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PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE SIGNING UP FOR THE FLIPDISH PLATFORM
By signing up to access, use or avail of the Flipdish Platform, you (referred to hereafter as the “Customer”, “you” or “your”) agree to the terms and conditions set out below (the “Terms of Service”) in respect of your use of the Flipdish Platform.
The Terms of Service constitute a binding legal agreement between Flipdish Limited, a company registered under the laws of Ireland with company number 555703 and a registered address at First Floor, Heron House, Corrig Road, Sandyford Business Park (“Flipdish”) and you for certain rights to use the Flipdish Platform.
Please read the Terms of Service carefully and if you do not agree to any of them, Flipdish will not be able to provide you with any rights of use in respect of the Flipdish Platform and you must not sign up for the Flipdish Platform.
In consideration of you performing your obligations under the Terms of Service, Flipdish grants you and each Authorised Recipient a personal, non-exclusive, non-sub-licensable, non-transferable, royalty free licence to use the Flipdish Platform in accordance with the Terms of Use and any other instructions, policies, procedures or documentation communicated to you and/or the Authorised Recipient(s) by Flipdish.
2.1 Nothing in these Terms of Service is intended to, or shall be deemed to, establish any partnership, joint venture, employment relationship or franchise relationship between you and Flipdish nor constitute Flipdish as your agent.
2.2 The Terms of Service are solely between you and Flipdish and nothing herein creates legal rights or benefits enforceable by any person other than you and Flipdish and no party can declare itself a trustee of its rights under the Terms of Service for the benefit of any other person.
2.3 You agree that Flipdish will be your exclusive provider of technological solutions similar or equivalent to any part of the Flipdish Platform.
2.4 For the avoidance of doubt, nothing in these Terms of Service will prevent Flipdish from exercising itself, and/or granting to any third party, any right that is identical or similar to any right granted to you and/or an Authorised Recipient under these Terms of Service.
(a) you agree to the Terms of Service;
(b) you have full power and authority to execute and deliver the Terms of Service and to comply with the provisions of, and perform all your obligations and exercise all of your rights under, the Terms of Service;
(c) you have taken all necessary action to authorise the execution and delivery of the Terms of Service and the Terms of Service constitute your legal, valid and binding obligations enforceable against you in accordance with their terms;
(d) you have the full right to licence any Intellectual Property Rights that you licence to Flipdish under the Terms of Service;
(e) the entering into and performance of the Terms of Service by you will not result in, or contribute to, a breach by you of any obligation under any other agreement, confidentiality agreement, nondisclosure agreement or any other contractual arrangement, covenant, understanding or restriction with any third party;
(f) you will comply with all applicable laws relating to the performance of your obligations and the exercise of your rights under the Terms of Service;
(g) all information relating to you and your business that is visible to end-users on or through the Flipdish Platform (including descriptions of your food products) will be accurate and not in any way contrary to applicable laws;
(h) all pricing relating to food and other items that you make available for sale through the Flipdish Platform is transparent and inclusive of VAT or other applicable taxes and is otherwise displayed in accordance with applicable laws;
(i) you will at all times conduct your business in a manner that will reflect favourably on Flipdish’s business, good name and reputation and you will not, by yourself or with others, participate in any illegal, deceptive, misleading or unethical practices relating to orders placed through the Flipdish Platform.
3.2 You agree to use all commercially reasonable endeavours to market the Flipdish Platform (including by utilising all marketing or promotional material and information provided to you by Flipdish) so as to maximise the use of the Flipdish Platform by your existing and prospective customers. You also agree to use all commercially reasonable endeavours to introduce your existing and prospective customers to the Flipdish Platform, including by ensuring that you shall make the Flipdish Platform: (a) available to such customers on a continuous and uninterrupted basis; and (b) at least as visible to such customers as any other medium used by you to enable end-users to order food or other items from you. You acknowledge and agree that any breach of this Clause 3.2 shall constitute a material breach of the Terms of Service that is incapable of remedy.
3.3 You agree to comply with all instructions and policies from Flipdish in relation to the Flipdish Platform and to co-operate with any reasonable security or other checks or requests for information made by Flipdish to you.
3.4 You accept sole legal responsibility and liability in respect of the advertising and sale through the Flipdish Platform of food and other items made available for sale by your business and you acknowledge that Flipdish will not be liable whether in contract, in tort (including negligence), under statute or otherwise under or in connection with any claim, damage, loss, cost, expense or other liability suffered or incurred by any end-user or other third party in connection with food or other items purchased from, or advertised by, you through the Flipdish Platform.
3.5 You will notify Flipdish of all complaints and claims made by End-Users and any other parties that relate to Flipdish and/or the Flipdish Platform but you shall not direct any End-Users to Flipdish upon receipt of any such complaint or claim.
3.6 Other than as expressly set out in these Terms of Service, you will not, without the prior written consent of Flipdish, include any reference to the name of Flipdish or any component of the Flipdish Platform on: (a) your website; (b) any advertising; or (c) any commercial material.
3.7 You acknowledge and agree that Flipdish may accept orders from end-users on your behalf via the Flipdish Platform and collect payment from end-users for such orders. Subject to Clause 13, you will complete all orders received by you via the Flipdish Platform in a timely manner. In the event that you believe that you will be unable to complete any orders received via the Flipdish Platform in a timely manner, you will provide as much advance notice as reasonably possible to Flipdish and adhere to any reasonable instructions provided to you by Flipdish.
3.8 You acknowledge and agree that any failure by you to comply with any of the terms set out herein shall constitute a breach of the Terms of Service by you and that Flipdish may as a result of any such breach, suspend or terminate your rights to use the Flipdish Platform without payment of any amounts or penalty.
3.9 You acknowledge and agree that Flipdish may at any time modify or withdraw (either on a temporary or permanent basis) some or all of the Flipdish Platform. In the event that Flipdish withdraws all of the Flipdish Platform on a permanent basis, Flipdish may, without payment of any amount or penalty, terminate the Terms of Service immediately by written notice to you.
4.1 You will pay to Flipdish the fees and costs and associated invoicing arrangements for the provision of the Flipdish Platform as set out and calculated in the order form which has been issued by Flipdish to you setting out the full fees and charges payable by you for the services performed on the Flipdish Platform (the “Charges”).
4.2 All Charges are exclusive of all VAT, federal, provincial, state or other governmental sales, goods and services, fees or charges in force at any time (Taxes).
4.3 Flipdish will use reasonable endeavours to help prevent Chargebacks. In the event of a chargeback you agree that the cost of the Chargeback (including any associated fees) will be charged to the Customer and Flipdish will refund the Customer any fees charged on the order.
4.4 The Customer acknowledges and agrees that Flipdish may, acting reasonably and at Flipdish’s discretion, refund (either in whole or in part) any payment made by an End-User for an order placed by such End-User via the Flipdish Platform.
4.5 Flipdish shall arrange for the transfer of the total amount of payment card sales processed by Flipdish during the relevant sales period, less commission and fees payable to Flipdish as set out in the order form referred to in clause 4.1.
4.6 You acknowledge and agree that the Charges may be varied by Flipdish at any time (acting reasonably) and that any deposits paid by you to Flipdish are not refundable to you or any other party in any circumstances. Flipdish will provide you with notice of any variation to the Charges.
4.7 You may dispute any Charges which you believe (acting reasonably) are not properly due and owing by you within 10 days of the date of the invoice relating to such Charges. If you do not dispute Charges within this 10 day time period, you acknowledge and agree that such Charges are properly due and owing by you to Flipdish.
5.1 The Terms of Service will commence on the Effective Date and shall continue indefinitely until terminated by either party in accordance with the Terms of Service.
5.2 You may terminate the Terms of Service following the expiry of the Term mentioned in the Order form or twelve (12) months from the Effective Date, whichever one is greater, without cause and without payment of any amount or penalty, by giving three (3) months’ prior written notice to Flipdish.
5.3 For the avoidance of doubt, nothing in this Clause 5 shall affect any obligation on you to pay any Charges that are due and owing to Flipdish as at the effective date of any termination of the Terms of Service and any such obligation shall survive termination of the Terms of Service.
5.4 Flipdish may at any time also terminate the Terms of Service with immediate effect by written notice to you without payment of any amount or penalty if:
(a) you commit a material breach of any provision of the Terms of Service and in the case of a material breach capable of remedy, you fail to remedy the same within 14 days of receipt of a notice from Flipdish giving full particulars of the breach and requiring it to be remedied;
(b) you persistently breach one or more provisions of the Terms of Service;
(c) an Insolvency Event occurs;
(d) you promote any material (through your website or otherwise) which Flipdish reasonably believes may adversely affect its business, good name and/or reputation.
5.5 You acknowledge and agree that you will promptly pay Termination Compensation if Flipdish terminates the Terms of Service in accordance with Clause 5.4.
5.6 Flipdish may terminate the Terms of Service at any time without cause and without payment of any amount or penalty by giving not less than 30 days’ prior written notice to you.
5.7 Without prejudice to Clause 5.8, upon the termination of the Terms of Service all rights granted to you hereunder will cease immediately (including, without limitation, your licence to use the Flipdish Platform) and you will cease all activities authorised by the Terms of Service.
5.8 Termination of the Terms of Service shall not affect any rights or obligation which may have accrued prior to termination or expiry. The obligations of each party set out in any clauses intended to survive such termination shall continue in full force and effect notwithstanding the termination of the Terms of Service
6.1 Flipdish makes no representation or warranty about the Flipdish Platform, including any representation that the Flipdish Platform will be available, uninterrupted, error-free or free of viruses, and Flipdish provides the Flipdish Platform on an “as is” and “as available” basis. You acknowledge and agree that it is your responsibility to ensure that the Flipdish Platform meets your requirements. To the fullest extent permitted under applicable law, Flipdish disclaims any and all implied or statutory warranty, condition, representation and guarantee with regard to the Flipdish Platform including any implied warranty of title, accuracy of data, non-infringement, merchantability or fitness for a particular purpose.
6.2 To the fullest extent permitted by applicable law, Flipdish will not be liable to you or any third party whether in contract, in tort (including negligence), under statue or otherwise under or in connection with the Terms of Service for loss or corruption of data or other equipment (including computing equipment and devices) or property, loss of profits, loss of revenue, loss of business opportunity, loss of reputation, loss of time, loss of savings or for any indirect, special, consequential or punitive loss.
6.3 Flipdish’s total aggregate liability whether in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution, statute or otherwise, arising out of or in connection with the Terms of Service for loss or damage of any kind not excluded by this Clause 6 shall be limited to the lesser of: (a) €3,000; and (b) the total amount of Fees paid by you to Flipdish in the 12 month period commencing on the Effective Date.
6.4 The Customer will indemnify and hold harmless Flipdish and its affiliates against all losses, damages, claims, costs, expenses and other liabilities (including legal fees) incurred by, awarded against or agreed to be paid by Flipdish arising out of or in connection with any third party claim connected to these Terms of Service and/or the use of the Flipdish Platform by you.
6.5 Flipdish acknowledges that the Flipdish Platform may be used by Authorised Recipients provided that you shall ensure that any and all Authorised Recipients comply with the obligations, restrictions and limitations as set out in the Terms of Service and provided that you shall be liable for the acts and omissions of each Authorised Recipient to the same extent that you would be liable to Flipdish under this Agreement if the acts and omissions of such Authorised Recipient were your own acts and omissions.
6.6 Notwithstanding anything to the contrary herein, nothing in the Terms of Service shall exclude or limit a party’s liability for death or personal injury resulting from its negligence or that of its agents or employees.
7.1 You acknowledge and agree that all Intellectual Property Rights in the Flipdish Platform will at all times vest in and be the absolute property of Flipdish and its licensors as appropriate and that subject to Clause 1, you shall not acquire any right, title or interest in or to any Intellectual Property Rights in the Flipdish Platform.
7.2 The Customer grants Flipdish a non-exclusive royalty free, worldwide licence to use the Brands in connection with the promotion and sale of your products through the Flipdish Platform and to otherwise enable Flipdish to perform its obligations and exercise its rights under the Terms of Service.
7.3 Flipdish grants the Customer a non-exclusive, non-transferable, non-sub-licensable, royalty free licence to use Flipdish’s name, logo and promotional material for the purpose of marketing and promoting the sale of its products through the Flipdish Platform only.
7.4 The Customer agrees that it will not, in any manner or by any means, reverse-engineer, decompile, disassemble, decipher, resell, adapt, reproduce, copy, store, distribute, display, publish or create derivative works from any part of the Flipdish Platform or attempt to commercialise, copy or sell any information or matters derived from the Flipdish Platform.
7.5 If notwithstanding Clause 7.1, the Customer acquires, by operation of law, title to any Intellectual Property Rights in the Flipdish Platform, the Customer shall immediately and irrevocably assign, transfer or convey such Intellectual Property Rights to Flipdish.
8.1 Each party shall comply with its obligations under Data Protection Laws.
8.2 The parties acknowledge and agree that if Flipdish provides certain services to you as part of the Flipdish Platform (e.g. managed marketing services), Flipdish may process personal data on your behalf as a processor. In such circumstances, Flipdish will:
(a) process such personal data only on your documented instructions (which includes the Terms of Service) unless required to process such personal data for other purposes under EU or Member State law, in which case Flipdish will notify you of that legal requirement unless the relevant law prohibits such notice;
(b) ensure that its personnel authorised to process such personal data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(c) take all security measures required pursuant to Data Protection Laws (including Article 32 GDPR);
(d) provide reasonable assistance to you, by appropriate technical and organisational measures, to respond to data subject rights exercised pursuant to Data Protection Laws (including Articles 15 to 22 GDPR);
(e) reasonably assist you in ensuring compliance with your obligations relating to the security of processing, breach notification, engagement with supervisory authorities and data protection impact assessments, as required under Data Protection Laws;
(f) at your choice, delete or return all such personal data processed on the termination of the Terms of Service unless applicable law requires retention of such personal data;
(g) on request, make available to you all information reasonably necessary to demonstrate compliance with Flipdish’s obligations in this Clause 8.2. At Flipdish’s discretion, such information may take the form of certificates, third party audit reports or other relevant information; and
(h) notify you immediately if, in Flipdish’s opinion, an instruction from you infringes Data Protection Laws.
8.3 The parties acknowledge and agree that the processing of personal data by Flipdish pursuant to Clause 8.2 shall be for the purposes of performing services of this Agreement, the categories of personal data and data subjects will be limited to what is necessary for these purposes and will continue for the duration of this Agreement.
8.4 You agree that you will pay for Flipdish’s reasonable costs arising from any assistance provided to you pursuant to Clause 8.2(d) and/or Clause 8.2(e).
8.5 The parties acknowledge and agree that they will act as joint controllers of personal data processed on the Flipdish Platform for the purpose of placing and completing orders made with the Customer via the Flipdish Platform (the “Ordering Process”). The parties agree to the following allocation of responsibility for compliance with obligations under the GDPR in respect of their processing of personal data as part of the Ordering Process:
(a) For personal data that is collected by Flipdish on the Flipdish Platform, Flipdish will be responsible for the following:
(i) ensuring that the personal data is processed lawfully, fairly and in a transparent manner in accordance with the GDPR (including Articles 5, 6, 9, 10 and 12 to 14 GDPR);
(ii) responding to any data subject requests in accordance with the GDPR (including requests under Articles 15 to 22 GDPR);
(iii) notifying any personal data breach to the competent supervisory authority and affected data subjects where required in accordance with Articles 34 and/or 33 GDPR;
(iv) implementing and maintaining appropriate technical and organisational measures to secure personal data in accordance with the GDPR (including Article 32 GDPR);
(v) ensuring that personal data is kept for no longer than is necessary for the purposes for which such data is processed;
(vi) ensuring that personal data is accurate and where necessary kept up-to-date in accordance with the GDPR.
(b) For personal data that is received by the Customer from the Flipdish Platform or provided to the Customer directly by End Users, the Customer shall be responsible for:
(i) ensuring that the personal data is processed lawfully, fairly and in a transparent manner in accordance with the GDPR (including Articles 5, 6, 9, 10 and 12 to 14 GDPR);
(ii) responding to any data subject requests in accordance with the GDPR (including requests under Articles 15 to 22 GDPR);
(iii) notifying any personal data breach to the competent supervisory authority and affected data subjects where required in accordance with Articles 34 and/or 33 GDPR;
(iv) implementing and maintaining appropriate technical and organisational measures to secure personal data in accordance with the GDPR (including Article 32 GDPR);
(v) ensuring that personal data is kept for no longer than is necessary for the purposes for which such data is processed;
(vi) ensuring that personal data is accurate and where necessary kept up-to-date in accordance with the GDPR.
8.6 You agree to provide all assistance and cooperation reasonably requested by Flipdish in connection with the performance of its responsibilities under Clause 8.4. In particular, you agree to promptly notify Flipdish (and in any event, within 24 hours) upon becoming aware of any actual or suspected incident involving accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data processed as part of the Ordering Process. Following such notification, you shall provide Flipdish with such further information and assistance reasonably requested by Flipdish.
8.7 Where the Customer and Flipdish act as joint controllers in respect of the processing of personal data as part of the Ordering Process such that they may be jointly and severally responsible for any damage caused by such processing (whether pursuant to Article 26 or 82(4) GDPR or otherwise), the Customer will indemnify and hold harmless Flipdish against the portion of any loss, damage, claim, cost, expense, compensation and other liability suffered or incurred by Flipdish arising out of or in connection with any breach by the Customer of Data Protection Laws and/or its obligations under this Clause 8.
8.8 You will indemnify and hold harmless Flipdish against any loss, damage, claim, cost, expense, compensation and other liability suffered or incurred by Flipdish arising out of or in connection with the performance by Flipdish of any or all of its obligations under Clause 8.2.
9.1 Except to the extent that Confidential Information of a party becomes public through no fault of the other party or the other party is required to disclose it by operation of law or under the requirements of any regulatory authority or revenue authority, each party must keep strictly confidential all Confidential Information of the other party, which is disclosed to or obtained by it, under or otherwise in connection with the Terms of Service, must not divulge such Confidential Information to any third party (other than its employees, consultants and/or professional advisors, and in case of Flipdish parties involved in any actual or prospective transaction involving Flipdish) and must allow access to such Confidential Information to its own employees, consultants and/or professional advisors only to the extent that they need to know such Confidential Information for the performance of their duties.
10.1 Flipdish will retain title to all goods delivered and to be delivered to the Customer and such title shall not pass to the Customer until full payment of all purchase amounts owed by the Customer to Flipdish in respect of such goods has been received by Flipdish, as well as any amounts owed by the Customer pertaining to goods or services delivered by Flipdish under any other agreement between Flipdish and the Customer is received in full by Flipdish and any claims pursuant to any failure in the performance of such agreements on the part of the Customer is resolved to the satisfaction of Flipdish.
10.2 Until title to the goods referenced in Clause 10.1 has passed to the Customer, the Customer will store the goods with due care, ensuring that they are recognizable as the property of Flipdish. In addition, the Customer will be obliged to insure such goods against, inter alia, fire and water damage and theft. The Customer will pledge to Flipdish any claims it has pursuant to such insurance policies upon Flipdish’s request, as additional security with respect to Flipdish’s claims against the Customer.
10.3 In the event that the Customer fails in the performance of any of its obligation under the Terms of Service, or in the event that Flipdish has good reason to believe that the Customer will fail in the performance of its obligations, Flipdish will be entitled to recover the goods delivered under retention of title or to have such goods recovered, even when the goods have to be detached. The Customer will cooperate and assist Flipdish in the event that Flipdish wishes to exercise its rights under this Clause 10. The Customer will bear the costs of recovery by Flipdish pursuant to this Clause 10 without prejudice to any right that Flipdish may have to recover damages against the Customer.
11.1 In the event that Flipdish supplies hardware to you and is subject to laws that require Flipdish to repair or replace defective or faulty hardware, Flipdish will promptly comply with such laws upon receipt of any notice (with reasonable supporting information) from you that the hardware supplied by Flipdish is defective or faulty.
12.1 Flipdish may at any time assign, transfer, novate, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Terms of Service and the Customer shall enter into such documents as Flipdish deems reasonably necessary for this purpose.
12.2 The Customer may not assign, transfer, novate, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Agreement without the prior written consent of the Flipdish.
13.1 Neither party shall be liable to the other party for any failure or delay in performing its obligations under the contract to the extent that such failure or delay is caused by a Force Majeure Event.
13.2 A “Force Majeure Event” includes but is not limited to strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions, or default of suppliers or subcontractors and any other events affecting, preventing or hindering performance of a party of its obligations under the Terms of Services that are beyond its reasonable control.
14.1 If any provision or part-provision of the Terms of Service is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
14.2 If such modification is not possible, the relevant provision or part-provision shall be deemed deleted from the Terms of Service and Flipdish shall prepare a replacement provision that to the greatest extent possible achieves the intended commercial result of the deleted provision or part provision.
14.3 Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Terms of Service.
15.1 The Terms of Service constitute the entire agreement between the parties and supersede and extinguish all prior oral and written commitments, agreements, promises, assurances, warranties, representations and understandings between the parties with respect to the subject matter of the Terms of Service.
15.2 You acknowledge and the Terms of Service may be modified by Flipdish from time to time. If Flipdish makes any material change to the Terms of Service, we will provide you with notice and an opportunity to review the change before they become effective. If you object to any material changes, you may elect to terminate the Terms of Service subject to payment by you of all amounts due and owing to Flipdish as at the effective date of such termination. Your continued use of the Flipdish Platform after we publish or send a notice to you about the changes to the Terms of Services means that you are accepting the updated Terms of Service and will be bound by them as of their effective date.
16.1 No failure or delay by Flipdish to exercise any right or remedy provided under the Terms of Service or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy by Flipdish.
17.1 The Terms of Service, and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with the laws of Ireland.
17.2 Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Terms of Service or their subject matter or formation (including non-contractual disputes or claims).
“Authorised Recipients” means each of your affiliates that is authorised in writing by Flipdish to make use of the Flipdish Platform in accordance with the Terms of Service following Flipdish’s receipt from you of a written request for such affiliate to be authorised to use the Flipdish Platform.
“Brands” means the trade marks, trade names, brands, logos, menus and other get-up owned or used by you.
“Chargeback” occurs when a cardholder (End-User) questions Customer’s payment with their card issuer. The End-User creates a formal dispute which immediately reverses the payment. The payment amount, along with a separate dispute fee, is then deducted from the Customer’s account balance.
“Confidential Information” any information, however conveyed or presented, that relates to the business, affairs, operations, customers, processes, budgets, pricing policies, product information, strategies, developments, trade secrets, know-how, personnel and suppliers of the disclosing party, together with all information derived by the receiving party from any such information and any other information clearly designated by a party as being confidential to it (whether or not it is marked “confidential”), or which ought reasonably be considered to be confidential.
“Data Protection Laws” means to the extent applicable from time to time: (a) the EU’s General Data Protection Regulation (EU) 2016/679 (the “GDPR”); (b) any national legislation implementing the GDPR (including the Data Protection Act 2018 (Ireland) or Directive 2002/58/EC of the European Community; and (c) any similar national privacy laws.
“Effective Date” means the date on the order form referred to in clause 4.1.
“End-User” means a person (including any body corporate) that places an order with you through the Flipdish Platform or that otherwise makes use of the Flipdish Platform in connection with your business;
“Flipdish Platform” means the technology solutions developed by Flipdish and made available to the Customer which enable: (a) end-users to order food and other items from the Customer; and (b) the Customer to manage, analyse and develop its ordering process.
“Initial Term” means the period commencing on the Effective Date and ending on the third anniversary of the Effective Date;
“Insolvency Event” means: (a) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of the Bankruptcy Act 1988; (b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; (c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer other than for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; (d) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; (e) the holder of a qualifying floating charge over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; (f) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over such assets; (g) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; (h) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in (a) to (g) above (inclusive); or (i) the Customer suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
“Intellectual Property Rights” means patents, trade marks or names and service marks (whether or not registered) trade or business names or signs, logos, domain names, design rights, copyrights (both present and future and including rights in computer software), moral rights, registered designs, topography rights and know how (including technical and industrial information in any form including drawings, formulae, test results, reports and procedures), trade secrets, confidential information, database rights, and the right to apply for any applications for any of the preceding items, together with the rights in inventions, processes and all other rights similar to, or having similar or equivalent effect to, any of the above which may subsist now or in the future in any part of the world (whether or not capable of registration) and where such rights are enhanced by registration, any registration of such rights and applications and rights to apply for such registrations.
Updated on 17 February 2021. V.1.3.2021 