updated July 2018
The Customer wishes to obtain and the Supplier wishes to provide the Services on the terms set out in these terms and conditions.
THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 10 (LIMITATION OF LIABILITY).
Agreed Terms
1. Interpretation
The following definitions and rules of interpretation apply in these Conditions.
1.1 Definitions.
Applicable Laws: all applicable laws, statutes, regulations from time to time in force.
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.
Change Order: has the meaning given in clause 5.1.
Charges: the sums payable for the Services, as set out in Schedule 2.
Conditions: these terms and conditions as amended from time to time in accordance with clauses 5 and 15.
Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.
Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Customer Material: All content and material as provided by the Customer to be published by way of the Services.
Customer Order: the Customer’s order for the Services in the form agreed by the Supplier.
Data Protection Legislation: all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including without limitation, (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation, (for so long as and to the extent that the law of the European Union has legal effect in the UK) (ii) the General Data Protection Regulation ((EU) 2016/679) and (iii) any other directly applicable European Union regulation relating to privacy.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) 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 Services as set out in the Customer Order, the Customer's written acceptance of a quotation by the Supplier, or in the form as accepted by the Supplier, at the Supplier’s discretion, as the case may be.
Services: the services as set out in Schedule 1.
SaaS Company: Crossbow and Hills SL C/Monestir 23 08034 Barcelona trading as emotions AR as at the date of these Terms or such other company as the Supplier may contract with, at its absolute discretion, in order to provide the Services.
Supplier's Equipment: any equipment, including tools, systems, cabling or facilities, provided by the Supplier to the Customer and used directly or indirectly in the supply of the Services.
VAT: value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.2 Clauses, Schedule and paragraph headings shall not affect the interpretation of the Conditions.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedules form part of the Conditions and shall have effect as if set out in full in the body of the Conditions. Any reference to the Conditions includes the Schedules.
1.5 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.6 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.7 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.8 The Conditions shall be binding on, and enure to the benefit of, the parties to the Conditions and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party's personal representatives, successors and permitted assigns.
1.9 A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.10 A reference to a statute or statutory provision shall include all subordinate legislation made from time to time under that statute or statutory provision.
1.11 A reference to writing or written documents include number/fax or email.
1.12 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.13 A reference to the Conditions or to any other agreement or document referred to in the Conditions is a reference of the Conditions or such other agreement or document as varied or novated (in each case, other than in breach of the provisions of the Conditions) from time to time.
1.14 References to clauses and Schedules are to the clauses and Schedules of the Conditions and references to paragraphs are to paragraphs of the relevant Schedule.
1.15 Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Basis of Contract, Commencement and duration
2.1 The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2 The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).
2.3 Any samples, drawings, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained in the Supplier's catalogues or brochures, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.
2.4 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 trade, custom, practice or course of dealing.
2.5 The Contract shall commence on the date when it has been signed by all the parties and shall continue, unless terminated earlier in accordance with clause 11 (Termination).
2.6 The Supplier shall provide the Services to the Customer in accordance with the Conditions.
3. Supplier's responsibilities
3.1 The Supplier shall use reasonable endeavours to supply the Services in accordance with the Conditions in all material respects.
3.2 The Supplier shall use reasonable endeavours to meet any performance dates but any such dates shall be estimates only and time for performance by the Supplier shall not be of the essence of the Conditions.
3.3 Without prejudice to both the remainder of this clause 3 and clause 10, the Supplier agrees that it will use its best endeavours to liaise with the SaaS Company in the event of any technical disruption to the Services, over which the Supplier has no control, but the Supplier is not liable for any technical interruption to the Services.
4. Customer's obligations
4.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services;
(b) appoint a manager for the Services and that person shall have the authority to contractually bind the Customer on matters relating to the Services (including by signing Change Orders);
(c) provide, for the Supplier, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, access to the Customer's premises, office accommodation, data and other facilities as reasonably required by the Supplier including any such access as is specified in Schedule 1;
(d) provide to the Supplier in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) reasonably required by the Supplier in connection with the Services and ensure that they are accurate and technically complete and legally compliant;
(e) ensure that any Customer Material does not contain malware, malicious or harmful code or offensive, degrading, indecent, libellous, obscene, pornographic or otherwise objectionable content.
(f) inform the Supplier of all health and safety and security requirements that apply at any of the Customer's premises.
(g) obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable the Supplier to provide the Services, including in relation to the installation of the Supplier's Equipment, the use of all Customer Materials and the use of the customer's equipment insofar as such licences, consents and legislation relate to the Customer's business, premises, staff and equipment, in all cases before the date on which the Services are to start;
(h) keep and maintain the Supplier's Equipment in accordance with the Supplier's instructions from time to time and shall not dispose of or use the Supplier's Equipment other than in accordance with the Supplier's written instructions or authorisation;
(i) ensure use of the Services is and will be in strict compliance with all applicable laws and regulations;
(j) warrant that the Customer Material does not infringe any intellectual property law, rule, regulation, restriction or similar and will indemnify the Supplier for any loss caused to the Supplier in the event of any breach of this clause.
4.2 If the Supplier's performance of its obligations under the Contract is prevented or delayed by any act or omission of the Customer, its agents, subcontractors, consultants or employees, then, without prejudice to any other right or remedy it may have, the Supplier shall be allowed an extension of time to perform its obligations equal to the delay caused by the Customer.
5. Change control
5.1 Either party may propose changes to the scope or execution of the Services but no proposed changes shall come into effect until a Change Order has been signed by both parties. A Change Order shall be a document setting out the proposed changes and the effect that those changes will have on:
(a) the Services and
(b) any of the terms of the Contract.
5.2 If the Supplier wishes to make a change to the Services it shall provide a draft Change Order to the Customer.
5.3 If the Customer wishes to make a change to the Services:
(a) it shall notify the Supplier and provide as much detail as the Supplier reasonably requires of the proposed changes, including the timing of the proposed changes; and
(b) the Supplier shall, as soon as reasonably practicable after receiving the information at clause 5.3(a), provide a draft Change Order to the Customer.
5.4 If the parties:
(a) agree to a Change Order, they shall sign it and that Change Order shall amend the Conditions.
5.5 The Supplier may charge for the time it spends on preparing and negotiating Change Orders which implement changes proposed by the Customer pursuant to clause 5.3 on a time and materials basis at the Supplier's daily rates specified in Schedule 2.
6. Charges and payment
6.1 In consideration of the provision of the Services by the Supplier, the Customer shall pay the Charges.
6.2 The Charges exclude the following which shall be payable by the Customer monthly in advance, following but not subject to submission of an appropriate invoice:
(a) the cost to the Supplier of any materials or services procured by the Supplier from third parties for the provision of the Services.
6.3 The Supplier may, following the expiry of the minimum term of the Contract as shown on the Order, at its absolute discretion on either 1 July or 1 January after the commencement of the Contract increase the Charges.
6.4 The Customer shall pay the Supplier for the Charges at the intervals specified both in Schedule 2 and the Customer Order.
6.5 The Customer shall pay each invoice submitted to it by the Supplier within 7 days to a bank account nominated in writing by the Supplier from time to time.
6.6 Without prejudice to any other right or remedy that it may have, if the Customer fails to pay the Supplier any sum due under the Contract on the due date:
(a) 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 6.6(a) will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%;
(b) the Supplier may suspend all or part of the Services until payment has been made in full.
6.7 All sums payable to the Supplier under the Contract:
(a) are exclusive of VAT, and the Customer shall in addition pay an amount equal to any VAT chargeable on those sums on delivery of a VAT invoice; and
(b) 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).
7. Intellectual property rights
7.1 In relation to the Services:
(a) the Supplier and/or the SaaS Company shall retain ownership of all Intellectual Property Rights in the Services;
(b) the Customer grants the Supplier, or shall procure the direct grant to the Supplier of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of the Contract for the purpose of supply of the Services; and
(c) the Customer shall not sub-license, assign or otherwise transfer the rights granted in clause 7.1
7.2 The Customer shall retain ownership of all Intellectual Property Rights in the Customer Materials.
7.3 The Customer:
(a) warrants that the receipt and use of the Customer Materials in the performance of the Contract by the Supplier, its agents, subcontractors or consultants shall not infringe the rights, including any Intellectual Property Rights, of any third party; and
(b) shall indemnify the Supplier in full against all costs, expenses, damages and losses, including any interest, fines, legal and other professional fees and expenses awarded against or incurred or paid by the Supplier as a result of or in connection with any claim brought against the Supplier, its agents, subcontractors or consultants arising out of, or in connection with, the receipt or use in the performance of the Contract of the Customer Materials;
(c) grants both the Supplier and the SaaS Company a perpetual, irrevocable worldwide royalty free non-exclusive licence to use the Customer Material for the purpose of supplying the Services.
8. Data protection and data processing
8.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the data controller and both the Supplier and the SaaS Company are the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation.
8.3 Without prejudice to the generality of clause 8.1, 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 for the duration and purposes of the Contract.
8.4 The Customer consents to the Supplier appointing the SaaS Company as a third-party processor of Personal Data under the Contract. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 8.
9. Confidentiality
9.1 Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as permitted by clause 9.2.
9.2 Each party may disclose the other party's confidential information:
(a) to its employees, officers, representatives 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 9; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
9.3 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.
10. Limitation of liability
10.1 Nothing in the Conditions shall limit or exclude the Supplier's liability for:
(a) death or personal injury caused by its negligence;
(b) fraud or fraudulent misrepresentation; or
(c) breach of the terms implied by section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession) or any other liability which cannot be limited or excluded by applicable law.
10.2 Subject to clause 10.1, the Supplier shall not be liable to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of or damage to goodwill;
(f) loss of use or corruption of software, data or information; or
(g) any indirect or consequential loss.
10.3 Subject to clause 10.1, the Supplier's total liability to the Customer, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract shall be limited to the Charges paid by the Customer under the Contract.
10.4 The terms implied by 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.
11. Termination
11.1 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:
(a) the other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 75 days after being notified in writing to do so;
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 as if the words "it is proved to the satisfaction of the court" did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(c) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with any of its creditors;
(d) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party (being a company);
(e) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company);
(f) the holder of a qualifying floating charge over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
(g) a person becomes entitled to appoint a receiver over all or any of the assets of the other party or a receiver is appointed over all or any of the assets of the other party;
(h) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within [14] days;
(i) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.1(b) to clause 11.1(h) (inclusive); or
(j) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
(k) the Customer Material poses any security risk or adversely impacts on any system employed to supply the Services.
11.2 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:
(a) the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
(b) there is a change of control of the Customer.
11.3 Without prejudice to the remainder of this clause 11 either party Customer may terminate this agreement for convenience at any time, in whole or in part, on giving not less than 3 (three) months prior written notice to the other party.
12. Consequences of termination
12.1 On termination or expiry of the Contract:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of the Services supplied but for which no invoice has been submitted, the Supplier may submit an invoice, which shall be payable immediately on receipt;
(b) the Customer shall return all of the Supplier's Equipment. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of the Supplier's Equipment. Until they have been returned or repossessed, the Customer shall be solely responsible for their safe keeping;
(c) the Supplier shall on request return any of the Customer Materials not used up in the provision of the Services; and
(d) all trigger images will be disarmed and no further access to data will be available and the parties agree that any restart of the Service after the termination the Contract will not allow the Customer access to either any disarmed trigger images or data associated with said images them; and
(e) all clauses shall continue in force.
12.2 Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
13. Force majeure
13.1 Force Majeure Event means any circumstance not within a party's reasonable control including, without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including without limitation imposing an export or import restriction, quota or prohibition;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts [(other than in each case by the party seeking to rely on this clause, or companies in the same group as that party);
(h) non-performance by suppliers or subcontractors; and
(i) interruption or failure of either utility service or technical service by Emotions AR.
13.2 Provided it has complied with clause 13.4, if a party is prevented, hindered or delayed in or from performing any of its obligations under the Contract by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
13.3 The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party.
13.4 The Affected Party shall:
(a) as soon as reasonably practicable after the start of the Force Majeure Event, notify the other party of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the agreement; and
(b) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations.
13.5 If the Force Majeure Event prevents, hinders or delays the Affected Party's performance of its obligations for a continuous period of more than 2 weeks, the party not affected by the Force Majeure Event may terminate the Contract by giving 1 weeks' written notice to the Affected Party.
14. Assignment and other dealings
14.1 The Contract is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
14.2 The Supplier may at any time assign, mortgage, charge, declare a trust over or deal in any other manner with any or all of its rights under the Contract.
15. Variation
15.1 Subject to clause 5 (Change control), no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16. Waiver
16.1 A waiver of any right or remedy under the Contract or by law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
16.2 A failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall not constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict any further exercise of that or any other right or remedy. No single or partial exercise of any right or remedy provided under the Contract or by law shall prevent or restrict the further exercise of that or any other right or remedy.
17. Rights and remedies
The rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
18. Severance
18.1 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
18.2 If any provision or part-provision of the Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
19. Entire agreement
19.1 The Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
19.2 Each party agrees that it shall have no remedies in respect of 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.
20. Conflict
If there is an inconsistency between any of the provisions of the Contract and the provisions of the Schedules, the provisions of the Contract shall prevail.
21. No partnership or agency
21.1 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.
21.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22. Third party rights
22.1 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.
23. Notices
23.1 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 Business Day delivery service at its registered office (if a company) or its principal place of business (in any other case).
23.2 Any notice shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by pre-paid first-class post or other next Business Day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service.
23.3 This clause does not apply to the service of any proceedings or any documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
23.4 A notice given under the Contract is not valid if sent by email.
24. Counterparts
24.1 The Contract may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
25. Governing law
2. 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.
26. Jurisdiction
3. 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.
The Contract has been entered into on the date stated at the beginning of it.
Schedule 1 Services Details
1. Services
The provision of a non-exclusive, non-assignable, royalty free, worldwide right of access to the Vu-AR platform, an augmented reality web service, augmented reality browser app suite, application programming interfaces and other related means, services, features and functionalities as powered by the SaaS Company.
Schedule 2
Charges, costs and payment
Charges
As set out in the Customer Order
Payment terms
As set out in the Customer Order
