1. INTRODUCTION
1.1 These terms of use (“Terms of Use”) govern the use of the portal provided by Ocado for use by You, which contains dashboards that have specific data, giving You insights into customer shopping behaviour (“Crunch”). Crunch is operated by Ocado Retail Limited (“Ocado”, "we", "us" or "our"). By using the Services, You are bound by these Terms of Use. If You use the Services after amendments have been made to the Terms of Use You will be bound by those changes.
2. DEFINITIONS
“Applicable Laws” means all applicable laws, statutes, regulations and codes from time to time in force.
“Business Day” means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
“Business Hours” means the period from 9.00am to 5.00pm on any Business Day.
“Data Protection Legislation” means the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party).
“Deliverables” means all documents, products and materials developed by Ocado or its agents, subcontractors, consultants and employees in relation to the Services in any form, including computer programs, data, reports and specifications (including drafts).
“Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
“Services” means access to Crunch providing category insights based on Ocado’s EPOS data and data via Crunch.
“UK Data Protection Legislation” means all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation (GDPR) ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
3. YOUR RESPONSIBILITES
3.1 You shall co-operate with Ocado in all matters relating to the Services and shall use all reasonable endeavours to ensure that any information it provides to Ocado is complete and accurate and acknowledges that Ocado will rely on the accuracy and completeness of such information in performing its obligations.
3.2 If Ocado’s performance of any of its obligations is prevented or delayed by any act or omission by You or failure by the You to perform any relevant obligation (“Default”) then, without prejudice to any other right or remedy it may have: (a) Ocado may suspend performance of the Services until You remedy the Default, and to rely on the Default to relieve it from the performance of any of its obligations to the extent the Default prevents or delays Ocado's performance of any of its obligations; (b) Ocado shall not be liable for any reasonable costs or losses sustained or incurred by the You arising directly or indirectly from Ocado’s failure or delay to perform any of its obligations as set out in this clause 3.
4. INTELLECTUAL PROPERTY RIGHTS
4.1 In relation to the Deliverables Ocado shall retain ownership of all Intellectual Property Rights in the Deliverables; (a) Ocado grants You a worldwide, non exclusive, royalty-free licence during Your use of the Services to use the Deliverables for the purpose of receiving and using the Services; and (b) You shall not sub-license, assign or otherwise transfer the rights granted in clause 4.1(a) to any third party without the express consent of Ocado.
5. COMPLIANCE WITH APPLICABLE LAWS
5.1 You shall (a) comply with all applicable laws, statutes, regulations elating to anti-bribery and anti corruption including but not limited to the Bribery Act 2010 (“Relevant Requirements”); (b) have and shall maintain in place throughout use of the Services its own policies and procedures, including but not limited to adequate procedures under the Bribery Act 2010, to ensure compliance with the Relevant Requirements and will enforce them where appropriate; and (c) promptly report to Ocado any request or demand for any undue financial or other advantage of any kind received by You in connection with the Terms of Use.
5.2 Breach of this clause 5 shall be deemed a material breach for the purposes of the Terms of Use.
5.3 You shall indemnify and hold harmless Ocado on demand against any losses, liabilities, damages, costs (including but not limited to legal fees) and expenses incurred by, or awarded against, Ocado as a result of any breach of this clause 5 by You.
5.4 You shall promptly notify Ocado if, at any time during Your use of the Services, its circumstances, knowledge or awareness changes.
6. DATA PROTECTION
6.1 Both parties agree to comply with all applicable requirements of the Data Protection Legislation and in particular, the obligations and rights required to be incorporated into the Terms of Use between a data controller and a data processor under Article 28 of the General Data Protection Regulation ((EU)2016/679) (“GDPR”), as if they were set out herein in full in relation to the personal data being processed under the Terms of Use. The terms “data controller”, “data processor”, “process”, “processing” and “personal data” shall have the meanings given to them in the applicable Data Protection Legislation.
7. CONFIDENTIALITY
7.1 All data, documents, discussions or other information received by either Party are to be considered confidential unless advised otherwise in writing by the providing Party (“Confidential Information”). Data provided by Ocado via Crunch in accordance with the Services is for Your own internal use and not to be disclosed to third parties.
7.2 No party will disclose, and each party will take all proper steps to keep confidential, all Confidential Information of the other party which is disclosed to or obtained by it under or as a result of the Terms of Use and will not divulge it to any third party or employee except for the purposes of carrying out such party's statutory obligations or in exercising their rights under or obtaining the full benefit of the Terms of Use. A party in receipt of the other’s Confidential Information must ensure that their officers and employees and relevant third parties are aware of the confidential nature of the Confidential Information and comply with the provisions of this clause 9 as if named as a party to the Terms of Use.
7.3 If a party loses any material or item containing Confidential Information of the other party, it must promptly notify the other Party of the loss and all the circumstances surrounding it and will comply at its own cost will all reasonable requests of the other party to recover such Confidential Information or mitigate the consequences of its loss and/or disclosure.
7.4 You shall indemnify and hold harmless Ocado on demand against any losses, liabilities, damages, costs (including but not limited to legal fees) and expenses incurred by, or awarded against, Ocado as a result of any breach of this clause 7.
8. LIMITATION OF LIABILITY
8.1 Under no circumstances shall Ocado be liable (whether in contract, tort, or howsoever otherwise arising) for any: (a) special, incidental or consequential loss or damages costs; (b) loss of profits, loss of anticipated profits, loss of savings, loss of business, loss of data, loss of opportunity, loss of publicity, loss of reputation, loss of opportunity to enhance reputation or any other kind of economic loss (in each case whether direct or indirect); or (c) increased expense of operation cost or capital due to decisions made by You as a result of the Terms of Use or based on results provided by the Services.
8.2 Save as set out in the Terms of Use, the Services are provided on an "as is" basis and Ocado disclaims any representation, warranty or condition that the Services will be error-free or uninterrupted; or that any data or the use of such will be accurate or reliable. Ocado is not responsible for (i) any failure or defect in the Services caused by acts within the control of You or its other service providers; (ii) the inability of You being able to access or interact with any other service provider through the internet or other networks.
8.3 The limitations and exclusions of liability in this clause 8 shall not apply to any liability of You or Ocado for death or injury caused by Ocado negligence or for fraud.
9. TERMINATION
9.1 Ocado reserves the right to suspend or terminate access to the Services or the performance of any other obligations under the Terms of Use if (i) there is a breach, alleged breach or anticipated breach of clause 7 (confidentiality); or (ii) there is a breach, alleged breach or anticipated breach of the warranties in clause 3 (your responsibilities); or (iii) there is a breach, alleged breach or anticipated breach of any Applicable Laws.
9.2 Ocado may terminate Your access to the Services without liability to You immediately on giving notice in writing if in Ocado’s reasonable opinion You (i) commit a material breach of the Terms of Use; or (ii) You suspend, or threaten to suspend, payment of debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or (iii) You commence negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies, or the solvent reconstruction; or (iv) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or on connection with the winding up of You other than for the sole purpose of a scheme for a solvent amalgamation with one or more other companies, or the solvent reconstruction; or (v) an application is made to court, or an order is made, for the appointment of an administrator, a notice of intention to appoint an administrator is given, or an administrator is appointed; or (vi) a floating charge holder over the assets of You has become entitled to appoint, or has appointed, an administrative receiver; or (vii) a person becomes entitled to appoint a receiver over Your assets, or a receiver is appointed over the assets party; or (viii) a creditor or encumbrancer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within fourteen (14) days; or (ix) any event occurs, or proceeding is taken, with respect to You in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in this clause 11.2; or (x) You suspend or cease, or threaten to suspend or cease, to carry on all or a substantial part of its business; or (xi) there is a change of control of You (as defined in section 574 of the Capital Allowances Act 2001).
9.3 Upon termination or suspension (i) the following clauses shall continue in force: clause 4 (Intellectual property rights), clause 7 (Confidentiality), clause 8 (Limitation of liability), clause 10 (General); and (ii) Termination or expiry of the Terms of Use shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Terms of Use which existed at or before the date of termination or expiry. This clause 9.3 is without prejudice to any right toClaim for interest under the law, or any such right which Ocado has under these Terms of Use and in law.
10. GENERAL
10.1 If Ocado is delayed or prevented in the performance of any of its obligations under the Contract by an event, circumstance or cause beyond its reasonable control which, by its nature, could not have been foreseen or, if foreseeable, was unavoidable, that party shall not be liable for such delay or non-performance.
10.2 Nothing in these Terms of Use is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party. Each party confirms it is acting on its own behalf and not for the benefit of any other person.
10.3 If any provision or part-provision of the Terms of Use is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of the Terms of Use. If any provision or part-provision of the Terms of Use is deemed deleted under clause 17.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
10.4 A waiver of any right or remedy under the Terms of Use or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A failure or delay by a party to exercise any right or remedy provided under the Terms of Use or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Terms of Use or by law shall prevent or restrict the further exercise of that or any other right or remedy. A party that waives a right or remedy provided under the Terms of Use or by law in relation to one party, or takes or fails to take any action against that party, does not affect its rights in relation to any other party.
10.5 The Terms of Use is personal to You and You shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Terms of Use.
10.6 Ocado may at any time assign, transfer, charge, subcontract, or deal in any other manner with all or any of its rights under the Terms of Use and may subcontract or delegate in any manner any or all of its obligations under the Terms of Use to any third party or agent.
10.7 You agree to perform (or procure the performance of) all further acts and things, and execute and deliver (or procure the execution and delivery of) such further documents, as may be required by law or as may be reasonably or necessary or desirable to give effect to this Contract.
10.8 Unless it expressly states otherwise, the Terms of Use does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Terms of Use.
10.9 Any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Terms of Use or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
10.10 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Terms of Use or its subject matter or formation.