1.2  References to statutes or statutory provisions shall be construed to include references to those statutes or provisions as amended or re-enacted (whether with or without modification) from time to time or as their application is modified by other provisions (whether before or after the date of this Agreement) and shall include any statute or provision of which they are re-enactments (whether with or without modification) and shall also include any orders, regulations, instruments or other subordinate legislation under the relevant statute or statutory provision.

1.3  The headings in this Agreement are for ease of reference only and shall not in any way affect its construction or interpretation.

1.4 The Schedules form part of this Agreement and shall be construed and have the same full force and effect as if expressly set out in the main body of this Agreement.

1.5 Unless expressly stated to the contrary in this Agreement.

1.5.1 words denoting the singular include the plural and vice versa, words denoting any one gender include all genders and vice versa, and references to persons include individuals, partnerships, bodies corporate and unincorporated associations;

1.5.2 a reference to a recital, clause or Schedule is a reference to a recital or clause of or Schedule to this Agreement and a reference to a sub-clause is a reference to a sub-clause of the clause in which the reference appears;

1.5.3 the words and phrases “other”, “including” and “in particular” shall not limit the generality of any preceding words or be construed as being limited to the same class as the preceding words where a wider construction is possible.

2 DURATION

This Agreement commences on the Effective Date it is signed, shall continue unless and until terminated by either party giving to the other written notice to expire at any time or until the Venue ceases to be listed on the Provider Site.  The Venue is entitled to do this at any time.  The Venue authorises the Provider to place upon the Provider Site such information and content (“Venue Content”)

3 SERVICES 

3.1  The Provider shall provide the Services during the term of this Agreement in accordance only with the terms of this Agreement.  The Services shall be (i) the listing of the Venue on the Provider Site as soon as reasonably practicable from receiving relevant standard information and content (including the Venue’s menus and prices) reasonably required from time from the Venue as stated below (“the Standard Service”) and (ii) such other advertising, including content provided by the Venue to the Provider and other services each as may be described in Schedule 2 (“the Additional Services”). 

3.2 The Provider shall be provide a means for a User to pass on via the Provider Site electronically to the Venue or any other restaurant, bar or other venue listed on the Provider’s Site chosen by the User an Order for Consumables.  The Provider will not prefer the Venue compared with other restaurants, bars or other venues, and there is no guarantee by the Provider that Users will place any quantity of Orders with the Venue over the term of  this Agreement or other period.

3.3  As part of the Standard Service, the Provider shall process any electronic payments due from Users to the Venue via the Provider Site through third party suppliers which shall be Stripe (“the Payment Processors”).    The Venue can immediately open an account with the relevant Payment Processor(s), and the Venue will thereby authorise the Payment Processor to make the payment to the Provider of the Processing Fees.  Once a User submits on the Provider’s Site an Order for the Venue’s Consumables with the User’s authorisation for payment to the Venue’s said account, the Provider can immediately charge the price of the Order to the User’s credit or debit card and immediately out of this sum the Provider can deduct the Processing Fee automatically and electronically from the Venue’s account with the Payment Processor. The Venue shall not attempt to cancel that Processing Fee, regardless of whether the Order by the User is cancelled for any reason except the Provider’s fault in relation to that Order.   The Venue can choose in relation to any Order instead to receive payment by cash

4 FEES &PAYMENT

4.1  The Venue shall pay to the Provider (i) the Processing Fee in respect of each sale by the Venue resulting from an Order which is received and accepted by the Venue during the term of this Agreement, except for any sales where the payment is settled between the User and the Venue directly; and (ii) the Additional Fees for any Additional Services.  The rate of the Processing Fee for the Standard Service shall be the percentage set out in Part 1 of Schedule 3 and the Additional Fees for any Additional Services shall be as set out in Part 2 of Schedule 3.  The Fees means both the Processing and Additional Fees, and may be varied at any time.

4.2  The Processing Fee shall be calculated and payable to the Provider in the currency in which it is received by the Venue.

4.3  All sums payable under this Agreement are exclusive of value added tax or other applicable sales tax, which shall be added to the sum in question.

4.4  If the Venue fails to make any payment due to the Provider under this Agreement by the due date for payment, without limiting the Provider’s remedies, the Venue shall pay interest on the overdue amount at the rate of 4% per annum above the base rate from time to time of the Bank of England. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.

4.5  If any dispute arises as to the amount of the Fees payable by the Venue to the Provider, it shall be referred to the Providers auditors, acting as experts and not arbitrators, for determination and their decision, save in the case of manifest error, shall be final and binding on both parties.  The Venue shall supply to the Provider and the Provider’s auditors such information and records as the Provider may reasonably request to verify the sums due to it.  The Venue shall grant to the Provider’s auditors access to its premises and such records to audit those records for such purpose.

4.6  All amounts payable by the Venue to the Provider under this Agreement shall be paid in full without any set-off, abatement, cross claim, deduction or withholding of any kind other than as required by law

5 PROVIDER’S OBLIGATIONS

5.1  The Provider warrants and undertakes that:

5.1.2  the Provider has the right, power and authority to enter into this Agreement and supply the Services;

5.1.3  the Services do not and shall not infringe the copyright and intellectual property rights of any third party; and

5.1.4  the Services will be performed with reasonable skill and care, provided that all other warranties implied by statute or other law are excluded to the fullest extent not prohibited by law and, in particular, the Provider does not make any warranty or representation that the Services will be fit for any particular purpose or shall be free from errors or provide uninterrupted use at all times.

6 VENUE’S OBLIGATIONS

6.1 The Venue understands and agrees that the Provider has no responsibility for the users of the Provider Site (“the Users”) and their payment to the Venue via the Provider Site or otherwise, and that the Provider shall not undertake any checks about the Users or the validity of the payment the Users may purport to make to the Venue via the Provider Site or otherwise.  

6.2 The Venue warrants and undertakes that:

6.2.1  it has the right, power and authority to enter into this Agreement and accept the Services;

6.2.2  the Venue Content does not and shall not infringe the copyright and intellectual property rights of any third party;

6.2.3  it shall in all respects in its provision of its supplies comply with the law and not commit or facilitate an offence in relation to underage purchase or usage of alcohol, tobacco or anything else;

6.2.4  it will act in a way which is compatible with the Provider’s contract with Users in the form current from time to time as found on the Provider’s Site;

6.2.5  it shall advise the Provider by email and otherwise as requested reasonably by the Provider of any complaints about Users or complaints made by Users; and

6.2.6  it shall without delay supply to the Provider all relevant information and assistance to the extent reasonably necessary for the Provider to perform its obligations.

6.3    The Venue undertakes that it shall not copy or record any details obtained from the Provider of the identity or address of any User or use any data obtained for any forms of marketing to the User.Venue will also undertake not to hack or illegally accesses data from users or the site itself.

6.4 The Venue shall indemnify, keep indemnified and save harmless the Provider against and as a separate obligation shall pay to the Provider on demand all sums suffered or incurred by the Provider in respect of all and any demands, liabilities, expenses, claims (including any settlements of claims whether before or after the issue of proceedings), judgment sums (including sums arising from consent orders or judgments), damages, direct, indirect or consequential losses, costs (including on a full indemnity basis legal and other professional costs) suffered or incurred by the Provider arising out of or in connection with any breach of this Agreement by the Venue or any breach by the Venue of any law.

 7 CONFIDENTIALITY

7.1  Without prejudice to each party’s other rights and remedies, each party shall treat as confidential (during and for a period of at least 5 years after termination of this Agreement) any information which is, by its nature confidential, that is, or has been, disclosed to it by the other or any such information that has come to that party’s attention or otherwise obtained by that party in pursuance of the matters contemplated under this Agreement and shall not divulge any such information to a third party and shall not make any use of such information (other than in performance of this Agreement) without the other’s written consent provided that this clause will not apply to information which:

7.1.1   at the time of disclosure is in the public domain;

7.1.2 after disclosure becomes part of the public domain otherwise than by breach by a party of the provisions of this Agreement;

7.1.3 was already in the possession of the receiving party at the time of disclosure;

7.1.4 was received by the receiving party after disclosure from a third party who was not required to hold it in confidence; or

7.1.5 is trivial and/or obvious.

7.2 Nothing in this Agreement shall prevent a party from disclosing information:

7.2.1 to those of its officers and employees reasonably required to have the same in order for such party to perform its obligations under this Agreement provided that such party shall procure that such officers and employees comply with the provisions of this clause;

7.2.2 to its solicitors, accountants, insurers and other professional advisors; and

7.2.3 as is required to be disclosed by a party by an order of any court of competent jurisdiction or in connection with any proceedings of any such court or otherwise by force of law or regulation having the force of law or the rules of any regulatory authority.

8 ANNOUNCEMENTS

Either party may so far as is reasonable make a media statement or announcement about the listing of the Venue on the Provider Site.  The Venue shall be entitled also to carry during the term of this Agreement the Provider’s branding on the Venue’s menus and other marketing material in accordance with the Provider’s instructions.

9 LIMITATION OF LIABILITY

9.1 Nothing in this Agreement shall limit or exclude the Provider's liability for:

9.1.1  death or personal injury caused by its negligence;

9.1.2 fraud or fraudulent misrepresentation; and

9.1.3 other liability which cannot be limited or excluded by applicable law.

9.2 Subject to clause 9.1, the Provider shall not be liable to the Venue, whether in  contract, tort (including negligence), delay, wilful (except with malicious intent) or repudiatory breach or otherwise, arising under or in connection with this Agreement (“however arising”) for: 

9.2.1 direct or indirect loss of profits;

9.2.2 direct or indirect loss of revenue;

9.2.3 direct or indirect loss of contracts;

9.2.4 direct or indirect loss of reputation; or

9.2.5 any indirect or consequential loss.

9.3 Subject to clause 9.1, the Provider’s aggregate liability to the Venue however arising for all claims and remedies which arise in a Contract Year is limited to 110% of the  Fees (in this clause being exclusive of VAT and any other taxes and duties) paid (or which ought to have been paid) for the Services provided in such Contract Year.  “Contract Year” means a 12 month period starting on the Effective Date and each anniversary of the Effective Date.

9.4 The Provider shall not be liable to the Venue for any claim however arising unless made (i) with reasonable details in writing to the Provider and (ii) promptly and in any event no later than 6 months after the termination of this Agreement.

9.5 The exclusions and limitations of liability contained in this Agreement shall apply regardless of whether the loss or damage was foreseeable or whether the Venue has  notified the Provider of the possibility of any greater loss or damage.

11 DEFAULT AND EARLY TERMINATION

11.1  Without affecting any other rights or remedies it may have, either party may terminate, or suspend our performance under, this Agreement at any time on giving notice in writing at any time to the other party if the other party has any corporate action, application, order, proceeding or appointment or other step taken or made by or in respect of it for any composition or arrangement with creditors generally, winding-up, dissolution, administration, receivership (administrative or otherwise) or bankruptcy, or if it is unable to pay its debts as they fall due, or if it ceases to trade or if a distress, execution or other legal process is levied against any of its assets which is not discharged or paid out in full within three Business Days or if any event analogous to any of the foregoing shall occur in any jurisdiction in which the [relevant party] is incorporated, resident or carries on business.              

11.2 In addition, without affecting any other rights or remedies it may have, the Provider may terminate, or suspend our performance under, this Agreement at any time on giving notice in writing to the Venue if the Venue fails to pay any sum due under this Agreement 14 days after the due date for payment.

13 ASSIGNMENT/SUB CONTRACTING

The Provider shall be entitled (but the Venue shall not be entitled) to assign, novate, charge or hold on trust for another any of its interest under this Agreement in whole or in part or sub-contract all or any of its obligations under it.  Any assignment made pursuant to this clause shall not relieve the assignor of any of its obligations under this Agreement.

14 ENTIRE AGREEMENT 

14.1  This Agreement constitutes the entire agreement and understanding of the parties and supersedes any previous agreement or understanding between the parties with respect to the arrangements contemplated by or referred to in it.

14.2  Each of the parties acknowledges and agrees that:

14.2.1  in entering into this Agreement it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty (in each case whether negligently or innocently made) or understanding of any person (whether party to this Agreement or not) which is not expressly set out in this Agreement; and

14.2.2  the only remedy available to it for breach of any statement, representation, warranty or other term which is expressly set out in this Agreement shall be for breach of contract under the terms of this Agreement.

14.3  Nothing in this clause shall, however, operate to limit or exclude any liability for fraud or fraudulent misrepresentation.

15 VARIATION

No variation of this Agreement shall be effective unless it is made in writing and signed by each of the parties to the Agreement or on their behalf by duly authorised representatives.  For the purposes of this clause, the expression “variation” includes any supplement, deletion or replacement however effected.

16 WAIVER 

Any failure to exercise or delay by a party in exercising a right or remedy arising in connection with this Agreement or by law shall not constitute a waiver of such right or remedy or of any other rights or remedies.  No waiver shall be effective unless in writing and signed by the relevant party or on his behalf by a duly authorised representative.  A waiver of a right or remedy on one occasion shall not constitute a waiver of the same right or remedy in the future.

17 INVALIDITY/SEVERANCE

If any one or more provisions of this Agreement shall be declared to be invalid or unenforceable in any respect, the validity and enforceability of the remaining provisions of this Agreement shall not as a result in any way be affected or impaired.  However, if any provisions of this Agreement shall be adjudged to be void or ineffective but would be adjudged to be valid and effective if part of the wording were deleted or the scope or periods reduced, they shall apply with such modifications as may be necessary to make them valid and effective while adhering as closely as possible to the original intent, period and scope of the provisions and the parties hereby undertake to make such modifications.

19 NOTICES [and service of documents]

19.1 Any notice given under this Agreement shall be in, in English and signed by or on behalf of  the party giving it.

19.2 Any such notice shall be served by:

19.2.1 delivering it personally;

19.2.2 leaving it at the intended recipient’s address; 

19.2.3 sending it by recorded delivery to the intended recipient’s address; or

19.2.4 sending it as an email to the intended recipient’s email address.

19.3 The parties’ addresses and other contact details that must be used for the purposes of this clause are their registered office address and:

9.3.1 For the Provider For the attention of: 

Who's Round? 

Email address: Support@whos-round.com

19.3.3 or any other postal address in the United Kingdom of Great Britain and Northern Ireland or email address which a party may from time to time notify in writing to the  other party in accordance with this clause.

19.4 Any notice served in accordance with this clause:

19.4.1 personally shall be deemed to have been received when delivered;

19.4.2 by leaving it at the intended recipient’s address shall be deemed to have been received when left at that address, provided that if it is not left at that address within Business Hours it shall be deemed to be received when Business Hours next commence;

19.4.3 by recorded delivery shall be deemed to have been received 2 Business Days after the date of posting.  In proving the date of despatch it is sufficient to show that the envelope containing the notice was properly addressed, stamped and posted;

19.4.4 by email shall be deemed to have been received at the time of sending, provided that if it is not sent within Business Hours it shall be deemed to be received when business hours next commence.  In proving the time of sending, it is sufficient to prove that the notice was duly sent by email to the email address of the party.

19.5 The parties agree that the documents which start any legal proceedings relating to this Agreement and any other documents required to be served in relation to those proceedings may be served on a party:

19.5.1 in accordance with, and subject to the provisions of, this clause; or

19.5.2 in any other manner allowed by law.

21 CONTRACTS (RIGHTS OF THIRD PARTIES) ACT 1999

No provision of this Agreement shall be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any person who is not a party to it.

SCHEDULE 1

None at present

SCHEDULE  2

None at present 

SCHEDULE 3 

Part 1 

Processing Fee 1% 

Part 2 

None at present