TERMS AND CONDITIONS
ARTICLE 1 – 1.1 DEFINITIONS
Definitions “Agreement” means this document and includes any schedule, annexure or appendix; “Agreement Date” means the date that this Agreement was entered into; “Business” means the business of the Client stated in Item 2 of the Schedule; “Corporate Customer” means companies and businesses which register with the Service Provider as Corporate Customers; “Customer” means the individuals and corporations which use the System offered by the Service Provider; “Data” means the information which is displayed on the Website by the Client. This includes but is not limited to menu’s, location of the Client’s business, opening hours, the Client’s intellectual property, photographs, blog and other similar and related information; “GPRS Printer” means a General Pocket Radio Service Printer; “Notice Address” means the address and contact details of all parties to this Agreement as stated in Item 6 of the Schedule and as may be changed by notifying the parties from time to time; “Remuneration” means the amount payable by the Client to the Service Provider for the Client’s use of the System. The method for calculating the amount of Remuneration payable is stated in Item 4 of the Schedule; “Special Terms and Conditions” means any terms and conditions agreed between the parties before entering into this Agreement and which are contained in the Annexure. “System” means the service provided by the Service Provider through the Website. This includes but is not limited to providing the ability for Customers to order takeaway food online and make bookings with restaurants to dine at a restaurant;
ARTICLE 1– 1.2 INTERPRETATION
(a) In the interpretation of this Agreement, unless the context or subject matter requires otherwise, references to: (i) singular words include the plural and vice versa; (ii) any gender includes every gender; (iii) all references to monetary amounts refer to that amount in Pound Sterling; (iv) persons includes natural persons, firms, companies, corporations, bodies corporate, trustees, trusts, associations, partnerships, Government Authorities, and other legal entities. It will include references to that person’s estate, personal representatives, executors, administrators, substitutes, successors and assigns; (v) writing includes printing, typing, facsimile and other means of representing or reproducing words, figures, drawings or symbols in a visible and tangible or electronic form, in English; (vi) signature and signing mean the due execution of a document and include signing by an agent or attorney or representative; (vii) months mean calendar months; (viii) a business day means a day on which banks are open for business in the place where an Obligation is required to be performed. (b) The following rules apply, unless the context or subject matter requires otherwise: (i) headings and the table of contents are used for convenience only and must be disregarded in the interpretation of this Agreement; and (ii) if a word or phrase is given a defined meaning, another grammatical form of that word or phrase has a corresponding meaning. (c) If the day on or by which a person must do something under this Agreement is not a business day, the person must do it on or by the next business day.
ARTICLE 2 – AGREEMENT
The Service Provider and the Client have agreed to enter into this Agreement and to be bound by its terms and conditions. This Agreement shall be governed and determined by these terms and conditions as well as any Special Terms and Conditions.
ARTICLE 3 – SCOPE
3.1 Nature of the Service The Service Provider has created the System which can be used to display the Data, so as to enable the Customers to place orders with the Client through the Website and/or iPhone and Android apps. The orders are then immediately forwarded to the Client by the Service Provider by way of: (a) the GPRS Printer and (b) email. If the Client does not receive the printed order in reasonable time, the Client will be able to accept the order from their backend control panel provided by The Service Provider. If any order is not processed within 5 minutes of it being placed, an email notification can be sent to the Client’s email address supplied on their account. 3.2 Change of Service The Service Provider shall be entitled to alter and amend any aspect of the appearance or functionality of the System without notice.
ARTICLE 4 – CONFIDENTIALITY
The parties undertake to refrain from disclosing any information to any third parties relating to all aspects of the financial relationship between the parties, the terms of this Agreement, the Service Provider or Client’s business model, the names of their suppliers, business partners and Customers, the principles and the technology behind the System and any other information which either party might from time to time come across regarding the System and this Agreement. The Service Provider may advertise the Client’s website/mobile apps on their Portfolio/Our Clients webpage. The Service Provider may also advertise their brand on the footer of the Client’s website. The parties shall also do everything in their power to actively prevent such information being disclosed or used by third parties. This confidentiality clause shall remain in force for the duration of this Agreement and for a period of one year thereafter. Both the Service Provider and the Client hereby pledge to abide by the provisions of the Privacy Act 1988 (Cth).
ARTICLE 5 – REMUNERATION
5.1 Client’s Agreement The Client has agreed to pay the Remuneration to the Service Provider. 5.2 Client’s Authorisation The Client authorises the Service Provider to deduct the Remuneration from the monies collected by the Service Provider in the manner stated in Article 4 in arrears and on a monthly basis. 5.3 Calculation of Remuneration The Service Provider shall apply the monthly fee in relation to the package The Client has chosen.
ARTICLE 6 – GPRS PRINTER
6.1 If the parties wish to use a remote printer then the Client will need to place a purchase order with our sister company, iBacsTel Corporation Ltd. For the latest contact information The Client may visit www.ibacstel.com. The Client may purchase any of the available models provided. This includes and not limited to a GPRS printer, GPRS+3G printer, GPRS+Wi-Fi printer and a GPRS+3G+Wi-Fi printer. The Client will own the Printer. If the Client wishes to have a different model other than these, the Client will be required to pay an additional fee for the upgrade. 6.2 Problems with GPRS Printer The Client must notify the Service Provider as soon as reasonably practical should the GPRS Printer unit not function properly or be lost or stolen. In the event that the GPRS Printer malfunctions or is lost or stolen then the Service Provider will provide a replacement or repair the GPRS Printer as soon as reasonably possible. The Service Provider reserves the right to charge a replacement fee of £300 for the GPRS printer if the Client has damaged or lost or has the printer stolen. 6.3 Termination of Agreement (a) In the event that this Agreement is terminated or comes to an end then the GPRS printer will be disconnected from the Client’s website and mobile apps provided by the Service Provider
ARTICLE 7 – SALE OF BUSINESS
The Client is obliged to inform the Service Provider of the sale of the Business once a contract for sale has been entered into. The sale of the Business will act to immediately terminate this Agreement.
ARTICLE 8 – SUSPENSION AND TERMINATION
8.1 End of the Agreement This Agreement shall come to an end upon the expiry of 7 days’ Notice by either party to the relevant party’s Notice Address. 8.2 Suspension of service (a) The Service Provider is under no obligation to validate and / or check the Client’s credentials or the accuracy of the Data provided by the Client. Should the Service Provider be informed of any inaccuracy or become aware of any Data which it deems to be inappropriate or be notified of any inappropriate or inaccurate Data by an officer of the Council or other relevant authority then the Service Provider is entitled to suspend the Client’s use of the System until the Data has been corrected. (b) (i) defames or does not present the Service Provider or the System in a manner expected by the Service Provider; or (i) presents itself or conducts the Business in a way which the Service Provider does not wish to associate itself; (iii) does not perform its obligations under this Agreement properly and in good faith; (iv) is in breach of any of the declarations which it provides under Article 11, then the Service Provider may immediately suspend this Agreement. (c) If the Service Provider suspends the Client’s use of the System then it may charge the Client an administration fee which shall be set from time to time by the Service Provider. (d) If the Service Provider uses its discretion to deem any of the above acts in subparagraphs (a) or (b) to be a serious breach then the Service Provider may terminate this Agreement without notice to the Client.
ARTICLE 9 – LIABILITY AND DISCLAIMERS
9.1 The parties acknowledge that the role of the Service Provider is that of a conduit for the Client to reach out to existing and potential Customers, and for Customers to access the Client’s goods and services. The Service Provider has no vested interest in the Client’s Business or goods and services, nor does the Service Provider play any part in fulfilling any orders placed by Customers, whether by recommending, selecting, preparing, producing, conveying or delivering the goods and services, other than by conveying to the Client the orders placed by the Customers. Although the Service Provider does make certain representations as to the nature, quality, validity, safety, existence, suitability and other aspects of the Client’s Business and goods and services, these representations are based on the opinion of the Directors of the Service Provider. The Service Provider has no control over the food preparation processes, quality, hygiene, safety or any aspect of the Business, and therefore disclaims liability in connection with any act of the Client. Similarly, the Service Provider does not make any representations as to the capacity, existence or bona fide character of the Customers who are put in touch with the Client via the System. 9.2 Audits Where required to do so by a Corporate Customer wishing to have access to the Client’s goods and services, the Service Provider may request that the Client permit it to carry out an initial or ad-hoc audit of various aspects of the Business. Should this be the case, the Service Provider shall undertake those steps which are required by the Corporate Customer, and the Client shall be expected to comply with these steps, which may include having an audit carried out by a duly certified body, vetting the Client’s health and safety, compliance and other relevant certificates. Such procedures shall not give rise to any liability on the part of the Service Provider for the quality of the Client’s goods and services. The Service Provider’s role and responsibilities shall be limited to performing the procedures required by its Corporate Customer with due care and attention. 9.3 The Client’s responsibility for its goods and services The Client acknowledges that it shall at all times be fully and solely liable for the quality and safety of the goods and services which it provides to Customers through the System.
ARTICLE 10 – DATA
10.1 Client’s Responsibility The Client is responsible for the Data published on the Website and throughout the System. All Data published by the Client on the Website is done at the risk of the Client. The Service Provider accepts the Data on the assumption that it is accurate and the Service Provider will not check the Data in any way. The Service Provider hereby disclaims all liability for any inaccuracies or misleading statements which are contained in the Data. The Client shall bear full responsibility for the accuracy and truthfulness of the Data, and hereby indemnifies the Service Provider against any claim, loss, cause of action or damage that may arise from any inaccuracies or falsehoods which are contained in the Data or to which the Data gives rise. 10.2 Amending of Data The Parties agree that the Service Provider has the discretion to upload, amend or delete any Data which it deems misleading or inappropriate. 10.3 Use of the Data The Client must not use the Data as a means to breach another person or company’s intellectual property rights and it may not use profanities, images or words which cause or are likely to cause harm, insult, defame or abuse another person, corporation or class of people. 10.4 Act of Default If the Client does any of the things contained in this clause 10 then this will be deemed by the Service Provider to be a default under the Agreement and this Agreement may be immediately suspended or terminated at the discretion of the Service Provider. 10.5 Disclaimer The Service Provider hereby disclaims all liability for any loss, damage or injury which is caused by the publication of the Data or provided directly or indirectly to the Customers. The Service Provider further disclaims all liability for loss, damage or injury caused directly or indirectly to any Customer or third party through the Business, its contractors, employees, servants or agents.
ARTICLE 11 – DECLARATIONS
The Client hereby declares: (a) that all Data which it publishes on the Website or which it provides to the Service Provider with a view to publishing on the Website is truthful, accurate and not misleading in any way; (b) that it only sells goods and/or provides services which would be considered to be of a reasonable standard in light of the nature of the Customers whom it serves and their legitimate expectations;(c) that it shall at all times abide by its terms of service regarding, amongst other things, delivery timescales, quality, quantities where these are not discrete, and that where the terms of service are not stated, they shall at all times fall within the reasonable expectations of the usual Customers of the Client; (d) that it shall maintain consistent standards of quality and service at all times; (e) that it shall at all times abide by all its legal obligations imposed on it in the operation of the Business; (f) that it is and shall remain certified by the appropriate authority to operate the Business and shall at all times hold all requisite permits, licenses and other documents required to operate as a supplier of the type Business; (g) that it has taken out adequate insurance cover to protect it against any claims brought by Customers or third parties in connection with the Business and the goods or services which the Client sells or otherwise provides through the System; (h) that it is the Client’s responsibility to ensure that all Data published on the System is correct and further acknowledges that the Service Provider is not responsible for the Data in any way whatsoever; and (i) that it indemnifies the Service Provider from all claims and causes of action that may arise in respect of the Business including the preparation of food ordered through the System, timelines and costing of the goods and services of the Business.
ARTICLE 12 – COSTS
12.1 New Fees The Service Provider undertakes to inform the Client of any fees which the Service Provider may charge from time to time. The Client shall be informed as to the reason for the fees and the Service Provider undertakes to refrain from charging the Client any hidden fees. 12.2 The Client will need to pay a number of months up-front in order to begin the development of the project and setup a direct debit to pay the monthly membership fee. The number of months may vary depending on the current promotional offer. 12.3 Extra features The Client may request to have custom features for their website for a development fee at a rate of £20 per hour. A pro-forma invoice will be generated for the Client to decide whether to proceed with the development or not.
ARTICLE 13 – SYSTEM QUALITY
13.1 Operation of the System The Service Provider agrees to keep the System operational and accessible to customers 24 hours a day except in the event of any unforeseen circumstances or technical faults. 13.2 In operation of the System Should the System become inoperative for any reason, the Service Provider agrees to get it up and running again within the shortest possible timeframe. However, as the Client does not pay the Service Provider any fee for access to the System, the Service Provider’s undertakings under this article are provided solely as a sign of its good faith and are purely indicative and not binding in any way on the Service Provider. 13.3 Disclaimer The Service Provider hereby disclaims any liability for tangible or intangible losses caused to the Client either directly or indirectly as a result of any downtime, breakdown, discontinuation, modification or downgrading of the System. The Service Provider is entitled to alter, enhance, downgrade or discontinue any aspect of the System at its sole discretion.
ARTICLE 14 – APPLICABLE LAW – DISPUTES
This Agreement shall be governed by and construed in accordance with the laws of the United Kingdom. Exclusive jurisdiction and venue shall be in a court within the United Kingdom. Should any dispute arise in connection with the interpretation, performance or termination of this Agreement, the parties shall endeavor to resolve it amicably. Should they be unable to do so, they shall refer the dispute to a competent arbitration body, chosen jointly, or, failing this, appointed by an order of the courts with jurisdiction over the domicile of a Court of competent jurisdiction.