These terms (SaaS Terms) are between Advisr Technologies Limited, Avebury House, 6 St Peter Street, Winchester, Hampshire, England, SO23 8BN, company no. 10275423 (Advisr Technologies, we), and you (the Client, your) as per the details submitted in Step 1 of this registration process. This Agreement sets forth the terms and conditions of your use of all Advisr Technologies’ products and services (collectively, the Services).
Your attention is particularly drawn to this box and the provisions of clause 8.2.
You are responsible for providing accurate and up to date information about your products to Advisr Technologies in accordance with your service level. We will then upload this information to the applicable Application.
Each week you will receive an automated email asking you to confirm that your product data is correct. If you fail to provide this confirmation, we may have to suspend the Services to you and consumers’ access to your product data in the applicable Application. This is to protect both of us, to ensure that consumers do not receive incorrect or out of date information regarding your products.
Advisr Technologies has developed a software solution which enables subscribers to provide an information matching service to consumers. The software solution allows consumers to scan the barcodes or select items from the subscribers’ menus or product lists to determine the content of those items and if the item suits their pre-selected individual preferences.
The Client wishes Advisr Technologies to make its solution available to Client’s customers by including the Client’s products and/or by using the Client’s brand colours.
Advisr Technologies has agreed to provide and the Client has agreed to subscribe to the software solution subject to the terms and conditions of this agreement – outlined and agreed in the Service Confirmation.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Application: the mobile device application developed and owned by Advisr Technologies Ltd which shall contain the Client Product Data and be presented to End Users with the Client’s name and Client Marks in accordance with the agreed Service Level (detailed in the Service Confirmation which will follow registration and acceptance of these terms), through which End Users may scan the barcode of the Client’s products or select items from the Client’s menus or product lists;
Application Store: the iTunes App Store, and/or the Google Play App Store and/or other such service allowing for the downloading of the Application as may be available from time to time;
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly;
Client Marks: the visual marks, logos, colours, branding and font of the Client provided by the Client to Advisr Technologies to use within the Application in accordance with the Service Level;
Client Product Data: all product text, information, data, and images, in whatever medium or form, provided by the Client for the purpose of inclusion within or updating of the Application, including but not limited to products, menus, promotions and offers;
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 11.5;
Controller: as defined under the Data Protection Legislation;
Data Protection Legislation: means any law, statute, declaration, degree, directive, legislative enactment, order, ordinance, regulation or other binding restriction which relates to the protection of individuals with regards to the Processing of Personal Data to which a party is subject, including:
(i) prior to 25 May 2018, the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003; and
(ii) From 25 May 2018 onwards, the GDPR (or in the event the GDPR is no longer directly applicable in England and Wales, all legislation enacted in England and Wales in respect of protection of Personal Data) and the Privacy and Electronic Communications (EC Directive) Regulations 2003;
Data Subject: means an identifiable natural person, someone who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
Effective Date: the date the Service Confirmation is provided to the Client;
End Users: the persons who use a mobile device to download and/or use the Application. End Users may be members of the general public who use the Application for personal use, or the employees, workers or agents of the Client;
End User Data: the data inputted or created by End Users for the purpose of using the Application, including the End User’s Personal Data, Profile Data and Usage Data;
Fees: the fees the Client is required to pay Advisr Technologies for the Services as referred to in Clause 9 and as set out in the Service Confirmation;
GDPR: means Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data;
Guidance: the guidance and notes made available to the Client and the End Users by Advisr Technologies online via the Website and the Application which sets out a description of the Services, the Application and the user instructions for the Services and Application;
Initial Subscription Term: the initial term of this agreement as set out in the Service Confirmation;
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trade marks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Loss: means costs, expenses, damages and losses (whether direct or indirect), including interest, fines, legal and other professional fees and expenses;
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day;
Open-Source Software: any software licensed under any form of open-source licence meeting the Open Source Initiative’s Open Source Definition (set out at www.opensource.org) or any libraries or code licensed from time to time under the General Public Licence (as described by the Free Software Foundation and set out at www.gnu.org), or anything similar, included or used in, or in the development of, the Services or the Software, or with which the Services or the Software is compiled or to which it is linked;
Personal Data: means any information relating to a Data Subject;
Process: means any operation or set of operations which is performed on Personal Data or on sets of Personal Data, whether or not by automated means, such as collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction and “Processed” and “Processing” shall be construed accordingly;
Profile Data: information inputted into the Application by the End User to build their profile, including all profile settings;
Renewal Period: the period described in clause 14.1;
Registration Requirements: means such requirements as are communicated by Advisr Technologies to the Client pertaining to the setting up of the Client’s account with Advisr Technologies;
Services: the subscription services provided by Advisr Technologies to the Client under this agreement via the Website and the Application in accordance with the Service Level, as more particularly described in the Service Confirmation;
Service Level: the level of service provided by Advisr Technologies as selected by the Client either through direct communication with Advisr Technologies or via the Website (under development) and as confirmed in the Service Confirmation, being either Bronze, Silver, Gold or Platinum level;
Service Confirmation: the written confirmation signed by Advisr Technologies and the Client confirming the Service Level, Fees and the Initial Subscription Term;
Service Level Agreement: the written documentation issued by Advisr Technologies to the Client containing details of the applicable version of the Application, Fees and Payment Schedules and details concerning operational management (including management of data);
Software: the online software applications and the Application provided by Advisr Technologies as part of the Services;
Subscription Term: has the meaning given in clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods);
Support Services: the support, product and incident management services provided by Advisr Technologies to the Client in accordance with the Service Level and as more particularly described in the Service Confirmation;
Usage Data: the results and recommendations generated by the Application specifically for the End User;
Virus: 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; and
Website: www.advisrtech.com or such other website address as may be notified to the Client from time to time.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.7 The word “including” means “including without limitation”.
1.8 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
1.9 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
1.10 A reference to writing or written includes communications through the Website but not e-mail.
1.11 References to clauses and schedules are to the clauses and schedules of this agreement; references to paragraphs are to paragraphs of the relevant schedule to this agreement.
2. AGREEMENT AND SUBSCRIPTION
2.1 The Agreement between Advisr Technologies and the Client shall comprise:
(a) these SaaS Terms;
(b) the Service Confirmation;
(c) and the Service Level Agreement.
In the event of any inconsistency between the above documents, each takes precedence over each document subsequent in the list. No other document or terms and conditions will apply to the Agreement unless Advisr Technologies has expressly agreed so in writing.
2.2 The Agreement shall come into effect when Advisr Technologies provides the Service Confirmation, following the Client’s on-line acceptance of these SaaS Terms and the Client’s selection of the Service Level directly with Advisr Technologies or via the Website (under development).
2.3 Notwithstanding the Commencement Date, Advisr Technologies shall not be obliged to provide the Services until the Client has completed the Registration Requirements.
2.4 Subject to the Client paying the Fees, Advisr Technologies hereby grants to the Client a non-exclusive, non-transferable right during the Subscription Terms:
(a) to permit the Client and End Users to use the Services and the Guidance during the Subscription Term solely for the purpose of downloading and running the Application to scan the barcodes and/or select menu items/choices through the Application of the Client’s food and drink products;
(b) to provide the Services, solely as integrated into the Application, to End-Users and to permit those Services and the Application to be used in association with the Client Marks, in accordance with the Service Level, and containing the Client Product Data; and
(c) to promote the Application incorporating the Services to prospective and actual End-Users.
2.5 The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and Advisr Technologies reserves the right, without liability or prejudice to its other rights to the Client, to disable the Client's access to any material that breaches the provisions of this clause.
2.6 The Client shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, download, or distribute all or any portion of the Software and/or Guidance (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services and Guidance in order to build a product or service which competes with the Services and/or the Guidance; or
(c) subject to clause 22.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Guidance available to any third party except the End Users, or
(d) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Guidance, other than as provided under this clause.
2.7 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Guidance and, in the event of any such unauthorised access or use, promptly notify Advisr Technologies.
2.8 The rights provided under this clause are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
2.9 Any Open-Source Software provided by Advisr Technologies may be used according to the terms and conditions of the specific licence under which the relevant Open-Source Software is distributed, but is provided "as is" and expressly subject to the disclaimer in Clause 13.2c). Such terms and conditions shall govern such use to the extent that they expressly supersede this agreement.
3.1 Advisr Technologies shall, during the Subscription Term:
(a) provide the Services and Support Services to the Client on and subject to the terms of this agreement; and
(b) enable End-Users to connect via the internet to the Application and to use in accordance with this agreement such of the Services as have been integrated into the Application.
3.3 Advisr Technologies shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
(a) planned maintenance carried out during the maintenance window of 11pm on Thursdays to 2am on Fridays UK time; and
(b) unscheduled maintenance performed outside Normal Business Hours, provided that Advisr Technologies has used reasonable endeavours to give the Client at least 6 Normal Business Hours' notice in advance.
3.4 Advisr Technologies will use commercially reasonable endeavours to provide the Client with the Support Services in accordance with the agreed Service Level.
3.5 From time to time Advisr Technologies may:
(a) modify the Services by issuing updates; and
(b) make new features, functionality, applications or tools available in respect of the Services, whose use may be subject to the Client’s acceptance of further terms and conditions and/or an amendment or addition to the Service Level,
and shall give the Client prompt written notice of material modifications to the Services and such new features, functionality, applications or tools. For clarity, any modification to the Fees shall be addressed under Clause 9.5.
4. APPLICATION AND END USER PERMISSIONS
The Application is freely downloadable by any potential End User from the Application Stores. The Client agrees not to attempt to distribute copies of the Application itself but to direct all potential End Users to the Application Stores to download the Application.
5. END USER DATA
5.1 The parties acknowledge and agree that the End User Data shall belong to the relevant End User.
(a) the right to extract and use all End User Data on an anonymised basis to complete analysis or reports; and
(b) the right to share End User Data with the Client, at the sole discretion of Advisr Technologies.
5.3 The Client’s right to access End User Data, if at all, shall depend upon the Service Level and will be as further outlined in the Service Confirmation.
6. DATA PROTECTION AND DATA PROCESSING
6.1 The parties acknowledge and agree that, in respect of any Personal Data Processed under this Contract, Advisr Technologies shall be the Controller.
6.2 Advisr Technologies warrants and undertakes to the Client that it shall comply with its obligations under the Data Protection Legislation in relation to the Processing of Personal Data under this Contract.
7 ADVISR TECHNOLOGIES’ OBLIGATIONS
7.1 Advisr Technologies undertakes that the Services will be performed substantially in accordance with the Service Level and with reasonable skill and care.
7.2 When updates to and/or new Client Product Data is provided to Advisr Technologies in accordance with Clause 8.1(b), Advisr Technologies shall ensure that this Client Product Data is added to the applicable Application in accordance with the timings detailed in the Service Confirmation.
7.3 The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Advisr Technologies' instructions, or modification or alteration of the Services by any party other than Advisr Technologies or Advisr Technologies' duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Advisr Technologies will, at its expense, use reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, Advisr Technologies:
a) does not warrant that the Client's use of the Services will be uninterrupted or error-free; or that the Services, Guidance and/or the information obtained by the Client through the Services will meet the Client's requirements; and
b) is not responsible 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, and the Client acknowledges that the Services and Guidance may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4 This agreement shall not prevent Advisr Technologies from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.5 Advisr Technologies warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
8 CLIENT’S OBLIGATIONS
8.1 The Client shall:
a) provide Advisr Technologies with:
(aa) all necessary co-operation in relation to this agreement; and
(bb) all necessary access to such information as may be required by Advisr Technologies;
in order to provide the Services, including but not limited to Client Product Data, Client Marks, security access information and configuration services;
b) provide all updates, modifications or deletions to the Client Product Data to Advisr Technologies in accordance with the processes as advised by Advisr Technologies from time to time, for the purposes of updating the Application, as soon as the Client becomes aware of the same and in any event within 4 hours of any update, modification or deletion;
c) comply with all applicable laws and regulations with respect to its activities under this agreement, including but not limited to the following:
(aa) FoodAdvisr: Regulation (EU) No 1169/2011, the Food Information Regulations 2014 and any other applicable laws concerning the labelling and sales of food and drink products;
d) carry out all other Client responsibilities set out in this agreement in a timely and efficient manner, including the payment of the Fees. In the event of any delays in the Client's provision of such assistance as agreed by the parties, Advisr Technologies may adjust any agreed timetable or delivery schedule as reasonably necessary;
e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Advisr Technologies, its contractors and agents to perform their obligations under this agreement, including the Services;
f) shall, and ensure that its authorised employees or agents shall, keep confidential and not share with any third party any 'PIN', 'ID' or similar password (if applicable) that it is provided with to access any portal or online service for uploading Client Product Data; and
g) shall, and shall procure that its authorised employees or agents shall, use due care and diligence to upload Client Product Data to any portal or online service and avoid introducing any software virus or other contaminant (including any bugs, worms, logic bombs, Trojan horses or any other self-propagating or other such program) that may infect or cause damage to any portal or online service.
8.2 Where the Client receives an email or other communication from Advisr Technologies requesting that the Client confirm that any part or all of the Client Product Data is correct, the Client shall respond as soon as possible and in any event within 4 hours of receiving such communication. In the event that the Client fails to respond within such time frame or at all, Advisr Technologies shall be entitled to suspend the Services and End Users’ access to the Application for such period as Advisr Technologies considers necessary and until Advisr Technologies is satisfied that the Client has reasonably responded to the communication.
9.1 The Client shall pay Advisr Technologies the Fees in connection with the receipt of the Services.
9.2 The Fees shall be invoiced in accordance with the Service Confirmation and Service Level Agreement.
9.3 If Advisr Technologies has not received payment in accordance with the Service Confirmation/Level Agreement and/or by the due date for payment, and without prejudice to any other rights and remedies of Advisr Technologies:
a) Advisr Technologies may, without liability to the Client, disable the Client's account and access to all or part of the Services and Advisr Technologies shall be under no obligation to provide any or all of the Services to the Client and the End Users while the invoice(s) concerned remain unpaid; and
b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 2% over the then current base lending rate of Advisr Technologies' bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
9.4 All amounts and Fees stated or referred to in this agreement:
a) shall be payable in pounds sterling;
b) are, subject to clause 13.4b) non-cancellable and non-refundable;
c) are exclusive of value added tax, which shall be added to Advisr Technologies' invoice(s) at the appropriate rate.
9.5 Advisr Technologies reserves the right to make reasonable increases to the Fees at any time at its sole discretion.
10 PROPRIETARY RIGHTS
10.1 The Client acknowledges and agrees that Advisr Technologies and/or its licensors own all Intellectual Property Rights in the Services and the Guidance. Except as expressly stated herein, this agreement does not grant the Client any rights to, or in, patents, copyright, database right, design rights (whether registered or unregistered), trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Guidance.
10.2 The Client (or its licensors) shall own all Intellectual Property Rights in and to all of the Client Product Data and Client Marks and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Client Product Data and the Client Marks.
10.3 The Client hereby grants to Advisr Technologies a non-exclusive, non-transferable right during the Subscription Term to use the Client Product Data and Client Marks for the sole purpose of enabling Advisr Technologies to provide the Services to the Client and produce the Application solely in accordance with this agreement.
10.4 The Client acknowledges and agrees that:
a) Advisr Technologies may include the Client’s name and/or the Client Marks in the Application and any accompanying Guidance;
b) Advisr Technologies may include the Client’s name and/or the Client Marks in a list of Advisr Technologies’ Clients in any medium or in any link to the Client’s website; and
c) Advisr Technologies may refer to the Client, orally or in writing, as a Client of the Services for promotional, marketing and financial reporting purposes.
10.5 Advisr Technologies confirms that it has all the rights in relation to the Services and the Guidance that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
11.1 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 be deemed to include information that:
a) is or becomes publicly known other than through any act or omission of the receiving party;
b) was in the other party's lawful possession before the disclosure;
c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
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.
11.2 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.
11.3 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.
11.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.5 The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Advisr Technologies' Confidential Information.
11.6 Advisr Technologies acknowledges that the Client Product Data is the Confidential Information of the Client.
11.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including any relevant securities exchange), any court or other authority of competent jurisdiction.
11.8 The above provisions of this clause 11 shall survive termination of this agreement, however arising.
12.1 The Client shall defend, indemnify and hold harmless Advisr Technologies against claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with the Client Product Data, the Client Marks and the Client's use of the Services and/or Guidance provided that:
a) the Client is given prompt notice of any such claim;
b) Advisr Technologies provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client's expense; and
c) the Client is given sole authority to defend or settle the claim.
12.2 Advisr Technologies shall have the right to defend the Client, its officers, directors and employees against any claim that the Services or Guidance infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amount up to and including [specified in the Service Confirmation] awarded against the Client in judgment or settlement of such claims, provided that:
a) Advisr Technologies is given prompt notice of any such claim;
b) the Client provides reasonable co-operation to Advisr Technologies in the defence and settlement of such claim, at Advisr Technologies' expense; and
c) Advisr Technologies is given sole authority to defend or settle the claim.
12.3 In the defence or settlement of any claim, Advisr Technologies may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 5 Business Days' notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
12.4 In no event shall Advisr Technologies, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
a) a modification of the Services or Guidance by anyone other than Advisr Technologies; or
b) the Client's use of the Services or Guidance in a manner contrary to the instructions given to the Client by Advisr Technologies; or
c) the Client's use of the Services or Guidance after notice of the alleged or actual infringement from Advisr Technologies or any appropriate authority.
12.5 The foregoing and clause 13.4b) state the Client's sole and exclusive rights and remedies, and Advisr Technologies' (including Advisr Technologies' employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
13 LIMITATION OF LIABILITY
13.1 This clause 13 sets out the entire financial liability of Advisr Technologies (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:
a) arising under or in connection with this agreement;
b) in respect of any use made by the Client of the Services and Guidance or any part of them; and
c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
13.2 Except as expressly and specifically provided in this agreement:
a) Advisr Technologies shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Advisr Technologies by the Client in connection with the Services, or any actions taken by Advisr Technologies at the Client's direction;
b) Advisr Technologies makes no warranty or representation that the Services comply with any law or regulation on the labelling of food products and the Client assumes sole responsibility for compliance with the same;
c) 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; and
d) the Services and the Guidance are provided to the Client on an "as is" basis.
13.3 Nothing in this agreement excludes the liability of Advisr Technologies:
a) for death or personal injury caused by Advisr Technologies' negligence; or
b) for fraud or fraudulent misrepresentation.
13.4 Subject to clause 13.2 and clause 13.3:
a) Advisr Technologies shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, 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) Advisr Technologies' total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the lesser of [detailed in the Service Confirmation] or the total Fees paid during the 12 months immediately preceding the date on which the claim arose.
14 TERM AND TERMINATION
14.1 This agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
b) otherwise terminated in accordance with the provisions of this agreement;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
14.2 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
a) the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
b) the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
c) the other party repeatedly breaches any of the terms of this agreement 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 this agreement;
d) the other 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 ;
e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
i) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
j) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
k) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.2d) to clause 14.2j) (inclusive);
l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
m) there is a Change of Control of the other party.
14.3 On termination of this agreement for any reason:
a) all licences granted under this agreement shall immediately terminate and the Client’s access to and right to use the Services shall end;
b) each party shall return and make no further use of any equipment, property, Guidance and other items (and all copies of them) belonging to the other party;
c) Advisr Technologies may destroy or otherwise dispose of any of the End User Data in its possession unless Advisr Technologies receives, no later than ten days after the effective date of the termination of this agreement, a written request for the delivery to the Client of the then most recent back-up of the End User Data. Advisr Technologies shall use reasonable commercial endeavours to deliver the back-up to the Client within 30 days of its receipt of such a written request, provided that the Client 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 Client shall pay all reasonable expenses incurred by Advisr Technologies in returning or disposing of End User Data; and
d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
15 FORCE MAJEURE
Advisr Technologies shall have no liability to the Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (whether involving the workforce of Advisr Technologies 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, provided that the Client is notified of such an event and its expected duration.
If there is an inconsistency between any of the provisions in the main body of this agreement and the Service Confirmation and/or Service Level Agreement, the provisions in the main body of this agreement shall prevail.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
19 RIGHTS AND REMEDIES
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
20.2 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.
21 ENTIRE AGREEMENT
21.1 The agreement comprises the Client’s acceptance of these Terms, the Service Confirmation and the Service Level Agreement and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
21.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
22.1 The Client shall not, without the prior written consent of Advisr Technologies, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
22.2 Advisr Technologies 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.
23 NO PARTNERSHIP OR AGENCY
Nothing in this agreement 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).
24 THIRD PARTY RIGHTS
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.
25.1 Any notice required to be given under this agreement 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 this agreement, or such other address as may have been notified by that party for such purposes.
25.2 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.
26 GOVERNING LAW
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
We will use your personal data to process any requests you send us for goods or services. We may aggregate data relating to your product and menu preferences (by store and/or product) on an anonymised basis and share this with third parties in order to help food producers and retailers better understood customer requirements.
If you are using a special edition of the App made in conjunction with a named retailer, producer and/or dining business, you also agree that we may share your personal data solely with the relevant retailer, producer and/or dining business so that they can better provide their products in which you have expressed an interest.
By using our site, you consent to such processing and you warrant that all data provided by you is accurate.
Our Acceptable Use Policy