Nutrable Service Terms

The following terms and conditions (the "Service Terms"), together with the Order Form(s) to which these Service Terms are attached or incorporated, constitute the agreement (“Agreement”) between Nutrable Limited. with a registered address at 77 New Cavendish Street, London W1W 6XB, and the customer identified in the Order Form (“Customer”).  

1. PARTIES 

In these Service Terms, the words "Nutrable," "we," and "us" refer to Nutrable Limited as the case may be. The words "Customer" and "you" refer to the subscriber to the Platform Services as defined in the Order Form, whether an individual, corporation, or other entity. You may not use the Platform Services unless you accept these Service Terms and have the power and legal right to form a contract with us. Any individual subscribing to or using the Platform Services in the name of a company or other organization represents and warrants that he or she is authorized and intends by those actions to bind the company or other organization to these Service Terms. ‍

2. DEFINITIONS 

The following terms and any others defined in these Service Terms will be interpreted according to the definitions given.

  1. "Authorized User" means you (if you are an individual) or an individual employee or agent of yours who has been assigned unique credentials to access and use the Platform Services, whether or not that individual is accessing or using the Platform Services at any particular time.

  2. “Nutrable Platform” means Nutrable’s cloud platform that facilitates the Platform Services (as defined herein)

  3. "Order Form" means Nutrable's online or written order form, as agreed to by Customer and Nutrable, that specifies the pricing for the use of the Platform Service, and that references these Service Terms.

 

3. PLATFORM SERVICES

  1. Authorization. Subject to your compliance with the terms and conditions of these Service Terms, Nutrable will provide your Authorized Users with access to and use of the Platform Services which you have purchased and for which you pay.

  2. Maintenance and Support. If the Order Form provides for Customer to receive maintenance and/or technical support in connection with the Platform Services, then (unless otherwise set forth in the Order Form): (i) such maintenance will consist of access to new features or performance improvements in the Platform Services if and when Nutrable makes any such features or improvements generally available to its subscriber base at no additional charge, and (ii) such technical support will consist of first-level email assistance.

  3. Restrictions. You may not: (i) copy, reproduce, modify, decompile, disassemble, or reverse engineer the Platform Services or any associated software or materials; (ii) provide any third parties with direct access to Platform Services; (iii) provide any third parties other than Partners with access to any of the Platform Services, or use any of the Platform Services for time sharing or similar purposes for the benefit of any third party; (iv) remove any copyright or proprietary notices contained in the Platform Services or any output thereof; (v) breach, disable or tamper with, or develop or use (or attempt) any workaround for, any security measure or monitoring system provided or used by Nutrable in connection with the Platform Services; (vi) access the Platform Services via any bot, web crawler or non-human user; (vii) introduce into the Platform Services any software, virus, worm, "back door," Trojan Horse, or similar harmful code; (viii) access or use (or permit a third party to access or use) the Platform Services for any unlawful purpose or for purposes of monitoring the availability, performance or functionality of the Platform Services or for any other benchmarking or competitive purposes; or (ix) interfere or attempt to interfere in any manner with the proper workings of the Platform Services, or engage in any activities that adversely affect the functionality or performance of the Platform Services. All rights in the Platform Services not expressly granted herein are reserved.

 

4. CUSTOMER OBLIGATIONS

Responsibilities in Using Platform Services. You are responsible for: (i) maintaining the confidentiality of any user IDs, passwords and other credentials associated with your account, (ii) all activities that occur with respect to your account, (iii) your use of the Platform Services and compliance with these Service Terms, and (iv) any Customer-furnished data. Further, you acknowledge and agree that you shall remain liable for all actions and omissions of your Authorized Users and Partners hereunder or under any applicable separate agreement.

 

5. DATA AND OWNERSHIP

  1. "Customer Data" consists of information input into the Platform Services by Customer or Customer's Authorized Users, any data collected by Customer through the use of the Platform Services, including without limitation Personal Data as defined herein, or any Partner, Customer, Authorized User or Partner behavior on the Platform Services, as captured by the Platform Services. Customer shall not collect and shall not enable the collection of Customer Data from individuals in connection with the utilization of the Platform Services without the prior express consent of such individuals in compliance with applicable laws and regulations. With respect to Customer Data collected by Customer from individuals, Customer will collect, process and disclose, and direct Nutrable to process and disclose, such Customer Data only in accordance with all applicable laws and regulations, its privacy policy, and the requirements of these Service Terms.

  2. Personal Data. Any Customer Data consisting of personal information or personal data, as such terms are defined under applicable legislation and regulations, including the EU General Data Protection Regulation 2016/679, the California Consumer Privacy Act of 2018 or the California Privacy Rights Act of 2020 (“Personal Data”, “GDPR”, “CCPA” and "CPRA" respectively), and the processing thereof, shall be governed under the terms and conditions set forth herein.  Unless otherwise explicitly agreed in writing by the parties, it is agreed and acknowledged that with respect to any Personal Data, Customer shall be deemed the data controller and Nutrable shall be deemed the data processor or service provider (as such terms are defined under applicable legislation and regulations, including the GDPR, CCPA and CPRA).

  3. Prohibited Personal Data.  A current version of the Nutrable Privacy Policy is available at https://nutrable.com/company/terms-and-conditions#terms_of_use and is incorporated herein by reference. As between Customer and Nutrable, Customer shall be liable for any Customer Data beyond the Permitted Data Elements, and Nutrable shall have no obligations under these Service Terms with respect to any such Customer Data. Without limiting the obligations of Customer elsewhere in these Service Terms, unless otherwise expressly agreed in writing between Customer and Nutrable, Customer will not provide or make available to Nutrable: (i) “special categories of personal data” under the GDPR, CCPA and CPRA; (ii) any data concerning racial or ethnic origin, political opinions, religious or philosophical beliefs, trade-union membership; (iii) any financial account information other than Customer’s own payment information; (iv) any government identification numbers; (iv) any information that Customer knows or reasonably should know concerns any individual under the age of sixteen; or (v) any data that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which Customer or Nutrable operate, such as (by way of example only) the Health Insurance Portability and Accountability Act, the Children’s Online Privacy Protection Act, and the standards promulgated by the PCI Security Standards Council.

  4. Privacy. Customer will publish, and will advise in writing to its Partners that they must publish, a privacy policy that (i) discloses and obtains consent to the usage of third-party technology and the data collection and usage resulting from the use of the Platform Services (it being understood that this clause (i) will not be deemed to require those privacy policies to expressly identify Nutrable or the Platform Services, unless otherwise required by applicable law or regulation); (ii) contains a conspicuous live hyperlink to an opt-out website that provides individuals the ability to, or contains instructions as to how to, opt out of interest-based advertising; and (iii) complies with all applicable laws and regulations.

  5. Treatment of Customer Data. Customer is ultimately responsible for making and keeping current copies of all Customer Data and related information. Nutrable will retain Customer Data subject to any time or storage limitations set forth in Nutrable documentation for the Platform Services, and may delete or decline to store Customer Data older than the prescribed age for deletion, or in excess of the disclosed storage limitation. Nutrable shall not disclose the Customer Data to any third party except (a) as directed by Customer (including by Customer's selection of an optional third party data integration), (b) if such disclosure is made by Nutrable in response to a court order, subpoena or other legal process, and provided that Nutrable has given Customer reasonable notice of such court order, subpoena or other legal process, (c) if such disclosure is made to Nutrable's service providers in connection with the operation of the Platform Services, or (d) if such disclosure is in aggregate non-personally identifiable form. Nutrable shall use industry standard technology and practices to secure Customer Data. 

  6. Ownership. Nutrable agrees that Customer will own all Customer Data, and that Nutrable receives only the right to access the Customer Data solely in connection with the provision of the Platform Services to Customer. As between Nutrable and Customer, the Platform Services and all software, data and technologies embodied in or used to provide the Platform Services, including any data and information other than Customer Data, and all intellectual property rights in or relating to any of the foregoing, are owned by Nutrable. For clarification, unless otherwise expressly agreed to in writing by the parties, all suggestions, solutions, improvements, customizations, corrections, and other contributions provided by Customer regarding the Platform Services or Nutrable Materials provided hereunder shall be owned by Nutrable, and Customer hereby agrees to assign any such rights to Nutrable.

 

6. TERM AND TERMINATION

  1. Duration and Renewal. Customer’s right to use the Platform Services under these Service Terms shall continue for the term set forth in each Order Form ("Term"). 

  2. Termination. Unless otherwise set forth in an Order Form, and subject to any initial or minimum Term defined in an Order Form, each party shall have the right to terminate an Order Form upon thirty (30) days written notice. For clarity, the right to terminate an Order Form upon thirty (30) days written notice shall not apply until the expiration of any initial or minimum term defined in the subject Order Form. A party may terminate these Service Terms immediately for a material breach by the other party that remains uncured for more than seven (14) days from delivery of written notice of the subject breach. Your right to use the Platform Services will automatically terminate upon any termination of these Service Terms. In case of expiration or  termination of an Order Form by Customer, all outstanding fees, including the full monthly fee for the then current month, shall become immediately due and payable upon notice of termination (“Outstanding Fees”). For clarification, Nutrable invoices monthly in advance on a full calendar month basis; if your paid access to the Platform Services starts or ends in the middle of a given month, you shall be invoiced for that full calendar month in addition to any pro-rated amount. Either party may terminate this Agreement during the Term immediately if the other party undergoes a bankruptcy or otherwise becomes subject to any other insolvency proceeding. 

  3. Survival. The following provisions will survive expiration or termination (“Termination”) of these Service Terms: Sections 1, 2, 3.3, 3.4,4, 5, 6.3, 7 (to the extent of any outstanding payments), and 10 through 14, and such other provisions that by their nature are intended to survive Termination, shall survive Termination of this Agreement.

 

7. FEES AND PAYMENT

  1. Fees. In consideration for Nutrable providing the Platform Services and any agreed-upon professional services as defined in the Order Form (“Professional Services”), Customer shall pay to Nutrable the corresponding fees set forth in the Order Form.

  2. Invoices; Payment. Unless otherwise set forth in an Order Form, Nutrable shall invoice Customer in advance at the beginning of each calendar month for the fees due for the upcoming calendar month. Each invoice is due and payable thirty (30) days following the invoice date. Overdue payments will accrue interest at the lesser rate of one percent (1%) per month, or the highest rate of interest allowed by law. For clarification, in case of conflict between these Service Terms and the Order Form in regards to invoicing and payment terms, the Order Form shall prevail. All payments shall be made in GBP, unless otherwise specified in the Order Form. Customer is responsible for Nutrable’s costs and expenses (including attorney fees) to collect past due amounts.

  3. Taxes. The fees specified in these Service Terms are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, sales, services, and value-added) (collectively, "Taxes"). Customer shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than Nutrable's income taxes.

 

8. CONFIDENTIALITY

  1. Obligations. "Confidential Information" means (subject to the exclusions below) any non-public information relating to or disclosed in the course of the Platform Services that should be reasonably understood to be confidential, including without limitation Customer Data. The receiving party will use the same care to protect Confidential Information as it uses for its own similar information, but no less than reasonable care, will not disclose Confidential Information to any third party without prior written authorization of the disclosing party, and will use Confidential Information only for the purpose of fulfilling its obligations or exercising its rights expressly reserved or granted under these Service Terms. The receiving party will promptly return or destroy the other party's Confidential Information upon request.

  2. Exclusions. Confidential Information does not include information that: (i) is or becomes publicly available through no fault of the receiving party; (ii) was already in possession of the receiving party without confidentiality restrictions at the time of receipt from the disclosing party, as evidenced by written records; or (iii) was independently developed by the receiving party without violation of this Section 8. If a receiving party is required to disclose Confidential Information by law, the receiving party will promptly notify the disclosing party and reasonably cooperate with its efforts to limit or protect the required disclosure, but will otherwise not be in violation of this Section 8 on account of making the required disclosure.

 

9. DISCLAIMER

EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE SERVICE TERMS THE PLATFORM SERVICES, PROFESSIONAL SERVICES AND NUTRABLE MATERIALS ARE PROVIDED "AS IS" AND "AS AVAILABLE," WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. NUTRABLE DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

10. INDEMNIFICATION

  1. By Nutrable. Nutrable will indemnify, defend and hold harmless Customer and its shareholders, directors, officers, employees and agents, and its and their respective successors and assigns from and against any and all third party claims, demands, losses, costs, expenses, obligations, liabilities, damages, recoveries and deficiencies, including interest, penalties, reasonable attorneys’ fees and costs ("Claims") against Customer to the extent based upon an allegation that the Platform Services, as furnished by Nutrable hereunder and used by Customer within the scope of these Service Terms, infringe any copyright or any patent or trademark rights of any third party. THE FOREGOING STATES THE ENTIRE OBLIGATION OF NUTRABLE WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE PLATFORM SERVICES. Nutrable shall have no liability under this Section 10.1 to the extent that any Claims are based on (i) any combination of the Platform Services with products, services, methods, content or other elements not authorized in writing by Nutrable, (ii) modification or maintenance of the Platform Services by a party other than Nutrable; or (iii) any use of the Platform Services in a manner that violates these Service Terms, documentation,  instructions or materials (including Nutrable Materials) given to Customer by Nutrable.

  2. Mitigation Measures. In the event of any Claim or potential Claim covered by Section 10.1, Nutrable may, in its discretion, seek to mitigate the impact of such Claim by modifying the Platform Services to make them non-infringing, and/or by suspending or terminating Customer's use of the Platform Services upon reasonable notice to Customer (provided, in the case of such suspension or termination, that Nutrable will refund to Customer a portion of fees prepaid by Customer for the then-current subscription period, prorated to the portion of that subscription period that is affected by the suspension or termination).

  3. Indemnification by Customer. Customer will indemnify, defend and hold harmless Nutrable and its shareholders, directors, officers, employees and agents, and its and their respective successors and assigns against any Claims arising from or related to (i) a breach of any of Customer’s representations, warranties and covenants set forth in this Agreement; (ii) any Customer Data; or (iii) the use of the Platform Services by Customer, Authorized Users, or Partners in violation of these Service Terms or any applicable Nutrable documentation, instructions or materials (including Nutrable Materials). Customer-indemnified Claims include, without limitation, Claims resulting from your advertising practices, actions or omissions, or those of your affiliate network Partners, and any Claims brought by, or in connection with the actions or omissions of, Third Party Integration Providers.

  4. Procedures. Each party's indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle any Claim in a manner that would impair any of the indemnified party's rights or interests without prior written consent, which will not be unreasonably withheld); and (iii) the indemnified party will, at the indemnifier's expense, provide all cooperation, information and assistance reasonably requested by the indemnifier for the defense of such Claim. Any delay or failure of the indemnified party to provide notice here under shall only relieve the indemnifier of its obligations hereunder to the extent, if at all, that it is actually prejudiced by reason of such delay or failure. ‍

 

11. LIMITATION OF LIABILITY

  1. Waiver of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR OTHER DAMAGES, OR FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS OR INFORMATION, OR COSTS OF PROCURING SUBSTITUTE GOODS OR SERVICES, ARISING OUT OF THESE SERVICE TERMS OR THE USE OF OR INABILITY TO USE THE SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  2. Liability Cap. EXCEPT FOR AMOUNTS OWED UNDER SECTION 7, THE TOTAL LIABILITY OF EACH PARTY FOR DAMAGES ARISING FROM OR RELATED TO THESE SERVICE TERMS SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO NUTRABLE UNDER THESE SERVICE TERMS FOR THE SERVICE PERIOD TO WHICH SUCH DAMAGES PERTAIN.

  3. Exceptions. Nothing in this Section 11 shall limit or waive a party's: (i) liability for any breach of its confidentiality obligations under these Service Terms; (ii) liability for its infringement or misappropriation of any proprietary rights of the other party; (iii) indemnification obligations under Section 10; or (iv) liability for its gross negligence or willful misconduct.

 

13. PUBLICITY

  1. Identification of Customer. With the express permission of the Customer, Nutrable may identify Customer, by name and by logo, as a customer of the Platform Services on Nutrable's website and other marketing materials.

  2. Case Study. With the express permission of the Customer, Nutrable may develop a case study for public dissemination and marketing use by Nutrable describing the benefits Customer has derived from the Platform Services.

 

14. MISCELLANEOUS

  1. Assignment. Customer may not assign the Agreement without Nutrable’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, Customer may assign these Service Terms together with all Order Forms (and subject to any usage limitations therein) upon written notice to Nutrable: (i) to any entity controlling, controlled by, or under common control with, Customer, where "control" means direct or indirect ownership or control of more than 50% of the voting interest of the subject entity; or (ii) to any entity acquiring Customer, with which Customer is merging, or to which Customer sells all or substantially all of its assets. Nutrable shall have the right to increase amounts charged to Customer in the event of any assignment by Customer that either increases the cost of providing the Platform Services or by virtue of a change in taxes to be paid, reduces the amount received by Nutrable. Any attempt to assign the Agreement except as permitted under this Section, will be null and of no effect. Subject to the foregoing, these Service Terms will bind and inure to the benefit of each party's successors and permitted assigns.

  2. Force Majeure. Neither party shall be liable for any delay or failure in performance (other than non-payment of amounts owing) due to causes beyond its reasonable control.

  3. Compliance. The parties agree to comply with all applicable international, federal, state and local laws, rules and regulations, including, without limitation, privacy and data security laws, and export laws.

  4. Severability. If any part of these Service Terms is held to be unenforceable or invalid, in whole or in part, by a court of competent jurisdiction, the remaining provisions of these Service Terms will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law.

  5. Waiver. No forbearance or delay by either party in exercising or enforcing the provisions of the Agreement shall prejudice or restrict the rights (whether provided by the Agreement or by law) of that party. The waiver of a breach of any provision of these Service Terms will not operate or be interpreted as a waiver of any other or subsequent breach of that or any other provision.

  6. Notices. All notices permitted or required under these Service Terms shall be in writing, will reference these Service Terms, and shall be delivered in person, by overnight courier or express delivery service, or by first class, registered or certified mail, postage prepaid, or by confirmed email delivery, to the address of the party specified on the Order Form or such other address as either party may specify in writing. Such notice shall be deemed to have been given upon receipt.

  7. Governing Law. This Agreement and any non-contractual obligations arising out of or in connection with it shall be governed by, and shall be interpreted and construed in accordance with, English law. The English courts shall have exclusive jurisdiction to settle any dispute arising out of or in connection with this Agreement (including a dispute relating to any non-contractual obligations arising out of or in connection with this agreement).  The Parties each irrevocably submit to the exclusive jurisdiction of the English courts and irrevocably waive any right that it may have to object to an action being brought in those Courts, to claim that the action has been brought in an inconvenient forum, or to claim that those Courts do not have jurisdiction.

  8. Revisions to Service Terms and Order Form. Nutrable may change these Service Terms, the Order Form or its policies from time to time (“Revised Version”), in which case we will post the subject Revised Version to our website at the same URL or location as the prior version.  Unless otherwise agreed to by the parties, your continued use of the Platform Services means that you have agreed to the subject Revised Version.

  9. Relationship of the Parties. Both parties are independent contractors and nothing in the Agreement creates a partnership, agency, joint venture, fiduciary or employment relationship between the parties. Neither party shall have any authority to incur any obligations on behalf of the other party or to make any promise, representation or contract of any nature on behalf of the other party. 

  10. Independent Legal Advice. Each party hereby acknowledges that it has been afforded the opportunity to obtain independent legal advice and confirms that it has either done so or waived its right to do so in connection with the entering into of this Agreement.

  11. Entire Agreement. These Service Terms and the Order Form constitute the entire agreement between the parties and supersede all prior or contemporaneous oral or written agreements regarding the subject matter herein.