Commercial Transport – UK
Observit Ltd (registered number 5278300) whose registered office is at Ground Floor 4 Gleneagles Court, Brighton Road, Crawley, West Sussex, RH10 6AD (OBSERVIT LTD).
* (Customer).
INTERPRETATION
Definitions. In these Conditions, the following definitions apply:
Additional Services: any requirements of * which extend beyond the Installation, work covered by the Maintenance Charge and attending to the Warranty.
Base Unit: the part of the Videmus Unit that processes Transmissions which are downloaded onto the Videmus Access Portal.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions: the terms set out in this contract.
Expiry: the date when the Term expires.
Installation: the installation of the Videmus Units onto the Hosts by OBSERVIT LTD.
Force Majeure Event: has the meaning given to it in clause 11UPDATE FC.
Host: the device or Vehicle owned or leased by * onto which the Videmus Units are installed.
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
Maintenance Charge: the monthly charge levied by OBSERVIT LTD to * in respect of each in service Videmus Unit that has been purchased during the Term as defined in the Order Details
Order Details: the schedule at the start of these Conditions.
Payment Schedule: two different payments:
One-off capital costs – payment is due 21 days from the sign-off at the Installation
The monthly subscription costs are due on 14 days form the invoice being raised and the invoice for the relevant month is raised on the first of the relevant month
Privacy Laws: (1) to the extent the UK GDPR applies, the law of the United Kingdom or of a part of the United Kingdom which relates to the protection of personal data; (2) to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which * or OBSERVIT LTD is subject, which relates to the protection of personal data.
Start Date: the date when the Trials have concluded to *’ satisfaction.
Term: the three month period when the Trials are conducted and three years starting on the Start Date.
Transmission: any data whether that is CCTV footage, information regarding the state and use of the Vehicles that is recorded and processed by the Videmus Unit and stored on the Videmus Access Portal.
Vehicle: any vehicle in the possession of * to which a Videmus Unit will be attached.
Videmus Unit: the equipment sold to * by OBSERVIT LTD which will record Transmissions. The Videmus Unit comprises a Base Unit and lenses, cameras and related equipment.
Videmus Access Portal: the portal hosted and maintained by OBSERVIT LTD to which the Transmissions are downloaded to which * has access.
Warranty: the contractual obligation of OBSERVIT LTD to repair any faults of the Videmus Unit as per express warranties and software faults with any Videmus Unit in the six-year period following the purchase by * of the Videmus Unit in question, but excludes any environmental factors local to the vehicle upon which the Videmus units rely.
In these Conditions, the following rules apply:
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Privacy Laws.
a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
a reference to writing or written does not includes faxes and e-mails.
* acknowledge that the manufacture and delivery of the Videmus Unit is done by third parties beyond the control of OBSERVIT LTD
If * require additional Videmus Units at least six weeks’ notice must be given by * to OBSERVIT LTD.
* shall cooperate with OBSERVIT LTD and in particular to provide OBSERVIT LTD, its employees, agents, consultants and sub-contractors, with access to *’s premises, Hosts and information technology facilities as reasonably required by OBSERVIT LTD.
* shall obtain and maintain all necessary licences, permissions and consents and this includes adherence to Privacy Laws.
DELIVERY AND INSTALLATION OF THE VIDEMUS UNITS
OBSERVIT LTD will give * at least six weeks’ notice of any Videmus Units that are required.
* will promptly agree the date and time for delivery and the Installation.
OBSERVIT LTD shall ensure that:
each delivery of the Videmus Units is accompanied by a delivery note; and
if OBSERVIT LTD requires * to return any packaging material to OBSERVIT LTD, that fact is clearly stated on the delivery note. * shall make any such packaging materials available for collection at such times as OBSERVIT LTD shall reasonably request. Returns of packaging materials shall be at OBSERVIT LTD’s expense.
OBSERVIT LTD shall deliver the Videmus Units to the location that * has confirmed in writing to OBSERVIT LTD.
Any dates quoted for delivery of the Videmus Units are best estimates, and the time of delivery on that date is not of the essence. OBSERVIT LTD shall not be liable for any delay in delivery of the Videmus Units that is caused by a Force Majeure Event or *’s failure to provide OBSERVIT LTD with adequate delivery instructions.
If * fail to accept or take delivery of the Videmus Units within three Business Days of OBSERVIT LTD notifying * that the Videmus Units are ready, then except where such failure or delay is caused by a Force Majeure Event or by OBSERVIT LTD’s failure to comply with its obligations under the Conditions in respect of the Videmus Units then OBSERVIT LTD shall store the Videmus Units until delivery takes place, and charge * for all reasonably related costs and expenses (including insurance).
* must give OBSERVIT LTD sufficient details of its requirements before Installation.
The ownership (being both the legal title and beneficial interest) and risk in the Videmus Units shall pass to * on settlement of the one-off capital invoices, as defined in the payment schedule.
OBSERVIT LTD will provide * with the Warranty for each Videmus Unit sold by OBSERVIT LTD to *.
In the event of a fault the target is for OBSERVIT LTD to get a repair or replacement unit within 7-10 working days installed.
The Warranty will not apply if the defect arises as a result of, wilful damage, negligence by *, or abnormal working conditions.
* must not alter or repair the Videmus Units without consultation with OBSERVIT LTD;
if there is a problem with any Videmus Units then * must contact OBSERVIT LTD without any undue delay and disclose to OBSERVIT LTD all the information that OBSERVIT LTD requires in its discussions with the manufacturer. OBSERVIT LTD must be given a reasonable opportunity to examine the Videmus Unit in question;
Videmus Units must be kept dry and not be tampered with
if the wiring connecting the Base Unit is altered then that will affect the Transmission;
after giving notice in accordance with clause 4.4.2 * must not make any further use of the Videmus Units which are faulty.
* shall be entitled to an assignment of the benefit of all guarantees or warranties which may be given by the manufacturer or supplier to OBSERVIT LTD on the whole or any party of the Videmus Unit in so far as such as * requires such assignment.
If during the Term, * requires any improvements or modifications to any of the Videmus Units, this will incur Additional Charges. OBSERVIT LTD shall give prior written notification to *, advising of any additional charges before undertaking any improvements or modifications to the Videmus Units.
It is *’s responsibility to look at the Transmissions and be satisfied that the Transmission is of sufficient quality for its requirements. OBSERVIT LTD has no knowledge of *’s requirements. If the Transmission is not suitable then it is *’s responsibility to raise this with OBSERVIT LTD.
* acknowledges that where the camera is placed on the Host will affect the quality of the Transmission.
As soon as the Installation is completed it will be given the necessary passwords to access its section on the Videmus Access Portal.
* must keep its password confidential and choose a password that is secure.
that the Transmission is provided in accordance with the expected standard format, for this type of product in this specification and that there are a variety of factors affecting the quality of the footage and its potential use;
it is expected to make its own enquiry regarding the use that * has or expects of the Transmission; and in particular the admissibility or credibility that certain third parties may give to the Transmission;
Both parties will comply with all applicable requirements of the Privacy Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Privacy Laws.
Without prejudice to the generality of clause 6.1, * will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data in the Transmissions to OBSERVIT LTD and/or lawful collection of the Personal Data by OBSERVIT LTD on behalf of * for the duration and purposes of this agreement.
Without prejudice to the generality of clause 6.1, OBSERVIT LTD shall, in relation to any Personal Data processed in connection with the performance by OBSERVIT LTD of its obligations under this agreement:
notify * without undue delay on becoming aware of a Personal Data Breach;
maintain complete and accurate records and information to demonstrate its compliance with this clause 6 and to allow for audits by * or *’s designated auditor and immediately inform * if, in the opinion of OBSERVIT LTD, an instruction infringes Privacy Law.
CHARGES AND PAYMENT
Each month OBSERVIT LTD will invoice * for:
The Monthly Subscription as defined in the Order Table, to which the following may be added
the Monthly One-off hardware charges for Videmus Units purchased and installed by * that month
the Monthly subscription charges for the Videmus Units, as outlined in the Order Table;
the cost of the Monthly subscription charges for any new Videmus Units purchased and installed by * that month,
any Additional Services which shall be invoiced on a time and materials basis and calculated in accordance with OBSERVIT LTD’s standard daily fee rates from time to time and may include any expenses reasonably incurred by the individuals whom OBSERVIT LTD engages in connection with the Additional Services including, but not limited to, travelling expenses, hotel costs, subsistence and any associated expenses, and for the cost of services provided by third parties and required by OBSERVIT LTD for the performance of such services, and for the cost of any materials.
All amounts payable by * under the Conditions are exclusive of amounts in respect of value added tax chargeable from time to time.
If * fails to make any payment due to OBSERVIT LTD under the Conditions by the due date for payment, then * shall pay interest on the overdue amount at the rate of 4% per annum above the base rate of the Bank of England from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. * shall pay the interest together with the overdue amount.
* shall pay all amounts due under the Conditions in full.
Where any amount of an invoice issued by OBSERVIT LTD is in genuine dispute, then that amount which is not disputed shall be re-invoiced separately (together with a credit note for that amount against the original invoice) and must be paid by * by the due date. * shall within 72 hours of receipt of invoice and in writing, advise OBSERVIT LTD if there is any dispute in relation to any invoice and the parties shall use all reasonable endeavours to resolve such dispute as soon as possible.
Any increase in charges by OBSERVIT LTD must be notified by giving * not less than 21 days prior written notice. Any increase in charges can only take effect if agreed by * in writing (such agreement not to be unreasonably withheld or delayed).
All Intellectual Property Rights in or arising out of or in connection with the Videmus Units shall be owned by OBSERVIT LTD. The Transmission is the property of * at all times.
A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or sub-contractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and sub-contractors who need to know it for the purpose of discharging the receiving party’s obligations under the Conditions, and shall ensure that such employees, agents and sub-contractors comply with the obligations set out in this clause as though they were a party to the Conditions. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause shall survive termination of the Conditions.
Nothing in these Conditions shall limit or exclude either party’s liability for:
death or personal injury caused by its negligence, or the negligence of its employees, agents or sub-contractors;
fraud or fraudulent misrepresentation;
Without prejudice to clause 8.1, neither party shall be liable to the other,
whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, loss of production, loss of business opportunity or in respect of any indirect or consequential loss of any nature suffered or alleged arising under or in connection with the Conditions; and
OBSERVIT LTD’s total liability to * in respect of all other direct losses arising under or in connection with the Conditions, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall not exceed the aggregate price payable by * in the 12 month period preceding when the claim arose or where any liability is covered by any of OBSERVIT LTD’s insurance policies to the limit under that relevant policy, whichever is the greater.
This clause 9 shall survive termination of the Conditions.
* acknowledges the provisions these Conditions which specify the roles of the parties and particularly the provision of clauses 4.4, 4.7, 4.8, 5.3.1 and 5.3.2.
Notwithstanding clause 10.2 these Conditions are for the Term.
Without limiting its other rights or remedies, each party may terminate the Conditions with immediate effect by giving written notice to the other party if:
the other party commits a material breach of its obligations under these Conditions and (if such breach is remediable) fails to remedy that breach within ten Business Days after receipt of notice in writing to do so;
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;
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 its creditors other than (where a company) for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
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 the other party (being a company) other than for the sole purpose of a scheme for a solvent amalgamation of the other party with one or more other companies or the solvent reconstruction of that other party;
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;
the holder of a qualifying charge over the assets of the other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
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 clauses 10.2.1 to 10.2.7 (inclusive);
the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business;
On termination of the Conditions for any reason:
* shall immediately pay to OBSERVIT LTD all of OBSERVIT LTD’s outstanding unpaid invoices not in dispute and any interest due;
OBSERVIT LTD will honour any unexpired Warranties;
clauses which expressly or by implication have effect after termination shall continue in full force and effect.
For the purposes of this Conditions, Force Majeure (“FM”) event means an event beyond the reasonable control of either party but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of OBSERVIT LTD or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.
Either party should not be liable to the other as a result of any delay or failure to perform its obligations under these Conditions as a result of a FM event.
If a FM event does take place, the affected party must notify the other within 2 working days of becoming aware of the FM event and the manner and extent to which its obligation are likely to be prevented or delayed.
If any event of FM occurs, the date(s) for performance of the obligation(s) affected shall be postponed for so long as is made necessary by the event of FM provided that if any event of FM continues for a period of or exceeding 30 days, either party shall have the right to terminate the agreement forthwith on written notice to the affected party.
Assignment and other dealings.
If OBSERVIT LTD may at any time assign, transfer, sub-contract or deal in any other manner with all or any of its rights under the Conditions and may sub contract or delegate in any manner any or all of its obligations under these Conditions to any third party if * consent with such consent not being reasonably withheld.
* shall not, without the prior written consent of OBSERVIT LTD, assign, transfer, charge, sub contract, declare a trust over or deal in any other manner with all or any of its rights or obligations under these Conditions.
Ownership
The ownership of SIM-Cards provided by OBSERVIT LTD is retained by OBSERVIT LTD and * must return or destroy such SIM-Cards upon expiry or termination of the Agreement.
The ownership of the Videmus Units and related equipment as defined in the Order form becomes the ownership of * once full payment is made for the hardware.
Notices.
Any notice or other communication given to a party under or in connection with these Conditions shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier.
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.3.1; 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; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by one Business Day after transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
If any provision or part-provision of these Conditions 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 Conditions.
No partnership or agency. Nothing in the Conditions is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
A person who is not a party to the Conditions shall not have any rights to enforce its terms.
Except as set out in these Conditions, no variation of the Conditions, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by OBSERVIT LTD.
Dispute Resolution
In the event of a dispute under this Agreement, the parties shall first attempt to resolve the issues through discussions between the parties’ representatives, for up to 30 days. If the parties are unable to resolve the dispute through such discussions, they may submit the dispute to mediation. Each party shall pay its own fee and costs for mediation and all other alternative dispute resolution mechanisms.
Governing Law and Jurisdiction
This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
SITOC – UK
Interpretation
In these conditions:
Change Notice: as defined in condition 8.1 of these Conditions.
Client: the entity named on the Schedule for whom OBSERVIT has agreed to provide the Services in accordance with these Conditions;
Conditions: the terms and conditions as set out in this document;
Contract: the Conditions, the details set out in the Schedule or any applicable Change Notice.
Data Protection Legislation: the General Data Protection Regulations, the Data Protection Act 2018 or any applicable privacy legislation;
Equipment: any equipment, hardware which OBSERVIT will supply to the Client as is set out in the Schedule;
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, trade names, domain names, rights in get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including without limitation know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, and including without limitation all applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Project Services: the detailed plan in the Schedule describing the Project Services and setting out the estimated timetable (including without limitation project milestones) and responsibilities of each of the parties for, or in connection with, the provision of the Services by OBSERVIT in accordance with the Contract.
Retained Services: any Service regularly provided by OBSERVIT to the Client whether this is MTS retained Service or HTS services or any other assistance offered.
Schedule: the attached document which sets out the details of the Client’s requirements;
Services: means the Retained Services or Project Services to be provided by OBSERVIT for the Client;
OBSERVIT: means OBSERVIT Ltd (company number 5278300).
The headings in these Conditions are for convenience only and shall not affect their interpretation.
Any such expressions as appear herein shall be deemed to include the masculine, feminine or plural thereof where the context so admits.
These Conditions apply regardless of whether the Client requires Project Services, will buy Equipment or receive Retained Services.
The Client hereby engages OBSERVIT and OBSERVIT hereby accepts such engagement to perform the Services for the Client as specified in the Schedule to which these Conditions are attached.
The Client’s purchase order constitutes an offer by the Client to purchase the Equipment specified in these Conditions; accordingly, the execution and return of the acknowledgement copy of the purchase order form by OBSERVIT, or OBSERVIT’s commencement or execution of work pursuant to the purchase order, shall establish a contract for the supply and purchase of those Services on these Conditions. The Client’s standard terms and conditions (if any) attached to, enclosed with, or referred to in, the purchase order shall not govern the Contract.
Subject to condition 18:
OBSERVIT shall commence the Services on the date specified in the Schedule, and continue to provide the Services until the date specified in the Schedule.
the Retained Services shall continue the latter of any dates specified in the Schedule or the termination of the Contract by either party giving to the other not less than 90 days prior written notice.
Once an order for Equipment has been agreed the Client cannot terminate without incurring the agreed price.
OBSERVIT shall provide a project plan which will be mutually agreed in writing between OBSERVIT and the Client. This Contract will be completed when the authorised project services are all delivered.
No employee or agent of OBSERVIT has authority to vary these Conditions orally, and no variation of these Conditions shall be effective or binding on OBSERVIT unless confirmed in writing on or after the date hereof by OBSERVIT’s authorised representative.
It is agreed that these Conditions prevail over the Client’s terms and conditions of purchase unless the Client’s terms and conditions are accepted by OBSERVIT in writing.
The Client’s purchase orders shall constitute offers to buy only and the contract between OBSERVIT and the Client shall come into effect upon OBSERVIT’s acceptance, whether upon OBSERVIT’s formal acknowledgements of the order or otherwise, of the Client’s order.
OBSERVIT shall use all reasonable endeavours to deliver the Project Services by the date quoted for completion but such date is to be treated as an estimate only and completion may be postponed because of conditions beyond OBSERVIT’s reasonable control. In no event shall OBSERVIT be liable for any loss or damage whatsoever arising directly or indirectly from any failure to effect completion on or by such date or otherwise howsoever caused.
Delivery of the Project Services shall be complete when the OBSERVIT has demonstrated to the Client that the work satisfies the “acceptance criteria” specified in the Schedule.
All prices shall be as stated in the project plan. All prices are exclusive of delivery, packaging, packing, shipping, carriage, insurance, VAT and other charges and duties.
The Client shall be responsible (at the Client’s cost) for preparing the delivery location for the delivery of the Equipment and for the provision of all necessary access and facilities reasonably required to deliver and install the Equipment. If OBSERVIT is prevented from carrying out delivery or installation on the specified date because no such preparation has been carried out, OBSERVIT may levy additional charges to recover its loss arising from this event.
OBSERVIT reserves the right, by giving notice to the Client at any time before delivery, to increase the price of such of the Equipment as has not been delivered to reflect any increase in the cost to OBSERVIT which is due to market conditions or any factor beyond the control of OBSERVIT (including without limitation any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment which is requested by the Client, or any delay caused by any instructions of the Client or failure of the Client to give OBSERVIT adequate information or instructions.
Ownership of the Equipment shall pass to the Client on the later of completion of delivery (including without limitation off-loading), or when OBSERVIT has received in full in cleared funds all sums due to it in respect of the Equipment.
Until ownership of the Equipment has passed to the Client under Condition 7.2, the Client shall hold the Equipment on a fiduciary basis as OBSERVIT’s bailee.
Until ownership of the Equipment is transferred to the Client in accordance with Condition 7.2, the Client grants OBSERVIT, its agents and employees an irrevocable licence at any time to enter any premises where the Equipment is or may be stored in order to inspect it, or where the Client’s right to possession has terminated, to remove it. All costs incurred by OBSERVIT in repossessing the Equipment shall be borne by the Client.
On termination of the Contract for any reason, OBSERVIT’s (but not the Client’s) rights in this Condition 7 shall remain in effect.
OBSERVIT agrees to advise and assist the Client as may be expressly set out in the Schedule.
In the performance of such duties OBSERVIT shall comply with all reasonable requests and directions of the Client including complying with all reasonable health, safety and security policies and regulations advised to OBSERVIT by the Client while OBSERVIT is working on the Client’s premises.
OBSERVIT warrants that as far as this is possible in all the circumstances all Services will be performed:
In such a way as not to cause any fault or malfunction in the supported software or the system of the Client;
in such a way as not to cause any interruption to the business processes of the Client (other than any agreed and unavoidable interruption which is required in order to perform the Services in a proper and efficient manner);
in accordance with all applicable laws and regulations;
with that degree of skill, diligence, prudence and foresight which would reasonably be expected from a skilled and experienced provider of services similar to the Services seeking in good faith to comply with its contractual obligations and applicable laws.
The Client shall provide (where applicable) access to the necessary personnel and premises of the Client and to the Client’s systems and software and provide such other assistance as may be necessary for the completion of the Services.
The Client agrees to advise OBSERVIT of any circumstances (including any relevant changes) that it considers may affect the performance of the Services in any material way and acknowledges that should it not do so then that will affect OBSERVIT’s ability to deliver the Services.
The Client shall cooperate with OBSERVIT in respect of the Services and use reasonable endeavours to supply, at its expense, all agreed documents or other materials, and all necessary data or other information relating to the Service (and ensure the accuracy of the same), within a reasonable time.
OBSERVIT reserves the right to invoice for goods and services provided, or in advance if provided for in the Schedule.
Retained Services shall be paid for by direct debit mandate. Any service set-up and additional billing that might occur over and above the retained contract costs will be payable 30 days from invoice date.
The Client shall pay OBSERVIT’s invoices for Project Services within 30 days from the date of presentation of the invoice. All travel and related expenses will be invoiced as accrued at cost and approved in advance by the Client.
If the Client fails to make payment in full on the due date, then without prejudice to any other right or remedy available to OBSERVIT, OBSERVIT shall be entitled to:
terminate the Contract;
suspend any further deliveries of Equipment (whether ordered under the same contract or not) to the Client;
a general lien on all Equipment and property belonging to the Client, exercisable in respect of all sums lawfully due from the Client to OBSERVIT. OBSERVIT shall be entitled, on the expiry of 14 days’ notice in writing, to dispose of such Equipment or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
suspend all Services until payment has been made in full.
pay interest to OBSERVIT on such sums from the due date for payment at a rate equal to 4% above the base rate of the Bank of England.
All payments payable to OBSERVIT under the Contract shall become due immediately on termination of the Contract, despite any other provision. This condition is without prejudice to any right to claim for interest under the law, or any such right under the Contract.
The Client can cancel its order for any Services. Any cancellation request must be received by OBSERVIT at least 5 days before commencement of the Services and OBSERVIT reserves the right to make a reasonable administration charge.
OBSERVIT shall endeavour to comply with reasonable requests by the Client for postponement of delivery of Services but shall be under no obligation to do so and where delivery is postponed by agreement otherwise than due to default by OBSERVIT, the Client shall pay all costs and expenses occasioned thereby and payment for the Services delivered prior to the postponement shall be made within 30 days of receiving an invoice for such Services.
The provisions of this Condition 13 shall only apply in respect of Project Services.
If Project Services are only partly completed and irrespective of why this is the case then OBSERVIT shall be entitled to payment on quantum meruit basis in respect of all work done by OBSERVIT. Any such payment will be demanded without prejudice to OBSERVIT’s other rights and remedies.
The Intellectual Property Rights prepared or created by OBSERVIT prior to this Agreement shall be OBSERVIT’s property unless otherwise expressly agreed in writing between the parties. OBSERVIT grants the Client an irrevocable, worldwide, non-exclusive, sub-licensable, royalty free licence to any such materials used in connection with the provision of the Services.
The Client shall own all Intellectual Property Rights in any report, documentation, information, or other material which OBSERVIT may have access to in providing the Services, or which are created by either party in connection with the provision of the Services. The Client grants OBSERVIT a limited licence to use such reports, documents, information and other materials only for the purpose of providing the Services and shall on the Client’s request provide a full copy of and/or destroy all such reports, documents, information and other materials promptly upon termination of this Agreement.
OBSERVIT shall indemnify and hold harmless the Client in respect of any third party claims that any deliverables infringe a third party’s intellectual property rights.
Confidentiality and Non-Disclosure
OBSERVIT and the Client shall not, other than with the prior written consent of the other, during or after the termination or expiry of this Agreement, disclose any information which the other has specifically stated is confidential, or which is by its nature confidential.
The foregoing provisions shall not prevent the disclosure or use by OBSERVIT of any information which is or hereafter, through no fault of OBSERVIT, becomes public knowledge or to the extent permitted by law.
This condition 15 shall survive the termination of this Agreement.
The following provisions set out the entire financial liability of OBSERVIT (including without limitation any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client in respect of:
any breach of the Contract howsoever arising; and
any representation, misrepresentation (whether innocent or negligent), statement or tortious act or omission (including without limitation negligence) arising out of or in connection with the Contract.
All warranties, conditions and other terms implied by statute or common law are excluded from the Contract to the fullest extent permitted by law.
If OBSERVIT’s employees, contractors or agents suffer any personal injury while performing the Services at the Client’s premises as a direct result of the Client’s negligence or breach of this agreement, the Client shall indemnify OBSERVIT in respect of any third party claims.
If the Client is dissatisfied with OBSERVIT’s performance of the Services the Client shall report the matter to OBSERVIT who will promptly attempt to rectify the complaint in question. Unless the problem relates to anything that the Client has done or omitted to do such rectification shall be done at OBSERVIT’s cost
OBSERVIT shall ensure it has the necessary professional indemnity insurance cover in place to cover potential claims in the event that the Client suffers a loss as a result of proven negligence on the part of OBSERVIT in the execution of the work/services specified in this contract.
Nothing in these conditions excludes or limits the liability of OBSERVIT for:
death or personal injury caused by OBSERVIT’s negligence; or
fraud or fraudulent misrepresentation.
Subject to condition 16.1.2 and condition 16.6 OBSERVIT shall not in any circumstances be liable, whether in tort (including without limitation for negligence or breach of statutory duty howsoever arising), contract, misrepresentation (whether innocent or negligent) or otherwise for:
depletion of goodwill or similar losses; or
loss of anticipated savings; or
loss or corruption of data or information; or
any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
The provisions of clause 17 shall govern any breach of Contract in respect of Equipment.
OBSERVIT will not be liable if the breach is caused by the Client not adhering to its obligations under the agreement.
If requested by the Client OBSERVIT will test the Equipment.
OBSERVIT undertakes (subject to the remainder of this condition 17), at its option, to repair or replace Equipment (other than consumable items) which is found to be defective as a result of faulty materials or workmanship within six months of delivery and installation.
OBSERVIT shall not in any circumstances be liable for a breach of the warranty contained in condition 17 unless:
the Client gives written notice of the defect to OBSERVIT within seven days of the time when the Client discovers or ought to have discovered the defect; and
after receiving the notice, OBSERVIT is given a reasonable opportunity of examining such Equipment and the Client (if asked to do so by OBSERVIT) returns such Equipment to OBSERVIT’s place of business at OBSERVIT’s cost for the examination to take place there.
OBSERVIT shall not in any circumstances be liable for a breach of the warranty in condition 17 if:
the Client makes any use of Equipment in respect of which it has given written notice under condition 17.3.1; or
the defect arises because the Client failed to follow OBSERVIT’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Equipment or (if there are none) good trade practice; or
the Client alters or repairs the relevant Equipment without the written consent of OBSERVIT.
If the other party shall at any time be in default under this Agreement and shall fail to remedy such default within thirty (30) days from receipt of notice in writing from the party not in default specifying such default;
If any such event referred to in condition 18.2 shall occur, termination shall become effective forthwith or on the date set forth in such notice.
The expiry or termination of this Agreement shall be without prejudice to the rights of the parties accrued up to the date of such expiry or termination.
If any such event referred to in condition 18.2.2 shall occur, notice shall be given to the other party within seven (7) days of the event. If action has been taken to have a petition struck out, judgement set aside, or the event otherwise satisfactorily resolved, relevant evidence shall be given to the other party which may then confirm that the termination provisions in condition 18.1 shall be waived.
Both parties will comply with all applicable requirements of the Data Protection Legislation. This condition 19 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation. In this condition 19.1.
Without prejudice to the generality of condition 19.1, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of any Personal Data to OBSERVIT for the duration and purposes of this agreement.
Without prejudice to the generality of condition 19.1, OBSERVIT shall, in relation to any Personal Data processed in connection with the performance by OBSERVIT of its obligations under this agreement:
process that Personal Data only on the written instructions of the Client unless OBSERVIT is required by Data Protection Legislation to otherwise process that Personal Data;
ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Client, 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);
ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
not transfer any Personal Data outside of the European Economic Area
assist the Client, at the Client’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;
notify the Client without undue delay on becoming aware of a Personal Data breach;
at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the agreement unless required by Data Protection Legislation to store the Personal Data.
Either party may, at any time on not less than 30 days’ notice, revise this condition 19.5 by replacing it with any applicable controller to processor standard conditions or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
Neither party shall be liable to the other for any delay or failure to perform its obligations hereunder (other than a payment of money) where such delay or failure results from any cause or causes beyond its reasonable control including without limitation, any of the following: act of God, government act, war, fire, flood, explosion or civil commotion.
This Agreement and the documents referred to in it, constitute the entire agreement and understanding of the parties and supersedes any previous agreement between the parties relating to the subject matter of this Agreement.
Each of the parties acknowledges and agrees that in entering into this Agreement, and the documents referred to in it, it does not rely on, and shall have no remedy in respect of, any statement, representation, warranty or understanding (whether negligently or innocently made) of any person other than as expressly set out in this Agreement as a warranty.
Any documents or notices given hereunder by either party to the other must be in writing and may be delivered personally or by recorded delivery or registered post or via electronic mail and in the case of post will be deemed to have been given 2 working days after the date of posting.
The parties hereby agree that this Agreement and the provisions hereof shall be construed in accordance with the Laws of England and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
No third party shall acquire rights arising from the Contracts (Rights of Third Parties) Act 1999.