Metrico Smart Assistant Services &
mySupermarket Business Solutions Services
Terms & Conditions
1. The Parties
The parties to the Agreement are:
1.1.1 mySupermarket Limited, a company registered in England (under number 05920495) whose registered office is at 1 Great Cumberland Place, Lower Ground Floor, London W1H 7AP (“MSM”, “us”, “we” or “our”); and
1.1.2 the client whose name and address is shown in a SOF (“you”).
2. The Services
In consideration of payment of the Fees by you to us, we shall, in accordance with the terms of the Agreement, in respect of any particular SOF, during any relevant dates specified in that SOF use reasonable endeavours to provide:
2.1.1 the Metrico Smart Assistant Services (Metrico Smart Platform) to your Users (also known as the “Online Service”);
2.1.2 the Metrico Smart Assistant Services (Smart Reports Services); and
2.1.3 the mySupermarket Business Solutions Services.
We are a data and information business and in the course of providing the Services, we will be providing you with Data/Reports, which may be provided in a format and form chosen by us but which will be provided as (and in any form) as may be specified in the SOF applicable to particular Services.
Subject to clauses 2.4 to 2.12, we shall use our reasonable endeavours to perform our obligations under the Agreement within any timescales set out in the Agreement, but time for performance shall not be of the essence save to any extent they are specified as such in a SOF.
In respect of any Services that we provide to you:
2.4.1 We shall use reasonable endeavours to reflect accurately in each Database any data from third party sources that we use to populate that Database. However, we do not warrant that the provision of the Services will be up-to-date, complete, wholly accurate or error-free or that the same will meet your individual requirements.
2.4.2 You acknowledge that, in offering the Services, we may refer to, and rely on, our own information and data and/or information and data supplied by third parties about which we cannot guarantee the accuracy. You further acknowledge that we are unable to update the Databases or the Services immediately upon becoming aware of any change in information or data sourced from third parties and there may be a time lag in making any updates.
2.4.3 As part of the composition of our Databases, we use proprietary algorithms and datasets (such as those which may match different goods and services together and against each other; such as those which may group such goods and services in different ways; such as those which make estimates and predictions; such as those which set benchmarks at particular levels; and so on) and in so doing, we have, of necessity, made assumptions, based on our experience, as part of those algorithms and datasets. You may agree or disagree with those assumptions. Nevertheless, you receive the Services on the basis that you have no objection to such assumptions (such as assumptions as to matching rules, averaging rules and availability rules; and others) and you have no objection to the limitations of any algorithms, assumptions or datasets. Certain details of algorithms, assumptions or datasets may be available through a formal FAQ document which we may make available for your review.
2.4.4 We are not responsible for any service or for data not expressly stipulated in a SOF.
2.4.5 The Services and Data/Reports shall be limited to those Databases, to such Categories, to such Retailers, to such Brands and to such other restrictions (such as any listed Search terms), as may be specified in a SOF.
2.4.6 You shall be responsible for obtaining and paying for and having in place on or prior to the Commencement Date and maintaining any necessary hardware, communications links, equipment and software in order to obtain access to the Online Service and our Systems and receive the Services in accordance with the Agreement. It is your responsibility to ensure that all such hardware, communications links, equipment and software is adequate for such purpose and we will not be responsible for any failure to provide the Services caused by the same being inadequate in any way.
2.4.7 You acknowledge that we cannot guarantee uninterrupted, timely or error-free access to our Systems due to events beyond our control (including operation of public and private networks by Internet service providers, telecoms providers and third parties) and we or our contractors may also need to carry out maintenance (whether planned or unplanned, and routine or not) from time to time on our Systems; however, we shall use our reasonable endeavours to:
(a) minimise the amount of downtime of any Services;
(b) in respect of the Online Service, give you as much warning as is reasonable and practicable in the circumstances of planned maintenance or downtime; and
(c) ensure that there is sufficient amount of connection to and from our Systems for your use that we anticipate is needed to fulfil our obligations under the Agreement.
2.4.8 Subject to having used our reasonable endeavours to comply with the obligations under clause 2.4.7 we do not warrant that the provision of the Services will be uninterrupted or error free or that the same will meet your individual requirements.
2.4.9 You shall not use or access our Systems in such a way to cause our Systems or any of the Services (or our services similar to any of the Services), to be interrupted, damaged, rendered less efficient or in any way impaired.
We warrant to you that:
2.5.1 we shall use reasonable skill and care in providing the Services; and
2.5.2 our employees, agents and contractors have the necessary skill and qualifications to provide the Services.
We shall not have any responsibility in respect of this clause 2 to the extent that any defects or errors or issues are caused by any:
2.6.1 acts or omissions, in either case, by you or on your behalf (other than with our specific express prior written consent); or
2.6.2 changes, modifications, adjustments, amendments or alterations to the Services or attempt at doing so; in any such case, by you or on your behalf (other than with our specific express prior written consent).
We shall not be liable for any delays or failure to perform accurately our obligations if the same has been caused by any failure or delay by you or any breach by you of the Agreement (including failure to provide Client Materials, promptly or at all or otherwise).
In the event of any breach of clauses 2.3 or 2.4, we may, at our option (and as your exclusive remedy) either:
2.8.1 remedy or replace within a reasonable time the relevant Services or re-perform the relevant element of the Services; or
2.8.2 subject to you returning and destroying all elements and results of the relevant Services, refund or not require to be paid all (or a reasonable part of) the relevant element of the Fees for the faulty Services.
2.9.1 Any remedies available to you for breach of the Agreement by us shall be conditional on:
2.9.2 you providing us with full details of any breach as soon as it is reasonably practicable, and in any event not later than 7 days, after becoming aware of the problem;
you providing us with full information, assistance and co-operation to resolve the problem as is reasonable in the circumstances; and
2.9.3 payment of all Fees and other sums due under the Agreement having been received in full by us from you by the due date.
0 We do not warrant that the Services will meet all of your requirements. You are responsible for ensuring that the Services are sufficient and suitable for your purposes.
1 We reserve the right at our discretion to make reasonable changes to our Systems and Databases on, through and by which the Services and Data/Reports are provided, although we shall not in so doing reduce the functionality or performance which we have undertaken to provide you in a SOF.
2 Except where expressly provided for within the Agreement, all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, are hereby excluded to the fullest extent permitted by law.
3. Rules for Use of the Services
If we are providing the Online Service:
3.1.1 you may only use the Online Service for the number of Users authorised by us in a SOF; and any use by one User shall constitute use of one User Profile;
3.1.2 Users must access the relevant Databases via our Systems over the Internet using the Access Details;
3.1.3 we shall be responsible for the creation, deletion and maintenance of User Profiles;
3.1.4 you shall:
(a) protect and keep confidential all Access Details;
(b) notify us so that we may change any user names and passwords frequently as we deem necessary or as mandated by the Online Service or Systems from time to time;
(c) choose and procure the choosing of passwords which cannot be easily guessed; and
(d) prohibit unauthorised access to the Online Service or our Systems. All access made using a User’s Access Details shall be deemed to have been made by or on behalf of you (and the relevant User). You shall immediately notify us on becoming aware of any unauthorised use or attempted unauthorised use or access of the Online Service or Services or our Systems or Data/Reports; and
3.1.5 if one of your employees who is a User leaves your employment, you shall notify us immediately so that we may delete the relevant User Profile.
For any of the Services:
3.2.1 unless otherwise specified in a SOF, you may only use the Services for Internal Use;
3.2.2 subject to clause 4 and elsewhere in the Agreement, you may not use the Services to perform research on behalf of persons external to you and circulate that research Externally to such persons or otherwise, except with:
(a) our prior written consent; and
(b) entry into a Data/Reports sharing licence with us; and
3.2.3 except with our prior written consent you shall not use, store, copy, download, sell, resell, redistribute or deal with the Services or Data/Reports in any manner or for any purpose except those expressly permitted by clause 4 and elsewhere in the Agreement.
You warrant that during the term of this Agreement you:
3.3.1 have all necessary rights, permissions and consents to enter into the Agreement;
3.3.2 shall procure that you and your employees, agents and contractors co-operate with us and our employees, agents and contractors;
3.3.3 shall comply with our reasonable requests from time to time in connection with the Services;
3.3.4 shall not and, shall procure that your employees, agents and contractors shall not, exceed the number of Users permitted to use the Online Service;
3.3.5 have the required skill and judgment to use the Services and undertake at all times to exercise the same in your use of the Services and you accept that you shall be solely liable for all opinions, recommendations, forecasts or comments you make or actions you take arising out of such use;
3.3.6 shall comply with clause 5.3 regarding accreditation and disclaimer;
3.3.7 shall not knowingly make any false or misleading statements, claims or representations in relation to the Services or MSM, and shall fairly represent and display the Services and results of or from them;
3.3.8 shall promptly inform us if you discover any errors or inaccuracies in the Services;
3.3.9 shall not use the Services in any way which may be in breach of any law, statute, regulation or by-law or code of practice of any applicable jurisdiction (including comparative advertising laws); and
3.3.10 shall not make or give any promises, warranties, guarantees or representations to any third party concerning the Services other than those already specifically approved by us in writing.
You acknowledge that your use of Data/Reports (and the Services generally), whether by accessing, using, storing or otherwise dealing with the same, may from time to time be subject to certain laws, statutes, regulations, by-laws or codes of practice and you undertake to comply with all laws, statutes regulations, by-laws and codes of practice applicable to the Services and Data/Reports.
Any special terms applicable to the Agreement may be stipulated in a SOF.
4. Rules for Use of Data/Reports
You shall not, without our prior written consent:
4.1.1 adapt or translate the whole or any part of the Data/Reports;
4.1.2 permit any Data/Reports to be incorporated with any computer programs or published on any internal intranet;
4.1.3 publish, sell, distribute, deal with or otherwise commercially exploit the Data/Reports, including but not limited to the production of marketing materials;
4.1.4 allow any External Use of the Data/Reports;
4.1.5 amalgamate the Data/Reports with any other data or use the Data/Reports as part of any other application;
4.1.6 use the Services or Data/Reports on behalf of any third party (which would include using the Services or Data/Reports for the purpose of operating a bureau service), including any parent or subsidiary company and, in any event, also comply with clause 3.2.2;
4.1.7 distribute or circulate or give access to any Data/Reports or Databases Externally;
4.1.8 use the Services or any Data/Reports to compile a database;
4.1.9 use the Services or Data/Reports for the purposes of redistributing or reproducing commercial information by the press or media or through any commercial network, cable or satellite Systems.
5. Intellectual Property Rights
5.1 You acknowledge that, as between you and us, we and our licensors own all Intellectual Property Rights in the Services and Data/Reports and whether or not the Services have been provided, compiled or created in accordance with your specific requirements; and in our Systems; and you shall not during the Agreement Term or at any time after the termination of the Agreement in any way question or dispute our ownership (or our licensors’ ownership) of any such rights.
5.2 We acknowledge that, as between you and us, you and your licensors own all Intellectual Property Rights in the Client Materials. You hereby grant to us, during the Agreement Term, a non-exclusive licence of all Intellectual Property Rights in the Client Materials to use and exploit the Client Materials in any way necessary so as properly to provide the Services to you.
5.3 Whenever the Data/Reports are displayed, offered or reproduced by you (or on your behalf), you shall always accredit the source as being us, by displaying a statement of accreditation and disclaimer (in the form stipulated by us from time to time and in the manner and size reasonably required by us from time to time).
5.4 You shall not reproduce, adapt, translate, arrange, make derivative works of or make available to any third party, either directly or indirectly, the Services or Data/Reports except in the manner and to the extent that and for so long as you are expressly permitted to do so in accordance with the Agreement and you undertake to take all necessary steps to prevent access to the Services and Data/Reports by any person except those who need to have access thereto for the purposes permitted by the Agreement.
5.5 Without prejudice to clause 4, you shall not extract or re-use the Services or Data/Reports for any commercial purpose including trading, building commercial databases, reselling or redistributing the Services or Data/Reports, except to the extent that and for so long as you are expressly permitted to do so in accordance with the Agreement.
5.6 You acknowledge that civil and criminal penalties may be incurred in the event of any infringement of the Intellectual Property Rights in the Services and Data/Reports, and that any such infringement by you may result in incalculable damage and/or loss to us, and accordingly you agree that, in addition to any other right or remedy available to us, we shall be entitled to immediate injunctive relief to restrain any actual or apprehended infringement thereof. You undertake to indemnify us in full, against all loss, damage, costs and expenses (including loss of profit) which may be incurred by us by reason of any such infringement by you.
5.7 You shall not use or make use of the Services or Data/Reports or our Systems in any way which may be detrimental to MSM’s reputation or harm MSM’s interests.
5.8 We may insert or apply any applicable copyright, trade mark or other Intellectual Property Rights and other marks and notices to or on the Services or Data/Reports and you shall not remove, erase, obstruct, change or object to any of the same.
5.9 If you become aware of any improper or wrongful use of the Services or Data/Reports or our Systems or the Intellectual Property Rights therein, you shall forthwith inform us of such use as soon as reasonably practicable. You shall, if requested by us, assist us (at our cost) in taking any steps in connection with the protection or defence thereof as we may reasonably determine.
5.10 The rights and obligations of this clause 5 shall continue after termination of the Agreement for whatever reason.
6. Infringement claims
6.1 If any claim (“Infringement Claim”) is made against you that the Services infringe the Intellectual Property Rights (but only those in the UK) of any third party, then to the extent of any such infringement, we shall, at our own expense, defend or, at our option, settle, any action brought against you as a result of an Infringement Claim.
6.2 The obligation in clause 6.1 is only given provided that:
6.2.1 you give us written notice of any Infringement Claim as soon as you become aware of them;
6.2.2 you make no admission of liability and give us sole authority to defend or settle the Infringement Claim at our cost and expense;
6.2.3 you give to us all reasonable help in connection with the Infringement Claim;
6.2.4 the Infringement Claim has not arisen as a result of:
(a) you using or combining the Services or Data/Reports with any data, programs or materials not supplied by us;
(b) any changes, modifications, adjustments, amendments or alternations to the Services or Data/Reports (or attempt at doing so) other than by or on behalf of us or with our prior written consent; or
(C) any creation or change, modification, adjustment, amendment or alteration of the Services or Data/Reports in accordance with your designs or specific requirements.
6.3 In the event of an Infringement Claim, we may at our option and expense either:
6.3.1 procure for you the right to continue to use the Services or Data/Reports; or
6.3.2 modify or replace the Services or Data/Reports to render them non-infringing but equivalent in all material functional respects to the Services or Data/Reports prior to such modification; or
6.3.3 terminate the Agreement and refund the Fees paid by you in respect of the period during which the Infringement Claim was notified to you, less a pro-rata amount to take account of any part of such period during which you were able to use the Services or Data/Reports.
6.4 You shall indemnify us against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us (or any company in our corporate group) arising out of or in connection with the Client Materials (including any claim by a third party that the use by us (or any company in our corporate group) has infringed any Intellectual Property Rights in any of the Client Materials). This indemnity shall whether or not we have been negligent or at fault.
7. Fees and Payment
7.1 In consideration of our obligations in the Agreement, you shall pay us the Fees in accordance with the Payment Terms, as set out in the Agreement.
7.2 The Fees shall be as set out in any SOF.
7.3 We may issue invoices to you for the Fees in accordance with the Billing Terms and Payment Terms as set out in any SOF.
7.4 Unless the Billing Terms or Payment Terms provide otherwise:
7.4.1 all Fees are payable in advance (and if a frequency is stipulated in a SOF, then at that frequency);
7.4.2 you shall pay for all Fees within 14 days after the date of our proper invoice; and
7.4.3 you shall pay us all Fees by telegraphic transfer, or by any other payment method reasonably stipulated by us.
7.5 All sums due to us are exclusive of VAT and other duties or taxes (if applicable) which you shall pay to us in addition at the same time as payment of the Fees.
7.6 No payment shall be considered paid until it is received by us in cleared funds in full.
7.7 Payment shall be in the currency in force in England from time to time unless specified otherwise in a SOF.
7.8 Payment of all sums due to us under the Agreement shall be made by you in full without any set-off, deduction or withholding whatsoever.
7.9 If you are late in paying any part of any monies due to us, we may (without prejudice to any other right or remedy available to us, whether under the Agreement or by any statute, regulation or by-law) do any or all of the following:
7.9.1 charge interest on the amount due but unpaid at the rate of 4% above the published Royal Bank of Scotland base rate, such interest to run from day to day and to be compounded monthly; and/or
7.9.2 suspend the performance of the Agreement or any part thereof until payment in full has been made; and/or
7.9.3 immediately terminate the Agreement without further liability to you or any obligation to refund any Fees.
8.1 You shall not (except with our prior written consent) directly or indirectly during the Agreement Term, and for one year after termination of the Agreement, solicit the services of any of our staff who has been engaged in the Agreement, either as principal, agent, employee, contractor or any other form of employment or engagement, other than by means of a national advertising campaign open to all-comers and not specifically targeted at our staff.
8.2 This clause 8 shall continue after termination of the Agreement for whatever reason.
9.1 In this clause 9 “Confidential Information” means any commercial, financial or technical information (including the Access Details) relating to the business or prospective business of one party obtained directly or indirectly by or on behalf of the other in any form or medium pursuant to the Agreement which is expressly marked as confidential or which a reasonable person would reasonably regard as being confidential, together with any reproductions of this information.
9.2 Each party shall keep and procure to be kept secret and confidential the Confidential Information of the other party (whether before or after the date of the Agreement) and shall not use nor disclose the same save:
9.2.1 for the purposes of the proper performance of the Agreement; or
9.2.2 as otherwise permitted by the Agreement; or
9.2.3 with the prior written consent of the other party.
9.3 Each party may disclose the Confidential Information of the other party to its employees, agents, clients, consultants and contractors who reasonably need to receive the Confidential Information of the other party for the purposes of the Agreement. Where one party discloses Confidential Information of the other party to its employee, agent, client, consultant or contractor, it shall do so subject to obligations equivalent to those set out in this clause 9. Each party shall use its best endeavours to ensure that any employee, agent, client, consultant or contractor complies with such obligations.
9.4 The obligations of confidentiality in this clause 9 shall not extend to any matter which either party can show:
9.4.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of the Agreement; or
9.4.2 was in its written records prior to receipt; or
9.4.3 was independently developed by it; or
9.4.4 was independently disclosed to it by a third party entitled to disclose the same.
9.5 If either party (or that party's employee, agent, client, consultant or contractor) is required to disclose the Confidential Information of the other party under any applicable law, or by order of a court or governmental body or authority of competent jurisdiction, then that party shall, prior to any disclosure where practicable, notify and consult with the other party and, at the other party's request and cost, assist that other party in opposing any such disclosure. In any event, where a party (or its employee, agent, customer, consultant or contractor) is required to disclose the other's Confidential Information, that party shall use all reasonable endeavours to require the recipient to keep the Confidential Information strictly confidential.
9.6 Neither party shall make any announcement of any kind in respect of the subject matter of the Agreement except with the prior written consent of the other party (not to be unreasonably withheld or delayed) or as is required by law.
9.7 Subject to clause 9.6, we may identify you as our client and you may identify us as your supplier and the type of service we provide to you, provided that in doing so the Confidential Information of the other is not revealed.
9.8 The obligations of this clause 9 shall continue after termination of the Agreement for whatever reason.
10. Monitoring Of Usage
10.2 We confirm that we shall not view, monitor, collect, record, commercially exploit or distribute to any third party any information about any of your Users which would constitute “personal data” for the purposes of UK data protection legislation. Rather, we undertake that whenever we view, monitor, collect, record or commercially exploit any such information this will be done on a no names and generic basis such that the privacy of individuals is not compromised.
10.3 We may on reasonable notice conduct an audit to verify use by Users. Such audit may take place remotely and/or at your premises, and may be based on information accessible to us and/or information that we require you or your Users to provide. If such audit reveals that there is more than one user using each username and password combination is otherwise incorrect the Fees shall be recalculated accordingly and backdated to the beginning of the relevant term of such use and such additional Fees shall be payable within 30 days of such additional Fees being invoiced by us. In the event that an audit takes place under this clause 10.3 as a result of which you must pay additional Fees to us, we may also invoice you for the time that we have spent in the performance of that audit at a rate of £750 exclusive of VAT for each person that we allocate to that audit for each day on which the audit takes place, plus all travel costs and expenses.
11. Data Protection
11.1 Both parties agree to comply with all relevant data protection legislation.
12. Duration and Termination
12.1 The Agreement shall commence on the Commencement Date, and shall continue in force, subject to earlier termination pursuant to any of the termination provisions under the Agreement, for the Agreement Term.
12.2 In respect of a SOF by which you are being provided with:
12.2.1 any Metrico Services:
(a) we shall provide those Metrico Services from the Start Date indicated in the SOF;
(b) we shall provide those Metrico Services for a period of 12 months (unless another period is otherwise specified in that SOF) (such 12 month period or other specified period being the “Initial Metrico Term”); subject always to the earlier termination provisions in the Agreement; and
(c) after the Initial Metrico Term, we shall continue to provide such Metrico Services for subsequent additional periods, each equivalent to the Initial Metrico Term (each a “Renewal Metrico Term”) unless one party notifies the other party of its decision not to renew at least 60 days prior to the start of a Renewal Metrico Term (unless otherwise specified in a SOF); and subject always to the earlier termination provisions in the Agreement.
12.2.2 any mySupermarket Business Solutions Services, we shall provide those particular mySupermarket Business Solutions Services as soon as reasonably practicable after the Commencement Date (unless indicated otherwise in the SOF) until the end of the time indicated in the SOF that we are to provide those particular mySupermarket Business Solutions Services; subject always to the earlier termination provisions in the Agreement.
12.3 Either party may terminate the Agreement immediately by notice in writing to the other party if the other party:
12.3.1 is in material breach of any of its obligations under the Agreement which are incapable of remedy;
12.3.2 fails to remedy, where capable of remedy, any material breach of any of its obligations under the Agreement after having been required in writing to remedy such breach within a period of 21 days after receipt of a notice to do so. A breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance;
12.3.3 gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator or which entitle the court to make a winding-up or bankruptcy order or the other party takes or suffers any similar or analogous action in consequence of debt.
12.4 We may also elect to exercise our rights pursuant to clause 12.3 in respect of any particular SOFs rather than in respect of the entire Agreement should we choose to do so.
12.5 Upon termination of:
12.5.1 the Agreement for any reason, you shall immediately cease to use the Services, our Systems and the Access Details; and
12.5.2 a SOF for any reason, you shall immediately cease to use the Services and the Databases to which that SOF relates.
12.6 We may terminate the Agreement by giving 30 days' notice to you if there is a change in control of you. For the purposes of this clause 12.6, "control" shall have the same meaning given to it in Section 450 of the Corporation Tax Act 2010.
12.7 Termination of the Agreement shall be without prejudice to any accrued rights or remedies of either party.
12.8 Termination of the Agreement will not affect the coming into force or the continuance in force of any provision which is expressly or by implication intended to come into or continue in force on or after such termination (including clauses 1, 3.2, 4, 5, 6, 8, 9, 10, 11, 12.7, 12.8, 12.9, 13, 14, 15, 16, 17, 18, 19 and 20).
12.9 Upon termination of the Agreement for any reason:
we shall cease to perform the Agreement;
all outstanding Fees shall become immediately payable, whether invoiced or not; and
your rights in respect of the Services shall immediately cease.
13.1 This clause 13 prevails over all other clauses and sets forth our entire Liability, and your sole and exclusive remedies (save for clause 2.8), in respect of:
13.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of the Agreement or of any goods, services, data or software in connection with the Agreement; or
13.1.2 otherwise in relation to the Agreement or entering into the Agreement.
13.2 Nothing in the Agreement shall exclude or limit our Liability for:
13.2.1 fraud; or
13.2.2 death or personal injury caused by our Breach of Duty; or
13.2.3 any breach by us of the obligations implied by Section 12 Sale of Goods Act 1979 or Section 2 Supply of Goods and Services Act 1982; or
13.2.4 any other Liability which cannot be excluded or limited by applicable law.
13.3 Subject to clause 13.2, we do not accept and hereby exclude any Liability for Breach of Duty other than any Liability arising pursuant to the terms of the Agreement.
13.4 Subject to clause 13.2, we shall not have any Liability in respect of any:
13.4.1 indirect or consequential losses, damages, costs or expenses;
13.4.2 loss of actual or anticipated profits;
13.4.3 loss of contracts;
13.4.4 loss of use of money;
13.4.5 loss of anticipated savings;
13.4.6 loss of revenue;
13.4.7 loss of goodwill;
13.4.8 loss of reputation;
13.4.9 loss of business;
13.4.10 loss of operation time;
13.4.11 ex gratia payments;
13.4.12 loss of opportunity; or
13.4.13 loss of, damage to, or corruption of, computer programs or data;
whether or not such losses were reasonably foreseeable or whether or not we or our agents had been advised of the possibility of you incurring such losses. For the avoidance of doubt, clauses 13.4.2 to 13.4.13 apply whether such losses are direct, indirect, consequential or otherwise.
13.5 Subject to clause 13.2, our total aggregate Liability in respect of the Agreement (or otherwise) shall be limited to the greater of: (a) £1,000; or (b) 110% of the total sums paid and total other sums payable, in aggregate, by you to us under the Agreement, within the 12 months preceding the date on which the claim first arose.
13.6 The limitation of Liability under clause 13.5 has effect in relation both to any Liability expressly provided for under the Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of the Agreement.
14. Force Majeure
14.1 Save for obligations in respect of payment of the Fees, neither party shall be liable for any breach, hindrance or delay in performance of its obligations under the Agreement which is caused by circumstances beyond its reasonable control including act of god, actions of third parties (including hackers, suppliers, governments or supra-national authorities), insurrection, riot, civil commotion, war, hostilities, warlike operations, national emergencies, terrorism, piracy, arrests, restraints or detainments of any competent authority, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, earthquake, natural disaster, accident, mechanical breakdown, third party software, failure or problems with public utility supplies (including electrical, telecoms or general Internet failure), shortage of or inability to obtain data (“Event of Force Majeure”), regardless of whether the circumstances in question could have been foreseen.
14.2 Each party shall notify the other upon becoming aware of an Event of Force Majeure, detailing the circumstances giving rise to the Event of Force Majeure.
14.3 The performance of each party's obligations shall be suspended during the period that the circumstances persist and such party shall be granted an extension of time for performance equal to the period of the delay.
14.4 Each party shall bear its own costs incurred by the Event of Force Majeure.
14.5 Even if performance of any obligations is delayed under this clause 14, each party shall accept performance as and when the other shall be able to perform.
14.6 If the Event of Force Majeure continues without a break for more than three months, either party may terminate the Agreement immediately by notice to the other, in which event neither party shall be liable to the other party by reason of such termination.
14.7 If we have contracted to provide similar services or data to more than one client and we are prevented from fully meeting our obligations to you by reason of an Event of Force Majeure, we may decide at our absolute discretion which contracts we will perform and to what extent.
15.1 Notices under the Agreement shall be in writing and may be delivered by:
15.1.1 first class post or by hand if addressed to the party concerned at its registered office or principal place of business; or
15.1.2 fax or e-mail.
15.2 Notices delivered by hand shall be deemed to have been served at the time of delivery. Notices sent by post shall be deemed to have been received on the second Business Day following the day of posting, whether or not the notice is actually delivered or returned to sender.
15.3 A notice sent by fax or e-mail is to be treated as served on the day upon which it is sent, or the next Business Day where the fax or e-mail is sent after 5.00 p.m. or on a day that is not a Business Day. The relevant transaction report or confirmation of sending shall be conclusive evidence of proof that a notice was sent by fax or e-mail.
15.4 The party giving notice shall make all reasonable efforts to ensure that the recipient actually receives notice under the Agreement.
16.1 We may assign, transfer, novate, charge, sub-license or subcontract the Agreement or any of our rights and obligations under the Agreement.
16.2 You shall not assign, transfer, novate, charge, sub-license or subcontract the Agreement or any of your rights or obligations under the Agreement or purport to do so without our prior written consent.
17.1 Save as expressly provided herein, the Agreement constitutes the complete and exclusive statement of agreement and understanding between the parties, which supersedes and excludes all prior or contemporaneous proposals, understandings, agreements, or representations, whether oral or written, with respect to the subject matter hereof. You acknowledge and agrees that no representations were made prior to the entering into the Agreement and that, in entering into the Agreement, you do not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person (whether party to the Agreement or not) other than as expressly set out or referred to in the Agreement. For the avoidance of doubt and as set out in clause 13.2, nothing in the Agreement shall exclude or limit our Liability for fraudulent misrepresentations or shall exclude (but the Agreement does limit) our Liability for any fundamental misrepresentation, including any misrepresentation as to a matter fundamental to its ability to perform our obligations. The only remedy available to you for breach of the Agreement shall be for breach of contract under the terms of the Agreement.
17.2 Except as otherwise provided in the Agreement, no change to the Agreement shall be binding unless it is agreed in writing signed by authorised representatives of each of you and us and expressed to be for the purpose of such amendment.
17.3 No failure or delay by either party in exercising any right under the Agreement shall operate as a waiver of such right or extend to or affect any other or subsequent event or impair any rights or remedies in respect of it or in any way modify or diminish that party’s rights under the Agreement.
17.4 If any provision in the Agreement shall become or shall be declared by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall in no way affect any other provision or party of any provision, all of which shall remain in full force and effect.
17.5 Nothing in the Agreement shall create or be deemed to create a partnership, an agency or a relationship of employer and employee between the parties.
17.6 A person who is not a party to the Agreement has no right under the Contracts (Right of Third Parties) Act 1999 to enforce any term of the Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
17.7 The Agreement shall be legally formed and the parties shall be legally bound when both parties have signed any SOF.
17.8 The terms of the Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by you. If you provide us with a purchase order for any services, the purchase order shall be purely for your administrative purposes only and shall not form part of the Agreement.
18. Applicable Law
18.1 The Agreement (and all non-contractual relationships between the parties) shall be governed and construed in accordance with English law any each party hereby submits to the exclusive jurisdiction of the English courts.
19. Interpretive Provisions
19.1 Where the context so admits or requires words denoting the singular include the plural and vice versa, words denoting any gender (or the neuter) include both genders and the neuter; and words denoting persons shall include partnerships, bodies corporate and unincorporated associations of persons and vice versa (including persons, individuals, companies, firms, governments, states, regional or local authorities, agencies of a state, joint ventures, trusts, charities, societies, funds, associations (whether or not having separate legal personality and whether incorporated or not)).
19.2 Clause headings are for ease of reference and do not form part of nor shall they affect the interpretation of these Terms and Conditions or the Agreement which incorporates them.
19.3 In these Terms and Conditions, unless otherwise defined herein, terms defined in a SOF shall have the meanings ascribed thereto therein.
19.4 In this Agreement references to termination or determination shall include references to expiry.
19.5 References to “include” and “including” shall be deemed to mean respectively “include(s) without limitation” and “including without limitation”.
19.6 In case of any conflict between a SOF and these Terms and Conditions, the order of priority shall be the SOF, followed by these Terms and Conditions.
20.1 In the Agreement the following terms have the meanings set out below:
20.1.1 “Access Details” means a username and password and/or URL, in each case specific to a User, as provided by us (or updated by you in accordance with our policies) to allow access to the Online Service.
20.1.2 “Agreement” means these terms and conditions together with any SOF and its Annexes.
20.1.3 “Agreement Term” means the period from the Commencement Date until the end of our obligation to provide Services pursuant to any extant SOF.
20.1.4 “Billing Terms” means the terms on which invoices may be issued, as stipulated in a SOF.
20.1.5 “Brands” means brands as may be specified in a SOF.
20.1.6 “Breach of Duty” means the breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty).
20.1.7 “Business Day” means any day other than (i) a Saturday, (ii) a Sunday or (iii) a day when the clearing banks are not physically open for business in the City of London.
20.1.8 “Categories” means categories as may be specified in a SOF.
20.1.9 “Client Materials” means any materials or resources (including support from Client personnel) we need you to supply to us in order for us to provide any of the Services.
20.1.10 “Commencement Date” is specified in the SOF.
20.1.11 “Data/Reports” means: (i) any data in whatever form extracted from a Database; and/or (ii) any information, data or result from that data; and/or (iii) any information, data or result otherwise from the Services; all as may be further detailed in a SOF (including as to the Categories, Brands, Retailers and other elements of data per Database as specified in a SOF)
20.1.12 “Database” means: (i) each of our databases and/or feeds containing systematised data and information about particular features of FMCG products; and/or (ii) our database of information from users of the mySupermarket.co.uk website; and/or (iii) each of our databases containing systematised data and information about FMCG product pricing, promotions, placement, presentation or availability on Retailer sites and/or at Retailer establishments; and/or (iv) any other database and/or feed of information which made be made available to You; each respectively as applicable.
20.1.13 “External Use” means the circulation or use of Data/Reports other than for Internal Use (and “External” and “Externally” may be used to connote the same meaning as “External Use”).
20.1.14 “Fees” means any fees payable by you to us under the Agreement, as set out in a SOF.
20.1.15 “FMCG” means fast moving consumer goods.
20.1.16 “Intellectual Property Rights” means all intellectual and industrial property rights of any nature anywhere in the world, including copyright, database rights, patents, know-how, design rights, registered designs, trade mark rights, service mark rights, domain name rights and topography rights; whether or not registered or capable of protection by registration and the right to apply for any of them, for the full term of such rights and all renewals and extensions, together with all accrued rights of action.
20.1.17 “Internal Use” means the legitimate internal purposes of your principal business and, in relation to Data/Reports, the circulation of Data/Reports, as may be specified in a SOF, only within your organisation, business or company, not including any subsidiary, other undertaking or UK-registered company (each as defined in section 1159 of the Companies Act 2006 or such other legislation as may replace it from time to time) or any other person, business or organisation anywhere in the world (and “Internal” and “Internally” may be used to connote the same as “Internal Use”).
20.1.18 “Liability” means liability in or for breach of contract, Breach of Duty, misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with the Agreement, including liability expressly provided for under the Agreement or arising by reason of the invalidity or unenforceability of any term of the Agreement (and for the purposes of this definition, all references to the “Agreement” shall be deemed to include any collateral contract).
20.1.19 “Metrico Smart Platform Services means the provision to your Users of access over the Internet to Databases and Data/Reports by means of which Data/Reports (limited according to the Categories, Retailers, Brands per Database and any other restrictions as specified in a SOF) can be accessed, manipulated and otherwise used in accordance with this Agreement.
20.1.20 “Metrico Smart Reports Services means the provision to you, by means of email, feed, text message, API or by some other means, of Data/Reports (limited according to the Categories, Retailers, Brands per Database and any other restrictions as specified in a SOF), at a frequency and for a period of time as specified in a SOF.
20.1.21 “Metrico Services” means the Metrico Smart Assistant Services, including the Smart Platform Services, the Metrico Smart Reports Services and other Metrico services that may be made available from time to time.
20.1.22 “mySupermarket Business Solution Services” means the services listed as such in the SOF.
20.1.23 “Online Service” is defined in clause 2.1.1.
20.1.24 “Payment Terms” means the terms on which the Fees shall be paid, as stipulated in a SOF.
20.1.25 “Retailer” means an entity which offers the sale of its FMCG products to the general public; and such offers may be online (for example, via an online dedicated website for this purpose), offline (for example, via a physical facility for this purpose) or both.
20.1.26 “Services” means:
(ab) Such of the services listed in clause 2.1 as we are to provide to you pursuant to a SOF; and
(ab) such other services that we may provide to you from time to time.
20.1.27 “SOF” means any contract Services Order Form (together with its Annexes) which references these terms and conditions.
20.1.28 “Systems” means our servers or other computer Systems from which we make available the Services (including access to the Databases) to you on the terms of this Agreement.
20.1.29 “User” means
(ab) one individual human, who is one of your employees, with a User Profile, who has been authorised by us to use the Online Service; or
(b) one human individual performing the functions of an employee on a temporary basis, independent contractor or consultant who is performing work solely for you at your offices, with a User Profile, who is authorised by us to use the Online Service for so long as:
(i) such User remains authorised to perform work for you; and
(ii) you assume responsibility for any acts or omissions by such user which would constitute a breach or default under this Agreement if done by an employee;
the number of authorised Users being stipulated in a SOF.
20.1.30 “User Profile” means a profile for a User, with relevant Access Details.
20.1.31 “VAT” means value added tax chargeable under the Value Added Tax Act 1994 and any similar replacement tax and any similar additional tax.