Operator Terms and Conditions
Last updated: March 2021
1. DEFINITIONS AND INTERPRETATION
1.1 These terms and conditions including the attached schedule (“Terms and Conditions”) are to be read in conjunction with the Fee Schedule and both documents together with all documents referred to in them (including, where relevant, the Deployment Planform the entire agreement (“Operator Agreement”) between CHECKFER LIMITED (registered in England and Wales under company number 10863591), trading as ORDERPAY, whose registered office is at 20-22 Wenlock Road, London, N1 7GU (“OrderPay”) and the operator referred to in the Fee Schedule (the “Operator”) (“Parties”)
1.2 In this Operator Agreement the following expressions shall bear the following meanings:
- 1.2.1 Additional Services means any services additional to the Deployment Services and the Operational Services which OrderPay agrees to provide to the Operator, as agreed in writing between the Parties from time to time;
- 1.2.2 Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with another entity;
- 1.2.3 Applicable Law means all laws, regulations, directives, statutes, subordinate legislation, common law and civil codes of any jurisdiction, all judgments, orders, notices, instructions, decisions and awards of any court or competent authority or tribunal, all codes of practice having force of law, statutory guidance, regulatory policy or guidance and industry codes of practice;
- 1.2.4 Beacon(s) means the bluetooth transmitter beacons or “Smart Table Mats” more particularly described in the Fee Schedule or otherwise supplied by OrderPay to the Operator from time to time;
- 1.2.5 Bespoke Payment Processor means the third party provider, agreed in writing between OrderPay and the Operator, with whom the Operator enters into a contract for the provision of services in respect of the Transactions via OrderPay as agent, as outlined in clause 5.3;
- 1.2.6 Bespoke Payment Processor Contract has the meaning given in clause 5.3.1;
- 1.2.7 Business Day means any day which is not a Saturday, Sunday or a public or bank holiday in England;
- 1.2.8 Change has the meaning given in clause 9.2;
- 1.2.9 Change Control Procedure means the process for agreeing and documenting a Change as set out in clause 9;
- 1.2.10 Charges means the charges payable by the Operator in respect of the provision of the Services and either detailed in the Fee Schedule or subsequently agreed in writing between the Parties;
- 1.2.11 Commencement Date means the date stated as such in the Fee Schedule;
- 1.2.12 Confidential Information means information of commercial value, in whatever form or medium, which has been kept confidential by the Party from whom the information originates and which has not come into the public domain during the Contract Term in breach of any obligation of confidence;
- 1.2.13 Content Portal means the web portal made available by OrderPay to the Operator to which the Operator’s own content management systems are integrated pursuant to the provision of the Deployment Services and/or onto which the Operator is able to upload Operator Content;
- 1.2.14 Contract Term has the meaning given in clause 2;
- 1.2.15 Contract Year means a period of 12 months commencing on the Commencement Date and each subsequent 12 month period commencing on an anniversary of the Commencement Date;
- 1.2.16 Controller, Processor, Data Subject, Personal Data, Processing and Supervisory Authority shall bear the respective meanings given to them in the GDPR (and Process and Processes shall be construed accordingly);
- 1.2.17 Customer means an OrderPay App user who places an order for goods or services with the Operator through the OrderPay App;
- 1.2.18 Data Protection Laws means the General Data Protection Regulation 2016 (Regulation (EU) 2016/679) including any successor legislation in the UK arising from or in connection with the UK’s withdrawal from the European Union (“GDPR”)), the Data Protection Act 2018, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI 2426/2003) and any laws that replace or amend any of the foregoing legislation, together with all other Applicable Law relating to the processing or protection of personal data or privacy of natural persons;
- 1.2.19 Data Sharing Particulars means the information set out in the Schedule;
- 1.2.20 Delivery Providers means the third party provider(s) that OrderPay engages to fulfil OrderPay Delivery Services;
- 1.2.21 Deployment Plan means, where relevant, the jointly agreed plan detailing the activities to be undertaken by each Party and the Operator’s other service providers to prepare for the Go Live Date;
- 1.2.22 Deployment Services means the initial integration, configuration and other deployment related services undertaken by OrderPay (in conjunction with the performance of the Operator dependencies by the Operator) to prepare for the Go Live Date;
- 1.2.23 Force Majeure Event means any cause affecting the performance by a Party of any of its obligations under this Operator Agreement which is beyond its reasonable control and which, by its nature, could not have been foreseen or, if foreseeable, was unavoidable. Examples of such events are strikes, lockouts or other industrial disputes (whether involving the workforce of OrderPay or any other party), failure of a utility service, transport network, internet carriers, telecommunications providers or any other provider of any services, act of God (including pandemics), 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 sub-contractors of the Operator including the Payment Processor, the Merchant Acquirer and the Operator’s point of sale provider;
- 1.2.24 Fee Schedule means the Fee Schedule to these Terms and Conditions which contains the details of the Parties the Charges payable by the Operator and certain other contractual information;
- 1.2.25 Gift Vouchers means the gift voucher services offered to Customers by OrderPay whereby a Customer purchases and/or receives a voucher code which may be redeemed with Operators by using the OrderPay App;
- 1.2.26 Go Live Date means the date upon which the Deployment Services have been completed by OrderPay and the Operational Services may commence;
- 1.2.27 Initial Term means the period stated as such in the Fee Schedule;
- 1.2.28 Intellectual Property Rights means all intellectual property rights wherever in the world arising, whether registered or unregistered (and including any application), including copyright, know-how, confidential information, trade secrets, business names and domain names, trade marks, patents, petty patents, utility models, design rights, semi-conductor topography rights, database rights and all rights in the nature of unfair competition rights or rights to sue for passing off;
- 1.2.29 Merchant Acquirer means the merchant acquirer approved by OrderPay with whom the Operator enters into a contract for the provision of merchant acquiring services in respect of the Transactions;
- 1.2.30 Operational Services means the provision of the OrderPay Platform and associated services as described in the Fee Schedule;
- 1.2.31 Operator Agreement has the meaning given in clause 1.1;
- 1.2.32 Operator Content means all Operator branding, product and service information, images and associated pricing uploaded to the Content Portal by the Operator in connection with this Operator Agreement;
- 1.2.33 Operator Disclosed Personal Data means the Personal Data corresponding to the categories of Personal Data listed in the Data Sharing Particulars, where that data is disclosed by the Operator to OrderPay (or a third party specified by the OrderPay);
- 1.2.34 OrderPay App means the mobile app generally made available by OrderPay to consumers on the iOS and Android platforms from time to time;
- 1.2.35 OrderPay Content means all data (including Personal Data), information, content or other material of whatever nature in whatever form appearing on, incorporated within, or generated by the OrderPay Platform or created by or licensed to OrderPay in connection with the Services (including any Operator Disclosed Personal Data but excluding the Operator Content) and all databases created, operated or maintained by OrderPay in which such material is stored or contained;
- 1.2.36 OrderPay Delivery Charge means the delivery charge separately payable by the Customer to OrderPay in respect of the OrderPay Delivery Services;
- 1.2.37 OrderPay Delivery Integration Services means the functionality delivered by the OrderPay Platform to allow the Operator to identify and track the OrderPay Delivery Services provided by OrderPay to the Customer;
- 1.2.38 OrderPay Delivery Services means the delivery services provided by OrderPay to Customers in respect of Transactions and which are fulfilled by Delivery Providers;
- 1.2.39 OrderPay Disclosed Personal Data means the Personal Data corresponding to the categories of Personal Data listed in the Data Sharing Particulars, where that data is disclosed by OrderPay to the Operator (or a third party specified by the Operator);
- 1.2.40 OrderPay Platform means the OrderPay App and the Content Portal;
- 1.2.41 Overall Transaction Value means the total value of the Transaction (including any gratuity but excluding the OrderPay Delivery Charge);
- 1.2.42 Parties has the meaning given in clause 1.1;
- 1.2.43 Payment Processor means a Bespoke Payment Processor or a Standard Payment Processor;
- 1.2.44 Restricted Data Transfer means a transfer of Personal Data in connection with this Operator Agreement that, without entry by the Parties into Standard Contractual Clauses, would cause either Party to breach Data Protection Laws;
- 1.2.45 Service Failure means any disruption to the provision of the Services in accordance with this Operator Agreement;
- 1.2.46 Services means the Deployment Services, the Operational Services and any Additional Services;
- 1.2.47 Shared Personal Data means the OrderPay Disclosed Personal Data and the Operator Personal Disclosed Data;
- 1.2.48 Standard Contractual Clauses means the standard contractual clauses for transfers of Personal Data between Controllers established in third countries pursuant to European Commission Decision (2004/915/EC) of 27 December 2004 under the EU Directive (95/46/EC), or such other clauses issued from time to time by the European Commission, Supervisory Authority or other body with competent jurisdiction, in each case in unamended form (save for the completion of placeholders, annexes and appendices);
- 1.2.49 Standard Payment Processor means the third party provider, nominated by OrderPay, with whom the Operator enters into a contract for the provision of services in respect of the Transactions;
- 1.2.50 Terms and Conditions has the meaning given in clause 1.1;
- 1.2.51 Transaction means the transaction between the Operator and the Customer facilitated by the OrderPay App;
- 1.2.52 Transaction Charge means the charges referred to as such in the Fee Schedule.
- 1.2.53 Unacceptable Operator Content has the meaning given in clause 6.3;
- 1.2.54 VAT means value added tax chargeable under the Value Added Tax Act 1994 and any other tax of any jurisdiction based on sales of goods or services such as sales taxes and any similar, replacement or additional tax; and
- 1.2.55 Warranty has the meaning given in clause 4.3.
1.3 In this Operator Agreement:
- 1.3.1 a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
- 1.3.2 unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular;
- 1.3.3 any words following the words “include,” includes” or “including” or similar words will be construed without limitation and will not limit the meaning of the words preceding them;
- 1.3.4 all headings below are for ease of reference only and will not affect the construction or interpretation of the Contract;
- 1.3.5 a reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time; and
- 1.3.6 a reference to writing or written includes e-mails but not faxes.
1.4 This Operator Agreement prevails over any inconsistent terms or conditions contained in, or referred to in, the Operator’s purchase order, confirmation of order, or specification, and over any terms implied by law, trade custom, practice or course of dealing. In the event of any conflict between a provision of the Fee Schedule and these Terms and Conditions, the provision of the Fee Schedule shall take precedence over these Terms and Conditions.
The term of the Operator Agreement shall commence on the Commencement Date and, subject to earlier termination in accordance with clause 13 or any other provision of these Terms and Conditions, shall continue for the Initial Term and thereafter shall continue until terminated by either Party on three months’ prior written notice to the other Party with effect from or after the date of expiry of the Initial Term (“Contract Term”).
3.1 The Services shall be provided by OrderPay with reasonable skill and care, in accordance with the Fee Schedule and in accordance with Applicable Law. OrderPay shall use reasonable endeavours to achieve all agreed timescales/deadlines (including, where relevant, the dates set out in the Deployment Plan), but time of performance shall not be of the essence of the contract. The Operator acknowledges that the functionality of the OrderPay Platform as described in the Fee Schedule may be limited by the integration limitations between the OrderPay Platform and the Operator’s point of sale platform. Where relevant, such limitations shall be clearly set out in the Deployment Plan.
3.2 To the extent required in OrderPay’s provision of the Operational Services only, the Operator hereby appoints OrderPay as its agent, and the Parties agree that:
- 3.2.1 OrderPay may act on the Operator’s behalf for the sale of items that Customers select from the OrderPay App;
- 3.2.2 Customer payments in respect of the sales in clause 3.2.1 may be made directly to OrderPay acting as agent on behalf of the Operator only;
and provided that:
- 3.2.3 OrderPay shall not act as the Operator’s agent in respect of any other aspect of the Services or in relation to any other provision of this Operator Agreement.
3.3 OrderPay shall be excused from contractual performance to the extent its failure to perform a contractual obligation is caused by:
- 3.3.1 the Operator’s failure to deliver a dependency in a timely manner (including all Operator dependencies identified in the Deployment Plan), or
- 3.3.2 by the Operator’s failure to perform its obligations as set out in these Terms and Conditions (including clause 6).
3.4 The Operator acknowledges that a change of point of sale payment processing provider will interrupt the provision of the Services until the replacement point of sale solution is integrated with the OrderPay Platform. Accordingly, the Operator shall give OrderPay as much advance notice as possible of any planned change of provider and the Parties will agree via the Change Control Procedure any integration work (and the associated cost) that needs to be undertaken to support such change of provider.
4. BEACON SUPPLY TERMS
4.1 Risk of loss or damage to the Beacons shall transfer on delivery to the Operator. Title to the Beacons shall transfer on payment of the Beacon Charges stated on the Fee Schedule in respect of the Beacons initially supplied and, where additional Beacons are provided at a later date, upon payment of the relevant Charges agreed between the Parties.
4.2 It shall be the responsibility of the Operator to install the Beacons on its premises and any onsite installation support agreed to be provided by OrderPay shall be a chargeable Additional Service.
4.3 If any Beacon becomes defective during the four year period following date of delivery, OrderPay shall replace such Beacon upon the Operator’s request (“Warranty”) provided that OrderPay shall be entitled to charge the Operator for the replacement of any Beacon that is defective as a result of damage, tampering, misuse or neglect by the Operator, its personnel, customers or any third party. The foregoing Warranty represents the Operator’s sole remedy and the extent of OrderPay’s liability in respect of a defective Beacon.
5. THIRD PARTY SERVICES
5.1 The Operator acknowledges that the payment portal functionality facilitated by the OrderPay App is provided by the Payment Processor.
5.2 Where the Payment Processor is a Standard Payment Processor, the Operator will enter into a separate contract with the Payment Processor in respect of the provision of payment processing services.
5.3 Where the Payment Processor is a Bespoke Payment Processor, the Operator acknowledges:
- 5.3.1 by signing this Operator Agreement the Operator and the Bespoke Payment Processor (by OrderPay acting as its agent) enter into a separate contract in respect of the provision of payment processing services (“Bespoke Payment Processor Contract”). The Bespoke Payment Processor Contract is governed by the terms set out in the Bespoke Payment Processor’s terms and conditions, a copy of which is to be provided to the Operator by OrderPay.
- 5.3.2 OrderPay enters into such terms with the Operator solely as agent on behalf of the Bespoke Payment Processor; and
- 5.3.3 the Operator shall provide all information necessary to comply with the Bespoke Payment Processor’s onboarding requirements, including KYC requirements.
5.4 The Operator shall maintain its contract with the Merchant Acquirer during the term of this Agreement. The Transaction Charges detailed in the Fee Schedule will be deducted from the Overall Transaction Value as a component of the Merchant Acquirer’s charges and will be paid to OrderPay by the Payment Processor.
5.5 All payment card data is processed solely by the Payment Processor and the Merchant Acquirer. OrderPay shall not receive nor process any payment card data. Accordingly OrderPay is exempt from the requirements of PCI DSS.
5.6 OrderPay is able to provide the OrderPay Delivery Services to Customers through OrderPay’s network of delivery partners (including Delivery Providers) whose services and systems are integrated within the OrderPay Platform, to enable the Operator and Customers utilising the OrderPay App to view delivery status for any Transaction. Any Customer dispute will be dealt with between OrderPay, the Operator and the relevant Delivery Provider or other OrderPay delivery partner.
6. OPERATOR RESPONSIBILITIES
6.1 To enable OrderPay to perform its obligations under the Operator Agreement, the Operator shall:
- 6.1.1 provide all co-operation and assistance reasonably requested by OrderPay; and
- 6.1.2 perform all Operator dependencies set out in the Deployment Plan, where relevant.
6.2 It is a key responsibility of the Operator to ensure that all allergen and dietary information is accurate, complete and is clearly identifiable in the Operator Content uploaded to, or made available through, the OrderPay Platform by the Operator.
6.3 With the exception of the OrderPay Delivery Services, the Operator is the seller of the products and services to the Customer and is responsible for imposing its own terms and conditions relating to that sale. The Operator is also responsible for ensuring that all Operator Content does not infringe any third party’s Intellectual Property Rights or other rights and is not libellous, offensive or in breach of Applicable Law (“Unacceptable Operator Content”). The Operator shall indemnify and hold harmless OrderPay in respect of any loss, costs, damages or expenses incurred or suffered by OrderPay arising from any claim by:
- 6.3.1 any Customer in respect of the goods or services supplied or not supplied) by the Operator; and
- 6.3.2 any Customer or third party in respect of the Operator Content.
6.4 The Operator shall market prominently the support of the OrderPay App on its premises in a manner set out in the Deployment Plan or as otherwise agreed in writing between the Parties.
6.5 The Operator shall ensure that access user names and passwords provided to enable the Operator to access the Content Portal are kept strictly confidential to avoid unauthorised access by Operator personnel and third parties. OrderPay reserves the right to suspend access to the Content Portal and the provision of the Services immediately upon becoming aware of any misuse of such access information, breach of OrderPay’s security measures in respect of the OrderPay Platform or the provision of Unacceptable Operator Content.
7. SERVICE FAILURE
7.1 If there is a Service Failure, or it is reasonably foreseeable that there may be one, as soon as reasonably practicable OrderPay shall notify the Operator of its nature and the action that it has taken or proposes to take to minimise its adverse effects.
7.2 OrderPay shall minimise the impact of any Service Failure and resume normal supply of the Services as soon as reasonably possible. OrderPay shall reperform any Services that have been defectively performed.
7.3 Throughout the period of any Service Failure, OrderPay shall keep the Operator advised of the status of all remedial efforts being undertaken by it or on its behalf with respect to the underlying cause and effects of the Service Failure.
7.4 OrderPay’s performance of the responsibilities set out in this Clause 7 shall constitute the sole remedy of the Operator in respect of a Service Failure.
8.1 The Charges shall be paid in accordance with the details set out in the Fee Schedule or as subsequently agreed in writing between the Parties.
8.2 All Charges must be paid within 30 days from date of invoice provided that the Transaction Charges detailed in the Fee Schedule shall be automatically deducted from settlement fees payable by the Merchant Acquirer to the Operator. The Operator will be provided with periodic statements by the Merchant Acquirer which shall detail the Transaction Charges incurred for each transaction facilitated through the OrderPay App during the applicable period.
8.3 The Charges are stated exclusive of VAT which the Operator shall pay in addition to the Charges at the rate prevailing on the date of the invoice.
8.4 All Charges shall be payable in pounds sterling unless otherwise agreed in writing between the Parties.
8.5 If the Operator fails to make any payment due to OrderPay under this Agreement by the due date for payment, OrderPay may charge the Operator interest on the overdue amount at the rate of 3% per annum above the base lending rate of the Bank of England, as published from time to time. Such interest shall accrue daily from the due date until the date of actual payment of the overdue amount, whether before or after judgment.
8.6 The Operator shall not be entitled to set off any Charges due to OrderPay against any amounts due to the Operator from OrderPay either under this Operator Agreement or otherwise.
8.7 OrderPay shall be entitled to charge an additional fee, as detailed in the Fee Schedule, on transactions made in a currency other than British pounds sterling (GBP), Euros, or U.S. Dollars.
8.8 Where an Operator’s transaction volumes are greater than one pound (£1) but less than one hundred pounds (£100) per month for more than six consecutive months, OrderPay shall have the right to review and make amendments to the Charges. Any amendment to the Charges in line with this clause 8.8 shall follow and be subject to the procedure in clause 9.1.
9. CHANGE CONTROL PROCEDURE
9.1 OrderPay shall be entitled to amend any provision of the Services from time to time by written notice to the Operator. In all cases except for proposed editorial changes that do not alter the content or meaning of the Terms and Conditions, such notice should be given at least 15 days in advance of the amendment. If the amendment constitutes a materially detrimental change to the scope or standard of service provided to the Operator then the Operator may terminate this Agreement by giving not less than 15 days’ notice to OrderPay and provided that such notice is served on OrderPay within 30 days of receipt of notice of such amendment.
9.2 Subject to Clause 9.1, if either Party wishes to change the scope of the services or document a change to this Operator Agreement (“Change”), it shall submit details of the requested change to the other Party in writing.
9.3 If either Party requests a Change, OrderPay shall, within a reasonable time, provide a written estimate to the Operator of:
9.3.1 the likely time required to implement the Change;
- 9.3.2 any variations to the Charges arising from the Change; and
- 9.3.3 the likely effect of the Change on the terms of the Operator Agreement.
9.4 If OrderPay requests a change to the scope of the Operator Agreement, and has provided at least 15 days’ notice (except in the case of editorial changes that do not alter the content or meaning of the Terms and Conditions), the Operator shall not unreasonably withhold or delay consent to it.
9.5 Where the proposed change may require the other Party to make technical or commercial adaptations in order to comply, proportionate notice of more than 15 days should be given,
9.6 If the Operator wishes OrderPay to proceed with the Change, OrderPay has no obligation to do so unless and until the parties have agreed in writing on the necessary variations to its Charges, and any relevant terms of this Operator Agreement to take account of the Change.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Operator shall retain all right, title and interest in and to the Intellectual Property Rights subsisting in the Operator Content. The Operator hereby grants to OrderPay a non-exclusive, royalty free licence during the Contract Term to use the Operator Content to provide the Services, perform OrderPay’s obligations and exercise OrderPay’s rights under the Operator Agreement.
10.2 OrderPay shall retain all right, title and interest in and to the Intellectual Property Rights subsisting in its trade marks, (registered and unregistered), service marks, logos, get up and branding, the OrderPay Platform (including all user interfaces) and the OrderPay Content including all transaction SKU data processed through the OrderPay App.
10.3 The Operator shall indemnify and hold harmless OrderPay in respect of any loss, costs, damages or expenses incurred or suffered by OrderPay arising from any claim by a third party that OrderPay’s use of the Operator Content in accordance with the provisions of this Operator Agreement breaches the proprietary rights of such third party. If OrderPay wishes to rely on such indemnity:
- 10.3.1 OrderPay shall give the Operator prompt notification of the claim and shall not make any admission of liability to the claimant without the Operator’s prior written consent; and
- 10.3.2 OrderPay shall give sole conduct of the claim to the Operator and shall provide all assistance and information requested by the Operator (at the Operator’s cost) to enable the Operator to defend such claim.
10.4 OrderPay shall indemnify and hold harmless the Operator in respect of any loss, costs, damages or expenses incurred or suffered by the Operator arising from any claim by a third party that the Operator’s use of the OrderPay Platform in accordance with the provisions of this Operator Agreement breaches the proprietary rights of such third party. If the Operator wishes to rely on such indemnity:
- 10.4.1 the Operator shall give OrderPay prompt notification of the claim and shall not make any admission of liability to the claimant without OrderPay’s prior written consent; and
- 10.4.2 the Operator shall give sole conduct of the claim to OrderPay and shall provide all assistance and information requested by OrderPay (at OrderPay’s cost) to enable OrderPay to defend such claim.
11. DATA PROTECTION
11.2 The Operator shall ensure that if OrderPay discloses any Shared Personal Data to the Operator on the basis that OrderPay (or a person on its behalf) has first obtained prior consent from the relevant Data Subjects for that disclosure, the Operator shall ensure that its use of the Shared Personal Data does not exceed the scope of the consent granted by the applicable Data Subject (as notified by OrderPay to the Operator).
11.3 The Parties agree that, in the event a Supervisory Authority, court or other body with competent jurisdiction declares (including in any code, guidance, notice, ruling, order, decision, adjudication or publication having statutory force) that:
- 11.3.1 the Parties are joint Controllers in respect of any Processing activities performed by either Party in connection with this Operator Agreement; or
- 11.3.2 any identical, similar or analogous Processing activities or arrangements to those Processing activities or arrangements under this Operator Agreement are activities or arrangements for which Personal Data is Processed as joint Controllers,
or if any declaration otherwise requires a change to this Operator Agreement or the Parties’ responsibilities under Data Protection Laws, each Party shall as soon as practicable following OrderPay’s written request execute, amend and/or publish all such documents (including amending this clause 11 and any Privacy Notices, as appropriate) as expressly or impliedly required by such declaration and shall provide all reasonable co-operation and assistance to the other Party in respect of any measures that other Party must implement or responsibilities it must assume as a result of such declaration.
11.4 Each Party agrees to disclose the Shared Personal Data in accordance with the Data Sharing Particulars and Data Protection Laws. To the extent any Intellectual Property Rights subsist in any Shared Personal Data received by a Party, each disclosing Party grants to the other the receiving Party a perpetual, non-exclusive, royalty-free, sub-licensable licence to use the Shared Personal Data the receiving Party receives.
11.5 If the disclosure of Shared Personal Data by either Party would (or would be likely to) result in a Restricted Data Transfer, the Parties shall enter into the Standard Contractual Clauses before making that transfer (including completed appendices which shall be agreed between the Parties in writing and shall be deemed incorporated into those clauses). Any Standard Contractual Clauses executed by the Parties shall not constitute a separate agreement and shall be deemed incorporated into this clause 11 on execution by both Parties.
11.6 Each Party shall provide reasonable assistance and co-operation to the other in connection with any enquiry, request, instruction or investigation by, or any consultation with, any Supervisory Authority in connection with this Operator Agreement.
12.1 Each Party undertakes not to use the other Party’s Confidential Information otherwise than in the exercise and performance of its rights and obligations under this Operator Agreement (“Permitted Purposes”).
12.2 Each Party shall treat as confidential all Confidential Information of the other Party and shall not divulge any such Confidential Information to any person, except to its own employees and then only to those employees who need to know it for the Permitted Purposes. Each Party shall ensure that its employees are aware of and shall use reasonable endeavours to ensure its employees comply with, this clause 12.
12.3 The restrictions imposed by clause 12.1 and 12.2 shall not apply to the disclosure of any Confidential Information which:
- 12.3.1 is now in or hereafter comes into the public domain otherwise than as a result of a breach of this clause 12;
- 12.3.2 before any negotiations or discussions leading to this Operator Agreement was already known by the receiving Party and was obtained or acquired in circumstances under which the receiving Party was not bound by any form of confidentiality obligation; or
- 12.3.3 is required by law or regulation to be disclosed to any person who is required by law or regulation to receive the same (after consultation, if practicable, with the disclosing Party to limit disclosure to such authorised person to the extent necessary).
12.4 Each Party shall notify the other Party if any of its staff connected with the provision or receipt of the Services becomes aware of any unauthorised disclosure of any Confidential Information of the other Party and shall afford reasonable assistance to the other Party, at that other Party’s reasonable cost, in connection with any enforcement proceedings which that other Party may elect to bring against any person.
12.5 The obligations of confidentiality set out in this clause 12 shall survive the expiry or termination of this Operator Agreement.
12.6 Notwithstanding the foregoing, the Operator shall be entitled to share aggregated data of customer behaviour within the Operator’s premises with third parties (including other operators).
12.7 The Operator authorises OrderPay to identify the Operator as a client of OrderPay and use the Operator’s branding in any OrderPay marketing or advertising materials and on the OrderPay website for such purpose during the term of the Operator Agreement.
13. TERMINATION RIGHTS
13.1 Either Party may terminate this Operator Agreement with immediate effect on giving notice to the other Party if the other Party:
- 13.1.1 commits a material breach of this Operator Agreement which is incapable of remedy (save as to time of performance);
- 13.1.2 commits a material breach of this Operator Agreement which is capable of remedy but fails to remedy that breach within 60 days of being notified of the breach;
- 13.1.3 has a liquidator (both provisional and following a winding up), receiver (including a fixed charge receiver), administrative receiver, administrator, nominee, supervisor or other similar officer appointed in respect of itself or any of its assets under the law of any jurisdiction;
- 13.1.4 in the reasonable opinion of the terminating party is unable to pay its debts as they fall due or, in the reasonable opinion of the terminating party, the aggregate value of all its assets is less than that of all its liabilities (including its contingent and prospective liabilities);
- 13.1.5 suffers an insolvency event analogous to any of the events set out in clause 13.1.3 or 13.1.4 in any jurisdiction; or
13.1.6 suspends or ceases to carry on (or threatens to suspend or cease to carry on) all or a material part of its business.
13.2 If the Operator fails to make any payment due to OrderPay under this Agreement within 30 days following notice from OrderPay that the amount has not been paid by the due date for payment, OrderPay may terminate the Operator Agreement by written notice to the Operator.
14. CONSEQUENCES OF TERMINATION
14.1 The expiry or termination of this Operator Agreement shall not affect the accrued rights, remedies, obligations or liabilities of the Parties under it existing at expiry or termination.
14.2 Any provision of this Operator Agreement which expressly or by implication is intended to come into or continue in force on or after the expiry or termination of this Operator Agreement, shall remain in full force and effect after this Operator Agreement expires or terminates.
14.3 On termination of this Operator Agreement each Party shall return to the other all documents and other materials containing the other’s Confidential Information (including Operator Content held on the OrderPay Platform) and shall (to the extent technically possible) erase all the other’s Confidential Information from its computer and other software or media storage systems, provided that a Party may retain materials containing the other Party’s Confidential Information to the extent required by any Applicable Law, where such materials are required to be retained under either Party’s company records retention policies or otherwise as permitted by this Operator Agreement.
14.4 Where an Operator has received payment transfers from OrderPay to cover the value of Gift Vouchers, and that Operator subsequently terminates this Operator Agreement, the Operator must refund OrderPay for any outstanding Gift Vouchers that have not been redeemed by a Customer.
15. LIMITATIONS ON LIABILITY
15.1 Nothing in this Operator Agreement shall limit or exclude the liability or remedy of either Party or any other person:
- 15.1.1 for death or personal injury caused by its negligence, or that of its employees, agents or subcontractors;
- 15.1.2 for fraud or fraudulent misrepresentation;
- 15.1.3 in respect of an obligation in this Operator Agreement to indemnify a party or any other person; or
- 15.1.4 for any act, omission or matter, liability for which may not be excluded or limited under any Applicable Law.
15.2 Subject to clause 15.1, OrderPay’s total aggregate liability whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise howsoever, for all causes of action arising during a Contract Year shall be limited to the greater of £1,000,000 (one million pounds sterling); and 100% of the Charges paid or payable during the preceding Contract Year.
15.3 Subject to clause 15.1 and except as expressly provided to the contrary in this Operator Agreement, OrderPay will not be liable to the Operator for any:
- 15.3.1 loss of profits or business revenue;
- 15.3.2 loss of goodwill or reputation;
- 15.3.3 subject to clause 15.4, loss of, or corruption to, data; or
- 15.3.4 indirect, special or consequential loss or damage.
15.4 OrderPay shall reimburse the Operator in respect of the Operator’s reasonable cost of restoring data lost or corrupted arising from the acts or omissions of OrderPay.
15.5 OrderPay hereby excludes all liability for breach of any warranty and condition, express or implied, which is not expressly set out in this Operator Agreement.
16. ASSIGNMENT AND SUBCONTRACTING
16.1 The Operator shall not assign, transfer, charge, create a trust over or otherwise deal in this Operator Agreement or any of its rights or obligations under this Operator Agreement (or purport to do so) without the prior written consent of OrderPay.
16.2 OrderPay reserves the right to subcontract its responsibilities under this Operator Agreement to its Affiliates and third parties provided that OrderPay shall remain responsible to the Operator for the acts and omissions of its subcontractors.
17. RIGHTS OF THIRD PARTIES
17.1 Where the Payment Processor is a Bespoke Payment Processor, the Parties acknowledge that OrderPay has entered into this Operator Agreement as agent of the Bespoke Payment Processor solely with respect of the provisions of the Bespoke Payment Processor’s terms and conditions (a copy of which will be provided to the Operator by Orderpay) and accordingly each of the Operator and the Bespoke Payment Processor shall be entitled to enforce its rights under the Bespoke Payment Processor Contract with respect to the other.
17.2 Subject to clause 17.1, this Operator Agreement does not create any right or benefit enforceable by any person not a party to it except for a person who under clause 16 is a permitted successor or assignee of the rights or benefits of a party that may enforce such rights or benefits.
18. ENTIRE AGREEMENT
18.1 This Operator Agreement constitutes the entire agreement and understanding of the Parties and supersedes and extinguishes all previous drafts, agreements and understandings between them, whether oral or in writing, relating to its subject matter.
18.2 Each party acknowledges and agrees that in entering into this Operator Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance, warranty or understanding made by or on behalf of a party (whether made innocently or negligently) which is not expressly set out in this Operator Agreement.
19. FORCE MAJEURE
If either Party is delayed or prevented in the performance of any of its obligations under this Operator Agreement by a Force Majeure Event, that party shall not be liable for such delay or non-performance and the time for performance of the affected obligation shall be extended by such period as is reasonable to enable that party, using all reasonable endeavours, to perform that obligation.
20.1 Any notice or similar communication given under or in connection with this Operator Agreement shall be in writing and shall be delivered:
20.1.1 by hand;
20.1.2 sent by pre-paid post providing for next Business Day delivery (or pre-paid air mail if overseas) providing proof of postage; or
2.1.3 (subject to clause 20.2.4) by email,
to the recipient party at the address or email address, and for the attention of the persons, set out on the Fee Schedule or such other address or email address or persons (not exceeding 2 persons) as that party may specify by notice to the other party.
20.2 Notices and similar communications shall be deemed to have been received:
20.2.1 if delivered by hand, at the time of delivery to the address;
20.2.2 if sent by pre-paid post, at 09.00 on the second Business Day after posting;
20.2.3 if sent by pre-paid air mail, at 09.00 on the fifth Business Day after posting; and
20.2.4 if sent by email, at 09.00 on the next Business Day after sending provided that the subject line of the email identifies that it is a notice being given under this Operator Agreement and provided that a confirmatory copy is provided by one of the other means referred to in clause 20.1 dispatched on the same date as the email was sent, failing either of which the email shall not constitute a valid notice.
20.3 Faxes and electronic communications other than email are not valid notices under this Operator Agreement.
21. DISPUTE RESOLUTION
21.1 The Parties shall use reasonable endeavours to resolve any dispute. If the Dispute is not resolved within 10 Business Days of receipt of a written request from either party (“Dispute Notice”), the Dispute shall be referred to a senior executive from each of the Parties. If the Dispute is not resolved within 15 Business Days from the date of receipt of the Dispute Notice, either party may, in its sole discretion commence legal proceedings as contemplated by clause 27.2.
21.2 For the avoidance of doubt, nothing in this clause 21 shall prevent or restrict the Parties from commencing or continuing court proceedings or from seeking injunctive relief at any time.
22.1 This Operator Agreement does not constitute, establish or imply any partnership, joint venture, agency, employment or fiduciary relationship between the Parties.
22.2 Neither Party shall have, nor represent that it has, any authority to make or enter into any commitments on the other’s behalf or otherwise bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability or the exercise of any right or power).
23.1 This Operator Agreement may be executed in counterparts or duplicates, each of which, when executed, shall constitute an original of this Operator Agreement and such counterparts or duplicates together shall constitute one and the same instrument.
23.2 No counterpart or duplicate shall be effective until each Party has executed at least one counterpart or duplicate.
24.1 Except as expressly provided in this Operator Agreement, the rights and remedies provided under this Operator Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
24.2 Any right or remedy expressly included in any provision of this Operator Agreement (or the exercise of them) shall not be considered as limiting a Party’s rights or remedies under any other provision of this Operator Agreement (or the exercise of them).
If any provision, or part of a provision, of this Operator Agreement is found by any court or administrative body of competent jurisdiction to be invalid, illegal or unenforceable such invalidity, illegality or unenforceability shall not affect the other provisions of this Operator Agreement, which shall remain in full force and effect.
26.1 A failure to exercise, or delay in exercising, a right, power or remedy provided by this Operator Agreement or by law shall not constitute a waiver of that, or any other, right, power or remedy and shall not, and nor shall any single or partial exercise of any such right, power or remedy, preclude the further exercise of that, or any other, right, power or remedy.
26.2 Any waiver of any right under this Operator Agreement is only effective if it is in writing and it shall only apply to the Party to whom the waiver is addressed and to the circumstances for which it is given.
27. GOVERNING LAW AND JURISDICTION
27.1 This Operator Agreement and any dispute shall be governed by and construed in accordance with the law of England and Wales.
27.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute.