Terms and Conditions
(last updated 3rd December 2019)
This document sets out the terms and conditions upon which we, MyAPPetite Limited, will create and set up for your use our app and web ordering tool and provide related services to you.
These terms form a legal agreement (the “Agreement”) between you (“you” or “Customer”) and MyAPPetite Limited, a company registered in England and Wales with company number 12290411 (“MyAPPetite”, “we” or “us”) (each, a “Party”, collectively, the “Parties”). Please print a copy of these terms for your record and future reference.
1.DEFINITIONS AND INTERPRETATION
1.1 The following words have the following meanings in this Agreement:
“App ” means your branded application, which facilitates your customers’ order and payment for goods and services from your Venue;
“App and Web Ordering Tool ” means MyAPPetite’s mobile application and web ordering tool, which facilitates the ordering of and payment for goods and services from a venue, restaurant or other provider, in conformance with its published specifications;
“Commencement Date” shall have the meaning set out in clause 7
“Confidential Information ” means all information belonging to a party which is identified by the party disclosing it as confidential or which, by reason of its characteristics or the circumstances or manner of its disclosure a reasonable person should understand it as confidential including (without prejudice to the generality of the foregoing) any information about a party’s new planned but unreleased new products or services, non public data about a party’s business, customer lists, sales statistics and forecasts, and marketing strategies;
“Data Protection Legislation” means the Electronic Communications Data Protection Directive 2002/58/EC, the
Privacy and Electronic Communications (EC Directive) Regulations 2003, and Regulation (EU)
2016/679 known as the General Data Protection Regulation (“GDPR”), as each of the foregoing may be amended, replaced or re-enacted from time to time and all applicable laws and regulations relating to the processing of personal data and privacy including where applicable the guidance and codes of practice issued by the ICO or other relevant supervisory authority and the equivalent of any of the foregoing in any relevant jurisdiction (whether mandatory or not);
“Defects” means an error in the App and/or the Web
Ordering Tool that materially affects its or their functionality or usability;
“Intellectual Property Rights” means patents, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
“Legislation” means any statute, statutory provision or subordinate legislation or any mandatory rules or guidance issued by any regulatory body having jurisdiction over the applicable party;
“Normal Working Hours” means 09:00 to 17:00 on any Working Day; Out Of Hours Support Contract available at £10.00 per month.
“Order Form” means the MyAPPetite Customer Order Form and Agreement signed by the Parties and which lists the Services you have ordered from us.
“Personal Data” has the meaning given to it in the GDPR;
“Services” means the services provided by MyAPPetite to you pursuant to this Agreement including the provision of access to and use of a branded version of MyAPPetite’s App and Web Ordering Tool;
“Venue” means the specific venue or restaurant for which you have requested the App and the Web Ordering Tool to be set up and created to process orders for;
“Working Day” means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
2.1 In return for the fees set out in the Order Form and subject to your compliance with the terms of this Agreement, we agree to provide the following services to you:
2.1.1 create and set up your own branded App for downloading by your customers from the App Store or Google Play (including setting up your menu, pricing, payments and artwork);
2.1.2 set up the Web Ordering Tool for inclusion on your website;
2.1.3 provide you with access to online tools to manage your App and the Web Ordering Tool;
2.1.4 provide such additional services that are requested and detailed in the Order Form and accompanying Statement of Work; and
2.1.5 provide you with email support services during Normal Working Hours and if you have elected for out of hours support
2.2 We acknowledge and agree that the Services shall be provided on a non-exclusive basis and you are free to obtain the same or similar services during the term of this Agreement.
3.1 If GDPR is applicable to the Services we provide you and your customers and you agree that its terms and conditions shall be effective as of the date of you execute the Order Form and you and us enter into this Agreement.
3.2 You and we agree to comply fully with all other privacy Legislation applicable to the Services we perform for you and your customers.
3.3 Each of us shall indemnify the other, its officers, employees and agents, against all liabilities, costs, expenses (including reasonable legal fees and expenses), damages and losses suffered or incurred by us as a result of any breach by the other of its obligations under clause 3.
4.1 In order for us to provide the Services to you, you must:
4.1.1 co-operate with us in all matters relating to the Services, including but not limited to, providing to us, when requested, content, data and other information which we may reasonably require and ensuring that it is accurate in all material respects; and
4.1.2 obtain and maintain all necessary licences and consents and comply with all relevant Legislation in relation to the Services and the use of any content, data or other information provided, in all cases prior to the Commencement Date.
4.2 You agree that you:
4.2.1 have provided, and will continue to provide, accurate and complete information in your Account, and will update such information as appropriate; and
4.2.2 are responsible for the accuracy of any data or content provided as part of the Services.
4.3 We each agree that we will not upload or transmit to any systems (including third party service providers) used in the provision of the Services any unlawful content (including any content which is defamatory, obscene or abusive, or in breach or an infringement of intellectual property or privacy rights, or any data protection or confidentiality obligations).
4.4 You should not rely on our Services for storage or maintenance of information or your content. We may, at any time at our absolute discretion review and remove any content from the Services or request that you re-register or set up a new account for your continued use of the Services.
4.5 Each Party (as an “Indemnifying Party”) agrees to indemnify the other Party (as an “Indemnified Party”), its officers, employees, agents and service providers against all liabilities, costs, expenses (including reasonable legal fees and expenses), damages and losses suffered or incurred by the Indemnified Party as a result of any breach by the Indemnifying Party of clause 4.3.
5.SETUP OF THE APP AND WEB ORDERING TOOL
5.1 Upon execution of an Order Form, we will commence the provision of Services you have ordered including setup of the App and Web Ordering Tool.
5.2 We shall submit the App for placing on the Apple and Google Play App Stores. If the App is not approved for placing by an App Store, you may by notice in writing to us, terminate this Agreement with immediate effect, and we shall refund any fees received by us for the Services.
5.3 You acknowledge and agree that any delays or rejections caused by an App Store are outside of our control, and as such we shall not be liable to you in the event of any delay caused by such actions except as set out in clause 5.2.
6.YOUR MYAPPETITE ACCOUNT.
You will be able to manage your App and the Web Ordering Tool through your MyAPPetite account (“Account”). You are responsible for maintaining the confidentiality of your Account and password and for restricting access to your computer and devices, and to the extent permitted by applicable law you agree to accept responsibility for all activities that occur under your Account or password. You should take all necessary steps to ensure that the password is kept confidential and secure and should inform us immediately if you have any reason to believe that your password has become known to anyone else, or if the password is being, or is likely to be used in an unauthorised manner.
This Agreement commences from the date the parties executed the Order Form (the “Commencement Date”) and, unless terminated earlier in accordance with either clause 12.1 or 12.3, will continue in force for a minimum period of six months (the “Initial Term”) after which it shall automatically renew in rolling contract.
You may terminate this Agreement with effect from the last day of a Renewal Period by giving to us not less than 30 (thirty) days’ prior notice.
8.1 The fees for the Services are as set out in the Order Form and are either weekly/monthly.
8.2 We reserve the right to charge interest on any overdue amounts at the rate of 2% above the base lending rate of Barclays Bank plc from time to time, such interest accruing daily
8.4 Without prejudice to any other rights we may have, if you fail to pay us in accordance with this clause 7, we may suspend the Services (including the removal of your branded App from application stores) until payment has been made in full.
8.5 Following the Initial Term, we may increase or change how we charge for the Services provided, however, that we must provide you at least thirty (30) days prior notice of any such change.
9.PAYMENT FROM YOUR CUSTOMERS.
9.1 In order for you to receive your customers’ payments for the goods and/or services they order using the App or Web Ordering Tool, you will need to register with one of our payment service providers.
10.YOUR USE OF THE SERVICES.
10.1 You acknowledge that, except for the content provided by you, the App, the Web Ordering Tool and the content of the Services are protected by copyright, database rights, trademarks and other intellectual property rights of us and our licensors, as applicable, and all rights not expressly granted to you are reserved to us and our licensors.
10.2 You must not:
10.2.1 sub-license, assign or transfer your rights or obligations under this Agreement; except with the prior consent of MyAPPetite which shall not be unreasonably withheld; or
10.2.2 access or use the Services using any interface other than in accordance with this Agreement; or
10.2.3 access or use the Services for any venue other than the Venue.
10.3 You must not use the Services in any way incompatible with their intended purpose or in any unlawful or unauthorised manner and, in particular, you must not: 10.3.1 make any copies of the Services;
10.3.2 modify, adapt, reverse engineer, decompile or disassemble, create derivative works of, publish, distribute exploit the App, the Web Ordering Tool or any content or software element of the Services;
10.3.3 remove any copyright or proprietary notices on the App, the Web Ordering Tool or the content of the Services (including without limitation the information and data provided by us relating to your customers as set out in clause 2.1.2);
10.3.4 use, distribute or disclose Confidential, personal or sensitive data or information within the App, the Web Ordering Tool or the Services without appropriate authority;
10.3.5 export the App or the Web Ordering Tool in breach of applicable export control or other laws relating to the export of technology and software; or
10.3.6 make any unlawful or unauthorised use of our (or our service providers’) equipment, networks, systems or software (including attempting to gain unauthorised access, introducing any computer virus or malware, or inhibiting their operation).
11.1 We warrant and represent that we will perform the Services in a reliable and professional manner, in all material respects in conformity with any specifications for the Services and in compliance with all applicable law and regulations.
11.2 In the event of a breach of the warranty in 11.1, your sole remedy is for MyAPPetite to rectify the defect that constitutes such breach within a reasonable time from notification by you of the defect. In the event that MyAPPetite is unable to remedy the defect, then you may terminate this Agreement pursuant clause 13.3.3 and receive a refund of fees for the unexpired term.
11.3 The warranties set out in this clause 11 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this Agreement. Without limitation, and except as may be expressly set out in this Agreement, we specifically deny any implied or express representation that the App and the Web Ordering Tool will be:
11.3.1 fit to operate uninterrupted or error-free; and
- 2 free from any defects or errors.
- Any unauthorised modifications, use or improper installation of the App and/or the Web Ordering Tool by or on your behalf shall render all MyAPPetite’s warranties and obligations under this Agreement null and void.
- Each party:
11.5.1 warrants to the other party that it will at all times comply with all applicable laws and regulations with respect to its obligations and activities under this Agreement; and
11.5.2 shall indemnify the other (as an “Indemnified Party”), its officers, employees, agents and service providers against all liabilities, costs, expenses (including reasonable legal fees and expenses), damages and losses suffered or incurred by the Indemnified Party arising out of any noncompliance of clause 11.5.1.
- MyAPPetite LTD undertakes to replace or at its option repair any Goods to be defective due to faults in workmanship or material within a period of 48 hours from time of reporting.
- The Client submits a written claim to MyAPPetite LTD.
- The Goods have been properly stored, cared for, used and maintained and have not been subjected to any actual or attempted alteration, modification or repair and refurbishment.
- The Goods are returned to MyAPPetite LTD, carriage pre-paid at the risk of the Client and properly packaged as failure to properly package the Goods may result in their being damaged in transit. MyAPPetite LTD may reject warranty claims where Goods are returned improperly packaged.
- In the case of Goods or parts which are found to be defective but which have not been manufactured by MyAPPetite LTD the Client shall be entitled so far as possible to the benefit of any guarantees given by the manufacturers details of which will be provided to the Client on request.
- The Client is solely responsible for ensuring the Goods ordered are reasonably fit for his purposes.
- The liability of MyAPPetite LTD under this Condition 10 shall be instead of and to the exclusion of any warranty or condition implied by law as to quality or fitness for purpose of the Goods and except as provided by this Condition MyAPPetite LTD shall not be under any liability, whether in contract or tort or otherwise, in respect of defects in the Goods.
- MyAPPetite LTD shall not be liable for any loss or damage caused by the failure of the Client properly to handle or use the Goods in their correct application and in view of the likely nature of the Goods the subject matter of the Contract the Client should ensure that they are handled and used only by properly qualified and trained persons
- MyAPPetite LTD shall not be liable for any consequential loss arising from any breach of its obligations to the Client under the Contract or as the result of any negligence of Source or its employees or agents.
- This Condition 11 applies to the extent permitted by the Unfair Contract Terms Act 1977 so that in particular MyAPPetite LTD shall not be liable for death or personal injury caused by its negligence.
12 .LIMITATIONS ON LIABILITY
12.1 Nothing in this Agreement shall exclude or limit either party’s liability for fraud or fraudulent misrepresentation, death or personal injury caused by that party’s negligence or any other liability which cannot be lawfully excluded or limited.
12.2 Subject to clause 12.1, neither party shall in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
12.2.1 the accuracy, completeness or legality of any data, content or other information provided by the other party; nor
12.2.2 any breach of any obligations due to a cause beyond the other party’s reasonable control.
12.3 Subject to clause 12.1, neither party shall in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any:
12.3.1 Loss, damage or distress arising from reliance on information or reliance on availability of the Services; or
12.3.2 Loss of business, customers or profits; or
12.3.3 indirect, consequential or economic loss, damage or distress which a party suffers as a result of this Agreement.
12.4 Subject to clause 12.1, but without prejudice to other limitations on its liability (including clauses 12.2 and 12.3), each party’s total liability to the other in any twelve (12) month period for any other losses or claims relating to this Agreement and arising during that period is limited to £500 or the fees paid or payable by you to us in such a period, whichever is greater.
13.1 We may withdraw the Services and associated content, suspend your access to the Services and/or terminate this Agreement immediately and without notice:
13.1.1 if you breach, or we reasonably suspect that you are in breach, of any term of this Agreement; or
13.1.2 if we cease to offer (or change the way in which we offer) the Services.
13.2 If we terminate this Agreement because we no longer provide the Services, we will refund any sums received by us from you for any unexpired term.
13.3 You may, by notice in writing to us, terminate this Agreement with immediate effect:
13.3.1 pursuant to clause 5.2; or
13.3.2 in accordance with clause 7; or
13.3.3 if we commit a material breach of any term of this Agreement and (if such breach is remediable) we fail to remedy that breach within a period of thirty (30) days after being notified in writing to do so.
13.4 Following termination of this Agreement for any reason, your licence to access the information and data relating to your customers as set out in clause 2.1.3 will terminate. You agree that, as soon as reasonably practicable, you will delete any such information and data you do not have a legal basis to retain and any copies of any such information and data you obtained by using the Services during the term of the Agreement.
13.5 Following termination of this Agreement or suspension of your access to the Services for any reason, we may retain your account details and other records relating to you for our record keeping. Additionally, your customers will no longer be able to access or use the App or the Web Ordering Tool.
13.6 Except where expressly stated, you agree that neither we, nor our officers or employees shall be liable to you or any third-party for any termination of this Agreement or any suspension or restriction of your access to the Services.
14. APP CHANGES.
14.1 Customers use of the App is subject to MyAPPetite’s terms and conditions..
14.2 We may (by means of a notice on our website, within the relevant application store or otherwise) require your customers to install and use an upgraded version of the App in place of the current version, or to uninstall the App if we cease to offer it or the Services. All upgrades to the App fall under the definition of the “App” under this Agreement.
During the Term of the Agreement and for two (2) years after, each Party shall keep secret and retain in strictest confidence, and shall not, without the prior consent of the other Party, furnish, make available or disclose to any third
Party or use for the benefit of itself (except as necessary to fulfil the purposes of or as otherwise authorised by this Agreement) or any third Party, any Confidential Information of the other Party. This restriction shall not prevent disclosure by the Receiving Party of any information which is required by law, or by legitimate action of any law enforcement or regulatory body to the extent strictly necessary to satisfy that requirement, and after having given the Disclosing Party as much prior notice of the requirement as possible and taking all available steps to avoid or minimise the extent of the disclosure.
17.ANONYMIZED CUSTOMER DATA
You understand and agree that MyAPPetite may use and retain, without restriction, anonymized data obtained in performance of Services to you, (the “Anonymized Data”), both during the Term of this Agreement, and thereafter. All rights in the Anonymized Data shall be owned fully by MyAPPetite.
18.OUR COMPLIANCE WITH LAWS AND POLICIES
18.1 In performing our obligations under the Agreement, we represent and warrant that at the date of this Agreement:
18.1.1 we shall comply with all applicable laws, statutes, regulations from time to time in force including but not limited to: those relating to anti-bribery and anticorruption in the UK, the Modern Slavery Act 2015, and the Anti-Slavery policy;
18.1.2 we and our officers and employees ("Associated Persons ") will not engage in any activity, practice or conduct which could contravene the Bribery Act 2010, or which could cause you to contravene the Bribery Act 2010;
18.1.3 we have in place comprehensive procedures to prevent any act of bribery being committed by us and our
Associated Persons (as defined in clause 18.1.2) and such procedures will be maintained throughout the term of this Agreement;
18.1.4 neither us nor any of our officers, employees or other Associated Persons (as defined in clause 18.1.2) is a foreign public official (as defined by the Bribery Act 2010), that no foreign public official owns a direct or indirect interest in us or any Associated Person, and that no foreign public official has any legal or beneficial interest in any payments made by us;
18.1.5 we shall promptly notify you, if at any time during the term of this Agreement, our circumstances, knowledge or awareness has changed such that we would not be able to repeat the warranties in this clause
18.1.6 neither us nor any of our officers, employees:
(a) have been convicted of any offence involving slavery and human trafficking; and
(b) has been or is the subject of any investigation, inquiry or enforcement proceedings by any governmental, administrative or regulatory body regarding any offence or alleged offence of or in connection with slavery and human trafficking.
19.1 All provisions of this Agreement which by their nature are intended to continue shall survive termination, including terms relating to exclusions and limitations of liability, intellectual property restrictions and on-going use of your data.
19.2 You agree that we may disclose the existence and general nature of this Agreement and to identify you as a Customer of MyAPPetite in any marketing materials, press release, blog posts, case studies, white papers, on websites and the like, provided however that any use of your Trademark shall be subject to your stated guidelines of use.
19.3 Termination of this Agreement or the Services shall not affect accrued rights and liabilities of you or us up to the date of termination.
19.4 No provision of this Agreement is intended to be enforceable by any person other than you and us.
19.5 No variation of this Agreement shall be effective unless it is in writing and signed by both you and MyAPPetite (or their authorised representatives).
19.6 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
19.7 Subject to section 5.1(f) of the DPA, we may, without your consent, sub-contract provision of the Services or sublicense our rights under this Agreement to our third party service providers.
19.8 We may, without your consent, assign or transfer any or all of our rights and obligations under this Agreement to any successor in title of all or part of the App, the Web Ordering Tool, the Services, or intellectual property or other rights or obligations subsisting in relation to the same.
18.9 You may not assign, transfer, mortgage, charge, subcontract, declare a trust of or deal in any other manner with any or all of your rights and obligations under this Agreement without our prior written consent.
19.9 Failure or delay by us to exercise any right or remedy under this Agreement does not constitute a waiver of that right or remedy.
19.10 Any notice or other communication required to be given by you under this Agreement shall be given by email to sales@myAppetite.co.uk Any notice or other communication required to be given by us under this Agreement shall be given to the email address you specify in your Account. Any notice shall be deemed to have been duly received at 9.00am on the next Working Day after transmission.
19.11 The terms of this Agreement constitute the entire agreement between you and us with respect to the subject matter and supersede any and all prior agreements, negotiations and discussions relating to the same.
19.12 If any provision of this Agreement is found by any court or legal authority to be invalid, unenforceable or illegal, the other provisions shall remain in force and, to the extent possible, the provision shall be modified to ensure it is valid, enforceable and legal, whilst maintaining or giving effect to its commercial intention.
This Agreement is governed by the laws of England and Wales, and the courts of England and Wales shall have jurisdiction to hear any disputes arising in connection with it. Wales.