The below terms and conditions (“Conditions”) set out the basis upon which Erudus Limited (company number 6315071 with registered office address is 11 Cartwright Court, Dyson Wood Way, Bradley Business Park, Huddersfield, West Yorkshire, HD2 1GN) (“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.
1.1 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.
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.
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.
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 (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.
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 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:
(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 (or are made available to it by a subscribing wholesaler) 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.
(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:
(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 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.
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).
4.1 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 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:
(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.
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.
If you wish to obtain a copy of your data held by us, then please write to at; Erudus Limited, 11 Cartwright Court, Bradley Business Park, Huddersfield, West Yorkshire, HD2 1GN.
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, 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.
6.3 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 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 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 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.
8.2 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 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
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.
10.1 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 Erudus Data shall not constitute 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.
11.1 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.
11.2 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 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:
(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 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:
(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.
13.5 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
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.
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.
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.
18.1 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.
20.1 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.
23.1 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 email@example.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).