This Hearth Main Services Agreement (the "Agreement") is entered into between [FULL NEXORA LEGAL ENTITY NAME], provider of the Hearth platform ("Hearth", "we", "us" or "our"), and the client identified in an Order Form referencing this Agreement ("Client", "you" or "your").
This Agreement becomes effective on the effective date stated in the applicable Order Form (the "Effective Date").
This Agreement governs the Client's access to and use of Hearth's restaurant reservation and customer relationship management services (the "Services").
The Services purchased by the Client, applicable Venue or Venues, Trial Period, subscription charges and other Client-specific commercial terms will be specified in one or more Hearth Order Forms. Each Order Form is incorporated into and forms part of this Agreement.
Subject to this Agreement and the applicable Order Form, Hearth grants the Client a limited, non-exclusive, non-transferable and non-sublicensable right during the term of this Agreement to access and use the Services for the Client's internal restaurant operations at the Venue or Venues identified in the applicable Order Form.
The Services are licensed and not sold.
All rights not expressly granted to the Client remain reserved by Hearth and its licensors.
The Client may permit its employees, contractors and other personnel authorised by the Client ("Authorised Users") to access the Services where reasonably necessary for the Client's restaurant operations.
The Client is responsible for:
The Client must promptly notify Hearth if it becomes aware of suspected unauthorised access or compromise of its Hearth account.
The Client will use the Services in accordance with this Agreement, applicable Documentation and applicable law.
The Client is responsible for its own use of the Services and for ensuring that its Authorised Users comply with this Agreement.
Except where expressly permitted by law, the Client must not:
Hearth may make alpha, beta, preview, experimental or early-access functionality ("Beta Services") available to the Client.
Use of Beta Services is optional unless otherwise agreed.
Beta Services may contain defects, incomplete functionality or performance limitations and may be changed or discontinued at Hearth's discretion.
Hearth currently provides a restaurant reservation and guest relationship management platform.
Depending upon the Client's subscription and available functionality, the Services may include:
The Client's specific entitlement is determined by its Order Form and applicable subscription.
Hearth will use commercially reasonable efforts to provide support for the Services through the support channels made available to the Client.
Hearth will also provide generally released updates, fixes and improvements to the Services.
Any enhanced support commitment must be expressly stated in an Order Form or separate agreement.
Hearth will provide reasonable onboarding assistance as applicable to the Client's Services.
This may include account provisioning, Venue configuration, floor-plan digitisation/configuration, tables, services, shifts, reservation settings, booking-widget configuration, users and initial training.
The Client will designate an appropriate person to coordinate onboarding where requested.
The Client must provide accurate information and reasonable cooperation required for Hearth to complete onboarding.
Hearth will not be responsible for onboarding delays materially caused by the Client's failure to provide required information or cooperation.
Where Hearth provides a Trial Period, the applicable Trial Start Date and Trial End Date will be specified in the Client's Order Form.
Unless expressly stated otherwise in the Order Form, the Hearth software subscription charge during the Trial Period is £0.
The Client may cancel the Services at any time during the Trial Period.
The one-month notice requirement applicable to paid subscriptions does not apply during the Trial Period.
If the Client cancels before the Trial End Date, the paid subscription will not commence.
Unless the Client cancels before the Trial End Date, the Services will automatically continue as a paid rolling subscription immediately following completion of the Trial Period.
The applicable subscription price and billing arrangements will be those stated in the Client's Order Form.
By signing the Order Form, the Client acknowledges the Trial End Date, the post-trial subscription price and the automatic conversion arrangement.
Hearth may interoperate with products, platforms or services provided by third parties ("Third-Party Services").
The Client is responsible for maintaining any third-party accounts required to use such integrations and complying with the applicable provider's terms.
Where necessary to provide an integration requested by the Client, the Client authorises Hearth to access, exchange or process information with the applicable Third-Party Service.
Hearth is not responsible for the availability, accuracy, security, performance, pricing, acts or omissions of Third-Party Services outside Hearth's reasonable control.
Information supplied to Hearth by third parties may be displayed or processed through the Services.
Hearth does not warrant the accuracy or completeness of information supplied independently by third parties.
Hearth, Nexora and their applicable licensors retain all right, title and interest in and to:
No ownership rights in Hearth are transferred to the Client.
As between Hearth and the Client, the Client retains its applicable rights in information provided by or collected on behalf of the Client through Hearth ("Client Data").
Client Data may include Venue information and Guest Information.
Hearth does not acquire ownership of the Client's guest database merely because the Client uses Hearth.
"Guest Information" means information relating to guests processed through the Services, which may include:
The Client represents that it has the necessary rights, notices, permissions and lawful basis required to provide Guest Information to Hearth for processing.
The Client grants Hearth a non-exclusive, royalty-free licence to host, store, copy, transmit, process and otherwise use Client Data to the extent reasonably necessary to provide, maintain, secure and support the Services and comply with Hearth's legal obligations.
Each Party will comply with applicable data-protection legislation.
Where Hearth processes personal data on behalf of the Client, the Client will generally act as Controller and Hearth as Processor.
Such processing will additionally be governed by Hearth's applicable Data Processing Agreement ("DPA").
Authorised Hearth personnel and approved service providers may process information from locations outside the United Kingdom.
Where applicable personal data is transferred internationally, Hearth will implement the safeguards required by applicable data-protection law, as further described in the DPA.
Hearth may collect information concerning operation and use of the Services, including feature usage, system performance, error information, device/ application information and audit activity.
Hearth may use such information to provide, secure, analyse and improve the Services.
Hearth may use aggregated or anonymised information that does not identify an individual for analytics, benchmarking, product development and other lawful business purposes.
The Client retains ownership of its names, trademarks, logos, images and other branding.
The Client grants Hearth a limited right to use such materials as reasonably necessary to provide the Services, including displaying Client branding through Client or guest-facing Hearth functionality.
Hearth will not represent the Client as endorsing Hearth in advertising, testimonials or case studies without permission.
Hearth may use ideas, suggestions and product feedback voluntarily provided by the Client or its Authorised Users to develop and improve Hearth without payment or other obligation to the Client.
Following any applicable Trial Period, the Client will pay the subscription fees stated in the Order Form ("Fees").
Unless otherwise stated, Fees are billed monthly.
The Client authorises Hearth and its authorised payment provider to collect Fees using the payment method agreed with the Client.
The Client is responsible for maintaining accurate billing and payment information.
Unless expressly stated otherwise, Fees exclude VAT and other applicable taxes.
The Client is responsible for taxes properly applicable to its purchase of the Services, excluding taxes imposed on Hearth's own income.
Where an undisputed payment becomes overdue, Hearth may notify the Client and provide a reasonable opportunity to remedy the outstanding payment.
Hearth may suspend access to the Services where significant overdue Fees remain unpaid following reasonable notice.
Hearth may change its subscription pricing from time to time.
Hearth will provide an existing Client with at least 30 days' notice before a price increase affecting that Client becomes effective.
No increase will apply retrospectively.
The Client may exercise its ordinary termination right if it does not wish to continue at the revised price.
This Agreement begins on the Effective Date and continues while any Hearth Order Form between Hearth and the Client remains active.
Following any Trial Period, the Client's subscription operates on a rolling basis with no minimum contract period.
The Client is not required to enter into a 12-month, 24-month or other fixed minimum subscription.
There is no standard Early Termination Fee.
Following the Trial Period, either Party may terminate the applicable subscription or this Agreement by giving the other Party at least one month's written notice.
Unless otherwise agreed, termination becomes effective one month from the date valid notice is received.
Fees remain payable through the effective termination date.
Either Party may terminate this Agreement for a material breach by the other Party where the breach remains unremedied following reasonable written notice and an opportunity to remedy it where the breach is capable of remedy.
Hearth may immediately suspend or terminate access where reasonably necessary because of serious fraud, unlawful activity, deliberate security abuse or conduct creating a material risk to Hearth, other clients, Guests or the Platform.
Following termination:
Following termination, Hearth will provide the Client with a reasonable opportunity to request an export of supported Client Data.
Following the applicable retention period, Hearth may delete or anonymise Client Data unless continued retention is required by law.
Hearth provides restaurant technology and does not operate or manage the Client's Venue.
The Client remains responsible for its business operations, including:
The Client is responsible for reviewing and maintaining its Hearth configuration, including:
Hearth may allow Authorised Users to override certain availability, table-assignment, seating or conflict warnings.
The Client remains responsible for operational decisions intentionally made through such overrides.
Hearth may maintain audit logs relating to these actions.
Hearth does not sell, supply, lease, loan or otherwise provide physical hardware or equipment to the Client.
The Client is responsible for obtaining, maintaining and replacing all equipment, internet connectivity and devices necessary to access Hearth.
Hearth may provide recommended specifications or compatibility guidance.
Hearth is not responsible for manufacturer defects, warranties, repairs or replacement of Client-owned equipment.
"Confidential Information" means non-public information disclosed by one Party to the other that is identified as confidential or that reasonably should be understood to be confidential because of its nature or circumstances.
Each Party will:
Confidential Information does not include information that is lawfully public, independently developed without reference to the confidential information, lawfully obtained without confidentiality obligations or approved for disclosure.
A Party may disclose Confidential Information where required by law, subject to legally permissible notice to the other Party.
Each Party represents that it has authority to enter into this Agreement and perform its obligations.
Hearth will use commercially reasonable efforts to provide and maintain the Services.
However, software and internet-based services may experience interruption, defects, maintenance periods or technical failures.
Except where expressly provided in this Agreement or required by law, Hearth does not warrant that the Services will be uninterrupted, completely error-free or suitable for every particular business requirement.
Beta Services are provided for testing and evaluation and may have additional limitations.
Subject to this Agreement, Hearth will defend the Client against a third-party claim alleging that the Client's authorised use of the Hearth Platform infringes that third party's intellectual-property rights.
Where reasonably appropriate, Hearth may:
Subject to applicable law, the Client will be responsible for third-party claims arising from:
An indemnified Party must provide reasonable notice of a claim and reasonable cooperation in its defence.
The indemnifying Party will control the defence and settlement, provided it does not enter into a settlement imposing an admission or material non-monetary obligation upon the indemnified Party without consent.
To the maximum extent permitted by law, neither Party will be liable to the other for indirect or consequential loss arising from this Agreement.
Hearth will not be responsible for losses caused primarily by:
Subject to Section 13.3, each Party's total aggregate liability arising from or relating to this Agreement will not exceed [LIABILITY CAP TO BE CONFIRMED FOLLOWING LEGAL REVIEW].
Nothing in this Agreement excludes or limits liability where doing so would be unlawful, including liability for fraud or fraudulent misrepresentation or death or personal injury caused by negligence where applicable.
The Parties are independent contractors.
Nothing in this Agreement creates a partnership, joint venture, franchise, employment or agency relationship.
Neither Party may assign this Agreement without the other Party's prior written consent, except in connection with a bona fide merger, corporate restructuring, acquisition or sale of substantially all of the relevant business or assets.
Neither Party will be liable for failure or delay caused by circumstances beyond its reasonable control that could not reasonably have been prevented or mitigated, except with respect to payment obligations already due.
Legal notices must be made in writing to the contact details specified in the applicable Order Form or another address subsequently notified by the relevant Party.
Cancellation notices may be provided through Hearth's designated cancellation email address or another written method communicated to the Client.
Hearth will not use the Client's name, logo or trademarks in a testimonial, case study or other material suggesting endorsement without permission.
Unless expressly stated otherwise, this Agreement does not give any person who is not a Party a right to enforce its provisions.
Failure by either Party to enforce a provision does not constitute a waiver of that provision or any subsequent breach.
If any provision is determined to be invalid or unenforceable, the remaining provisions will remain effective.
This Agreement, the applicable Order Form, the DPA and any other expressly incorporated terms constitute the entire agreement between Hearth and the Client concerning the Services.
Where there is a conflict:
Hearth may update this Agreement from time to time.
Hearth will provide existing Clients with at least 30 days' notice of material changes, except where a shorter period is reasonably required because of applicable law, regulation, security requirements or requirements imposed by a critical service provider.
The updated Agreement will remain available at: hearthforrestaurants.com/msa
Continued use of the Services after an updated Agreement becomes effective will constitute acceptance to the extent permitted by applicable law.
Because Hearth clients already have a one-month termination right, a Client that does not wish to continue following a material update may terminate under Section 7.3.
This Agreement may be incorporated into an Order Form executed electronically, including through DocuSign or another recognised electronic-signature or electronic-consent method.
The Client's execution of an Order Form referencing this Agreement constitutes acceptance of this Agreement.
This Agreement and any non-contractual obligations arising from it are governed by the laws of England and Wales.
The courts of England and Wales will have jurisdiction over disputes arising out of or relating to this Agreement, subject to applicable mandatory law.
Headings are provided for convenience and do not affect interpretation.
References to "including" or "includes" mean including without limitation.
References to legislation include amendments, replacements and applicable subordinate legislation.
Words in the singular include the plural and vice versa where the context requires.
"Authorised User" means an individual authorised by the Client to access the Services on its behalf.
"Beta Services" means functionality identified as beta, alpha, preview, experimental, early access or otherwise not generally released.
"Client" means the legal entity identified as the Client in an applicable Order Form.
"Client Data" means information and content submitted to, stored within or otherwise provided to Hearth by or on behalf of the Client.
"Documentation"means Hearth's generally available user documentation, help materials and instructions relating to the Services.
"Effective Date" means the effective date stated in the applicable Order Form.
"Fees" means the amounts payable by the Client for the Services as specified in an Order Form.
"Guest" means an individual who interacts with a Client Venue, including through a reservation, walk-in, waitlist or reservation request.
"Guest Information" has the meaning given in Section 5.3.
"Hearth" means the Hearth restaurant technology platform provided by Nexora [FULL LEGAL ENTITY NAME].
"Order Form" means a Hearth ordering document entered into between Hearth and the Client specifying the applicable Venue, Services, Trial Period, pricing and other commercial terms.
"Services"means the Hearth Reservations & CRM services and related functionality purchased or otherwise made available to the Client under an Order Form.
"Third-Party Services" means products or services supplied by entities other than Hearth that connect to, integrate with or are used in conjunction with the Services.
"Trial Period" means the free trial period specified in the applicable Order Form.
"Venue" means a restaurant or other hospitality location authorised to use Hearth under an applicable Order Form.