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TERMS AND CONDITIONS
1. These are the Terms and Conditions that govern the relationship between Livebookings Limited, a company registered in England and Wales under Company Number 04494036, whose registered address is 5th Floor Elizabeth House 39 York Road London SE1 7NQ, and the Customer, as defined below, in relation to the matters set out in the Order Form, as defined below.
2.1. In these Terms and Conditions:
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.
Availability or 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.
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 and supplied by Livebookings.
Booking Widget means the web interface, provided by Livebookings 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 Livebookings Services comprised of the credit card guarantee service described in the Order Form.
Customer means the counterparty to 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) and all local laws or regulations giving effect to this Directive; 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 or 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, in the amount or amounts 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.
Fees means the Fixed Fees and the Transaction Fees. Fees are exclusive of VAT and other sales and use taxes.
Fixed Fees means those fixed fees set out in the relevant section of 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, in the amount or amounts 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 Network Partner Website.
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, trade marks, 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 registrable rights, any applications made or rights to make applications in respect of any such rights.
Livebookings means Livebookings Limited.
Livebookings Services means those products and services provided by Livebookings or its Affiliates pursuant to this Agreement, as set out in the relevant section of the Order Form.
Network Partner means a third party with whom Livebookings 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.
Order Form means the contract entered into between the parties (electronically or in physical form) relating to the provision of the Livebookings 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 agreement.
• Effective Date
• Customer details
• Restaurant details
• Livebookings Services
• Direct Transaction Fees
• Indirect Transaction Fees
• Fixed Fees
• Billing details
• Credit Card Guarantee
• Initial Term
• Livebookings Network Profile Form
Payment Provider means the third party payment provider engaged by Livebookings 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.
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.
2.3. These Terms and Conditions shall supersede any previous Terms and Conditions currently in force between the parties, save that any provision in the latter relating to contract term and termination shall remain in full force and effect.
3. Livebookings’ obligations
3.1. Livebookings shall, as soon as is reasonably practicable following the Effective Date, or on the date agreed in the Order Form, as the case may be, provide the Customer with access to the Livebookings 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 Livebookings Services hereunder, Livebookings shall use best efforts to ensure that the Booking System is continuously Available.
3.3. Livebookings hereby grants the Customer during the term of this Agreement a non-exclusive, royalty-free, worldwide licence to use the Livebookings Services, together with any related materials and software provided by Livebookings (collectively, the “Livebookings Materials”), solely for its own use, and solely for the purposes for which they were designed.
3.4. Livebookings hereby grants the Customer during the term of this Agreement a non-exclusive, royalty-free, worldwide licence to use any Livebookings trademarks or logos solely for the purposes of communicating the fact that Livebookings is providing the Livebookings Services to the Customer, and/or for the express limited purpose of this Agreement.
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 Livebookings Services hereunder, the Transaction Fees.
4.2. The Customer shall provide all reasonably requested technical data, materials and support to allow Livebookings to perform its obligations under this Agreement and to facilitate the provision of the Livebookings Services. This includes completing the Livebookings Network Profile Form, 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 Livebookings Services hereunder.
4.4. The Customer shall ensure that the Booking Widget is live on its Restaurant Websites no later than 45 days following the Effective Date, and for the duration of this Agreement.
4.5. The Customer shall, at all times, ensure that the Booking Widget is displayed in a prominent position, and in such a manner that the user is not required to scroll down to reveal the interface, on the booking pages of the Restaurant Websites; and that the online booking functionality is highlighted in the sites’ home pages, and in the primary navigation bars throughout the sites.
4.6. The Customer shall ensure that online bookable availability is maximised at all times and is at least equal to telephone bookable 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. Livebookings 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 shall, at all times, use best efforts to keep Livebookings 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.
4.9. The Customer shall give Livebookings at least 14 Business Days prior written notice of any expected downtime, scheduled service outages and/or maintenance to a Restaurant Website and/or the Booking System.
4.10. The Customer hereby grants Livebookings during the term of this Agreement a non-exclusive, royalty-free, worldwide licence to use any Customer trademarks or logos solely for the purposes of communicating the fact that Livebookings is providing the Livebookings Services to the Customer, and/or for the express limited purpose of this Agreement.
4.11. The Customer acknowledges that it is not allowed to charge a Diner a fee for using the Booking System.
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 Livebookings (by such method as the parties may agree from time to time) of all No Shows for which the Customer claims a No Show Fee.
5.4. The Customer acknowledges that Livebookings 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 instructions.
5.5. The Customer authorises Livebookings to retain all No Show Fees collected by Livebookings on behalf of the Customer. The Customer further authorises Livebookings to deduct from the No Show Fees all Fees payable by the Customer under this Agreement, and any fees payable by Livebookings to the Payment Provider in respect of the No Show Fees.
5.6. At the end of each month Livebookings shall provide the Customer with a statement of reconciliation setting out the balance of the No Show Fees held by Livebookings on behalf of the Customer (after deduction of the No Show Fees) since the previous reconciliation statement.
5.7. The Customer agrees to indemnify Livebookings and its Affiliates against all losses, damages, liabilities and expenses (including legal costs) made or brought against Livebookings and its Affiliates in connection with any claim or allegation made by a third party that the notification given by the Customer to Livebookings 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 Livebookings relies on the Payment Provider to administer the No Show Fee, and that Livebookings has no control over the reliability or efficacy of the Payment Provider’s services. Accordingly, Livebookings 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. Livebookings shall invoice the Customer in respect of such period or periods as set out in the Order Form.
6.2. In respect of Direct Transaction Fees (if applicable), Livebookings will determine the number of Direct Seated Covers for the relevant period based on the number of Direct Booked Covers, less 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, less No Shows entered into the Booking System by the Customer during the relevant period.
6.3. In respect of Indirect Transaction Fees (if applicable), Livebookings will determine the number of Indirect Seated Covers for the relevant period based on the number of Indirect Booked Covers, less 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, less 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 Livebookings shall not recognise 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 undertakes that it shall not register a Cancellation or No Show in the Booking System that is not a genuine Cancellation or No Show respectively. Livebookings may at its sole discretion make spot checks to ensure that the notification process is working properly.
6.6. The Customer shall settle all invoices (if applicable) by the Due Date. Where the Customer provides Livebookings with its credit or debit card or enters into a Direct Debit arrangement for that purpose), the Customer shall have funds automatically deducted by Livebookings. Where the Customer is due payment by Livebookings (for example in respect of the CCG Service) Livebookings shall have the right to offset amounts due to and amounts payable by the Customer.
6.7. 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
6.8. 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.
6.9. The Customer understands and agrees that the Livebookings may, after the initial term, 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. Livebookings will use reasonable efforts to provide sixty days written notice prior to any such modification.
6.10. Livebookings 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 Livebookings shall be under no obligation to settle such credits unless such evidence is provided immediately on request.
6.11. Where the Customer is invited by Livebookings to pay by Direct Debit, credit card or other similar automated payment and opts not to, Livebookings shall add, and the Customer shall pay, an additional GBP 3.00 per month to the Fees.
6.12. Where the Customer is invited to enter credit or debit card details into the relevant Livebookings website, or over the telephone:
6.12.1. Payment will be processed by a secure connection at the time the Customer places the order on the relevant section of the Livebookings website, or over the phone, as applicable, and monthly thereafter.
6.12.2. Livebookings will inform the Customer as soon as practicable if it cannot supply the Livebookings Services within thirty (30) days of the order and the Customer may agree an alternative time frame or may cancel the order. In no event shall Livebookings be liable to the Customer for any losses due to any delay in being able to access the Livebookings Services.
6.12.3. If the Customer cancels the Livebookings Services in accordance with the termination provisions herein, the Customer will be charged for the notice period, after which the Livebookings Services shall be withdrawn.
7.1. The Customer undertakes that during the term of this Agreement, the Restaurant Websites shall not run, or contain any advertising or promotion of, any Competing Service. A “Competing Service” is any product or service that has similar functionality to the Livebookings 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 Livebookings.
8. Intellectual Property Rights and Data
8.1. As between the parties, the Customer acknowledges and agrees that Livebookings or its Affiliates owns all Intellectual Property Rights in the Livebookings Services and the Livebookings Materials. As between the parties, Livebookings 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 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 herein.
8.4. Clauses 8.5 – Error! Reference source not found. shall only apply in so far as the Booking System forms part of the Livebookings Services hereunder.
8.5. Livebookings 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 the form of “powered by Livebookings” or “provided by X” where X is Livebookings’ own name or a brand or service name owned by Livebookings.
8.6. The Customer undertakes to comply at all times with the Data Protection Legislation.
8.7. Where Livebookings or its Affiliates processes personal data (as defined in Data Protection Legislation) on behalf of the Customer, then Livebookings 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 the terms thereof, and subject to Clause 2.3, have an initial term as stipulated in the Order Form, or, if no such stipulation there appears, 90 days following the Effective Date. This Agreement shall continue in force and effect thereafter until terminated by either party giving the other 90 days written notice.
9.2. In addition, either party may terminate this Agreement immediately at any time by giving the other party notice in writing if:
9.2.1. 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
9.2.2. 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
9.2.3. the Order Form is headed “Fast 50”, provided this is done within the first 90 days hereof.
9.3. Notwithstanding anything to the contrary contained herein, Livebookings may immediately terminate this Agreement if an invoice remains unpaid for longer than the Due Date.
9.4. Within 28 days of termination of this Agreement (howsoever arising) Livebookings shall prepare a final statement of reconciliation and send such statement together with any balance of No Show Fees held by Livebookings to the Customer (less amounts held back in respect of disputed No Show Fees).
10. Warranties and Liabilities
10.1. Livebookings hereby represents and warrants that it has owns or has all rights necessary, including with respect to all Intellectual Property Rights, in order to provide the Livebookings Services and grant the licenses as specified herein. Save as aforesaid, Livebookings makes no warranties, representations or covenants or guarantees with regard to the Livebookings 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. Nothing in this Agreement shall exclude or limit liability for death or personal injury resulting from the negligence of either of the parties or their servants, agents or employees or for fraud. In no event shall either party be liable for any consequential, indirect, incidental, punitive, or special damages whatsoever or for loss of profits, business interruption, loss of business information, or 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.
10.3. Subject to Section 10.2, Livebookings will not be liable to the Customer (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) for any: (a) indirect, incidental, punitive, or consequential damages; (b) loss of profit; (c) loss of revenue; (d) loss of data; (e) loss of business; or (f) loss of use arising out of this Agreement.
10.4. Subject to Section 10.3 and 10.5 Livebookings’ total 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 Livebookings under this Agreement.
10.5. 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.
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 hereunder.
11.3. The terms of and obligations imposed by this Clause 10 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 hereunder; 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. Livebookings 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 Livebookings.
12.2. All notices, requests, demands, claims and other communications hereunder shall be by email to the addresses in the Order Form. Any notice, request, demand, claim, or other communication hereunder shall be deemed duly given upon acknowledgment of receipt by the recipient, or failing that, within 24 hours of the email being sent. Each party may change the address to which, and/or manner by which, notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other party notice in the manner herein set forth.
12.3. Changes to the matters set out in the Order Form may be agreed by exchange of emails between the parties, or via such other electronic means as Livebookings may make available from time to time. Save as aforesaid, 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.
12.4. 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.
12.5. 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.
12.6. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. No party hereto 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.
12.7. 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 hereby warrants to Livebookings 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 Livebookings 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.
12.8. 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.
12.9. To the extent that there is any conflict between these Terms and Conditions and the Order Form, these Terms and Conditions shall prevail.
12.10. 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.
12.11. 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.