Manufacturer - Terms & Conditions

The below terms and conditions (“Conditions”) set out the basis upon which Erudus Limited (company number 6315071 with registered office address is Panther House, Asama Court, Newcastle Business Park, Newcastle Upon Tyne, Tyne and Wear, NE4 7YD) (“Supplier”) agrees to provide, and upon which you as the Customer are agreeing to take, the Erudus software service. By proceeding with the subscription, the Customer (as defined below) agrees to be bound by these Conditions.

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Conditions.

Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation at all times in accordance with these Conditions.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.2(b) or 10.5.

Customer: the Manufacturer entering into these terms and conditions for access to the Erudus software service.

Customer Data: the allergen, nutritional and/or technical information data inputted into the Erudus system by the Customer or Authorised Users.

Documentation: the document made available to the Customer by the Supplier online via www.erudus.com (or any other *.erudus.com derivation) or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date: the date of entry by the Customer into a subscription to the Services.

Initial Subscription Term: the initial 12 calendar month term of the subscription, commencing on the Effective Date.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Renewal Period: the period described in clause 13.1.

Software: the online software applications known as “Erudus” relating to food allergen, nutritional and technical specifications as is required by the food industry and as provided by the Supplier as part of the Services.

Subscription Fees: the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out from time to time in the “Subscriptions and pricing” sections of the Supplier’s website.

Subscription Term: has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 8.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with these Conditions.

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.

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.

2. User subscriptions

2.1 Subject to the Customer, as appropriate, purchasing the User Subscriptions in accordance with clause 8.1 and subject to the restrictions set out in this clause 2 and as set out elsewhere in these Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.

2.2 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 of User Subscriptions it has purchased from time to time;

(b)only persons aged over 16 years old are authorised to be added as an Erudus user. This also restricts any persons under 16 from accessing the Erudus platform at any time.

(d) each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep that password confidential;

(e) it shall permit the Supplier, upon giving reasonable prior notice to the Customer, to audit the Services in order to establish the name of each Authorised User;

(f) if any audit referred to in clause 2.2(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and

(g) if any of the audits referred to in clause 2.2(d) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the standard prices set by the Supplier from time to time within 10 Business Days of the date of the relevant audit.

2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is, without limitation, unlawful, threatening, obscene, discriminatory or otherwise illegal or which might cause damage or injury to any person or property. The Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to the Software or any material that breaches the provisions of this clause in the event of the Customer being the source of such material.

2.4 The Customer shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i) and except to the extent expressly permitted under these 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 (and, for the avoidance of doubt, the foregoing restrictions apply to the Customer’s use of the Software and/or Documentation, not the Customer Data which re-use by the Customer shall not be so restricted); or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-readable form all or any part of the Software except to the extent that any such reduction of the Software to human readable form is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction; or

(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(d) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or

(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.

2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

2.6 The rights provided under this clause 2 are granted to the Customer only (for use by it and any divisions within the Customer), and shall not be considered granted to any subsidiary or holding company of the Customer and in the event of any group company of the Customer wishing to access the Software or the Services, such group company shall be required to take out a separate subscription.

3. Additional user subscriptions

3.1 In the event that the Customer requires additional users to be able to access and use the Services, the Customer should contact the Supplier by emailing support@erudus.com.

4. Services

4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these Conditions.

4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window of 9.00 pm to 6.00 am UK time;

(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance; and

4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with standard electronic help desk services during Normal Business Hours.

5. Customer data

5.1 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.

5.2 The Customer acknowledges and agrees that, without prejudice to clause 5.1, the purpose of the Erudus system is to share the Customer Data with wholesalers, caterers and other third parties who may be interested in the Customer Data in connection with their obligations or interests in the food industry and the Customer grants the Supplier a non-exclusive, royalty-free, irrevocable and perpetual licence to publish through the Erudus system or otherwise distribute the Customer Data in any form or format or method of presentation and for any purpose to wholesalers, caterers and other third parties. For the avoidance of doubt, the provisions of this clause 5.2 shall survive termination of the Services, however arising.

5.3 The Supplier shall follow its own reasonable archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).

5.4 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under these Conditions, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data on the Customer’s behalf;

(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

DATA BREACH

If we become aware that site security has been compromised as a result of external activity (including but not limited to external security attacks) we shall take reasonable measures which we deem appropriate. This includes but is not limited to internal investigation and reporting, and notification to and cooperation with law enforcement authorities. All affected users will be notified of this infringement within no more than 72 hours following discovery.

ACCESS REQUEST

If you wish to obtain a copy of your data held by us, then please write to at; Erudus Limited, Panther House, Asama Court, Newcastle Business Park, Newcastle Upon Tyne, Tyne and Wear, NE4 7YD.

Please note that you may be charged a fee of £10 for this service.

You may also be asked to provide proof of your identity, and for information that might help to locate the data, you are seeking.

This will be completed within 20 working days from the acquisition of this request. If you have a complaint about the way in which your personal information has been handled, we will acknowledge it within 5 working days and respond in full within 20 working days.

6. Supplier’s obligations

6.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

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 Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the undertaking at clause 6.1, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, the Supplier:

(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.

6.3 Nothing in these Conditions shall prevent the Supplier 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 these Conditions.

6.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations in connection with the Services.

7. Customer’s obligations

The Customer shall:

7.1 provide the Supplier with:

(a) all necessary co-operation in relation to these Conditions; and

(b) all necessary access to such information as may be required by the Supplier

in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;

7.2 keep all its Services registration information up to date, including any main email address provided to the Supplier;

7.3 comply with all applicable laws and regulations with respect to its activities under these Conditions and the provision of the Customer Data;

7.4 carry out all other Customer responsibilities set out in these Conditions in a timely and efficient manner;

7.5 ensure that the Authorised Users use the Services and the Documentation in accordance with these Conditions and the Customer shall be responsible for any Authorised User’s breach of these Conditions;

7.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Conditions;

7.7 ensure that its network and systems comply with any relevant specifications provided by the Supplier from time to time; and

7.8 be solely responsible for: (i) procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s (or its contractor’s) data centres; and (ii) 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. Charges and payment

8.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 8.

8.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date and complete payment details enabling the Supplier to take payment of the Subscription Fees for the Initial Subscription Term in respect of the number of Authorised Users requiring access to the Services as requested by the Customer on the Effective Date.

8.3 In the event that payment is made by debit or credit card, the Customer hereby authorises the Supplier to bill such card:

(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and

(b) subject to clause 13.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period.

8.4 If for whatever reason the Supplier has not received payment within 15 days of either the Effective Date or the first day of any Renewal Period, and without prejudice to any other rights and remedies of the Supplier, the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while payment remains outstanding.

8.5 All amounts and fees stated or referred to in these Conditions:

(a) shall be payable in pounds sterling;

(b) are, subject to clause 12.4 (b), non-cancellable and non-refundable;

(c) are exclusive of value added tax, which shall be added to amounts payable by the Customer.

8.6 The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 60 days’ prior notice to the Customer.

9. Proprietary rights

9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation. Except as expressly stated herein, nothing in these Conditions grant the Customer 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, Services or the Documentation.

9.2 The Supplier 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 these Conditions.

9.3 If the Customer downloads, prints or publishes through the internet or any other form of publication any data or datasheets from the Erudus system, the Erudus logo, the disclaimer (which will be provided by the Supplier upon request), printed data and time stamp indicating the time of data capture must all be prominently displayed on such download, print or published information.

10. Confidentiality

10.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under these Conditions. 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.

10.2 For the avoidance of doubt:

(a) subject to clause 10.2(b), Customer Data shall not constitute Confidential Information;

(b) any “own label” supply relationships between the Customer and third parties (which may be evident only by specific analysis of Customer Data) shall be Confidential Information on the part of the Customer and shall not be visible to any other user of the Services. Further, and for the avoidance of doubt, the Supplier confirms for itself and for any group company of the Supplier that it shall not be entitled to access, benefit from or exploit such Confidential Information.

10.3 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 these Conditions.

10.4 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 these Conditions.

10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.

10.6 The above provisions of this clause 10 shall survive termination of the Services, however arising.

11. Indemnity

11.1 The Customer shall defend, indemnify and hold harmless the Supplier 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 reliability or accuracy of the Customer Data input into the Erudus system and the Customer’s use of the Services and/or Documentation, provided that:

(a) the Customer is given prompt notice of any such claim;

(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and

(c) the Customer is given sole authority to defend or settle the claim.

11.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any United Kingdom patent effective as of the Effective 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:

(a) the Supplier is given prompt notice of any such claim;

(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and

(c) the Supplier is given sole authority to defend or settle the claim.

11.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the provision of the Services to the Customer on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

11.4 In no event shall the Supplier, 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 or Documentation by anyone other than the Supplier; or

(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or

(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.

11.5 The foregoing and clause 12.4(b) states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

12. Limitation of liability

12.1 This clause 12 sets out the entire financial liability of the Supplier (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 these Conditions;

(b) in respect of any use made by the Customer of the Services and Documentation 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 these Conditions or the Services.

12.2 Except as expressly and specifically provided in these Conditions:

(a) 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 these Conditions and the use of the Services by the Customer; and

(b) the Services and the Documentation are provided to the Customer on an “as is” basis.

12.3 Nothing in these Conditions excludes the liability of the Supplier:

(a) for death or personal injury caused by the Supplier’s negligence; or

(b) for fraud or fraudulent misrepresentation.

12.4 Subject to clause 12.2 and clause 12.3:

(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: (i) loss of profits, (ii) loss of business, (iii) depletion of goodwill and/or similar losses, (iv) loss or corruption of data or information, (v) pure economic loss, or (vi) for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Conditions; and

(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of its obligations under these Conditions shall be limited to £100,000.

13. Term and termination

13.1 Subject to clause 13.2, the Customer’s subscription shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, the subscription shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:

(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case the subscription shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or

(b) otherwise terminated in accordance with the provisions of these Conditions,

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

13.2 There are some customers for whom the Services renew on 1 October in each year and, therefore, for which the expiry of a Renewal Period is on 30 September in each year. This will remain the case for such customers and clause 13.1 shall be construed accordingly in the case of such customers.

13.3 Without affecting any other right or remedy available to it, either party may terminate the subscription with immediate effect by giving written notice to the other party if:

(a) the other party fails to pay any amount due under these Conditions on the due date for payment and remains in default not less than 10 days after being notified in writing to make such payment;

(b) the other party commits a material breach of any other term of these Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 3 days after being notified in writing to do so;

(c) the other party repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Conditions;

(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f) the other party takes any step or action in connection with its entering administration, provisional liquidation, being wound up (whether voluntarily or by order of the court), having a receiver appointed to any of its assets or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(g) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(h) there is a change of control of the other party.

13.4 Without limiting its other rights or remedies, the Supplier may suspend provision of or access to the Services if either of clauses 13.3(b) or 13.3(c) apply in respect of actions or omissions on the part of the Customer or if the Customer becomes subject to any of the events listed in clause 13.3(d) to 13.3(h) or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount required under these Conditions.

13.5 On termination for any reason:
(a) all licences granted under these Conditions to the Customer shall immediately terminate;

(b) 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;

(c) clauses which expressly or by implication survive termination shall continue in full force and effect.

14. Force majeure

The Supplier shall have no liability to the Customer in respect of the Services if it is prevented from or delayed in performing its obligations, 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 the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage (including but not limited to a cyber attack or Virus), compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that, in respect of any event that may or is expected to subsist for any material period, the Customer is notified of such an event and its expected duration.

15. Variation

The Supplier reserves the right to vary these Conditions from time to time. Each time the Customer accesses the Services, the Conditions in force from time to time will apply to the Customer’s use of the Services. If the Supplier revises these Conditions, it will give notice of revisions to the Customer through the “Notification System” within the Software and information regarding such changes will also be provided through the Erudus newsletter or other such direct contact to give reasonable advance notice of the changes and to let the Customer know how to cancel the Services if it is not happy with the changes. Clause 23 (Notices) shall not apply to such circumstances.

16. Waiver

No failure or delay by a party to exercise any right or remedy provided under these Conditions 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. Rights and remedies

Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

18. Severance

18.1 If any provision (or part of a provision) of these Conditions are found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.

18.2 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.

19. Entire agreement

19.1 These Conditions, and any documents referred to in them, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them, whether written or oral, relating to the subject matter they cover.

19.2 Each of the parties acknowledges and agrees that in entering into the contract created by these Conditions, 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 contract or not) relating to the subject matter of this contract and these Conditions, other than as expressly set out in these Conditions.

20. Assignment

20.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Conditions.

20.2 The Supplier 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 these Conditions.

21. No partnership or agency

Nothing in these Conditions 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).

22. Third party rights

These Conditions do not confer any rights on any person or party (other than the parties to the contract to which these Conditions relate and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

23. Notices

23.1 Save in connection with variations made to these Conditions as set out in clause 15, any notice required to be given under these Conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its registered office address (or main office address in the event the Customer has no registered office address), or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s head office fax number or sent by email to support@erudus.com in the case of notices sent by email by the Customer to the Supplier and to the then current email address provided by the Customer in its Service registration details in the case of notices sent by email by the Supplier to the Customer.

23.2 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. A notice sent by fax or email shall be deemed to have been received at 9.00 am on the next Business Day after transmission.

24. Governing law and Jurisdiction

24.1 This contract 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 English law.

24.2 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions or their subject matter or formation (including non-contractual disputes or claims).

Manufacturer API - Terms & Conditions

The below terms and conditions (“Conditions”) set out the basis upon which Erudus Limited (company number 6315071 with registered office address is Panther House, Asama Court, Newcastle Business Park, Newcastle Upon Tyne, Tyne and Wear, NE4 7YD) (“Supplier”) agrees to provide, and upon which you as the Customer are agreeing to take, certain modules of the Erudus API Program, such being appropriate to your Erudus subscription. By proceeding with this Erudus API Program licence, the Customer (as defined below) agrees to be bound by these Conditions.

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this licence.

Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party.

Customer: the food manufacturer entering into these Conditions for a licence to use the “Manufacturer API” modules within the Software.

Effective Date: the date of entry by the Customer into a licence for the Software on these Conditions.

Erudus: the Supplier’s online software applications known as “Erudus” relating to food allergen and nutritional information and technical specifications, as provided separately by the Supplier.

Fee: the licence fee payable by the Customer to the Supplier under clause 6.

Initial Licence Term: the initial period of the licence for the Software, being either (a) a 12 calendar month term or (b) a calendar month, whichever is the period agreed with the Supplier in respect of the licence, in each case commencing on the Effective Date.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.

Licence Term: has the meaning given in clause 3.2 (being the Initial Licence Term together with any subsequent Renewal Periods).

Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.

New Version: any new version of the Software which from time to time is marketed and offered for purchase by the Supplier in the course of its normal business, being a version which contains such significant differences from the previous versions as to be generally accepted in the marketplace as constituting a new product.

Software: the “Erudus API Program”, being modules within Erudus which, in respect of the Customer, will enable the Customer to upload data directly from the Customer’s own systems into Erudus.

1.2 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors and 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 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

2. Activation And Testing

2.1 Following entry into the licence contract to which these Conditions apply and payment of the Fee, the Supplier shall enable certain “Manufacturer API” modules within Erudus which will provide the Customer with access to the Software, such modules available to the Customer being appropriate to the Customer’s expected usage (at the sole discretion of the Supplier).

2.2 The Supplier will provide remote assistance in respect of the Customer’s testing of the Software in a test environment to ensure that the Software operates and interacts with the Customer’s systems as intended and the Supplier will also provide remote assistance in setting up the Customer’s live operation of the Software.

2.3 If at any time the parties agree that testing of the Software has for any reason failed, in the reasonable opinion of both parties, the Customer may discontinue this licence by written notice. If the licence is so discontinued, the Supplier shall, within seven days of receipt of that notice, refund all monies paid by the Customer under this licence, and on receipt of that refund this licence shall terminate.

2.4 The Customer shall be deemed to have accepted the Software if:

(a) the testing referred to at clause 2.2 is successful; or

(b) the Customer commences operational use of the Software.

3. Licence and duration

3.1 In consideration of the Fee paid by the Customer to the Supplier, receipt of which the Supplier hereby acknowledges, the Supplier grants to the Customer a non-exclusive, non-transferable licence for the Licence Term to use the Software for the purposes of uploading data from within the Customer’s systems directly into Erudus.

3.2 The Customer’s licence to use the Software shall commence on the Effective Date and shall continue for the Initial Licence Term and, thereafter, the licence shall be automatically renewed for successive periods of either (a) 12 calendar months or (b) one calendar month, in each case as has been agreed with the Supplier prior to the Effective Date (each a “Renewal Period”), unless:

(a) either party notifies the other party of termination, in writing, (a) where the licence is on an annual basis, at least 60 days before the end of the Initial Licence Term or any Renewal Period (as defined above); or

(b) where the licence is on a monthly basis, 15 days before the end of the Initial Licence Term or any current Renewal Period (as defined above), and, in such circumstances, the licence shall terminate upon the expiry of the applicable Initial Licence Term or Renewal Period; or

(c) otherwise terminated in accordance with the provisions of these Conditions,

and the Initial Licence Term together with any subsequent Renewal Periods shall constitute the “Licence Term”.

3.3 In relation to scope of use:

(a) for the purposes of clause 3.1, use of the Software shall be restricted to use of the Software in object code form for the purpose of the Customer transferring data from within the Customer’s systems into Erudus and the Customer agrees that only data concerning food allergen, nutritional information and technical specifications regarding its products shall be transferred into Erudus;

(b) the Customer may not use the Software other than as specified in clause 3.1 and clause 3.3(a) without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier;

(c) except as expressly stated in this clause 3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction;

(d) the Customer shall use the Software in a fair manner and applying common sense in the data that it transfers through the Software and, by way of example, the Customer shall only send updates to product information rather than sending the entire product range each time a change is made to a product’s information;

(e) the Customer shall not use the Software and/or any documentation (howsoever provided) relating to the Software to provide services to third parties or exploit the Software or documentation for its own benefit or purposes, except as permitted by these Conditions;

(f) the Customer shall not utilise any “screen scrapers” or other automated/scripted solutions with the intention of downloading large datasets using the Software or from Erudus;

(g) the Customer shall not use the Read/GET functionality within the Software to publish to websites, intranets or any third parties.

3.4 The Customer may not use any such information provided by the Supplier or obtained by the Customer during any such reduction permitted under clause 3.3(c) to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.

3.5 The Supplier will monitor the operation of the Software and the volume of data transfers handled by the Software at any time. In order to maintain operational status of the Software during busy periods, the Supplier reserves the right to control the speed of the connection of the Software to Erudus from time to time.

3.6 The Customer shall not:

(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part;

(b) allow the Software to become the subject of any charge, lien or encumbrance; and

(c) deal in any other manner with any or all of its rights and obligations under this agreement,
without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.

3.7 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.

3.8 Notwithstanding clause 7, a party assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment.

3.9 The Customer shall:

(a) ensure that the Software is installed on designated equipment only;

(b) keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;

(c) notify the Supplier as soon as it becomes aware of any unauthorised use of the Software by any person;

(d) pay, for broadening the scope of the licences granted under this licence to cover the unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.

3.10 The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

4. Maintenance releases

4.1 The Supplier will provide the Customer with all Maintenance Releases generally made available to its customers. The Supplier warrants that no Maintenance Release will adversely affect the then existing facilities or functions of the Software.

4.2 As older versions of the Software may not be supported by the Supplier for long periods after the issue of a Maintenance Release, it is the Customer’s responsibility to install all Maintenance Releases as soon as reasonably practicable after receipt.

5. New Versions

The Supplier will give notice of any New Version being released and will also give suitable notice of any older versions of the Software that will no longer be supported.

6. Fees

6.1 The Fee in respect of the licence of the Software shall be payable in advance and the amount of the Fee and its payment frequency shall be as agreed separately between the Supplier and the Customer.

6.2 In the event that payment is made by debit or credit card, the Customer hereby authorises the Supplier to bill such card:

(a) on the Effective Date for the Fee payable in respect of the Initial Licence Term; and

(b) subject to any earlier termination, (a) where the licence is for 12 month periods, on each anniversary of the Effective Date, the Fee payable for the Renewal Period; or (b) where the licence is on a monthly basis, on the same date in each calendar month following the Effective Date, the Fee payable for the Renewal Period.

6.3 If for whatever reason the Supplier has not received payment within 15 days of either the Effective Date or the first day of any Renewal Period (each being the due date for payment for the purposes of these Conditions), and without prejudice to any other rights and remedies of the Supplier, the Supplier may, without liability to the Customer, disable the Customer’s access to all or part of the Software and the Supplier shall be under no obligation to provide any or all of the Software while payment remains outstanding.

6.4 All sums payable under this licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.

6.5 If the Customer fails to make any payment due to the Supplier under these Conditions by the due date for payment, then, without limiting the Supplier’s remedies under clause 6.3 or clause 11, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7. Confidentiality

7.1 Each party shall, during the term of this licence and thereafter, keep confidential all, and shall not use for its own purposes (other than for the implementation of this licence) nor without the prior written consent of the other disclose to any third party (except its professional advisors or as may be required by any law or any legal or regulatory authority) any information of a confidential nature (including trade secrets and information of commercial value) which may become known to such party from the other party and which relates to the other party or any of its Affiliates, unless that information is public knowledge or already known to such party at the time of disclosure, or subsequently becomes public knowledge other than by breach of this licence, or subsequently comes lawfully into the possession of such party from a third party. Each party shall use its reasonable endeavours to prevent the unauthorised disclosure of any such information.

7.2 The provisions of clause 7.1 shall survive termination of the licence, however arising.

8. Supplier’s warranties

8.1 The Supplier warrants that the Software will function in all material respects having regard to the purpose of the Software for a period of 60 days from the Effective Date (“Warranty Period”). If, within the Warranty Period, the Customer notifies the Supplier in writing of any defect or fault in the Software in consequence of which it fails to operate as intended by the Supplier, and such defect or fault does not result from the Customer, or anyone acting with the authority of the Customer, having amended the Software or used it outside the terms of this licence for a purpose or in a context other than the purpose or context for which it was designed or in combination with any other software not provided by the Supplier, or it has not been loaded onto Supplier-specified or suitably configured equipment, the Supplier shall, at the Supplier’s option, do one of the following:

(a) repair the Software;

(b) replace the Software; or

(c) terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination), provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the defect or fault, including a documented example of any defect or fault, or sufficient information to enable the Supplier to re-create the defect or fault.

8.2 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free. In the event of any downtime in respect of the Software, the Supplier will use all reasonable skill and care in seeking to return the Software to operational status.

8.3 The Customer acknowledges that the Software has not been developed to meet the individual requirements of the Customer.

8.4 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

9. Limits of liability

9.1 Except as expressly stated in clause 9.2:

(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;

(ii) loss of profits;

(iii) loss of anticipated savings;

(iv) loss of business opportunity;

(v) loss of goodwill;

(vi) loss or corruption of data,

provided that this clause 9.1(a) shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 9.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 9.1(a);

(b) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fee; and

(c) the Customer agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.

9.2 The exclusions in clause 8.4 and clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:

(a) death or personal injury caused by the negligence of the Supplier, its officers, employees, contractors or agents;

(b) fraud or fraudulent misrepresentation;

(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or

(d) any other liability which may not be excluded by law.

9.3 All references to “the Supplier” in this clause 9 shall, for the purposes of this clause and clause 17 only, be treated as including all employees, subcontractors and suppliers of the Supplier and its Affiliates, all of whom shall have the benefit of the exclusions and limitations of liability set out in this clause, in accordance with clause 17.

10. Intellectual property rights

10.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases belong and shall belong to the Supplier or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the Software other than the right to use it in accordance with the terms of this licence.

10.2 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party (“Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, this clause shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.

10.3 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under clause 10.2 are conditional on the Customer:

(a) as soon as reasonably practicable, giving written notice of the Claim to the Supplier, specifying the nature of the Claim in reasonable detail;

(b) not making any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of the Supplier (such consent not to be unreasonably conditioned, withheld or delayed);

(c) giving the Supplier and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, documents and records within the power or control of the Customer, so as to enable the Supplier and its professional advisers to examine them and to take copies (at the Supplier’s expense) for the purpose of assessing the Claim; and

(d) taking such action as the Supplier may reasonably request to avoid, dispute, compromise or defend the Claim.

10.4 If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:

provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranty contained in clause 8.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this licence been references to the date on which such modification or replacement was made.

10.5 Notwithstanding any other provision in this agreement, clause 10.2 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any third-party software or through the breach of any third-party terms by the Customer.

10.6 This clause 10 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 9.1.

11. Termination

11.1 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 10 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 3 days after being notified in writing to do so;

(c) the other party repeatedly breaches any of the terms of these Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Conditions;

(d) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;

(e) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;

(f) the other party takes any step or action in connection with its entering administration, provisional liquidation, being wound up (whether voluntarily or by order of the court), having a receiver appointed to any of its assets or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(g) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or

(h) there is a change of control of the other party.

11.2 Without limiting its other rights or remedies, the Supplier may suspend provision of or access to the Services if either of clauses 11.1(b) or 11.1(c) apply in respect of actions or omissions on the part of the Customer or if the Customer becomes subject to any of the events listed in clause 11.1(d) to 11.1(h) or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount required under these Conditions.

11.3 The Supplier shall be entitled to terminate this licence at any time on giving no less than 3 months’ written notice to the Customer.

11.4 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

11.5 Termination or expiry of this licence shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the licence which existed at or before the date of termination or expiry.

11.6 On termination for any reason:

12. 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.

13. Remedies

Except as expressly provided in these Conditions, the rights and remedies provided under this licence are in addition to, and not exclusive of, any rights or remedies provided by law.

14. Entire agreement

14.1 This licence contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter.

14.2 Each party acknowledges that, in entering into this licence, it does not rely on any statement, representation, assurance or warranty (whether it was made negligently or innocently) of any person (whether a party to this licence or not) (“Representation”) other than as expressly set out in this licence.

14.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.

14.4 Nothing in this clause shall limit or exclude any liability for fraud.

15. Variation

The Supplier reserves the right to vary these Conditions from time to time. Each time the Customer accesses the Software, the Conditions in force from time to time will apply to the Customer’s use of the Software. If the Supplier revises these Conditions, it will give notice of revisions to the Customer through the “Notification System” within the Erudus system and information regarding such changes will also be provided through the Erudus newsletter or other such direct contact to give reasonable advance notice of the changes and to let the Customer know how to disable its use of the Software if it is not happy with the changes. Clause 20 (Notices) shall not apply to such circumstances.

16. Severance

16.1 If any provision or part-provision of these Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Conditions.

16.2 If any provision or part-provision of these Conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.

17. Third-party rights

17.1 The Supplier and the entities referred to in clause 9.3 may enforce the terms of this licence subject to and in accordance with this clause 17, this licence and the Contracts (Rights of Third Parties) Act 1999.

17.2 Except as provided in clause 17.1, a person who is not a party to these Conditions shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Conditions, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.

17.3 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under these Conditions are not subject to the consent of any person that is not a party to this agreement.

18. No partnership or agency

18.1 Nothing in these Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

19. Force majeure

The Supplier shall have no liability to the Customer in respect of the performance of the Software nor any liability for a delay in performing, or failing to perform, any of its obligations under this licence if the Supplier is prevented from or delayed in performing its obligations, 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 the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage (including but not limited to a cyber attack or virus), compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that, in respect of any event that may or is expected to subsist for any material period, the Customer is notified of such an event and its expected duration.

20. Notices

20.1 Save in connection with variations made to these Conditions as set out in clause 15, any notice required to be given under these Conditions shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its registered office address (or main office address in the event the Customer has no registered office address), or such other address as may have been notified by that party for such purposes, or sent by fax to the other party’s head office fax number or sent by email to support@erudus.com in the case of notices sent by email by the Customer to the Supplier and to the then current email address provided by the Customer in its registration details in the case of notices sent by email by the Supplier to the Customer.

20.2 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. A notice sent by fax or email shall be deemed to have been received at 9.00 am on the next Business Day after transmission.

20.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

21. Governing law and jurisdiction

21.1 This contract 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 English law.

21.2 Each party irrevocably agrees that the courts of England shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions or their subject matter or formation (including non-contractual disputes or claims).

Wholesaler - Terms & Conditions

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Conditions.
Allergen & Nutritional Data: food ingredient information outlining whether particular products contain any of the major allergens, together with typical values by weight and reference intakes.

Authorised Users: those employees, or Permitted Sub-licensees of the Customer who are authorised by the Customer to use the Services and the Documentation at all times in accordance with these Conditions.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.2(b) or 10.5.

Customer: the Wholesaler entering into these terms and conditions for access to the Erudus software service.

Erudus Data: the allergen, nutritional and/or technical information data inputted into the Erudus system by or on behalf of food manufacturers.

Effective Date: the date of entry by the Customer into a subscription to the Services.

Initial Subscription Term: the initial 12 calendar month term of the subscription, commencing on the Effective Date.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Permitted Sub-licensees: has the meaning given to it in clause 2.7.

Renewal Period: the period described in clause 13.1.

Services: the Software subscription services provided by the Supplier to the Customer under these Conditions via www.erudus.com or any other website notified to the Customer by the Supplier from time to time for access to the Allergen & Nutritional Data and/or Technical Data (as may be separately subscribed to) and as more particularly described in the Documentation.

Subscription Term: has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Technical Data: detailed information regarding products including, but not limited to, product name and descriptions, supplier name, product codes, packaging information (including weight and dimensions) and pallet information.

1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

2. User subscriptions

2.1 Subject to the Customer, as appropriate, purchasing the User Subscriptions in accordance with clause 8.1 and subject to the restrictions set out in this clause 2 and as set out elsewhere in these Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable, sub-licensable (but only in accordance with clause 2.7) right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s (or its Permitted Sub-licensees’) internal business operations.

2.2 In relation to the Authorised Users, the Customer undertakes that:

(b) only persons aged over 16 years old are authorised to be added as an Erudus user. This also restricts any persons under 16 from accessing the Erudus platform at any time.

(c) it will not allow or suffer any User Subscription 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 and/or Documentation;

(d) each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep that password confidential;

(e) it shall permit the Supplier, upon giving reasonable prior notice to the Customer, to audit the Services in order to establish the name of each Authorised User and it shall maintain accurate and up to date records of any sub-licensee that it permits to use the Services on these Conditions and shall, upon request from the Supplier, make available to the Supplier such records without delay;

(f) if any audit referred to in clause 2.2(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and

(g) if any of the audits referred to in clause 2.2(d) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the standard prices set by the Supplier from time to time within 10 Business Days of the date of the relevant audit.

2.4 The Customer shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:

(i) and except to the extent expressly permitted under these 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 (and, for the avoidance of doubt, the foregoing restrictions apply to the Customer’s use of the Software and/or Documentation, not the Erudus Data which re-use by the Customer shall not be so restricted); or

(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-readable form all or any part of the Software except to the extent that any such reduction of the Software to human readable form is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction; or

(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or

(c) utilise any “screen scrapers” or other automated/scripted solutions with the intention of downloading large datasets from the Software; or

(d) use the Services and/or Documentation to provide services to third parties; or

(e) subject to clause 20.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or

(f) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2.

2.6 Subject to clause 2.7, the rights provided under this clause 2 are granted to the Customer only (for use by it and any divisions within the Customer), and shall not be considered granted to any subsidiary or holding company of the Customer and in the event of any group company of the Customer wishing to access the Software or the Services, such group company shall be required to take out a separate subscription.

2.7 The Customer shall be permitted to provide access to the Software to caterers to whom it supplies products (“Permitted Sub-licensees”) as follows:

(a) access permitted to such caterers shall be on the same terms as these Conditions and the Customer shall remain primarily liable for any breach of these Conditions by any Permitted Sub-licensees;

(b) the Customer shall ensure that the number of Authorised Users at any time do not exceed the number of User Subscriptions that it has paid for pursuant to clause 8.1 and the Supplier shall be entitled to carry out audits from time to time in order to verify this;

(c) the Customer shall not be permitted to sub-licence or otherwise make the Services or Software available to other wholesaler or foodservice companies.

(d) breach of any provision of this clause 2.7 shall be classed as a material breach and the Customer reserves all rights as to a remedy, including but not limited to termination of the Customer’s access to the Software and/or termination of the Permitted Sub-licensee’s access.

3. Additional user subscriptions

3.1 Subject to clause 3.2 and clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number it took out initially and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these Conditions.

3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request (such approval not to be unreasonably withheld).

3.3 If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 14 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).

4. Services

4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these Conditions.

4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

(a) planned maintenance carried out during the maintenance window of 9.00 pm to 6.00 am UK time;

(b) unscheduled maintenance performed outside Normal Business Hours, provided that the Supplier has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance; and

(c) unexpected events outside of the Supplier’s control.

4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with standard electronic help desk services during Normal Business Hours.

5. Erudus data

5.1 The Customer acknowledges that it shall not acquire any right, title or interest in or to any of the Erudus Data.

5.2 In relation to data which the Customer might upload, the Customer permits the Supplier to include in reports statistics in relation to such data, for example, the number of times a customer searches for a product or the number of times a product specification is downloaded. Such data shall only be used for internal reporting and to provide manufacturers with statistical information and not for any commercial purposes.

5.3 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under these Conditions, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the European Economic Area in order to carry out the Services and the Supplier’s other obligations under these Conditions;

(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data on the Customer’s behalf;

(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

(d) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.

DATA BREACH

ACCESS REQUEST

If you wish to obtain a copy of your data held by us, then please write to at; Erudus Limited, Panther House, Asama Court, Newcastle Business Park, Newcastle Upon Tyne, Tyne and Wear, NE4 7YD.

Please note that you may be charged a fee of £10 for this service.

You may also be asked to provide proof of your identity, and for information that might help to locate the data, you are seeking.

6. Supplier’s obligations

6.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

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 Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the undertaking at clause 6.1, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, the Supplier:

(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 any specific Customer 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.

6.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations in connection with the Services.

7. Customer’s obligations

The Customer shall:

7.1 provide the Supplier with:

(a) all necessary co-operation in relation to these Conditions; and

(b) all necessary access to such information as may be required by the Supplier in order to provide the Services, including but not limited to security access information and configuration services;

7.2 keep all its Services registration information up to date, including any main email address provided to the Supplier;

7.3 comply with all applicable laws and regulations with respect to its activities under these Conditions and the receipt and use of the Erudus Data;

7.4 carry out all Customer responsibilities set out in these Conditions in a timely and efficient manner;

7.5 ensure that the Authorised Users and any Permitted Sub-licensees use the Services and the Documentation in accordance with these Conditions and the Customer shall be responsible for any Authorised User’s or Permitted Sub-licensee’s breach of these Conditions;

7.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Conditions;

7.7 ensure that its network and systems comply with any relevant specifications provided by the Supplier from time to time; and

7.8 be solely responsible for:

(i) procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s (or its contractor’s) data centres; and

(ii) 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. Charges and payment

8.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 8.

8.3 In the event that payment is made by debit or credit card, the Customer hereby authorises the Supplier to bill such card:

8.5 All amounts and fees stated or referred to in these Conditions:

(a) shall be payable in pounds sterling;

(b) are, subject to clause 12.4(b), non-cancellable and non-refundable;

(c) are exclusive of value added tax, which shall be added to amounts payable by the Customer.

8.6 The Supplier shall be entitled to increase the Subscription Fees and/or the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3.3 at the start of each Renewal Period upon 60 days’ prior notice to the Customer.

9. Proprietary rights

10. Confidentiality

10.2 For the avoidance of doubt Erudus Data shall not constitute Confidential Information.

10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.

10.6 The above provisions of this clause 10 shall survive termination of the Services, however arising.

11. Indemnity

11.1 The Customer acknowledges that the Erudus Data is input by food manufacturers and that the Supplier takes no part in such processes and has no involvement or influence in that regard. Consequently, the Customer shall hold harmless and defend and indemnify the Supplier against any 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 reliability or accuracy of the Erudus Data input into the Erudus system by food manufacturers and the Customer’s use of the Services and/or Documentation.

11.3 In the defence or settlement of any claim under clause 11.2, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the provision of the Services to the Customer on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.

11.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

12. Limitation of liability

12.1 This clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:

12.2 Except as expressly and specifically provided in these Conditions:

12.3 Nothing in these Conditions excludes the liability of the Supplier:

(a) for death or personal injury caused by the Supplier’s negligence; or

(b) for fraud or fraudulent misrepresentation.

12.4 Subject to clause 12.2 and clause 12.3:

(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:

(i) loss of profits,

(ii) loss of business,

(iii) depletion of goodwill and/or similar losses,

(iv) loss or corruption of data or information,

(v) pure economic loss, or

(vi) for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Conditions; and

(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of its obligations under these Conditions shall be limited to £100,000.

13. Term and termination

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

13.3 Without affecting any other right or remedy available to it, either party may terminate the subscription with immediate effect by giving written notice to the other party if:

13.5 On termination for any reason:

(a) all licences granted under these Conditions to the Customer shall immediately terminate;

(b) 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;

(c) clauses which expressly or by implication survive termination shall continue in full force and effect.

14. Force majeure

15. Variation

The Supplier reserves the right to vary these Conditions from time to time. Each time the Customer accesses the Services, the Conditions in force from time to time will apply to the Customer’s use of the Services. If the Supplier revises these Conditions, it will give notice of revisions to the Customer through the Erudus newsletter or other such direct contact to give reasonable advance notice of the changes and to let the Customer know how to cancel the Services if it is not happy with the changes. Clause 23 (Notices) shall not apply to such circumstances.

16. Waiver

17. Rights and remedies

Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

18. Severance

19. Entire agreement

20. Assignment

20.2 The Supplier 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 these Conditions.

21. No partnership or agency

22. Third party rights

23. Notices

24. Governing law and Jurisdiction

Caterer - Terms & Conditions

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in these Conditions.

Allergen & Nutritional Data: food ingredient information outlining whether particular products contain any of the major allergens, together with typical values by weight and reference intakes.

Authorised Users: those employees of the Customer who are authorised by the Customer to use the Services and the Documentation at all times in accordance with these Conditions.

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.

Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 10.2(b) or 10.5.

Customer: the Caterer entering into these terms and conditions for access to the Erudus software service.

Effective Date: the date of entry by the Customer into a subscription to the Services.

Erudus Data: the allergen, nutritional and/or (where applicable) technical information data inputted into the Erudus system by or on behalf of food manufacturers.

Initial Subscription Term: where the Customer subscribes for the Services directly with the Supplier, the initial 12 calendar month term of the subscription, commencing on the Effective Date.

Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.

Off-Pack Information: information which may be relevant and specific to a product or a supplier of a product but which is not legally required to appear on the product label.

Renewal Period: the period described in clause 13.1.

Services: the Software subscription services provided by the Supplier to the Customer under these Conditions via www.erudus.com or any other website notified to the Customer by the Supplier from time to time for access to the Allergen & Nutritional Data (and Off-Pack Information in the event that the Supplier (at its sole discretion) makes such available at any time to the Customer) and as more particularly described in the Documentation.

Subscription Term: has the meaning given in clause 13.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

User Subscriptions: the user subscriptions purchased by the Customer pursuant to clause 8.1 (or which are made available to it where clause 2.2 applies) which entitle Authorised Users to access and use the Services and the Documentation in accordance with these Conditions.

1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

2. User subscriptions

2.1 Subject to the Customer, as appropriate, purchasing a User Subscription in accordance with clause 8.1 and subject to the restrictions set out in this clause 2 and as set out elsewhere in these Conditions, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.

2.2 Without prejudice to clause 2.1, where the Customer accesses the Services on a no cost basis by virtue of its wholesaler making such access available to it (as wholesalers subscribing to the Erudus services are able to do), in consideration of the Supplier making such access to the Software available to the Customer, the Customer agrees at all times to act in accordance with these Conditions.

2.3 In relation to the Authorised Users, the Customer undertakes that:

(b) only persons aged over 16 years old are authorised to be added as an Erudus user. This also restricts any persons under 16 from accessing the Erudus platform at any time.

(c) it will not allow or suffer any User Subscription 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 and/or Documentation;

(d) each Authorised User shall keep a secure password for his use of the Services and Documentation and that each Authorised User shall keep that password confidential;

(e) it shall permit the Supplier, upon giving reasonable prior notice to the Customer, to audit the Services in order to establish the name of each Authorised User and it shall maintain accurate and up to date records of any sub-licensee that it permits to use the Services on these Conditions and shall, upon request from the Supplier, make available to the Supplier such records without delay;

(f) if any audit referred to in clause 2.3(d) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and

(g) if any of the audits referred to in clause 2.3(d) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the standard prices set by the Supplier from time to time within 10 Business Days of the date of the relevant audit.

2.4 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that is, without limitation, unlawful, threatening, obscene, discriminatory or otherwise illegal or which might cause damage or injury to any person or property. The Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to the Software or any material that breaches the provisions of this clause in the event of the Customer being the source of such material.

2.5 The Customer shall not:

2.6 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.

2.7 The rights provided under this clause 2 are granted to the Customer only (for use by it and any divisions within the Customer), and shall not be considered granted to any subsidiary or holding company of the Customer and in the event of any group company of the Customer wishing to access the Software or the Services, such group company shall be required to take out a separate subscription.

3. Additional user subscriptions

3.1 Subject to clause 3.2 and clause 3.3 and where the Customer’s subscribing wholesaler (if such is applicable) is not able to provide it with additional access, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of these Conditions.

4. Services

4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of these Conditions.

4.2 The Supplier shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:

4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with standard electronic help desk services during Normal Business Hours.

5. Erudus data

5.1 The Customer acknowledges that it shall not acquire any right, title or interest in or to any of the Erudus Data.

5.2 In relation to any usage of the Services by the Customer, the Customer permits the Supplier to include in reports statistics in relation to such usage, for example, the number of times a customer searches for a product or the number of times a product specification is downloaded. Such data shall only be used for internal reporting and to provide manufacturers with statistical information and not for any commercial purposes. Data regarding usage of the Services will also be used to make improvements to the Services.

5.3 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations under these Conditions, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:

DATA BREACH

ACCESS REQUEST

If you wish to obtain a copy of your data held by us, then please write to at; Erudus Limited, Panther House, Asama Court, Newcastle Business Park, Newcastle Upon Tyne, Tyne and Wear, NE4 7YD.

Please note that you may be charged a fee of £10 for this service.

You may also be asked to provide proof of your identity, and for information that might help to locate the data, you are seeking.

6. Supplier’s obligations

6.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.

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 Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the undertaking at clause 6.1, the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, the Supplier:

6.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations in connection with the Services.

7. Customer’s obligations

The Customer shall:

7.1 provide the Supplier with:

7.2 keep all its Services registration information up to date, including any main email address provided to the Supplier;

7.3 comply with all applicable laws and regulations with respect to its activities under these Conditions and the receipt and use of the Erudus Data;

7.4 carry out all Customer responsibilities set out in these Conditions in a timely and efficient manner;

7.6 obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under these Conditions;

7.7 ensure that its network and systems comply with any relevant specifications provided by the Supplier from time to time; and

7.8 be solely responsible for:

(i) procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s (or its contractor’s) data centres; and

(ii) 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. Charges and payment

8.1 Where the Customer is paying for the Services, the Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this clause 8.

8.3 In the event that payment is made by debit or credit card, the Customer hereby authorises the Supplier to bill such card:

(a) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(b) subject to clause 13.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period.

8.5 All amounts and fees stated or referred to in these Conditions:

(a) shall be payable in pounds sterling;

(b) are, subject to clause 12.4(b), non-cancellable and non-refundable;

(c) are exclusive of value added tax, which shall be added to amounts payable by the Customer.

9. Proprietary rights

10. Confidentiality

10.2 For the avoidance of doubt Erudus Data shall not constitute Confidential Information.

10.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.

10.6 The above provisions of this clause 10 shall survive termination of the Services, however arising.

11. Indemnity

11.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:

12. Limitation of liability

12.1 This clause 12 sets out the entire financial liability of the Supplier (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 these Conditions;
(b) in respect of any use made by the Customer of the Services and Documentation 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 these Conditions or the Services.

12.2 Except as expressly and specifically provided in these Conditions:

12.3 Nothing in these Conditions excludes the liability of the Supplier:

(a) for death or personal injury caused by the Supplier’s negligence; or

(b) for fraud or fraudulent misrepresentation.

12.4 Subject to clause 12.2 and clause 12.3:

(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any:

(i) loss of profits,

(ii) loss of business,

(iii) depletion of goodwill and/or similar losses,

(iv) loss or corruption of data or information,

(v) pure economic loss, or

(vi) for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Conditions; and

(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of its obligations under these Conditions shall be limited to £100,000.

13. Term and termination

13.1 Where the Customer subscribes directly with the Supplier for the Services (but subject at all times to clause 13.3, the Customer’s subscription shall, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, the subscription shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:

(a) either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case the subscription shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of these Conditions,

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.

13.2 Where the Customer accesses the Services by virtue of its wholesaler making the Services available to it by virtue of the wholesaler being a subscriber of Erudus services, there is no guaranteed term for accessing the Services as continued access to the Services by the Customer in such circumstances are dependent on, for example and without limitation, the wholesaler agreeing from time to time to allow the Customer to have access to the Services, the wholesaler remaining a subscriber to the Erudus services or the wholesaler continuing to supply the Customer with products. The Supplier shall not be liable to the Customer for any liability whatsoever where the wholesaler for whatever reason discontinues the Customer’s access to the Services. In such event and if the Customer wishes to continue its access to the Services, the Customer will need to subscribe to the Services as a new customer.

13.3 There are some customers for whom the Services renew on 1 October in each year and, therefore, for which the expiry of a Renewal Period is on 30 September in each year. This will remain the case for such customers and clause 13.1 shall be construed accordingly in the case of such customers.

13.4 Without affecting any other right or remedy available to it, either party may terminate the subscription with immediate effect by giving written notice to the other party if:

13.5 Without limiting its other rights or remedies, the Supplier may suspend provision of or access to the Services if either of clauses 13.4(b) or 13.4(c) apply in respect of actions or omissions on the part of the Customer or if the Customer becomes subject to any of the events listed in clause 13.4(d) to 13.4(h) or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount required under these Conditions.

13.6 Where a Customer’s access to the Services is by virtue of its wholesaler being a wholesaler with a subscription to the Erudus services and the wholesaler ceases to be a subscriber for any reason or if such wholesaler ceases to permit the Customer to access the Services via the wholesaler’s subscription for any reason, the Customer’s right to access the Services shall be terminated without any liability on the part of the Supplier. In such event and if the Customer wishes to continue its access to the Services, the Customer will need to subscribe to the Services as a new customer.

13.7 On termination for any reason:

(a) all licences granted under these Conditions to the Customer shall immediately terminate;

(b) 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;

(c) clauses which expressly or by implication survive termination shall continue in full force and effect.

14. Force majeure

15. Variation

The Supplier reserves the right to vary these Conditions from time to time. Each time the Customer accesses the Services, the Conditions in force from time to time will apply to the Customer’s use of the Services. If the Supplier revises these Conditions, it will give notice of revisions to the Customer through the Erudus newsletter or other such direct contact to give reasonable advance notice of the changes and to let the Customer know how to cancel the Services if it is not happy with the changes. Clause 23 (Notices) shall not apply to such circumstances.

16. Waiver

17. Rights and remedies

Except as expressly provided in these Conditions, the rights and remedies provided under these Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.

18. Severance

19. Entire agreement

20. Assignment

20.2 The Supplier 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 these Conditions.

21. No partnership or agency

22. Third party rights

23. Notices

24. Governing law and Jurisdiction

Public API - Terms & Conditions

The below terms and conditions (“Conditions”) set out the basis upon which Erudus Limited (company number 6315071 with registered office address is Panther House, Asama Court, Newcastle Business Park, Newcastle Upon Tyne, Tyne and Wear, NE4 7YD) (“Supplier”) agrees to provide, and upon which you as the Customer are agreeing to take, certain modules of the Erudus API Program, such being appropriate to your Erudus account subscription. By proceeding with this Erudus API Program licence, the Customer (as defined below) agrees to be bound by these Conditions.

1. Interpretation

1.1 The definitions and rules of interpretation in this clause apply in this licence.

Affiliate: any business entity from time to time controlling, controlled by, or under common control with, either party.

API Products: the particular categories of Data that the Supplier will make available to the Customer, such categories being specific to the Customer’s expected usage and such being, at all times, at the sole discretion of the Supplier.

Customer: the customer entering into these Conditions for a licence to access certain API Products within the Software and to use such Data as is made available to it.

Customer System: any information technology system or systems owned or operated by the Customer on which Data received through the Software is stored.

Data: the API Product data or information, in whatever form, including images, obtained by the Customer through the Software.

Derived Data: any Data (wholly or in part) Manipulated to such a degree that it:

(a) cannot be identified as originating or deriving directly from the Data and cannot be reverse-engineered such that it can be so identified; and

(b) is not capable of use substantially as a substitute for the Data.

Distribute: to make Data accessible (including the provision of access through a database or other application populated with the Data, re-selling, transferring or disclosing the Data) by any means, including any electronic means, to any customer of the Customer.

Effective Date: the date of entry by the Customer into a licence for the Software on these Conditions.

Fee: the monthly licence fee payable by the Customer to the Supplier under clause 6.

Initial Term: a period of 12 months commencing on the Commencement Date.

Maintenance Release: release of the Software that corrects faults, adds functionality or otherwise amends or upgrades the Software, but which does not constitute a New Version.

Manipulate: to combine or aggregate the Data (wholly or in part) with other data or information or to adapt the Data (wholly or in part).

Manipulated Data: any Data which has been Manipulated. Manipulated Data includes any Derived Data.

Renewal Period: each successive 12 month period after the Initial Term for which this licence is renewed.

Software: the “Erudus API Program”, being modules within Erudus which, in respect of the Customer, will enable the Customer to obtain certain Data directly from Erudus, such Data being by reference to the particular API Products made available by the Supplier to the Customer.

Term: the Initial Term and any Renewal Periods.

Volume Plan: the particular price band that the Customer opts for in connection with the volume of Data it intends to access per month.

1.3 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.

1.5 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.

2. Activation And Testing

2.1 Following entry into the licence contract to which these Conditions apply and in consideration of payment of the Fee, the Supplier shall enable certain API modules within Erudus which will provide the Customer with access to certain API Products. The Data available to the Customer will be determined by the particular API Products made available to the Customer by the Supplier at its sole discretion and such will be determined by the expected and permitted use of the Data by the Customer.

2.4 The Customer shall be deemed to have accepted the Software if:

(a) the testing referred to at clause 2.2 is successful; or

(b) the Customer commences operational use of the Software.

3. Software and Data Licences

3.1 In consideration of payment of the Fee by the Customer to the Supplier but subject to any right of earlier termination, the Supplier grants to the Customer a non-exclusive, non-transferable, revocable licence for the Licence Term to use the Software for the purposes of downloading permitted Data from Erudus for use by the Customer in connection with its commercial operations.

3.2 In consideration of payment of the Fee by the Customer to the Supplier but subject to any right of earlier termination, the Supplier grants to the Customer a non-exclusive, non-transferable, revocable licence for the Licence Term to:

(a) access, view and Manipulate Data and create Derived Data;

(b) store the Data and Manipulated Data on the Customer System;

(c) Distribute the Data and Manipulated Data to its customers through the Customer System; and

(d) use (but not modify) any documentation (however provided) in support of the activities referred to in this clause.

3.3 The Customer’s licence to the Software and to the Data shall be concurrent and any reference in these Conditions to “licence” shall refer to the Software and Data licences together.

3.4 In relation to scope of use of the Software and the Data:

(a) for the purposes of clause 3.1, use of the Software shall be restricted to use of the Software in object code form for the purpose of the Customer transferring Data from Erudus into the the Customer System and the Customer agrees that only Data concerning the API Product(s) for which the Customer is licensed to access shall be obtained by it;

(b) the Customer may not use the Software or Data other than as specified in clause 3.1 and clause 3.2 respectively and clause 3.4(a) without the prior written consent of the Supplier, and the Customer acknowledges that additional fees may be payable on any change of use approved by the Supplier;

(c) except as expressly stated in this clause 3, the Customer has no right (and shall not permit any third party) to copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Software in whole or in part except to the extent that any reduction of the Software to human readable form (whether by reverse engineering, decompilation or disassembly) is necessary for the purposes of integrating the operation of the Software with the operation of other software or systems used by the Customer, unless the Supplier is prepared to carry out such action at a reasonable commercial fee or has provided the information necessary to achieve such integration within a reasonable period, and the Customer shall request the Supplier to carry out such action or to provide such information (and shall meet the Supplier’s reasonable costs in providing that information) before undertaking any such reduction;

(d) the Customer shall use the Software in a fair manner and applying common sense in the Data that it accesses and obtains through the Software and the Supplier, at its sole discretion, reserves the right to control the amount or type of Data being made available to the Customer if the Supplier reasonably believes that the Customer is acting contrary to this obligation of fair use;

(e) the Customer shall not do anything which may damage the reputation of the Supplier, the Data or the Software;

(f) the Customer shall only use the Software and/or any documentation (howsoever provided) and the Data in the manner specifically permitted by these Conditions;

(g) the Customer shall not utilise any “screen scrapers” or other automated/scripted solutions with the intention of downloading large datasets using the Software or from Erudus;

(h) the Customer shall not use the Read/GET functionality within the Software to publish to websites, intranets or any third parties;

(i) the Customer shall be entitled to cache the Data obtained however the Customer shall be entirely responsible for the frequency of any updates that the Customer makes in relation to such cached Data and the Supplier shall have no liability to the Customer or any third party in the event that any such cached Data is found for whatever reason to be out of date or unreliable.

3.5 In the event that the Customer publishes any element of the Data either in print or digitally, the Customer shall ensure that such Data is accompanied by a prominent statement stating “This data has been supplied by Erudus Limited” (or similar) and, where technically and commercially feasible, be accompanied by a copy of the Erudus logo (which can be supplied upon request) and a date and time stamp evidencing when such Data was downloaded or otherwise obtained.

3.6 The Customer may not use the Software, the Data or any information provided by the Supplier or obtained by the Customer whether during any such reduction permitted under clause 3.4(c) or otherwise to create any software whose expression is substantially similar to that of the Software nor use such information in any manner which would be restricted by any copyright subsisting in it.

3.7 The Supplier will monitor the operation of the Software and the volume of Data transfers handled by the Software at any time. In order to maintain operational status of the Software during busy periods, the Supplier reserves the right to control the speed of the connection of the Software to Erudus from time to time.

3.8 The Customer shall not:
(a) sub-license, assign or novate the benefit or burden of this licence in whole or in part;

(b) allow the Software to become the subject of any charge, lien or encumbrance; and

(c) deal in any other manner with any or all of its rights and obligations under these Conditions, without the prior written consent of the Supplier, such consent not to be unreasonably withheld or delayed.

3.9 The Supplier may at any time sub-license, assign, novate, charge or deal in any other manner with any or all of its rights and obligations under this licence, provided it gives written notice to the Customer.

3.10 Notwithstanding clause 7, a party assigning any or all of its rights under this agreement may disclose to a proposed assignee any information in its possession that relates to this agreement or its subject matter and the other party which is reasonably necessary to disclose for the purposes of the proposed assignment.

3.11 The Customer shall:

(a) ensure that the Software is installed on designated equipment only;

(b) keep a complete and accurate record of the Customer’s copying and disclosure of the Software and its users, and produce such record to the Supplier on request from time to time;

(c) notify the Supplier as soon as it becomes aware of any unauthorised use of the Software by any person;

(d) pay, for broadening the scope of the licences granted under this licence to cover the unauthorised use, an amount equal to the fees which the Supplier would have levied (in accordance with its normal commercial terms then current) had it licensed any such unauthorised use on the date when such use commenced.

3.12 The Customer shall permit the Supplier to inspect and have access to any premises (and to the computer equipment located there) at or on which the Software is being kept or used, and have access to any records kept in connection with this licence, for the purposes of ensuring that the Customer is complying with the terms of this licence, provided that the Supplier provides reasonable advance notice to the Customer of such inspections, which shall take place at reasonable times.

3.13 Where there are any security features (such as password, key, PIN or other such feature) in relation to the Customer’s use of the Software (“Security Features”), the Security Features must be kept confidential by the Customer and not lent, shared, transferred or otherwise misused.

3.14 The licence granted to the Customer under this clause 3 is granted to the Customer only (for use by it and any divisions within the Customer), and shall not be considered granted to any subsidiary or holding company of the Customer and in the event of any group company wishing to access the Software, such group company shall be required to take out a separate licence.

4. Maintenance releases

5. New Versions

The Supplier will give notice of any New Version being released and will also give suitable notice of any older versions of the Software that will no longer be supported.

6. Fees

6.1 The Fees in respect of the licence of the Software and for the Data shall, separately, be as agreed from time to time with the Supplier. In respect of the Software licence, the Fee shall be by reference to the API Products taken by the Customer and, in respect of the Data licence, the Fee shall be calculated by reference to the Volume Plan chosen by the Customer. Such Fees shall be payable monthly in advance.

6.2 Where the Customer’s access to Data exceeds the Customer’s Volume Plan allowance, the costs attributable to the excess shall be billed to the customer monthly in arrears.

6.3 The Customer shall be required to provide payment card details when setting up an account with the Supplier and the Customer hereby authorises the Supplier to request payment from such credit or debit card:

(a) on the Effective Date and monthly thereafter for the monthly Fees payable in advance for access to the Software and for the Customer’s Volume Plan Fee; and

(b) on a monthly basis for any excess charges where the Customer’s access to the Data exceeds the Customer’s Volume Plan entitlement.

6.4 The Supplier shall be entitled to monitor the usage of the Software and the volume of Data accessed by the Customer and may, upon giving no less than 30 days prior notice, vary the Volume Plan that the Customer is on and vary the Volume Plan Fee accordingly if the Customer’s volume of Data accessed regularly exceeds the Volume Plan that the Customer is on from time to time.

6.5 If for whatever reason the Supplier has not received payment within 15 days of either the Effective Date or the date upon which the Supplier makes a request for payment under clause 6.3 (each being the due date for payment for the purposes of these Conditions), and without prejudice to any other rights and remedies of the Supplier, the Supplier may, without liability to the Customer, disable the Customer’s access to all or part of the Software or the Data and the Supplier shall be under no obligation to provide any or all of the Software or access to Data while payment remains outstanding.

6.6 All sums payable under this licence are exclusive of VAT or any relevant local sales taxes, for which the Customer shall be responsible.

6.7 If the Customer fails to make any payment due to the Supplier under these Conditions by the due date for payment, then, without limiting the Supplier’s remedies under clause 6.5 or clause 11, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.

7. Confidentiality

7.2 The provisions of clause 7.1 shall survive termination of the licence, however arising.

8. Supplier’s warranties

8.2 Without limiting the effect of clause 8.5, the Supplier does not warrant that:

(a) the supply of the Data or use of the Software will be uninterrupted or error-free. In the event of any downtime in respect of the Software, the Supplier will use all reasonable skill and care in seeking to return the Software to operational status;

(b) the Software will run on the Customer System;

(c) the Data is accurate, complete, reliable, secure, useful, fit for purpose or timely, given that the Data has been provided by food manufacturers without any involvement of or input by the Supplier.

8.3 The Supplier shall not be liable for any connectivity issues between the Customer System, the Software and Erudus outside of its reasonable control.

8.4 The Customer acknowledges that the Software has not been developed to meet the individual requirements of the Customer.

8.5 All other conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded, including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or the use of reasonable skill and care.

9. Limits of liability and customer indemnity

9.1 Except as expressly stated in clause 9.2:

(a) the Supplier shall not in any circumstances have any liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories:

(i) special damage even if the Supplier was aware of the circumstances in which such special damage could arise;

(ii) loss of profits;

(iii) loss of anticipated savings;

(iv) loss of business opportunity;

(v) loss of goodwill;

(vi) loss or corruption of Data or data, provided that this clause 9.1(a) shall not prevent claims for loss of or damage to the Customer’s tangible property that fall within the terms of clause 9.1(b) or any other claims for direct financial loss that are not excluded by any of categories (i) to (vi) inclusive of this clause 9.1(a);

(b) the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this licence or any collateral contract, shall in no circumstances exceed a sum equal to the Fees paid during the 12 months immediately preceding the date on which the claim arose; and

(c) the Customer agrees that, in entering into this licence, either it did not rely on any representations (whether written or oral) of any kind or of any person other than those expressly set out in this licence or (if it did rely on any representations, whether written or oral, not expressly set out in this licence) that it shall have no remedy in respect of such representations and (in either case) the Supplier shall have no liability in any circumstances otherwise than in accordance with the express terms of this licence.

9.2 The exclusions in clause 8.5 and clause 9.1 shall apply to the fullest extent permissible at law, but the Supplier does not exclude liability for:

9.4 The Customer shall defend, indemnify and hold harmless the Supplier 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 claim or liability (including any allegations of liability) in respect of any use made by the Customer of the Data or in connection with any Manipulated Data created by the Customer.

10. Intellectual property rights

10.1 The Customer acknowledges that all Intellectual Property Rights in the Software and any Maintenance Releases and, subject to clause 10.2, the Data belong and shall belong to the Supplier or the relevant third-party owners (as the case may be), and the Customer shall have no rights in or to the Software or the Data other than the right to use it in accordance with the terms of this licence. The Customer acknowledges that the Supplier and its licensors has or have made and will continue to make substantial investment in the obtaining, selection, coordination, development, presentation and supply of the Data.

10.2 All Derived Data and all Intellectual Property Rights in the Derived Data shall be owned by the Customer and there shall be no limitations or restrictions on the Customer’s use or distribution of Derived Data.

10.3 The Supplier undertakes at its own expense to defend the Customer or, at its option, settle any claim or action brought against the Customer alleging that the possession or use of the Software (or any part thereof) in accordance with the terms of this licence infringes the UK Intellectual Property Rights of a third party (“Claim”) and shall be responsible for any reasonable losses, damages, costs (including legal fees) and expenses incurred by or awarded against the Customer as a result of or in connection with any such Claim. For the avoidance of doubt, this clause shall not apply where the Claim in question is attributable to possession or use of the Software (or any part thereof) by the Customer other than in accordance with the terms of this licence, use of the Software in combination with any hardware or software not supplied or specified by the Supplier if the infringement would have been avoided by the use of the Software not so combined, or use of a non-current release of the Software.

10.4 If any third party makes a Claim, or notifies an intention to make a Claim against the Customer, the Supplier’s obligations under clause 10.3 are conditional on the Customer:

10.5 If any Claim is made, or in the Supplier’s reasonable opinion is likely to be made, against the Customer, the Supplier may at its sole option and expense:

(a) procure for the Customer the right to continue to use the Software (or any part thereof) in accordance with the terms of this licence;

(b) modify the Software so that it ceases to be infringing;

(c) replace the Software with non-infringing software; or

(d) terminate this licence immediately by notice in writing to the Customer and refund any of the Fee paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software to the date of termination), provided that if the Supplier modifies or replaces the Software, the modified or replacement Software must comply with the warranty contained in clause 8.1 and the Customer shall have the same rights in respect thereof as it would have had under those clauses had the references to the date of this licence been references to the date on which such modification or replacement was made.

10.6 Notwithstanding any other provision in this agreement, clause 10.3 shall not apply to the extent that any claim or action referred to in that clause arises directly or indirectly through the possession or use of any third-party software or through the breach of any third-party terms by the Customer.

10.7 This clause 10 constitutes the Customer’s exclusive remedy and the Supplier’s only liability in respect of Claims and, for the avoidance of doubt, is subject to clause 9.1.

11. Duration and termination

11.1 This licence shall commence on the Effective Date. Unless terminated earlier in accordance with any other provision of these Conditions, this licence shall continue for the Initial Term and shall automatically extend for a Renewal Period at the end of the Initial Term and at the end of each Renewal Period. Either party may give written notice to the other party, not later than 60 days before the end of the Initial Term or the relevant Renewal Period, to terminate this agreement at the end of the Initial Term or the relevant Renewal Period, as the case may be.

11.2 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:

11.3 Without limiting its other rights or remedies, the Supplier may suspend provision of or access to the Services if either of clauses 11.1(b) or 11.1(c) apply in respect of actions or omissions on the part of the Customer or if the Customer becomes subject to any of the events listed in clause 11.1(d) to 11.1(h) or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount required under these Conditions.

11.4 The Supplier shall be entitled to terminate this licence at any time on giving no less than 3 months’ written notice to the Customer.

11.5 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

11.6 Termination or expiry of this licence shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the licence which existed at or before the date of termination or expiry.

11.7 On termination of this licence for any reason or on expiry of the Term:

(a) all rights granted to the Customer under this licence shall cease;

(b) the Customer shall cease all activities authorised by this licence;

(c) the Customer shall immediately pay to the Supplier any sums due to the Supplier under this licence;

(d) the Supplier shall be entitled to deactivate and disable the Customer’s use of the Software; and

(e) the Customer shall as soon as reasonably practicable ensure that all Data and Manipulated Data (excluding any Derived Data) is deleted from the Customer System.

12. Waiver

13. Remedies

Except as expressly provided in these Conditions, the rights and remedies provided under this licence are in addition to, and not exclusive of, any rights or remedies provided by law.

14. Entire agreement

14.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract.

14.4 Nothing in this clause shall limit or exclude any liability for fraud.

15. Variation

The Supplier reserves the right to vary these Conditions from time to time. Each time the Customer utilises the Software, the Conditions in force from time to time will apply to the Customer’s use of the Software. If the Supplier revises these Conditions, it will give notice of revisions to the Customer through the “Notification System” within the Erudus system (together with the date upon which such revisions will become effective). Information regarding such changes will also be provided through the Erudus newsletter or other such direct contact to give reasonable advance notice of the changes and to let the Customer know how to disable its use of the Software if it is not happy with the changes. Clause 20 (Notices) shall not apply to such circumstances.

16. Severance

17. Third-party rights

18. No partnership or agency

18.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

19. Force majeure

The Supplier shall have no liability to the Customer in respect of the performance of the Software nor any liability for a delay in performing, or failing to perform, any of its obligations under this licence if the Supplier is prevented from or delayed in performing its obligations, 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 the Supplier or any other party), failure of a utility service or transport or telecommunications network (or any part thereof), act of God, war, riot, civil commotion, malicious damage (including but not limited to a cyber attack or virus), compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that, in respect of any event that may or is expected to subsist for any material period, the Customer is notified of such an event and its expected duration.

20. Notices

20.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.