Terms & Conditions
The Good Till Company Limited Master Services Agreement
Last Update: 1st July 2018
1.1 This Agreement applies to and governs Merchant’s access to and use of the Services, Hardware, and Professional Services ordered by Merchant pursuant to an Order. The Services include, but may not be limited to, (a) mobile and web applications for use by Merchant’s Employees to place orders; (b) providing Merchant with certain reporting on its sales and activities; and (c) working with Merchant with respect to any Customer enquiries related to placing orders, in each case under Merchant’s GTC Account. Captalised terms are defined below at Clause 17. In the event of any conflict between the Order and the terms and conditions set out in this Agreement, the former shall take precedence.
2. Right to Use the Services
2.1 Subject to Merchant’s compliance with the terms and conditions of the Agreement, GTC grants to Merchant a limited, non-transferable (except in accordance with Clause 16.4 below), non-sub-licensable, non-exclusive licence during the Term to permit Employees to access and use the Services solely and exclusively for Merchant’s internal business purposes. The Services are licensed, not sold, and Merchant acknowledges that it does not acquire any licence to use the Services in excess of the scope and duration of the licence to the Services specified in the Agreement.
2.2 Merchant is (a) solely responsible for maintaining the security and control of its premises, equipment (including Hardware and associated firmware), and username(s) and access passwords to its GTC Account; and (b) fully liable for all activity of its Employees and Customers that occur under its GTC Account, whether authorised by Merchant or not. Merchant agrees to immediately notify GTC if it becomes aware of any unauthorised activity under its GTC Account, and will cooperate with GTC to prevent any further unauthorised activity.
2.3 As part of the Services, GTC may provide access to the GTC App. Use of the GTC App is subject always to the End User Licence Agreement, which protects GTC’s rights in the Services, use of the GTC App is only for the purposes of Merchant and its Employees accessing and using the Services in accordance with this Clause 2 and Clause 4 below.
If Merchant orders any Professional Services under an Order, then promptly after the Effective Date, Merchant will provide GTC with any information, resources and assistance required by GTC to enable the implementation of the Services and, if applicable and agreed in the Order, to provide training to the Employees. Any dates specified in an Order are estimates only, and are contingent upon Merchant’s timely compliance with its obligations relative to such implementation. If and to the extent of any default or breach on the part of GTC under this Agreement, as a result of Merchant’s failure to timely perform its obligations under this Agreement and/or any Order, then GTC shall be entitled to relief from all liability with respect to such failure and may, in its sole discretion, terminate the Agreement, or any part thereof, upon five (5) days’ written notice to Merchant.
4. Usage Restrictions
4.1 Merchant will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services; (b) modify, translate, or create derivative works based on the Services; or copy (except for archival purposes), rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (c) use or access the Services to build or support, and/or assist a third party in building or supporting, products or services competitive with the Services; (d) remove or obscure any proprietary notices or labels from the Services; (e) use the Services for any fraudulent undertaking or in any manner that could damage, disable, overburden, impair or otherwise interfere with GTC’s provisioning of the Services; (f) violate or breach any operating procedures, requirements or guidelines regarding Merchant’s use of the Services that are posted on or through the GTC App or otherwise provided or made available to Merchant; (g) alter, distribute, license, resell, transfer, assign, rent, lease, timeshare or otherwise commercially exploit the Services to any third-party or provide it as a service bureau; (h) conduct any penetration or vulnerability testing on the Service or network; or (i) copy any features, functions, text or graphics of the Services, including without limitation, the structure, sequence or organization of the user interface.
4.2 Merchant represents, warrants and agrees that Merchant’s use of the Services will be in compliance with this Agreement. Without limiting the foregoing, Merchant acknowledges and agrees that Merchant’s use of Customer information obtained in connection with the Services may be subject to Applicable Laws, and Merchant is solely responsible for knowing and complying with such Applicable Laws as related to Merchant’s business, its use of Customer Data, and its use of the Services.
4.3 GTC may perform maintenance on the Services from time to time, which may result in service interruptions, delays, or errors. GTC may contact Merchant in order to assist GTC with the Services and obtain information needed to identify and fix any errors or bugs. The Services do not function with every mobile device and may only be used on approved GTC Hardware. GTC may alter which Hardware is approved as compatible with the Services in GTC’s discretion from time to time, subject to reasonable notice.
4.4 Merchant will comply with the following requirements in connection with its use of the Services: (a) with respect to each Customer who desires to receive marketing material, enrol in a loyalty program, or receive other communications from Merchant via the Services, such Customer must indicate such consent via the GTC App; Merchant and/or Employees are NOT permitted to add or modify a Customer’s consent indication on his or her behalf; (b) Merchant and/or Employees may not send unsolicited commercial emails or otherwise send any commercial messages in violation of Applicable Laws, and may only send marketing materials or other communications through the Services to Customers who have provided their contact information via the GTC App in accordance with this Clause 4.4. Notwithstanding the capability of the Services to collect and store Customer information and to allow Customers to elect to receive marketing materials from Merchant and GTC, Applicable Laws limit the use of such information once collected, even if Customer has provided consent, and the disclosure of such information to third parties. The parties shall comply with the terms and conditions of the GTC Data Processing Agreement.
5. Ownership; Merchant Data, Customer Data & Trademarks
5.1 GTC owns or has a licence to all rights, title, interest, copyright and other worldwide Intellectual Property Rights in and to the Hardware, Services (including all derivatives or improvements thereof), and Professional Services provided under the Agreement. Merchant may voluntarily submit Feedback at any time. Merchant hereby irrevocably assigns all right, title, interest and other worldwide Intellectual Property Rights in and to the Feedback to GTC, and acknowledges that GTC is free to use, disclose, reproduce and otherwise exploit any and all Feedback provided by Merchant or any Employee relating to the Services in GTC’s sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by GTC.
5.2 Merchant owns all Merchant Data. Merchant hereby grants to GTC a non-exclusive, royalty-free, fully paid up, and worldwide licence to use, copy, modify (including the right to create derivative works of), display and transmit Merchant Data solely in connection with performing the Services. Merchant is solely responsible for the accuracy, quality, content and legality (including compliance with all Applicable Laws) of Merchant Data, the means by which Merchant Data is acquired, and any transfer of Merchant Data outside of the Services by Merchant or any third-party authorised by Merchant. Merchant represents, warrants and agrees that it has all rights necessary to upload the Merchant Data to the Services and to otherwise have such Merchant Data used or shared, as applicable, by GTC in relation to the Services. Merchant will not upload or store any data or materials containing any such information in violation of this Agreement.
5.3 Merchant acknowledges and agrees that, in the course of providing the Services to Merchant, both GTC and Merchant will collect, store and use Customer Data in accordance with the GTC Data Processing Agreement. If Merchant desires to use any Customer Data for purposes other than as described in GTC Data Processing Agreement, Merchant shall be solely responsible for putting in place a separate policy governing such use of Customer Data for its Customers.
5.4 Notwithstanding anything to the contrary in the Agreement, GTC may capture data related to the Merchant’s, its Employees’, and Customers’ use of the Services and may aggregate, use, disclose, compile, distribute and publish statistical or analytical data regarding the performance, provision, and operation of the Services and may make such information publicly available, provided that such information does not directly identify Merchant’s Confidential Information or Personal Data. GTC retains all Intellectual Property Rights in such anonymized, aggregated data.
5.5 Merchant hereby grants GTC a nonexclusive right and licence to use and display Merchant’s Marks on its website and marketing collateral identifying Merchant as a customer of GTC. GTC obtains no rights in the Merchant Marks except for the limited right described in this sub-Clause 5.5, and Merchant retains all right, title and interest in and to the Merchant Marks. All use of the Merchant Marks by GTC will inure to Merchant.
6. Fees & Payment
6.1 Merchant will pay all Fees set forth in each Order. All Fees are non-cancellable and non-refundable, except as otherwise provided for herein. Merchant will pay all Fees in Pounds Sterling or in such other currency as agreed to in writing by the parties.
6.2 The Software Subscription Fees to access and use the Services will remain unchanged during the Initial Term of this Agreement provided always that GTC reserves the right to: (i) change, on a pass-through basis, any third-party fees at any point during the Term; and (ii) change any other Fees upon thirty (30) days’ prior written notice.
6.3 All amounts invoiced hereunder are due and payable as specified in the applicable Order. Unpaid Fees that are not the subject of a written good faith dispute are subject to late payment interest on any outstanding balance calculated as permitted by Applicable Laws, plus all reasonable expenses of collection.
6.4 All fees are exclusive of taxes, levies, or duties imposed by taxing authorities (“Taxes”). Merchant is solely responsible for payment of, and Merchant agrees to pay, all applicable Taxes regardless of whether such Tax amounts are listed on an Order.
7. Credit Card Processing.
Credit card/transaction processing services are beyond the scope of this Agreement. GTC can recommend a third party provider to process the Merchant’s credit/debit/gift/loyalty card transactions.
8. Term & Termination; Suspension; Survival
8.1 The term of this Agreement will commence on the Effective Date and, unless earlier terminated as set forth below, will remain in effect until such time as all outstanding Orders have either expired or terminated in accordance with their terms or the terms of the Agreement. The initial term of an Order will commence upon the earlier of: (i) the Effective Date, or (ii) the Activation Date and, unless terminated earlier as set forth in the Agreement, shall remain in full force and effect for remainder of the initial term outlined in the Order (the “Initial Term”). Thereafter, the term of this Agreement with respect to such applicable Order(s) will automatically renew for successive one (1) year periods (each a “Renewal Term” (collectively, the Initial Term and any subsequent Renewal Term(s) shall be referred to as the “Term”)); provided, however, that either party may terminate an Order, and this Agreement with respect to such Order, by providing at least ninety (90) days’ written notice of its intent not to renew prior to the end of the then-current Term.
8.2 GTC may, without notice, suspend Merchant’s username and password, GTC Account and access to the Services, and/or may terminate the Agreement in the event any of the following occur: (a) Merchant fails to make any payment due within thirty (30) days of receipt of a valid invoice; (b) Merchant provides any inaccurate, untrue or incomplete information or fails to comply with the GTC Account registration requirements; (c) Merchant violates Clauses 2, 4 or 12. In the event of any suspension of the Services, GTC reserves the right to charge the Merchant a re-activation fee at its then current standard rates of charge. The Merchant undertakes to pay the said fee in order to re-activate the Services.
8.3 In the event of a material breach by either party, the non-breaching party will have the right to terminate the applicable Order(s), and/or this Agreement for cause if such breach has not been cured within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach in detail.
8.4 By executing an Order, Merchant agrees to pay GTC all Fees, plus applicable Taxes, indicated in the applicable Order(s), for the total number of Initial Locations indicated therein, and for the entire duration of the then-current Term. Merchant acknowledges and agrees that in the event of termination of this Agreement and any applicable Order(s) at any time during the Term for any reason other than by the Merchant pursuant to Clause 8.3, GTC shall pay an amount equal to all Software Subscription Fees that would have otherwise been due for the remainder of the then-current Term, plus any other Fees owed to GTC as at the date of termination.
8.5 Upon any termination or expiration of an Order or this Agreement, Merchant’s right to access and use the Services covered by the applicable Order(s) will terminate. Upon any such termination or expiration, all Clauses of this Agreement which by their nature should survive termination or expiration will survive. Notwithstanding the foregoing, at Merchant’s request if received within thirty (30) days of termination of the Order or Agreement for any reason other than termination by GTC for Merchant’s uncured material breach, GTC will permit Merchant to access the Services solely and exclusively to the extent necessary for Merchant to retrieve a copy of Merchant Data then in GTC’s possession. Merchant acknowledges and agrees that GTC has no obligation to retain Merchant Data and that GTC will have the right to irretrievably delete and destroy Merchant Data after thirty (30) days following the termination of this Agreement.
9. Representations, Disclaimer of Warranties
9.1 Each party represents and warrants to the other party that it has the power and authority to enter into this Agreement.
9.2 GTC warrants to Merchant that, during the Term, the Software Services will materially conform to the printed and digital instructions, on-line help files, technical documentation and user manuals for the Services provided by GTC to Merchant (together the “Specifications”). Merchant’s sole and exclusive remedy for GTC’s breach of this warranty is limited to GTC correcting the Services or, if such correction is not commercially reasonable, termination of this Agreement in connection with Clause 8.3 above. Any Hardware sold by GTC to Merchant hereunder is sold subject to the relevant manufacturer’s warranty.
9.3 GTC does not warrant that the Services will be compatible with Merchant’s mobile device or third-party carrier and/or internet service provider’s service. Merchant’s use of the Services may be subject to the terms of Merchant’s agreements with its mobile device manufacturers, carriers and internet service providers. Such third parties’ normal rates and fees, such as data transfer fees, may apply and Merchant is solely liable for the payment of all such fees.
9.4 Except for the express warranties set forth herein, GTC and its third-party providers hereby disclaim all express or implied warranties with regard to the services, including but not limited to any implied warranties of satisfactory quality, fitness for a particular purpose, title, non-infringement and quality. GTC and its third-party providers make no representations or warranties regarding the reliability, availability, timeliness, suitability, accuracy or completeness of the Services or the results Merchant may obtain by using the services. Without limiting the generality of the foregoing, GTC and its third-party providers do not represent or warrant that (a) the operation or use of the Services will be timely, uninterrupted or error-free; or (b) the quality of the Services will meet Merchant’s requirements. merchant acknowledges that neither GTC nor its third-party providers control the transfer of data over communications facilities, including the internet, and that the services may be subject to limitations, delays, and other problems inherent in the use of such communications facilities. GTC is not responsible for any delays, delivery failures, or other damage resulting from such problems. Without limiting the foregoing, GTC does not warrant or guarantee that any or all security attacks will be discovered, reported or remedied, or that there will not be any security breaches by third parties. Except where expressly provided otherwise by GTC, the services are provided to merchant on an “as is” basis.
10. Limitation of liability
Neither party excludes or limits liability for death or personal injury or fraud or fraudulent misrepresentation. GTC shall not be liable to the Merchant for any indirect or consequential loss, or for any loss of revenue (indirect or direct), loss of profits (indirect or direct), loss of business or goodwill, loss of, damage to, or corruption of data or loss of availability of data, howsoever caused and even if such loss was reasonably foreseeable or GTC had been advised of the possibility of the Merchant suffering such loss. Notwithstanding any other term in this Agreement or any Order, GTCI’s aggregate liability for any event or group of related events arising under or in connection with this Agreement or any Order made pursuant to it shall be limited to damages of an amount equal to 125% of the total Fees paid or payable by the Merchant, under the Order that is the subject of a claim. Notwithstanding the foregoing, GTC shall not be liable to the Merchant for any loss, damage, cost or expense arising out of any failure by the Merchant to keep full and up-to-date security copies of the Merchant Data in accordance with best computing practice.
Merchant will indemnify, defend and hold harmless GTC and its directors, officers, employees, affiliates and agents from and against any and all third-party proceedings, claims, losses, damages, demands, liabilities and expenses whatsoever, including all reasonable legal and accounting fees and expenses and all reasonable collection costs, incurred by GTC, its directors, officers, employees, affiliates and agents to the extent resulting from or arising out of (a) Merchant’s use of the Services in breach of this Agreement, (b) any noncompliance with any Applicable Laws by Merchant or its Employees, (c) any infiltration, hack, breach or violation of the processing system of Merchant or any other third-party processor or system attributable to the acts and/or omissions of Merchant, (d) Merchant’s or its Employee’s reliance on any report or other information generated through the Services; or (e) any Tax assessment.
12. Confidential Information
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose Confidential Information relating to the Disclosing Party’s business under this Agreement. For the avoidance of doubt, GTC’s Confidential Information includes the Services and Customer Data. The Receiving Party agrees: (a) to take reasonable precautions to protect such Confidential Information; and (b) not to use or divulge to any third person any such Confidential Information, in each case except as expressly permitted in Clause 5 or under the Data Processing Agreement. The Disclosing Party agrees that the foregoing obligations will not apply with respect to Confidential Information after five (5) years following the disclosure, or any Confidential Information that the Receiving Party can document (v) is or becomes generally available to the public by Disclosing Party or a third-party not bound by a confidentiality obligation; (w) was in Receiving Party’s possession or known by it prior to receipt from the Disclosing Party; (x) was rightfully disclosed to Disclosing Party by a third party not bound by a confidentiality obligation; or (y) was independently developed without use of any Confidential Information of the Disclosing Party as demonstrated by Receiving Party’s written records.
Notwithstanding any provision of this Agreement, either party may disclose the other party’s Confidential Information, in whole or in part (i) to its employees, officers, directors, consultants and professional advisers who have a need to know and are legally bound to keep such Confidential Information confidential by confidentiality obligations or, in the case of professional advisors, are bound by ethical duties to keep such Confidential Information confidential consistent with the terms of this Agreement; (ii) as required by law (in which case each party shall provide the other with prior written notification thereof, shall provide such party with the opportunity to contest such disclosure, and shall use its reasonable efforts to minimize such disclosure to the extent, in each case to the extent permitted by applicable law), and (iii) in accordance with GTC Data Processing Agreement.
13. Security; Data Incidents
Each party will use reasonable measures, as are consistent with Applicable Laws and industry data security practices applicable to Merchant Data and Customer Data, to prevent a Data Breach and comply with the Data Processing Agreement.
GTC may give notice applicable to GTC’s general customer base by means of a general notice on the Services portal, and notices specific to Merchant by e-mail to Merchant’s address on record in Merchant’s GTC Account. Notices to GTC must be sent via registered mail, return receipt requested, to GTC at the address detailed on the Order.
15. Force Majeure
Neither party shall be in default of its obligations under this Agreement to the extent its performance is (a) delayed or prevented by any act of God, earthquake, flood, embargo, riots, sabotage, utility or transmission disruption, fire or any other similar event beyond such party’s control, referred to individually and collectively as “Force Majeure Events.” Upon the occurrence of a Force Majeure Event, the non-performing party shall be excused from any further performance or observance of the affected obligations for as long as such circumstances prevail, and provided that such party continues to attempt to recommence performance or observance to the greatest extent possible without delay.
16. General Provisions
16.1 This Agreement will be governed by the laws of England and the parties hereby agree to submit to the exclusive jurisdiction of the English courts.
16.2 The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. The Clause headings are provided merely for convenience and will not be given any legal import. No joint venture, partnership, employment, or agency relationship exists between GTC and Merchant as a result of this Agreement or use of the Services.
16.3 This Agreement and all Order(s), represent the parties’ entire understanding relating to the Services, and supersede any prior or contemporaneous, conflicting or additional communications and will control over any different or additional terms of any non-GTC ordering document, and no terms included in any such purchase order or other non-GTC ordering document will apply to the Services or Hardware. The exchange of a fully-executed Order by electronic signature will be sufficient to bind the parties to this Agreement and such Order. This Agreement may be amended only by written agreement signed by the parties. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) will be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
16.4 Neither party may assign this Agreement without the prior written approval of the other, such approval not to be unreasonably withheld or delayed, provided that such approval will not be required in connection with a merger or acquisition of all or substantially all of the assets of the assigning company related to this Agreement. Any purported assignment in violation of this Clause 16.4 will be void.
16.5 Electronic Signature. Original signatures transmitted and received via electronic transmission of a scanned document (via secure email or a service such as DocuSign) are true and valid signatures for all purposes hereunder and shall bind the parties to the same extent as that of an original signature.
“Applicable Laws” means all laws, rules, regulations and regulatory guidance applicable to Merchant and/or Merchant’s business, including without limitation, any applicable tax laws and regulations in effect from time to time, including but not limited to the General Data Protection Regulation (EU) 2016/679 (“GDPR”).
“Confidential Information” means (i) the terms (but not the fact or existence) of the Agreement, and (ii) all trade secrets and other information disclosed by the Disclosing Party to the Receiving Party orally, or in writing, whether or not designated as proprietary or ‘Confidential’ or some similar designation, including without limitation customer lists, financials, products, services, organizational structure and internal practices, forecasts, sales, budgets, trade secrets, know-how, designs, specifications, documentation, components, source code, object code, images, icons, audiovisual components and objects, schematics, drawings, notes, analyses, compilations, reports, forecasts, studies, data, statistics, summaries and other materials disclosed to Recipient that contain, or are based on, in whole or in part, any of the information described in this definition.
“Customers” refers to Merchant’s customers.
“Customer Data ” means data and information collected by GTC via the Services, such as when a Customer enters payment information, submits an online order, enrols in a loyalty program or requests a digital receipt, and may include without limitation: (i) contact information (such as name, phone number, email address, etc.); (ii) information about the transaction; (iii) Card information; (iv) Customer purchase history; and (v) location information.
“Data Breach” means an intrusion into a computer system where unauthorized disclosure/theft, modification, or destruction of Merchant Data and/or Customer Data is suspected.
“Data Processing Agreement” means the data processing party agreed between GTC and the Merchant on or before execution of the first Order.
“Effective Date” means the date of last signature of any Order incorporating this Agreement.
“Employees” means Merchant’s employees, agents and contractors who are authorized to use the Services.
“End User Licence Agreement” or “EULA” means the additional terms of service applicable to Merchant’s and its Employees’ use of the Services, including without limitation, the GTC App, available here.
“Feedback” means suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services, Professional Services and Hardware.
“Fees” means any fees outlined in an Order, including without limitation, the Software Subscription Fees, fees for Hardware and Professional Services.
“Force Majeure Event” has the meaning ascribed to it in Clause 15.
“GTC” means The Good Till Co Limited (company number 08412581) with its registered office at Studio G8 The Print Rooms, 164-180 Union Street, London, England, SE1 0LH.
“Activation Date” means the actual date upon which Merchant begins using the Services in a live production environment.
“Hardware” means any terminal, tablet, kitchen display screen (“KDS”), switch, router, card, cable, wall mount, printer or other item of physical hardware, as made available by GTC, and purchased under an Order.
“Initial Location” means the actual number of locations for which Merchant is agreeing to purchase and/or license, as applicable, the GTC Hardware, Services and/or Professional Services, as reflected in the Order.
“Intellectual Property Rights” means any and all rights under patent law, copyright law, trade secret law, trademark law, moral rights, goodwill, and any and all other intellectual property rights that are in existence now and in the future.
“Merchant” means the contracting entity detailed on the applicable Order.
“Merchant Data” means any files, graphics, images, text, emails, data or other information submitted by Merchant in the course of using the Hardware and Services and/or collected by GTC including without limitation Merchant’s name, address, contact information, Employee information, products, loyalty programs, logos, promotional information, advertisements, transaction details and other information or material submitted by Merchant to GTC through the Services, excluding Customer Data.
“Merchant Marks” means Merchant’s business name, logo, trademarks, service marks, images, domain names and other similar content provided to GTC for use with the Services.
“Order” means any GTC ordering document (including any online order) specifying the Services, Hardware and Professional Services purchased and/or licensed hereunder, as mutually agreed to and accepted by GTC.
“Personal Data” has the meaning ascribed to it in GDPR.
“Professional Services” means any implementation services and/or training provided by GTC to Merchant pursuant to an Order.
“Services” means the provision of the Software on a subscription basis, the GTC App and the Professional Services.
“Software” means GTC’s point-of-sale restaurant, hospitality and retail management system, including the “click and collect” functionality and any other additional features made available to Merchant via the GTC App from time to time and as specified on the relevant Order, including both online and offline components, products, services, features, content, and updates related thereto.
“Specifications” shall have the meaning provided in Clause 9.2.
“Taxes” shall have the meaning provided in Clause 6.4.
“Term” shall have the meaning provided in Clause 8.1.
“GTC Account” means Merchant’s account with GTC.
“GTC App” means GTC’s online and offline Software either installed on Hardware, or made available for download by Merchant online, that enables Employees and Customers to interface with, access and use the Services.