Partner Terms and Conditions
These are the Terms and Conditions that govern the relationship between Nightkey Limited, a company registered in England and Wales under Company Number 09270559 whose registered address is at 10 Northcliffe Drive London N20 8JZ (Nightkey) and the Partner (as defined below) in relation to the matters set out in these Terms and Conditions and the corresponding Partnership Form (as defined below) (Nightkey and the Partner together the parties and each a party).
1.1 The definitions and rules of interpretation in this clause apply to these Terms and Conditions:
a) Agreement means these Terms and Conditions taken together with the relevant Partnership Form applicable to the Partner;
b) Business Day means a day (excluding Saturday and Sunday) on which banks are generally open in the region applicable to the venue;
c) Cover means each individual that attends a Venue and who is either a Member or in the party of a Member that is redeeming, applying or using one or more Nightkey Offers;
d) Covers Report means the report detailing the number of Covers provided by Nightkey to a Venue in a relevant period;
e) Data Protection Legislation means: (i) in EU countries, (A) the EC Directive on the protection of individuals with regard to the processing of personal data and on the free movement of such data (95/46/EC), (B) the Privacy and Electronic Communications (EC Directive) Regulations 2003 implementing Directive 2002/58/EC concerning the processing of personal data and the protection of privacy in the electronic communications, as well as (C) all other local laws or regulations giving effect to these Directives, as may be amended, modified or replaced from time to time, and including all related codes of practice; and/or (ii) in non-EU countries, any similar or equivalent laws, regulations or rules relating to information or data about individuals;
f) Due Date means the date on which payment of Transaction Fees set out in an Invoice is due, which will be 28 days after the date of an Invoice unless the parties have agreed otherwise in writing before the date of an Invoice;
g) EU means European Union;
h) Exclusion Period means any time period agreed in writing between Nightkey and the Partner during which the Partner may suspend any Nightkey Offers it provides;
i) Go Live Date means the date from which Nightkey will provide the Nightkey Services and the Partner will offer the Nightkey Offers, each as set out in the Partnership Form;
j) Intellectual Property Rights means all intellectual property rights on a world-wide basis whether currently in existence or otherwise and whether vested or contingent including (without limitation) copyright (including foreign language translation rights), design rights, database rights, rights in any domain names, registered designs, patents, trademarks, trade names, signs and other designations provided the foregoing are of a proprietary nature and all similar rights whether registered or otherwise (including, without limitation, all extensions, reversions, revivals and renewals thereof) and the above shall include, in relation to registerable rights, any applications made or rights to make applications in respect of any such rights;
k) Invoice means the monthly invoice issued by Nightkey to the Partner in accordance with clause 5 of this Agreement, which will set out the Transaction Fees due and payable to Nightkey for the Nightkey Services provided that month;
l) Member means a member of Nightkey, being an approved person with rightful access to view, apply, redeem or use Nightkey Offers, such person to be determined at Nightkey’s sole discretion;
m) Nightkey Dashboard means the technology owned and supplied by Nightkey which enables Partners to manage the offers available to Members;
n) Nightkey Offer means each discount, deal and other benefit provided from time to time by a Venue to Members by virtue of being a Member, as initially set out in the Partnership Form under the heading ‘Initial Offer Setup’;
o) Nightkey Services means the products and services provided by Nightkey from time to time pursuant to this Agreement, as initially set out in the Partnership Form under the heading ‘Service’;
p) No Show means any individual displayed in the Covers Report who did not attend a Venue and therefore is not a Cover;
q) Partner means the relevant counterparty to a Partnership Form;
r) Partnership Form means the contract (as may be amended from time to time by mutual written agreement) entered into between the parties electronically or in physical form relating to the provision of the Nightkey Services, which contains some or all the following terms and details and/or such other information or terms as the parties deem necessary or appropriate: Venue details, Partner and billing details, contact details, initial offer details, Transaction Fees, Go Live Date, Term;
s) Term means the time period for which Nightkey will provide the Nightkey Services and the Partner will offer the Nightkey Offers, such time period as set out in the Partnership Form under the heading ‘Term’;
t) Termination Date means the date on which this Agreement terminates, as set out in clause 8.3;
u) Transaction Fee means the fees payable to Nightkey by the Partner in respect of each Cover, as set out in the Partnership Form under the heading ‘Transaction Fee’; and
v) Venue means the venue(s) set out in the Partnership Form(s).
1.2 Save where the context indicates otherwise:
a) the singular shall include the plural, and vice versa;
b) plurals shall be read as if followed by the phrase “(or any of them)”;
c) references to “clause” or “clauses” are to clauses in this Agreement; and
d) where the words “include(s)”, “including” or “in particular” are used in this Agreement, they are deemed to have the words “without limitation” following them.
2. Nightkey’s obligations
2.1 In so far as the Nightkey Dashboard forms part of Nightkey Services, Nightkey shall use all reasonable efforts to provide the Partner access to the Nightkey Dashboard.
2.2 Nightkey grants the Partner, during the Term of this Agreement and in accordance with this Agreement, a non-exclusive, non-transferable, revocable, royalty-free, worldwide licence to use the Nightkey Dashboard.
2.3 Nightkey shall advertise the Partner's Nightkey Offers to Members.
3. Partner’s obligations
3.1 The Partner will offer and apply the Nightkey Offers to the bill or entry (as applicable) of any Member who has acted in accordance with the terms of the Nightkey Offer. Before applying or offering any Nightkey Offer, the Partner will use best endeavours to ensure the recipient of that Nightkey Offer is a Member.
3.2 The Partner may remove any No Shows or incorrect Covers in the Nightkey Dashboard at any time up to 48 hours after the end of the month in which the relevant No Show or incorrect Cover occurred. Removals not carried out within 48 hours following the end of the relevant month are billable. Nightkey will review all removals carried out by the Partner and must consent to each removal. Nightkey’s consent to the removal of a No Show or incorrect Cover shall be deemed given upon issue of the relevant Invoice accepting removal of that No Show or incorrect Cover.
3.3 The Partner shall pay Nightkey the Transaction Fees set out in each Invoice in accordance with the terms of this Agreement. The Partner undertakes not to remove any Cover from the Nightkey Dashboard unless it is a genuine No Show or other error. The Partner shall ensure it has sufficient processes and checks in place to ensure that staff verify the status of a Cover before changing it and do not remove a Cover (whether intentionally or unintentionally) if genuine. Nightkey may, at its sole discretion, undertake an audit of the Partner’s processes or checks, including directly contacting any Member whose party size has been reduced in the Nightkey Dashboard by the Partner. The Partner will, upon Nightkey’s reasonable request, provide Nightkey any supporting evidence relating to the removal of a Cover. If Nightkey reasonably deems any removal of a Cover to have been in error, Nightkey will have the right to include the Transaction Fees relating to such erroneous Covers in either the original Invoice for that month or in a further Invoice.
3.4 The Partner should review each Invoice provided and in the case of dispute they must inform Nightkey by email within 15 days of the date of issue of the original Invoice.
3.5 The Partner shall use all reasonable efforts to keep Nightkey informed about any changes relating to a Venue or the Partner's business which may be relevant to Nightkey or its Members, as soon as the Partner becomes aware that such a change will happen or has happened, as the case may be.
3.6 The Partner shall give Nightkey at least 14 Business Days’ prior written notice of: (a) any expected temporary closure or unavailability of a Venue; or (b) any request for an Exclusion Period.
3.7 The Partner acknowledges that any Nightkey Offer must run from Monday to Thursday each week at a minimum unless otherwise agreed in writing between the parties. The Nightkey Offers may be amended by the Partner through the Nightkey Dashboard. The Partner acknowledges that any Nightkey Offer can only be reduced on at least seven days’ written notice. Where access is provided, any such reduction must be effected through the Nightkey Dashboard and notice will be deemed given through amending the Nightkey Offer through the Nightkey Dashboard.
3.8 The Partner grants Nightkey during the Term of this Agreement a non-exclusive, royalty-free, revocable worldwide licence to use any Partner trademarks or logos solely for the purposes of communicating the fact that Nightkey is providing the Nightkey Services to the Partner, and/or for the express limited purpose of giving effect to this Agreement.
4.1 The Partner agrees to indemnify Nightkey against all losses, damages, liabilities and expenses (including legal costs) (Costs) reasonably incurred as a result of any claim or allegation made or brought against Nightkey by a Member or other third party (a Claim) as a result of the Partner’s conduct, service or otherwise, for example where a Member encounters a food quality issue or where the Partner refuses to offer a Nightkey Offer to a Member when required to do so in accordance with this Agreement. In the event of becoming aware of a Claim which it believes is reasonably likely to result in it incurring Costs, Nightkey will use all reasonable endeavours to inform the Partner of the existence of that Claim and Nightkey will act in consultation with the Partner to ensure any Costs incurred are as low as reasonably possible while, in Nightkey’s reasonable opinion, still maintaining the reputation and financial integrity of Nightkey.
5.1 Nightkey shall send the Partner an Invoice monthly in arrears unless agreed otherwise in the Partnership Form. Nightkey reserves the right to invoice the Partner less frequently.
5.2 The Transaction Fee is exclusive of VAT and other sales and use taxes.
5.3 Nightkey will determine the number of Covers for the relevant period based on the figures added to the Covers Report less any No Shows or incorrect Covers agreed in writing by Nightkey (such written agreement to be deemed given upon issue of the relevant Invoice as detailed in clause 3.2).
5.4 The Partner shall settle all Invoices by the Due Date by either: (a) electronic bank transfer to a bank account provided by Nightkey for payment purposes; (b) direct debit; or (c) such other method as agreed in writing between the parties.
5.5 Any amounts not paid when due under this Agreement will bear interest from the date beginning the day after the Due Date at the rate of 0.5 percent above the Bank of England base rate per month or the highest rate permitted by law (whichever is less) calculated on a daily, compound rate, until paid. Failure to pay on time may result in immediate suspension of the Nightkey Services (including access to the Nightkey Dashboard) and may also result in referral to a debt collection agency, whereupon the Partner shall be charged, and be liable to pay, an additional sum of 15% of the value of the relevant invoice (plus VAT) to cover the collection costs incurred by the agency, plus any legal or other fees incurred by the agency in the process of chasing or collecting the debt.
5.6 The Partner shall pay a processing charge of ten pounds (£10) for any rejected automated bank account debit.
5.7 The Partner understands and agrees that Nightkey may, at its sole discretion, modify the Transaction Fees having given not less than three months’ notice of their intention to do the same.
5.8 If the Partner cancels the Nightkey Services in accordance with the termination provisions in this Agreement, the Partner will be charged for the notice period, after which the Nightkey Services shall be withdrawn.
The Partner undertakes that during the Term of this Agreement and for 12 months thereafter, it will not directly or indirectly be engaged in the development or provision of any product or service that has similar functionality to the Nightkey Services without the prior written consent of Nightkey.
7. Intellectual Property Rights and Data
7.1 The Partner acknowledges and agrees that Nightkey owns all Intellectual Property Rights in the Nightkey Services, the Nightkey Dashboard and the Nightkey brand. Nightkey acknowledges and agrees that the Partner owns all Intellectual Property Rights relating to its brand and its Venues. Neither party shall take any action inconsistent with such ownership by the other party, nor attempt to register any such Intellectual Property Rights of the other party in any jurisdiction.
7.2 Neither party, by virtue of this Agreement, shall obtain or claim any right, title or interest in nor to the other party’s name, trademarks, service marks, logos or Intellectual Property Rights, except the limited rights of use as specified in this Agreement, and the parties acknowledge and agree that all such use shall inure to the benefit of the respective owner.
7.3 Neither party shall alter or remove any printed or on-screen copyright, trademark nor other proprietary or legal notices placed or required by the other party with respect to the use of its trademarks and logos as provided pursuant to this Agreement.
7.4 The Partner undertakes to comply at all times with the Data Protection Legislation in the handling of data it receives through the Nightkey Services and the Nightkey Dashboard.
7.5 Where Nightkey processes personal data (as defined in Data Protection Legislation) on behalf of the Partner, then Nightkey shall:
a) process such data solely in accordance with the Partner’s instructions from time to time; and
b) adopt and maintain appropriate security measures for processing data, both in terms of the technology used and how it is managed.
8. Term and Termination
8.1 This Agreement shall, subject to earlier termination in accordance with its terms, commence on the Go Live Date and remain in full force and effect until terminated by either party giving the other not less than 90 days’ prior written notice of the wish to terminate this Agreement.
8.2 If a Partner wishes to shorten the termination period set out in clause 8.1, and Nightkey does not provide its prior written consent, the Partner agrees to indemnify Nightkey for a pro-rated cash amount equal to: (i) the highest Invoice monthly amount in the six months prior to Nightkey receiving the Partner’s notice of termination, times (ii) the amount of time in months and days (if an incomplete month) the Partner wishes to shorten the termination period by.
8.3 The termination of this Agreement shall be effective on the Termination Date. The Termination Date will, unless otherwise agreed, fall on the date 90 days following the date upon which notice of termination is received by a party. For example, if a notice of termination is received on 15 April, the Termination Date will fall on 14 July and this Agreement will terminate on 14 July.
8.4 At any time, up to 14 days before the Termination Date, Nightkey may suspend access to the Nightkey Dashboard. Suspension will mean that the Partner no longer has access to the Nightkey Dashboard.
8.5 The Partner is liable for all Transaction Fees up to the Termination Date. Therefore, the Partner may receive Invoices after the Termination Date, in respect of Covers and Transaction Fees incurred in the month in which the Termination Date falls. The Partner agrees to settle any such Invoices in accordance with this Agreement.
8.6 In addition, either party may terminate this Agreement immediately at any time by giving the other party notice in writing if:
a) the other party commits any material breach of any of the terms of this Agreement and that breach (if capable of remedy) is not remedied within fifteen (15) days of notice being given by the party not in breach requiring it to be remedied; or
b) the other party becomes bankrupt or corresponds with its creditors or enters into a voluntary arrangement, an order is made or a resolution is passed for its winding up, or an order is made for the appointment of administrator to manage its affairs, business or property, or a receiver and/or manager or administrative receiver is appointed in respect of all or any of its assets or undertaking, or circumstances arise which entitle the Court or a creditor to appoint a receiver and/or manager or administrative receiver, or which entitle the Court to make a winding-up or bankruptcy order, or the other party takes or suffers any similar or analogous action in any jurisdiction; or
8.7 Notwithstanding anything to the contrary contained in this Agreement, Nightkey may immediately terminate this Agreement if an invoice remains unpaid for longer than the Due Date.
8.8 Within 28 days of termination of this Agreement (howsoever arising) Nightkey shall prepare a final Invoice ‘statement of reconciliation’ and send such statement to the Partner.
9. Warranties and Liabilities
9.1. Nightkey warrants that it owns or has all rights necessary, including with respect to all Intellectual Property Rights, in order to provide the Nightkey Services and grant the licenses as specified in this Agreement. Except for that, Nightkey makes no warranties, representations or covenants or guarantees with regard to the Nightkey Services, whether express or implied, arising by law or otherwise, including without limitation any implied warranty or condition of merchantability, satisfactory quality or fitness for a particular purpose which are hereby excluded to the fullest extent permitted by law.
9.2 Neither party’s liability: (a) for death or personal injury caused by its negligence or the negligence of its employees or agents; (b) under Part I of the Consumer Protection Act 1987; (c) for breach of any condition as to title or quiet enjoyment implied by section 12 Sale of Goods Act 1979 or section 2 Supply of Goods and Services Act 1982; or (d) for fraud or fraudulent misrepresentation, is excluded or limited by this Agreement, even if any other term of this Agreement would otherwise suggest that this might be the case.
9.3 Subject to clause 9.2, in no event shall either party be liable for any: (i) consequential, indirect, incidental, punitive, or special damages whatsoever; or (ii) for loss of profits; (iii) business interruption; (iv) loss of business information; or (v) loss of goodwill or reputation and the like, arising out of or in connection with this Agreement, even if such party has been advised of the possibility of such damages.
9.4 Subject to clause 9.2, Nightkey’s total aggregate liability under this Agreement (whether such liability arises due to negligence, breach of contract, misrepresentation or for any other reason) shall not exceed the total amount paid or payable by the Partner to Nightkey under this Agreement in the 3 months immediately preceding the event giving rise to the claim.
10.1 Each party acknowledges that, whether by virtue of and in the course of this Agreement or otherwise, it may receive or otherwise become aware of information relating to the other party’s clients, Partners, businesses, business plans, finances, technology or affairs, which information is proprietary and confidential to the other party (Confidential Information).
10.2 Each party undertakes to maintain and procure the maintenance of the confidentiality of Confidential Information at all times and to keep and procure the keeping of all Confidential Information secure and protected against theft, damage, loss or unauthorised access, and not at any time, whether during the Term of this Agreement or at any time thereafter, without the prior written consent of the owner of the Confidential Information, directly or indirectly, to use, disclose, exploit, copy or modify any Confidential Information, or authorise or permit any third party to do the same, other than for the sole purpose of the performance of its rights and obligations under this Agreement.
10.3 The terms of and obligations imposed by this clause 10 shall survive the variation, renewal or termination of this Agreement but shall not apply to any Confidential Information which:
a) at the time of receipt by the recipient is in the public domain;
b) subsequently comes into the public domain through no fault of the recipient, its officers, employees or agents;
c) is lawfully received by the recipient from a third party on an unrestricted basis:
d) is already known to the recipient before receipt pursuant to this Agreement; or
e) is disclosed in confidence to a professional adviser of the recipient or is required by law, regulation or order of a competent authority (including any recognised investment exchange) to be disclosed by the recipient.
11.1 Nightkey will not be liable to the Partner for any failure or delay in performance of any of its obligations under this Agreement arising out of any event or circumstances beyond the reasonable control of Nightkey.
11.2 All notices (including Invoices from Nightkey) must be in English, in writing, addressed to the other party’s primary contact and sent: (a) by first class post to the recipient party’s current registered postal address; (b) to such recipient party’s email address; or (c) to such other address, in each case as either party has notified the other in accordance with this clause. All notices shall be deemed to have been received: (i) for post, two Business Days after sending if the Partner is based in the UK or five Business Days after sending if the Partner based outside of the UK; and (ii) for email, on the day on which the email is validly sent.
11.3 No modification or variation of this Agreement (or any document entered into pursuant to or in connection with this Agreement) shall be valid unless it is in writing and either: (a) signed by or on behalf of each of the parties to this Agreement; or (b) agreed by email by or on behalf of each of the parties to this Agreement.
11.4 The failure of either party to enforce or to exercise at any time or for any period of time any term of or any right pursuant to this Agreement does not constitute, and shall not be construed as, a waiver of such term or right and shall in no way affect that party’s right later to enforce or to exercise it.
11.5 Nothing in this Agreement is intended to or shall operate to create a partnership or joint venture of any kind between the parties or to authorise either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other party in any way.
11.6 This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and permitted assigns. Neither party may assign either this Agreement or any of its rights, interests or obligations hereunder, except for any assignment: (i) made in connection with any business combination transaction, whether carried out as a sale of assets, merger, sale of stock or any other combination thereof or similar transaction, by such party; or (ii) made to a subsidiary or parent company of a party, without the prior written approval of the other party.
11.7 This Agreement supersedes all prior agreements, arrangements and understandings between the parties and constitutes the entire agreement between the parties relating to the subject matter contained within this Agreement. The Partner warrants to Nightkey that it has not been induced to enter into this Agreement by any prior representations whether oral or in writing, except as specifically contained in this Agreement. The Partner shall not have any remedy in respect of any untrue statement made by Nightkey on which the Partner relied in entering into this Agreement (unless such untrue statement was made fraudulently) and the Partner’s only remedies shall be for breach of contract as provided for in this Agreement.
11.8 If any term of this Agreement is found to be illegal, invalid or unenforceable under any applicable law, such term shall, insofar as it is severable from the remaining terms, be deemed omitted from this Agreement and shall in no way affect the legality, validity or enforceability of the remaining terms provided that if any provision of this Agreement is so found to be invalid or unenforceable but would be valid or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it valid.
11.9 To the extent that there is any conflict between these Terms and Conditions, the Partnership Form or any addenda to the Partnership Form, these documents shall prevail in the following order; (i) addenda (ii) Partnership Form (iii) Terms and Conditions, unless otherwise mutually agreed between the parties.
11.10 Provisions of this Agreement which either are expressed to survive its termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such termination.
11.11 This Agreement shall be construed in accordance with and governed by the laws of England. The parties agree that any dispute or claim in connection with this Agreement shall be brought exclusively in the courts of England and expressly waive any objection they may have to such jurisdiction and venue.