TERMS & CONDITIONS
THIS AGREEMENT sets out in Main Terms and General Terms and conditions applicable to the Restaurant's use of Eathome's proprietary Order Taking Device (OTD) and Eathome's website for the receipt, preparation and delivery of orders by customers for goods from the Restaurant, and has been concluded as of the date at the end of this document (the "Agreement").
- OTD Provision, Installation & Connection Fee : £49 + VAT for Tablet or £149 + VAT for Printing Machine
- Eathome will charge the Restaurant:
- a 8% commission per Order (charged on Total Order Value) + VAT
- " Total Order Value" means:
- the total amount charged by the Restaurant to the Customer for an Order, including the value of the goods plus the Restaurant’s delivery charges (if any) plus applicable taxes
- This Agreement is valid from signature for an initial period of 12 months
1.1 Eathome, via its website www.Eathome.co.uk, applications and platforms (together, the "Website"), will enable customers to place Orders for takeaway food and drinks from the Restaurant, for delivery by, or collection and book a table at the Restaurant on the terms and conditions set out in this Agreement.
1.2 In consideration of the mutual covenants mentioned in this Agreement, the parties agree to comply with their respective obligations set out herein.
2 PROFILE SET UP (PROFILE Creation)
2.1 Profile set-up: Within 14 days of the later of Eathome having received all the information that it shall reasonably request from the Restaurant (including in relation to the Restaurant's name, logo, address, contact information, bank details and menu (the "Website Profile")) in complete and correct form, Eathome undertakes to set up (create) the Restaurant's Website Profile on the Website.
3.1 Payment: The Restaurant agrees to pay Eathome the "OTD Provision, Installation & Connection Fee" indicated in Main Terms of this Agreement, of which:
3.2 OTD care: The Restaurant will use, store and maintain the Product using reasonable care, including without limitation establishing and maintaining the Product in such a way as to allow it to receive a WiFi signal, GPRS signal and otherwise so that Orders received will be processed instantly.
3.3 OTD malfunctions: The Restaurant must notify Eathome without delay if the OTD malfunctions.
3.4 OTD repair – general: During the first twelve (12) months from the date of this Agreement, Eathome will reasonably promptly repair or replace the OTD in case of malfunction, save where in Eathome's sole opinion the malfunction is a result of misuse, unauthorised alteration or accidental damage by the Restaurant or of repairs not performed by Eathome or its authorised representatives ("Restaurant OTD Damage").
3.5 OTD repair – charges: After twelve (12) months from the date of this Agreement, or at any time where the malfunction is in Eathome's sole opinion a result of Restaurant OTD Damage, Eathome reserves the right to charge the Restaurant a reasonable fee for repairing the malfunctioning OTD or to charge the Restaurant for a replacement OTD at Eathome's then prevailing price.
3.6 OTD upgrades: Eathome may upgrade or alter the OTD on notice to the Restaurant at any time. Eathome reserves the right to charge the Restaurant for any upgraded or replaced OTD at Eathome's then prevailing price. Eathome will notify the Restaurant in advance of any such upgrade or alteration of the amount of charges applicable.
3.7 Ownership of OTD: The OTD remains the property of Eathome at all times. On termination of this Agreement, the OTD must be returned by the Restaurant to Eathome in good working condition.
4.1 Execution of Orders (Processing of Orders): The Restaurant undertakes to receive, process, prepare and deliver the customers' orders placed via the Website and received from Eathome by means of any of the OTD, fax, phone or email ("Orders") using the best care, skill and diligence, and in accordance with best practice in the Restaurant's industry, profession or trade. Food prepared, processed and delivered must correspond to what is stated in the Order, and must take into account any customer comments submitted with the Orders including without limitation in relation to customer allergies.
4.2 Rejection of Orders (Declining of Orders): The Restaurant shall use its best efforts to accept all Orders. Where the Restaurant wishes to reject an Order, it shall immediately communicate such rejection by pressing the relevant button on the Order Taking Device.
4.3 Payment for Orders – Acceptance of Card Orders: The Restaurant agrees that it will at all times allow customers the option to pay for Orders using either a credit or debit card ("Card Orders") or, subject to clause 3.4, cash ("Cash Orders").
4.4 Payment for Orders – Card-only Orders: If, at any time after the first 120 days of the term of this Agreement, the aggregate Total Order Value of Card Orders is not more than the aggregate value of any debts owing by the Restaurant to Eathome (including for the avoidance of doubt any debts relating to Restaurant Charges for Cash Orders), the Restaurant agrees that Eathome may at its discretion process Card Orders only on behalf of the Restaurant until all such debts are cleared.
4.5 Delivery of Orders – Order ID: When the Restaurant delivers the Order, the Restaurant must check that the Order number given by the customer corresponds with the Order ID received by the Restaurant from Eathome.
4.6 Delivery of Orders – Customer ID: Where an Order is a Card Order, on delivery of the Order the Restaurant must request proof of identification from the customer in the form of the signed card used to place the Order, and check that the credit or debit card conforms with the receipt data for the Order.
4.7 Delivery of Orders – Alcohol etc.: Where an Order contains alcohol, or any other goods which are subject to statutory age restrictions, the Restaurant must request proof of age from the customer (in accordance with applicable laws) on delivery. The Restaurant will take every other precaution necessary to ensure the customer is over the legal age for the purchase of alcohol and to ensure that the delivery occurs within the legal timeframe allowed for sale of alcohol.
4.8 Receipts: The Restaurant will provide each customer with an official receipt (and a VAT receipt, if applicable) in respect of an Order, if the customer so requests.
4.9 Redelivery and refunds: The Restaurant shall use its best efforts to satisfy any request for a redelivery or refund or proportionate price reduction of any Order made by a customer or Eathome on behalf of a customer. In the event that such a redelivery, refund or proportionate price reduction is granted by the Restaurant or Eathome, this shall not affect the Restaurant Charges that are due to Eathome in relation to the original Order. The calculation of all Restaurant Charges shall therefore be based on the Total Order Value of the faultless Order.
5 RESTAURANT & MENU INFORMATION
5.1 Information supplied to Eathome: The Restaurant undertakes to check that any information contained in its menu (the "Menu") or otherwise provided to Eathome for inclusion on the Website is at all times accurate and complies with all applicable regulations and laws (including but not limited to consumer information about ingredients which may cause allergic reactions ("Allergen Information") such as nuts), and is up to date.
5.2 Allergen Information:The Restaurant must provide and update Eathome with details of any Allergen Information in relation to the dishes that the Restaurant prepares. It is the Restaurant's sole responsibility to provide this information to Eathome without delay, and check that the Website contains the correct Allergen Information.
The safety of the customer is paramount. If Eathome is not satisfied with the commitment of the Restaurant to providing accurate and timely information about ingredients (and in particular, Allergen Information), Eathome reserves the right to suspend the Restaurant from the Website and/or terminate this Agreement immediately.
5.3 Menu prices: The Restaurant agrees that the Menu prices (including any delivery charges) it provides for display on the Website shall be the same as the prices offered in its premises, (whether such prices are on menus used in its premises or otherwise offered) and that it shall not offer a customer any discounts or redeem any coupons which are not also offered via the Website.
5.4 Updates & errors: The Restaurant shall be solely responsible for ensuring that the information displayed on the Website is accurate and up to date and corresponds exactly to the information contained in the Menu. The Restaurant shall promptly report to Eathome any errors in the Menu information or Website Profile displayed on the Website or any changes to the Menu or Website Profile. The Restaurant agrees and acknowledges that if there is any conflict between the information provided on the Website and the information provided by the Restaurant to Eathome, the information provided on the Website shall prevail.
5.5 Changes & costs: Eathome will update and/or change the contents of the information about the Restaurant displayed on the Website as soon as practicable following receipt of a written request from the Restaurant to correct errors or make minor changes to such information.
5.6 Opening hours: The Restaurant must inform Eathome of its hours of operation (the "Opening Hours"), and of any changes to such Opening Hours. If the hours of operation are stated on the Menu, Eathome shall be entitled to treat these as the Opening Hours unless the Restaurant informs Eathome otherwise.
5.7 Offline times during Opening Hours: The Restaurant must remain online and able to accept Orders using the Product at all times during the Opening Hours, save in case of closures for emergencies or planned closures, the duration of which has been communicated to Eathome in writing in advance. Where closures are planned, the Restaurant must provide Eathome with a date from which Opening Hours will return to normal.
6.1 Restaurant Charges:
6.1.1 a commission at the rate set forth in Main Terms on the total of Total Order Value of each Order calculated in accordance with clause 6.2 placed by a customer using the Service (plus applicable taxes); and
6.2 Total Order Value: The Total Order Value is the total amount charged by the Restaurant to the Customer for an Order, including the value of the goods plus the Restaurant's delivery charges (if any) plus the Customer Admin Charge (if any) plus applicable taxes.
7 INVOICING & PAYMENT
7.1 Statements: Twice per month, Eathome shall provide a statement of outstanding accounts between the Restaurant and Eathome (a "Statement") relating to the previous bi-monthly period. The Statement will include:
7.1.1 the aggregate Total Order Value of all Orders for the relevant period, split between Cash Orders and Card Orders;
7.1.2 any sums owed by the Restaurant to Eathome in relation to Restaurant Charges, the Product or the Balance (if any) and any other services provided by Eathome to the Restaurant, in each case for the relevant period;
7.1.3 any balance brought forward from, and any amounts paid or received by Eathome since the date of, the previous Statement
7.2 Invoicing: If any monies are owed by Eathome to the Restaurant according to the Statement, Eathome will remit that sum to the Restaurant prior to the next Statement.
7.3 Card Orders: If a customer pays for an Order by credit or debit card, and the payment is withheld due to faults in the Restaurant's preparation or delivery of the Order, or due to misuse of the card, the Restaurant is not entitled to any payment from Eathome in relation to such Order.
7.4 Disputed Statements: If the Restaurant disagrees with the Statement, the Restaurant must notify Eathome of its disagreement within 14 days of the delivery of the Statement to the Restaurant, setting out in detail the reasons for the disagreement. If the Restaurant fails to notify Eathome of any such disagreement within 14 days of the Statement date, the Statement shall be deemed to be accepted by the Restaurant.
7.5 Refunds: Payments made for the OTD by the Restaurant are non-refundable.
8 OVERDUE AMOUNTS
8.1 Set-off by Eathome: Where any payments are overdue to Eathome from the Restaurant, Eathome may set off the amounts outstanding against:
8.1.1 any amount otherwise payable to the Restaurant in the next Statement; and/or
8.2 Set-off by the Restaurant: The Restaurant is not entitled to withhold any payments by way of set-off against any alleged claim or shortcoming in the Service without Eathome's prior written consent.
9 CHANGES TO OWNERSHIP OR BANK ACCOUNT DETAILS
9.1 The Restaurant must notify Eathome in writing or by email prior to any change of ownership of the Restaurant or any change to its bank account details, and in any case as soon as practicable following such change. Failure to notify Eathome may result in Eathome paying monies to a bank account controlled by the outgoing owner(s) or an incorrect bank account. The Restaurant shall fully indemnify Eathome and hold Eathome harmless against any losses, damages or claims made against Eathome by the new owner(s) or otherwise incurred by Eathome due to any failure by the Restaurant to provide timely notification of a change in accordance with this clause.
10 RESTAURANT REVIEWS
10.1 General: The Restaurant acknowledges and agrees that Eathome may display on the Website ratings and comments ("Reviews") provided by customers regarding the Restaurant or an Order.
10.2 Removal: Eathome will only remove those Reviews that Eathome determines in its sole discretion contain explicit, offensive or derogatory language or otherwise breach Eathome's review guidelines from time to time. The Restaurant acknowledges that Eathome is under no obligation (but reserves the right and sole discretion at any time and for any reason) to remove or edit any other Reviews.
10.3 Reviews by Restaurant: The Restaurant agrees that it shall not itself provide or cause any other party to provide any Reviews that are fraudulent or otherwise breach Eathome's review guidelines.
10.4 Liability: To the fullest extent permitted by law, Eathome assumes no responsibility or liability to the Restaurant for any Reviews.
11 CONSENTS & COMPLIANCE WITH LAWS
11.1 General: The Restaurant confirms and undertakes that it has obtained and will obtain and maintain any consents, licences, permits, approvals or authorisations ("Consents") of any person that may be required in connection with, and it is not party to and will not enter into any agreement which would be breached by, or under which any default would occur as a result of, signing this Agreement or performing any of its terms or generally running its business.
11.2 Franchises: If the Restaurant's business, name, brand or logo is or becomes subject to any license or franchise arrangements, the Restaurant confirms that it has obtained or will obtain any required Consents from its licensors or franchisors for the use and inclusion on the Website of such business, name, brand or logo, and shall fully indemnify JE for any losses, damages or claims made against or incurred by JE due to any failure to obtain such Consents.
11.3 Loss of Consents: The Restaurant will notify Eathome in writing immediately if any of the Consents described in clause 11.1 or 11.2 are revoked or suspended, or the Restaurant is otherwise unable to rely on or benefit from any such Consents for any reason.
11.4 Compliance with laws: The Restaurant will comply with all applicable laws and regulations including, without limitation in relation to health and safety, VAT, data protection and food standards, hygiene and information, and will provide reasonable evidence to Eathome of such compliance upon request.
11.5 Website terms & conditions: The Restaurant shall at all times comply with the Website terms and conditions (available on the Website, and as amended from time to time), and in particular (but not limited to) compliance with applicable security and data protection provisions when handling customer information or receiving, processing and delivering Orders. The Website terms and conditions are hereby incorporated into this Agreement. In the event of any conflict between this Agreement and any Website terms and conditions, the terms of this Agreement shall prevail.
11.6 Taxes: The Restaurant shall be solely responsible for self-assessing, claiming and remitting all its applicable taxes.
11.7 Inspections: The Restaurant agrees that Eathome has the right to inspect the Restaurant's premises on no less than 24 hours notice, in order for Eathome to satisfy itself of the Restaurant's compliance with this clause 11, to collect the Product in accordance with Eathome's ownership rights as set forth in clause 3.7 or for any other reasonable purpose.
12 INTELLECTUAL PROPERTY RIGHTS
12.1 Ownership of IPR: All IPR (as defined below) in or arising out of or in connection with the Service, the OTD or the Website shall be owned by Eathome and nothing in this Agreement shall constitute a transfer of those IPR to the Restaurant.
12.2 Licence of Restaurant IPR: The Restaurant grants Eathome a licence to use the Restaurant's name, Menu, logo and other IPR for the purposes of providing the Service for the duration of this Agreement.
12.3 Third-party IP rights: The Restaurant confirms irrevocably to Eathome that the Restaurant's name, Menu, logo and other material that the Restaurant may provide to Eathome for inclusion on the Website do not violate, infringe or conflict with the IPR of any third party (including without limitation any licensor or franchisor).
12.4 Third-party IP claims: If a third party makes a claim against Eathome for the violation of the third party's IPR relating to the Restaurant's name, Menu, logo and/or other material provided by the Restaurant, the Restaurant shall fully indemnify and keep Eathome indemnified against any losses, damages or claims of any nature and all costs resulting therefrom.
12.5 “IPR” 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.
13 THE Eathome WEBSITE
13.1 Eathome intends to make the Website available and functional for 24 hours of the day but is under no obligation to do so.
13.2 Eathome 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, Eathome 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.
14 RESTAURANT WEBSITES
14.1 Restaurant Eathome Website
14.1.1 The Restaurant agrees that Eathome may, but shall not be obliged to, create (at no cost to the Restaurant) a website relating to such Restaurant with a domain name related to restaurant name or of Eathome's choosing (the "Restaurant Eathome Website").
14.1.2 The Restaurant Eathome Website may: (i) provide a link to the Website and enable customers to place Orders for the Restaurant's products via the Restaurant Eathome Website; and (ii) reproduce any of the material(s) provided by the Restaurant to Eathome under this Agreement (including but not limited to the name, Menu and logo).
14.1.3 Save for the Restaurant's name, Menu and logo, all IPR (as defined in clause 12.5) in the Restaurant Website (including its domain name) shall at all times remain the property of Eathome.
14.1.4 Eathome shall, promptly following receipt of a request from the Restaurant to do so, and may in its sole discretion at any time and for any reason, permanently remove or otherwise disable the Restaurant Website (provided that nothing in this paragraph shall prevent Eathome from re-using the domain name for such other purposes as it sees fit).
14.2 Restaurant Eathome Website
14.2.1 Eathome may at its sole discretion, upon the Restaurant's request,permit and/or enable the Restaurant to provide a link (the "Eathome Link") to the Website on the Restaurant's own website (the "Restaurant Own Website").
14.2.2 The Eathome Link will: (i) provide a link to the Website and enable customers to place Orders for the Restaurant's products via the Restaurant Own Website; and (ii) include Eathome's logo (as provided by Eathome).
14.2.3 All IPR in the Eathome Link (including Eathome's logo) shall at all times remain the property of Eathome.
14.2.4 The Restaurant agrees with Eathome that it shall, promptly following receipt of a request from Eathome, and in any event upon termination of this Agreement, permanently remove or otherwise disable the Eaethome Link (including Eathome's logo) on the Restaurant Own Website.
14.3 Orders through Restaurant websites: For clarity, any orders placed by customers for the Restaurant via the Restaurant Eathome Website or the Eathome Link shall be considered "Orders" for the purposes of this Agreement and subject to the Restaurant Charges and the other provisions of this Agreement.
15 BREACH OF OBLIGATIONS BY THE RESTAURANT
15.1 If, in Eathome's sole opinion, the Restaurant is in default of its obligations under this Agreement or otherwise operates in a manner which is harmful to Eathome's business, goodwill or reputation, including without limitation by reasons of:
15.1.1 non-payment or late payment of amounts due from the Restaurant to Eathome;
15.1.2 sub-standard customer service (e.g. Restaurant employees being impolite to customers; the Restaurant erring in the preparation or delivery of Orders; the Restaurant making late deliveries of Orders etc.);
15.1.3 the Restaurant being unable to receive or process Orders due to the Product being switched off, not receiving a WiFi or GPRS signal or malfunctioning, or repeatedly refusing Orders;
15.1.4 Eathome receiving allegations or evidence that the Restaurant does not have the necessary Consents for the use and inclusion on the Website of its business, name, brand or logo; then without limiting its other rights or remedies, Eathome may at any time suspend provision of the Services under this Agreement (including by removing the Restaurant's Website Profile from the Website without notice) or any other services that it provides to the Restaurant under a separate agreement without any liability to Eathome. The suspension of the Service shall continue until the default or relevant issue has been remedied to the satisfaction of Eathome (acting reasonably).
16 TERM, TERMINATION & SURVIVAL OF OBLIGATIONS
16.1 Term: This Agreement comes into force when signed by both parties and has an initial term of 12 months. Thereafter, it will automatically renew for successive 12 month periods unless terminated by any party on 1 month's notice prior to the end of the initial term or any subsequent period, or otherwise in accordance with its terms.
16.2 Termination by the Restaurant: The Restaurant may terminate this Agreement by one month's prior written notice to Eathome at any time.
16.3 Effect of termination: Upon termination of this Agreement in accordance with its terms, Eathome will send the Restaurant a notice confirming the termination of the Service and final payment details, and either a payment for any outstanding monies owing by Eathome to the Restaurant or a request to pay any outstanding monies owing to Eathome (as applicable).
16.4 Cached websites:Eathome will use reasonable endeavours to remove or disable the Restaurant's Website Profile and Restaurant Eathome Website reasonably promptly following termination of this Agreement. However, the Restaurant acknowledges and accepts that cached versions of these sites may continue to exist in the web browsers and web servers of search engines and customers following such termination, and agrees that Eathome has no control over, and shall not have any liability to the Restaurant (whether based on IPR infringement or otherwise) in connection with, the foregoing.
16.5 Survival of certain rights & obligations:The rights and obligations of the parties under this Agreement which are intended to continue beyond the termination or expiry of this Agreement (including those under this clause 16 and clauses 3.7, 5, 6, 7, 8, 11.7 (insofar as it relates to the otd), 12, 17, 18, 20 and 21) shall survive the termination or expiry of this Agreement.
17 LIMITATION OF LIABILITY & INDEMNITY
17.1 General: Nothing in this Agreement shall limit or exclude Eathome's or the Restaurant’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; fraud or fraudulent misrepresentation; breach of the terms implied by section 2 of the Supply of Goods and Services act 1982 (title and quiet possession); or any other liability that cannot be limited or excluded under applicable law.
17.2 Exclusion of Eathome's liability: Subject always to clause 16.1, Eathome shall not be liable to the Restaurant, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any damages, costs, direct or indirect losses including without limitation loss of profit, or any consequential loss suffered by the Restaurant and arising out of or in connection with this Agreement, including resulting from faults, breakdowns or other interruptions to the Service for any reason.
17.3 Limitation of Eathome's liability: Subject always to clauses 16.1 and 16.2, Eathome's total liability to the Restaurant in respect of all other losses arising under or in connection with this Agreement howsoever caused (and whether in contract, tort (including negligence), breach of statutory duty, or otherwise, and including losses caused by Eathome's repudiatory breach or a deliberate breach of the Agreement by Eathome, its employees, agents or subcontractors) shall never exceed the aggregate amount of Restaurant Charges paid to Eathome by the Restaurant pursuant to this Agreement in the 12 months prior to the date that the liability arose.
17.4 Indemnity: The Restaurant fully indemnifies Eathome and will keep Eathome indemnified against any losses, damages or claims (and all related costs) made against Eathome by a customer or any third party in connection with the Restaurant's failure to deliver or imperfect delivery of an Order or the Restaurant's failure to comply with this Agreement and/or any applicable laws, rules and regulations in force at the relevant time.
17.5 Joinder: The Restaurant shall accept and shall not object to being included by Eathome in any manner to any third party notice or otherwise in any proceedings instituted against Eathome, relating to the Restaurant's acts or omissions in connection with this Agreement.
18.1 Upon 1 months' prior written notice, Eathome may amend the terms of this Agreement. The Restaurant shall be notified of such amendments in writing either by fax, email, or post. Unless the Restaurant responds to such notification within 2 calendar weeks objecting to the amendments or terminates this Agreement, such amendments shall thereafter be construed as forming part of this Agreement and accepted by the Restaurant.
19.1 The content of this Agreement and any information concerning the other party is to be treated as confidential and shall not be disclosed during the term of this Agreement or at any time thereafter save as required by law, provided that Eathome is entitled to use the Restaurant's name as a reference.
20 INVALIDITY CLAUSE
20.1 If any of the terms or conditions of this Agreement are declared wholly or partly invalid, illegal or unenforceable, the remainder of this Agreement shall remain in full force and effect and any wholly or partly invalid terms or conditions shall be modified to the minimum extent possible to make it valid, legal and enforceable.
21 GOVERNING LAW AND JURISDICTION
21.1 Governing law: This Agreement and any dispute or claim arising out or in connection with this 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.
21.2 Jurisdiction: The parties agree to submit any dispute arising in connection with this Agreement to the exclusive jurisdiction of the courts of England and Wales (including any dispute or claim relating to non-contractual obligations)