Operator Terms - TiPJAR

Operator Terms and conditions

  1. Meanings

    1. In this Agreement, the following words are defined:
    Agreement this operator agreement, which consists of the Order Form in Part A and these terms and conditions in Part B, including any schedules attached hereto;
    Confidential Information all confidential information (however recorded or preserved) disclosed by either party to the other party concerning the disclosing party's (a) business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities; (b) operations, processes, product information, know-how, designs, trade secrets or software; and (c) any information developed under this Agreement, and the contents of this Agreement;
    Deliverables all documents, items, plans, products, goods and materials supplied by TiPJAR, including any software, methodologies, ideas, designs, computer programs, data, and reports, in whatever form, which are developed, created, written, prepared, devised or discovered by or on behalf of TiPJAR in relation to the Services;
    Equipment any equipment, software, systems, tools, cabling, items, materials or facilities provided by or on behalf of TiPJAR to the Operator, as may be specified in Part A (Order Form);
    Intellectual Property Rights any invention, patent, utility model right, copyright and related right, registered design, unregistered design right, trade mark, trade name, internet domain name, design right, design, service mark, database rights, topography rights, rights in get-up, rights in goodwill or to sue for passing off and any other rights of a similar nature or other industrial or intellectual property rights owned or used by TiPJAR in any part of the world whether or not any of the same is registered (or capable of registration), including applications and the right to apply for and be granted, extensions or renewals of, and rights to claim priority from, such rights and all equivalent or similar rights or protections which subsist now or will subsist in the future;
    Team a team of two or more Operator employees who have each voluntarily chosen to join a Team Sharing Scheme;
    Team Sharing Scheme an optional functionality on the TiPJAR platform which allows users to split Tips with [their co-workers][other workers];
    Team TiPJAR a Team TiPJAR provides a QR code and link to Operator employees allowing them to share Tips with other members of their Team;
    Tips an uncalled for and spontaneous payment offered by a customer to an Operator employee via the TiPJAR platform, with the intention of this money being provided directly to the employee (or the relevant Team);
    Working Day any day other than a Saturday, Sunday or public holiday in England and Wales.
    1. Any capitalised terms or expressions used in these terms and conditions which are not expressly defined in 1(a) above shall have the meaning as set out in Part A (Order Form).
    2. If there is any conflict or inconsistency between the provisions of this Part B (Terms and Conditions) and the provisions of Part A (Order Form), the provisions of this Part B (Terms and Conditions) shall take precedence.
    3. In this Agreement, unless the context requires a different interpretation:
      1. the singular includes the plural and vice-versa;
      2. references to sub-clauses, clauses, schedules or appendices are to sub-clauses, clauses, schedules or appendices of this Agreement;
      3. a reference to a person includes firms, companies, government entities, trusts and partnerships;
      4. "including" is understood to mean "including without limitation";
      5. reference to any statutory provision includes any modification or amendment of it;
      6. the headings and sub-headings do not form part of this Agreement; and
      7. "writing" or "written" will include e-mail unless otherwise stated.
  2. Duration
    1. This Agreement shall be deemed to have come into force on the Commencement Date and (subject to the provisions for earlier termination in this Agreement) shall continue for the Initial Term. Subject to earlier termination of this Agreement, this Agreement shall then continue indefinitely until terminated in accordance with clause 14.
  3. Provision of Services
  4. During the Term, TiPJAR shall provide the Services to the Operator on the terms set out in this Agreement.
  5. TiPJAR shall perform the Services with reasonable care and skill, and in accordance with:
    1. good industry practice; and
    2. all applicable laws and regulations, including those related to (i) anti-bribery and corruption, and (ii) data protection.
  6. Operator's Obligations
    1. The Operator agrees to:
      1. co-operate and act in good faith with TiPJAR in all matters relating to the Services;
      2. provide, in a timely manner, all information and data as TiPJAR may reasonably require (including information on shift hours worked by Operator employees in a Team to allow TiPJAR to confirm which members of the Team were working at the time Tips are collected into a Team TiPJAR) and shall ensure that all information and data it gives to TiPJAR is accurate in all material respects;
      3. btain and maintain all necessary third party licences and consents and comply with all relevant legislation in relation to the Services;
      4. meet the Operator Requirements (if any) and use the TiPJAR platform and Services in accordance with TiPJAR's instructions;
      5. allow all employees working at the Approved Sites to collect Tips using the TiPJAR platform; and
      6. actively promote the TiPJAR platform to employees as a means of collecting Tips at the Approved Sites.
    2. The Operator acknowledges that TiPJAR will agree separate contracts with Operator employees who choose to use TiPJAR and, where they do, that they appoint TiPJAR to act as their non-exclusive commercial agent for the collection of Tips from customers.
    3. The Operator agrees that it shall not exercise any influence, nor will it have any control, over the distribution of Tips collected by Operator employees into a Team TiPJAR.
    4. The Operator acknowledges that using TiPJAR must remain optional for all employees. Whilst the Operator shall promote TiPJAR as an optional method for employees to collect Tips at Approved Sites, the Operator shall not force employees to use TiPJAR to collect tips (or otherwise make this a condition of their employment and/or engagement).
    5. The Operator warrants and agrees that:
      1. it shall comply with all applicable laws;
      2. its entry into and performance under the terms of this Agreement will not infringe the right (including intellectual property rights) of any third party or cause it or TiPJAR to be in breach of any obligations to a third party; and
      3. it has obtained all necessary permits, authorisations, licences and consents required to perform its duties and obligations under this Agreement.
  7. Charges and Payment
    1. In consideration of the provision of the Services by TiPJAR, the Operator shall pay the Charges to TiPJAR.
    2. All Charges quoted to the Operator are exclusive of any applicable VAT, which TiPJAR shall add to its invoices at the appropriate rate.
    3. In addition to the Charges, the Operator agrees to reimburse TiPJAR at cost for all reasonable expenses incurred in providing the Services (such as additional printing and/or design costs).
    4. When an agreed instalment is due, TiPJAR shall invoice the Operator for the Charges that are then payable, together with the costs of any Equipment, materials and/or expenses which have not been expressly included in the fixed price and any applicable VAT.
    5. The Operator shall pay each invoice submitted to it by TiPJAR, in full and in cleared funds, within 30 days of the date of the invoice to a bank account nominated in writing by TiPJAR (the " Due Date").
    6. Without prejudice to any other right or remedy that it may have, if the Operator fails to pay TiPJAR on the Due Date:
      1. the Operator shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate at the relevant time. Such interest will accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. TiPJAR may choose to charge statutory interest due. The Operator shall pay the interest together with the overdue amount; and
      2. TiPJAR may suspend all Services until payment has been made in full.
    7. On termination of this Agreement, all sums payable to TiPJAR shall become due immediately (notwithstanding any other provision of this Agreement).
    8. The Operator shall pay all amounts due under this Agreement in full without any deduction or withholding except as required by law and neither party shall be entitled to assert any credit, set-off or counterclaim against the other in order to justify withholding payment of any amount due, in whole or in part.
  8. Indemnity
    1. TiPJAR shall indemnify the Operator against any claim by any other person that the provision of the Services to the Operator in accordance with this Agreement infringes any Intellectual Property Rights of that other person.
    2. The Operator shall indemnify TiPJAR and TiPJAR users from any and all claims made for any losses incurred resulting from the misuse of the TiPJAR system by the Operator.
    3. Where one party (" Indemnifying Party") agrees to indemnify and keep the other party (" Indemnified Party") indemnified under this Agreement the Indemnified Party shall comply with the following process in respect of any claim under the indemnity:
      1. the Indemnified Party must promptly notify the Indemnifying Party in writing of such claim;
      2. the Indemnified Party must not make any admission of liability, settlement or compromise without the prior written consent of the Indemnifying Party;
      3. the Indemnified Party must give the Indemnifying Party express authority to conduct all negotiations and litigation and to defend and/or settle all litigation arising from such claim, provided that the Indemnifying Party regularly consults the Indemnified Party on the conduct and defence of the claim;
      4. the Indemnified Party must provide the Indemnifying Party with all available information and assistance in relation to such claim as the Indemnifying Party may reasonably require at the Indemnifying Party's cost and expense;
      5. if within ninety (90) days after the Indemnifying Party's receipt of notice of any such claim, the Indemnifying Party fails to take action to defend or settle such claim, the Indemnified Party may at the Indemnifying Party's expense undertake the defence, compromise or settlement of the claim as it sees fit; and
      6. the Indemnified Party must use reasonable endeavours to mitigate its loss.
  9. Liability and Insurance
    1. If TiPJAR's performance of its obligations under this Agreement is prevented or delayed by any act or omission of the Operator, its agents, sub-contractors, consultants or employees, TiPJAR shall not be liable for any costs, charges or losses sustained or incurred by the Operator that arise directly or indirectly from such prevention or delay.
    2. Nothing in this Agreement limits or excludes either party's liability for:
      1. death or personal injury caused by its negligence;
      2. fraud or fraudulent misrepresentation; or
      3. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); or
      4. any other liability which cannot be limited or excluded by applicable law.
    3. Neither party shall have any liability to the other party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with this Agreement for:
      1. loss of profits;
      2. loss of sales or business;
      3. loss of agreements or contracts;
      4. loss of anticipated savings;
      5. loss of or damage to goodwill;
      6. loss of use or corruption of software, data or information; or
      7. any indirect or consequential loss.
    4. The terms implied by sections 3 to 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from this Agreement.
    5. During the Term, TiPJAR and the Operator shall each maintain in force with a reputable insurance company, insurance sufficient to cover risks for which they may respectively be responsible, including for their respective sub-contractors, agents and employees, in connection with the Services and shall, on either parties' request, produce both the insurance certificate giving details of cover and the receipt for the current year's premium.
    6. Subject to clauses 7(b), the total aggregate liability of TiPJAR to the Operator under or in connection with this Agreement shall not exceed £50,000.
  10. Confidentiality
    1. Each party will only use Confidential Information to perform its obligations under the Agreement and will not cause or allow the information to be disclosed except:
      1. where required by law, court order or any governmental or regulatory body;
      2. to any of its employees, officers, sub-contractors, representatives or advisers who need to know the information in order to discharge its obligations under the Agreement and agree only to use the information for that purpose and not to cause or allow disclosure of that information;
      3. where the information has become generally available to the public (other than as a result of disclosure in breach of the Agreement by the party or any of its employees, officers, sub-contractors, representatives or advisers);
      4. where the information was available or known to it on a non-confidential basis before being disclosed under the Agreement; or
      5. where the information was developed by or for it independently of the Agreement and is received by persons who are not the disclosing party.
  11. Intellectual Property
    1. Subject to the clause below, TiPJAR reserves and owns all Intellectual Property Rights which may subsist or arise in the Deliverables, or in connection with, the provision of the Services or the TiPJAR platform. TiPJAR reserves the right to take such action as may be appropriate to restrain or prevent the infringement of such Intellectual Property Rights.
    2. TiPJAR licenses all such rights to the Operator on a non-exclusive, non-sublicensable, non-assignable basis to such extent as is necessary to enable the Operator to make reasonable use of the Deliverables and the Services in accordance with this Agreement.
    3. If this Agreement is terminated, this licence will automatically terminate.
    4. All goodwill arising or created as a result of use of TiPJAR will accrue solely to the benefit of TiPJAR.
  12. Data Protection
    1. Each party shall comply with its obligations and may exercise its respective rights and remedies under Schedule 1 (Data Protection Addendum). In the event of any conflict between the provisions of Schedule 1 and any other provision of the Agreement, Schedule 1 shall prevail.
  13. Anti-Bribery
    1. TiPJAR shall:
      1. comply with all applicable laws, regulations, statutes, and codes relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 ( Bribery Laws );
      2. not commit an offence under sections 1, 2 or 6 of the Bribery Act 2010;
      3. comply with any relevant industry code related to Anti-Bribery ( Bribery Policies );
      4. have, maintain, and enforce throughout the term of this Agreement its own policies and procedures, to ensure compliance with the Bribery Laws and the Bribery Policies; and
      5. promptly report to the Operator any request or demand for any undue financial or other advantage of any kind received by TiPJAR in connection with the performance of this Agreement.
  14. Pandemic Protection
    1. If the Operator is subject to a government ordered closure due to a pandemic during the term of this agreement:
      1. TiPJAR will waive all charges due for the period of the closure; and
      2. The term of this agreement will extend by the same duration as the period of closure.
  15. Circumstances beyond the control of either party
    1. Neither party shall be liable for any failure or delay in performing their obligations where such failure or delay results from any cause that is beyond the reasonable control of that party.
    2. Such causes include, but are not limited to: power failure, Internet Service Provider failure, acts of God, epidemic, pandemic, civil unrest, fire, flood, droughts, storms, earthquakes, collapse of buildings, explosion or accident, acts of terrorism, acts of war, governmental action, any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition, or any other event that is beyond the control of the party in question.
    3. The party affected by a circumstance beyond its control shall use its reasonable endeavours to mitigate the effect of the force majeure upon the performance of its obligations.
    4. The corresponding obligations of the other party will be suspended to the same extent as those of the party affected by a force majeure event.
    5. If the delay continues for a period of 90 days of more, either party may terminate or cancel the Services to be carried out under this Agreement.
  16. Termination
    1. Either party may terminate this Agreement by giving the other party 90 days' prior written notice, such notice not to expire prior to the Initial Term.
    2. Should the Operator serve notice, the Operator acknowledges that TiPJAR shall inform its users that the Operator has served notice and specify the period of notice that has been served.
    3. A party may terminate the Agreement immediately by giving written notice to the other party if that other party:
    4. does not pay any sum due to it under the Agreement within 30 days of the due date for payment;
    5. commits a material breach of the Agreement which, if capable of remedy, it fails to remedy within 30 days after being given written notice specifying full particulars of the breach and requiring it to be remedied;
    6. persistently breaches any term of the Agreement;
    7. is dissolved, ceases to conduct substantially all of its business or becomes unable to pay its debts as they fall due;
    8. is a company over any of whose assets or property a receiver is appointed;
    9. makes any voluntary arrangement with its creditors or (if a company) becomes subject to an administration order (within the meaning of the Insolvency Act 1986);
    10. (if an individual or firm) has a bankruptcy order made against it or (if a company) goes into liquidation;
    11. undergoes a change of control (within the meaning of section 1124 of the Corporation Tax Act 2010); or
    12. (if an individual) dies or as a result of illness or incapacity becomes incapable of managing his or her own affairs.
  17. Consequences of Termination
    1. On termination or expiry of this Agreement:
      1. the Operator shall immediately pay to TiPJAR all of TiPJAR's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, TiPJAR may submit an invoice, which shall be payable immediately on receipt;
      2. the Operator shall, within a reasonable time, return all of TiPJAR's Equipment and any relevant Deliverables remaining the property of TiPJAR. Until they have been returned or repossessed, the Operator shall be solely responsible for their safe keeping.
      3. TiPJAR shall continue to honour its obligation to pass any Tips and Gratuities collected by users to them.
    2. Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
    3. Other than as set out in the Agreement, neither party shall have any further obligation to the other under the Agreement after its termination.
  18. General
    1. This Agreement contains the whole agreement between the parties relating to its subject matter and supersedes all prior discussions, arrangements or agreements that might have taken place in relation to the Agreement. Nothing in this clause limits or excludes any liability for fraud or fraudulent misrepresentation.
    2. No party may assign to any third party the benefit and/or burden of the Agreement without the prior written consent (not to be unreasonably withheld) of the other party.
    3. No variation of the Agreement will be valid or binding unless it is recorded in writing and signed by or on behalf of both parties.
    4. The Contracts (Rights of Third Parties) Act 1999 does not apply to the Agreement and no third party has any right to enforce or rely on any provision of the Agreement.
    5. Unless otherwise agreed, no delay, act or omission by a party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
    6. A provision which by its intent or terms is meant to survive the termination of the Agreement will do so.
    7. If any court or competent authority finds that any provision (or part) of the Agreement is invalid, illegal or unenforceable, that provision or part-provision will, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Agreement will not be affected.
    8. Unless specifically provided by the parties, nothing in the Agreement will establish any employment relationship, partnership or joint venture between the parties, or mean that one party becomes the agent of the other party, nor does the Agreement authorise any party to enter into any commitments for or on behalf of the other party.
    9. Any notice (other than in legal proceedings) to be delivered under the Agreement must be in writing and delivered by pre-paid first class post to or left by hand delivery at the other party's registered address or place of business, or sent by email to the other party's main business email address as notified to the sending party. Notices:
      1. sent by post will be deemed to have been received, where posted from and to addresses in the United Kingdom, on the second Working Day and, where posted from or to addresses outside the United Kingdom, on the tenth Working Day following the date of posting;
      2. delivered by hand will be deemed to have been received at the time the notice is left at the proper address; and
      3. sent by email will be deemed to have been received on the next Working Day after sending.
  19. Governing law and jurisdiction
    1. This Agreement shall be governed by and interpreted according to the law of England and Wales and all disputes arising under the Agreement (including non-contractual disputes or claims) shall be subject to the exclusive jurisdiction of the English courts.

SCHEDULE 1: DATA PROTECTION ADDENDUM

  1. Definitions and Interpretation
    1. Unless otherwise defined in this Schedule 1 (this " DPA"), terms used in this DPA shall have the meaning given to those terms in the Agreement. The following words shall have the following meanings when used in this DPA:
      1. " Data Protection Impact Assessment" means an assessment of the impact of the envisaged Processing operations on the protection of Personal Data, as required by Article 35 of the GDPR;
      2. " Data Protection Legislation" means all data protection and privacy legislation, regulations, and other rules having equivalent force (as amended, consolidated or re-enacted from time to time) which relates to the Processing, privacy and use of Personal Data under the Agreement, including: (a) the GDPR and/or any corresponding or equivalent national laws or regulations (including the Data Protection Act 2018 in the United Kingdom and any legislation relating to the Processing of Personal Data effective in the United Kingdom that is intended to replicate or maintain some or all of the provisions, rights and obligations set out in the GDPR in circumstances where the GDPR is no longer applicable in the United Kingdom because the United Kingdom is no longer a member of the European Union; (b) the Privacy and Electronic Communications Regulations 2003, SI 2003/2426, and EC Directive 2002/58/EC; (c) any judicial or administrative interpretation of any of the above; and (d) any approved guidance and codes of practice issued by the relevant Supervisory Authority;
      3. " Data Subject Request" means a request or complaint from (or on behalf of) a Data Subject exercising their rights under the Data Protection Legislation;
      4. " Data Transfer" means transferring TiPJAR Data to, and/or enabling TiPJAR Data to be accessed from and/or Processing TiPJAR Data within, a jurisdiction or territory that is a Restricted Country;
      5. " GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016;
      6. " Information Security Questionnaire Responses" has the meaning given to it in clause 4.1(c);
      7. " International Transfer Requirements" means the requirements of Chapter V of the GDPR (Transfers of personal data to third countries or international organizations) and/or analogous provisions of the Data Protection Act 2018 (as applicable);
      8. " Operator Data" means Personal Data directly provided to TiPJAR by or on behalf of Operator in connection with the Services (excluding any TiPJAR Data or any Personal Data that TiPJAR independently acquires from the relevant Data Subjects in connection with the Services) in respect of which TiPJAR becomes a controller;
      9. " Personal Data Breach Particulars" means the information that must be included in a Personal Data Breach notification, as set out in Article 33(3) of the GDPR;
      10. " Shared Data" means TiPJAR Data and/or Operator Data (as applicable); and
      11. " Security Requirements" means the requirements regarding the security of the Personal Data, as set out in the Data Protection Legislation (including, in particular, the measures set out in Article 32(1) of the GDPR (taking due account of the matters described in Article 32(2) of the GDPR)) as applicable; and
      12. " TiPJAR Data" means the Personal Data provided by or on behalf of TiPJAR to the Operator, or otherwise obtained or generated by the Operator, exclusively in connection with the Operator's receipt of the Services.
    2. In this DPA references in this clause to " Controller", " Data Subject", " Personal Data", " Personal Data Breach", " Process", " Processing", and " Supervisory Authority" shall have the same meaning as defined in GDPR.
    3. In this DPA references to a paragraph is a reference to a paragraph of this DPA.
  2. Relationship of the parties
    1. In relation to all Shared Data, the parties acknowledge and agree that each party shall be considered an independent Controller of such Shared Data.
    2. Each party shall, at its own expense (unless otherwise stated) comply with its obligations applicable to it under this DPA and the Data Protection Legislation. Neither party shall do, nor omit to do, any act or thing that puts the other party in breach of Data Protection Legislation.
  3. Mutual obligations
    1. Without prejudice to the generality of paragraph 2. b), each party shall, in respect of its Processing of Shared Data (at its own expense unless otherwise stated):
      1. only Process the Shared Data that it has received from the other party for the purposes of providing the Services or receiving the benefit of the Services (as applicable) and not for any other purpose;
      2. ensure it is lawfully entitled to share (including obtaining all necessary consents and permissions) the Shared Data with the other party and that it has provided Data Subjects with a privacy notice that complies with the transparency requirements set out in the Data Protection Legislation;
    2. where relevant, assist the other party in obtaining from the relevant Data Subjects any necessary consents that the other party reasonably requires to enable it to Process the Shared Data;
    3. promptly provide such necessary and reasonable assistance and co-operation to the other party, and to any Supervisory Authority, in connection with the other party's compliance with its obligations under the Data Protection Legislation including:
      1. any investigations, audits or enquiries made by a Supervisory Authority in relation to the Processing of the Shared Data;
      2. a Data Subject Request or third party request relating to Shared Data; and
      3. carrying out any Data Protection Impact Assessment relating to Shared Data;
    4. Process the Shared Data in a manner that ensures appropriate security of the data in accordance with the security requirements set out in the Data Protection Legislation (including Article 32 of the GDPR); and
    5. without undue delay (and in any event within forty-eight (48) hours), notify the other party and provide such co-operation, assistance and information as the other party may reasonably require if:
      1. it receives any complaint, notice or communication which relates directly or indirectly to theProcessing of the Shared Data or to either party's compliance with Data Protection Legislation (" Complaint"); or
      2. it becomes aware of any Personal Data Breach relating to Shared Data.
    6. in the event of a Complaint or Personal Data Breach concerning Shared Data that it has received from the other party:
      1. not make any public announcements relating to the Complaint or Personal Data Breach that may adversely affect the other party;
      2. take such corrective action as may be reasonably requested by the other party, including providing notice to Data Subjects whose Personal Data may have been affected by such Personal Data Breach;
      3. co-operate with the other party in relation to any Personal Data Breach notification to a Supervisory Authority, including providing Personal Data Breach Particulars, and take all such steps as may be required by a Supervisory Authority; and
      4. promptly provide such assistance and additional information to the other party to enable it to assess whether it has any obligations to communicate the Personal Data Breach to affected Data Subjects; and
    7. if a law enforcement body, court, regulator, or Supervisory Authority requires it to disclose Shared Data that it has received from the other party, first inform the other party of the legal or regulatory requirement and give the other party an opportunity to object or challenge the requirement, unless the law prohibits such notice.