INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this License.
| Affiliate | in relation to a party, any entity that directly or indirectly controls, is controlled by, or is under common control with that party. |
| Authorised Users | means those employees, agents and independent contractors of the Customer and any Permitted Affiliate (who are authorised by the Customer to use the Software). |
| Business Day | a day other than a Saturday, Sunday or public holiday in England when banks in the City of London are open for business. |
| Commencement Date | the commencement date for the Services identified in the Contract. If there is no commencement date identified in the Contract the Commencement Date shall be the first date upon which the Customer uses the Services (or any of them). |
| Confidential Information | information that is proprietary or confidential and is either clearly labelled as such or else which should reasonably be considered to be confidential because of its nature and the manner of its disclosure |
| Contract | the separate agreement between E-Foods and the Customer for the supply of services incorporating these Licence Terms. |
| Customer | the person, firm of company identified in the Contract as the customer to which E-Foods will provide access to the Software and supply the Documentation and Software Services. |
| Customer Data | the data inputted by the Customer, Authorised Users, or E-Foods on the Customer’s behalf for the purpose of using the Software or facilitating the Customer’s use of the Software. |
| Documentation | those documents, if any, made available to the Customer by E-Foods (a) online via the Website or (b) provided to the Customer by E-Foods, which in either case set out a specification of the Services and the user instructions for the Software. |
| E-Foods | E-Foods Limited (company number 04631608) whose registered office is at Parklands Court 24 Parklands, Rubery, Birmingham, West Midlands, England, B45 9PZ. |
| Enhancements | the development and implementation of improvements to the Software and or the Services. |
| Intellectual Property Rights | any and all intellectual property rights of any nature anywhere in the world whether registered, registerable or otherwise, including patents, utility models, trade marks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights which subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites |
| License | these terms and conditions, as may be varied from time to time in accordance with clause 15. |
| Permitted Affiliate | an Affiliate of the Customer approved in writing as a recipient of the Software under this Licence and for whose acts and omissions the Customer shall be responsible. |
| Services | the procurement services to be provided by E-Foods to the Customer under the Contract. |
| Software Services | the maintenance and support services to be provided by E-Foods to the Customer in accordance with this Licence relating to the supply and support of the Software as described in Schedule 2. |
| Software | the online software applications identified in the Contract together with any other software applications to be made available from time to time by E-Foods to the Customer via the Website, including all updates, error corrections and Enhancements. |
| Term | the term of the Contract. |
| 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. |
| Website | www.ef-group.co.uk or such other web address as may be notified by E-Foods to the Customer from time to time for the purpose of accessing the Software. |
| Year | a period of 12 months from the Commencement Date and each successive 12 month period. |
1.2 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.
1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.4 A reference to parties means the parties to the Contract collectively and “party” means either of them.
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 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of the Contract.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of the Contract under that statute or statutory provision.
2. AUTHORISED USERS
2.1 Subject to the Customer complying with the terms of this Licence and the Contract, E-Foods hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Software and the Documentation during the Term solely for the purposes of the Customer’s internal business operations.
2.2 The Customer shall and shall procure that the Authorised Users shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software that:
2.2.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.2.2 facilitates illegal activity;
2.2.3 depicts sexually explicit images;
2.2.4 promotes unlawful violence;
2.2.5 is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
2.2.6 in a manner that is otherwise illegal or causes damage or injury to any person or property.
2.3 The Customer shall not and shall procure that the Authorised Users shall not:
2.3.1 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 and conditions, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (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 Software; or
2.3.2 access all or any part of the Software and Documentation in order to build a product or service which competes with the Software and/or the Documentation; or
2.3.3 use the Software and/or Documentation to provide services to third parties without the prior consent of E-Foods; or
2.3.4 license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or Documentation available to any third party except the Authorised Users, or
2.3.5 attempt to obtain, or assist third parties in obtaining, access to the Software and/or Documentation, other than as provided under this clause 2.
2.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify E-Foods.
2.5 The rights provided under this clause 2 are granted to the Customer and its Authorised Users only.
2.6 The Customer is entering into this Licence on behalf of itself and its Authorised Users and shall ensure that its Authorised Users comply with this Licence as though they were a party to them.
3. SOFTWARE, DOCUMENTATION AND SERVICES
3.1 E-Foods shall, during the Term, provide the Software and make available the Documentation to the Customer on and subject to the terms of this Licence.
3.2 E-Foods shall use reasonable endeavours to make the Software available in accordance with the Service Levels in Schedule 1.
3.3 E-Foods will, at no additional cost to the Customer, provide the Customer with the Software Services as set out in Schedule 2.
3.4 E-Foods may suspend access to any or all of the Software, Documentation and the Software Services (Suspension):
3.4.1 after 7 days’ notice of a breach of the terms of this Licence and failure to remedy the breach within that time;
3.4.2 immediately if required to protect the Software;
3.4.3 on the instructions (or reasonably anticipated instructions) of the emergency services;
3.4.4 to deal with a Maintenance Event, in accordance with Schedule 2; or
3.4.5 immediately to the extent necessary to comply with a court order or judgement, or to comply with an order or instruction from a relevant regulatory authority (if any)
and any suspension shall not be a waiver of any right of termination
3.5 Save as expressly set out in the Contract, any Enhancements made specifically at the request of the Customer will be charged and invoiced by E-Foods on a separate basis at its standard development rate (£850 per day per developer). E-Foods will own any such Enhancements.
4. CUSTOMER DATA
4.1 The Customer shall own all right, 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 E-Foods shall follow its archiving procedures for Customer Data as set out in its back-up policy available on the Website or as provided electronically to the Customer by E-Foods, as such document may be amended by E-Foods in its sole discretion from time to time (it being acknowledged that any such policy available online shall take precedence over the form of any other policy which may be provided to the Customer by E-Foods by other means). In the event of any loss or damage to Customer Data, E-Foods shall use reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by E-Foods in accordance with the archiving procedure described in its back-up policy. E-Foods 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 E-Foods to perform services related to Customer Data maintenance and back-up).
4.3 E-Foods shall, in providing the Software, comply with its privacy and security policy relating to the privacy and security of the Customer Data available on the Website https://ef-group.co.uk/privacy-policy/ or as provided electronically to the Customer by E-Foods, as such document may be amended from time to time by E-Foods in its sole discretion (it being acknowledged that any such policy available online shall take precedence over the form of any other policy provided to the Customer by E-Foods by other means).
4.4 In clauses 4.5 ,4.6 and 4.7,
4.4.1 Data Protection Legislation means, as applicable, (i) the Data Protection Act 2018 and (ii) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (iii) any successor legislation to the GDPR or the Data Protection Act 2018GDPR means the General Data Protection Regulation (Regulation (EU) 2016/679), as amended from time to time;
4.4.2 Business Contact Details means the business contact information of personnel engaged by either party (and any Permitted Affiliates), specifically the name, business telephone number, business email address, business postal address and/or the job title of such personnel;
4.4.3 The expressions personal data, controller, processor and process bear the meaning given to that expression in GDPR.
4.5 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
4.6 The parties acknowledge and agree that
4.6.1 each party is a controller for the personal data it processes in connection with the Contract;
4.6.2 each party is responsible for its own compliance with its data protection obligations under Data Protection Laws with regard to its processing of personal data; and
4.6.3 the only personal data to be transmitted between the parties is Business Contact Data.
4.6.4 If a party (the Disclosing Party) discloses Business Contact Data to the other party (the Recipient), the Disclosing Party shall ensure that such disclosure is lawful and the Recipient shall only process the Disclosing Party’s Business Contact Data:
4.6.5 to the extent necessary to perform its obligations under the Contract or as is otherwise necessary to comply with a legal obligation; and
4.6.6 in compliance with Data Protection Legislation.
4.7 In the event that clause 4.6 becomes or will become inaccurate or incomplete before the termination of the Contract, the parties agree to negotiate in good faith to vary these Licence Terms as soon as reasonably practicable in order to: (i) reflect the personal data being transmitted between the parties; and (ii) ensure that the transmission and processing of such personal data complies with all applicable requirements under Data Protection Legislation.
5. THIRD PARTY WEBSITES AND PROVIDERS
5.1 The Customer acknowledges that the Software may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. E-Foods makes no representation or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not E-Foods. E-Foods recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. E-Foods does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Software.
5.2 Solely for the purpose of its own internal business operations, and with the prior consent in writing of E-Foods, the Customer may link to the Website, provided that it does so in a way that is fair and legal and is not likely to damage E-Foods’ reputation or suggest any form of association, approval or endorsement on E-Foods’ part where none exists. Any such link must be to a Website owned and controlled by the Customer or a Permitted Affiliate and must be to the Website homepage and no other part of the Website. E-Foods reserves the right to withdraw linking permission at any time without notice.
6. E-FOODS’ OBLIGATIONS
6.1 E-Foods undertakes that the Software will perform substantially in accordance with the Documentation and with reasonable skill and care and that it will use reasonable endeavours to perform the Software Services in accordance with the Service Levels as set out in Schedule 1.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Software contrary to E-Foods’ instructions or the Documentation, or modification or alteration of the Software by any party other than E-Foods or E-Foods’ duly authorised contractors or agents. If the Software does not conform with the foregoing undertaking, E-Foods will, at its expense, use reasonable 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 6.1. Notwithstanding the foregoing, E-Foods:
6.2.1 does not warrant that the Customer’s use of the Software will be uninterrupted or error-free; or that the Software, Software Services and Documentation and/or the information obtained by the Customer through the Software will meet the Customer’s requirements; and
6.2.2 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 not procured by E-Foods as part of its day to day operations, including the internet, and the Customer acknowledges that the Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 E-Foods warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Licence.
7. CUSTOMER’S OBLIGATIONS
7.1 The Customer shall:
7.1.1 comply with all applicable laws and regulations with respect to its activities under this Licence;
7.1.2 ensure that the Authorised Users use the Software and the Documentation in accordance with the terms and conditions of this Licence and shall be responsible for any Authorised User’s breach of this Licence;
7.1.3 ensure that its network and systems comply with any relevant specifications provided by E-Foods from time to time; and
7.1.4 be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to E-Foods’ data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8. PROPRIETARY RIGHTS
8.1 The Customer acknowledges and agrees that E-Foods and/or its licensors own all Intellectual Property Rights in the Software (including without limitation all Intellectual Property Rights in the platform design and underlying techniques, database designs and the business and logic embedded within the Software), the Documentation and any Enhancements (whether or not made at the request of or paid for by the Customer). Except as expressly stated herein, this Licence does not grant the Customer or any of the Authorised Users 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 Software, the Documentation or in any Enhancements.
8.2 E-Foods confirms that it has all the rights in relation to the Software and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Licence.
9. CONFIDENTIALITY
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Licence. A party’s Confidential Information shall not be deemed to include information that:
9.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
9.1.2 was in the other party’s lawful possession before the disclosure;
9.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
9.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
9.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 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 Licence.
9.3 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 Licence.
9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.5 The Customer acknowledges that details of the Software, and the results of any performance tests of the Software, constitute E-Foods’s Confidential Information.
9.6 E-Foods acknowledges that the Customer Data is the Confidential Information of the Customer.
9.7 This clause 9 shall survive termination of this Licence, however arising.
10 INDEMNITY
10.1 The Customer shall defend, indemnify and hold harmless E-Foods 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 and the Authorised User’s use of the Software and/or Documentation (including any breach of clauses 2.2 and 2.3), provided that:
10.1.1 the Customer is given prompt notice of any such claim;
10.1.2 -Foods provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
10.1.3 the Customer is given sole authority to defend or settle the claim.
10.2 E-Foods shall defend the Customer, its officers, directors and employees against any claim that the Software and/or the Documentation infringes any United Kingdom patent effective as of the Commencement Date, copyright, trade mark, 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:
10.2.1 E-Foods is given prompt notice of any such claim;
10.2.2 the Customer provides reasonable co-operation to E-Foods in the defence and settlement of such claim, at E-Foods’s expense; and
10.2.3 E-Foods is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, E-Foods may procure the right for the Customer to continue using the Software, replace or modify the Software so that they become non-infringing or, if such remedies are not reasonably available, terminate this Licence without any additional liability or obligation to pay damages or other additional costs to the Customer.
10.4 In no event shall E-Foods, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
10.4.1 a modification of the Software or Documentation by anyone other than E-Foods; or
10.4.2 the Customer’s use of the Software or Documentation in a manner contrary to the instructions given to the Customer by E-Foods; or
10.4.3 the Customer’s use of the Software or Documentation after notice of the alleged or actual infringement from E-Foods or any appropriate authority.
10.5 The foregoing and clause state the Customer’s sole and exclusive rights and remedies, and E-Foods’s (including E-Foods’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11 LIMITATION OF LIABILITY
11.1 This clause 11 sets out the entire financial liability of E-Foods (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
11.1.1 arising under or in connection with this Licence;
11.1.2 in respect of any use made by the Customer of the Software and Documentation or any part of them; and
11.1.3 in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Licence.
11.2 Except as expressly and specifically provided in this Licence:
11.2.1 the Customer assumes sole responsibility for results obtained from the use of the Software and the Documentation by the Customer, and for conclusions drawn from such use. E-Foods shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to E-Foods by the Customer in connection with the Software, or any actions taken by E-Foods at the Customer’s direction;
11.2.2 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 Licence;
11.2.3 the Software and the Documentation are provided to the Customer on an “as is” basis; and
11.2.4 E-Foods excludes its liability for any breach of this Licence or any failure of the Software to the fullest extent possible.
11.3 Nothing in the Contract excludes the liability of E-Foods:
11.3.1 for death or personal injury caused by E-Foods’s negligence; or
11.3.2 for fraud or fraudulent misrepresentation.
11.4 E-Foods 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
12 ALLERGEN AND NUTRITIONAL INFORMATION
All food allergen, nutritional and any other information provided as part of the Software is made available on the following basis:
12.1 such information is not intended as legal, regulatory or compliance advice from E-Foods. The Customer is responsible for verifying the information (in particular, all allergen and nutritional information) and ensuring this information, the way the information is used or communicated and any products which display that information comply with applicable food safety, labelling, and hygiene legislation and guidance. Any assumptions E-Foods has made when linking allergen and nutritional information to ingredients must be thoroughly checked by the Customer before publishing this information on its menus or otherwise relying on the same;
12.2 E-Foods is unable to give any warranty as to allergen and nutritional information provided by third party suppliers or companies providing such information and does not accept any liability for any inaccuracies or incorrect information supplied by any such third parties;
12.3 where the Customer has engaged E-Foods or its Affiliates to handle their data entry, unless specific allergen and nutritional information has been supplied by the Customer, E-Foods will use its reasonable endeavours to link the appropriate generic data for products in their raw, uncooked state. However food products are constantly being reformulated and this information may change and E-Foods is unable to guarantee the accuracy of allergen or nutritional information associated with a supplied ingredient or the pre-loaded data that is associated with the store cupboard data; and
12.4 profitability and VAT calculations are estimates only and should be verified by the Customer.
13 TERM AND TERMINATION
This Licence is coterminous with the Contract and shall, therefore, continue in force during the Term. In the event that either party terminates the Contract in accordance with its terms or the Contract expires, this Licence will automatically terminate.
13.1 On termination of this Licence for any reason:
13.1.1 all licences or rights granted to the Customer under it shall immediately terminate;
13.1.2 each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
13.1.3 E-Foods may destroy or otherwise dispose of any of the Customer Data in its possession unless E-Foods receives, no later than ten days after the effective date of the termination of the Licence, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. E-Foods 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 shall pay all reasonable expenses incurred by E-Foods in returning or disposing of Customer Data; and
13.1.4 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.
14 FORCE MAJEURE
E-Foods shall have no liability to the Customer under this Licence if it is prevented from or delayed in performing its obligations under this Licence, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of E-Foods 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. E-Foods will notify the Customer promptly of such an event and its expected duration.
15 VARIATION
E-Foods may vary these Licence Terms on giving to the Customer not less than 14 days’ notice in writing of the proposed changes.
16 WAIVER
No failure or delay by a party to exercise any right or remedy provided under this Licence 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.
17 SEVERANCE
If any provision (or part of a provision) of this Licence is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. 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.
18 ENTIRE AGREEMENT
18.1 This Licence, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
18.2 Each of the parties acknowledges and agrees that in entering into the Licence 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 the Licence or not) relating to the subject matter of the Licence, other than as expressly set out in the Licence.
19 ASSIGNMENT
The Customer shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Licence. E-Foods 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 Licence.
20 THIRD PARTY RIGHTS
This Licence does not confer any rights on any person or party (other than the parties to the Licence and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21 NOTICES
21.1 Any notices required to be given under this Licence shall be in writing and signed by or on behalf of the party sending it. A notice sent by email shall be deemed to be signed for the purposes of this clause if the name of the sender appears in a signature position after the body of the email.
21.2 Any notice referred to in clause 21.1 may be served by delivering it by hand and delivered personally or by first class post or by email.
21.3 Any notice sent by email should be sent to the following email addresses:
E-Foods:
help@ef-group.co.uk for the attention of: Andy North Commercial Director
The Customer:
Any email address identified in the Contract for the Customer or any email address notified by the Customer from time to time for the purpose of receiving communications and/or notices.
21.4 Any notice served by:
21.4.1 personal delivery, shall be deemed served at the time of delivery;
21.4.2 first class post, shall be deemed served at the start of the second Business day after posting;
21.4.3 email shall be deemed served on the day of transmission (or the next Business day if sent after 17:00 in the place of receipt in which case it shall be deemed to be received on the next Business Day in the place of receipt.
21.5 Any party may change any details of its address or email address by notice in the manner described above.
22 GOVERNING LAW AND JURISDICTION
This Licence 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. 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 this Licence or its subject matter or formation (including non-contractual disputes or claims).
– SCHEDULE 1
SERVICE LEVELS (AVAILABILITY) ARRANGEMENTS
1. SERVICE AVAILABILITY
E-Foods shall provide at least a 98.0% uptime service availability level (Uptime Service Level) during normal working hours. This availability refers to an access point on E-Foods hosting provider’s backbone network. It does not apply to the portion of the circuit that does not transit the hosting provider’s backbone network, as the Customer is responsible for its own internet access. Availability does not include Maintenance Events as described in paragraph 1 of Schedule 2, 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 E-Foods to perform the Software Services), or outages or disruptions attributable in whole or in part to force majeure events within the meaning of clause 14 of this Licence.
2. AVAILABILITY MEASUREMENT
Availability measurement shall be carried out by E-Foods 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. E-Foods shall keep and shall send to the Customer, on reasonable request, records of its availability measurement activities under this Licence.
– SCHEDULE 2
MAINTENANCE AND SUPPORT
1. MAINTENANCE EVENTS
1.1 E-Foods will use its reasonable endeavours to ensure that any maintenance that is likely to result in the interruption of access to the Software (Maintenance Events) is not performed during Normal Business Hours (Mon-Fri 9am-5pm excluding UK public holidays). E-Foods may interrupt access to the Software outside Normal Business Hours for scheduled maintenance. E-Foods may interrupt access to the Software to perform emergency maintenance at any time. E-Foods shall at all times endeavour to keep any service interruptions to a minimum.
1.2 E-Foods will, where possible, notify the Customer of any Maintenance Events that may affect the availability of the Software.
2. MAINTENANCE
2.1 Maintenance includes all regularly scheduled error corrections, Software updates and those upgrades limited to improvements to features. Support for additional features developed by E-Foods, as requested by the Customer, may be purchased separately.
2.2 E-Foods shall maintain and update the Software. Should the Customer determine that the Software includes a defect, the Customer may at any time file error reports. During maintenance periods, E-Foods may, at its discretion, upgrade versions, install error corrections and apply patches to the Software. E-Foods shall use all reasonable endeavours to avoid unscheduled downtime for maintenance and shall use its reasonable endeavours to inform the Customer in advance of any planned downtime.
3. SOFTWARE SUPPORT SERVICES
3.1 E-Foods shall provide the Customer with Remote Technical Support (RTS) in connection with the Software. RTS is via e-mail and provided in English only. RTS is available during Normal Business Hours.
3.2 The Customer may submit support requests at any time to itsupport@e-foods.co.uk.
3.3 Responses to such requests shall be within Normal Business Hours.