Takeaway Genie (TG) restaurant agreement

1. General Terms and Conditions of Sale

   In these Terms of Us, Wowpos ltd is referred to as “Takeaway Genie”, “we” or “us” and End User Consumers are referred to as “Consumer”, “consumers”, “user”, “users”, Merchants are referred to as “merchant” or “you”. The services we provide are referred to as the “Service”. "Third Party Software" means the software to be supplied or supported as part of this Agreement but which is under a licence agreement directly between a third party licensor and the Consumer. The contract of purchase is between the Consumer and Merchant and Takeaway Genie is just a facilitator/ordering platform.

   
   The following capitalised terms have the following meanings in the Restaurant Agreement:

   "Card Order" an Order placed via an Order Channel, in respect of which we have directly or indirectly collected payment from the Consumer using a credit or debit card

   "Cash Order" an Order that is not a Card Order

   "Chargeback" any penalty, payment reversal or similar charges or fees we incur from any card scheme, merchant acquirer or card issuer in respect of Card Orders

   "Consumer" a person who has used an Order Channel to place an Order to your business

   "Delivery Charge" our charge to you in respect of each Order for which we provide Delivery Services to you

   "Gross Order Value" the total amount charged by you to the Consumer for an Order (excluding the Service Charge but including the value of the goods plus any delivery charges levied by you) plus any applicable taxes

   "Opening Hours" those hours of operation which you communicate to us digitally from time to time

   "Order" an order for your goods placed by a Consumer and communicated directly to you by us.

    "Order Channel” Your website, ordering platform or related Takeaway Genie mobile applications

   "Premises" an outlet controlled by you from which food, drink and other products are prepared and / or served or distributed to consumers

   "Product" any hardware or software provided by us to you (or your staff or contractors) for the purpose of receiving or managing Orders (or other related purposes)

2. FUTURE CHANGES TO THE RESTAURANT AGREEMENT & NOTICES

   1. We may make amendments or additions to the Restaurant Agreement. We may send you documentation (such as roles or guidelines) via these means, and we may specify that such documentation (or part(s) of it) is intended to form part of the Restaurant Agreement.

3. THE SERVICES WE PROVIDE TO YOU

   1. Order Channels: We enable Consumers to place food Orders from you via an Order Channel. We intend to make each Order Channel available and functional for the purpose of providing the Service at all times but we are under no obligation to do so.
   2. Agency: For the term of the Restaurant Agreement, you irrevocably appoint and authorise us to act as your sole and exclusive agent for the purpose of concluding contracts for the sale of goods between you and Consumers directly by means of Consumers placing Orders via an
   3. Order Channel. The legal contract for the purchase of your goods will in all cases be between you the Merchant and the relevant Consumer
   4. Marketing: If as a merchant you have subscribed to our ‘marketing package’ activities we will use your brand, with the purpose of which is to generate more Orders for you. For example, we may do this online by social media management using your brand content or by adding links to Order Channels in the search engine. Marketing may not reflect a correlation in an increase in orders and any adverse effects will not be refunded or cancelled during the contracted subscription period. You give us your consent to use your name, logo and other intellectual property for the purpose of these marketing activities during the term of the Restaurant Agreement, and you warrant to us that you have the ability to grant this consent to us. You also consent to receiving direct marketing communications of selected third-parties via e-mail, post, or other means of communication, unless you notify us otherwise.

4. YOUR USE OF THE PRODUCT

   1. The dashboard printer or tablet are the property of Takeaway Genie and if damaged you agree to pay Takeaway Genie the current retail cost for a replacement.
   2. Ownership of software & use: The Takeaway Genie software remains our property, or that of our licensors at all times. You are authorised to use this software during the Term in accordance with any end-user licence which we give you notice of from time to time. You must ensure compliance with the terms of that licence by your employees and contractors. You must not, and you must ensure that your employees and contractors do not reverse engineer, decompile, disassemble, crack or otherwise misuse the Product software, and you will use reasonable efforts to keep the functionality of the Product software confidential to you and your employees and contractors.
   3. Product changes: We may upgrade or alter the Product hardware or Product software at any time.
   4. Product instructions: You must follow any lawful instructions we give you in relation to the use of the Product hardware or software.
   5. SIM card: If the Product contains a SIM card slot, you must ensure that it is not used for any reason other than in connection with the Takeaway Genies use as part of the Service.
   6. Updates: We may prompt notification for the Product software at any time for any lawful reason, in particular to update the software or to perform software maintenance.

5. YOUR FULFILMENT OF ORDERS

   1. Your obligations to Consumers: You acknowledge and understand that once a Consumer has placed an Order via an Order Channel, the supply of goods has been created and you are not obliged to fulfil that Order in accordance with the Order details received on the software. You have the option to accept, change and decline the Order.
   2. Acceptance & rejection: If you cannot fulfil your obligation to the Consumer in respect of any Order, You remain liable for updating and providing a reason directly to the Consumer.
   3. Consumer receipts: You will provide each Consumer with a receipt (and a tax receipt, if applicable) in respect of an Order, if the Consumers requests
   4. Delivery and collection: Unless we have agreed otherwise, we will allow Consumers to select delivery and/or collection when placing their Order. If you provide delivery, you will use reasonable commercial efforts to deliver or procure the delivery of the ordered goods to the Consumer promptly at the address communicated to you. You must also check that the Order number given by the Consumer corresponds with the Order number received by you. All Orders which are delivered by you shall be:
   5. Packaged by you in a manner which is proportionate and suitable for delivery and sealed to avoid tampering; and
      
      
      1. Checked by you to ensure the Order is accurate, complete and contains all the goods ordered by the Consumer.
      2. Complaints & compensation: If a Consumer complains to us about any aspect of an Order we will not communicate back as the relationship remains between you and the consumer. Where we, acting reasonably, have incurred costs as a direct result of complaints about your goods or delivery services, Premises or services (including where you have rejected an Order), we may invoice you for those costs.

6. INFORMATION YOU SUPPLY TO US

   1. If you have upgraded your subscription or paid for setup or updated data entry the points 6.1-6.4 you remain liable for. Otherwise, you have the facility to input data entry at your own accord at the initial stage. Accuracy & completeness: You must supply us with any information about your goods, your Premises or your business ("partner information") which we (acting reasonably) may ask you to supply, and you must ensure that such information is accurate. You acknowledge that your partner information (such as postcode, delivery radius and opening hours) and information about your dishes and products will be reproduced verbatim for display to Consumers via the Order Channels. You must ensure that we are supplied with partner information which is up to date at all times.
   2. Allergen information: You are responsible for providing us with up to date details of any allergens in the goods offered for sale via the Order Channels in accordance with applicable laws, and you acknowledge that we will repeat the information you provide about allergens verbatim on the Order Channels. We do not undertake to check, and are not liable for checking this information on your behalf.
   3. Opening hours: You must keep consumers informed of your hours of operation, and if your Opening Hours are stated on your menu, we will be entitled to treat these as the Opening Hours unless you give us notice to the contrary.

7. OUR CHARGES

   1. General: We will charge the Restaurant Charges to you in respect of each Order.
   2. Other charges to you: We may also charge you for other services we have provided to you (such as marketing packages) or administrative services at the rates we give you due notice of from time to time.
   3. Customer transactions will be processed through the Stripe payment gateaway and the merchant will be charged a rate dependant on the volume of transactions processed currently from 95p per order.

8. PAYMENTS FROM CONSUMERS

   1. Receipt of payment: Where a Consumer has chosen to place a Card Order, we will receive payment from Consumers in respect of the Gross Order Value of Card Orders and any admin Charge. All such amounts, less the amount of the Restaurant Charges and any other sums due to us under the Restaurant Agreement or otherwise, will be held by us on your behalf in a designated account until they are payable to you in accordance.
   2. Authorisation: You irrevocably authorise us to act as your agent to accept, receive, and hold the amounts referred to in sections 7 (in respect of Card Orders only) and 8.1 on your behalf, and you authorise us to notify third-parties (including Consumers) that we are so authorised. A Consumer payment through an Order Channel will discharge any payment obligation of that Consumer to you for those amounts.

9. PAYMENTS FROM US & FROM YOU

   1. Withholding & set off: We are entitled to set off any amounts owed to us by you against any amount owed to you by us at any time. We may also make withholdings from amounts we hold on your behalf in respect of any Chargebacks (and associated costs and expenses), or any other cost or expense which we incur or reasonably expect to incur as a result of a breach by you of the Restaurant Agreement ("withholdings"). We may also make withholdings from any amounts we hold on your behalf where we are, or have notice that we may be, ordered to do so by a competent authority. If we make any withholdings, we will do only for so long as is reasonable, and (if applicable) we will make a credit to you in the next Statement after it becomes clear that we will not incur any liability in respect of it.
   2. Refunds: You understand that we are not under any obligation to make refunds of any amounts you have paid to us in respect of the Service or any ancillary or related services (including payments in relation to the Product or in relation to marketing packages).
   3. Stripe account: It is the merchant’s responsibility to maintain a positive balance in your stripe account. If in the case the account turns negative, then Takeaway Genies reserves the rights to apply a charge on the merchant’s bank account or payment card for the difference.

10. YOUR AUTHORITY & CHANGES TO RESTAURANT PROPRIETORSHIP

    1. Franchises: We will not be liable to you if we, acting reasonably, decline to provide any aspect of the Services or related services, or decline to act on your instructions because we are on notice from any person who we have reason to believe is your duly authorised franchisor that to do so would breach any agreement made between you and that franchisor.
    2. Changes to proprietorship: If you cease to operate your business, or you give someone else the right to operate your business (whether permanently or temporarily) you must give us written notice as soon as possible. If we receive notice of a change to the proprietorship of your business, or other important details relating to your business (for example a change of name, or a change to the account to which payments to you are made) from someone other than you and who appears to us to be authorised by you, then we will make reasonable efforts to contact you. You acknowledge that if you don't respond, or if you don't give us the notice referred to in the first sentence of this section, we may terminate this Restaurant Agreement without further notice to you.

11. CONSENTS & COMPLIANCE WITH LAWS

    1. Data protection in relation to you: If you are an individual or a partnership or if otherwise data about you is subject to data protection law then the manner we process data about you is set out in our Restaurant Privacy Policy
    2. Data protection in relation to Consumers: We may share personal data with you in the performance of our obligations under the Restaurant Agreement. The personal data processed under the Restaurant Agreement are described in section
    3. You warrant that you will comply at all times with applicable data protection legislation, and you will maintain appropriate measures to ensure that the rights of the people to whom the personal data relates are protected. You will also implement and maintain appropriate technical and organisational measures to ensure a level of security appropriate to the risks presented by your processing of the personal data, and you must not transfer any personal data outside of the EEA without our consent. If you process any personal data pursuant to the Restaurant Agreement you will follow any instructions we give you in respect of that data, which may include activities that assist and enable us to comply with our obligations under applicable data protection laws, and you will immediately notify us on becoming aware of any actual or possible breach of this section. You will indemnify us for any loss, damage, dispute or third-party claim incurred by us as a result of your breach of this section
    4. Identity of data subjects: Consumers. Types of personal data processed: personal details including titles, first name, last name, email address, Order details, delivery address, phone number and online identifiers including IP address. Duration of processing by you: until the earliest of either the expiry of the Restaurant Agreement plus 28 days, or the date upon which processing is no longer necessary for the performance of your obligations under this Agreement. Nature of processing: receipt, storage and deletion. Purpose of processing: the fulfilment of Orders.
    5. Taxes: You are solely responsible for self-assessing, claiming and remitting all applicable taxes.

12. DELIVERY

    1. The delivery time shall not be the essence of the contract. Whilst TAKEAWAY GENIE shall use reasonable commercial endeavours to deliver the goods by the date specified on the Consumers order, it shall not be liable for the delay in delivery from any cause whatsoever and howsoever arising. Should expedited deliveries be required, then additional costs if applicable must be borne by the Consumer unless otherwise agreed in writing by an authorised employee of the Takeaway Genie

13. SUSPENSION & TERMINATION OF SERVICES

    1. If we (acting reasonably) believe that you are in default of your obligations under the Restaurant Agreement or otherwise are operating your business in a manner which is harmful to our business, goodwill or reputation then without limiting our other rights or remedies, we may at any time suspend provision of the Services under the Restaurant Agreement (including by suspending your profile on any Order Channel and ceasing to conclude the sale of your goods via any Order Channel) or any other services that we provide to you without liability to you. If you operate more than one Premises, we are entitled to invoke this section in respect of only one Premises or all of them, at our reasonable discretion.
    2. No cancellation or variation of an order by the Consumers shall be effective unless made in writing and until accepted in writing by an authorised officer of Takeaway Genie. Takeaway Genie reserves the right to refuse to accept such cancellation or variations or to accept cancellation or variation only subject to such conditions as it considers are warranted according to the circumstances.
    3. The equipment must be returned to Takeaway Genie at the end of your subscription and you are liable for any damage to the associated equipment in transit.
    4. The purchase of any additional services such as marketing material whether it be digital, offline or domain services cannot be returned nor can they be transferred in ownership back to the merchant i.e. purchased domain address form Takeaway Genie. In cases of cancellation, a transfer of ownership fee would be required of £85.00.
    5. Failure to return the Takeaway Genies equipment (Printer) in under this agreement for a period of more than 30 days may result in Takeaway Genie passing the outstanding matter to a third party company for collection. In addition, you will also be liable for any costs and charges incurred in employing the third party collection company.
    6. Takeaway Genie will not compensate and be liable for any subjective return reasons whether it be for software or hardware once the contractual agreement has been made. Any payments made will still stand whilst termination of the service within the contractual agreement will still remain outstanding.

14. DESCRIPTION OF SUPPORT SERVICES

    1. Unless otherwise expressly agreed TAKEAWAY GENIE, support services will be provided during normal UK business hours of 9.00 a.m. to 5.30 p.m. Monday to Friday, excluding Public Holidays.
    2. TAKEAWAY GENIE reserve the right not to deal with or to make additional charges for, reported errors in such software which:
       
       
       1. are the result of failure of equipment or other software not covered by this Agreement;
       2. Faults in mains electrical supplies or operator error;
       3. Are, or could be reasonably construed as, a lack of knowledge of the software;
       4. Are caused by air conditioning, humidity or other environmental conditions; 
       5. are caused by the accident, neglect, misuse or default of the Customer or any third party;
       6. Are due to acts of God, war, acts of Violence or any similar occurrence
       7. result from any attempt by any person, other than Takeaway Genie, to modify or maintain the software otherwise than in the case of only trained Customer staff carrying out normal System functions;
       8. are caused by cable or connector malfunctions.
          
          

15. LIMITATION OF LIABILITY & INDEMNITY

    1. General exclusion: Nothing in the Restaurant Agreement will limit or exclude either party's liability for: death or personal injury caused by its own negligence, or the negligence of its employees, agents or subcontractors; or fraud or fraudulent misrepresentation; or breach of any term implied by any statute or any liability which (in each case) cannot lawfully be limited or excluded.
    2. Exclusion of our liability: Subject to section 16.1, we are not liable to you whether in contract, tort (including negligence), breach of statutory duty or otherwise for: (a) any special damages, any loss of goodwill, reputation, business, profits, data, actual or anticipated income or profits or loss of contract or any indirect or consequential losses; and (b) any damages, costs, direct or indirect losses which relate to faults, breakdowns or other interruptions to the ability of Consumers to place Orders for any reason whatsoever;

16. JUSRIDICATION

    1. Governing law & jurisdiction: The Restaurant Agreement and any dispute or claim arising out or in connection with it or its subject matter or formation (including any dispute or claim relating to non-contractual obligations) is governed by and construed in accordance with English law. The courts of England & Wales have exclusive jurisdiction to settle any dispute or claim (including any dispute or claim relating to non-contractual obligations) arising in connection with the Restaurant Agreement.