These terms and conditions form an agreement (“Agreement”) between Promotigo Limited, incorporated and registered in England with company number 09691474 whose registered office is at Regina House, 124 Finchley Road, London, NW3 5JS (“Promotigo”) and the party identified on the registration form on http://www.guestvisit.co.uk as the venue (the “Venue”) and is subject to the attached terms of this Agreement.
DEFINITIONS AND INTERPRETATION
1.1 The definitions and rules of interpretation in this Clause apply in this Agreement.
Agreement: means this Agreement, including its Schedules and any documents incorporated herein by reference.
Applicable Legislation: means the laws of England and Wales and the European Union and any other laws or regulations, regulatory policies, guidelines or industry codes which apply to the provision of the Services.
Authorised Representative: means the person authorised to act on behalf of the Venue in the receipt of the Services as listed in the Registration Form or as updated by the Venue by notice in writing to Promotigo.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Commencement Date: means the date that the Venue submits the Registration Form to Promotigo and accepts these terms and conditions.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 9.5 or Clause 9.6.
Covid Requirements: the UK Government regulations on the recording of visitors at pubs and restaurants to allow tracing of individuals during a Covid-19 outbreak as amended from time to time.
Guest: means a person attending the Venue and inputting their contact details into the Platform.
Guest Data: the data inputted by a Guest into the Platform.
Data Protection Legislation: 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. Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Trial Period: means the period starting on the Commencement Date and ending 30 days from the Commencement Date.
Term: a period starting on the Commencement Date and continuing thereafter unless terminated in accordance with this Agreement.
Registration Form: the document containing the order details in relation to the Services set out at www.guestvisit.co.uk/ which refers to these terms and conditions.
Personal Data Breach: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to the Guest Data.
Platform: the software platform known as “GuestVisit” as updated by Promotigo from time to time.
Service Fees: the Service Fees payable by the Venue to Promotigo for the Services, as set out on the Registration Form.
Services: means the services enabling the Venue to comply with the Covid Requirements as set out at www.guestvisit.co.uk/
2.1 Subject to the Venue paying the Service Fees and the other terms and conditions of this Agreement, Promotigo shall provide the Services to the Venue during the Term on and subject to the terms of this Agreement.
2.2 The Venue shall comply with the Venue obligations set out in the Schedule
2.3 The Venue shall ensure that only the Authorised Representative is permitted to represent the Venue in dealing with Promotigo in connection with the Services and, in the event of any such unauthorised access or use of the Services the Venue will promptly notify Promotigo.
2.4 The rights provided under this Clause 2 are granted to the Venue only, and shall not be considered granted to any subsidiary or holding company of the Venue.
3.1 Promotigo shall follow its archiving procedures for Guest Data as set out in its back-up policy available through the Platform or such other website address as may be notified to the Venue from time to time, as such document may be amended by Promotigo in its sole discretion from time to time. In the event of any loss or damage to Guest Data, the Venue’s sole and exclusive remedy against Promotigo shall be for Promotigo to use reasonable commercial endeavours to restore the lost or damaged Guest Data from the latest back-up of such Guest Data maintained by Promotigo in accordance with the archiving procedure described in such back-up policy. Promotigo shall not be responsible for any loss, destruction, alteration or disclosure of Guest Data caused by any third party (except those third parties sub-contracted by Promotigo to perform services related to Guest Data maintenance and back-up).
4.1 The parties consider that Promotigo shall be the Controller of the Guest Data while it is residing on the Platform. Unless Promotigo is required by law to disclose the Guest Data to the Venue then the Venue will have no access to the Guest Data and no right to provide any instructions relating to such Guest Data . In the event that Promotigo is required to disclose the Guest Data to the Venue then the Venue shall become a separate Controller of that Guest Data upon receipt from Promotigo.
4.2 Promotigo shall, in providing the Services:
4.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
4.4 Without prejudice to the generality of Clause 4.3, Promotigo will ensure that all necessary appropriate consents and notices in place to enable lawful transfer of the Guest Data to Promotigo for the duration and purposes of this Agreement so that Promotigo may lawfully use, process and transfer the personal data in accordance with this Agreement. The Venue will not circumvent any notices or procedures put in place between Promotigo and the Guest for these purposes.
4.5 Each party shall ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.
4.6 The parties each agree to provide such assistance as is reasonably required to enable the other party to comply with requests from Guests to exercise their rights under the Data Protection Legislation within the time limits imposed by the Data Protection Legislation.
4.7 In the event that the Guest Data is disclosed to the Venue as part of the Service, the Venue shall:
(b) not retain such Guest Data for longer than is necessary to carry out its obligations under the Covid Requirements;
(c) ensure that any such Guest Data is destroyed once processing of such Guest Data is no longer necessary to carry out its obligations under the Covid Requirements and following the deletion of such Guest Data the Venue shall notify Promotigo that such Guest Data has been deleted.
4.8 The parties shall each comply with its obligation to report a Personal Data Breach to the appropriate supervisory authority and (where applicable) data subjects under the Data Protection Legislation and shall each inform the other party of any Personal Data Breach irrespective of whether there is a requirement to notify any supervisory authority or data subject(s). The parties agree to provide reasonable assistance as is necessary to each other to facilitate the handling of any Personal Data Breach in an expeditious and compliant manner.
4.9 In the event of an investigation, audit, dispute or claim brought by a data subject or a supervisory authority concerning the processing of the Guest Data against either or both parties, the parties will inform each other and will cooperate with a view to settling them amicably in a timely fashion.
5.1 Promotigo shall ensure that the Services will be performed with reasonable skill and care.
5.2 Promotigo shall ensure that its personnel providing the Services are qualified and skilled a reasonable level required to provide or perform the Services.
5.3 The obligation under Clause 5.1 and 5.2 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Promotigo’s instructions, or modification or alteration of the Services by any party other than Promotigo or Promotigo’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Promotigo will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Venue with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Venue’s sole and exclusive remedy for any breach of the undertaking set out in Clause 5.1 and 5.2.
(a) does not warrant that:
(i) the Venue’s use of the Services will be uninterrupted or error-free;
(ii) the Guest Data will be complete and accurate (Promotigo relies on the Guest entering Guest Data on to the Platform accurately and completely, in addition Promotigo may be required to delete certain Guest Data in compliance with the Data Protection Legislation);
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Venue acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
5.5 This Agreement shall not prevent Promotigo from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this Agreement.
5.6 Promotigo warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
The Venue shall :
(a) comply with the Venue obligations in the Schedule with all reasonable skill and care and ensure that it complies with the Covid Requirements;
(b) provide Promotigo with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Promotigo;
in order to provide the Services, including but not limited to Guest Data, security access information and configuration services;
(c) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under or in connection with this Agreement;
CHARGES AND PAYMENT
7.1 The Venue shall pay the Service Fees to Promotigo via Paypal Subscriptions.
7.2 Prior to the commencement of the Services, the Venue shall register with Paypal Subsciptions and maintain such registration during the Term:
7.3 Promotigo will issue an invoice via Paypal Subscriptions on a monthly basis and such invoice will be due and payable immediately. If Promotigo has not received payment within 7 days after the due date, and without prejudice to any other rights and remedies of Promotigo:
(a) Promotigo may, without liability to the Venue, suspend the Services and Promotigo shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of HSBC UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
7.4 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Promotigo’s invoice(s) at the appropriate rate.
8.1 The Venue acknowledges and agrees that Promotigo and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, this Agreement does not grant the Venue any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Platform. Promotigo shall own all right, title and interest in and to all of the Guest Data. In the event that the Guest Data is disclosed to the Venue as part of the Services Promotigo hereby grants the Venue a non-exclusive, non-transferrable, royalty free licence to use the Guest Data to meet the Venue’s obligations under the Covid Requirements.
8.2 Promotigo confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
9.2 Subject to Clause 9.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
9.4 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
9.5 The Venue acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Promotigo’s Confidential Information.
9.6 No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
9.7 The above provisions of this Clause shall survive termination of this Agreement, however arising.
LIMITATION OF LIABILITY
10.1 Except as expressly and specifically provided in this Agreement:
(a) the Venue assumes sole responsibility for its compliance with the Covid Requirements; and
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement.
10.2 Nothing in this Agreement excludes the liability of Promotigo:
(a) for death or personal injury caused by Promotigo’s negligence; or
(b) for fraud or fraudulent misrepresentation.
10.3 Subject to Clause 10.1 and Clause 10.2:
(a) Promotigo shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) Promotigo’s total aggregate liability in contract tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with this Agreement shall be limited to the total Service Fees paid for the during the 12 months immediately preceding the date on which the claim arose.
TERM AND TERMINATION
11.1 This Agreement shall commence on the Commencement Date and shall continue unless the either party provides 30 days’ written notice to the other party to terminate this Agreement. The Venue may terminate this Agreement within seven (7) days of the Commencement Date whereupon Promotigo will refund any sums paid by the Venue up to that date of termination.
11.2 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:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other 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;
(c) the other party becomes or is reasonable likely to become insolvent.
11.3 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and the Venue shall immediately cease all use of the Services and the Guest Data shall be deleted at the end of the 21 day period such data is required to be retained under the Covid Requirements;
(b) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
Promotigo shall have no liability to the Venue under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Promotigo or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Venue is notified of such an event and its expected duration.
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement 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.
RIGHTS AND REMEDIES
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
16.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
16.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 16.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
17.1 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.
17.2 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.
17.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
17.4 Nothing in this Clause shall limit or exclude any liability for fraud.
18.1 The Venue shall not, without the prior written consent of Promotigo, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement.
18.2 Promotigo may at any time assign, transfer, charge, sub-contract or deal with all or any of its rights or obligations under this Agreement.
NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).harge, sub-contract or deal with all or any of its rights or obligations under this Agreement.
THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
GOVERNING LAW AND JURISDICTION
20.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
20.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).