SMART RESTAURANTS End User Licence Agreement (“EULA”) V1.1
1.1 The following expressions shall have the meanings set out below:
“Agreement” means this EULA and associated Order Forms, Schedule(s) and Support Handbook;
“Annual License and Support Fee(s)” means the annual fee(s) payable by you to SMART RESTAURANTS for Support
Services and use of the Software;
“Bundled Third Party Software” means the software of any third party licensor that is supplied as an integral part
of the Software and licensed in accordance with the terms of this Agreement;
“Business Day” means the hours of 09.00 to 17.30 on a day other than a Saturday or Sunday or public or bank
holiday in England;
“Distributed Third Party Software” means the software of any third party licensor that is to be supplied as part of
this Agreement but which is under a licence agreement directly between such third party licensor and you as set out
in an Order Form;
“Documentation” means any documentation licensed by SMART RESTAURANTS to you hereunder, including such
documentation as is: (a) authorised by SMART RESTAURANTS for general release to SMART RESTAURANTS licensees of the
and/or (b) provided to you under the Support Services, whether in printed, electronic, on-line, and/or other format;
“Effective Date” means the date shown on the Order Form;
“EULA” means these terms and conditions;
“Initial License Fee(s)” means the fee(s) payable by you to SMART RESTAURANTS for supply of Software and
Documentation as set out in the Order Forms;
“Initial Term” means two (2) years;
“Intellectual Property Rights or IPR” means throughout the world all copyrights, database rights, design rights,
trade marks, trade names, domain names, service marks, trade secrets, know-how, patents and other intellectual
property rights (whether registered or unregistered) and whether now known or existing in the future in any part of
the world and including all applications for the same and all, registrations and renewals thereof;
“Number of Permitted Users” means the maximum number of Users licensed to access and/or use the Software
as stated in the Order Forms;
“Order Form(s)” means a written schedule of Software and Services purchased by you and signed by both parties
which is subject to the provisions of this Agreement;
“Payment Instalment(s)” means any amount defined as such in an Order Form or Schedule;
“Schedule(s)” means a written schedule to this Agreement;
“Serialisation Code” means any number, sequence of numbers, computer program or code provided by us to you
to be entered into the Software during its execution so as to enable your full and continuing use of the Software;
“Services” means any chargeable services provided to you by SMART RESTAURANTS;
“Software” means any and all SMART RESTAURANTS software version and modules as detailed in the Order Forms, Version
Upgrades, Bundled Third Party Software and other IPR in software licensed by SMART RESTAURANTS hereunder, including
each update, upgrade, and/or new version of same licensed, and all copies thereof made by you;
“Support Handbook” means SMART RESTAURANTS’s support handbook as updated by SMART RESTAURANTS from time to time;
“Support Services” means support services provided to you by SMART RESTAURANTS in accordance with clause 12 of this
Agreement and the Support Handbook;
“User(s)” means a named individual (being your employee or under contract to you, your subsidiary or joint venture
interest) which uses a unique login name/password combination assigned to such individual by you to access and/or
use Software; and
“Version Upgrade(s)” means the periodic update(s) and upgrade(s) to the Software issued by SMART RESTAURANTS from
time to time at its sole discretion.
1.2 In the event of any conflict or inconsistency between the provisions of the EULA and the provisions of an Order
Form or Schedule, the conflict shall be resolved in accordance with the following order of precedence: (i) Order
Form; (ii) Schedule; (iii) EULA.
2.Scope and Term of the Agreement
2.1 This Agreement sets out the basis upon which SMART RESTAURANTS shall, supply and license Software, supply
Distributed Third Party Software and perform Services for you, all as set out in the Order Forms and Schedules.
2.2 This Agreement shall come into force on the Effective Date and shall continue for the Initial Term and thereafter
in accordance with clause 2.3, unless or until otherwise terminated in accordance with clause 14.
2.3 Following the Initial Term, this Agreement shall automatically extend in effect for successive Initial Terms
(a) you serve us with notice at least 6 months prior to the expiry of an Initial Term that you wish for the Agreement to
continue in effect for successive one year terms (each a “Renewal Term) in which case the Agreement will continue
in effect for successive Renewal Terms on SMART RESTAURANTS’s prevailing standard pricing at the time (copies of which will
be provided on request at the time);
(b) either party serves the other party with a notice of non-renewal at least 6 months prior to the expiry of any Initial
Term or any Renewal Term and the Agreement will terminate on the expiry of the Initial Term or Renewal Term
during which the notice expires; or
(c) earlier terminated in accordance with clause 14.
3.1 SMART RESTAURANTS grants to you a non-exclusive, non-assignable and non-transferable licence to use the Software in
object code during the term of this Agreement subject to the terms and conditions set out in this Agreement.
3.2 You may use the Software and the Serialisation Code to load and run the Software only on your equipment at
the location set out in the Order Form or Schedule and for the only purpose of processing your data and data of your
parent or any of your subsidiary companies, any joint venture, consortium or similar partnership where you are a
member for your normal business purposes and your access and/or use shall be limited to the Number of Permitted
Users, client workstations and/or servers as stated in the Order Forms.
3.3 Prior to accessing and/or using the Software, you must first purchase the appropriate licences for the Number of
Permitted Users, client workstations or servers. You may increase the Number of Permitted Users, client
workstations or servers by executing with SMART RESTAURANTS a new Order Form at any time and in each case an increase
in the Initial Licence Fee and Annual Licence and Support Fee shall apply.
3.4 You may not copy the Software in any circumstances.
3.5 You shall not without the prior written consent of SMART RESTAURANTS:
(a) assign, transfer, sub-licence and/or redistribute the Software to any party in whole or in part;
(b) allow the Software to become the subject of any charge, lien or encumbrance;
(c) rent, lease, time share, or operate a service bureau with respect to the Software;
(d) charge a fee to any party for access to and/or use of the Software;
(e) install, use, and/or make available the Software for any online application service provider business, internet
service provider business or other online software rental business, except where the Software is used in conjunction
with SMART RESTAURANTS online services;
(f) publish or disclose results of any benchmark or other test run on the Software;
(g) export or re-export the Software in violation of any applicable export control laws and regulations;
(h) attempt, nor allow third parties to attempt to: (i) modify, translate or adapt the Software; (ii) reverse engineer,
disassemble, decompile or otherwise discover the source code of the Software; or (iii) bypass, delete or misuse any
protection method provided for preventing unauthorised use of the Software, including, but not limited to, the
3.6 If you wish to transfer ownership or no longer wish to use the Software, you shall ensure that the Software has
been deleted from your equipment and all copies of it destroyed as soon as reasonably practicable and in any event
prior to any transfer. You shall certify to SMART RESTAURANTS that this has been done if requested to do so by SMART
3.7 Risk and title to any physical media containing the Software shall pass to you upon delivery by SMART RESTAURANTS at
which point the Software shall be deemed to have been delivered to you and you shall be deemed to have accepted
the same. If SMART RESTAURANTS is providing the Software by electronic download, the Software is deemed delivered and
accepted by you when SMART RESTAURANTS has made the Software available to you for electronic download.
4.1 You are responsible for:
(a) the selection of the Software to achieve its intended purpose and for determining the appropriate use to be
made of Software;
(b) the selection and use of results obtained from the Software;
(c) ensuring that your equipment is suitable for the Software;
(d) ensuring that your personnel are sufficiently trained to operate the Software in a proper manner and have
attended the recommended training courses to do so from SMART RESTAURANTS;
(e) having, at all times, a system manager who has attended a SMART RESTAURANTS systems manager training course;
(f) granting SMART RESTAURANTS’s personnel reasonable access to your equipment (including but not limited to
modem access) and providing access to information and staff as reasonably necessary for the purpose of
SMART RESTAURANTS’s performance under this Agreement.
5.1 SMART RESTAURANTS will use all reasonable endeavours to meet any estimated delivery dates and other dates
given to you but such dates are estimates only and time shall not be of the essence in relation to such
6.Distributed Third Party Software
6.1 The licence and warranty provisions applicable to any Distributed Third Party Software shall be as set out
in the licence agreement between you and the Distributed Third Party Software owner.
6.2 SMART RESTAURANTS excludes all liability in respect of any Distributed Third Party Software except for any direct
loss or damage caused by SMART RESTAURANTS’s failure to supply or carry out installation of the Distributed Third
Party Software correctly which shall be subject to the provisions of clause 10 of this Agreement.
7.Orders and Payment
7.1 Completion of one or more Order Forms signed by both parties constitutes an order for the Software
and/or Services subject to the terms of this Agreement.
7.2 You shall pay to SMART RESTAURANTS:
(a) the Initial Package of Bespoke Fee and the first MonthlyLicence and Support Fee on or before the Effective Date; and
(b) all other Monthly Licence and Support Fees on or before each 30 days of the Effective Date.
7.3 SMART RESTAURANTS shall be entitled to increase the Monthly Licence and Support Fee for Bundled Third Party
Software as from each anniversary of the Effective Date if a Bundled Third Party Software provider increases
its charges payable by SMART RESTAURANTS or SMART RESTAURANTS incurs increased charges for any Bundled Third Party
Software due to fluctuations in exchange rates.
7.4 Notwithstanding clause 7.3, SMART RESTAURANTS shall also be entitled to increase the Annual Licence and
Support Fee as from each anniversary of the Effective Date by an amount up to cumulative RPI plus 5% or to
the then current published Annual Licence and Support Fee.
7.5 If there is any dispute or if any agreement terminates between a Bundled Third Party Software provider
and SMART RESTAURANTS, SMART RESTAURANTS shall be entitled to remove or replace the Bundled Third Party Software from
the Software and if removed You will receive a reduction in your next Annual Licence and Support Fee.
7.6 Where supporting any Software becomes uneconomic SMART RESTAURANTS reserves the right at its option either
to remove such Software from the supported list on the Order Forms and/or Schedules or (if possible) agree
with you a mutually acceptable Annual Licence and Support Fee or annual licence fee.
7.7 SMART RESTAURANTS reserves the right to suspend your access and use of the Software and/or suspend the
carrying out of any Services if you fail to make any payment by its due date. As further detailed in clause 8
you acknowledge that the Software contains programming which may automatically cause access and use of
the Software to be suspended in the event that you fail to comply with your payment obligations set out in
7.8 Consultancy, project management and training services are payable in advance of their provision, and
charges are based upon an 8 hour working day (inclusive of a lunch break) plus 1 hour’s travel time each way.
SMART RESTAURANTS will charge by the hour for any additional work or travel time based upon a pro rata of the day
rate set out in the Order Form. Consultancy, project management and training days booked by you can be
rescheduled by you by giving us at least seven days (7) notice. Otherwise they will be charged for in full. Any
days that are ordered by you are for use within twelve months of the order date and any days unconsumed
after this period or subsequently cancelled by you will be charged for in full and will not be subject to refund.
We reserve the right to cancel any training days/sessions without any liability to you by giving you not less
than seven (7) days notice.
7.9 If agreed in an Order Form, SMART RESTAURANTS will undertake specific Software enhancements and the
specification for such Software enhancements will be carried out by SMART RESTAURANTS and payable by you and
agreed by the parties in writing prior to commencing work on the Software enhancements. Where Software
enhancements are provided under this Agreement, you will pay fifty percent (50%) of the charges on the
Effective Date and fifty percent (50%) of the charges will be payable on delivery.
7.10 Other than activities expressly covered by Support Services or costed within any prices given for other
Services and set out as such within an Order Form, you will pay the cost of travelling time and expenses of
SMART RESTAURANTS personnel and/or any of its subcontractors. These charges are based on SMART RESTAURANTS’s rates
prevailing at the time. The mileage rate shall be the AA rate(s) applied by SMART RESTAURANTS, and the mileage
charged to you will be based upon the actual journey taken. Flights, rail fares and overnight accommodation
will be re-charged net. Where possible, you will book and pay for such expenses directly.
7.11 If any sum payable under this Agreement is in arrears then, in addition to and without prejudice to any
other remedies which may be available under this Agreement, SMART RESTAURANTS reserves the right to charge
interest at the rate of 1% per month or part thereof and to claim all expenses of recovery of such sums,
including but not limited to legal and/or court costs.
7.12 All charges and fees are given exclusive of VAT which shall be added and paid by you at the rate and in
the manner for the time being prescribed by law. You shall make all payments due under the Agreement in
full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.
8.Licence Compliance Security Feature
8.1 As noted in clause 7.7, the Software contains a licence compliance security feature which may deny
access to the Software on a pre-set date. Thirty (30) days before the pre-set date, the Software will notify you
of the need to obtain a new licence agreement so that you can access the Software after the pre-set date.
You hereby authorise our incorporating the licence compliance security feature into the Software and the
effects of its operation as set out above and accept that it is your responsibility to revue your licence.
9.1 For a period of thirty (30) days from the date of our delivery of the Software to you, SMART RESTAURANTS warrants
that the Software will function substantially as described in the Documentation when operated on your
equipment running under the operating system(s) specified in the Order Form(s) and/or Schedules.
SMART RESTAURANTS’s entire liability and your sole remedy against SMART RESTAURANTS, for each breach by SMART
such warranty shall be limited at SMART RESTAURANTS’s option to either SMART RESTAURANTS replacing or repairing such
defective portion of Software or refunding all fees paid to SMART RESTAURANTS by you for the defective portion of the
9.2 SMART RESTAURANTS warrants that the Services will be provided with all reasonable skill and care and in
accordance with all applicable laws and regulations.
9.3 As the Software is complex and may not be completely free from errors, you are advised to verify your
work and make back-up copies. SMART RESTAURANTS does not warrant that the use of the Software will be
uninterrupted or error free or that it will work in combination with computer programs other than the computer
programs forming the whole or part of the Software or that any services we provide under this Agreement will
result in the Software functioning as if any such warranty or representation had been given or made.
9.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or
incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise, are
hereby excluded, including, without limitation, the implied conditions, warranties or other terms as to
satisfactory quality, fitness for purpose or the use of reasonable skill and care.
SMART RESTAURANTS End User Licence Agreement (“EULA”) V4.1
10.Limitation of Liability
10.1 Nothing in this Agreement shall exclude or limit SMART RESTAURANTS’s liability for:
(a) death or personal injury arising from its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) any other liability that cannot be limited or excluded by law.
10.2 Subject to clause 10.1, SMART RESTAURANTS shall not be liable under any statute or in contract, tort or otherwise for:
(a) loss of profits, business revenue, business opportunity, contracts, goodwill and/or anticipated savings;
(b) indirect or consequential loss or damage (including, for the avoidance of doubt, where such loss or damage is of
the type specified in clause 10.2(a)),
which arises out of or in connection with this Agreement.
10.3 SMART RESTAURANTS shall not be liable for any delay or failure in carrying out its obligations under this Agreement or
any Order Form if and to the extent that such delay or failure is due to the delay or failure by You to comply with your
obligations under this Agreement or the relevant Order Form.
10.4 Subject to clauses 10.1, 10.2 and 10.3 SMART RESTAURANTS’s total aggregate liability to you under or in connection with
this Agreement (whether such liability arises under any statute or in contract, tort or otherwise) shall be limited to the
previous 12 months Annual Licence and Support Fee as set out in the relevant Order Form.
11.1 You acknowledge that all IPR in the Software, any Software enhancements and in the Services belong and
shall belong to SMART RESTAURANTS and its licensors, and you shall have no rights in or to the Software, Software
enhancements or Services other than the right to use or receive them in accordance with the terms of this
Agreement. You will permit us or our licensors to check the use of the Software by you from time to time.
11.2 SMART RESTAURANTS shall at its own expense defend you or, at its option, settle any claim or action brought against you
alleging that your use of the Software (or any part thereof) in accordance with the terms of this Agreement infringes
the UK IPR of a third party (“Infringement Claim”) and shall be responsible for any reasonable losses, damages,
costs (including legal fees) and expenses incurred by or awarded against you as a result of or in connection with any
such Infringement Claim. For the avoidance of doubt, this clause 11.2 shall not apply where the Infringement Claim
in question is attributable to:
(a) use of the Software (or any part thereof) by you other than in accordance with the terms of this Agreement;
(b) use of the Software in combination with software not approved in writing by SMART RESTAURANTS;
(c) use of a release other than the then current release of the Software;
(d) modification of the Software not approved in writing by SMART RESTAURANTS;
(e) compliance with your specifications or instructions.
11.3 Clause 11.2 is conditional on:
(a) you notifying SMART RESTAURANTS in writing, as soon as reasonably practicable, of any Infringement Claim;
(b) you not making any admission as to liability or compromise or agreeing to any settlement of any Infringement
Claim without the prior written consent of SMART RESTAURANTS; and
(c) SMART RESTAURANTS having, at its own expense, the conduct of or the right to settle all negotiations and litigation arising
from any Infringement Claim and you giving SMART RESTAURANTS all reasonable assistance in connection with those
negotiations and such litigation at SMART RESTAURANTS’s request and expense.
11.4 If any Infringement Claim is made, or in SMART RESTAURANTS’s reasonable opinion is likely to be made, against you,
SMART RESTAURANTS may at its sole option and expense:
(a) procure for you the right to continue using the Software (or any part thereof) in accordance with the terms of this
(b) modify the Software so that it ceases to be infringing or replace the Software with non-infringing software; or
(c) terminate this Agreement immediately by notice in writing to you and refund any of the Initial Licence Fee paid by
you as at the date of termination (less a reasonable sum in respect of your use of the Software to the date of
termination) on return of the Software and all copies thereof.
11.5 You shall indemnify and keep indemnified SMART RESTAURANTS against all claims, liabilities and expenses suffered or
incurred by SMART RESTAURANTS arising out of or in connection with: (i) SMART RESTAURANTS’s compliance with your
instructions for Software enhancements; or (ii) your use, disclosure or dealings with any of SMART RESTAURANTS or its
licensors’ IPR save to the extent that such use, disclosure or dealings are in accordance with the rights specifically
granted to you pursuant to this Agreement.
12.1 This Clause 12 applies only to the Software and not to Distributed Third Party Software. SMART RESTAURANTS will
provide the Support Services in accordance with the Support Handbook and on Business Days and the purpose of
the Support Services shall be to provide corrections for any errors found in the Software (Error).
12.2 The cost of Support Services is included within the Annual Licence and Support Fees and unless included in
any Order Forms, Support Services expressly excludes technical support pursuant to an Order Form provided to you
by SMART RESTAURANTS at additional cost to you and relating to your network, desktop and operating systems or Distributed
Third Party Software.
12.3 You are required to appoint contact persons (Support Contacts) and it is only these Support Contacts who
have authority to request Support Services and it is only through these Support Contacts that SMART RESTAURANTS will coordinate
Support Services for you. You shall ensure that the Support Contacts have attended the appropriate
published SMART RESTAURANTS Software training courses to enable proper liaison between SMART RESTAURANTS and you.
12.4 You shall provide fully operational high-speed access with operating system log-in to enable SMART RESTAURANTS to
directly link to the Software installed on your servers in accordance with your IT security procedures provided to us
to provide support and check your usage compliance. You are required to protect data, application and system
software associated with the Software by carrying out regular back-ups to removable media, which is stored
separately as noted in clause 9.3, and carrying out other normal system housekeeping routines. If any loss or
damage is incurred by you or any third party through loss or spoiling of data resulting from the Software or any
support activity by SMART RESTAURANTS, your sole remedy shall be that SMART RESTAURANTS shall use reasonable endeavours
to the replace, repair or reconstitute such data from your back-ups.
12.5 You are required to install corrections and Version Upgrades to Software and for ensuring that your employees
have the capability of doing so.
12.6 SMART RESTAURANTS reserves the right to make additional charges for Support Services it carries out resulting from:
(a) you failing to install corrections or Version Upgrades of Software correctly or at all in accordance with
SMART RESTAURANTS’s instructions;
(b) SMART RESTAURANTS having to carry out visits to your premises;
(c) failure of equipment, storage media or other software which are not covered by this Agreement, faults in mains
electrical supplies or operator error;
(d) insufficient training of your personnel;
(e) problems reported as Errors which prove not to be Errors;
(f) Errors caused by your accidents, neglect, misuse or default;
(g) any attempt by any person, other than SMART RESTAURANTS, to modify or maintain the Software other than your trained
employees carrying out normal system functions;
(h) your new or updated versions of an operating system.
12.7 The periodic updates provided under the Support Services may include legislative updates. Where major
legislative changes take place SMART RESTAURANTS reserves the right to make an additional charge which shall be spread
evenly over all its customers for Software to cover the supply of updates dealing with such legislative changes.
13. Records and Audits
13.1 Throughout the term of this Agreement and for 12 months thereafter:
(a) You shall maintain electronic records sufficient for SMART RESTAURANTS to confirm your compliance with your obligations
under this Agreement;
(b) If requested by SMART RESTAURANTS from time to time, you shall make available to SMART RESTAURANTS or a representative
of SMART RESTAURANTS electronic and/or manual copies of your Software login accounts; and
(c) SMART RESTAURANTS or a representative of SMART RESTAURANTS may, from time to time, audit such records, copies and
computer systems (via remote access and/or visiting your premises) to ensure you have complied with your
obligations under this Agreement and you shall promptly and accurately complete and return any self-audit
questionnaire along with a certification by you confirming that your responses accurately and fully reflect your usage
of the Software. If necessary to comply with data protection legislation, you shall obtain written consent from each
User authorising release to us of all such information for the purposes stated above. All audits shall be
conducted on reasonable notice during Business Days.
13.2 If any audit by SMART RESTAURANTS or its representative reveals that you have materially failed to comply with
any provision in this Agreement, you shall promptly remedy such non-compliance and make payment to
SMART RESTAURANTS of all reasonable audit and other costs incurred by SMART RESTAURANTS or its representative in
performing such audit.
13.3 If such audit does not reveal any area where you have failed to comply with any provision of this
Agreement then SMART RESTAURANTS will bear its own audit and other costs incurred in performing such audit.
14.1 Either party may terminate this Agreement at any time on written notice to the other if the other party:
(a) is in material or persistent breach of any of the terms of this Agreement and either that breach is incapable
of remedy, or the other party fails to remedy that breach within 30 days after receiving written notice requiring
it to remedy that breach; or
(b) is unable to pay its debts (within the meaning of section 123 of the Insolvency Act 1986), or becomes
insolvent, or is subject to an order or a resolution for its liquidation, administration, winding-up or dissolution
(otherwise than for the purposes of a solvent amalgamation or reconstruction), or has an administrative or
other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial
part of its assets, or enters into or proposes any composition or arrangement with its creditors generally, or is
subject to any analogous event or proceeding in any applicable jurisdiction.
14.2 SMART RESTAURANTS may terminate this Agreement at any time on written notice to you if you:
(a) fail to pay any sum due to SMART RESTAURANTS under this Agreement and such sum remains unpaid seven (7)
days after its due date;
(b) cease to carry on business;
(c) undergo any material change in your shareholding control; or
(d) shall do or allow to be done any act or omission which may reasonably be considered by SMART RESTAURANTS to
jeopardise any right of SMART RESTAURANTS and/or its licensors in the Software or any part thereof including but not
limited to making or allowing to be made any unauthorised copy of Software or any part thereof and/or
imparting or divulging the contents of the Software or any part thereof to a third party without the prior written
consent of SMART RESTAURANTS.
14.3 You shall be entitled to terminate this Agreement at any time during an Initial Term on not less than six
(6) months written notice to SMART RESTAURANTS provided that you have paid to SMART RESTAURANTS in full the sums set out
in Clause 14.5(c) prior to such termination.
14.4 Termination by either party in accordance with the rights contained in clause 14 shall be without prejudice
to any other rights or remedies of that party accrued prior to termination.
14.5 Upon any termination of this Agreement:
(a) all rights granted to you by SMART RESTAURANTS under this Agreement shall cease;
(b) You and all Users shall immediately cease all use of the Software and return all of the Software (including
all copies thereof made by, or for, you) to SMART RESTAURANTS and/ or, if requested by SMART RESTAURANTS, destroy the same
and certify in writing to SMART RESTAURANTS that they have been destroyed; and
(c) You shall immediately pay to SMART RESTAURANTS: (i) any sums due to SMART RESTAURANTS under this Agreement; (ii) as
agreed damages, each Annual Licence and Support Fee and Payment Instalment which would have fallen
due during the remainder of an Initial Term (had the Agreement not been terminated) each discounted, over
the period from its due date to the date of termination at the rate of 3% per annum and any other charges due
up to the date of termination; and (iii) all reasonable expenses and costs incurred by SMART RESTAURANTS or its
assignee in enforcing its rights hereunder in recovering any monies it is correctly owed by you including any
cost incurred by virtue of the early repayment of any fixed rate borrowings made in order to fund the deferred
payment of the Initial Licence Fees, Annual Licence and Support Fees, Services, Payment Instalments or
14.6 The provisions of this Agreement which, by their nature and content, are intended, expressly or impliedly,
to continue to have effect notwithstanding the termination of this Agreement, shall survive and continue to bind
the parties, including clauses 1, 3.5(f), 3.5(h), 3.6, 4.1(f), 6, 7, 9, 10, 11, 13, 14.3 to 14.6, 15 and 16.
15.1 Each party shall, during the term of this Agreement and thereafter, keep confidential and shall not use for
its own purposes nor without the prior written consent of the other party disclose to any third party, any
information of a confidential nature (including, without limitation, trade secrets, IPR and information of
commercial value and the terms of this Agreement) which may become known to such party from the other
party and which relates to the other party, unless such information is public knowledge or already known at the
time of disclosure, or subsequently becomes public knowledge other than by breach of this Agreement, or
subsequently comes lawfully into the possession of such party from a third party.
15.2 You agree that SMART RESTAURANTS can publicise you as a customer within SMART RESTAURANTS’s web sites, customer
presentations and sales collateral and SMART RESTAURANTS agrees that you can publicise your use of the Software
and Services within your web sites, customer presentations and sales collateral.
16.1 Assignment: You may not assign, sub-license, sub-contract, mortgage or otherwise transfer any of your
rights or obligations under this Agreement without the prior written consent of SMART RESTAURANTS.
16.2 Force Majeure: No party shall be liable to the other for any delay or non-performance of its obligations
under this Agreement arising from any cause beyond its control save that nothing in this clause 16.2 shall
excuse you from any payment obligations under this Agreement.
16.3 Waiver: No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights
of that party and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be
a waiver of any other right or of any later breach.
16.4 Entire Agreement: This Agreement constitutes the entire agreement and understanding between the
parties as to the subject matter hereof and supersedes all previous between the parties agreements relating to
the subject matter hereof. Each party represents and agrees that in entering into this Agreement it does not
rely on, and will have no remedy in respect of, any statement, representation, warranty or understanding
(whether negligently or innocently made) of any person (whether party to this Agreement or not) other than as
expressly set out in this Agreement. Nothing in this clause shall exclude or limit any liability for fraud.
16.5 Third Party Rights: A person who is not a party to this agreement shall not have any rights under or in
connection with it by virtue of the Contracts (Rights of Third Parties) Act 1999.
16.6 Notices: Any notice of termination, breach or other notice of a legal nature required to be given to either
party under this Agreement shall be given by first class recorded delivery post, or by hand confirmed by signed
receipt, to the appropriate address of the party concerned set out in this Agreement or as notified by them
from time to time and any such notice shall be deemed to be delivered on the date such delivery is recorded.
Any other notice required to be given under this Agreement shall be sufficiently given if sent by first class post
and any such notice shall be deemed to be delivered within two days of such posting.
16.7 Headings: The headings of the clauses of this Agreement are provided for convenience only and shall
not contribute to or affect the meaning or construction of the clauses.
16.8 Severance: If any term, part or provision of this Agreement is held by a court of competent jurisdiction to
be invalid, void or otherwise unenforceable as being contrary to applicable law or public policy, such provision
shall to the extent reasonably possible be construed in a manner so as to be enforceable and the remaining
provisions hereof shall remain in full force and effect and in no way be affected, impaired or invalidated.
16.9 Amendments: Any amendment, waiver or variation of this Agreement shall not be binding on the parties
unless set out in writing and signed by or on behalf of each of the parties.
16.10 Disputes: The parties agree that in the event that a dispute arises between them they will in the first
instance attempt to resolve the issue amicably by referring the matter to Director level for discussion between
the parties. In the event that the dispute is not resolved within 30 days either party may refer the matter to the
English courts in accordance with clause 16.11 but nothing shall prevent either party immediately referring to
the English courts any matter relating to the protection of its or its licensors’ IPR or confidential information.
16.11 Law and Jurisdiction: This Agreement shall be governed by and construed in accordance with the
laws of England and Wales and both parties submit to the exclusive jurisdiction of the English courts.