1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Authorised Users: those employees of the Customer who are entitled to use the Software through the Website under this agreement.
Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.
Company: e-foods Limited, company number 4631608, of Willow House, Orbital 24, Oldham Street, Denton, Manchester, M34 3SW
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.
Customer: the client or customer of the Company, as identified in the Main Contract
Customer Data: the data inputted into the information fields of the Software by the Customer, by Authorised Users, or on the Customer’s behalf.
Main Contract: the contract between the Company and the Customer for the supply of goods and services to which these terms are appended.
Maintenance and Support: any error corrections, updates and modifications that the Company may provide or perform with respect to the Software and Website, as well as any other support or training services provided to the Customer under this agreement.
Normal Business Hours: 8.00 am to 4.00 pm local UK time, each Business Day.
Software: the e-fresh, e-live or Freshmarkets platforms, including any error corrections, updates, upgrades, modifications and enhancements to them provided to the Customer under this agreement.
Software Specification: the functionality and performance specifications for the Software, as set out in Schedule 2.
Virus: anything 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.
Website: www.e-foods.co.uk or such other website via which the Company may make the Software available to the Customer.
1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.3 Unless the context otherwise requires, words in the singular shall include the plural and in the plural include the singular.
1.4 A reference to writing or written includes e-mail.
2.1 In relation to the Software:
(a) the Company hereby grants to the Customer on and subject to the terms and conditions of this agreement a non-exclusive, non-transferable licence to allow Authorised Users to access the Software through the Website and to use the Software solely for the Customer’s business purposes and for the duration of the Main Contract;
(b) the Customer shall not store, distribute or transmit any Virus, or any material through the Website that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities;
(c) the rights provided under this clause 2.1 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer;
(d) the Customer shall not:
(i) attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Software except to the extent expressly set out in this agreement or as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or
(iii) access all or any part of the Software or Website in order to build a product or service which competes with the Software.
(iv) transfer, temporarily or permanently, any of its rights under this agreement, or
(v) attempt to obtain, or assist third parties in obtaining, access to the Software, other than as provided under this clause 2.1; and
(e) the Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Software and notify the Company promptly of any such unauthorised access or use.
2.2 The Company or its agents shall perform the Implementation, Training and Maintenance and Support services as agreed with the Customer. Any additional resources required by the Customer shall be at the Company’s usual rates or as may be agreed with the Customer.
3. Authorised Users:
3.1 In relation to Authorised Users:
(a) the Customer’s access to the Software shall be limited to its Authorised Users;
(b) the Customer shall maintain a written list of current Authorised Users of the Software, and the Customer shall provide such list to the Company as may be reasonably requested by the Company from time to time;
(c) the Customer shall ensure that each Authorised User keeps a secure password for his use of the Software, and that each Authorised User keeps his password confidential;
(d) the Company or its agents may audit the Software regarding the name and password for each Authorised User. Such audit may be conducted no more than once per quarter, at the Company’s expense, and shall be exercised with reasonable prior notice, in a manner so as to not substantially interfere with Customer’s normal conduct of business; and
(e) if such audit reveals that passwords have been provided to individuals who are not Authorised Users, and without prejudice to the Company’s other rights, the Customer shall promptly disable such passwords and shall not issue any new passwords to such individuals.
4. Customer Data
4.1 The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
4.2 The Company or its agents shall follow its archiving procedures for Customer Data as described in clause 7. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Company or its agents to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Company in accordance with the archiving procedure described in clause 7 below. The Company shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Company to perform services related to Customer Data maintenance and back-up).
5. Company’s obligations
5.1 The Company warrants that the Software will perform substantially in accordance with its operations at the time of introduction to the Customer, but as it is in a process of continuous development does not offer a Software Specification.
5.2 The warranty at clause 5.1 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to the Company’s instructions or modification or alteration of the Software by any party other than the Company or the Company’s duly authorised contractors or agents. If the Software does not conform with the foregoing warranty, the Company will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 5.1. Notwithstanding the foregoing, the Company does not warrant that the Customer’s use of the Software will be uninterrupted or error-free.
5.3 This agreement shall not prevent the Company from entering into similar agreements with third parties, or from independently developing, using, selling or licensing materials, products or services which are similar to those provided under this agreement.
6. Internet connectivity
6.1 The Customer shall, and shall ensure that its Authorised Users shall, make their own arrangements for internet access in order to access the Software and the Website. The Company is not responsible for any unavailability due to the Customer’s failure to connect to the internet.
7. Back-up, archiving and recovery
7.1 The Company or its agents shall perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. The back-up schedule shall include at least weekly full back-ups and daily incremental back-ups. In the event of data loss, the Company or its agents shall provide recovery services to try to restore the most recent back-up.
8. Service availability
8.1 The Company shall use its reasonable endeavours to provide at least a [98%] uptime service availability level (Uptime Service Level). Availability does not include Maintenance Events as described in Schedule 1, Customer-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by the Company to perform services), or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 14.
8.2 Availability measurement shall be carried out by the Company and is based on the monthly average percentage availability, calculated at the end of each calendar month as the total actual uptime minutes divided by total possible uptime minutes in the month. The Company shall keep and shall send to the Customer, on request, full records of its availability measurement activities under this agreement.
9. Proprietary rights
9.1 The Customer acknowledges and agrees that the Company and/or its licensors own all intellectual property rights in the Software and the Website. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, the Website or any related documentation.
9.2 The Company confirms that it has all the rights in relation to the Software that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party; or
(b) was in the other party’s lawful possession before the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
10.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
10.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
10.5 The Company acknowledges that the Customer Data is the Confidential Information of the Customer.
11.1 The Customer shall defend and indemnify the Company against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Software otherwise than in accordance with this agreement, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Company provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
11.2 The Company shall defend the Customer, its officers, directors and employees against any claim that the Software infringes any patent, copyright, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Company is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Company in the defence and settlement of such claim, at the Company’s expense; and
(c) the Company is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of a claim pursuant to clause 11.2 above, the Company may obtain for the Customer the right to continue using the Software, replace or modify the Software so that it becomes non-infringing or, if such remedies are not reasonably available, terminate this agreement without liability to the Customer. The Company shall have no liability if the alleged infringement is based on:
(a) a modification of the Software by anyone other than the Company; or
(b) the Customer’s use of the Software in a manner contrary to the instructions given to the Customer by the Company; or
(c) the Customer’s use of the Software after notice of the alleged or actual infringement from the Company or any appropriate authority.
12. Limitation of liability
12.1 This clause 12 sets out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with this agreement;
(b) in respect of any use made by the Customer of the Software, or the Website or any part of them; and
(c) in respect of any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
12.2 Except as expressly and specifically provided in this agreement all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement.
12.3 Nothing in this agreement excludes the liability of the Company:
(a) for death or personal injury caused by the Company’s negligence; or
(b) for fraud or fraudulent misrepresentation.
12.4 The Company does not warrant that the Customer’s use of the Software or access to it via the Website will be uninterrupted or error-free and the Company shall not be liable for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet.
12.5 Subject to clause 12.3 and clause 12.4:
(a) the Company shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation (whether innocent or negligent), restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this agreement; and
(b) the Company’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to £500.
13.1 The rights granted to the Customer hereunder shall automatically terminate on the termination of the Main Contract.
13.2 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party;
(c) the Company may destroy or otherwise dispose of any of the Customer Data in its possession unless the Company receives, no later than 30 days after the effective date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. The Company shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Company in returning or disposing of Customer Data; and
(d) the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
13.3 The Company reserves the right, without liability or prejudice to its other rights, to immediately disable the Customer’s access to the Software if the Customer is in breach of any provision of this agreement.
14. Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Company or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations, provided that if the period of delay or non-performance continues 30 days, the party not affected may terminate this agreement by giving written notice to the other party.
15.1 This agreement and the Main Contract constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter of this agreement.
15.2 Each party acknowledges that, in entering into this agreement and the Main Contract it has not relied and does not rely on any statement, representation (whether innocent or negligent), assurance or warranty (Representation) of any person (whether a party to this agreement or not) other than as expressly set out in this agreement or the Main Contract.
15.3 The Customer shall not, without the prior written consent of the Company, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
15.4 The Company may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
15.5 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
15.6 No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.7 This agreement does not confer any rights on any person or party (other than the parties to this agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
15.8 This agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
15.9 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered into on the date stated at the beginning of the main contract.
Implementation, Training, Maintenance and Support
The Company shall prepare an Implementation Plan in co-operation with the Customer.
The Company and the Customer shall co-operate in rolling out the Software to the Customer’s Authorised Users in accordance with the roll-out provisions of the Implementation Plan.
The Company shall provide training to such number of the Authorised Users as are specified in, and are otherwise in accordance with, the Implementation Plan.
4. Maintenance Events
4.1 Maintenance of the Software or the Website that may require interruption of the Customers use of the Software or the Website (Maintenance Events) shall wherever possible not be performed during Normal Business Hours. The Company or its agents may perform scheduled maintenance during the daily window of 4-6pm. The Company may interrupt availability of the Software over the Website outside Normal Business Hours for unscheduled maintenance, provided that it has where practicable given the Customer advance notice. Any Maintenance Events which occur during Normal Business Hours, and which were not requested or caused by the Customer, shall be considered downtime for the purpose of service availability measurement. The Company shall at all times endeavour to keep any service interruptions to a minimum.
5.1 Maintenance includes all regularly scheduled error corrections, software updates and those upgrades limited to improvements to features described in the Software Specification. Support for additional features developed by the Company, as requested by the Customer, may be purchased separately at a cost to be agreed by the Company.
5.2 The Company shall maintain and update the Software over the Website. Should the Customer determine that the Software or the Website includes a defect, the Customer may at any time file error reports. During maintenance periods, the Company may, at its discretion, upgrade versions, install error corrections and apply patches to the service. The Company shall use all reasonable endeavours to avoid unscheduled downtime for Software maintenance.
5.3 The Company shall maintain technical support on the most current release of the Software.
6. Technical support services
6.1 The Company shall provide the Customer with technical support services. The Customer personnel named as Customer support representatives in the Implementation Plan (CSRs) shall be authorised to contact the Company for technical support services. The Company shall provide technical support services only to that specified set of CSRs.
6.2 The Company’s technical support shall accept voicemail, e-mail and web form-based incident submittal from CSRs 24 hours a day, seven days a week. The Company technical support call centre shall accept calls during Normal Business Hours within Business Days. The Company shall use reasonable endeavours to process support requests, issue trouble ticket tracking numbers if necessary, determine the source of the problem and respond to the Customer.