FCP Log End User Agreement

1. Agreement

The Food Business Limited (TFB), a New Zealand Limited Liability Company, agrees to licence the Software to the Licensee, and the Licensee accepts that Licence and agrees to pay for that Licence on the Term of the Agreement.

2. Terms of the Agreement

TFB may change these terms and conditions at any time at its discretion and such changes shall take effect from the date that they are placed on TFB’s website.

3. Definitions

As used in this Agreement and on any web pages now or hereafter the following terms have the stated meaning:

Add On Modules: Means all and any additions to the Software that are developed from this date forward. Does not include improvements and upgrades made to the software that are intended to enhance functionality and user experience.
Additional Services: Means any services provided to the Licensee by TFB which may include installation, customisation and/or development services.
Application: Means the FCP Log software, accessible via www.foodcontrolplans.co.nz or another designated website or IP address, or ancillary online or offline products and services provided to you by The Food Business Limited, to which you are being granted access under this Agreement, including the FCP Log Technology and any subsequent versions and updates thereto.
Approved Purpose: The Licensee’s lawful internal business purposes and subject to any maximum numbers of users and other requirements and restrictions as set out in this Agreement.

Customer Data: Means any data, information or material provided or submitted by you to the Software in the course of using the Software.

Intellectual Property Rights: Means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, Work Requests, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world.

Licensee: the individual person or company to whom the Licence is granted.

Login Information: Is the username and password that are unique to each user under your Licence.

The Software Means the software product “FCP Log” that TFB provides the Licensee access to, including any updates and modifications.

Trial Version: Means a version of the Software to be used only to review, demonstrate and evaluate the Software for a period of 14 days. The Trial period may have limited features.
Use as part of a compliance package: Means that the Software will be made accessible free of charge for a period fo 6 months from the date of registering an an FCP LOG account.

User(s): Means your employees, representatives, consultants, contractors or agents who are authorized to use the Application and have Login Information supplied by you.

Site: Means single whole establishment.

4. Licence

TFB grants the Licensee, and the Licensee accepts, a non-exclusive and non-transferable Licence for the duration of the Agreement to use the Software solely for the Approved Purpose and on the Terms and Conditions of the Agreement.

5. Trial Period

Subject to the Terms and Conditions of and except as otherwise provided in this Agreement, TFB grants the Licensee a limited, non-exclusive, non-transferable and non-assignable Trial Period to evaluate FCP Log for a term of 14 days from the date your User is created.
The trial period begins when you activate your account.
During the Trial Period the Licensee may only have access to a ‘Trial Version’ of the Software.
At the end of the 14 day trial period or the 6 months use as part of a compliance package, your access to FCP Log will terminate unless a paid subscription is initiated.
Access to any data already entered will be accessible via the 'LOGS' sections only for a period of 4 years, in line with the archiving requirements of MPI under The Food Act 2014

6. Term of Licence and Paid Subscription Period

Your paid Subscription for the Software will commence on the date that your first payment is made.
The term of Agreement is one year from the commencement date of your paid Subscription, unless agreed otherwise.
Following the expiry of the Initial Subscription Period, your subscription for the Software will continue to renew in perpetuity for successive 12 month periods (each a Renewal Period), unless terminated earlier in accordance with clause 16.

The maximum number of users granted access under the terms of this Agreement are 25. Any additional users required by the Licensee may incur additional fees at the sole discretion of TFB.

7. Licence Fee

The Licensee agrees to pay TFB the monthly, quarterly or annual fee, as selected by the Licensee, by automatic payment from the Licensee’s nominated debit or credit card on the same day each month.
The License Fee will be due as from the first day following expiration of the Trial Period.
From time to time add-on modules may become available as additional to the subscription subject to this agreement. If these add-on modules are opted for by you they will be coterminous with the pre-existing subscriptions’ term; and the subscription fee for the add-on modules will be added to the existing subscription fee.
In addition to any other rights granted to TFB herein, TFB reserves the right to suspend or terminate this Agreement and your access to the Software if your subscription falls into arrears.
TFB reserves the right to modify its fees and charges and to introduce new charges at subscription renewal, upon at least 30 days’ prior notice to you. All pricing terms are confidential, and you agree not to disclose them to any third party.
Fees for other services will be charged on an as-agreed basis.
TFB will add GST to the subscription fee.

8. Intellectual Property

TFB alone shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Software and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Software.
This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Software or the Intellectual Property Rights owned by TFB. The TFB names, logo’s, and the product names associated with the Software are trademarks of TFB or third parties, and no right or license is granted to use them.

9. Confidential Information

Each party will, unless it has the prior written consent of the other party:

Keep confidential at all times the Confidential Information of the other party;
Effect and maintain adequate security measures to safeguard the other party’s Confidential Information from unauthorised access or use;
Disclose the other party’s Confidential Information to its personnel or professional advisors on a need to know basis only and, in that case, ensure that any personnel or professional advisor to whom it discloses the other party’s Confidential Information is aware of, and complies with, the provisions of the above clause.

The obligation of confidentiality in the above clause does not apply to any disclosure or use of Confidential Information:

For the purpose of performing the Agreement or exercising a party’s rights under the Agreement;
For the purpose of sharing with the Licensee’s registered verifier upon request from the Licensee.
Required by law;
Which is publicly available through no fault of the recipient of the Confidential Information or its personnel;
Which was rightfully received by a party to the Agreement from a third party without restriction and without breach of any obligation of confidentiality;
By TFB if required as part of a bona fide sale of its business (assets or shares, whether in whole or in part) to a third party, provided that TFB enters into a confidentiality agreement with the third party on terms no less restrictive than this clause 9.

10. Warranties

Each party warrants that it has full power and authority to enter into and perform its obligations under the Agreement which, when accepted, will constitute binding obligations on the warranting party.
The Software is provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by TFB.
TFB does not warrant that the Software will function and/or communicate correctly due to third-party software installed by you.
The Software may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. TFB is not responsible for any delays, delivery failures, or other damage resulting from such problems.

11. Licensor Responsibilities

We will, in providing the Software and any other services under these Terms, act with due care, skill and diligence.
We will use reasonable endeavours to ensure that the FCP Log System is available and providing (in all material respects) the functionality described on the website and in supporting documents at all times other than when we need to suspend access in order to carry out any software upgrades or other maintenance.
We will give advanced notice of any planned Software unavailability or outage by email or via the Software itself.

12. Licensee Responsibilities

You will use the Software for lawful purposes only and must not copy, reproduce, translate, decompile, reverse-engineer, resell, modify, vary, sub-license or otherwise deal in the Software.
Ensure the Software are protected at all times from misuse, damage, destruction or any form of unauthorised use, copying or disclosure;
Maintain all proprietary notices on the Software;
Not transfer, assign or otherwise deal with or grant a security interest in the Software or the Licensee’s rights under the Agreement;
Not challenge TFB’s ownership of (including the Intellectual Property Rights in) the Software, the Documentation or any other item or material created or developed by or on behalf of TFB under or in connection with the Agreement;
Notify TFB in writing immediately after it becomes aware of any circumstance which may suggest that any person may have unauthorised knowledge, possession or use of the Software.
Permitted Users: Without limiting clauses above, no individual other than a Permitted User may access or use the Software. The Licensee may authorise any member of its personnel to be a Permitted User, provided that the maximum number of users is not exceeded. The Licensee must procure each Permitted User’s compliance with clauses above and any other reasonable condition notified by TFB to the Licensee. A breach of any of the Agreement by any of the Licensee’s personnel (including, to avoid doubt, a Permitted User) is deemed to be a breach of the Agreement by the Licensee.

13. Limitation of Liability

While TFB takes all reasonable care to ensure that the Software is compliant with New Zealand’s Food Act 2014 and all other applicable laws and regulations (“NZ Laws”), it does not warrant that your use of the Software will meet all requirements imposed on your business by NZ Laws or by the laws of any other country. TFB accepts no liability or responsibility for any losses, expenses, fines or other costs incurred by you and arising from your use of the Software whatsoever.
TFB shall also not be liable in any way for damage or loss of any kind resulting from:

The use of or inability to use the Software, including, without limitation, loss of goodwill, work stoppage, computer failure or malfunction.
The loss of or damage to user data stored by the Software.
Interruptions of service including without limitation ISP disruptions, software or hardware failures or any other event which may result in a loss of data or disruption of service.

In no event shall TFB be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with the Software, including but not limited to the use or inability to use the Software, or for any content obtained from or through the Software, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages.

14. Indemnity

TFB indemnifies the Licensee against any claim or proceeding brought against the Licensee to the extent that claim or proceeding alleges that the Licensee’s use of the Software in accordance with the Agreement constitutes an infringement of a third party’s Intellectual Property Rights (IP Claim). The indemnity is subject to the Licensee:

promptly notifying TFB in writing of any IP Claim;
Making no admission of liability and not otherwise prejudicing or settling the IP Claim, without TFB’s prior written consent;
Giving TFB complete authority and information required for TFB to conduct and/or settle the negotiations and litigation relating to the IP Claim. The costs incurred or recovered are for TFB’s account.

The indemnity in clause 14.1 does not apply to the extent that an IP Claim arises from or in connection with:

The Licensee’s breach of the Agreement;
The use of the Software in a manner or for a purpose not reasonably contemplated by the Agreement and not otherwise authorised in writing by TFB;
Any third party data or data owned by the Licensee;
Modification or alteration of the Software by a person other than TFB.

If at any time an IP Claim is made, or in TFB’s reasonable opinion is likely to be made, then in defence or settlement of the IP Claim, TFB may (at TFB’s option):

Obtain for the Licensee the right to continue using the items that are the subject of the IP Claim; or
Modify, re-perform or reprogram the Software.

15. Termination

Either party may, by notice to the other party, immediately terminate the Agreement if the other party:

Breaches any material provision of the Agreement and the breach is not:

Remedied within 15 days of the other party notifying it of the breach; or
Capable of being remedied;

Becomes insolvent, liquidated or bankrupt, has an administrator, receiver, liquidator, statutory manager, mortgagee’s or chargee’s agent appointed, becomes subject to any form of insolvency action or external administration, or ceases to continue business for any reason;
Is unable to perform a material obligation under the Agreement for 15 days or more due to Force Majeure.

The Licensee may terminate the Agreement at any time on giving no less than 30 days’ notice to TFB.

Suspension: Without limiting any of its other rights and remedies, TFB may suspend the Licensee’s licence to use the Software or otherwise restrict the Licensee’s access and use of the Software if any amount payable is not paid by the due date or if in TFB’s reasonable opinion the Licensee is in breach of any other term of the Agreement.
Consequences of termination or expiry: A Termination or expiry of the Agreement does not affect either party’s rights and obligations accrued before that termination or expiry.
On termination or expiry of the Agreement, the Licensee must pay all Fees for the rights and Services provided prior to that termination or expiry. Fees paid in advance are not refundable in any circumstances, except to the extent required by law.
Each party must, at the other party’s request following the termination or expiry of the Agreement, return to the other party or (at the other party’s option) destroy all Confidential Information of the other party in the first party’s possession or control.

16. Disputes Resolution

Good faith negotiations: Before taking any court action, a party must use its best efforts to resolve any dispute under, or in connection with, the Agreement through good faith negotiations.
Each party must, to the extent possible, continue to perform its obligations under the Agreement even if there is a dispute.
This clause 17 does not affect either party’s right to seek urgent interlocutory and/or injunctive relief.

17. General Provisions

TFB may, from time to time, update the Software which TFB makes available for you to access over an Internet connection. Any and all such updates shall become immediately available to you on your next login.
Access to the Software may be temporarily suspended while updates are applied.
To waive a right under the Agreement, that waiver must be in writing and signed by the waiving party.
TFB is an independent contractor of the Licensee. No other relationship (e.g. joint venture, agency, trust or partnership) exists under the Agreement.
TFB may provide notice to the Licensee by email. A notice given by the Licensee to TFB under the Agreement must be delivered to TFB via email to hello@foodcontrolplans.co.nz or such other email address notified by TFB to the Licensee for this purpose.

18. Severability

Any illegality, unenforceability or invalidity of a provision of the Agreement does not affect the legality, enforceability or validity of the remaining provisions of the Agreement.

19. Variation:

Except as set out otherwise in the Agreement, any variation to the Agreement must be in writing and agreed by both parties.

20. Entire agreement:

The Agreement sets out everything agreed by the parties relating to the Software licence and supersedes and cancels anything discussed, exchanged or agreed prior to the Effective Date. The parties have not relied on any representation, warranty or agreement relating to the Software licence that is not expressly set out in the Agreement, and no such representation, warranty or agreement has any effect from the Effective Date.

21. No assignment:

The Licensee may not assign, novate, subcontract or transfer any right or obligation under the Agreement without the prior written consent of TFB, that consent not to be unreasonably withheld. The Licensee remains liable for its obligations under the Agreement despite any approved assignment, subcontracting or transfer. Any assignment, novation, subcontracting or transfer must be in writing.
Any change of control of the Licensee is deemed to be an assignment for which TFB’s prior written consent is required under clause 22.1. In this clause, change of control means any transfer of shares or other arrangement affecting the Licensee or any member of its group which results in a change in the effective control of the Licensee.