in your use of the Services cause nuisance, annoyance, inconvenience, or property damage, whether to the Third Party Provider or any other party. In certain instances CHOWMILL may require you to provide proof of identity to access or use the Services, and you agree that you may be denied access or use of the Services if you refuse to provide proof of identity.
By creating an Account, you agree that the Services may send you informational text (SMS) messages as part of the normal business operation of your use of the Services. You acknowledge that opting out of receiving text (SMS) messages may impact your use of the Services.
CHOWMILL may, in CHOWMILL’s sole discretion, create promotional codes that may be redeemed for Account credit or other features or benefits related to a Third Party Provider’s services, subject to terms that CHOWMILL establish on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public, unless expressly permitted by CHOWMILL; (iii) may be disabled by CHOWMILL at any time for any reason without liability to CHOWMILL; (iv) may only be used pursuant to the specific terms that CHOWMILL establish for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. CHOWMILL reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other user in the event that CHOWMILL determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
USER PROVIDED CONTENT
CHOWMILL may, in CHOWMILL’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to CHOWMILL through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to CHOWMILL, you grant CHOWMILL a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and CHOWMILL’s business and on third- party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant CHOWMILL the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor CHOWMILL’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide User Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by CHOWMILL in its sole discretion, whether or not such material may be protected by law. CHOWMILL may, but shall not be obligated to, review, monitor, or remove User Content, at CHOWMILL’s sole discretion and at any time and for any reason, without notice to you.
NETWORK ACCESS AND DEVICES
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. CHOWMILL does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You understand that use of the Services may result in payments by you for the services you receive from Third Party Providers (“Charges”). After you have received services obtained through your use of the Service, CHOWMILL will facilitate payment of the applicable Charges on behalf of the Third Party Provider, as such Third Party Providers’ limited payment collection agent, using the preferred payment method designated in your Account, and will send you a receipt by email. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the Third Party Providers. Charges will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by CHOWMILL.
All Charges are due immediately and payment will be facilitated by CHOWMILL using the preferred payment method designated in your Account. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that CHOWMILL may, as the Third Party Providers’ limited payment collection agent, use a secondary payment method in your Account, if available. For invoiced sales, payment terms are net 7 days on either daily or weekly invoices, depending on the type or level of service (default is daily). A credit card may be required to place any orders that are below a certain size. The company reserves the right to charge a late fee up to 3% on any past due invoices as permitted by law. You are also acknowledging that CHOWMILL retains your payment as compensation for purchasing and transporting the food, regardless of whether you are able to pick up and consume the food within the designated time window, or if you refuse acceptance of confirmed order at the time of delivery.
CHOWMILL reserves the right to establish, remove and/or revise Charges for any or all aspects of the Services at any time in CHOWMILL’s sole discretion. CHOWMILL may from time to time provide certain users with promotional offers and discounts that may result in different Charges for the same or similar Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you.
5. CANCELLATION FEE
CHOWMILL allows your employees to change their orders, by canceling and re-ordering, until the cutoff time for your account, allowing them to make meal selections that best match their needs.
We understand there are occasionally last minute changes that impact your order. We allow program administrators to cancel up to 5 employee orders until the cutoff time for your account to ensure you can manage those situations. For cancellation of service on specific days, we require that program administrators inform us by 5pm 2 business (48 hours) days before the delivery date through their account managers or support at email@example.com or (408) 883-9415.
CHOWMILL reserves the right to charge the full amount of orders canceled beyond the 5th canceled order (by individuals or program administrators) after 5pm, 2 business days (48 hours) before the delivery date. These charges would be payable in the next invoice or billing cycle.
6. SERVICE LIMITATIONS AND OTHER FEES
CHOWMILL’s services may only be available on certain days, or locations, based on your agreement with CHOWMILL. If availability of these services changes, CHOWMILL will communicate the changes to you in a timely manner.
CHOWMILL charges variable fees for delivery, which will be assessed based on the order size, your delivery location, or the CHOWMILL service being used. Similarly, in certain instances, CHOWMILL may require a minimum quantity of at least 5 meals to be purchased per order (which may be subject to change).
7. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY
THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” CHOWMILL DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, CHOWMILL MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY GOODS OR SERVICES OBTAINED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY THIRD PARTY GOOD OR SERVICES OBTAINED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
THIS DISCLAIMER DOES NOT ALTER YOUR RIGHTS AS A CONSUMER TO THE EXTENT NOT PERMITTED UNDER THE LAW IN THE JURISDICTION OF YOUR PLACE OF RESIDENCE.
LIMITATION OF LIABILITY
CHOWMILL PARTNERS WITH THIRD PARTY RESTAURANTS AND PROVIDES MEAL RECOMMENDATIONS. DELIVERY SERVICES ARE PROVIDED BY THIRD PARTY INDEPENDENT CONTRACTORS (“DELIVERY SERVICES”). CHOWMILL IS NOT A RESELLER OF FOOD OR A DELIVERY SERVICE. CHOWMILL CANNOT GUARANTEE THAT FOOD MATCHES INDIVIDUAL PREFERENCES AND CANNOT GUARANTEE IT DOES NOT CONFLICT WITH ANY SPECIFIC DIETARY RESTRICTIONS, SUCH AS ALLERGIES. CHOWMILL DOES NOT CONTROL RESTAURANT KITCHEN CONDITIONS AND IN NO EVENT WILL BE HELD LIABLE FOR SUGGESTING AND/OR FACILITATING THE DELIVERY OF FOOD ITEMS WHICH CONTRAVENE YOUR DIETARY RESTRICTIONS. CHOWMILL IS NOT RESPONSIBLE FOR FOOD PREPARATION OR HANDLING SAFETY AND DOES NOT VERIFY PARTNERS’ COMPLIANCE WITH APPLICABLE LAWS OR REGULATION. EAT AT YOUR OWN RISK.
THE QUALITY OF THE DELIVERY SERVICES SCHEDULED THROUGH THE USE OF CHOWMILL IS ENTIRELY THE RESPONSIBILITY OF THE THIRD-PARTY INDEPENDENT CONTRACTORS WHO ULTIMATELY PROVIDE DELIVERY SERVICES TO YOU. YOU UNDERSTAND THAT BY USING THE DELIVERY SERVICES YOUR FOOD MAY BE EXPOSED TO SITUATIONS THAT ARE POTENTIALLY DANGEROUS OR HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE CHOWMILL AT YOUR OWN RISK.
IN NO EVENT SHALL CHOWMILL INC. BE LIABLE TO YOU OR ANYONE CONSUMING THE FOOD FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OR DAMAGES WHATSOEVER (EVEN IF CHOWMILL INC. HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER IN AN ACTION UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH THE USE, INABILITY TO USE, PERFORMANCE OF, OR SERVICES PROVIDED ON OR THROUGH CHOWMILL CHOWMILL ASSUMES NO RESPONSIBILITY AND SHALL NOT BE LIABLE FOR ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF, BROWSING OF, OR DOWNLOADING OF ANY MATERIAL FROM CHOWMILL. CHOWMILL ASSUMES NO RESPONSIBILITY OR LIABILITY IN ANY MANNER ARISING OUT OF OR IN CONNECTION WITH ANY INFORMATION, CONTENT, PRODUCTS, SERVICES, OR MATERIAL AVAILABLE ON OR THROUGH CHOWMILL, AS WELL AS ANY THIRD PARTY WEBSITE PAGES OR ADDITIONAL WEBSITES LINKED TO THIS SITE, FOR ANY ERROR, DEFAMATION, LIBEL, SLANDER, OMISSION, FALSEHOOD, OBSCENITY, PORNOGRAPHY, PROFANITY, DANGER, INACCURACY CONTAINED THEREIN OR HARM TO PERSON OR PROPERTY CAUSED THEREBY. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL CHOWMILL PROVIDE TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED (A) THE AMOUNT PAID BY YOU TO CHOWMILL INC. OR A RESTAURANT AFFILIATE, IF ANY, OR (B) $100.00 USD (WHICHEVER IS LESS). IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.
YOU WARRANT THAT AS A REPRESENTATIVE OF ANY COMPANY OR ORGANIZATION FOR WHICH YOU ARE PLACING ORDERS FOR, YOU HAVE THE AUTHORITY TO BIND THE COMPANY OR ORGANIZATION TO THE FOLLOWING INDEMNIFICATION AGREEMENT AND THE ABOVE LIMITATIONS ON LIABILITY AND THAT YOU DO BIND THEM THROUGH YOUR USE OF CHOWMILL: THE COMPANY OR ORGANIZATION FOR WHICH YOU REPRESENT INDEMNIFIES ANY AND ALL CLAIMS, ACTIONS AGAINST, OR LAWSUITS AGAINST CHOWMILL BROUGHT FORTH BY ANYONE WHO RECEIVES FOOD FROM THE ORDERS YOU PLACE THROUGH CHOWMILL.
You agree to indemnify and hold CHOWMILL and its officers, directors, employees and agents, harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services; (ii) your breach or violation of any of these Terms; (iii) CHOWMILL’s use of your User Content; or (iv) any foodborne illness that may occur to those who receive the food delivered which has been ordered by you; (v) your violation of the rights of any third party, including Third Party Providers.
8. JURISDICTION, APPLICABLE LAW, AND LIMITATIONS
9. DISPUTE RESOLUTION VIA ARBITRATION
The parties agree that any claim or dispute between them or against any agent, employee, successor, or assign of the other, whether related to this Agreement or otherwise, and any claim or dispute related to this Agreement or the relationship contemplated under this Agreement, including the validity of this arbitration clause, shall be resolved by binding arbitration by the American Arbitration Association, under the Arbitration Rules then in effect. Any award of the arbitrator(s) may be entered as a judgment in any court of competent jurisdiction. Any controversy shall be arbitrated in San Francisco, California. Information may be obtained and claims may be filed at any office of the American Arbitration Association or at Corporate Headquarters, 335 Madison Avenue, Floor 10, New York, New York 10017-4605. Telephone: 212-716-5800, Fax: 212-716-5905, Website: www.adr.org. This Agreement shall be interpreted under the Federal Arbitration Act.
10. No Class Actions
YOU AND CHOWMILL AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.
Further, unless both you and CHOWMILL agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding.
11. OTHER PROVISIONS
CHOICE OF LAW
These Terms are governed by and construed in accordance with the laws of the State of California, U.S.A., without giving effect to any conflict of law principles.
CLAIMS OF COPYRIGHT INFRINGEMENT
Claims of copyright infringement should be sent to CHOWMILL’s designated agent, please email firstname.lastname@example.org for more information.
The Company may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to CHOWMILL, with such notice deemed given when received by CHOWMILL, at any time by first class mail or pre-paid post. Please email email@example.com to get the address information.
You may not assign these Terms without CHOWMILL’s prior written approval. CHOWMILL may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of CHOWMILL’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, CHOWMILL or any Third Party Provider as a result of this Agreement or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. Our failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by CHOWMILL in writing.