FOODit Terms and Conditions
1. THE PURPOSE
1.1. FOODit, primarily via the Restaurant Website (hereinafter designated “the Website”) and FOODit Marketplace (and affiliated websites, applications and apps), shall make it possible for consumers to find the Restaurant information online (including but not limited to the menu, phone number and address), and to order food and drinks for delivery and/or collection and/or to request table bookings to eat at the Restaurant (hereinafter designated the “Service”).
1.2. The parties agree to co-operate in receiving orders and/or table booking requests placed through the Website and affiliated websites, applications and apps, including the FOODit Marketplace, except where FOODit agrees to allow the Restaurant to opt-out of receiving orders from one or more of the websites, applications or apps that are part of the Service.
2. RESTAURANT WEBSITE CREATION SERVICES
2.1. The Restaurant agrees that FOODit will create the Website with either a domain name already owned by the Restaurant, or a new domain of FOODit’s choosing if a new domain is required. FOODit will make every effort to purchase an openly available domain name in agreement with The Restaurant.
2.2. The Restaurant agrees to give full access to their marketing, branding and menu assets to be used by FOODit.
2.3. The Restaurant Logo: FOODit will use a logo provided by the Restaurant via email to FOODit if the computer file format is JPEG or PNG. If the logo is of quality, format or layout that does not match our requirements FOODit may try to reproduce or create a new logo to be used on The Website.
2.4. The Intellectual Property, Technology, Code and Functionality of the Service (not including the Website’s domain name) shall at all times remain the property of FOODit.
2.5. The Restaurant agrees that FOODit may represent, create or sign up The Restaurant on social media websites, business listing services and search engines to market and promote the Website. FOODit cannot be held accountable to maintain these services, social media account or any other web property that we have signed up for or claimed. FOODit will not be responsible for any loss to business that comes from comments, reviews or miss management of these services. FOODit will give The Restaurant full rights to access these services if the services allow for such functionality.
2.5.1. To request access to the services e-mail firstname.lastname@example.org
2.5.2. The Restaurant will forward or give access to any posted mail, SMS verification and Phone verification calls to allow FOODit to represent, create or sign up The Restaurant on such websites.
3. “RESTAURANT WEBSITE” AND “FOODIT MARKETPLACE” SERVICES
3.1. The Restaurant undertakes to receive, process and deliver/ prepare for collection/ serve for eating-in the consumer’s orders as placed via the Website, fax, SMS, phone, email, and affiliated FOODit websites, applications and apps (hereafter the “Order”) using the best care, skill and diligence in accordance with The Restaurant’s industry best practice. The Restaurant undertakes to receive, process and deliver/ prepare for collection/ serve for eating-in the items as stated in the Order and the Restaurant warrants that such activities shall be without error. It shall be the Restaurant’s responsibility to provide an official receipt (& VAT receipt if appropriate) to the customer, if requested.
3.1.1. Online order opt-out: The Restaurant can opt-out of receiving orders placed via one or more websites, applications or apps that are part of the Service by emailing email@example.com Responsibility for the processing and fulfilment of such orders continues to rest with the Restaurant until such time as FOODit agrees to an opt-out request and stops the relevant part of the Service.
3.2. Online ordering: When The Restaurant delivers the prepared Order, the Restaurant must check that the Order number given by the customer corresponds with the Order number received by The Restaurant from FOODit. The Restaurant undertakes to request identification from the customer to confirm the correct recipient of any order delivered or collected.
3.3. Equipment: When choosing any equipment from FOODit, the Restaurant commits itself to receive and maintain the equipment using the best skill and care required to receive the Orders using the equipment. Furthermore, the Restaurant undertakes to establish and maintain the necessary signal (GPRS) or Wi-Fi including but not limited to installing computer equipment in the Restaurant in such a way that the Orders received will be processed immediately.
3.4. Marketing: The Restaurant undertakes to market the Restaurant Website (and affiliated websites, applications and apps) continuously in its establishment by means of menus, stickers or other relevant advertising material in accordance with guidelines provided by FOODit. The Restaurant undertakes to do the same for the “FOODit Marketplace” (and affiliated websites, applications and apps) if the Restaurant has agreed to receive orders from the “FOODit Marketplace”.
3.5. Checking information: The Restaurant undertakes to check daily that the information contained in menus (including prices) and other advertising material that it has provided to FOODit or that the Restaurant is using is correct and in accordance with all applicable laws, including but not limited to allergy information such as whether certain foods contain nuts and corresponds exactly to the information that is used on the Website and other promotional materials that FOODit is using and report immediately to FOODit any errors and changes required to such menus, the Website or advertising materials. The Restaurant remains solely responsible for the information contained on the Website that relates to its business, including but not limited to: menus, pricing logos and/or profile.
3.6. Allergy information: The Restaurant must immediately give and constantly update FOODit with details of any allergy information in relation to the dishes that the Restaurant prepares, including but not limited to which dishes contain nuts. It shall be the Restaurant’s sole responsibility to provide this information and check that the Website contains the correct information about allergens in the Restaurant’s food. The Restaurant, and not FOODit, shall always be responsible for the accuracy of the allergy information.
3.7. Content changes: Subject always to the provisions of the Prices and Payments clause 5.7 below, FOODit will update and/or change the contents of the information about the Restaurant within 7 working days of receiving email notification to firstname.lastname@example.org from the Restaurant to correct errors or changes to such menus and information. The Restaurant agrees that the menu price must be the same price on the Website as they are in hard copy versions used by the Restaurant.
3.8. Compliance: The Restaurant undertakes to obtain and at all times maintain all necessary licences and consents to comply at all times with all relevant and applicable laws and regulations in force. Also the Restaurant will comply with all applicable laws and regulations (including, without limitation, observing all health and safety & data protection laws, rules and regulations) that apply in the Restaurant’s receipt, processing, preparation and delivery of the Orders.
3.9. The Restaurant shall at all times comply with the Restaurant Website’s terms and conditions (available on the Website), and in particular (but not limited to) comply with all security obligations regarding customer information, data protection provisions and guidelines, for receipt, processing and delivery of Orders. These FOODit Terms & Conditions are also referred to as the Restaurant Agreement. In the event of any conflict between these Terms and Conditions and any terms and conditions set out on the Website, the terms of this document shall comply to the extent of such conflict.
3.10. The Restaurant undertakes to refer positively to FOODit in relation to any publicity regarding the Orders and the Service in accordance with guidelines provided by FOODit.
3.11. Connection: Within 5 working days of the Restaurant’s sign-up payment having cleared in FOODit’s bank account for the Service and FOODit having received complete and correct information from the Restaurant, FOODit undertakes to set up the Restaurant’s profile, menu and logo on the Website.
3.12. Redelivery: The Restaurant undertakes either to meet the customer’s or FOODit’s demand for a redelivery, or give the customer a proportionate price reduction if requested.
3.13. Where a customer demands a redelivery, cancels the order, or demands a proportionate price reduction which is agreed to by a restaurant and/ or FOODit, this shall not affect the amount of the commission or transaction fee that FOODit receives for having procured the order. The commission and transaction fee are therefore based on the price of the faultless order.
3.14. FOODit Hardware: The manufacturer warranty will not cover and FOODit will not be liable or responsible for products which in FOODit’s sole opinion have been subject to misuse, alteration, accident or for repairs not performed by FOODit.
3.15. FOODit Hardware devices come with standard manufacturer’s warranty
3.16. The Restaurant shall be charged full price, any delivery fee and 20% admin charge for replacement of any FOODit hardware devices which has been misused, altered, or repaired by a non-employee of FOODit. 3.17. FOODit will only support the FOODit EPOS Android or iOS Application (APP) on device/tablets up to 2 years in age.
4. SERVICE CHARGES
4.1. Before the Service “Restaurant Website” is created and published by FOODit the agreed Setup Fee must be paid in full to FOODit. This requirement may only be waived by FOODit if it has been agreed in advance that the Fee will be paid via deductions to revenues the Restaurant receives for orders placed via the Restaurant Website or FOODit Marketplace.
4.2. The Service “Restaurant Website” – FOODit will charge the Restaurant a Commission rate of 5% (plus VAT) of the total gross order value of each order (“Gross Order Value”) from a consumer using the Service. The Commission rate may differ from 5% where agreed by FOODit.
4.2.1. Where The Restaurant has agreed to take table booking requests from the Restaurant Website, FOODit will charge a fee of 10p per cover (+VAT) in each booking request placed on it.
4.3. The Service “FOODit Marketplace” – Where the Restaurant has agreed to receive orders from consumers who visited to their Website via link from the FOODit Marketplace, FOODit will charge the Restaurant a Commission rate (plus VAT) applied to the total gross order value of each order (“Gross Order Value”) from a consumer using the Service. The Commission rate will be as specified in the most recent signed contract between FOODit and the Restaurant, or as notified by FOODit (see 4.7), whichever is more recent.
4.4. Commission is chargeable on all orders placed by a consumer using the Restaurant Website or app, or Marketplace website or app, as are transaction fees for non-cash orders. At FOODit's discretion cancellation of an order may not affect the amount of the commission or transaction fee that FOODit receives for having facilitated the order.
4.4.1. Table booking fees are charged on all booking requests placed online, whether or not they are accepted or cancelled by the Restaurant or consumer.
4.5. The Gross Order Value of each order placed on the Restaurant Website or FOODit Marketplace is the total sum charged to the consumer placing the order, plus any payment transaction Fees The Restaurant has chosen to not pass on to the consumer.
4.6. If The Restaurant chooses to pass on payment transaction Fees to the consumer, this Fee (typically £0.50) will be added to non-cash orders and displayed on the Website as they place their orders. It should be included on receipts issued by the Restaurant to consumers.
4.7. FOODit reserves the right to change the Commission rates and Fees for the Services by giving the Restaurant one month’s advance notice.
5. PRICES AND PAYMENT
5.1. Twice per calendar month FOODit shall provide a statement of outstanding accounts between the Restaurant and FOODit via the FOODit App (“Twice Monthly Statement”). This statement shall include at least:
(i) Relevant credit card & online charge payments received by FOODit for Orders;
(ii) Details of relevant Orders paid by cash to the Restaurant;
(iii) the non-cash payment transaction fees that are due to FOODit, administration fee, and any other services provided to Restaurant from FOODit (“Transaction Fees”).
(iv) Details of Orders which FOODit is aware that the customer has paid the Restaurant directly.
(v) Fees for Table Booking requests submitted.
5.2. If the Restaurant has any monies owed to FOODit according to the Twice Monthly Statement, FOODit will aim to invoice the Restaurant, on providing the Twice Monthly Statement or deduct it from any monies owed by the Restaurant to FOODit. If the Restaurant is owed any monies from FOODit based on the Twice Monthly Statement, FOODit will transfer this amount to the Restaurant after FOODit’s receipt of a correct invoice.
5.3. Any payment under this Restaurant Agreement shall be due and payable within 7 days of the date of invoice, whichever of the parties is invoiced.
5.4. In the case of any overdue payments FOODit is entitled either to set off the outstanding accounts against the next Twice Monthly Statement, the sums received from credit card Orders for the Restaurant, or calculate 1.5% interest per month as from the relevant invoice date until the amount is credited to FOODit’s bank account. The Restaurant shall pay to FOODit any costs in connection with the settling or recovering of an overdue payment.
5.5. The Restaurant is not entitled to withhold payments or balance by way of offsetting against any alleged claim or shortcoming in the Service rendered by FOODit without prior written permission from FOODit.
5.6. If the Restaurant disagrees with the Twice Monthly Statement issued by FOODit, the Restaurant must notify FOODit via email to email@example.com of its disagreement within 14 days of the delivery of the statement to the Restaurant via FOODit App. If the Restaurant fails to notify FOODit of any such disagreement within 14 days, the Twice Monthly Statement shall be deemed to be accepted by the Restaurant.
5.7. Content Changes: Changes to the Restaurant’s menu and other content used on the Website may have a cost; such cost will be notified to and payable by the Restaurant, dependent on the extent of the changes.
6. REMOVAL OF RESTAURANTS
6.1. If, in FOODit’s sole opinion, the Restaurant ignores relevant and applicable laws and regulations relating to the Service, and/or FOODit’s guidelines on levels of service required of the Restaurant including but not limited to:
6.1.1. being repeatedly impolite to customers who have made Orders;
6.1.2. repeatedly providing incorrect food or drink for the Orders; and /or
6.1.3. repeatedly providing late and/or poor food delivery services.;
6.1.4. placing or encouraging orders via the Website, FOODit Marketplace or affiliated websites, applications or apps in such a way that in FOODit's view constitutes misuse of the ordering system (including but not limited to the creation of fake orders, misuse of promotional codes, or the cancellation of online orders that are subsequently fulfilled);
6.2. FOODit shall be entitled to remove the Restaurant’s name, the menu in full or part, and the Restaurant logo, from “FOODit Marketplace” (and affiliated websites, applications and apps) without liability to the Restaurant.
6.3. FOODit shall be entitled to stop the ability to accept online payment on Restaurant Website Services which go via FOODit merchant accounts, and to take offline the Website.
6.4. The Restaurant is not thereby entitled to any refund of any setup or connection fees already paid.
6.5. FOODit reserves the right to inspect the Restaurant’s premises on 24 hours notice.
7. FOODit’s OBLIGATIONS
7.1. FOODit intends to make the Website available and functional for customers for 24 hours of the day but is under no liability to do so. FOODit shall not be responsible for any lack of availability or applicability of the Website or the Service caused by adverse weather conditions, technical problems including but not limited to problems due to suppliers of the Website’s design, technology, hosting and any credit card service providers.
7.2. FOODit is entitled to interrupt the access to the Website at any time and without notice in order to maintain and update the Website. In connection therewith, FOODit shall use reasonable endeavours to ensure that such interruption is as brief as possible and if possible takes place at a time when the number of Orders is at a minimum.
7.3. It is FOODit’s intention that the Website complies with the relevant and applicable laws and regulations at any given time, including the laws relating to treatment of personal data. Should FOODit give the restaurant direct access to making changes on the website, the restaurant shall be solely responsible for any such changes and shall fully indemnify FOODit for any losses, damages claims, or orders made against or incurred by FOODit due to any acts or omissions of the Restaurant.
7.4. Where FOODit, in its sole discretion agrees to grant a full or partial refund to a consumer who has paid for an order on the Restaurant’s Website using card or Paypal, the Restaurant agrees to allow FOODit to apply the refund on their behalf and agrees to receive no payment from FOODit for the refunded portion of the order (see also 3.13).
8. LIABILITY AND LIMITATION OF LIABILITY
8.1. Nothing in this Restaurant Agreement shall limit or exclude either FOODit’s or the Restaurant’s liability for:
8.1.1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
8.1.2. fraud or fraudulent misrepresentation;
8.1.3. breach of the terms implied by section 2 of the supply of goods and services act 1982 (title and quiet possession);
8.1.4. any other liability that cannot be limited or excluded under applicable law.
8.2. Subject to clause 8.1;
8.2.1. FOODit shall not be liable to the restaurant, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or for any indirect or consequential loss arising under or in connection with this restaurant agreement.
8.2.2. Furthermore, FOODit is not liable for faults, breakdowns or other interruptions to services due to actions taken due to technical, maintenance, or operational causes, or imposed by relevant and competent authorities.
8.3. If a customer pays for an order by credit card or Paypal account, and the payment is withheld due to faults of the Restaurant’s delivery, or due to misuse of the credit card or Paypal account, the Restaurant is not entitled to payment from FOODit. Any such payment already made to the restaurant before being reversed by Paypal or the card provider will be deducted from a subsequent invoice to the restaurant.
8.4. The Restaurant shall fully indemnify FOODit and keep FOODit indemnified against any claim (and all related costs) made against FOODit by a customer or any third party in connection with the Restaurant’s failure to deliver, imperfect delivery of the placed Order or the Restaurant’s failure to comply with this Restaurant Agreement, security regulations, health and safety regulation and/or any applicable laws, rules and regulations in force at the relevant time.
8.5. The Restaurant shall accept and shall not object to being included by FOODit in any manner to any third party notice or otherwise in any proceedings instituted against FOODit, relating to the Restaurant’s services or its conduct in connection with this Restaurant Agreement.
8.6. Subject to clauses 8.1 and 8.2, FOODit’s total liability to the restaurant in respect of all other losses arising under or in connection with this Restaurant Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, including losses caused by FOODit’s repudiatory breach or a deliberate breach of the restaurant agreement by FOODit, its employees, agents or subcontractors shall not exceed the amount of transactions fees paid to FOODit by the restaurant according to this Restaurant Agreement regarding orders in the 12 months prior to the date that the liability arose.
8.7. Except as expressly set out in this restaurant agreement, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded.
8.8. This clause 8 shall survive termination of the Restaurant Agreement.
9. FORCE MAJEURE
9.1. FOODit shall not be liable to the Restaurant as a result of any delay or failure to perform its obligations under this Agreement as a result of a Force Majeure Event. A “Force Majeure Event” means an event beyond the reasonable control of FOODit including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of FOODit or any other party), failure of a utility service or transport 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 subcontractors, import and export restrictions, faults, breakdowns or other operational interruptions.
9.2. If the Force Majeure Event prevents FOODit from providing the Service for more than 1 week, FOODit may, without limiting its other rights or remedies, terminate this Agreement immediately by giving written notice to the Restaurant.
10. INTELLECTUAL PROPERTY RIGHTS
10.1. All Intellectual Property Rights in or arising out of or in connection with the Services or the Website shall be owned by FOODit and nothing in this Restaurant Agreement shall constitute a transfer of those Intellectual Property Rights to the Restaurant.
10.2. The Restaurant confirms irrevocably to FOODit that the Restaurant’s name, menu, logo and other material do not violate, infringe or conflict with Intellectual Property Rights of any third party. “Intellectual Property Rights” means: all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
10.3. If a third party makes a claim against FOODit for the violation of the third party’s Intellectual Property Rights relating to the Restaurant’s name, menu, logo and/or other material, the Restaurant shall fully indemnify and keep FOODit indemnified against any claim of any nature and all costs resulting there from.
11. TERM AND TERMINATION
11.1. This Restaurant Agreement comes into force when its acceptance is indicated on the FOODit sign-up form signed by The Restaurant’s representative and is valid until such time as this Restaurant Agreement is terminated in accordance with its provisions.
11.2. Without prejudice to its other rights and remedies, FOODit may terminate this Restaurant Agreement immediately by giving written notice to the Restaurant without further liability to the Restaurant.
11.3. The Restaurant may only terminate this Restaurant Agreement by one month’s prior written notice after expiry of 12 months from the commencement of this Restaurant Agreement.
11.4. Payments made to FOODit by the Restaurant for set-up of the Service, or for the purchasing or leasing of the FOODit EPOS and any connection fees, are non-refundable.
11.5. Once FOODit has received a valid written cancellation notice in accordance with this Restaurant Agreement, the Restaurant will be sent a letter from FOODit confirming the termination of account and final payment details, and a BACS payment for any outstanding monies owing to the Restaurant, or, a request to pay any outstanding balance owing to FOODit.
11.6. Without limiting its other rights or remedies, FOODit shall have the right to suspend provision of the Services under this Restaurant Agreement or any other contract between the Restaurant and FOODit if the Restaurant materially breaches any of its obligations under this Restaurant Agreement, which are not remedied within 5 days’ of FOODit sending notice to the Restaurant, including but not limited to if the Restaurant fails to pay any amount due under this Restaurant Agreement on the due date for payment.
11.7. The rights and obligations of the parties under this Restaurant Agreement which are intended to continue beyond the termination or expiry of this Restaurant Agreement (including those under this Clause 11 and Clauses 8, 9, 10, 15, 16 and 17) shall survive the termination or expiry of this Restaurant Agreement.
11.8. Domain Name Renewal
11.8.1. Upon the expiry of the first 12 months of this agreement, and at each anniversary thereafter, for as long as this agreement continues between the Parties, FOODit will renew any domain name subscription purchased by FOODit on behalf of the Restaurant.
11.8.2. The Restaurant will be charged by FOODit for any domain name renewal costs plus a £10 admin fee.
11.9. Domain Name Transfer
11.9.1. Upon Termination The Restaurant can purchase back the domain name purchased by FOODit for a fee of £10 per year of being active (rounded up per year) plus £30 admin fee. Upon payment of the fee to FOODit we will transfer the domain based on the rules of that domain. If you wish to start this process email firstname.lastname@example.org
12. SERIOUS BREACH OF OBLIGATIONS
12.1. In the event of repeated incidents of default by the Restaurant and complaints from customers about the Restaurant, FOODit shall be entitled to determine in its sole discretion, whether or not such breaches can be remedied.
12.2. Without limiting its other rights or remedies, FOODit reserves the right to remove the Restaurants name, menu and logo from “FOODit Marketplace” (and affiliated websites, applications and apps) without notice and without further liability to the Restaurant.
13.1. Upon 1 months’ prior written notice, FOODit may amend the terms of this Restaurant Agreement. The Restaurant shall be notified of such amendments either by fax, email, or in writing. Unless the Restaurant responds to such notification within 2 weeks objecting to the amendments or terminates this Restaurant Agreement in accordance with Clause 11, such amendments shall henceforth be construed as forming part of this Restaurant Agreement and accepted by the Restaurant.
14.1. FOODit shall be entitled to assign its rights and obligations under this Restaurant Agreement to any third party.
14.2. FOODit must be notified of any changes in ownership of the Restaurant as soon as possible. Failure to notify FOODit may result in monies being paid to an incorrect account which FOODit cannot take responsibility for. Unless a “Changes to Ownership” form has been signed by FOODit and the Restaurant, no rights or obligations of either party under this Restaurant Agreement will change.
14.3. The Restaurant may only assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Restaurant Agreement to a third party with the express prior written consent from FOODit.
14.4. The Restaurant shall procure that immediately on assignment that any third party assignee (for example a new owner) assumes the legal obligations and duties of the Restaurant and such assignee is liable for any claim made against the Resxtaurant before the date of such assignment. The Restaurant that assigns its rights and obligations is released from liability only when all or any claims made before the date of such assignment are paid. The Restaurant shall procure that any assignee of this Restaurant Agreement shall enter into a Restaurant Agreement directly with FOODit.
15.1. The content of this Restaurant Agreement and any information concerning the other party is to be treated as confidential and shall not be disclosed unless such information is generally accessible to the public. However, FOODit is entitled to use the Restaurant’s name as a reference.
16. INVALIDITY CLAUSE
16.1. If any of the terms or conditions of this Restaurant Agreement are declared wholly or partly invalid, the remainder of this Restaurant Agreement shall remain in full force and effect and any wholly or partly invalid terms or conditions may be replaced by valid terms or conditions agreed between the parties, so as to maintain the relationship between the parties in similar manner as if the terms or conditions had not been declared invalid.
17. GOVERNING LAW AND JURISDICTION
17.1. This Restaurant Agreement and any dispute or claim arising out or in connection with this Restaurant Agreement or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) shall be governed by and construed in accordance with English law.
17.2. The parties agree to submit any dispute arising in connection with this Restaurant Agreement to the exclusive jurisdiction of the courts of England and Wales (including any dispute or claim relating to non-contractual obligations).
FOODIT LIMITED, 7 SOLAR WAY, ENFIELD, EN3 7XY. TEL: 08712304600, COMPANY NUMBER 8543280.
REGISTERED OFFICE IN ENGLAND AND WALES.
Last updated 09/02/17