Terms and Conditions - ART Software Group

INTERPRETATION

1. IN these conditions:-

(1) “the Company” means Applied Relational Technology Ltd;

(2) “the Equipment” means the items of hardware and equipment or any of them described in the Contract;

(3) “the Services” means the subscription services of the Company, as specified in the Contract and any Statement of Work and made available to the Client (together with any Operating Rules) and including any computer software programs and, if appropriate, Updates thereto or any other services (such as consultancy) described in the Contract;

(4) “the Client” means the person, firm or company with whom the Contract is made by the Company;

(5) “Operating Rules” means any of the Company’s rules or protocols, in whatever form recorded, that affect the Client’s access to or use of the Services, as varied amended or supplemented to by the Company and made available by the Company from time to time to the Client.

(6) “the Contract” means the contract between Company and the Client for the sale or supply of Equipment and/or software and/or Services (as the case may be);

(7) “Working Days” means Monday to Friday excluding Bank and other public holidays in England.

GENERAL

2. THESE Conditions shall be deemed to be incorporated in all contracts of the Company to sell or supply Equipment and/or software and/or Services. In the case of any inconsistency with any order, letter or form of contract sent by the Client to the Company or with any terms and conditions contained or referred to in any communication between the Client and Company (whatever may be their respective dates) or implied by trade, custom, practice or course of dealing the provisions of these Conditions shall prevail unless expressly varied in writing and signed by a director or other duly authorised representative on behalf of the Company. Any concession made or latitude allowed by the Company to the Client shall not affect the strict rights of the Company under the Contract.

ORDERS

3.NOTWITHSTANDING that the Company may have given a detailed quotation no order shall be binding on the Company unless and until it has been accepted in writing or by electronic means by a director or other duly authorised representative on behalf of the Company.

PRICES

4. (1) THE Prices payable for the Services shall be those contained in the Company’s written quotation which may be supplied in hardcopy or in a digital format including via email. The Fees, including licence fees, Support fees or Consultancy fees payable in respect of the Services shall be those contained in the Company’s written quotation. The prices for the Services shall be based on the Company’s standard rates.

(2) The Company shall have the right at any time to withdraw any discount from its normal prices and/or to revise prices to take into account increases in costs including (without limitation) costs of any goods, materials, carriage, labour or overheads, the increase or imposition of any tax, duty or other levy and any variation in exchange rates.

(3) Unless otherwise agreed all prices are exclusive of carriage, Value added Tax and any other duties or taxes which the Client shall be liable to pay to the Company.

TERMS OF PAYMENT

5. (1) PAYMENT shall, unless otherwise agreed in writing, be made in full without any set-off, counterclaim, deduction or withholding within 14 days of the date of the invoice save payment shall become due in any event forthwith upon the occurrence of any of the events referred to in Condition 17 hereof.

(2) Any extension or credit allowed to the Client may be changed or withdrawn at any time;

(a) In the event of withdrawal any sums outstanding at that date will be payable immediately.

(3) Notwithstanding any of the terms and conditions hereof the time of payment shall be of the essence of the Contract.

(4) Interest shall be payable on overdue accounts at the rate of 5.0% over Barclays Bank PLC base rate to run from the due date for payment thereof until receipt by the Company or the full amount whether or not after judgement.

(5) Where an account requires litigation to collect an overdue debt, an administration fee of £200 plus V.A.T. at the prevailing rate will be payable.

(6) The Company may suspend provision of any Services immediately upon written notice where any invoice remains unpaid after its due date.

(7) The Company reserves all rights under the Late Payment of Commercial Debts (Interest) Act 1998.

5A Unless otherwise stated in the Contract:

(1) invoices remain payable notwithstanding non-use of the Services.

(2) subscriptions automatically renew for successive periods equal to the initial subscription term;

(3) either party may terminate by giving not less than 90 days written notice before renewal;

(4) subscription fees are payable annually in advance;

(5) The Company may increase subscription fees once in any twelve month period in-line with the percentage change in the United Kingdom Retail Price Index as published by the Office for National Statistics (RPI) or 5%

DELIVERY AND PERFORMANCE

6. (1) ALL times or dates given for delivery of the Equipment and/or Services and for performance of Services are estimates only, are given in good faith and time shall not be of the essence.

(2) Use of the Equipment and Services and performance of the Services shall be digital delivery unless otherwise stipulated or agreed by the Company.

(3) Where the parties agree use of Services by means of download or online access, the following terms shall also apply;

(a) the Company shall issue a password to the Client for use when accessing Services;

(b) it is the Client’s responsibility to ensure that the said password is used only by those authorised by the Client to place orders and access Services. The Company shall have no liability in respect to orders placed for Services accessed by those not so authorised by the Client;

(c) subject to payment of any applicable licence fees due in respect of Services, any licence shall commence on acceptance of an order by the Company in accordance with this Contract.

(4) The Company may make and the Client shall accept partial deliveries of Equipment and/or Services. Each delivery or Service element shall be considered to be the subject of a separate contract and failure by the Company to make any one or more deliveries in accordance with the Contract or any claim by the Client in respect of any one or more deliveries shall not entitle the Client to treat the Contract as whole as repudiated.

(5) Where the Equipment is handed to a carrier for carriage to the Client or to a United Kingdom port for export any such carrier shall be deemed to be an agent of the Company and not of the Client for the purposes of Sections 44, 45 and 46 of the Sale of Goods Act 1979.

(6) The Client shall prepare the area of delivery and installation for the Equipment and provide the Company (including its employees, agents and sub-contractors) with free access to the place of installation and with free access to any services or facilities that may be required to deliver and install the Equipment. Where the same has not been provided the Company shall be entitled to charge for the same.

(7) The Client shall provide the Company (including its employees, agents and sub-contractors) with access to the Equipment and the Software at the agreed premises for the purposes of inspections and maintenance of the Equipment and with all necessary information and support that may reasonably be required by the Company for the performance of its obligations hereunder.

RISK

7. FROM the time of delivery by the Company or its carriers to the Client or agent the Equipment shall be at the risk of the Client who shall be solely responsible for the custody and maintenance thereof.

TITLE

8. ALL Equipment is supplied to the Client by the Company on the following terms:

(1) the Equipment shall remain the property of the Company until payment is made of sums due to the Company under all contracts between the Company and the Client;

(2) before title has passed under the terms of Condition 8(1) the following shall apply:

(a) the Client shall hold the Equipment as a bailee for the Company;

(b) the Client shall store the Equipment such that they are separate and identifiable from other stock held by the Client and shall label them as belonging to the Company;

(c) without prejudice to the rules of equity relating to tracing the Company shall be beneficially entitled to the proceeds of sale or disposal of the Equipment so that the proceeds of any claim therefore shall be assigned to the Company and until and subject to such assignment shall be held on trust in a separate identified bank account opened by the Client for this purpose and such proceeds shall not be mingled with other monies or paid into an overdrawn bank account;

(d) the Company is hereby licensed to enter upon any premises in the ownership, possession or control of the Client at any time in order to recover the Equipment. The Company shall have the right to resell the same, such right being in addition to any power of sale arising by operation of law or otherwise.

SERVICES LICENCE

9. (1) UNDER no circumstances does the use or acquisition of the Services transfer the copyright or any other intellectual property rights in the Services or any other documentation relating thereto to the Client or any third party.

(2) The Client shall enter into such licenses of the Services as the proprietors of the copyright or other intellectual property rights therein may require and the supply of the Services to the Client shall be conditional thereon.

(3)The Client shall not:

(a) copy, modify, adapt or create derivative works from the Services;

(b) reverse engineer, decompile or disassemble any software except where prohibited by law;

(d) use the Services for competitive analysis or training artificial intelligence models.

SERVICE AVAILABILITY, DATA AND SYSTEMS

10. (1) The Client acknowledges that:

(a) software and hosted services are not inherently error free or uninterrupted;

(b) operation and availability of the Services may be dependent upon third party hosting providers, telecommunications services, internet service providers and infrastructure outside the reasonable control of the Company;

(c) the Company may update, modify, replace, suspend, withdraw or discontinue non-material features or functionality of the Services from time to time provided that such changes do not materially adversely affect the overall functionality of the Services;

(d) the Client retains sole responsibility for verifying outputs and maintaining independent backups of all data.

(2) Except as expressly stated in this Contract, the Company does not warrant that:

(a) the Services will be uninterrupted or error free;

(b) the Services will be free from vulnerabilities or malicious code;

(d) the Services will operate in combination with any third party software, systems or hardware.

(3) The Company shall have no liability for:

(a) loss, corruption, interception or recovery of data;

(b) loss arising from unauthorised access to the Client’s systems;

(d) security breaches caused by third party systems; or

(e) any failure by the Client to maintain adequate backup or disaster recovery procedures.

(4) The Company may perform scheduled or emergency maintenance which may temporarily affect availability of the Services.

(5) The Company may suspend access to the Services immediately where reasonably necessary to:

(a) prevent security incidents;

(b) protect the integrity of the Services;

(d) comply with law or regulatory requirements.

10A. Customer Data and Derived Information

(1) All data uploaded, submitted, transmitted or otherwise provided by the Client (“Customer Data”) shall remain the property of the Client.

(2) The Client grants the Company a non-exclusive licence to host, copy, process, transmit, back up and otherwise use Customer Data solely for the purpose of providing, maintaining, securing and improving the Services.

(3) The Company shall own all rights, title and interest in:

(a) the Services;

(b) all software, algorithms, methodologies, templates, dashboards, reports, visualisations and documentation;

(4) The Company may generate aggregated, anonymised or statistical information derived from Customer Data provided such information cannot identify the Client or any individual.

(5) The Company may use such aggregated information for benchmarking, product improvement, service analytics, research, machine learning and business intelligence purposes.

10B. Business Intelligence Outputs

The Client acknowledges that reports, dashboards, forecasts, alerts, recommendations and other analytical outputs generated by the Services are intended solely to assist business decision making.

The Company does not warrant that such outputs are complete, accurate or suitable for any particular commercial purpose.

The Client remains solely responsible for all commercial, financial and operational decisions made using the Services.

10B The Client shall:

(1) immediately notify the Company of any suspected compromise.

(2) maintain appropriate password policies;

(3) implement multi-factor authentication where available;

(4) ensure user accounts are removed promptly when personnel leave;

(5) maintain supported operating systems and browsers;

(6) maintain appropriate anti-malware protection;

10C The Client shall not:

(1) use the Services unlawfully.

(2) upload malicious software;

(3) attempt unauthorised access;

(4) interfere with the Services;

(5) overload the platform;

(6) scrape data;

(7) probe security controls;

(8) perform penetration testing without written consent;

10D. Service Levels shall apply only where separately incorporated into the Contract.

10E. The Services may integrate with third party systems.

The Company is not responsible for:

(a) interruption caused by third-party services.

(b) availability of third-party systems;

(d) errors in third-party data;

10F. The Company shall maintain business continuity and disaster recovery arrangements appropriate to the Services but does not warrant uninterrupted availability.

THIRD PARTY RIGHTS

11. (1) THE Client shall indemnify the Company against all costs, claims and damages incurred by or made against the Company as a direct or indirect result of the carrying out of the Services or any other work required to be done on or to the Equipment or the Services in accordance with requirements or specifications of the Client involving any infringement or alleged infringement of any patent, trade mark, design right, copyright or other proprietary right of any third party (“Third Party Rights”).

(2) In the event that the Equipment or the Services are or may be the subject of any Third Party Proprietary Rights the Company shall be obliged to transfer or licence (as the case may be) to the Client only such title as the Company may have and the Company shall have no liability to the Client for any infringement or alleged infringement thereof.

(3) The Client shall notify the Company forthwith of any claim made or action brought or threatened alleging infringement of any Third Party Proprietary Rights. The Company shall have the right to control and/or conduct any such proceedings in such manner as it shall reasonably determine. The Client shall provide all such reasonable assistance in connection therewith as the Company may request. The cost of any such proceedings shall be borne in such proportions as the parties shall determine.

SPECIFICATIONS AND INFORMATION

12. (1) UNLESS expressly agreed in writing by the Company all descriptions, drawings, designs, specifications and particulars of weight and dimensions submitted by the Company are approximate only and the Company shall have no liability in respect of any deviation therefrom. The Company accepts no responsibility for any errors, omissions or any other defects in any descriptions, drawings, designs or specifications not prepared by the Company and the Company shall be indemnified by the Client against any and all liabilities and expenses incurred by the Company arising therefrom.

(2) Each party shall keep confidential all Confidential Information received from the other party and shall not disclose such information except:

(a) to employees and contractors with a need to know;

(b) where required by law;

This obligation shall survive termination for five years.

LIABILITY

13. (1) THE Company shall not be liable to the Client:

(a) for shortages in quantity delivered unless the Client notifies the Company of any claim for short delivery within 7 Days of receipt of the Equipment;

(b) for damage to or loss of the Equipment or any part thereof in transit (where the Equipment is carried by the Company’s own transport or by a carrier on behalf of the Company) or for any claim that the Equipment is not in accordance with the Contract unless the Client shall notify the Company of any such claim within 7 Days of receipt of the Equipment or (in the case of non-delivery) within 7 Days of receipt of the invoice therefor;

(c) for defects in the Equipment caused by fair wear and tear, abnormal conditions of storage or use by the Client or by any act, neglect or default by the Client, or of any third party;

(d) for other defects in the Equipment or the media upon which the Equipment or Services are supplied unless notified to the Company within 7 Days of receipt of the Equipment by the Client.

(e) for any Services performed defectively unless the Client shall notify the Company of any such claim within 30 Days of performance of such Services.

(2) In the case of Equipment not manufactured and software or Services not developed by the Company, the Company will pass on to the Client to the extent that it is able any benefits obtainable under any warranty given by the Company’s supplier provided that payment has been made for the relevant Equipment and/or Services. In particular no warranty is given that Services or Equipment working together or as part of an integrated system (also along with any Third Party Equipment or Services), including where the Company configures Services and Equipment whether in accordance with the Client’s instructions or otherwise, will process such dates and date dependent data save to the extent set out in any warranty that may have been passed to the Client from the manufacturer and/or supplier of such Services and Equipment.

(3) In the event of a valid claim under clause 13(1) the Company undertakes:

(a) at its option to make good any shortage or non-delivery and/or as appropriate to either credit the Client in full the price paid for the item or Equipment found to be damaged or defective or repair such item or supply a replacement thereof free of charge to the Client;

and

(b) at its option either to credit to the Client in full the price paid for the Services found to have been defectively performed or to re-perform such Services free of charge to the Client.

(4) In no event shall the Company be liable whether in contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise for:

(a) any loss of profit;

(b) loss of revenue;

(d) loss of contracts;

(e) loss of anticipated savings;

(f) loss of goodwill;

(g) loss of use;

(h) loss, corruption, destruction, alteration or recovery of data;

(i) interruption to business;

(j) cyber-security incidents, unauthorised access, malicious code, ransomware, denial of service attacks or data breaches except to the extent directly caused by the proven negligence of the Company;

(k) any indirect, consequential, incidental or special loss,

in each case whether foreseeable or otherwise and whether arising out of or in connection with the supply of Equipment and/or Services or otherwise under the Contract.

(5) Subject to Condition 13(8) hereof the Company’s aggregate liability to the Client hereunder or otherwise arising whether for negligence, breach of contract, misrepresentation or otherwise shall in no circumstances exceed the fees payable under the Contract during the 12 month period preceding the event giving rise to the claim in respect of any occurrence or series of occurrences. For the avoidance of doubt, costs associated with data restoration, data reconstruction, forensic investigation or business continuity remediation shall be deemed excluded losses.

(6) Subject to Conditions 13(8) and 13(9), and except as expressly set out in the Contract, all warranties, conditions and other terms implied by statute, common law or otherwise are excluded to the fullest extent permitted by law.

(7) The Company’s prices are determined on the basis of the limits of liability set out in this condition. The Client may by written notice to the Company request the Company to agree a higher limit of liability provided insurance cover can be obtained.

(8) Nothing in these Conditions shall have the effect of excluding or restricting any liability of the Company for death or personal injury resulting from its negligence insofar as the same is prohibited by United Kingdom statute.

(9) Where the Equipment and/or Software are sold or the Services are provided in the course of a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976) the statutory rights of the Client are not affected by these Conditions.

RETURNS

14. (1) The Company will allow the Client to return Equipment within 7 days of receipt, if it is found to be defective within that period. Returns or repairs beyond this time will be subject to the appropriate manufacturer warranty offering.

(2) The Client does not have any right to return Equipment and/or Services solely from change of mind.

(3) EQUIPMENT and/or anything associated with the Services which are supplied in accordance with the Contract cannot be returned unless the Client obtains from the Company a returns authorisation number. Each returns authorisation number will remain valid for 7 days after issue. The Company will not accept any Equipment returned outside the 7 day period. Returns shall be sent to the Company’s premises at the Client’s risk and expense. The Company reserves the right to refuse to accept such returns if they are not returned in their original packaging in a clean, unused, undamaged and resalable condition.

EXPORT TERMS

15.(1) SAVE as herein provided or otherwise agreed in writing between the Company and the Client Equipment and/or Software which is supplied for Export from the United Kingdom shall be charged for and delivered FOB the air or sea port of shipment and the Company shall not be obliged to give the Client the notice specified in Section 32(3) of the Sale of Goods Act (1979).

(2) The Client shall be responsible for complying with any legislation or regulations governing the importation of the Equipment and/or Services into the country of destination and any payment of duties thereon. In particular, if any licence or consent of any government or other authority shall be required for the acquisition, carriage or use of the Equipment or the Services by the Client, the Client shall obtain the same at its own expense and if necessary produce evidence of the same to the Company on demand. Failure to do so shall not entitle the Client to withhold or delay payment of the price. Any additional expenses or charges incurred by the Company resulting from such failure shall be for the Client’s account.

DATA PROTECTION

16. The parties shall comply with all applicable data protection legislation including the UK GDPR and the Data Protection Act 2018. To the extent that the Company processes personal data on behalf of the Client, the Company shall:

(a) process such personal data only on documented instructions from the Client;

(b) implement appropriate technical and organisational security measures;

The Client acknowledges that the Services may involve processing by third party hosting or infrastructure providers located within or outside the United Kingdom (or as agreed in writing).

The Client shall ensure that it has all necessary rights, consents and lawful bases required for the processing of personal data in connection with the Services.

16A. The Company shall maintain reasonable administrative, technical and organisational measures appropriate to the nature of the Services including:

(1) disaster recovery procedures appropriate to the Services.

(2) encryption in transit where practicable;

(3) access controls;

(4) regular backups;

(5) monitoring;

(6) vulnerability management;

16B. The Client acknowledges that the Company may engage carefully selected subprocessors for hosting, infrastructure, support and security services.

FORCE MAJEURE

17. THE Company shall not be liable for any delay or failure in performance caused by events beyond its reasonable control including without limitation: acts of God, flood, fire, explosion, war, terrorism, labour disputes, utility failures, interruption of internet services, telecommunications failure, cyber attack, denial of service attack, ransomware incident, malicious code, failure of hosting providers, cloud service interruption, governmental action, epidemic, pandemic or supply chain disruption.

INSOLVENCY AND DEFAULT

18. IF the Client shall be in breach of any of its obligations under the Contract or if any distress or execution shall be levied on the Client’s property or assets or if the Client shall make or offer to make any arrangement or composition with his creditors or commit any act of bankruptcy or if any bankruptcy petition be presented against him or (if the Client is a Company) if any Resolution or Petition to wind up such company shall be passed or presented or if a receiver, administrative receiver or administrator of the whole or any part of such company’s undertaking property or assets shall be appointed or if anything analogous to any of the foregoing under the law of any jurisdiction occurs in relation to the Client, the Company in its discretion and without prejudice to any other right or claim may by notice in writing determine wholly or in part any and every contract between the Company and Client or may (without prejudice to the Company’s rights subsequently to determine the Contract for the same cause should it so decide) by notice in writing suspend further performance of the Contract until any defaults by the Client be remedied. The Company may also terminate or suspend the Contract immediately upon written notice where the Client commits a material breach of the Contract.

DEDUCTIONS

19. THE Company shall have the right (without prejudice to any of its other rights) to deduct from or set-off against any monies due to the Client under any contract any sum or sums which the Client is liable to pay to the Company under any contract, such right to be exercisable by the company giving to the Client written notice thereof.

HEALTH AND SAFETY

20. WHERE any of the Company’s employees are admitted to the Client’s premises pursuant to the Contract, the Client undertakes that it will take such measures as are necessary to ensure that, as far as reasonably practicable, its premises and any plant, equipment, articles or substances in such premises are safe and without risks to the health of the Company’s employees. The Client shall indemnify the Company against all loss, claims and demands suffered by the Company as a result of any breach of this Condition by the Client.

WAIVER

21. NO failure or delay by the Company in exercising any right or remedy shall operate as a waiver of that or any other right or remedy.

SEVERABILITY

22. IF at any time one or more of the above Conditions becomes in whole or in part void, invalid, or unenforceable then the remainder of the Contract shall nevertheless be valid and enforceable.

NOTICES

23. ALL notices hereunder shall be in writing and shall be given by hand or sent by prepaid first class post, or by electronic means to the party concerned at its last known address. Notices sent by first class post shall be deemed (in the absence of evidence of earlier receipt) to have been delivered forty-eight hours after despatch and notices sent by digital transfer such as email shall be deemed to have been delivered on the first customary working day in the addressee’s country following the day of its despatch.

ASSIGNMENT

24. THE Client shall not assign, transfer, charge, subcontract or otherwise deal with any of its rights or obligations under the Contract without the prior written consent of the Company. The Company may assign, transfer, subcontract or otherwise deal with any of its rights or obligations under the Contract at any time.

US GOVERNMENT REQUIREMENTS

25. THE Client is advised that the Equipment and/or Software may be subject to US Government export regulations. Accordingly the Client warrants that any Equipment and/or Software will not be exported from the United Kingdom unless prior approval in writing has been obtained from all regulatory authorities at the Client’s own expense.

ENTIRE AGREEMENT

26. THIS Contract constitutes the entire agreement between the parties and supersedes all prior discussions, negotiations and agreements relating to its subject matter. The Client acknowledges that it has not relied upon any statement, representation, assurance or warranty not expressly set out in the Contract.

Nothing in this clause shall exclude liability for fraudulent misrepresentation.

The Company may amend these Conditions by giving not less than 30 days’ notice.

Continued use of the Services following the effective date shall constitute acceptance of the revised Conditions.

GOVERNING LAW

27. THE Contract shall be governed by and constructed in accordance with English Law and the parties hereby submit to the non-exclusive jurisdiction of the English Courts.