Terms & Conditions

AGREED
TERMS PLEASE READ THESE TERMS CAREFULLY BEFORE PURCHASING FROM FLIPDISH
  1. OUR CONTRACT WITH YOU
    1. These terms and conditions (the “Terms”) apply to the order by you and supply of goods by us to you (the “Contract”) through shop.flipdish.com (the “Flipdish Page”). No other terms are implied by trade, custom, practice or course of dealing.
    2. The Contract is the entire agreement between you and Flipdish Limited, a company registered under the laws of Ireland with company number 555703 and a registered address at First Floor, Heron House, Corrig Road, Sandyford Business Park, Dublin 18, D18 Y2X6, Ireland (“Flipdish”) and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral in relation to its subject matter. You acknowledge that Shopify is an agent of Flipdish and that the Contract is solely between you and Flipdish.
    3. You acknowledge that you have not relied on any statement, promise or representation or assurance or warranty that is not set out in the Contract.
  2. PLACING AN ORDER AND ITS ACCEPTANCE
    1. Please follow the onscreen prompts on the Flipdish Page to place an order (an “Order”). Each Order is an offer by you to buy the goods specified in the Order (“Goods”) subject to these Terms.
    2. Please check the Order carefully before confirming it. You are responsible for ensuring that your Order is complete and accurate.
    3. After you place an Order, you will receive a text message acknowledging that the Order has been received, but please note that this does not mean that your Order has been accepted. Our acceptance of your Order will take place as described in Clause 2.4.
    4. We will confirm our acceptance to you by sending you a text message that confirms that the Goods have been dispatched (“Dispatch Confirmation”). The Contract between you and us will only be formed when you receive the Dispatch Confirmation.
    5. If we are unable to supply you with the Goods for any reason, you will be informed of this by email or a telephone call and we will not process your Order. If you have already paid for the Goods which are the subject of the Order, we will refund you the full amount including any delivery costs charged as soon as possible.
  3. OUR GOODS
    1. The images of the Goods on the Flipdish Page are for illustrative purposes only. Although we have made every effort to display the Goods accurately, we cannot guarantee that your computer's display of the colours accurately reflect the colour of the Goods. The colour of your Goods may vary slightly from those images.
    2. The packaging of your Goods may vary from that shown in any images on our site.
    3. We reserve the right to amend the specification of the Goods if required by any applicable statutory or regulatory requirement.
    4. Your use of any software included with the Goods is governed by the terms and conditions of the Software Licence Agreement included at Schedule 1 to the Terms (the “Software Licence Agreement”). In the event of any conflict or inconsistency between any provision of the Terms and any provision of the Software Licence Agreement, the relevant provision of the Software Licence Agreement shall prevail to the extent necessary to resolve the conflict.
  4. RETURN AND REFUND
    1. Once delivered, Goods are not returnable by you to Flipdish without Flipdish’s written consent and returns shall be at Flipdish’s sole discretion. Goods that are non-stock items for Flipdish will not be accepted for return.
    2. An application for consent to the return of delivered Goods shall be considered by Flipdish only if such application is received within 30 days of date of delivery, such application to be in writing, to state the date and Order number applicable to the Goods in question together with a full written explanation of the reasons for the return so requested.
    3. In the event of Flipdish consenting to such return, your account will be credited at the Order price less a handling charge of at least a minimum value of EURO 150 (as notified to you by Flipdish), such charge (as you hereby acknowledge) representing a genuine pre-estimate of the cost to Flipdish of accepting such return.
  5. DELIVERY, TRANSFER OF RISK AND TITLE
    1. Delivery times are estimates only and Flipdish shall not be liable for any losses (including loss of profit, loss of business, loss of revenues, depletion of goodwill or any indirect, special or consequential loss or damage, costs, expenses or other claims for consequential compensation whatsoever and howsoever caused) arising from any failure or delay in delivery of the Goods to you and you may not reject delivery of Goods or terminate the Contract in cases of delay.
    2. In the event of you failing to accept delivery of the Goods on the date stipulated for delivery, Flipdish shall be at liberty to impose an additional charge for handling and storage of the Goods until such time as delivery is accepted.
    3. You shall indemnify Flipdish for any unusual or abnormal delivery costs incurred by Flipdish including (without prejudice to the generality of the foregoing) costs incurred due to delivery of the Goods having to be effected outside normal working hours, or in part loads.
    4. You must inspect and inform Flipdish of any defect in the quality or condition of the Goods, any shortages in respect of the relevant order or their failure to correspond with any specification within seven (7) business days from their date of delivery (or in respect of latent defects, within three (3) business days of the latent defect becoming apparent). Flipdish shall be given full opportunity to inspect such defective Goods. You shall, on delivery of the Goods, record on the carrier’s delivery sheet the details of any visible damage allegedly sustained by the Goods in transit. Flipdish shall not consider any claims made by you in respect of any alleged damage, shortage, or missing consignment or part of consignment, unless the preceding provisions as to recording and notification have been observed.
    5. Where Flipdish accepts a claim by you that there is a defect or inadequacy in the Goods (or any part of them) in accordance with these Terms and that defect or inadequacy is due to the negligence of Flipdish, Flipdish shall be entitled to replace the Goods (or the part in question) free of charge or refund the price (or a pro rata amount thereof, depending on the extent to which the Goods are affected) but Flipdish shall have no further liability to you, provided that, if Flipdish so requests, you shall return the Goods (or part of the Goods which is defective) to Flipdish.
    6. Risk of damage to or loss of Goods shall pass to you:
      (a) at time of delivery of such Goods or, if you wrongfully fail to take delivery of such Goods, at the time when Flipdish has tendered delivery of such Goods; or
      (b)when the Goods are loaded onto your vehicles or of your carrier or agent.
    7. Title to the Goods shall not pass to you until Flipdish has cleared funds.
  6. CANCELLATION
    Cancellation by you of any Order, or part of an Order, can be accepted by Flipdish by agreement only and on condition that you agree to discharge, and actually discharge, all costs and expenses incurred by Flipdish consequent on such cancellation.
  7. INTERNATIONAL DELIVERY
    1. We deliver certain Goods to countries outside of Ireland. Please review the information carefully on the page of the Goods you wish to purchase to ensure it is possible to deliver such Goods to your chosen delivery destination.
    2. If you order Goods from our site for delivery outside of Ireland, your Order may be subject to import duties and taxes which are applied when the delivery reaches that destination. Please note that we have no control over these charges and we cannot predict their amount.
    3. You will be responsible for payment of any such import duties and taxes. Please contact your local customs office for further information before placing your Order.
    4. You must comply with all applicable laws and regulations of the country for which the Goods are destined, including ensuring that the Goods comply with any applicable legal requirements. We will not be liable or responsible if you break any such law.
  8. PRICE OF GOODS AND DELIVERY CHARGES
    1. The prices of the Goods will be as quoted on the Flipdish Page at the time you submit your Order. We use our best efforts to ensure that the prices of Goods are correct at the time when the relevant information was entered onto the system. However, please see Clause 8.6 for what happens if we discover an error in the price of Goods you ordered.
    2. Prices for our Goods may change from time to time, but changes will not affect any Contract that has been formed, as set out in Clause 2.4.
    3. The price of Goods excludes VAT (where applicable) at the applicable current rate chargeable in Ireland for the time being.
    4. The price of the Goods does not include delivery charges. Our delivery charges are as advised to you during the check-out process, before you confirm your Order. You shall be liable for all costs or charges in relation to insurance of the Goods.
    5. If applicable, the cost of installation, demonstration and commissioning of Goods shall also be deemed excluded from the price for the Goods, unless otherwise previously agreed in writing.
    6. We sell a large number of Goods through the Flipdish Page. It is always possible that, despite our reasonable efforts some of the Goods on the Flipdish Page may be incorrectly priced. If we discover an error in the price of the Goods you have ordered we will contact you in writing to inform you of this error and we will give you the option of continuing to purchase the Goods at the correct price or cancelling your Order. We will not process your Order until we have your instructions. If we are unable to contact you using the contact details you provided during the order process, we will treat the Order as cancelled and notify you in writing. If we mistakenly accept and process your Order where a pricing error is obvious and un-mistakeable and could reasonably have been recognised by you as a mispricing, we may cancel supply of the Goods and refund you any sums you have paid.
  9. HOW TO PAY
    1. You can only pay for Goods using the payment methods available on the Flipdish Page.
    2. Payment for the Goods and all applicable delivery charges is in advance.
  10. OUR WARRANTY FOR THE GOODS
    1. We provide a warranty that on delivery and for a period of six (6) months from delivery, the Goods shall:
      (a) subject to Clause 3, conform in all material respects with their description; and
      (b) be free from material defects in design, material and workmanship.
    2. Subject to Clause 10.3, if:
      (a) you give us notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in Clause 10.1;
      (b) we are given a reasonable opportunity of examining the Goods; and
      (c) we ask you to do so, you return the Goods to us at your cost,
      we will, at our option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
    3. We will not be liable for breach of the warranty set out in Clause 10.1 if:
      (a) you make any further use of the Goods after giving notice to us under Clause 10.2;
      (b) the defect arises as a result of us following any drawing, design or specification supplied by you;
      (c) you alter or repair the Goods without our written consent or fail to have the Goods installed in accordance with our instructions;
      (d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or inappropriate storage or working conditions; or
      (e)the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
    4. We will only be liable to you for the Goods’ failure to comply with the warranty set out in Clause 10.1 to the extent set out in this Clause 10.
    5. These Terms also apply to any repaired or replacement Goods supplied by us to you.
  11. LIABILITY
    1. References to liability in this Clause 11 include every kind of liability arising under or in connection with the Contract including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
    2. We only supply the Goods for internal use by your business, and you agree not to use the Goods for any resale purposes.
    3. Nothing in these Terms limits or excludes our liability for:
      (a) death or personal injury caused by our negligence;
      (b) fraud or fraudulent misrepresentation; or
      (c) any other liability that cannot be limited or excluded by law.
    4. Subject to Clause 11.3, we will under no circumstances be liable to you for:
      (a) any loss of profits, sales, business, or revenue;
      (b) loss or corruption of software;
      (c) loss of business opportunity;
      (d) loss of anticipated savings;
      (e) loss of goodwill; or
      (f) any indirect or consequential loss.
    5. Subject to Clause 11.3, our total liability for all loss, damage, cost or expense suffered or incurred by you, whether in tort, in contract, at law, in equity, pursuant to any statutory provision, or otherwise howsoever, arising out of or in connection with this Contract (whether caused by the negligence of Flipdish, its servants or agents or otherwise) shall be limited to two hundred (200) per cent the price of the Goods giving rise to the relevant loss, damage, cost or expense (excluding VAT and delivery charges).
    6. Except as expressly stated in these Terms, we do not give any representations, warranties or undertakings in relation to the Goods. Any representation, condition or warranty which might be implied or incorporated into these Terms by statute, common law or otherwise is excluded to the fullest extent permitted by law. In particular, we will not be responsible for ensuring that the Goods are suitable for your purposes.
  12. INTELLECTUAL PROPERTY
    1. We grant you a personal, non-exclusive, non-sub-licensable, non-transferable, royalty free licence to use any intellectual property rights delivered with the Goods, including in any software, in accordance with the Terms and any other instructions, policies, procedures or documentation communicated to you by us.
    2. You acknowledge and agree that all intellectual property rights in the Goods, and to any software delivered with the Goods, will at all times vest in and be the absolute property of Flipdish and its licensors as appropriate and that subject to Clause 12.1, you shall not acquire any right, title or interest in or to any intellectual property rights in the Goods.
    3. You agree that you will not, in any manner or by any means, reverse-engineer, decompile, disassemble, decipher, resell, adapt, reproduce, copy, store, distribute, display, publish or create derivative works from any part of the Goods or attempt to commercialise, copy or sell any information or matters derived from Goods.
    4. If notwithstanding Clause 12.2, you acquire, by operation of law, title to any intellectual property rights in the Goods, you shall immediately and irrevocably assign, transfer or convey such intellectual property rights to Flipdish.
  13. TERMINATION
    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 or delivery of the Goods, shall continue in full force and effect.
  14. DATA PROTECTION
    To the extent that Flipdish acts as a processor on your behalf in respect of personal data processed on the Goods, Clause 8 (Data Protection) of the Flipdish Terms & Conditions relating to Customers shall apply (as may be amended from time to time).
  15. EVENTS OUTSIDE OUR CONTROL
    1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond our reasonable control (“Event Outside Our Control”).
    2. If an Event Outside Our Control takes place that affects the performance of our obligations under the Contract:
      (a) we will contact you as soon as reasonably possible to notify you; and
      (b) our obligations under the Contract will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our delivery of Goods to you, we will arrange a new delivery date with you after the Event Outside Our Control is over.
    3. You may cancel the Contract affected by an Event Outside Our Control which has continued for more than 30 days. To cancel please contact us. If you opt to cancel, you will return (at our cost) any relevant Goods you have already received and we will refund the price you have paid, including any delivery charges.
  16. COMMUNICATIONS BETWEEN US
    1. When we refer to “in writing” in these Terms, this includes email.
    2. Any notice or other communication given by one party to the other party under or in connection with the Contract must be in writing and be delivered by hand, sent by registered post or other next working day delivery service, or email.
    3. A notice or other communication is deemed to have been received:
      (a) if delivered by hand, at the time the notice is left at the proper address of the other party;
      (b) if sent by registered or other next working day delivery service, at 9:00 am on the second working day after posting; or
      (c) if sent by email, at the time of transmission, or if this time falls outside business hours (9:00 AM to 5:00 PM on a working day), 9:00 am the next working day after transmission.
    4. In proving the service of any notice, it will be sufficient to prove, in the case of a registered letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
    5. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  17. ASSIGNMENT AND TRANSFER
    1. Flipdish may at any time assign, transfer, novate, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract and you shall enter into such documents as Flipdish deems reasonably necessary for this purpose.
    2. You may not assign, transfer, novate, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of Flipdish.
  18. GENERAL
    1. Each of Flipdish’s rights is without prejudice to any other right that Flipdish may have. No delay or omission by any party to the Contract in exercising any right, power or remedy provided by law or under these Terms shall:
      (a) affect that right, power or remedy; or
      (b) operate as a waiver of it or the exercise of any other right, power or remedy.
    2. These Terms or an Order shall not be amended, modified, varied or supplemented except in writing signed by duly authorised representatives of the parties.
    3. Nothing in these Terms and no action taken by the parties under these Terms shall constitute a partnership, association, joint venture or other co-operative entity between the parties.
  19. SEVERANCE
    1. If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
    2. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted from the Contract and Flipdish shall prepare a replacement provision that to the greatest extent possible achieves the intended commercial result of the deleted provision or part provision.
    3. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
  20. GOVERNING LAW AND PRINCIPLES OF CONSTRUCTION
    1. The Contract, 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 Ireland.
    2. Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).

These Terms were updated on 1 December 2021.

SCHEDULE 1
SOFTWARE LICENCE AGREEMENT

BACKGROUND
Flipdish (the “Licensor”) has agreed to install on your (the “Licensee”) Goods delivered by Flipdish certain computer programs and to grant the Licensee a non-exclusive licence to use such programs and their associated documentation upon the terms and conditions hereinafter contained (the “Agreement”).

AGREED TERMS

  1. DEFINITIONS
    In this Agreement, unless the context otherwise requires, the following expressions have the following meanings (capitalised terms not defined in the Agreement shall have the meanings given to them in the Terms):

    Confidential Information” means all information which is expressly marked as confidential or which is manifestly of a confidential nature or which is confirmed in writing to be confidential within seven days of its disclosure;

    Licence” means the licence granted by the Licensor pursuant to Clause 5.1;

    Licence Fee” means the fee for the Licence; “Licensed Program Materials” means the Licensed Programs and the Program Documentation;

    Licensed Programs” means the computer programs of the Licensor specified in Annex 1;

    Location” means the Licensee’s premises where the relevant Goods are located;

    Program Documentation” means any operating manuals, user instructions, technical literature, on-line help and other documentation and all other related materials in eye-readable form supplied to the Licensee by the Licensor for aiding the use by the Licensee of the Licensed Programs;

    Specification” means the specification of the Licensed Programs describing the facilities and functions thereof as set out in Annex 1;

    Terms” means the terms and conditions that apply to the Order by the Licensee and supply of Goods by the Licensor to the Licensee through shop.flipdish.com; and

    Use” means (as appropriate) either the reading and possession of the Program Documentation or the loading and subsequent processing of the Licensed Programs on the Goods.
  2. PRODUCTS AND SERVICES TO BE PROVIDED
    The Licensor hereby agrees to:
    1. grant to the Licensee a non-exclusive licence to Use the Licensed Program Materials;
    2. provide operating manuals to the Licensee; and
    3. provide the other services hereinafter described,
    upon the terms and conditions hereinafter contained.
  3. PAYMENT
    1. The Licence Fee shall be paid by the Licensee on or before the date it is due as stated in the relevant Order.
    2. The Licence Fee and any additional charges payable under this Agreement are exclusive of VAT which shall be paid by the Licensee at the rate and in the manner for the time being prescribed by law.
    3. Any charges payable by the Licensee hereunder in addition to the Licence Fee shall be due to be paid within 30 days after the receipt by the Licensee of the Licensor’s invoice.
    4. If any sum payable under this Agreement is not paid within seven (7) days after the due date then (without prejudice to the Licensor’s other rights and remedies) the Licensor reserves the right to charge interest on such sum on a day to day basis (as well after as before any judgment) from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of 4% above the European Central Bank’s monthly base rate compounded quarterly. Such interest shall be paid on demand by the Licensor. For the avoidance of doubt, any failure to make payment within seven (7) days after the due date shall constitute a material breach of contract for the purposes of Clause 15.2.
  4. WARRANTY

    1. (a) The Licensor warrants that the Licensed Programs will for a period of ninety (90) days after delivery of the Goods, provide, in all material respects, the facilities and functions set out in the Specification when properly used on the Goods and that the Program Documentation will provide adequate instruction to enable the Licensee to make proper use of such facilities and functions.
      (b) If the Licensor receives written notice from the Licensee within the above warranty period of any breach of the said warranty then the Licensor shall at its own expense and within a reasonable time after receiving such notice remedy the defect or error in question provided that the Licensor shall have no liability or obligations under the said warranty unless it shall have received written notice of the defect or error in question no later than the expiry of five (5) working days after the expiry of the above warranty period.
      (c) The said warranty shall be subject to the Licensee complying with its obligations hereunder and to there having been made no alterations to the Licensed Programs by any person other than the Licensor.
      (d) When notifying a defect or error the Licensee shall (so far as it is able) provide the Licensor with a documented example of such defect or error.
      (e) The Licensor shall have no liability or obligations under the said warranty other than to remedy breaches thereof by the provision of materials and services within a reasonable time and without charge to the Licensee save that if the Licensor shall fail to comply with such obligations, its liability for such failure shall be subject to the provisions of Clause 18. The foregoing states the entire liability of the Licensor, whether in contract or tort, for defects and errors in the Licensed Program Materials which are notified to the Licensor from the date of delivery to the Licensee of the relevant Goods in which such copy is installed.
    2. The Licensee acknowledges that the Licensed Programs have not been prepared to meet the Licensee’s individual requirements and that it is therefore the responsibility of the Licensee to ensure that the facilities and functions described in the Specification meet its requirements. The Licensor shall not be liable for any failure of the Licensed Programs to provide any facility or function not specified in the Specification.
    3. The express terms of this Agreement are in lieu of all warranties, conditions, terms, undertakings and obligations implied by statute, common law, custom, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by law.
  5. LICENCE
    1. The Licensor hereby grants to the Licensee a non-exclusive licence to Use the Licensed Program Materials subject to the terms and conditions contained in this Agreement.
    2. The Licensee shall Use the Licensed Program Materials for processing its own data for its own internal business purposes only. The Licensee shall not permit any third party to use the Licensed Program Materials nor use the Licensed Program Materials on behalf of or for the benefit of any third party in any way whatever.
    3. The use of the Licensed Program Materials is restricted to use on and in conjunction with the Goods only.
    4. The Licence shall not be deemed to extend to any programs or materials of the Licensor other than the Licensed Program Materials unless specifically agreed to in writing by the Licensor.
    5. The Licensee hereby acknowledges that it is licensed to use the Licensed Program Materials only in accordance with the express terms of this Agreement and not further or otherwise.
  6. DURATION OF LICENCE
    The Licence shall, in respect of each copy of the Licensed Program Materials, commence on the date of delivery to the Licensee of the relevant Goods in which such copy is installed and shall continue until terminated in accordance with Clause 15 or as otherwise provided in this Agreement.
  7. PROPRIETARY RIGHTS
    1. The Licensed Program Materials and the copyright and other intellectual property rights of whatever nature in the Licensed Programs Materials (including any modifications made thereto) are and shall remain the property of the Licensor (or its licensors) and the Licensor reserves the right to grant licences to use the Licensed Programs and/or the Program Documentation to third parties.
    2. The Licensee shall notify the Licensor immediately if the Licensee becomes aware of any unauthorised use of the whole or any part of the Licensed Program Materials by any person.
    3. The Licensee will permit the Licensor to check the use of the Licensed Program Materials by the Licensee at all reasonable times and for that purpose the Licensor shall be entitled to enter any of the Licensee’s premises upon reasonable prior notice (and so that the Licensee hereby irrevocably licenses the Licensor, its employees and agents to enter any such premises for such purpose).
  8. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
    The Licensor shall indemnify the Licensee against any claim that the normal use or possession of the Licensed Program Materials infringes the intellectual property rights of any third party provided that the Licensor is notified promptly in writing of any claim that the Licensor is given immediate and complete control of such claim, that the Licensee does not prejudice the Licensor’s defence of such claim, that the Licensee gives the Licensor all reasonable assistance with such claim (at the cost of the Licensor) and that the claim does not arise as a result of the use of the Licensed Program Materials in combination with any equipment (other than the Goods) or programs not supplied or approved by the Licensor or by reason of any alteration or modification which was not made by the Licensor or with its prior written consent. The Licensor shall have the right to replace or change all or any part of the Licensed Program Materials in order to avoid any infringement. The foregoing states the entire liability of the Licensor to the Licensee in respect of the infringement of the intellectual property rights of any third party.
  9. CONFIDENTIALITY OF LICENSED PROGRAM MATERIALS
    1. The Licensee undertakes to treat as confidential and keep secret all Confidential Information contained or embodied in the Licensed Program Materials and the Specification (hereinafter collectively referred to as the “Information”), provided that this clause shall not extend to information which was rightfully in the possession of the Licensee prior to the Agreement, which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this clause).
    2. The Licensee shall not without the prior written consent of the Licensor divulge any part of the Information to any person except:
      (a) the Licensee’s own employees and then only to those employees who reasonably have a need to know the same; and
      (b) the Licensee’s auditors and any other persons or bodies having a right, duty or obligation to know the business of the Licensee and then only in pursuance of such right, duty or obligation.
    3. The Licensee undertakes to ensure that the persons and bodies mentioned in Clauses 9.2(a) to 9.2(b) are made aware prior to the disclosure of any part of the Information that the same is confidential and that they owe a duty of confidence to the Licensor. The Licensee shall indemnify the Licensor against any loss or damage which the Licensor may sustain or incur as a result of the Licensee failing to comply with such undertaking.
    4. The Licensee shall promptly notify the Licensor if it becomes aware of any breach of confidence by any person to whom the Licensee divulges all or any part of the Information and shall give the Licensor all reasonable assistance in connection with any proceedings which the Licensor may institute against such person for breach of confidence.
    5. The foregoing obligations as to confidentiality shall remain in full force and effect notwithstanding any termination of the Licence or this Agreement.
  10. SECURITY AND CONTROL
    1. The Licensee shall during the continuance of the Licence:
      (a) effect and maintain adequate security measures to safeguard the Licensed Program Materials from access or use by any unauthorised person;
      (b) retain the Licensed Program Materials and all copies thereof under the Licensee’s effective control; and
      (c) maintain a full and accurate record of the Licensee’s disclosure of the Licensed Program Materials and shall produce such record to the Licensor on request from time to time.
  11. ALTERATIONS
    1. Except to the extent and in the circumstances expressly required to be permitted by the Licensor by law, the Licensee shall not alter, modify, adapt or translate the whole or any part of the Licensed Program Materials in any way whatsoever nor permit the whole or any part of the Licensed Programs to be combined with or become incorporated in any other computer programs nor decompile, disassemble or reverse engineer the same nor attempt to do any of such things.
    2. The Licensor shall not be responsible for any error in the Licensed Programs or failure of the Licensed Programs to fulfil the Specification insofar as such error or failure occurs in or is caused by any part of the Licensed Programs being modified or combined by the Licensee with other programs as aforesaid.
  12. SOFTWARE MAINTENANCE
    The Licensor will not provide any maintenance in respect of the Licensed Program Materials. If at a later date the Licensee wishes to receive the then current release of the Licensed Program Materials or maintenance therefor then the Licensor may at its option provide the same subject to the Licensee entering into a new licence agreement in respect of such release (and paying the Licensor’s then current charge therefor) and (if applicable) entering into the Licensor’s standard software maintenance agreement then in force.
  13. LICENSEE’S CONFIDENTIAL INFORMATION
    The Licensor shall treat as confidential all Confidential Information supplied by the Licensee under this Agreement provided that this Clause 13 shall not extend to any information which was rightfully in the possession of the Licensor prior to this Agreement or which is already public knowledge or becomes so at a future date (otherwise than as a result of a breach of this Clause 13). The Licensor shall not divulge any of the Licensee’s Confidential Information to any person except to its own employees and then only to those employees who need to know the same. The Licensor shall ensure that its employees are aware of and comply with the provisions of this Clause.
  14. TERMINATION
    1. The Licensee may terminate the Licence at any time by giving at least thirty (30) days’ prior written notice to the Licensor.
    2. The Licensor may terminate the Licence forthwith on giving notice in writing to the Licensee if:
      (a) the Licensee commits any material breach of any term of this Agreement and (in the case of a breach capable of being remedied) shall have failed, within thirty (30) days after the receipt of a request in writing from the Licensor so to do, to remedy the breach; or
      (b) the Licensee shall have a receiver appointed over it or over any part of its undertaking or assets or shall pass a resolution for winding up (otherwise than for the purpose of a bona fide scheme of solvent amalgamation or reconstruction) or a court of competent jurisdiction shall make an order to that effect or if the Licensee shall enter into any voluntary arrangement with its creditors or shall become subject to an administration order or shall cease to carry on business.
    3. Save as expressly provided in Clause 14.2 or elsewhere in this Agreement, the Licence may not be terminated.
    4. Forthwith upon the termination of the Licence the Licensee shall destroy the Licensed Program Materials (in the case of the Licensed Programs by erasing them from the media on which they are stored) and certify in writing to the Licensor that they have been destroyed. The Licensee shall also cause the Licensed Programs to be erased from the Goods and shall certify to the Licensor that the same has been done.
    5. Any termination of the Licence or this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination. For the avoidance of doubt, there shall be no refund of any element of the Licence Fee by reason of any termination by the Licensee.
  15. ASSIGNMENT
    The Licensee shall not be entitled to assign, sub-license or otherwise transfer the Licence whether in whole or in part. The Licensor may at any time assign or otherwise transfer all or any of its rights or obligations under the Agreement and the Licensee shall enter into such documents as the Licensor deems reasonably necessary for this purpose.
  16. EVENT OUTSIDE THE LICENSOR’S CONTROL
    1. The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of its obligations under the Agreement that is caused by any act or event beyond our reasonable control (“Event Outside The Licensor’s Control”).
    2. If an Event Outside the Licensor’s Control takes place that affects the performance of the Licensor’s obligations under the Agreement:
      (a) the Licensor will contact the Licensee as soon as reasonably possible to notify the Licensee; and
      (b) the Licensor’s obligations under the Agreement will be suspended and the time for performance of its obligations will be extended for the duration of the Event Outside the Licensor’s Control.
    3. The Licensee may cancel the Agreement affected by an Event Outside The Licensor’s Control which has continued for more than 30 days. To cancel, the Licensee should contact the Licensor. If the Licensee opts to cancel, the Licensee will return (at the Licensor’s cost) any Licensed Program Materials already received and the Licensor will refund the price paid.
  17. LIABILITY
    1. References to liability in this Clause 17 include every kind of liability arising under or in connection with the Agreement including but not limited to liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
    2. Nothing in the Agreement limits or excludes the Licensor’s liability for:
      (a) death or personal injury caused by its negligence;
      (b) fraud or fraudulent misrepresentation; or
      (c) any other liability that cannot be limited or excluded by law.
    3. Subject to Clause 17.2, the Licensor will under no circumstances be liable to the Licensee for:
      (a) any loss of profits, sales, business, or revenue;
      (b) loss or corruption of software;
      (c) loss of business opportunity;
      (d) loss of anticipated savings;
      (e) loss of goodwill; or
      (f) any indirect or consequential loss.
    4. Subject to Clause 17.3the Licensor’s total liability for all loss, damage, cost or expense suffered or incurred by the Licensee, whether in tort, in contract, at law, in equity, pursuant to any statutory provision, or otherwise howsoever, arising out of or in connection with the Agreement (whether caused by the negligence of the Licensee, its servants or agents or otherwise) shall be limited to one hundred (100) per cent of the Licensee Fee paid in the previous twelve (12) months for the Licensed Program Materials giving rise to the relevant loss, damage, cost or expense (excluding VAT).
    5. Except as expressly stated in the Agreement, we do not give any representations, warranties or undertakings in relation to the Licensed Program Materials. Any representation, condition or warranty which might be implied or incorporated into the Agreement by statute, common law or otherwise is excluded to the fullest extent permitted by law.
  18. WAIVER OF REMEDIES
    No failure or delay by the Licensor to exercise any right or remedy provided under the 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 by the Licensor.
  19. ENTIRE AGREEMENT
    1. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all prior oral and written commitments, agreements, promises, assurances, warranties, representations and understandings between the parties with respect to the subject matter of the Agreement.
    2. You acknowledge that the Agreement may be modified by the Licensor from time to time. If the Licensor makes any material change to the Agreement, the Licensor will provide the Licensee with notice and an opportunity to review the change before they become effective. If you object to any material changes, you may elect to terminate the Agreement subject to payment by you of all amounts due and owing to the Licensor as at the effective date of such termination. The Licensee's continued use of the Licensed Program Materials after the Licensor publishes or sends a notice to the Licensee about the changes to the Agreement means that the Licensor is accepting the updated Agreement and will be bound by it as of their effective date.
  20. NOTICES
    1. A notice or other communication is deemed to have been received:
      (a) if delivered by hand, at the time the notice is left at the proper address of the other party;
      (b) if sent by registered or other next working day delivery service, at 9:00 am on the second working day after posting; or
      (c) if sent by email, at the time of transmission, or if this time falls outside business hours (9:00 AM to 5:00 PM on a working day), 9:00 am the next working day after transmission.
    2. In proving the service of any notice, it will be sufficient to prove, in the case of a registered letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an email, that such email was sent to the specified email address of the addressee.
    3. The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
  21. GOVERNING LAW
    1. The 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 Ireland.
    2. Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims).
  22. SEVERABILITY
    1. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable.
    2. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted from the Agreement and the Licensor shall prepare a replacement provision that to the greatest extent possible achieves the intended commercial result of the deleted provision or part provision.
    3. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Agreement.
ANNEX 1
  1. LICENSED PROGRAMS SPECIFICATION
    (a) “Licensed Programs” means the computer programs of the Licensor being the revocable, non-exclusive, personal self-service on-premises ordering solution licence to be used in connection with self-service ordering kiosks (or other similar hardware).