Terms and Conditions

These Terms and Conditions (Terms) govern the supply of goods and/or services provided by the Supplier and shall govern to all Orders, unless expressly agreed in writing.

 

1. Definitions

1.1 In these Terms all capitalised words and expressions shall have the same meaning ascribed to then in the Order or as defined in these Terms.

Charges means the fee, recurring contract fees, services charges and any other charges incurred from time to time.

Documentation means the operating guides, user materials and service available for the Licensed Products.

Licensed Products means the software products hosted services or licensed platforms identified in the Order/Orders means the Service Agreement, any variations and subsequent Orders/agreements entered between the Customer and Supplier.

Service/Services means the provisions of the Licensed Products, goods, hardware and any other services offered by the Supplier, stipulated in the Order or from time to time in the future.

2. The Services

2.1 The Supplier shall use commercially reasonable endeavours to provide the Service/Services and for the period stated in the Order to which the Customer subscribes and pays all associated Charges.

2.2 Any delivery dates, implementation activities, and onboarding steps are indicative only unless expressly agreed otherwise in writing. The Customer shall provide all reasonable cooperation, including access, information, data, and third-party dependencies, as may be required to enable the timely delivery and implementation of the Services.

2.3 The Customer’s use of the Licensed Products is also subject to the Additional Terms.

2.4 Customer’s acquiring maintenance and support Services are governed by the support services and service levels set out in Clause 6.

2.5 The Supplier confirms that it has all the rights and consents in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, these Terms.

2.6 The Supplier reserves the right to modify, enhance, or supplement the Services at any time in its sole discretion, provided that such changes do not result in a material change.

2.7 The Supplier may provide or procure access to the Customer Documentation relating to the Licensed Products, which may be updated time to time.  Documentation is provided for the Customer's internal use. The Supplier is not obliged to provide bespoke documentation unless expressly agreed in writing.

3. Charge

3.1 The Customer shall pay the Charges as set out in the Order.  All Charges are payable annually in advance.

 

 

 

3.2 Support Service fees are payable in advance and are non-refundable

3.3 The Supplier shall invoice the Charges, and the Customer shall pay within thirty (30) days from date of an invoice issued to the Customer (Due Date).

3.4 All invoices shall be sent to the Customer electronically.

3.5   All Charges will be paid by electronic transfer to the following bank account stipulate on the invoice.

3.6 If the Customer fails to make payment in accordance with this Clause 3 the Supplier shall be entitled to levy interest on the overdue amount at the rate of 4% above the Bank of England base rate from time to time in force, from the Due Date until payment. The Supplier further reserves the right to suspend (Clause 12) or terminate (Clause 4) its performance of the Services.

3.7 On each anniversary of the Commencement Date, the Supplier may adjust Charges in line with the increase in the Retail Price Index or similar index published by the Office for National Statistics.

4. Term and Termination

4.1 The Order shall commence on the Commencement Date and shall continue in full force and effect for the Initial Term as stated on the Order, or if no period is stated, for Thirty-Six (36) months, unless it is terminated earlier in accordance with Clause 4.2.

4.2 At the end of the Initial Term, the Order shall automatically renew for successive periods of twelve (12) months (each a Renewal Term) unless either party gives written notice of termination at least thirty (30) days prior to the end of the Initial Term or any Renewal Term.

4.3 Either Party may terminate by giving written notice to the other Party if:

• the other Party commits a material breach of these Terms and (in the case of a remediable breach) fails to remedy the breach within thirty (30) days of receiving written notice requiring it to do so.
• the other Party becomes unable to pay its debts as they fall due, admits its inability to pay its debts or becomes insolvent; or a petition is presented, an order made or a resolution passed for the liquidation, administration, bankruptcy or dissolution of the other Party; or an administrative or other receiver, manager, trustee, liquidator, administrator or similar person or officer is appointed to the other Party and/or over all or any part of the assets of the other Party; or the other Party enters into or proposes any arrangement concerning its debts with its creditors (any class of its creditors).

5. Consequences of Termination

5.1 0n termination of an Order all licences and rights granted thereunder shall immediately terminate and the Customer shall immediately cease its use all Services.

5.2Customer shall promptly pay to the Supplier all outstanding Charges due.

6. Licensed Products and Hardware

6.1 The Customer acknowledges that that the Supplier’s right to supply, support and maintain the Licensed Product are provided under separate licence from a third-party licensor. Nothing in these Terms grants the Customer any greater rights in respect of the Licensed Product than those granted to the Supplier by the relevant licensor.

6.2 If at any time during the Term the Licensed Product is withdrawn, discontinued or declared end-of-life by the licensor, the Supplier may, upon written notice to the Customer replace the Licensed Product with a reasonably equivalent alternative solution and the Supplier shall use commercially reasonable endeavours to ensure that any replacement solution provides substantially similar core functionality.

6.3   The Customer’s use of the Licensed Products is also subject to the Additional Terms

6.4 The Supplier warrants that any hardware supplied under shall conform to its specification at the time of delivery and, where applicable, shall be compatible with the Licensed Product version current at the date of supply.

6.5 The Supplier does not warrant that the Hardware will remain compatible with:

(a) future versions, upgrades or modifications of the Licensed Product;

(b) third-party system changes;

(c) regulatory or network changes; or

(d) any replacement solution implemented pursuant to clause 6.2.

6.6  Where continued use of the Services requires hardware replacement, upgrade or modification due to licensor changes, end-of-life announcements or technical evolution of the Licensed Product, the cost of such replacement or upgrade shall be borne by the Customer.

6.7 The Supplier shall not be liable for hardware obsolescence arising from third-party product changes outside the Supplier’s reasonable control.

• Support Services

7.1 The Supplier shall provide the Services expressly identified in the Supported Elements Matrix and the Service Level Description. Any services, equipment, systems or incidents outside that scope shall be treated as out-of-scope and may be chargeable.

7.2 The Customer is obliged to report an incident and request support by way of email using Service Desk email address: support@airwave.tv. Subsequent in-hours support is available by phone using: +44 1403 783 483.If out-of-hours support is selected then the Customer may call the dedicated phone number provided as part of the contract package.

7.3 To enable the Supplier to perform its obligations, the Customer shall provide safe and reasonable access to the premises and relevant equipment, maintain suitable environmental and power conditions, and ensure that no unauthorised person tampers with, modifies or interferes with the systems covered by the Order.

7.4 PPM and Periodic Inspection: where expressly included within the agreed Order (specifically not included with Helpline or Remote Services), the Supplier shall carry out one planned preventative maintenance visit in each 12-month period of the Term, and shall make such adjustments as may be necessary in the opinion of the engineer to keep the supported elements in good working order. If in the sole opinion of the engineer it is necessary to renew any part or parts to maintain the system in good working order, such part or parts shall be replaced at the expense of the Customer unless expressly included within the agreed support scope.

7.4 Callouts and Incident Response: on being notified of a fault affecting a supported element, the Supplier shall provide remote support and, where required and covered, shall attend site in accordance with the agreed service level. Attendance and resolution commitments are subject to reasonable transportation links, engineer availability, safe access and the exclusions set out in the Order. The repair of any fault on the system, or the renewal and replacement of any part or parts caused by misuse, user error, vandalism, water ingress, over-heating, tampering by unauthorised persons, adverse weather conditions or insurable risk shall be at the expense of the Customer and not at the expense of Supplier. Any additions, alterations or modifications to the systems shall, during the continuance of the Services shall be contracted to Supplier to carry out and will be chargeable to the Customer at the Supplier's current standard scale charges.

7.5 Timings and Criticality: calls shall be handled in accordance with the Service Level Description of the Order and any critical cover expressly included in the Supported Elements Matrix. Unless critical cover is expressly included, calls shall be treated as non-critical. Any critical or out-of-hours support outside the agreed scope may be chargeable and remains subject to engineer availability.

7.6  Critical Incident: a critical incident means a fault, failure or service interruption which: (a) affects 25% or more of the TVs/endpoints covered by the Order at the relevant site; and (b) is, on the balance of probabilities, caused by or directly related to one or more of the Supported Elements included within the Customer's selected service level cover. For the avoidance of doubt: (i) a fault affecting fewer than 25% of the covered TVs / endpoints shall ordinarily be treated as an on-critical incident unless the Supplier reasonably determines that the fault is likely to escalate into a Critical Incident; (ii) an incident shall not be treated as a Critical Incident where the probable cause relates to equipment, services, software, cabling, power, connectivity or other elements not included within the Supported Elements covered by the Order; and (iii) the Supplier shall act reasonably in determining whether an incident meets the threshold for Critical Incident treatment.

7.7 Limits: support Services do not include free replacement of wiring, cables, consumer-replaceable accessories, cosmetic items or any item specifically excluded in the Order. The Supplier may also decline to carry out work it reasonably considers unsafe.

7.8 Exclusions: without limitation, support Services exclude manufacturer recalls; modifications or upgrades; weather-related damage; theft, attempted theft, fire, vandalism or malicious damage; failures caused by incorrect electrical supply; misuse, user error, rust, corrosion, water ingress or over-heating; cable faults; cosmetic damage; and transmission or third-party platform changes outside the Supplier's control. Any costs borne by the Supplier for "user error" may be chargeable to the Customer.

8. Intellectual Property

8.1 All intellectual property rights in the Services (including software, documentation, hardware and any other materials) or any intellectual property generated during the Term shall remain vested in Supplier or any their-party licensors. Nothing in these  Terms shall have the effect of transferring the operatorship or ownership of such intellectual property rights to the Customer.

9. Confidentiality

9.1 Each party shall keep confidential and not disclose to any third party any confidential or proprietary information received from the other party in connection with the Services, except where required by law or with the other party’s prior written consent. This obligation shall survive termination of the Order.

9.2 Data Protection: Each party shall comply with its respective obligations under Applicable Data Protection Laws. For the purposes of these Terms “Applicable Data Protection Laws” means all laws and regulations relating to the processing of personal data applicable to the parties, including the UK GDPR and, where applicable, the EU GDPR.

9.3 To the extent that either party processes personal data in connection with the Services, it may act as a Data Controller, Data Processor, or Sub-Processor (as applicable). Where a party acts as a Data Processor or Sub-Processor, it shall:

1. process personal data only on documented instructions from the relevant Data Controller;
2. implement appropriate technical and organisational measures to protect personal data;
3. ensure that persons authorised to process personal data are subject to confidentiality obligations; and
4. notify the Data Controller without undue delay upon becoming aware of a personal data breach.

9.4 Airwave maintains a GDPR Processor/Sub-Processor Policy, which it shall comply with in performing its obligations under these Terms.

10. Liabilities

10.1 Nothing in these this Terms shall operate to limit or exclude either Party’s liability to the other for death or personal injury arising out of its negligence, fraudulent misrepresentation, or fraudulent concealment, or for any other liability that cannot be excluded or limited by applicable law.

10.2 The Supplier’s maximum liability to the Customer however arising (including breach of contract, misrepresentation (whether tortious or statutory), tort (including negligence), breach of statutory duty or otherwise), shall be limited to the total amounts actually paid by the Customer under the applicable Order in the twelve (12) months immediately preceding the date on which the liability arose.

10.3 Subject to Clause 10.1, neither Party shall be liable to the other for any of the following types of loss or damage, whatsoever, whether or not such losses were foreseeable or was advised in advance of the possibility of such loss or damage.

1. any loss of profits, goodwill, or revenue or any business interruption; or
2. any indirect or consequential loss or damage
3. Warranties

11.1 The Services, including any third-party software made available as part of the Services, are provided on an "AS IS" and "AS AVAILABLE" basis. The Supplier makes no representations or warranties, and expressly disclaims all warranties, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, non-infringement, accuracy, reliability, or that the Services will meet the Customer’s requirements, operate without interruption, or be error-free. or free from vulnerabilities.

11.2 Each Party warrants to the other Party that:

1. it has all requisite authority to enter an Order and these Terms.
2. The Supplier will use all reasonable skill and care in the providing the Services.
3. Each Party will comply with all applicable laws and regulations in performing its obligations.
4. The Customer shall procure any necessary licences, authorisations required by any applicable authorities required for the Services.

12. Indemnities

12.1 The Supplier will indemnify the Customer against third-party claims where the use of the Services infringes any intellectual property rights, including copyright, trademark, patent, or trade secrets, provided the Services are used as supplied and not modified or combined with other materials.

12.2 The Customer shall indemnify and hold harmless the Supplier against any third-party claims, losses, damages, or expenses arising out of or in connection with: (a) any modification, misuse, or unauthorised use of the Services by the Customer; or (b) the inclusion or use of any materials, data, or specifications provided by the Customer that infringe the intellectual property rights of a third party.

13. Suspension

13.1 The Supplier may by written notice to the Customer, suspend the Service or Services under these Terms for any breach by the Customer, including breach of the Clause 4 obligation to make timely payments or any other breach that entitles the Supplier to terminate the Services in accordance with Clause 4.3.

13.2 Suspension of the Services shall not relieve the Customer of its obligation to continue paying all applicable Charges during the period of suspension.

14. Publicity

15.1 The Customer acknowledges and agrees that the Supplier may reference the Customer as a client or customer in its marketing and promotional materials, including but not limited to brochures, websites, press releases, case studies, and social media platforms, provided that such references are accurate and do not disclose any confidential information. The Supplier shall not use Customer’s trademarks or service marks without prior permission. 

15. Audit

15.1 Upon reasonable notice by the Supplier the Customer, and not more than once annually (unless prior violations have been discovered), the Supplier may inspect and audit relevant Customer records relating to the Service or Services to ensure Customer’s compliance with these Terms.

16. Assignment and Sub-Contracting

16.1 The Supplier may assign, novate, transfer, sub-contract, or sub-license any or all its rights and obligations without the consent of the Customer.

16.2 The Customer shall not assign, novate, transfer, sub-contract, or sub-license any of its rights or obligations without the prior written consent of the Supplier.

17. Notices

17.1 Any notice from one Party to the other Party that is required to be given (Notice) must be in writing using the details set out in the relevant Order.

17.2 Any Notice shall be deemed to have been served: if delivered by hand, at the time and date of delivery and if sent by recorded delivery or registered post, two Business Days from the date of posting (such date as evidenced by postal receipt),

18. Disputes, Governing Law and Jurisdiction

18.1 The Parties shall use reasonable efforts to resolve any dispute through good faith discussions.

18.2 The Terms shall be governed by and construed in accordance with the laws of England and Wales.

18.3 The courts of England and Wales shall have exclusive jurisdiction.

19. General Legal Terms

19.1Entire Agreement This Terms constitutes the entire agreement between the Parties and supersedes any prior discussions, correspondence, representations, warranties, or agreements relating to its subject matter. Each Party acknowledges that it has not relied on any representation or warranty not expressly set out in these Terms.

19.2 Variation No variation of this Terms shall be effective unless made in writing and signed by authorised representatives of both Parties.

19.3 Waiver A failure or delay by either Party to exercise any right or remedy shall not 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.

19.4 Severance If any provision of these Terms are held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, that provision shall be deemed severed and the remainder of the Terms shall remain in full force and effect.

19.5 Force Majeure Neither Party shall be liable for any delay or failure in performing its obligations under where such delay or failure results from events, circumstances, or causes beyond its reasonable control.

19.6 No Partnership or Agency Nothing in these Terms are intended to or shall be deemed to establish any partnership or joint venture between the Parties, constitute one Party as the agent of the other, or authorise either Party to make or enter any commitments on behalf of the other.

19.7 Third Party Rights A person who is not a Party to these Terms shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

 

Additional Terms – Licensed Products Use

1.Software Licencing

1.1 In these Additional Terms “Software” refers to the products  identified as Licensed Products in the Order together with any associated code(s), password(s) username(s) documentation and updates.

1.2 The Software is licensed solely to the Customer named in the Order. This licence does not extend to any affiliates, subsidiaries, parent companies, group companies, or any other related entities unless expressly agreed in writing by the Supplier.

1.3 The Customer is granted a non-exclusive, non-transferable, revocable licence to access and use the Software solely  in connection with hardware installed or leased to the Customer by the Supplier at the designated site(s).

The Software may be accessed by the Customer and its authorised users via a web-based user interface from any location, provided that such access is solely for the purpose of operating, monitoring and managing the system and delivering audiovisual or interactive services at the designated site(s).

1.4 The Customer must not use any hardware installed or leased by the Supplier for any purpose other than the Services without the Supplier’s prior written consent. Any approved additional use shall be implemented by the Supplier at the Customer’s cost, subject to prior written quotation and agreement. The Supplier shall have no obligation to approve any request where it reasonably considers that the proposed use may adversely affect the Services, system performance or integrity.

1.5 To the extent the Software includes, or the usage requires hardware, software, components and/or parts provided by the Customer or a third party (subject to prior approval of the Supplier) the provision of which will be at Customer’s cost and risk, and access and use shall be exclusively governed by these Additional Terms.

1.6 The Supplier shall provide the latest version of the Software as of the time of licensing and shall include any updates, patches, upgrades issued duration of the Term. For the avoidance of doubt, new modules, enhanced functions, new releases or separate products are subject to separate or additional charges and shall not be part of the Software, unless otherwise specifically agreed in writing with the Supplier.

1.6 Any documentation, which shall include the technical program or interface documentation, user manuals, operating instructions, and release notes shall be made available via the web-based interface.

2. Fees and Payment

2.1 The Charges for the Software licence is specified in part A of the Order Form. These fees may include periodic charges (such as monthly or annual subscription fees) that the Customer agrees to pay for the duration of the Initial term and any Renewal term.

3.Third Party Licencing Terms

3.1The Customer further acknowledges and agrees that use of the Software is subject to the standard licensing terms imposed by the third-party licensor(s) (“Third-Party Licensor(s)”) from whom the Supplier sources the Software. Such terms may be provided separately in writing or made available via the software interface or the software provider’s website.

• 2 Where required by the Third-Party Licensor(s), the Customer may be obliged to accept such terms (including any applicable End User Licence Agreement (EULA)) prior to or as a condition of accessing or continuing to use the Software.
• 3 The Customer agrees to comply with Clause 3.2 and all such terms and acknowledges that failure to do so may result in suspension or termination of Software access.
• 4 The Customer acknowledges that all intellectual property rights in the Software and/or Services are owned by the Supplier and/or its Third-Party Licensors. Except as expressly stated in this Agreement, no rights are granted in respect of any patents, copyrights, database rights, trade secrets, trade names, trademarks (registered or unregistered), or other intellectual property rights.
• 5 The Customer shall not, and shall not permit any third party to:

1. use the Software with external programs in a manner that intentionally circumvents contractual usage restrictions; or
2. copy, modify, adapt, translate, or
3. create derivative works based on the Software; or
4. reverse engineer, decompile, disassemble, or otherwise attempt to derive source code from the Software; or
5. sublicense, rent, lease, assign, remove or modify a copyright or other proprietary rights notice; or
6. use the Services for any illegal purpose or in any manner inconsistent with these Terms
7. use the Software outside the scope of the licence granted under this Agreement.

3.6 The Supplier shall not be liable for its failure in the Software to the extent that such failure is attributable to an act or omission of the Third-Party Licensor(s).