Nutrient Profiling Scoring Calculator

Licence Agreement - Terms and Conditions

Permission to use the Nutrient Profiling Scoring Calculator (the Calculator) is conditional on the user (You) agreeing to the terms and conditions set out below.

1. Warning

1. Before You click on the "I have read and accept the terms and conditions of this Licence Agreement" box, You must read and agree to the terms and conditions contained in this Licence Agreement.
2. By clicking on the "I have read and accept the terms and conditions of this Licence Agreement" box at the end of these terms and conditions, You will be deemed to have accepted them.
3. If you do click on the "I have read and accept the terms and conditions of this Licence Agreement" box, you may then click on the "Continue" button to access and use the Calculator.
4. If you do not click on the "I have read and accept the terms and conditions of this Licence Agreement" box, you will be deemed to have not read and/or accepted them, in which case you must:
   1. click the "Cancel" button; and
   2. refrain from accessing and using the Calculator and Calculator IPR (defined below).

2. Binding agreement

1. By clicking on the "I accept the terms and conditions of this Licence Agreement" button, You will be deemed to:
   1. have read and fully understood the terms and conditions of this Licence Agreement;
   2. have agreed to be bound by the terms and conditions of this Licence Agreement; and
   3. have understood that this Licence Agreement is a legal agreement between You and the Licensor, and can be enforced accordingly.

3. Definitions

1. In this Licence Agreement, the following definitions are used:

   Calculator means the Nutrient Profiling Scoring Calculator;

   Calculator IPR means all Intellectual Property Rights subsisting in the Calculator, including (but not limited to):

   1. the Trade Marks and their goodwill; and
   2. the algorithm and files underpinning the Calculator,

   but does not include the underlying software or any nutrition content information used with, or produced by, the Calculator;

   Intellectual Property Rights means copyrights, patents, designs, trade marks (including goodwill), trade secrets, know-how and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields including (but not limited to) the right to apply for registration of such rights;

   Licence Agreement means this licence agreement;

   Licensor means Food Standards Australia New Zealand or such other department or agency having responsibility for this Licence Agreement from time to time;

   Website means the website designated by the Licensor where the Calculator and Calculator IPR are able to be accessed.

4. Licence and Ownership

1. Subject to the terms and conditions of this Licence Agreement, the Licensor grants You a non-exclusive, non-transferable and free licence:
   1. to access, download and use the Calculator;
   2. to access, download and use the Calculator IPR; and
   3. to display the final NPSC calculations and nutrient profiling score,
      
      for the purposes of:
      
      
   4. determining a nutrient profiling score in accordance with Schedule 5 of the Australia New Zealand Food Standards Code as applied by Australian and New Zealand food laws; and
   5. research in relation to food that is manufactured, distributed or sold in Australia and/or in New Zealand.
2. You acknowledge and agree that:
   1. You will not challenge or contest the Licensor's ownership of the Calculator and Calculator IPR;
   2. nothing in this Licence Agreement operates to give You any ownership rights in the Calculator and the Calculator IP; and
   3. subject to clause 8.3(a), the Licensor has no legal obligation to provide updates or new releases of the Calculator and the Calculator IPR under this Licence Agreement.
3. You must not apply, or attempt to apply, to register the Calculator and the Calculator IPR in Your or any other person's name.
4. You must not claim, or attempt to claim, ownership to the Calculator and the Calculator IPR.

5. Restrictions on use

1. Your use of the Calculator and Calculator IPR is subject to the following restrictions:
   1. You must only use the Calculator and Calculator IPR for the purposes permitted by clause 4.1;
   2. You have no rights to sub-license the Calculator and Your use of the Calculator is for internal or personal use only;
   3. apart from any other use permitted under the Copyright Act 1968 (Cth), all other rights are reserved;
   4. You may not use any part of the Calculator to establish, maintain, or provide, or assist in establishing, maintaining or providing your own publications, whether on the internet or otherwise;
   5. You may not alter or modify the Calculator;
   6. You may not use the Calculator in any way that breaches any law, infringes a third party's intellectual property or moral rights, or is contrary to relevant standards and codes;
   7. You must not knowingly transmit any viruses, worms, defects, trojan horses or other disabling feature to the Calculator;
   8. You must protect the Calculator from unauthorised access, use and/or damage; and
   9. You must not sell access to the Calculator and/or any material derived from the Calculator.

6. Risk

1. You acknowledge and agree that:
   1. use of the Calculator and the Calculator IPR is entirely and solely at Your own risk;
   2. the Licensor does not guarantee, represent or warrant that the information produced by the Calculator:
      1. will be accurate, correct or free from error; and
      2. if used, will be consistent, and ensure Your compliance, with the relevant requirements of the relevant laws and codes, including (but not limited to) the Australia New Zealand Food Standards Code;
   3. the accuracy and reliability of the information produced by the Calculator is dependent on, and will be impacted by, the accuracy and reliability of data entered into the Calculator. Before utilising and using the results generated by the Calculator, You should carefully evaluate these results and rely on Your own skill, care and judgment to confirm their accuracy and reliability before using them;
   4. the Licensor makes this Calculator and Calculator IPR available on the understanding that You will be solely responsible for ensuring and checking the accuracy and reliability of the information produced by the Calculator. In the case of any doubt about accuracy and reliability, You must obtain and follow independent expert advice with respect to the use of information produced by the Calculator;
   5. the Licensor does not guarantee, represent or warrant that the Calculator and Calculator IPR will be free of infection, viruses, defects, bugs, harmful components or any other codes that may have contaminating or destructive properties; and
   6. You must not use the Calculator in a manner which breaches any laws, infringes a third party's Intellectual Property Rights or moral rights or is contrary to any relevant standards or codes.
2. You are solely and entirely responsible for implementing procedures (including but not limited to back up and storage of data) that satisfy Your requirements for accuracy and reliability of nutritional content information used with, or produced by, the Calculator.

7. Confidentiality

1. The Licensor will store data that is entered into the Calculator for each food calculation until you leave the Calculator.
2. When you leave the calculator, the Licensor will not thereafter store or retain the data.

8. Liability

1. Subject to clause 8.2, all express or implied warranties, representations, statements, terms and conditions relating to the Calculator and Calculator IPR, not otherwise contained in this Licence Agreement, are excluded from this Licence Agreement.
2. Nothing in this Licence Agreement excludes, restricts or modifies any condition, warranty, right or remedy implied or imposed by any statute or regulation, including (but not limited to) the Consumer and Competition Act 2010 (Cth), which cannot lawfully be excluded, restricted or modified.
3. If any condition or warranty is implied into this Licence Agreement under the Consumer and Competition Act 2010 (Cth) (or other applicable statutes or regulations) and cannot be excluded, and the Licensor is able to limit Your remedy for a breach of such a condition or warranty, then the Licensor's liability for breach of the condition or warranty is limited to:
   1. the replacement of the Calculator and Calculator IPR and having the replaced Calculator and Calculator IPR made available to You from the Website; or
   2. the payment of the cost of having Calculator and Calculator IPR replaced and made available to You from the Website.
4. Subject to the Licensor's obligations under the implied conditions and warranties referred to in clause 8.2:
   1. the Licensor's maximum aggregate liability for all claims under or relating to this Licence Agreement or its subject matter, whether in contract, tort (including, but not limited to, negligence), in equity, under statute, under an indemnity or on any other basis, is limited to $100; and
   2. in any event, the Licensor is not liable for, and no measure of damages will include under any circumstances:
      1. special, indirect, consequential, incidental or punitive damages; or
      2. economic loss, loss of profits, revenue, goodwill, bargain, anticipated savings or loss or corruption of data, whether in an action in contract, tort (including without limitation negligence), product liability, statute, under an indemnity or on any other basis, whether or not such loss or damage was foreseeable and even if advised of the possibility of the loss or damage.

9. Indemnity

1. You hereby indemnify the Licensor (including its employees and officers) against any liabilities, losses, expenses and other costs (including, but not limited to, reasonable legal fees) arising from or in relation to, or arising directly or indirectly from, any:
   1. wilful, negligent or unlawful act or omission of this Licence Agreement;
   2. breach of this Licence Agreement; or
   3. use of the Calculator and Calculator IPR,

by You (including by Your employees, officers and permitted sub-licensees).


2. The Licensor holds the benefit of this clause 9 on trust for its officers and employees.

10. Term and termination

1. This Licence Agreement remains in effect unless it is terminated under this clause 10.
2. The Licensor may terminate this Licence Agreement with immediate effect by giving written notice if:
   1. You breach an obligation under this Licence Agreement and within 14 days (or such longer period as set out in the notice) of receiving a written notice from the Licensor, You fail to rectify that breach;
   2. You commit a breach of a term or condition of this Licence Agreement which, in the Licensor's opinion, is not capable of being rectified;
   3. one of Your warranties is, or becomes, untrue;
   4. You, being a natural person, die; or
   5. You, being a body (incorporated or otherwise), have a receiver, administrator or liquidator appointed or are being wound up.
3. In the event of an update or a new release of the Calculator or Calculator IPR being notified on the Website and clause 8.3(a) does not apply, the licence granted under this Licence Agreement will automatically terminate with immediate effect on the date of posting the notification on the Website.
4. Termination of this Licence Agreement will be in addition to and not in lieu of any other remedies available to the Licensor.
5. On termination of this Licence Agreement:
   1. You (including Your employees, officers and permitted sub-licensees) are not permitted any further use of, and must immediately cease using, the Calculator; and
   2. subject to clause 10.6, You (including Your employees, officers and permitted sub-licensees) are not permitted any further use of, and must immediately cease using, the Calculator IPR.
6. Termination pursuant to clause 10.3 does not prevent You from promoting, distributing and selling Your existing stock after the date of termination if You have already printed the Calculator IPR on it prior to the date of termination. You must not, however, use the Calculator and Calculator IPR for new stock produced after the date of termination.

11. Entire agreement

1. This Licence Agreement is the entire agreement between the parties in relation to Your use of the Calculator and Calculator IPR and replaces all previous agreements, understandings, representations and warranties about that subject matter.
2. You represent and warrant that You have not relied on any representations or warranties about the subject matter of this Licence Agreement except as expressly provided in this Licence Agreement.

12. Variation

1. No variation of this Licence Agreement is binding unless agreed between the parties.

13. Law

1. This Licence Agreement will be governed by and construed in accordance with the laws for the time being in force in the Australian Capital Territory and the parties agree to submit to the jurisdiction of the courts and tribunals of the Australian Capital Territory.

14. Waiver

1. No forbearance, delay or indulgence by a party in enforcing the provisions of this Licence Agreement will prejudice or restrict the rights of that party, nor will any waiver of those rights operate as a waiver of any subsequent breach.

15. Assignment, novation and other dealings

1. You must not assign or novate this Licence Agreement or otherwise deal with the benefit of it or a right under it, or purport to do so, without the Licensor's prior written consent, which may be withheld at the Licensor's absolute discretion.

16. Capacity

1. You warrant to the Licensor that You have legal capacity to enter into, and be bound by the terms and conditions of, this Licence Agreement.

17. Severability

1. Should any part of this Licence Agreement be or become invalid, that part will be severed from this Licence Agreement. Such invalidity will not affect the validity of the remaining provisions of this Licence Agreement.

Getting Started

To use this calculator the following information about the food is required. This information must be based on the form of the food to which the claim applies (see section 1.2.7—7 of Standard 1.2.7), except when calculating the fruit and vegetable points (V points) of the food (see 4 below).

For the addition of vitamin D as a nutritive substance to breakfast cereals, the information should be based on the breakfast cereal as sold (see section 1.3.2—6 of Standard 1.3.2).

1. The average energy content (kJ) per unit quantity^* of the food (based on the units used in the nutrition information panel).


2. The average quantity of the following nutrients per unit quantity* of the food (based on the units used in the nutrition information panel):
   
   • saturated fatty acids (g)
   • sugars (g)
   • sodium (mg)
   • protein (g)
   • dietary fibre (g) (not required for NPSC category 1 foods – beverages)

   The prescribed method of analysis to determine total dietary fibre is outlined in S11—4 of Schedule 11.

3. If the food in question is a cheese or processed cheese the calcium content (in mg per 100 g) is required to determine the NPSC category of the food.


4. To calculate fruit and vegetable (V) points the following information is required:
   
   • percentage of the non-concentrated fvnl^** ingredients in the food
   • percentage of concentrated (or dried) fruit or vegetable ingredients in the food
   • percentage of non-fvnl ingredients in the food

   The percentages above are to be determined using the appropriate method in Standard 1.2.10 (Information requirements - characterising ingredients and components of food).

^* unit quantity is defined in Standard 1.1.2 to mean –

1. for a food that is a solid or semi-solid food – 100 g
2. for a food that is a beverage or other liquid food – 100 ml

^** fvnl is fruits, vegetables, nuts and legumes including coconut, spices, herbs, fungi, seeds and algae (see S5—4 of Schedule 5).

Click here for further information on V points.