Date
{{vm.today | date:'yyyy/MM/dd'}}
Parties
1. Magosoft Ltd, a company incorporated in England and Wales (registration number 10131080) having its registered office at 30 Churchill Pl, London E14 5EU, United Kingdom; owner of the software product "NutriAdmin" (the "Provider"); and
2. {{vm.user.firstname || 'FIRSTNAME' }} {{vm.user.lastname || 'LASTNAME'}} of {{vm.user.address.city || 'CITY'}}, {{vm.user.address.country || 'COUNTRY'}} (the "Customer").
Agreement
1. Definitions
1.1 Except to the extent expressly provided otherwise, in this Agreement:
"Account" means an account enabling a person to access and use the Hosted Services of NutriAdmin;
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in England;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
"Charges" means the following amounts:
(a) the amounts specified in Part 3 of Schedule 1 (Hosted Services particulars);
(b) such amounts as may be agreed in writing by the parties from time to time;
"Customer Confidential Information" means:
(a) any information disclosed by or on behalf of the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential;
(b) Customer data; and
(c) The customer's patients data;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date of execution of this Agreement;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means the NutriAdmin software, as specified in the Hosted Services Specification, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorized by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorized by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Part 2 of Schedule 1 (Hosted Services particulars) and in the Documentation;
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Permitted Purpose" means reasonable use of the NutriAdmin software;
"Personal Data" has the meaning given to it in the Data Protection Act 1998;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Schedule" means any schedule attached to main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari
"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
"Update" means a hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a major version upgrade of any Platform software.
2. Credit
2.1 This document was created using a template from SEQ Legal (http://www.seqlegal.com).
3. Term
3.1 This Agreement shall come into force upon the Effective Date.
3.2 This Agreement shall continue in force until the customer unsubscribes from NutriAdmin, subject to termination in accordance with Clause 18.
4. Hosted Services
4.1 The Provider shall ensure that the Platform will, on the Effective Date, automatically generate an Account for the Customer and provide to the Customer login details for that Account.
4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive license to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
4.3 The license granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of the Customer;
(b) the Hosted Services may only be used by the named users identified in Schedule 1 (Hosted Services particulars); and
(c) the Hosted Services must not be used at any point in time by more than the number of concurrent users specified in Schedule 1 (Hosted Services particulars).
4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the license granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorized person to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services; and
(e) the Customer must not make any alteration to the Platform, except as permitted by the Documentation.
4.5 The Customer shall use reasonable endeavors, including reasonable security measures relating to Account access details, to ensure that no unauthorized person may gain access to the Hosted Services using an Account.
4.6 The Provider shall use all reasonable endeavors to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Customer's computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
4.8 The Customer must comply with Schedule 2 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with Schedule 2 (Acceptable Use Policy).
4.9 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.10 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.11 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.12 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 7 days written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
5. Maintenance Services
5.1 The Provider shall provide the Maintenance Services to the Customer during the Term.
5.2 The Provider shall where practicable give to the Customer at least 5 Business Days prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider's other notice obligations under this main body of this Agreement.
5.3 The Provider shall give to the Customer at least 5 Business Days' prior written notice of the application of an Upgrade to the Platform.
5.4 The Provider shall give to the Customer written notice of the application of any security Update to the Platform and at least 5 Business Days' prior written notice of the application of any non-security Update to the Platform.
5.5 The Provider shall provide the Maintenance Services with reasonable skill and care.
5.6 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 7 days' written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.
6. Support Services
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement.
6.3 The Provider shall provide the Support Services with reasonable skill and care.
6.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
6.5 The Provider shall respond promptly to all requests for Support Services made by the Customer through the helpdesk.
6.6 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 7 days' written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.
7. Customer Data
7.1 The Customer hereby grants to the Provider a non-exclusive license to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement, together with the right to sub-license these rights to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement.
7.2 The Customer warrants to the Provider that the use of the Customer Data by the Provider in accordance with this Agreement will not:
(a) breach the provisions of any law, statute or regulation;
(b) infringe the Intellectual Property Rights or other legal rights of any person; or
(c) give rise to any cause of action against the Provider,
in each case in any jurisdiction and under any applicable law.
7.3 The Provider shall create a back-up copy of the Customer Data at least daily, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 7 days.
7.4 Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavors to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 7.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
8. Mobile App
8.1 The parties acknowledge and agree that the use of the Mobile App, the parties' respective rights and obligations in relation to the Mobile App and any liabilities of either party arising out of the use of the Mobile App shall be subject to separate terms and conditions, and accordingly this Agreement shall not govern any such use, rights, obligations or liabilities.
9. No assignment of Intellectual Property Rights
9.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
10. Charges
10.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
10.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer's written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.
10.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated inclusive of any applicable value added taxes.
10.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 30 days' written notice of the variation expiring on any anniversary of the date of execution of this Agreement, providing that no such variation shall result in an aggregate percentage increase in the relevant element of the Charges during the Term that exceeds 2% over the percentage increase, during the same period, in the Retail Prices Index (all items) published by the UK Office for National Statistics.
11. Payments
11.1 The Provider shall issue invoices for the Charges to the Customer on or after the invoicing dates set out in Part 3 of Schedule 1 (Hosted Services particulars).
11.2 The Customer must pay the Charges to the Provider within the period of 14 days following the issue of an invoice in accordance with this Clause 11, providing that the Charges must in all cases be paid before the commencement of the period to which they relate.
11.3 The Customer must pay the Charges by debit card, credit card, direct debit, or bank transfer (using such payment details as are notified by the Provider to the Customer from time to time).
11.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
12. Provider's confidentiality obligations
12.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent, and then only under conditions of confidentiality approved in writing by the Customer;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose other than the Permitted Purpose.
12.2 Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to the Permitted Purpose and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
12.3 This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
12.4 The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognized stock exchange.
12.5 The provisions of this Clause 12 shall continue in force indefinitely following the termination of this Agreement.
13. Data protection
13.1 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement, and that the processing of that Personal Data by the Provider for the Permitted Purpose in accordance with this Agreement will not breach any applicable data protection or data privacy laws (including the Data Protection Act 1998).
13.2 To the extent that the Provider processes Personal Data disclosed by the Customer, the Provider warrants that:
(a) it will act only on instructions from the Customer in relation to the processing of that Personal Data;
(b) it has in place appropriate security measures (both technical and organisational) against unlawful or unauthorized processing of that Personal Data and against loss or corruption of that Personal Data; and
(c) it will not transfer or permit the transfer of that Personal Data outside the EEA without the prior written consent of the Customer.
14. Warranties
14.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfillment of the Provider's obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
14.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all respects with the Hosted Services Specification;
(b) the Hosted Services will be free from Hosted Services Defects;
(c) the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services;
(d) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(e) the Platform will incorporate security features reflecting the requirements of good industry practice.
14.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
14.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person.
14.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person's Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
14.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
14.7 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
15. Acknowledgements and warranty limitations
15.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
15.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
15.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
16. Limitations and exclusions of liability
16.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
16.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
16.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
16.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.
16.6 Neither party shall be liable to the other party in respect of any loss of use or production.
16.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
16.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.
16.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
16.10 The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the greater of:
(a) $500; and
(b) the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.
16.11 The aggregate liability of each party to the other party under this Agreement shall not exceed the greater of:
(a) $500; and
(b) the total amount paid and payable by the Customer to the Provider under this Agreement.
17. Force Majeure Event
17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
17.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
17.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
18. Termination
18.1 Either party may terminate this Agreement by giving to the other party at least 5 days' written notice of termination.
18.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
18.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganization where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
19. Effects of termination
19.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.11, 8, 11.2, 11.4, 12, 16, 19, 22 and 23.
19.2 The termination of this Agreement shall not affect the accrued rights of either party.
19.3 Within 30 days following the termination of this Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
without prejudice to the parties' other legal rights.
20. Notices
20.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 20.2 and Part 4 of Schedule 1 (Hosted Services particulars)):
(a) by communication between the email the customer registered during the Registration process and NutriAdmin's email. The notice will be considered to be received upon sending.
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
20.2 The Provider's contact details for notices under this Clause 20 are as follows: email: team@nutriadmin.com.
20.3 The address and contact details set out in Clause 20.2 and Part 4 of Schedule 1 (Hosted Services particulars) may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20.
20.4 NutriAdmin may use automated email communication technology such as Drip (getdrip.com) to automatically send transactional/onboarding emails to the customer.
21. Subcontracting
21.1 The Provider may subcontract any of its obligations under this Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
21.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
21.3 Notwithstanding any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
22. General
22.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
22.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
22.3 This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
22.4 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
22.5 This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.
22.6 Subject to Clause 16.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
22.7 This Agreement shall be governed by and construed in accordance with English law.
22.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
23. Interpretation
23.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
23.2 The Clause headings do not affect the interpretation of this Agreement.
23.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
24. Online payments with Stripe
24.1 The Customer will be required to register, if he/she has not done so yet, with the payment gateway "Stripe" in order to use the online payments functionality in NutriAdmin to bill his/her own clients/patients online. By registering with Stripe, the Customer will have to accept Stripe's terms of service, terms of use, and/or any other applicable policies.
24.2 NutriAdmin will enable the Customer to request online payments from clients. These payments will be collected by the payment gateway "Stripe", and be transferred to the Customer's bank account minus any "Stripe" transaction fees payable to Stripe in accordance to Stripe's own Terms of Use policies.
24.3 The Customer grants permission to the Provider to gather the relevant data required and to use the technological means needed in order to facilitate the connection between the Customer's bank account, the payment gateway "Stripe", and the Customer's clients so that the flow of funds detailed in the previous point can be accomplished.
24.4 The Customer is fully responsible for determining any fees chargeable to his/her own clients, for collecting those fees, as well as for any disputes, chargebacks, refunds, requested by the Customer's clients, financial institutions involved in transactions, or the payment gateway "Stripe".
24.5 The Provider will have no control or responsibility regarding any of the cases outlined in clause 24.4.
24.6 The Provider will have no control or responsibility regarding any charges or transaction fees that Stripe decides to charge for the use of its payment gateway infrastructure when the Customer uses Stripe to bill his/her clients.
24.7 The Provider will have no control or responsibility regarding any software defects or payment-related issues that fall under Stripe's responsibility.
25. Meal Plans, Recipes, and nutritional advice
25.1 NutriAdmin can generate meal plans and recipes automatically, based on parameters submitted by the user. However, NutriAdmin cannot provide medical advice, dietary recommendations, or produce diagnosis for any patients.
25.2 If the user generates any kind of nutrition-related document in NutriAdmin, including meal plans, recipes, reports, and food analysis, NutriAdmin will not take any responsibility and will not be liable for any consequences of implementing the suggestions in the given document(s) by any patient, client, or the user.
25.3 The user takes full responsibility in advicing his or her clients/patients. NutriAdmin is not liable for any adverse effects, issues, or complications any patient or client may experience after implementing a meal plan or recipe created by using NutriAdmin in their lifestyle.
25.4 NutriAdmin will endeavor to keep all nutritional facts, including nutrient data, recipe and diet information as accurate and up-to-date as possible. However, NutriAdmin will not be liable for any reasonable errors or inaccuracies in the nutritional data provided.
25.5 NutriAdmin cannot guarantee the accuracy or appropriateness of a meal plan created using the meal plan generator feature. NutriAdmin will not be held responsible for any consequences arising from the user providing a generated meal plan(s) or recipe(s) to clients, including the presence of allergens, or accuracy of meals. It is the responsibility of the user to double-check and to ensure any meal plans or recipes generated are appropriate for a given client and to consider the health implications, brand impact, etc. The generator may provide recipes collected from the web as well as recipes generated using Artificial Intelligence algorithms (AI). As valuable as this tool can be in saving time generating large portions of a meal plan, it is still the duty of the user as a nutrition qualified professional to assess the results are suitable for their intended use.
26. Web widgets and web integration
26.1 NutriAdmin will not be responsible for any issues related to a user installing a NutriAdmin web widget in his or her own website. Users make modifications to their websites under their own risk, and NutriAdmin cannot be held responsible for any adverse effects that may occur as a consequence of installing a web widget in any website.
27. Dropbox integration
27.1 NutriAdmin provides an optional Dropbox integration so that the user can upload/view/manage files for their clients.
27.2 It is the responsibility of the user to verify that they are allowed to use Dropbox by their organization, and any policy/legislation regarding data privacy/protection that may apply to them.
27.3 NutriAdmin will not be responsible for any issue, technical or otherwise, arising from the use of Dropbox. This includes, but is not limited to: Dropbox passwords being stolen, Dropbox files being shared or accessed by unauthorized parties, technical issues with Dropbox.
27.4 It is the responsibility of the user to obtain any kind of relevant data privacy/protection/processing agreements with Dropbox, if they opt to use this service.
27.5 Dropbox may charge fees for the usage of their service. It is the responsibility of the user to pay such fees if/when required. NutriAdmin is offered as an independent service, and any potential Dropbox fees are not included in NutriAdmin's subscription.
28. About generating content with artificial intelligence in NutriAdmin
28.1 NutriAdmin provides a feature that allows you to quickly generate a recipe using artificial intelligence provided by ChatGPT, from OpenAI. This is a powerful feature that allows you to enter text such as: *Give me a breakfast recipe using a frying pan and containing eggs and toast ready in 20 minutes or less* and get a recipe, including instructions, ingredients, nutritional analysis, and even an AI-generated image pretty much instantly.
28.2 ChatGPT does not have access to your client data. The only information sent to ChatGPT is your query, e.g. a sentence of text like "give me a recipe for dinner". This means there are no security or privacy concerns with regards to your confidential client/patient data as this external service doesn't have access to it.
28.3 Behind the hood NutriAdmin uses OpenAI's technology to generate a recipe matching your query. We also use Dall-E's technology to generate an image matching your recipe. You are free to sell or use this image without any copyright infringment concerns.
28.4 NutriAdmin is not responsible if any of the recipe's content is inaccurate or incorrect. It is your responsibility to double-check the results generated and to ensure they are suitable to hand over to a client.Although this AI technology is powerful and it can save you a lot of time, you should see it as a tool to make you more productive, rather than as a replacement for creating recipes at all. The way the AI works it uses a language model to produce plausible content but this can be incorrect sometimes. Please always check results are good before using them yourself.
28.5 Every time you generate a recipe using the AI generation feature in NutriAdmin, we will save a copy of the recipe in our database. NutriAdmin will have ownership of this copy and may use it in the feature in other products.You get a copy of the recipe generated as well, and you can edit and customize your copy any way you see fit. You will retain full ownership of your own copy and edits, and NutriAdmin cannot use your own customized version with edits without your permission.
29. About NutriAdmin content
29.1 NutriAdmin provides certain content to its users, including a database of recipes, meal plans, questionnaires, etc. As a user, you can download and use these materials within reason. Downloading or attempting to download our whole database of content is however not allowed and will constitute abusing the service and result in the termination of your account.
29.2 Similarly to the above, downloading NutriAdmin's content with the intention of setting up a competing service offering the same content is not permitted.
29.3 The content provided is intended for nutrition, fitness, and wellness professionals that want to provide materials such as recipes, meal plans, questionnaires, etc to their clients. You can use and even download/sell content from NutriAdmin as long as you are using it within this intended use. Excessive use of the content we provide, scrapping, or any other use that falls outside the intended use will be subject to scrutiny and may result in termination of the services if deemed as an abuse of the service.
Execution
The parties have indicated their acceptance of this Agreement by executing it below.
SIGNED BY Diego Oliveira Sanchez on {{vm.today | date:'yyyy/MM/dd'}} representing Magosoft Ltd, the Provider:
Signed electronically
SIGNED BY {{vm.user.firstname || 'FIRSTNAME'}} {{vm.user.lastname || 'LASTNAME'}} on {{vm.today | date:'yyyy/MM/dd'}} , the Customer:
Signed electronically
Schedule 1 (Hosted Services particulars)
1. Customer details
The Customer is {{vm.user.firstname || 'FIRSTNAME'}} {{vm.user.lastname || 'LASTNAME'}} of {{vm.user.address.address1 || 'ADDRESS1'}}, {{vm.user.address.address2 || 'ADDRESS2'}}, {{vm.user.address.city || 'CITY'}}, {{vm.user.address.country || 'COUNTRY'}}.
2. Specification of Hosted Services
The hosted services include all software and materials under the domain and associated web domains of http://nutriadmin.com and https://nutriadmin.com. Usage limitations are governed by reasonable use.
3. Financial provisions
4. Contractual notices
Schedule 2 (Acceptable Use Policy)
1. Introduction
1.1 This acceptable use policy (the "Policy") sets out the rules governing:
(a) the use of the website at nutriadmin.com, any successor website, and the services available on that website or any successor website (the "Services"); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Magosoft Ltd (and "we" and "our" should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy before you upload or submit any Content or otherwise use the Services.
1.5 You must be at least 15 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age .
2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content, and the use of Content by us in any manner licensed or otherwise authorized by you, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
(l) constitute spam.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question.
4.2 Content must not depict violence in an explicit, graphic or gratuitous manner.
4.3 Content must not be pornographic.
5. Factual accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.
6. Negligent advice
6.1 Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services unless qualified to do so.
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.
7. Etiquette
7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behavior on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
7.7 You must ensure that Content does not duplicate other content available through the Services.
7.8 You must ensure that Content is appropriately categorized.
7.9 You should use appropriate and informative titles for all Content.
7.10 You must at all times be courteous and polite to other users of the Services.
8. Marketing and spam
8.1 You must not without our written permission use the Services for any purpose relating to the marketing, advertising, promotion, sale or supply of any product, service or commercial offering.
8.2 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
8.4 You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes or similar letters, schemes or programs.
9. Gambling
9.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.
10. Monitoring
10.1 You acknowledge that we may actively monitor the Content and the use of the Services.
11. Data mining
11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.
12. Hyperlinks
12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.
13. Harmful software
13.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.