GoOut-TAKEOut: Terms of Use for Merchants

The Terms & Conditions (Terms) are an agreement between you (Merchant/Individual/You/Your) and Innovative Technological Systems Limited trading as GoOut-TAKEOut, a company registered under the laws of the England and Wales, whose registered address is 11, Churchill Court, 58 Station Road, Harrow, London, HA2 7SA (GoOut-TAKEOut/GoOut UK and TAKEOut UK Company/Us/Ours)  and will govern your  (a) use of our website {insert website URL} (Company Website), our mobile applications (Company Application/App) such as for iPhone or Android OS or any or services in connection with the Application/Website/products (Company Services)

You accept and agree to the terms by (1) clicking a box indicating acceptance or (2) signing-up through our online portal ‘Venue Manager’ or addendum that references these terms. If the individual accepting this agreement on behalf of another legal entity or business enterprise or another person, such individual represents that they have the authority to bind such entity or business enterprise or person  and its affiliated to these terms, in which case the term ‘Merchant’ shall refer to such entity or business enterprise or person and its affiliates. If the individual accepting this agreement does not have such authority, or does not agree with these terms, such individual must not accept this agreement and may not use the services.

Upon acceptance of these terms, these terms may be subject to applicable Terms of Use. Merchant’s access to and use of the Company Services and Company Tools (as defined below) is subject to the Agreement and may be modified or updated by the Company from time to time, effective upon posting an updated version of these Terms posted on the company communication portal and/or Company website. Merchant is responsible for updating contact information and regularly reviewing the Terms from the Company. Continued use of the Company Services after any such modifications or updates shall constitute Merchant’s consent to such changes

DEFINITIONS

The following terms have the respective meanings given to them below:

“Affiliate” means an entity that owns or controls, is owned or controlled by or is or under common control or ownership of a party, where control is defined as the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through ownership of voting securities, by contract or otherwise.

“Agreement” means the Terms, Order Form, the Definitions and the Supplemental Terms.

“Aggregate Data” means aggregate, anonymized data related to Merchant’s transactions in connection with the Company Services.

“Aggregator Cash Collections” means the funds to be collected by the Aggregator Delivery Partner in connection with an Aggregator Cash Order.

“Aggregator Cash Order” means an order where the Company permits a Customer to pay for a given Aggregator Item provided by Merchant and all associated fees and charges resulting from that transaction in cash.

“Aggregator Delivery Charge” means a delivery charge collected by Company on behalf of Merchant from Customers for Items ordered through Company’s application or website.

“Aggregator Delivery Partner” means an employee, contractor, worker or agent of Merchant who provides delivery services on a Merchant’s behalf, arranged independently of the Company Services.

“Aggregator Item” means an Item transferred by Merchant to Customer via the Aggregator Method.

“Aggregator Item Payment” means the Retail Price of the Aggregator Item(s) sold by Merchant via the Company App (including any VAT or other sales tax).

“Aggregator Item Revenue” means the total (i) Aggregator Item Payment earned by Merchant (other than with respect to Aggregator Cash Orders); (ii) Aggregator Delivery Charge collected from Customers on Merchant’s behalf (other than Aggregator Delivery Charges directly collected by Aggregator Delivery Partners with respect to Aggregator Cash Orders) (iii) gratuity paid by a Customer in respect of delivery services, if applicable, (iv) less (1) the Aggregator Service Fee and (2) any refunds given by  the Company on behalf of Merchant to Customers.

“Aggregator Meal” means any combination of food and/or beverage transferred by Merchant to Customer via the Aggregator Method. “Aggregator Meal” is a subset of “Aggregator Item.”

“Aggregator Method” means a Method whereby Merchant may use Aggregator Delivery Partners to fulfill delivery of Items requested by Customers.

“Applicable Law” shall mean all applicable laws, statutes, regulations and codes from time to time in force (including without limitation all applicable data protection and privacy law)

“Batched Trip” means an instance where one Delivery Partner may deliver orders to multiple Customers as part of the same trip, including both multiple orders from one Merchant, or one or more orders from one Merchant combined with one or more orders from other Merchants using the Company App.

“Brand Matter” means an event that, in Company’s reasonable judgement, causes it or its Affiliates to have concern for the reputation of its brand, including, but not limited to, matters related to the alleged violation of any Applicable Laws.

“Cash Order” means an order where the Company allows a Customer to pay for a given Item provided by Merchant, and all associated fees and charges resulting from that transaction, in cash.

“Charge” means price for a Company service rendered and as defined herewith.

“Company” means Innovative Technological Systems Limited trading as GoOut-TAKEOut (also known as GoOut UK and TAKEOut UK), is a company registered under the laws of the England and Wales, whose registered address is 11, Churchill Court, 58 Station Road, Harrow, London, HA2 7SA.

“Company Competitor” means any person engaged in the lead-generation, demand prediction, payment processing or other related services for the delivery of food and beverages who, in the reasonable determination of GoOut-TAKEOut, is deemed to be a competitor of the Company App.

“Company Data” means all data related to the access and use of the Company Services and Company Tools, including but not limited to all Personal Data related to Merchant and Customers.

“Company App” or “Company Application” or Company website” means a website, application or other technology interface made available by GoOut-TAKEOut and/or its Affiliates to Customers, on a royalty-free basis, to purchase Items and, if applicable, delivery services from Merchant.

“Company Marketing Materials” means video, still images and/or other materials created by GoOut-TAKEOut (or a party designated by or on behalf the Company) for marketing and other efforts related to the Company App.

“Company Services” means services made available by GoOut-TAKEOut and/or its Affiliates to Merchant to facilitate the marketing, sale and provision Items by Merchant to Customers, including on-demand lead generation, payment processing, marketing, operational and other support.

“Company Tools” means a website, application and/or other technology interface, as well as a Device, made available by GoOut-TAKEOut and/or its Affiliates to Merchant, on a royalty-free basis, in connection with the Company Services. The Company tools also includes Venue Manager and Order Manager.

“Confidential Information” means any confidential, proprietary or other non-public information disclosed by or on behalf of one party (the “Discloser“) to the other (the “Recipient“), whether disclosed verbally, in writing, or by inspection of tangible objects, and includes, without limitation, transactional, operational, performance and other data or information (including,  Company Data, Customer’s information, package information, and the transaction volume, marketing and business plans, business, financial, technical, operational) and/or that is related to the sale of Merchant’s Items to Customers through the  Company App and the terms and conditions of this Agreement. Confidential Information will not include information that: (i) was previously known to the Recipient without an obligation of confidentiality; (ii) was acquired by the Recipient without any obligation of confidentiality from a third party with the right to make such disclosure; or (iii) is or becomes publicly available through no fault of the Recipient.

“Criteria” means any quality, portion, size, ingredient, allergen, origin or nutritional information or rules and regulations that govern the adequacy of Items.

“Customer” means a customer of the Merchant.

“Customer Feedback” means information provided by a Customer in response to prompting by the  Company App, including rating of Item(s) and comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the  Company App, and either the delivery services (provided by Aggregator Delivery Partner) or the Non-Delivery Method experience.

“Damage Fee” means a Fee paid by Merchant to the Company for the loss or theft of a Device, the failure to timely return a Device, or any damage to a Device outside of normal wear and tear.

“Delivery Partner” means an Aggregator Delivery Partner. References to “Delivery Partners” should be read to include Aggregator Delivery Partners.

“Device” means a tablet or other portable device made available by the Company and/or its Affiliates to Merchant to access and use the Company Services.

“Dine-In Menu” means menu that is made available for meal consumption at the Restaurant Venue.

“Dispute” means any dispute, action, claim, controversy or cause of action among the parties arising out of or in connection with the Agreement or any term condition or provision hereof, including without limitation any of the same relating to the existence, validity, interpretation, construction, performance, enforcement and termination of the Agreement.

“Effective Date” means the date of sign up on the Company website or via Venue Manager.

“Fees” means any applicable fees charged by the Company to Merchant, including the Service Fee, and the Damage Fee.

“Feedback” means information provided by Merchant to the Company including feedback, suggestions, comments, ideas, or other concepts relating to Company products and services.

“Force Majeure Event” means occurrences beyond the control of the affected party including, but not limited to, decrees or restraints of Government, acts of God, strikes, work stoppage or other labor disturbances, war or sabotage.

“Income” means price/payment received on orders by the Merchant.

“Indemnified Party” means the party receiving indemnification from the Indemnifying Party.

“Indemnifying Party” means the party providing indemnification to the Indemnified Party.

“Invoice Details” means information required for the accurate calculation and preparation of invoices by the Company to Merchant.

“Item” means food, beverage, or any other product made available by Merchant to Customer via the Company App.

“Item Revenue” means the Retail Price (plus VAT and any other fees collected on Merchant’s behalf) less the retained Fees (including the Service Fee, and/or Damage Fee, where applicable), and any refunds given to the Customers on behalf of Merchant.

“Losses” means any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees).

“Marks” means the trademarks, service marks, trade names, copyrights, logos, slogans and other identifying symbols and indicia of the applicable party or its Affiliates.

“Meal” means any combination of food and/or beverage ordered by the customer from the Merchant via the Company App. “Meal” is a subset of “Item,” and any terms and conditions related to “Items” also apply to “Meals.” “Aggregator Meal,” and “Non-Delivery Meal” are subsets of “Meal.”

“Meal Voucher Order” means an order where the Company allows a Customer to pay for a given Meal provided by Merchant, and some or all associated fees and charges resulting from that transaction, with a meal voucher.

“Merchant” means the party who entered into the Agreement with the Company via the Company app for the purpose of using the Company services and resources.

“Merchant Marketing Materials” means videos, still images or other materials provided by Merchant to the Company for use in connection with the display of Merchant’s Items on the Company App.

“Method” means a method by which Items requested by a Customer through the Company App may be transferred from Merchant to such Customer.

“Non-Delivery Item” means an Item transferred by Merchant to Customer via the Non-Delivery Method.

“Non-Delivery Item Payment” means the Retail Price of the Item(s) sold by Merchant via the Company App (including any VAT or other sales tax).

“Non-Delivery Method” means a Method whereby Merchant may allow Customers to collect Items requested from a specified location without the involvement of a Delivery Partner.

“Notice Period” means a period of 14 days, as allowed by the Applicable law, after which amended Supplemental Terms will take effect.

“Order Manager” means Company Tools and is one of the resources used by Merchant for managing all matters related to the orders received via the Company App.

“Offer” means a short-term promotional offer that is created and fulfilled by Merchant that is intended to stimulate Customer demand through the Company App (e.g., discounts).

“Offer Costs” means the amount spent by Merchant on an Offer.

“Offer Materials” means, with respect to an Offer, all suitable material to be provided by Merchant including artwork of Merchant’s trademarks and trade names.

“Offer Tools” means proprietary, automated tools provided by the Company to Merchant which allow Merchant to create and provide Offers to Customers.

“Order Form” means the online/electronic sign-up form for using the Company services by the Merchants. Upon submitting the order form the Merchant explicitly accepts and agrees to the terms and conditions within the meaning of this contract agreement: ‘GoOut-TAKEOut Terms of Use for Merchants’. The purpose of the order form is to primarily allow and enable the Merchant to add as many restaurants or restaurant branches to GoOut as they wish and simultaneously accept the charge against each added restaurant at £1 per day per restaurant.

“Personal Data” means any information relating to an identified or identifiable natural person (“data subject”); an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

“Representatives” means with respect to a party, it’s or its Affiliates’ respective officers, directors, employees or agents.

“Required Documentation” means all documentation required by the Company from Merchant, including but not limited to business license, identification, tax identification, information regarding VAT status, alcohol license, banking documentation, and all Invoice Details.

“Restaurant” means Merchant’s restaurant, a place where people pay to eat meals that are cooked and served on the premises.

“Restaurant Venue” means the physical premises or physical venue of the Merchant’s restaurant with a Dine-in menu that is made available for meal consumption at the Merchant’s Restaurant premise or that may be ordered for collection or delivery. This is not a takeaway/delivery only menu.

“Retail Price” means the original listed price determined by Merchant for each Item to be made available for sale via the Company App prior to any discounts or promotions.

“Service Fee” means a Fee paid by Merchant to the Company in consideration for the use of the Company Services.

“Sign-up” or “Signing-up” means the action of enrolling for using the Company services under these terms through the sign-up/enrollment/registration process accessed via the ‘Venue Manager’

through the Company Website by the Merchant and enrolling for the Company services through the online portal available on the Company Website which will be introduced to the Merchant. During this process the Merchant will also be requested disclose Merchant’s contact details, Merchant’s direct debit details to allow the Company to collect any fees due and Merchant’s bank details to allow the Company to make  necessary payments to the Merchant of the income on orders due on a weekly basis. Once the sign-up is complete the Merchant shall be automatically bound by the present Terms that will govern the relationship between the Company and the Merchant.

“Substandard Item” means any Item that fails to meet the Criteria or standards required by Applicable Laws.

“Supplemental Terms” means the Definitions, the General Supplemental Terms, the Specific Supplemental Terms and any other terms applicable to the use of Company Services, Company Tools, and/or Company App and shared with the Merchant.

“Territory” means the United Kingdom

“VAT” means any VAT, GST and/or similar sales taxes.

“Venue Manager” is a Company Tool, a portal to access the Company’s Merchant services and incorporates a number of interfaces where the Merchant can access resources and information that enables the Merchant to use, work and communicate with the Company and Company Services. ‘Order Manager’ is a separate tool, specifically for managing all matters related to the orders received via the Company App.

GENERAL SUPPLEMENTAL TERMS

 The Company may amend the Supplemental Terms from time to time, as allowed by Applicable Law, upon giving a reasonable Notice Period and by posting such amended Supplemental Terms on the Company website or the Company otherwise making such amended Supplemental Terms available to Merchant. However, the Notice Period will not apply where an amendment is required by law or relates to the expansion or introduction of new services or functionalities to the existing  Company Services and/or  Company Tools or any other change which is effectively favorable to Merchant and does not reduce the scope of its rights or increase its responsibilities.  Merchant’s continued access to or use of the Company Services and Service Tools after such amended Supplemental Terms become effective constitutes Merchant’s consent to be bound by the amended Supplemental Terms. If Merchant objects to any Terms, Merchant may terminate this Agreement in accordance with the Termination clause 14.

1. Company Services.

1. General. The Company and/or its Affiliates will make the applicable Company Services available to Merchant including, but not limited to, on-demand lead generation, payment processing, marketing, operational and other support. Neither the Company nor its Affiliates provide Merchant or its Customers with delivery services. The Company Services are solely for use by Merchant, subject to the terms of this Agreement.

1. Appointment of Limited Payment Collection Agent.

1. Merchant hereby appoints the Company as Merchant’s limited payment collection agent solely for the purpose of: (A) accepting payment of the Retail Price of Items (plus any applicable VAT and other fees collected on Merchant’s behalf) sold by Merchant via the  Company App, via the payment processing functionality facilitated by the  Company Tools, and (B) transferring to Merchant the Retail Price (plus VAT and any other fees collected on Merchant’s behalf) less the retained Fees (including the Service Fee, and/or Damage Fee, where applicable) and any refunds given to the Customers on behalf of Merchant (“Item Revenue”);
2. Merchant agrees that payment collected by the Company on Merchant’s behalf will be considered the same as payment made directly to Merchant.

• Merchant further authorizes the Company to collect gratuities (if any) that are paid on the Company App voluntarily by Customers to Delivery Partners acting on behalf of Merchant. For Aggregator Delivery Partners, the Company shall remit the full value of any gratuities to Merchant. It is the sole responsibility of Merchant to make sure that any applicable gratuities are properly transferred to Aggregator Delivery Partners and the Company bears no responsibility for such transfers.

1. If reasonable, the Company may adjust the transfer of Item Revenue collected on Merchant’s behalf for reasons including, but not limited to, failure to fulfil the provision of an Item as ordered. Merchant may dispute any such adjustments through the Company Tools within fourteen (14) calendar days of Merchant being notified of such adjustment. The Company reserves the right to, and Merchant authorizes the Company to, collect the amount of such adjustments via a deduction from the Item Revenue collected on Merchant’s behalf, or by debiting Merchant’s payment method on record, or otherwise seeking reimbursement from Merchant.
2. In exceptional circumstances only (as determined by the Company in its sole discretion, acting reasonably), the Company reserves the right to temporarily or permanently cancel or suspend a payment to Merchant. The foregoing exceptional circumstances shall include, but not be limited to, any legal or regulatory risk or potential breach of Applicable Laws associated with the transfer of such payment to Merchant, the actual or expected initiation of insolvency or bankruptcy proceedings against Merchant and any failure by Merchant to provide the Required Documentation in accordance with clause 1(J) of these General Supplemental Terms.
3. The Company may, from time to time, request information from Merchant to confirm Merchant’s identity as may be necessary under any applicable compliance obligations before transferring any payments to Merchant and may refuse to process payments owed to Merchant in accordance with clause 1(B)(vi) of these General Supplemental Terms if there exists a legal or regulatory risk or potential breach of law or regulation associated with such transfer to Merchant.

• The Company may engage any of its Affiliates to perform the activity of limited payment collection agent. Such engagement may be subject to additional terms.
• The Merchant accepts that the Company will use the payment processing services of Apple pay, Google pay and use Customer’s personal credit or debit card to take and process Customer payment, a processing fee shall be deductible from the total aggregator item payment earned by the Merchant on any occasion that the payment processing services of Apple pay and/or Google pay are used.

1. Cash. The Company and/or its Affiliates may allow Customers to pay for a given Item (and, if applicable, delivery services) provided by Merchant, and all associated fees and charges resulting from that transaction, in cash (“Cash Order”).

1. Meal Vouchers. The Company and/or its Affiliates may allow Customers to pay for a given Meal provided by Merchant and some or all associated fees and charges resulting from that transaction with a meal voucher (a “Meal Voucher Order”). In certain circumstances, the Company will not act as limited payment collection agent for Meal Voucher Orders and Merchant will receive direct settlement of Item Revenue from a third-party meal voucher issuer.

1. Company Tools.

1. The Company may make available certain Company Tools to Merchant, and Merchant may access and use those Company Tools solely in connection with Merchant’s use of the Company Services. The Company Tools, including all intellectual property rights therein, are and shall remain the property of the Company, its Affiliates or their respective licensors. Neither this Agreement nor Merchant’s use of the Company Tools or Company Data conveys or grants to Merchant any rights in or related to the Company Tools or Company Data, except for the limited license granted above.
2. The Company tools also includes Venue Manager and Order Manager. Venue Manager is a portal to access the Company services and incorporates a number of interfaces where the Merchant can access resources and information that enables the Merchant to use, work and communicate with the Company and Company Services. Order Manager is a portal, specifically for managing all matters related to the orders received via the Company App.

• The Company may provide the Merchant with hardware in form of a touch screen tablet/device free of cost. In the event that a tablet/device is made available to the Merchant, the Company requires the Merchant to maintain the tablet/device in good working order. The Merchant further shall be responsible for replacing the tablet/device should it be damaged or broken whilst in their care and that the Company reserves the right to deduct the cost of replacing the tablet/device should it be necessary. This deduction of cost for replacing the tablet/device will be done from the income received on orders of the Merchant restaurant or from the Merchant’s given bank account by direct debit. The Company holds the right to recover the tablet/device from the Merchant at any time notwithstanding any wear and tear but must be in the perfect working condition.

1. Company App or Company Application. Merchant acknowledges and agrees that once it has accepted a request for an order of Items, the Company App may provide certain information about Merchant to the Customer, including Merchant’s name and contact number. As between Merchant and the Company, the Company will retain sole and absolute control over the Company App (and all elements of the user experience and user interface relating to the Company App), including, without limitation, with respect to:
2. the personalization of the Company App for Customers;
3. the prioritization and display of options available to Customers;

• the search functionality and results provided to Customers; and

1. adding, removing or otherwise modifying any feature or functionality made available through the Company App to optimize reliability or efficiency on the Company App.

1. No Service Guarantee. The Company and its Affiliates do not guarantee the availability or uptime of the Company Tools or Company App. Merchant acknowledges and agrees that the Company Tools and Company App may be unavailable at any time and for any reason (e.g., due to scheduled maintenance or network failure). Further, the Company Tools and Company App may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications, and the Company and its Affiliates are not responsible for any delays, delivery failures, or other damages, liabilities or losses resulting from such problems.
2. Disclaimer of Warranties. This clause applies only to the maximum extent permitted by Applicable Law and does not (and is not intended to) override any rights that Merchant has pursuant to Applicable Law. The Company and its Affiliates provide, and Merchant accepts, the Company Tools and Company App on an “as is” and “as available” basis. The Company and its Affiliates do not represent, warrant or guarantee that its access to or use of the  Company Tools or  the Company App: (i) will be uninterrupted or error free; or (ii) will result in any requests for orders of Items (and delivery, if applicable).  The Company and its Affiliates make no representations, warranties or guarantees as to the actions or inactions of Customers who may request or receive Items (and delivery services, if applicable), and the Company and its Affiliates do not screen or otherwise evaluate Customers. By using the Company Tools, Merchant acknowledges and agrees that Merchant or a Delivery Partner may be introduced to a third party that may pose harm or risk to Merchant, Delivery Partners or other third parties. Merchant and their Aggregator Delivery Partners are advised to take reasonable precautions with respect to interactions with third parties encountered in connection with the use of the Company Services and Company Tools.  The Company does not represent, warrant or guarantee the safety of any Items. Notwithstanding Company’s appointment as limited payment collection agent of Merchant for the purpose of accepting payment from Customers on its behalf, the Company and its Affiliates expressly disclaim all liability for any act or omission of Merchant, any Aggregator Delivery Partners, any Customer or other third party.

1. Complaints.

1. In connection with the provision of the Company Services to Merchant, the Company, on behalf of Merchant, may respond to complaints by Customers about orders, items and/or delivery provided or sold by the Merchant via the Company App. However, the burden of resolving the issues and/or complaints of the Customer rests solely with the Merchant.
2. For the purpose of resolving Customer complaints, the Company has the right to provide the Customer with the contact details of the Merchant so that they can directly contact the Merchant for any issue with the service, orders, delivery and/or other related reasons.

• The Merchant bears the sole responsibility of dealing with complaints and/or issues related to Orders items and/or Deliveries.

1. Any refunds agreed as result of communication between the Merchant and the Customer for the purpose of resolving an issue and/or complaint shall be a cost to the Merchant only.
2. The Company has the right to issue refunds to the Customer if it deems fit. Any refund issued by the Company shall be deducted from the Merchant in reconciliation between the Merchant and the Company or may be recovered from the Merchant by direct debit from the Merchant’s given bank account if the Company suffers any shortfall on the Merchant’s account with the Company as result of issuing refunds.

1. Suspension of Company Services.

1. The Company, at its sole discretion, reserves the right to temporarily or permanently suspend, in whole or in part, Merchant’s access to the Company Services and Company Tools if:

1. Merchant fails to provide Required Documentation in a timely manner;
2. Merchant’s account is in arrears;
3. A Brand Matter has occurred in accordance with terms mentioned herewith; or
4. Merchant is, or the Company reasonably believe Merchant is, in breach of this Agreement as set out in the Termination clause 14.
5. Merchant fails to provide proper quality of service or due to increased levels of customer complaint. The Company reserves the right to suspend the use of Company services, use of app and/or use of any other Company Tools and/or any other part of the Company and/or its Affiliates, if the Company at its discretion considers the quality of service provided by the Merchant is unacceptable or that there is an unacceptable increase in the level of customer complaints. What may be included within the purview of unacceptable shall rest solely within the discretion of the Company and shall be determined in accordance with quality of service or/and the customer complaints received against a Merchant as this cannot be pre-determined.     

1. Suspension also includes the right to remove the Merchant’s business, restaurant(s) and related brands as well as Merchant marketing material completely from the Company App and from the other marketing platforms of the Company. Suspension will also forfeit the Merchant’s right to use the Company Marketing Material and/or any other part of the Company in manner that might suggest a link between the Company and the Merchant to a reasonable person.

2. Merchant’s Obligations.

1. Availability of Items. Merchant will make Items available for purchase through the Company App during its normal business hours.

1. Merchant will prepare, handle and store all Items in accordance with Applicable Laws, which shall include, without limitation, all laws, rules and regulations governing time or temperature controls required for food hygiene and safety.
2. Merchant will determine any Criteria that apply to Items and Merchant is responsible for ensuring that the Items meet the applicable Criteria as displayed to Customers in the Company App. The Company, at its sole discretion, reserves the right to remove from the Company App any Item for sale by Merchant deemed unsuitable for sale on the Company App.

1. Item Inventory and Delivery Services.

1. Merchant acknowledges and agrees that Company does not take title to any Item. Merchant remains responsible for the delivery of Items and shall maintain possession, control and care of the Items at all times in full compliance with Applicable Laws.
2. Merchant shall remain responsible for complying with all health and safety laws and regulations applicable in relation to all Items, up to and including the time of delivery of the Items to a Customer. Merchant agrees that, for purposes of delivery of Items, Delivery Partners shall operate under cover of the Merchant’s retail and health and safety licenses, registrations, authorizations and privileges and control.

• Merchant is responsible for costs related to reimbursement to Customers in the event any such Customer(s) request a refund for Substandard Items or otherwise unsatisfactory Item(s) (including, without limitation, any costs associated with retrieving any such Substandard Items or otherwise unsatisfactory Item(s), if applicable). The Company may deduct refunds from the Item Revenue transmitted to Merchant under this Agreement in accordance with Company’s refund policy located at (website link) (or as otherwise provided to Merchant), as updated from time to time, provided always that Merchant has received notification of such refund policy.

1. Documentation. Merchant will provide all documentation required by the Company (including but not limited to business license, identification, tax identification, information regarding VAT status, alcohol license, banking documentation, and all Invoice Details) (“Required Documentation”). The Merchant is solely responsible for providing the Company with all relevant and required documentation and ensuring that such documentation is accurate and up to date.

1. Restrictions. Merchant will not allow any third party to: (i) use the Company Services, the  Company Tools, or any other transactional, operational, performance or other data or information that is related to the sale of the Items (and, if applicable, delivery) to Customers through the  Company App to compete with the Company, its Affiliates or the  Company Services; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms used to provide the  Company Services or  Company Tools (except to the extent that Applicable Law prohibits reverse engineering restrictions); or (iii) provide, lease, lend, disclose, or otherwise use or allow others to use, in each case, for the direct benefit of any third party, the  Company Services or  Company Tools (except as otherwise authorized by Company).

1. Alcohol. To the extent permitted under Applicable Laws, Merchant may use the Company App to transfer alcohol to a Customer subject to the additional terms set forth herein. Merchant represents and warrants that it has and will maintain all required licence (s) and/or permit(s) to sell and, if applicable, deliver alcohol, and will comply with all Applicable Laws in respect thereof, including, without limitation, time restrictions and legal age.

1. Tax. Merchant is responsible for ensuring the accuracy of its own tax filings.

3. Ratings.

 Merchant acknowledges and agrees that, after receiving Item(s), a Customer may be prompted by the  Company to provide a rating of such Item(s) (and, if applicable, delivery) and, at such Customer’s option, to provide comments or feedback related to the Customer’s experience with Merchant, the relevant Item(s) on the  Company App, and either the delivery services (provided by Aggregator Delivery Partner) or the Non-Delivery Method experience (“Customer Feedback”).  The Company reserves the right to use, share, and display Customer Feedback in any manner in connection with the business of the Company without attribution to or approval of Merchant.  The Company reserves the right to edit or remove comments in the event that such comments include obscenities or other objectionable content, include an individual’s name or other Personal Data, violate any privacy laws and regulations or other Applicable Laws, or violate Company’s content policies.

4. Reporting.

The Company will provide Merchant with information regarding the number of Items sold by Merchant to its Customers.  The Company will also provide information to Merchant regarding any refunds given to its Customers by  the Company on Merchant’s behalf, including the date of the transaction, the Item(s) refunded, the reason for the refund and any other information the Company is permitted to provide under applicable privacy laws and regulations.

5. Fees, Retail Price of Items and Taxes

A. Fees and Taxes

1. Fees. In consideration for the use of the Company Services, the Company will charge Merchant a “Service Fee” i.e. a commission as specifically set forth herein (together with the Damage Fee, and any other applicable fees charged by the Company to Merchant, the “Fees”). The Company will charge the Merchant two types of Services Fee for the Company Services

1. GoOut – For a restaurant/ venue registered on GoOut as a ‘Prime Venue’ £1 per day will be charged as the service subscription fee from the start of registration and will be billed once a month.
2. TAKEOut – For a restaurant signed up on TAKEOut for takeaway order services will be charges at 10% commission of each customer’s total order value per order on all orders of a value more than £1. The Company will also charge a transaction fee that covers credit card charges that the Company pays for each transaction they process on behalf of the restaurant’s customer order as a recharge for disbursement.
3. For the purpose of Clauses 5. A (i) (1) and (2) there is no requirement for a minimum duration commitment that the restaurant must sign up for to get or join the Company services. The restaurants are free to join on a “stay or go as they desire” basis. However, the restaurants are bound to give a 30 days’ notice to cancel their subscription with us in writing by an email to restaurants@goouttakeout.com and following the end of 30 days from the date of notification/cancellation email, all charges will be stopped thereupon. Any charges received for a period of time after the end of 30 days from the date of notification/cancellation email will be refunded back to the Merchant.

1. Invoicing and Income Payment Terms:
2. TAKEOut: For a restaurant signed up on TAKEOut for takeaway orders services, the Company will calculate the income on orders achieved by the Merchant and reconciled against commission charges due to the Company on a weekly basis. The net income due to the Merchants will be paid 7 days after the end of each week. If there is a shortfall in the income received upon reconciliation of income due to the Merchant versus fees due to the Company then the Company may collect their fees due by direct debit or demand that payment to be made by the Merchant to the Company immediately and certainly within 7 days of such demand. The Merchant accepts that he is obliged to pay in the timely manner stated here.
3. GoOut – For a restaurant/ venue registered on GoOut, the Company will collect the fees for Company Services provided through GoOut by direct debit. The Company has the right to make deductions from the Merchant through direct debit when their charges arise and become due.
4. All income and service fee payable under the terms mentioned herewith are subject to standard VAT charges and exclusive of any applicable discounts that maybe provided at the sole discretion of the Company. All fees under this agreement will be payable in pound sterling.

• Costs and Expenses. Except as may be expressly set forth in this Agreement, each party will be responsible for its expenses and costs in connection with this Agreement.

1. Taxes on Fees.

1. All Fees payable pursuant to this Agreement shall be deemed to be exclusive of Value Added Tax (VAT). The term “VAT” includes any VAT, GST and/or similar sales taxes.
2. If VAT is chargeable on any Fees, the Merchant shall pay to GoOut-TAKEOut an amount equal to the amount of the VAT in addition to and at the same time as payment of the
3. Fees shall be paid free and clear of and without deduction for or on account of withholding tax (if applicable). If Merchant is required to make such a deduction or withhold such tax, the sum payable by Merchant shall be increased to the extent necessary to ensure that  the Company receives a sum net of any withholding or deduction equal to the sum which it would have received had no such deduction or withholding been made or required to be

1. Cancellations: The Merchant/Restaurants are bound to give a 30 days’ notice to cancel their subscription with us in writing by an email to restaurants@goouttakeout.com and following the end of 30 days from the date of notification/cancellation email, all charges will be stopped thereupon. Any charges received for a period of time after the end of 30 days from the date of notification/cancellation email will be refunded back to the Merchant.

1. Retail Price of Items and Taxes.

1. Merchant is the “retailer” or “seller” of all Items (including delivery services related to such Items, if applicable). Merchant is responsible for determining and setting the original listed price, prior to any discounts or promotions, for each Item to be made available for sale via the Company App (the “Retail Price”). The Retail Price for each Item will include VAT, but Merchant is solely responsible for determining and setting all applicable VAT and identifying and informing the Company of the appropriate VAT amount for the Company to charge Customers on Merchant’s behalf for Items available on the Company App. To the extent that applicable VAT rate is not determined by Merchant, Merchant expressly authorizes the Company to make such determination on its behalf and Merchant hereby acknowledges and agrees that the Company will have no liability for the accuracy of any such determination. Merchant expressly authorizes the Company, at Merchant’s direction, to collect such VAT on Merchant’s behalf.

1. Merchant is solely responsible for the remittance of all applicable VAT, sellers use, transaction privilege, privilege, general excise, gross receipts, meals tax and similar transaction taxes in connection with the sale of Items.

6. Invoices. For each order completed using the Company, the Company may issue an invoice and/or receipt for Items and (if applicable) delivery services to Customers on Merchant’s behalf provided that Merchant has completed the required Invoice Details. Merchant may dispute invoices and/or receipts issued by the Company on Merchant’s behalf within a period not exceeding three (3) days from the issuance date of the invoice and/or receipt. Failing this, Merchant is deemed to have validated said invoice and/or receipt.

7. Restrictions and Limitations.

1. Delivery Radius Modification: The Company, at its discretion, reserves the right to modify Merchant’s delivery radius for reasons including, without limitation, to prevent or otherwise limit unfulfilled orders.
2. Temporary Usage Restriction: The Company, at its discretion, reserves the right to restrict or otherwise limit Merchant’s access to the Company App for a period of time for reasons including, without limitation, to prevent or otherwise limit unfulfilled orders

1. Transfer Restrictions: The following restricted items may not be transferred via the Company App: people or animals of any size, illegal items, fragile items, dangerous items (like weapons, explosives, flammables, etc.), stolen goods, or any items that Merchant does not have permission to transfer.

8. Marks.

1. Marks. Subject to this Agreement, each party hereby grants to the other party (and, in the case of the Company, to its Affiliates) a limited, non-exclusive and non-transferable license during the Term to use such party’s respective Marks, on a royalty free basis, in connection with the activities related to this Agreement. This license includes the right to reproduce, adapt and represent (in connection with all or part of the activities related to this Agreement) the Marks for the entire world, using all means and media, and without any restriction of any kind as regards exploitation methods, number of prints, dissemination or utilization. All uses of a party’s Marks (owned or licensed, as applicable) by the other party will be in the form and format specified or approved by the party that owns (or is a licensee of, as applicable) such Marks. Other than as specifically set forth in this Agreement, neither party will use the other party’s Marks without the prior, express, written consent of the other party. Any use or display of Merchant’s Marks by the Company in connection with making Items available through the Company App in the ordinary course of business will not require any such prior, express, written consent. All goodwill related to the use of a party’s Marks by the other party will inure to the benefit of the party that owns (or is a licensee of, as applicable) such Marks. Except as expressly set forth herein, neither party will be deemed to grant the other party any license or rights under any intellectual property or other proprietary rights. All rights not granted are expressly reserved. Merchant agrees that it will not, and will ensure that Aggregator Delivery Partners do not, try to register or otherwise use and/or claim ownership in any of the GoOut-TAKEOut Marks, alone or in combination with other letters, punctuation, words, symbols and/or designs, or in any confusingly similar mark, name or title, for any goods and services.

9. Marketing and Promotional Activities.

1. Marketing. The Company may showcase the availability of Merchant’s Items via the Company App through various promotional activities including, without limitation, social media channels, websites, advertisements, blogs or other media available now or hereinafter created. The Company (or a party designated by the Company acting on Company’s behalf) may create video, still images and/or other materials for marketing and other efforts related to the Company App (” Company Marketing Materials”). Merchant agrees that Company Marketing Materials (including, without limitation, all intellectual property rights therein) are and will remain the sole and exclusive property of the Company. Additionally, Merchant may choose to provide videos, still images and/or other materials to  the Company (“Merchant Marketing Materials”) for use in connection with the display of Merchant’s Items on the  Company App, and Merchant hereby grants  Company a non-exclusive, royalty free right to use, reproduce, adapt, represent, and display such Merchant Marketing Materials in connection with Merchant’s Items and other promotional activities relating to the  Company Services, for the entire world, during the Term, using all means and media, and without any restriction other than as required by Applicable Law as regards exploitation methods, number of prints, dissemination or utilization.

1. No Additional Amounts. Merchant acknowledges and agrees that, through advertising and marketing, the Company may seek to attract new merchants to the Company and to increase existing users of the  Company Services and  Company App. Merchant acknowledges and agrees such advertising or marketing does not entitle Merchant to any additional monetary amounts beyond the amounts expressly stated in this Agreement.

1. Merchant Promotional Offers. The Company may authorize Merchant to use certain automated tools that allow Merchant to provide promotional Offers to Customers through the Company App in accordance with the terms of this Agreement. Merchant agrees that it is solely responsible for fulfilling and, subject to technical and functional limitations of the automated tools, defining the Offers provided by Merchant to its Customers.

1. Merchant Promotional Offers. Subject to this Agreement and any other guidelines or eligibility criteria for Offers that the Company may make available from time to time, the Company hereby authorizes Merchant to use Company’s proprietary, automated tools (“Offer Tools”) to create and provide Offers to Customers. Unless otherwise specified by the Company, Merchant will be solely responsible for defining each Offer (within the scope of functionality provided by the Offer Tools), including, without limitation, the start date, end date, and budget for each Offer. Each Offer will be subject to Company’s prior written approval. Merchant is responsible for providing to Company Offer Materials in a format and within deadlines specified by the Company for such to be reproduced for the provision of the Offer to Customers.
2. Enhanced Promotional Placements. Subject to the Company’s App functionality, the Company may provide enhanced promotional placement or other visual treatment for the Offers through the start and end date identified by Merchant. Merchant acknowledges that the time period of enhanced promotional placement for an Offer (if applicable) may vary due to a number of factors including Merchant’s budget, the start and end date for an Offer, and other Company App functionality.

• Merchant’s Responsibilities. Merchant will honor and fulfill the terms of the Offer. Merchant represents and warrants that Merchant will run all Offers in accordance with all Applicable Laws which apply to the Offers. Merchant represents and warrants that Merchant possesses all necessary authority, rights, licenses, consents and permissions to run the Offer (including, without limitation, the rights to any Offer Materials provided to the Company). Merchant will not use an Offer to make charitable donations. For free or reduced Delivery Charge Offers, Merchant will be solely responsible for the reduction to the amount that the Company collects from Customers with respect to the Delivery Charge.

1. Reporting and Offer Costs. The Company will use good faith efforts to provide Merchant with reasonable information regarding Merchant’s Offers, which may include, without limitation, the Offer Costs and the number of Items sold in connection with an Offer. The Company, in its sole discretion, may highlight Offers and/or the results of Offer in its own marketing materials.
2. Service Fees. For Items where an Offer has been applied as a discount to the Retail Price of the Item, the Company will charge Merchant a Service Fee based on the discounted Retail Price and not the full Retail Price. If Merchant’s Offer consists of a discount on delivery, the Service Fee will be calculated as described in the Agreement and will not change. Merchant agrees that Merchant is solely responsible for Offer Costs and that the Company may deduct Offer Costs from Merchant’s Item Revenue. If Merchant is paid for an Item, it is responsible for the Service Fee and relevant Offer Costs.
3. Modification, Suspension, Discontinuation. The Company reserves the right, at any time, temporarily or permanently, in whole or in part, to modify, suspend or discontinue the Offer Tools or the ability for Merchant to provide Offers. Merchant agrees that neither the Company nor any of its Affiliates shall be liable to Merchant (or to any third party) for the Offer or the Offer Tools, including for any modification, suspension or discontinuance of the Offer or the Offer Tools or providing Merchant with the ability to provide Offers.

1. Publicity. Except as may be expressly set forth in this Agreement or otherwise agreed by the parties in writing, neither party may issue a press release or otherwise refer to the other party in any manner with respect to this Agreement or otherwise, without the prior written consent of such other party.

10. Restaurant Venue – Food Ordering and Payment for In-Restaurant Service.

1. Definition. A Merchant who currently offers Meals via the Company App may, under certain conditions, provide Dine-in services whereby the consumer can consume meals on site at the Restaurant Venue. All Restaurant Venue Meals are sold by Merchant.

1. Merchant’s Responsibilities. Without prejudice to any other provision of this Agreement, a Merchant operating a Restaurant Venue must adhere to the following conditions:
2. Merchant represents and warrants that Merchant will prepare and sell all Meals from Restaurant Venue at Merchant’s restaurant premises.
3. If this premises address changes, Merchant will provide the new address to the Company with no less than seven (7) days’ advance written notice.

• The Restaurant Venue trading name is Merchant’s Mark and is subject to the indemnification provision of the Agreement. Merchant represents and warrants that (A) the Restaurant Venue trading name does not infringe, misappropriate, or otherwise violate any third party’s intellectual property or other proprietary rights and (B) it has the right to display the Restaurant Venue trading name on the Company App. Merchant agrees that  the Company may remove Restaurant Venue from the  Company App if  the Company reasonably believes that it may infringe, misappropriate, or otherwise violate any intellectual property or other proprietary rights.

11. Confidential Information; Personal Data; Feedback.

1. Definition. Each Recipient agrees that it will not disclose the Discloser’s Confidential Information to any third parties other than Representatives or use it in any way other than as necessary to perform this Agreement. Each Recipient will ensure that Confidential Information will only be made available to those of its Representatives who have a need to know such Confidential Information and who, prior to any disclosure of such Confidential Information, are bound by written obligations of confidentiality with respect to such Confidential Information that are no less stringent than those set forth in this Agreement. Recipient will cause its Representatives to comply with the terms of this Agreement and will be solely responsible for any breach of this Agreement by any of its Representatives. Each Recipient will not, and will not authorize others to, remove or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of the Discloser’s Confidential Information. The foregoing prohibition on use and disclosure of Confidential Information will not apply to the extent: (i) the Discloser has authorized such use or disclosure (and Merchant hereby authorizes the Company to disclose the terms of this Agreement to Merchant’s franchisees in connection with executing contracts that reference this Agreement with such franchisees) and (ii) a Recipient is required to disclose certain Confidential Information of the Discloser as a matter of law or by order of a court, provided that the Recipient gives the Discloser prior written notice of such obligation to disclose (to the extent legally permissible) and reasonably assist in obtaining a protective order prior to making such disclosure. Upon expiration or termination of this Agreement and as requested by Discloser, each Recipient will deliver to the Discloser (or destroy at the Discloser’s election) any and all materials or documents containing the Discloser’s Confidential Information, together with all copies thereof in whatever form. Neither party makes any representation or warranty that Confidential Information is complete or accurate; all Confidential Information is provided “as is”.

1. Privacy. Merchant agrees to use Personal Data provided to Merchant by the Company solely for the purpose of providing Items to Customers under this Agreement. Merchant agrees to use Personal Data provided to Merchant by the Company solely by using the Company Tools provided by the Company and shall not copy, store, retain, remove from the Company Tools or otherwise process the Personal Data. Only in the Aggregator Method, Merchant is permitted to copy Personal Data provided via the Company Tools and share it with its Aggregator Delivery Partners for the sole purpose of providing Items to Customers in accordance with this Agreement, and will be responsible for compliance with applicable data protection regulations as a data controller, or the responsible party, for such Personal Data as specified in clause 5(a) of the Aggregator Method Specific Supplemental Terms. In respect of any Personal Data transferred by the Company to Merchant, the parties agree that they shall enter into the Data Processing Agreement (controller to controller) in substantially the form attached at Addendum A, included as part of the Aggregator Method Specific Supplemental Terms.

1. Aggregate Data. Merchant acknowledges that the Company may use aggregate, anonymized data related to Merchant’s transactions in connection with the Company Services (“Aggregate Data”). If Merchant allows a third party to provide technology services to Merchant in connection with Merchant’s obligations under this Agreement, then the Company may share Aggregate Data with such third party to enable the provision of the Company Services to Merchant.

1. Third Party Disclosure. Merchant acknowledges that the Company may share Merchant contact information (including name, address, email, and phone number) with third parties necessary to Merchant’s onboarding on the Company App, including logistics and/or delivery service providers (for the delivery of Devices or other equipment), as well as photography services (for any photography which may be provided by a third-party provider on behalf of  the Company).

1. Passwords. Merchant is responsible for maintaining the integrity of information related to Merchant’s access and use of the Company Tools and related Company Services, including any password, login or key information. Merchant represents and warrants that Merchant will not share such information with any third party.

1. Data Identification Restriction. Without limiting any other provision of this Agreement, including any provision in this clause, Merchant will not merge any of the data collected or otherwise obtained in connection with this Agreement, including, without limitation, any Personal Data, with other data collected from any source or otherwise use any of the data collected or otherwise obtained in connection with this Agreement, including, without limitation, any Personal Data, for the purpose of re-identification, targeted marketing, analytics or any other similar purpose.

1. Feedback. Merchant may, but is not obligated to, provide or otherwise make available to Company certain feedback, suggestions, comments, ideas, or other concepts relating to Company’s products and services (“Feedback”). However, to the extent that Merchant provides or otherwise makes available Feedback to Company, Merchant hereby grants to the Company a perpetual, irrevocable, worldwide, royalty free, fully sublicensable right to use, reproduce, adapt, represent and otherwise exploit such Feedback, during the Term, using all means and media, and without any restriction of any kind with regard to exploitation methods, number of prints, dissemination or utilization.

12. Indemnification.

1. Indemnified Claims. Each party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other party, its affiliates and their respective directors, officers, employees and agents (the “Indemnified Party”) from and against any and all claims, damages, liabilities, causes of action, and losses (including reasonable attorney’s fees) (collectively, “Losses”) with respect to any third party claim arising out of or related to: (i) the negligence or willful misconduct of the Indemnifying Party or its employees or agents (in Merchant’s case, including Aggregator Delivery Partners to the extent they are Merchant’s agents) in their performance of this Agreement; (ii) any claims that, if true, would be a breach of any of the Indemnifying Party’s (in Merchant’s case, including via Aggregator Delivery Partners) representations, warranties or covenants in this Agreement; and (iii) any claims that the Indemnifying Party’s Marks infringe a third party’s intellectual property rights, as long as such Marks have been used in the manner approved by the Indemnifying Party.

1. Merchant will indemnify, defend and hold harmless the Company Indemnified Parties from and against any and all Losses with respect to any third party claim arising out of or related to: (A) Merchant’s violation or alleged violation of any applicable retail food or other health and safety code, rule or regulation, (B) Merchant’s failure to determine the applicable VAT and other fees charged; (C) Merchant’s failure to apply correct VAT rates, including those rates adjusted by the Company on Merchant’s behalf; (D) VAT, other fees, penalties, interest and other costs related to Merchant’s obligations; (E) Merchant copying, storing, retaining, removing from the Company’s Tools or otherwise processing the Personal Data, except as permitted by clause 11(b) of these General Supplemental Terms; (F) any third party claim for actual or alleged infringement of a third party’s intellectual property or other proprietary rights arising out of or in connection with any Offer run by Merchant and use of Offer Materials; and/or (G) any third party claim arising out of or in connection with the manufacture, production, distribution, handling, advertising, consumption or use of, or otherwise relating to, any Offer run by Merchant, whether or not any claim arises during the Term of the Agreement, except in the case of each of (A)-(E) above, to the extent such harm was directly caused by the gross negligence or willful misconduct of  the Company or its employees, agents or Delivery Partners. With respect to the indemnities in (F) and (G) above, approval by a Company Party of any Offer or use of any Offer Materials shall not affect this right of indemnification.

1. Procedure. Each Indemnified Party will provide prompt notice to the Indemnifying Party of any potential claim subject to indemnification hereunder. The Indemnifying Party will assume the defense of the claim through counsel designated by it and reasonably acceptable to the Indemnified Party. The Indemnifying Party will not settle or compromise any claim, or consent to the entry of any judgment, without written consent of the Indemnified Party, which will not be unreasonably withheld. The Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of a claim, at Indemnifying Party’s expense.

13. Insurance During the Term and for one (1) year thereafter, each party will maintain Public and Products Liability and, if required by law, Employer’s Liability insurance. The Public and Products Liability insurance policy limits will be not less than one-million-pound sterling (£1,000,000) combined single limit per occurrence for bodily injury, death and property damage liability, and two-million-pound sterling (£2,000,000) in aggregate. Merchant shall not cancel or materially reduce its insurance without thirty (30) days’ prior written notice to the Company. Upon a party’s request, the other party will provide evidence of the insurance required herein. In no event will the limits of any policy be considered as limiting the liability of a party under this Agreement.

14. Termination
15. This Agreement is effective and shall remain in force until terminated by either the Company or Merchant, subject to the accepted conditions set out in Clause 5. Fees, Retail Price of Items and Taxes herein that takes precedent over termination rights.
16. The Company, at its sole discretion, with or without notice, may suspend a Merchant’s ability to use certain portions of the Company and or it’s Affiliates, Company tools, Company Apps, Company Services, and/or or permanently terminate a Merchant’s account and/or ability to use the Company and or it’s Affiliates, Company tools, Company Apps, Company Service should a Merchant be deemed to violate any of these Terms, Order Form, Privacy Policy, Supplemental Terms and/or any of the other policies and rules incorporated herein and any applicable law.
17. Should the Company elect to either suspend or terminate a Merchant’s account and/or ability to use the Company and or it’s Affiliates, Company tools, Company Apps, Company Services, this may result in the forfeiture and destruction of all information associated with a Merchant’s membership.
18. A Merchant is permitted, at any time, to terminate their use of their account by following the instructions provided on the Website and App and by complying to clause 5 A (v) of this agreement that takes precedent over termination rights.
19. For further information on what the Company is obliged to do with a Merchant’s account and personal information supplied by the Merchant when his/her account is terminated and/or if the Merchant discontinues use of the Service, please review the Company’s Privacy Policy in compliance with the (UK) Applicable Data Protection Rules on England and Wales at the time of such termination.
20. All provisions of these Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

15. Governing Law and Dispute Resolution. For the purpose of this Agreement, any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.

16. General.

1. Waiver. The failure of either party to enforce, at any time or for any period of time, the provisions hereof, or the failure of either party to exercise any option herein, shall not be construed as a waiver of such provision or option and shall in no way affect that party’s right to enforce such provisions or exercise such option.

1. Modification. Any modification or amendment to the Sign-up process shall be effective only if in writing and signed by both parties, provided that the Company reserves the right to modify any information referenced at hyperlinks from this Agreement from time to time. Any modification or amendment to the Supplemental Terms shall be in accordance with clause II(B) of the Order Form.

1. Severability. If any provision of the Agreement is held to be illegal, invalid or unenforceable, in whole or in part, such provision or part thereof shall to that extent be deemed not to form part of the Agreement but the legality, validity and enforceability of the remainder of the Agreement shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable (part of the) provision with a (part of a) provision that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable (part of the) provision, given the contents and purpose of the Agreement.

1. Force Majeure Event. Any delay in or failure by either party in the performance of this Agreement shall be excused if and to the extent such delay or failure is caused by a Force Majeure Event. The affected party will promptly notify the other party upon becoming aware that any Force Majeure has occurred or is likely to occur and will use commercially reasonable efforts to minimize any resulting delay in or interference with the performance of its obligations under the Agreement.

1. Assignment. Merchant may not assign or transfer this Agreement or any of its rights or obligations hereunder, in whole or in part, without the prior written consent of the Company. The Company may assign or transfer this Agreement or any or all of its rights or obligations hereunder, in whole or in part, under this Agreement without consent or notification. The Company shall be expressly discharged from all obligations and responsibilities arising after the assignment or transfer. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of each party hereto and its respective successors and assigns.

1. Relationship between the Parties. The parties expressly agree that: (a) this Agreement is not an employment agreement, nor does it create an employment or worker relationship (including from a labour law, tax law or social security law perspective), between the Company (and/or its Affiliates) and Merchant or the Company (and/or its Affiliates) and any Delivery Partners; and (b) except as specified in this Agreement, no joint venture, partnership, or agency relationship exists between  the Company (and/or Company’s Affiliates) and Merchant or  the Company (and/or Company’s Affiliates) and any Delivery Partners. No party shall have the right to enter into contracts on behalf of, to legally bind, to incur debt on behalf of, or to otherwise incur any liability or obligation on behalf of, the other party hereto, in the absence of a separate writing, executed by an authorized representative of the other party. Each party shall be solely responsible for its employees and contractors used in connection with this Agreement. Except as otherwise expressly provided herein with respect to the Company acting as the limited payment collection agent solely for the purpose of collecting payment from Customers on behalf of Merchant, the relationship between the parties under this Agreement is solely that of independent contractors.

1. Entire Agreement. This Agreement contains the full and complete understanding and agreement between the parties and supersedes all prior and contemporary understandings and agreements, whether oral or written. In this Agreement, the words “including” and “include” mean “including, but not limited to.”

1. Third Party Beneficiaries. Merchant acknowledges that there are no third-party beneficiaries to this Agreement, except for the Company (in its capacity as agent for the Company) and the Company’s Affiliates. Nothing contained in this Agreement is intended to or shall be interpreted to create any third-party beneficiary claims, except with respect to the Company (in its capacity as agent for the Company) and Company’s Affiliates.

1. Liability. Nothing herein limits or excludes (nor is intended to limit or exclude) any statutory rights that Merchant or the Company may have under Applicable Laws that cannot be lawfully limited or excluded.
2. Payment Processing Errors. The Company reserves the right, in its sole discretion, to seek reimbursement from Merchant if the Company discovers payment processing errors. The Company may deduct from Merchant’s Item Revenue, debit Merchant’s payment method on file, or seek reimbursement from Merchant by any other lawful means to correct any errors. Merchant authorizes the Company to use any or all of the above methods to seek reimbursement.

1. Notice. Any notice will be sent to the address of the relevant party listed in the Sign-up form(s)/Order Form and deemed duly given:

(a) upon actual delivery, if delivery is by hand; or (b) three (3) days after being sent by overnight courier, charges prepaid; or (c) by electronic mail to the designated recipient.

SPECIFIC SUPPLEMENTAL TERMS

AGGREGATOR METHOD

The following Specific Supplemental Terms govern the Aggregator Method and Items delivered to Customers on behalf of Merchant by Aggregator Delivery Partners (“Aggregator Items”). All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.

1. Aggregator Items. Upon Merchant agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Aggregator Method, and contingent upon completion of any additional verification steps, the Company Tools will be made available to Merchant for it to (a) access and request lead generation, demand prediction, payment processing and other related services in connection with its sale and delivery of Items; and (b) fulfil the delivery of its Items using Aggregator Delivery Partners. The Company provides lead generation, demand prediction, payment processing and other related services in connection with the sale and delivery by or on behalf of Merchant of Items to be delivered by Aggregator Delivery Partners.

2. Payment.

1. Aggregator Service Fee and Charges. In consideration for the Company Services in connection with the Aggregator Method, GoOut-TAKEOut will charge Merchant an Aggregator Service Fee and charges for the services. GoOut-TAKEOut will calculate the Aggregator Service Fee and charges as follows:

1. GoOut – For a restaurant/ venue registered on GoOut as a ‘Prime Venue’ £1 per day will be charged as the service subscription fee from the start of registration and will be billed once a month.
2. TAKEOut – For a restaurant signed up on TAKEOut for takeaway order services will be charges at 10% commission of each customer’s total order value per order on all orders of a value more than £1. The Company will also charge a transaction fee that covers credit card charges that the Company pays for each transaction they process on behalf of the restaurant’s customer order as a recharge for disbursement.

• For the purpose of Clauses 5. A (i) (1) and (2) there is no requirement for a minimum duration commitment that the restaurant must sign up for to get or join the Company services. The restaurants are free to join on a “stay or go as they desire” basis. However, the restaurants are bound to give a 30 days’ notice to cancel their subscription with us in writing by an email to restaurants@goouttakeout.com and following the end of 30 days from the date of notification/cancellation email, all charges will be stopped thereupon. Any charges received for a period of time after the end of 30 days from the date of notification/cancellation email will be refunded back to the Merchant.

1. Invoicing and Income Payment Terms

1. TAKEOut: For a restaurant signed up on TAKEOut for takeaway orders services, the Company will calculate the income on orders achieved by the Merchant and reconciled against commission charges due to the Company on a weekly basis. The net income due to the Merchants will be paid 7 days after the end of each week. If there is a shortfall in the income received upon reconciliation of income due to the Merchant versus fees due to the Company then the Company may collect their fees due by direct debit or demand that payment to be made by the Merchant to the Company immediately and certainly within 7 days of such demand. The Merchant accepts that he is obliged to pay in the timely manner stated here.
2. GoOut – For restaurant/ venue registered on GoOut, the Company will collect the fees for Company Services provided through GoOut by direct debit. The Company has the right to make deductions from the Merchant through direct debit when their charges arise and become due.
3. This service fee is subject to standard VAT charges and exclusive of any applicable discounts that maybe provided at the sole discretion of the Company. All fees under this agreement will be payable in pound sterling.

1. Aggregator Delivery Services. Merchant will pay Aggregator Delivery Partners for their delivery services provided to Merchant at its sole discretion, and Merchant is at all times solely responsible for providing payment to Aggregator Delivery Partners. If Merchant is paid for an order, Merchant is responsible for the Aggregator Service Fee even if an Aggregator Delivery Partner is unable to complete the delivery. If applicable, Merchant authorizes the Company to collect a delivery charge from Customers on its behalf (the “Aggregator Delivery Charge”).

1. Aggregator Cash Deliveries. The Company may facilitate a delivery option to Customers that allows them to pay for a given Aggregator Item provided by Merchant and all associated fees and charges resulting from that transaction in cash (an “Aggregator Cash Order”). Notwithstanding the appointment of the Company by Merchant as its limited payment collection agent under the Agreement, in the event of an Aggregator Cash Order request by a Customer, Merchant authorizes an Aggregator Delivery Partner to collect the Retail Price of the Aggregator Item(s) sold by Merchant via the Company App  (including any VAT or other sales tax) together with the Aggregator Delivery Charge from the Customer on behalf of Merchant. The Aggregator Delivery Partner shall be notified of the funds to be collected by the Aggregator Delivery Partner (“Aggregator Cash Collections”), exclusive of any gratuities, in the Company App. Merchant acknowledges and agrees that collection shall be the responsibility of the Aggregator Delivery Partner. Merchant acknowledges and agrees that in consideration of the Company’s provision of the Company Services under the Agreement, Merchant owes the Company the respective Aggregator Service Fee, regardless of collections related to any attempted or completed deliveries of the Aggregator Items.  The Company shall not be deemed to have waived its right to any amounts owed by Merchant if: (a) there are insufficient payment card order to set off against; (b) Merchant does not timely repay any amounts owed to the Company; or (c)  The Company elects to require a minimum amount owed prior to initiating collection efforts or otherwise delays collecting amounts owed by Merchant.  The Company reserves the right to suspend Merchant’s account if Merchant maintains a negative balance for more than one (1) week. With each payment statement, the Company shall report any offsetting and deductions.

1. Revenue Transfer. The Company will transfer to Merchant the total (i) Aggregator Item Payment earned by Merchant (other than with respect to Aggregator Cash Orders); (ii) Aggregator Delivery Charge collected from Customers on Merchant’s behalf (other than Aggregator Delivery Charges directly collected by Aggregator Delivery Partners with respect to Aggregator Cash Orders) (iii) gratuity paid by a Customer in respect of delivery services, if applicable, (iv) less (1) the Aggregator Service Fee and (2) any refunds given by the Company on behalf of Merchant to Customers (such final transferred amount being the “Aggregator Item Revenue”). The Aggregator Item Revenue will be transferred on a bi-weekly basis.

1. No Additional Amounts. Merchant acknowledges that the Aggregator Item Payment and, where applicable, the Aggregator Delivery Charge is full payment for the Items and delivery services provided to Customers, although the Company Services may provide Customers with the ability to apply a gratuity through the Company Services. With regard to cash gratuities provided by a Customer directly to an Aggregator Delivery Partner, no portion of that gratuity is owed to or should be paid to the Company.

1. Shortfall in charges: On any occasion, if the Company is unable to collect all fees or charges due by deduction from the total Aggregator Item Payment earned by the Merchant, then on such an occasion the Company has the right to recover such shortfall through GoCardless or other direct debit charging facility from the Merchant.

3. Aggregator Delivery Terms.

1. Provision of Delivery Services. If Merchant chooses for delivery services to be fulfilled by an Aggregator Delivery Partner, Merchant will need to provide the Aggregator Delivery Partner with certain Customer Information provided to Merchant through the Company Tools, including (as applicable) the drop-off location of the applicable Items to be delivered and the name and phone number of the Customer. In order to enhance Customer’s satisfaction with the delivery services, it is recommended that an Aggregator Delivery Partner: (i) follow Merchant’s instructions for drop- off details (e.g., the location within the building address to pick-up/drop-off a package, etc.); and (ii) wait at least ten (10) minutes for the Customer to appear at the requested pick-up or drop-off location. Merchant represents and warrants that it shall not and shall ensure that all Aggregator Delivery Partners do not, contact any Customers or use any of the Customer’s Personal Data collected in the course of providing the delivery services for any reason other than for the purposes of fulfilling delivery services. As between the Company and Merchant, Merchant acknowledges and agrees that: (a) Merchant and Aggregator Delivery Partners shall be solely responsible for determining the most effective, efficient and safe manner to perform each instance of delivery services; and (b) except for the  Company Services and  Company Tools, Merchant shall provide all necessary equipment, tools and other materials, at Merchant’s expense, necessary to perform delivery services.

1. Merchant’s Relationship with Customers. The Company and its Affiliates are not responsible or liable for the actions or inactions of a Customer in relation to the activities of Merchant, Aggregator Delivery Partners or any Transportation Method. Merchant acknowledges and agrees that each Aggregator Delivery Partner shall have the sole responsibility for any obligations or liabilities to Merchant, Customers or other third parties that arise from an Aggregator Delivery Partner’s provision of delivery services. Merchant acknowledges and agrees that: (a) Merchant and each Aggregator Delivery Partner is solely responsible for taking such precautions as may be reasonable and proper (including maintaining adequate insurance that meets the requirements of all Applicable Laws) regarding any acts or omissions of a Customer or other third party; and (b) the Company or its Affiliates may release Merchant’s or Aggregator Delivery Partner’s contact and/or insurance information to a Customer upon such Customer’s reasonable request (e.g., in connection with an accident).

1. Merchant’s Relationship with GoOut-TAKEOut. Merchant acknowledges and agrees that the Company’s provision to Merchant of the Company Services creates a legal and direct business relationship between Merchant and Company. The Company does not, and shall not be deemed to, direct or control Merchant or its Aggregator Delivery Partners generally or in its or their performance under this Agreement specifically, including in connection with the operation of its business, the provision of delivery services, the acts or omissions of Aggregator Delivery Partners, or the operation and maintenance of any Transportation Method. Merchant will not, and will ensure that its Aggregator Delivery Partners do not: (a) display the Company’s or any of its affiliates’ names, logos or colours on any Transportation Method; or (b) wear a uniform or any other clothing displaying the Company’s or any of its affiliates’ names, logos or colours. The foregoing does not apply if Merchant and the Company have agreed otherwise in writing or if so required by law. Merchant acknowledges and agrees that Merchant has complete discretion to operate its independent business and direct its Aggregator Delivery Partners at its own discretion, including the ability to provide services at any time to any third party separate and apart from the delivery services. Merchant understands that it retains the complete right to: (i) provide delivery services to its existing Customers; and (ii) use other software application services in addition to the Company Services.

1. Merchant’s Relationship with Aggregator Delivery Partners. Merchant shall have the sole responsibility for any obligations or liabilities to Aggregator Delivery Partner that arise from its relationship with Aggregator Delivery Partners (including the provision of delivery services). Merchant acknowledges and agrees that it exercises sole control over the Aggregator Delivery Partners and will comply with (a) all Applicable Laws (including tax, social security and employment laws where applicable) governing or otherwise applicable to its relationship with Aggregator Delivery Partners; (b) industry best practice in respect of working conditions and compensation for Aggregator Delivery Partners. Notwithstanding Merchant’s rights, if applicable, to take recourse against Aggregator Delivery Partners, Merchant acknowledges and agrees that it is at all times responsible and liable for the acts and omissions of Aggregator Delivery Partners vis-à-vis Customers, the Company and its Affiliates, even where such liability may not be mandated under Applicable Law. Merchant hereby indemnifies the Company against any claims brought by or against Aggregator Delivery Partners.

1. Modern Slavery Prohibition. Merchant shall not engage in any practice which would violate any national or international law regarding slavery or human trafficking. Furthermore, Merchant shall notify the Company as soon as it becomes aware of any actual or suspected slavery or human trafficking in a supply chain that has a connection with the Agreement.

4. Aggregator Delivery Partners and Transportation Methods.

1. Aggregator Delivery Partner’s Requirements. Merchant acknowledges and agrees that each Aggregator Delivery Partner shall at all times: (i) hold and maintain (a) a valid applicable licence with the appropriate level of certification to operate the Transportation Method assigned to each Aggregator Delivery Partner (e.g., a driver’s licence if the Transportation Method is a motor vehicle), and (b) all licenses, permits, approvals and authority applicable to Merchant and/or Aggregator Delivery Partner that are necessary to provide delivery services to third parties in the Territory; (ii) provide the delivery services in a professional manner with due skill, care and diligence; and (iii) maintain high standards of professionalism, service and courtesy. Merchant will undertake background and driving record checks from time to time, to the extent that such checks would be undertaken by a prudent Merchant exercising reasonable skill and care. Merchant acknowledges and agrees that the Company reserves the right, at any time in the Company’s sole discretion, to (i) deactivate or otherwise restrict Merchant from accessing or using the Company Services and/or  Company Tools, and/or (ii) request that Merchant prevent an Aggregator Delivery Partner from providing delivery services on behalf of Merchant in connection with the  Company Services, in each case if Merchant and/or an Aggregator Delivery Partner fails to meet the requirements set forth in this Agreement. In the event that the Company requests that Merchant prevents an Aggregator Delivery Partner from providing delivery services on behalf of Merchant in connection with the Company Services, Merchant shall procure compliance with such request.

1. Transportation Method Requirements. Merchant acknowledges and agrees that any Transportation Method will at all times be: (i) properly registered and licensed to operate as a delivery vehicle in the Territory (if the Transportation Method is a vehicle); (ii) owned or leased by Merchant or Aggregate Delivery Partner, or otherwise in its lawful possession; (iii) suitable for performing the delivery services contemplated by this Agreement; and (iv) maintained in good operating condition, consistent with industry safety and maintenance standards for a Transportation Method of its kind and any additional standards or requirements in the applicable Territory, and in a clean and sanitary condition.
2. Taxes. Merchant acknowledges and agrees that Merchant is required to: (i) complete all tax registration obligations and calculate and remit all tax liabilities related to the provision of delivery services and receipt of the Company Services as required by Applicable Law; and (ii) provide the Company with all relevant tax information (including a valid VAT number belonging to Merchant and/or any Aggregator Delivery Partner, if obtaining a VAT number is required of Merchant and/or any Aggregator Delivery Partner by Applicable Law). Merchant further acknowledges and agrees that Merchant and each of its Aggregator Delivery Partners are responsible for taxes on their own income arising from the performance of delivery services. Notwithstanding anything to the contrary in this Agreement,  the Company may in its reasonable discretion, and Merchant accordingly gives consent to  the Company and its affiliates to, based on applicable tax and regulatory considerations, collect and remit taxes resulting from the provision of delivery services and/or provide any of the relevant tax information Merchant and/or any Aggregator Delivery Partner has provided pursuant to the requirement mentioned above, directly to the applicable governmental tax authorities on Merchant’s and/or the applicable Aggregator Delivery Partner’s behalf or otherwise.

5. Privacy.

1. Personal Data. In respect of any Personal Data transferred by the Company to Merchant, the parties agree that they shall enter into the Data Processing Agreement (controller to controller) in substantially the form attached at Addendum A. Merchant agrees to retain Personal Data provided to Merchant by the Company solely by using the software and tools provided by the Company, except that Merchant may provide Aggregator Delivery Partners with the Personal Data specified in the Data Processing Agreement between the parties (or any other Personal Data as  the Company deems required in its sole discretion) to be used by an Aggregator Delivery Partner solely for the purpose of delivering the applicable Item(s). To the extent that any Personal Data is printed or written on a receipt and transferred to the Aggregator Delivery Partner, Merchant shall procure that (i) the Aggregator Delivery Partner transfers such receipt to the Customer on delivery of the Item(s); or (ii), if the delivery services cannot be completed, the Aggregator Delivery Partner returns such receipt to Merchant and Merchant disposes of such receipt.

1. Disclosure of Merchant and Aggregator Delivery Partners’ Confidential Information. Subject to Applicable Law, the Company and its Affiliates may provide to Merchant, a Customer, an insurance company and/or relevant authorities and/or regulatory agencies any information (including Personal Data and Confidential Information) about Merchant or an Aggregator Delivery Partner or any delivery services provided hereunder if: (i) there is a complaint, dispute or conflict, including an accident, between an Aggregator Delivery Partner and Merchant or an Aggregator Delivery Partner and a Customer; (ii) it is necessary to enforce the terms of this Agreement; (iii) it is required, in the Company’s or any Affiliate’s sole discretion, by Applicable Law or regulatory requirements (e.g., the Company or its Affiliates receive a subpoena, warrant, or other legal process for information); or (iv) it is necessary, in the Company’s or any Affiliate’s sole discretion, to (a) protect the safety, rights, property or security of  the Company or its Affiliates, the  Company Services, the  Company Tools, Company App or any third party; (b) to protect the safety of the public for any reason including the facilitation of insurance claims related to the  Company Services; (c) to detect, prevent or otherwise address fraud, security or technical issues; (d) to prevent or stop activity which  the Company or any of its Affiliates, in their sole discretion, may consider to be, or to pose a risk of being, an illegal, unethical, or legally actionable activity; or (v) it is required or necessary, in Company’s or any Affiliate’s sole discretion, for insurance or other purposes related to Merchant and/or its Aggregator Delivery Partners. Merchant understands, and will make Aggregator Delivery Partners aware, that the Company and its Affiliates may retain Merchant and Aggregator Delivery Partners’ Personal Data for legal, regulatory, safety and other necessary purposes after this Agreement is terminated
2. Collection of Personal Data by the Company. The Company and its Affiliates may collect Merchant or Aggregator Delivery Partners’ Personal Data during the course of Merchant’s use of the Company Services, or from third parties. Such information may be processed by the Company and its Affiliates, third parties and service providers, in accordance with its privacy policy. (LINK)

6. Insurance.

1. Prior to the Effective Date of the Agreement, Merchant must obtain the coverage required at its sole cost and expense. Merchant agrees to review the terms and conditions of such coverage to ensure that it provides the amounts of coverage required while Merchant and its Aggregator Delivery Partners are using a vehicle to provide delivery services. As between Merchant and the Company, it is Merchant’s sole responsibility to inform its insurer of the use of its vehicles while providing delivery services.

1. Merchant agrees to maintain during the Term all compulsory insurance required by Applicable Law to provide delivery services in the Territory. This shall include any applicable compulsory motor vehicle liability insurance on all vehicles operated by Merchant and Aggregator Delivery Partners under this Agreement which provides protection against bodily injury and property damage to Merchant and/or Aggregator Delivery Partners, and third parties at levels of coverage that satisfy the minimum requirements to operate a motor vehicle being used for delivery services on the public roads within the Territory. This shall also include Commercial General Liability insurance that provides protection against personal injury, advertising injury and property damage to third parties at levels of coverage required by all Applicable Laws in the Territory. Merchant shall add the Company (or any Affiliate which may be designated by the Company from time to time) to its insurance policies required as an additional insured. Merchant agrees to provide the Company a copy of the insurance policy, policy declarations, certificate of Motor Vehicle Liability insurance and proof of premium payment for the insurance policy required upon request. Furthermore, such insurance as required shall not be cancelled or materially reduced without thirty (30) days’ prior written notice to the Company. The Company shall have no right to control Merchant’s selection or maintenance of its policy. Merchant must be a named insured or individually rated driver, for which a premium is charged, on any insurance policy required at all times.

1. Merchant agrees to maintain, during the term of this Agreement, Employer’s Liability insurance where required by local law in the Territory. Merchant may also choose where permitted by local law to insure itself against industrial injuries by maintaining Occupational Accident insurance in place of Employer’s Liability insurance. Furthermore, if permitted by Applicable Law, Merchant’s subcontractors may also, to the extent permitted by Applicable Law, maintain occupational accident insurance in place of Employer’s Liability insurance.

7. Representations and Warranties; Disclaimers. Merchant’s representation and warranty to comply with all Applicable Laws in the performance of the Agreement (as per clause III(A) of the Order Form) shall include holding and complying with all permits, licenses, registrations and other governmental authorizations necessary to provide (i) delivery services using the Transportation Method pursuant to this Agreement, and (ii) delivery services to third parties in the Territory generally.

8. Tax Indemnity. Merchant shall comply with all of its obligations under tax and social security laws to the extent applicable to this Agreement. Merchant shall indemnify the Company and its Affiliates from all tax liabilities, duties, levies, claims and penalties that may be imposed on Merchant or on the Company and/or its affiliates as a result of Merchant’s failure to comply with any of its tax obligations. In particular, but without limitation to the foregoing, such taxes or duties shall include taxes, wages or other duties or withholdings (including any wage tax, social insurance premiums or employee insurance premiums) arising in the event that the relationship described in this Agreement, contrary to the intention and meaning of the parties, should be held to be an employment agreement between the Company and Merchant by any fiscal or social security authority.

9. Relationship of the Parties.

1. Merchant has no authority to bind the Company and/or its Affiliates and Merchant undertakes not to hold itself out, and to ensure that each Aggregator Delivery Partner does not hold herself or himself out, as an employee, worker, agent or authorized representative of the Company and/or its Affiliates. Where, by implication of mandatory law or otherwise, Merchant or any Aggregator Delivery Partner may be deemed an employee, worker, agent or representative of the Company or an Affiliate of the Company, Merchant undertakes and agrees to indemnify, defend (at the Company’s option) and hold  the Company and its affiliates harmless from and against any claims by any person, entity, regulators or governmental authorities based on such implied employment, agency or representative relationship.
2. Merchant expressly acknowledges and agrees that by agreeing to this Agreement, Merchant intends to perform delivery services in a non-incidental manner and, as such, the Company will consider Merchant and Aggregator Delivery Partners to be taxable persons in accordance with all applicable VAT and indirect tax legislation.

ADDENDUM A – DATA PRIVACY TERMS

Commission Decision C (2004) 5721 SET II

Standard contractual clauses for the transfer of personal data from the Community to third countries (controller to controller transfers)

Data transfer agreement between

• Innovative Technological Systems Limited trading as GoOut-TAKEOut (also known as GoOut UK and TAKEOut UK), registered office at Unit 11, Churchill Court, 58 Station Road, Harrow, London, HA2 7SA. (‘Company’)

And

• Merchant, identified within the Agreement, as accepting these Clauses (the “data importer”), each a “party”; together the “parties”.

The parties have agreed on the following Standard Contractual Clauses (the “clauses”) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Annex A.

The clauses (including Annex A and B) are effective from the date the data importer entity has clicked to accept these clauses. If you are accepting on behalf of the data importer, you represent and warrant that: (i) you have full legal authority to bind your employer, or the applicable entity, to these terms and conditions; (ii) you have read and understand the clauses; and (iii) you agree, on behalf of the party that you represent, to the clauses. The parties agree that where data importer has been presented with these clauses and clicked to accept these terms electronically, such acceptance shall constitute execution of the entirety of the clauses by both parties, subject to the effective date described above.

Definitions

For the purposes of the clauses:

1. “personal data”, “special categories of data/sensitive data”, “process/processing”, “controller”, “processor”, “data subject” and “supervisory authority/authority” shall have the same meaning as in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (whereby “the authority” shall mean the competent data protection authority in the territory in which the data exporter is established);
2. “the data exporter” shall mean the controller who transfers the personal data;
3. “the data importer” shall mean the controller who agrees to receive from the data exporter personal data for further processing in accordance with the terms of these clauses and who is not subject to a third country’s system ensuring adequate protection;
4. “clauses” shall mean these contractual clauses, which are a free-standing document that does not incorporate commercial business terms established by the parties under separate commercial arrangements.

The details of the transfer (as well as the personal data covered) are specified in Annex B, which forms an integral part of the clauses.

I. Obligations of the data exporter

The data exporter warrants and undertakes that:

1. The personal data have been collected, processed and transferred in accordance with the laws applicable to the data exporter.
2. It has used reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses.
3. It will provide the data importer, when so requested, with copies of relevant data protection laws or references to them (where relevant, and not including legal advice) of the country in which the data exporter is established.
4. It will respond to enquiries from data subjects and the authority concerning processing of the personal data by the data importer, unless the parties have agreed that the data importer will so respond, in which case the data exporter will still respond to the extent reasonably possible and with the information reasonably available to it if the data importer is unwilling or unable to respond. Responses will be made within a reasonable time.
5. It will make available, upon request, a copy of the clauses to data subjects who are third party beneficiaries under clause III, unless the clauses contain confidential information, in which case it may remove such information. Where information is removed, the data exporter shall inform data subjects in writing of the reason for removal and of their right to draw the removal to the attention of the authority. However, the data exporter shall abide by a decision of the authority regarding access to the full text of the clauses by data subjects, as long as data subjects have agreed to respect the confidentiality of the confidential information removed. The data exporter shall also provide a copy of the clauses to the authority where required.

II. Obligations of the data importer

The data importer warrants and undertakes that:

1. It will have in place appropriate technical and organizational measures to protect the personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, and which provide a level of security appropriate to the risk represented by the processing and the nature of the data to be protected.
2. It will have in place procedures so that any third party it authorizes to have access to the personal data, including processors, will respect and maintain the confidentiality and security of the personal data. Any person acting under the authority of the data importer, including a data processor, shall be obligated to process the personal data only on instructions from the data importer. This provision does not apply to persons authorized or required by law or regulation to have access to the personal data.
3. It has no reason to believe, at the time of entering into these clauses, in the existence of any local laws that would have a substantial adverse effect on the guarantees provided for under these clauses, and it will inform the data exporter (which will pass such notification on to the authority where required) if it becomes aware of any such laws.
4. It will process the personal data for purposes described in Annex B and has the legal authority to give the warranties and fulfil the undertakings set out in these clauses.
5. It will identify to the data exporter a contact point within its organisation authorised to respond to enquiries concerning processing of the personal data and will cooperate in good faith with the data exporter, the data subject and the authority concerning all such enquiries within a reasonable time. In case of legal dissolution of the data exporter, or if the parties have so agreed, the data importer will assume responsibility for compliance with the provisions of clause I(e).
6. At the request of the data exporter, it will provide the data exporter with evidence of financial resources sufficient to fulfil its responsibilities under clause III (which may include insurance coverage).
7. Upon reasonable request of the data exporter, it will submit its data processing facilities, data files and documentation needed for processing to reviewing, auditing and/or certifying by the data exporter (or any independent or impartial inspection agents or auditors, selected by the data exporter and not reasonably objected to by the data importer) to ascertain compliance with the warranties and undertakings in these clauses, with reasonable notice and during regular business hours. The request will be subject to any necessary consent or approval from a regulatory or supervisory authority within the country of the data importer, which consent or approval the data importer will attempt to obtain in a timely fashion.
8. It will process the personal data, at its option, in accordance with:

1. the data protection laws of the country in which the data exporter is established, or
2. the relevant provisions of any Commission decision pursuant to Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), where the data importer complies with the relevant provisions of such an authorization or decision and is based in a country to which such an authorization or decision pertains, but is not covered by such authorization or decision for the purposes of the transfer(s) of the personal data, or

• the data processing principles set forth in Annex A.

• Data importer to indicate which option it selects: the data processing principles set forth in Annex A

1. Data importer accepts by virtue of accepting these clauses.
2. It will not disclose or transfer the personal data to a third-party data controller located outside the European Economic Area (EEA) unless it notifies the data exporter about the transfer and

• the third-party data controller processes the personal data in accordance with a Commission decision finding that a third country provides adequate protection, or

1. the third-party data controller becomes a signatory to these clauses, or another data transfer agreement approved by a competent authority in the EU, or
2. data subjects have been given the opportunity to object, after having been informed of the purposes of the transfer, the categories of recipients and the fact that the countries to which data is exported may have different data protection standards, or
3. with regard to onward transfers of sensitive data, data subjects have given their unambiguous consent to the onward transfer.

III. Liability and third-party rights

1. Each party shall be liable to the other parties for damages it causes by any breach of these clauses. Liability as between the parties is limited to actual damage suffered. Punitive damages (i.e. damages intended to punish a party for its outrageous conduct) are specifically excluded. Each party shall be liable to data subjects for damages it causes by any breach of third-party rights under these clauses. This does not affect the liability of the data exporter under its data protection law.
2. The parties agree that a data subject shall have the right to enforce as a third party beneficiary this clause and clauses I(B), I(D), I(E), II(A), II(C), II(D), II(E), II(H), II(I), III(A), V, VI(D) and VII against the data importer or the data exporter, for their respective breach of their contractual obligations, with regard to his personal data, and accept jurisdiction for this purpose in the data exporter’s country of establishment. In cases involving allegations of breach by the data importer, the data subject must first request the data exporter to take appropriate action to enforce his rights against the data importer; if the data exporter does not take such action within a reasonable period (which under normal circumstances would be one month), the data subject may then enforce his rights against the data importer directly. A data subject is entitled to proceed directly against a data exporter that has failed to use reasonable efforts to determine that the data importer is able to satisfy its legal obligations under these clauses (the data exporter shall have the burden to prove that it took reasonable efforts).

IV. Law applicable to the clauses

These clauses shall be governed by the law of the country in which the data exporter is established, with the exception of the laws and regulations relating to processing of the personal data by the data importer under clause II(H), which shall apply only if so selected by the data importer under that clause.

V. Resolution of disputes with data subjects or the authority

A. In the event of a dispute or claim brought by a data subject or the authority concerning the processing of the personal data against either or both of the parties, the parties will inform each other about any such disputes or claims, and will cooperate with a view to settling them amicably in a timely fashion.

B. The parties agree to respond to any generally available non-binding mediation procedure initiated by a data subject or by the authority. If they do participate in the proceedings, the parties may elect to do so remotely (such as by telephone or other electronic means). The parties also agree to consider participating in any other arbitration, mediation or other dispute resolution proceedings developed for data protection disputes.

C. Each party shall abide by a decision of a competent court of the data exporter’s country of establishment or of the authority which is final and against which no further appeal is possible.

VI. Termination

1. In the event that the data importer is in breach of its obligations under these clauses, then the data exporter may temporarily suspend the transfer of personal data to the data importer until the breach is repaired or the contract is terminated.
2. In the event that:

1. the transfer of personal data to the data importer has been temporarily suspended by the data exporter for longer than one month pursuant to paragraph (A);
2. compliance by the data importer with these clauses would put it in breach of its legal or regulatory obligations in the country of import;

• the data importer is in substantial or persistent breach of any warranties or undertakings given by it under these clauses;

1. a final decision against which no further appeal is possible of a competent court of the data exporter’s country of establishment or of the authority rules that there has been a breach of the clauses by the data importer or the data exporter; or
2. a petition is presented for the administration or winding up of the data importer, whether in its personal or business capacity, which petition is not dismissed within the applicable period for such dismissal under applicable law; a winding up order is made; a receiver is appointed over any of its assets; a trustee in bankruptcy is appointed, if the data importer is an individual; a company voluntary arrangement is commenced by it; or any equivalent event in any jurisdiction occur; then the data exporter, without prejudice to any other rights which it may have against the data importer, shall be entitled to terminate these clauses, in which case the authority shall be informed where required. In cases covered by (i), (ii), or (iv) above the data importer may also terminate these clauses.

1. Either party may terminate these clauses if (i) any Commission positive adequacy decision under Article 25(6) of Directive 95/46/EC (or any superseding text) is issued in relation to the country (or a sector thereof) to which the data is transferred and processed by the data importer, or (ii) Directive 95/46/EC (or any superseding text) becomes directly applicable in such country.
2. The parties agree that the termination of these clauses at any time, in any circumstances and for whatever reason (except for termination under clause VI(c)) does not exempt them from the obligations and/or conditions under the clauses as regards the processing of the personal data transferred.

VII. Variation of these clauses

The parties may not modify these clauses except to update any information in Annex B, in which case they will inform the authority where required. This does not preclude the parties from adding additional commercial clauses where required.

VIII. Description of the Transfer

The details of the transfer and of the personal data are specified in Annex B. The parties agree that Annex B may contain confidential business information which they will not disclose to third parties, except as required by law or in response to a competent regulatory or government agency, or as required under clause I(E). The parties may execute additional annexes to cover additional transfers, which will be submitted to the authority where required. Annex B may, in the alternative, be drafted to cover multiple transfers.

AGGREGATOR METHOD – DATA PRIVACY TERMS – ANNEX A DATA PROCESSING PRINCIPLES

1. Purpose limitation: Personal data may be processed and subsequently used or further communicated only for purposes described in Annex B or subsequently authorised by the data subject.
2. Data quality and proportionality: Personal data must be accurate and, where necessary, kept up to date. The personal data must be adequate, relevant and not excessive in relation to the purposes for which they are transferred and further processed.
3. Transparency: Data subjects must be provided with information necessary to ensure fair processing (such as information about the purposes of processing and about the transfer), unless such information has already been given by the data exporter.
4. Security and confidentiality: Technical and organisational security measures must be taken by the data controller that are appropriate to the risks, such as against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, presented by the processing. Any person acting under the authority of the data controller, including a processor, must not process the data except on instructions from the data controller.
5. Rights of access, rectification, deletion and objection: As provided in Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation), data subjects must, whether directly or via a third party, be provided with the personal information about them that an organisation holds, except for requests which are manifestly abusive, based on unreasonable intervals or their number or repetitive or systematic nature, or for which access need not be granted under the law of the country of the data exporter. Provided that the authority has given its prior approval, access need also not be granted when doing so would be likely to seriously harm the interests of the data importer or other organisations dealing with the data importer and such interests are not overridden by the interests for fundamental rights and freedoms of the data subject. The sources of the personal data need not be identified when this is not possible by reasonable efforts, or where the rights of persons other than the individual would be violated. Data subjects must be able to have the personal information about them rectified, amended, or deleted where it is inaccurate or processed against these principles. If there are compelling grounds to doubt the legitimacy of the request, the organisation may require further justifications before proceeding to rectification, amendment or deletion. Notification of any rectification, amendment or deletion to third parties to whom the data have been disclosed need not be made when this involves a disproportionate effort. A data subject must also be able to object to the processing of the personal data relating to him if there are compelling legitimate grounds relating to his particular situation. The burden of proof for any refusal rests on the data importer, and the data subject may always challenge a refusal before the authority.
6. Sensitive data: The data importer shall take such additional measures (e.g. relating to security) as are necessary to protect such sensitive data in accordance with its obligations under clause II.
7. Data used for marketing purposes: Where data are processed for the purposes of direct marketing, effective procedures should exist allowing the data subject at any time to “opt-out” from having his data used for such purposes.
8. Automated decisions: For purposes hereof “automated decision” shall mean a decision by the data exporter or the data importer which produces legal effects concerning a data subject or significantly affects a data subject and which is based solely on automated processing of personal data intended to evaluate certain personal aspects relating to him, such as his performance at work, creditworthiness, reliability, conduct, etc. The data importer shall not make any automated decisions concerning data subjects, except when:
9. such decisions are made by the data importer in entering into or performing a contract with the data subject, and
10. the data subject is given an opportunity to discuss the results of a relevant automated decision with a representative of the parties making such decision or otherwise to make representations to that parties, or where otherwise provided by the law of the data exporter.

AGGREGATOR METHOD – DATA PRIVACY TERMS – ANNEX B

DESCRIPTION OF THE TRANSFER

Data subjects

The personal data transferred concern the following categories of data subjects:

Purposes of the transfer(s)

The transfer is made for the following purposes:

Data Importer (Merchant) shall process Data Exporter Personal Data, which shall include (i) name, drop-off location and contact details (including phone number) of the Customers using the  Company App; (ii) any Controller Personal Data to be transferred in accordance with the Specific Supplemental Terms for the Aggregator Method; and (iii) any such Controller Personal Data as  the Company deems needed in connection with the delivery services, in each case for the purpose of procuring the delivery of Items to their customers or as otherwise set out in the Agreement.

Categories of data

The personal data transferred concern the following categories of data:

Recipients

The personal data transferred may be disclosed only to the following recipients or categories of recipients: Delivery Partners for the limited specific purpose of providing delivery services

Sensitive data (if appropriate)

The personal data transferred concern the following categories of sensitive data:

NON-DELIVERY

The following Specific Supplemental Terms govern the Non-Delivery Method and Items provided to Customers via the Non- Delivery Method (“Non-Delivery Items”). All undefined, capitalized terms will have the meaning set forth in the Order Form, the Definitions or the General Supplemental Terms.

1. Non-Delivery Items. Upon Merchant agreeing to the Order Form, the Definitions, the General Supplemental Terms and the Specific Supplemental Terms governing the Non-Delivery Method, and contingent upon completion of any additional verification steps, the Company Tools will be made available to Merchant for it to allow Customers to collect Items requested via the Company App from a specified location without the involvement of a Delivery Partner. Merchant agrees to make Items available via the Company App during its normal business hours, and as further set forth in this clause or mutually agreed between the parties in writing.

2. Payment.

A. Non-Delivery Service Fee. In consideration for the Company Services in connection with the Non-Delivery Method, the Company will charge Merchant a Non-Delivery Service Fee (together with the Damage Fee, and any other applicable fees charged by the Company to Merchant, the “Fees”) for each Non- Delivery Item sold by Merchant via the Company App.  GoOut-TAKEOut will calculate the Non-Delivery Service Fee as follows:  

1. GoOut – For a restaurant/ venue registered on GoOut as a ‘Prime Venue’ £1 per day will be charged as the service subscription fee from the start of registration and will be billed once a month.
2. TAKEOut – For a restaurant signed up on TAKEOut for takeaway order services will be charges at 10% commission of each customer’s total order value per order on all orders of a value more than £1. The Company will also charge a transaction fee that covers credit card charges that the Company pays for each transaction they process on behalf of the restaurant’s customer order as a recharge for disbursement.
3. For the purpose of Clauses 5. A (i) (1) and (2) there is no requirement for a minimum duration commitment that the restaurant must sign up for to get or join the Company services. The restaurants are free to join on “stay or go as they desire” basis. However, the restaurants are bound to give a 30 days’ notice to cancel their subscription with us in writing by an email to restaurants@goouttakeout.com and following the end of 30 days from the date of notification/cancellation email, all charges will be stopped thereupon. Any charges received for a period of time after the end of 30 days from the date of notification/cancellation email will be refunded back to the Merchant.
4. Invoicing and Income Payment Terms:
5. TAKEOut: For a restaurant signed up on TAKEOut for takeaway orders services, the Company will calculate the income on orders achieved by the Merchant and reconciled against commission charges due to the Company on a weekly basis. The net income due to the Merchants will be paid 7 days after the end of each week. If there is a shortfall in the income received upon reconciliation of income due to the Merchant versus fees due to the Company then the Company may collect their fees due by direct debit or demand that payment to be made by the Merchant to the Company immediately and certainly within 7 days of such demand. The Merchant accepts that he is obliged to pay in the timely manner stated here.
6. GoOut – For restaurant/ venue registered on GoOut, the Company will collect the fees for Company Services provided through GoOut by direct debit. The Company has the right to make deductions from the Merchant through direct debit when their charges arise and become due.

• All income and service fee payable under the terms mentioned herewith are subject to standard VAT charges and exclusive of any applicable discounts that maybe provided at the sole discretion of the Company. All fees under this agreement will be payable in pound sterling.

B. Delivery Services. Non-Delivery Items do not require the involvement of a Delivery Partner. As such, for Non-Delivery Items, no delivery services are provided, so there is no Delivery Fee or Delivery Charge.