Terms and Conditions
1. Definitions and interpretation
1.1 Definitions
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commission: has the meaning given in clause 5.4.
Commission Level: the level of Commission as set out in the Contractual Terms and as amended by OrderYOYO or agreed between the parties from time to time.
Conditions: these terms and conditions as amended from time to time in accordance with clause 15.7.
Contract: the contract between OrderYOYO and the Customer for the supply of Services Comprising the Contractual Terms, these Conditions and any appendices.
Contractual Terms: the front sheet of this Contract setting out details of Customer and Services and other additional terms of the Contract.
Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer: the person, firm, company or other organisation who is purchasing the Online Ordering System.
Data Processing Agreement: the data processing agreement set out in Appendix 1 to the Contract.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK.
End User: the consumer customer of the Customer using the Online Ordering System.
End User Order: an order placed by an End User through the Online Ordering System.
Fees: all fees payable by the Customer to OrderYOYO, as set out in the Contractual Terms and clause 5.
Force Majeure Event: means any event outside a party’s reasonable control including, but not limited to acts of God, war, flood, fire, labour disputes, strikes, lock-outs, riots, civil commotion, malicious damage, explosion, terrorism, governmental actions, pandemics or epidemics (including without limitation imposing an export or import restriction, quota or prohibition or failing to grant a necessary licence or consent), and any other similar events.
Hardware: means the order printer provided to the Customer by OrderYOYO as part of the Services.
Intellectual Property Rights: means all intellectual property rights wherever in the world, whether registered or unregistered, including any application or right of application for such rights (and the “intellectual property rights” referred to above include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs).
Location: shall be any location of the Customer’s restaurant(s) as set out in the Contractual Terms or otherwise agreed in writing from time to time.
Online Ordering System: the current version of the OrderYOYO restaurant ordering system (as updated from time to time) which is made available online as part of the Services and which incorporates:
a) the user interface accessed by the Customer which facilitates the management of restaurant orders made via the online ordering system; and
b) the online ordering system application which is available to access by End Users (whether downloaded for free via the Apple App Store or Google Play) or as available on OrderYOYO’s website (OrderYOYO.com) or accessible via the Customer’s website).
Order: means the Customer’s order for Services as set out in the Contractual Terms containing the details of the Contract.
OrderYOYO: OrderYOYO Limited, registered in England and Wales, with company number 10103166, whose registered office address is at 56 Princess Street, Manchester, M1 6HS.
Services: the provision of the Online Ordering System as well as any other ancillary services supplied by OrderYOYO to the Customer as set out in the Contractual Terms.
Term: has the meaning given to it in clause 14.1.
1.2 Interpretation:
1.2.1 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.2.2 A reference to a party includes its successors and permitted assigns.
1.2.3 A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.4 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.5 A reference to writing or written includes email, PartnerCenter and MyBusiness or any other mean of communication offered by OrderYOYO.
2. Basis of contract
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed accepted when OrderYOYO issues acceptance of the Order either by signing the Contract or by email or by otherwise accepting the Order, at which point and on which date the Contract shall come into existence.
2.3 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
3. Services
3.1 OrderYOYO shall provide the Services to the Customer in accordance with the terms of this Contract.
3.2 In supplying the Services, OrderYOYO shall:
3.2.1 perform the Services with reasonable care and skill;
3.2.2 use reasonable endeavours to perform the Services in accordance with the terms of the Contract; and
3.2.3 use reasonable endeavours to provide, in a timely manner, such information as the Customer may require.
3.3 The Customer shall:
3.3.1 ensure that the details contained in the Contractual Terms are complete and accurate and shall notify OrderYOYO of any changes to the details (such notification only to be considered given upon OrderYOYO’s confirmation to the Customer);
3.3.2 provide OrderYOYO with such information and materials as it may reasonably require in order to provide the Services, and ensure that such information is complete and accurate in all material respects;
3.3.3 provide OrderYOYO with all necessary co-operation in relation to the Contract and the provision of the Services;
3.3.4 not use the Services in any way that may cause damage to the Online Ordering System or impairment of access to or availability of the Services; and
3.3.5 secure that OrderYOYO has control of the Customer’s Google My Business account as primary operator.
3.4 The Customer acknowledges that the above-mentioned obligations are prerequisites for OrderYOYO’s delivery of the Services.
3.5 Where OrderYOYO is designing the Customer’s website as part of the Services (as particularised in the Contractual Terms):
3.5.1 the Customer shall provide OrderYOYO with all information and materials required for the design of the website (including in relation to any customisation options such as colour and imagery);
3.5.2 once the website is designed, OrderYOYO shall obtain Customer approval to the website prior to any End Users placing orders with the Customer via the Online Ordering System; and
3.5.3 OrderYOYO agrees to carry out any reasonable modifications to the website in relation to any customisation options, provided that any such modifications are notified to OrderYOYO within 7 Business Days of the Customer’s approval being sought under clause 3.5.2.
3.6 Where agreed in the Contractual Terms, OrderYOYO shall integrate the Online Ordering System on to the Customer’s website (as set out in the Contractual Terms) and the Term shall commence immediately on integration.
3.7 License. As part of the Services, and subject to the restrictions set out in these Conditions, OrderYOYO hereby grants the Customer a personal, limited, non-exclusive, time-limited and non-transferable right to use the Services during the Term solely for the Customer’s business operations and the purposes set out in these Conditions.
3.8 Commercial agent. OrderYOYO acts as an agent in the name of and on behalf of the Customer in the conclusion of purchases through the Service and to collect the End Users payments owed to the Customer in respect of those purchases. End User payments made in respect of orders placed with the Customer through the Service will be held by OrderYOYO on the Customer’s behalf; payment to OrderYOYO settles the End User’s payment obligation to the Customer for these orders.
3.9 The Customer undertakes that it shall:
3.9.1 be solely responsible for its activity on its account on the Online Ordering System and shall ensure that its account information is adequately protected including (but not limited to) its username and password;
3.9.2 ensure that all information provided to OrderYOYO is up to date and accurate at all times and shall immediately inform OrderYOYO of any changes;
3.9.3 provide OrderYOYO with at least 10 Business Days written notice prior to making any changes to the Customer’s business including changes
to management personnel, any relevant contact details, bankor payment details, restaurant details (including information relating to menu and prices, opening hours, transaction fees, logo, offers andLocations), email and mobile number and any other relevant information required for OrderYOYO to provide the Services;
3.9.4 be responsible for ensuring that it has the necessary Hardware and/or equipment to access and use the Online Ordering System;
3.9.5 not attempt to obtain, or assist third parties in obtaining, access to the Services (other than as permitted under this clause 3) and shall not permit, allow or assist any third party to access the Services without OrderYOYO’s prior consent;
3.9.6 not use the Services in any way that causes, or may cause, damage to it or impairment of the availability of the Services or accessibility to the Services or use the Services in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
3.9.7 not use any information obtained via either the provision of the Services or the Customer’s use of the Services in any manner which would infringe or be restricted by any Intellectual Property Rights subsisting in it; and
3.9.8 comply at all times with all applicable laws and regulations relating to the Services and its activities under this Contract (including any relevant consumer
laws, data protection laws and licensing laws) and comply with any age-restrictions that may apply to certain products purchased by End Users, and Customer agrees any breach of this clause 3.8 shall constitute a material breach of the Contract.
3.10 Indemnification. Without prejudice to any other rights and remedies of OrderYOYO, the Customer shall indemnify and hold harmless OrderYOYO against all direct and indirect liabilities, costs, expenses, damages and losses (including any interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by OrderYOYO out of or in connection with any failure by the Customer to comply with clause 3.9.
3.11 The Services provided under this Contract are hosted on the internet which, due to its nature, is outside of OrderYOYO’s control. Any failure to provide the Services, or part of the Services, by OrderYOYO which is as a result of the nature of the internet (or any failure or downtime thereof) will not constitute a breach of this Contract.
3.12 OrderYOYO shall have no liability whatsoever for any delays or disruption on the part of the Customer in relation to both the provision of the Services by OrderYOYO or any orders made by an End User on the Online Ordering System.
3.13 Limitation of liability. Except as expressly stated in this Contract, all warranties, representations, conditions and terms, whether express or implied by statute, common law or otherwise (including satisfactory quality, fitness for purpose and suitability) are hereby excluded to the fullest extent permitted by law.
4. Locations
4.1 If the Customer has several restaurant Locations, the Customer shall provide OrderYOYO with information on each individual restaurant Location as requested by OrderYOYO (including without limitation, any contact details for the Location, menu and special offers at the Location and the current revenue for the Location).
4.2 The Customer is obliged to pay the Fees as set out in clause 5 for each Location.
5. Payment and transaction fees
5.1 The Customer shall pay all Fees (as set out in the Contractual Terms) for the Services to OrderYOYO in accordance with this clause 5 and the Contractual Terms.
5.2 Commission Level. The Customer shall commence the Term at the Commission Level set out in the Contractual Terms. The Customer’s Subscription and Commission Level thereafter will be allocated based on the level of turnover the relevant Location achieves on the Online Ordering System (as further particularised in the Contractual Terms). Where there is a change in Commission Level for a Customer Location in accordance with the Contractual Terms, the changed Commission Level will apply to that Location only.
5.3 Sign-up fee. At or shortly after the Commencement Date, OrderYOYO will invoice the agreed set-up fee as set out in the Contractual Terms.
5.4 Commission. The Commission is calculated as an agreed share of the Customer’s total turnover generated by End User Orders for each Location (including cash, card payments or any other
payments), including any End User Orders which may have been rejected by the Customer, cf. clause 5.11, as well as the handling fees and delivery fees, as applicable, as further specified in the Contractual Terms. The Commission will be invoiced as part of the weekly payments made by OrderYOYO to the Customer, as further specified in clause 6.
5.5 Handling fee. For each End User Order, OrderYOYO will invoice a handling fee to the End User, based on OrderYOYO’s applicable tariffs from time to time. The handling fee is based on OrderYOYO’s average costs associated with handling the transaction. The amount is collected by OrderYOYO directly from the End User in connection with the execution of the End User Order, and the handling fee is included in the Customer’s turnover when calculating the Commission.
5.6 Ancillary services. On a regular basis, OrderYOYO will invoice the Customer for any ancillary services which may be agreed between the parties from time to time, as part of the Services, including any digital marketing activities (e.g Google Ads and Facebook Ads). The Customer has the right to cancel the purchase of an ancillary service. Such cancellation must be given in writing (by e-mail) within 5 Business Days to OrderYOYO upon receipt of OrderYOYO’s written confirmation of the purchase OrderYOYO may in certain situations, for employee training purposes, record telephone conversations with the Customer regarding the purchase of ancillary services. OrderYOYO will in any case obtain the relevant persons’ consent in those situations.
5.7 OrderYOYO shall provide as part of the Services payment platform facilities enabling OrderYOYO to receive and process card payments for orders made by the Customer’s End Users via the Services.
5.8 Deduction and payment. OrderYOYO shall deduct the Fees (calculated in accordance with this clause 5 and the Contractual Terms) from the Customer’s revenue for each Location weekly and prior to paying to the Customer the remaining revenue for the week.
5.9 The Customer shall ensure that on delivery of any End User Orders to an End User, it shall carry out appropriate identification checks relating to the payment method used to place the order by the End User. For the avoidance of doubt, such identification checks shall include (but not be limited to) checking that the credit or debit card is signed and that the details match the details on the End User’s restaurant order and any other appropriate checks. The Customer shall be liable to pay any bank chargebacks that occur as a result of its failure to carry out appropriate identification checks in accordance with this clause.
5.10 Notwithstanding clause 5.9, where a bank chargeback occurs in relation to any payment made on the Online Ordering System, the Customer shall in any event indemnify OrderYOYO for the bank chargeback amount payable, plus pay in full the chargeback administrative fees and any other associated charges. Any chargeback fees payable under clause
5.9 or this clause 5.10 shall be set-off against the Customer’s revenue for the relevant Location before the revenue is paid to the Customer in accordance with clause 5.8.
5.11 OrderYOYO is entitled to Commission on all End User Orders sent to the Customer, regardless of whether the Customer chooses to accept the End User Order or not.
6. Revenue
6.1 The Customer’s revenue generated via the Online Ordering System, excl. the Fees, will be paid to the Customer in accordance with the following provisions.
6.2 OrderYOYO shall transfer the Customer’s weekly revenue each week following the relevant week to which the payable revenue pertains. Transfers of revenue to theCustomer are subject to a minimum transfer amount of £30.00. If the Customer’s revenue in any one week is below £30.00 then any weekly revenue will not be transferred to the Customer until the Customer has achieved revenue of £30.00 or above.
6.3 OrderYOYO shall transfer the weekly revenue to the Customer’s bank account as nominated in the Contractual Terms. Where the Customer signs the Contract on behalf of several Locations in accordance with clause 4, the Customer shall receive the weekly revenue for all Locations to the bank account nominated in the Contractual Terms (unless the parties agree otherwise).
6.4 The Customer shall be responsible for the payment of all taxes and other payments out of the revenue that may be required by law.
6.5 The Customer shall provide immediate written notice of any changes to the bank account or other payment information details relating to the Customer’s bank, and in any event will provide at least 10 Business Days’ written notice prior to any changes taking effect.
6.6 Indemnification. It is the Customer’s sole responsibility to ensure that payment information details are accurate and up-to-date and are notified to OrderYOYO. The Customer shall indemnify OrderYOYO against all liabilities, costs, expenses, damages and losses whether incurred directly or indirectly by OrderYOYO due to any failure by the Customer to provide (at all times) correct and up-to-date bank account details and any other payment information details in relation to the Customer and its Locations.
7. Marketing
7.1 The Customer is obliged during the Term to promote the Services using appropriate marketing and promotional activities (which may be requested from time to time by OrderYOYO) via the Customer’s own marketing channel including its website and at any Location, Including that the Customer does not use other similar services to sell its products. If the Customer uses a similar service for the sale of the same products which are sold via the OnlineOrdering System, OrderYOYO has the right at its discretion to immediately amend the applicable Commission Level with effect from the date on which the Customer began to use such other service.
7.2 The Customer accepts a number of specific marketing and promotional initiatives as proposed by OrderYOYO, for the purpose of increasing sales via the Online Ordering System. In this connection, the Customer warrants that those products offered to End Users via the Online Ordring System will not be available at a lower price via any other ordering channel through which the Customer sells its products, including any third-party channels.
7.3 OrderYOYO may, in addition to the Services, carry out marketing and promotional activities on behalf of the Customer as agreed between the parties which may be subject to an additional fee agreed between the parties, as further specified in clause 5.6.
7.4 OrderYOYO may at its option make the availability of ordering accessible through third-party providers, such as Google Direct Ordering, to the Service at OrderYOYO’s discretion.
7.5 OrderYOYO may, at its option, change the telephone number on the Customer’s Google My Business account with the intention to convert offline end-user orders to online end-user orders.
7.6 OrderYOYO may, up to 4 times annually, at its option, carry out campaigns with up to 25% discounts to End Users, for up to three days duration per campaign, such discount to be covered by Customer.
7.7 The Customer warrants that its marketing materials and practices, including its use of any marketing material provided by OrderYOYO, complies with all applicable laws and does not infringe any third party’s Intellectual Property Rights.
7.8 The Customer agrees to OrderYOYO providing discounts to the End Users through the Services on such terms as OrderYOYO deems appropriate in its discretion, cf. however cause 7.6.
8. Software
8.1 The Services are made available as is and OrderYOYO has no obligation to perform and/or implement any improvements, developments or maintenance services in relation to the Services (including to the Customer’s or End User’s software interface on the Online Ordering System).
8.2 OrderYOYO may at its own discretion make upgrades, patches, corrections and the like available. The Customer is, following a notice from OrderYOYO via email or its website (www.orderyoyo.com), obliged to implement and use such upgrades, patches, corrections or the like as OrderYOYO may have made available.
8.3 The Customer acknowledges and accepts that it is its sole responsibility to ensure that the Services can operate on the Customer’s IT systems (including the Customer’s own hardware and software) and can be accessed and used by the Customer and the End User with no risk of damage to the Customer’s or OrderYOYO’s IT systems, business or business operations (including by way of example the use of up-to-date anti-virus software and security procedures).
8.4 OrderYOYO does not warrant that the Customer’s (or any End User’s) use of the Services:
8.4.1 will be uninterrupted or error-free;
8.4.2 will be compatible with any application, program or software not specifically identified as compatible;
8.4.3 will meet the Customer’s or End User’s requirements; or
8.4.4 will be wholly free from defects, errors, bugs or vulnerabilities.
9. Hardware
9.1 OrderYOYO may at its own discretion, make the Hardware available to the Customer on a loan basis for a run-in period of three months after the Commencement Date.
9.2 Unless otherwise agreed in writing, at the latest after the end of the three months’ run-in period, the Customer is obliged to purchase the Hardware. Unless otherwise agreed in writing, OrderYOYO may, after the end of the 3 months’ run-in period, set-off payment for the Hardware in future payments to be made to the Customer.
9.3 Retention of title. The ownership of the Hardware shall remain with OrderYOYO until final and full payment for the Hardware has taken place. This also applies in the period after the 3 months run-in period, if payment has not yet been made, for whichever reason. The specific Hardware can be identified at any time via the unique IMEI ID number or serial number.
9.4 OrderYOYO shall, at its option, repair or replace any defective Hardware, if the Customer notifies OrderYOYO within 7 Business Days of Hardware delivery that there is a defect and, on inspection by OrderYOYO, OrderYOYO is satisfied that the defect is not caused by the Customer’s misuse of the Hardware. Where, on inspection, OrderYOYO finds that the Hardware has a defect due to the Customer’s misuse, the Customer shall pay for any replacement Hardware of the same functionality.
10. Intellectual Property Rights
10.1 The Customer acknowledges that OrderYOYO owns all the Intellectual Property Rights in the Services, to the innovations and developments made through and/or to the Online Ordering System, and to all data contained and/or displayed within the Online Ordering System, including e.g. Customer and End User data and OrderYOYO’s further development and/or processing of the IPR (“OrderYOYO IPR”), and maintains full ownership and control without any limitations. Except as expressly stated herein, this Contract does not grant the Customer (or any End User) any rights to, under or in, any Intellectual Property Rights in respect of the Services.
10.2 The Customer:
10.2.1 shall own all right, title and interest in and to all of the Customer’s Intellectual Property Rights (including but not limited to the Customer’s trading name, logo, documentation and any other marketing materials) and shall have responsibility for its legality, accuracy and reliability (“Customer IPR”);
10.2.2 warrants that it owns the rights in all materials and items (including but not limited to any Customer’s Intellectual Property Rights set out in clause 10.2.1) that it provides to OrderYOYO under this Contract or that it has the relevant authorisation to provide the materials; and
10.2.3 hereby grants to OrderYOYO a non-exclusive licence to store, copy and otherwise use the Customer’s Intellectual Property Rights to provide the Services and market the Customers services to End Users.
10.3 Marketing Materials. OrderYOYO hereby grants the Customer a personal, limited,non-exclusive, time-limited and non-transferable right to use any OrderYOYO IPR which may be contained within marketing material provided to the Customer in accordance with clause 7, for the sole purpose of carrying out such marketing activities as OrderYOYO may direct in accordance with clause 7.
10.4 Indemnification. Without prejudice to any other rights and remedies of OrderYOYO, the Customer shall indemnify and hold harmless OrderYOYO against all liabilities, costs, expenses, damages and losses (including but not limited to any interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by OrderYOYO out of or in connection with any third party claims that OrderYOYO’s use of the Customer’s Intellectual Property Rights or any
other materials or items provided to OrderYOYOby the Customer infringes a third party’s Intellectual Property Rights.
11. Personal data protection
11.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
11.2 Data controller:
11.2.1 The parties acknowledge that each party acts independently as data controller with regard to their processing of the End Users’ personal data for their own purposes, respectively. This entails that each party – with regard to processing of personal data for which the party is acting as data controller – must adhere to the Data Protection Legislation as well as implement appropriate security measures in order to protect the personal data which are being processed.
11.2.2 OrderYOYO acts as data controller for the personal data which are provided by the End Users to OrderYOYO in connection with sign-up to the Service and/or provision of additional personal data to OrderYOYO in connection with the placing of orders via the Service.
11.2.3 In connection with the Customers’ use of the Services, OrderYOYO transfers personal data regarding End\Users’ name, contact details and order information (including payment details but not the card number) to he Customer, and the Customer is only permitted to use these data only for the purposes of (i) preparation of the specific order and communication with the End User about the End User Order; (ii) distribution of service messages regarding delivery of the End User Order; and (iii) distribution of marketing material as agreed with OrderYOYO.
11.3 Data processor:
11.3.1 After OrderYOYO has transferred personal data regarding the End Users to the Customer, OrderYOYO will send out service messages regarding delivery of the order as well as general electronic marketing on behalf and in the name of the Customer. OrderYOYO must process personal data on behalf of the Customer in connection with such communication with the End Users in accordance with the Data Processing Agreement (see Appendix 1). The parties acknowledge that OrderYOYO solely acts as data processor in connection with distribution of the specific communication which is undertaken on behalf of the Customer. Further, the parties acknowledge that OrderYOYO may act as data processor to the extent OrderYOYO is developing and/or hosting the Customer’s website and/or application, provided that the Customer is acting as data controller for the personal data which are being processed in connection with the use of such website and/or application. (hereinafter, the “Processor Services” as defined in the Data Processing Agreement). Such processing activities shall also be governed by the Data Processing Agreement.
12. Confidentiality
12.1 Except as permitted by clause 13.2, the Customer or its employees or agents shall not at any time from the Commencement Date and for a period of 2 years following termination of the Contract, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of OrderYOYO. For the purpose of this clause 12, confidential information shall include any manuals, guides, technical information, know-how, methods, trade secrets and all related information developed, owned and/or used by OrderYOYO in the provision of the Services.
12.2 The Customer may disclose OrderYOYO’s confidential information:
12.2.1 to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the Customer’s rights or carrying out its obligations under or in connection with this Contract. The Customer shall ensure that its employees, officers, representatives or advisers to whom it discloses the confidential information comply with this clause 12; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13. Limitation on liability
13.1 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2 Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:
13.2.1 death or personal injury caused by negligence;
13.2.2 fraud or fraudulent misrepresentation; and
13.2.3 breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.3 Subject always to clause 13.2, OrderYOYO shall have no liability, whether in contract, tort (including for negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
13.3.1 any loss (whether direct or indirect) of profits, sales or business, revenue, anticipated savings, reputation, goodwill or data;
13.3.2 any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Contract;
13.3.3 any business interruption, loss of business, contracts and/or opportunity; and
13.3.4 loss of use or corruption of any software (including the Online Ordering System) suffered by the Customer or an End User, or any loss or corruption of any data or
information.
13.4 Subject to clause 13.1, 13.2, 13.3 and 13.5 OrderYOYO’s total liability in any one contract year in respect of al l breaches of duty occurring in that contract year (whether in contract, tort (including negligence) or otherwise) shall not exceed the total Fees paid by the Customer under the Contract in the relevant contract year in which the event occurs giving rise to a claim. In this clause, a contract year means a 12-month period commencing on the date of this Contract or any anniversary of it.
13.5 OrderYOYO shall have no liability whatsoever for any claims in relation to defects, delays, any failure to perform its obligations or for any other matter to the extent that such circumstances are in whole or in part caused by:
13.5.1 the Customer’s negligence or breach of its obligations under this Contract;
13.5.2 any negligence or fault on behalf of the Customer’s contractors or any other third party related to the Customer;
13.5.3 any unauthorised use of the Services by the Customer, the End User or any third party related to the Customer;
13.5.4 any action done by the End User, including without limitation non-payment;and
13.5.5 any other circumstance that is outside of the control of OrderYOYO.
13.6 The Customer shall indemnify OrderYOYO against all liabilities, costs, expenses, damages and losses (including but not limited to any interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by OrderYOYO arising out of or in connection with any claim against OrderYOYO by (a) a third party arising out of a breach by the Customer of its obligations under these Conditions; or(b) any End User or other third party in relation to the items provided by the Customer under any Order.
14. Term and termination
14.1 The Contract shall commence on the date when it has been signed (or otherwise confirmed e.g. via email) by both parties (the ”Commencement Date”) and shall continue until terminated by either party in accordance with this clause 14, however no earlier than after the first anniversary of the Commencement Date (the ”Term”). As such, the Contract cannot be terminated by either party during the first 12 months after the Commencement Date. If the Online Ordering System has not been online (allowing for End User Orders) for at least 10 out of the first 12 months following the Commencement Date, and this is due to actions or ommissions on the side of the Customer, OrderYOYO is entitled to invoice the Customer OrderYOYO’s unavoidable costs associated with preparation, delivery and go live of the Online Ordering System for the Customer, however, such invoice to at least amount to £ 600.
14.2 Termination for convenience. After the first 12 months following the Commencement Date:
14.2.1 the Customer may terminate the Contract at any time with effect three months from the end of the month in which the Customer has provided OrderYOYO with
a written notice of such termination; and
14.2.2 OrderYOYO may terminate the Contract at any time upon one month’s written notice to the Customer.
14.3 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.3.1 the other party takes any step or action (or has any step or action taken against it) in connection with its entering administration, examinership, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business;
14.3.2 the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words ”it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
14.3.3 being an individual or partnership, the other party has a bankruptcy petition presented against it or compound with or come to an arrangement with its creditors or suffer any similar action in any jurisdiction;
14.4 Without affecting any other right or remedy available to it, OrderYOYO may terminate the Contract with
immediate effect by giving written notice to the Customer if:
14.4.1 the Customer fails to pay any amount due under the Contract on the due date for payment; or
14.4.2 there is a change of control of the Customer, where ‘control’ means in relation to a body corporate, the power of a person to secure that the affairs of the body corporate are conducted in accordance with the wishes of that person: (a) by means of the holding of shares, or the possession of voting power, in or in relation to that or any other body corporate; or (b) as a result of any powers conferred by the articles of association or any other document regulating that or any other body corporate, and a change of control occurs if a person who controls any body corporate ceases to do so or if another person acquires control of it.
14.5 On expiry or termination of the Contract for any reason:
14.5.1 the Customer shall immediately pay any outstanding amounts owed to OrderYOYO pursuant to this Contract and, in respects of Services supplied but for which no invoice has been submitted, OrderYOYO shall submit an invoice, which shall be payable by the Customer immediately on receipt;
14.5.2 OrderYOYO shall immediately discontinue the Customer’s access to the Services;
14.5.3 each party shall immediately return and make no further use of any equipment, property, documentation, Hardware and other items (and all copies of them) belonging to the other party (save for any items that the party is obliged to retain by any law or regulation or other rule); and
14.5.4 OrderYOYO shall immediately destroy or otherwise dispose of any Customer data or personal data in its possession unless (i) agreed otherwise between the parties; (ii) its ongoing storage is a legal requirement; or (iii) OrderYOYO continues to process the data for OrderYOYO’s own purposes.
15. Miscellaneous
15.1 Force Majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure is due to a Force Majeure Event. In such circumstances, the time for performance shall be extended by the period during which performance of the obligation has been delayed or failed to be performed.
15.2 Assignment and Other Dealings. OrderYOYO may assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract. The Customer shall not assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without OrderYOYO’s prior written consent.
15.3 Notices. Any notice given to a party under or in connection with this agreement shall be in writing and shall be deemed to have been delivered on delivery if by hand or within 48 hours of posting if sent by prepaid first class registered post. A notice given under this Contract is valid if sent by email.
15.4 Severance. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 15.4 shall not affect the validity and enforceability of the rest of the Contract.
15.5 Waiver. No waiver by either party of any part of this Contract shall be considered to be a waiver of any subsequent breach of the same provision or any other provision.
15.6 Entire Agreements. The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
15.7 Variation. OrderYOYO has the right to vary the Contract by giving the Customer 30 days’ written notice of such variation by email or on its website, www.orderyoyo.com.
15.8 Governing Law and Jurisdiction. This Contract is governed by and interpreted in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English courts in relation to any matter or dispute arising out of or in connection with it (whether of a contractual or tortious nature or otherwise).
