Terms and Conditions – 18.01.18

January 1, 2018 | by |

1. Definitions

“Administration Fee” means the fixed fee per Order payable by the Customer to the Company in addition to the Commission Fee;

“Cash Payment” means payment in cash by the User direct to the Customer;

“Commission Fee” means the percentage fee per Order payable by the Customer to the Company based upon the value of the Order and the percentage commission set out in the Settings or as amended by the Company in accordance with clause 4.15;

“Company” means: hungryhouse.com ltd, Chester House, Fulham Green, 81-83 Fulham High Street, London SW6 3JA. Registered in England and Wales with Company Number 4837025. VAT 882 4016 27;

“Customer” means any person, firm or company or unincorporated association which subscribes to the Service by executing the relevant Application Form;

“Customer Bank Details” means the bank details of the Customer as detailed in the Settings;

“Marketing Services” means the marketing and promotional services available to the Customer from time to time;

“Menu” means a detailed list of the Customers Products available to the User including Product prices and all other information as required by these Terms;

“Monthly Subscription Fee” means the fee payable monthly by the Customer to the Company as set out in the Settings or as amended by the Company in accordance with clause 4.15;

“Online Payment” means a payment by the User for the Order through the Website;

“Order” means the Users Product choices submitted to the Company via the Website;

“Order Offer” means the offer by the Company to the Customer to process and deliver the Order to the User;

“Order Transmission Method” means the method of accepting or declining Order Offers by the Customer as detailed in the Settings or agreed between the parties from time to time;

“Partner Portal” means the online portal detailing the Settings and Information;

“Products” means the food and drink items as set out in the Menu available to Users from the Customer through the Website;

“Services” means the services provided by the Company as disclosed agent for the Customer in accepting Orders from Users via the Website and processing such Orders to the Customer;

“Settings” means the Restaurant ID, Control Centre Password, Commission Fee and Monthly Subscription Fee details as set out on the Partner Portal;

“User” means any person that submits an Order via the Website;

“Website” means ​www.hungryhouse.com​ or such other site as the Company determines from time to time;

The following terms and conditions (“the Terms”) supplement the Application Form executed between the Company and the Customer. The Terms, the Application Form and the information set out on Partner Portal together are referred to as the “Agreement”.

2. Customer Responsibilities

2.1 The Agreement between the Company and the Customer shall commence on the submission by the Customer of its menu and logo in response to the Company’s quote and shall continue until terminated by either party in accordance with clause 4.15 or clause 11. By submitting its menu and logo, the Customer confirms its acceptance of the product(s) described in the quote and these terms and conditions.

2.1.1 From time to time, the Company may invite the Customer to participate in a special promotional campaign and offer special terms (including without limitation in respect to Monthly Subscription Fee and Commission Fee) if the Customer agrees to participate. The special terms available, along with any conditions for participation, such as offering promotional discounts to Users or the display of any promotional or other logos in the Restaurant and/or on the Customer’s website (“Campaign Conditions”), will be communicated via email or via the Customer’s account on the Website. The Customer expressly agrees that, if it chooses to participate in the special promotional campaign, it shall do so for the duration of the campaign (or for any minimum period specified by the Company) (“Campaign Period”) and shall comply with all the Campaign Conditions. In the event that the Customer withdraws from the campaign before the end of the Campaign Term or does not comply with, or ceases to comply with, the Campaign Conditions during the Campaign Term, the Company shall be entitled to withdraw any special terms made available to the Customer in respect to the campaign.

2.2 The Customer shall provide true, accurate and complete information about itself and its business as requested, and in the form specified, by the Company from time to time including full contact details, email addresses, mobile and landline telephone numbers, bank account details and proof of ownership (“the Information”). The Company reserves the right to suspend the Services and/or the remittance of any payments to the Customer in the event proof of ownership (or change of ownership) has not been established in the manner specified by the Company or in the event of any dispute as to ownership coming to the Company’s attention.

2.3 The Customer shall maintain and promptly update the Information the Company holds about the Customer to keep it true, accurate, current and complete. The Customer shall review the Partner Portal on a regular basis and promptly advise the Company of any changes. In the event that the Company has not been informed of any change to the Customer’s bank account details (or such change has not been verified in the manner specified by the Company), the Company shall not be liable for any losses to the Customer or any other person which arise from the Company making payments to the bank account whose details were previously provided by the Customer. The Customer agrees to check its bank statements at least once every week to verify that it has received the payments due to it and to report any non-payment or underpayment as soon as practicable and in any event within two (2) months of the month in which payment was due and was not paid or was underpaid . For the avoidance of doubt, the Company shall be entitled (but not obliged) to make payments to the bank account whose details it has previously accepted from the Customer until such time as any new bank account details have been confirmed and verified in the manner specified by the Company.

2.4 The Customer shall advise the Company of any changes to the Menu within 24 hours of any such change. The Company reserves the right to charge the Customer a support fee at its then current rate related to any changes to the Customer’s Menu and Settings. The Customer shall be solely responsible for the accuracy of the Menu.

2.5 The Customer shall inform the Company of any allergy information in relation to the Products available on the Menu in accordance with all applicable laws, regulations and codes of practices and industry standards whether binding or not.

2.6 The Customer undertakes to obtain and at all times maintain all necessary licences and consents and to comply at all times with the all applicable laws and regulations including but not limited to all health and safety and data protection legislation.

2.7 The Customer shall inform the Company immediately of any investigation by any Government body into the Customer or its business practices and disclose to the Company the results of such investigation.

2.8 The Customer is solely responsible for maintaining the confidentiality of its Restaurant ID and Control Centre password and is fully responsible for all activities that occur using such ID and password. The Customer agrees to notify the Company immediately if at any time it becomes aware of any unauthorised use of its Restaurant ID and password or any other breach of security.

2.9 It is the Customer’s responsibility to ensure the prices for the Products as set out in the Menu are correct. The Customer will be solely responsible for advising the Company of any Product price changes.

3. Acceptance of orders and Products offered

3.1 The Company procures Orders from Users on behalf of the Customer, and transmits these Orders to the Customer in the form of Order Offers. These Order Offers are accepted or declined by the Customer using the Order Transmission Method .

3.2 Accepting any Order Offer from the Company implies acceptance of these Terms by the Customer, and forms an agreement between the User and Customer for the Customer to provide the Products to the User, as described in the Order Offer.

3.3 All employees, agents and representatives of the Customer shall be deemed to have the necessary authority to accept the Order Offer. The Company is not obliged to seek verification as to the status of any person reached at the Customer’s supplied telephone numbers or for any person with knowledge of the Customer’s Restaurant ID and Control Centre Password.

3.4 Products offered to Users by the Customer through the Service, and Orders procured by the Company on behalf of the Customer, must not be disadvantaged in any way or receive a lower level of service or inferior sale conditions when compared to the goods and services offered by the Customer direct to members of the public and orders received direct from members of the public.

3.5 The use of e-mail shall be considered by both parties as constituting written communication between them.

4. Price and payment
4.1 The fee payable by the Customer for the Service consists of:-

  1. 4.1.1  the Monthly Subscription Fee;
  2. 4.1.2  the Commission Fee;
  1. 4.1.2  the Administration Fee; and
  2. 4.1.3  any additional fees for services agreed between the Company and the Customer

such as, but not limited to, premium placement, product upgrades and marketing materials and amending menus.

4.2 The Commission Fee and the Administration Fee will be due and payable to the Company for every accepted Order, irrespective of any subsequent cancellation or change by the User or Customer. Changes to any Order following acceptance are at the Customer’s discretion and will not be subject to the Commission Fee or the Administration Fee. The Commission Fee is calculated using the Company’s data and records and (save in the case of fraud or manifest error) is binding upon the Customer.

4.3 The Company will provide the Customer each calendar month with a summary detailing the Orders completed by the Customer during the preceding month (which for the avoidance of doubt will include details of both Online Payments made by Users or Cash Payments made by Users direct to the Customer) (“the Monthly Orders”) and detailing the Monthly Subscription Fee, Commission Fee and Administration Fee payable by the Customer to the Company in respect of the Monthly Orders along with any additional sums payable for Marketing Services and any Charges incurred in accordance with clause 4.14 (“the Monthly Orders Invoice”).

4.4 The Company will within a reasonable period of time from the date of the Monthly Orders Invoice transfer to the Customer by bank transfer the balance of the Online Payments as set out in the Monthly Order Invoice.

4.5 The Company reserve the right to deduct any amounts past, present or future owed to the Company by the Customer out of the Online Payments before the balance of those payments is transferred to the Customer.

4.6 In the event that the Online Payments are less than the total due to the Company as set out in the Monthly Orders Invoice the Customer shall pay the difference as set out in the Monthly Orders Invoice to the Company within 7 days of the date of the Monthly Order Invoice.

4.7 Value Added Tax (VAT), where applicable, will be added at the appropriate rate to the total of all charges shown on the Monthly Orders Invoice.

  1. 4.8  Time for payment of the Monthly Order Invoice is of the essence.
  2. 4.9  Any Monthly Order Invoice which is overdue will be charged interest at 2.5% per

month or part thereof from the due date of payment until the actual date of payment. In the event of any account being referred to a third party for collection, a surcharge of 5% over Barclays Bank PLC base rate will be levied on such amount, in addition to any legal charges incurred by the Company as a result of the overdue account.

4.10 In the event that the Monthly Order Invoice remains unpaid after the invoice due date, the Company may discontinue, withhold or suspend the Service. The Company will not and cannot be held liable for loss of business, revenue or goodwill resulting from the suspension, withholding or discontinuation of the Services.

4.11 If the Customer disputes the Monthly Order Invoice, the Customer must notify the Company in writing within 7 days from the date of the Monthly Order Invoice. Failure to notify the Company shall result in a waiver by the Customer of any claim relating to the disputed invoice.

4.12 The Company shall be entitled to offset any debt or claim of any nature which the Company might have against the Customer against any sums due from the Company to the Customer .

4.13 The Customer agrees to charge the User according to the calculation supplied by the Company with each Order Offer.

4.14 The Customer acknowledges that, in accordance with the UK Payment Services Regulations2017,from13t​h​January2018itmaynotchargetheUserafeespecificallyfor using a credit or debit card to make payment. The Customer shall however levy a Service Fee on each order it accepts via the Services (whether the User pays by credit card, debit card, cash or some other form of payment) of 50p per order but provided that:

(a) the Customer may waive or reduce this Service Fee by notifying the Company in writing; and

(b) the Customer agrees not to levy a Service Fee on the User of more than 50p.

4.15 The parties agree that the Company may review and increase the Monthly Subscription Fee, Commission Fee and/or Administration Fee, provided that such charges cannot be increased more than once in any 6 month period. If the Administration Fee is increased, the maximum Service Fee which the Customer may levy on the User shall be increased accordingly. The Company shall give the Customer written notice of any such increases 14 days before the proposed date of the increase. If such increases are not acceptable to the Customer, it may, within 14 days of such notice being received, terminate the agreement with immediate effect by giving written notice to the Company.

4.16 Without prejudice to clause 8, it is the Company’s policy to compensate the Customer in respect of any Order which has been placed fraudulently without intention to pay (“Prank Order”) as set out below.

4.16.1 Subject to clause 4.16.3, compensation shall be available where:

(a) the Order was to be settled in cash and not by credit card or other payment method and, on attempted delivery, it was apparent that no genuine order had been placed by the User. Not included in the foregoing is a User who intended to pay in cash but, on delivery, discovered they had insufficient cash;

(b) no payment was actually received by the Customer for the Order. If the Customer accepts a partial payment in respect to an Order from any person, that Order shall not be considered a Prank Order;

(c) the Prank Order was reported to the Company’s Customer Care Department within 72 hours of being placed;

(d) if the Order was worth £60 or more, the Customer had called the User to confirm the Order was genuine, using the phone number given on the Order, and the call had been answered and the person answering had confirmed the Order.

4.16.2 The amount of compensation available will be limited to the production cost of the food items and packaging (excluding any part of the Order which can be resold such as soft drinks) and reimbursement of the Commission Fee (but not the Administration Fee) in respect to the Prank Order. The amount of compensation shall be calculated by the Company in its sole discretion and shall be applied as a rebate on Commission Fees in the next invoice but for the avoidance of doubt shall not otherwise be payable in cash.

4.16.3 The Company reserves the right to decline to pay any compensation at all in respect to an alleged Prank Order where the Company, in its discretion, considers there are grounds to believe (i) the relevant Order was not a Prank Order or (ii) the Customer itself was at fault in not identifying the Prank Order (for example, where there are multiple Orders for the same address in a short space of time, or an Order is placed for an address which previously the subject of a Prank Order, and in either case the Customer did not confirm the Order by telephone as set out in clause 4.16.1(d) above).

5. Confidentiality

A party (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to, or otherwise obtained by, the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Agreement, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This clause 5 shall survive termination of the Agreement.

6. Assignment and subcontracting

6.1 The Customer shall not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under this Agreement without the prior written consent of the Company.

6.2 The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under this Agreement and may subcontract or delegate in any manner any or all of its obligations under this Agreement to any third party or agent.

7. Service availability

The Company intends to make the Website available to Users for a period of 24 hours per day but offers no guarantee that the Service will be available at any particular time or continuously. The Company will not be responsible for any lack of availability or applicability of the Website.

8. Limitation of Liability

8.1 The Company will not be liable to the Customer for negligence or in any other circumstances for any lost data, lost income or lost profit or any other indirect or connected loss that the Customer or anyone else suffers, however it happens, or whether or not the Company had notice of the possibility of such loss arising.

8.2 To the extent permitted by law, the Company provides the Service on an “as-is” and “as available” basis and makes no representation or warranty of any kind, express or implied, regarding the availability of the Service, or that it will be timely or error-free, that defects will be corrected, or that the hardware and software that makes it available are free of viruses or other harmful components.

8.3 Claims for under-payment or non-payment

(a) If the Customer has not notified the Company of any alleged under-payment or non-payment of sums due to it within the time limit specified in clause 2.3, it shall be the Customer’s responsibility to prove the amount of any alleged under-payment or non-payment.

(b) If the Customer has not notified the Company of any alleged under-payment or non-payment of sums due to it within three (3) months of the end of the time limit specified in clause 2.3, the Customer waives any claim to such alleged under-payment or non-payment (even if provable) and shall not be entitled to recover such sums.

The parties agree that, in light of the volumes of Orders which may be processed by the Company and the Customer’s agreement to check and verify the payments it receives at least once per month, this clause 8.3 is reasonable.

8.4 Users will be invited to submit ratings and reviews that are published on the Company’s website. These represent the opinions of the Users and are not endorsed or approved by the Company in any way. Orders are passed to the Customer as supplied by the User, and the Company accepts no responsibility for their content.

8.5 Nothing in these Terms shall exclude or limit the liability for death or personal injury resulting from the Company’s negligence or that of its agents or employees.

8.6 This clause 8 shall survive termination of the Agreement. 9. Indemnity

9.1 The Customer shall keep the Company indemnified in full against all costs, expenses, damages and losses (whether direct or indirect), including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Company as a result of or in connection with:

9.1.1 any claim made against the Company by a third party arising out of, or in connection with a breach of, negligent performance or failure or delay in performance of this Agreement by the Customer, its employees, agents or subcontractors; and

9.1.2 any claim brought against the Company for actual or alleged infringement of a third party’s Intellectual Property Rights; and

  1. 9.1.3  any claims made by Users relating to an Order supplied by the Customer; and
  2. 9.1.4  any claims made by Users relating to the failure by the Customer to fulfil such

Orders.

9.2 For the duration of this Agreement, the Customer shall maintain in force, with a reputable insurance company, professional indemnity insurance and public liability insurance to cover the liabilities that may arise under or in connection with this Agreement and shall, on the Company’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.

9.3 This clause 9 shall survive termination of the Agreement. 10. Intellectual Property

10.1 You may not print, copy, reproduce, download, republish, broadcast, transmit, display, modify or reuse the materials available through the Service for anything other than

personal, non-commercial use, including in particular any purpose which publicly resells or re-uses the materials, without the prior written consent of the Company.

10.2 All copyright, trade marks and other intellectual property rights relating to this Service (including without limitation the business name, website design, text, graphics, logos, icons, images and all software, databases and source code connected with the Service (“the Intellectual Property Rights”)) are owned by or licensed to the Company or otherwise used by the Company as permitted by law.

10.3 The Customer may include the Company’s logo on its promotional material for the purpose of advertising the Service to potential Users upon the prior written consent of the Customer .

10.4 The Customer acknowledges that hungryhouse.com and the hungryhouse.com logo are trade marks of the Company.

10.5 The Customer warrants that their business name, menu, logo and any other materials used as part of the Service (“the Customer’s Intellectual property Rights”) by the Company do not infringe or conflict with the Intellectual Property Rights of any third party.

10.6 The Customer grants to the Company a non exclusive, royalty fee, perpetual worldwide licence to copy, re produce, publish, display and use the Customer’s Intellectual Property for the provision of the Service which will include the right by the Company to engage in search engine and affiliate marketing and the purchase of domain names for the purpose of the advertising and promotion of the Service and the Customer.

11. Termination

11.1 The Company may at any time, without notice and at its sole discretion, withdraw or restrict any of the Services and/or access rights to the Service. This includes without limitation where the Customer has turned off or not activated their order transmission method (for example, where the Customer uses tablets or other mobile devices) or where the Customer is not logged into their account or has otherwise lost internet connectivity.

11.2 The Company may without prejudice to its other rights or remedies, terminate this Agreement immediately by written notice to the Customer.

11.3 The Customer may terminate this Agreement with the Company for any reason by giving at least seven days written notice. The Company shall suspend the Service provided to the Customer within seven days of receiving this written notification.

11.4 Upon termination or suspension of this Agreement in accordance with clause 4.15 or this clause 11 any amounts outstanding payable by the Customer to the Company will become due immediately.

11.5 On termination of Services offered by the Company to the Customer, all duties of the Company under this Agreement will be terminated.

11.6 Any sums owing to the Customer upon termination or suspension of this Agreement shall be calculated and paid in accordance with clause 4.

12. Amendments

Subject to amendments made in accordance with clause 4.15, the Company reserves the right to make changes to these Terms by providing the Customer 14 days written notice of any changes.

13. Governing law

This Agreement and all orders accepted under it shall be governed and interpreted according to the laws of England and Wales and the Customer agrees to submit to the non-exclusive jurisdiction of the English courts.

14. Enforceability

14.1 If any part of these Terms is deemed unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any of the remaining provisions of these Terms.

14.2 No waiver by the Company shall be construed as a waiver of any preceding or succeeding breach of any provision.

15. Entire agreement

This Agreement constitutes the entire agreement between the parties relating to the subject matter and extinguishes any previous written or oral representations given or made by the parties or any representatives of the parties.

16. Notices
16.1 Unless otherwise stated in the Agreement:

16.1.1 Notices that the Customer sends to the Company shall be delivered by hand or sent by post to 78 York Street, London, W1H 1DP or by email to

​info@hungryhouse.co.uk​ (“Formal Delivery”). The Company may (but shall not be obliged to) accept notice given by the Customer verbally or by telephone or text message (“Informal Delivery”) and, where the Company in its sole discretion accepts Informal Delivery, it shall be entitled to require the Customer to send confirmation by Formal Delivery within a further 72 hours.

16.1.2 Notices that the Company sends to the Customer may be sent:

16.1.2.1 by hand or by post to your address as detailed in the Settings or to the Customer’s registered office; or

16.1.2.2 by email to the Customers email address as detailed in the Settings at the date of the communication; or

16.1.2.3 by SMS to your mobile phone number detailed in the Settings at the date of the communication;.

16.2 Notice given by hand shall be deemed given the same day. Notice given by post shall be deemed to have been given 3 days after the date of posting. Any communication by email or SMS shall be deemed to have been made at the time and date of transmission.

17. Force Majeure

17.1 The Company shall not be liable to the Customer 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 the Company including but not limited to acts of god, war (or threat thereof), any act or threatened act of terrorism, civil commotion or industrial dispute.

Sam Andrus

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