PART TWO – STANDARD CONDITIONS

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PART TWO – STANDARD CONDITIONS

  1. Interpretation and definitions
    1. The definitions and rules of interpretation in this clause apply in this agreement.

Authorised Users: those employees and independent contractors of the Customer who are entitled to use Platform(s) in accordance with this agreement. 

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.

Confidential Information:  information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5 and clause 9.6.

Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.

Customer Data: the data inputted into a Platform (or transferred to LineTen in connection with the Customer’s use of a Platform) by the Customer, by Authorised Users, or by LineTen on the Customer’s behalf. 

Data Protection Legislation: the UK Data Protection Legislation and any other applicable European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).

Delivery Manager Platform: has the meaning given to it in Part Four of this agreement. 

Effective Date: the date of this agreement.

Fees: the fees payable by the Customer to LineTen in accordance with this agreement, including (for the avoidance of doubt): the Online Ordering Licence Fee, the Order to POS Licence Fee, the Order to POS Transaction Fee, the Menu Manager Fee, the Delivery Manager Licence Fee, the Delivery Services Fee and the Additional Services Fee (in each case, where applicable).

Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, and sanctions, which are applicable to either the Customer, its end users (including any Authorised User), but not LineTen, relating to security of network and information systems and security breach and incident reporting requirements, which may include or be analogous to the Cybersecurity Directive ((EU) 2016/1148)), Commission Implementing Regulation ((EU) 2018/151), the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.

Intellectual Property: patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), 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.

Invoice Period: monthly as of the last day of each month.

LineTen’s Account Policy: LineTen’s policy as made available to the Customer by LineTen, as updated or amended from time to time governing the Authorised Users’ access to and use of the Platforms. 

Platform(s): the Online Ordering Platform, the Order to POS Platform (with or without Menu Manager) and/or the Delivery Manager Platform to the extent the Customer is granted access to the same subject to and in accordance with this agreement.

Maintenance Window: A daily window between [10.00 pm to 2.00 am] UK time during which LineTen may perform maintenance on the Platforms.

Maintenance Release: a release of a Platform that corrects faults, adds functionality or otherwise amends or upgrades that Platform in connection with an update and/or upgrade or otherwise, but does not constitute a New Version;

New Version: means any new version of a Platform that is publicly marketed and offered for purchase by LineTen from time to time in the course of its normal business, being a version that contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product;

Online Ordering Platform: has the meaning given to it in Part Four of this agreement.

Order to POS Platform: has the meaning given to it in Part Four of this agreement (and, for the avoidance of doubt, may include or exclude Menu Manager depending on whether the Customer is entitled to receive Menu Manager under this agreement).

Service Level Arrangements:  the agreed service levels relating to the Support Services as set out in Part Four to this agreement.

Services: the Support Services and/or the Additional Services, as context requires.

Software Specification:  the functionality and performance specifications for a Platform, as updated and made available to the Customer from time to time. 

Support Services: has the meaning given to it in Part 4 of this agreement.

UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.

1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.

1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.4 All four parts of this agreement form part of this agreement. Any reference to this agreement includes all four parts of it.

1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.

1.7 A reference to writing or written includes e-mail.

1.8 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

  1. Platform – licence and use
    1. In relation to each Platform: 
      1. subject to LineTen’s receipt of all applicable Fees under this agreement, LineTen hereby grants to the Customer a non-exclusive, non-transferable, non-assignable licence to allow Authorised Users to access the Platform at all times solely for the Customer’s business purposes and subject to and in accordance with this agreement; 
      2. the Customer shall not store, distribute, introduce or transmit through or in connection with the Platform:
        1. any Virus,
        2. any Vulnerability; or 
        3. any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any illegal activities; 
      3. the rights provided under this clause 2.1 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer;
      4. the Customer shall not:
        1. attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Platform except to the extent expressly set out in this agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; 
        2. attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; 
        3. access all or any part of the Platform in order to build a product or service which competes with the Platform;
        4. (save with LineTen’s prior express written consent) use the Platform to provide services to third parties; 
        5. subject to clause 19.1, transfer, temporarily or permanently, any of its rights under this agreement; or
        6. attempt to obtain, or assist third parties in obtaining, access to the Platform, other than as provided under this clause 2.1(d),
      5. the Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Platform and notify LineTen promptly of any such unauthorised access or use.
    2. In relation to Authorised Users:
      1. the Customer may create accounts for Authorised Users in accordance with LineTen’s Account Policy;
      2. the Customer shall maintain a written list of current Authorised Users of each Platform, and the Customer shall provide such list to LineTen on LineTen’s reasonable request; 
      3. the Customer shall ensure that each Authorised User complies with LineTen’s Account Policy; 
      4. LineTen may audit the Customer’s use of each Platform to ensure compliance with LineTen’s Account Policy. Such audit may be conducted no more than once per quarter (in respect of each Platform), at LineTen’s expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Customer’s business; and
      5. if any audit carried out by LineTen further to 2.1(d) reveals that the Customer or any of the Customer’s employees, directors or agents are in breach of LineTen’s Account Policy, the Customer shall take such action as LineTen may reasonably direct in order to remedy the breach.
    3. LineTen shall promptly inform the Customer of any New Versions and shall offer to license such New Versions to the Customer on such terms as may be mutually agreed in writing.
    4. LineTen shall endeavour to provide the Customer with all Maintenance Releases generally made available to its customers.  
  2. Support Services
    1. LineTen shall provide the Support Services in accordance with Part Four of this agreement.
  3. Customer Data
    1. The Customer shall own all rights, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of such Customer Data.
    2. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against LineTen shall be for LineTen to use all commercially reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by LineTen in accordance with its standard archiving procedure. LineTen shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by LineTen to perform services related to Customer Data maintenance and back-up for which LineTen shall remain fully liable under clause 4.7).
    3. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
    4. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the controller and LineTen is the processor. 
    5. Without prejudice to the generality of clause 4.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable the lawful transfer of the personal data to LineTen for the duration and purposes of this agreement.
    6. Without prejudice to the generality of clause 4.3, LineTen shall, in relation to any personal data processed in connection with the performance by LineTen of its obligations under this agreement:
      1. process that personal data only on the documented written instructions of the Customer unless LineTen is required by the laws of any member of the European Union or by the laws of the European Union applicable to LineTen and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where LineTen is relying on Applicable Laws as the basis for processing personal data, LineTen shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit LineTen from so notifying the Customer;
      2. ensure that it has in place appropriate technical and organisational measures, which the Customer hereby confirms that it has reviewed and approves the adequacy thereof, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, anonymising, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it); 
      3. not transfer any personal data outside of the United Kingdom unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
        1. the Customer or LineTen has provided appropriate safeguards in relation to the transfer;
        2. the data subject has enforceable rights and effective legal remedies;
        3. LineTen complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; and
        4. LineTen complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the personal data.
      4. assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      5. notify the Customer without undue delay on becoming aware of a personal data breach;
      6. at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the agreement unless required by Applicable Laws to store the personal data; and
      7. maintain complete and accurate records and information to demonstrate its compliance with this clause 4 and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of LineTen, an instruction infringes the Data Protection Legislation.
    7. The Customer consents to LineTen appointing a reasonably reputable and qualified specialist third party as a third-party processor of personal data under this agreement. LineTen confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement which LineTen confirms does or shall reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and LineTen, LineTen shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.
  4. LineTen’s obligations
    1. LineTen undertakes that it will perform its obligations under this agreement with reasonable skill and care and that each Platform shall operate substantially in accordance with its Software Specification
    2. The undertaking at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of a Platform contrary to LineTen’s instructions or any modification or alteration of a Platform by any party other than LineTen or LineTen’s duly authorised contractors or agents. If a Platform does not conform with the foregoing undertaking, LineTen will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, LineTen does not warrant that the Platform(s) will be free from Vulnerabilities or that the Customer’s use of the Platform and the Services will be uninterrupted or error-free. 
    3. This agreement shall not prevent LineTen from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement.
    4. LineTen shall appoint LineTen’s Key Contact, who shall have the authority to contractually bind LineTen on all matters relating to this agreement. LineTen shall use reasonable endeavours to ensure continuity of LineTen’s Key Contact, but has the right to replace them from time to time where reasonably necessary in the interests of LineTen’s business.
  5. Customer’s obligations
    1. The Customer shall: 
      1. provide LineTen with:
        1. all necessary co-operation in relation to this agreement; and
        2. all necessary access to such information as may be reasonably required by LineTen for it to discharge its obligations under this agreement;
      2. provide such personnel assistance, as may be reasonably requested by LineTen from time to time;
      3. appoint thew Customer’s Key Contact, who shall have the authority to contractually bind the Customer on all matters relating to this agreement;
      4. in the event that the Customer’s Key Contact ceases to be employed by the Customer or is reassigned within the Customer’s business, the Customer shall appoint a replacement Key Contact, who shall have the authority to contractually bind the Customer on all matters relating to this agreement;
      5. without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement; and
      6. carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, LineTen may adjust any timetable or delivery schedule set out in this agreement as reasonably necessary.
  6. Charges and payment
    1. See PART THREE – CONTRACT-SPECIFIC CONDITIONS
  7. Proprietary rights
    1. The Customer acknowledges and agrees that LineTen and/or its licensors shall at all times own all Intellectual Property in the Platforms and the Services. 
    2. Except as expressly stated elsewhere in this agreement, this agreement does not grant the Customer any rights to, or in, any Intellectual Property or any other rights or licences in respect of the Platforms, the Services, the Deliverables or any related documentation. 
    3. LineTen confirms that it has all the rights in relation to the Platforms that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
  8. Confidentiality 
    1. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not include information that: 
      1. is or becomes publicly known other than through any act or omission of the receiving party; 
      2. was in the other party’s lawful possession before the disclosure; 
      3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
      4. is independently developed by the receiving party, which independent development can be shown by written evidence.
    2. Subject to clause 9.4, each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
    3. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
    4. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
    5. The Customer acknowledges that the Platforms, the results of any performance tests of any Platform and the Services constitute LineTen’s Confidential Information. 
    6. LineTen acknowledges that the Customer Data is the Confidential Information of the Customer. 
    7. Subject to clause 13, no party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
    8. The above provisions of this clause 9 shall survive termination of this agreement, however arising.
  9. Indemnity
    1. See PART THREE – CONTRACT-SPECIFIC CONDITIONS 
  10. Limitation of liability
    1. See PART THREE – CONTRACT-SPECIFIC CONDITIONS
  11. Term and termination
    1. See PART THREE – CONTRACT-SPECIFIC CONDITIONS
  12. Marketing
    1. At any time after the Effective Date, the Customer agrees that LineTen may use the Customer’s company name, trading name and logo in making reference to the Customer for LineTen’s own marketing purposes, including but not limited to use in any press releases, social media, blogs, websites, newspaper articles or media articles.
  13. Force majeure

Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of LineTen or any other party), failure of a utility service or transport or telecommunications network or the internet, act of God, epidemic, pandemic, 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. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues for six months, the party not affected may terminate this agreement by giving 30 days’ written notice to the other party.

  1. Waiver
    1. A waiver of any right under this agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given.
    2. Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.
  2. Rights and remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  1. Severance 
    1. If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement. 
    2. If any provision or part-provision of this agreement is deemed deleted, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
  2. Entire agreement
    1. This agreement (and the documents expressly referred to herein) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
    3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
  3. Assignment
    1. The Customer shall not, without the prior written consent of LineTen, assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this agreement.
    2. LineTen may at any time assign, transfer, charge, sub-contract, delegate, declare a trust over or deal in any other manner with all or any of its rights or obligations under this agreement. 
  4. No partnership or agency

Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.

  1. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives). 

  1. Third party rights

This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

  1. Notices
    1. Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s Key Contact’s email address as set out in Part One of this agreement. 
    2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9am on the first Business Day following delivery). A correctly addressed notice sent by prepaid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (or if transmission is not in Business Hours, at 9am on the first Business Day following delivery.
  2. Governing law

See PART THREE – CONTRACT-SPECIFIC CONDITIONS

  1. Jurisdiction

See PART THREE – CONTRACT-SPECIFIC CONDITIONS

The above-mentioned terms are relevant only to enterprise clients here-directed and are incomplete without an accompanying agreement signed by both Parties.


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