Terms and conditions of sale: CALMFLOOR®, CALM® Connect & CALM® Care (USA)
TERMS AND CONDITIONS (‘TERMS’)
SECTION A – GENERAL TERMS (APPLICABLE TO ALL ORDERS)
1. Interpretation
1.1 The following definitions and rules of interpretation apply in these Terms.
Agreement: means the agreement between the parties for the supply of the Equipment and, where applicable, the provision of Services, incorporating:
(a) the Order;
(b) these Terms, including:
(i) the General Terms in Section A, which apply to all Orders;
(ii) the “Terms of Sale” and Warranty in Section B, which apply to the supply of Equipment and Installation Services;
(iii) the “CALM Care Terms of Service” in Section D, which apply where the Customer has purchased CALM Care;
(iv) the “CALM Connect Terms of Service” in Section C, which apply where the Customer has a CALM Connect subscription; and/or
(v) the “Consultancy Services Terms” in Section E, which apply where the Customer purchases Consultancy Services; and
(c) any schedules and documents expressly incorporated into the Agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in New York, USA.
CALM Care: means the multi-year or annual recurring maintenance and support services, if any, provided by or on behalf of CALMFLOOR to the Customer in accordance with the Terms of Service, and “CALM Care Services” shall have the same meaning.
CALM Care Fee: means the fee payable by the Customer for CALM Care, as specified in the Order.
CALM Connect: means the online subscription platform providing access to value added data regarding the performance of the Equipment, and “CALM Connect Services” shall have the same meaning.
CALM Connect Fee: means the recurring subscription fee (if any) payable by the Customer for the receipt of CALM Connect, as specified in the Order.
CALMFLOOR: means Engineered Vibration Solutions Inc., a company incorporated in Delaware, USA, whose registered office is at 1521 Concord Pike, Suite 201, Wilmington, DE 19803, and whose trading address is Hoboken Riverfront Center, 221 River Street, 9th Floor, Hoboken, NJ 07030.
Consultancy Services: where applicable, means the professional consultancy services to be provided by CALMFLOOR, as detailed in the Order.
Consultancy Services Fee: means the fee payable by the Customer for the Consultancy Services, as specified in the Order.
Customer: the legal person detailed in the Order.
Delivery: the completion of delivery of the Equipment to the Customer via the Delivery Method.
Delivery Method: as detailed in the Order.
Documentation: any written specifications, installation and/or operating manuals provided to the Customer, which relate to the Equipment.
Equipment: the CALMFLOOR® Active Mass Dampers supplied by CALMFLOOR.
Installation Location(s): the Customer’s location(s) where the Equipment is to be installed, as detailed in the Order or otherwise agreed by the parties.
Installation Services: means the installation and commissioning of the Equipment at the Installation Location by or on behalf of CALMFLOOR.
Intellectual Property Rights: means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Location: the nominated location for Delivery of the Equipment, which shall be the premises nominated as the Installation Location, unless otherwise specified in the Order or agreed by the parties in writing.
Preparatory Works: means any preparatory works required at the Installation Location in order for CALMFLOOR to provide the Installation Services, including any described in the Order.
Price: means the price payable by the Customer for the Equipment and, where applicable, the Installation Services, each as specified in the Order.
Order: CALMFLOOR’s written quotation for supply of the Equipment and/or provision of Services by CALMFLOOR, signed, accepted or otherwise endorsed by the Customer.
Services: the Installation Services, CALM Care, CALM Connect, and/or Consultancy Services to be provided by CALMFLOOR, as specified in an Order.
Warranty: CALMFLOOR’s standard Equipment warranty, shown in Section B (Terms of Sale).
1.2 Clause, section, schedule and paragraph headings shall not affect the interpretation of these Terms.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and such person’s legal and personal representatives, successors and permitted assigns.
1.4 Words in the singular shall include the plural and vice versa.
1.5 A reference to a statute, statutory provision or any subordinate legislation made under a statute is to such statute, provision or subordinate legislation as amended or re-enacted from time to time whether before or after the Effective Date, in the case of a statute, includes any subordinate legislation made under that statute whether before or after the Effective Date.
1.6 Where the words include(s), including or in particular are used in this Agreement, they are deemed to have the words “without limitation” following them.
1.7 Any obligation in the Agreement on a person not to do something includes an obligation not to agree or allow that thing to be done.
1.8 Unless otherwise specified references to sections and clauses are to the sections and clauses of these Terms.
1.9 The terms of the Agreement shall apply to the exclusion of any other terms that the Customer may seek to impose or incorporate (for example, via a purchase order).
2. Formation of Agreement
2.1 Once CALMFLOOR’s quotation has been signed or otherwise accepted by the Customer it shall constitute an offer to purchase the Equipment and/or some or all of the Services, as specified therein. On countersigning or other acceptance by CALMFLOOR, including written confirmation or issuing of the initial invoice, the Agreement shall come into effect (the Effective Date).
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase order, confirmation or other document shall form part of the Agreement.
2.3 Any quotation or proposal issued by CALMFLOOR is an invitation to treat only and does not constitute an offer to supply the Equipment and/or perform any Services. A quotation shall typically be valid until the date specified therein, though CALMFLOOR may amend or revoke a quotation at any time.
3. Intellectual Property
3.1 CALMFLOOR shall retain ownership of all Intellectual Property Rights in and to the Equipment and its Services and the manner of their performance, including but not limited to all copyright subsisting in its software, documentation and materials and all know-how in its processes and procedures. No rights are granted in such Intellectual Property Rights except as set out in the Agreement.
3.2 The Customer shall not, either directly or indirectly, duplicate, reverse-engineer, decompile, copy, modify, adapt or otherwise exploit any part of the Equipment or the components, functioning and processes of the Equipment (or attempt to do any of the same). The Customer shall not, either directly or indirectly, seek to remanufacture or have remanufactured additional units of the Equipment.
4. Confidentiality
4.1 Each party undertakes that it shall not at any time during the Agreement or following its expiry or termination disclose to any person any confidential information disclosed to it by the other party concerning the Equipment and the Services, the contents of the Agreement, the business or affairs of the other party or of its affiliates, including but not limited to information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (Confidential Information), except as permitted by clause 4.2.
4.2 Each party may disclose the other party’s Confidential Information:
(a) to its employees, officers, agents, consultants or sub-contractors (Representatives) who need to know such information for the purposes of carrying out the party’s obligations under the Agreement, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this clause 10 as though they were a party to the Agreement. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this clause; and
(b) as may be required by law, court order or any governmental or regulatory authority.
4.3 Neither party shall use the other’s Confidential Information for any purpose other than to perform its obligations under the Agreement.
5. Limitation of liability
5.1 NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE THE LIABILITY OF EITHER PARTY FOR: (I) DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE; (II) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (III) ANY OTHER LIABILITY THAT CANNOT LAWFULLY BE EXCLUDED OR LIMITED. SUBJECT TO THE FOREGOING:
(a) CALMFLOOR’S TOTAL LIABILITY ARISING UNDER OR IN CONNECTION WITH THE AGREEMENT WHETHER IN TORT (INCLUDING NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION, RESTITUTION OR OTHERWISE, SHALL BE LIMITED TO THE TOTAL AMOUNTS PAID OR PAYABLE BY THE CUSTOMER TO CALMFLOOR PURSUANT TO THE AGREEMENT DURING THE PRECEDING TWELVE (12) MONTHS; AND
(b) NEITHER PARTY SHALL BE LIABLE TO THE OTHER, WHETHER IN TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), CONTRACT, MISREPRESENTATION OR OTHERWISE FOR THE FOLLOWING TYPES OF LOSS WHETHER DIRECT OR INDIRECT AND HOWSOEVER CAUSED: (I) LOSS OF PROFIT; (II) LOSS OF GOODWILL; (III) LOSS OF BUSINESS; (IV)LOSS OF BUSINESS OPPORTUNITY; (V) LOSS OF ANTICIPATED SAVINGS; OR (VI) ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGE OR LOSS SUFFERED BY THE OTHER PARTY.
6. Payment terms
6.1 All amounts due under the Agreement are, unless otherwise stated, exclusive of any applicable sales tax and any other applicable taxes and duties or similar charges, which shall be payable by the Customer to CALMFLOOR at the rate and in the manner from time to time prescribed by law.
6.2 All invoices issued by CALMFLOOR shall be payable by the Customer in full and clear funds within 30 days of the date of the invoice.
6.3 All amounts due under the Agreement shall be paid in full without any set-off, counterclaim, deduction or withholding.
6.4 If the Customer fails to make any payment due to CALMFLOOR under the Agreement by the due date for payment, then, without limiting CALMFLOOR’s other remedies:
(a) CALMFLOOR may suspend Delivery of the Equipment and/or performance of any of the Services;
(b) the Customer shall not be entitled to exercise the Warranty; and
(c) the Customer shall pay interest on the overdue amount at the rate of 4% per annum. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7. Suspension & Termination
7.1 Without affecting any other right or remedy available to it, CALMFLOOR may suspend performance of any part of the Order, including any of the Services, or terminate the Agreement (or part thereof) with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any part of the Price, the CALM Care Fee, CALM Connect Fee and/or Consultancy Services Fee on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the Customer commits a material breach of any other term of the Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the Customer is deemed unable to pay its debts, makes any voluntary arrangement with its creditors, goes into administration or becomes subject to an administration order or serves notice of administration, or has a receiver, manager or administrative receiver appointed over its assets, shall have a winding-up order made against it or shall go into liquidation.
7.2 Upon termination of the Agreement (or any part thereof):
(a) the Customer shall pay to CALMFLOOR on demand all sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 6.4;
(b) if such termination is pursuant to clause 7.1 or any other repudiation of the Agreement by the Customer which is accepted by CALMFLOOR, without prejudice to any other rights or remedies of CALMFLOOR, the Customer shall pay to CALMFLOOR its reasonable and non-cancellable costs as at the date of termination, together with a sum equal to the whole of the CALM Care Fee, CALM Connect Fee and/or Consultancy Services Fee that would (but for the termination) have been payable if the Agreement had not been terminated early; and
(c) CALMFLOOR shall not be obliged to deliver any Equipment not already delivered and the provision of the Services shall cease and the Customer shall no longer be entitled to any updates, maintenance and/or support in connection with the Equipment.
7.3 Termination or expiry of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
8. General
8.1 Force majeure. Neither party shall be liable to the other for any delay or non-performance of its obligations under the Agreement (other than an obligation to pay amounts due under the Agreement) arising from any cause beyond its reasonable control including, without limitation, any of the following: governmental act, war, fire, flood, pandemic, epidemic, explosion or civil commotion.
8.2 Waiver. No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
8.3 Severability. If any provision of the Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
8.4 Assignment. The Customer may not assign, charge or otherwise transfer any of its rights or obligations under the Agreement without the prior written consent of CALMFLOOR. In the event that the Customer sells or transfers its entire interest in the Installation Location(s) to a third party (“New Owner”), the rights and obligations under this Agreement may be transferred to the New Owner, subject to the parties entering into a mutually agreed form of novation with the New Owner, and each of the Customer and CALMFLOOR shall act in good faith and use best efforts to agree and execute such novation without undue delay, provided that CALMFLOOR shall not be obliged to enter into a novation where it is legally or contractually prohibited from dealing with the New Owner.
8.5 Subcontracting. The Customer agrees that CALMFLOOR shall be entitled to appoint and use subcontractors in connection with the performance of the Services, provided that CALMFLOOR shall remain fully responsible for the acts and omissions of such subcontractors.
8.6 Amendments. Save as expressly permitted by the Terms, no amendment, waiver or variation of the Agreement shall not be binding on the parties unless set out in writing and signed by or on behalf of each of the parties.
8.7 Third party rights. No third party is intended to benefit from or be entitled to enforce any of these Terms.
8.8 Notices. Any notice required to be given pursuant to the Agreement shall be in writing, and shall be sent to the other party marked for the attention of that party at the address set out for such party in the Order. Notices may be sent by registered mail or email. Correctly addressed notices sent by registered mail shall be deemed to have been delivered 72 hours after posting and correctly directed emails shall be deemed to have been received instantaneously on transmission if on a Business Day or otherwise on the next Business Day.
8.9 Entire agreement. The Agreement contains the whole agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, arrangements and understandings between the parties relating to that subject matter.
8.10 Governing law and jurisdiction. The Agreement shall be governed and construed in accordance with the laws of Delaware, USA and any dispute, claim or action arising out of or in connection with the Agreement shall be subject to the exclusive jurisdiction of the courts of the State of Delaware.
SECTION B – TERMS OF SALE (APPLICABLE TO SUPPLY OF EQUIPMENT AND INSTALLATION SERVICES)
1. Application
1.1 These Terms of Sale apply to the sale of the Equipment by CALMFLOOR to the Customer, together with any Installation Services.
1.2 Each Order for the supply of the Equipment and/or Installation Services shall be subject to these Terms of Sale.
1.3 The Equipment is as specified in the Order and applicable Documentation. Marketing and other promotional materials relating to the Equipment are illustrative only and do not form part of the Agreement.
1.4 Unless otherwise specified therein, the Customer is not entitled to cancel or modify any part of an Order.
2. Delivery of Equipment
2.1 CALMFLOOR shall exercise reasonable endeavours to complete Delivery via the Delivery Method by the date specified in the Order (if any) or otherwise within a reasonable period from the Effective Date.
2.2 CALMFLOOR shall notify the Customer promptly on becoming aware of any event which will or may delay Delivery. Provided that it has done so, delays in Delivery shall not entitle the Customer to:
(a) refuse to take delivery of the Equipment; or
(b) terminate the Agreement.
2.3 Delivery shall be deemed completed on arrival of the Equipment at the Location. Unless otherwise agreed, the Customer shall be responsible for unloading the Equipment and ensuring appropriate storage for the Equipment prior to installation.
2.4 Where the Location for Delivery is not the Installation Location and/or the Delivery Method is dependent on the Customer arranging for transport of the Equipment to the Installation Location, the Customer shall be responsible for collecting the Equipment and procuring suitable transportation for the Equipment to the Installation Location, including appropriate insurance against loss and damage. CALMFLOOR shall not be liable for any loss of and/or damage to the Equipment following completion of Delivery, unless directly attributable to its own negligence or wilful misconduct.
2.5 CALMFLOOR shall have no liability for any failure or delay in Delivery to the extent that such failure or delay is caused by the Customer’s failure to (i) make the Location available and accessible; (ii) prepare the Location in accordance with CALMFLOOR’s reasonable instructions or otherwise as reasonably required to enable Delivery to be completed; and/or (iii) provide CALMFLOOR with adequate instructions to enable Delivery to be completed. CALMFLOOR may charge the Customer for any reasonable costs incurred by CALMFLOOR if it is unable to complete Delivery due to a failure or delay caused by the Customer.
2.6 The Customer agrees to inspect the Equipment on Delivery and notify CALMFLOOR promptly, and in any event within 5 Business Days, if there is any actual or suspected damage or defect in the Equipment. Where no such notification is received by CALMFLOOR, the Customer shall be deemed to have accepted Delivery of the Equipment as being in conformance with the Agreement.
3. Installation Services
3.1 Where CALMFLOOR is providing Installation Services, it shall:
(a) exercise reasonable endeavours to complete the provision of the Installation Services at the Installation Location by the date(s) specified in the Order or otherwise within a reasonable period of time following Delivery;
(b) perform the Installation Services with all due skill and care, in accordance with good industry practice and all applicable laws and regulations;
(c) have due regard for any health and safety and security requirements applicable at the Installation Location and notified to it by the Customer in advance;
(d) remain responsible for all CALMFLOOR equipment and materials brought onto the Installation Location; and
(e) permit the Customer and its personnel to inspect the Installation Services site as necessary to verify CALMFLOOR’s compliance with this Agreement.
3.2 CALMFLOOR’s obligation to provide the Installation Services shall be conditional on the Customer:
(a) completing the Preparatory Works, in accordance with the stipulations contained in the Order and as otherwise agreed; and
(b) providing CALMFLOOR with all access to the Installation Location, together with access to any materials, facilities, utilities, equipment and personnel, reasonably required for Delivery and the Installation Services,
and CALMFLOOR shall have no liability for any failure or delay in Delivery or completion of the Installation Services to the extent that such failure or delay is caused by the Customer’s failure to do so (in whole or in part, in accordance with any stipulations or agreed standards).
3.3 On completion of the Installation Services, the Customer shall have the opportunity to inspect and evaluate the Equipment and performance of the Installation Services. The Customer shall notify CALMFLOOR promptly, and in any event within five (5) Business Days, if there is any actual or suspected defect in the Equipment and/or the performance of the Installation Services. In default of such notification, the Customer shall be deemed to have accepted that the Equipment has been correctly installed and conforms with the Warranty as at Delivery and is suitable to meet its intended use.
3.4 On receipt of any notification pursuant to clause 3.3, CALMFLOOR shall inspect the Equipment and promptly endeavour to remedy any defects in the performance of the Installation Services including, where required, the repair or replacement of the defective Equipment.
4. Price
4.1 The Customer shall pay the Price to CALMFLOOR. Unless otherwise stated in the Order, CALMFLOOR shall invoice the Price as follows:
(a) 50% on the Effective Date; and
(b) 50% immediately prior to shipping.
4.2 The Price shall, unless otherwise stated in the Order, be payable in US dollars by bank transfer to CALMFLOOR’s nominated bank account.
5. Title and risk
5.1 Title in the Equipment shall transfer to the Customer on receipt by CALMFLOOR of the Price in full and clear funds.
5.2 All risk in the Equipment, including loss, theft, damage or destruction, shall pass to the Customer on Delivery.
6. Warranty
6.1 Subject to receipt of the Price in full and subject to the Exclusions detailed below, the Equipment is warranted for a period of twelve (12) months from Delivery or, where applicable, completion of the Installation Services (“Warranty Period”):
(a) to conform in all material respects to its specification, as set out in the Documentation, and the Terms of Sale; and
(b) to be free from material defects in material and workmanship when used in accordance with the Agreement.
6.2 The Warranty is for the benefit of the Customer only and is not transferable except with CALMFLOOR’s prior written consent.
6.3 Any claim under this Warranty must be:
(a) submitted to CALMFLOOR in writing within forty-eight (48) hours of the Customer discovering or reasonably suspecting the Equipment is not operating fully in accordance with the Warranty;
(b) received by CALMFLOOR during the Warranty Period; and
(c) sufficiently detailed to enable CALMFLOOR to understand the nature of the non-conformance and, if relevant, its cause.
6.4 On receipt of a claim, CALMFLOOR may request physical access to the Installation Location to inspect the Equipment, in which case the Customer agrees to provide reasonable access to the site and any associated utilities and facilities.
6.5 On validation of a claim under this Warranty, and provided that no Exclusion applies (as set out below), CALMFLOOR shall, at its option:
(a) repair the Equipment and/or replace any defective components;
(b) remove the Equipment and provide and install a fully operational replacement; or
(c) if neither of the above options are commercially feasible given the circumstances or nature of the defect, remove the Equipment and provide a refund of the Price paid for the Equipment.
6.6 CALMFLOOR’s compliance with clause 6.5 above shall be the Customer’s sole and exclusive remedy and CALMFLOOR’s entire liability for any non-conformance with the Warranty.
6.7 CALMFLOOR shall not be liable for any non-conformance with the Warranty (and the Warranty may be voided) in any of the following circumstances (the “Exclusions”):
(a) any attempts to affect, influence or disable the remote monitoring of the Equipment;
(b) use of the Equipment other than for its intended purpose and other than in accordance with the Agreement, Documentation or CALMFLOOR’s reasonable instructions;
(c) failure to operate and, where applicable, maintain the Equipment in accordance with the Documentation or otherwise in accordance with good industry practice;
(d) removal, addition or replacement of any parts, components or equipment comprised in the Equipment by any party other than CALMFLOOR or its nominated contractor(s);
(e) any actual or attempted repair or alteration of the Equipment by any party other than CALMFLOOR; or
(f) any breach by the Customer of the obligations in clause 6 or any other exclusions set out in the Agreement.
SECTION C – CALM® CARE TERMS OF SERVICE
1. Application
These CALM Care Terms of Service apply to the provision of CALM Care by CALMFLOOR to the Customer.
2. CALM Care Services
2.1 CALMFLOOR shall provide CALM Care as specified in the Order and in accordance with the Agreement.
2.2 The CALM Care Services shall be performed remotely and/or at the Installation Location, as appropriate, and the Customer agrees to provide such access to the Installation Location, Equipment, and associated materials, facilities, utilities, equipment and personnel, as reasonably required for the provision of the CALM Care Services.
2.3 CALMFLOOR shall use its reasonable endeavours to meet estimated dates for performance of the CALM Care Services but such dates are approximate only.
3. Warranty
3.1 CALMFLOOR warrants to the Customer that:
(a) the CALM Care Services shall be performed using all due care and skill, by suitably qualified personnel;
(b) materials used in the performance of the CALM Care Services shall be free from material defects in design, material and workmanship;
(c) it shall comply with applicable laws and regulations in the performance of the Agreement; and
(d) it shall comply with all reasonable security and health and safety requirements notified to it in advance whilst on the Customer’s premises.
4. Exclusions
4.1 The Customer acknowledges and agrees that the provision of remote monitoring and assistance as part of CALM Care is subject to CALMFLOOR having access to the CALM Connect environment and telemetry data. Where the Customer decides not to establish network connectivity, or subsequently ceases connectivity, CALM Care shall only be provided in relation to fault or support requests raised by the Customer.
4.2 CALMFLOOR shall not be required to perform any CALM Care Services in respect of any loss of or damage to the Equipment, or any defect, to the extent caused by any breach of the Customer’s obligations under the Agreement, including the Warranty, or attributable to any Exclusion
4.3 CALMFLOOR shall not be required to perform any CALM Care Services where loss or damage is caused by an event outside of its reasonable control, including any third party interference or an act of God (for example, fire, flood, or earthquake).
4.4 The Customer agrees to notify CALMFLOOR in advance (where possible), or otherwise as soon as reasonably practicable, in the event of any change to the structure of the Installation Location and/or change of use, and CALMFLOOR shall not be required to perform any CALM Care Services in respect of any loss of or damage to the Equipment, or any defect, to the extent caused by any such change unless approved by CALMFLOOR in advance
4.5 Except where the Warranty applies (in which case the Customer may also exercise its rights under the Warranty), CALMFLOOR’s performance of the CALM Care Services, including making reasonable efforts to remedy any defect in the Equipment, shall constitute the Customer’s sole and exclusive remedy for any defect or non-conformance of the Equipment.
5. CALM Care Fee
5.1 The CALM Care Fee shall be payable by the Customer annually in advance (unless otherwise agreed in the Order).
5.2 The Customer agrees that the CALM Care Fee is a fixed sum and is not subject to refund or deduction depending on the amount of resource required and/or time spent in the performance of the CALM Care Services.
5.3 CALMFLOOR may review the CALM Care Fee no more than once per annum and may increase the CALM Care Fee by no more than a percentage equivalent to the latest annual Consumer Price Index rate. CALMFLOOR shall notify the Customer of any change to the CALM Care Fee and the date on which it is to take effect.
6. Term and renewal
Unless otherwise stated in the Order, CALM Care shall be provided either (i) for an initial period of three (3) years (Initial Term) and, thereafter, shall renew on a rolling annual basis (each a Renewal Term), unless either party gives the other written notice of non-renewal no less than three (3) months prior to the end of the Initial Term or the then current Renewal Term; or (ii) where CALM Connect is being provided, on the same subscription basis as CALM Connect, and the provision of CALM Care shall be co-terminus with any termination or expiry of CALM Connect.
7. Suspension & Termination
7.1 In addition to the termination rights in the General Terms, and without affecting any other right or remedy available to it, CALMFLOOR may suspend the provision of CALM Care or terminate the Agreement in respect of CALM Care with immediate effect by giving written notice to the Customer if:
(a) there is a total loss event in relation to the Equipment; or
(b) the Customer no longer possesses and/or occupies the Installation Location.
SECTION D – CALM® CONNECT TERMS OF SERVICE
1. Application
These CALM Connect Terms of Service apply to the provision of CALM Connect by CALMFLOOR to the Customer.
2. CALM Connect licence
2.1 Subject to payment by the Customer of the CALM Connect Fee (if any) and the terms of the Agreement, CALMFLOOR hereby grants to the Customer a personal, non-exclusive, non-transferable licence to access and use CALM Connect during the Subscription Term (as defined below). CALM Connect may be provided free of charge where the Customer is in receipt of CALM Care.
2.2 In relation to the use of CALM Connect, the Customer undertakes that:
(a) it shall only permit access to those employees, agents and contractors that require access for the Customer’s internal business use (Authorised Users), and shall ensure its Authorised Users comply with these CALM Connect Terms of Service;
(b) each Authorised User shall keep the access credentials to CALM Connect confidential and shall not share access with any third party;
(c) the Customer shall not access, store, distribute or transmit any virus or other malicious code or material via CALM Connect, or any material that is unlawful, harmful, offensive, discriminatory or may otherwise cause damage or injury to any person or property;
(d) CALMFLOOR may audit the Customer’s use of CALM Connect, including the use of access credentials, to establish the number and identity of users accessing CALM Connect and the Customer’s compliance with these CALM Connect Terms of Service.
2.3 CALMFLOOR retains all Intellectual Property Rights in and to CALM Connect and all data, content and material contained within it or generated by it, and the Customer agrees that it shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this Agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the CALM Connect software in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the CALM Connect software; or
(b) access all or any part of CALM Connect in order to build a product or service which competes with CALM Connect; or
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make CALM Connect, or any part of it, available to any third party except the Authorised Users.
2.4 CALMFLOOR shall provide the CALM Connect Services in accordance with the Agreement, including any specification or description specified in the Order.
2.5 CALMFLOOR may routinely maintain and update CALM Connect, including by the addition, removal or modification of features or functionality. CALM Connect may be unavailable during any maintenance or update period.
2.6 CALMFLOOR shall provide the Customer with reasonable support and assistance in connection with its access to and use of CALM Connect, including by exercising reasonable efforts to rectify any unavailability, inaccessibility or defect in performance notified to it by the Customer.
3. Usage conditions and exclusions
3.1 CALMFLOOR shall use the data generated through CALM Connect in order to monitor the performance of the Equipment and, if necessary and where CALM Care is being provided to the Customer, perform CALM Care Services to seek to address any performance issues.
3.2 The proper provision of CALM Connect is conditional on connectivity to the Equipment being maintained at all times. The Customer agrees not to do or permit anything to be done to disconnect or disrupt the connection of the Equipment.
3.3 Whilst CALMFLOOR exercises diligent efforts to ensure that any measurements and data within CALM Connect is accurate, it does not commit or guarantee that they will be or shall always remain so, as variable conditions may impact the validity and reliability of them, and the data shown should not be solely relied upon by the Customer.
3.4 CALMFLOOR does not warrant that the Customer’s use of CALM Connect will be uninterrupted or error-free, or that CALM Connect and/or the information obtained by the Customer through it will be entirely accurate and up to date, and/or meet any particular requirements.
3.5 CALMFLOOR 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 its access to and use of CALM Connect may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
4. CALM Connect Fee
4.1 The CALM Connect Fee shall be payable by the Customer annually in advance (unless otherwise agreed in the Order).
4.2 CALMFLOOR may review the CALM Connect Fee no more than once per annum and may increase the CALM Connect Fee by no more than a percentage equivalent to the latest annual Consumer Price Index rate. CALMFLOOR shall notify the Customer of any change to the CALM Connect Fee and the date on which it is to take effect.
5. Term and renewal
Unless otherwise stated in the Order, CALM Connect shall be provided for an initial period of one (1) year (Initial Term) and, thereafter, shall renew on a rolling annual basis (each a Renewal Term), unless either party gives the other written notice of non-renewal no less than three (3) months prior to the end of the Initial Term or the then current Renewal Term. The Initial Term and Renewal Terms together shall be the Subscription Term.
6. Suspension & Termination
6.1 In addition to the termination rights in the General Terms, and without affecting any other right or remedy available to it, CALMFLOOR may suspend provision of CALM Connect or terminate the Agreement in respect of CALM Connect with immediate effect by giving written notice to the Customer if:
(a) connectivity to the Equipment is lost and the Customer fails to take any steps necessary to reestablish connection;
(b) there is a total loss event in relation to the Equipment; or
(c) the Customer no longer possesses and/or occupies the Installation Location.
6.2 On termination or expiry of CALM Connect, however caused, the Customer agrees that it shall cease to have access to CALM Connect and all associated data
7. CALM Connect basic access
7.1 Where the Customer opts not to subscribe to CALM Connect, or not to continue with a subscription, CALMFLOOR may (in its discretion) provide ongoing access to an unpaid, limited access version of CALM Connect with basic data output, in which case the terms of clauses 2 and 3 of these CALM Connect Terms of Service shall apply to such access. CALMFLOOR may withdraw the Customer’s access to the same at any time and without cause.
SECTION E – CONSULTANCY SERVICES TERMS
1. Application and definitions
1.1 These Consultancy Services Terms apply to the provision of Consultancy Services by CALMFLOOR to the Customer.
1.2 In addition to the definitions shown in Section A, the following definitions shall apply in relation to the Consultancy Services:
Customer Materials: means any documents, data, content and materials provided by or on behalf of the Customer in connection with the performance of the Consultancy Services; and
Deliverables: the tangible outputs of the Consultancy Services, which may comprise written reports and data, as more particularly described in the Order.
2. Consultancy Services
2.1 CALMFLOOR shall provide the Consultancy Services as specified in the Order and in accordance with the Agreement.
2.2 The Consultancy Services shall be performed in such manner, at such times and locations as CALMFLOOR determines in its sole discretion.
2.3 Where access to the Installation Location or other Customer locations is necessary or desirable for the proper performance of the Consultancy Services, the Customer agrees to provide such access as CALMFLOOR reasonably requires, together with access to any associated facilities, utilities, equipment and/or personnel.
2.4 CALMFLOOR shall use its reasonable endeavours to meet estimated dates for performance of the Consultancy Services but such dates are approximate only.
2.5 The Customer agrees to promptly review and inspect any Deliverables provided to it and notify CALMFLOOR within seven (7) days if there is any error or defect. Upon receiving notification, CALMFLOOR shall use reasonable efforts to rectify the error or defect. If no notification is received, the Customer shall be deemed to have accepted the Deliverables.
2.6 The Customer agrees to provide the Customer Materials specified in the Order, if any, and such other Customer Materials as CALMFLOOR reasonably requires for the proper performance of the Consultancy Services.
3. Warranty and disclaimers
3.1 CALMFLOOR warrants to the Customer that:
(a) the Consultancy Services shall be performed using all due care and skill, by suitably qualified personnel;
(b) it shall comply with applicable laws and regulations in the performance of the Consultancy Services; and
(c) the Deliverables (excluding any Customer Materials comprised therein) shall not infringe the Intellectual Property Rights of any third party.
3.2 Whilst CALMFLOOR exercises diligent efforts to ensure that the Deliverables and any measurements and data therein are accurate, it does not commit or guarantee that they will be or shall always remain so, as variable conditions may impact the validity and reliability of them.
3.3 CALMFLOOR does not accept any liability for any inaccuracy in the Deliverables attributable to CALMFLOOR’s use or reliance upon any Customer Materials.
3.4 The Customer acknowledges and agrees that it is solely responsible for any reliance placed upon the Deliverables and the implementation of any recommendation made by CALMFLOOR and CALMFLOOR shall have no liability in connection with the same, unless directly attributable to CALMFLOOR’s own negligence. No reliance should be placed on the Deliverables by any third party.
4. Consultancy Services Fee
4.1 The Consultancy Services Fee shall be invoiced by CALMFLOOR and payable by the Customer at the time(s) shown in the Order and in accordance with clause 6 of Section A (General Terms).
4.2 In addition to the Consultancy Services Fee, CALMFLOOR shall be entitled to recover from the Customer any incidental expenses incurred in connection with the performance of the Consultancy Services, including travel, accommodation and subsistence (where applicable), subject to providing reasonable evidence of such expenses to the Customer.
5. Intellectual Property Rights
5.1 CALMFLOOR shall retain all Intellectual Property Rights comprised in and relating to the Consultancy Services and Deliverables, including its related data, methodologies and know-how.
5.2 The Customer shall retain all Intellectual Property Rights comprised in the Customer Materials.
5.3 CALMFLOOR grants to the Customer a non-exclusive, personal, worldwide, royalty-free, perpetual, irrevocable licence to use the Deliverables for its internal business purposes.
5.4 Notwithstanding the grant of the licence in clause 5.3, the Customer acknowledges and agrees that the Deliverables are confidential and the Customer undertakes that it shall not publicise, disclose to any third party, or otherwise sell, distribute or commercially exploit any part of any Deliverables.
6. Term
6.1 Unless otherwise stated in the Order, the Consultancy Services shall continue until completed and until all Deliverables have been delivered and accepted (or deemed to be so) by the Customer.