Effective Date: March 1, 2008
Last Updated: August 1, 2014
1. THIS IS AN AGREEMENT BETWEEN YOU AND ARBUTUS RIDGE LTD.
This is an agreement (“Agreement”) between You, the restaurant (“You” and/or “Your”) and Arbutus Ridge Ltd. (“AR”). This Agreement governs Your use of any Website or webpage owned or operated by AR (“Website” or “Websites”). This Agreement also governs Your access to, use of, viewing of information, receipt of an order request or table booking request, payment to AR, the marketing of Your restaurant, the linking to another website, any additional services provided by AR and the use of any software provided by a Website (“Service” and/or “Services”), all of which IS CONDITIONAL ON YOUR ACCEPTANCE WITHOUT MODIFICATION OF THIS AGREEMENT.
THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIABILITY (See Sections 8, 9, and 10); AND AN EXCLUSIVE REMEDY (See Section 9). THESE PROVISIONS FORM AN ESSENTIAL BASIS OF OUR BARGAIN. IF YOU DO NOT AGREE TO THESE TERMS, YOU MUST PROVIDE WRITTEN NOTICE TO AR THAT YOU WANT AR’S SERVICES TO YOU TO BE STOPPED IMMEDIATELY. FAILURE TO PROVIDE SUCH NOTICE WITHIN FOURTEEN DAYS OF YOUR FIRST USE OF A WEBSITE OR RECEIPT OF YOUR FIRST ORDER REQUEST SHALL BE DEEMED AS YOUR ACCEPTANCE OF THESE TERMS.
2. HOW ARBUTUS RIDGE MAY MODIFY THIS AGREEMENT
AR reserves the right to change the terms, conditions, privacy policies, and notices under which it offers a Website or a Service, including any charges associated with the use of a Website or a Service. You are responsible for regularly reviewing these terms, conditions, privacy policies and notices, and any additional terms posted on an AR Website. Your continued use of a Website or a Service after the effective date of such changes constitutes Your acceptance of and agreement to such changes.
3. ADDITIONAL TERMS
Any AR Website may itself contain additional terms (for example, codes of conduct or guidelines) that further govern use of that AR Website or a Service, including without limitation, particular features or offers (for example, promotions, discounts or coupons). If any terms contained in this Agreement conflict with any terms contained within an AR Website or a Service, then the terms in this Agreement shall control.
4. NO UNLAWFUL OR HARMFUL USE OF THIS WEBSITE
You will not use a Website or a Service in any way that is unlawful, or harms AR, its affiliates, AR’s customers, Your customers, resellers, third party restaurants, distributors, service providers and/or suppliers (each, an “AR Party” and collectively, the “AR Parties”) or any customer of an AR Party, as determined in AR’s sole discretion. AR may tell You about certain specific harmful uses in a code of conduct or other notices available through an AR Website, but has no obligation to do so. You may not use a Website or a Service in any way that breaches any code of conduct, policy or other notice applicable to a Website or a Service. Without limiting the generality of this section, You may not use a Website or a Service in any manner that could damage, disable, overburden, or impair any AR Website (or the network(s) connected to any AR Website) or interfere with any other party’s use and enjoyment of AR Websites or Services.
5. MATERIALS YOU POST OR PROVIDE; COMMUNICATIONS MONITORING
For materials You post or otherwise provide to AR through a Website or a Service, including but not limited to Your menus, prices, contact details, telephone numbers, logos, images, trademarks, customer names/addresses or order details (a “Submission”), You grant AR permission and/or a license to (1) use, copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, modify, translate and reformat Your Submission and (2) sublicense these rights, to the maximum extent permitted by applicable law. AR will not pay You for Your Submission because You hereby grant a perpetual, royalty free and fully transferable license to all of Your rights, including any intellectual property rights and associated moral rights in the Submission, to AR. AR may remove Your Submission at any time. For each Submission, You warrant that You have all rights necessary for You to make the grants in this section. To the maximum extent permitted by applicable law, AR may monitor Your e-mail, or other electronic communications and may disclose such information in the event it has a good faith reason to believe it is necessary for purposes of ensuring Your compliance with this Agreement, and protecting the rights, property, and interests of the AR Parties or any customer of a AR Party or any governmental body.
Your use of any software associated with a Website or a Service will be governed by the terms and conditions of the end user license agreement (“EULA”) associated with such software. AR reserves all rights to such software not expressly granted to You in this Agreement. Such software is protected by copyright and other intellectual property laws and treaties. AR or its suppliers own the title, copyright, and other intellectual property rights in such software, and such software is licensed, not sold. You will not disassemble, decompile, or reverse engineer, such software, except and only to the extent that such activity is expressly permitted by applicable law. AR may automatically check Your version of such software and may automatically download upgrades to such software to Your computer to update, enhance and further develop a Website or a Service.
7. INFORMATION AVAILABLE FROM THIS WEBSITE
AR does not warrant or guarantee the accuracy or timeliness of any information available from a Website or provided as part of a Service, including but not limited to Your Submissions, even if such information appears in any e-mail, pager, mobile phone or other alerts available through an AR Website. AR does not authorise the use of information available from a Website or a Service, including financial and marketing information, for any purpose other than personal use, and prohibits to the maximum extent allowable the resale, redistribution, and use of this information for commercial purposes.
A Website or a Service may be unavailable at certain times to allow for maintenance and upgrades. Although AR will endeavour to notify You in advance of any service unavailability, this cannot be guaranteed and AR reserves the right to alter or withdraw the service at any time without recourse by You.
8. AR MAKES NO WARRANTY
AR PROVIDES ITS WEBSITES AND ITS SERVICES “AS IS,” “WITH ALL FAULTS” AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AR MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. AR DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT, (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE, AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR USE OF A WEBSITE OR A SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE. THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT.
9. LIABILITY LIMITATION; YOUR EXCLUSIVE REMEDY
IN NO EVENT WILL AR OR AR PARTIES BE LIABLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT OR YOUR USE OF A WEBSITE OR A SERVICE, EVEN IF SUCH AR OR AR PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE. THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR (4) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE NOT PROHIBITED BY APPLICABLE LAW. IF YOU ARE DISSATISFIED WITH A WEBSITE OR A SERVICE, YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT, OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST AR OR ANY AR PARTY WITH RESPECT TO THIS AGREEMENT OR A WEBSITE OR A SERVICE, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE WEBSITE OR THE SERVICE.
You also agree to indemnify and hold AR, its directors and AR Parties harmless and to keep them indemnified against all direct or indirect loss, costs, expenses – including legal expenses, damages or claims arising from Your use of a Website or a Service.
You agree and acknowledge that a Website, or part of a Website, is being made available to You free of charge. Charges do apply and You are fully liable for these Charges for any other Service or Services provided to You by AR.
Notwithstanding the foregoing, nothing in this Agreement shall exclude or limit AR’s liability for death or personal injury resulting from AR’s negligence.
10. CHANGES TO A WEBSITE OR SERVICE; ADDITIONAL LIABILITY LIMITATION
AR MAY CHANGE A WEBSITE OR A SERVICE OR DELETE FEATURES IN ANY WAY, AT ANY TIME AND FOR ANY REASON. As You use a Website or a Service, You should expect to receive, access or use information, materials, graphics, software, data and content (collectively, “Content”) originated by AR and AR Parties. WITHOUT LIMITING THE GENERALITY OF SECTIONS 8 AND 9, YOU ACKNOWLEDGE AND AGREE THAT AR IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE, INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT, OR (2) ANY THIRD PARTY CONDUCT, TRANSMISSIONS OR DATA. IN ADDITION, WITHOUT LIMITING THE GENERALITY OF SECTIONS 8 AND 9, YOU ACKNOWLEDGE AND AGREE THAT AR IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY VIRUSES OR OTHER DISABLING FEATURES THAT AFFECT YOUR ACCESS TO OR USE OF THIS WEBSITE, (2) ANY INCOMPATIBILITY BETWEEN THIS WEBSITE AND OTHER WEBSITES, SERVICES, SOFTWARE AND HARDWARE, (3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THIS WEBSITE IN AN ACCURATE OR TIMELY MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES AVAILABLE FROM THIRD PARTIES THOUGH LINKS CONTAINED ON THIS WEBSITE, OR (5) THE CONTENT OF ANY SUBMISSION. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN SECTIONS 8, 9 AND 10 OF THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND ARE NOT INTENDED TO DEPRIVE YOU OF ANY MANDATORY PROTECTIONS PROVIDED TO YOU UNDER APPLICABLE LAW.
11. TERMINATION; ACCESS RESTRICTION
AR may terminate this Agreement, or terminate or suspend Your access to a Website or a Service at any time, with or without cause, with or without notice. Upon such termination or suspension, Your right to use a Website or a Service will immediately cease without recourse by You. UPON SUCH TERMINATION OR SUSPENSION, ANY INFORMATION YOU HAVE STORED ON A WEBSITE OR A SERVICE MAY NOT BE RETRIEVED LATER EXCEPT AS PROVIDED BY LAW.
12. CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES
Claims for enforcement, breach or violation of duties or rights under this Agreement will be adjudicated under the laws of the England and Wales, without reference to conflict of laws principles. All other claims, including, without limitation, claims under or for violation of consumer protection laws, unfair competition laws, and in tort, will be adjudicated under the laws of England and Wales.
13. INTERPRETING THE AGREEMENT; ASSIGNMENT
If any part of this Agreement is determined to be invalid or unenforceable pursuant to applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect. AR may assign this Agreement, in whole or in part, at any time with or without notice to You. You may not assign this Agreement, or assign, transfer or sublicense Your rights, if any, in a Website or a Service. Except as expressly stated herein, this Agreement constitutes the entire agreement between You and AR with respect to Websites and Services and it supersedes all prior or contemporaneous communications and proposals, whether electronic, oral or written, between You and AR with respect to a Website or a Service. The section titles in the Agreement are solely used for the convenience of the parties and have no legal or contractual significance.
14. YOU HAVE LIMITED TIME TO BRING YOUR CLAIM
YOU AND AR AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO A WEBSITE OR A SERVICE MUST COMMENCE WITHIN SIX MONTHS AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
15. INTELLECTUAL PROPERTY
A Website is copyright Arbutus Ridge Ltd. All material contained in a Website or as part of a Service is the property of AR or used under license. You may not use, copy or publish information from a Website or a Service without AR’s prior written consent.
All trademarks, databases, website addresses (i.e. URLs), Submissions, source code and software are owned by or properly licensed to AR and may not be used without prior written consent. For the avoidance of doubt, You agree and acknowledge that all customer databases, usage data, traffic data, statistics, website addresses (i.e. URLs), email addresses, customer provided content and information, website copy and graphic designs are owned by AR.
The only exception to this rule is if You can demonstrate ownership of a web address (i.e. URL) and associated email addresses which AR then uses to provide a Website to You. In which case, AR agrees and acknowledges that You own the website address (i.e. URL) and the associated email addresses only.
Any rights not explicitly granted herein are reserved by AR.
16. ORDER PLACEMENT
AR works hard to provide high value order requests for Your restaurant. However AR accepts no responsibility or liability for the quality or quantity of the order requests or table booking requests AR sends to You. As a result, You acknowledge and accept responsibility to thoroughly check that You are satisfied with the contents of each order request AR sends to You.
All questions regarding an order request or table booking request should be directed to the person who made the order. The contact information provided by the person making the order will be included on each order request AR sends You.
After AR submits an order request or a table booking request to You, AR will send the person making the order an email message to acknowledge that AR has passed this order request or table booking request onto You, the restaurant. This acknowledgement email IS NOT AN ACCEPTANCE OF THE ORDER OR TABLE BOOKING. Only You, the restaurant can legally accept any order or table booking request made to You. As a result, You are solely responsible for ensuring and satisfying all of Your requirements are met prior to accepting an order or table booking.
You acknowledge and agree that all food, goods and services provided, including delivery, are Your sole responsibility.
AR accepts no responsibility for the sale of alcohol or tobacco to minors. You warrant that if you sell alcohol or tobacco through a Website, that you are legally entitled to do so and You are satisfied the buyer is also legally entitled to make the purchase.
You hereby authorise AR to collect money on Your behalf to facilitate the customer payment process, to cover Your Charges or recoup overdue and outstanding debt. In cases of Your Charges or overdue debt, You agree and grant AR the right to collect funds on Your behalf. For online payments, payment details will be sent using secure communication protocols. Any claims in relation to an order are solely between You and the user who made the order request via a Website. Therefore, AR reserves the right and in its sole discretion to refund users for undelivered or unsatisfactory orders and claw-back the amount of the refund from You.
All prices published on a Website and provided by You to AR for publishing include VAT, where applicable. All payments are settled in the lawful money of the United Kingdom, currently pounds sterling.
AR makes no representations about Your restaurant, its quality, its service or its fitness for purpose. Nor does AR attest to the availability, technical merit or legal right of You to provide food, drink, alcohol or tobacco services. You accept full responsibility for the goods, services and food provided by You.
18. NO WAIVER
No failure or delay on the part of AR to exercise its rights nor any default by AR shall be construed to prejudice AR’s right of termination or cancellation for default or for any other subsequent defaults.
You agree to keep you password protected and confidential at all times. You are fully responsible for all activities and orders processed through Your use of a Website or a Service. You therefore agree to indemnify and hold AR and its directors harmless against any use, authorised or otherwise, of Your account and/or a Website or a Service.
20.1 “Charges” mean the fees due for any and all Services provided by AR, including any service charges, as set out in this Agreement
20.2 You shall pay AR the Charges in accordance with this Clause 20 or other mutually agreed and written terms.
20.3 AR shall charge You in monthly arrears for the Services provided.
20.4 AR is authorised to accept payment for the full amount of these Charges using a Direct Debit on Your bank account or any onine payments made through a Website.
20.5 You agree to provide AR with a bank account and sort code and to sign off a Direct Debit mandate from which AR will make these Direct Debits. If you do not provide this information, You agree to pay the current service charge(s) as determined by AR from time to time and which currently stand at Â£15.00 per month, plus VAT.
20.6 If You have any questions regarding any Charges that have been applied to Your account, You must contact AR’s customer service department within 30 days of the payment date. Failure to question a Charge within the 30 day period will be deemed as irrevocable acceptance of the Charge. Failure to use the Service will not be deemed a basis for refusing to pay any Charges submitted by AR in accordance with this Agreement.
20.7 All Charges are expressed exclusive of Value Added Tax. You shall pay all such Value Added Tax, in addition to the Charges, in the manner and at the rates prescribed by law from time to time.
20.8 If You fail to make any payment to AR under this Agreement on the due date then, without prejudice to any other right or remedy available to AR, AR may charge You the sum due at the rate of 8% per annum above the base lending rate of the Royal Bank of England prevailing on the due date, from the due date for payment until the date on which the obligation to pay such sum is discharged.
20.9 AR reserves the right to suspend or terminate Your Service without notice upon rejection or failure of completion of any Charge when AR believes You are liable for the Charge. Such rights are in addition to and not in lieu of any other legal rights or remedies available to AR. For the avoidance of doubt, charges for a Service will continue to accrue despite the loss of Service caused by a Customer’s non-payment.
20.10 All payments in relation to Service provided by AR are non-refundable. However, in exceptional circumstances refunds may be given at the sole discretion of Arbutus Ridge’s Chief Executive Officer.
20.11 Termination of this Agreement, however caused, will not invalidate
any claim by AR for monies due for Services provided prior to termination, and such monies will remain payable to AR by You as per the terms and conditions of this Agreement.
20.12 In consideration of AR sending You order requests, You agree to pay a Charge of eight and one half percent of the sales value of all transactions processed via the Website or as part of a Service.
20.13 Any other service or new service specification will be charged at the going rate.
20.14 AR will transfer money collected by AR through online payment methods net of any Charges, overdue amounts or interest on a monthly basis via a BACS transfer. You therefore agree to provide AR with the sort code and bank account of the account into which You want AR to deposit the funds.
21. DATA PROCESSING
Under the Data Protection Act 1998, AR is deemed to be the (“the Data Controller) and
You are deemed to be the (“the Data Processor”)
21.1 Where as this Section 21 ensures the protection and security of data passed from the Data Controller to the Data Processor for processing and
21.2 Where as paragraphs 11 and 12 of Part II of Schedule 1 of the Data Protection Act 1998 place certain obligations upon a Data Controller to ensure that any Data Processor it engages provides sufficient guarantees to ensure that the processing of the data carried out on its behalf is secure and
21.3 Where this Agreement exists to ensure that there are sufficient security guarantees in place and that the processing complies with obligations equivalent to those of the 7th Data Protection Principle, AR and You further agree:
21.4.1 “Data” for the purposes of this Agreement means any data collected or obtained through an AR Website, including, but not limited to personal data, name, address, mobile phone number, email address, user preferences and settings, order information, special requests, dates, times and order reference identification numbers or any other information contained as part of the order request AR sends to You.
21.4.2 “Processing” shall mean any operation or set of operations which is/are performed upon personal data, (whether or not by automatic means) including collection, recording, organisation, storage, adaptation or alteration, retrieval, consultation use, disclosure by transmission. dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Such processing may be wholly or partly by automatic means or processing otherwise than by automatic means of personal data which form part of a filing system or one intended to form part of a filing system. A filing system shall mean any structured set of personal data which are accessible according to specific criteria, whether centralised, decentralised or dispersed on a functional or geographic basis.”
21.5 Application: subject to the provision in Section 21.9, this Agreement shall apply to all Data sent by the Data Controller to the Data Processor.
21.6 Purpose of Processing: the Data Processor shall process the Data it receives from the Data Controller solely for the purposes of fulfilling the order request and for no other purpose except with the express written consent of the Data Controller.
21.7 Security and Confidentiality of Data
21.7.1 The Data Processor shall use its best endeavours to safeguard the Data from unauthorised or unlawful processing or accidental loss, destruction or damage and acknowledges that it has implemented the technical and organisational measures to prevent unauthorised or unlawful processing or accidental loss or destruction of the Data.
21.7.2 The Data Processor shall ensure that each of its employees, agents or subcontractors are made aware of its obligations with regard to the security and protection of the Data and shall require that they enter into binding obligations with the Data Processor in order to maintain the levels of security and protection provided for in this Agreement.
21.7.3 The Data Processor shall not divulge the Data whether directly or indirectly to any person, firm or company without the express consent of the Data Controller except to those of its employees, agents and subcontractors who are engaged in the processing of the Data and are subject to the binding obligations herein referred to in this Agreement.
21.7.4 The Data Processor shall ensure by written contract that any agent or subcontractor employed by the Data Processor to process Data to which this Agreement relates also provides the Data Processor with a plan of the technical and organisational means it has adopted to prevent unauthorised or unlawful processing or accidental loss or destruction of the Data and confirms to the Data Processor the implementation of those means.
21.8 Liability: The Data Processor’s liability to the Data Controller for any loss or damage of whatsoever nature suffered or incurred by the Data Controller or for any liability of the Data Controller to any other person for any loss or damage of whatsoever nature suffered or incurred by that person shall to the extent permitted by law not exceed Â£100,000.00.
21.9 You agree that the terms of Section 21.7 shall survive the termination of this Agreement and shall Continue in full force and effect until all Data are returned to the Data Controller.
22. SALE OF THIRD PARTY PRODUCTS OR SERVICES
From time to time, AR may offer third party products or services to You. This may include, but is not limited to printers, faxes and printed materials. You hereby agree and acknowledge that, to the fullest extent of applicable law permits, these products or services are sold â€œas isâ€ with no warranty intended or implied by AR.