1. THESE TERMS
1.1 What these terms cover. These are the terms and conditions on which we supply Services to you. You should understand that by signing the Order and/or subscribing to any of the Services and/or using the Services, you agree to be bound by these terms (as varied from time to time pursuant to clause 20 of these terms).
1.2 Why you should read them. Please read these terms carefully before you sign the Order and/or subscribe to the Services. These terms tell you who we are, how we will provide the Services to you, how you and we may change or end the Contract, what to do if there is a problem and other important information. If you think that there is a mistake in these terms, please contact us to discuss.
1.3 Services to businesses only. By placing the Order, you warrant that you are entering into this Contract on the basis of a business to business supply of the Services by us to you.
1.4 Contracts entered into by a company on behalf of members of its Group. Where you enter into a Contract on behalf of other companies in your group (as specified in the Order), you shall:
(a) procure that each such company complies with these terms in full as if they were a party to the Contract; and
(b) be liable for the acts and omissions of each such company and their Authorised Users.
1.5 Definitions. The definitions in this clause shall apply in these terms.
Authorised Users: those of your employees, agents and independent contractors who are authorised by you to use the Services and the Documentation, as further described in clause 4.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: where you sign the Order, the date you sign the Order or the commencement date specified in the Order; or where you subscribe via our Website, the date you subscribe to the Services
Contract: the contract between you and us for the supply of the Services in accordance with the Order and these terms.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 13. The content of any proposal we make to you, shall be deemed to be Confidential Information of ours.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Customer or you or your: you, being the person or company (i) set out in the Order who purchases the Services from us, and/or (ii) that uses our Services under any other arrangement (including, for example, where a company of your group has signed the Order on your behalf).
Customer Data: the data inputted by you, Authorised Users, your suppliers, or us on your behalf for the purpose of using the Services or facilitating your use of the Services.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Documentation: the documents made available by us to you online via the Website, any videos, webinars, or any other documentation, which sets out a description of the Services and the user instructions for the Services.
Extended Term: has the meaning given in clause 3.4.
F&B Services: the applicable F&B services provided by us from time to time as more particularly described in the Documentation.
Initial Term: the period commencing on the Commencement Date and ending on the first anniversary of the Commencement Date or such other date set out in the Order.
Normal Business Hours: 9.00am to 5.00pm GMT time, each Business Day.
Order: your order for the supply of Services, as set out overleaf if placed in person, or the digital order page above if placed via our Website.
Services: the subscription services provided by us to you under these terms via the Website, as more particularly described in the Documentation; and/or any other services referred to in the Order (if any) which may include (but without limitation) account set up and configuration services, support services, training services, the applicable F&B Services, and any upgraded services taken from time to time).
Site(s): the property or properties of the Customer set out in the Order to which the Services relate.
Software: the online software applications provided by us as part of the Services.
Subscription Fees: the set-up fees, subscription fees, and other fees or charges (if any) payable by you to us for the Services, as set out on the Order together with any additional charges under these terms.
Support Services Policy: our policy for providing support in relation to the Services available by clicking this link.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
We or us or our: Kitchen Cut Limited (CRN: 07757271) whose registered office is at The Hub, 14 Station Road, Henley-On-Thames, Oxon, England, RG9 1AY.
Website: https://www.kitchencut.com/ or such other web address notified by us to you from time to time.
2. INFORMATION ABOUT US AND HOW TO CONTACT US
2.1 Who we are. We are Kitchen CUT Limited a company registered in England and Wales. Our company registration number is 07757271 and our registered office is at The Hub, 14 Station Road, Henley-On-Thames, Oxon, England, RG9 1AY. Our registered VAT number is 131255941.
2.2 How to contact us. You can contact us by telephoning our customer service team at +44 (0) 330 113 0050 or by writing to us at The Hub, 14 Station Road, Henley-On-Thames, Oxon, England, RG9 1AY or email@example.com.
2.3 How we may contact you. If we have to contact you we will do so by telephone or by writing to you at the email address or postal address in the Order.
2.4 “Writing” includes emails. When we use the words “writing” or “written” in these terms, this includes emails.
3. OUR CONTRACT WITH YOU
3.1 Validity of Quotation: Any quotation given by us shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue or such other period of time specified on the Order.
3.2 Status of the Order: The Order constitutes an offer by you to purchase the Services in accordance with these terms.
3.3 How we will accept your Order. The Order shall only be deemed to be accepted when your authorised signatory has signed it and returned it to us, or where you subscribe via our Website, the date you subscribe to our Services.
3.4 Duration of the Contract. The Contract shall commence on the Commencement Date and continue for the Initial Term . Unless terminated earlier by us in accordance with these terms or you in accordance with clause 16.4 or clause 11.8, the Contract shall continue for the Initial Term and will extend for 12 months (Extended Term) at the end of the Initial Term and at the end of each Extended Term.
3.5 You may give written notice to us, not later than 90 days before the end of the Initial Term or the relevant Extended Term, to terminate this contract at the end of the initial term or the relevant Extended Term, as the case may be.
3.6 Exclusion of other terms. These terms apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3.8 Upgrading, and purchasing add-ons. You can (where applicable and shown on the Website and Documentation) upgrade, or purchase add-ons to the Services by contacting your account manager to discuss your requirements or upgrading through your online account. The applicable Subscription Fees shown on the Website or provided to you from time to time in writing, will be payable for the relevant upgrade or add-on purchased and these terms will apply to any such upgrade.
3.9 No downgrading of Services. You cannot downgrade the Services during the Contract.
3.10 Deletion of Customer Data where there is a downgrade. All applicable Customer Data relating to the downgrade to the Services or removal of add-ons will be deleted and neither you nor we will be able to recover such deleted Customer Data.
4. AUTHORISED USERS AND SITE(S)
4.1 Right to use the Services. Subject to the payment of the Subscription Fees in accordance with these terms, the restrictions set out in this clause, and the other terms and conditions of the Contract, we hereby grant to you a non-exclusive, non-transferable right, without the right to grant sub-licences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term whilst you are subscribing to the Services solely for your business operations and in respect of the Site(s) only.
4.2 Multiple Site(s) should not use the same account. Where the Order relates to more than one Site:
(a) each Site shall have a separate account for use of the Services for that particular Site;
(b) you shall ensure that no other property or site of yours uses the Services except if it has its own dedicated account and falls within the definition of Site(s).
4.3 Authorised Users and Site(s). In relation to the Authorised Users and the Site(s):
(a) you will nominate an Authorised User who will be your nominated administrator for each relevant Site, and who you agree is responsible for the maintenance of the Authorised users on your account for the Site concerned;
(b) the nominated administrator for each Site will be responsible for the permissions and access rights of the Authorised Users and to ensure appropriate access or restrictions on Confidential Information;
(c) the Services may only be used in relation to the Site(s) and no other premises, and you will not allow any person to use the Services and/or the Documentation for any location or premises other than the Site(s);
(d) there are no limits on the number of Authorised Users that you can authorise to access and use the Services and the Documentation in respect of each of the Site(s) (your nominated administrator (an Authorised User) can set up log in details for a new Authorised User through the system);.
(f) you will ensure that each Authorised User shall keep a secure password for his use of the Services and Documentation, and that each Authorised User shall keep his password confidential;
(g) If any Authorised User is not using the Services actively for a period of more than 90 days you must de-activate his/her authorisation to use the Services;
(h) you will permit us to audit your use of the Services at any time in order to establish that the Services are being used for the Site(s) only and, generally in accordance with these terms. Such right shall be exercised with or without reasonable prior notice, in such a manner as not to substantially interfere with the normal conduct of your business; and
(i) if any of the audits referred to above reveal that you are in breach of these terms; then without prejudice to any other right or remedy available to us we reserve the right to:
(i) suspend the Services; and/or
(ii) charge you additional Subscription Fees in accordance with our standard applicable prices at the date of the relevant audit, which shall be paid by you to us within 5 Business Days of the end of the audit.
4.4 Viruses or other material on any Message Board. You shall not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Services (including, but without limitation, on any sharing platform such as “message board”) that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and we reserve the right, without liability or prejudice to our other rights, to disable your access to any material that breaches the provisions of this clause.
4.5 No liability for content on the Message Board. Some of the Services provide access to a sharing platform known as “Message Board”, which allows users to share content including documents, emails, videos and social media content. The users and contributors to this section remain personally liable for their use and contributions of the “Message Board” and we accept no liability for the validity and legality of any such content.
4.6 Restrictions on your use of the Services/Software/Documentation. You shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these terms:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except for the purposes of your business and to the Authorised Users; or
(e) use the Services to create or cost dishes for multiple clients’, as each client/company must have its own account with us; or
(f) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 4.
4.7 Unauthorised access. You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us.
4.8 Rights granted to you only – and not group companies/associated companies. Unless otherwise specified in the Order or in writing by us, the rights provided under this clause 4 are granted to you only and for the Site(s) referred to in the Order only, and shall not be considered granted to any subsidiary or holding company of yours, nor any other property/site of yours.
5.1 Provision of services. We shall, during your subscription to the Services use reasonable commercial endeavours to provide the Services and make available the Documentation to you on and subject to these terms.
5.2 Service availability. We shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 6am – 9am GMT; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that we have used reasonable endeavours to give you at least 6 Normal Business Hours’ notice in advance.
5.3 Support Services. We will, as part of the Services and at no additional cost to you, provide you with our standard customer support services during the times and in accordance with our Support Services Policy in force from time to time. We may amend the Support Services Policy at our sole and absolute discretion from time to time.
5.4 Allergens. Some of the Services detail and identify allergens associated with any ingredients. Our Software’s ability to track and tag allergens relies entirely on Customer Data (which may include, but without limitation, details of the ingredients and recipes that you, your Authorised Users and your suppliers provide). We accept no liability as to the validity and details of the Customer Data (including ingredients and recipes) and for identifying the existence of any allergens within their own ingredients and recipes and for the response and reaction to any allergens which are identified.
5.5 Nutritional Values. The nutritional values of dishes entered on the Software are compiled from third party databases supplied by the FSA and USDA. These values are indicative only and we accept no liability for the analysis and you and any applicable users should rely on their own investigations and calculations.
6.1 Ownership of, and responsibility for Customer Data. You shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
6.2 Reporting and analysis based on Customer Data. The Services allow you to input and store details of your recipes and ingredients, sales performance (EPOS data) and other operational processes; and to access reports, data displays and information relating to your kitchen management and profitability. All of the functions depend entirely on Customer Data (which includes, but without limitation, the information you, your Authorised Users, and your suppliers contribute and input). We accept no liability for the information reports, data displays, recipes and ingredients compiled and displayed as part of the Services to the extent it is related to the Customer Data. Without limiting any other provision of these terms, you are liable for the content of the Customer Data and for your use and interpretation of the results and reports produced by the Services as a result thereof.
6.3 Backup of Customer Data by us. We shall use reasonable commercial endeavours to follow our archiving procedures for Customer Data as set out in our Data and Security Policy, as such document may be amended by us in our sole discretion from time to time.
6.4 Our liability for loss of Customer Data. In the event of any loss or damage to Customer Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us in accordance with the archiving procedure described above. We shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by us to perform services related to Customer Data maintenance and back-up).
6.6 Compliance with Data Protection Legislation. Each of you and us will comply with all applicable requirements of the Data Protection Legislation. The provisions of this clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
6.7 Processing of data. Each of you and us acknowledges that:
(a) if we process any personal data on your behalf when performing our obligations under the Contract, you are the controller and we are the processor for the purposes of the Data Protection Legislation;
(b) the Order sets out the scope, nature and purpose of processing by us, the duration of the processing and the types of personal data and categories of data subject; and
(c) the personal data may be transferred or stored outside the EEA or the country where you and the Authorised Users are located in order to carry out the Services and our other obligations under this Contract
6.8 You have consents. Without prejudice to the generality of clause 6.6, you will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to us for the duration and purposes of the Contract so that we may lawfully use, process and transfer the personal data in accordance with the Contract on your behalf.
6.9 Our processing obligations. Without prejudice to the generality of clause 6.6, we shall, in relation to any personal data processed in connection with the performance by us of its obligations under the Contract:
(a) process that personal data for the purposes of providing the Services and otherwise only on your documented written instructions unless we are required by the laws of any member of the European Union or by the laws of the European Union applicable to us and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where we are relying on Applicable Laws as the basis for processing personal data, we shall promptly notify you of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from notifying you;
(b) not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled: (i) either you or we have provided appropriate safeguards in relation to the transfer; (ii) the data subject has enforceable rights and effective legal remedies; (iii) we comply with our obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and (iv) we comply with reasonable instructions notified to us in advance by the Customer with respect to the processing of the personal data;
(c) assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with your obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify you without undue delay on becoming aware of a personal data breach;
(e) at your written direction, delete or return personal data and copies thereof to you on termination of the Contract unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
(f) maintain complete and accurate records and information to demonstrate our compliance with this clause 6 and immediately inform you if, in our opinion an instruction infringes the Data Protection Legislation.
6.10 Technical and organisational measures. Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it).
7. RECIPE CALCULATIONS, MENU MANAGEMENT & REPORTING
7.1 Recipe Storage Tool and storage limit. As part of our Services, you will have the option of uploading recipes and/or images to the recipe storage tool on our Website (Recipe Storage Tool). The number of recipes and/or images that you are able to upload will depend on which membership package of the Services you subscribe to (details of which are set out on our Website from time to time and are also available to view in your account settings). Any recipes and/or images which you upload will only be viewable by you, or any Authorised Users.
7.2 Loss of recipes and images you upload. You should keep copies of all recipes and/or images that you upload to the Recipe Storage Tool. We will have no liability to you for the loss of, or restricted access to, any recipes and/or images or if our Website is unavailable at any time or for any period. Nor do we accept liability for any recipes deleted or amended by you or the Authorised Users.
7.3 Recipe Calculation Tool. The recipe calculation tool aspect of the Services (Recipe Calculation Tool) will calculate dish costs based on your ingredient and price data that you put into the Software. You can update your ingredients and prices as frequently as you like, your recipes will only be as accurate as the pricing you have in your system at that time. The system will benefit from regular price updates to ensure it is up to date and reflective of the prices you pay to your suppliers. When you update your pricing, this will migrate across all of your live recipes in the system and the dashboard will show alerts where relevant.
7.4 Accuracy of ingredient and price information. We also do not accept responsibility for the accuracy of any additional ingredients/prices entered in to the system by you, any Authorised Users, or your suppliers nor do we accept any responsibility for the performance of the system or the Recipe Storage Tool as a result of the use of the system on the Recipe Storage Tool by you, or your suppliers.
7.5 Articles published on the Website. Articles published on our Website have been written by our team and/or third party contributors and relate to the Services and the operation of catering businesses in general. We give no warranty as to the validity and contents of such articles and don’t accept any liability for your use or interpretation of those articles.
7.6 Recipes and allergens. Please read clause 5.4 in relation to allergens and recipes.
8.1 Third party providers (e.g. placing orders for goods or services with third parties through our system). You acknowledge that the Services may enable or assist you to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that you do so solely at your own risk. We have no liability for any act or omission of any such third party supplier, or any delays caused by failure of your supplier to receive any orders or message sent through the Services.
9.1 Reasonable care and skill. We undertake that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
9.2 Where we do not have any responsibility. The undertaking at clause 9.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to our instructions, or modification or alteration of the Services by any party other than us or our duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, we will, at our expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide you with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes your sole and exclusive remedy for any breach of the undertaking set out in clause 9.1. Notwithstanding the foregoing, we:
(a) do not warrant that: (i) your use of the Services will be uninterrupted or error-free; (ii) that the Services, Documentation and/or the information obtained by you through the Services will meet your requirements; or (iii) the Software or the Services will be free from any a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability; and
(b) are not responsible for any delays, delivery failures, or any other loss or damage resulting from the acts or omissions of your third party suppliers, the transfer of data over communications networks and facilities, including the internet; and you acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10.1 Your specific obligations. You shall:
(a) provide us with:
(i) all necessary co-operation in relation to these terms and the provision of the Services; and
(ii) all necessary access to such information, documentation, facilities, data and details as may reasonably be required by us;
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting your other obligations in these terms, comply with all applicable laws and regulations with respect to your activities under the Contract;
(c) carry out all your responsibilities set out in these terms in a timely and efficient manner. In the event of any delays in your provision of such assistance, we may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with these terms, and you shall be responsible for any Authorised User’s breach of these terms;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for you, your contractors and agents to perform their obligations under these terms, including without limitation the Services;
(f) ensure that your network and systems comply with the relevant specifications provided by us from time to time;
(g) be solely responsible for procuring and maintaining your network connections and telecommunications links from your systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the your network connections or telecommunications links or caused by the internet; and
(h) be solely responsible for ensuring that any applicable third party provider can connect to our API and we shall have no liability in connection to you for any problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to any third party which connects or wishes to connect with our API.
11.1 Subscription Fees. The Subscription Fees payable by you to us for the Services will be as set out in the Order Confirmation or within the app when you sign up online. If specified on the Order, we may collect the Subscription Fees payable by you from any applicable company specified in the Order provided that if that party does not pay us for whatever reason you shall be liable for all payments under the Contract that remain unpaid.
11.2 When do you have to pay the Subscription Fees? The Subscription Fees shall be payable monthly or as specified in the Order. Payment of the monthly Subscription Fees shall be taken once a month starting from or shortly after the Commencement Date. Payment of any annual Subscription Fees or any other one off charges set out in the Order will also be taken on or shortly after the Commencement Date. We shall collect the Subscription Fees automatically from the payment method set out in the Order.
11.3 Value added tax. The Subscription Fees are exclusive of value added tax, which shall be added to our invoice at the appropriate rate. If the rate of value added tax changes, this will not affect the Subscription Fees for any month which you have already paid in full before the change in VAT takes effect.
11.4 Payment methods. All payments must be made in pounds sterling or other currency and payment method specified on our invoices to you or our Website
11.5 Upgrades and payments. Any upgrade to the Services will take effect immediately and your new monthly payment date will run from the date you upgrade.
11.6 Alterations to the Subscription Fee. We reserve the right to alter any Subscription Fees you are paying at any time after the Initial Period. We will notify you 30 days in advance by email of any increase in the Subscription Fees and you will have the option of cancelling your Subscription to the Services before the increase becomes effective. If you do not cancel your subscription to the Services before the increase becomes effective we will collect the increases Subscription Fees from you in accordance with our usual procedures.
11.7 Payment for additional add-ons. Payment for any additional add-ons to the Services (which form part of the Services) purchased through your account manager or via your online account shall be payable on the same basis you pay for your Subscription Fees (monthly, or annually in advance (as the case may be)) on the date you purchased the add-ons, and shall form part of the Subscription Fees for the purpose of these terms. Any add-on Services acquired shall be for the duration of any initial Services you subscribed to. We may invoice you for part of a month, to bring payment in line with any other Services you subscribe to.
11.8 Late or Failed Payments. If any payment due to us is not paid on the due date for payment, then without prejudice to any rights or remedies available to us, we may:
(a) suspend your account until all sums due to us have been paid in full (and you shall continue to be liable to pay the Subscription Fees for the suspension period); and/or
(b) charge interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause will accrue each day at 4% a year above the Bank of England’s base rate from time to time, but at 4% a year for any period when that base rate is below 0%; and/or
(c) terminate the Contract and deletion of your account and all related Customer Data.
11.9 Dormant accounts and deletion of Customer Data. If your account is dormant or suspended (for example and without limitation, the Subscription Fees are not paid when due for whatever reason) for 3 months, we have the right to cancel your account and delete all associated Customer Data. Within those 3 months you are able resubmit your payment details in order to restart/reactivate your account and to access the Customer Data you have stored.
11.10 Checking that Subscription Fees are correct. It is your responsibility to check that the Subscription Fees being charged on any invoice you receive are correct, and they are being charged the correct amount, along with any added extras. It does not fall under our support team’s time to check values and subscriptions as you can access your account to view historic charges and purchases.
11.11 Payments without any deductions. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
12.1 We own all IPR in the Services and Documents. You acknowledge and agree that we and/or our licensors own all intellectual property rights in the Software, the Services and the Documentation. Except as expressly stated herein, these terms do not grant you any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, the Services or the Documentation.
13.1 What is confidential information? Each party may be given access to Confidential Information from the other party in order to perform its obligations under these terms. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
13.2 Non-use and non-disclosure of Confidential Information. Subject to clause 13.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of these terms (including performance of its obligations hereunder).
13.3 Reasonable steps. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these terms.
13.4 Permitted disclosure for legal purposes. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction.
13.5 Loss caused by a third party. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
13.6 Public announcements. No party shall make, or permit any person to make, any public announcement concerning these terms without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
13.7 This clause survives termination. The above provisions of this clause 13 shall survive termination of the Contract, however arising.
14.1 Indemnity by you. You shall defend us, indemnify us and hold us harmless against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with any breach by you of these terms, and/or your use of the Services and/or Documentation.
15. LIMITATION OF LIABILITY – WARNING: YOU ARE STRONGLY ADVISED TO READY THIS CLAUSE LIMITNG OUR LIABILITY
15.1 No responsibility for the results of the Services, and the Services are provided on an “as is” basis. Except as expressly and specifically provided in these terms:
(a) you assume sole responsibility for results obtained from your use of the Services and the Documentation, and for conclusions drawn from such use. We shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you (or someone on your behalf) in connection with the Services (including but without limitation the Customer Data), or any actions taken by us at your direction or request;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms; and
(c) the Services and the Documentation are provided to you on an “as is” basis.
15.2 Matters we do not exclude liability for. Nothing in these terms excludes our liability:
(a) for death or personal injury caused by our negligence; or
(b) for fraud or fraudulent misrepresentation; or
(c) for any matter in respect of which we cannot exclude liability under any applicable law.
15.3 Categories of losses excluded and our maximum liability. Subject to clause 15.1 and clause 15.2:
(a) we shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, loss of income or revenue, loss of anticipated savings, waste of management or staff time, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under or in connection with the Contract; and
(b) our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance under or in connection with the Contract shall be limited to the total Subscription Fees paid by you for the month during which the claim arose.
15.4 This clause survives termination. This clause 15 survives termination of the Contract, howsoever arising.
16. CANCELLATION OF, OR AMENDMENTS TO YOUR SUBSCRIPTION TO THE SERVICES
16.1 How you can cancel your subscription. You can terminate the Contract and cancel your subscription to the Services at any time by notice in writing to us if:
(a) we are in material breach of this Contract and (if remediable) we fail to remedy the material breach within 60 days of a notice in writing from you; or
(b) if we go into liquidation.
(c) Customers who sign up online can cancel within the app at any time.
16.2 Subscription Fees will continue to be paid until valid termination. Until the Contract is validly terminated pursuant to these terms; the Subscription Fees will continue to be payable and we will continue to deduct the applicable Subscription Fees from the nominated payment method in accordance with our usual collection procedures.
16.3 Deletion of Customer Data during the cancellation process. All Customer Data related to your account will be deleted 3 months after the date of termination of the Contract. Following such deletion neither you nor we will be able to recover the Customer Data (which includes, but without limitation, recipes, pricing, data and reports). You will have the option of printing off a copy of any recipes or images before your subscription to the Services is terminated.
16.4 Our right to cancel your subscription. We may terminate your subscription to the Services at any time by giving you not less than 14 days’ notice by email. If we cancel pursuant to this clause, we will cease charging you for the Services from the date of cancellation, and will refund any Subscription Fees paid by you for any period after the date of cancellation.
16.6 Other consequences of termination of the Services. On termination of your subscription to the Services for any reason:
(a) all licences granted under these terms shall immediately terminate and you shall immediately cease all use of the Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) we will delete, destroy or otherwise dispose of any of the Customer Data in our possession 3 months after the date of termination of your subscription to the Services for whatever reason (although you may export certain Customer Data from the system prior to termination of your subscription to the Services); and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
17.1 No liability for events beyond our reasonable control. We shall have no liability to you under these terms and shall not be in breach of the Contract if we are prevented from or delayed in performing our obligations under the Contract, or from carrying on our business, by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce or the workforce of any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that you are notified of such an event and its expected duration within a reasonable time of such event coming to our attention.
18.1 Inconsistency. If there is an inconsistency between any of the provisions in these terms and the Website and/or the details set out in the Order, the provisions in the Order shall prevail (unless we agree otherwise in writing).
18.2 Waiver. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.3 Rights and remedies. Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
18.4 Severance. If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
18.5 Entire agreement. The Contract constitute the entire agreement between the parties and supersede and extinguish all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
18.6 No reliance. Each party acknowledges that in subscribing to the Services it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
18.7 Assignment by the customer. You shall not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
18.8 Assignment by us. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under the Contract.
18.9 No partnership or agency. Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18.10 Third party rights. The Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
18.11 Rules of interpretation: In this Contract (a) clause headings shall not affect the interpretation of these terms; (b) a person includes an individual, corporate or unincorporated body (whether or not having separate legal personality); (c) a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established; (d) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular; and (e) unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
18.12 Governing law. The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
18.13 Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
19. SPECIFIC CLAUSES RELATING TO THE F&B SERVICES
Without limiting any other clause of these terms which shall apply to the F&B Services, this clause contains additional terms which apply to the F&B Services. The definitions below shall apply in this clause 19.
Cash Order: a Food Order that is not an Online Payment Order.
Chargeback: any penalty, payment reversal or similar charges or fees we incur from any card scheme, payment gateway provider, merchant acquirer or card issuer in respect of Online Payment Orders.
Consumer: a person who has used an Ordering Platform to place a Food Order with your business.
Gross Order Value: the total amount charged by you to the Consumer for a Food Order (including any applicable taxes and service charges).
Food Order: an order for your food and/or beverages placed by a Consumer and communicated directly to you by us.
Online Payment Order: a Food Order placed via an Ordering Platform, in respect of which we have directly or indirectly collected payment from the Consumer using a credit or debit card.
Ordering Platform: the applicable online ordering platform provided by us through our F&B Services.
Platform Commission: our commission for each Online Payment Order.
19.1 F&B Services. Our F&B Services allow Consumers to place Food Orders from you through an Ordering Platform. We intend to make each Ordering Platform available and functional for the purpose of providing the F&B Services at all times but we are under no obligation to do so.
19.2 Contract between you and the Consumer. The Ordering Platform facilitates the Consumer placing a Food Order with you, and the legal contract for the purchase of your food and/or drink will in all cases be between you and the relevant Consumer.
19.3 Your obligation to the Consumer. You acknowledge, understand and agree that:
(a) that once a Consumer has placed an Food Order via an Ordering Platform a contract for the sale of goods between you and the Consumer has been created and you are obliged to fulfil that Food Order;
(b) you cannot fulfil your obligation to the Consumer in respect of any Food Order, you remain liable for updating and providing a reason directly to the Consumer;
(c) you will provide each Consumer with a receipt (and a tax receipt, if applicable) in respect of a Food Order, if the Consumer request unless a receipt is generated by the F&B Services on your behalf; (we provide digital receipts via email?)
(d) you will provide the food and drink the subject of the Food Order in accordance with all applicable laws (including not selling alcohol or age restricted items to persons under the age of 18) and your terms and conditions of sale;
(e) processing refunds to customers who have placed a Food Order via our platform provided as part of the F&B Services;
(f) you shall create and honour any discount codes via the Ordering Platform;
(g) you must promptly update the digital menus and pricing changes within the Ordering Platform; and
(h) you must not use the F&B Services for any illegal or unlawful purpose.
19.4 Customer Data and accuracy. You must ensure that all Customer Data you provide for the purposes of the F&B Services is correct at all times. You acknowledge that information about your food and drink will be reproduced verbatim for display to Consumers via the Ordering Platform and this is your responsibility.
19.5 Allergen and Suitability Information. You are responsible for providing us with up to date details of any allergens, nutritional information, and dietary information in the food and drinks offered for sale via the Ordering Platform in accordance with applicable laws, and you acknowledge that we will repeat the information you provide about allergens, nutrition and dietary information verbatim on the Order Channels. We do not undertake to check, and are not liable for checking this information on your behalf
19.6 Our Instructions. You must follow any lawful instructions we give you in relation to the use of the F&B Services, and provide any information our payment provider requires from time to time to facilitate payments.
19.7 Receipt of Payment from Consumers. Where a Consumer has chosen to place an Online Payment Order, we will receive payment from Consumer in respect of the Gross Order Value of Online Payment Orders through our payment gateway provider. All such amounts, less the amount of the Platform Commission due as a result of using our payment gateway which will be deducted and paid to us, will be held by us on your behalf in a designated account for you and they may be withdrawn by you via our platform.
19.8 Authorisation to accept payments on your behalf. You irrevocably authorise us to act as your agent to accept, receive, and hold the charges for a Food Order (in respect of Online Payment Orders only) on your behalf, and you authorise us to notify third-parties (including Consumers) that we are so authorised. A Consumer payment through an Ordering Platform will discharge any payment obligation of that Consumer to you for those amounts.
19.9 Withholding. We are entitled to set off any amounts owed to us/the payment gateway provider by you against any amount owed to you by us at any time. We may also make withholdings from amounts we hold on your behalf in respect of any Chargebacks (and associated costs and expenses), or any other cost or expense which we incur or reasonably expect to incur as a result of a breach by you of these terms (“withholdings“). We may also make withholdings from any amounts we hold on your behalf where we are, or have notice that we may be, ordered to do so by a competent authority. If we make any withholdings, we will do only for so long as is reasonable, and (if applicable) we will make a credit to you in the next statement after it becomes clear that we will not incur any liability in respect of it.
19.10 Refunds by us. We are not under any obligation to make refunds of any amounts you have paid to us in respect of the F&B Services. You are responsible for issuing refunds to your customers within the application.
19.11 Chargebacks and Fraud. You will remain liable for any Chargeback. You must monitor all transactions being processed via the Ordering Platform for unusual transactions being processed or high value items and will report any suspected fraud or unusual activity to us forthwith. We reserve the right to monitor all transactions for unusual or suspected fraudulent activity and reserve the right to suspend the F&B Services for such matters.
19.12 Termination. We may terminate the F&B Services at any time if you breach these terms.
20. OUR RIGHT TO VARY THESE TERMS
20.1 Changes to these terms. We reserve the right to revise and amend these terms at any time, for example (without limitation) to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in relevant laws and regulatory requirements and changes in our system’s capabilities.
20.2 Notification of changes to the terms. We will notify you of any change to these terms by email, and the varied terms will apply to the Contract with effect from the date we notify you. Any change to the terms will not affect your right to cancel your subscription to the Services in accordance with these terms.