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FANFOOD'S TERMS AND CONDITIONS OF SERVICES

FANFOOD, INC.
Terms and Conditions of Service

These Terms and Conditions of Service (the “Agreement” or “Terms”) is effective and applicable to that certain Order Form, Statement of Work, Quote, or any other work order (each an “Order Form”, “Quote” or “SOW”) to which these Terms are attached or are referred to (such date, the “Effective Date”) and shall be applicable to those certain services and/or products provided by FanFood, Inc., a Delaware corporation (“FanFood” or “Company”) to the applicable customer set forth in such Order Form, Quote, or SOW (such party, the “Customer” or “Client”). FanFood and Customer at times are each referred to herein as a “Party” and, collectively, as the “Parties.”

  1. Agreement Purpose and Scope of Services. Under these Terms, FanFood agrees to make available to Customer a certain web and/or mobile application and corresponding software, operated and maintained by FanFood, as well as certain optional equipment as is specifically described in the applicable Order Form to which these described in the corresponding Services Description on one or more Order Forms that are either attached to this Agreement or entered into following the Effective Date and reference this Agreement (each an “Order Form”).. FanFood’s services in connection with making such software available to Customer for Customer’s access and use are referred to herein as the “Services”, such web application and software are referred to herein as the “Software”, and collectively the Services and Software shall be referred to as the “FanFood Product.”
  2. Subscription to the Services.
    1. In consideration of payment of the fees as set out below or on the applicable Order Form, during the Term of this Agreement, FanFood grants Customer a restricted, limited, non-exclusive, non-transferable, subscription to use the FanFood Product. Except as expressly provided herein, this Agreement does not grant Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licenses with respect to the FanFood Product. Customer further agrees that it will not: (a) attempt to copy, modify, duplicate, create derivative works from, mirror, republish, download, display, transmit, distribute, or in any way emulate all or any portion of the FanFood Product in any form or media or by any means; (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of any computer code used by FanFood to provide the FanFood Product; (c) access all or any part of any website, software, source code or computer code used by FanFood to provide the FanFood Product in order to build a product or service that competes with the Services; or (d) use or allow the transmission, transfer, export, re-export or other transfer of any Services, Software, or technology or information it obtains or learns pursuant to this Agreement.
    2. To the extent provided for in an Order Form, Customer may purchase the FanFood Product to be used by third-party beneficiaries of Customer (such party, the “Third-Party Customer”). To the extent such contractual relationship is contemplated, Customer shall clearly provide for such use of the FanFood Product in the applicable Order Form and each Third-Party Customer shall enter into a separate agreement provided by FanFood and to be subject to these Terms or such other terms required by FanFood to use the FanFood Product.
  3. Expedited Services. Neither FanFood nor its affiliates provide expedited provisioning, delivery, or logistics services. Customer acknowledges and agrees that any delivery services or other expedited provisioning, delivery, or logistics services Customer desires to offer shall be Customer’s sole responsibility.
  4. Fees and Billing
    1. FanFood Product Fees; Invoicing. The fees for the FanFood Product are stated in each applicable Order Form, subject also to the terms below. Unless provided otherwise in an Order Form, FanFood shall provide Customer or the Third-Party Customer with an invoice detailing relevant fees due in connection with this Agreement on a monthly basis. To the extent any fees and expenses are “netted” by FanFood in a given month pursuant to Section 4.2 hereof, such netted amounts will be reflected on the invoice related to such month and counted towards any fees charged for such month. Unless provided otherwise in an Order Form, all fees reflected in any invoice that are not covered by amounts netted pursuant to Section 4.2 are due and owing either in advance for the applicable month of service or within fifteen (15) days of Company sending such invoice to Customer or Third-Party. Customer shall pay interest computed at the rate equal to the higher of (i) one and one-half percent (1 1/2%) per month or (ii) the maximum rate permitted by law, on any amounts due hereunder that are remitted more than thirty (30) days late. Customer shall be responsible for all costs and expenses, including court costs and attorneys fees, incurred by Company in collecting any fees owed to it under this Section 4 or enforcing any of its rights under this Agreement. Failure to pay invoices and amounts owing when due is a material breach of this Agreement.
    2. Billing. As part of the FanFood Product process and as further provided in the Order Form, FanFood shall process (or use third-parties to process) the payments of third-parties ordering product from the Customer. FanFood shall have the right to “net” or take all fees and expenses owing to FanFood from Customer from those amounts collected from third-party customers before or as part of the transaction to provide those amounts to Customer. All revenues owed by FanFood back to Customer will either be automatically deposited into Customer’s bank account within 14 business days or sooner if mutually agreed upon of each event or sent a check at the end of each month totaling all event remittance for that month. The terms of such “netting” may be further provided for in the applicable Order Form.
    3. Service Fee(s). In consideration for use of the FanFood Product, FanFood may charge Customer a service fee for each item or transaction provided via the FanFood Product ("Service Fee"). The Service Fee is net of any taxes for which Customer is liable. The Service Fee is the Retail Price of all product sold by Customer via the FanFood Product (excluding any sales tax collected on Customer’s behalf) multiplied by the applicable Service Fee. FanFood will remit to Customer the total Retail Price collected for all product sold by Customer via the Product plus the taxes collected on Customer’s behalf via the Marketplace less the retained Service Fee, Payment Processing, and any refunds given to Customer’s customers (such remitted amount, the "FanFood Revenue") (remittance will be within 14 days of items being sold or sooner if mutually-agreed upon). All fees under this Agreement shall be paid in U.S. Dollars. If agreed and/or provided in the Order Form, Customer may also be charged an Activation Fee for FanFood to activate Customer on the FanFood Product and/or a Promotional Fee in consideration of the enhanced promotion Customer receive by selling Customer’s items on the FanFood Product. FanFood will give Customer aggregate information regarding the number of items picked up and provided by Customer to Customer’s customers (including the date, and for Marketplace only, specific items and reason given for any refund (if any)), all subject to applicable privacy laws.
    4. Taxes. Customer is responsible for determining and setting the retail price ("Retail Price") for each item to be made available via the FanFood Product, but Customer agrees that Customer will not set a Retail Price higher than the amount Customer is charging for similar products in store. Customer is the "retailer" or "seller" of all items made available in the FanFood Product for local and state sales tax purposes and the responsible party for collection and remittance of applicable sales tax. The Retail Price for each product sold through the FanFood Product will not include sales tax, but Customer is solely responsible for determining all applicable sales tax and identifying and informing FanFood of the appropriate sales tax amount to be charged on Customer’s behalf for items sold via the FanFood Product.
    5. Payment Processing. FanFood currently uses a third-party Company, Stripe, to process payments. Such process fees will be provided for in the applicable Order Form. The payment processing fee is deducted from the gross sales and configured prior to either payment being sent to Customer’s designed bank account through FanFood Product or Check by mail.
    6. 4.6. Additional Fees. Additional fees and charges for the FanFood Product may be provided on the Order Form.
  5. On boarding & Training. FanFood will provide to Customer on boarding training as provided in the Order Form. Additional training may be added by mutual agreement between the Parties or as provided in the Order Form.
  6. FanFood Product Support. FanFood agrees to provide technical support to Customer for the FanFood Product. FanFood will offer Customer a dedicated email address for which to send inquiries. From time to time, FanFood may perform scheduled and/or unscheduled maintenance to correct, modify, or enhance the FanFood Product. During such maintenance, all or selected portions of the FanFood Product may be unavailable. FanFood will notify Customer of any scheduled maintenance and work in good faith to ensure the FanFood Product is available. FanFood will not be held liable for any downtime of the FanFood Product. All corrections, modifications, enhancements, or updates to the FanFood Product will be governed by the terms of this Agreement.
  7. End User Support. “End Users” are those individuals or entities using the Customer’s website and interacting with Customer through the Software provided by FanFood to Customer. Unless specifically provided otherwise in the Order Form, Customer will be responsible for providing first-level support for all initial End User inquiries and for escalating any necessary matters to the designated FanFood Account Manager (“FanFood Account Manager”). During the implementation process, Customer will designate a single point of contact, which will be a named representative of Customer to facilitate any necessary support escalation with the FanFood Account Manager.
  8. Term and Renewal. Unless provided otherwise on the Order Form, this Agreement and each Order Form will have a one year term (the “Initial Term”). Unless a Party gives written notice to the other Party of its decision not to renew the Agreement at least ninety (90) days prior to the end of any Term, after the Initial Term the Agreement will automatically renew for additional one-year terms (each a “Renewal Term”) until terminated in accordance with the terms herein (the Initial Term and each Renewal Term may be collectively referred to as the “Term”):
    1. Either Party may terminate this Agreement if the other Party breaches its obligations under this Agreement and fails to cure such breach within thirty (30) days prior written notice to such other Party describing the breach, provided however, that Customer’s failure to timely pay any undisputed amounts to FanFood shall only require a fifteen (15) day notice and cure period.
    2. FanFood may terminate immediately this Agreement if Customer commits an un-curable material breach, which includes an abuse of the FanFood Product in any manner prohibited by this Agreement or any of FanFoods privacy policy or terms of use.
    3. Either Party may terminate this Agreement, immediately, as a result of the other Party being subject to insolvency, liquidation, winding up, bankruptcy or similar proceedings, or if such other Party is unable to reasonably uphold its monetary obligations to creditors.
    4. Immediately upon any termination or expiration of this Agreement, FanFood may terminate the Services provided to Customer and all fees incurred up to the date of termination or expiration and owed to FanFood will become immediately due. Customer will return all Proprietary Information (defined below) to FanFood. Sections 8, 9, 10, 11, and 12 will survive any termination or expiration of this Agreement.
  9. Intellectual Property and Data Ownership
    1. Software. The Parties agree that this Agreement is not a transfer of the FanFood Product or any underlying website, application, or other software made available to Customer as part of the FanFood Product. At all times FanFood maintains all ownership and rights over its FanFood Product and such software, and any associated upgrades, customizations, and other materials and technologies associated with the FanFood Product. FanFood retains the right to all content, code, data and other materials created by FanFood as a result of this Agreement and/or usage of its FanFood Product by Customer. Customer is merely granted a subscription to the FanFood Product, as described in Section 2 hereto, for the Term.
    2. Proprietary Rights. Customer agrees that all information presented or disclosed to Customer by FanFood, whether before or after the date of this Agreement, whether or not in writing, concerning the FanFood Product, including, but not limited to, marketing and operational or technical information (collectively, “Proprietary Information”) is and will be the exclusive property of FanFood. Customer agrees: (a) not to reveal, publish or disclose Proprietary Information to anyone; (b) to use the same care to protect FanFood’s Proprietary Information as it uses for its own similar information, but in no event less than best efforts care; (c) to use Proprietary Information only for fulfilling Customer’s obligations under this Agreement, and for no other purpose; and (d) to return promptly or destroy FanFood’s Proprietary Information upon request. Customer acknowledges and agrees that FanFood may collect and retain aggregate non-identifiable data derived from performance of the FanFood Product for its own business purposes for Customer and other FanFood customers.
    3. Indemnifications. Each Party shall defend, indemnify and hold harmless the other Party from and against any costs, damages, liabilities (including reasonable attorney's fees and expenses) in connection with any third party claim, action, suits, regulatory investigations or subpoenas arising from such Party's (i) breach of its representations, warranties or covenants hereunder; and (ii) gross negligence or willful misconduct of such party, its employees or agents.
    4. Survival of Obligations. All obligations and restrictions of confidentiality and ownership of Proprietary Information under this Agreement are to survive the termination of this Agreement.
    5. Certain Rights Granted to FanFood. Customer authorizes and grants to FanFood a right and license to use Customer’s name and logo on its marketing and promotional material, including on its website and customer lists. Customer grants FanFood the right to make certain press releases available to the general public regarding the services provided by FanFood to Customer. Customer acknowledges and agrees that FanFood may collect and retain aggregate non-identifiable data derived from performance of the FanFood Product in accordance with FanFood’s privacy policy or terms of use. Such data shall be the property of FanFood in all respects and shall be part of the Proprietary Information under this Agreement.
  10. Representations, Warranties, and Covenants of the Parties.
    1. Mutual. Each Party represents and warrants that: (i) it is a duly organized and validly existing under the laws of the jurisdiction in which it is organized; (ii) it has full power and authority, and has obtained all approvals, permissions and consents necessary, to enter into this Agreement and to perform its obligations hereunder; (iii) this Agreement is legally binding upon it and enforceable in accordance with its terms; and (iv) the execution, delivery and performance of this Agreement does not and will not conflict with any agreement, instrument, judgment or understanding, oral or written, to which it is a party or by which it may be bound.
    2. Customer. Customer represents, warrants, and covenants (as applicable) that (i) it shall not rent, sell, license, lease or otherwise commercially exploit or make available the FanFood Product or the FanFood Proprietary Information to any unauthorized user or otherwise use, modify, adapt, or combine the FanFood Product in an infringing or unauthorized manner; (ii) it shall comply with all applicable federal, state, and local laws, rules and regulations including without limitation, all privacy and data security laws and the terms and conditions of all applicable third party websites, Products or applications; (iii) unless provided otherwise in the Order Form, FanFood shall be the exclusive mobile concession ordering and delivery service used by Customer at all venues that FanFood operates; (iv) Customer shall permit FanFood to obtain its own sponsorship rights regarding the FanFood Product, including sponsorship rights relating to the use of the FanFood Product at the Customer’s venues unless FanFood gives explicit authorization otherwise, (v) Customer shall comply with any privacy policies or terms of use used by FanFood relating to the FanFood Product; and (vi) Customer shall reasonably respond and assist FanFood with any reasonable requests made by FanFood to implement Customer’s initial use, as well as administer and manage Customer’s ongoing use, of the FanFood Product.
    3. FanFood. FanFood represents and warrants that the FanFood Product will be provided in a reasonably professional and workmanlike manner in accordance with reasonable industry standards.
  11. Disclaimer and Limitation of Liability. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, FANFOOD EXPRESSLY DISCLAIMS ALL WARRANTIES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL FANFOOD, OR ANY OF ITS AFFILIATES, OR ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS BE LIABLE TO CUSTOMER OR ANYONE ELSE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS OR LOSS OF BUSINESS) RESULTING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, OR THE NEGLIGENCE OF FANFOOD OR ANY OTHER PARTY, EVEN IF FANFOOD IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall FanFood’s liability for the performance or nonperformance of its obligations under this Agreement, exceed the amounts paid from Customer to FanFood for the previous three (3) months of the FanFood Product. The foregoing is intended as a complete allocation of the risks between the Parties. Because the bargain struck and the price paid reflect such allocation this limitation upon remedies will not have failed of its essential purpose.
  12. General Provisions.
    1. Independent Contractor. This Agreement establishes an independent contractor relationship between the Parties, and neither an employee/employer relationship, nor a joint venture relationship or any other relationship is established hereby. Each of Customer and FanFood alone shall be responsible for payment of all remuneration to its employees and bear all taxes associated therewith.
    2. Assignment. Customer may not assign this Agreement in whole or in part without FanFood’s written consent. FanFood may assign this Agreement at its sole discretion subject to Customers' rights here-under.
    3. Choice of Law and Venue. The validity, interpretation, construction and performance of this Agreement shall be governed by the laws of the State of Illinois, without giving effect to the principles of conflict of laws. Any dispute or lawsuits arising from this Agreement shall be subject to, and filed in, the state or federal courts (as applicable) located in Chicago, Illinois.
    4. Severability. In the event any term of this Agreement is found by any court to be void or otherwise unenforceable, the remainder of this Agreement shall remain valid and enforceable as though such term were absent upon the date of its execution.
    5. No Waiver. No waiver of any rights arising under this Agreement shall be effective unless in writing and signed by the Party against whom such waiver is sought to be enforced. No failure or delay by either Party in exercising any right, power or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.
    6. Entire Agreement. Except as provided for in the Order Form, these Terms set forth the entire understanding of the Parties with respect to the subject matter hereof. This Agreement shall not be amended or modified except by written instrument duly executed by authorized signatories of both Parties. Any and all previous Agreements, representations and understandings between the Parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement and of no further force and effect. Any waiver of a breach or violation of this Agreement must be in writing in each instance.
    7. Force Majeure. Neither Party will be liable for inadequate performance to the extent caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond the Party’s reasonable control, provided however, nonpayment of any fees from Customer to FanFood shall not be subject to this Section 12.7.
    8. Counterparts. The Order Form may be executed in multiple counterparts, including facsimile, PDF, or other electronic copies, each of which shall constitute an original and all of which taken together shall constitute one and the same Agreement.
    9. Notice. Except as provided herein, notices under this Agreement shall be in writing and send via U.S. Express Mail or private express courier services or by email (with receipt confirmed) and will be effective upon receipt at the address stated below (unless the Parties are notified in writing of a change in address, in which case notice will be sent to the new address). FanFood may provide notice to Customer by posting notices in Customer’s portal to which it accesses the FanFood Product, provided that such notice is also sent via e-mail to the contact designated by Customer in the Order Form.
    10. Amendment. These Terms may be amended by FanFood by providing notice to Customer pursuant to these Terms. The most current and applicable Terms will be provided within the Customer Quote within the Comments to buyer section
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