TERMS & CONDITIONS

PARTNER' AGREEMENT

Definitions
  • “App” means the online web application devised by the Business to connect Customers to Drivers;
  • “Business” means Smart Delivery Ltd, a company registered in England & Wales under company registration umber 11918723 whose registered office is at 20-22, Wenlock Road, London, N1 7GU;
  • “Complaint” means a complaint from a Customer about the App as more particularly detailed in clause 3.4 or a complaint about any breach or suspected breach of data protection legislation;
  • “Customer” means the restaurant or catering business wishing to engage the Business to provide the Services pursuant to the Agreement;
  • “Downtime” means periods of time when the App will not be accessible to third parties by reason of unavoidable hardware or software failures, failure of electricity or other relevant utility supplies or for periods of necessary repair, maintenance or improvement
  • “Drivers” means the delivery drivers who will offer food delivery services to the Customer via the App and ‘Driver’ shall be construed accordingly;
  • “End User” the customer of the Customer for whom the Job is carried out;
  • “Job” the delivery jobs offered by the Customer through the App;
  • “Services” the provision of the App by the Business as more particularly set out in clause 3 below;
  • “Terms” means these terms and conditions;
  • “you” or “your” means the Customer.
Applicability of these Terms
  • Your usage of the App is subject always to these Terms, which represent a contract between you and the Business. If you are not prepared to accept these Terms, you should not use the App.
About the Business and the Services
  • The Business hosts the App in order to provide a portal for Customers to access the services of Drivers to deliver goods to the End Users.
  • The Business operates as a messaging board and does not have any direct involvement in any contract that may be entered into between a Customer and a Driver or between the Customer and an End User.
  • Any general information, advice or guidance about the Services which is available from the Business or via the App is for information purposes only and you are free to use or ignore it.
  • The Business may (but need not) assist you with complaints about the operation or functionality of the App, but shall not be required to assist you with any complaint or issue which arises from any Job.
Your Obligations
  • You must not:-
    • Use the App to send content to either the Business or a Driver which is, or which is intended to be, offensive discriminatory or illegal;
    • Knowingly post, upload or send false or incorrect information to or via the App;
    • Use any information obtained from the App for any purpose other than for the purposes of a Job;
    • Use or infringe the intellectual property rights of the Business, including the copyright pertaining to the App and any logos or get-up of the Business whether or not used on or in connection with the App;
    • Introduce viruses or malware onto the App or seek to circumvent any protocols or technical measures used by the Business in respect of the App.
  • In respect of each Job, you must provide the Driver with sufficient details to complete each Job, including (but not necessarily limited to) the name, full address, postcode and contact number of the End User together with the fifteen minute delivery window for completion of each Job and wherever reasonably practicable should check that the Driver has recorded the information correctly.
  • In respect of each Job where the End User has paid you directly, you shall pay to the Driver forthwith and without deduction or set-off upon the Driver’s collection of the Goods the sum of £3.00 together with a further £1.00 in respect of each mile or part mile travelled by the Driver pursuant to the Job (using the most direct route) over four miles together with an additional £3.00 where the circumstances as set out in clause 6.2 apply.
  • In respect of each Job where the End User has not paid you directly and will not be so doing, you shall sell to the Driver the Goods for a price which is £3.00 less than the full price payable by the End User and you shall deduct from the said price a further £1.00 in respect of each mile or part mile that will be travelled by the Driver pursuant to the Job (using the most direct route) over four miles.
  • You shall address any complaint about the Drivers and/or the Services to a Manager of the Business as notified to you by the Business from time to time.
Changes to the App
  • You acknowledge and accept that the Business may from time to time alter, suspend or discontinue any aspect of the App or the content available through it, as it thinks fit and without giving prior notice.
  • You acknowledge and accept that the Business may alter the Terms from time to time. The updated version will be effective as soon as it is notified to you via the App. By continuing to use the App following any amendments of the Terms, you confirm your agreement to such amendments.
  • The Business retains the right to modify or discontinue the Services.
Liability
  • The Business shall not be liable to you by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of these Terms, for any loss or damage, including any indirect or consequential loss or damage (whether for loss or profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Business, its employees, or agents or otherwise) which arise out of or in connection with the supply of the Services or the operation of the App.
  • In the event that a Job is abortive for any reason other than the deliberate or negligent act or omission of the Driver (including, but not limited to, situations where the Goods are hot food and the food is cold on arrival or where insufficient or incorrect details as to the destination of a Job has been provided to the Driver or where the Customer’s customer have refused to take delivery of the Goods), you will refund the Driver the price of the Goods (where the Driver has already paid you for the Goods) and also pay to the Driver the sum of £6.00 without deduction or set-off.
  • The Business makes no warranty or representation about the Drivers and shall not be liable to you by reason of any misrepresentation, or any implied warranty, condition or other term, or any duty at common law, or under these Terms, for any loss or damage, including any indirect or consequential loss or damage (whether for loss or profit or otherwise), costs, expenses or other claims howsoever arising from any aspect of the relationship between you and the Drivers.
  • The Business does not exclude or restrict liability for death or personal injury resulting from its own negligence.
  • The Business will not be liable for any breach of its obligations under these Terms where it is hindered or prevented from carrying out its obligations by any cause outside its reasonable control.
Data Protection
  • Pursuant to the General Data Protection Regulation (GDPR) which came into force in England and Wales on the 25th of May 2018, the Business may have certain obligations to you in respect of how it handles your personal data. Further details about your rights can be accessed from the Business.
  • The Business will gather data about your name and address when you use the App. Where you are an individual rather than a body corporate, such data is governed by the provisions of GDPR. This information is required so that the Business can manage its contract with you pursuant to these Terms. Your data will not be used for any other purpose.
  • Data relating to the App (including personal data as defined by GDPR) may be stored on servers operated by the Business’s third party IT suppliers. Such third party suppliers are or will be based in the UK and are also subject to the provisions of GDPR.
Downtime
  • The Business will not be liable for any data which is lost, corrupted or destroyed as a result of Downtime.
  • The Business shall not be liable for any delays in performing the Services arising from any cause (including but not limited to Downtime) which is beyond the Business’s reasonable control and/or is the result of any inaccurate instructions or lack of instructions from the Customer.
  • You accept that you shall have no claim for breach of contract or otherwise in respect of any such period of Downtime.
Monitoring of Traffic
  • The Business reserves the right to monitor any and all communications passing through the Business which relate to the App and/or the provision of the Services.
Miscellaneous
  • You acknowledge that you are not relying on any statement made by us or any of our representatives about use of the App (other than those expressly set out in these Terms).
  • If any of these Terms becomes void or unenforceable in whole or in part, the validity of the remainder of these Terms shall not be affected.
  • The rights of you and us under these Terms may be exercised as often as necessary. They are cumulative and not exclusive of either party’s rights under the general law, and may be waived only in writing. Delay in exercising or non-exercise of any right is not a waiver of that right.
  • These Terms constitute the entire agreement and understanding between the parties with respect to all matters which are referred to in these Terms.
  • These Terms are personal to you and may not be assigned to any third party without the written consent of the Business.
  • No person other than the Business, any person to whom the Business assigns these Terms you shall acquire any enforceable rights under or in connection with these Terms.
  • If any provision of these Terms or part thereof is rendered void by any legislation to which it is subject or the final decision of any court having jurisdiction these Terms shall be rendered void to that extent and no further; and the remainder of these Terms shall constitute the agreement of the parties.
  • Each party acknowledges that except where otherwise expressly stated in these Terms, these Terms contain the whole agreement between the parties and that it has not relied upon any oral or written representation made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.
  • These Terms shall be governed by and construed in accordance with the laws of England and Wales. Any disputes arising from these Terms shall be subject to the exclusive jurisdiction of the courts of England and Wales.

DRIVERS' AGREEMENT

PREAMBLE
  • The Business recognises that the Driver has particular expertise as a delivery driver.
  • The Business wishes to procure the benefit of the services and the skills of the Driver and the Driver has agreed to provide his time and service to the Business as agreed in this Consultancy Agreement (which services may be provided through a Limited Company).
  • It is agreed and recognised between parties that the Driver is and will remain at all times an independent contractor who will provide his services as set out in this Agreement and there will be no employment relationship between the Driver and the Business.
IT IS AGREED THAT
  • The Driver has been engaged under the terms of this Agreement to provide freelance services to the Business as a delivery driver delivering takeaway food or other goods and services (‘the Goods’) for the customers of the Business (‘the Customers’) to such places and to such customers of the Customer as the Customers as may from time to time be required (‘the Jobs’ and ‘Job’ shall be construed accordingly, excepting always that:
    • the Driver retains the absolute right not to accept any particular Job;
    • the Business is under no obligation to offer the Driver any Jobs;
    • the Driver may only accept Jobs through the online app provided by the Business which provides a platform for the Customers to offer Jobs to the Driver and to other drivers engaged by the Business (‘the App’).
  • The Driver agrees that whilst performing services under this Agreement he will comply with all applicable laws, regulations and safety provisions and further agrees that, whilst on Business premises, he will abide by the operating and safety rules and procedures as issued from time to time by the Business. In particular, the Driver will abide by the procedures issued by the Business from time to time in relation to the use of the App which include, but are not limited to the Driver providing the Business with (and updating the Business of any changes to) the Driver’s full name and address, the make, model and VRN of each car which the Driver will use when performing services under this agreement and true copies of the Driver’s driving licence and the MOT and insurance in respect of each vehicle so used (and promptly notifying the Business of any changes to the same). The Driver accepts that any failure to comply with this clause shall entitle the Business to block the Driver’s access to the App and/or to terminate this Agreement pursuant to clause 13.
  • The services under this Agreement shall by provided by the Driver to the Business unless and until terminated as follows:
    • by the Driver giving no less than one months’ notice to the Business that the Driver will no longer accept any Jobs from the Business;
    • by the Business giving no less than one months’ notice to the Driver that the Business will no longer offer any Jobs to the Driver;
    • in accordance with any of the provisions of this Agreement which entitle either party to terminate the Agreement.
    The parties accept and agree that the provisions of clauses 3 (a) and 3 (b) above are reasonably necessary to allow the parties adequate time to arrange their affairs in the event that the other party no longer wishes to continue with this Agreement.
  • The Driver shall:
    • pay a subscription to the Business on either a weekly or a monthly basis as the Driver prefers at such rates as are determined by the Business from time to time and notified to the Driver on no less than one weeks’ notice (such subscription being £30.00 per week or £100.00 per month as of the date of this Agreement) in exchange for access to the App and the right to carry out Jobs for Customers;
    • save where provided for in this Agreement, pay the Customer in full upon collection the price payable for the Goods by the Customer’s customer less £3.00 and less an additional £1.00 for every mile or part mile above five miles from the Customer’s business premises to the Customer’s customer using the most direct route (the ‘Price’);
    • be entitled to charge the Customers in respect of each Job at the rates as determined by the Business from time to time, which as of the date of this Agreement are a full refund of the Price plus £6.00 for any Job which is abortive by reason of the fact that the Customer has provided incorrect details and/or the Job is not a genuine job by reason of fraud of misrepresentation which sums the Driver may retain and £3.00 in respect of any Job in respect of which the Customer has already been paid by their customer;
    • be entitled to charge the customers of the Customer the Price plus no more than an additional £3.00 for each Job successfully completed;
    • be entitled to keep all tips (if any);
    • not accept a Job unless the Driver can attend the Customer’s premises in no more than fifteen minutes from accepting the Job;
    • not carry out any more than two Jobs at the same time;
    • complete as soon as reasonably practicable and in a manner consistent with the Driver’s status as a professional delivery driver each Job which the Driver accepts;
    • take reasonable steps to ensure that the Driver does not take counterfeit money which shall include (but no be limited to) obtaining such anti-counterfeiting equipment as directed by the Business;
    • purchase no fewer than three and use where applicable insulated food delivery bags of such type and specification as directed by the Business from time to time;
    • maintain a float at all times of no less than £50.00 in mixed cash and notes;
    • inform the Business as soon as practicable if he is unable or unwilling to carry out any services pursuant to the terms of this Agreement;
    • indemnify and keep indemnified the Business and its employees, agents, workers, contractors and invitees from and against all loss, damage or liability (including legal fees and other costs incurred) resulting from any breach of this Agreement (including any act, omission, neglect or default) by the Driver.
    The parties accept and agree that the provisions of clauses 3 (a) and 3 (b) above are reasonably necessary to allow the parties adequate time to arrange their affairs in the event that the other party no longer wishes to continue with this Agreement.
  • The Driver may accept and perform engagements from any other company, business, firm or person provided always that such engagements are not detrimental to the Business and/or do not materially impact on the Driver’s ability to perform his obligations pursuant to the terms of this Agreement.
  • The Driver agrees that:
    • he will be available at all times on reasonable notice to provide such assistance or information as the Business may require;
    • he will not hold himself as having any authority to do or say anything on behalf of the Business without the express prior agreement in writing of an owner of the Business;
    • he will not incur any extraordinary expenditure or disbursement without the express prior agreement in writing of an owner of the Business.
  • The Driver warrants and represents to the Business that he is an independent contractor. Thereafter, this Agreement therefore constitutes a contract for the provision of services and is not a contract of employment and accordingly the Driver shall indemnify the Business for and in respect of any liability arising from any employment related claim or any claim based on worker status (such liability to include reasonable costs and expenses incurred by the Business in defending such a claim) brought by the Driver or any employee or sub-contractor of the Driver carrying out services to the pursuant to the terms of this Agreement.
  • The Driver will be responsible for the payment of any and all tax and national insurance contributions which may payable in respect of his fees and expenses and he will indemnify the Business in respect of all and any income taxes or other payments which may be found due from the Business in respect of such taxes or insurance. The Driver will register for VAT if necessary and pay all such sums as may be due and shall indemnify the Business against any claims.
  • The Driver agrees that:
    • he will not disclose to any third party, whether by himself directly or indirectly, or through any other Business, firm or person, or otherwise procure cause or facilitate the disclosure of any confidential information, intellectual property or trade secrets belonging to the Business or any of its customers or clients, which shall include information relating to the Business, financial or other affairs of the Business or any associated Business or customers or clients, save as required by law;
    • all information and material whether held on disc, tape or any other medium and all computer discs, correspondence, documents, memos and all other records obtained or used by the Driver during his engagement or connected thereto whether via the App or otherwise or prepared by the Driver for the purposes of carrying out his duties under the terms of the Agreement shall be and remain the property of the Business. Upon lapse, expiry or termination of this Agreement the Driver will forthwith deliver up all material, as aforesaid to the Business. Insofar as delivery up is not possible (i.e. information held on hard disc) the Driver will if required confirm in writing that it has been destroyed;
    • the Business may carry out random spot check to ensure compliance with the terms of this Agreement and, accordingly, the Driver shall co-operate fully with such checks and provide promptly such information as the Business may reasonably require to ensure compliance with the terms of this Agreement.
  • The Driver may, provided he first notifies the Business, provide his services personally or through an employee or subcontractor save that the Driver agrees:
    • not to allow any employee or subcontractor to provide services under this Agreement without the prior authority of the Business;
    • to withdraw any employee or subcontractor upon receipt of a written request from the Business (which shall include a request sent by e-mail);
    • to procure that any and all employees or subcontractors have the necessary level of skill, experience, insurances and qualifications to carry out services under this Agreement and comply with the provisions of clause 2 as though they were the Driver;
    • to indemnify and keep indemnified the Business from and against all loss, damage or liability (including legal fees and other costs incurred) resulting from any breach of this Agreement (including any act, omission, neglect or default) by the Driver’s employees or subcontractors.
  • The Driver shall be responsible for arranging and maintaining appropriate insurances with reputable insurers as required by law including fully comprehensive motor insurance, hire and reward insurance, fast food delivery insurance and also Professional Indemnity Insurance with a limit of not less than £1,000,000.
  • The Agreement will terminate automatically if the reason is the Driver’s death, disability, dismissal, insolvency or any reason that is incompatible with this Agreement remaining in force.
  • Either party may terminate this Agreement forthwith if the other has acted in breach of the Agreement (including, in the case of the Driver, if the Driver receives bad reviews from either the Customer or the Customer’s customers or acts in a way which brings or might reasonably be expected to bring either the Business or a Customer into disrepute) and, where the breach is capable of remedy, has failed to remedy within seven days of being required in writing to remedy the breach save that the Driver shall not be entitled to rely on this clause by reason of any technical issues with the App (including downtime) where such issues do not persist for a lengthy period of time. The Business shall also be entitled to block the Driver’s access to the App for so long as the Driver is in breach of any provision of this Agreement.
  • This Agreement is personal to the Driver and may not be assigned by the Driver, nor may any of his duties, rights or liabilities be assigned or transferred without the prior written consent of the Board of the Business.
  • The terms herein supersede any prior agreement between the parties (whether written or oral) and contain the entire agreement between the parties as regards the provision of the services and may not be changed, varied or substituted by any oral Agreement but only by the written agreement of the parties.
  • Any notice required to be given to either party under this Agreement shall be left or sent by registered post or recorded delivery to the address of each party as shown in this Agreement or sent by electronic mail. Any such notice shall be deemed to have been served with immediate effect if left at the address of the party on which it is served and, if served by post, shall be deemed to have been received three days after the posting and if served by electronic mail to such address as is specified by a party forthwith upon receipt by the sender of a delivery receipt.
  • No parties other than the parties to this Agreement shall acquire any rights under this agreement whether by operation of the Contracts (Rights of Third Parties) Act 1999 or otherwise.
  • This Agreement shall be governed by English law and the parties submit to the exclusive jurisdiction of the English Courts.