spacebands is a multi-sensor wearable that monitors external, environmental hazards, anticipates potential accidents, and gives real-time data on stress in hazardous environments.
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PARTIES
(1) Spacebands Ltd incorporated and registered in England and Wales with company number 12681754 whose registered office is at Sbarc/Spark, Maindy Road, Cardiff, Wales, CF24 4HQ (the Lessor or Spacebands)
(2) As set out in the Order Confirmation (the Customer)
AGREED TERMS
1. Interpretation
1.1 The following definitions and rules of interpretation apply in this agreement.
Business Day means a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Business Hours means the period from 9.00 am to 5.00 pm on any Business Day.
Commencement Date means the date a subscription is activated and hardware devices synced.
Delivery means the transfer of physical possession of the Equipment to the Lessee at the Site.
Delivery Date means the date upon which delivery of Equipment is accepted at the Customer’s Site.
Equipment means the items of hardware described in Schedule 1 and listed in the Order Confirmation, including all substitutions, replacements or renewals of such equipment and all related accessories, manuals and instructions provided for it.
Order Confirmation means the document submitted to the Customer with a list of all Equipment devices to be ordered with Subscriptions.
Rental Payments means the payments made by or on behalf of Lessee for hire of the Equipment. Please note that Rental Payments are separate to subscription fees for the software.
Rental Period means the period of hire as set out in clause 3.
Risk Period means the period during which the Equipment is at the sole risk of the Lessee as set out in clause 6.2.
Site means the Lessee's premises as provided in the Order Confirmation
Total Loss means due to the Lessee's default the Equipment is, in the Lessor's reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated.
VAT means value added tax or any equivalent tax chargeable in the UK or elsewhere.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of this agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person's legal and personal representatives, successors and permitted assigns.
1.4 The Schedules form part of this agreement and shall have effect as if set out in full in the body of this agreement and any reference to this agreement 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 Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision is a reference to it as amended, extended or re-enacted from time to time.
1.9 Unless expressly provided otherwise in this agreement, a reference to legislation or a legislative provision shall include all subordinate legislation made from time to time under that legislation or legislative provisions.
1.10 A reference to writing or written includes email.
1.11 Any obligation on a party not to do something includes an obligation not to allow that thing to be done.
1.12 A reference to this agreement or to any other agreement (including for the Spacebands software dashboard) or document is a reference to this agreement or such other agreement or document, in each case as varied from time to time.
1.13 References to clauses and Schedules are to the clauses and Schedules of this agreement and references to paragraphs are to paragraphs of the relevant Schedule.
1.14 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.
1.15 By signalling their acceptance via an online process, or otherwise using the Equipment, the Lessee hereby agrees to the terms set out in this agreement.
1.16 If there is any conflict between this agreement and the Software as a Service Agreement, the Software as a Service Agreement shall prevail.
2.1 The Lessor shall hire the Equipment to the Lessee for use at the Site, subject to the terms and conditions of this agreement.
2.2 The Lessor shall not, other than in the exercise of its rights under this agreement or applicable law, interfere with the Lessee's quiet possession of the Equipment.
The Rental Period starts on the Commencement Date and shall continue unless and until this agreement is terminated in accordance with the Software as a Service Agreement or this agreement.
4.1 The Lessee shall pay the Rental Payments to the Lessor in accordance with the Software as a Service Agreement.
4.2 The Rental Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by the Lessee at the rate and in the manner from time to time prescribed by law.
4.3 All amounts due under this agreement 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).
4.4 The Lessor may modify the Rental Payments at any time. In the event of any such modification, the Lessor shall provide the Lessee with prior written notice detailing the updated rates before they take effect. The Lessee shall have the right to terminate this agreement if they do not accept the revised Rental Payments, provided that such termination is communicated in writing prior to the new rates coming into force.
5.1 Delivery shall be made by the Lessor upon receipt of any initial payment specified in the Software as a service Agreement. The Lessor shall use all reasonable endeavours to effect Delivery by the Delivery Date. Risk shall transfer in accordance with clause 5.3 of this agreement.
5.2 The Lessee shall procure that a duly authorised representative of the Lessee shall be present at the Delivery of the Equipment and shall follow the installation instructions in the software dashboard or mobile application software to activate and sync the Equipment with the software. Following these steps to successfully activate the Equipment shall constitute conclusive evidence that the Lessee has examined the Equipment and has found it to be in good condition, complete and fit in every way for the purpose for which it is intended (save as regards any latent defects not reasonably apparent on inspection).
5.3 If the Lessee fails to accept delivery of the Equipment on the Delivery Date, then, except where such failure is caused by the Lessor's failure to comply with its obligations under this agreement:
6.1 The Equipment shall at all times remain the property of the Lessor, and the Lessee shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this agreement).
6.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Lessee on Delivery. The Equipment shall remain at the sole risk of the Lessee during the Rental Period and any further term during which the Equipment is in the possession, custody or control of the Lessee (Risk Period) until such time as the Equipment is redelivered to the Lessor.
6.3 The Lessee shall give immediate written notice to the Lessor in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Lessee's possession or use of the Equipment.
7.1 The Lessee shall during the term of this agreement:
7.2 The Lessee acknowledges that the Lessor shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Lessee or its officers, employees, agents and contractors, and the Lessee shall pay a charge of £50 for the replacement of any single piece of Equipment. Please refer to clause 8 for warranty information.
7.3 The Lessee shall indemnify the Lessor in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Lessor arising out of, or in connection with any failure by the Lessee to comply with the terms of this agreement.
8.1 The Lessor warrants that the Equipment shall substantially conform to its specification (as made available by the Lessor), be of satisfactory quality and fit for any purpose held out by the Lessor. The Lessor shall use all reasonable endeavours to remedy, free of charge, any material defect in the Equipment, provided that:
8.2 Subject to clause 8.1, the Lessor will conduct an investigation within 7 Business Days of the Equipment being returned as instructed by the Lessor and report back to the Lessee when the repaired or replaced Equipment will be delivered, which will normally be 2 Business Days.
8.3 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Lessor, the Lessee shall be entitled only to such warranty or other benefit as the Lessor has received from the manufacturer.
8.4 If the Lessor fails to remedy any material defect in the Equipment in accordance with clause 8.1, the Lessor shall, at the Lessee's request, accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payments payable during the remaining term of the agreement.
8.5 All support services in relation to the Equipment are only available during Business Hours.
9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
9.2 Nothing in this agreement limits any liability which cannot legally be limited including liability for:
9.3 Subject to clause 9.2, the Lessor's total liability to the Lessee shall not exceed the total charges paid by the Lessee under this agreement at the date of the liability arising.
9.4 Subject to clause 9.2, the Lessor shall not be liable under this agreement for any:
9.5 Subject to clause 9.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or services provided under this agreement are, to the fullest extent permitted by law, excluded from this agreement.
10.1 Without affecting any other right or remedy available to it, the Lessor may terminate this agreement with immediate effect by giving written notice to the Lessee if:
For the purposes of clause 10.1(b), a material breach means a breach that has a serious effect on the benefit the Lessor would otherwise derive from this agreement.
10.2 This agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment.
11.1 On expiry or termination of this agreement, however caused:
11.2 On termination of this agreement pursuant to clause 10.1, any other repudiation of this agreement by the Lessee which is accepted by the Lessor or pursuant to clause 10.2, without prejudice to any other rights or remedies of the Lessor, the Lessee shall pay to the Lessor on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period, less:
11.3 The sums payable pursuant to clause 11.2 shall be agreed compensation for the Lessor's loss and shall be payable in addition to the sums payable pursuant to clause 11.1(c).
11.4 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.
11.5 Termination or expiry of this agreement 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.
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 7 days, the party not affected may terminate this agreement by giving 7 days' written notice to the affected party.
13.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination or expiry of this agreement, 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
13.2 Each party may disclose the other party's confidential information:
13.3 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.
15.1 This agreement and the Software as a Service Agreement constitutes the entire agreement between the parties.
15.2 Each party acknowledges that in entering into this agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
17.1 Nothing in this agreement 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.
17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
19.1 Unless it expressly states otherwise, 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.
19.2 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.
20.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:
20.2 Any notice shall be deemed to have been received:
20.3 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.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
23.1 If any provision or part-provision of this agreement 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 this agreement.
23.2 If any provision or part-provision of this agreement is deemed deleted under clause 23.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
This agreement 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.
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 this agreement or its subject matter or formation.
