INTERNATIONAL FOOD INFORMATION SERVICE (IFIS PUBLISHING) TERMS AND CONDITIONS FOR THE LICENCE OF FSTA DIRECT ON AN ANNUAL SUBSCRIPTION BASIS
All FSTA Direct data licensed to a Customer on an annual subscription basis is licensed upon and subject to these Terms and Conditions. Before submitting an order each Customer shall ensure that it has read these Terms and Conditions carefully as they will be required to sign a licence agreement containing these terms before access to FSTA Direct is provided. These Terms and Conditions are subject to change from time to time, and the Customer should therefore revisit them prior to submitting an order to ensure it is aware of the then current Terms and Conditions.
1 Definitions
1.1 In these Terms and Conditions the following terms shall have the following meanings except where the context otherwise requires:
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“Agreement” |
means the agreement between the Customer and IFIS formed by acceptance by IFIS of an order for FSTA Direct incorporating these terms and conditions; |
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“Annual Fee” |
means the licence fee payable by the Customer annually for the duration of the Licence which shall be determined by the Customer’s choice of the number of Locations and the number of Simultaneous Users; |
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“Authorised Users” |
means individuals who are employed by the Customer or who are students at the Customer’s Institution; |
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“Commencement Date” |
means the date IFIS activates the Customer’s personalised password pursuant to Clause 5.7; |
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“Customer” |
means either you, the individual reading these Terms and Conditions or, where you are acting in the course of your employment, your employer; |
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“FSTA Direct” |
means the service currently known as FSTA Direct and comprising (inter alia) FSTA together with weekly updates [and the integrated FSTA dictionary] accessible via an IFIS password protected website http://www.fstadirect.com for authorised subscribers; |
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“FSTA” |
means IFIS’s bibliographic database (1969 to present) containing abstracts of and indexes to literature on scientific, technological and nutritional aspects of processing and manufacturing foods and beverages destined for human consumption which is identified as “Food Science and Technology Abstracts - FSTA®“, and includes the FSTA Thesaurus; |
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“IFIS” |
means International Food Information Service (IFIS Publishing) a company limited by guarantee (Company No. 3507902) and registered as a charity in England and Wales (Registration No. 1068176), located at Lane End House, Shinfield Road, Shinfield, Reading RG2 9BB, UK; |
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“Intellectual Property” and “Intellectual Property Rights” |
means (without limitation) patents, rights in designs, trade marks, service marks, unregistered design rights and database rights (as defined under the Copyright and Rights in Databases Regulations 1997) (in each case whether or not registered, and including applications for registration and the right to make applications) and copyright, moral rights, technology, know how, confidential information, trade secrets, trade names and goodwill, domain names, and any other industrial and proprietary rights or forms of protection of a similar nature or having equivalent or similar effects to any of these which may subsist anywhere in the world, for their full term and any extension or renewal thereof, and any licences under or in respect of any such rights; |
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“Locations” |
means the locations notified by the Customer to IFIS when submitting an order; and |
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“Simultaneous Users” |
means the maximum number of Authorised Users agreed to by the parties and set out in the invoice, who can access FSTA Direct at any one time. |
Subject to acceptance by IFIS of an order placed by the Customer pursuant to Clause 4 and upon and subject to the terms and conditions contained herein, IFIS hereby grants to the Customer a non-exclusive, non-assignable, non-transferable, revocable licence (without the right to sublicense), to download and use the information contained in FSTA Direct at the Locations by the Simultaneous Users, in order to conduct retrospective and current update searches of FSTA but for no other purpose.
3 Scope of licence
3.1 The Customer and the Authorised Users are authorised to download and use FSTA Direct at the Location(s) for their own internal research purposes only, and may not (whether for commercial, educational or other purposes) publish, reproduce, transmit, or otherwise make available or sell any of its contents, whether in hard copy, electronically transmitted or any other form, except that for the purpose of publishing scientific research, the bibliographics (not including abstract) may be incorporated into a bibliography where such bibliographics are incidental to the published work or article to which they relate.
3.2 All Intellectual Property Rights in FSTA and FSTA Direct (including all the data and other contents thereof) and in all documentation furnished by IFIS to the Customer and the Authorised Users pursuant to this Agreement shall belong to and remain with IFIS.
3.3 Without prejudice to the other provisions of this Agreement, the Customer and the Authorised Users shall not use data downloaded from FSTA Direct in combination with other information so as to create a consolidated file to be offered online or in any other media to third parties.
3.4 IFIS shall be entitled to make such changes to FSTA Direct as it sees fit but if such changes materially affect the scope or frequency of the service the Customer may terminate the Agreement.
3.5 The Customer is prohibited from doing, or allowing others to do, the following:
3.5.1 using or copying FSTA or any part of it except to the extent permitted by this Agreement;
3.5.2 altering, adapting, merging or modifying FSTA or any part of it in any way for any purpose except to the extent permitted by this Agreement;
3.5.3 removing, changing or obscuring any product identification or notices or proprietary rights and restrictions on or in FSTA;
3.5.4 distributing, renting or loaning FSTA or any part of it to a third party or otherwise dealing in FSTA or any part of it in a manner inconsistent with the terms of this Agreement.
3.6 The Customer shall take all reasonable steps to ensure that the Authorised Users are made aware of the restrictions imposed in this Agreement on his use of FSTA available via FSTA Direct.
4 Ordering
4.1 The Customer shall place an order for FSTA Direct by contacting IFIS directly at ifis@ifis.org or by post at International Food Information Services (IFIS Publishing), Lane End House, Shinfield Road, Shinfield, Reading, RG2 9BB, UK and supplying the details requested by IFIS.
4.2 IFIS may accept or decline to accept the Customer’s order at IFIS’ discretion.
4.3 The information displayed on any IFIS web site or any promotional material, including prices, does not constitute an offer to contract or enter into an agreement. By placing an order the Customer makes an offer to IFIS to purchase FSTA Direct on these terms and conditions.
4.4 IFIS will not be deemed to have accepted the Customer’s order and no legally binding agreement shall be formed, unless and until IFIS has sent the Customer an order confirmation notice in writing confirming acceptance of the Customer’s order.
5 The fee
5.1 The Customer shall pay IFIS the initial Annual Fee.
5.2 The Annual Fee for renewal of this Agreement shall be decided entirely at the discretion of IFIS.
5.3 All payments due under this Clause 5 shall be made in either pounds sterling, euros or US dollars and shall be exclusive of any applicable VAT or other like tax or duty which the Customer shall pay in addition at the rate prevailing from time to time
5.4 Payment may be made by credit card (including Visa, Mastercard, Delta or American Express) by Switch, by cheque (where the cheque is drawn on a UK bank), by bank transfer or by any other payment mechanism agreed to by IFIS.
5.5 The Customer warrants that all credit card or other payment information supplied to IFIS is true, correct and complete, and that all charges incurred by the Customer will be honoured by the Customer’s credit card company.
5.6 Upon receipt of payment of the Annual Fee IFIS shall provide the Customer with a personalised user name and password to allow access to FSTA Direct. The Customer will keep its password confidential (and procure that all Authorised Users do so) and notify IFIS within 24 hours of any unauthorised disclosure or use of its password or any other breach of security affecting FSTA or FSTA Direct. If the Customer does not notify IFIS within 24 hours of any unauthorised disclosure or use of its password or any other breach of security, the Customer shall be responsible for any charges incurred through use of its password.
6 Term and termination
6.1 The Agreement shall commence on the Commencement Date and shall continue for the initial period of twelve (12) months or until terminated pursuant to the terms contained in this Clause 6.
The Agreement will terminate automatically if the Customer becomes bankrupt, goes into liquidation, suffers or makes any winding up petition, makes an arrangement with their creditors, has an administrator, administrative receiver or receiver appointed or suffers or files any similar action in consequence of debt.
6.2 IFIS may terminate this Agreement upon 7 days’ written notice of the Customer if the Customer fails to comply with any of the terms and conditions of this Agreement.
6.3 Either party may terminate this Agreement upon thirty-one (31) days written notice to the other party. If IFIS terminates the Agreement pursuant to this Clause 6.3 the Customer shall if necessary be refunded a proportion of the Annual Fee, to be determined on a pro-rata basis by IFIS.
6.4 Upon termination of this Agreement for whatever reason, the Customer shall erase or destroy all machine readable files derived from FSTA Direct, with the exception that up to a maximum of 400 records per year of access to FSTA (up to a total limit of 5,000 records) may be stored permanently in electronic form by each Simultaneous User for research purposes only. The Customer shall take all reasonable steps to inform the Authorised Users of this restriction in the event of termination.
6.5 Termination of this Agreement does not affect either party’s accrued rights and obligations as at the date of termination.
6.6 All provisions of this Agreement, the survival of which are necessary for the interpretation or enforcement of a party’s right or obligations, shall survive termination of this Agreement and shall continue in full force and effect.
7.1 IFIS warrants to the Customer that it has the authority to grant the rights as set out in this Agreement.
7.2 The Customer shall, without prejudice to any other right of action which IFIS may have, at all times keep IFIS fully and effectively indemnified against all and any liability (which liability shall include, without limitation, all losses, costs, claims, expenses, demands, actions, damages, legal and other professional fees and expenses on a full indemnity basis) which IFIS may suffer or incur as a result of, or by reason of, any breach or non-fulfilment of any of the Customer’s obligations in respect of this Agreement.
8 Liability
8.1 IFIS’ liability under or in connection with this Agreement whether in contract, tort or otherwise (except in the case of personal injury or death or damage to the Customer’s property as further described in Clause 8.6 caused by IFIS’ negligence) shall not exceed an amount equal to the Annual Fee paid by the Customer to IFIS for the year in which the claim occurs.
8.2 Notwithstanding Clause 8.1 IFIS shall have no liability under or in connection with this Agreement for breach of statutory duty or in any other way for:
8.2.1 any economic losses (including without limitation, loss of revenues, profits, contracts, business or anticipated savings);
8.2.2 any loss of goodwill or reputation; or
8.2.3 any special or indirect or consequential losses
in any case whether or not such losses were within the contemplation of the parties at the date of this Agreement, suffered or incurred by the Customer arising out of or in connection with the use by the Customer of FSTA Direct, or any matter under this Agreement.
8.3 IFIS gives no warranty that the information contained in FSTA Direct is accurate or complete. IFIS agrees to give due consideration to any corrections or changes to FSTA Direct which the Customer notifies to IFIS. IFIS reserves the right not to make these changes should conflicting information be obtained from other sources.
8.4 The Customer hereby acknowledges that the use and interpretation of FSTA Direct requires the use of skill and judgment and that the Customer shall at all times exercise its own judgment in the use of FSTA Direct with respect to any information available or obtained therefrom, and that the Customer shall be solely responsible for any opinions, recommendations, forecasts or other comments made or actions taken by it or by any other party based (in whole or in part) on FSTA Direct.
8.5 The Customer hereby acknowledges that FSTA Direct has not been prepared to meet the Customer’s individual requirements, and that the allocation of risk contained in this Clause 8 is reflected in the Annual Fee.
8.6 Nothing in this Agreement shall exclude IFIS’ liability for fraud, or death or personal injury arising from its negligence or that of its servants, agents, or employees.
The Customer may, with assistance from IFIS, prepare printed or electronic documentation on FSTA for internal purposes only.
10 Customer support
IFIS and the Customer will attempt to solve problems concerning FSTA Direct via email, fax or telephone contact. IFIS does not warrant that the Customer’s access to FSTA Direct will be uninterrupted.
Neither party shall during this Agreement or after its termination without the prior written consent of the other disclose to any third party or publish, use or exploit for any purpose not connected with this Agreement any confidential information concerning the other including without limitation the other’s customer lists which may come to its knowledge as a result of the execution of this Agreement provided that this provision shall not apply where such information has otherwise been disclosed or published to the general public (other than as a result of a previous unauthorised disclosure or publication by either of the parties hereto) or which is required to be disclosed by law or any regulatory or governmental authority.
IFIS shall not be liable for delays in delivery or failure to produce FSTA Direct due to causes beyond its reasonable control, including without limitation, strikes, or difficulty or inability to obtain labour or materials or delays due to telecommunication problems. In the event of such delay, the date or dates for performance of this Agreement shall be extended for a period equal to the time lost by such delays
All communications affecting the terms and conditions of this Agreement and concerning its execution shall be made or confirmed via e-mail, and shall be deemed received in the case of email 6 hours after being sent and in the case of registered mail 3 days after being sent. All notices sent to IFIS should be sent to ifis@ifis.org or to International Food Information Services (IFIS Publishing) at Lane End House, Shinfield Road, Shinfield, Reading, RG2 9BB, UK as the case may be and all notices sent to the Customer will be sent to the email address or registered mail address of the Customer provided to IFIS during the initial purchase process.
14 General
14.1 The exercise of, or failure to exercise, any right under this Agreement shall not prejudice or constitute a waiver of any subsequent exercise of that right or any other rights whether under this Agreement or otherwise.
14.2 Nothing in this Agreement shall constitute or be deemed to constitute a partnership or agency between the Customer and IFIS.
14.3 If any term or provision of this Agreement shall be held to be illegal or unenforceable in whole or in part, under any enactment or rule of law, such term or provision or part shall to that extent be deemed not to form a part of this Agreement, but the validity and enforceability of the remainder of this Agreement shall not be affected.
14.4 A person or entity who is not a party to this Agreement is not entitled to enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999 except where this Agreement expressly provides that such a person or entity is entitled to enforce any of its terms.
14.5 The remedies herein provided in favour of IFIS shall not be deemed to be exclusive but shall be cumulative and in addition to all other remedies existing to law, common law, equity or otherwise.
14.6 This Agreement constitutes the entire understanding of the parties with respect to the subject matter hereof. In entering into this Agreement the Customer has not relied on any representation, promise, warranty, covenant or undertaking not expressly set forth herein. Accordingly, IFIS shall be under no liability whatsoever nor shall the Customer be entitled to any remedy for either any negligent or any innocent misrepresentation except to the extent (if any) that a court or any arbitrator may allow reliance on the same as being fair and reasonable. Nothing in this Agreement shall exclude IFIS’ liability for fraud (including fraudulent misrepresentation).
14.7 The clause headings contained herein are for convenience of reference only and shall not be used in interpreting or construing this Agreement.
15 Applicable Law and Jurisdiction
This Agreement shall be governed by and construed in accordance with English law and each party submits to the exclusive jurisdiction of the English Courts.
