1. These are the Terms and Conditions that govern the relationship between Bookatable Limited, a company registered in England and Wales under Company Number 04494036, whose registered address is 7 Soho Square, London W1D 3QB, and the Customer, as defined below, in relation to the matters set out in the Order Form, as defined below.
2.1. The definitions and rules of interpretation in this clause apply to the Agreement:
– Affiliate means a company, corporation, partnership or other business entity which a party wholly owns or controls, or which wholly owns or controls a party, or which is under substantially common ownership or control with a party, and for this purpose “control” means the power to secure that the affairs of the entity are conducted in accordance with its wishes.
– Agreement means the Order Form and these Terms and Conditions.
– Available means that the Booking System can be accessed and utilised by Diners for an average of 99.5% of the time, measured over the course of each four week period on a twenty four hours a day, seven days a week basis.
– Bookatable means Bookatable Limited.
– Bookatable Services means those products and services provided by Bookatable or its Affiliates pursuant to the Agreement, as set out in the relevant section of the Order Form and the Bookatable SMS Services.
– Bookatable SMS Services means a service which enables the Customer to Send an SMS via the Booking System.
– Booked Cover means Direct Booked Covers and Indirect Booked Covers.
– Booking System means the online restaurant reservation service and all related technology, including the Booking Widget, as developed from time to time, owned, operated and supplied by Bookatable.
– Booking Widget means the web interface, owned and provided by Bookatable as part of the Booking System, through which Diners make and cancel Restaurant reservations.
– Business Day means a day (excluding Saturdays and Sunday) on which banks are generally open in the region applicable to the Restaurant Website.
– Cancellation means a Booked Cover that is subsequently cancelled by the Diner.
– Credit Card Guarantee Service (CCG Service) means that part of the Bookatable Services comprised of the credit card guarantee service described in the Order Form.
– Customer means the counterparty to the Order Form as more particularly detailed in the Order Form.
– Data Protection Legislation means: (a) in EU countries, the EC Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data (95/46/EC), the Privacy and Electronic Communications (EC Directive) Regulations 2003 implementing Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications and all local laws or regulations giving effect to these Directives, as may be amended, modified or replaced from time to time, and including all related codes of practice; and/or (b) in non-EU countries, any similar or equivalent laws, regulations or rules relating to information or data about individuals.
– Diner means a person accessing the Booking System via a Restaurant Website, on a Bookatable owned or operated website (such as Bookatable.com) or on a Network Partner Website or on a Network Partner Website (where the Booking System pertains to a Restaurant).
– Direct Booked Cover means each individual booked to attend a Restaurant by means of a Diner using the Booking Widget on a Restaurant Website.
– Direct Transaction Fee means transaction fees payable in respect of Direct Seated Covers, as set out in the relevant section of the Order Form.
– Direct Seated Cover means each individual that attends a Restaurant pursuant to a reservation made by a Diner using the Booking Widget on a Restaurant Website.
– Due Date means the date on which payment of Fees are due, as shown on the relevant invoice; or (if no date is shown) 30 days after the invoice date.
– Effective Date means the date on which the Order Form is executed by the last party.
– Fees means the Fixed Fees and the Transaction Fees.
– Fixed Fees means those fixed fees set out in the relevant section of the Order Form.
– Go Live Date means the date from which Bookatable Services shall be payable as set out in the Order Form.
– Indirect Booked Cover means each individual booked to attend a Restaurant by means of a Diner using the Booking Widget on a Network Partner Website.
– Indirect Transaction Fee means transaction fees payable in respect of Indirect Seated Covers as set out in the relevant section of the Order Form.
– Indirect Seated Cover means each individual that attends a Restaurant pursuant to a reservation made by a Diner using the Booking Widget on a Bookatable owned or operated website (such as Bookatable.com) or on a Network Partner Website.
– Initial Term means the initial terms stipulated in the Order Form or if no such initial term is stipulated in the Order Form, the period of 12 months.
– Intellectual Property Rights means all intellectual property rights on a world-wide basis whether currently in existence or otherwise and whether vested or contingent including (without limitation) copyright (including foreign language translation rights), design rights, database rights, rights in any domain names, registered designs, patents, trademarks, trade names, signs and other designations provided the foregoing are of a proprietary nature and all similar rights whether registered or otherwise (including, without limitation, all extensions, reversions, revivals and renewals thereof). The above shall include, in relation to registerable rights, any applications made or rights to make applications in respect of any such rights.
– Network Partner means a third party with whom Bookatable has entered into an agreement whereby that third party is permitted to accept Restaurant bookings via its website (“Network Partner Website”).
– No Show means any Booked Cover that is neither the subject of a Cancellation, nor becomes a Seated Cover.
– No Show Fee means the fee payable by a Diner in respect of a No Show by that Diner.
– On-boarding Obligations means the specified actions set out in the Order Form which each party commits to complete on or before specified dates.
– Order Form means the contract entered into between the parties (electronically or in physical form) relating to the provision of the Bookatable Services, containing some or all of the elements set out below and / or such other details as may be relevant, as may be amended from time to time by mutual written agreement:
– Restaurant Details
– Customer and Billing Details
– Contact Details
– Bookatable Services and Fixed Fees
– Direct and Indirect Transaction Fees
– Effective Date
– Go Live Date
– Initial Term
– Payment Provider means the third party payment provider engaged by Bookatable to administer the No Show Fee.
– Restaurant means those restaurants set out in the Order Form.
– Restaurant Websites means those websites, owned or controlled by the Customer, that showcase its Restaurants.
– Seated Covers means Direct Seated Covers and Indirect Seated Covers.
– Termination Date means the last day of the month in which the 90 day notice period expires.
– Transaction Fees means Direct Transaction Fees and Indirect Transaction Fees.
2.2. Save where the context indicates otherwise:
2.2.1. The singular shall include the plural, and vice versa;
2.2.2. Plurals shall be read as if followed by the phrase “(or any of them)”; and
2.2.3. References to clauses are to clauses in this Agreement.
2.2.4. Where the words include(s), including or in particular are used in these Terms and Conditions or any Order Form, they are deemed to have the words without limitation following them.
3. Bookatable’s obligations
3.1. Bookatable shall meet the On-boarding Obligations and, provided the Customer has met their On-boarding Obligations, provide the Customer with access to the Bookatable Services, and shall continue to do so for the duration of this Agreement.
3.2. In so far as the Booking System forms part of the Bookatable Services hereunder, Bookatable shall use best efforts to ensure that the Booking System is continuously Available.
3.3. Bookatable grants the Customer during the term of this Agreement and in accordance always with this Agreement, a non-exclusive, non-transferable, revocable, royalty-free, worldwide licence to use the Bookatable Services (including the Booking System and the Booking Widget if ordered), together with any related materials and software provided by Bookatable (collectively, the “Bookatable Materials”), solely for its own use, and solely for the purposes for which they were designed.
3.4. Bookatable grants the Customer during the term of this Agreement a non-exclusive, non-transferable, revocable, royalty-free, worldwide licence to use any Bookatable trademarks or logos solely, in accordance with all of Bookatable’s reasonable instructions, for the purposes of communicating the fact that Bookatable is providing the Bookatable Services to the Customer, and/or for the express limited purpose of this Agreement.
3.5. Bookatable makes available access to its Network Partners. The Network Partners will change over time as new ones are added and existing one cease to be partners. Bookatable makes no representations as to the extent, reach or delivery capability of its Network Partners. If the Bookatable Services purchased include Network Partners, Bookatable will ensure Restaurant bookings are available via Bookatable.com within two weeks of the Customer having completed training and fulfilled its On-Boarding Obligations. The availability of booking via all other Network Partner Websites is dependent upon the relevant partner opening up their website. Bookatable will actively pursue and encourage Network Partners to make the Customer available on their website as soon as possible but makes no warranties or representation regarding when availability will be achieved.
4. Customer’s obligations
4.1. The Customer shall pay the Fixed Fees, and, to the extent that the Booking System forms part of the Bookatable Services, the Transaction Fees.
4.2. The Customer shall meet the On-boarding Obligations. This includes providing, in a timely manner all reasonably requested technical data, materials and support to allow Bookatable to perform its obligations under this Agreement and to facilitate the provision of the Bookatable Services. This also includes accurately completing the Bookatable set up form(s) or equivalent, in so far as the same is set out in the Order Form.
4.3. Clauses 4.4 – 4.11 shall only apply in so far as the Booking System forms part of the Bookatable Services ordered.
4.4. The Customer shall ensure that the Booking Widget is live on its Restaurant Websites no later than 15 days following the Effective Date, and for the duration of this Agreement.
4.5. The Customer shall, at all times, ensure that: (i) the Booking Widget is displayed in a prominent position on Restaurant Websites, in such a manner that the end user is not required to scroll down to view the Booking Widget; and (ii) that the online booking functionality is highlighted on the Restaurant Websites’ home pages and in the primary navigation bars throughout the Restaurant Websites.
4.6. The Customer shall ensure that online table availability is maximised at all times, is available to www.bookatable.com and all Network Partners, and is at least equal to telephone table availability.
4.7. The Customer shall, at all times, use best efforts to ensure that the Booking System will be continuously available to prospective Diners through its Restaurant Websites. If at any time its Restaurant Websites fail to make the Booking System Available, the Customer shall use all best efforts to resolve such unavailability within the fastest possible time frame. Bookatable reserves the right to terminate this Agreement immediately without compensation if the Restaurant Websites fail to make the Booking System Available for more than 48 continuous hours.
4.8. The Customer agrees to enter all Cancellations and No Shows into the Booking System within 72 hours following the relevant dining date. Cancellations and No Shows not entered within 72 hours are billable – see section 6.
4.9. The Customer has an obligation to pay for all Seated Covers. The Customer undertakes that it shall not register a Seated Diner as a Cancellation or No Show in the Booking System if it is not a genuine Cancellation or No Show, respectively and shall ensure it has sufficient processes and checks in place to ensure that staff verify the status of a Booked Cover before changing it and do not intentionally – or unintentionally – register a Seated Diner as a Cancellation or No Show in the Booking System if it is not a genuine Cancellation or No Show. Bookatable may at its sole discretion undertake audit procedures, including contacting any Diner entered as a Cancellation or No Show, to ensure that the notification process is being operated in accordance with this Agreement. The Customer will also provide any supporting evidence that Bookatable may reasonably demand.
4.10. The Customer shall, at all times, use best efforts to keep Bookatable informed about any changes relating to a Restaurant and/or the Customer’s business which could be relevant to a prospective Diner, as soon as the Customer becomes aware that such a change will happen or has happened, as the case may be.
4.11. The Customer shall give Bookatable at least 14 Business Days prior written notice of any expected temporary closure or unavailability of the Restaurant itself or any downtime, scheduled service outages and/or maintenance of the Restaurant Websites likely to result in the Booking System being unavailable on Restaurant Websites. The Customer acknowledges and agrees that the Bookatable Service will remain provisioned during such times even if the Customer is unable to utilise it and therefore any Fixed and Transaction Fees will remain payable during such periods and no credits will be requested and/or given.
4.12. The Customer grants Bookatable during the term of this Agreement a non-exclusive, royalty-free, revocable worldwide licence to use any Customer trademarks or logos solely for the purposes of communicating the fact that Bookatable is providing the Bookatable Services to the Customer, and/or for the express limited purpose of giving effect to this Agreement. The Customer confirms that photography or related content sourced directly from the Customer or from the Customer’s website, and made available to Bookatable, is owned by the Customer and is free of any usage restrictions and third party rights. The Customer further agrees that Bookatable shall be authorised to use the aforementioned photography and content to deliver Bookatable Services on Bookatable products and across network partners.
4.13. The Customer shall not charge a Diner a fee for using the Booking System.
4.14. The Customer recognises that the Bookatable Services rely upon the Customer maintaining internet access to utilise them and that maintaining that access is the sole responsibility of the Customer and no refunds will be due if access is not in place and maintained throughout this Agreement.
5. Credit Card Guarantee
5.1. The provisions of this Clause 5 shall apply where the Customer has elected in the Order Form to receive the CCG Service.
5.2. The Customer shall, when ordering the CCG Service, specify in the Order Form when a No Show Fee shall be payable by a Diner (the “Diner Policy”).
5.3. The Customer shall notify Bookatable (by such method as the parties may mutually agree from time to time) of all No Shows for which the Customer claims a No Show Fee.
5.4. The Customer acknowledges that Bookatable shall, acting as the Customer’s agent, instruct the Payment Provider to process No Show Fees in accordance with the terms of the Diner Policy and the Customer’s reasonable instructions.
5.5. The Customer authorises Bookatable to retain all No Show Fees collected by Bookatable on behalf of the Customer. The Customer further authorises Bookatable to deduct from the No Show Fees all Fees payable by the Customer under this Agreement, and any fees payable by Bookatable to the Payment Provider in respect of the No Show Fees.
5.6. At the end of each month, Bookatable shall provide the Customer with a statement of reconciliation setting out the balance of the No Show Fees held by Bookatable on behalf of the Customer after deduction of the No Show Fees and/or fees to the Payment Provider since the previous reconciliation statement.
5.7. The Customer agrees to indemnify Bookatable and its Affiliates against all losses, damages, liabilities and expenses (including legal costs) made or brought against Bookatable and its Affiliates in connection with any claim or allegation made by a third party that the notification given by the Customer to Bookatable under Clause 5.3 is invalid and/or where the No Show Fee is deemed to be or alleged to be unlawful.
5.8. The Customer acknowledges and agrees that Bookatable relies on the Payment Provider to administer the No Show Fee, and that Bookatable has no control over the reliability or efficacy of the Payment Provider’s services. Accordingly, Bookatable shall have no liability whatsoever for any loss or damage, however caused, arising out of the administration (or lack thereof), by the Payment Provider, of the No Show Fee.
6.1. Bookatable shall invoice the Customer in respect of such period or periods as set out in the Order Form. Unless agrees otherwise in an Order Form, Fixed Fees will be billed in advance and Transaction Fees will be billed in arrears in the manner set out in the Order Form. Fees are exclusive of VAT and other sales and use taxes. If Customer uses the Bookatable SMS Services, Customer shall be billed in arrears for the actual number of SMS messages sent in the previous period at the rate of 6p.
6.2. In respect of Direct Transaction Fees (if applicable), Bookatable will determine the number of Direct Seated Covers for the relevant period based on the number of Direct Booked Covers, less: (i) Cancellations entered into the Booking System by the Diner or the Customer (if the Diner cancelled through notifying the Customer directly) during the relevant period; and (Ii) No Shows entered into the Booking System by the Customer during the relevant period.
6.3. In respect of Indirect Transaction Fees (if applicable), Bookatable will determine the number of Indirect Seated Covers for the relevant period based on the number of Indirect Booked Covers, less: (i) Cancellations entered into the Booking System by the Diner or the Customer (if the Diner cancelled through notifying the Customer directly) during the relevant period; and (ii) No Shows entered into the Booking System by the Customer during the relevant period.
6.4. For the purposes of Clauses 6.2 and 6.3, the Customer agrees that Bookatable shall not recognise – and therefore the Customer will be liable to pay for – any purported Cancellation entered into the Booking System by the Customer, or recognise any No Show, unless such Cancellation or No Show, as the case may be, is entered within 72 hours following the relevant dining date.
6.5. The Customer shall settle all invoices (if applicable) by the Due Date. Where the Customer provides Bookatable with its credit or debit card or enters into a direct debit arrangement for that purpose, the Customer shall have funds automatically deducted by Bookatable. Where the Customer is due payment by Bookatable (for example in respect of the CCG Service) Bookatable shall have the right to offset amounts due to and amounts payable by the Customer.
6.6. Any amounts not paid when due under this Agreement will bear interest at the rate of 0.75 percent per month or the highest rate permitted by law (whichever is less) calculated on a daily, compound rate, until paid. Failure to pay on time may result in immediate suspension of service and may also result in referral to a debt collection agency, whereupon the Customer shall be charged, and be liable to pay, an additional sum of 15% of the value of the relevant invoice (plus VAT) to cover the collection costs incurred by the agency, plus any legal or other fees incurred by the agency in the process of chasing or collecting the debt
6.7. The Customer shall pay a processing charge of ten pounds (£10) for any returned cheque, rejected credit or debit card charge or for any rejected automated bank account debit.
6.8. The Customer understands and agrees that Bookatable may, after the Initial Term (as set out in the Order Form), and at its sole discretion, modify the Fees including but not limited to an annual increase every January in line with the rate of increase in the Retail Price Index over the previous 12 months. Bookatable will use reasonable efforts to provide sixty days written notice prior to any such modification.
6.9. Bookatable may, at its sole discretion, perform a reconciliation between Booked Covers and Seated Covers and issue credits and debits as necessary. Where the Customer claims any credits (including in respect of No Shows and Cancellations) it shall be the responsibility of the Customer to provide verifiable supporting evidence at the time of the claim and Bookatable shall be under no obligation to settle such credits unless such evidence is provided immediately on request.
6.10. Where the Customer is invited by Bookatable to pay by direct debit other similar automated payment and opts not to, Bookatable shall add, and the Customer shall pay, an additional GBP 3.00 per month to the Fees.
6.11. Where the Customer is invited to enter credit or debit card details into the relevant Bookatable website, or over the telephone:
6.11.1. Payment will be processed by a secure connection at the time the Customer places the order on the relevant section of the Bookatable website, or over the phone, as applicable, and monthly thereafter.
6.11.2. Bookatable will inform the Customer as soon as practicable if it cannot supply the Bookatable Services within thirty (30) days of the Order Form Effective Date and the Customer may agree an alternative time frame or may cancel the Order Form. In no event shall Bookatable be liable to the Customer for any losses due to any delay in being able to access the Bookatable Services.
6.11.3. If the Customer cancels the Bookatable Services in accordance with the termination provisions in this Agreement, the Customer will be charged for the notice period, after which the Bookatable Services shall be withdrawn.
7.1. The Customer undertakes that during the term of this Agreement, the Restaurant Websites shall not run, provide, display or contain any advertising or promotion of, any Competing Service. A “Competing Service” is any product or service that has similar functionality to the Bookatable Services.
7.2. The Customer undertakes that during the term of this Agreement and for 6 months thereafter, it will not directly or indirectly be engaged in the development or provision of a Competing Service without the prior written consent of Bookatable.
8. Intellectual Property Rights and Data
8.1. As between the parties, the Customer acknowledges and agrees that Bookatable or its Affiliates owns all Intellectual Property Rights in the Bookatable Services and the Bookatable Materials. As between the parties, Bookatable acknowledges and agrees that the Customer owns all Intellectual Property Rights in the Restaurant Websites. Neither party shall take any action inconsistent with such ownership by the other party, nor attempt to register any such Intellectual Property Rights of the other party in any jurisdiction.
8.2. Neither party, by virtue of this Agreement, shall obtain or claim any right, title or interest in nor to the other party’s name, trademarks, service marks, logos or Intellectual Property Rights, except the limited rights of use as specified herein, and the parties acknowledge and agree that all such use shall inure to the benefit of the respective owner.
8.3. Neither party shall alter or remove any printed or on-screen copyright, trademark nor other proprietary or legal notices placed or required by the other party with respect to the use of its trademarks and logos as provided pursuant to this Agreement.
8.4. Clauses 8.5 – 8.7 shall only apply in so far as the Booking System forms part of the Bookatable Services hereunder.
8.5. Bookatable and its Affiliates shall have the right to present a text and/or symbol on the Restaurant Websites in conjunction with the Booking Widget. This could be in any reasonable form such as “powered by Bookatable” or “provided by X” or simply a branded logo where X is Bookatable’s own name or a brand or service name owned by Bookatable. Bookatable shall also have the right to add a pre-ticked opt-in box to the Booking Widget on Restaurant Websites, Bookatable’s owned or operated websites and on Network Partner Websites.
8.6. The Customer undertakes to comply at all times with the Data Protection Legislation.
8.7. Where Bookatable or its Affiliates processes personal data (as defined in Data Protection Legislation) on behalf of the Customer, then Bookatable and its Affiliates shall:
8.7.1. process such data solely in accordance with the Customer’s instructions from time to time; and
8.7.2. adopt and maintain appropriate security measures for processing data, both in terms of the technology used and how it is managed.
9. Term and Termination
9.1. This Agreement shall, subject to earlier termination in accordance with its terms, commence on the Effective Date and continue for the Initial Term. At the end of the Initial Term, this Agreement shall automatically renew and remain in full force an effect until terminated by either party giving the other no less than 90 days prior written notice of the wish to terminate this Agreement.
9.2. The termination of the Agreement shall be effective on the Termination Date. For example if the 90 day notice is given on 15 April, 90 days is 14 July and the Agreement will terminate on 31 July and the Termination date will be 31 July.
9.3. At any time up to 7 days before the Termination Date Bookatable will suspend access to the Bookatable Services. Suspension will mean that the Customer no longer has access to the Bookatable Services to manage Booked Covers and potential Diners no longer have access to create Booked Covers. To enable the Customer to be aware of Booked Covers for dates after suspension of the Bookatable Services, Bookatable will send the details of such Booked Covers.
9.4. The Customer is liable for all Fixed Fees up to and including the Termination Date. These will have been billed in advance. In the 31 July example, the July subscription will have been included on the June invoice.
9.5. The Customer is also liable for all Transaction Fees both up to and after the Termination Date. In the 31 July example, there may be Diners who have booked prior to the Termination Date and subsequently become Seated Covers after the Termination date. These future bookings will continue to be invoiced after the Termination Date. For example August Seated Covers will be invoiced at the end of August and any September Seated Covers will be invoiced at the end of September. Therefore if the Customer has any advanced Booked Covers at the Termination Date they will continue to receive invoices after the Termination Date in respect of such Booked Covers and the Customer is obligated to settle these invoices in accordance with this Agreement.
9.6. If a Booked Cover becomes a Cancellation and / or a No Show after suspension, the Customer must notify the Company within 72 hours of the month end in which the change occurred by emailing to firstname.lastname@example.org. If notification is not made within the 72 hour time limit the Customer will be liable to the Transaction Fee for that Booked Cover.
9.7. In addition, either party may terminate this Agreement immediately at any time by giving the other party notice in writing if:
9.7.1. the other party commits any material breach of any of the terms of this Agreement and that breach (if capable of remedy) is not remedied within fifteen (15) days of notice being given by the party not in breach requiring it to be remedied; or
9.7.2. the other party becomes bankrupt or corresponds with its creditors or enters into a voluntary arrangement, an order is made or a resolution is passed for its winding up, or an order is made for the appointment of administrator to manage its affairs, business or property, or a receiver and/or manager or administrative receiver is appointed in respect of all or any of its assets or undertaking, or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver, or which entitle the Court to make a winding-up or bankruptcy order, or the other party takes or suffers any similar or analogous action in any jurisdiction; or
9.8. Notwithstanding anything to the contrary contained in this Agreement, Bookatable may immediately terminate this Agreement if an invoice remains unpaid for longer than the Due Date.
9.9. Within 28 days of termination of this Agreement (howsoever arising) Bookatable shall prepare a final statement of reconciliation and send such statement together with any balance of No Show Fees held by Bookatable to the Customer (less amounts held back in respect of disputed No Show Fees).
10. Warranties and Liabilities
10.1. Bookatable warrants that it owns or has all rights necessary, including with respect to all Intellectual Property Rights, in order to provide the Bookatable Services and grant the licenses as specified in this Agreement. Save as aforesaid, Bookatable makes no warranties, representations or covenants or guarantees with regard to the Bookatable Services, whether express or implied, arising by law or otherwise, including without limitation any implied warranty or condition of merchantability, satisfactory quality or fitness for a particular purpose which are hereby excluded to the fullest extent permitted by law.
10.2. Neither party’s liability: (a) for death or personal injury caused by its negligence or the negligence of its employees or agents; (b) under Part I of the Consumer Protection Act 1987; (c) for breach of any condition as to title or quiet enjoyment implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982; or (d) for fraud or fraudulent misrepresentation, is excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
10.3. Subject to 10.2, in no event shall either party be liable for any: (i) consequential, indirect, incidental, punitive, or special damages whatsoever; or (ii) for loss of profits; (iii) business interruption; (iv) loss of business information; or (v) loss of goodwill or reputation and the like, arising out of or in connection with this Agreement, even if such party has been advised of the possibility of such damages.
10.4.Subject to 10.2 Bookatable’s total aggregate liability under this Agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) shall not exceed the total amount paid or payable by the Customer to Bookatable under this Agreement in the 12 months immediately preceding the event giving rise to the claim.
11.1. Each party acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party’s clients, customers, businesses, business plans, finances, technology or affairs, which information is proprietary and confidential to the other party (“Confidential Information”).
11.2. Each party undertakes to maintain and procure the maintenance of the confidentiality of Confidential Information at all times and to keep and procure the keeping of all Confidential Information secure and protected against theft, damage, loss or unauthorised access, and not at any time, whether during the term of this Agreement or at any time thereafter, without the prior written consent of the owner of the Confidential Information, directly or indirectly, to use, disclose, exploit, copy or modify any Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the performance of its rights and obligations under this Agreement.
11.3. The terms of and obligations imposed by this Clause 11 shall survive the variation, renewal or termination of this Agreement but shall not apply to any Confidential Information which:
11.3.1. at the time of receipt by the recipient is in the public domain;
11.3.2. subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
11.3.3. is lawfully received by the recipient from a third party on an unrestricted basis:
11.3.4. is already known to the recipient before receipt pursuant to this Agreement; or
11.3.5. is disclosed in confidence to a professional adviser of the recipient or is required by law, regulation or order of a competent authority (including any recognised investment exchange) to be disclosed by the recipient.
12.1.Bookatable will not be liable to the Customer for any failure or delay in performance of any of its obligations under this Agreement arising out of any event or circumstances beyond the reasonable control of Bookatable.
12.2. All notices must be in English, in writing, addressed to the other party’s primary contact and sent to their then current postal address or email address or other address as either party has notified the other in accordance with this clause. All notices shall be deemed to have been given on receipt as verified by written or automated receipt or electronic log (as applicable).No modification or variation of this Agreement (or any document entered into pursuant to or in connection with this Agreement) shall be valid unless it is in writing and signed by or on behalf of each of the parties to this Agreement.
12.3. The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it.
12.4. Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other party in any way.
12.5. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns. Neither party may assign either this Agreement or any of its rights, interests or obligations hereunder, except for any assignment: (i) made in connection with any business combination transaction, whether carried out as a sale of assets, merger, sale of stock or any other combination thereof or similar transaction, by such party; or (ii) made to an Affiliate, without the prior written approval of the other party.
12.6. This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter hereof. The Customer warrants to Bookatable that it has not been induced to enter into this Agreement by any prior representations whether oral or in writing, except as specifically contained in this Agreement. The Customer shall not have any remedy in respect of any untrue statement made by Bookatable on which the Customer relied in entering into this Agreement (unless such untrue statement was made fraudulently) and the Customer’s only remedies shall be for breach of contract as provided for in this Agreement.
12.7. If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
12.8. To the extent that there is any conflict between these Terms and Conditions, the Order Form or any addenda to the Order Form, these documents shall prevail in the following order; (i) Addenda (ii) Order Form (iii) Terms and Conditions unless otherwise mutually agreed between the parties..
12.9. Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.
12.10. This Agreement shall be construed in accordance with and governed by the laws of England. The parties agree that any dispute or claim in connection with this Agreement shall be brought exclusively in the courts of England and expressly waive any objection they may have to such jurisdiction and venue.