Mars 2.0 Terms and Conditions
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Mars 2.0 Terms and Conditions.
1. The Contract.
1.1 In these Terms and Conditions (“Conditions”), Escape Fitness Limited or one of its group of companies, is the Supplier and you are the Customer.
1.2 Upon receipt of a written Quotation, accompanied by these Conditions, (and where design and/or installation is requested; a Programme of Works), the Customer may offer to purchase the Goods and/or Services by signing, dating and returning these Conditions to the Supplier, or submitting a purchase order.
The Supplier will accept the offer by sending to the Customer an Order Confirmation at which time a binding contract will exist between the parties and the Customer may not amend or cancel the Order without the Supplier’s written consent.
1.3 The Customer acknowledges that it has not relied on any statement, promise or representation made, or given by or on behalf of, the Supplier which is not set out in these Conditions. Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions or illustrations of the Goods or Services contained in catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods and Services described in them. They shall not form part of the Contract nor have any contractual force. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade custom, practice or course of dealing. Where the Customer re-sells the Goods, it is the Customers responsibility to ensure the ultimate purchaser is fully acquainted with, and accepts these Conditions. No variation of these Conditions shall be effective unless expressly agreed in writing by the Suppliers authorised signatory.
1.4 These Conditions apply to the supply of both Goods and Services except where application to one or the other is specified.
1.5 The Supplier reserves the right to change these Conditions at any time. The amended Conditions will take effect on the 30th day following the date upon which the amended Conditions are sent to the Customer. The placing of further Orders shall signify the Customers acceptance to be bound by the latest Conditions.
2. Payment.
2.1 The price of the Goods and Services shall be the price set out in the Estimate or Quotation (the latter of which shall be valid for 30 days) or the price stated in any effective Supply Agreement. Prices are quoted net of VAT. VAT is payable by the Customer at the prevailing rate as indicated upon the Estimate, Quotation or Pro-Forma Invoice. Prices are subject to change on not less than 30 days notice.
2.2 Payment for the Goods and Services shall be made in full at the time the Order is placed to the Supplier’s bank account detailed in the Quotation. For Customers who have a credit account with a sufficient credit limit, Goods shall be paid for in accordance with their credit account terms. Time for payment shall be of the essence of the Contract. VAT Invoices are issued when the Goods are dispatched.
2.3 Interest is payable to the Supplier on overdue amounts at the rate of 4% per annum above Barclay’s Bank base rate accruing on a daily basis from the due date until the date of actual payment of the overdue amount.
2.4 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part.
3. Goods and Services.
Orders are accepted for Goods and Services by the Supplier strictly subject to availability and to these Conditions.
4. Customised, Bespoke and Special Order goods.
4.1 In respect of any Order for customised, bespoke or special order Goods (flooring, frames, the FunXtion Experience Station, racks etc), the Customer may not amend or cancel an Order once accepted (including positioning of equipment where installation is involved). It is imperative that all Customer requirements are fully and accurately conveyed to the Supplier prior to acceptance of the Order. The Supplier accepts no liability for costs, expenses, damages and losses (including any direct, indirect or consequential losses) suffered or incurred by the Customer or any sub-contractor, agent or third party employed by the Customer arising out of any delay in delivery or installation of the Goods where such delay is caused by inaccuracies of whatever nature in the Customers Order. To avoid such inaccuracies, the Supplier recommends a site survey of the installation premises. Surveys cost £150 + VAT for flooring and £199 + VAT for Equipment and the liability to pay the Survey Fee arises on submission of the relevant Request Form. The site Survey Fee will be waived when the Customer places an Order for installation and the Escape in-house installation team carry out the Survey. Where Customers do not proceed with the installation for whatever reason, the site Survey Fee shall be invoiced and payable in accordance with clause 2.2 above.
4.2 All designs created in respect of any installation are subject to clause 11 below so that the Customer may not use such designs or any designs that the Supplier believes breach the Suppliers Intellectual Property Rights unless a separate contract for the purchase of a licence to use the designs is negotiated and entered into. This clause 4.2 shall survive termination of the Contract howsoever determined.
4.3 To the extent that any element or component of the Goods (e.g. line markings, bench upholstery) are to be manufactured in accordance with colour and/or design specifications supplied by the Customer, the Customer shall indemnify the Supplier against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses) suffered or incurred by the Supplier in connection with any claim made against the Supplier for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Supplier’s use of that component. This clause 4.3 shall survive termination of the Contract howsoever determined.
4.4 The Supplier reserves the right to amend the Specification of the Goods if required so to do by the manufacturer or any applicable statutory or regulatory body.
4.5 Where Contracts involve installation and the Customers installation area does not comply strictly with the Working Conditions Specification (“ Specification”) detailed in the Programme of Works, the installation shall be delayed until such time as the Customer is compliant with the Specification and the Customer shall be liable to the Supplier for all costs and expenses incurred by the delay. Without prejudice to the generality of this clause; time when appointed contractors are unable to perform the Contract (“Downtime”) shall be payable to the Supplier at the rate of £176.00 per man per day (based on an 8 hour day) plus full reimbursement of all travel, accommodation and other expenses properly incurred in anticipation of performance of the Contract and which cannot otherwise be recouped from the relevant provider by the Supplier (Wasted Costs).
5. Carriage.
Carriage is payable by the Customer in respect of each Order based on the value of the Order. Carriage charges are unaffected by the number of instalments in which the Goods are delivered.
6. Delivery.
6.1 Delivery lead times vary according to the Goods Ordered. If Goods will not be delivered on the “Estimated Delivery Date” detailed on the Order Confirmation, the Customer will be advised of the intended delivery date as soon thereafter as reasonably practical. Any date quoted for delivery of the Goods is approximate only and time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by events beyond its control nor the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
6.2 Customized, bespoke and special order Goods have varying manufacturing lead times (provided by the manufacturer as at the date of the Suppliers Order) which will be notified to the Customer as the Estimated Delivery Date. It will take up to a further 7 days for the Goods to be delivered to the Customer once the Goods are delivered to the Supplier. It is the Customers responsibility to ensure any planned installation date takes account of these times. A firm delivery date will be notified to the Customer once the Goods are under the care and control of the Supplier.
6.3 Delivery of the Goods shall be completed once the Goods arrive at the exterior access point of the delivery address. The Customers’ signature recorded on the Delivery Note (or similar device operated by the carrier) shall be conclusive evidence of the quantities dispatched and delivered.
6.4 It is the responsibility of the Customer to ensure that appropriate arrangements are in place to:
(a) accept delivery of the Goods on the Delivery date; and
(b) where there are large/heavy Goods; provide adequate manpower to unload the Goods from the pallet(s) upon delivery and dispose of any transit packaging supplied; and
(c) for Orders involving installation; arrange to store the Goods pending installation in climatic conditions that will emulate the climate of the area in which the flooring or equipment will be installed and in accordance with the storage instructions (if any) supplied upon delivery.
6.5 If the Customer fails to accept or take delivery of the Goods in accordance with clause 6.4(a) above, then, save where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under this Contract, delivery of the Goods shall be deemed to have been completed at 9.00 am on the day after the Delivery Date notified by the Supplier. The Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance) incurred in this respect. A Force Majeure Event means an event beyond the control of a party (or any person acting on its behalf), which by its nature could not have been foreseen by such party (or such person), or, if it could have been foreseen, was unavoidable, and includes, without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources.
7. Installation.
7.1 The Supplier shall install the flooring or equipment in accordance with the Contract.
7.2 Where installation is delayed under clause 4.5 above; the Supplier may at its own discretion;
(a) perform or assist the Customer to perform the work required to make the Customer installation area compliant with the Specification and the Customer shall be liable only for the additional costs associated with such works at the Wasted Costs rates specified in clause 4.5 above; or
(b) delay the installation in accordance with clause 4.5 above and claim the Wasted Costs thereof; or
(c) cancel the installation and refund to the Customer the sum equivalent to 50% of the cost of installation (as per the Quotation), provided always that the Suppliers’ Wasted Costs are first paid in full (at the rates quoted in clause 4.5 above). In the event that deduction of the Wasted Costs leaves less than 50% of the cost of installation, then the Supplier shall repay the balancing sum only.
7.3 In the event that the Customer changes a confirmed installation date less than 48 hours before the planned start time, the Customer shall be liable for the Suppliers Wasted Costs as detailed in clause 4.5 above.
8. Title and Risk.
8.1 The risk in the Goods shall pass to the Customer on completion of delivery.
8.2 Title to the Goods shall not pass to the Customer until the Supplier has received payment in full (in cash or cleared funds). Until title passes, the Customer shall hold the Goods on a fiduciary basis as the Supplier’s bailee, store the Goods separately from all other Goods held by the Customer and maintain the Goods in new condition and keep them insured against all risks for their full retail price on the Supplier’s behalf from completion of delivery.
8.3 In the event that the Customer proves unable, for whatever reason, to pay in full for the Goods, the Customer hereby irrevocably authorises the Supplier or its agents to enter the Customers’ premises or the premises where the Goods are stored and take possession of the Goods supplied. If any Goods which become subject to this clause 8.3 are sold or hired out by the Customer to any third party before payment is made to the Supplier, then all monies received from such third party transactions are the property of, and will be claimed by the Supplier in satisfaction of and to the extent only of the unpaid Invoices.
9. Cancellations, Amendments and Returns.
9.1 Once an Order is placed by the Customer, the Supplier will issue an Order Confirmation. Orders may only be amended or cancelled if;
(a) the Customer formally notifies the Supplier in writing by email to [email protected] or Customer Services Department, Escape Fitness Limited, Units 11-14 Tresham Road, Orton Southgate, Peterborough, Cambridgeshire, PE2 6SG; and
(b) the notification is received within 14 days of the date of the Order Confirmation; and
(c) no Goods have been dispatched.
A fee of 10% of the Order value (net of VAT) will be charged to cover administration costs in such cases. The Supplier reserves the right to reduce the above fee, in its sole discretion, when the amendment sought by the Customer is “de minimis” or there are other exceptional circumstances justifying the same.
9.2 Where Goods have been dispatched, the Customer may return some or all of the Goods within 14 days after delivery (as recorded by the Carrier) provided that the Customer follows the procedure notified by the Customer Service Department who may be contacted (free in UK on 0800 458 5558 or) on +44 1733 313535 or in writing at [email protected] or Customer Services Department, Escape Fitness Limited, Units 11-14 Tresham Road, Orton Southgate, Peterborough, Cambridgeshire, PE2 6SG . The Goods must be returned to the Supplier at the Customers cost and in a new and unused condition with all original labels and packaging intact. A fee of 20% of the returned Goods value (net of VAT) will be charged to cover administration and stock handling costs. Goods may not be returned unless a returns reference number has been issued by the Suppliers Customer Service Department.
10. Damages and Delivery Discrepancies.
10.1 When signing for a delivery, the Customer is accepting that the correct number of parcels has been delivered and the Goods have not been damaged in transit. All deliveries must therefore be checked as soon as received and BEFORE the Delivery Note is signed as any discrepancy in the consignment MUST be notified to Escape immediately, and within 48 hours at the latest. Please note the time of delivery as recorded on the Delivery Note. If the order is incorrect or damaged, the Customer should either refuse the consignment or record the discrepancy or damage on the Delivery Note. It is the Customers responsibility to ensure that the actions above are followed BEFORE SIGNING as mistakes cannot be rectified once the Goods have been signed for.
10.2 If damage or a discrepancy is identified, the Customer should telephone Escape’s Customer Services Department with full details of the Goods Ordered and the damage or discrepancy identified. At its sole discretion, the Supplier will either replace or repair the Goods. Reports of damage or discrepancy will not be entertained after the expiration of 48 hours from the time of delivery as recorded on the Delivery Note or similar device operated by the carrier. The Customer should only return Goods following the procedures outlined by the Supplier at the time of the report.
11. Intellectual Property Rights.
The Customer acknowledges that all intellectual property rights in the Goods and/or Services (e.g. product design, flooring design, gym design), 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 including all patents, rights to inventions, utility models or prototypes, copyright and related rights, trademarks, service marks, trade, business and domain names, belong to, or are used by Escape under Licence. The Customer agrees that it shall not use the same unless a licence to use them has been granted within a contract for the provision of Goods and/or Services to be supplied by the Supplier.
12. Product Descriptions.
Whilst the Supplier endeavours to ensure that the product images, descriptions, weights and measurements which appear in any Supplier literature are fair and accurate; the colour, packaging and product specification may vary according to manufacturing changes, tolerances and availability. N.B. All weight indications are KG dominant and conversions to Lb’s are therefore approximate. The Supplier accepts no responsibility for any error or omission to the Customer or at all. The Supplier reserves the right to discontinue or change the specification and/or the design of a product without prior notice.
13. Warranties and Limitation of Liability.
13.1 Nothing in these Conditions excludes or limits liability for;
(a) death or personal injury caused by the negligence of the Supplier, or
(b) fraudulent misrepresentation or any other liability that the Supplier may not otherwise exclude or limit under applicable law.
13.2 The Supplier warrants that the Goods supplied to the Customer under this Contract shall be free from defects in materials and workmanship and comply with all applicable statutory and regulatory requirements for not less than the period of the manufacturer’s warranty period.
13.3 The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 13.2 if:
(a) the Customer makes any further use of such Goods after notifying the Supplier of a defect; or
(b) the defect has arisen as a result of the Customer’s failure to follow the Supplier’s oral or written instructions as to the storage or care of the Goods or (if there are none) good trade practice; or
(c) the defect has arisen as a result of the Supplier following any drawing, design or specification supplied by the Customer; or
(d) the Customer alters or repairs the Goods without the prior written consent of the Supplier; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or the use of the Goods for a purpose other than the purpose declared or in abnormal use conditions; or
(f) the Goods differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory standards.
13.4 Except as provided in this clause 13; the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 13.2 or otherwise.
13.5 Subject to clause 13.1 above, the Supplier shall not be liable, in contract or tort, (including, without limitation, negligence), for pre-contract or other representations (other than fraudulent misrepresentations) or otherwise arising out of or in connection with the Conditions for any economic losses (including without limitation loss of profit, revenue, contracts, business or anticipated savings); loss of goodwill or reputation or special or indirect losses suffered or incurred by the Customer arising out of or in connection with the provision of the Goods and Services supplied in respect of this Contract.
13.7 Notwithstanding the above and subject to clause 13.1, the Suppliers aggregate liability (whether in contract, tort or otherwise) for loss or damage shall in any event be limited to a sum equal to the amount paid or payable by the Customer for the Goods in respect of one incident or series of incidents attributable to one cause.
14. General.
14.1 These Conditions, including the documents referred to herein, supersede all prior representations, understandings, agreements and contracts between the Customer and the Supplier relating to the supply of Goods and Services and sets forth the entire agreement and understanding between the Customer and the Supplier.
14.2 Nothing in this Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
14.3 A person who is not a party to the Contract shall not have any rights under or in connection with it.
14.4 The Customer may not assign or sub-contract any of the rights or obligations imposed by this Contract unless agreed to in writing by the Supplier.
14.5 The Supplier reserves the right to transfer, assign, novate or sub-contract the benefit of the whole or part of any of its rights or obligations under these Conditions or any related contract to any third party.
14.6 No delay or failure by the Supplier to exercise any powers, rights or remedies under this Contract will operate as a waiver of them nor will any single or partial exercise of any such powers, rights or remedies preclude any other or any further exercise of them. To take effect any waiver must be in writing and signed by an authorised signatory of the Supplier.
14.7 This Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, English law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of England and Wales.
ESCAPE FITNESS MARS2 SCREEN TERMS AND CONDITIONS OF SUPPLY AND USE.
This agreement contains Escape Fitness’ confidential and sensitive information and is being disclosed in confidence. None of this agreement may be reproduced or further disclosed without our prior consent, save to the extent required by law or to take professional advice from a professional adviser who is under strict duties to keep this agreement confidential.
ESCAPE FITNESS DETAILS:
Escape Fitness Ltd
Eastwood House, Cygnet Park,
Hampton, Peterborough,
Cambridgeshire.
PE7 8FD
Tel: +44 1733 313 535
Company Reg. 4215703
Registered in England
Escape Fitness USA LLC
4434 Muhlhauser Road
Suite 300
West Chester, Ohio
45011
Tel: +1 614 706 4462
Company Reg. 201206600158
Registered in the USA
1. Definitions and interpretation
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Additional Content: any third-party content, Customer branded content, or bespoke content created for the Customer that the Customer requests the Supplier to upload to the Hardware.
Additional Services: any Excluded Maintenance or Development performed by the Supplier under this agreement.
Additional Services Fees: the fees payable in consideration of the provision of any Additional Services, which shall be communicated by the Supplier from time to time.
Business Day: a day, other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Activation Date: the date the Hardware is first activated by the Distributor, Customer or Installer.
Confidential Information: any information (including, without limitation, in written, oral, visual or electronic form which is not publicly available including, but not limited to, any information specifically designated by the disclosing party as confidential; any information supplied to the disclosing party by any third party in relation to which a duty of confidentiality is owed or arises; and any other information which should otherwise be reasonably regarded as possessing a quality of confidence. This includes know-how and information about design, development, specifications, manuals, instructions, customer lists, sales, marketing, promotion, distribution, business plans, forecasts, and technical or other expertise.
Content: all content including text, information, data, software, executable code, images, audio, or video material in any medium or form provided by the Supplier to the Customer.
Contract: these terms and conditions, Important Mandatory Technical Requirements (Available on request).
Corrective Maintenance: in accordance with clause 6.3: a) making any adjustments to the Hardware; and b) replacing any parts or components of the Hardware, in each case, which are required to restore the Hardware to Good Working Order.
Customer: this is the end user as specified during the registration process.
Delivery Materials: the Hardware containing the Software and Content.
Derivative Work: work generated or developed following the date of this agreement which is based on the Content or an underlying work in relation to this (including translations, musical arrangements, dramatizations, fictionalisations, motion picture versions, sound recordings, art reproductions, abridgements, condensations, or any other form in which a work may be recast, transformed or adapted).
Development: addition of Additional Content and/or functional changes to the Hardware.
Distributor: the reseller or Distributor (if any) specified in the Order Form Excluded Causes:
a) use of the Hardware with computer equipment or materials not supplied or approved in writing by the Supplier;
b) any maintenance, alteration, modification, or adjustment performed by persons other than the Supplier or its employees or agents unless approved by the Supplier beforehand;
c) the Customer or a third party moving the Hardware;
d) the use of the Hardware in breach of any of the provisions of the agreement under which the Hardware was supplied;
e) a failure, interruption or surge in the electrical power or its related infrastructure connected to the Hardware;
f) the neglect or misuse of the Hardware;
g) use of unsupported Software.
Excluded Maintenance: any maintenance services required to restore any malfunctioning or failed Hardware to Good Working Order where the malfunction or failure results from or is caused by any of the Excluded Causes.
Good Working Order: means that the Hardware operates in accordance with the Operating Manuals.
Hardware: the products sold (or offered for sale) which include or use the Content.
Important Mandatory Technical Requirements:
The screen should be positioned away from electrostatic and magnetic fields.
The screen should be in a well-ventilated area maximum room temperature 35 degrees centigrade and a humidity of 85%.
The unit needs to be plugged into a physical RJ45 network point within 2.5m distance and the power outlet needs to be within 1.5m. The cables should be routed so they do not cause a trip hazard. Cable clips and insulating sleeves should be installed in accordance with fitting instructions when the MARS unit is installed on a RACK5 or OCTAGON frame.
The network should provide Internet access so that the unit can be licensed, receive content updates and remote support if required. It should also have the ability to receive its IP address from the network.
The minimum recommended speed of internet access should be no less than 2Mbps.
The power supply can be between 100v-240v and should be connected 24 hours per day.
Installation Date: the date on which the Hardware is installed at the Location and first registered.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Location: the location of the Customer’s premises to which the Hardware was delivered by the Supplier or the Distributor.
Maintenance Services: Corrective Maintenance of the Hardware together with the Software Maintenance Services.
Normal Business Hours: 9:00 am to 5:00 pm GMT or BST (Summer Time) on a Business Day.
Operating Manuals: all operating manuals and specifications relating to the Hardware which are provided to the Customer by the Supplier.
Order Form: the order form set out at the start of this document.
Purpose: use of the Hardware at the Location to display the Content to the Customer’s clientele.
Response Time: means prior to the end of the normal business hours on the business day following notification of an error.
Software: any software which is made available by Supplier to Customer, including the firmware installed on the Hardware, and any updates to such software provided from time to time.
Software Maintenance Services: maintenance of the Software.
Supported Software: Software that is provided by the Supplier with the Hardware and any Developments.
Term: the period of 3 years from the Installation Date, unless activated prior to that in which case the 3 years is from Activation Date.
Territory: the country or countries to which the Hardware was delivered to pursuant to an order.
2. Grant of licence
2.1 The Supplier hereby grants to the Customer a non-transferable, non-exclusive licence to use the Content on the Hardware during the Term in the Territory for the Purpose.
2.2 The licence granted to the Customer is strictly limited to, and the Customer shall use the Content solely for, the Purpose.
2.3 The Customer shall not grant sub-licences, in whole or in part, of any of the rights granted under this agreement, or sub-contract any aspects of exploitation of the rights licensed to it, without the Supplier’s prior written consent (such consent not to be unreasonably withheld or delayed).
2.4 The Supplier may require the removal of, or editorial revisions to, any of the Content licensed to the Customer under this agreement at any time. The Customer agrees to permit the Supplier to effect removal or editorial revisions within 14 days of receipt of the request.
3. Supplier’s obligations and rights
3.1 The Supplier shall use all reasonable endeavours to deliver the Delivery Materials to the Customer on or before the Delivery Date.
3.2 The Supplier may develop, market, sell and promote Derivative Works and may exploit (including by licensing it to third parties) the Content in any media, format, or products and for purposes including the Purpose.
3.3 The Supplier may require the Customer to cease all use of any of the Content if it reasonably believes that the Customer’s use of this Content infringes the Intellectual Property Rights of any third party or breaches any applicable law or regulation. In this instance, the Supplier may, at its option either:
(a) provide the Customer with alternative Content to avoid the infringement (but provide the Customer with substantially the same features or functionality or specification); or
(b) terminate this Agreement immediately on written notice in respect of the affected Content.
4. Customer’s obligations and rights
4.1 The Customer may not change, amend, or develop the Content in any way without the Supplier’s prior written consent.
4.2 The Customer shall:
(a) ensure that the Hardware is installed and kept at the Location, under suitable conditions, as specified in the Operating Manuals;
(b) notify the Supplier promptly if the Hardware is discovered to be operating incorrectly;
(c) at all reasonable times permit full and free access to the Location and to the Hardware to the Supplier, its employees, contractors and agents, and provide them with adequate and safe working space, and any telecommunications facilities as are reasonably required to enable the Supplier to perform the Maintenance Services and the Additional Services while at the Location;
(d) provide the Supplier with any information that is reasonably requested in the performance of the Maintenance Services and the Additional Services;
(e) take any steps reasonably necessary to ensure the safety of the Supplier’s personnel when attending the Location;
(f) not allow any person other than the Supplier to maintain, alter, modify or adjust the Hardware without the prior written approval of the Supplier;
(g) not move the Hardware from the Location without the prior written approval of the Supplier (such approval not to be unreasonably withheld or delayed);
(h) store any reserve equipment only in conditions approved by the Supplier, and make this equipment available for periodic maintenance, as with all other Hardware;
(i) only use supplies or materials supplied or approved by the Supplier (such approval not to be unreasonably withheld or delayed); and
(j) only use the Software in accordance with the terms and conditions set out within this document.
4.3 The Customer shall comply with all applicable laws in performing its obligations and exercising its rights under this agreement.
4.4 The Customer shall ensure that the Content is kept secure and shall use the best available practices to prevent, and take prompt and proper remedial action against, unauthorised access, copying, modification, storage, reproduction, display, or distribution of the Content.
4.5 If the Customer becomes aware of any misuse of any Content, or any security breach in connection with this agreement that could compromise the security or integrity of the Content or otherwise adversely affect the Supplier, the Customer shall, at the Customer’s expense, promptly notify the Supplier and fully co-operate with the Supplier to remedy the issue as soon as reasonably practicable. The Supplier may suspend the Customer’s rights under this agreement until the misuse or security breach is remedied.
5. Intellectual Property Rights
The Supplier retains ownership of all Intellectual Property Rights in the Content, and in any Derivative Works which it may create.
6. Maintenance Services
6.1 During the Term, the Supplier shall provide the Customer with the Maintenance Services.
6.2 On the Customer informing the Supplier that the Hardware is malfunctioning or has failed or is otherwise not in Good Working Order, the Supplier shall:
(a) perform Corrective Maintenance of the Hardware within the Response Time; and
(b) where, in the Supplier’s opinion, it cannot reasonably perform Corrective Maintenance remotely, request the Customer to return the Hardware to the Supplier for repair or replacement. In the case that the Customer purchased the Hardware from the Distributor, the Distributor shall arrange for the Hardware to be returned to it and subsequently delivered to the Supplier. In such circumstances, the Distributor shall be responsible for delivering repaired or replacement Hardware to the Customer.
6.3 In performing any Maintenance Services, the Supplier shall use all reasonable endeavours to restore any malfunctioning or failed Hardware to Good Working Order remotely. Where this is not reasonably practicable, or not reasonably practicable the Supplier shall complete the Corrective Maintenance off-site, or arrange for replacement of the Hardware.
6.4 The Supplier shall not be required to perform any maintenance or support in relation to either:
(a) Unsupported Software.
(b) Supported Software where Customer is in breach of this agreement;
7. Excluded Maintenance
7.1 The Supplier is not obliged to perform any Excluded Maintenance.
7.2 Where the Supplier is performing or has performed the Maintenance Services in circumstances where it is established that the Hardware was not in Good Working Order due to any of the Excluded Causes, the Supplier may charge, and the Customer shall pay, the Additional Services Fees in respect of that work.
8. Charges
8.1 For the performance of Corrective Maintenance and Software Maintenance Services, no charges will be payable by the Customer.
8.2 For the performance of any Additional Services, the Customer shall pay to the Supplier the Additional Services Fees.
8.3 If the Customer fails to make any payment due to the Supplier under this agreement by the due date for payment, then, without limiting the Supplier’s remedies under clause 11, the Customer shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue daily 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.
9. Taxes and withholdings
9.1 All payments to be made by the Customer under this agreement are exclusive of: value added tax (if applicable); consumption tax, other sales tax; and customs duty, which shall, where appropriate, be payable by the Customer.
9.2 All payments to be made by the Customer under this agreement (except any deduction or withholding which is required by law) shall be paid free and clear of any deductions or withholdings.
10. Warranties
10.1 Each party warrants to the other that it has full power and authority to enter into, and perform its obligations under, this agreement.
10.2 The Supplier represents and warrants that the Content does not infringe any third party’s Intellectual Property Rights within the Territory.
10.3 The Supplier represents and warrants that the Maintenance Services and the Additional Services shall be performed:
(i) by an appropriate number of suitably qualified and experienced personnel;
(ii) using all reasonable skill and care; and
(iii) in accordance with all laws and regulations in force from time to time which are applicable to the Supplier.
10.4 Except as expressly stated in this agreement, all warranties, conditions, and terms, whether express or implied by statute, common law or otherwise (including satisfactory quality, fitness for purpose and suitability) are hereby excluded to the fullest extent permitted by law.
11. Indemnity
11.1 Subject to clause 12.2, the Customer shall indemnify the Supplier against all claims, liabilities and expenses arising out of:
(a) the Customer’s activities under this agreement;
(b) personal injury to the Customer’s clientele;
(c) the Customer’s failure to comply with all applicable laws and regulations.
11.2 The Supplier shall indemnify the Customer against all claims, liabilities and expenses arising out of any claim that the Customer’s use of the Content, duly approved in accordance with the provisions of this agreement, infringes the rights of any third party in the Territory. If the use or possession of the Content (as permitted under this agreement) infringes or, in the Supplier’s opinion, is likely to infringe any intellectual property right of a third party in the Territory, the Supplier may at its option and expense:
(a) procure for the Customer the right to continue to use the Content free from any liability for such infringement;
(b) modify or replace the Content so as to avoid the infringement;
(c) terminate this agreement immediately on written notice.
11.3 Any indemnity under this agreement shall only apply to the extent that the indemnified party:
(a) promptly notifies the indemnifying party in writing of any claim or suit relevant to the indemnity;
(b) makes no admissions or settlements without the indemnifying party’s prior written consent;
(c) allows the indemnifying party complete control over any negotiations or litigation and/or the defence or settlement of such suit or claim; and
(d) gives the indemnifying party all information and assistance as it may reasonably require.
12. Infringement
12.1 Each party shall promptly notify the other of any actual or suspected infringement of the Content within the Territory that comes to its attention (Infringement).
12.2 The Customer shall co-operate fully with the Supplier by taking all steps required by the Supplier (in its sole discretion) in connection with any Infringement. The Supplier shall be responsible for the cost of any legal proceedings it requires, and is entitled to any damages, account of profits and/or awards of costs recovered. The Customer shall use its best endeavours to assist the Supplier in any legal proceedings relating to any Infringement.
13. Data protection
13.1 In this Clause 13:
13.2 “Data Protection Legislation” means the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR), the Data Protection Act 2018 and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time and/or any equivalent data protection legislation in the territory of the Supplier or Customer; and
13.3 “personal data” and “data controller” shall mean the terms as defined in the Data Protection Legislation.
13.4 All personal data that either Party (“First Party”) may use will be collected, processed, and held by that First Party in accordance with the provisions of Data Protection Legislation and the rights under the Data Protection Legislation of the other Party to this Agreement (“Other Party”).
13.5 For complete details of the First Party’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Other Party’s and any third party’s rights and how to exercise them, and personal data sharing (where applicable), the Other Party should refer to the privacy notice of the First Party.
13.6 Each Party considers that it will be a data controller in respect of any personal data of Prospective Clients shared under this Agreement. If the Parties are found to be joint data controllers of any Prospective Clients’ personal data, and one Party is sued, fined, or otherwise incurs any expense because of a breach of its data protection obligations, the Party at fault agrees to indemnify the other Party for any expenses incurred by them in connection with its actions or omissions in respect of that personal data.
Escape Fitness MARS2 Screen. Terms and Conditions of Supply and Use 2023.
14. Termination
14.1 Without affecting any other right or remedy available to it, the Supplier may terminate this agreement with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 60 days after being notified in writing to make such payment; or
(b) the Customer commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 60 days after being notified in writing to do so; or
(c) the Customer repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement.
14.2 On any expiration or termination of this agreement:
(a) all rights and authorisations granted by the Supplier to the Customer under this agreement shall automatically terminate and immediately revert to the Supplier; and
(b) the Customer shall immediately cease all use of the Content. The Supplier reserves the right to disable the Content on the Hardware upon termination or expiry of this agreement.
15. Liability
15.1 Save where expressly provided, all conditions, warranties or other terms which might have effect between the parties or be implied or incorporated into this licence or any collateral contract, whether by statute, common law or otherwise, are hereby excluded to the maximum extent permitted by law.
15.2 Nothing in this licence shall operate to exclude or limit the Supplier’s liability for:
(a) death or personal injury caused by its negligence;
(b) fraud; or
(c) any other liability which cannot be excluded or limited under applicable law.
15.3 The Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, and whether the same arise in contract, tort (including negligence) or otherwise howsoever, which fall within any of the following categories: loss of use; loss of profits; loss of anticipated savings; loss of business opportunity; loss of contracts; loss of goodwill; or loss arising from damaged, corrupted or lost data.
15.4 Subject to clause 15.2, the Supplier’s liability, whether in contract, tort (including negligence), or otherwise and whether in connection with this licence or any collateral contract, shall not exceed the amount paid by the Customer to the Supplier in respect of the Hardware.
16. Third party rights
16.1 Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.
17. Assignment and other dealings
17.1 The Customer shall not assign, transfer, mortgage, charge, subcontract, sub-license (subject to clause 2.3), delegate, declare a trust over or deal in any manner with this agreement or any of its rights and obligations under this agreement without the prior written consent of the Supplier (such consent not to be unreasonably withheld or delayed).
17.2 The Supplier may at any time assign, mortgage, charge, delegate, declare a trust over or deal in any other manner with any or all of its rights under this agreement, provided that the Supplier gives prior written notice of such dealing to the Customer.
18. Force majeure
Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed. If the period of delay or non-performance continues for three months, the party not affected may terminate this agreement by giving 14 days written notice to the affected party.
19. Severance
19.1 If any provision or part-provision of this agreement 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 this agreement.
19.2 If any provision or part-provision of this agreement is deemed deleted under Clause 19.3 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.
20. Counterparts
20.1 This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
21. No partnership or agency
21.1 Nothing in this agreement 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 any commitments for or on behalf of any other party.
21.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
22. Confidentiality
22.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after the expiry or termination of this agreement, 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, nor any of the terms of this agreement, except as permitted by clause 22.2.
22.2 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 this agreement. 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 22.2; and
(b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
22.3 No party shall use any other party’s Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.
23. Notices
23.1 Any notice or other communication given to a party under or in connection with this agreement shall be in writing and shall be:
(a) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case);
(b) sent by international signed for post, or other priority international postal service to its registered office (if a company) or its principal place of business or residence (in any other case); or
(c) sent by email to the address specified by the parties from time to time.
23.2 Any notice or communication shall be deemed to have been received:
(a) if delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;
(b) if sent by next working day delivery service, at 9.00 am on the second Business Day after posting;
(c) if sent by international postal service, at 9.00 am on the fifth Business Day after posting;
(d) if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 23.2(d), business hours mean 9.00 am to 5.00 pm Monday to Friday on a day that is not a public holiday in the place of receipt.
23.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
24. Inadequacy of damages
Without prejudice to any other rights or remedies that the Supplier may have, the Customer acknowledges and agrees that damages alone would not be an adequate remedy for any breach of the terms of this agreement by the Customer. Accordingly, the Supplier shall be entitled to the remedies of injunction, specific performance, or other equitable relief for any threatened or actual breach of the terms of this agreement.
25. Further assurance
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.
26. Waiver
No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
Escape Fitness MARS2 Screen. Terms and Conditions of Supply and Use 2023.
27. Entire agreement
27.1 This agreement 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.
27.2 Each party agrees that it shall have no remedies in respect of any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in this agreement.
28. Variation
No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
29. Governing law
This agreement and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of the State of California, United States of America.
30. Jurisdiction
Each party irrevocably agrees that the courts of the State of California, United States of America shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this agreement or its subject matter or formation.
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