Qbab Vendor Terms & Conditions

1. Definitions & Interpretation

1.1 Unless the context requires otherwise, in these Terms and Conditions the following words have the following meanings:

 

1.2 In the Agreement, a reference to a statute or statutory provision includes a reference to:

  1. that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and

  2. any subordinate legislation made under that statute or statutory provision.

1.3 The clause headings do not affect the interpretation of the Agreement.

1.4 In the Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

 

2. Agreement

2.1 Subject to earlier termination in accordance with clause 12, the Agreement will continue from when the Vendor taps the “Accept Qbab Vendor Terms and Conditions” button on the Vendor App until

(the “Term”).

  1. the Vendor cancels their Vendor Account via email to support@qbab.app

  2. Qbab terminates the Agreement by giving the Vendor at least thirty (30) days' written notice,

 

3. Services

3.1 Qbab hereby grants to the Vendor a non-exclusive, non-transferable licence during the Term:

  1. to downland, store and use the Vendor App and to access and use the Services, in each case for the Vendor’s own business purposes; and

  2. to use Qbab’s name, logo and marketing material to promote the Services to potential Customers.

3.2 Except to the extent expressly permitted by the Agreement or required by law on a non-excludable basis, the licence granted by Qbab to the Vendor under clause 3.1 is subject to the following conditions:

  1. the Vendor App may only be accessed and used by employees or workers of the Vendor;

  2. the Vendor must not sub-license, assign or otherwise transfer their right to access and use the Vendor App, or use the Vendor App to provide services to third parties;

  3. the Vendor must not permit any unauthorised person to access or use the Vendor App, and must use all commercially reasonable endeavours, including reasonable security measures relating to their Vendor Account access details, to ensure that no unauthorized person accesses or uses the Vendor App;

  4. the Vendor must not use the Vendor App or the Services in any way that is unlawful, illegal, fraudulent or harmful, or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;

  5. the Vendor must not upload any content that contains software viruses, worms, or any other harmful code, or for which Vendor does not have the necessary rights to use;

  6. the Vendor must not reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for the Vendor App or any related technology;

  7. the Vendor must not “scrape,” “crawl” or “spider” the Vendor App, whether by manual means or using automated software, devices, scripts robots;

  8. the Vendor must not interfere with the operation of, or place an unreasonable load on, the Vendor App or the Services, or otherwise use the Vendor App or the Services in any way that causes, or may cause, damage to them; and

  9. if requested to do so, the Vendor must promptly install and use the latest version of the Vendor App.

3.3 The Vendor acknowledges and agrees that use of the Vendor App and the Services is also subject to the following end user licence agreements (“EULAs”):

  1. in the case of iOS devices, the terms of Apple’s Licensed Application End User License Agreement; or

  2. in the case of Android devices, the Google Play Terms of Service.

and that, in the event of a conflict between the Agreement and the EULAs, the Agreement prevails.

3.4 For the avoidance of doubt, the Vendor has no right to access the software code (including object code, intermediate code and source code) of the Vendor App or other software used to provide the Services, either during or after the Term.

 

4. Vendor Obligations

4.1 The Vendor agrees that it shall apply and display Qbab QR code stickers (as provided by Qbab from time to time) in prominent positions on their van(s) or other premises for the purposes of promoting the Services and enabling Customers to download the Qbab App.

4.2 The Vendor agrees that they shall:

  1. not use the Vendor App or the Services to supply alcoholic beverages, tobacco or vaping products, or other age-restricted items, to Customers who are prohibited by law from purchasing such items;

  2. whenever appropriate, request that the Customer provides ID confirming that they are old enough to purchase the age-restricted items, and

  3. if a Customer is unable to provide ID confirming that they are old enough to purchase the age-restricted items, withhold the collection or delivery of such items.

4.3 The Vendor further agrees that they are solely responsible for deciding which of their employees and other personnel have the right to access and use the Vendor App from time to time and, if and when required, for removing such employees and other personnel.

 

5. Vendor Listing

5.1 The Vendor acknowledges and agrees that they are solely responsible for ensuring that their Vendor Listing is in all respects and at all times accurate, complete and not misleading, including in relation to:

  1. opening times;

  2. menus and prices;

  3. location; and

  4. if applicable, any allergen, dietary and other information that the Vendor provides in relation to their food, drink and other consumables.

5.2 The Vendor agrees to indemnify Qbab against all liability, losses, damages, costs, legal costs, professional and other expenses of any nature whatsoever incurred or suffered in respect of any claim by a Customer or other third party that the information in the Vendor Listing, or otherwise provided by the Vendor via the Vendor App, was inaccurate, incomplete or misleading.

 

6. Vendor Information

6.1 The Vendor grants to Qbab the following non-exclusive licences:

  1. to include the Vendor’s name, logo and contact details in the Qbab Vendor Directory, in the Vendor App, on Qbab’s website, and in Qbab’s other marketing material, and to copy, edit and use the Vendor’s name, logo and contact details for such purposes; and

  2. to copy, store, distribute, export and edit the Vendor Information to the extent reasonably required for the performance of Qbab's obligations and the exercise of Qbab's rights under the Agreement, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of Qbab's obligations and the exercise of Qbab's rights under the Agreement.

6.2 The Vendor warrants to Qbab that the use of the Vendor’s name, logo and contact details and the Vendor Information by Qbab in accordance with the Agreement will not:

  1. breach the provisions of any law, statute or regulation;

  2. infringe the Intellectual Property Rights or other legal rights of any person; or

  3. give rise to any cause of action against Qbab.

 

7. Support & Availability

7.1 The Vendor may contact Qbab for support in relation to the Vendor App or the Services (including help with updating or making other changes to the Vendor Listing, or with managing their employees’ and other personnel’s Vendor App access and use rights) by emailing support@qbab.app Qbab will use all commercially reasonable endeavours to respond to requests for support within two (2) Business Days.

7.2 Qbab shall use all commercially reasonable endeavours to ensure that the Vendor App and the Services are available all the time, but the Vendor acknowledges and agrees that the Vendor App or the Services may from time to time not be available or may not be fully functional for a number of reasons, including:

and that Qbab shall not have any liability to the Vendor or any third party as a result of such non-availability or period of limited functionality.

  1. scheduled or emergency maintenance carried out by Qbab; or

  2. non-availability of the internet or mobile networks; or

  3. a failure of the computer systems of Qbab or its service providers; or

  4. any act or omission of the Vendor which prevents or delays the availability of the Services; or

  5. a Force Majeure event,

 

8. Intellectual Property Rights

8.1 Nothing in the Agreement shall operate to assign or otherwise transfer any Intellectual Property Rights from Qbab to the Vendor.
8.2 All Intellectual Property Rights in all materials created by Qbab, solely or jointly with any person, in the course of making the Vendor App or Services available to the Vendor (“Work”) shall vest or remain vested in Qbab.
8.3 At Qbab’s request and expense the Vendor will perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution or delivery of) all further documents which Qbab reasonably considers necessary to vest ownership of the Work in Qbab or otherwise to give effect to this clause 8.

 

9. Fees & Charges

9.1 Qbab provides the Directory Services free of charge.

9.2 For the Ordering Services, the Vendor agrees:

9.3 The Order Processing Fee is exclusive of VAT or any other applicable sales tax, which will be added, as may be appropriate, to the Order Processing Fee and payable by the Vendor to Qbab.

Example: If the value of an order processed via the Vendor App is £20 (including VAT) then:

9.4 If the Vendor has set up a Stripe Express account during their Vendor Account application but then fails to arrange for their Vendor Account to be connected to a Stripe Standard account within six (6) months of the creation of the Vendor Account, Qbab may at its discretion and with immediate effect:

9.5 Qbab may increase the Order Processing Fee by giving to the Vendor at least thirty (30) days' prior written notice.

9.6 If the Vendor does not pay the Order Processing Fee or any amount properly due to Qbab under the Agreement, Qbab may, without prejudice to its other rights (whether under the Agreement or otherwise) suspend or terminate the Vendor’s Vendor Account with immediate effect.

    1. subject to clause 9.4, to pay Qbab a fee in respect of each order processed via the Vendor App equal to 2% of the total value of the Customer’s order (including VAT if applicable) (the “Order Processing Fee”); and

    2. that the Order Processing Fee shall be automatically deducted from the Customer’s payment and remitted to Qbab.

    1. the Order Processing Fee is (2% of £20) + VAT @ 20% = £0.48 and

    2. Stripe's charge is (currently) 1.4% + 20p = £0.48

    3. so the net amount paid to the Vendor is (£20 - £0.48 - £0.48) = £19.04

    1. increase the percentage used to calculate the Order Processing Fee from 2% to 2.5%; or

    2. suspend or terminate the Vendor Account.

 

10. Warranties

10.1 Each party warrants to the other party that:

10.2 Qbab warrants to the Vendor that it shall provide the Services with a reasonable degree of care, skill and diligence.

10.3 If Qbab reasonably determines, or any third party alleges, that the use of the Vendor App or the Services by the Vendor in accordance with the Agreement infringes any person's Intellectual Property Rights, Qbab may:

10.4 All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in the Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.

    1. it has the legal right and authority to enter into the Agreement and to perform its obligations under the Agreement; and

    2. it will comply with all applicable legal and regulatory requirements applying to the exercise of its rights and the fulfilment of its obligations under the Agreement.

    1. modify the Vendor App or the Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or

    2. procure for the Vendor the right to use the Vendor App or the Services in accordance with the Agreement; or

    3. if neither of the options set out in (a) or (b) are commercially or technically practicable, terminate the Agreement with immediate effect.

 

11. Limitations & Exclusions of Liability

11.1 Nothing in the Agreement will limit or exclude:

11.2 The limitations and exclusions of liability set out in this clause 11 and elsewhere in the Agreement:

11.3 Qbab shall not be liable to the Vendor in respect of:

whether or not such losses or loss would also fall within clause 11.4.

11.4 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.

11.5 Subject to clauses 11.1 to 11.4, the liability of each party to the other party under the Agreement in respect of any event or series of related events shall not exceed the higher of (i) the aggregate of all Order Processing Fees paid by the Vendor to Qbab under the Agreement in the 12-month period preceding the commencement of the event or series of events or (ii) £50,000.

    1. any liability for fraud or fraudulent misrepresentation; or

    2. any liability in any way that is not permitted under applicable law; or

    3. the Vendor’s liability under the indemnity set out in clause 5.2.

    1. are subject to clause 11.1; and

    2. govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in the Agreement.

    1. any losses arising out of a Force Majeure event; or

    2. any loss of profits or anticipated savings; or

    3. any loss of revenue or income; or

    4. any loss of use or production; or

    5. any loss of business, contracts or opportunities; or

    6. any loss or corruption of any data, database or software,

 

12. Termination

12.1 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits any material breach of the Agreement which, in the case of a breach which is remediable, is not remedied within seven (7) days of the date on which the other party is given written notice requiring the breach to be remedied.

 

13. Notices

13.1 Any notice or consent from one party to the other party under the Agreement must be given:

    1. in the case of Qbab, by text message to the mobile phone number used by the Vendor to create the Vendor Account; or

    2. in the case of the Vendor, by email to support@qbab.app.

 

14. Assignment & Subcontracting

14.1 The Vendor must not assign, transfer, subcontract or otherwise deal with their contractual rights and/or obligations under the Agreement without the prior written consent of Qbab.
14.2 Qbab may assign, transfer, subcontract or otherwise deal with its contractual rights and/or obligations under the Agreement without the prior written consent of the Vendor.

 

15. No Waivers

15.1 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach.
15.2 No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of the Agreement.

 

16. Severability

16.1 If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
16.2 If any unlawful and/or unenforceable provision of the Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

 

17. Third Party Rights

17.1 The Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.

 

18. Entire Agreement

18.1 The Agreement shall constitute the entire agreement between the parties in relation to its subject matter, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
18.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
18.3 The provisions of this clause 18 are subject to clause 11.1.

 

19. Amendments to these Terms & Conditions

19.1 Qbab may from time to time amend these Terms and Conditions, whether to comply with changes in law, to make changes to the Vendor App and/or the Qbab Services, or otherwise, by giving written notice to the Vendor. The Vendor agrees that its continued use of the Vendor App and the Services shall constitute their unconditional agreement to such amendment. If the Vendor does not agree to the amendment, the Vendor may terminate the Agreement with immediate effect.

 

20. Law & Jurisdiction

20.1 The Agreement and all disputes or claims arising out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
20.2 Any disputes relating to the Agreement or its subject matter or formation (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the courts of England.