NoshyCircle – Terms and Conditions for Supply of Services to Kitchens

Dates: 23/10/2020

  1. Interpretation

The following definitions and rules of interpretation apply in these Conditions.

  1. Definitions:
  1. Billing Period: each period of fourteen days ending on a Friday during the term of the Contract.
  2. Booking Services: the provision of booking services via the dashboard at mobile app;
  3. Charges: the charges payable by the Kitchen for the supply of the Services in accordance with 4.
  4. Commencement Date: the date the Kitchen is qualified to use the Services 
  5. Contract: the contract between NoshyCircle and the Kitchen for the supply of Services in accordance with these terms and conditions.
  6. Customer: each person buying Kitchen Products via the Booking Services.
  7. Delivery Services: collection of Kitchen Products and delivery to the Customer in accordance with the details agreed between the Kitchen and the Customer pursuant to the Booking Services.
  8. Kitchen: the person or firm who purchases Services from NoshyCircle.
  9. Kitchen Products: the food products which are the subject of the Services.
  10. NoshyCircle: Noshybox Limited registered in England and Wales with company number 12667492.
  11. Packaging: such quantities of NoshyCircle branded packaging as NoshyCircle shall at its discretion deliver to the Kitchen from time to time.
  12. Services: the Booking Services, the Packaging and the Delivery Services.
  1. Interpretation:
    1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
    2. Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
    3. A reference to writing or written includes fax and electronic notification by way of the Booking Services. 
  2. Supply of Services

Subject to the Kitchen complying with its obligations under clause 3, NoshyCircle shall supply the Services to the Kitchen from the Commencement Date.

  1. Kitchen’s obligations 
    1. The Kitchen shall:
      1. ensure that each Kitchen Product meets NoshyCircle’s requirements defined here as varied from time to time;
      2. use the Booking Services to supply Kitchen Products;
      3. make each Kitchen Product available for collection by NoshyCircle or its representative at the time specified by way of the Booking Services;
      4. respond promptly to any query raised by a Customer in relation to a Kitchen Product;
      5. ensure that any information that the Kitchen is prompted to enter in relation to the Booking Services is complete and accurate;
      6. co-operate with NoshyCircle in all matters relating to the Services including the investigation of any complaints made by Customers;
      7. obtain and maintain all necessary licences, permissions and consents which may be required in respect of the Kitchen Products;
      8. keep the Packaging in safe custody at its own risk until returned to NoshyCircle and not dispose of or use the Packaging other than in accordance with NoshyCircle’s written instructions or authorisation; 
      9. only cancel an order for a Kitchen Products by way of the Booking Services and for reasons outside the Kitchen’s reasonable control.
    2. The Kitchen acknowledges and agrees that: 
      1. Any contract to supply Kitchen Product shall be between the Kitchen and the Customer and that NoshyCircle shall have no liability in respect of the Kitchen Product (although it shall be entitled to take such steps as it shall determine appropriate in relation to any complaint made in respect of Kitchen Product); and
      2. any information entered by it pursuant to clause 3.1(e) may at the discretion of NoshyCircle be published to each Customer.
    3. If NoshyCircle’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Kitchen or failure by the Kitchen to perform any relevant obligation (Kitchen Default):
      1. without limiting or affecting any other right or remedy available to it, NoshyCircle shall have the right to suspend performance of the Services until the Kitchen remedies the Kitchen Default;
      2. NoshyCircle shall not be liable for any costs or losses sustained or incurred by the Kitchen arising directly or indirectly from NoshyCircle’s failure or delay to perform any of its obligations as set out in this 3.2; and 
      3. the Kitchen shall reimburse NoshyCircle on written demand for any costs or losses sustained or incurred by NoshyCircle arising directly or indirectly from the Kitchen Default including any ‘waiting time charges’ where the Kitchen breaches its obligations under clause 3.1(c).
  2. Charges and payment
    1. The charges for the Services shall be an amount equal to 15% of the amount paid by each Customer to NoshyCircle for Kitchen Product(s).
    2. The Kitchen acknowledges that NoshyCircle shall collect payment from the customer and shall notify the Kitchen after the end of each Billing Period of: 
      1. the payments received from each Customer for Kitchen Products in that Billing Period;
      2. the sums due to NoshyCircle under clauses 3.3(c) and 4.1; and
      3. the balance due to the Kitchen.
    3. NoshyCircle shall pay each amount due to the Kitchen pursuant to clause 4.2(c) within [14] days of the end of the applicable Billing Period.
    4. All amounts payable by the Kitchen under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by NoshyCircle to the Kitchen, the amounts due under clause 4.2(b) shall be increased by such additional amounts in respect of VAT as are chargeable on the supply of the Services. 
    5. NoshyCircle shall be entitled to set-off any amount owed to it by the Kitchen against amounts due to the Kitchen from NoshyCircle.
  3. Data protection 
    1. Definitions.
      1. Agreed Purposes: provision of Kitchen Products to Customers.
      2. Controller, data controller, processor, data processor, data subject, personal data, processing and appropriate technical and organisational measures: as set out in the Data Protection Legislation in force at the time.
      3. Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, as well as (ii) the General Data Protection Regulation ((EU) 2016/679) and any other directly applicable European Union regulation relating to data protection and privacy (for so long as and to the extent that the law of the European Union has legal effect in the UK).
      4. Permitted Recipients: The parties to this agreement, the employees of each party and any third parties engaged to perform obligations in connection with this agreement.
      5. Shared Personal Data: the personal data to be shared between the parties under this agreement.  Shared Personal Data shall be confined to the information received by the Kitchen from a Customer in respect of Kitchen Products.
    2. Shared Personal Data.  The provisions which follow set out the framework for the sharing of personal data between the parties as data controllers. Each party acknowledges that one party (the Data Discloser) may disclose to the other party (the Data Recipient) Shared Personal Data collected by the Data Discloser for the Agreed Purposes. Each party shall:
      1. ensure that it has all necessary consents and notices in place to enable lawful transfer of the Shared Personal Data to the Data Recipient for the Agreed Purposes;
      2. give full information to any data subject whose personal data may be processed under this agreement of the nature such processing. This includes giving notice that, on the termination of this agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Data Recipients, their successors and assigns;
      3. process the Shared Personal Data only for the Agreed Purposes;
      4. not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;
      5. ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less demanding than those imposed by this agreement;
      6. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data.
      7. not transfer any personal data received from the Data Discloser outside the EEA unless the transferor:
        1. complies with the provisions of Article 26 of the GDPR (in the event the transferee is a joint controller); and
        2. ensures that (i) the transfer is to a country approved by the European Commission as providing adequate protection pursuant to Article 45 GDPR; (ii) there are appropriate safeguards in place pursuant to Article 46 GDPR; or (iii) one of the derogations for specific situations in Article 49 GDPR applies to the transfer.
    3. Compliance.  Each party shall comply with the Data Protection Legislation and agrees that any material breach of the Data Protection Legislation shall, if not remedied within 30 days of written notice from the other party, give grounds to the other party to terminate this agreement with immediate effect.
    4. Mutual assistance.  Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation. In particular, each party shall:
      1. consult with the other party about any notices given to data subjects in relation to the Shared Personal Data;
      2. promptly inform the other party about the receipt of any data subject access request;
      3. provide the other party with reasonable assistance in complying with any data subject access request;
      4. not disclose or release any Shared Personal Data in response to a data subject access request without first consulting the other party wherever possible;
      5. assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments and consultations with supervisory authorities or regulators;
      6. notify the other party without undue delay on becoming aware of any breach of the Data Protection Legislation;
      7. at the written direction of the Data Discloser, delete or return Shared Personal Data and copies thereof to the Data Discloser on termination of this agreement unless required by law to store the personal data;
      8. use compatible technology for the processing of Shared Personal Data to ensure that there is no lack of accuracy resulting from personal data transfers;
      9. maintain complete and accurate records and information to demonstrate its compliance with this clause 5 and allow for audits by the other party or the other party’s designated auditor; and
      10. provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.
  4. Termination
    1. Without affecting any other right or remedy available to it, either party may terminate the Contract by giving the other party written notice.
    2. Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
      1. the other party commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within [14] days of that party being notified in writing to do so;
      2. the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), applying to court for or obtaining a moratorium under Part A1 of the Insolvency Act 1986, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
      3. the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
      4. the other party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
  5. Consequences of termination
    1. On termination of the Contract the Kitchen shall immediately cease using the Booking Services and return all Packaging. If the Kitchen fails to do so, then NoshyCircle may enter the Kitchen’s premises and take possession of it. Until it has been returned, the Kitchen shall be solely responsible for its safe keeping and will not use it for any purpose.
    2. Termination of the Contract shall not affect 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 Contract which existed at or before the date of termination.
    3. Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination of the Contract shall remain in full force and effect.
  6. General
    1. Force majeure. Neither party shall be in breach of the Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Contract if such delay or failure result from events, circumstances or causes beyond its reasonable control. 
    2. Assignment and other dealings.
      1. NoshyCircle may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
      2. The Kitchen shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
    3. Confidentiality.  The Kitchen undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of NoshyCircle nor use it for any purpose other than the fulfilment of the parties’ objectives under the Contract.
    4. Variation. Except as set out in these terms and conditions, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    5. Waiver. A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
    6. Severance. If any provision or part-provision of the Contract 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. If any provision or part-provision of this Contract deleted under this 8.6 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.
    7. Third party rights. The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

We reserve the right to update these terms and conditions on regular basis, we will update you if any changes are necessary.