Tabology Terms of Service
The Supplier is the entire legal and beneficial owner and licensor of certain software products, a copy of which (for the avoidance of doubt) is held in escrow under the arrangements detailed in Schedule 1, and is willing to license the Customer to use these products.
1.1 The definitions and rules of interpretation in this clause apply in this licence.
Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party.
Back Office Application: that part of the Software which, once installed on a Server, shall enable staff and/or management of the Customer to control and administer a network or system of Devices on which the Customer Application is installed, as well as enabling the use of EPOS technology (by the Customer and at the Customer’s option).
Business Days: any day on which banks are open for business in the city of London.
Customer Application: that part of the Software which, once installed on a Device, is designed to enable (inter alia), the ordering of food and drink by customers of the Customer.
Customer Quote: The quote provided to the customer stipulating the up front and monthly payments required to purchase and maintain use of the system
Defect: an error within the Software’s source code that results in the Software not functioning as specified.
Device: Any item of hardware on which any of the Back Office Application, Customer Application and/or Messaging Application are installed.
EPOS: electronic point of sale.
Fee: the licence fees payable by the Customer to the Supplier under clause 4.
Hardware: has the meaning given in Clause 5.
Hardware Defect: an error in any Hardware, other than any error caused by any action or omission of the Customer, which causes the Hardware not to function as specified.
Hardware & Installation Invoice: Invoice relating to the payment required for the hardware and installation
Intellectual Property Rights: all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or unregistered) and all applications for the same, anywhere in the world.
Messaging Application: that part of the Software which, once installed on a Device, is designed to enable staff and/or management of the Customer to receive messages relating to the use of a system of Devices on which the Software is installed.
Modification: minor incremental amendments to and improvements of the Software that are provided by the Supplier to the Customer from time to time.
New Features: releases of bolt-on or add-on software that add functionality to, or otherwise amend or upgrade the Software, as well as the release of entirely new software platforms. New Features shall not include (i) standard Modifications, or (ii) alterations made in the correction of Defects.
1.2 The headings in this licence do not affect its interpretation. Except where the context otherwise requires, references to clauses and schedules are to clauses and schedules of this licence.
1.3 Unless the context otherwise requires:
(a) references to the Supplier and the Customer include their permitted successors and assigns;
(b) references to statutory provisions include those statutory provisions as amended or re-enacted;
(c) references to one gender includes a reference to the other genders; and
(d) references to "including" or "includes" shall be deemed to have the words "without limitation" inserted after them.
1.4 Words in the singular include the plural and those in the plural include the singular.
1.5 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's personal representatives, successors or permitted assigns.
2. DELIVERY, ACCEPTANCE AND INSTALLATION
2.1 If the Customer commences operational use of the Software it shall be deemed to have accepted the Software.
3.1 In consideration of the ongoing Fee(s) paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive licence to use the Software, unless and until this licence is validly terminated in accordance with its terms.
3.2 In relation to scope of use of the Software:
(a) the Customer may not use the Software other than within its licensed premises within the UK without the prior written consent or direction of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier;
(b) except as expressly stated in this clause 3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier's reasonable costs in providing that information) before undertaking any such reduction.
3.3 The Customer may not use any information provided by the Supplier or obtained by the Customer pursuant the terms of this licence to create any software whose expression is substantially similar to that of the Software.
3.4 The Customer shall not:
(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part;
(b) allow the Software to become the subject of any charge, lien or encumbrance; and
(c) deal in any other manner with any or all of its rights and obligations under this agreement,
without the prior written consent of the Supplier.
3.5 The Customer shall:
(a) keep a complete and accurate record of the Customer's copying and disclosure of the Software, and produce such record to the Supplier on request from time to time;
(b) notify the Supplier as soon as it becomes aware of any unauthorised use of the Software by any person;
(c) pay, for broadening the scope of the licences granted under this licence to cover the unauthorized use, an amount equal to the Fees (or fees) which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced together with interest at the rate provided for in clause 4.5, from such date to the date of payment.
3.6 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer. Notwithstanding clause 8, a party assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter, the negotiations relating to it and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment, provided that no disclosure pursuant to this clause 3.6 shall be made until notice of the identity of the proposed assignee has been given to the other party.
3.7 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
4. FEES FOR PROVISION OF THE SOFTWARE
4.1 The Customer shall pay to the Supplier licence fees per calendar month (“Fees”) as specified in the Customer Quote.
4.2 The Supplier shall monitor the number of Devices on which the Software is installed.
4.3 The Fees shall be payable monthly or annually in advance as indicated on the Customer Quote
4.4 All sums payable under this licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.
4.5 If the Customer fails to pay any amount payable by it under this licence the Supplier may charge the Customer interest on the overdue amount (payable by the Customer immediately on demand) from the due date up to the date of actual payment, after as well as before judgment, at the rate of 2.5% per annum above the base rate for the time being of Barclays Bank PLC. Such interest shall accrue on a daily basis and be compounded quarterly.
4.6 The fee may be adjusted each year on the anniversary of this licence in accordance with the average UK retail price index (RPI) for the previous year.
5.1 The Supplier may offer to sell the Customer various items of hardware which can be used in connection with the Software, including, but not limited to, printers, cash drawers, flow controllers, RFID units and Servers (“Hardware”). Such items may be sold as stand alone products or as integrated products. Items of Hardware may be sold with or without the Software installed on them (as appropriate and/or as requested by the Customer). The Customer will be under no obligation to accept any such offer.
5.2 Any hardware provided to the Customer under clause 5.1 shall remain the property of the supplier until the Hardware & Installation invoice is paid in full
6. MODIFICATIONS AND NEW FEATURES
6.1 Modifications shall be made from time to time by the Supplier. Modifications shall be delivered to the Customer via the Remote Server (on reasonable notice). The Customer agrees that it shall accept Modifications free of charge, on the basis that they shall improve and/or not materially impair the functionality of the Software.
6.2 The Supplier shall inform the Customer of any New Features and shall offer to sell such New Features to the Customer. The Customer shall not be obliged to purchase New Features.
6.3 The Customer may request that the Supplier customise the Software or Hardware. The Supplier may offer to make any such alteration(s) to the Software or Hardware on such terms as it sees fit, but no party shall be obliged to offer or accept any proposal to customise the Software or Hardware.
7. REMEDY OF DEFECTS AND SUPPLIER'S WARRANTIES
7.1 If the Customer notifies the Supplier that there is a Defect or a Hardware Defect the Supplier shall do one of the following, as applicable and as soon as is reasonably practicable:
(a) repair the Software and/or Hardware; or
(b) replace the Software and/or Hardware, provided that the Customer provides all the information that may be necessary to assist the Supplier in resolving the Defect and/or Hardware Defect. For the avoidance of doubt, Defects and/or Hardware Defects will be remedied by the Supplier in either manner set out in this Clause 7.1 free of charge. However, the Supplier shall not be liable to repair Hardware Defects (or to replace such Hardware) when:
(c) the fault is not caused by, or attributable to, the Supplier; or
(d) it is more than one year since the item of Hardware in question was supplied by the Supplier to the Customer.
7.2 The supplier aims to resolve any defects raised by the Customer within the following timeframes:
|Critical||The entire system is down. No reasonable workaround is possible.||2 hours|
|High||A major piece of functionality is not working, causing significant disruption to service e.g. more than 50% of beer wall taps are not working||4 hours|
|Medium||A component of the system, such as a printer, is not functioning as expected
A minor piece of functionality is not working, causing minor disruption to service
An intermittent issue is causing minor disruption to service
|Low||A cosmetic issue
A non-service related issue, such as a report not displaying correctly
Any issue that is not directly affecting service
|As agreed with customer|
7.3 The resolution times in clause 7.2 do not include any time between requesting an action from the customer and the customer confirming that the action has been completed. Resolution times are also only counted during the specified support hours or site trading hours if no support hours have been specified.
7.4 Where any of the service level agreements stated in clause 7.2 are not met in any calendar month, the relevant following service credits will be applied to the customers account. A maximum of one service level miss will be counted for any one issue.
(a) For one low, medium or high service level agreement miss, 25% of fees for the month to be credited to the customers account
(b) For two low, medium or high service level agreement misses, 50% of the fees for the month to be credited to the customers account
(c) For three low, medium or high service level agreement misses, 75% of the fees for the month to be credited to the customers account
(d) For one critical or four low, medium or high service level agreement misses, 100% of the fees for the month to be credited to the customers account
7.5 If the Customer requires support for issues that are not the result of Defects and/or Hardware Defects (or if the issue is the result of a Hardware Defect that is not remediable by the Supplier under Clause 7.1), the Customer may request the Supplier provide remedial support (which shall be either offsite or onsite of the Customer’s location, at the Supplier’s discretion and as deemed appropriate by the Supplier). Subject to Clause 7.3, any such remedial support shall be charged at £75 per hour, for all support provided to the Customer in excess of 1 hour in aggregate per calendar month. After the first aggregate hour of support provided to the Customer in any calendar month, the minimum charge for any single period of time spent (either offsite or onsite) by the Supplier in providing such remedial support to the Customer shall be £75. If a representative of the Supplier is required to travel to a site at which the Customer has installed Software or Hardware, reasonable travel fees shall be payable by the Customer in addition to the stated hourly rate. Fees for remedial services shall be charged monthly, and the provisions of Clause 4 shall apply mutatis mutandis to this Clause 7.2.
7.6 The Supplier may elect to waive fees for remedial work (levied in accordance with Clause 7.2) at its sole discretion. The Supplier irrevocably agrees that no fee shall be chargeable in respect of any offsite remedial work undertaken during the period of 14 clear days after the date of this licence.
7.7 The Supplier does not warrant that the use of the Software or the Hardware will be uninterrupted or error-free.
7.8 The Customer accepts responsibility for the selection of the Software and Hardware to achieve its intended results and acknowledges that the Software and Hardware has not been developed to meet the individual requirements of the Customer.
7.9 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.
8. CONFIDENTIALITY AND PUBLICITY
8.1 Subject to Clause 8.3, each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including, without limitation, trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.
8.2 The terms of this licence are confidential and may not be disclosed by the Customer without the prior written consent of the Supplier.
8.3 The Supplier shall be entitled (for its market analysis and business development purposes) to collate data in relation to the provision of the Software and Hardware, and the Customer’s use of the Software and Hardware. Such data shall be obtained through the Remote Server, and shall only be retained by the Supplier:
(a) on the basis that it is anonymous and does not directly refer to the Supplier; or
(b) with the express prior written permission of the Customer.
9. LIMITS OF LIABILITY
9.1 Except as expressly stated in clause 9.2:
(a) the Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:
(i) special damage even though the Supplier was aware of the circumstances in which such special damage could arise;
(ii) loss of profits;
(iii) loss of anticipated savings;
(iv) loss of business opportunity;
(v) loss of goodwill; or
(vi) loss or corruption of data.
(b) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract (whether oral or written) shall in no circumstances exceed a sum equal to the total Fees payable by the Customer for the Software and any fees payable for any Hardware; and
(c) the Customer agrees that, in entering into this licence, either it did not rely on any representations or warranties (whether written or oral) of any kind or of any person other that those expressly set out in this licence or (if it did rely on any representations or warranties, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability otherwise than in accordance with the express terms of this licence.
9.2 The exclusions in clause 7.9 and clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:
(a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;
(b) fraud or fraudulent misrepresentation;
(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(d) any other liability which may not be excluded by law.
9.3 All dates supplied by the Supplier for the delivery of the Software or the provision of the Hardware shall be treated as approximate only. The Supplier shall not be liable for any loss or damage arising from any delay in delivery beyond such approximate dates.
9.4 All references to "the Supplier" in this clause 9 shall, for the purposes of this clause and clause 18 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its or their Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 18.
10. INTELLECTUAL PROPERTY RIGHTS
10.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Modifications belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.
10.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession, use, development, modification or maintenance of the Software (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party (Claim) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, clause 10.2 shall not apply where the Claim in question is attributable to possession, use, development, modification or maintenance of the Software (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.
10.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier's obligations under clause 10.2 are conditional on the Customer:
(a) as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;
(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);
(c) giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier's expense) for the purpose of assessing the Claim; and
(d) subject to the Supplier providing security to the Customer to the Customer's reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.
10.4 If any Claim is made alleging that the Customer has breached the Intellectual Property Rights of any other person or entity, or in the Supplier's reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:
(a) procure for the Customer the right to continue using, developing, modifying or maintaining the Software (or any part thereof) in accordance with the terms of this licence;
(b) modify the Software so that it ceases to be infringing;
(c) replace the Software with non-infringing software; or
(d) terminate this licence immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer's use of the Software to the date of termination) on return of the Software and all copies thereof.
10.5 This clause 10 constitutes the Customer's exclusive remedy and the Supplier's only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 9.1.
11. DURATION AND TERMINATION
11.1 Without prejudice to any rights that have accrued under this agreement or any of its rights or remedies, either party may at any time terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any term of this agreement (other than failure to pay any amounts due under this agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party (being a company);
(h) a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(j) the other party (being an individual) is the subject of a bankruptcy petition or order;
(k) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(l) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(d) to clause 11.1(j) (inclusive).
11.2 The Customer may terminate this Licence at any time by giving written notice to the Supplier.
11.3 Termination by either party in accordance with the rights contained in this clause 11 shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
11.4 On termination for any reason:
(a) all rights granted to the Customer under this licence shall cease;
(b) the Customer shall cease all activities authorised by this licence;
(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence; and
(d) the Customer shall immediately destroy or return to the Supplier (at the Supplier's option) all copies of the Software then in its possession, custody or control and, in the case of destruction, certify to the Supplier that it has done so.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
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.
14. ENTIRE AGREEMENT
14.1 This licence, the schedules and the documents annexed as appendices to this licence or otherwise referred to herein contain the whole agreement between the parties relating to the subject matter hereof and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter.
14.2 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.1 If any court or competent authority finds that any provision of this agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this agreement shall not be affected.
16.2 If any invalid, unenforceable or illegal provision of this agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
This agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this agreement, but all the counterparts shall together constitute the same agreement.
18. THIRD-PARTY RIGHTS
A person who is not a party to this agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
19. 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.
20. 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, and in such circumstances, provided that if the period of delay or non-performance continues for two months, the party not affected may terminate this agreement by giving 14 days' written notice to the other party.
20.1 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
21. GOVERNING LAW AND JURISDICTION
21.1 This agreement 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.
21.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This licence has been entered into on the date stated at the beginning of it.