Terms & Conditions
THESE ARE THE TERMS AND CONDITIONS OF AQUARATE LIMITED, A COMPANY REGISTERED IN ENGLAND AND WALES UNDER COMPANY NUMBER 10746287, WITH REGISTERED OFFICE AT 11 ENDMOOR, KENDAL, ENGLAND, LA8 0HB
These terms and conditions (the “Terms”) shall apply to any purchase of subscription services from the Company. We will provide you with a quotation, which will reference these Terms. The quotation plus these Terms is the entire agreement between you and us. If you proceed with a purchase following the issue to you of such quotation and Terms, then a legally binding contract is formed between us.
These Terms were last updated in July 2022.
In the event of a conflict between these Terms and a quotation, the quotation shall prevail.
1. Interpretation
1.1 The following definitions and rules of interpretation apply in these Terms:
Admin User: the Customer’s nominated administrator who is an Authorised User and responsible for the allocation of all other Authorised Users.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in clause 8.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 18.
Customer Data: the data inputted by the Customer, Authorised Users, or Aquarate on the Customer's behalf for the purpose of using the Services or facilitating the Customer's use of the Services.
Data Protection Legislation: all applicable legislation in force from time to time in the United Kingdom applicable to data protection and privacy including, but not limited to, the UK GDPR (the retained EU law version of the General Data Protection Regulation ((EU) 2016/679), as it forms part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018); the Data Protection Act 2018 (and regulations made thereunder); and the Privacy and Electronic Communications Regulations 2003 as amended.
Confidential Information: means, in relation to either party, information which is disclosed to that party by the other party pursuant to or in connection with these Terms (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).
Delivery: the transfer of physical possession of the Equipment to the Customer at the Site.
Delivery Date: the date the Equipment is due for Delivery to the Customer as agreed by the parties in writing.
Documentation: any document made available to the Customer by Aquarate on the Hydratrack Platform or by any other means from time to time including but not limited to a description of the Services, User Manual and any other user guides, manuals, product care, safety and maintenance instructions and user videos for the Services.
Effective Date: the date of these Terms and the date on which Aquarate shall commence the use of the Services, as set out in the Quotation.
Equipment: the items of equipment listed in the Quotation, all substitutions, replacements or renewals of such equipment and all related accessories and Documentation.
Force Majeure Event: includes any power failure, internet service provider failure, industrial action, civil unrest, fire, flood, storms, earthquakes, acts of terrorism, acts of war, pandemic, governmental action or any other similar or dissimilar event or circumstance that is beyond the control of the party in question.
Heightened Cybersecurity Requirements: any laws, regulations, codes, guidance (from regulatory and advisory bodies, whether mandatory or not), international and national standards, and sanctions, which are applicable to either the Client, its End Clients (including any Authorised User), but not the Supplier, relating to security of network and information systems and security breach and incident reporting requirements, which may include the Cybersecurity Directive ((EU) 2016/1148)), Commission Implementing Regulation ((EU) 2018/151), the Network and Information Systems Regulations 2018 (SI 506/2018), all as amended or updated from time to time.
Hydracups: the smart cup known as "Hydracup", access to 2 Hydracups per user which is provided by Aquarate as part of the Services.
Hydratrack Platform: the online software platform located at app.aquarate.comand known as ‘Hydratrack’, access to which is provided by Aquarate as part of the Services.
Initial Subscription Term: means the term as specified in the Quotation.
Installation Date: the date of completion of Installation and Setup as specified in the Quotation.
Installation and Setup: installation and setup of the Equipment and Services by Aquarate and/or its contractors at the Customer’s Site(s) either in person or remotely and the provision of training on the
Hydratrack Platform and use of the Services.
Installation and Setup Fee: the fee charged for the Installation and Setup of Equipment and Services at the Customer Site(s) as specified in the Quotation.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Payment Schedule: the Quotation, which sets out the sums payable under these Terms.
Recipients: individuals receiving care who shall be using the Hydracups and having their fluid intake monitored through the Hydratrack Platform.
Renewal Period: the period described in clause 15.
Risk Period: the period during which the Equipment is at the sole of the risk of the Customer as set out in clause 6.2.
Services: the subscription services provided by Aquarate to the Customer under these Terms.
Site(s): the Customer's premises as specified in the Quotation.
Subscription Fees: the subscription fees payable by the Customer to Aquarate for the Services, as set out in the Quotation.
Subscription Term: has the meaning given in clause 15 (being the Initial Subscription Term together with any subsequent Renewal Periods).
Standard Support Services: the support provided to the Customer in relation to the Services in its User Manual, and via email and phone during Normal Business Hours. Aquarate’s policy for providing support in relation to the Services as made available on the Hydratrack Platform and as may be notified to the Customer or its subcontractors from time to time.
Total Loss: due to the Customer’s default, any item of Equipment is, in Aquarate’s reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated.
User Manual: the user manual provided by Aquarate to the Customer as to use of the Hydratrack Platform.
VAT: value added tax chargeable in the UK.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, Schedule and paragraph headings shall not affect the interpretation of these Terms.
2. Services
2.1 Aquarate shall, during the Subscription Term, provide the Services to the Customer as specified in the Quotation, subject to these Terms.
2.2 Aquarate shall use commercially reasonable endeavours to make the Services available 24 hours a day, seven days a week, except for:
a) planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
b) unscheduled maintenance performed outside Normal Business Hours, provided that Aquarate has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
2.3 The number of Hydracups per Site shall be set out in the Quotation. The Services shall be provided on the basis of a minimum of 24 Hydracups per Site unless otherwise agreed by Aquarate. The Customer shall be entitled to request an increase the number of Hydracups in excess of the number set out in the Quotation from time to time during the Subscription Term, subject to agreement by Aquarate and the Customer agreeing to paying additional Subscription Fees as set out in the Quotation.
2.4 Upon termination of this Agreement for any reason, the Customer shall return the Equipment to Aquarate, at the Customer’s cost.
2.5 Aquarate will, as part of the Services and at no additional cost to the Customer, provide the Customer with Aquarate’s Standard Support Services during Normal Business Hours. The Customer may purchase enhanced support services separately at Aquarate’s then current rates.
2.6 Aquarate uses commercially reasonable endeavours to provide up to date and accurate information in the delivery of the Services. The Customer and Authorised Users use the Aquarate Equipment and Services at their own risk. The Customer acknowledges and agrees that the Equipment and Services are for informational purposes only and are not intended to constitute medical advice nor are the Services and the Hydratrack Platform a diagnostic tool. Aquarate does not undertake any obligation to consider whether the information provided is either sufficient or appropriate for any particular actual circumstances. Aquarate does not accept any responsibility for action taken as a result of information provided. Specific medical advice should be taken when dealing with specific situations.
3. Licence to use the Equipment
3.1 Subject to payment of the Setup and Installation Fee and Subscription Fees as detailed in the WO, Aquarate shall make the Equipment available to the Customer for use by the Customer or Authorised User at the relevant Site subject to these Terms. Cost of the license to use the Equipment is included in the Subscription Fees, as set out in the Payment Schedule.
3.2 The Customer shall be provided with a non-exclusive, non-transferable, royalty-free licence to use the Hydratrack Platform during the Subscription Term.
4. Delivery of Equipment
4.1 Aquarate shall be responsible for Delivery of Equipment to the relevant Site. Cost of Delivery is included in the Installation and Setup Fee detailed in the Payment Schedule.
4.2 Aquarate shall use commercially reasonable endeavours to ensure the Equipment is delivered on the Delivery Date. Time is not of essence in respect of the Delivery and Aquarate shall not be held liable in the event of late Delivery.
4.3 If the Customer fails to accept Delivery of the Equipment on the Delivery Date, then, except where such failure is caused by Aquarate’s failure to comply with its obligations under this Agreement:
a) the Equipment shall be deemed to have been delivered on the Delivery Date; and
b) Aquarate shall store the Equipment until Delivery takes place and charge the Customer for all related reasonable costs and expenses (including storage, delivery costs and insurance)
5. Installation and Setup of Services
5.1 Aquarate shall assist the Customer with Installation and Setup of Services. Where installation requires a Site visit, the Customer shall arrange that a duly authorised representative of the Customer shall be present at the installation of the Services. Acceptance by such representative of Installation and Setup of Equipment shall constitute conclusive evidence that the Customer has examined the Equipment and tested access to the Services 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). If required by Aquarate, the Customer’s duly authorised representative shall sign a receipt confirming such acceptance. The Customer or authorised representative must report any missing or damaged items within 48 hours of receipt by the Customer.
5.2 Aquarate shall provide the Customer with details of any materials, devices, internet access equipment and facilities required to make use of the Services. To facilitate installation and setup of the Services, the Customer shall at its sole expense provide all requisite materials, equipment (including devices to access and operate the Services) facilities, access and suitable working conditions to enable Installation and Setup to be carried out safely and expeditiously and in order for successful access and use of the Services.
5.3 The Customer shall ensure all such materials, facilities and equipment is available to Aquarate for Installation and Setup prior to Installation and Setup of the Services. Aquarate will require access to the Customer’s Wi-Fi connection at the Site in order to undertake Installation and Set up and maintain the Services.
6. Title, risk and insurance
6.1 The Equipment shall at all times remain the property of Aquarate, and the Customer shall have no right, title or interest in or to the Equipment (save the licence to use of the Equipment subject to these Terms).
6.2 The risk of loss, theft, damage or destruction of the Equipment shall pass to the Customer on Delivery. The Equipment shall remain at the sole risk of the Customer during the Subscription Term and any further term during which the Equipment is in the possession, custody or control of the Customer (“Risk Period”) until such time as the Equipment is returned to Aquarate.
6.3 During the Subscription Term and the Risk Period, the Customer must, at its own expense, obtain and maintain the following insurances:
a) insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as Aquarate may from time to time nominate in writing; and
b) insurance for such amounts as a prudent owner or operator of the Equipment would insure for, or such amount as Aquarate may from time to time reasonably require, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment.
6.4 The Customer shall give immediate written notice to Aquarate in the event of any loss, accident or damage to the Equipment arising out of or in connection with the Customer's possession or use of the Equipment.
6.5 The Customer, if requested by Aquarate, shall supply copies of the relevant insurance policies or other insurance confirmation acceptable to Aquarate and proof of premium payment to Aquarate to confirm the insurance arrangements.
7. Customer's Obligations
7.1 The Customer shall:
(a) provide Aquarate with:
i) all necessary co-operation in relation to these Terms; and
ii) all necessary access to such information as may be required by Aquarate;
in order to provide the Services, including but not limited to Customer Data, security access information, Wi-Fi at the Site(s) and configuration services;
(b) without affecting its other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under t these Terms;
(c) carry out all other Customer responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties in writing, Aquarate may adjust any agreed timetable or Delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services, Equipment and the Documentation in accordance with the terms and conditions of these Terms and shall be responsible for any Authorised User's breach of these Terms;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Aquarate, its contractors and agents to perform their obligations under t these Terms, including without limitation the Services;
(f) ensure that its network and systems, materials, devices, hardware, facilities and internet access comply with the relevant specifications provided by Aquarate from time to time; and
(g) be, to the extent permitted by law and except as otherwise expressly provided in these Terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Hydratrack Platform/Aquarate's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
7.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
7.3 The Customer shall during the term of this Agreement:
(a) ensure that the Equipment is operated, used, cleaned and maintained in accordance with the requirements set out in the Documentation;
(b) ensure that the Equipment is used only for the purposes for which it is designed, and operated in a proper manner by trained competent staff in accordance with the Documentation;
(c) take such steps (including compliance with the product care, safety and maintenance instructions and other Documentation) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained within the operating conditions detailed in the User Guide by a person at work;
(d) maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Delivery Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
(e) make no alteration to the Equipment and shall not remove any existing component (or components) from the Equipment;
(f) keep Aquarate fully informed of all material matters relating to the Equipment;
(g) keep the Equipment at all times at the designated Site and shall not move or attempt to move any part of the Equipment to any other location without Aquarate's prior written consent;
(h) permit Aquarate or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter on the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
(i) not, without the prior written consent of Aquarate, part with control of (including for the purposes of repair or maintenance), sell or offer for sale, sub-licence, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;
(j) not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of Aquarate in the Equipment;
(k) return the Equipment at the end of the Subscription Term or on earlier termination of these Terms at such address as Aquarate requires, or if necessary allow Aquarate or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment and Aquarate reserves the right to charge the Customer its reasonable costs and disbursements in undertaking such removal; and
(i) not do or permit to be done anything which could invalidate the insurances referred to in clause 6.
7.4 The Customer acknowledges that Aquarate 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 Customer or its officers, employees, agents and contractors, or its Authorised Users, and the Customer shall indemnify the Aquarate 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 Aquarate arising out of, or in connection with any failure by the Customer to comply with these Terms.
8. Admin User and Authorised Users
8.1 Subject to the restrictions set out in this clause 8 and, generally, these Terms, Aquarate hereby grants to the Customer a non-exclusive, non-transferable, non-sublicensable licence to permit the Authorised Users to use the Services, Equipment and the Documentation during the Subscription Term solely for the Customer's internal business operations.
8.2 The Customer shall be entirely responsible and liable for the use by each Authorised User of the Services and shall procure that each Authorised User is aware of and complies with these Terms.
8.3 In relation to the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password for his use of the Services and Documentation, and that each Authorised User shall keep his password confidential. Aquarate recommends that such password shall be changed no less frequently than once per month.
8.4 The Customer shall not:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Hydratrack Platform and/or Documentation (as applicable) in any form or media or by any means; or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software of the Hydratrack Platform; or
(c) access all or any part of the Services, Equipment and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(d) use the Services and/or Documentation to provide services to third parties; or
(e) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, Equipment and/or Documentation available to any third party except the Authorised Users, or
(f) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 8; or
(g) introduce or permit the introduction of any Virus into Aquarate's network and information systems and/or the Hydratrack Platform.
8.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation. The Customer is entirely responsible for failure to safeguard user ID’s, passwords and accounts and allowing any other person or entity unauthorised to access to the Services. In the event of any such unauthorised access or use, the Customer shall promptly notify Aquarate.
9. Customer Data and Data Protection
9.1 In this clause 9, “personal data”, “data subject”, “data controller”, “data processor”, and “personal data breach” shall have the meaning defined in the Data Protection Legislation.
9.2 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
9.3 The Customer grants a royalty-free, non-transferable, non-exclusive licence during the Subscription Term for Aquarate to use, copy, store, transmit and display the Customer Data solely to the extent reasonably necessary to provide and maintain the Services to the Customer and for the purpose of future marketing by Aquarate of its Services to the Customer.
9.4 In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for Aquarate to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Aquarate. Aquarate shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Aquarate to perform services related to Customer Data maintenance and back-up).
9.5 The Customer and Aquarate shall comply with all applicable requirements of the Data Protection Legislation. This clause 9 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
9.6 Without prejudice to the generality of clause 9.5, the Customer will ensure that it has obtained and will maintain in place all necessary, valid and appropriate permissions, consents and notices for any individual, being a data subject, to which the Customer Data relates to enable lawful transfer to, use and processing by Aquarate of their personal data and/or special category data (as defined in the Data Protection Legislation) in accordance with Data Protection Legislation for the duration and purposes of these Terms.
9.7 Aquarate shall process personal data in accordance with its privacy policy available on its website, the terms of which are incorporated into these Terms.
9.8 The parties agree that the Customer is the data controller in respect of any personal data that Aquarate processes in the course of providing Services for the Customer (other than business contact data processed by Aquarate to allow it to manage the Customer’s account).
9.9 Accordingly, Aquarate agrees that it shall:
(a) only carry out processing of the personal data on the Customer’s instructions from time to time, such instructions at the Delivery Date are to process the personal data in order to provide the Services to the Customer;
(b) implement appropriate technical and organisational measures to protect personal data against unauthorised or unlawful processing and accidental destruction or loss, so as to allow the Customer to comply with the seventh data protection principle;
(c) include in any contract with any subcontractors who shall process personal data directly or indirectly on the Customer’s behalf, provisions which are equivalent to those in this clause 9; and
(d) as soon as reasonably practicable refer to the Customer any requests, notices or other communication from data subjects, the Information Commissioner or any other law enforcement authority, for the Customer to resolve.
9.10 The Customer acknowledges and agrees that Aquarate may be required to transfer personal data which it processes on the Customer’s behalf to countries outside the United Kingdom or European Economic Area. Aquarate shall ensure that any such transfer will be undertaken in accordance with the Data Protection Legislation.
9.11 The Customer consents to Aquarate’s use of subcontractors.
9.12 The Customer shall procure that its Authorised Users will comply with all applicable Data Protection Legislation in their use of the Services.
9.13 The Customer agrees to indemnify and keep indemnified and defend at its own expense Aquarate against all costs, claims, damages or expenses incurred by Aquarate or for which Aquarate may become liable (including without limitation, any fines, penalties, awards or other costs of any court with competent jurisdiction, the Information Commissioner’s Office or any other regulatory body with responsibility for ensuring compliance with Data Protection Legislation) due to or in connection with any failure by the Customer or its Authorised Users, or its employees, personnel, agents or contractors to comply with any of its obligations under this clause 9.
10. Aquarate's obligations
10.1 Aquarate shall provide the Services with reasonable skill and care provided that this shall not apply to the extent of any non-conformance which is caused by use of the Services by the Customer or its Authorised Users contrary to Aquarate's instructions or the Documentation, or modification or alteration of the Services by any party other than Aquarate or Aquarate's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Aquarate shall, at its expense, use commercially reasonable endeavours to correct any such non-conformance, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in this clause 10.1.
10.2 Aquarate:
(a) does not warrant that:
(i) the Customer's use of the Services and Equipment will be uninterrupted or error-free;
(ii) that the Services, Equipment, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements;
(iii) the software used in the Equipment and/or the Services will be free from Viruses; and
(iv) the software used in the Equipment and/or Services, Equipment, Documentation or Services will comply with any Heightened Cybersecurity Requirements.
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services, Equipment and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
10.3 These Terms shall not prevent Aquarate from entering into similar agreements with third parties, or from independently developing, using, selling or licensing the Documentation, Equipment and/or Services which are similar to those provided under these Terms.
10.4 Aquarate warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.
10.5 Aquarate shall follow industry standard archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy against Aquarate shall be for Aquarate to use commercially reasonable endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Aquarate. Aquarate shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Aquarate to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable).
11. Charges and payment
11.1 The Customer shall pay the Installation and Setup Fee and Subscription Fees to Aquarate in accordance with this clause 11, the Quotation and Payment Schedule and any other charges as agreed by the parties in writing including but not limited to additional support fees, and any return/delivery costs.
11.2 Aquarate shall invoice the Customer:
(a) on the Effective Date for the Installation and Setup Fee and Subscription Fees payable in respect of the Initial Subscription Term; and
(b) at least 30 days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,
and the Customer shall pay each invoice within 30 days after the date of such invoice.
11.3 If Aquarate has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of Aquarate:
(a) Aquarate may, without liability to the Customer, terminate this Agreement immediately and shall be under no obligation to provide access to any or all of the Services;
(b) Aquarate may, without liability to the Customer, disable the Customer's password, account and access to all or part of the Services and Aquarate shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(c) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of Bank of England from time to time, commencing on the due date and continuing until fully paid, whether before or after judgement.
11.4 All amounts and fees stated or referred to in these Terms:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 15, non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Aquarate's invoice(s) at the appropriate rate.
11.5 Aquarate shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional Hydracups purchased pursuant to clause 2 and any agreed additional support fees upon 30 days' prior written notice to the Customer providing any such increase is only made once in any 6 month period and the Payment Schedule (or such other agreed fees) shall be deemed to have been amended accordingly.
12. Proprietary rights
12.1 The Customer acknowledges and agrees that Aquarate and/or its licensors own all intellectual property rights in the Services, Equipment and the Documentation. Except as expressly stated herein, these Terms do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services, Equipment or the Documentation.
12.2 Aquarate confirms that it has all the rights in relation to the Services, Equipment and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms.
13. Warranty
13.1 Aquarate warrants that the Equipment shall substantially conform to its specification (as made available by Aquarate), be of satisfactory quality and fit for any purpose held out by Aquarate. Aquarate shall use commercially reasonable endeavours to remedy, free of charge, any material defect in the Equipment which manifests itself during the Subscription Term from Delivery by providing a replacement, provided that:
(a) the Customer notifies Aquarate of any defect in writing within ten Business Days of the defect occurring or of becoming aware of the defect;
(b) Aquarate is permitted to make a full examination of the alleged defect;
(c) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Aquarate's authorised personnel; and
(d) the defect is directly attributable to defective material, workmanship or design.
13.2 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by Aquarate, the Customer shall be entitled only to such warranty or other benefit as Aquarate has received from the manufacturer.
14. Limitation of liability
14.1 The restrictions on liability in this clause 14 apply to every liability arising under or in connection with these Terms including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.
14.2 Except as expressly and specifically provided in these Terms:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services, Equipment and the Documentation by the Customer, and for conclusions drawn from such use. Aquarate shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Aquarate by the Customer in connection with the Services, or any actions taken by Aquarate at the Customer's direction;
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms; and
(c) the Services, Equipment and the Documentation are provided to the Customer on an "as is" basis.
14.3 Nothing in these Terms limits any liability which cannot legally be limited including liability for:
(a) death or personal injury caused by negligence;
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 8 of the Supply of Goods (Implied Terms) Act 1973 or by section 7 of the Supply of Goods and Services Act 1982 ; or
(d) any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.
14.4 Subject to clause 14.3, Aquarate's total liability to the Customer shall not exceed the total Subscription Fees paid for the Services by the Customer to the Aquarate during the first 12 months immediately preceding the date on which the claim arose. For incidents occurring in the first 12 months of these Terms, Aquarate shall be liable to the Customer for an amount equal to the paid and projected Subscription Fees for that period.
14.5 Subject to clause 14.3, Aquarate shall not be liable under these Terms for any:
(a) loss of profits;
(b) loss of sales or business;
(c) loss of agreements or contracts;
(d) loss of anticipated savings;
(e) loss of use or corruption of software, data or information;
(f) loss of or damage to goodwill; or
(g) indirect or consequential loss.
14.6 Subject to clause 14.3, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or Services provided under these Terms are, to the fullest extent permitted by law, excluded from these Terms.
15. Termination
15.1 These Terms shall, unless otherwise terminated as provided in this clause 16, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, these Terms shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless:
(a) either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or any Renewal Period, in which case these Terms shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) otherwise terminated in accordance with the provisions of these Terms;
and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the “Subscription Term”.
15.1 Without affecting any other right or remedy available to it, either party may terminate these Terms with immediate effect if the other party is in material breach of these Terms, or suffers an insolvency event (including but not limited to administration, liquidation or entering into an arrangement with its creditors).
16. Consequences of termination
16.1 On termination of these Terms, however caused:
(a) Aquarate's licence to use the Services shall terminate;
(b) Without prejudice to any other rights or remedies of the Customer, the Customer shall pay to Aquarate on demand:
(i) all unpaid outstanding sums and other sums due but not invoiced at the date of such demand together with any interest accrued pursuant to clause 11.4; and
(ii) any reasonable costs and expenses incurred by Aquarate in recovering the Equipment or in collecting any sums due under these Terms (including any storage, insurance, repair, transport, legal and remarketing costs).
16.2 On termination of these Terms pursuant to clause 16.1, any other repudiation of these Terms by the Customer which is accepted by Aquarate, without prejudice to any other rights or remedies of Aquarate, the Customer shall pay to Aquarate on demand a sum equal to the whole of the Subscription Term that would (but for the termination) have been payable if these Terms had continued from the date of such demand to the end of the Subscription Term.
16.3 The sums payable pursuant to clause 17.2 shall be agreed compensation for Aquarate's loss and shall be payable in addition to the sums payable pursuant to clause 17.1(b).
16.4 Any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Terms shall remain in full force and effect.
16.5 Termination or expiry of these Terms 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 these Terms which existed at or before the date of termination or expiry.
16.6 On termination of these Terms for any reason:
(a) all licences granted under these Terms shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) The Customer shall arrange with Aquarate the safe return of the Equipment and make no further use of any Equipment or Documentation and other items (and all copies of them) belonging to Aquarate;
(c) Aquarate may destroy or otherwise dispose of any of the Customer Data in its possession unless Aquarate receives, no later than ten days after the effective date of the termination of these Terms, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Aquarate shall use commercially reasonable endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Aquarate in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of these Terms which existed at or before the date of termination shall not be affected or prejudiced.
17. Force majeure
Neither party shall be in breach of these Terms nor liable for delay in performing, or failure to perform, any of its obligations under these Terms if such delay or failure results from a Force Majeure Event. In such circumstances the affected party shall be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 6 weeks, the party not affected may terminate these Terms by giving 7 days' written notice to the affected party.
18. Confidential information
18.1 Each party undertakes that it shall not at any time, disclose to any person any Confidential Information concerning the business, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 18.2.
18.2 Each party may disclose the other party's Confidential Information:
(a) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with these Terms. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause 18; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
18.3 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 t these Terms.
18.4 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute Aquarate's Confidential Information.
18.5 Aquarate acknowledges that the Customer Data is the Confidential Information of the Customer.
18.6 No party shall make, or permit any person to make, any public announcement concerning these Terms without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
18.7 The above provisions of this clause 18 shall survive termination of these Terms, however arising.
18.8 The Customer hereby consents to Aquarate publishing its name and relationship to Aquarate within the public domain, including but not limited to social media, its website and its promotional and marketing materials.
19. Assignment and other dealings
These Terms are personal to the Customer, and no rights, licences or obligations under this Agreement may be assigned by the Customer without the prior written approval of Aquarate, unless to a group company (such consent not to be unreasonably withheld or delayed).
20. Entire agreement
20.1 These Terms and Quotation constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
20.2 Each party acknowledges that in entering into these Terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these Terms.
21. Variation
No variation of these Terms shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
22. No partnership or agency
22.1 Nothing in these Terms 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.
22.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
23. Further assurance
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 these Terms.
24. Third party rights
Unless it expressly states otherwise, these Terms do not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of these Terms.
25. Notices
25.1 All notices under these Terms shall be in writing and be deemed duly given if signed by, or on behalf of, a duly authorised officer of the Party giving the notice.
25.2 Notices shall be deemed to have been duly given:
(a) when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
(b) when sent, if transmitted by facsimile or e-mail and a successful transmission report or return receipt is generated; or
(c) on the fifth business day following mailing, if mailed by national ordinary mail, postage prepaid; or
(d) on the tenth business day following mailing, if mailed by airmail, postage prepaid.
In each case notices shall be addressed to the most recent address, e-mail address, or facsimile number notified to the other Party.
26. Waiver
No failure or delay by a party to exercise any right or remedy provided under these Terms 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.
27. Rights and remedies
Except as expressly provided in these Terms, the rights and remedies provided under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.
28. Severance
28.1 If any provision or part-provision of these Terms 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 these Terms.
28.2 If any provision or part-provision of these Terms is deemed deleted under clause 28.1 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.
29. Governing law
These Terms and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with them or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.
30. Jurisdiction
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 these Terms or their subject matter or formation.