AFRO TAKEAWAY LIMITED Online Marketing Agreement


PARTIES:

(1) AFRO TAKEAWAY LIMITED, a company incorporated in England and Wales (the

“Provider”); and

(2) The Merchant


BACKGROUND:

Afro takeaway is the UK’s only takeaway website dedicated to African & Afro Caribbean

food. Our aim is to become the central hub where all types of African & Caribbean food

lovers can find their favourite dishes on line. We love African and Caribbean food and so

do the customers on our website, so as a restaurant/vendor we connect you to people

who already love your food and are waiting to find you.

Afro takeaway Limited has expertise in the provision of web marketing services, and the

Customer has appointed the Provider to provide web marketing services on the terms of

this Agreement.

AGREEMENT:

1. Definitions and interpretation

1.1 In this Agreement:

“Affiliate” means a company, firm or individual that Controls, is Controlled by, or

is under common Control with the relevant company, firm or individual;

“Agreement” means this agreement (including the Schedule) and any

amendments to it from time to time;

“Business Day” means any week day, other than a bank or public holiday in

[England];

“Business Hours” means between [09:00] and [17:30] on a Business Day;

“Charges” means the amounts payable by the Customer to the Provider under or

in relation to this Agreement (including expenses), calculated in accordance with

Clause [7];

“Confidential Information” means the Provider Confidential Information and

the Customer Confidential Information;


“Control” means the legal power to control (directly or indirectly) the

management of an entity (and “Controlled” will be construed accordingly);

“Customer Confidential Information” means:

(a) any information disclosed (whether disclosed in writing, orally or

otherwise) by the Customer to the Provider that at the time of disclosure:

(i) is marked as “confidential”, or (ii) should have been reasonably

understood by the Provider to be confidential; and

(b) [specify other confidential information here];

“Effective Date” means the date of execution of this Agreement; 1

“Force Majeure Event” means an event, or a series of related events, that is

outside the reasonable control of the party affected (including [failures of or

problems with the internet or a part of the internet, hacker attacks, denial of

service attacks, virus or other malicious software attacks or infections, power

failures, industrial disputes affecting any third party, changes to the law,

disasters, explosions, fires, floods, riots, terrorist attacks and wars]);

“Intellectual Property Rights” means all intellectual property rights wherever

in the world, whether registered or unregistered, including any application or

right of application for such rights (and the “intellectual property rights” referred

to above include copyright and related rights, moral rights, database rights,

confidential information, trade secrets, know-how, business names, trade names,

trade marks, service marks, passing off rights, unfair competition rights, patents,

petty patents, utility models, semi-conductor topography rights and rights in

designs);

[“Minimum Term” means the period [of 1 Year starting on the Effective Date];] 2

“Personal Data” has the meaning given to it in the Data Protection Act 1998;

“Provider Confidential Information” means:

(a) any information disclosed (whether disclosed in writing, orally or

otherwise) by the Provider to the Customer that at the time of disclosure:

(i) is marked as “confidential”, or (ii) should have been reasonably

understood by the Customer to be confidential; and

(b) [specify other confidential information here];

“Schedule” means the schedule attached to this Agreement;

“Services” means marketing services relating to the Website, as detailed in

Clause [3];

“Term” means the term of this Agreement;

“Website” means the websites and/or web services specified in the Schedule, to

be marketed by the Provider under this Agreement; and

“Year” means a period of 365 days (or 366 days if there is a 29 February during

the relevant period) starting on [the Effective Date] or on any anniversary of [the

Effective Date].

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

reference to:

(a) that statute or statutory provision as modified, consolidated and/or re-

enacted from time to time; and

(b) any subordinate legislation made under that statute or statutory provision.

1.3 The Clause headings do not affect the interpretation of this Agreement.

1.4 The ejusdem generis rule is not intended to be used in the interpretation of this

Agreement. 3

2. Term

This Agreement will come into force on the Effective Date and will continue in

force [indefinitely, unless and until terminated in accordance with Clause [13] /

until [date], upon which it will terminate automatically, unless terminated earlier

in accordance with Clause [13]].

3. Services

3.1 Afro takeaway will promote and advertise on their website the Customer's

business or Restaurant during the Term; include the provision of some or all of

the following Services:

(a) Provide the clients various Customers the online platform to search for a

local restaurant, view the menu, select dishes and place an order online,

making it easy and convenient to order famous Afro dishes. We also create

opportunities for small businesses to have a voice in the market

(b) paid and unpaid submission of the Customers Restaurant/business on

various social media platforms.

(c) the creation and publication of material and applications relating to the

Website on other websites;

(d) provide the general public the platform to search, locate and find the

Customers business/ restaurant;

(e) Swiftly take online orders from the general public on behalf of the

Customer and remit the orders to the customers restaurant ;

(f) the arrangement of internet advertising including pay-per-click

advertising, pay-per-view advertising, banner advertising, and other forms

of paid internet advertising;

(g) the implementation, management and operation of affiliate marketing

programmes;

4. Customer responsibilities

4.1 The Customer will provide to the Provider:

(a) the ability to access their business for effective marketing;

(b) assistance in determining appropriate keywords and keyword phrases

which should be targeted using the Services;

(c) direct access to analytical data concerning the Website, such as data

concerning referral sources, visitor activity, Website usage, conversion

rates, and similar data; and

[(d) all other co-operation, information and documentation reasonably required

by the Provider for the provision of the Services.]


[4.2 The Customer will be responsible for procuring any third party co-operation

reasonably required for the provision of the Services.]

[

5. Legality

5.1 The Customer must not use the Website:

(a) to host, store, send, relay or process any material; or

(b) for any purpose,

which is unlawful, illegal, fraudulent, or which breaches any applicable laws,

regulations or legally binding codes, or infringes any third party rights, or may

give rise to any form of legal action against the Provider or the Customer or any

third party.

[5.2 The Customer warrants that any marketing list (including any email marketing

list) provided by or on behalf of the Customer to the Provider in connection with

the Agreement will have been collected and collated in accordance with all

applicable laws and regulations, and that the use of any such list by the Provider

for the purposes of the Services [and in accordance with the instructions of the

Customer]:

(a) will not breach any applicable laws (including the Data Protection Act 1998

and the Privacy and Electronic Communications (EC Directive) Regulations

2003);

(b) will not infringe any person's legal rights; and

(c) will not give rise to any cause of action in any jurisdiction, whether against

the Provider, the Customer, or any other person.]


5.3 Where the Provider reasonably suspects that there has been a breach of the

provisions of this Clause [5], the Provider may suspend any or all of the Services

and/or the Customer’s access to any or all Services while it investigates the

matter.

5.4 Any breach by the Customer of this Clause [5] will be deemed to be a material

breach of this Agreement.


5.5 The Customer hereby indemnifies and undertakes to keep indemnified the

Provider against any and all liabilities, damages, losses, expenses and costs

(including legal expenses and amounts paid in settlement of any claim or legal

action) arising, directly or indirectly, out of any breach [or alleged breach] by the

Customer of this Clause [5].

6. Intellectual Property Rights

6.1 The Customer grants to the Provider a non-exclusive licence to use the Website

to the extent required for the Provider to perform its obligations and exercise its

rights under the Agreement.

6.2 All Intellectual Property Rights in any works arising in connection with the

performance of the Services by the Provider will be the property of the Provider.

Where the Provider modifies the Website in the process of providing the Services,

the Provider hereby grants to the Customer a non-exclusive royalty-free licence

to use such modifications in connection with the Website.

7. Charges and payment

7.1 The Customer will pay to the Provider a fixed 10% Commission on each order

emanating from their website in respect of the Services.


7.3 The Provider will issue invoices to the Customer in respect of their commission for

the Services [monthly in arrears on the [1 st ] day of each calendar month during

the Term / from time to time in arrears during the Term].

7.4 The Customer will pay the Commission to the Provider within [30] days of the

date of [issue/receipt] of an invoice issued in accordance with Clause [7.3].

7.5 All Commission stated in or in relation to the Agreement are stated inclusive of

VAT, unless the context requires otherwise.

7.6 In the customer accepts cash on delivery, commission must be paid by [PayPal,

debit or credit card, direct debit, bank transfer or by cheque (using such payment

details as are notified by the Provider to the Customer from time to time)].

7.7 If the Customer does not pay any amount properly due to the Provider under or

in connection with this Agreement, the Provider may:

(a) charge the Customer interest on the overdue amount at the rate of 5%

per year above the base rate of their bankers from time to time (which

interest will accrue daily and be compounded quarterly); or

(b) claim interest and statutory compensation from the Customer pursuant to

the Late Payment of Commercial Debts (Interest) Act 1998.


7.8 The Provider will:

(a) ensure that the personnel providing the Services complete records of their

time spent providing those Services;

(b) collect and collate evidence of all expenses;

(c) retain such records and evidence during the Term and for a period of [12

months] following the end of the Term; and


(d) supply such records and evidence to the Customer within [10] Business

Days following receipt of a written request to do so.]


[7.9 [Subject to Clause [7.10],] the Provider may vary [any element of the

Commission] by giving to the Customer not less than [30 days'] written notice of

the variation [expiring at any time after the end of the Minimum Term].]

[7.10 Variations under Clause [7.9] must not result in a percentage increase in any

element of the Commission during the period between the Effective Date and the

date of the notice of variation exceeding the percentage increase, during the

same period, in the Retail Prices Index (all items) published by the UK Office of

National Statistics.]

8. Warranties

8.1 The Customer warrants to the Provider that it has the legal right and authority to

enter into and perform its obligations under this Agreement.

8.2 The Provider warrants to the Customer:

(a) that it has the legal right and authority to enter into and perform its

obligations under this Agreement; and

(b) that it will perform its obligations under this Agreement with reasonable

care and skill.


8.3 The Customer acknowledges that:

(a) search engine algorithms will change from time-to-time, which may affect

the Website’s rankings in the search engine results pages, and the

Provider has no control over such changes;

(b) it can take many months for the Services to have any significant effects

upon the ranking of a Website in the search engine results pages;

(c) web site promotion is an ongoing task and, should the Customer terminate

this Agreement and/or stop promoting the Website, that would be likely to

have a negative impact upon the effects of the Services;

(d) the Provider will not be responsible for any alterations to the Website

made by the Customer or any third party that reverse or otherwise affect

changes made to the Website by the Provider as part of the Services;


(e) notwithstanding the Services, the Website’s search engine results page

rankings and traffic levels may decrease as well as increase.


[8.4 The Provider does not warrant that any particular results will be achieved through

the Services. Where the Provider indicates specific targets that it will attempt to

meet through the provision of the Services, such targets are not warranted and a

failure to meet such targets will not be a breach of the Agreement.]

8.5 All of the parties' liabilities and obligations in respect of the subject matter of this

Agreement are expressly set out in the terms of this Agreement. To the

maximum extent permitted by applicable law and subject to Clause [9.1], no

other terms concerning the subject matter of this Agreement will be implied into


this Agreement or any related contract.


9. Limitations and exclusions of liability 4

9.1 Nothing in the Agreement will:

(a) limit or exclude the liability of a party for death or personal injury resulting

from negligence;

(b) limit or exclude the liability of a party for fraud or fraudulent

misrepresentation by that party;

(c) limit any liability of a party in any way that is not permitted under

applicable law; or

(d) exclude any liability of a party that may not be excluded under applicable

law.


9.2 The limitations and exclusions of liability set out in this Clause [9] [and elsewhere

in the Agreement]:

(a) are subject to Clause [9.1];

(b) govern all liabilities arising under the Agreement [or any collateral

contract] or in relation to the subject matter of the Agreement [or any

collateral contract], including liabilities arising in contract, in tort (including

negligence) and for breach of statutory duty; and

[(c) will [not limit or exclude / limit and exclude] the liability of the parties

under the express indemnities set out the Agreement[, and any amounts

paid under any indemnity in the Agreement shall not count towards any

aggregate liability.


9.3 Neither party will [not] be liable in respect of any loss of profits, income, revenue,

use, production or anticipated savings.

9.4 [Neither party / The Provider / The Customer] will [not] be liable for any loss of

business, contracts or commercial opportunities.

9.5 [Neither party / The Provider / The Customer] will [not] be liable for any loss of

or damage to goodwill or reputation.

9.6 [Neither party / The Provider / The Customer] will [not] be liable in respect of any

loss or corruption of any data, database or software.

9.7 [Neither party / The Provider / The Customer] will [not] be liable in respect of any

special, indirect or consequential loss or damage.

9.8 [Neither party / The Provider / The Customer] will [not] be liable for any losses

arising out of a Force Majeure Event.

9.10 [Neither party / The Provider& / The Customer aggregate liability under the

Agreement [and any collateral contracts] will [not] exceed the greater of:

(a) the total amount paid and payable by the Customer to the Provider under

the Agreement.

10. Data protection

10.1 The Customer warrants that it has the legal right to disclose all Personal Data

that it does in fact disclose to the Provider under this Agreement, and that the

processing of that Personal Data by the Provider for the purposes of and in

accordance with the terms of this Agreement will not breach any applicable laws

(including the Data Protection Act 1998).

10.2 The Provider warrants that:

(a) it will act only on instructions from the Customer in relation to the

processing of any Personal Data performed by the Provider on behalf of

the Customer; and

(b) it has in place appropriate security measures (both technical and

organisational) against unlawful or unauthorised processing and against

loss or corruption of Personal Data processed by the Provider on behalf of

the Customer.

11. Confidentiality

11.1 The Provider will:

(a) keep confidential and not disclose the Customer Confidential Information

to any person save as expressly permitted by this Clause [11]; and

(b) protect the Customer Confidential Information against unauthorised

disclosure by using the same degree of care as it takes to preserve and

safeguard its own confidential information of a similar nature, being at

least a reasonable degree of care.


11.2 The Customer will:

(a) keep confidential and not disclose the Provider Confidential Information to

any person save as expressly permitted by this Clause [11]; and

(b) protect the Provider Confidential Information against unauthorised

disclosure by using the same degree of care as it takes to preserve and

safeguard its own confidential information of a similar nature, being at

least a reasonable degree of care.


11.3 Confidential Information of a party may be disclosed by the other party to that

other party's [officers, employees, agents, insurers and professional advisers],

provided that the recipient is bound in writing to maintain the confidentiality of

the Confidential Information disclosed.

11.4 The obligations set out in this Clause [11] shall not apply to:

(a) Confidential Information that is publicly known (other than through a

breach of an obligation of confidence);


(b) Customer Confidential Information that is in possession of the Provider

prior to disclosure by the Customer, and Provider Confidential Information

that is in possession of the Customer prior to disclosure by the Provider;

or

(c) Customer Confidential Information that is received by the Provider, and

Provider Confidential Information that is received by the Customer, from

an independent third party who has a right to disclose the relevant

Confidential Information.


11.5 Nothing in this Agreement shall restrict a party from making any disclosure of

Confidential Information that is:

(a) required by law; or

(b) required by a governmental authority, stock exchange or regulatory

body[,

provided that the party subject to such disclosure requirement must where

permitted by law give to the other party prompt written notice of the disclosure

requirement].

12. Publicity

[Neither party] [The Customer] [The Provider] will [not] make any public

disclosure about the Agreement or the subject matter of the Agreement

(including press releases, public announcements and marketing materials)

without the prior written consent of the [other party] [the Provider] [the

Customer][, not to be unreasonably withheld or delayed].

13. Termination

13.1 Either party may terminate this Agreement at any time by giving [at least 30

days'] written notice to the other party [expiring at any time after the end of the

Minimum Term].

13.2 Either party may terminate this Agreement immediately by giving written notice

to the other party if the other party:

(a) commits any [material] breach of any term of this Agreement, [and:

(i) the breach is not remediable; or

(ii) the breach is remediable, but the other party fails to remedy the

breach within [30] days of receipt of a written notice requiring it to

do so; or]


[(b) persistently breaches the terms of this Agreement.]

13.3 Either party may terminate this Agreement immediately by giving written notice

to the other party if:

(a) the other party:

(i) is dissolved;

(ii) ceases to conduct all (or substantially all) of its business;


(iii) is or becomes unable to pay its debts as they fall due;

(iv) is or becomes insolvent or is declared insolvent; or

(v) convenes a meeting or makes or proposes to make any

arrangement or composition with its creditors;


(b) an administrator, administrative receiver, liquidator, receiver, trustee,

manager or similar is appointed over any of the assets of the other party;

(c) an order is made for the winding up of the other party, or the other party

passes a resolution for its winding up [(other than for the purpose of a

solvent company reorganisation where the resulting entity will assume all

the obligations of the other party under this Agreement)]; or

(d) (where that other party is an individual) that other party dies, or as a

result of illness or incapacity becomes incapable of managing his or her

own affairs, or is the subject of a bankruptcy petition or order.


14. Effects of termination

14.1 Upon termination all the provisions of this Agreement will cease to have effect,

save that the following provisions of this Agreement will survive and continue to

have effect (in accordance with their terms or otherwise indefinitely): Clauses [1,

5.5, 6.2, 7.7, 7.8, 9, 11, 14 and 15.3 to 15.12].

14.2 Termination of this Agreement will not affect either party’s accrued rights

(including accrued rights to be paid) as at the date of termination.

14.3 If this Agreement is terminated under Clause [13.1], or by the Customer under

Clause [13.2] or [13.3] (but not in any other case) the Customer will be entitled

to a refund of any Charges paid by the Customer to the Provider in respect of any

Services which were to be performed after the date of effective termination, and

will be released from any obligation to pay such Charges to the Provider (such

amount to be calculated by the Provider using any reasonable methodology).

14.4 Save as provided in Clause [14.3], the Customer will not be entitled to any refund

of Charges on termination, and will not be released from any obligation to pay

Charges to the Provider.

15. General

15.1 Any notice given under this Agreement must be in writing (whether or not

described as “written notice” in this Agreement) and must be delivered

personally, sent by [recorded signed-for] post, or sent by fax [or email], 5 for the

attention of the relevant person, and to the relevant address, fax number or

[email address] given in the Schedule (or as notified by one party to the other in

accordance with this Clause).

15.2 A notice will be deemed to have been received at the relevant time set out below

(or where such time is not within Business Hours, when Business Hours next

begin after the relevant time set out below):

(a) where the notice is delivered personally, at the time of delivery;

5


(b) where the notice is sent by [recorded signed-for] post, [48 hours] after

posting; and

(c) where the notice is sent by fax [or email], at the time of the transmission

(providing the sending party retains written evidence of the transmission).

15.3 No breach of any provision of this Agreement will be waived except with the

express written consent of the party not in breach.

15.4 If a Clause of this Agreement is determined by any court or other competent

authority to be unlawful and/or unenforceable, the other Clauses of this

Agreement will continue in effect. If any unlawful and/or unenforceable Clause

would be lawful or enforceable if part of it were deleted, that part will be deemed

to be deleted, and the rest of the Clause will continue in effect (unless that would

contradict the clear intention of the parties, in which case the entirety of the

relevant Clause will be deemed to be deleted).

15.5 Nothing in this Agreement will constitute a partnership, agency relationship or

contract of employment between the parties.

15.6 This Agreement may not be varied except by a written document signed by or on

behalf of each of the parties.

15.7 [The Provider / The Customer / Each party] hereby agrees that the [Customer /

Provider / other party] may freely assign [any or] all of its contractual rights

[and/or obligations] under the Agreement [to any Affiliate of the assigning party

or any successor to all or a substantial part of the business of the assigning party

from time to time]. Save as expressly provided in this Clause or elsewhere in the

Agreement, neither party may without the prior written consent of the other party

assign, transfer, charge, license or otherwise dispose of or deal in the Agreement

or any contractual rights or obligations under the Agreement.

15.8 The Provider may [not] subcontract any of its obligations under this Agreement to

any third party.

15.9 Each party agrees to execute (and arrange for the execution of) any documents

and do (and arrange for the doing of) any things reasonably within that party’s

power, which are necessary to enable the parties to exercise their rights and fulfil

their obligations under this Agreement.

15.10 This Agreement is made for the benefit of the parties, and is not intended to

benefit any third party or be enforceable by any third party. The rights of the

parties to terminate, rescind, or agree any amendment, waiver, variation or

settlement under or relating to this Agreement are not subject to the consent of

any third party. 6

15.11 Subject to Clause [9.1]:

(a) this Agreement will constitute the entire agreement between the parties in

relation to the subject matter of this Agreement, and supersedes all

previous agreements, arrangements and understandings between the

parties in respect of that subject matter;

[(b) neither party will have any remedy in respect of any misrepresentation

6


(whether written or oral) made to it upon which it relied in entering into

this Agreement; and]

[(c) neither party will have any liability other than pursuant to the express

terms of this Agreement.]


15.12 This Agreement will be governed by and construed in accordance with the laws of

[England and Wales]; 7 and the courts of [England] 8 will have exclusive jurisdiction

to adjudicate any dispute arising under or in connection with this Agreement.

The parties have indicated their acceptance of this Agreement by executing it

below.

EXECUTION:

SIGNED by [name of signatory]

duly authorised for and on behalf

of the Provider


....................

Date:

SIGNED by [name of signatory]

duly authorised for and on behalf

of the Customer


....................

Date:


Subscribe to our newsletter