These terms and conditions, together with the commercial terms signed by the parties (the “Terms”) set out the terms and conditions upon which Emenu Now Limited (‘We”, “Our”) has agreed to provide access to Modules identified in the Terms on Our proprietary ordering platform ("Emenu Now platform") for the Customer (“You”, “Your”).
1. Our Responsibilities
1.1. We agree to use reasonable skill and care to provide access to the Modules on the Emenu Now Platform and to deliver the Deliverables;
1.2. We agree to use reasonable endeavours to meet any launch or go-live dates for the Modules, but our commitment is subject to any dependencies we have identified in writing to You, and to Your timely feedback and co-operation, and time shall not be of the essence in this agreement.
1.3. We agree to maintain a programme of continuous improvement to the Emenu Now Platform and to the Modules in accordance with good industry practice;
1.4. We shall use commercially reasonable endeavours to make the Modules available 24 hours a day, 7 days a week, except for reasonable and regular planned maintenance, updated and upgrades, and unavailability beyond our control.
1.5. We agree to take reasonable care of Your data and confidential information, and to ensure that any system on which we hold You or Your Client’s data is secure in accordance with good industry practice;
2. Your Responsibilities
2.1. You agree to provide us with such information and assistance as may reasonably be requested by Us from time to time in order to fulfil Our obligations under these Terms.
2.2. You will be responsible for the supply and maintenance of menus and pricing in a timely manner including allergen and dietary information for which EMenu Now takes no responsibility or liability.
2.3. You will be responsible for meeting your obligations in your merchant services agreement.
2.4. Unless agreed otherwise in writing, invoices are payable in 14 days from the date of the invoice.
Fees shall be payable by the Customer for each month, or part month, that the Customer’s end users use the Emenu Now Platform. Monthly subscription fees are to be paid by direct debit. Late payment of invoices will be subject to interest under the Late Payment of Commercial Debts (Interest) Act 1998. If You fail to make any payment due to Us under these Terms by the due date for payment, then We may suspend access to the Modules, and delivery of the Deliverables, until payment has been made in full.
3. Confidentiality & Data Protection
3.1. Both parties agree that they will not disclose to any third party, any information relating to the other party, its business, trade secrets, customers, suppliers or any other information of whatever nature which is identified as confidential and which has or shall come into the possession of that party, unless such information is already publicly available. We may disclose details to group Companies.
3.2. The parties will abide by the principles and requirements of all applicable UK data protection legislation in force from time to time, in particular the Data Protection Act 2018 and the General Data Protection Regulation (EU 2016/679) (“GDPR”) (“Data Protection Legislation”) for so long as it is in force in the UK.
3.3. You consent to us extracting anonymised data from the Modules hosted on the Emenu Now Platform solely for the purposes of improving, updating or amending the Emenu Now Platform, and for aggregating it with data from other customers.
4. Intellectual Property
4.1. We grant You a non-exclusive, revocable, UK limited, non-transferable license during the Contract Term to access the Modules and to use the Emenu Now Platform for the purposes of using the Module to offer products to Your end user clients at Your premises.
4.2. You acknowledge and agree that We own all intellectual property rights (including patents, designs, copyrights, database rights, trademarks, trade secrets, confidential information, whether applied for or granted in any part of the world) in the Emenu Now Platform, the Modules, and in any materials we supply to you. No copyright notices or trademarks may be removed from any materials.
4.3. You own the intellectual property rights in the materials, and trademarks You supply to Us (“Your Materials”). You grant us a limited license during the Contract Term to use Your Materials for the purpose of meeting Our obligations under these Terms.
4.4. Subject to clause 5, We will indemnify you in respect of any damages awarded against you for using the Module in the United Kingdom in accordance with these Terms, provided that (a) You promptly notify us of the claim and do not make any admission or settlement of the claim, (b) We are given sole conduct of the Claim and (c) You co-operate with us in the defence of the claim.
4.5. Save as provided in clause 4.1, no right or license is granted to any of Our intellectual property rights. You may not copy, reproduce, modify, adapt, disassemble decompile or reverse engineer the Emenu Now Platform, the Module or any other materials we provide to you. You may not grant any sub-licenses of Our intellectual property rights.
4.6. You will not insert, assist or permit any third party to insert into any hardware, software or systems any known virus, Trojan horse, or worm, that is intended or has the effect of disabling, deleting, erasing, denying authorised access to, permitting unauthorised access to, damaging, destroying, corrupting or otherwise affecting the delivery of the Deliverables.
4.7. You will indemnify us in respect of any claims that may be made that our use of your name or logos on the Emenu Now Platform infringe the trademarks of any third party.
5.1. Neither party will be liable to the other whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising from a breach of these Terms. We shall not be liable for any costs, claims or expenses which arise from circumstances beyond Our reasonable control, or where third-party content or data providers are unable to provide content or data to us in a timely manner. Whilst You will be responsible for paying the costs associated with chargebacks, if they occur. Chargebacks can be reduced by purchasing ‘chargeback protection for a premium.
5.2. Subject to applicable law and regulation, Our maximum liability to You for any claim under these Terms shall be limited to the amount of fees and charges You have paid us in the year preceding the date on which the claim was made, provided always that nothing in these Terms shall exclude or restrict Our liability for:
5.2.1. death or personal injury caused by Our negligence;
5.2.2. fraud, or fraudulent misrepresentation.
5.3. The conditions implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this agreement.
6.1. The term of this Agreement (the Contract Term) is set out in the commercial terms signed by the parties. Should You breach the Agreement (for example, by moving to a different provider while the Agreement is in place), The You will pay EMenu Now fees equal to the average monthly fees paid to Emenu Now, multiplied by the number of months until the current term elapses. Either party to these Terms may terminate the agreement with immediate effect by giving written notice to the other party if: (a) the other party commits a material breach of any term (including but limited to failure to pay the Fees) of these Terms and fails to remedy that breach within a period of 14 days after being notified in writing to do so; (b) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business; (c) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.
6.2. On termination of this agreement for whatever reason: (a) You shall pay Us all outstanding unpaid invoices and interest and, in respect of Services and Products supplied but for which no invoice has been submitted, We may submit an invoice, which shall be payable immediately on receipt; (b) termination of these Terms shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination; and (c) any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
(i) No third party shall have the right to enforce the terms of these Terms pursuant to the Contracts (Rights of Third Parties) Act 1999;
(ii) You shall not assign, novate or otherwise transfer all or part of these Terms;
(iii) These Terms set out the entire agreement and understanding between the parties in respect of its subject matter and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter but without prejudice to any rights that have already accrued to the parties thereunder;
(iv) In the event of the expiry or termination of these Terms for any reason, clauses 3 (Confidentiality & Data Protection), 4 (Intellectual Property) and 5 (Limitations) and 7 shall survive, together with any other provisions which from their terms are intended to continue to have effect;
(v) All notices made under these Terms shall be delivered to the registered offices of the parties; and
(vi) These terms and conditions will be governed by English law and will be subject to the jurisdiction of the English Courts.