Standard Goods or Service TERMS AND CONDITIONS
The Customer's attention is particularly drawn to the provisions of clause 13 (Limitation of liability).
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Business Day a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours the period from 9.00 am to 5.00 pm on any Business Day.
Commencement Date has the meaning given in clause 2.2.
Conditions these terms and conditions as amended from time to time in accordance with clause 17.8.
Contract the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer the person or firm who purchases the Goods and/or Services from the Supplier.
Delivery Location has the meaning given in clause 4.2.
Emteq means Emteq Limited, company number 09708880, whose registered office is at Sussex Innovation Centre, Science Park Square, Brighton, United Kingdom, BN1 9SB.
Emteq Platform the platform provided by the Supplier for the display and storage of results obtained from use of the Goods by the Customer.
Force Majeure Event has the meaning given to it in clause 16.
Goods the goods (or any part of them) set out in the Order.
Intellectual Property Rights patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order the Customer's order for the supply of Goods and/or Services, as set out in the Order Confirmation.
Order Confirmation the Supplier’s written confirmation of the Order.
Platform Terms the terms of use of the Emteq Platform as set out at Appendix 1.
Services the services, supplied by the Supplier to the Customer as set out or referred to in the Order Confirmation, including use of the Emteq Platform in accordance with the Platform Terms. Platforms Terms can be found on the website and Appendix 1.
Supplier Emteq Limited (trading as Emteq Labs) registered in England and Wales with company number 09708880.
Supplier Materials has the meaning given in clause 8.1.7.
UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Warranty Period has the meaning given in clause 5.1.
Interpretation:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors and permitted assigns.
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written excludes fax but not email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written Order Confirmation at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Supplier may, at its sole discretion require the payment of [25%] of the total price of the Goods and Services as a deposit (the Deposit). In the event that the Order is cancelled or the Contract terminated before the Goods are delivered and before the Services are supplied, the Supplier shall refund the Deposit, less any reasonably incurred costs incurred in the performance of the Contract until the date of cancellation/termination.
2.4 The Customer may cancel the Order within 7 days of placing the Order.
2.5 If the Goods are unavailable, or for reasons outside of the Supplier’s control there is an unavailability of materials or other resources to deliver the Goods and/or Services, the Supplier may cancel the Order providing that the Goods have not been delivered and the Services have not commenced.
2.6 A cancellation of an Order under clause 2.4 or clause 2.5 shall be confirmed by the Supplier in writing.
2.7 Unless otherwise specifically confirmed in writing by the Supplier, any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.8 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.9 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
2.10 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.11 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3. GOODS
3.1 The Goods are described in brochure or support materials.
3.2 In the event that the Goods are recalled for whatever reason, the Supplier shall notify the Customer of the recall process in writing.
3.3 The Supplier reserves the right to amend any specification or description of the Goods if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 the Supplier shall deliver the Goods to the location set out in the invoice or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 if the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 if the Customer fails to accept delivery of the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2 the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 if ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods [and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or] charge the Customer for any shortfall below the price of the Goods.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. QUALITY OF GOODS
5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period),] the Goods shall:
5.1.1 conform in all material respects with their description;
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
5.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until:
6.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4; and
6.3.5 give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Customer.
6.4 At any time before title to the Goods passes to the Customer, the Supplier may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. SUPPLY OF SERVICES
7.1 The Supplier shall supply the Services to the Customer in accordance with the Quote in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order or Order Confirmation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
8.1.1 ensure that the terms of the Order are complete and accurate;
8.1.2 co-operate with the Supplier in all matters relating to the Services;
8.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
8.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.1.6 comply with all applicable laws, including health and safety laws;
8.1.7 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation;
8.1.8 comply with any additional obligations as set out in in writing by the Supplier from time to time including in any sales documentation, support materials or the Order Confirmation; and
8.1.9 comply with the Platform Terms in accordance with the use of the Emteq Platform provided by the Supplier as part of the Services.
8.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
8.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
8.2.2 if the Goods and/or Services have not been delivered, the Supplier may at its sole discretion cancel the Order;
8.2.3 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.4 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9. CHARGES AND PAYMENT
9.1 The price for Goods:
9.1.1 shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list as at the date of the order; and
9.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
9.2 The charges for Services shall be calculated on a time and materials basis:
9.2.1 the charges shall be calculated in accordance with the Supplier's daily fee rates, as set out in its current price list at the date of the Contract;
9.2.2 the Supplier's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days; and
9.2.3 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
9.3 The Supplier reserves the right to:
9.3.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index ;
9.3.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(c) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
9.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of additional Services, the Supplier shall invoice the Customer on completion of the Services OR monthly in arrears.
9.5 The Customer shall pay each invoice submitted by the Supplier:
9.5.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
9.5.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 14, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 3% a year above the Bank of England's base rate from time to time, but at 3% a year for any period when that base rate is below 0%.
9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in the Goods and/or the Platform and/or arising out of or in connection with the Services shall be owned by the Supplier.
10.2 The Supplier grants a non-exclusive, non-transferable licence during the term of the use of the Emteq Platform to use the Emteq Platform in accordance with the Platform Terms, for the term of use of the Emteq Platform as a registered user.
11. DATA PROTECTION
11.1 The following definitions apply in this clause 11:
11.1.1 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
11.1.2 Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
11.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
11.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller of any personal data that it may enter into the Platform or provided to the Supplier in any way. It is not anticipated that the Customer will provide any personal data to the Supplier in connection with the purchase of the Goods and/or provision of the Services, but if the Customer does provide the Supplier with any personal data for the processing of that personal data on behalf of the Customer, the Supplier shall be the Processor and the remainder of this clause 11 shall apply.
11.4 Without prejudice to the generality of clause 11.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Contract.
11.5 Without prejudice to the generality of clause 11.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
11.5.1 process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by law to otherwise process that Personal Data. Where the Supplier is relying on law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the law unless the law prohibits the Supplier from so notifying the Customer;
11.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
11.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
11.5.4 not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(a) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(b) the Data Subject has enforceable rights and effective legal remedies;
(c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
11.5.5 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
11.5.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;
11.5.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by law to store the Personal Data; and
11.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 11.
11.6 The Customer consents to the Supplier appointing a third-party processor of Personal Data under the Contract where required for the purposes of providing the Services. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement which reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.6.
11.7 Either party may, at any time on not less than 30 days' notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
12. CONFIDENTIALITY
12.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party [or of any member of the group of companies to which the other party belongs], except as permitted by clause
12.2. 12.2 Each party may disclose the other party's confidential information:
12.2.1 to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
13. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
13.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
13.3.1 death or personal injury caused by negligence;
13.3.2 fraud or fraudulent misrepresentation;
13.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
13.3.4 defective products under the Consumer Protection Act 1987.
13.4 Subject to clause 13.3, the Supplier's total liability to the Customer shall not exceed the sums paid or payable by the Customer to the Supplier in respect of the Goods and Services supplied under an Order
13.5 This clause 13.5 sets out specific heads of excluded loss and exceptions from them:
13.5.1 Subject to clause 13.2 and clause 13.3, clause 13.5.2 excludes specified types of loss.
13.5.2 The following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
13.6 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.7 This clause 13 shall survive termination of the Contract.
14. TERMINATION
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.1.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 28 days after receipt of notice in writing to do so;
14.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction];
14.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.1.4 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
14.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
14.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract for convenience on 14 days written notice.
14.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
14.5 Without affecting any other right or remedy available to it, the Customer may terminate the Contract:
14.5.1 with immediate effect before the Goods have been delivered and before the Services have commenced; or
14.5.2 on 7 days written notice after the Goods have been provided or the Services have commenced.
15. CONSEQUENCES OF TERMINATION
15.1 On termination of the Contract:
15.1.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
15.1.2 if it is determined that any refund is due to the Customer, including, but not limited to, in the event that the Order is cancelled before the Goods have been delivered or the Services have commenced, the Supplier shall either:
(a) set off such sums against any sums that remain payable under clause 15.1.1; or
(b) refund such sums to the Customer within 14 days of termination.
15.1.3 the Customer shall return all of the Supplier Materials or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and
15.1.4 the Customer shall cease to be provided with access to the Emteq Platform.
15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and 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 Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
16. FORCE MAJEURE
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for four (4) weeks, the party not affected may terminate the Contract by giving 14 days’ written notice to the affected party.
17. GENERAL
17.1 Assignment and other dealings
17.1.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
17.1.2 The Customer 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 Contract without the prior written consent of the Supplier.
17.2 Notices.
17.2.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the following addresses (or an address substituted in writing by the party to be served):
Supplier: Sussex Innovation Centre, Science Park Square, Brighton, United Kingdom, BN1 9SB
17.2.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
17.2.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.3 Severance. If any provision or part-provision of the Contract 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 Contract. If any provision or part provision of the Contract is deemed deleted under this clause 17.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
17.4 Waiver.
17.4.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
17.4.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.6 Entire agreement.
17.6.1 The Contract constitutes the entire agreement between the parties.
17.6.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
17.7 Third party rights.
17.7.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
17.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
17.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
17.10 Jurisdiction. 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 Contract or its subject matter or formation.
APPENDIX 1 – PLATFORM TERMS
Who we are and what this agreement does
We make this Software available to you, for your use in accordance with the Platform Terms. We are Emteq Limited (trading as Emteq Labs), company number 09708880, whose registered office is at Sussex Innovation Centre, Science Park Square, Brighton, United Kingdom, BN1 9SB.
Where we grant you access to use the Software as a registered user of our platform, we license you to use:
The Supervision application (Software) and any updates or supplements to it.
The service you connect to via the Software and the content we provide to you through it (Service),
as permitted in these terms.
Support for the Software and how to tell us about problems If you want to learn more about the Software [or the Services] or have any problems using it/them please take a look at our support resources at https://support.emteqlabs.com/.
Contacting us (including with complaints).
If you think the Software [or the Services] is/are faulty or misdescribed or wish to contact us for any other reason, please email our customer service team at support@emteqlabs.com.
How we will communicate with you. If we have to contact you, we will do so by email using the contact details you have provided to us.
How you may use the Software, including how many devices you may use it on In return for your agreeing to comply with these terms you may use a copy of the Software within the platform environment only, to view and analyse the results downloaded to the platform and/or obtained from use of the headsets purchased by you.
You must be 18 to accept these terms and use the Software
You must be 18 or over to accept these terms and use the Software.
You may not transfer the Software to someone else We are giving you personally the right to use the Software and the Service as set out above. You may not otherwise transfer the Software or the Service to someone else, whether for money, for anything else or for free. If you sell any device on which the Software is installed, you must remove the Software from it.
Changes to these terms We may need to change these terms to reflect changes in law or best practice or to deal with additional features which we introduce. We will give you at least 30 days’ notice of any change by sending you an email with details of the change. If you do not accept the notified changes you may continue to use the Software and the Service in accordance with the existing terms but certain new features may not be available to you OR will not be permitted to continue to use the Software and the Service.
Update to the Software and changes to the Service
From time to time we may automatically update the Software and change the Service to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively, we may ask you to update the Software for these reasons. If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the Software and the Services. The Software will always work with the current or previous version of the operating system (as it may be updated from time to time) and match the description of it provided to you when you bought it.
We are not responsible for other websites you link to
The Software or any Service may contain links to other independent websites which are not provided by us. Such independent sites are not under our control, and we are not responsible for and have not checked and approved their content or their privacy policies (if any). You will need to make your own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.
Licence restrictions
You agree that you will:
- not rent, lease, sub-license, loan, provide, or otherwise make available, the Software or the Services in any form, in whole or in part to any person without prior written consent from us;
- not copy the Software or Services, except as part of the normal use of the Software or where it is necessary for the purpose of back-up or operational security;
- not translate, merge, adapt, vary, alter or modify, the whole or any part of the Software or Services nor permit the Software or the Services or any part of them to be combined with, or become incorporated in, any other programs, except as necessary to use the Software and the Services on devices as permitted in these terms;
- not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software or the Services nor attempt to do any such things, except to the extent that (by virtue of sections 50B and 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are necessary to decompile the Software to obtain the information necessary to create an independent program that can be operated with the Software or with another program (Permitted Objective), and provided that the information obtained by you during such activities:
-- is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it in order to achieve the Permitted Objective; and
-- is not used to create any software that is substantially similar in its expression to the Software;
-- is kept secure; and
-- is used only for the Permitted Objective;
- comply with all applicable technology control or export laws and regulations that apply to the technology used or supported by the Software or any Service;
- not use the Software to create any other software which is substantially similar to the Software;
- ensure that the Software is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
- not to provide or otherwise make available the Software in whole or in part (including, but not limited to program listings, object and source program listings, object code and source code), in any form to any person without our prior written consent.
Acceptable use restrictions
You must:
- not use the Software or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the Software, any Service or any operating system;
- not infringe our intellectual property rights or those of any third party in relation to your use of the Software or any Service, including by the submission of any material (to the extent that such use is not licensed by these terms);
- not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Software or any Service;
- not use the Software or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
- not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.
Intellectual property rights
All intellectual property rights in the Software and the Services throughout the world belong to us (or our licensors) and the rights in the Software and the Services are licensed (not sold) to you. You have no intellectual property rights in, or to, the Software, or the Services other than the right to use them in accordance with these terms.
Our responsibility for loss or damage suffered by you
We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking these terms or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these terms, both we and you knew it might happen.
We do not exclude or limit in any way our liability to you where it would be unlawful to do so.
This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
When we are liable for damage to your property.
If defective digital content that we have supplied damages a device or digital content belonging to you, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
We are not liable for business losses.
The Software is made available to you for business purposes and not for domestic or private use. We therefore will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
Limitations to the Software and the Services.
The Software and the Services are provided for general information purposes only. They do not offer advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of information obtained from the Software or the Service. Although we make reasonable efforts to update the information provided by the Software and the Service, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up to date.
Please back-up content and data used with the Software.
We recommend that you back up any content and data used in connection with the Software, to protect yourself in case of problems with the Software or the Service.
Data storage.
Video Data Retention. Our platform retains video data on our cloud servers for a maximum duration of three months from the date of upload. After this period, the data is automatically deleted. Storage Limitation. To ensure fair usage of our cloud storage resources, we impose a cap on the maximum amount of data collected per device. Each device is limited to a maximum of 500 GB of cloud storage. This limitation helps us maintain the efficiency and availability of our services while accommodating the diverse needs of our users.
Data Access by the Company.
As part of our service, we may access sensor data and processed video files, specifically extracting and utilising facial landmarks for research purposes. Rest assured that this access is limited to the extraction of facial landmarks and does not encompass the entirety of your video content. We prioritise user privacy and adhere to strict security measures to protect your data.
Check that the Software and the Services are suitable for you.
The Software and the Services has/have not been developed to meet your individual requirements. Please check that the facilities and functions of the Software and the Services (as described in any applicable documentation) meet your requirements.
We are not responsible for events outside our control.
If our provision of the Services or support for the App or the Services is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event but if there is a risk of substantial delay you may contact us to end your contract with us and receive a refund for any Services you have paid for but not received.
We may end your rights to use the Software and the Services if you break these terms
We may end your rights to use the Software and Services at any time by contacting you if you have broken these terms in a serious way. If what you have done can be put right we will give you a reasonable opportunity to do so. If we end your rights to use the Software and Services: You must stop all activities authorised by these terms, including your use of the Software and any Services. You must delete or remove the Software from all devices in your possession and immediately destroy all copies of the Software which you may have and confirm to us that you have done this. We may remotely access your devices and remove the Software from them and cease providing you with access to the Services.
We may transfer this agreement to someone else
We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.
You need our consent to transfer your rights to someone else
You may only transfer your rights or your obligations under these terms to another person if we agree in writing.
No rights for third parties
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
If a court finds part of this contract illegal, the rest will continue in force
Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
Even if we delay in enforcing this contract, we can still enforce it later
Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
Which laws apply to this contract and where you may bring legal proceedings
These terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts. If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.
1. INTERPRETATION
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions:
Business Day a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours the period from 9.00 am to 5.00 pm on any Business Day.
Commencement Date has the meaning given in clause 2.2.
Conditions these terms and conditions as amended from time to time in accordance with clause 17.8.
Contract the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
Customer the person or firm who purchases the Goods and/or Services from the Supplier.
Delivery Location has the meaning given in clause 4.2.
Emteq means Emteq Limited, company number 09708880, whose registered office is at Sussex Innovation Centre, Science Park Square, Brighton, United Kingdom, BN1 9SB.
Emteq Platform the platform provided by the Supplier for the display and storage of results obtained from use of the Goods by the Customer.
Force Majeure Event has the meaning given to it in clause 16.
Goods the goods (or any part of them) set out in the Order.
Intellectual Property Rights patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order the Customer's order for the supply of Goods and/or Services, as set out in the Order Confirmation.
Order Confirmation the Supplier’s written confirmation of the Order.
Platform Terms the terms of use of the Emteq Platform as set out at Appendix 1.
Services the services, supplied by the Supplier to the Customer as set out or referred to in the Order Confirmation, including use of the Emteq Platform in accordance with the Platform Terms. Platforms Terms can be found on the website and Appendix 1.
Supplier Emteq Limited (trading as Emteq Labs) registered in England and Wales with company number 09708880.
Supplier Materials has the meaning given in clause 8.1.7.
UK GDPR has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.
Warranty Period has the meaning given in clause 5.1.
Interpretation:
A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a party includes its personal representatives, successors and permitted assigns.
A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.
Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.
A reference to writing or written excludes fax but not email.
2. BASIS OF CONTRACT
2.1 The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written Order Confirmation at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 The Supplier may, at its sole discretion require the payment of [25%] of the total price of the Goods and Services as a deposit (the Deposit). In the event that the Order is cancelled or the Contract terminated before the Goods are delivered and before the Services are supplied, the Supplier shall refund the Deposit, less any reasonably incurred costs incurred in the performance of the Contract until the date of cancellation/termination.
2.4 The Customer may cancel the Order within 7 days of placing the Order.
2.5 If the Goods are unavailable, or for reasons outside of the Supplier’s control there is an unavailability of materials or other resources to deliver the Goods and/or Services, the Supplier may cancel the Order providing that the Goods have not been delivered and the Services have not commenced.
2.6 A cancellation of an Order under clause 2.4 or clause 2.5 shall be confirmed by the Supplier in writing.
2.7 Unless otherwise specifically confirmed in writing by the Supplier, any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.
2.8 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
2.9 Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 30 Business Days from its date of issue.
2.10 All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.
2.11 The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.
3. GOODS
3.1 The Goods are described in brochure or support materials.
3.2 In the event that the Goods are recalled for whatever reason, the Supplier shall notify the Customer of the recall process in writing.
3.3 The Supplier reserves the right to amend any specification or description of the Goods if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.
4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that:
4.1.1 each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, the type and quantity of the Goods (including the code number of the Goods, where applicable), special storage instructions (if any) and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and
4.1.2 it states clearly on the delivery note any requirement for the Customer to return any packaging material to the Supplier. The Customer shall make any such packaging materials available for collection at such times as the Supplier shall reasonably request. Returns of packaging materials shall be at the Supplier's expense.
4.2 the Supplier shall deliver the Goods to the location set out in the invoice or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
4.3 delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location.
4.4 any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.5 if the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
4.6 if the Customer fails to accept delivery of the Goods within 5 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:
4.6.1 delivery of the Goods shall be deemed to have been completed at 9.00 am on the fifth Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
4.6.2 the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
4.7 if ten Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not accepted actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods [and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or] charge the Customer for any shortfall below the price of the Goods.
4.8 The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
5. QUALITY OF GOODS
5.1 The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery (Warranty Period),] the Goods shall:
5.1.1 conform in all material respects with their description;
5.1.2 be free from material defects in design, material and workmanship; and
5.1.3 be of satisfactory quality (within the meaning of the Sale of Goods Act 1979
5.2 Subject to clause 5.3, if:
5.2.1 the Customer gives notice in writing to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
5.2.2 the Supplier is given a reasonable opportunity of examining such Goods; and
5.2.3 the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost, the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.
5.3 The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:
5.3.1 the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
5.3.2 the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;
5.3.3 the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;
5.3.4 the Customer alters or repairs such Goods without the written consent of the Supplier;
5.3.5 the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions; or
5.3.6 the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
5.4 Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.
5.5 These Conditions shall apply to any repaired or replacement Goods supplied by the Supplier.
6. TITLE AND RISK
6.1 The risk in the Goods shall pass to the Customer on completion of delivery.
6.2 Title to the Goods shall not pass to the Customer until:
6.2.1 the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums
6.3 Until title to the Goods has passed to the Customer, the Customer shall:
6.3.1 store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;
6.3.2 not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
6.3.3 maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;
6.3.4 notify the Supplier immediately if it becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4; and
6.3.5 give the Supplier such information as the Supplier may reasonably require from time to time relating to:
(a) the Goods; and
(b) the ongoing financial position of the Customer.
6.4 At any time before title to the Goods passes to the Customer, the Supplier may require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product and if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
7. SUPPLY OF SERVICES
7.1 The Supplier shall supply the Services to the Customer in accordance with the Quote in all material respects.
7.2 The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the Order or Order Confirmation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
7.3 The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.
8. CUSTOMER'S OBLIGATIONS
8.1 The Customer shall:
8.1.1 ensure that the terms of the Order are complete and accurate;
8.1.2 co-operate with the Supplier in all matters relating to the Services;
8.1.3 provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;
8.1.4 provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
8.1.5 obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;
8.1.6 comply with all applicable laws, including health and safety laws;
8.1.7 keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation;
8.1.8 comply with any additional obligations as set out in in writing by the Supplier from time to time including in any sales documentation, support materials or the Order Confirmation; and
8.1.9 comply with the Platform Terms in accordance with the use of the Emteq Platform provided by the Supplier as part of the Services.
8.2 If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):
8.2.1 without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;
8.2.2 if the Goods and/or Services have not been delivered, the Supplier may at its sole discretion cancel the Order;
8.2.3 the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and
8.2.4 the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.
9. CHARGES AND PAYMENT
9.1 The price for Goods:
9.1.1 shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list as at the date of the order; and
9.1.2 shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.
9.2 The charges for Services shall be calculated on a time and materials basis:
9.2.1 the charges shall be calculated in accordance with the Supplier's daily fee rates, as set out in its current price list at the date of the Contract;
9.2.2 the Supplier's daily fee rates for each individual person are calculated on the basis of an eight-hour day from 8.00 am to 5.00 pm worked on Business Days; and
9.2.3 the Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the Services including travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by the Supplier for the performance of the Services, and for the cost of any materials.
9.3 The Supplier reserves the right to:
9.3.1 increase the charges for the Services on an annual basis with effect from each anniversary of the Commencement Date in line with the percentage increase in the Retail Prices Index in the preceding 12-month period and the first such increase shall take effect on the first anniversary of the Commencement Date and shall be based on the latest available figure for the percentage increase in the Retail Prices Index ;
9.3.2 increase the price of the Goods, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods to the Supplier that is due to:
(a) any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Goods Specification; or
(c) any delay caused by any instructions of the Customer in respect of the Goods or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods.
9.4 In respect of Goods, the Supplier shall invoice the Customer on or at any time after completion of delivery. In respect of additional Services, the Supplier shall invoice the Customer on completion of the Services OR monthly in arrears.
9.5 The Customer shall pay each invoice submitted by the Supplier:
9.5.1 within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and
9.5.2 in full and in cleared funds to a bank account nominated in writing by the Supplier, and time for payment shall be of the essence of the Contract.
9.6 All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
9.7 If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 14, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.7 will accrue each day at 3% a year above the Bank of England's base rate from time to time, but at 3% a year for any period when that base rate is below 0%.
9.8 All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
10. INTELLECTUAL PROPERTY RIGHTS
10.1 All Intellectual Property Rights in the Goods and/or the Platform and/or arising out of or in connection with the Services shall be owned by the Supplier.
10.2 The Supplier grants a non-exclusive, non-transferable licence during the term of the use of the Emteq Platform to use the Emteq Platform in accordance with the Platform Terms, for the term of use of the Emteq Platform as a registered user.
11. DATA PROTECTION
11.1 The following definitions apply in this clause 11:
11.1.1 Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
11.1.2 Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.
11.2 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 11 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.
11.3 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller of any personal data that it may enter into the Platform or provided to the Supplier in any way. It is not anticipated that the Customer will provide any personal data to the Supplier in connection with the purchase of the Goods and/or provision of the Services, but if the Customer does provide the Supplier with any personal data for the processing of that personal data on behalf of the Customer, the Supplier shall be the Processor and the remainder of this clause 11 shall apply.
11.4 Without prejudice to the generality of clause 11.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Contract.
11.5 Without prejudice to the generality of clause 11.2, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under the Contract:
11.5.1 process that Personal Data only on the documented written instructions of the Customer unless the Supplier is required by law to otherwise process that Personal Data. Where the Supplier is relying on law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the law unless the law prohibits the Supplier from so notifying the Customer;
11.5.2 ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
11.5.3 ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
11.5.4 not transfer any Personal Data outside of the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(a) the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
(b) the Data Subject has enforceable rights and effective legal remedies;
(c) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
11.5.5 assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
11.5.6 notify the Customer without undue delay on becoming aware of a Personal Data Breach;
11.5.7 at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the Contract unless required by law to store the Personal Data; and
11.5.8 maintain complete and accurate records and information to demonstrate its compliance with this clause 11.
11.6 The Customer consents to the Supplier appointing a third-party processor of Personal Data under the Contract where required for the purposes of providing the Services. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement which reflect the requirements of the Data Protection Legislation. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 11.6.
11.7 Either party may, at any time on not less than 30 days' notice, revise this clause 11 by replacing it with any applicable controller to processor standard clauses or similar terms adopted by the Information Commissioner or forming part of an applicable certification scheme (which shall apply when replaced by attachment to the Contract).
12. CONFIDENTIALITY
12.1 Each party undertakes that it shall not at any time during the Contract, and for a period of two years after termination or expiry of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party [or of any member of the group of companies to which the other party belongs], except as permitted by clause
12.2. 12.2 Each party may disclose the other party's confidential information:
12.2.1 to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's confidential information comply with this clause 12; and
12.2.2 as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
12.3 No party shall use any other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
13. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.
13.1 The restrictions on liability in this clause 13 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
13.2 Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.
13.3 Nothing in the Contract limits any liability which cannot legally be limited, including liability for:
13.3.1 death or personal injury caused by negligence;
13.3.2 fraud or fraudulent misrepresentation;
13.3.3 breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and
13.3.4 defective products under the Consumer Protection Act 1987.
13.4 Subject to clause 13.3, the Supplier's total liability to the Customer shall not exceed the sums paid or payable by the Customer to the Supplier in respect of the Goods and Services supplied under an Order
13.5 This clause 13.5 sets out specific heads of excluded loss and exceptions from them:
13.5.1 Subject to clause 13.2 and clause 13.3, clause 13.5.2 excludes specified types of loss.
13.5.2 The following types of loss are wholly excluded:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; and
(g) indirect or consequential loss.
13.6 The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.
13.7 This clause 13 shall survive termination of the Contract.
14. TERMINATION
14.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
14.1.1 the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 28 days after receipt of notice in writing to do so;
14.1.2 the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business [or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction];
14.1.3 the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or
14.1.4 the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.
14.2 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date for payment.
14.3 Without affecting any other right or remedy available to it, the Supplier may terminate the Contract for convenience on 14 days written notice.
14.4 Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or all further deliveries of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 14.1.2 to clause 14.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.
14.5 Without affecting any other right or remedy available to it, the Customer may terminate the Contract:
14.5.1 with immediate effect before the Goods have been delivered and before the Services have commenced; or
14.5.2 on 7 days written notice after the Goods have been provided or the Services have commenced.
15. CONSEQUENCES OF TERMINATION
15.1 On termination of the Contract:
15.1.1 the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;
15.1.2 if it is determined that any refund is due to the Customer, including, but not limited to, in the event that the Order is cancelled before the Goods have been delivered or the Services have commenced, the Supplier shall either:
(a) set off such sums against any sums that remain payable under clause 15.1.1; or
(b) refund such sums to the Customer within 14 days of termination.
15.1.3 the Customer shall return all of the Supplier Materials or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract; and
15.1.4 the Customer shall cease to be provided with access to the Emteq Platform.
15.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations and 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 Contract which existed at or before the date of termination or expiry.
15.3 Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.
16. FORCE MAJEURE
Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for four (4) weeks, the party not affected may terminate the Contract by giving 14 days’ written notice to the affected party.
17. GENERAL
17.1 Assignment and other dealings
17.1.1 The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.
17.1.2 The Customer 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 Contract without the prior written consent of the Supplier.
17.2 Notices.
17.2.1 Any notice given to a party under or in connection with the Contract shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
(b) sent by email to the following addresses (or an address substituted in writing by the party to be served):
Supplier: Sussex Innovation Centre, Science Park Square, Brighton, United Kingdom, BN1 9SB
17.2.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, at the time the notice is left at the proper address;
b) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
(c) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
17.2.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
17.3 Severance. If any provision or part-provision of the Contract 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 Contract. If any provision or part provision of the Contract is deemed deleted under this clause 17.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.
17.4 Waiver.
17.4.1 A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
17.4.2 A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.
17.5 No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.
17.6 Entire agreement.
17.6.1 The Contract constitutes the entire agreement between the parties.
17.6.2 Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation [or negligent misstatement] based on any statement in the Contract.
17.7 Third party rights.
17.7.1 Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.
17.8 Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).
17.9 Governing law. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
17.10 Jurisdiction. 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 Contract or its subject matter or formation.
APPENDIX 1 – PLATFORM TERMS
Who we are and what this agreement does
We make this Software available to you, for your use in accordance with the Platform Terms. We are Emteq Limited (trading as Emteq Labs), company number 09708880, whose registered office is at Sussex Innovation Centre, Science Park Square, Brighton, United Kingdom, BN1 9SB.
Where we grant you access to use the Software as a registered user of our platform, we license you to use:
The Supervision application (Software) and any updates or supplements to it.
The service you connect to via the Software and the content we provide to you through it (Service),
as permitted in these terms.
Support for the Software and how to tell us about problems If you want to learn more about the Software [or the Services] or have any problems using it/them please take a look at our support resources at https://support.emteqlabs.com/.
Contacting us (including with complaints).
If you think the Software [or the Services] is/are faulty or misdescribed or wish to contact us for any other reason, please email our customer service team at support@emteqlabs.com.
How we will communicate with you. If we have to contact you, we will do so by email using the contact details you have provided to us.
How you may use the Software, including how many devices you may use it on In return for your agreeing to comply with these terms you may use a copy of the Software within the platform environment only, to view and analyse the results downloaded to the platform and/or obtained from use of the headsets purchased by you.
You must be 18 to accept these terms and use the Software
You must be 18 or over to accept these terms and use the Software.
You may not transfer the Software to someone else We are giving you personally the right to use the Software and the Service as set out above. You may not otherwise transfer the Software or the Service to someone else, whether for money, for anything else or for free. If you sell any device on which the Software is installed, you must remove the Software from it.
Changes to these terms We may need to change these terms to reflect changes in law or best practice or to deal with additional features which we introduce. We will give you at least 30 days’ notice of any change by sending you an email with details of the change. If you do not accept the notified changes you may continue to use the Software and the Service in accordance with the existing terms but certain new features may not be available to you OR will not be permitted to continue to use the Software and the Service.
Update to the Software and changes to the Service
From time to time we may automatically update the Software and change the Service to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively, we may ask you to update the Software for these reasons. If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the Software and the Services. The Software will always work with the current or previous version of the operating system (as it may be updated from time to time) and match the description of it provided to you when you bought it.
We are not responsible for other websites you link to
The Software or any Service may contain links to other independent websites which are not provided by us. Such independent sites are not under our control, and we are not responsible for and have not checked and approved their content or their privacy policies (if any). You will need to make your own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.
Licence restrictions
You agree that you will:
- not rent, lease, sub-license, loan, provide, or otherwise make available, the Software or the Services in any form, in whole or in part to any person without prior written consent from us;
- not copy the Software or Services, except as part of the normal use of the Software or where it is necessary for the purpose of back-up or operational security;
- not translate, merge, adapt, vary, alter or modify, the whole or any part of the Software or Services nor permit the Software or the Services or any part of them to be combined with, or become incorporated in, any other programs, except as necessary to use the Software and the Services on devices as permitted in these terms;
- not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the Software or the Services nor attempt to do any such things, except to the extent that (by virtue of sections 50B and 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are necessary to decompile the Software to obtain the information necessary to create an independent program that can be operated with the Software or with another program (Permitted Objective), and provided that the information obtained by you during such activities:
-- is not disclosed or communicated without the Licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it in order to achieve the Permitted Objective; and
-- is not used to create any software that is substantially similar in its expression to the Software;
-- is kept secure; and
-- is used only for the Permitted Objective;
- comply with all applicable technology control or export laws and regulations that apply to the technology used or supported by the Software or any Service;
- not use the Software to create any other software which is substantially similar to the Software;
- ensure that the Software is not unnecessarily disclosed or communicated without our prior written consent to any third party; and
- not to provide or otherwise make available the Software in whole or in part (including, but not limited to program listings, object and source program listings, object code and source code), in any form to any person without our prior written consent.
Acceptable use restrictions
You must:
- not use the Software or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the Software, any Service or any operating system;
- not infringe our intellectual property rights or those of any third party in relation to your use of the Software or any Service, including by the submission of any material (to the extent that such use is not licensed by these terms);
- not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the Software or any Service;
- not use the Software or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and
- not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.
Intellectual property rights
All intellectual property rights in the Software and the Services throughout the world belong to us (or our licensors) and the rights in the Software and the Services are licensed (not sold) to you. You have no intellectual property rights in, or to, the Software, or the Services other than the right to use them in accordance with these terms.
Our responsibility for loss or damage suffered by you
We are responsible to you for foreseeable loss and damage caused by us. If we fail to comply with these terms, we are responsible for loss or damage you suffer that is a foreseeable result of our breaking these terms or our failing to use reasonable care and skill, but we are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these terms, both we and you knew it might happen.
We do not exclude or limit in any way our liability to you where it would be unlawful to do so.
This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.
When we are liable for damage to your property.
If defective digital content that we have supplied damages a device or digital content belonging to you, we will either repair the damage or pay you compensation. However, we will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us.
We are not liable for business losses.
The Software is made available to you for business purposes and not for domestic or private use. We therefore will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
Limitations to the Software and the Services.
The Software and the Services are provided for general information purposes only. They do not offer advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of information obtained from the Software or the Service. Although we make reasonable efforts to update the information provided by the Software and the Service, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up to date.
Please back-up content and data used with the Software.
We recommend that you back up any content and data used in connection with the Software, to protect yourself in case of problems with the Software or the Service.
Data storage.
Video Data Retention. Our platform retains video data on our cloud servers for a maximum duration of three months from the date of upload. After this period, the data is automatically deleted. Storage Limitation. To ensure fair usage of our cloud storage resources, we impose a cap on the maximum amount of data collected per device. Each device is limited to a maximum of 500 GB of cloud storage. This limitation helps us maintain the efficiency and availability of our services while accommodating the diverse needs of our users.
Data Access by the Company.
As part of our service, we may access sensor data and processed video files, specifically extracting and utilising facial landmarks for research purposes. Rest assured that this access is limited to the extraction of facial landmarks and does not encompass the entirety of your video content. We prioritise user privacy and adhere to strict security measures to protect your data.
Check that the Software and the Services are suitable for you.
The Software and the Services has/have not been developed to meet your individual requirements. Please check that the facilities and functions of the Software and the Services (as described in any applicable documentation) meet your requirements.
We are not responsible for events outside our control.
If our provision of the Services or support for the App or the Services is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event but if there is a risk of substantial delay you may contact us to end your contract with us and receive a refund for any Services you have paid for but not received.
We may end your rights to use the Software and the Services if you break these terms
We may end your rights to use the Software and Services at any time by contacting you if you have broken these terms in a serious way. If what you have done can be put right we will give you a reasonable opportunity to do so. If we end your rights to use the Software and Services: You must stop all activities authorised by these terms, including your use of the Software and any Services. You must delete or remove the Software from all devices in your possession and immediately destroy all copies of the Software which you may have and confirm to us that you have done this. We may remotely access your devices and remove the Software from them and cease providing you with access to the Services.
We may transfer this agreement to someone else
We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.
You need our consent to transfer your rights to someone else
You may only transfer your rights or your obligations under these terms to another person if we agree in writing.
No rights for third parties
This agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
If a court finds part of this contract illegal, the rest will continue in force
Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.
Even if we delay in enforcing this contract, we can still enforce it later
Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.
Which laws apply to this contract and where you may bring legal proceedings
These terms are governed by English law and you can bring legal proceedings in respect of the products in the English courts. If you live in Scotland you can bring legal proceedings in respect of the products in either the Scottish or the English courts. If you live in Northern Ireland you can bring legal proceedings in respect of the products in either the Northern Irish or the English courts.
