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Apparatus Terms of Service

Contents
  1. Definitions and interpretation
  2. Rights of use
  3. Customer Responsibilities
  4. Indemnity
  5. Support
  6. New Features and Changes
  7. Fees
  8. Warranties
  9. Intellectual property
  10. Customer Systems and Customer Data
  11. Confidentiality and security of Customer Data
  12. Supplier’s Confidential Information
  13. Limitation of liability
  14. Suspension
  15. Renewals
  16. Term and termination
  17. Consequences of termination
  18. Entire agreement
  19. Notices
  20. Variation
  21. Assignment and subcontracting
  22. Set off
  23. No partnership or agency
  24. Third party rights
  25. Authority
  26. Governing law
  27. Jurisdiction
The Schedule Definitions and interpretation


Thank you for choosing our ecommerce platform for your business’ needs.

Please read these terms of services (“Terms”) carefully, as they govern how our services may be used.

The Customer accepts and agrees to these Terms once an Order Acknowledgement has been issued by accessing our services.

1 Definitions and interpretation

1.1 The definitions and rules of interpretation set out in 1 shall apply to our Agreement.

1.2 Our Agreement comprises the Order Acknowledgement and these Terms, together with all of the documents referred to in those documents.

1.3 In the event of any conflict in respect of the provisions of our Agreement and/or the documents referred to therein the following order of priority shall prevail (in descending order of priority):

(a) the Order Acknowledgement;
(b) the Project Definition Document;
(c) these Terms; and
(d) the Policies.

1.4 Any quotation given by the Supplier is not a binding offer to supply the Services.

2 Rights of use

2.1 Upon issue of the Order Acknowledgement and subject to the terms of our Agreement, the Supplier grants the Customer a non-exclusive, non-transferable, personal right to:

2.1.1 use the Subscription and Support Services; and

2.1.2 copy and use the Documentation as strictly necessary for its use of the Services, during the Subscribed Service Period for the Permitted Purpose.

2.2 The Customer acknowledges that use of the Subscription and Support Services is at all times subject to the Customer’s compliance with our Agreement and the requirements dentified in our Agreement.

2.3 The Customer acknowledges that the Services do not include:

2.3.1 any services, systems or equipment required to access the internet (and that the Customer is solely responsible for procuring access to the internet and for all costs and expenses in connection with internet access, communications, data transmission and wireless or mobile charges incurred by it in connection with use of the Services);

2.3.2 dedicated data back up or disaster recovery facilities (and the Customer should ensure it at all times maintains backups of all Customer Data); or

2.3.3 legal, accounting or other professional or regulated services and that, except as expressly stated in our Agreement, no assurance is given that the Services will comply with or satisfy any legal or regulatory obligation of any person.

3 Customer Responsibilities

3.1 The Customer shall ensure that it and any of its personnel using the Services at all times in accordance with our Agreement. The Customer shall ensure that its personnel having access to the Services are the employees or contractors of the Customer.

3.2 The Customer shall at all times comply with the Policies.

3.3 The Customer shall at all times comply with all applicable laws relating to the use or receipt of the Services, including laws relating to privacy, data protection and use of systems and communications.

4 Indemnity

4.1 The Customer shall indemnify, keep indemnified and hold harmless the Supplier (on the Supplier’s own behalf and on behalf of each of the Supplier’s affiliates) from and against any losses, claims, damages, liability, costs (including legal and other professional fees) and expenses incurred by it (or any of its affiliates) as a result of the Customer’s breach of our Agreement.

4.2 This clause 4 shall survive termination or expiry of our Agreement.

5 Support

5.1 The Subscription and Support Services shall be available to the Customer for the duration of the Subscribed Service Period, to the extent and in the manner specified in the relevant Project Definition Document and Order Acknowledgement.

5.2 The Supplier will use reasonable endeavours to notify the Customer in advance of scheduled maintenance but the Customer acknowledges that it may receive no advance notification for downtime caused by Force Majeure or for other emergency maintenance.

6 New Features and Changes

6.1 The Supplier may from time to time offer new features to the Customer. Any such additions or changes to the Services and the Fee will be agreed in writing before being made accessible or charged for.

6.2 The Customer acknowledges that the Supplier shall be entitled to modify the features and functionality of the Services, provided that any such modification does not materially adversely affect the use of the Services.

7 Fees

7.1 The Fees and any other charges (including expenses) expressly agreed between the parties in writing shall be paid by the Customer at the rates, at the intervals specified and in the manner described in the Order Acknowledgement.

7.2 Invoices for the Fees shall be paid within 30 calendar days of the date on the invoice.

7.3 The Fees are exclusive of VAT which shall be payable by the Customer at the rate and in the manner prescribed by law.

7.4 Fees payable to the Supplier under our Agreement shall be paid into the Supplier’s bank account by electronic funds transfer unless otherwise agreed.

7.5 The Supplier shall have the right to charge interest on overdue invoices at the rate of 4% per year above the base rate of the Bank of England, calculated from the date when payment of the invoice becomes due for payment up to and including the date of actual payment whether before or after judgment.

7.6 The Supplier shall be entitled to increase the Fees for any and all Services at any time by notice to the Customer provided that the Supplier shall not be entitled to increase the Fees on less than six weeks prior notice or more than once every 12 months.

8 Warranties

8.1 Subject to the remainder of this clause 8, the Supplier warrants that:

8.1.1 The Subscription and Support Services shall operate and be provided materially as described in the Project Definition Document during the relevant Subscribed Service Period; and

8.1.2 it will provide the Services with reasonable care and skill.

8.2 The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that the Supplier shall have no liability for any such delays, interruptions, errors or other problems.

8.3 If there is a breach of any warranty in clause 8.1 the Supplier shall at its option: use reasonable endeavours to repair or replace the impacted Services within a reasonable time or refund the Fees for the impacted Services which were otherwise payable for the period during which the Supplier was in breach of any such warranty. To the maximum extent permitted by law, this clause 8.3 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of any of the warranties in clause 8.1.

8.4 The warranties in clause 8.1 shall not apply to the extent that any error in the Services arises as a result of:

8.4.1 incorrect operation or use of the Services by the Customer;

8.4.2 use of any of the Services other than for the purposes for which it is intended;

8.4.3 use of any Services with other software or services or on equipment with which it is incompatible;

8.4.4 any act by any third party (including hacking or the introduction of any virus or malicious code);

8.4.5 any modification of Services (other than that undertaken by the Supplier or at its direction); or

8.4.6 any breach of our Agreement by the Customer.

8.5 The Supplier may make Non-Supplier Materials available for the Customer’s use in connection with the Services. The Customer agrees that:

8.5.1 the Supplier has no responsibility for the use or consequences of use of any Non-Supplier Materials;

8.5.2 the Customer’s use of any Non-Supplier Materials shall be governed by the applicable terms issued by the owner or licensor of the relevant Non-Supplier Materials;

8.5.3 the Customer will comply with all applicable third party terms which may govern the use of such Non-Supplier Materials; and

8.5.4 the continued availability, compatibility with the Services and performance of the Non-Supplier Materials is outside the control of the Supplier and the Supplier has no responsibility for any unavailability of or degradation in the Services to the extent resulting from the availability, incompatibility or performance of any of the Non-Supplier Materials.

8.6 The Customer acknowledges that no liability or obligation is accepted by the Supplier (howsoever arising whether under contract, tort, in negligence or otherwise):

8.6.1 that the Subscription and Support Services shall meet the Customer’s individual needs, whether or not such needs have been communicated to the Supplier;

8.6.2 that the operation of the Subscription and Support Services shall not be subject to minor errors or defects; or

8.6.3 that the Subscription and Support Services shall be compatible with any other software or service or with any hardware or equipment.

8.7 Other than as set out in this clause 8, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.

9 Intellectual property

9.1 All Intellectual Property Rights in and to the Services belong to and shall remain vested in the Supplier or the relevant third party owner.

9.2 The Customer hereby grants a royalty-free, non-transferable, non-exclusive licence for the Supplier to use, copy and other otherwise utilise the Customer Data and Customer Systems to the extent necessary to perform or provide the Services or to exercise or perform the Supplier’s rights, remedies and obligations under our Agreement.

9.3 To the extent Non-Supplier Materials are made available to, or used by or on behalf of the Customer in connection with the use or provision of the Services, such use of Non-Supplier Materials (including all licence terms) shall be exclusively governed by applicable third party terms notified or made available by the Supplier or the third party and not by our Agreement. The Supplier grants no Intellectual Property Rights or other rights in connection with any Non-Supplier Materials.

9.4 Except for the rights expressly granted in our Agreement, the Customer shall not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Services and no Intellectual Property Rights of either party are transferred or licensed as a result of our Agreement.

9.5 This clause 9 shall survive the termination or expiry of our Agreement.

10 Customer Systems and Customer Data

10.1 Customer Data shall at all times remain the property of the Customer or its licensors.

10.2 Except to the extent the Supplier has direct obligations under data protection laws, the Customer acknowledges that the Supplier has no control over any Customer Data hosted as part of the provision of the Services and may not actively monitor or have access to the content of the Customer Data. The Customer shall ensure the accuracy, quality, integrity and legality of the Customer Data and that its use (including use in connection with the Service) complies with all applicable laws and Intellectual Property Rights.

10.3 The Customer acknowledges and agrees that it is responsible for maintaining safe backups and copies of any Customer Data, including as necessary to ensure the continuation of the Customer’s business.

11 Confidentiality and security of Customer Data

11.1 The Supplier shall maintain the confidentiality of the Customer Data and shall not without the prior written consent of the Customer or in accordance with our Agreement, disclose or copy the Customer Data other than as necessary for the performance of the Services or its express rights and obligations under our Agreement.

11.2 The Supplier undertakes to disclose the Customer Data only to those of its officers, employees, agents, contractors and direct and indirect sub-contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under our Agreement or as otherwise reasonably necessary for the provision or receipt of the Services.

11.3 The provisions of this clause 11 shall not apply to information which:

11.3.1 is or comes into the public domain through no fault of the Supplier;

11.3.2 is lawfully received by the Supplier from a third party free of any obligation of confidence at the time of its disclosure;

11.3.3 is independently developed by the Supplier, without access to or use of such information; or

11.3.4 is required by law, by court or governmental or regulatory order to be disclosed,

11.4 This clause 11 shall survive the termination or expiry of our Agreement for a period of five years.

12 Supplier’s Confidential Information

12.1 The Customer shall maintain the confidentiality of the Supplier’s Confidential Information and shall not without the prior written consent of the Supplier, disclose, copy or modify the Supplier’s Confidential Information (or permit others to do so) other than as necessary for the performance of its express rights and obligations under our Agreement.

12.2 The Customer undertakes to:

12.2.1 disclose the Supplier’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under our Agreement;

12.2.2 procure that such persons are made aware of and agree in writing to observe the obligations in this clause 12; and

12.2.3 be responsible for the acts and omissions of those third parties referred to in this clause 12.2 as if they were the Customer’s own acts or omissions.

12.3 The Customer shall give notice to the Supplier of any unauthorised use, disclosure, theft or loss of the Supplier’s Confidential Information immediately upon becoming aware of the same.

12.4 The provisions of this clause 12 shall not apply to information which:

12.4.1 is or comes into the public domain through no fault of the Customer, its officers, employees, agents or contractors;

12.4.2 is lawfully received by the Customer from a third party free of any obligation of confidence at the time of its disclosure;

12.4.3 is independently developed by the Customer, without access to or use of such information; or

12.4.4 is required by law, by court or governmental or regulatory order to be disclosed provided that the Customer, where possible, notifies the Supplier at the earliest oppor2unity before making any disclosure.

12.5 This clause 12 shall survive the termination or expiry of our Agreement for a period of five years.

13 Limitation of liability


13.1 The extent of the Supplier’s liability under or in connection with our Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause 13.

13.2 Subject to clause 13.5, the Supplier’s total aggregate liability howsoever arising under or in connection with our Agreement shall not exceed the greater of:

13.2.1 an amount equal to the Fees for all Services paid to the Supplier in the 12-month period immediately preceding the first incident giving rise to any claim under our Agreement; or

13.2.2 an amount equal to 12 times the Fees due or paid to the Supplier for the Services provided in the first month of our Agreement.

13.3 Subject to clause 13.5, the Supplier shall not be liable for consequential, indirect or special losses.

13.4 Subject to clause 13.5, the Supplier shall not be liable for any of the following (whether direct or indirect):

13.4.1 loss of profit;

13.4.2 destruction, loss of use or corruption of data;

13.4.3 loss or corruption of software or systems;

13.4.4 loss or damage to equipment;

13.4.5 loss of use;

13.4.6 loss of production;

13.4.7 loss of contract;

13.4.8 loss of opportunity;

13.4.9 loss of savings, discount or rebate (whether actual or anticipated); and/or

13.4.10 harm to reputation or loss of goodwill.

13.5 Notwithstanding any other provision of our Agreement, the Supplier’s liability shall not be limited in any way in respect of the following:

13.5.1 death or personal injury caused by negligence;

13.5.2 fraud or fraudulent misrepresentation; or

13.5.3 any other losses which cannot be excluded or limited by applicable law.

13.6 This clause 13 shall survive the termination or expiry of our Agreement.

14 Suspension

14.2 The Supplier may suspend the Customer’s access to the Services if:

14.2.1 the Supplier has reason to believe that there has been any misuse of the Services or breach of our Agreement; or

14.3.2 the Customer fails to pay any sums due to the Supplier by the due date for payment.

14.3 In relation to suspensions under clause 14.1.2, access to the Services will be restored promptly after the Supplier receives payment in full and cleared funds.

15 Renewals

15.1 At the end of the Subscribed Service Period the Subscription and Support Services shall continue and automatically renew for a further period of twelve months (first Renewal Date) and thereafter renew for a further period of twelve months on each anniversary of the first Renewal Date (each of the first Renewal Date and each such anniversary being a Renewal Date).

15.2 If either party wishes for the Subscribed Service Period to expire on the next Renewal Date, it may cause the Subscription and Support Services to expire on that Renewal Date by notice provided such notice is served at least 45 days prior to that Renewal Date. If notice is not served within the timeframes set out in this clause 15.2, the Subscription and Support Service shall renew at the next Renewal Date in accordance with clause 15.1.

16 Term and termination

16.1 Unless otherwise agreed, our Agreement shall come into force on the date of the Order Acknowledgement and, unless terminated earlier in accordance with its terms, shall continue for the duration of the Subscribed Service Period after which it shall automatically expire.

16.2 Either party may terminate our Agreement immediately at any time by giving notice in writing to the other party if:

16.2.1 the other party commits a material breach of our Agreement and such breach is not remediable;

16.2.2 the other party commits a material breach of our Agreement which is not remedied within 20 Business Days of receiving written notice of such breach; or

16.2.3 the other party has failed to pay any amount due under our Agreement on the due date and such amount remains unpaid within 20 Business Days after the other party has received notification that the payment is overdue.

16.3 Any breach by the Customer of the Policies shall be deemed a material breach of our Agreement which is not remediable.

17 Consequences of termination

17.1 Immediately on termination or expiry of our Agreement (for any reason), the rights granted by the Supplier under our Agreement shall terminate and the Customer shall stop using the Services.

17.2 Termination or expiry of our Agreement shall not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and shall not affect any provision of our Agreement that is expressly or by implication intended to continue beyond termination.

18 Entire agreement

18.1 Our Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.

18.2 Each party acknowledges that it has not entered into our Agreement in reliance on, and shall have no remedies in respect of, any representation or warranty that is not expressly set out in our Agreement.

18.3 Nothing in our Agreement shall limit or exclude any liability for fraud.

19 Notices

19.1 Any notice given by a party under our Agreement shall be:

19.1.1 in writing and in English;

19.1.2 signed by, or on behalf of, the party giving it (except for notices sent by email); and

19.1.3 sent to the relevant party at its registered office address.

19.2 Notices may be given, and are deemed received:

19.2.1 by hand: on receipt of a signature at the time of delivery;

19.2.2 by signed for post: at 9.00 am on the second Business Day after posting; and

19.2.3 by email: on receipt of a delivery email from the correct address

20 Variation

20.1 No variation of our Agreement shall be valid or effective unless it is made in writing and refers to our Agreement.

21 Assignment and subcontracting


21.1 Except as expressly provided in our Agreement, the Supplier may at any time assign, sub-contract, sub-licence (including by multi-tier), transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under our Agreement.

21.2 Except as expressly permitted by our Agreement, the Customer shall not assign, transfer, sub-contract, sub-licence, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights or obligations under our Agreement (including the licence rights granted), in whole or in part, without the Supplier’s prior written consent.

22 Set off

Each party shall pay all sums that it owes to the other party under our Agreement without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law.

23 No partnership or agency

The parties are independent and are not partners or principal and agent and our Agreement does not establish any joint venture, trust, fiduciary or other relationship between them, other than the contractual relationship expressly provided for in it. Neither party shall have, nor shall represent that it has, any authority to make any commitments on the other party’s behalf.

24 Third party rights

A person who is not a party to our Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.

25 Authority

Each party represents and warrants to the other that it has the right, power and authority to enter into our Agreement and grant to the other the rights (if any) contemplated in our Agreement and to perform its obligations under our Agreement.

26 Governing law

Our Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales.

27 Jurisdiction

The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of, or in connection with, our Agreement, its subject matter or formation (including non-contractual disputes or claims).


THE SCHEDULE

DEFINITIONS AND INTERPRETATION
1 In our Agreement:

Business Day

means a day other than a Saturday, Sunday or bank or public holiday in England;

Customer

has the meaning given in the relevant Order Form;

Customer Data

means all data (in any form) that is provided to the Supplier or uploaded or hosted by the Customer in connection with this Agreement;

Customer Systems

means all software and systems used by or on behalf of the Customer in connection with the provision or receipt of the Services;

Deployment and Set-up Services

means the design, deployment and set-up services described in the Project Definition Document;

Documentation

means any description of or instructions as to how to use the Services as may be issued by the Supplier from time to time;

Fees

means the fees payable to the Supplier for the Services;

Force Majeure

means an event or sequence of events beyond a party’s reasonable control preventing or delaying it from performing its obligations under our Agreement (provided that an inability to pay is not Force Majeure), including any matters relating to transfer of data over public communications networks and any delays or problems associated with any such networks or with the internet;

Intellectual Property Rights

means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:

(a) whether registered or not;

(b) including any applications to protect or register such rights;

(c) including all renewals and extensions of such rights or applications;

(d) whether vested, contingent or future; and

(e) wherever existing;

Materials

means all services, data, information, content, Intellectual Property Rights, websites, software and other materials provided by or on behalf of the Supplier in connection with the Services, but excluding all Customer Data;

Non-Supplier Materials

means Materials provided, controlled or owned by or on behalf of a third party the use of which is subject to a separate agreement or licence between the Supplier or the Customer and the relevant third party (including such Non-Supplier Materials which may be linked to, interact with or used by the Services) and all other Materials expressly identified as Non-Supplier Materials in our Agreement;

Order Acknowledgement

means the form issued by the Supplier confirming the order for the Services, incorporating these Terms;

Permitted Downtime

means:

(a) scheduled maintenance which the Supplier shall use reasonable endeavours to undertake from 2am to 6am (UK time);

(b) emergency maintenance; or

(c) downtime caused in whole or part by Force Majeure.

Permitted Purpose

means use solely for the Customer’s internal business operations and, in respect of the Services in accordance with the applicable Documentation and our Agreement. Permitted Purpose expressly excludes any of the following to the maximum extent permitted by law:

(a) copying, reproducing, publishing, distributing, redistributing, broadcasting, transmitting, modifying, adapting, editing, abstracting, storing, archiving, displaying publicly or to third parties, selling, licensing, leasing, renting, assigning, transferring, disclosing (in each case whether or not for charge) or in any way commercially exploiting any part of any Services or Documentation;

(b) permitting any use of the Services or Documentation in any manner by any third party or making the Services or Documentation available to any third party or allowing or permitting a third party to do any of the foregoing;

(c) combining, merging or otherwise permitting the Services (or any part of them) to become incorporated in any other program or service, or arranging or creating derivative works based on it (in whole or in part); or

(d) attempting to reverse engineer, observe, study or test the functioning of or decompile the Services (or any part),
except as expressly permitted under our Agreement.

Policies

means each of the following:

(a) the Supplier’s policy on acceptable use of the Services as updated from time to time, the latest version of which is available at https://www.apparatus.io/acceptable-use-policy (the Acceptable Use Policy); and

(b) the Supplier’s privacy policy in relation to the Services as updated from time to time, the latest version of which is available at https://www.apparatus.io/privacy-policy (the Privacy Policy);

Project Definition Document

means the document(s) issued to the Customer describing the Services and the Fees;

Renewal Date

has the meaning given in clause 15.1;

Services

means the Deployment and Set-up Services and the Subscription and Support Services;

Subscribed Service Period

means the duration during which the Subscription and Support Services are to be provided as set out in the Project Definition Document or Order Acknowledgement

Subscription and Support Services

means the subscription and support services to be provided by the Supplier to the Customer as described in the Project Definition Document;

Supplier

means Appatatus Limited;

Supplier’s Confidential Information

means all information (whether in oral, written or electronic form) relating to the Supplier’s business which may reasonably be considered to be confidential in nature including information relating to the Supplier’s technology, know-how, Intellectual Property Rights, assets, finances, strategy, products and customers;

VAT

means United Kingdom value added tax, any other tax imposed in substitution for it and any equivalent or similar tax imposed outside the United Kingdom.

2 In our Agreement, unless otherwise stated:

2.1 the Supplier and the Customer are together the parties and each a party, and a reference to a party includes that party’s successors and permitted assigns;

2.2 a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);

2.3 a reference to legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made from time to time under that legislation; and

2.4 a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.