- With effect from the Commencement Date, the Company shall have the exclusive right to provide at the Premises, to the Customer, all commodities for the supply of any catering services. All supplies shall be of a quality and the quantities specified by the Company and accepted by the Customer.
- The commodities to be supplied by the Company shall comprise of but not be limited to: -
- Fresh goods including dairy, vegetables, bakery, meat and fish
- Frozen goods
- General groceries and dry goods
- Store cupboard ingredients for staff welfare
- Confectionery goods
- All beverages
- Light and heavy equipment (if required)
- Any other items that may be required for any catering services
- The Company will deliver to the Customer, commodities as ordered by the Customer through the Companies nominated suppliers and by the Customers designated person. The Customer will provide unimpeded access and will be on hand to receive the commodities and to store them at any time required. The Customer will be responsible for checking and signing as correct for deliveries. Where necessary i.e. chilled and frozen supplies should be probed and temperature checked and correct before accepting the delivery.
- The Company is not responsible for quantities or items ordered. Size of portions and dish ingredients are the total responsibility of the Customer.
- The Company is not responsible for late or non-deliveries by a third party.
- The Customer and Company will each comply with all relevant statutory requirements relating to the production, storage, handling and delivery of the commodities. During transportation, all commodities being delivered shall be at the sole risk and responsibility of the Company. The risks shall pass to the Customer upon delivery and the Company will take no responsibility for any commodities purchased or consumption once delivered to the Premises.
- Unless otherwise agreed in writing between the Company and the Customer the agreed prices for items are subject to change due any increases in costs.
- The Company will provide the following support to the Customer as recommendation. It will be the Customer's responsibility to ensure the provision of their services is to an acceptable standard to themselves, their service user and to comply with all legislation.
- Menus that comply with the FSA guidelines
- Recommended seasonal menu cycle
- Recipes detailing:
- Dish method and ingredient
- Allergen information
- Nutritional information
- Dish photograph
- Dish portion sizes
- Theme day marketing and menus
- Food Safety Modules
- Training Modules
- Subject to compliance with the terms and solely during the duration of this Agreement, the Customer has the non-exclusive licence to, and revocable right to access and use, the software at the Premises.
- Access to and use of the software is restricted to the specified number of individual users within each Premises. Each user shall be identified using unique login information such as usernames and passwords and such user login shall be used only by one individual. The Company is responsible for the confidentiality of data and user login.
- The Customer will not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the software available to any third party.
- The Customer is responsible for procuring and maintaining the network connections that connects the Customer to the software and any associated hardware required. The Customer access to and use of the software may require the Customer to use or maintain specific browser software, security certifications and other procedures that supports protocols used by the software.
- The Customer will not be able to access or use the software:-
- during planned downtime for upgrades and maintenance;
- when there is unavailability caused by:
- circumstances beyond the Company's reasonable control such as, but not limited to, acts of god, acts of government, acts of terror or civil unrest, technical failures beyond our reasonable control (including, without limitation, inability to access the internet) to the software; or
- acts undertaken by third parties.
The Company will use reasonable endeavours to notify the Customer in advance in regard to any such unavailability.
For the purposes of this clause 3 and clause 8, "Intellectual Property Rights" means patents (including rights in, and/or, to inventions), copyright (including future copyright), trade marks, service marks, trade names and business names (in each case including rights in goodwill attached thereto), design rights, rights in and/or to internet domain names and website addresses, database rights, rights in computer software, rights in and to confidential information (including trade secrets and know-how) and any and all other intellectual property and/or proprietary rights, in each case subsisting at any time in any part of the world (whether registered or unregistered) and (i) any pending applications or rights to apply for registrations of any of these rights that are capable of registration in any country or jurisdiction and (ii) any similar or analogous rights to any of these rights, whether arising or granted under the laws of England or in any other jurisdiction.
All rights, title and interest in the software, including all Intellectual Property Rights related to the software vest in and belong to the Company or, in respect of any part of the software that is licensed to the Company, its licensors.
Save for the licence to use the software pursuant to clause 3.I, no rights, title or interest in the software or any Intellectual Property Rights relating to the software shall vest in the Customer or be granted to the Customer.
The Company is the owner or the licensee of all Intellectual Property Rights and on termination or expiry of this Agreement all use of the Company's Intellectual Property Rights by the Customer shall cease.
- Phone service and support will be offered as part of the Software and will be available Monday to Friday - 9am - 5.00pm to support with queries around:
- Consistent supplier problem
- Software malfunction
- General advice on system usage
- The Company is not responsible for the accuracy of the software. Any food served or prepared by the Customer which results in death or injury is the sole responsibility of the Customer and not the Company.
- The Customer shall pay the Company the charges as detailed in Schedule 1.
- The Customer shall pay to the Company by way of monthly bankers order commencing on the first day of the accounting period an amount equal to one twelfth of the total estimated annual purchasing value plus VAT (the standing order).
- The company shall produce an invoice at the end of each monthly accounting period detailing the actual purchasing value for that period less the standing order.
- The Customer shall pay the Company no later than 14 days from the date of invoice.
- All payment dates refer to cleared balances. The Company reserves the right to levy an interest charge of 2% over the Svenska Handelsbanken AB (publ) base rate on all overdue sums outstanding. Such interest will be calculated on daily sums owing until the time that sum is paid.
This Agreement is for an initial period of twelve months from the commencement date and shall continue thereafter until terminated by either party giving to the other not less than 6 months' notice in writing expiring at any time but not earlier than at the end of the initial period of twelve months.
Either party may terminate this Agreement with 14 days' notice if there is a material breach of the contract. Either party may give the other party 14 days' notice to remedy any breach.
If payment is not received within 45 days from the date of invoice -
- Orders will not be accepted from the nominated suppliers
- Software access codes will be changed rendering systems unusable
- All IIP will be removed from the Premises
The Customer and all of its employees on termination will surrender all soft and hard ware received whilst this agreement is in place and will allow the Company access to its Premises to audit compliance with this clause.
The Company will affect and maintain insurance cover in respect of the following risks
arising from the delivery of the commodities, support and software:
- Professional Indemnity;
- Employers Liability
- Public and Product Liability (including cover in respect of food poisoning and deleterious
substances in foodstuffs due to negligence of this Company), but not for more
than £5,000,000 in respect of any one incident for a period of insurance
The provisions of this clause 7 shall not apply to any confidential information that the receiving party can demonstrate:
- is in the public domain in substantially the same combination as that in which it was disclosed to the receiving party other than as a result of a breach of this Agreement or any other obligations of confidentiality;
- is or was lawfully received from a third party not under an obligation of confidentiality with respect to it;
- is required to be disclosed under operation of law, by court order or by any regulatory body of competent jurisdiction (but then only to the extent and for the purpose required); or
- was developed independently of and without reference to confidential information disclosed by the other party,
provided always that, except where it is prohibited from doing so by law or court order, a party wishing to rely on an exception contained in this clause 7 shall provide the other with at least ten (10) days' written notice of its intention to do so, such notice specifying details of the exception to be relied upon and the information concerned.
Each party shall be entitled to divulge the other party's confidential information to its employees, agents, directors, officers, authorised sub-contractors, professional advisors and consultants who have a need to know the same in connection with this Agreement, provided that the receiving party shall ensure that such persons are aware of, and shall procure that such persons comply with, these obligations as to confidentiality.
INTELLECTUAL PROPERTY RIGHTS
In respect of any commodities, support or software that are transferred to the Customer under this Agreement, the Company warrants that it has full clear and unencumbered title to all such items.
All Company commodities, support and software together with any Intellectual Property Rights it permits the Customer to use are and shall remain the exclusive property of the Company.
LIMITATION OF LIABILITY
For the purpose of this clause 9, "Year" shall mean a period of 1 month from the Commencement Date.
- The following provisions set out the entire liability of the Company (including any liability for the acts and omissions of its employees, agents and sub-contractors) in respect of:
Any act or omission on the part of the Company or its employees, agents or sub-contractors falling within clause 9.I shall for the purposes of this clause 9 be known as an Event of Default.
- any breach of its contractual obligations arising under this Agreement;
- any mis-representation, mis-statement or tortious act or omission including negligence (excluding any of the same made fraudulently) arising under or in connection with this Agreement.
- Notwithstanding anything to the contrary in this Agreement, the liability of the Company for fraud, death or injury resulting from its own negligence or that of its employees, agents or sub-contractors shall not be limited.
- Subject to clause 9.III, the total liability of the Company in respect of all Events of Default in any Year shall be limited to an amount equal to:
(a) £5 million in respect of damage or loss to the tangible property of the Customer due to an Event of Default; and
- Subject to clause 9.III, the Company shall not be liable in respect of any Event of Default for any loss or damage which may be suffered 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:
- loss of profits;
- loss of turnover;
- loss of anticipated savings;
- loss of business opportunity;
- loss of goodwill;
- loss of data;
- provided that this clause 9.V shall not prevent claims for loss of or damage to the Customer's tangible property that fall within the provisions of clause 9.IV(a) or any other claim for direct financial loss that are not excluded by clauses 9.V(a) to (f) (inclusive).
The Company does not accept liability for any failure to perform caused by events outside of the company's reasonable control.
If either party shall enter into liquidation (other than a voluntary solvent liquidation) or shall have a petition for winding up presented against it or shall pass a resolution for winding up or shall call any meeting of its creditors or shall have a receiver or an administrator of all or any of its undertaking or assets appointed or (being an individual) shall commit an act of bankruptcy this Agreement shall automatically and without notice terminate.
Termination of this Agreement shall be without prejudice to either party's right then accrued due.
The Company shall act as agents in relation to VAT.
The Company will have the right to audit the Customers Premises on relation to this Agreement at any time by giving the Customer reasonable notice.
This Agreement (including any associated non-contractual disputes or claims) is governed by English and Welsh law and the parties hereby accept the exclusive jurisdiction of the English and Welsh courts in relation to any dispute arising under or in connection with this Agreement.