1                 DEFINITIONS AND INTERPRETATION

1.1             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.

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

1.3             Words in the singular shall include the plural and vice versa.

1.4             A reference to one gender shall include a reference to the other gender.

1.5             A reference to writing or written includes e-mail but not faxes.

2                 SOFTWARE RESTRICTIONS AND SUPPLY OF THE SERVICES

1.1             In consideration of the Customer paying the Service Fees and subject to the terms and conditions of this Agreement, the Supplier hereby agrees to provide the Services to the Customer throughout the Term and grants to the Customer a non-exclusive, non-transferable licence to allow Authorised Users to access the Application through the Services and to use the Application but only for the Customer's business purposes.

1.1             The Customer will not: 

2.1.1.1                     attempt to copy, duplicate, modify, create derivative works from or distribute all or any portion of the Application except to the extent expressly set out in this Agreement or as may be allowed by any applicable law which is incapable of exclusion by Agreement between the parties; or

2.1.1.2                     attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Application, except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties; or

2.1.1.3                     access all or any part of the Application in order to build a product or service which competes with the Application and/or the Services; or

2.1.1.4                     attempt to obtain, or assist third parties in obtaining, access to the Application, other than as provided under this Agreement; and

2.2             The Customer will use best endeavours to prevent any unauthorised access to, or use of, the Application and notify the Supplier promptly of any such unauthorised access or use. The Supplier shall use all reasonable endeavours to provide the Services in accordance with the terms and conditions of this Agreement but the parties agree that time for performance of the Services by the Provider shall not be the essence of this Agreement.

2.3             The Supplier will use its commercially reasonable endeavours to maintain 99.9% uptime availability of the Software, excluding scheduled maintenance periods. Supplier’s infrastructure is provided by Microsoft Azure, and the Customer acknowledges and agrees that:

●        Supplier is not responsible for any failure of Microsoft Azure and the Customer is bound by, and shall comply with, any terms and conditions required by Azure. Azures terms and conditions can be found at:

https://www.microsoft.com/licensing/terms/welcome/welcomepage

●        Supplier reserves the right to use any other third-party provider to host the Software.

2.3.1            The Supplier’s application is not provided on an exclusive basis to its Customers.

2.3.2            The Customer acknowledges that the Supplier may at any time, and without notice, incorporate licence management software into the Application for the purposes of ensuring that licence rights are not exceeded.

2.3.3            Services interruptions may be made by the Supplier when in its reasonable opinion they are necessary to facilitate improvements to or maintenance of the Services. The Supplier will use reasonable endeavours to minimise such interruptions and to notify the Customer of the anticipated commencement time and the estimated duration.

3                 CUSTOMER'S OBLIGATIONS AND WARRANTIES

3.1             The Customer will provide the Supplier with all necessary co-operation in relation to this Agreement and 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, application interfaces to the Customer's other business applications, and that the Customers users will have access to the latest version, or the immediately prior version, of Firefox, Edge, Google Chrome or Safari

3.2             The Customer will provide such personnel assistance as may be reasonably requested by the Supplier from time to time and shall comply with all applicable laws and regulations with respect to its activities under this Agreement.

3.3             The Customer will ensure that the Authorised Users use the Services in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User's breach of the Agreement.

3.4             The Customer will carry out all other responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance, the Supplier may adjust any timetable or delivery schedule set out in this Agreement as reasonably necessary.

3.5             The Customer represents, warrants and undertakes that it will use the Services only for lawful purposes and in accordance with this Agreement; and that any software, data, equipment or other materials provided by the Customer to the Supplier or employed by the Customer in its use of or receipt of the Services shall not infringe any Intellectual Property Rights, privacy or personal data interests of any third party and shall not be obscene or defamatory of any person and shall not violate the laws or regulations of any state which may have jurisdiction over such activity.

3.6             In the event of any breach of any of the foregoing obligations, representations or warranties, in addition to any other remedies available at law or in equity, the Supplier will have the right to suspend immediately any related Services if deemed reasonably necessary by the Supplier to protect the proper interests of the Supplier or its other customers. If practicable and depending on the nature of the breach, the Supplier may (in its absolute discretion) give the Customer an opportunity to cure such breach. In such case once the Customer has cured the breach, the Supplier will promptly restore the Service(s).

3.7             In the event that the Customer is in breach of any of its obligations under this Agreement, then:-

3.7.1            the Supplier cannot be held responsible for any failure in delivery or delay in the provision of the Services as a result (directly or indirectly) of such Customer breach;

3.7.2            the Supplier shall be entitled to charge the Customer for staff time engaged on rectifying any resulting problems at the Supplier’s then current standard charging rates; and

3.7.3            the Supplier may without any liability terminate or suspend the Services without prejudice to any other pre-existing rights and obligations of either party.

4                 CUSTOMER DATA AND DATA PROTECTION.

4.1             The Customer will own all rights, 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. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Supplier shall be for 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 Supplier. Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third-party.

4.2             The Customer grants to the Supplier, a royalty-free, non-exclusive, non-transferable license for the term of this Agreement to use Customer Data to the extent necessary to perform its obligations under this Agreement.

4.3             Notwithstanding anything to the contrary, the Supplier shall have the right to collect and analyse data and other information relating to the provision, use and performance of various aspects of the application and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and the Supplier will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the application and for other development, diagnostic and corrective purposes in connection with the application and other Supplier offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business which includes but not limited to anonymized institutional and transactional data for use in its  sales, marketing and training material and/or demonstrations.

4.4             If the Supplier processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the parties agree that:

4.4.1            the Customer will be the data controller and the Supplier shall be a data processor; and

4.4.2            the Customer will ensure that it is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully process the personal data in accordance with this Agreement on the Customer's behalf.

4.5             The Customer hereby agrees to indemnify and hold harmless the Supplier in respect of any costs, expenses, liabilities, and damages which result from any breach of Clause 4.4 above.

4.6             If this agreement is terminated the Supplier will, subject to the Customer not being in Breach of Contact, within thirty days of the last day of the Agreement, provide in Excel format, the following data: all sales, purchases and banking transactions that have not been exported; all products contained in the latest live supplier catalogues; all data in fields stored in the staff records.

5                 SERVICE FEES

5.1             The Customer will pay the Service Fees to the Supplier (without any deduction or set off) in such instalments and subject to such adjustments as are set out in Schedule 5, and to such bank account of the Supplier notified to the Customer in writing from time to time.

5.2             The Service Fees are exclusive of value added tax, which shall be added to the Supplier's invoice(s) at the appropriate rate. 

5.3             If the Supplier has not received payment by the agreed date, then without prejudice to any other rights and remedies of the Supplier:

5.3.1            the Supplier shall be entitled to suspend provision of any or all the Services while the invoice(s) concerned remain unpaid; and/or

5.3.2            suspend the licence granted in Clause 2.1; and/or

5.3.3            the Supplier may claim interest from the Customer under the Late Payment of Commercial Debts (Interest) Act 1998 from the due date for payment, accruing on a daily basis until the date on which payment is made in full, commencing on the due date and continuing until full paid, whether before or after judgment.

5.4             Time for payment shall be the essence of this Agreement.

5.5             The Service Fees cover the use by the number of outlets as set out in Schedule 5; any increase or decrease in the number of outlets will result in an adjustment to the monthly license charge as stated in Schedule 5. If such an increase or decrease occurs during the course of the Initial Term or an Extended Term, the remainder of that period as well as future terms will be subject to the adjustment.

5.6             Invoice queries, including but not limited to disputes regarding the amount invoiced, must be raised within 60 days of the invoice date. After 60 days from the invoice date, the invoice will be deemed to be accepted and no challenges or disputes may be raised by the client.

5.7             The Supplier shall be entitled to increase the Service Fees annually on the anniversary of the Effective Date.

6                 PROPRIETARY RIGHTS

6.1             The Customer acknowledges and agrees that the Supplier and/or its licensors own] all IPR in the Application and the Services and that this Agreement does not grant the Customer any IPR or rights of ownership in the Application, the Services or any related documentation.

6.2             The Supplier confirms that it has all the rights in relation to the Application that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

7                 CONFIDENTIALITY AND SECURITY

7.1             Each party acknowledges it may have access to confidential information of the other party. “Confidential Information” shall mean any information relating to trade secrets, data, designs, drawings, documentation, software (regardless of form or media), prototypes, processes, methods, concepts, research, development, facilities, employees, vendors, clients, marketing, financials, business activities, and other similar information whether obtained or disclosed orally or in writing.  To the extent practicable, the disclosing party shall mark and/or identify Confidential Information as confidential or proprietary at the time of disclosure; provided however, the obligation of Confidentiality shall also apply to information which, based on its nature, is reasonably expected to be deemed confidential. 

7.2             Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement.  A party's Confidential Information shall not be deemed to include information that:

7.2.1            is or becomes publicly known other than through any act or omission of the receiving party; or

7.2.2            was in the other party's lawful possession before the disclosure; or

7.2.3            is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or

7.2.4            is independently developed by the receiving party, which independent development can be shown by written evidence; or

7.2.5            is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body or securities exchange.

7.3             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 this Agreement. 

7.4             The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.

7.5             Each party recognises that it is impossible to maintain flawless security but (where relevant) the Supplier shall take all reasonable steps to prevent security breaches in its servers' interaction with the Customer and security breaches in any interaction with resources or users outside of any firewall that may be built into the Supplier’s servers.

7.6             The Customer is responsible for maintaining the confidentiality of any passwords which are required to access the Application and the Services and is solely responsible for any damage caused by any such unauthorised access.

7.7             The receiving party agrees it will not disclose Confidential Information to any third-party without the prior written consent of the disclosing party.

7.8             This Clause 7 shall survive termination of this Agreement, however arising.

8                 LIMITATION OF LIABILITY AND WARRANTIES

8.1             This Clause 8 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 in respect of:

8.1.1            any breach of this Agreement;

8.1.2            any use made by the Customer of the Application or the Services or any part of them; and

8.1.3            any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.

8.2             Except as expressly and specifically provided in this Agreement:

8.2.1            the Customer assumes sole responsibility for results obtained from its use of the Application or the Services and the Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Customer in connection with the Application or the Services, or any actions taken by the Supplier at the Customer's direction.

8.2.2            the Services are provided on an “as is” basis, and the Customer’s use of the Services is at its own risk.  The Supplier does not make, and hereby disclaims, any and all other express and/or implied warranties, statutory or otherwise, including, but not limited to, warranties of merchantability, fitness for a particular purpose and any warranties arising from a course of dealing, usage, or trade practice. 

8.2.3            Allergens.  Some of the Services detail and identify allergens associated with any ingredients.  The Supplier’s software’s ability to track and tag allergens relies entirely on Customer Data.  The Supplier accepts no liability as to the validity and details of the Customer Data (including ingredients and recipes) and for identifying the existence of any allergens within their own ingredients and recipes and for the response and reaction to any allergens which are identified.

8.3             The Supplier does not warrant that the Services will be uninterrupted, error-free, or completely secure.

8.4             Nothing in this Agreement excludes the liability of the Supplier:

8.4.1            for death or personal injury caused by the Supplier's negligence; or

8.4.2            for fraud or fraudulent misrepresentation.

8.5             The Customer accepts that in providing the Services, the Supplier may be reliant upon the provision of certain goods and services from third parties in order to provide the Services to the Customer.  The parties therefore agree that the Supplier will not be responsible or liable to the Customer for any failure to provide the Services if such failure is directly or indirectly attributable to the failure of any third parties to provide any goods or services to the Supplier and further, the Supplier will not be responsible or liable for any costs, expenses, claims, demands, losses, actions, proceedings, fines, penalties or any other liabilities incurred or sustained by the Customer in connection with the same.

8.6             Subject to Clause 8.4, the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss costs, damages, charges or expenses however arising under this Agreement.

8.7             Subject to Clause 8.4, to the extent that not excluded by Clauses 8.6, 8.8 or otherwise, the total liability of the Supplier, whether in contract, tort (including negligence) or otherwise and whether in connection with this Agreement or any collateral contract, shall in no circumstances exceed in aggregate a sum equal to the Service Fees payable by the Customer during the preceding twelve months before which the liability arises.

8.8             The Supplier shall not be liable for any interruptions to or failure of the Services arising directly or indirectly from:-

8.8.1            interruptions to the flow of data to or from the internet;

8.8.2            changes, updates or repairs to the network or the Application subject to the Supplier striving to minimise the interruptions/outages that may be caused by such change;

8.8.3            the effects of the failure or interruption of services provided by third parties;

8.8.4            any actions or omissions of the Customer (including, without limitation, breach of the Customer's obligations set out in this Agreement);

8.8.5            problems with the Customer’s equipment and/or third party equipment;

8.8.6            interruptions to the Services requested by the Customer;

8.9             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 Customer's use of the Services, provided that: (a) the Customer is given prompt notice of any such claim, and (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.

9                 TERM AND TERMINATION

9.1             The Term shall commence on the Effective Date and shall continue (unless terminated earlier in accordance with Clause 9.2) for a period of 24 months commencing (the “Initial Term”) after which the Agreement will revert to a 12 month rolling basis (the “Extended Term”) unless any of the parties provides written notice to terminate the Agreement six months before the end of the Initial Term.

9.2             Either party may terminate this Agreement for convenience at any time during the Extended Term, upon giving the other party no less than 6 months’ written notice unless otherwise agreed in writing.

9.3             Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate this Agreement immediately without liability to the other if:

9.3.1            the other party commits a material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 60 days of that party being notified in writing of the breach; or

9.3.2            an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party.

9.4             On termination of this Agreement for any reason:

9.4.1            all licences granted under this Agreement shall immediately terminate.

9.4.2            the Customer will immediately pay to Supplier all outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt.

9.4.3            the Supplier shall not be obliged to refund any Service Fees already Customer prior to termination;

9.4.4            each party shall return and make no further use of any equipment, property, materials and other items (and all copies of them) belonging to the other party; and

9.4.5            the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.

10              THIRD-PARTY INTEGRATION

10.1          In the event that the Customer requires additional third-party technology (“Third-Party Technology”), the Customer acknowledges that the rights and licenses with respect to Third-Party Technology shall be under a separate purchase, license or services agreement by and between the Customer and the vendors of such Third-Party Technology. The Customer shall comply with the applicable purchase and/or license agreement with respect to any Third-Party Technology. Any amounts payable to any such vendors shall be the Customer’s responsibility and the Customer assumes all risks and liabilities to third-party vendors.

11              FORCE MAJEURE

11.1          The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of 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, 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 the Customer is notified of such an event and its expected duration as soon as reasonably practicable after the Supplier becomes aware thereof.

12              VARIATION

12.1          No variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties by an authorised officer of both parties.

13              ASSIGNMENT

13.1          The Customer will 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 this Agreement. 

13.2          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 this Agreement.

14              GENERAL

14.1          A waiver of any right under this Agreement is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. 

14.2          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.

14.3          This Agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or Agreement between them relating to the subject matter they cover.

14.4          Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.

14.5          This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and (where applicable) their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999. 

15              NOTICES

15.1          Any notice required to be given pursuant to this Contract shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the address of the party as set out in these conditions, or in the case of the Supplier, by email to info@indicater.com  or such other address as may be notified by one party to the other. 

15.2          A notice delivered by hand is deemed to have been received when delivered (or, if delivery is not in business hours, 9.00 am on the first business day following delivery). A correctly addressed notice sent by prepaid 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. An e-mail shall be deemed to have been delivered within 24 hours form the time of being sent, provided that no “non-deliverable” notice is received by the sender.   

15.3          The Customer must not assume that the Supplier has received notice of Termination unless the Supplier has confirmed this via e-mail.

15.4          Email may not be used for service of legal proceedings.

15.5           If any dispute arises in connection with this Contract, directors or other senior representatives of the parties with authority to settle the dispute will, within thirty (30) days of a written request from one party to the other, meet promptly in good faith to resolve the dispute. 

16              DISPUTE RESOLUTION   

16.1          If the dispute is not resolved in accordance with condition 15.1 and the Parties do not both agree to an extension, the Parties agree that the dispute between them shall be referred to a mediator, who will be selected by mutual agreement for resolution by mediation. The costs of mediation shall be equally shared between the Parties. If a dispute is not settled within 7 days of the mediation being instituted, or within such other period as the Parties shall agree in writing, the dispute(s) shall then be referred to and finally resolved by binding arbitration under the Arbitration Act 1996. All costs will be added to the arbitration claim for the Arbitrator to award as the Arbitrator deems appropriate. 

16.2          Nothing in this condition 15 shall prevent either party from seeking interim injunctive relief to prevent irreparable loss or damage. 

17              ENTIRE AGREEMENT

17.1          This Agreement sets forth the sole and entire understanding between the parties and supersedes all prior proposals, oral or written, all previous negotiations and all other communications or understandings between the parties with respect to the subject matter hereof. 

17.2          It is expressly agreed that if the Customer issues a purchase order or other document for the services provided under this Agreement, such instrument will be deemed for the Customer’s use only, and any provisions inconsistent with this Agreement shall have no effect whatsoever upon this Agreement. No amendments to this Agreement, either at the execution or subsequently, shall be binding on the Supplier or Customer unless agreed to in writing by both parties.

18              GOVERNING LAW AND JURISDICTION

18.1          This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation are to be governed by, and construed in accordance with, the laws of England. 

18.2          The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation.