Last updated December 2021
You must ensure that you have read, understood and agree to these Terms. By subscribing to or using the Application, you agree to follow and be bound by the Terms. Safe Food Pro will not refund any Subscription Fees paid if you later disagree with these Terms. If you do not agree to be bound by these Terms, do not use the Application. YOUR ATTENTION IS SPECIFICALLY DRAWN TO CLAUSE 9 (DISCLAIMERS, WARRANTIES AND LIABILITY).
These Terms apply to your use of the Application to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
Safe Food Pro may change these Terms at any time in its absolute discretion and such changes shall take effect from the date that they are placed on Safe Food Pro’s website or via the Application. You agree that your continued use of the Application represents your agreement to be bound by the most recent terms.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Terms, unless the context requires otherwise:
“Applicable Data Protection Laws” means the UK GDPR, or other applicable data protection law.
“Application” means the Safe Food Pro software, accessible via www.safefoodpro.co.nz or another designated website, IP address or app store, or ancillary online or offline products and services provided to you by Safe Food Pro, to which you are being granted access under this Agreement, including the Safe Food Pro Technology and any subsequent versions and updates thereto.
“Customer Data” means any data, information or material provided or submitted to the Application by you or Users, or Safe Food Pro on Users’ behalf, in the course of using the Application.
“Fault” means a failure of the Application to function substantially as intended.
“Fees” means the fees chargeable by Safe Food Pro and payable by Users as set out in these Terms, and includes the Subscription Fee.
“Login Information” is the username and password that are unique to each User.
“Intellectual Property Rights” means any unpatented invention, patent application, patent, design right, copyright, trade mark, service mark, trade name, domain name right, know-how and other trade secret rights, and all other intellectual property rights, whether registered or unregistered, and forms of protection of a similar nature anywhere in the world.
“Safe Food Pro” means SafeFoodPro Limited, a New Zealand company, having its principal place of business at Level 2, 84 Mokoia Rd, Birkenhead, Auckland, New Zealand, and its successors and assignees.
“Safe Food Pro Technology” means all of Safe Food Pro’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Safe Food Pro in providing the Application.
“Subscription Fee” means the subscription fee payable by you to Safe Food Pro for the access to and use of the Application by the Users, as notified by Safe Food Pro from time to time.
“Support Services” means:
(a) advice on operating the Application;
(b) other advice as may be reasonably required by you to obtain the full benefit and use of the Application;
(c) investigation, diagnosis and repair of Faults.
“UK GDPR” has the meaning given to it in the Data Protection Act 2018.
“User” means you and any employee, representative, consultant, contractor or agent who is authorised to use the Application and has Login Information supplied by you (or by Safe Food Pro at your request).
“Virus” means any thing or device (including any software, code, file or program) which may:
(a) 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;
(b) prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or
(c) adversely affect the user experience, including worms, trojan horses, malware, viruses and other similar things or devices
1.2 In these Terms, unless the context requires otherwise:
(a) words importing one gender include the others;
(b) words importing the singular or plural number include the plural and singular number respectively;
(c) headings are inserted for the sake of convenience of reference only and do not affect the interpretation of these Terms; and
(d) a person includes any individual, corporation, unincorporated association, government department or municipal authority.
2.1 Safe Food Pro hereby grants you a non-exclusive, non-transferable licence to permit the Users to use the Application, solely for your own internal business purposes, subject to these Terms. All rights not expressly granted to you are reserved by Safe Food Pro. These terms govern any releases, revisions, or enhancements to the Application that Safe Food Pro may publish for your use.
2.2 Safe Food Pro will, at no additional cost to you, provide you with the Support Services in accordance with clause 7.
2.3 You will:
(a) pay the Fees including those set out in clause 8;
(b) abide by all applicable local, state, provincial, national and foreign laws, regulations and treaties in connection with your use of the Application, including those related to data privacy, internal communications and the transmission of technical or personal data;
(c) procure that the Users keep confidential their Login Information;
(d) procure that the Users comply with these Terms at all times in relation to the access and use of the Application;
(e) permit Safe Food Pro to actively monitor and audit the use of the Application in order to establish whether the Application is being used in accordance with these Terms;
(f) promptly disable any login account if Safe Food Pro discovers (through undertaking the monitoring and audits referred to in clause 2.3(e) or by any other means) that any Login Information has been provided to a person that is not a User;
(g) make all reasonable endeavours to prevent any unauthorised access to or use of the Application and, in the event of any such unauthorised access or use, promptly notify Safe Food Pro; and
2.4 You are responsible for maintaining the confidentiality of your Login Information, and you will be responsible for all uses of your Login Information, whether or not authorised by you. In the event that you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorised disclosure of your Login Information, you must immediately notify Safe Food Pro by emailing firstname.lastname@example.org.
2.5 You shall not (and shall not permit any third party to):
(a) license, sub-license, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application in any way;
(b) modify, make derivative works based upon, duplicate, download, reverse engineer all or any part of the Application;
(c) access the Application, use or copy similar ideas, features, functions or graphics of the Application in order to build a competitive product or application;
(d) access, store, distribute or transmit any Viruses; or
(e) allow your licence of the Application to become the subject of any charge, lien or encumbrance.
3. ACCOUNT INFORMATION AND DATA
3.1 Safe Food Pro does not own any Customer Data. You and your Users shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership or right to use of all Customer Data.
3.2 Where Safe Food Pro is hosting the Application, Safe Food Pro will make all reasonable endeavours to ensure that Customer Data is stored securely and is regularly backed up according to generally-accepted industry standards.
3.3 You acknowledge that, if there is any loss or damage to Customer Data, your sole and exclusive remedy will be for Safe Food Pro to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Safe Food Pro. Safe Food Pro is not responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
3.4 Upon termination of these Terms, you may request a copy of the Customer Data in accordance with clause 10.3.
3.5 Where you breach and there is termination of these Terms, your right to access or use Customer Data immediately ceases, and Safe Food Pro shall have no obligation to maintain or forward any Customer Data. Safe Food Pro reserves the right to withhold, remove and/or discard Customer Data without notice for any breach, including, without limitation, your non-payment.
3.6 Safe Food Pro may create anonymised statistical data from your Customer Data, including through aggregation. Once anonymised, Safe Food Pro may use it for its own purposes, such as to provide and improve its services and the Application, to develop new services or product offerings, to identify business trends, and for other uses communicated to you.
4.1 Subject to this clause 4, you may request that additional Users be permitted to access and use the Application and Safe Food Pro will grant access to the Application to such additional Users in accordance with the provisions of these Terms.
4.2 If you wish to add Users, you will notify Safe Food Pro in writing of such request. If Safe Food Pro approves the request:
(a) you will be liable to pay any additional Fees for the additional User(s) at the current rate;
(b) subscriptions for additional Users that are added in the middle of a billing month will be charged in full for that month; and
(c) the subscription for any additional User shall be coterminous with the subscription term for you and your existing Users.
4.3 You may terminate any User subscriptions by giving 30 days’ prior written notice to Safe Food Pro.
4.4 You will ensure that only Users will access and use the Application. User subscriptions cannot be shared or used by more than one individual user, but may be reassigned from time to time to new users who are replacing former Users who have terminated employment or otherwise changed job status or function and no longer use the Application.
5. CONTENT UPDATES
5.1 Safe Food Pro may, from time to time, update the Application. Any and all such updates shall become immediately available to you on your next login. Access to the Application may be temporarily suspended while updates are applied. You are responsible for updating the Application according to your internal procedures. Duplicate copies of the application are allowed for internal testing and live use.
5.2 The Application requires certain third party software products to be installed on your computer or device, including an operating system, internet browser, and browser plug-ins. Safe Food Pro sets minimum requirements in regard to these third party software products, and updates to the Application may require you to, independently and at your own expense, source and install updates to any or all of these third party software products. Safe Food Pro reserves the right to suspend your access to the Application until such third-party software products are installed and/or updated.
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1 Safe Food Pro alone owns all right, title and interest, including all related Intellectual Property Rights, in and to the Application and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Application.
6.2 Except as expressly stated in these Terms, these terms do not grant you any rights to, or in, Safe Food Pro’s Intellectual Property Rights or any other rights or licences in respect of the Application. These Terms do not constitute a sale and do not convey to you any rights of ownership in or related to the Application or the Intellectual Property Rights owned by Safe Food Pro.
6.3 The Safe Food Pro name, the Safe Food Pro logo, and the product names associated with the Application are trademarks of Safe Food Pro or third parties, and no right or licence is granted to use them.
7. SUPPORT SERVICES
7.1 Safe Food Pro will use commercially reasonable efforts to provide the Support Services in accordance with its agreed response times. Fault logging facilities via email will be provided 24 hours a day, seven days a week.
7.2 The Support Services do not include services being provided by Safe Food Pro relating to or resulting from:
(a) misuse of the Application or failure to use the Application in accordance with the any user instructions or these Terms;
(b) unauthorised attempts to repair, replace, modify or maintain the Application by persons other than Safe Food Pro;
(c) fluctuations in external power supplies or faults in communications networks; or
(d) compatibility issues with the Application and your hardware, operating system or software,
together, “Additional Support Services”.
7.3 Safe Food Pro may, at its sole discretion, agree to provide such Additional Support Services, and may charge a reasonable Fee for doing so.
7.4 You will:
(a) promptly report to Safe Food Pro all Faults which you discover;
(b) ensure that a suitably qualified contact person is available to be the prime point of contact with Safe Food Pro in the event of any Faults or queries;
(c) make all reasonable efforts at investigation and diagnosis of Faults before contacting Safe Food Pro; and
(d) maintain a list of all Application problems to assist with the diagnosis and resolution of Faults.
8. CHARGES AND PAYMENT OF FEES
8.1 You will pay to Safe Food Pro:
(a) any applicable account set up and joining Fee;
(b) the Subscription Fee for each User of the Application; and
(c) any amounts due for Additional Support Services pursuant to clause 7.3,
in accordance with this clause 8.
8.2 You must purchase a subscription and pay the Subscription Fee for each User, regardless of where such subscriptions are actively used. Non-human resources, such as plugins, which are managed through the Application are exempt from the subscription requirement, provided they are counted within your overall resource limit set by Safe Food Pro and reviewed from time to time.
8.3 You must provide Safe Food Pro with valid credit card or approved purchase order information as a condition to subscribing to the Application. Where you have opted for automatic monthly or annual charging of subscriptions, these will be processed against the same credit card on the same day of the month or year, as the case may be, as the date of the original subscription.
8.4 Where Safe Food Pro issues an invoice to you for any amounts due under these Terms, you will pay each invoice by the date set out in the invoice, or if not set out, by the 20th of the month following the month of the invoice.
8.5 Safe Food Pro may vary its Fees and charges and introduce new charges upon at least 30 days’ prior written notice to you. All pricing terms are confidential, and you agree not to disclose them to any third party.
8.6 All amounts and Fees stated or referred to in these Terms are exclusive of VAT and any other taxes, levies and duties (if any), which will be paid for by you.
8.7 If you fail to pay any invoice or credit card payment when due, then in addition to and without prejudice to any other rights or remedies of Safe Food Pro, Safe Food Pro may without liability to you, suspend your access to the Application if your subscription falls into arrears.
9. DISCLAIMERS, WARRANTIES AND LIABILITY
9.1 The Application is provided to you strictly on an “as is” basis. Except as set out in these Terms, all conditions, representations and warranties, whether express, implied, statutory or otherwise (including, without limitation, any implied warranty of merchantability, or fitness for a particular purpose) are hereby excluded by Safe Food Pro to the maximum extent permitted by law.
9.2 You are responsible for ensuring the Application meets your requirements. Safe Food Pro provides no warranty that the Application is suitable for any particular purpose.
9.3 Safe Food Pro provides no warranty that the Application will ensure you will be in compliance with any applicable law or that the Application will be available on an uninterrupted, timely, secure or error-free basis, or will be accurate, reliable, free of viruses or other harmful code.
9.4 Safe Food Pro warrants that:
(a) the Application will be made available with reasonable skill and care;
(b) the Application will function substantially as intended; and
(c) to the best of its knowledge and belief, the Application does not infringe the copyright of any third party.
9.5 In view of the warranties given in clause 4, the terms implied by sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Terms.
9.6 While Safe Food Pro takes all reasonable care to ensure that the Application is compliant with the Health and Safety at Work etc Act 1974, The Food Safety and Hygiene (England) Regulations 2013, The General Food Regulations 2004 and all other applicable laws and regulations (“Applicable Laws”), it does not warrant or represent that your use of the Application will meet all requirements imposed on your workplace by Applicable Laws in England and Wales or in any other country. The Application is a tool which you can use to assist in your compliance obligations. Safe Food Pro recommends that you take your own legal and other advice to ensure that you comply with the obligations that apply to you and to ensure you meet your responsibilities under and comply with all Applicable Laws. Safe Food Pro accepts no liability for your breach of any Applicable Law due to any failure of the Application to comply with Applicable Laws.
9.7 You acknowledge that:
(a) the Application may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. Safe Food Pro is not responsible for any delays, delivery failures, or other damage resulting from such problems;
(b) Safe Food Pro does not warrant that the Application will function and/or communicate correctly due to third-party software installed by you; and
(c) Safe Food Pro shall not be liable in any way for any inability to use the Application including, without limitation, loss of goodwill, work stoppage, computer failure or malfunction, or the loss of or damage to Customer Data.
9.8 Where you experience Application downtime or issues with accessing or using the Application in any way whatsoever, your sole remedy shall be to terminate your subscription in accordance with these Terms.
9.9 In no event shall Safe Food Pro be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or loss of data, revenue, profits, use or other economic advantage arising out of, or in any way connected with the Application, whether or not the parties were aware of the possibility of such losses at the time of entering into these Terms.
9.10 You agree that, in entering into these Terms, you did not rely on any representations (whether written or oral) of any kind or from any person other than as expressly set out in these Terms.
9.11 The maximum aggregate liability of Safe Food Pro under or in connection with these Terms, whether in contract, tort (including negligence), breach of statutory duty or otherwise, must in any calendar year not exceed the total amount of Fees paid in the immediately preceding calendar year.
9.12 Safe Food Pro does not exclude liability for:
(a) death or personal injury caused by the negligence of Safe Food Pro;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982.
9.13 You will indemnify Safe Food Pro against all costs, losses, expenses and damages (including reasonable legal fees and disbursements) incurred through any claims against Safe Food Pro resulting from the use of the Application by you and other Users, or arising from or associated with any breach of these Terms by you.
10.1 Either party may terminate the agreement governed by these Terms:
(a) by giving the other party at least 30 days’ prior written notice;
(b) if the other party is in material breach of these Terms and fails to remedy such breach within 15 days of receiving notice from the other party specifying the breach and requiring it to be remedied, or if such breach is incapable of remedy; or
(c) if the other party goes into liquidation or has a receiver or statutory manager appointed, becomes insolvent or makes any arrangement with creditors.
10.2 On termination of these Terms for any reason:
(a) all licences and rights granted under these Terms will immediately terminate;
(b) you shall not be entitled to any refund for any prepaid Subscription Fees;
(c) you will be liable for any outstanding Subscription Fees or other amounts due under these Terms, which shall be charged in a lump sum and be immediately due and payable at termination;
(d) each party will return, and make no further use of, any equipment, property and other items belonging to the other party; and
(e) the accrued rights of the parties as at termination will not be affected or prejudiced.
10.3 Provided you are not in breach of these Terms, for a period of 30 days following termination, you may request a single admin login to access and download your Customer Data using the features available within the software. After 30 days from termination, your Customer Data will no longer be retrievable.
11. DATA PROTECTION
11.1 For the purposes of this clause 11, the terms controller, processor, data subject, personal data, personal data breach and processing shall have the meaning given to them in the UK GDPR.
11.2 This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws.
11.3 The parties have determined that, in relation to the Customer Data, for the purposes of Applicable Data Protection Laws:
(a) You shall act as controller of the personal data; and
(b) Safe Food Pro shall process the personal data as a processor on behalf of you.
11.5 You will ensure that you have all necessary appropriate consents and notices in place to enable lawful transfer of the personal data and Customer Data to Safe Food Pro or lawful collection of the same by Safe Food Pro for the duration that you use the Application.
11.6 Safe Food Pro shall, in relation to Customer Data:
(a) process that Customer Data only on the documented instructions of you which shall be deemed to be given by your entry into these Terms unless Safe Food Pro is required by Applicable Data Protection Laws to otherwise process that Customer Data. Where Safe Food Pro is relying on Applicable Data Protection Laws as the basis for processing Customer Data, Safe Food Pro shall notify you of this before performing the processing required by law unless prohibited from so notifying you on important grounds of public interest;
(b) inform you if, in the opinion of Safe Food Pro, your instructions infringe Applicable Data Protection Laws;
(c) implement appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Customer Data and against accidental loss or destruction of, or damage to, Customer Data;
(d) ensure that any personnel engaged and authorised by Safe Food Pro to process Customer Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality;
(e) assist you insofar as is reasonably possible (taking into account the nature of the processing and the information available to Safe Food Pro), and at your cost and written request, in responding to any request from a data subject and in ensuring your compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify you without undue delay on becoming aware of a personal data breach involving the Customer Data;
(g) at your written direction, delete or return Customer Data and copies thereof to you on termination of these Terms unless Safe Food Pro is required by Applicable Data Protection Laws to continue to process that Customer Data; and
(h) maintain records to demonstrate Safe Food Pro’s compliance with this clause 11.
11.7 You hereby provide your prior, general authorisation for Safe Food Pro to appoint sub-processors to process the Customer Data, provided that Safe Food Pro shall ensure that the terms on which it appoints such sub-processors comply with Applicable Data Protection Laws and shall remain responsible for the acts and omission of any such sub-processor as if they were the acts and omissions of Safe Food Pro.
11.8 Safe Food Pro shall inform you of any intended changes concerning the addition or replacement of the sub-processors, thereby giving you the opportunity to object to such changes.
11.9 Safe Food Pro is permitted to transfer Customer Data outside of the UK as required for the purpose of providing the Application, provided that Safe Food Pro shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws.
12. FORCE MAJEURE
12.1 Safe Food Pro shall not be liable for any delay or failure to perform its obligations under these Terms resulting from acts, events, omission or accidents beyond its reasonable control, including without limitation acts of God, war, terrorism, riots, embargoes, acts of civil or military authorities, fire, floods, epidemic, pandemic, strikes, failure of a utility service or telecommunications network or service of a third party, or shortages of transportation facilities, fuel, energy, labour or materials.
13. DISPUTE RESOLUTION
13.1 If a dispute arises out of or in relation to these Terms (“Dispute”), a party may not commence any court or arbitration proceedings relating to the Dispute unless it has complied with the provisions of this clause 13.
13.2 The party claiming a Dispute has arisen must give written notice specifying the nature of the Dispute and its desire to begin informal negotiations.
13.3 Upon receipt of that notice, the parties will use all reasonable endeavours to resolve the Dispute by discussion, consultation, negotiation or other informal means.
13.4 If the Dispute is not resolved within 30 days of receipt of the notice in clause 13.2 (or such further period agreed in writing by the parties), either party may, by giving written notice to the other party, require the Dispute to be determined by arbitration. A single arbitrator will be appointed by the parties, or failing agreement within ten days of the arbitration notice, by the London Court of International Arbitration (“LCIA”) on application of either party. The arbitration will be conducted as soon as possible in accordance with the provisions of the LCIA Arbitration Rules and shall be binding upon the parties. The seat of arbitration will be London, England.
13.5 You agree and acknowledge that Safe Food Pro would be irreparably damaged in the event that you breached these Terms. Nothing in this clause 13 shall prevent Safe Food Pro seeking appropriate equitable remedies, including urgent interlocutory relief.
14.1 You may not assign any of your rights or interests under these Terms without the prior written approval of Safe Food Pro.
14.2 Safe Food Pro may at any time assign its rights or interest, or any part thereof, or transfer its obligations under these Terms to any person.
15.1 These Terms constitute the entire agreement of the parties, unless otherwise agreed in writing, and prevail over any previous terms, agreements or understandings, whether written or oral.
15.2 Clauses 6, 9, 11, 12, 13 and 15 shall survive termination of these Terms.
15.3 Failure or neglect by a party to enforce at any time the provisions of these Terms will not be construed to be a waiver of that party’s rights, or to in any way affect the validity of the whole or any part of these Terms or any other agreement or understanding between the parties.
15.4 If any provision of these Terms is invalid, void, illegal or unenforceable, the validity, existence, legality and enforceability of the remaining provisions shall not be affected, prejudiced or impaired and will continue to be of full force and effect.
15.5 Any notice to be given pursuant to these Terms are to be given in writing by email, personal delivery or by post:
(a) in the case of Safe Food Pro, to SafeFoodPro Limited, PO Box 34728, Birkenhead, Auckland 0746 with a copy emailed to email@example.com; and
(b) in the case of the customer, to the billing address and email address provided to Safe Food Pro from time to time.
15.6 Nothing express or implied in these Terms will constitute either party as the partner, agent, employee or joint venturer of the other party.
15.7 These Terms do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 for third parties to enforce any of these Terms.
15.8 These Terms, their subject matter and their formation (and any non-contractual disputes or claims) are governed by English law.