Parties |
|
| (1) | Food Alert Limited incorporated and registered in England and Wales with company number 02490317 whose registered office is at Kings Court, Water Lane, Wilmslow, Cheshire, United Kingdom, SK9 5AR (the Supplier); and |
| (2) | Third party authorised user. |
| 1. | Background |
| 1.1 | The Supplier has entered into a Software as a Service Subscription Agreement with Third party authorised user (the Customer) (the Software as a Service Subscription Agreement) pursuant to which the Supplier has agreed to provide to the Customer with its Smart Retail software application (the Services). |
| 1.2 | The Software as a Service Subscription Agreement permits the Customer to allow certain of its own suppliers to have access to the Services for the purposes of uploading information that such suppliers have agreed to provide to the Customer. |
| 1.3 | It is a condition of the Software as a Service Subscription Agreement that any of its suppliers that the Customer wishes to have access to Services enter into these Third Party Authorised User Terms of Use. |
| 1.4 | The Third Party Authorised User is a supplier of the Customer who the Customer wishes to have access to the Services, and accordingly the Third Party Authorised User has agreed to enter into these Third Party Authorised User Terms of Use. |
| 2. | Interpretation |
| 2.1 | The definitions and rules of interpretation in this clause apply in these Terms of Use. |
| Authorised Users means those employees, agent and independent contractors of the Third Party Authorised User who are authorised by the Third Party Authorised User to use the Services, as further described in clause 4.2.4. | |
| Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. | |
| Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices. | |
| 2.2 | Clause, schedule and paragraph headings shall not affect the interpretation of these Terms of Use. |
| 2.3 | A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). |
| 2.4 | A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established. |
| 2.5 | Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular. |
| 2.6 | Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders. |
| 2.7 | A reference to a statute or statutory provision is a reference to it as it is in force as at the date of these Terms of Use. |
| 2.8 | A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of these Terms of Use under that statute or statutory provision. |
| 2.9 | A reference to writing or written includes faxes but not e-mail. |
| 2.10 | References to clauses and schedules are to the clauses and schedules of these Terms of Use; references to paragraphs are to paragraphs of the relevant schedule to these Terms of Use. |
| 3. | Term |
| 3.1 | Subject to earlier termination pursuant to clause 7, the Third Party Authorised User shall be permitted to use the Services for so long as the Software as a Service Subscription Agreement remains in force and the Third Party Authorised User is nominated by the Customer as a party that it wishes to have access to the Services. |
| 4. | Use of Services |
| 4.1 | Subject to the restrictions set out in this clause 4 and the other terms and conditions of these Terms of Use, the Supplier hereby grants to the Third Party Authorised User a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Term solely for the purpose of satisfying the Third Party Authorised User’s obligation to provide information to the Customer. |
| 4.2 | In relation to the Authorised Users, the Third Party Authorised User undertakes that: |
| 4.2.1 | the maximum number of Authorised Users that it authorises to access and use the Services shall not exceed 10 persons; |
| 4.2.2 | it will not allow or suffer any Authorised User account to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services; |
| 4.2.3 | each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed no less frequently than quarterly and that each Authorised User shall keep his password confidential; |
| 4.2.4 | it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 5 Business Days of the Supplier's written request at any time or times; |
| 4.2.5 | it shall terminate the account of any person who ceases (for whatever reason) to be an Authorised User; |
| 4.2.6 | it shall permit the Supplier to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Third Party Authorised User's normal conduct of business; |
| 4.2.7 | it shall be entirely responsible for the legality, reliability, integrity, accuracy and quality of all information uploaded by it on to the Services; |
| 4.2.8 | if any of the audits referred to in clause 4.2.5 reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier's other rights, the Third Party Authorised User shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual |
| 4.3 | The Third Party Authorised User shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that: |
| 4.3.1 | is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; |
| 4.3.2 | facilitates illegal activity; |
| 4.3.3 | depicts sexually explicit images; |
| 4.3.4 | promotes unlawful violence; |
| 4.3.5 | is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or |
| 4.3.6 | in a manner that is otherwise illegal or causes damage or injury to any person or property; |
| and the Supplier reserves the right, without liability or prejudice to its other rights to the Third Party Authorised User, to disable the Third Party Authorised User's access to any material that breaches the provisions of this clause. | |
| 4.4 | The Third Party Authorised User shall not: |
| 4.4.1 | except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties: |
| (a) and except to the extent expressly permitted under these Terms of Use, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Services (as applicable) in any form or media or by any means; or | |
| (b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services; or | |
| 4.4.2 | access all or any part of the Services in order to build a product or service which competes with the Services; or |
| 4.4.3 | except as permitted by these Terms of Use, use the Services to provide services to third parties; or |
| 4.4.4 | subject to clause 8.6, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services available to any third party except the Authorised Users. |
| 4.5 | The Third Party Authorised User shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier. |
| 4.6 | The Third Party Authorised User hereby authorises the Supplier to maintain, back up, make available to the Customer through the Services and otherwise use at its discretion (subject to the terms of the Software as a Service Subscription Agreement) any information uploaded by the Third Party Authorised User on to the Services. |
| 4.7 | The Third Party Authorised User may access the Services to download and use any information uploaded by it on to the Services. |
| 4.8 | The rights provided under this clause 4 are granted to the Third Party Authorised User only, and shall not be considered granted to any subsidiary or holding company of the Third Party Authorised User. |
| 5. | Third Party Authorised User's obligations |
| 5.1 | The Third Party Authorised User shall: |
| 5.1.1 | provide the Supplier with all necessary co-operation in relation to these Terms of Use; |
| 5.1.2 | comply with all applicable laws and regulations with respect to its use of the Services; |
| 5.1.3 | carry out all other Third Party Authorised User responsibilities set out in these Terms of Use in a timely and efficient manner; |
| 5.1.4 | ensure that the Authorised Users use the Services in accordance with the terms and conditions of these Terms of Use and shall be responsible for and indemnify the Supplier in respect of any loss or liability suffered by it as a result of any Authorised User's breach of these Terms of Use; |
| 5.1.5 | ensure that its network and systems comply with the relevant specifications notified by the Supplier from time to time as being required for the proper use of the Services; and |
| 5.1.6 | be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Services, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Third Party Authorised User's network connections or telecommunications links or caused by the internet. |
| 6. | Proprietary rights |
| 6.1 | The Third Party Authorised User acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. Except as expressly stated herein, these Terms of Use do not grant the Third Party Authorised User any rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services. |
| 7. | Term and termination |
| 7.1 | If any time, the Supplier considers that the Third Party Authorised User may have breached these Terms of Use, the Supplier may suspend the Third Party Authorised User’s access to the Services for such period as the Supplier considers appropriate to allow it to investigate such potential breach. The Supplier shall notify the Third Party Authorised User of any such suspension, and of any removal of such suspension. |
| 7.2 | Without affecting any other right or remedy available to it, the Supplier may terminate these Terms of Use with immediate effect by giving written notice to the Third Party Authorised User if: |
| 7.2.1 | the Third Party Authorised User commits a material breach of any other term of these Terms of Use which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so; |
| 7.2.2 | the Third Party Authorised User repeatedly breaches any of the terms of these Terms of Use in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Terms of Use; |
| 7.2.3 | the Third Party Authorised User party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986. |
| 8. | General |
| 8.1 | No variation of these Terms of Use shall be effective unless it is in writing and signed by the parties (or their authorised representatives). |
| 8.2 | No failure or delay by a party to exercise any right or remedy provided under these Terms of Use or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy. |
| 8.3 | Except as expressly provided in these Terms of Use, the rights and remedies provided under these Terms of Use are in addition to, and not exclusive of, any rights or remedies provided by law. |
| 8.4 | If any provision (or part of a provision) of these Terms of Use is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. |
| 8.5 | If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties. |
| 8.6 | The Third Party Authorised User shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms of Use. |
| 8.7 | Nothing in these Terms of Use is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power). |
| 8.8 | These Terms of Use do not confer any rights on any person or party (other than the parties to these Terms of Use and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999. |
| 8.9 | Any notice required to be given under these Terms of Use shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in these Terms of Use, or such other address as may have been notified by that party for such purposes, or sent by fax to the other party's fax number as set out in these Terms of Use or by email to any email address of an Authorised User. |
| 8.10 | A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender). |
| 8.11 | These Terms of Use and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England. |
| 8.12 | Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms of Use or their subject matter or formation (including non-contractual disputes or claims). |
These Terms of Use have been entered into on the date stated at the beginning of them.