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Terms & Conditions – Restaurant Partners

Background:

The Company operates the Company Website for the purpose of marketing and booking á la carte and fixed price meals known respectively as a brunch or bottomless brunch to customers.

Unless otherwise stated, we will use the term “brunch” to include both bottomless brunch (fixed price) or á la carte brunch.

The Restaurant operates a restaurant for the purpose of providing food and drink services including a Brunch to customers. The Restaurant wishes its Brunch packages to be advertised on the Company Website on the terms and conditions of this agreement so that a customer can book Brunch packages at its venue through the Company Website.

1. Interpretation:

The definitions and rules of interpretation in this clause apply in this agreement.

Booking Fee: a charge applied per cover (i.e. per person for each person included on a booking) for a Brunch at the Restaurant as set out at clause 4.2 paid by the Restaurant.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Company Website: the Company’s website at any time and from time to time, currently called Brunch London and at www.bottomlessbrunch.com and including all databases, software, domain names, infrastructure, products and services that the Company markets for use by individual users to shop for the Company’s products and services. Company Website includes all future versions and replacements of, and successors to, the site.

Cover: each person included in a Transaction or a booking on the website or at the Restaurant.

Discount: the discount that the Restaurant assigns to the diner

Effective Date: the date of this agreement.

Refundable Deposit: the amount that Bottomless Brunch charges on its online platforms to the diner to get his or her reservation at the restaurant confirmed

Transaction: a purchase of any Brunch package offered for sale on the Company Website by a customer who has completed a booking form on the Company Website.

VAT: Value added tax or any equivalent tax chargeable in the UK. Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time

2. Company’s obligations:

The Company shall create, operate and maintain the Company Website and advertise the Restaurant’s services as agreed. The Company shall be permitted to use the Restaurant’s visual assets (logo, pictures and videos) for the purposes of clause 2.1 solely in accordance with any reasonable written guidelines or instructions provided by the Restaurant to the Company relating to the Restaurant’s visual assets.  The Company shall be responsible for developing, operating and maintaining the Company Website. The Company acknowledges and agrees that it has no authority to legally bind the Restaurant in relation to customers, other users or anyone else and that it has not been appointed and is not the agent of the Restaurant for any purpose.

The Company shall comply with all applicable laws and regulations with respect to its activities under this agreement and to its business. In the event of any delays in the Company’s provision of services as agreed by the parties, the Company may adjust any dates for performance or delivery provided to the Restaurant as reasonably necessary.

Transactions, together with a statement setting out the amounts due to or from the Restaurant in respect of this agreement calculated in accordance with clause 4 below. The Company may at any time or times without notice to the Restaurant:  change the name of the Company Website; and change the Company’s trademark, logo or other branding; and This agreement is non-exclusive and does not prevent or restrict either the Company or the Restaurant from entering into similar or different agreements with third parties. The Company makes no representation that the terms of this agreement are similar to or the same as the terms of any other agreement it has entered or may enter into with any third party.

3. Restaurant’s obligations:

The Restaurant undertakes promptly, and in any event within 7 days after the Effective Date, to submit to the Company for approval by the Company before publication on the Company Website: the Restaurant’s visual assets and other marketing information;  marketing and availability guidelines; and the Restaurant’s menu for its Brunch offering. The Restaurant shall submit to the Company for prior approval any proposed use of any Company trademark, domain name, logo, and other elements of branding that the Restaurant may wish to use. The Company shall review the proposed use within a reasonable time (being ordinarily not longer than 7 days) and shall not unreasonably refuse or delay approval.

The Restaurant shall provide the Company with: all co-operation in relation to this agreement; and all access to such information as may be required by the Company including availability information for bookings. The Restaurant shall comply with all applicable laws and regulations with respect to its activities under this agreement and to its business.

The Restaurant shall notify the Company all customers’ no-shows (i.e. when customers who have completed a booking do not turn up at the Restaurant) as the Booking Fee will be paid from the Company to the Restaurant.

The customer can cancel the reservation up to 12 hours before the booked time, the Booking Fee is 100% refundable. Otherwise, no refund.

The Restaurant will deduct the Booking Fee from the customer’s final bill at the restaurant.

4. Charges and payment:

The Company will charge the customer a Booking Fee for each Cover booked via the Company Website.

The Booking Fee for each Cover is £2.5 for A La Carte menu, 10% for fixed price menus and ticketed events.

All sums payable under this agreement are exclusive of VAT and if VAT is chargeable it shall be paid in addition. The report that the Company sends to the Restaurant under clause 2.7 shall include: a statement of the amounts due from the Company to the Restaurant for Transactions where the payment for Brunches booked via the Company’s Website has been taken in advance from the customers in the month to which the report relates;  and a balance showing the final amount owing to the Restaurant.

Except in the case of manifest error, the party owing the amount thereby shown to be due shall make payment within 5 working days.

5. Proprietary rights:

The Restaurant acknowledges and agrees that the Company and its licensors own all intellectual property rights in the Company Website and all the Company’s products and services. Except as expressly stated herein, this agreement does not grant the Restaurant any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences belonging to the Company. All such rights are reserved to the Company.

6. Confidentiality:

Each party undertakes that it shall not at any time during this agreement, and for a period of 2 years after termination of this agreement, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, as permitted by clause 15.2.  Each party may disclose the other party’s confidential information: to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 6; and

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority. No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

This clause 6 shall survive termination of this agreement, however arising.

7. Data protection:

Each party shall, at its own expense, ensure that it complies with and assists the other party to comply with the requirements of all legislation and regulatory requirements in force from time to time relating to the use of personal data, including (without limitation) (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 1998 or 2018 and any successor legislation; and (ii) for so long as and to the extent that the law of the EU has legal effect in the UK, the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable EU regulation relating to privacy. This clause is in addition to, and does not reduce, remove or replace, a party’s obligations arising from such requirements.

8. Limitation of liability:

This clause 8 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and subcontractors) to the Restaurant:

arising under or in connection with this agreement; and in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement. Except as expressly and specifically provided in this agreement, 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 this agreement.  Nothing in this agreement excludes the liability of the Company:  for death or personal injury caused by the Company’s negligence; or

for fraud or fraudulent misrepresentation.

Subject to clause 8.3: the Company shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, 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 this agreement; and the Company’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the amount paid under this agreement by the Company to the Restaurant during the 12 months preceding the date on which the claim arose.

9. Duration and termination:

This agreement shall commence on the Effective Date and shall continue for the period of 1 year, unless otherwise terminated as provided in this clause 9. After 1 year, this agreement shall automatically renew for yearly periods, unless either party notifies the other, in writing, at least 90 days before the end of the then current term.  The Company may terminate this Agreement on notice at any time if it discontinues or withdraws, in whole or in part, its Company Website and related services. The Company will endeavour to give Restaurant as much notice of the same as reasonably practicable, but any such termination will be without liability to Restaurant. Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this agreement without liability to the other if:  the other party commits a material breach of any term of this agreement which breach is irremediable or (if such a breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so; the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986; a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);  an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company); an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company); the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver; a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party; a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within [14] days; the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; there is a change of control of the other party within the meaning of section 1124 of the Corporation Tax Act 2010; or any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 9.3(b) to clause 9.3(j) (inclusive).

10. Consequences of termination:

On termination of this agreement for any reason:

all licences and benefits granted under this agreement shall immediately terminate;

each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

11 .Force majeure:

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days’ written notice to the affected party.

12. Waiver:

No failure or delay by a party to exercise any right or remedy provided under this agreement 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.

13. Rights and remedies:

The rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

14. Severance:

If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this agreement.

If one party gives notice to the other of the possibility that any provision or part-provision of this agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

15. Entire agreement:

This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement. Nothing in this clause shall limit or exclude any liability for fraud.

16. Assignment and other dealings:

Neither party shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this agreement without the prior written consent of the other party.

17. No partnership or agency:

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.

18. Variation:

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19. Third-party rights:

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.

20. Notices:

Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be: delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or  sent by email to the address specified [email protected]

Any notice or communication shall be deemed to have been received: if delivered by hand, on signature of a delivery receipt; and if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; and if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause, business hours means 9.00am to 5.00pm Monday to Friday on a day that is not a public holiday in the place of receipt.

21. Governing law:

This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by, and construed in accordance with, the law of England and Wales.

22. Jurisdiction:

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.