The Terms and Conditions set out below govern your use of Nutritics Group softwares, Nutritics Group is comprised of Nutritics Limited, Ten Kites Limited and Nutritics Australia Pty Ltd ("Nutritics"). By continuing to use the software, you are deemed to have agreed to these terms. In the event that you do not agree, please do not proceed with using the software and contact email@example.com.
TERMS AND CONDITIONS AND PARTIES
The Terms and Conditions set out below are issued by Nutritics Limited (“Nutritics”). For the purposes of these Terms and Conditions, the “Client” shall mean any individual or group that uses Nutritics’ software for professional or personal purposes.
The Client represents and warrants that it has the power and authority to execute these Terms and Conditions
These Terms and Conditions are between the Client and Nutritics. The Client’s relationship is solely with Nutritics as the entity providing the software platform (“the Software”).
The Client will keep your contact information, billing information and credit card information (where applicable) up to date. Changes may be made on your Billing Page within your Nutritics portal or by contacting firstname.lastname@example.org. All payment obligations are non-cancelable and all amounts paid are non-refundable, except as specifically provided for in this Agreement. All fees are due and payable in advance throughout the Subscription Term.
All fees are exclusive of taxes, which we will charge as applicable. The Client agrees to pay any taxes applicable to use of the Software. The Client shall have no liability for any taxes based upon our gross revenues or net income. If the Client is located in the European Union, all fees are exclusive of any VAT and the Client represents that they are registered for VAT purposes in your member state. At our request, the Client can provide us with the VAT registration number under which you are registered in your member state. If the Client is subject to GST, all fees are exclusive of GST. If the Client is required to deduct or withhold any tax, the Client must pay the amount deducted or withheld as required by law and pay us an additional amount so that we receive payment in full as if there were no deduction or withholding.
Without limiting its other rights or remedies, Nutritics shall have the right to suspend or terminate the Software entirely or in part if payment is not received within thirty (30) days of the fee note date. The Client shall be responsible for all taxes, such as VAT, sales and use tax, gross receipts tax, withholding tax, and any similar tax, imposed on or in connection with the Software.
Refunds may be granted within 7 days of the payment date provided you have not created more than three items in your account e.g. diet logs, meal plans or recipes.
Aside from the above, there is no obligation to provide a refund or credit in a situation like the following:
- The subscription has not been used
- You have changed your mind
- You purchased a subscription by mistake
- You do not have sufficient expertise to use the software
- You ask for goodwill
RESPONSIBILITIES OF THE CLIENT
The Client shall ensure that each member of the Client Group cooperates with Nutritics in connection with the performance of the Software.
The Client shall be responsible for the performance of the personnel and agents of the Client Group, for the timeliness, accuracy and completeness of all data and information inputted into the Software.
The Software may use and rely on information and data furnished by the Client Group or others without verification. Nutritics will not be responsible for the consequences of this data or information not being complete, accurate or current.
Except as otherwise stated, the Client shall be solely responsible for, among other things: (A) making all decisions and performing all functions; (B) evaluating the adequacy and results of the Software; (C) accepting responsibility for the results of the Software; and (D) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities and (E) using the information generated via the software in compliance with Local and National Regulations..
(a) These Terms and Conditions may be terminated by Nutritics at any time, with or without cause, by giving written notice to the Client not less than 30 days before the effective date of termination, provided that, in the event of a termination for cause, the breaching party shall have the right to cure the breach within the notice period if the breach is capable of remedy.
(b) These Terms and Conditions may be terminated by either party by written notice with immediate effect if any of the following events occur:
(i) the other party passing a resolution for its winding-up or a court of competent jurisdiction making an order for the other party’s winding-up or dissolution;
(ii) the making of an administration order in relation to the other party, or the appointment of a receiver over, or an encumbrancer taking possession of or selling, an asset of the other party;
(iii) the other party making an arrangement or composition with its creditors generally or making an application to a court of competent jurisdiction for protection from its creditors generally; or
(iv) any event analogous to those set out in paragraphs (i) to (iii) in any relevant jurisdiction.
(c) Nutritics may terminate these Terms and Conditions with immediate effect upon written notice to the Client if Nutritics determines that (a) a governmental, regulatory, or professional entity, or an entity having the force of law has introduced a new, or modified an existing, law, rule, regulation, interpretation, or decision, the result of which would render Nutritics’ performance of any part of the Terms and Conditions illegal or otherwise unlawful or in conflict with independence or professional rules, or (b) circumstances change (including, without limitation, changes in ownership of the Client or any of its affiliates) such that Nutritics’ performance of any part of the Terms and Conditions would be illegal or otherwise unlawful or in conflict with independence or professional rules or Nutritics policy.
(d) Upon termination of the Terms and Conditions, the Client will compensate Nutritics for the Software provided and expenses incurred up to the effective date of termination.
OWNERSHIP OF NUTRITICS PROPERTY AND WORK PRODUCTS
On payment of Nutritics fees due, each Beneficiary shall obtain a non-exclusive license to use the Software within the Client Group, subject to the other provisions of these Terms and Conditions. Nutritics shall have ownership (including, without limitation, copyright and other intellectual property ownership) of the Software and all associated intellectual property and copyright within the Software. The Client group should ensure that licence fees are maintained in order to ensure access to the data input into the software. Nutritics cannot guarantee retrospective access to data input into the system outside of the retention period for retention of personal data once a subscription has elapsed.The Client group should ensure that licence fees are maintained in order to ensure access to the data
LIMITATION ON DAMAGES
(a) Nutritics shall not be liable, whether in contract, tort, including negligence, or otherwise to the Client Group for any claims, liabilities, losses, damages, costs or expenses (“Claims”) relating to or arising out of or in connection with these Terms and Conditions or the Software for an aggregate amount in excess of the fees invoiced and received by Nutritics (net of VAT and expenses) for the Software which are the subject of Claims, except to the extent finally judicially determined to have resulted primarily from the fraud of Nutritics.
(b) In no event shall Nutritics be liable, whether in contract, tort, including negligence, or otherwise for any losses resulting from third party claims, claims for loss of use, contracts, data, goodwill, revenues or profits, (whether or not deemed to constitute direct losses) or wasted management or staff time or any consequential, special, indirect, incidental, punitive, or exemplary loss, damage, or expense relating to or arising out of or in connection with these Terms and Conditions or the Software (including the performance, non-performance or delayed performance by Nutritics of any obligations under or in connection with the Software) which may have been or may be suffered by any person howsoever caused and whether or not this could have been reasonably foreseen by Nutritics.
(c) Nor shall Nutritics be liable, whether in contract, tort, including negligence, or otherwise, for any Claims arising out of the use of the Software for a purpose other than the purpose for which they were provided by Nutritics;
(d) The Client agrees that any liability which Nutritics may have to the Client Group under or in connection with these Terms and Conditions for any losses suffered by the Client Group shall (so far as permitted by law) be limited to such an amount as is finally determined to be just and equitable, having regard to the extent of responsibility of Nutritics, the Client Group (including the Client Group’s directors, officers, employees or agents), and any person other than Nutritics who is jointly or severally liable to the Client for all or part of the said losses suffered by the Client Group. Any limitation or exclusion or restriction on the liability of any such other person under any jurisdiction, whether arising under statute or contract or tort or resulting from death, bankruptcy or insolvency, or any settlement of such liability agreed with the Client Group, shall be ignored for the purposes of determining whether that other person is liable to the Client and the extent of responsibility of that other person to the Client in assessing any liability of Nutritics.
(e) In circumstances where all or any portion of the provisions of this Clause are finally judicially determined to be unavailable, the aggregate liability of Nutritics and their respective personnel for any Claims shall not exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claims.
(f) Nutritics accepts no responsibility for any database errors, omissions or inaccuracies and accept no responsibility if the Client relies on such information. It is the responsibility of the Client to verify the accuracy of all information provided by the software.
(g) Nothing in these Terms and Conditions shall exclude, restrict (or prevent a claim being brought in respect of) any liability of a party for (i) death or personal injury caused by the negligence of that party; (ii) any fraudulent pre-contractual misrepresentations on which either party can be shown to have relied; or (iii) any other liability which by the governing law of these Terms and Conditions cannot be excluded or limited.
Neither party shall be liable for any delays or non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate by the other party (including, without limitation, entities or individuals under its control, or any of their respective officers, directors, employees, other personnel and agents), fire or other casualty, act of God, epidemic, strike or labour dispute, war or other violence, or any law, order, or requirement of any governmental agency or authority.
LIMITATION ON ACTIONS
No action, regardless of form, relating to these Terms and Conditions or the Software, may be brought by either party more than two years after the cause of action has accrued under the applicable law.
(a) To the extent that, in connection with these Terms and Conditions, Nutritics comes into possession of any information, trade secrets or other proprietary information relating to the Client Group which is either designated by the disclosing party as confidential or is by its nature clearly confidential (the “Confidential Information”), Nutritics shall not disclose such Confidential Information to any third party without the Client’s consent. The Client hereby consents to Nutritics disclosing such Confidential Information (i) to legal advisors, auditors, insurers or as may be required by law, regulation, judicial or administrative process, or in accordance with applicable professional standards, or in connection with potential litigation; or (ii) to any person to the extent such Confidential Information (A) shall have otherwise become publicly available (including, without limitation, any information filed with any governmental agency and available to the public) other than as the result of a disclosure by Nutritics in breach hereof, (B) becomes available to Nutritics on a non-confidential basis from a source other than the Client which Nutritics believes is not prohibited from disclosing such information by a confidentiality obligation to the Client Group, (C) is known by Nutritics prior to its receipt from the Client Group without any obligation of confidentiality with respect thereto, or (D) is developed by Nutritics independently of any disclosures made by the Client Group to Nutritics of such information.
(b) The Client shall keep confidential any methodologies and technology used by Nutritics in connection with the Software.
Neither party may assign or otherwise transfer these Terms and Conditions without the prior express written consent of the other. Neither party will directly or indirectly agree to assign or transfer to a third party any claim against the other party arising out of these Terms and Conditions.
(a) The Client agrees, to the fullest extent permitted by law, to indemnify and hold harmless Nutritics against all claims incurred in connection with any third party claim, except to the extent finally and judicially determined to have resulted directly from the fraud of Nutritics. In circumstances where all or any portion of the provisions of this paragraph are finally judicially determined to be unavailable, the aggregate liability of Nutritics for Claims shall not exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such Claims.
Nutritics is permitted to use the Client’s service marks, logos, and/or branding in external publicity material without such other party’s prior written consent as and when reasonably required unless specifically requested by the client to refrain from using marks logos, and/or branding in external publicity material or to adhere to the clients policy for such marketing.
USE OF CLIENT NAME
Notwithstanding anything herein to the contrary, Nutritics may use the name of the Client and their use of the Software in marketing and publicity materials, as an indication of its experience, and in internal data systems.
In providing the Software to the Client, Nutritics may process personal data within the meaning of the General Data Protection Regulation ((EU) 2016/679). Nutritics complies with the Data Protection Regulation. At any time the Client can request:
- subject access
- to have inaccuracies corrected to have information erased
- to object to direct marketing
- to restrict the processing of their information, including automated decision-making
- data portability
CLIENT AGREEMENT IN LINE WITH ARTICLE 28(3) OF THE GENERAL DATA PROTECTION REGULATION ((EU) 2016/679) FOR CONTRACTS BETWEEN CONTROLLERS AND PROCESSORS.
By using the Software, it may be required that Nutritics ("the Provider"), process personal Data on behalf of Nutritics users ("the Client").
The details described under this section outline the requirements and conditions on which the Provider will process Personal Data when providing services under the terms & conditions of the service. This Agreement will from a contract between the Provider and you, the user. This Agreement sets out the manner in which the Provider will process personal data and outlines the Client's rights as the data controller. This Agreement contains the mandatory clauses required by Article 28(3) of the General Data Protection Regulation ((EU) 2016/679) for contracts between controllers and processors.
- The Provider will only process personal data on documented instruction from the client.
- Any person authorised to process data on behalf of our clients are fully trained in the requirements under Regulation ((EU) 2016/679) and are bound by confidentiality agreements to ensure the security and privacy of client data.
- The Provider has implemented appropriate technical and organisational measures to ensure that Client’s personal data is processed and stored securely.
- The Provider will, where possible, further assist the Client in ensuring compliance with obligations under data protection law, taking into account the nature of processing and the information available to the processor.
- The Provider will maintain the confidentiality of all personal data and will not disclose personal data to third parties or sub-contractors unless specifically requested to do so.
- The Provider will, at the choice of the Client, delete or return all personal data to the controller after the end of provision of services relating to processing and will delete any data following this decision unless requested to retain it on behalf of the client.
- The Provider will notify the Client immediately if it receives any notice, communication or complaint that relates directly or indirectly to the processing of personal data by the client. We will give the client any required support to deal with such notice.
Personal data on record will be retained for 6 years unless requested to be destroyed by the Client. Data will be permanently destroyed after 6 years unless the Provider is requested to retain it for a longer period.
The Client warrants and represents that the Provider's expected use of the Personal Data for the Business Purposes and as specifically instructed by the Client will comply with the Data Protection Legislation.
Any notices to be served on either of the parties by the other shall be sent by prepaid recorded delivery or registered post or by facsimile or by electronic mail and shall be deemed to have been received by the addressee within 3 business days of posting or 1 business day of transmission if sent by facsimile or by electronic mail to the correct facsimile number (with correct answerback) or correct electronic mail address.
If Nutritics personnel are present on the Client's premises, the Client will provide without charge suitable office accommodation with use of telephone, fax, telecommunication facilities and secretarial services.
Clients shall reimburse all out-of-pocket expenses that may be incurred in connection with providing the Software, including travel and subsistence and the cost of providing the services of specialist support staff unless otherwise agreed in writing. Expenses, including travel and subsistence, and goods and services purchased on the Client's behalf, are charged at cost. For travel, Nutritics’ standard policies apply which are to use first class rail and economy class air travel within Ireland and business class or equivalent for overseas travel.
GOVERNING LAW AND SUBMISSION TO JURISDICTION
These Terms and Conditions, including exhibits and all matters relating to it, shall be governed by, and construed in accordance with, the laws of Ireland (without giving effect to choice of law principles). Any action or proceeding arising out of or relating to these Terms and Conditions or the Software shall be brought and maintained exclusively in the Courts of Ireland. The parties hereby expressly and irrevocably (i) submit to the exclusive jurisdiction of such courts for the purposes of any such action or proceeding and (ii) waive, to the fullest extent permitted by law, any defence of inconvenient forum to the venue and maintenance of such action in any such courts.
(a) Except as instructed otherwise in writing, each party may assume that the other approves of properly addressed facsimile, email (including email exchanged via Internet media) and voicemail communication of both sensitive and non-sensitive documents and other communications concerning these Terms and Conditions, as well as other means of communication used or accepted by the other.
(b) It is recognised that the internet is inherently insecure and that data can become corrupted, communications are not always delivered promptly (or at all), and that other methods of communication may be appropriate. Electronic communications are also prone to contamination by viruses. Each party will be responsible for protecting its own systems and interests and, to the fullest extent permitted by law, will not be responsible to the other on any basis (contract, tort or otherwise) for any loss, damage or omission in any way arising from the use of the Internet or from access by Nutritics personnel to networks, applications, electronic data or other systems of the Client Group.
ENTIRE AGREEMENT, MODIFICATION AND EFFECTIVENESS
(a) These Terms and Conditions supersede any previous agreement, understanding or communication, written or oral, relating to its subject matter.
(b) No variation to these Terms and Conditions shall be effective unless it is documented in writing and signed by authorised representatives of both parties.
LIMITATION ON WARRANTIES
Nutritics warrants that the Software will be provided with reasonable skill and in good faith. The express representations, warranties and obligations of Nutritics in these Terms and Conditions are made expressly in place of and to the exclusion (to the fullest extent permitted by law) of all other representations, terms and conditions, express or implied, statutory or otherwise, relating to anything supplied or to be supplied and services provided or to be provided by or on behalf of Nutritics under or in connection with these Terms and Conditions, including without limitation any implied terms as to performance, fitness for a particular purpose, satisfactory quality or otherwise relating to the Software or any part.
Nothing in these Terms and Conditions will prevent or restrict Nutritics, from providing the Software to other clients, subject to the obligations of confidentiality set out above even if those other clients’ interests are in competition with the Client Group.
(a) The Client will not offer employment to any Nutritics staff member or induce or solicit any such person to take up employment with the Client Group; nor will the Client Group use the services of any such person, either independently or via a third party, for a period of six months following the end of any involvement by that person with any engagement for the Client. Breach of this condition will render the Client liable to pay Nutritics liquidated damages, the rate of which will be determined by the Nutritics Board and at a minimum be equal to the three times the existing salary of the individual concerned.
By installing Nutritics, you are agreeing to the terms and conditions listed above.
Last Revised: January 2020