This Software as a ServiceAgreement (“SAAS”) is made on the date set out in the Confirmation Order and made between:
(1) Kafoodle Limited incorporated and registered in England and Wales with company number 08849729 whose
registered office is at Fox Court, Suite 3.025/3.026, 14 Gray's Inn Road, London, WC1X 8HN (“Kafoodle”); and
(2) The Customer whose details are set out in the Confirmation Order attached hereto (“Customer”).
TERMS INCORPORATED BY REFERENCE:
This SAAS Agreement incorporates:
· The terms and conditions of this SAAS Agreement set out below; and
· the ConfirmationOrder.
By signing the Confirmation Order the Customer acknowledges that it has read and accepted these terms and conditions herein agreed by it and Kafoodle.
BACKGROUND
(a) Kafoodle has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of menu management and marketing of menu and ingredients to consumers.
(b) The Customer wishes to use Kafoodle service in its business operations with the access and in the number of Licences and Authorised Users as provided in the Confirmation Order.
(c) Kafoodle has agreed to provide and the Customer has agreed to take and pay for Kafoodle software as a service subject to the terms and conditions of this Agreement.
AGREED TERMS
1. INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement:
Authorised User(s): those employees, agents and independent contractors of the Customer or the Customer’s customers (who have entered into a binding agreement with the Customer protecting the commercial interests of Kafoodle on terms no less advantageous to Kafoodle than contained in thisAgreement) all who are authorised by the Customer to use the Services as further described in thisAgreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: The terms of this SAAS Agreement, any commercial, technical, financial and other information, intellectual property or materials of whatever nature and in whatever form or medium (whether written, oral, visual or electronic) disclosed directly or indirectly by either party or its employees, directors, representatives, officers, agents or advisers to the other (whether before or after the date of this SAAS Agreement) in connection with this SAAS Agreement or is received in circumstances in which the receiving party knows or should know that the information is confidential including without limitation any financial and commercial information relating to the business of either party.
Confirmation Order: The confirmation order form signed by the Customer and Kafoodle incorporating the terms and conditions of this Agreement.
Customer Data: the data inputted by the Customer and its Authorised Users for the purpose of using the Services.
DataProtection Legislation means (i) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time)which relates to the protection of individuals with regards to the processing of Personal Data to which a Party is subject, including the General DataProtection Regulation 2016/679 (referred to as “the GDPR”) and the DataProtection Act 2018 (referred to as the “DPA”); and (ii) any code of practice or guidance published by the ICO from time to time.
Data Subject Request means an actual or purported request or notice or complaint from (or on behalf of) a Data Subject exercising his/her rights under the Data Protection Legislation.
Documentation: the documents, menu items, ingredient lists or any related information made available to the Customer by Kafoodle as part of theService or online via subscriber log-in for the platform(s) or such other web address notified by Kafoodle to the Customer from time to time which sets out a description of the Services and the user instructions for the Services and access to the platform(s) that it has subscribed to.
Effective Date: the start date for the Services set out in the Confirmation Order.
EULA: means the terms which apply to theCustomer’s use of the Third Party Tool as set out at Schedule 1.
Fees: the fees payable by the Customer to Kafoodle as set out in the Confirmation Form.
ICO means the Information Commissioner’s Office.
Initial Term:the initial term of this Agreement as set out in the Confirmation Order.
Intellectual PropertyRights: intellectual property rights and industrial property rights of any nature whatsoever including without limitation concepts, ideas, methods, methodologies, procedures, processes, patents, patent applications, copyright, know-how, technical and commercial information (including, without limitation, function, process, system and data models); templates, generalized features of the structure, sequence and organization of software; user interfaces and screen designs; general purpose consulting and software tools, utilities and routines; and logic, coherence and methods of operation of systems, working papers, design (whether registered or unregistered), design rights, internet domain names, database rights, trademarks, service marks or business names, applications to register any of the aforementioned rights, trade secrets and rights of confidence, in each case in any part of the world and whether or not registered or registrable.
Licences: the licences purchased by the Customer as set out in the Confirmation Form.
Normal Business Hours: 8.30 am to 6.30 pm local UK time, each Business Day.
PersonalData has the meaning given in the GDPR and, for the purposes of this Agreement, includes sensitive personal data (i.e. Personal Data that reveals such categories of data as are listed in Article 9(1) of the GDPR).
Support Services Policy: this is Kafoodle’s policy for providing support in relation to the Services as made available at https://support.kafoodle.com or such other website address as may be notified to the Customer from time to time.
Services: the software as a service “SAAS”services provided by Kafoodle and the Third Party Tool to the Customer under this Agreement via the web address for the platform(s) concerned or any other website notified to the Customer by Kafoodle from time to time.
Software: the online software applications and services including the Third Party Tool used by Kafoodle as part of the Services.
Term: has the meaning set out in clause .
“Third Party Request” means a written request from any thirdparty for disclosure of Personal Data where compliance with that request is required or purported to be required by law or regulation.
“Third Party Tool” means the mobile application and web ordering tool provided by Kafoodle which facilitates the ordering of and payment for goods and services from a venue, restaurant or other provider.
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.
2. ORDERS AND ACCEPTANCE
2.1 Customer
(a) an Order will be deemed accepted by Kafoodle if Kafoodle does not reject it, in writing and with specificity, within twelve Business Days of receipt of it or if Kafoodle delivers the Service;
(b) theCustomer will be solely responsible for the accuracy of any Confirmation Order, including, but not limited to, the specification, configuration or other details of the Service required by the Customer;
(c) subject to clause, Customer may not, at any time, cancel or reschedule a Confirmation Order once submitted to Kafoodle.
2.2 Delivery and Acceptance
(a) following acceptance of the Confirmation Order and receipt of any required upfront payments where agreed in a Confirmation Order, Kafoodle shall promptly begin work to create and set up a Customer branded platform and use reasonable endeavours to make it available for testing by the date agreed in the Confirmation Order;
(b) acceptance of the platform shall be deemed to have occurred on whichever is the earliest: (i) Receipt of written acceptance by the Customer; or (ii) live use of the Services by the Customer;
(c) where applicable, following Acceptance of the platform, Kafoodle shall promptly submit the platform for placing on the Apple and Google Play App Stores. If the platform is not approved for placing by an App Store, Kafoodle shall refund any amounts already paid by the Customer for the Service.
3. LICENCES
3.1 In consideration of the Customer paying the Fees, Kafoodle hereby grants to the Customer a non-exclusive, non-transferable right to the Licences to permit the Authorised Users to use the Services during the Term solely for the Customer's or the Authorised Users’ internal business operations. The terms of the EULA applicable to the Customer’s use of the Third Party Tool are set out in Schedule 1.
3.2 In relation to the Authorised Users, the Customer undertakes that:
(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number set out in the Confirmation Order;
(b) it will not allow or suffer any Licences to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services;
(c) each Authorised User shall keep a secure password for his use of the Services, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;
(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to Kafoodle within 5 Business Days of Kafoodle written request at any time or times;
(e) it shall permit Kafoodle to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at the expense of Kafoodle (unless the Customer is in breach of this clause, where it shall be at the Customer’s expense), and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer's normal conduct of business;
(f) if any activity of the Customer reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to other rights of Kafoodle, the Customer shall promptly disable such passwords and Kafoodle shall not issue any new passwords to any such individual;
(g) if any activity of the Authorised User reveal that the Customer has underpaid Fees to Kafoodle, then without prejudice other rights of Kafoodle, the Customer shall pay to Kafoodle an amount equal to 150%of such underpayment (including back payments) as calculated in accordance with the prices set out in the Confirmation Form together with the cost of the audit within 10 Business Days of the date of the relevant audit; and
(h) the Customer shall be liable for all acts or omissions of the Authorised Users as if they were the Customer’s own acts or omissions under this Agreement.
3.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services and Kafoodle reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to any material that breaches the provisions of this clause.
3.4 The Customer shall not, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(a) 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 Services (as applicable) in any form or media or by any means; or
(b) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software/Services; or
(c) copy or reproduce the Software or Services (as applicable) in whole or in part; or
(d) use any part of the Software or Services (as applicable) except as set out in this Agreement;
(e) access all or any part of the Software/Services in order to build a product or service which competes with the Software or Services; or
(f) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Software available to any third party except the Authorised Users without express prior written consent of Kafoodle; or
(g) attempt to obtain, or assist third parties in obtaining, access to the Services and/orSoftware, other than as provided under this clause.
3.5 The Customer shall not permit any unauthorised access to, or use of, the Services and/or the Software.
3.6 The rights provided under this clause are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless explicitly specified in writing or as part of this Agreement.
4. ADDITIONALLICENCES
4.1 Subject to clause , the Customer may, from time to time during any Term, purchase additional Licences in excess of the number set out in the Confirmation Order and Kafoodle shall grant access to the Services to such additional Authorised Users in accordance with the provisions of this Agreement.
4.2 If the Customer wishes to purchase additional Licences, the Customer shall notify Kafoodle in writing. Kafoodle shall evaluate such request for additionalLicences and respond to the Customer with approval or rejection of the request, such approval not to be unreasonably withheld.
4.3 If Kafoodle approves the Customer's request to purchase additional Licences, the Customer shall, within 30 days of the date on the Kafoodle invoice, pay to Kafoodle the relevant fees for such additional Licences as set out in the Confirmation Order, pro-rated for the remainder of the Term.
5. SERVICES
5.1 Kafoodle shall, during the Term, provide the Services to the Customer on and subject to the terms of this Agreement.
5.2 Kafoodle shall use its reasonable endeavours to make the Services available 24 hours a day, 7 days a week, except for planned maintenance carried out during the maintenance window as specified by prior written notice of at least 6 hours given by Kafoodle to the Customer in electronic, written or verbal communication.
5.3 Kafoodle will provide the Customer with Kafoodle standard customer support services during Normal Business Hours in accordance with Kafoodle Support Services Policy in effect at the time that the Services are provided.
6. PERSONAL DATA
6.1 Both parties shall comply at all times with all Data Protection Legislation applicable to the Personal Data of the Customer. All Customer Data including Personal Data collected via the Services shall remain under the ownership or control of the Customer.
6.2 The Customer undertakes that it has obtained all necessary consents required in order that Kafoodle may process Personal Data in accordance with the terms of this Agreement;
6.3 Kafoodle shall be considered to be a Data Processor as defined by Data Protection Legislation. In such situations, Kafoodle shall do the following:
(a) process Personal Data only in accordance with this Agreement and the any other documented instruction of the Customer;
(b) ensure that only those of its personnel who need to have access to the Personal Data are granted access and then only for the purposes of the performance of this Agreement. All Kafoodle personnel who have access to the Personal Data shall be made aware of the confidential nature of the Personal Data and comply with the obligations in this clause ;
(c) not modify, amend or alter the contents of the Personal Data or disclose or permit disclosure of such Personal Data to any third party unless specifically authorised in writing by the Customer, except as may be required for the performance of this Agreement;
(d) not transmit the Personal Data to any country outside the European Economic Area save where Kafoodle can show that it has in place data security measures which are no less onerous than those set out in this clause to protect the Personal Data;
(e) take appropriate technical and organisational measures against unauthorised and unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, such Personal Data;
(f) notify the Customer promptly following its receipt of any Data Subject or correspondence from the ICO, and together with the notice, shall provide a copy of the Data Subject Request or correspondence from the ICO and reasonable details of the circumstances giving rise to it to the Customer. In addition, it shall, unless otherwise required or restricted:
· not disclose any Personal Data in response to any Data Subject Request or ICO request without the Customer’s prior written consent; and
· provide the Customer with all reasonable co-operation and assistance required by the Customer in relation to any Data Subject Requestor correspondence from the ICO at the Customer’s cost and expense;
· notify the Customer promptly upon becoming aware of any actual or suspected, threatened or attempted (whether successful or not) Personal Data breach, and together with the notice, shall provide the information for a regulatory notification, as set out in Article 33(3) of the GDPR;
(g) not disclose Personal Data to a third party without the Customer’s prior written consent except for (i) any sub-contractors that are already engaged as the signing of this SAAS Agreement confirms the Customer’s consent and; (ii) in relation to Third Party Requests. For Third Party Requests, Kafoodle shall use best endeavors to advise the Customer in advance of the disclosure, unless Kafoodle is prohibited by law or regulation from notifying the Customer of that disclosure, in which case it shall do so as soon as practicable (where permitted by law or regulation);
(h) use reasonable endeavours to assist the Customer at the Customer’s cost and expense, with complying with the Customer’s obligations under the Data Protection Legislation including:
· obligations relating to data subjects exercising their rights under the Data Protection Legislation; and
· undertaking any assessments of the impact of the envisaged processing operations on the protection of Personal Data as required by Data Protection Legislation;
(i) within thirty (30) days of a written request from the Customer with all information necessary to demonstrate compliance with this clause, including allowing for it to inspect or audit its data processing facilities, procedures and documentation to ascertain such compliance with the terms of this clause ;
(j) except to the extent required by law or regulation, upon the earlier of (i) termination or expiry of this Agreement; (ii) the date on which the Personal Data is no longer relevant to, or necessary under the Agreement, Kafoodle shall return to the Customer or securely destroy, as instructed by the Customer, the Personal Data without retaining any copies so that the Personal Data is no longer recoverable and it shall confirm that all Personal Data has been removed from any computer or information storage or back-up system; and certify that destruction has taken place;
7. THIRD PARTY PROVIDERS
7.1 The Customer acknowledges that the Services 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. Kafoodle 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 Kafoodle. Kafoodle 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. Kafoodle does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
7.2 The Customer’s use of the Third Party Tool is subject to the EULA. The Third Party Tool is warranted only as set out in the EULA.
8. OBLIGATIONS OF KAFOODLE
8.1 Kafoodle shall perform the Services with reasonable skill and care.
8.2 Kafoodle shall have no liability to the Customer to the extent of any non-conformance which is caused by use of the Services contrary to Kafoodle instructions, or modification or alteration of the Services by any party other than Kafoodle or its duly authorised contractors or agents.
8.3 If the Services do not conform with the obligation set out in clause , Kafoodle 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. If Kafoodle is unable to remedy such non-conformance or provide an alternative method of achieving the desired performance, Kafoodle may terminate this Agreement and provide the Customer with a refund of any fees paid in advance by the Customer in respect of any unused portion of the relevant term. Such correction, substitution or termination constitutes the Customer's sole and exclusive remedy for any breach of the obligations set out in clause above.
8.4 Notwithstanding the foregoing, Kafoodle:
(a) does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer'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 Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.5 This Agreement shall not prevent Kafoodle 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.
8.6 Kafoodle warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
9. CUSTOMER'SOBLIGATIONS
9.1 The Customer shall:
(a) provide Kafoodle with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such information as may be required by Kafoodle;
(iii) in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) comply with all applicable laws and regulations with respect to its activities under this Agreement;
(c) carryout all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, Kafoodle may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement including the EULA and shall be responsible for any Authorised User's breach of this Agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Kafoodle, its contractors and agents to perform their obligations under this Agreement, including without limitation the Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Kafoodle from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to Kafoodle 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.
10. CHARGES AND PAYMENT
10.1 The Customer shall pay the Fees to Kafoodle as set out in the Confirmation Order. Kafoodle may increase the Fees at any time on 30 days’ written notice after the expiry of the Initial Term.
10.2 Any and all expenses, costs and charges incurred by the Customer in the performance of its obligations under this Agreement shall be paid by the Customer unless Kafoodle has expressly agreed beforehand in writing to pay such expenses, costs and charges.
10.3 The Customer shall on the Effective Date provide to Kafoodle valid, up-to-date and complete credit card details, signed direct debit mandate or approved purchase order information acceptable to Kafoodle and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to Kafoodle, the Customer hereby authorises Kafoodle to bill such credit card:
(i) on the Effective Date and each anniversary thereof for the Fees payable in respect of the Initial Term, any renewal term; or
(b) its approved purchase order to Kafoodle, whereupon Kafoodle shall invoice the Customer:
(i) on the Effective Date for the Fees payable in respect of the Initial Term; and
(ii) at least 30 days prior to each anniversary of the Effective Date, and the Customer shall pay each invoice within 30 days after the date of such invoice; or
(c) Its signed direct debit mandate to Kafoodle, the Customer hereby authorises Kafoodle to collect the Fees payable in respect of the Initial Term.
10.4 If Kafoodle has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of Kafoodle:
(a) Kafoodle may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and Kafoodle shall be under no obligation to provide any or all of the Services 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 3%over the then current base lending rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.5 All amounts and fees stated or referred to in this Agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to clauses relating to payment, cancellation and are non-refundable; and
(c) unless explicitly stated otherwise, are exclusive of value added tax, which shall be added to Kafoodle invoice(s) at the appropriate rate.
10.6 If the Customer disputes any invoice:
(a) the Customer shall notify Kafoodle in writing promptly after the date of receipt of the invoice, specifying the reasons for disputing the invoice;
(b) Kafoodle shall provide all evidence as may be reasonably necessary to verify the disputed invoice;
(c) the Customer shall pay to Kafoodle all amounts not disputed by the Customer on the due date as set out in clause ; and
(d) the parties shall negotiate in good faith to attempt to resolve the dispute promptly.
11. PROPRIETARY RIGHTS
11.1 TheCustomer acknowledges and agrees that Kafoodle and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
11.2 Kafoodle confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
12. CONFIDENTIALITY
12.1 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.
12.2 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.
12.3 Each party shall take all reasonable steps to ensure that the other's ConfidentialInformation to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
12.4 Kafoodle shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.5 TheCustomer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Confidential Information of Kafoodle.
12.6 Kafoodle acknowledges that the Customer Data is the Confidential Information of the Customer.
12.7 This clause shall survive termination of this Agreement, however arising.
12.8 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, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.9 Kafoodle will never share your recipes without your consent. Recipes are treated with the care provided herein for Confidential Information.
12.10 Kafoodle may use the nutrition and content information provided for individual ingredients and share ingredient contents on our database without reference to you. These ingredients will constitute public use information and may be shared by Kafoodle with other customers and users.
13. THIRD-PARTY CLAIMS
13.1 Except where arising in relation to a breach of this Agreement by Kafoodle, the Customer shall defend, indemnify and hold harmless Kafoodle 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 any of third-party claims in connection with the use of the Services.
13.2 Subject to clause, Kafoodle undertakes to indemnify the Customer from and against any claim or action that the supply of the Services infringes the Intellectual PropertyRights of any third party (a “IPR Claim”) and shall indemnify and hold harmless the Customer from and against any liabilities, losses, damages, claims, proceedings, costs (including all reasonable legal fees) and expenses of whatever nature incurred by or awarded against the Customer as a result of or in connection with any such IPR Claim.
13.3 Kafoodle takes no responsibility and is not liable in any manner for the use of the Services by the Customer or Authorised User, and in particular in no event shall Kafoodle, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than Kafoodle; or
(b) the Customer's use of the Services in a manner contrary to the instructions given to the Customer by Kafoodle; or
(c) the Customer's use of the Services after notice of the alleged or actual infringement from Kafoodle or any appropriate authority.
14. LIMITATION OF LIABILITY
14.1 This clause sets out the entire financial liability of Kafoodle (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 Services 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.
14.2 Other than for Kafoodle’s breach of this Agreement:
(a) the Customer assumes sole responsibility for result, menu information, and other information stored, created, obtained or used through the use of Kafoodle Services and the Documentation by the Customer, and for conclusions drawn from such use. Kafoodle shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Kafoodle by the Customer in connection with the Services, or any actions taken by Kafoodle at the Customer's direction;
(b) Kafoodle shall have no liability for any damages caused by errors, omissions or inaccuracies caused by ingredients contained in the Kafoodle database whether provided by you, other users or customers, or Kafoodle. Kafoodle cannot ensure the accuracy of any nutrition or allergen information in ingredients within its database;
(c) Kafoodle shall have no liability for any damages caused by provision of allergen, dietary or health information provided to customers and users throughout the App, SAAS, API feeds, platform software or services;
(d) 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
(e) the Services including the Third Party Tool and Documentation are provided to the Customer on an "as is" basis.
14.3 Nothing in this Agreement excludes the liability of Kafoodle:
(a) for death or personal injury caused by negligence of Kafoodle; or
(b) for fraud or fraudulent misrepresentation.
14.4 Subject to clauses and :
(a) Kafoodle 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) The total aggregate liability in contract of Kafoodle including in respect of the foregoing indemnity, 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 total Fees paid by the Customer to Kafoodle during the 12 months immediately preceding the date on which the claim arose.
15. TERM AND TERMINATION
15.1 This Agreement shall, unless otherwise terminated as provided in this clause , commence on the Effective Date and shall continue for the Initial Term and annually thereafter subject to:
(a) either party giving 90 days’ written notice to terminate on an anniversary of the Effective Date;
(b) the Agreement being otherwise terminated in accordance with the provisions of this Agreement.
15.2 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 60 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, or suffers an insolvency event; or
(e) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(f) there is a change of Control of the other party which results in a direct competitor acquiring Control of the such party, or in the reasonable opinion of the other party, the change of Control is likely to have a materially negative impact of that Party’s ability to perform its obligations under this Agreement or
(g) except in the case of an intra group reorganisation or amalgamation, in which case no consent shall be required, one party purports to assign any of its rights or obligations under this Agreement without the other party’s prior written consent.
15.3 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate; and
(b) 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.
15.4 Kafoodle may destroy or otherwise dispose of any of the Customer Data in its possession unless Kafoodle receives, no later than 10 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. Kafoodle shall use reasonable 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 Kafoodle in returning or disposing of Customer Data; and
15.5 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.
16. FORCE MAJEURE
Kafoodle shall have no liability to the Customer 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, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Kafoodle 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 Kafoodle or sub- contractors, provided that the Customer is notified of such an event and its expected duration.
17. CONFLICT
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Confirmation Order, the provisions in the main body of this Agreement shall prevail to the extent of such conflict.
18. VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. WAIVER
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.
20. 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.
21. SEVERANCE
21.1 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.
21.2 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.
22. ENTIRE AGREEMENT
22.1 This Agreement, 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.
22.2 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.
23. ASSIGNMENT
The Customer shall not, without the prior written consent of Kafoodle, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under thisAgreement.
24. 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).
25. THIRD PARTY RIGHTS
Except as set out in the EULA, 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.
26. NOTICES
26.1 Any notice required to be given under this Agreement shall be in writing and shallbe 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.
26.2 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.
27. 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.
28. JURISDICTION
Each party irrevocably agrees that the courts of England andWales 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).
This Agreement has been entered into on the date stated in theConfirmation Order.
Schedule 1
EULA
Terms of Use
1. This page provides You with the terms of use (the “Terms of Use”) on which the user (“ You”) may make use of our Kafoodle Communications app (the App which term includes any software or documentation). Please read these Terms of Use carefully. By downloading, installing or using the App, You indicate that You accept these Terms of Use and that You agree to abide by them. Your download, installation or use of the App constitutes Your acceptance of these Terms of Use which takes effect on the date on which You download, install or use theApp. If You do not agree with these Terms of Use, You should cease downloading, installing or using the App immediately.
2 We reserve the right to change these Terms of Use at any time without notice to You by posting changes on the https://kitchen.kafoodle.com/app-terms-and-conditions (the “Website”) or by updating the App to incorporate the new terms of use. You are responsible for regularly reviewing information posted online to obtain timely notice of such changes. Your continued use of the App after changes are posted constitutes Your acceptance of the amended Terms of Use.
3. To download, install, access or use the App, You must be 13 years of age or over. If You are under 13 and You wish to use download, install, access or use theApp, You must get consent from Your parent or guardian before doing so.
4. You shall not:
(except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Terms of Use)
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the App (as applicable) in any form or media or by any means;
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the App;
(iii) access all or any part of the App in order to build a product or service which competes with the App; or
(iv) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the App available to any third party, or
(v) attempt to obtain, or assist third parties in obtaining, access to the App, other than as provided under this clause; and
(vi) You shall not permit any unauthorised access to, or use of, the App. In the event of any unauthorised access or use, You shall promptly notify support@kafoodle.com or its licensors.
5. You agree not to access without authority, interfere with, damage or disrupt:
(i) any part of the App;
(ii) any equipment or network on which the App is stored;
(iii) any software used in the provision of the App; or
(iv) any equipment or network or software owned or used by any third party.
6. You hereby grant to us or our licensors an irrevocable, royalty-free, worldwide, assignable, sub-licensable licence to use any material which You submit to us or the App for the purpose of use on the App or for generally marketing (by any means and in any media, including, but not limited to, on our website or in our journals) our services. You agree that You waive Your moral rights to be identified as the author and we may modify Your submission.
7. You assume sole responsibility for results obtained from the use of the App, and for conclusions drawn from such use. Neither we nor our licensors shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by You in connection with the App, or any actions taken by us at Your direction.
8. You agree to comply at all times with any instructions for use of the App which we make from time to time.
9. If You choose, or You are provided with, a user identification code, password or any other piece of information as part of our security procedures, You must treat such information as confidential, and You must not disclose it to any third party. We have the right to disable any user identification code or password, whether chosen by You or allocated by us, at any time, if in our opinion You have failed to comply with any of the provisions of these Terms of Use.
Availability of the App, Security & Accuracy
10. We make no warranty that Your access to the App will be uninterrupted, timely or error-free. Due to the nature of the Internet, this cannot be guaranteed. In addition, we may occasionally need to carry out repairs, maintenance or introduce new facilities and functions.
11. Access to the App may be suspended or withdrawn to or from You personally or all users temporarily or permanently at any time and without notice. We may also impose restrictions on the length and manner of usage of any part of the App for any reason. If we impose restrictions on You personally, You must not attempt to use the App under any other name or user or on any other mobile device.
12. We do not warrant that the App will be compatible with all hardware and software which You may use. We shall not be liable for damage to, or viruses or other code that may affect, any equipment (including but not limited to Your mobile device), software, data or other property as a result of Your download, installation, access to or use of the App or Your obtaining any material from, or as a result of using, the App. We shall also not be liable for the actions of third parties.
13. We may change or update the App and anything described in it without notice to You. If the need arises, we may suspend access to the App, or close it indefinitely.
14. We make no representation or warranty, express or implied, that information and materials on the App are correct, or are complete, accurate, up-to-date, fit for a particular purpose and, to the extent permitted by law.
Independence from Platforms
15. The App is independent of any platform on which it is located. The App is not associated, affiliated, sponsored, endorsed or in any way linked to any platform operator, including, without limitation, Apple, Google, Android or RIM Blackberry (each being an “Operator”).
16. Your download, installation, access to or use of the App is also bound by the terms and conditions of the Operator.
17. You and we acknowledge that these Terms of Use are concluded between You and us only, and not with an Operator, and we, not those Operators, are solely responsible for the App and the content thereof to the extent specified in these Terms of Use.
18. You must comply with any applicable third party terms of agreement when using the App (e.g. You must ensure that Your use of the App is not in violation of Your mobile device agreement or any wireless data service agreement).
Limitation of Liability
19.1 You assume all responsibility and risk with respect to your use of the app. The app is available “as is,” and “as available”. You understand and agree that, to the fullest extent permitted by law, we disclaim all warranties, representations and endorsements, express or implied.
19.2 We do not warrant use of the site will be uninterrupted or error-free or that errors will be detected or corrected. We do not assume any liability or responsibility for any computer viruses, bugs, malicious code or other harmful components, delays, inaccuracies, errors or omissions, or the accuracy, completeness, reliability or usefulness of the information disclosed or accessed through the app.
19.3 We have no duty to update or modify the app and we are not liable for our failure to do so.
19.4 In no event, under no legal or equitable theory (whether tort, contract, strict liability or otherwise), other than for death or injury caused by our negligence or that of our licensors shall we or any of our employees, directors, officers, agents licensors or affiliates, be liable hereunder or otherwise for any loss or damage of any kind, direct or indirect, in connection with or arising from the app, the use of the app or our agreement with you concerning the app.
19.5 We encourage all users with allergens to speak with our staff before ordering any food – as the application can’t be 100%, 100% of the time.
19.6 You shall defend, indemnify and hold harmless us and our licensors 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 third party claims in connection with the Your use of the App
Data Protection
20.1 Both parties shall comply at all times with all relevant laws in the United Kingdom regarding data protection and the use of any personal data. All personal data collected via the App shall remain under the ownership or control of the data controller.
20.2 You undertake that You have all necessary consents required in order that we may process all personal data in accordance with the terms of these Terms of Use;
20.3 Each party shall, where it is the data processor:
20.3.1 process Personal Data only in accordance with the instruction of the data controller and shall not transfer the same to any subcontractor without the prior written consent of the data controller;
20.3.2 ensure that only those of its personnel who need to have access to the Personal Data are granted access and then only for the purposes of the performance of this Terms of Use.
20.3.3 not modify, amend or alter the contents of the Personal Data or disclose or permit disclosure of such Personal Data to any third party unless specifically authorised in writing by the data controller, except as may be required for the performance of these terms of Use;
20.3.4 not transmit the Personal Data to any country outside the European Economic Area without the data controller’s prior written consent, such consent shall only be given, but will not be guaranteed, where the data processor can show that it has in place data security measures which are no less onerous than those set out in this clause to protect the Personal Data;
20.3.5 take appropriate technical and organisational measures against unauthorised and unlawful processing of the Personal Data and against accidental loss or destruction of, or damage to, such Personal Data;
20.3.6 notify the data controller (within 10 Business Days) if it receives:
20.3.6.1 a request from a data subject to have access to their Personal Data;
20.3.6.2 a complaint or request relating to the data controller’s obligations under the data protection legislation; or
20.3.7 any other communication relating to the processing of any Personal Data in relation to this Terms of Use; and
20.3.8 provide the data controller with full co-operation and assistance in relation to any complaint or request made in respect of any Personal Data.
Third Party Rights
21 These Terms of Use does not confer any rights on any person or party (other than the parties to these Terms of Use and our licensors and, where applicable, the parties’ successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Governing Law
22. These Terms of Use 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.
Jurisdiction
23 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 these Terms of Use or their subject matter or formation (including non-contractual disputes or claims).
