Round Terms and Conditions

 

1. Definitions and Interpretation

The definitions and interpretative provisions of the Summary Schedule and Schedule 1 apply to this agreement.

 

2. Application of this agreement

2.1 This agreement comprises the Summary Schedule and Round Terms and Conditions.

2.2 This agreement shall prevail over any inconsistent terms or conditions  contained in, or referred to in any Customer purchase order, written terms or terms implied by law, trade custom, practice or course of dealing.

2.3 This agreement entitles Round to provide, and the Customer to utilise, the Round Service on the terms set out in this agreement.

2.4 Each party warrants that it has full capacity to enter into and perform its obligations under this agreement.

 

 

3. Implementation and exclusivity

3.1 Within a reasonable period commencing on the date of this agreement:

3.1.1 Round will, at its own cost, supply to the Customer the Hardware; and

3.1.2 the Customer will:

3.1.2.1 create an account with Round’s Payment Provider;

3.1.2.2 supply Round will all relevant details to enable Round to remit payments to the Customer via Round’s Payment Provider in accordance with its obligations under this agreement; and

3.1.2.3 provide to Round all information reasonably requested by Round to make the Customer’s full food and drinks offering (including menus, price lists and table numbers) available to Users via the Round App.

3.2 The Customer acknowledges that at all times the Hardware is, and will remain, the exclusive property of Round.

3.3 The Customer grants to Round the exclusive right to operate the Round Service at the Venue including with regards to deliveries to the Users. For the duration of the agreement, the Customer will not offer, implement or promote any other service:

3.3.1 at its Venue which enables a consumer to order and pay (whether at, or in advance of the consumer’s arrival at, the Venue) for food and drink for collection or delivery to their table; or

3.3.2 which enables a consumer to order and pay for food and drink for collection at the Venue or delivery from the Venue to the consumer.

3.4 Round will at all times be free to provide the Round Service to other customers and venues without restriction.

 

4. Round’s obligations

Round will, at its own cost provide:

4.1 the Training and Support;

4.2 details of the repair and replacement policies applicable to the Hardware, as provided by Round’s suppliers; and

4.3 Marketing Materials.

 

5. The Customer’s obligations The Customer will:

5.1 immediately and accurately fulfil all Orders received via the Round App;

5.2 promote and recommend the use of the Round App to consumers as a means of ordering food, drinks and any complementary merchandise at the Venue and in respect of Deliveries;

5.3 immediately notify Round upon discovering any problem or fault with the functioning of the Round Service, Hardware or Software;

5.4 direct any issues concerning repair or replacement of Hardware to Round’s suppliers in accordance with the policies provided by Round under clause 4.2 or as updated from time to time;

5.5 cooperate with Round for the good functioning of the Round App;

5.6 promptly provide to Round all information reasonably requested by it;

5.7 ensure that:

5.7.1 all information supplied to Round (including all menu content, allergen information, pricing, opening hours, delivery costs and all other information relating to the Venue or the Delivery service) is complete and accurate;

5.7.2 prior to any such information being made available to Users it will verify and provide confirmation to Round (in the manner requested by Round) that such information complete and accurate. The Customer accepts that in making information available to Users it accepts sole responsibility for the accuracy of all such information and that Round will not be responsible for any fault, damage or loss caused by incomplete or inaccurate information);

5.8 immediately notify Round of any amendments or updates to the information set out in clause 5.7.1 and provide verification and confirmation in accordance with clause 5.7.2;

5.9 ensure that the Hardware and Software is only used by properly trained staff in accordance with Round’s instructions from time to time;

 5.10 keep the Hardware in good and clean condition, ensuring that:

5.10.1 the external surfaces, cables and fittings of the Hardware are kept in good, clean condition; and

5.10.2 the Hardware is kept in the environmental conditions recommended by Round;

5.11 put and keep in place adequate security measures to protect the Hardware and Software from any viruses, harmful code or unauthorised access;

5.12 ensure that it has an appropriate, properly maintained internet / local network connection in place to receive orders via the Hardware and Software;

5.13 ensure that all email and login passwords to the Hardware and Software remain secure and confidential; 

5.14 be solely responsible for any connection, line rental charges and/or other charges relating to the operation of the Hardware and Software at the Venue;

5.15 prominently display and/or make available all Marketing Materials provided to it in accordance with Venue Promotion; 

5.16 not intentionally do or omit to do anything to diminish the rights of Round in the Round Marks;

5.17 not intentionally do or omit to do anything to reduce, diminish or compromise the reputation, image or prestige of Round, the Round App or the Round Marks;

5.18 on reasonable notice and where reasonably requested, provide to Round access to the Venue and other facilities;

5.19 comply with all applicable laws and regulations with respect to its activities under this agreement (including the prohibition on the sale of alcoholic drinks to anyone under the age of 18); and

5.20 notify Round in advance of any policies (including health and safety requirements) which apply to Round’s activities.

 

6. Delivery service

6.1 The Customer will ensure that the option for Delivery will be available to Users during the hours advertised within the Round App (with exception for emergency closures of the Venue). 

6.2 The Customer will ensure that all Orders for Delivery:

6.2.1 are prepared promptly, accurately and in accordance with the timescales communicated via the Round App;

6.2.2 are prepared using all due skill, care and diligence in line with best practice in the Customer’s industry;

6.2.3 are packaged in a way that avoids tampering, minimises spillages, and maintains the Order at an appropriate temperature for consumption; and

6.2.4 have been properly cooked or prepared and are otherwise safe, fit for transportation and consumption.

6.3 In respect of all Deliveries, the Customer will be solely responsible for arranging the transportation of the relevant Order, in respect of which the Customer will:

6.3.1 use reasonable endeavours to ensure that each Order is collected and delivered to the relevant User in a timely manner;

6.3.2 ensure that if the method of transportation consists of a third party taxi or other provider (Third Party Provider) such provider is a reputable entity; and

6.3.3 be responsible for any damage to any food, drink or packaging items caused during such transportation (for the purpose of clause 7.6).

6.4 The Customer will be responsible for the acts and omissions of any Third Party Provider and will remain primarily responsible to Round in respect of compliance with this agreement.

 

7. Fees

7.1 In consideration for the provision of the Round Service, Round will be entitled to deduct the Round Service Fee. For the avoidance of doubt, the Round Service Fee will be deducted in respect of costs of Delivery charged to Users by the Customer.

7.2 In consideration for the proper performance of the Customer’s obligations, the Customer will be entitled to the Customer Share.

7.3 After deduction of the Round Service Fee, the Customer Share will be remitted to the Customer via Round’s Payment Provider two days after the day on which any Order is paid for by the User.

7.4 All figures quoted in this agreement are excluding applicable VAT.

7.5 The Customer acknowledges that all payments to the Customer are subject to the terms of Round’s Payment Provider and that Round will not be liable for any failure of, or delay in, payment which is attributable to: 

7.5.1 a failure of Round’s Payment Provider; or

7.5.2 the Customer’s failure to comply with the terms and conditions of Round’s Payment Provider.

7.6 The Customer will be responsible for processing any refund requests and dealing with any complaints regarding service at the Venue and in respect of Deliveries, except where Round and/or the Round App is at fault. If Round is at fault, the Customer must immediately direct the User to help@round.app.

7.7 Round reserves the right to modify the Round Service Fee (in its discretion) at any time following the expiry of the Initial Term, provided always that Round provides no less than three months’ written notice to the Customer of such modification taking effect.

 

8. Licence and Intellectual Property Rights 

8.1 In consideration of the performance by the Customer of its obligations under this agreement, Round grants to the Customer a non-exclusive licence for the duration of the agreement to use the Software for the purpose of receiving and fulfilling Orders via the Hardware only.

8.2 The Customer represents, warrants and undertakes that the Customer will not, nor permit others, directly or indirectly to:

8.2.1 copy, modify, translate, convert or create derivative works from the Software, any part of it, or any adaptation, transcription, or merged portion of it;

8.2.2 reverse engineer, disassemble, decompile or in any other manner decode the Software (or any part of it);

8.2.3 remove any copyright, proprietary or similar notices from the Software or any part of it (or any copies of it); or

8.2.4 rent, lease, re-sell, sub-license, loan or sell any of the Software or Hardware.

8.3 All Intellectual Property Rights and all other rights in the Round System, Round Marks and promotional materials shall vest and remain vested in Round and/or its licensors. To the extent that the Customer or its personnel create any Intellectual Property Rights in connection with the Round System, Round Marks and promotional materials such rights will vest in Round and are hereby irrevocably assigned to Round.

8.4 The Intellectual Property Rights in the Hardware may be owned by third party suppliers. Where Round notifies the Customer that this is the case, the Customer acknowledges that its use of rights in third party materials may be governed by, and will be conditional upon, the Customer agreeing to an end-user licence (or sub-licence) of such rights directly with the relevant licensor.

8.5 The Customer grants to Round a non-exclusive, royalty-free licence for the duration of the agreement to use the Customer’s trade marks (including the name of the Venue) for the exclusive purpose of marketing and promoting the Round App.

8.6 Round grants to the Customer a non-exclusive, terminable, royalty-free licence for the duration of the agreement to use Round’s “Round” trade mark and logo for the exclusive purpose of marketing and promoting the Round App in accordance with its obligations under clause 5.15.

 

9. Ownership of data

 9.1 All data (including all personal data, Order data, transactional data, sales data, product data and stock data) collected via the Round App are owned by Round. 

9.2 To the extent that such data is personal data, it is acknowledged by both parties that Round is the data controller. Round will process all personal data set out in clause 9.1 in accordance with Round’s privacy notice, which can be found here: www.round.app/privacy.

9.3 To the extent that Round (in its discretion) provides any personal data to the Customer for a specific purpose (such as to enable the Customer to carry out Delivery services, to assist the Customer in complying with any obligations or requests regarding public health or the prevention of crime), the Customer undertakes that:

9.3.1 it will not use such personal data for any other purpose;

9.3.2 it will delete such personal data once that purpose is completed; and

9.3.3 it will comply with Data Protection Laws in relation to such personal data.

9.4 It is acknowledged that in respect of personal data shared with the Customer by Round pursuant to clause 9.3, each party will be a data controller in respect of such personal data.

 

 

10. Term and Termination 

10.1 Unless terminated earlier in accordance with clause 9.1 below, this agreement will commence and become binding on the parties on the date stated on the Summary Schedule. The agreement shall continue for the Initial Term, continuing thereafter until such point as either party terminates the agreement by giving at least three months’ prior written notice (such notice not to expire before the end of the Initial Term).

10.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if the other party commits a material breach of any term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so.

10.3 Without affecting any other right or remedy available to it, Round may terminate this agreement with immediate effect by giving written notice to the Customer if the Customer fails to comply with its obligations under clauses 5.7, 5.15, 5.19 or 7 of this agreement.

10.4 Upon termination of this agreement, the Customer must, upon Round’s request, immediately:

10.4.1 return (at Customer’s own cost for all postage and packing) and/or make available for collection the Hardware supplied by Round during the course of the agreement;

10.4.2 irretrievably delete from the Customer’s systems any data referred to in clause 9.1 and/or any Software (except any data and/or Software contained on the Hardware); and

10.4.3 provided that the Customer has failed to fulfil Orders through the Round service equal to or greater than £11,000 ex VAT per Venue, pay a sum of £250 per venue to Round as compensation towards its unrecouped costs.

10.5 The following clauses shall survive termination or expiry of this agreement: 1, 2, 3.2, 7, 8.1 – 8.4 (inclusive), 9, 9.1, 11, 12 and 14.

 

11. Liability

11.1 All warranties, conditions and other terms implied by statute or common law are excluded from this agreement to the fullest extent permitted by law

11.2 Nothing in this agreement will operate to exclude or limit either party’s liability for death or personal injury caused by its negligence, for fraud or for any other liability which cannot be excluded or limited under applicable law.

11.3 Round will not in any circumstances have any liability for any loss or damage which may be suffered by the Customer or its agents, sub-contractors, consultants or employees, whether suffered directly or indirectly, whether immediate or consequential and whether arising in contract, tort (including negligence) or otherwise, which falls within any of the following categories:

11.3.1 special or indirect or consequential damage even if Round was aware of the circumstances in which such damage could arise;

11.3.2 loss of profits (whether considered a direct or indirect loss);

11.3.3 loss of anticipated savings;

11.3.4 loss of business opportunity;

11.3.5 loss of goodwill or damage to reputation;

11.3.6 loss or corruption of data or information;

11.3.7 loss or liability which arises following any industry, regulatory or criminal sanction or penalty (it being acknowledged and agreed that the Provider will, despite the provision of the Round Services, not be responsible for regulatory sanction or enforcement for the Customer).

11.4 Subject to clauses 11.2 and 11.3, Round’s aggregate liability in respect of claims arising out of or in connection with this agreement or any collateral contract, whether in contract or tort (including negligence) or otherwise, will not exceed the total of the Round Service Fees paid to Round in the 12 month period preceding the claim.

 

12. Confidentiality

12.1 A party (Receiving Party) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed (either orally, in writing or by demonstration) to the Receiving Party by the other party (Disclosing Party) or its employees, agents or subcontractors and any other confidential information concerning the Disclosing Party’s business, its products and services which the Receiving Party may obtain (Confidential Information).

12.2 In relation to any Confidential Information received from the Disclosing Party or from a third party on behalf of the Disclosing Party, the Disclosing Party and the Receiving Party agree. 

12.2.1 to treat the Confidential Information in confidence and to use it only for the purpose of discharging the Receiving Party’s obligations under this agreement;

12.2.2 not to disclose the Confidential Information to any third party without the express written permission of the Disclosing Party (except that the Receiving Party may disclose the Confidential Information to its officers, employees, consultants, agents and sub-contractors who need access to the Confidential Information in connection with discharging the Receiving Party’s obligations under this agreement and provided that such officers, employees, consultants, agents and subcontractors are made aware of the confidential nature of the Confidential Information and are subject to confidentiality obligations at least as onerous as those set out in this agreement); and 

12.2.3 to treat the Confidential Information with the same degree of care and with sufficient protection from unauthorised disclosure as the Receiving Party uses to maintain its own confidential or proprietary information.

 

13. Force Majeure

Subject always to clause 10.4.3, neither party shall be liable for any failure to perform its obligations under this agreement if such failure results from circumstances which could not reasonably be contemplated at the time of entering into this agreement and which are beyond the parties’ reasonable control (including, without limitation, an act of God, strikes, lock-outs or other industrial disputes (involving the workforce of Round), failure of a utility service or transport network, war, riot, civil commotion, disease, terrorism, malicious damage, fire, flood, storm or default of suppliers or sub-contractors). If a force majeure event continues for a period of 60 days or more such that performance of the agreement becomes impossible, the party unaffected by the force majeure event may terminate this agreement immediately by providing the other party with written notice.

 

14. Miscellaneous

14.1 Each party shall :

14.1.1 comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption in each country where a party has its principal place of business and where such Party conducts activities under this Agreement in respect of (including but not limited to the UK Bribery Act 2010)(“Anti-Bribery Laws”);

14.1.2 have and shall maintain in place throughout the term of this Agreement its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with Anti-Bribery Laws and will enforce them where appropriate.

14.2 This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.

14.3 No variation of this agreement will be effective unless it is in writing and signed by both parties.

14.4 No failure or delay by a party to exercise any right or remedy provided under this agreement or by law will constitute a waiver of that or any other right or remedy, nor will it prevent or restrict the further exercise of that or any other right or remedy.

14.5 The Customer may not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement without the prior written consent of Round. Round may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement. 

14.6 All notices must be in writing and will be delivered:

14.6.1 sent by email to the email address notified to the other party; or

14.6.2 by hand or pre-paid first class post or other next Working Day delivery service at its registered office (if a company) or its principal place of business (in any other case).

14.7 Any notice shall be deemed to have been given:

14.7.1 if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume;

14.7.2 if delivered by hand, on signature of a delivery receipt; or

14.7.3 if sent by pre paid first class post or other next Working Day delivery service, at 9.00 a.m. on the second Working Day after posting.

14.8 Clause 14.6 and 14.7 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

14.9 Nothing in this agreement is intended to, or will be deemed to establish any partnership or joint venture between the parties, make a party the agent of the other party or authorise a party to make or enter into any commitments for or on behalf of the other party.

14.10 Unless specifically provided otherwise, rights arising under this agreement are cumulative and do not exclude rights provided by law.

14.11 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause 14.11 shall not affect the validity and enforceability of the rest of this agreement.

14.12 No person who is not a party to this agreement will have any right to enforce it pursuant to the Contracts (Rights of Third Parties) Act 1999. 

14.13 This agreement is governed by the laws of England and Wales and the parties agree to irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.

 

Schedule 1 

Definitions and interpretation 

(Clause 1)

1. In this agreement including the Schedules, the following words and expressions shall have the following meanings:

Customer Share
the price of an Order as quoted in the Round App less the Round Service Fee.

Data Protection
Laws all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

Delivery
delivery to a User by the Customer of food and/or drinks items from the Venue following placement of an order via the Round App and Deliveries shall be construed accordingly. 

Hardware
any hardware provided by the Round (including one Order receiving tablet, stand, cable and screen protector (or such other hardware agreed by Round)) to enable the Customer to receive and fulfil orders via the Round App. 

Initial Term
as set out on the Summary Schedule.

Intellectual Property Rights
any patents, copyright, trademarks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs (whether registered or unregistered) database rights, topography rights, moral rights, rights in confidential information (including without limitation, know-how and trade secrets) and any other intellectual property rights or industrial property rights, in each case whether registered or unregistered and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.

Marketing Materials
marketing materials promoting the Round App which may include, without limitation, collection sign, posters, window stickers and digital materials.

Order
an order for a single drink or food item made by a User via the Round App (whether at the Venue or for Delivery).

Round App
Round’s proprietary food and drink ordering application, known as “Round”.

Round Marks
the ROUND word and logo marks (including trade mark UK00003396151) and all other trademarks used in Round Service Agreement connection with the Round App (including all goodwill in such trade marks).

Round’s Payment Provider
Adyen, or such other payment platform providers as Round may notify the Customer from time to time.
 

Round Service
the Order receiving and payment processing service provided by Round via the Round System.

Round Service Fee
as set out on the Summary Schedule.

Round System
all aspects of the Round App, including:

1. the Hardware;

2. the Software;

3. source and object code comprised in the User-facing version of the Round App;

4. all other technical systems and interfaces; and

5. any documentation and instructions. 

Software
any Order receiving software (including all source code and object code) provided by Round for use with the Hardware, or any third-party hardware.

Summary Schedule 
the summary sheet appearing at the front of this agreement.

Support
as set out on the Summary Schedule.

Third Party Provider
as defined in clause 6.3.2.

Training
as set out on the Summary Schedule.

User
an individual user of the Round App and Users will be construed accordingly.

Venue(s)
as set out on the Summary Schedule.

Venue Promotion
as set out on the Summary Schedule.

Working Days
Monday to Friday (excluding any bank or public holidays in England).

 2. A reference to a party or parties shall refer to either of the parties set out on the Summary Schedule.

 3. Unless the context otherwise requires, words in the singular shall include the plural and in the plural, include the singular.

 4. A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

 5. The terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms.

6. A reference to writing or written includes faxes and email unless stated otherwise.

 7. For the purpose of this agreement, the terms process, processed, processes, processing, personal data, data controller, data processor and data subject have the meanings as defined in the Data Protection Laws.