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CUSTODIA SYSTEMS AppelloGEO Terms and Conditions
By continuing with your purchase or website use, you are consenting to the Terms and Conditions below which will govern all future business between CUSTODIA SYSTEMS and you, further referred to as the CUSTOMER.
CUSTODIA SYSTEMS principle trading address is 45 Shenley Pavilions, Chalkdell Drive, Milton Keynes, MK5 6LB.
WHEREAS, CUSTODIA SYSTEMS is engaged in the business of being a value an exclusive CUSTOMER in your territory, selling security and tracking services and products (collectively “Services”);
WHEREAS, CUSTOMER desires to purchase and use the CUSTODIA SYSTEMS products and services subject to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the mutual promises made herein, the parties agree as follows:
1. Definitions
1.0 Agreements. The term "AGREEMENT" when used herein means this document and any annex, exhibit, attachment, schedule, addendum, or modification hereto, unless the context otherwise indicates.
1.1 CUSTOMER. The term "CUSTOMER(S)" when used herein means any existing or potential purchaser of PRODUCTS as notified to CUSTODIA SYSTEMS. Notification shall include the contact name, department and company.
1.2 Products. The term "PRODUCTS" when used herein means those products and/or services of CUSTODIA SYSTEMS and or its licensors, its contractors and subcontractors that are offered for sale or sold by or through CUSTODIA SYSTEMS. CUSTODIA SYSTEMS’S list of PRODUCTS is available from www.appellogeo.com and or www.custodia-systems.co.uk.
1.3 " Affiliate" shall mean, with reference to either Partner, any person or entity that, directly or indirectly through one or more intermediaries, controls, or is controlled by or is under common control with such Partner. For purposes of the definition of Affiliate and as such term is used in Section 9 hereof, the term "control" (including the terms "controlling", "controlled by" and "under common control with") means the possession, directly of indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.
1.4 Appello. Shall refer to the Appello or AppelloGEO asset recovery system.
2. Terms and Conditions for Sale
2.1 The prices charged to the CUSTOMER for PRODUCTS purchased hereunder shall be the ‘Price to CUSTOMER’ shown in the document ‘Pricing and Technical Data’. All prices are expressed and shall be payable in UK Sterling.
2.2 Payment terms are due in full at time order is placed unless otherwise agreed in writing.
3. Hardware Warranty
The warranty is for a period of 1 year. The warranty period applies from the date of purchase by the first customer and is transferable only between end-users.
The warranty covers manufacturing defects only. Please note that this does not include consumables items such as batteries. The liability of Custodia systems (or its appointed agent) is limited to the cost of repair and/or replacement of the product under warranty. The warranty is invalidated if the defect is caused (howsoever) by misuse, neglect, tampering or incorrect adjustment. It is invalidated if unauthorised persons carry out any alterations and/or repairs. Also, the warranty is invalidated in the following cases:
• For repair due to incorrect installation.
• For repair to any product where the serial number has been removed and the unit cannot be identified by other means.
• Where any ancillary equipment not furnished or recommended by Custodia Systems causes problems or damage that is attached to or used in connection with the product.
We will not be liable to you (whether under the law of contract, the law of torts or otherwise) in relation to this User Guide, the AppelloGEO or our Theft Finder Service for any direct, indirect, special or consequential loss; or for any business losses, loss of revenue, income, profits or anticipated savings, loss of contracts or business relationships, loss of reputation or goodwill, or loss or corruption of information or data.
4. Warranty and Liability
4.1 Subject to the conditions set out below CUSTOMER warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in materials and workmanship for a period of twelve (12) months from delivery. CUSTOMER reserves the right, without prior notice, to discontinue any product or to change the design of a product as part of its Product Improvement Programme.
4.2 The above warranty is given by CUSTOMER subject to the following condition:
4.3 CUSTOMER shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment;
4.4 Where the Goods are sold under a consumer transaction (as defined by the Sales of Goods Act) the statutory rights of Buyer are not affected by these Conditions.
4.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to CUSTOMER in accordance with Conditions, CUSTOMER shall be entitled to replace the Goods (or the part in question) free of charge or, at CUSTOMER’s sole discretion, refund to Buyer the price of the Goods (or a proportionate part of the price), but CUSTOMER shall have no further liability to Buyer.
4.6 Except in respect of death or personal injury caused by CUSTOMER’s negligence, CUSTOMER shall not be liable to Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of CUSTOMER, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by Buyer, except as expressly provided in these Conditions.
4.7 CUSTOMER’s obligations for any defect in the Goods shall not arise if Buyer shall have attempted to rectify, alter or dismantle the Goods in any way.
4.8 CUSTOMER shall not be liable to Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of CUSTOMER’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond CUSTOMER’s reasonable control.
4.9 Neither party shall have the right to recover damages or to indemnification of any nature, whether by way of lost profits, expenditures for promotion, and payment for good will or otherwise made in connection with the business contemplated by this Agreement, due to the expiration or permitted or lawful termination of this Agreement. EACH PARTY WAIVES AND RELEASES THE OTHER FROM ANY CLAIM TO COMPENSATION OR INDEMNITY FOR TERMINATION OF THE BUSINESS RELATIONSHIP UNLESS TERMINATION IS IN MATERIAL BREACH OF THIS AGREEMENT.
4.10 Each party agrees to be responsible and assumes liability for its own negligent acts or omissions, or those of its officers, agents, or employees to the fullest extent required by law, and agrees to save, indemnify, defend, and hold the other party harmless from any such liability.
4.11 CUSTODIA SYSTEMS does not provide any guarantee of recovery of any item the AppelloGEO or Appello tracking products are attached to, and accepts no liability for any loss(es) occurred arising from theft to either the CUSTOMER or their customer.
4.12 CUSTODIA SYSTEMS shall not be liable for any claim to the extent that the claim relates to loss of profits, goodwill, anticipated savings, business opportunity, data or use of data, injury to reputation, third party losses or indirect, consequential or special loss or damage regardless of the form of action, whether in contract, strict liability or tort (including negligence) and regardless of whether CUSTODIA SYSTEMS knew or had reason to know of the possibility of the loss, injury or damage in question.
5. Intellectual Property; Sales and Marketing Materials
5.1 CUSTODIA SYSTEMS and CUSTODIA SYSTEMS’S licensors retain ownership rights in and to certain intellectual property of CUSTODIA SYSTEMS and CUSTODIA SYSTEMS’S licensors, including without limitation any CUSTODIA SYSTEMS or CUSTODIA SYSTEMS licensor’s trademark, service mark, trade dress or other designation, advertising, material and any associated goodwill, whether presently existing or later developed by either CUSTODIA SYSTEMS or CUSTODIA SYSTEMS’S licensors (collectively "Intellectual Property"). Unless expressly stated otherwise in this Agreement or authorised from time to time by CUSTODIA SYSTEMS, nothing contained herein shall give CUSTOMER any rights to use any Intellectual Property in advertising, publicity or marketing materials.
5.2 Unless expressly authorised in this Agreement, nothing contained in this Agreement shall be construed as conferring on CUSTOMER any right to use any name, trademark or other designation of CUSTODIA SYSTEMS or CUSTODIA SYSTEMS licensor’s in advertising, publicity or marketing materials. In the event that CUSTOMER desires to produce its own printed sales and marketing materials referring to CUSTODIA SYSTEMS Services and rates, using CUSTODIA SYSTEMS or CUSTODIA SYSTEMS licensor’s trademark and/or trade name, CUSTOMER shall submit the CUSTOMER Produced Materials to and obtain advance written approval from an authorised representative of CUSTODIA SYSTEMS prior to printing and the dissemination of any such CUSTOMER Produced Materials to any third party. CUSTODIA SYSTEMS shall have sole discretion to approve or disapprove of all CUSTOMER Produced Materials. The CUSTOMER must adhere to the CUSTODIA SYSTEMS standards for the use of such trademarks or trade names and use such trademarks and trade names solely for the purpose of advertising and marketing CUSTODIA SYSTEMS Services.
6. Competitive product development
6.1 CUSTOMER agrees never to deformulate or reverse engineer, nor commission or collaborate with any individual or agency to deformulate or reverse engineer any product that could directly compete with proprietary CUSTODIA SYSTEMS or CUSTODIA SYSTEMS’S licensors products.
7. Term and Termination
7.1 Unless terminated as provided in Section 9.1 below or by mutual written consent of the parties, this AGREEMENT shall continue in full force and effect for an initial term expiring ONE (1) year after the date hereof from the date of first purchase. Thereafter, this AGREEMENT shall be automatically renewed upon the expiration of each period for another period of ONE (1) year, unless the CUSTOMER cancels all subscriptions of active Appello units.
8. Conflict / Dispute Resolution
8.1 Where possible, all conflict should be dealt with through direct dialogue.
8.2 Agreement to Submit to Binding Arbitration. Except as otherwise provided below, the parties agree to submit disputes between them relating to this Agreement and its formation, breach, performance, interpretation and application to binding arbitration as follows.
8.3 Notice. Each party will provide written notice to the other party of any dispute within six (6) months of the date when the dispute first arises or occurs. If a party fails to provide such notice, recovery on the dispute will be barred.
8.4 Arbitration Rules. Arbitration will be conducted in the UK, pursuant to the Arbitration legislation then in effect in the UK. Except as otherwise agreed, the arbitration shall be conducted by a single arbitrator. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
8.5 Costs and Attorneys' Fees. Unless the arbitrator finds that exceptional circumstances require otherwise, the arbitrator will grant the prevailing party in arbitration its costs of arbitration and reasonable attorneys' fees as part of the arbitration award.
8.6 Exceptions. Neither party will be required to arbitrate any dispute relating to actual or threatened: (a) unauthorised disclosure of Confidential Information; or (b) violation of CUSTODIA SYSTEMS proprietary rights. Either party will be entitled to receive in any court of competent jurisdiction injunctive or other equitable relief, in addition to damages, including court costs and fees of attorneys and other professionals, to remedy any actual or threatened violation of its rights with respect to which arbitration is not required hereunder.
9. Miscellaneous
9.1 In the event that any provision of this Agreement shall be invalid, illegal or unenforceable in any respect, such a provision shall be considered separate and severable from the remaining provisions of this Agreement, and the validity, legality or enforceability of any of the remaining provisions of this Agreement shall not be affected or impaired by such provision in any way.
9.2 This Agreement shall not be assigned by CUSTOMER, in whole or in part, without the express written consent of CUSTODIA SYSTEMS.
9.3 This Agreement shall be construed in accordance with the laws of England & Wales regardless of choice of laws provisions.
9.4 Any products not listed in ‘Pricing and Technical Data’, but which are bought by the CUSTOMER from CUSTODIA SYSTEMS will also be bound by this agreement.
9.5 Notices required to be given by one party to another shall be deemed properly given only when reduced to writing and sent to the addresses stated above by certified mail, return receipt requested, postage prepaid, by courier, e-mail, or by facsimile and shall be effective upon delivery. Either party may change the addresses for giving notice from time to time by written instructions to the other party of such change of address. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date stated above.
9.6 This Agreement and the provisions hereof shall be binding upon and inure to the benefit of the subsidiaries, affiliates, officers, directors, employees, agents, families, heirs, beneficiaries, executors, administrators, personal representatives, successors-in-interest and assigns of the respective parties hereto, and any entity which acquires either of the respective parties hereto.
10. PROVISION OF THEFT FINDER SERVICE
10.1 In the event of theft, Custodia Systems will provide a Theft Finder Service to locate a stolen asset protected by an Appello / AppelloGEO, and in consideration of Customer's payment of the Charges, unless CUSTOMER has a Platinum Subscription, CUSTODIA SYSTEMS will provide the Service with reasonable care and skill but does not warrant and excludes all liability arising from:
10.1.1 The Positional Accuracy of the Service; Positional Accuracy is a function of the available Networks GSM signal in any particular area and therefore Positional Accuracy is better in certain areas due to coverage and visibility. CUSTODIA SYSTEMS makes no warranties against equipment that does not have a GSM signal and therefore the Theft Finder Service which is dependent on this signal also carries the same requirement. Positional Accuracy can be affected by a number of other factors such as cell availability on the relevant Network, Network up-time, Network maintenance, GSM signal strength (Transmitter and Appello) and atmospheric conditions.
10.1.2 Any failure, inaccessibility or downtime (whether planned or otherwise) in any Network which results in a Location Request not revealing the Location of any End-User, either accurately or at all;
10.1.3 The withdrawal of any Network from the Service; and
10.1.4 Any failure of or, its inability to provide, Tracking due to the End User's Appello / AppelloGEO being switched off, having insufficient charge, in an area with no coverage for an extended period of time (duration up to 1 year dependent on the Customer maintaining the battery level of the Appello) or being temporarily or permanently disconnected from a Network.
10.1.5 The discovery of the Appello / AppelloGEO by the thief or any recommendations for the installation location whether directly given or inferred by CUSTODIA SYSTEMS or any literature or communication.
10.2 For the avoidance of any doubt, CUSTODIA SYSTEMS provide no guarantee of a
successful recovery or method of recovery.
10.3 By subscribing to the Service, Customer agrees that in respect of any APPELLO unit that it requires to be Tracked the Networks may provide the Location of the APPELLO to CUSTODIA SYSTEMS whenever CUSTODIA SYSTEMS seeks to locate the End Asset.
10.4 When using SIM cards not provided by CUSTODIA SYSTEMS, it is the CUSTOMER and their customers responsibility to ensure the SIM card is compatible and working with the Appello including insuring payments are up to date.
10.5 The Health Check Service and www.findmygeo.com provides customers with monthly / weekly information about the status of their Appello units depending on type of subscription taken. Information provided will be related to whether the unit can successfully be communicated with, and the approximate location of that unit at the time of its last connection to the network.
10.6 The customer takes responsibility for their Appello / AppelloGEO throughout in accordance with the instructions in the User Guide provided.
10.7 In England, Wales and Scotland, the Theft Finder Service will be provided by CUSTODIA SYSTEMS.
10.8 The Theft Finder service is provided free of charge to Platinum Subscriptions that are live and not due any monies, up to a maximum of 1 per calendar year.
11. END USERS
11.1 Whereby the Appello will be used on an asset utilised by a third party who has not purchased this Appello subject to this agreement (END USER), Customer acknowledges and accepts that CUSTODIA SYSTEMS ability to provide the Service is dependent upon:
11.1.1 The End User consenting to be Tracked by CUSTODIA SYSTEMS or the www.findmygeo.com software portal;
11.1.2 The End User not withdrawing its consent to being Tracked;
11.1.3 The End User's Appello being connected to a Network and being switched on and sufficiently charged to enable it to be Tracked;
11.1.4 The End User being in the Area of Coverage when a Location Request is made.
11.2 Customer shall be responsible for procuring each End User's initial consent to be Tracked in accordance with their own company policy and any necessary interpretation of the Data Protection Act or Human Rights Act, and withdrawing or refusing its consent to be Tracked.
12. Software Service
12.1 The service is offered as an online management portal for the management of the Appello and it’s current battery status and location. CUSTODIA SYSTEMS does not provide any guarantee of uptime for this service which may be taken down from time to time for administrative work or site updates.
12.2 The positional accuracy of the locations provided in www.findmygeo.com are subject to the same restrictions as clause 13.1.1.
