Alexander Astin T/A IMMERSE HEALTH Service Terms and Conditions
Alexander Astin t/a Immerse Health shall supply equipment and Services as requested by the customer in accordance with the Terms and conditions of this agreement.
1 .DEFINITIONS AND INTERPRETATIONS
AGREEMENT: means this agreement together with any Rental Agreement referred to herein.
The Company: Alexander Astin T/A IMMERSE HEALTH. Tuchbands Ltd - Accountants, 925 Finchley Road, London, United Kingdom, NW11 7PE. Company number 10602934.
CUSTOMER FACILITIES: the systems, software, equipment, utilities systems and connections, network communications, telecommunications connections, fixtures, and other items of a similar nature at the Site.
CHARGES: Any or all of the charges/fees to be paid by the Customer to The Company for the provision of the goods and services pursuant to this agreement and inter alia including any charges referred to on the Rental Agreement
COMPANY: means Alexander Astin T/A IMMERSE HEALTH Communications Limited.
DOCUMENTATION: Any specifications, technical manuals, user instructions or any other documentation supplied by The Company.
EQUIPMENT: Any equipment supplied by The Company to the customer.
IP RIGHTS: All Intellectual Property Rights including, without limitation, copyright, patents, trademarks, registered designs, design rights, mask works, know how and all other similarly protected rights.
RENTAL AGREEMENT: means the Rental Agreement signed by the parties that the Company deems to constitute the Rental Agreement , which describes the Equipment and Services to be provided.
PROPER USE: the use of equipment strictly in accordance with Documentation and/or any instructions and/or recommendations notified by The Company.
SERVICES: means any and all of the Services that the Company has agreed to provide the Customer as set out in the Rental Agreement.
SITE: means any or all of the Customer’s sites at which the Company is providing the Customer with services or
equipment.
WORKING DAY: means 09:00 to 17:00 Monday to Friday but excluding public holidays in the United Kingdom recognised by the Company. Headings are inserted in this Agreement for ease of reference and do not affect the interpretation of this Agreement. Any reference in this Agreement to any provision of a Statute, shall be construed as a reference to that provision, as amended, re-enacted or extended at the relevant time.
2. DURATION AND SCOPE OF THIS AGREEMENT
2.1 Until termination for whatever reason, the Company agrees to provide the Service to the Customer in accordance with this Agreement and in consideration, the Customer agrees to use the service in accordance with this Agreement and pay the Charges when due.
2.2 This agreement shall commence on the commencement date specified on the Rental Agreement and The Company shall continue to provide the service for either the minimum period Bring twelve months (if no such other period is set out on the Rental Agreement ) and thereafter continuing for a further twelve months (or any other such period as set out on the Rental Agreement ) with each further period starting on the anniversary of the commencement date unless terminated in accordance with Paragraph 2.3. In the event that the Service is added to, amended or changed in any way then a new Minimum Period or Renewal Period (as the case may be) will commence on the date of the new installation or amendment or change for the entire agreement, unless the Company agrees otherwise at its absolute discretion
2.3 Each party may terminate this Agreement on not less than 90 Days’ notice in writing to expire either at the end of the minimum term or each anniversary thereof.
2.4 Subject to any variation under clause 2.7 the Agreement shall be on these conditions to the exclusion of all other terms (including any terms or conditions that the Customer purports to apply under any Rental Agreement, specification or other documentation).
2.5 No terms or conditions endorsed on, delivered with or contained in the Customer’s Rental Agreement, specification or other document shall form part of Agreement simply as a result of such document being referred to in the Agreement.
2.6 Each Rental Agreement or acceptance of a quotation by the Customer from The Company shall be deemed to be an offer by the Customer to proceed subject to these conditions. Unless specifically detailed on the Rental Agreement. no end points of headsets are included in the agreement.
2.7 Any variation to these Conditions and any representations about the Equipment or Services shall have no effect unless expressly agreed in writing and signed by a Director of The Company.
3.0 WARRANTIES AND REPAIR:
3.1 During the period of the Agreement, in consideration of the payment of the service charge, The Company shall as soon as is reasonably practicable after notification in accordance with Clause 9.1, provide a service to carry out during normal business hours, any service of and repairs of the VR System and equipment named on the front of this Agreement as shall be necessary, as a result of the wear and tear arising from the proper use of the equipment (including the provision of any necessary materials and spare parts, save for consumable items which will be charged for in accordance with The Company’s current list price).
3.2 All service, repairs or replacements may be carried out at the premises where the equipment is installed or elsewhere at the discretion of The Company.
3.3 The Company shall carry out its obligations under this Agreement with the reasonable care and skill of a reasonably competent technology provider.
4.0 CUSTOMER FACILITIES:
4.1 The Company shall inspect the Customer Facilities and ensure that they are complete, in good working order and ensure that all specifications are not less than the minimum determined by The Company.
4.2 The Company will advise the customer in writing if for the purposes of supplying the services contained on the Rental Agreement. The Customer Facilities are not suitable and what necessary steps are to be taken by the Customer to make the Customer Facilities suitable.
4.3 The Customer shall use their reasonable endeavors to complete any of the works notified by The Company at each location within 7 days of notification.
4.4 The Company may perform repeat inspections (and the procedure outlined in clause 3.2) until The Company are satisfied the Customer Facilities are suitable.
5.0 TERMS OF PAYMENT
5.1 Payment of sums due from the Customer to The Company shall be made within 14 days of receipt of an invoice from The Company.
5.2 All payments are via Direct Debit to the Company
5.3 Charges expressed are exclusive of tax and duties including without limitation, value added tax which shall be paid by the customer, at the rate and in the manner provided by the law governing this agreement.
5.4 In the event of non-payment of any of the sums due within the prescribed period The Company reserves the right to charge interest on the outstanding amount at the rate of 7.5% above the Bank of England base rate per month calculated on a daily basis until such time as payment is made.
5.5 Both parties acknowledge that the time for payment of the Charges is of the essence and notwithstanding clause 4.3, if the Customer fails to pay any sum by the due date, The Company may at Its own discretion and without prejudice to any other remedy at any time after payment has become due, terminate or suspend the performance of this Agreement.
5.6 If the Company terminate this Agreement for any reason, any sums including interest for the late payment will immediately become payable in full.
6.0 CHARGES:
6.1 The Annual Service Charge shall be the charge specified on the front page of the Rental Agreement. For each subsequent year during the continuation of this agreement the Annual Service charge shall be set in accordance with the Company’s current charges at the beginning of that year for the type and quantity of equipment specified in the Rental Agreement.
6.2 The Annual Service Charge for each year during which this Agreement continues shall be paid before the date on which that year begins together with any applicable VAT or other Tax.
6.3 If the Customer gives notice that they wish to terminate the contract before the expiry of the minimum term referred to in clause 2.3 then the Company shall be entitled to liquidated damages calculated in the following manner, which the parties agree to be a genuine attempt to pre-estimate the Company’s loss in such circumstances:
6.3.1 If the minimum term is for 24 months, liquidated damages shall be calculated as:
6.3.1 (a) if the contract is to terminate within 12 months of the commencement date, the Company shall be entitled to be paid in full for the fees due for the minimum term of the contract
(b) if the contract is to terminate more than 12 months from the commencement date but less than 24 months from the commencement date, the Company shall be entitled to be paid in full for the minimum term
If the minimum term is for 60 months, liquidated damages shall be calculated as:
6.3.2 (a) if the contract is to terminate within 12 months of the commencement date, the Company shall be entitled to be paid in full for the minimum term.
6.3.2 (b) if the contract is to terminate more than 12 months from the commencement date but less than 24 months from the commencement date, the Company shall be entitled to be paid in full for the minimum
6.3.2 (c) if the contract is to terminate more than 24 months from the commencement date but less than
36 months from the commencement date, the Company shall be entitled to be paid in full for each of the first three years of the contract and 70% of the fees due for the fourth and fifth years of the contract, and
6.3.2 (d) if the contract is to terminate more than 36 months from the commencement date but less than 48 months from the commencement date, the Company shall be entitled to be paid in full for each of the first four years of the contract and 70% of the fees due for the final year of the contract.
6.3 If notice is not given as per paragraph 2.3 and the contract is either in the last year or after the minimum term of the contract, then payment is due up to the end of the next minimum contract term.
7.0 EXCLUSIONS
7.1 Unless specified in the equipment section of the Rental Agreement this Agreement does not cover any other item such as but not limited to: overhead, underground or external cabling, chargers, wifi or any other additional equipment.
7.2 Any service, repairs, replacements or customer visits caused other than by fair wear and tear, (including diagnostic checks and alterations made by remote access) may be carried out at the Customer’s expense at The Company’s current level of charges, including but not limited to:
7.2.1 accidental damage, lightning strikes, neglect or Abuse;
7.2.2 use of equipment in excess of any maximum usage specified by the manufacturer;
7.2.3 environmental issues including but not limited to failure of electrical power, power surges, air conditioning;
7.2.4 movement or relocation of the equipment not performed by The Company;
7.2.5 hardware, accessories, software or other devices not referred to in the Rental Agreement
7.2.6 Furnishing of the equipment with accessories or attachments, painting or finishing the equipment or removing accessories or attachments.
7.3 The response time for these faults will not be guided by the service level shown on the front of this Agreement.
7.4 This Agreement does not cover fault or defect occurring in any equipment not supported and/or supplied by The Company including but not limited to network or other third party equipment and facilities.
7.5 The Company may from time to time use certain goods and services from third parties on behalf of the Customer in connection with this Agreement; and the Customer agrees that The Company shall not be liable in respect of any failure by such third parties to supply such goods and services and the Customer shall be solely responsible for pursuing any available remedies against the third parties.
8.0 ALTERATIONS TO EQUIPMENT AND SERVICES
8.1 All alterations to equipment, services and software (including the removal and reinstallation to a new site) shall be carried out by an installer only authorised by the Company.
8.2 Any such alterations to any Equipment and wiring shall be notified to the Company within 14 working days of the commencement of the works.
8.3 The Company may adjust the Annual Service Charge if the Equipment is altered. In this event, the Customer shall sign a supplementary contract (to include the new Equipment) in accordance with clause 6.1.
9.0 CUSTOMER RESPOSIBILITIES AND LIABILITIES
9.1 The customer shall notify The Company either orally or in writing as soon as possible of any fault in the Equipment or of any work or service that may be necessary. The Company may at its option charge for any repairs, faults or damage that have arisen as a result of the Customer’s failure to notify The Company promptly.
9.2 The Customer shall not allow the Equipment to be moved, interfered with or tampered with and shall at all times comply with all reasonable advice given by The Company in relation to the operation and care of the Equipment. Nor should any software installed by the company be removed or ceased by the Customer. The Company may at its own option charge for any repairs carried out due to faults or damage that have been caused by such moving, interference or tampering, or by any failure by the Customer to comply with the maintainer’s directions.
9.3 The Customer shall:
9.3.1 ensure that any IP Rights which The Company is required to use or modify in Rental Agreement to supply service services is /are either proprietary to the Customer or properly licensed to the Customer and that The Company is properly authorised to use or modify the IP Rights. The Customer shall indemnify and hold harmless The Company in respect of any costs, expenses, damages, third party actions or claims arising out of any actual or alleged infringement of third party IP Rights by The Company in respect of any costs, expenses, damages, third party actions or claims arising out of any actual or alleged infringement of third party IP Rights by The Company or the Customer.
9.3.2 ensure that it’s employees or other independent Contractors co-operate reasonably with The Company and its employees.
9.3.3 take all reasonable steps to ensure the Health and Safety of The Company employees, agents or Independent contractors subject to such employees, agents and independent contractors complying with any Customer’s health and safety policy notified to the Company by the Customer in writing.
9.3.4 Promptly furnish The Company with such information (including without limitation IP addresses) and documents as requested by The Company;
9.3.5 Pay all charges invoiced by The Company;
9.3.6 ensure that adequate electrical power is supplied to the Equipment;
9.3.7 Store and maintain Equipment in accordance with Documentation;
9.3.8 shall give the Company and it’s representatives unhindered access to the Equipment and shall at its expense make available mains electric supply and other facilities and co-operation as may be necessary for the proper and prompt repair or service of the Equipment under this Agreement;
9.3.9 use only media, content and consumables approved and authorised by the Company in writing (The Company’s approval not to be unreasonably withheld);
9.3.10 comply with all statutory requirements, bye-laws, obligations, regulations, recommendations or instructions relating to the use and or testing of the Equipment;
9.3.11 shall obtain and pay for any such licenses, wayleaves, suitable private wires, jack sockets or any other items necessary for the operation of the Equipment.
9.3.12 ensure that only The Company’s personnel are permitted to maintain, service or carry out any adjustments to the
Equipment.
9.4 The Customer is solely responsible for maintaining the Customer Facilities, in Rental Agreement that the Equipment functions in accordance with the documentation.
10 IP/RIGHTS, SOFTWARE
10.1 The Customer acknowledges that any and all of the IP Rights/Software subsisting in or used in connection with the Equipment and Services shall be and shall remain in sole property of The Company or such other party as may be identified therein or thereon, and the Customer shall not at any time dispute such ownership.
10.2 In the event that new inventions, designs or processes evolve in performance of or as a result of this Agreement, the Customer acknowledges that the same shall be in property of The Company unless otherwise agreed in writing with a director of The Company.
10.3 Ownership of any hardware/software/content covered in the rental agreement is with the Company
10.4 No nonproprietary applications/content may be used/downloaded on the hardware/software covered in this rental agreement without prior authorization from the Company.
11. CONFIDENTIALITY AND DATA PROTECTION
11.1 The Company is subject to the provisions of the articles of the General Data Protection Regulations (GDPR)
11.2 Where the Company acts as a personal data processor the Company confirms that they:
(i) will only act on the written instructions of the controller (unless required by law to act without such instructions);
(ii) will ensure that employees processing the data are subject to a duty of confidence;
(iii) will take appropriate measures to ensure the security of the data processing;
(iv) will only engage a sub-processor with the prior written consent of the data controller and only engage with such under a written contract to comply with Article 28 of the GDPR;
(v) will assist the data controller in providing subject access and allow data subjects to exercise their rights under the GDPR;
(vi) will assist the data controller in meeting its GDPR obligations in relation to the security of processing, the notification of personal data breaches and data protection impact assessments;
(vii) will delete or return all personal data to the controller as requested at the end of the contract;
(viii) will make available all information necessary and submit to audit and inspection to demonstrate compliance with obligations laid down by Article 28 of the GDPR, and tell the controller immediately if it is asked to do something infringing the GDPR or other data protection law of the EU or a member state.
11.3 Where the Company acts as the data controller it requires the provisions of 12.2 to be adhered to by the relevant data processor.
11.4 The Customer agrees to keep all Confidential Information confidential, to disclose it only to its employees that need to know it and to use it exclusively for the purposes contemplated by this Agreement. This Clause shall not apply to information that the Customer can prove:
11.4.1 Is in the public domain otherwise than by the Customer’s breach;
11.4.2 It already had in its possession prior to obtaining the information directly or indirectly from the Company; or
11.4.3 A third party subsequently disclosed to the Customer free of restrictions on disclosure and use. This Clause shall survive for three (3) years from when the Customer acquired that Confidential Information from the Company.
11.5 The Customer may disclose Confidential Information if required to do so by law, regulation or rules of a securities exchange or other regulatory authority, but only to the extent of the relevant requirement. The Customer shall promptly inform the Company of the requirement and will co-operate with the Company in the disclosure.
11.6 The use of any information may be subject to (and therefore the Customer shall comply with) the General Data Protection regulations, EU Data Protection Directives and The Telecommunications (Data Protection and Privacy) Regulations 1999.The Company reserves the right to withhold Calling Line Identification if it believes that the Customer has failed to comply with this Clause or the Company receives a complaint from any relevant authority.
11.7 Our Privacy Policy describes the types of information we may hold under this contract and why this information is held. Our Privacy Policy is disclosed on our website and may be updated from time to time
12 LIMITATIONS AND LIABILITY
12.1 Except as otherwise expressly set out in this Agreement, the Company provides no warranties, conditions, guarantees, undertaking or term expressed or implied, as to the condition or quality of service and all such warranties, conditions or guarantees implied by or expressly incorporated as a result of custom and practice, statute, common law or otherwise are hereby expressly excluded so far as permitted by law. The Company’s duty in performing any obligations under this Agreement is only to exercise reasonable care and skill of a reasonably competent communications provider.
12.2 Neither party excludes or limits any liability for death or personal injury.
12.3 The liability of The Company in respect of breaches of this Agreement or of any other duty to the Customer or for negligence in connection with the subject matter of this Agreement shall be limited to the value of charges for the minimum period referred to herein.
12.4 Notwithstanding anything to the contrary in this Agreement, but subject to clause 12.2, the Company shall not be liable to the Customer as expressed, implied or otherwise for loss of profits, business, revenue, data, goodwill, anticipated savings, direct or indirect consequential loss or damage.
12.5 Each party agrees that the limitations of liability contained in this clause have been agreed between the parties in the context of the other provisions of this Agreement and satisfy the requirement of reasonableness within the meaning of subsection 2(2) and Section 11 of the Unfair Contact Terms Act 1977.
12.6 If for any reason this limit is found to be unlawful or invalid by a Court of appropriate jurisdiction, the Company’s entire liability as referred to in this clause shall not exceed £1,000,000 for any one incident or series of incidents during the term of this Agreement.
13. FRAUD
13.1 For the avoidance of any doubt, the Customer responsibilities include but are not limited to;
(i) Secure implementation and management of their systems including any hardware not provided by the Company such as Firewalls
(ii) Maintaining security and confidentiality of authentication details for online service portals and other services.
(iii) Mitigate exposure to any suspected or known security breach by resetting passwords, requesting that accounts are disabled and reporting the incident to the Company
13.2 The Customer accepts full and complete liability for any costs incurred as a result of fraud.
13.3 The Company recommends the Customer obtains professional security advice with regard to the equipment and Services provided.
14.0 FORCE MAJEURE
14.1 . Neither party shall be liable in damages or have the right to terminate this Agreement for any delay or default in performing hereunder if such delay or default is caused by conditions beyond its control including, but not limited to Acts of God, Government restrictions (including the denial or cancellation of any export or other necessary license), wars, insurrections and/or any other cause beyond the reasonable control of the party whose performance is affected.
14.2 Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) to the extent said failures or delays are proximately caused by causes beyond that party's reasonable control and occurring without its fault or negligence, including, without limitation, failure of Companys, subcontractors, and carriers, or party to substantially meet its performance obligations under this Agreement, provided that, as a condition to the claim of non-liability, the party experiencing the difficulty shall give the other prompt written notice, with full details following the occurrence of the cause relied upon.
15.0 TERMINATION
15.1 Either party may terminate this Agreement immediately by written notice if any party commits a breach of this Agreement that is not capable of being remedied.
15.2 Either party may serve written notice requiring the other party to remedy the breach within thirty days of receipt of the written notice of the breach and in default, the party serving the notice to remedy may immediate terminate this Agreement without further notice.
15.3 Either party may immediately terminate this Agreement by written notice if the other party commits an act of bankruptcy or goes into or is put into liquidation or is placed in administration (other than solely for the purposes of reconstruction or bone fide amalgamation) or the other party suffers seizure of any of its property for non-payment of monies owing.
15.4 A Force Majeure continues for a period of more than 3 months.
15.5 The Company may terminate the Agreement with immediate effect by giving the Customer written notice and then payment is due immediately from the Customer for the entirety of the minimum period or if the minimum period has expired then payment is due up to the anniversary of the following year of cover if:
15.5.1 any service, repair, replacement, alteration or addition be made to the Equipment other than by the Company or its authorised installer;
15.5.2 if the Customer misuses or abuses the Equipment;
15.5.3 the service charge is unpaid for seven days or more.
16.0 NOTICES
16.1 Notices must be written and delivered by hand or by first class prepaid post. The address for service on the Company (subject to any change notified by the Company) is: The Managing Director, Alexander Astin T/A IMMERSE HEALTH Tuchbands Ltd - Accountants, 925 Finchley Road, London, United Kingdom, NW11 7PE
16.2 . The Address for the Customer is set out on the front page of this Agreement or the latest invoice whichever is the most recent.
16.3 Notice will be deemed served by hand delivery on the next working day and by first class post by two working days after posting provided evidence can be given that the envelope was correctly addressed and has not been returned to sender.
17.0 GENERAL
17.1 A delay in enforcing rights under this agreement shall not affect the enforceability or validity of the remainder of it.
17.2 The unenforceability or invalidity of any part of this Agreement shall not affect the enforceability or validity of the remainder of it. If any provision or part-provision of this agreement 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 this agreement.
17.3 The termination or expiry of this Agreement shall be without prejudice to the rights of either party, which have accrued prior to termination or expiry. Clauses that are expressed to survive or which are by implication intended to survive termination or expiry of this Agreement shall so survive.
17.4 This Agreement contains the entire Agreement and supersedes all other Agreements and understandings between the parties with respect to the subject matter. Any terms proposed by the Customer that are not written in these Terms and Conditions shall be invalid. Subject to clause 12.2 each party acknowledges that, in entering into this Agreement, it does not do so on the basis of, and does not rely on, any representation, warranty or other provision except as expressly written in this Agreement and, that its only remedy can be for breach of contract.
17.5 Nothing in this Agreement shall create or be deemed to create, a partnership or the relationship of principle and agent or employer and employee between the parties. This Agreement is not intended to be of the benefit of and shall not be exercisable by, any third party under the Contracts (Rights of Third Parties) Act 1999 or otherwise and neither party can declare itself trustee of the rights under it for the benefit of a third party.
17.7 The Company may at any time change this Agreement without the prior agreement of the Customer. This Agreement in its most current format is available at www.immersehealth.co.uk The Company may transfer or assigns its rights and obligations to any of its associated companies and may sub-contract any of its obligations. The Customer may not transfer, assign, sub-license or sub contract any rights, licenses or obligations under this Agreement without the prior written consent of The Company.
17.8 English Law shall govern the validity, construction and performance of this Agreement and the parties submit to the exclusive jurisdiction of the English Courts.