HOMECOOK TERMS AND CONDITIONS
Last updated: June 15, 2017
1.1 These terms and conditions ("Ts&Cs") shall apply to the agreement for the sale and delivery by HomeFood Delivered Limited (“HomeFood”, “We”, “Us”, “Our”) of food prepared by you, the (“HomeCook”, “You”, “Your”).
1.2 In the event of conflict between these Ts&Cs and any other terms and conditions between the parties, these Ts&Cs shall prevail.
2.1 HomeFood shall promote food prepared by the HomeCook through its website and other physical and electronic media (together the "Materials").
2.2 HomeFood, through its Materials, will facilitate the ordering process between the customer and the HomeCook and You hereby authorise HomeFood to conclude sales with customers on Your behalf.
2.3 A third party delivery provider shall collect food from the HomeCook, who will deliver it to the end-customer using its delivery drivers. HomeFood is not responsible for the performance of its third party delivery provider incl. their coverage area.
3.1 The HomeCook can submit new meals, that will be reviewed and approved by HomeFood before being available for sale and delivery by HomeFood to its customers ("Menu Items").
3.2 The HomeCook shall give HomeFood not less than 2 days' notice of a change of menu and/or the discontinuance of any Menu Item and/or a material change in the composition or description of a Menu Item.
3.3 The HomeCook shall provide HomeFood with accurate descriptions and photographs of Menu Items, including but not limited to complete and accurate ingredients and allergen information.
3.4 HomeFood may edit photographs or descriptions of Menu Items in its reasonable discretion.
4.1 HomeFood shall be entitled to the following fees ("Fees") in respect of the services provided by it under these Ts&Cs: £1.99 incl. VAT per meal ordered by any customer and a £3 delivery fee per order.
4.2 In this clause 4, "Business Day" means a day other than a Saturday, Sunday or a UK bank holiday.
5. HomeCook Obligations
5.1 The HomeCook shall procure and maintain in force any such permits, certificates, registrations, licences and approvals and comply with all laws, regulations and industry best practices as are applicable to the HomeCook in carrying out its activities in connection with these Ts&Cs and as may be expected of a skilled cook preparing meal for commercial purposes, including without limitation all hygiene certificates.
6.1 Subject to clause 6.2, the HomeCook undertakes that it shall, and shall use all reasonable endeavours to procure that its staff shall, at all times and for a period of two years after termination of these Ts&Cs:
6.1.1 keep confidential all Confidential Information;
6.1.2 not disclose any Confidential Information to any other party; and
6.1.3 not use any Confidential Information for any purpose other than as contemplated by these Ts&Cs.
6.2 Disclosure under clause 6.1 may be made only to the extent that is necessary for the purposes contemplated by these Ts&Cs, as required by law, or where that Confidential Information in question is or becomes public knowledge through no fault of the HomeCook or its staff.
6.3 The provisions of this clause 6 shall continue in force following termination of these Ts&Cs for any reason.
6.4 In this clause 6, "Confidential Information" means any information of a confidential or proprietary nature in relation to HomeFood, including without limitation, details of its business methods, the identity of any of its customers or suppliers, its pricing structure or margins, any financial information or its terms of business with HomeCooks, customers or drivers.
7.1 HomeFood shall be entitled to advertise its services in such manner, and using such media, as it thinks fit.
7.2 The HomeCook acknowledges and agrees that HomeFood may use the HomeCook's name and/or pictures in any of its advertising materials (including, without limitation, in print or broadcast media, via the internet or social media networks) and may expressly indicate in any such advertising that the HomeCook uses HomeFood as a sales platform and for delivery.
8. Intellectual Property
8.1 The HomeCook hereby grants to HomeFood a worldwide, non-exclusive, fully paid up, royalty free licence for the term of these Ts&Cs to use its pictures, recipes and/or name for the purposes of clause 7 and as otherwise reasonably necessary or desirable in connection with these Ts&Cs.
8.2 HomeFood hereby grants to the HomeCook a non-exclusive, royalty-free licence for the term of these Ts&Cs to use its pictures, recipes and/or name and/or website address for the purposes of advertising the fact that HomeFood makes deliveries for the HomeCook.
8.3 Except as provided in clauses 8.1 and 8.2, nothing in these Ts&Cs shall cause the other party to acquire, or entitle the other party to use, any intellectual property of the other.
9.1 Either party may terminate these Ts&Cs by giving written notice to the other party:
9.1.1 if any sum owing to that party under any of the provisions of these Ts&Cs is not paid within ten (10) days of the due date for payment;
9.1.2 if the other party commits any material breach of any of the provisions of these Ts&Cs and, if the breach is capable of remedy, fails to remedy it within seven (7) days after being given written notice giving full particulars of the breach and requiring it to be remedied;
9.1.3 on giving the other party not less than thirty (30) days’ written notice.
10. Liability and Indemnity
10.1 The HomeCook shall be solely responsible and liable and to the maximum extent permitted under applicable law, shall release, defend and hold HomeFood, its affiliated and related entities, and any of its respective officers, directors, agents and employees (the “Indemnified Parties”), harmless from and against any losses arising out of or relating to any of the following:
(a) any breach by the HomeCook of clause 5 and 8 of these Ts&Cs;
(b) HomeCook’s value added or similar tax obligations arising in connection with these Ts&Cs;
(c) any claims against HomeFood from customers or any third party relating to, or arising (directly or indirectly) from the description, quality, content or packaging of the Menu Items, including without limitation, allegations or claims:
- that the Menu Items do not correspond with the descriptions given (including, without limitation, indications that particular Menu Items are wheat free, gluten free, nut free, dairy free, or are suitable for vegetarians and/or vegans);
- that the food is improperly cooked or is not otherwise fit for consumption or palatable; or
- that the food has not been appropriately packaged.
10.2 We maintain the right to control our own defence and to choose and appoint our own defence counsel, regardless of the presence or absence of a conflict of interest between the parties. Your duty to indemnify us and hold us harmless includes the duty to pay our reasonable defence fees and costs on a full indemnity basis. In addition to any other rights or remedies set forth herein, we may offset any amounts due or payable by you pursuant to these Ts&Cs against any amounts due or payable by us pursuant to these Ts&Cs.
10.3 Without prejudice to clause 10.1, You shall be solely responsible and liable for any complaints or claims against HomeFood from customers that the food is cold on delivery (save where, and to the extent, that this is as a result of HomeFood’s third party delivery provider’s failure to deliver the food within a reasonable time; for the avoidance of doubt, delivery within 30 minutes of pick-up from the HomeCook shall be deemed to be within a reasonable time).
10.4 SUBJECT TO CLAUSES 10.5 AND 10.6, HOMEFOOD’S AGGREGATE LIABILITY FOR ALL CLAIMS IN A CONTRACT YEAR IN ANY MANNER ARISING OUT OF, RELATING TO, OR OCCURRING IN CONNECTION WITH THIS AGREEMENT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL IN NO CIRCUMSTANCES EXCEED AN AMOUNT EQUAL TO THE TOTAL AMOUNT PAID BY ALL CUSTOMERS TO HOMEFOOD IN RESPECT OF THE HOMECOOK’S MENU ITEMS IN THE CALENDAR YEAR IN WHICH SUCH CLAIMS ARISE.
10.5 SUBJECT TO CLAUSE 10.6, HOMEFOOD WILL NOT BY REASON OF ANY REPRESENTATION, IMPLIED WARRANTY, CONDITION OR OTHER TERM, OR ANY DUTY AT COMMON LAW OR UNDER THE EXPRESS TERMS OF THESE TS&CS, BE LIABLE FOR ANY LOSS OF PROFIT OR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS, DAMAGE, COSTS, EXPENSES OR OTHER CLAIMS (WHETHER CAUSED BY HOMEFOOD'S DELIVERY PROVIDERS, AGENTS OR OTHERWISE) IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THESE TS&CS.
10.6 Nothing in these Ts&Cs shall limit or exclude either party’s liability for:
(a) death, personal injury or fraud caused by negligence; or
(b) any other liability that cannot be limited or excluded by law.
11. Force Majeure
Neither party shall be liable for any failure nor delay in performing their obligations under these Ts&Cs where such failure or delay results from any cause that is beyond the reasonable control of that party. Such causes include, but are not limited to: power failure, Internet Service Provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, governmental action or any other similar event.
12.1 All notices under these Ts&Cs shall be in writing and be deemed duly given:
12.1.1 when delivered, if delivered by hand during normal business hours of the recipient; or
12.1.2 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
12.1.3 on the second Business Day following mailing, if mailed by ordinary first class prepaid mail; in each case addressed to the most recent address, e-mail address, or facsimile number notified to the other party.
13.1 Waiver. No waiver by HomeFood of any breach of by You of these Ts&Cs shall be considered as a waiver of any subsequent breach. A waiver of any term of these Ts&Cs shall be effective only if given in writing and signed by HomeFood. No failure or delay on the part of any party in exercising any right under these Ts&Cs shall operate as a waiver of such right.
13.2 Third Party Rights. Nothing in these Ts&Cs is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party. No one other than a party to these Ts&Cs, their successors and permitted assignees, shall have any right to enforce any of its terms.
13.3 Severability. In the event that one or more of the provisions of these Ts&Cs are found to be unlawful or otherwise unenforceable, those provisions shall be deemed severed from the remainder of these Ts&Cs.
13.4 Entire Agreement. These Ts&Cs constitute the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into these Ts&Cs it does not rely on, and shall have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in these Ts&Cs. No party shall have any claim for innocent or negligent misrepresentation based upon any statement in these Ts&Cs. Nothing in this clause shall limit or exclude any liability for fraud.
13.5 Counterparts. These Ts&Cs may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of these Ts&Cs, but all the counterparts shall together constitute the same Agreement. No counterpart shall be effective until each party has executed at least one counterpart.
13.6 Governing Law and Jurisdiction. These Ts&Cs shall be governed by, and construed in accordance with, the laws of England and Wales and any dispute, proceedings or claim between the parties shall fall within the jurisdiction of the English courts.