MEMBERSHIP, CERTIFICATION AND MENTORING
1.1 The definitions and rules of interpretation in this clause shall apply.
Agreement: the agreement made between the parties pursuant to these terms and conditions.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 9.5.
Customer: the party for whom the Supplier agrees to provide Services pursuant to the Agreement.
Customer Data: any data supplied by the Customer for the purpose of the Services.
Documentation: the documents made available to the Customer by the Supplier as part of the Services (including but not limited to the Safer Assured Management Pack, the Safer Assured Standard and Guidance and the Safer Assured Certification).
Effective Date: the date upon which the Supplier accepts the Customer’s Order for Services.
Initial Subscription Term: the initial term for the Services being 12 months from the Effective Date.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), 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.
Order: the Customer’s purchase order for Services (setting out the level of services required).
Renewal Period: the period described in clause 12.1.
Safer Assured Scheme: the safety scheme written and operated by the Supplier to which scheme Customers may become members, and further Customers and their premises may seek to be evaluated against a written scheme standard, and further may receive mentoring to assist the Customer to achieve the scheme standard.
Safer Assured Scheme Protocol: the Supplier’s document headed “Safer Assured Scheme Protocol” together with all Intellectual Property Rights therein.
Services: the three levels of service offered by the Supplier under the Safer Assured Scheme, (being: membership, membership and certification, and mentoring) as more particularly described on the Website and in the Safer Assured Scheme Protocol.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the Services, as set out in the Order.
Subscription Term: has the meaning given in clause 12.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Supplier: Safer Assured – a trading name of Safer Food Scores Limited a company registered in England and Wales with company number 07248512 with its registered office at Berkhamsted House, 121 High Street, Berkhamsted, Hertfordshire, HP4 2DJ.
Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
Website: the website located at the URL www.saferassured.uk
2.1 The Order constitutes an offer by the Customer to purchase specified Services from the Supplier in accordance with these terms. The Agreement shall be formed only when the Order has been be accepted in writing by the Supplier.
2.2 Any service descriptions or advertising issued by the Supplier in its marketing materials or Website are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement nor have any contractual force.
2.3 These terms apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
3. Supply of Services
3.1 The Supplier offers three levels of services under the Safer Assured Scheme:
(b) membership, assessment and on condition the Customer passes the assessment, certification; and
(c) mentoring and guidance.
Each level of Service has separate Subscription Fees attached to it and the Customer shall specify the Services required in its Order. Customers choosing membership level may extend their Order, to include assessment, certification and/or mentoring, at any time (upon payment of the additional Subscription Fes required) and each element of the services offered by the Supplier under the Safer Assured Scheme shall be deemed Services for the purposes of these terms and the Agreement.
3.2 The Supplier shall, during the Subscription Term, provide the Services substantially in accordance with the Safer Assured Scheme Protocol and make available to the Customer the Documentation, relevant to the specified level of Services, on and subject to these terms. The Supplier undertakes that the Services will be performed with reasonable skill and care.
3.3 Where relevant to the Services, the Customer agrees to arrange a fixed date for an annual assessment by the Supplier (or its agents). The Customer acknowledges and agrees that the annual assessment and subsequent certification (if any) of the Customer’s premises applies in respect of the circumstances and conditions presented to the Supplier (or its agent) on the date of assessment only. A continuous period of 90 minutes must be set aside for the assessment. The date agreed for the conduct of each annual assessment shall, once made, be fixed and any cancellation or delay requested by the Customer shall be charged for (pursuant to the Supplier’s then current published rates of cancellation). Assessments shall take place annually, on the agreed date and no postponement may be sought by the Customer after the assessment has commenced.
3.4 The Services and Documentation relate solely to the designated Customer premises.
3.5 The Supplier shall have the right to add levels of services on offer to the Customer. Any additional Services supplied, with the consent of the Customer (whether or not the subject of a written Order) shall be charged for at the Supplier’s then current standard rate.
3.6 The Supplier shall have the right to make changes to the Services which are necessary or reasonably required to comply with any applicable law, industry guidance, or safety requirements, or which do not materially affect the nature or quality of the Services and shall notify the Customer in such an event.
3.7 The Supplier shall use commercially reasonable endeavours to make the Services offered to the Customer from the Website available 24 hours a day, seven days a week, except for:
(a) planned maintenance to the Website for which 24 hours’ notice will be given; and
(b) unscheduled maintenance, provided that the Supplier has used reasonable endeavours to give the Customer notice in advance.
4. Website Access
4.1 Subject to the Agreement and these terms, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right and licence to access the Services and Documentation made available via the Website during the Subscription Term, strictly for the purposes supplied and in the manner approved under the Safer Assured Scheme Protocol.
4.2 The Customer undertakes that:
(a) it shall keep secure and confidential any password provided for its use of the Website;
(b) it shall permit the Supplier to audit its use of the Services and Documentation made available via the Website. Such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business.
4.3 The Customer shall not access, store, distribute or transmit any Viruses, or upload any material during the course of its use of the Website that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property;
and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to the Website if it breaches the provisions of this clause.
4.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted hereunder, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Website and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Website; or
(b) access all or any part of the Website, the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties; or
(d) subject to clause 18.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party, or
(e) attempt to obtain, or assist third parties in obtaining, access to the Website, the Services and/or Documentation, other than as provided under this clause 2; and
4.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Website, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
4.6 The rights provided under this clause 4 are granted to the Customer only, and shall not be considered granted to any group, subsidiary or holding company of the Customer.
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
5.2 The Customer is urged to maintain its own copies of the Documentation and Customer Data. In the event of any loss or damage to Customer Data stored by the Supplier, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with its standard archiving procedure. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier).
5.3 The Supplier shall, in providing the Services, comply with its standard privacy and security procedures relating to the privacy and security of Customer Data.
5.4 If the Supplier processes any personal data on the Customer’s behalf when performing its obligations, the parties record their intention that the Customer shall be the data controller and the Supplier shall be a data processor and in any such case:
(a) the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA in order to carry out the Services and the Supplier’s other obligations;
(b) the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to the Supplier so that the Supplier may lawfully use, process and transfer the personal data in accordance with these terms on the Customer’s behalf;
(c) the Customer shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;
(d) the Supplier shall process the personal data only in accordance with these terms, the Agreement and any lawful instructions reasonably given by the Customer from time to time;
(e) the Supplier shall co-operate with the Customer in any reasonable request for assistance related to responding to requests for access by data subjects and investigation or audit by a regulating authority; and
(f) each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation; and
(ii) 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;
(b) comply with all applicable laws and regulations with respect to its activities related to the Services;
(c) carry out all other Customer responsibilities under the Safer Assured Scheme in a timely and efficient manner;
(d) ensure that it uses the Services and the Documentation in accordance with these terms;
(e) obtain and maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations hereunder, including without limitation the Services; and
(f) (where relevant) be solely responsible for maintaining the standards that lead to its successful annual certification under the Safer Assured Scheme.
7.1 The Customer shall pay the Subscription Fees to the Supplier in accordance with this clause 7 and the Order.
7.2 The Customer shall prior to the Effective Date provide to the Supplier with its Order, the Supplier shall invoice the Customer:
(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and
(ii) subject to clause 12.1, at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 7 days after the date of such invoice.
7.3 If the Supplier has not received payment within 10 days after the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer’s password and access to all or part of the Website, the Services and the Documentation and the Supplier shall be under no obligation to provide any or all of the Services, or access to the Documentation while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts pursuant to the Late Payment of Commercial Debts (Interest) Act 1998 (as amended).
7.4 All amounts and fees stated or referred to:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 11.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
7.5 The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon 30 days’ prior notice to the Customer.
8.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all Intellectual Property Rights in the Website, the Services and the Documentation. Except as expressly stated herein, the Supplier does not grant the Customer any rights to, or in, the Supplier’s Intellectual Property Rights, or any other rights or licences in respect of the Website, the Services or the Documentation.
8.2 The Supplier confirms that it has all the rights in relation to the Website, the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these terms.
9.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
9.2 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 as set out in these terms.
9.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of these terms.
9.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
9.5 The Customer acknowledges that details of the operation and delivery of the Services constitute the Supplier’s Confidential Information.
9.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
9.7 The provisions of this clause 9 shall survive termination of the Agreement, however arising.
10.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Website, the Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
10.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that use of the Website, the Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
10.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Website, the Services and/or the Documentation or replace or modify the same so that they become non-infringing or, if such remedies are not reasonably available, withdraw access to the Website, and/or terminate the Services, and/or require the Customer to cease to use the Documentation, on 2 Business Days’ notice to the Customer, without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
10.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) any use or modification of the Website, the Services or Documentation by anyone other than the Supplier; or
(b) the Customer’s use of the Website, the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Website, the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
10.5 The foregoing and clause 11.4(b) states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
11.1 This clause 11 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with these terms;
(b) in respect of the Agreement;
(c) in respect of any use made by the Customer of the Website, the Services and Documentation or any part of them; and
(d) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these terms.
11.2 Except as expressly and specifically provided in these terms:
(a) the Customer assumes sole responsibility for: the results of the assessment and certification; for use of the Documentation by the Customer; and for conclusions drawn, or reliance placed by third parties from such use;
(b) the Supplier shall have no liability for any injury, loss or damage caused by errors or omissions in any information, instructions or evidence provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier as a result thereof;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these terms; and
(d) the Website, the Services and the Documentation are provided to the Customer on an “as is” basis.
11.3 Nothing in these terms excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
11.4 Subject to clause 11.2 and clause 11.3:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any 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 these terms; and
(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 10.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of its obligations under these terms shall be limited to the Subscription Fees paid in the then current annual Subscription Term.
12.1 The Services shall, unless otherwise terminated as provided in this clause 12, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, shall be renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) a Customer who has previously obtained a successful assessment and certification fails to engage in an annual assessment 30 days prior to the end of the applicable Initial Subscription Term or Renewal Period, and/or further fails to pass the annual assessment so undertaken;
(b) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case the Services shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(c) otherwise terminated in accordance with these terms;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
12.2 Without affecting any other right or remedy available to it, the Supplier may either suspend or terminate the provision of the Services and the Customer’s access to the Website and Documentation, with immediate effect by giving written notice to the Customer if, in its reasonable opinion, the Customer has committed:
(a) a material breach of the Safer Assured Scheme Protocol (whether or not that breach is remediable); or
(b) persistent minor breaches of the Safer Assured Protocol.
12.3 Without affecting any other right or remedy available to it, either party may terminate the provision of the Services with immediate effect by giving written notice to the other party if:
(a) the other party commits a material breach of any of these terms which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(f) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 12.3(b) to clause 12.3(h) (inclusive);
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
12.4 On termination of the Services for any reason:
(a) the Customer shall immediately pay to the Supplier all unpaid outstanding invoices, interest and Subscription Fees;
(b) all licences granted under the Agreement shall immediately terminate;
(c) the Customer shall cease to use the Website, the Services and Documentation and shall make no further use of and shall remove all displays of the Documentation from its nominated premises;
(d) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession; and
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
The Supplier shall have no liability to the Customer if it is prevented from or delayed in performing its obligations, or from carrying on its business, by acts, events, circumstances, causes, omissions or accidents beyond its reasonable control, provided that the Customer is notified of such an event.
No failure or delay by a party to exercise any right or remedy provided in these terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided, the rights and remedies provided are in addition to, and not exclusive of, any rights or remedies provided by law.
16.1 If any provision (or part of a provision) is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 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.
17.1 These terms, the Order and all other documents referred to herein, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in agreeing these terms it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person relating to the subject matter of these terms, other than as expressly set out herein.
18.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations set out in these terms.
18.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these terms.
Nothing in these terms is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20.1 Any notice required to be given under these terms shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes.
20.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during business hours, at 9 am on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
These terms and any dispute or claim arising out of or in connection with them or their subject matter (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these terms or their subject matter (including non-contractual disputes or claims).