The Vendor’s attention is drawn in particular to the “Limitation of Liability” Clause
These Conditions are entered into between:
1. CLAS Technology Limited,
Registered Number 11557863, (the “Supplier”,
“HOPT”) whose registered office is at 14 Ratton Road, Eastbourne, United
Kingdom, BN21 2LS
AND
2. You (the “Vendor”)
PURPOSE
These Conditions govern the provision of the HOPT app (the “App”) provided as software by the Supplier to the Vendor.
1. Interpretation
1.1 Definitions. In these Conditions, the following definitions apply:
Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.
Charges: the Payment Plan payable by the Vendor for the supply of the Services in accordance with “Charges and Payment” clause below.
Conditions: the terms and conditions set out in this document as amended from time to time in accordance with the Conditions.
Contract: the agreement / contract between the Supplier and the Vendor for the supply of Services in accordance with these Conditions.
Customers: individuals using the facilities of the Vendor, for example bar customers.
Deliverables: the deliverables set out in the Order produced by the Supplier for the Vendor.
Delivery Requests :requests made by Customers to have Vendor produce, such as food or drink, delivered to them.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: the Vendor’s order for Services, as set out on a purchase order form, written or electronic acceptance of the Supplier’s price, estimate or quotation, or otherwise, as the case may be.
Payment Plan: the ongoing fee paid by the Vendor for use of HOPT.
Payment Processing Fees: the fees charged by HOPT’s payment processing provider, Stripe.
Services: the provision of the App whereby Customers can order food, drinks or other items through the App to highly specific locations, supplied by the Supplier to the Vendor in accordance with the Order.
Supplier: CLAS Technology Limited (Registered in England and Wales with company number 11557863 and registered office at 14 Ratton Road, Eastbourne, United Kingdom, BN21 2LS).
Training: the Supplier’s training of the Vendor, both initially at setup of HOPT, and on an ongoing basis as any questions of issues with use of HOPT arise.
Transaction: a successfully completed Delivery Request.
Vendor: the person or firm who purchases Services from the Supplier.
1.2 Construction. In these Conditions, the following rules apply:
(a) a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
(b) a reference to a party includes its personal representatives, successors or permitted assigns;
(c) a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
(d) any obligation on a party not to do something includes an obligation not to allow that thing to be done;
(e) any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms; and
(f) a reference to writing or written includes faxes and e-mails.
2. Basis of contract
2.1 The Contract shall come into existence when these Conditions are accepted by the Vendor during the registration process. (Commencement Date).
2.2 The Contract constitutes the entire agreement between the parties. The Vendor acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of the Supplier which is not set out in the Contract.
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier’s catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 These Conditions apply to the Contract to the exclusion of any other terms that the Vendor seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 14 Business Days from its date of issue.
3. Supply of Services
3.1 According to these Conditions, the Supplier will provide the Vendor with access to the App.
3.2 The Supplier shall supply the Services to the Vendor in accordance with the Order in all material respects.
3.3 The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.
3.4 The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Vendor in any such event.
4. Vendor’s obligations
4.1 The Vendor shall:
(a) ensure that the terms of the Order and any information it provides in the Order are complete and accurate;
(b) co-operate with the Supplier in all matters relating to the Services;
(c) provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Vendor’s premises, office accommodation and other facilities as reasonably required by the Supplier in order to supply the Services or provide the Training;
(d) provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is accurate in all material respects;
(e) obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to start.
4.2 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Vendor or failure by the Vendor to perform any relevant obligation (Vendor Default):
(a) the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Vendor remedies the Vendor Default, and to rely on the Vendor Default to relieve it from the performance of any of its obligations to the extent the Vendor Default prevents or delays the Supplier’s performance of any of its obligations;
(b)the Supplier shall not be liable for any costs or losses sustained or incurred by the Vendor arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause; and
(c) the Vendor shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Vendor Default.
5. Use of the App
5.1 The Services can be used through through the App. To use it through the App requires a compatible EPOSNOW till. It is for the Vendor to ensure the actual EPOSNOW till used is compatible.
5.2 When creating an account with HOPT, the Vendor acknowledges and agrees to the following rules:
(a) The information provided must be accurate and it is strictly forbidden to use false information or impersonate another person or company through a Vendor account and doing so is a breach of these Conditions.
(b) Each Vendor is responsible for their own account and the activity on it.
(c) All passwords and any devices used to access the account must be kept secure. The Vendor must not jailbreak or root the device as doing so could make the device vulnerable to malware, viruses or malicious programmes, compromise the device’s security features and may affect the functionality of the Services. The Supplier bears no responsibility for a failure to adhere to these recommended safety provisions.
6. Food and Alcohol
6.1 Pursuant to the Licensing Act 1964, it is an offence for any person under the age of 18 to buy, or attempt to buy, intoxicating liquor, or for any person over the age of 18 to buy intoxicating liquor on behalf of any person under the age of 18. It is the Vendor’s responsibility to ensure Customers are of legal age when purchasing alcohol and to ensure that all health and safety provisions are followed and adhered to when providing food, drink or cigarettes. The Supplier can never be responsible for a failure in this regard nor for any loss or damage whatsoever or howsoever arising from or related to such a failure.
6.2 It is the Vendor’s responsibility to ensure that they have the correct licenses to serve and sell food, alcohol and/or any other items published on their menus or sold through the App. The Supplier is in no way responsible for ensuring the Vendor has these licenses or that the licenses are up-to-date, and cannot be held liable for any loss or damage arising from a failure to have correct and up-to-date licenses.
6.3 It is the Vendor’s responsibility to accurately publish item descriptions, prices, heat and allergy warnings and any other health or safety information (“Menu Information”) on the menus they publish on the App, and to ensure that this Menu Information is up-to-date. The Supplier is not responsible for the accuracy or completeness of any Menu Information, nor for any loss or damage related to or arising from the Menu Information.
7. Training
7.1 Initial Training may involve one or more representatives of HOPT coming to the Vendor, or to a location agreed in advance, to provide instruction on how to use the App. Training may also be conducted over a video link if agreed in advance.
7.2 If, after the initial Training session, Vendors request further training, the Supplier reserves the right to charge an additional fee, agreed in advance, to carry out this request.
7.3 Training fees may be subject to expenses, as outlined in clause 8.
8. Charges and payment
8.1 There is one payment plan of a set percentage for every Transaction that you receive through the App. This percentage will be agreed upon during the negotiations between the Suppler and the Vendor prior to the App going live at the Vendor’s premises.
8.2 Note there may be instances where the percentage due to the Supplier is less than the amount due to Stripe for their processing fees. In this instance the Supplier will take an additional amount, over the agreed percentage, from the transaction which will be the balance between the percentage due to be received and the fees due to Stripe. Regardless of the agreed upon percentage it will be the Vendor’s responsibility to cover all Stripe fees.
8.3 These Charges shall be set out in the Order in advance.
8.4 These Charges are subject to change from time to time. In the event that there is an upcoming change in Charges, including the withdrawal or amendment of a Payment Plan, the Vendor shall be notified 2 weeks in advance. The Vendor accepts that, without clear and unequivocal notice in writing to the contrary, the new Charges will begin to apply to his account 2 weeks after the notification.
8.5 Charges are taken when a Customer pays for an item through the App.
8.6 The Supplier shall be entitled to charge the Vendor for any expenses reasonably incurred by them in connection with the Services or Training, which may include, but is not limited to travelling expenses, hotel costs, subsistence and any associated expenses. Where possible, this will be communicated in advance, but the Vendor acknowledges and accepts that this will not always be possible.
8.7 If the Vendor fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Vendor shall pay interest on the overdue amount at the rate of 5% (per cent) per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment.
8.8 The Supplier reserves the right to charge interest and compensation on any overdue amount at the rate specified in the Late Payment of Commercial Debts (Interest) Act 1998 from the date payment is due.
8.9 The Vendor shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Supplier may at any time, without limiting its other rights or remedies, set off any amount owing to it by the Vendor against any amount payable by the Supplier to the Vendor.
8.10 The Supplier reserves the right to charge a monthly minimum subscription to the Vendor where it feels sufficient transactional has not been achieved and where the Vendor wants to continue using the App. In all instances the Supplier will give at least 4 weeks notices prior to charging any monthly minimum subscription.
9. Payment Processing
9.1 The Supplier uses a payment processing provider for payments, currently Stripe. Stripe handle all transfers of money through the App and are responsible entirely for this transaction. The Supplier is not responsible or liable for any delays, hindrances or mistakes relating to this transfer of money, or for any loss or damage caused to the Vendor as a result of such a delay or error, including indirect or consequential loss.
9.2 Alongside the Charges outlined in clause 5 above, there are additional Payment Processing Fees to be accrued by the Vendor associated with the use of Stripe for payment processing. Stripe has full discretion over these fees. The Payment Processing Fees indicated on the Supplier’s Website or on the App itself are for illustration purposes only: they may not be accurate and, at any rate, assume that the Guest will be using a European payment card. There are different, higher fees associated with non-European cards. The full details of Stripe’s fees can be found on the Stripe website. The Vendor acknowledges and accepts these fees and in no way holds the Supplier liable for payment of them.
9.3 Payment Processing Fees are taken when a Customer purchases items through the App and they go to Stripe directly.
10. Intellectual property rights
10.1 All Intellectual Property Rights in or arising out of or in connection with the Services, especially the Supplier’s trademarks, logos, taglines, trade names, copyrighted material, patents, trade secrets or confidential information, shall be owned by the Supplier. Nothing in these Conditions conveys any right or interest, including an assignment or waiver, in our Intellectual Property Rights under any law whatsoever.
10.2 The Supplier grants the Vendor, upon purchasing the Services, a non-exclusive, non-sublicensable, non-transferable, revocable, limited license to use the Services for the purpose for which they are intended in full compliance with the provisions outlined in these Conditions.
10.3 By agreeing to these Conditions, the Vendor grants the Supplier a non-exclusive, license to use, reproduce, distribute and publicly display (in digital or analogue formats) the name and logo of the Vendor in the Supplier’s promotional material.
10.4 The Vendor acknowledges that, in respect of any third party Intellectual Property Rights, the Vendor’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written license from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Vendor.
10.5 All Supplier Materials are the exclusive property of the Supplier.
11. Confidentiality
A party (‘receiving party’) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (‘disclosing party’), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause shall survive termination of the Contract.
12. Privacy and Your Information
While providing the Services, the Supplier may gather certain information about the Vendor and about your use of the App, and may share such information with approved third parties. This may include, but is not limited to, the number of Customers using the App and the number of Transactions per month. For full information on the data we gather, how we use this data, and those we share it with, please refer to App and Website privacy and cookie policies. If you have any questions relating to personal information and data protection, please contact us at support@hopt.app
13. Limitation of liability
13.1 The Supplier shall in no circumstance be held liable for fraud on the part of Customers or their representatives in transactions made through the App. The Supplier makes no guarantees as to the quality, reputability or honesty of App users.
13.2 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).
13.3 Subject to the aforesaid:
(a) the Supplier shall under no circumstances whatever be liable to the Vendor, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) the Supplier’s total liability to the Vendor in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Charges.
13.4 The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.5 This clause shall survive termination of the Contract.
14. Indemnity
14.1 The Vendor shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with:
(a) the Vendor’s breach or negligent performance or non-performance of this agreement;
(b) the enforcement of this agreement; and
(c) any claim made against a Vendor by a third party arising out of or in connection with the provision of the Services, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this agreement by the Supplier, its employees, agents or subcontractors
14.2 Nothing in this clause shall restrict or limit the Supplier’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
15. Termination
15.1 Either the Vendor or the Supplier can terminate the Contract by giving immediate notice to the other party. Such notice must be clear and unequivocal and in writing.
15.2 The Supplier reserves the right to terminate this Contract without notice if it feels that the Vendor has committed a material breach of these Conditions. In such an instance, the Supplier will notify the Vendor in writing with clear explanation and justification of its reasons for so terminating.
15.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under the Contract or any other contract between the Vendor and the Supplier if the Vendor fails to pay any amount due under this Contract on the due date for payment or the Supplier believes that the Vendor may be unable to pay its debts as and when they fall due.
15.4 Termination of the Contract, however arising, shall not affect any of the parties’ rights, remedies, obligations and liabilities that have accrued as at termination.
15.5 Clauses which expressly or by implication survive termination of the Contract shall continue in full force and effect.
16. Consequences of termination
On termination of the Contract for any reason:
(a) the Vendor shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices or Charges and interest thereupon and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Vendor immediately on receipt;
(b) the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(c) clauses which expressly or by implication survive termination shall continue in full force and effect.
17. Warranty
17.1 The Vendor is supplied Services which may contain data, information, and other materials content created and/or compiled by us or our associated third parties, including sources which may be public. While we believe that the sources used, when providing the Services, are generally reliable, we have no duty to pre-screen sources and are not liable for any failure or delay in removing such Content from the Software.
17.2 To the extent permitted by law, the Service will be provided without warranty of any kind. Our Services are provided “as is”. We expressly disclaim all other warranties, representations and/or guarantees with respect to the Service, whether express or implied, oral or written, including without limitation all implied warranties of merchantability or fitness for purpose, and all warranties implied by any course of dealing, course of performance, usage or trade.
17.3 We make no representation or warranty as to the reliability, accuracy, completeness or validity of any information presented or contained in the App. It is for the Vendor to evaluate, and bear all risks associated with, the use of the App (including, but not limited to, risks relating to the infringement or potential infringement of the intellectual property rights of third parties).
17.4 To the extent permitted by law, we expressly disclaim any warranty that the operation of the Services will be uninterrupted, continued or error free, or that you will be able to use, operate, obtain or sustain a certain level of performance or satisfaction with the Services. The Services may be subject to limitations, delays and other problems including, but not limited to, those arising from networks and connectivity. To the extent permitted by law, we shall not be liable for any delays, errors, downtime, Service interruption, Service performance, delivery failures and/or any other loss or damage for a Vendor or a Guest resulting directly or indirectly from use of the Service.
18. Force majeure
18.1 For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
18.2 The Supplier shall not be liable to the Vendor as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
18.3 If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 1 week, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Vendor.
19. General
19.1 Assignment and other dealings.
(a) The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agent.
(b) The Vendor shall not, without the prior written consent of the Supplier, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract.
19.2 Notices.
(a) Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in this “Notices” clause; if sent by pre-paid first class post or other next working day delivery service, at 12.00 pm on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
19.3 Severance.
(a) If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
(b) If any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19.4 Waiver.
A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.5 No partnership or agency.
Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
19.6 Third parties.
A person who is not a party to the Contract shall not have any rights to enforce its terms.
19.7 Variation.
Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by the Supplier.
19.8 Governing law.
This Contract, and 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 the law of England and Wales.
19.9 Jurisdiction.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non-contractual disputes or claims).