TERMS AND CONDITIONS

SERVICE SUPPLY

Including Limitation of Liability and Contract Term

1.        INTERPRETATION        2

2.        BASIS OF CONTRACT        3

3.        SUPPLY OF SERVICES        3

4.        OPERATING SYSTEM REQUIREMENTS        3

5.        SUPPORT        3

6.        CHANGES TO THE SERVICE        3

7.        INTERRUPTION OF SERVICES        4

8.        CLIENT'S OBLIGATIONS        4

9.        CHARGES AND PAYMENT        5

10.        INTELLECTUAL PROPERTY RIGHTS        5

11.        DATA PROTECTION AND DATA PROCESSING        5

12.        CONFIDENTIALITY        6

13.        LIMITATION OF LIABILITY        6

14.        CONTRACT TERM        7

15.        TERMINATION        7

16.        EARLY TERMINATION        8

17.        CONSEQUENCES OF TERMINATION        8

18.        ASSIGNMENT AND OTHER DEALINGS        9

19.        NO PARTNERSHIP OR AGENCY        9

20.        VARIATION        9

21.        ENTIRE AGREEMENT        9

22.        THIRD PARTY RIGHTS        9

23.        NOTICES        9

24.        GOVERNING LAW        10

25.        FORCE MAJEURE        10

26.        SEVERANCE        10

  1. INTERPRETATION

  1. The following definitions and rules of interpretation apply in these conditions:

Allergen Checker:

Allergen Checker 2020 Ltd, incorporated in England and Wales with company number: 12511552 and with its registered office at Hillview House, Leylands Farm Business Park, Colden Common, Winchester, SO21 1TH

Business Day:

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

Charges:

the charges payable by the Client for the supply of the Services in accordance with clause 9 (Charges and payment).

Conditions:

these terms and conditions as amended from time to time in accordance with clause 20.

Contract:

any contract between Allergen Checker and the Client for the subscription to the Service or the supply of any services in accordance with these Conditions.

Control:

has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.

Client:

the person or firm who subscribes for the Service.

Client Default:

has the meaning set out in clause 8.2.

Data Protection Legislation:

(i) unless and until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.

GDPR:

General Data Protection Regulation ((EU) 2016/679).

Intellectual Property Rights:

copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off, rights in designs, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Service:

the online service, application or other form of access to the Allergen Checker system supplied by Allergen Checker to the Client.

  1. 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. A reference to writing or written includes email.

  1. References to clauses are to the clauses of these Conditions.

  1. Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

  1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.

  1. BASIS OF CONTRACT

  1. By subscribing for the Service the Client agrees to these Conditions which will be binding.

  2. The Client should not subscribe for the Service unless it has read and agrees to all of these Conditions.

  1. Access to and use of the Service shall commence upon subscription at which point and on which date the Contract shall come into existence.

  1. These Conditions apply to the Contract to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

  1. SUPPLY OF SERVICES

  1. Allergen Checker shall supply and make the Service available to the Client on not more than two devices unless expressly agreed in writing.

  1. Allergen Checker warrants to the Client that the Services will be provided using reasonable care and skill.

  2. Where Services are subject to specific charges, such Services shall not be available unless and until payment is received in advance.

  1. OPERATING SYSTEM REQUIREMENTS

  1. The Services are generally provided via the website which can be accessed through most web browsers and on most devices able to support such browsers.

  2. Should you have any issues with your device being able to access the Services please see ‘Support’ below.

  1. SUPPORT

The Client shall be able to raise questions about the Service or report any issues with the Client’s use of or access to the Service by email to support@allergenchecker.co.uk.

  1. CHANGES TO THE SERVICE

  1. Allergen Checker may automatically update or change the Service to improve performance, enhance functionality, reflect changes to any operating system or to address security issues without reference to the Client provided that such change does not materially impact on the nature, quality or accessibility of the Service.

  2. If the Client chooses not to install any update or opts not to receive any automatic updates then access to and use of the Service may be hindered, reduced or cease to be available.

  1. INTERRUPTION OF SERVICES

  1. Allergen Checker uses reasonable efforts to ensure that the Service will be available and accessible at all reasonable times and as required by the Client but Allergen Checker makes no warranty that the Service will be available without interruption or downtime.

  2. Allergen Checker will use reasonable endeavours to ensure that maintenance of any software systems utilised to provide the Service is conducted outside of normal business hours whenever reasonably possible.

  3. Allergen Checker will not be liable for any interruption to the Service due wholly or in part to any loss of connectivity or interruption of services by any third party.

  1. CLIENT'S OBLIGATIONS

  1. The Client shall:

  1. co-operate with Allergen Checker in all matters relating to the Service;

  1. provide Allergen Checker with such information and materials as Allergen Checker may reasonably require in order to supply the Service, and ensure that such information is complete and accurate in all material respects;

  1. obtain and maintain all necessary licences, permissions and consents which may be required for the Service;

  2. not use access or attempt to use or access the Services on any more than two devices;

  3. not copy or attempt to copy the Service or any aspect of the Service provision (including any code or imaging used to provide the Service);

  4. not translate, merge, adapt, vary, alter or modify, the whole or any part of the Service nor permit the Service or any part of it to be combined with, or become incorporated in, any other programs, except as necessary to use the Service on devices as permitted in these terms;

  1. comply with all applicable laws, including health and safety laws;

  2. not provide any third party with any access to or use of the Service or any output of the Service at any time in any form;

  3. use all reasonable endeavours to protect the security of any access details to utilise the Service including usernames and passwords and shall notify Allergen Checker promptly it is reasonably considers there to be a breach or a significant risk of a breach of such security occurring;

  4. comply with any ‘fair use’ policy published by Allergen Checker from time to time;

  5. use all reasonable endeavours to protect Allergen Checker’s commercial interests and reputation.

  1. Allergen Checker shall be entitled to take steps to monitor a Client’s compliance with clause 8.1 including, but not limited to, logging, retaining and reviewing the IP addresses used to access the Services.

  2. If Allergen Checker's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Client or failure by the Client to perform any relevant obligation (Client Default):

  1. without limiting or affecting any other right or remedy available to it, Allergen Checker shall have the right to suspend the Service until the Client remedies the Client Default and to rely on the Client Default to relieve it from the performance of any of its obligations in each case to the extent the Client Default prevents or delays Allergen Checker’s performance of any of its obligations;

  1. Allergen Checker shall not be liable for any costs or losses sustained or incurred by the Client arising directly or indirectly from Allergen Checker’s failure or delay to perform any of its obligations as set out in this clause 8.2; and

  1. the Client shall reimburse Allergen Checker on written demand for any costs or losses sustained or incurred by Allergen Checker arising directly or indirectly from the Client Default including any Charges that would have been due under the Contract had Allergen Checker been able to provide the Services but for the Client Default.

  1. CHARGES AND PAYMENT

  1. Allergen Checker may allow access to limited Services free of charge but is under no obligation to do so. The Charge for subscription and for full access and use of the Services is £360 per annum inclusive of VAT.

  2. Payment shall be annually in advance in respect of a 12 month subscription to the Service.

  3. In the event that the Client accesses or utilises the Service in any way or Allergen Checker makes or continues to make the Service available to the Client when payment has not been received in accordance with clause 9.2:

  1. Allergen Checker may, at its absolute discretion, suspend or terminate the Client’s access to the Service; and

  1. the Client shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment and interest under this clause will accrue and compounded each day at the higher rate of either:

  1. 8% a year above the Bank of England's base rate from time to time; or

  2. 4% a year above the base rate from time to time of Lloyds Bank plc.

  1. If the Client fails to make a payment due to Allergen Checker under a Contract by the due date, then

  2. All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

  1. INTELLECTUAL PROPERTY RIGHTS

  1. Allergen Checker, in consideration for the Charges and subject to these Conditions, licenses the Service to the Client:

  1. Access to the Services hosted at domain www.allergenchecker.co.uk;

  2. Any mobile application software provided by Allergen Checker to access the Service and any updates or supplements to it; and

  3. The output and content provided by Allergen Checker to the Client through the Service.

  1. All Intellectual Property Rights in or arising out of or in connection with the Service (other than Intellectual Property Rights in any materials or information provided by the Client) shall be owned by Allergen Checker.

  1. The Client grants Allergen Checker a fully paid-up, non-exclusive, royalty-free, licence to copy and modify any materials or information provided by the Client to Allergen Checker.

  2. Unless otherwise expressly agreed in writing nothing in these Conditions or the provision of the Service shall grant any licence to the Client for the reproduction, distributions or sharing of such materials or information and the Client shall indemnify Allergen Checker for any losses or expenses incurred as a result of the Client’s failure to protect Allergen Checker’s intellectual property rights.

  1. DATA PROTECTION AND DATA PROCESSING

  1. Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.

  1. The terms Personal Data and Data Subject have the meanings as defined in the Data Protection Legislation.

  1. Without prejudice to the generality of clause 11.1, the Client will ensure that it has all necessary and appropriate consents and notices in place to enable the lawful transfer of any Personal Data to Allergen Checker for the duration and purposes of the Contract.

  1. Without prejudice to the generality of clause 11.1, both parties shall, in relation to any Personal Data processed in connection with the performance of its obligations under a Contract:

  1. ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected; and

  1. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential.

  1. The Client acknowledges that internet transmissions (including emails) are never completely private or secure and that any message or information that the Clients sends to Allergen Checker (whether by email, through a mobile App or through use of the Service) may be intercepted by others, even if there is a special notice that a particular transmission is encrypted.

  1. Allergen Checker may collect and use technical information about the devices, software, hardware and any peripherals that the Client uses to access the Service in order to improve the Service and to review compliance with these Conditions and the Client consents to such collection and use.

  1. CONFIDENTIALITY

  1. Both parties undertake to the other that they shall not at any time disclose to any person technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the other party, its employees, agents, consultants or subcontractors and any other confidential information concerning the Supplier's business or its products which the Customer may obtain, except as permitted by clause 12.2.

  1. A receiving party may disclose the other party’s confidential information:

  1. to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out obligations under this agreement.; and

  2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

  1. Allergen Checker shall be under no obligation to provide any confidential information to the Client, its agents or representatives at any time whatsoever including any such information pertaining to another customer and from whom such other customer purchases supplies.

  1. LIMITATION OF LIABILITY

  1. The limits and exclusions in this clause reflect the insurance cover Allergen Checker has been able to arrange and the Client is responsible for making its own arrangements for the insurance of any excess loss.

  1. Nothing in the Contract limits any liability which cannot legally be limited, including but not limited to liability for:

  1. death or personal injury caused by negligence;

  1. fraud or fraudulent misrepresentation; and

  1. breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession).

  1. The Client acknowledges that the Services have not been developed to meet the Client’s individuals requirements or specifications and that the Client has not communicated its intended use, purpose or requirements of the Service to Allergen Checker and therefore relies entirely on its own judgement as to the suitability of the Service to meet the Client’s needs.

  2. Subject to clause 13.2, Allergen Checker's total liability to the Client shall not exceed £300 in respect of any single claim or liability or £1,000 in respect of the aggregate claims in any 12 month period. Allergen Checker's total liability includes liability in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the Contract.

  1. The following types of loss are wholly excluded:

  1. Loss of profits

  1. Loss of sales or business.

  1. Loss of agreements or contracts.

  1. Loss of anticipated savings.

  1. Loss of use or corruption of software, data or information.

  1. Loss of or damage to goodwill.

  1. Indirect or consequential loss.

  1. Unless the Client notifies Allergen Checker that it intends to make a claim in respect of an event within three months of the Client becoming aware of the event or the date when the client should reasonably have been aware of the event, Allergen Checker shall have no liability for that event.

  2. The notice of a claim must be in writing and must identify the event and the grounds for the claim in reasonable detail.

  1. Allergen Checker provides the Service to the Client on the basis of and in reliance upon the information provided to it by the Client. Allergen Checker does not take any steps to verify any of the allergen or ingredient information provided to it by the Client and shall not be liable to the Client for any loss or damage that arises exclusively or in part due to any inaccuracy or omission of information provided to Allergen Checker or input into the Service by the Client or on the Client’s behalf.

  2. Allergen Checker may, from time to time, as part of the Service, provide links to websites and services not provided or maintained by Allergen Checker. Such websites and links are beyond Allergen Checker’s control and Allergen Checker shall not be liable for any loss or liability suffered by the Client in relation to the Client’s access or use of such websites or services.

  3. This clause 13 shall survive termination of the Contract.

  1. CONTRACT TERM

  1. The Contract term shall be for the minimum term of 12 months (Term).

  2. Unless otherwise terminated in accordance with clause 14 or otherwise agreed in writing, the Contract shall automatically renew at the end of each Term for another full Term with the same Charges.

  3. The Client acknowledges that the renewal and Charges for a full term are reasonable in order to protect Allergen Checker’s commercial interests in its Intellectual Property Rights and the ongoing commercial value of the Service.

  1. TERMINATION

  1. Either party may terminate the Contract by providing the other with not less than one months’ written notice, such notice to expire no earlier than 1700 hours on the last day of the current Term.

  2. In the event that the Client gives notice less than one month before the expiry of the current Term then the Term shall automatically renew in accordance with clause 14.2.

  1. Without affecting any other right or remedy available to it, Allergen Checker may terminate or suspend the Contract and the Client’s access to the Service with immediate effect by giving written notice to the Client if:

  1. the Client commits a breach of any term of the Contract;

  1. the Client takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

  1. the Client suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

  1. the Client’s financial position deteriorates to such an extent that, in Allergen Checker’s opinion, the Client’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy;

  1. the Client fails to pay any amount due under the Contract on the due date for payment;

  1. there is a change of control of the Client; or

  2. any licence, permission or consent upon which Allergen Checker relies in order to provide the Services, including any licence to utilise any third party software or intellectual property rights, is revoked, terminated or suspended.

  1. EARLY TERMINATION

  1. In the event that the Client terminates, seeks to terminate or purports to have terminated the Contract prior to end of the Term the Client shall pay all such sums that would have been due to Allergen Checker for the Term, irrespective of whether Allergen Checker continues to provide the Service or whether the Client accepts or makes use of the Service.

  2. The Client acknowledges that Allergen Checker is committing to making the Service available throughout the Term and that the payment due pursuant to clause 16.1 is a primary obligation of the Client in consideration of Allergen Checker’s investment and commitment to providing the Service for the Term.

  3. In the event that the Client has paid in advance in respect of the Term and terminates, seeks to terminate or purports to have terminated the Contract prior to the end of the Term the Client shall not be entitled to any refund of any sums paid.

  1. CONSEQUENCES OF TERMINATION

  1. On termination of the Contract:

  1. the Client shall immediately pay to Allergen Checker any sums remaining outstanding;

  1. Allergen Checker shall remove the Client’s access to the Service or otherwise cease to provide the Service; and

  2. the Client shall not access the Service or attempt to access the Service.

  3. Allergen Checker shall be entitled to retain and use any information provided by the Client for its own purposes, including the provision of the Service to other clients, provided that, at all times, Allergen Checker complies with clauses 10, 11 and 11.6.

  4. Termination or expiry of the Contract 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 Contract which existed at or before the date of termination or expiry.

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

  1. ASSIGNMENT AND OTHER DEALINGS

The Client shall not assign, transfer, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of Allergen Checker.

  1. NO PARTNERSHIP OR AGENCY

  1. Nothing in Contract 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.

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

  1. VARIATION

  1. Allergen Checker may, without reference to the Client, alter or amend these Conditions at any time to reflect changes to the law or to the Service and shall provide notice to the Client not less than 10 Business Days in advance of such change coming into effect.

  2. In the event that the Client does not accept the notified changes the Client may continue to access the Service in accordance with the existing Conditions but will not be able to access or benefit from any updates or new features to the Service and the Service will terminate automatically at the end of the Term in which such change to the Conditions comes into effect.

  1. ENTIRE AGREEMENT

These Conditions constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.

  1. THIRD PARTY RIGHTS

These Conditions are not intended to give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 for any other party to enforce any terms of these Conditions.

  1. NOTICES

  1. Any notice given to a party under or in connection with a Contract shall be in writing and shall be:

  1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

  1. sent by email to the address specified in writing for such use.

  1. Any notice shall be deemed to have been received:

  1. if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;

  1. if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.

  1. if sent by email, not until receipt is acknowledged in writing.

  1. 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.

  1. GOVERNING LAW

  1. Each Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with a Contract or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

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

  1. FORCE MAJEURE

Neither party shall be in breach of a Contract nor liable for delay in performing, or failure to perform, any of its obligations under a Contract, including payment, if such delay or failure result from events, circumstances or causes beyond its reasonable control.

  1. SEVERANCE

If any provision or part-provision of these Conditions or a Contract 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 the Contract.