FoodChain ID Group, Inc., its subsidiaries and affiliates including BCGlobal and Decernis LLC (collectively “FoodChain ID”) a Delaware Corporation, located at 1250 Connecticut Avenue NW #700, Washington, DC 20036 USA provides an Internet‐accessible electronic database containing curated and standardized information about publicly documented food fraud incidents and other sources of information about potential food fraud risk (“Food Fraud Database” or “FFD”). Food Fraud Database is maintained and hosted by FoodChain ID.
These Terms of Use (“TERMS OF USE“) govern the use of FFD and any other FoodChain ID products identified in a statement of work or order form (as applicable) by the party or end user (“Licensee“) who accesses FFD. Licensee confirms its agreement to the TERMS OF USE, as amended from time to time, when Licensee submits its subscriber identification information to access FFD or by signing a quote template or order form or clicking “accept” on FoodChain ID’s e-commerce platform, including/referencing the TERMS OF USE.
1. Definitions.
a. “AFFILIATE” means any entity directly or indirectly controlled by, controlling or under common control with, a party to this Agreement, but only for so long as such control shall continue. For purposes of this definition, “control” (including, with correlative meanings, “controlled by,” “controlling” and “under common control with”) means: (a) possession, direct or indirect, of the power to direct or cause direction of the management or policies of an entity (whether through ownership of securities or other ownership interests, by contract or otherwise); or (b) beneficial ownership of fifty percent (50%) or more of the voting securities or other ownership interest (whether directly or pursuant to any option, warrant or other similar arrangement) or other comparable equity interests of an entity.
b. “FOODCHAIN ID GROUP, INC.” means its affiliates and subsidiaries including Decernis LLC, Nutraveris, Viaware, Hamilton Grant, Verdant, BCGlobal, Cosmocert, S.A., Lexagri International and any subsequently acquired entities under the control of FOODCHAIN ID Group, Inc., collectively known as FOODCHAIN ID.
2. License.
(a) Upon agreeing to the TERMS OF USE, Licensee is granted a non‐exclusive, non‐transferable, non‐sublicensable, revocable right and license to access FFD in compliance with the TERMS OF USE.
(b) Licensee’s use of FFD shall be solely for Licensee’s own internal business purposes, reference and informational purposes and in compliance with the licensed number of users, TERMS OF USE and all applicable laws. The right to access FFD does not permit Licensee (and Licensee may not knowingly allow any third party) to: (i) create derivative works of, copy, alter or in any way modify FFD or any content contained in it; (ii) decompile, disassemble, reverse compile, reverse engineer, or decode FFD; (iii) publish, display, sell, distribute, or sub‐license FFD and/or FoodChain ID content in any form of media (iv) disable, bypass or delete any copy protection or access control method implemented to prevent or deter unauthorized copying or use of FFD; or (v) use FFD in any fashion that infringes any copyright, intellectual property right, or other proprietary right or interest held by FOODCHAIN ID or its affiliates. FOODCHAIN ID reserves all rights in FFD not expressly granted herein. Downloads of data from FFD for Licensee’s reference, reports, or presentation purposes is permitted. Reports or presentations that make use of such data shall reference the source as FoodChain ID. Downloading data for the purposes of copying and/or distribution of any FFD and/or FoodChain ID content is expressly prohibited.
(c) Licensee shall not allow any other person or entity to use Licensee’s personal user identification and/or log‐in information to access FFD. Licensee shall be responsible for the use of its user identification and/or log‐in information to FFD and for compliance with the TERMS OF USE by any person or entity, whether or not authorized by Licensee.
3. Licensee Privacy. The most current version of FOODCHAIN ID’s Privacy Policy can be found through a link on the home page of FoodChain ID. FOODCHAIN ID’s Privacy Policy explains how FOODCHAIN ID may use certain personal data that Licensee provides to FOODCHAIN ID when Licensee logs‐in to and uses FFD and how FOODCHAIN ID will protect Licensee’s privacy. By using FFD, Licensee agrees FOODCHAIN ID can use such data in accordance with its Privacy Policy, as amended from time to time.
4. Ownership. Licensee’s Assignment of Intellectual Property Rights. FOODCHAIN ID owns or has the right to use all intellectual property and content contained in or associated with FFD. Licensee hereby grants to FOODCHAIN ID all intellectual property rights and other proprietary rights in any work Licensee may create in violation of the TERMS OF USE.
5. Term; Termination.
(a) Term. Initial Term and/or Renewal Term to be identified in the quote template, order form, e-commerce order form (as applicable). The license to FFD will automatically renew for additional periods of one (1) year upon payment by Licensee of the then-applicable License Fee within thirty (30) days following receipt of FoodChain ID’s invoice, unless terminated in accordance with Section (b), below.
(b) Termination Events.
(i) Non-renewal; (ii) Licensee’s material breach of the TERMS OF USE; (iii) if FoodChain ID discontinues distribution of updated versions of FFD, then FoodChain ID may terminate the license upon notice to Licensee and shall refund to Licensee (as applicable) on a pro rata basis, license fee’s paid for balance of the then-current term.
6. Confidentiality.
(a) Confidential Information. Pursuant to the TERMS OF USE, a party (a “disclosing party”) may disclose to the other party (a “receiving party”) Confidential Information. “Confidential Information” shall mean any and all technical and non-technical information provided by either party to the other, in oral, written, graphic or electronic form, that is either indicated to be the proprietary or confidential information of the disclosing party, or which, by its nature, the receiving party would reasonably deem to be confidential or proprietary, including but not limited to ideas, techniques, works of authorship, databases, inventions, know-how, processes, algorithms, software programs, and software source documents related to the current, future and proposed products and services of a disclosing party, and including, without limitation, a disclosing party’s information concerning research, development, design details and specifications, engineering, financial information, purchasing, manufacturing, customer lists, investors, business and contractual relationships, business forecasts, sales, merchandising, marketing plans and information the disclosing party provides regarding third parties. Without limiting the foregoing, FFD and any data derived therefrom shall be deemed the Confidential Information of FoodChain ID.
(b) Confidentiality and Non-Use Obligations. All Confidential Information shall remain the sole property of the disclosing party, and the receiving party shall have no interest in or rights with respect thereto except as expressly set forth in the TERMS OF USE. Each receiving party agrees: (i) not to use any Confidential Information of the disclosing party for any purpose except in the performance of its obligations under the TERMS OF USE or as otherwise expressly permitted hereunder; (ii) to disclose such Confidential Information only to employees or third party contractors who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than that set forth herein; (iii) to protect such Confidential Information from unauthorized use, access or disclosure in the same manner that it protects its own similar Confidential Information, but in no event with less care than a reasonably prudent business would exercise; and (iv) to promptly notify the disclosing party of any actual or potential unauthorized access to or use of Confidential Information. The foregoing restrictions on disclosure shall not apply with respect to any information which: (A) was or becomes generally known or publicly available through no act or failure to act on the part of the receiving party; (B) is known by the receiving party without restrictions on disclosure at the time of receiving such information as evidenced by its records; (C) is rightfully furnished to the receiving party without restrictions on disclosure by a third party without a breach of such third party’s obligations of confidentiality, or (D) independently developed by receiving party without use of disclosing party’s Confidential Information as shown by receiving party’s written records; provided, that the exceptions set forth in clauses (B), (C) and (D) shall not apply to any information included in the FFD. Specific Confidential Information shall not be within the exceptions of the preceding sentence merely because it is embraced by more general information within those exceptions, nor shall a combination of features be within those exceptions merely because the individual features are within those exceptions.
(c) Required Disclosures. If any Confidential Information of a disclosing party is required by law to be disclosed by the receiving party, the receiving party may make such disclosure provided that the receiving party: (i) gives the disclosing party prompt written notice of such requirement prior to such disclosure; (ii) provides assistance in obtaining an order protecting Confidential Information from disclosure; and (iii) discloses information only to the extent required by law. Any such required disclosure shall not alter the nature of the information as Confidential Information hereunder as between the parties.
7. Warranty Disclaimer.
(a)LICENSEE ACKNOWLEDGES THAT FOODCHAIN ID CANNOT AND DOES NOT WARRANT THAT FFD OR THE DATA CONTAINED IN OR ACCESSIBLE THROUGH IT WILL BE ONE HUNDRED PERCENT (100%) ACCURATE AND FREE OF OMISSIONS OR THAT IT WILL MEET LICENSEE’S REQUIREMENTS.
(b) FOODCHAIN ID SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ERRORS OR OMISSIONS IN FFD OR FROM LICENSEE’S USE OF IT. FOODCHAIN ID WILL USE REASONABLE EFFORTS TO KEEP FFD CURRENT AND TO MAKE IT AS ACCURATE AND COMPLETE AS POSSIBLE; HOWEVER, THE INFORMATION AND DATA IN IT MAY NOT BE COMPLETELY UP‐TO‐DATE OR ERROR FREE. IF LICENSEE BECOMES AWARE OF ANY ERRORS OR OMISSIONS IN FFD, IT WILL NOTIFY FOODCHAIN ID OF THE ERRORS OR OMISSIONS, AND FOODCHAIN ID WILL UNDERTAKE TO CORRECT THE ERRORS OR OMISSIONS IN A TIMELY MANNER.
(c) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FFD AND ALL RELATED SERVICES (IF ANY) ARE PROVIDED AND LICENSED TO LICENSEE AS IS, AS AVAILABLE, AND WITH ALL FAULTS. FOODCHAIN ID DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO FFD, EXPRESSED OR IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, RELIABILITY OR AVAILABILITY, ACCURACY, COMPLETENESS, LACK OF NEGLIGENCE, NON‐INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.
(d) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, FOODCHAIN ID WILL NOT BE LIABLE TO LICENSEE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, COST OF COVER, LOST OPPORTUNITIES, LOST SAVINGS, OR LOST DATA, CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION, LOSS OF PRIVACY AND FAILURE TO MEET ANY DUTY INCLUDING GOOD FAITH AND REASONABLE CARE) ARISING OUT OF LICENSEE’S USE OR INABILITY TO USE FFD, OR LICENSEE’S USE OF INFORMATION PROVIDED BY FFD, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE), EVEN IF LICENSEE ID HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL FOODCHAIN ID’S AGGREGATE LIABILITY TO LICENSEE FOR USE OF FFD EXCEED THE AMOUNT PAID BY LICENSEE TO FOODCHAIN ID WITHIN THE SIX (6) MONTH PERIOD PRIOR TO THE LAST EVENT GIVING RISE TO LICENSEE’S CLAIM. LICENSEE ACKNOWLEDGES THAT THIS PROVISION REFLECTS AN ADEQUATE AND ACCEPTABLE ALLOCATION OF RISK AND THAT THE REMEDIES SET FORTH ABOVE SHALL APPLY NOTWITHSTANDING THE FACT THAT THEY MAY RESULT IN LICENSEE’S USE OF FFD FAILING ITS ESSENTIAL PURPOSES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE REMEDIES DESCRIBED ABOVE CONSTITUTE LICENSEE’S ONLY REMEDIES FOR ANY BREACH BY FOODCHAIN ID OF ITS OBLIGATIONS UNDER THE TERMS OF USE.
8. Licensee Indemnification. Licensee shall defend, indemnify, and hold harmless FOODCHAIN ID from all allegations, liabilities, claims, and expenses, including reasonable attorneys’ fees that arise from or relate to Licensee’s use or misuse of, or access to FFD and Licensee’s breach of the TERMS OF USE.
9. Licensee Trade Names, Trademarks, and Service Marks. Licensee grants to FOODCHAIN ID a limited license to use the trade names, trademarks, and service marks of Licensee (collectively the “Marks”) in promotional and presentation materials to indicate that Licensee is a client of FOODCHAIN ID; provided that FOODCHAIN ID: (i) agrees to display symbols and notices clearly and sufficiently indicating the registration, if applicable, of Licensee’s Marks in accordance with applicable trademark law and practice, and (ii) complies with all written guidelines provided to it by Licensee related to use of the Licensee’s Marks. The license granted hereunder is limited, nonexclusive, and royalty-free.
10. Governing Law; Miscellaneous and Dispute Resolution.
(a) The TERMS OF USE shall be construed under and governed by the laws of the State of Delaware without regard to its conflict of law’s provisions.
(b) The exclusive venue for any disputes arising under or related to the TERMS OF USE or Licensee’s use of FFD shall be in the United States District Court, located in the State of Delaware. Licensee and FOODCHAIN ID consent to the personal and exclusive jurisdiction of such courts for such disputes.
(c) If any provision of the TERMS OF USE is held to be invalid or not legal, such decision shall not affect any other provision of it, and the remainder of the TERMS OF USE shall continue to be valid and legal.
(d) Licensee’s annual subscription fees are due and payable within thirty (30) days following receipt of invoice from FoodChain ID. FoodChain ID, in addition to any other remedies available, may suspend all further services for Licensee until all past due amounts, late payment charges, and collection costs are paid.
(e) Neither these TERMS OF USE nor any rights, obligations or licenses granted hereunder may be assigned, delegated or subcontracted by either party without the prior written consent of the other party, provided however that either party may assign all of its rights and obligations under the TERMS OF USE without the prior written consent of the other party to a person or entity which acquires all or substantially all of the assets, voting securities or business of such party, whether by sale, merger or otherwise. The TERMS OF USE shall inure to the benefit of the parties and their permitted successors and assigns. In the case of a successor to or assignee of Licensee, the license granted herein extends only to the business or operating units of the Licensee existing immediately prior to such or assignment, acquisition or merger; this Agreement confers no rights on the acquiring entity of Licensee or its business or operating units. Licensee shall provide notice of any such assignment (including by operation of law) to FoodChain ID following such assignment.
(f) Communications with FOODCHAIN ID regarding the TERMS OF USE and FFD shall be sent to terms-of-use@foodchainid.com.