FeedAlert Hardware and App Service Terms and Conditions

Combined document. 

The Customer's attention is particularly drawn to the provisions of clause 16 (Limitation of liability).

1.                 Interpretation

The following definitions and rules of interpretation apply in these Conditions.

1.1              Definitions:

App: the Supplier’s FeedAlert App.

Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.

Business Hours: the period from 9.00 am to 5.00 pm on any Business Day.

Commencement Date: has the meaning given in clause 2.2.

Conditions: these terms and conditions as amended from time to time in accordance with clause 20.8.

Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.

Control: has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.

Customer: the person or firm who purchases the Goods and/or Services from the Supplier.

Deliverables: any deliverables set out in the Order produced by the Supplier for the Customer.

Delivery Location: has the meaning given in clause 4.2.

Force Majeure Event: has the meaning given to it in clause 19.

Goods: any goods (or any part of them) set out in the Order.

Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Supplier.

Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service 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.

Order: the Customer's order for the supply of Goods and/or Services, as set out.

Services: any services, including any Deliverables, supplied by the Supplier to the Customer as set out in the Order.

Service Specification: any description or specification for the Services provided in writing by the Supplier to the Customer.

Subscription: the subscriptions provided by the Supplier to the Customer to be used in conjunction with the Goods, as further particularised in the Goods Specification.

Supplier: E Collinson & Co Limited registered in England and Wales with company number 11461839.

Supplier Materials: has the meaning given in clause 8.1.8.

Warranty Period: has the meaning given in clause 5.1.

Interpretation:

1.2       A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.3       A reference to a party includes its personal representatives, successors and permitted assigns.

1.4       A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

1.5       Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

1.6       A reference to writing or written includes email.

1.7       The Schedule forms part of the Contract.

2.                 Basis of contract

2.1              The Order constitutes an offer by the Customer to purchase Goods or Services or Goods and Services in accordance with these Conditions.

2.2              The Order shall only be deemed to be accepted when the Supplier issues written or verbal acceptance of the Order at which point and on which date the Contract shall come into existence (Commencement Date).

2.3              Any samples, drawings, descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract nor have any contractual force.

2.4              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 law, trade custom, practice or course of dealing.

2.5              Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 7 Business Days from its date of issue.

2.6              All of these Conditions shall apply to the supply of both Goods and Services except where application to one or the other is specified.

2.7              The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that is inconsistent with these Conditions.

3.                 Goods

3.1              The Goods are described in the Goods Specification.

3.2              The Supplier reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirement, and the Supplier shall notify the Customer in any such event.

4.                 Delivery of Goods

4.1              The Supplier shall ensure that:

4.2              The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.

4.3              Delivery of the Goods shall be completed on the completion of unloading of the Goods at the Delivery Location or Collection of goods by the customer from the Supplier premises.

4.4              Any dates quoted for delivery of the Goods are approximate only, and the 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 a Force Majeure Event or 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.

4.5              If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or 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.

4.6              If the Customer fails to take delivery of the Goods within 30 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier's failure to comply with its obligations under the Contract in respect of the Goods:

4.6.1         delivery of the Goods shall be deemed to have been completed at 9.00 am on the 31st Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and

4.6.2         the Supplier shall store the Goods until actual delivery takes place, and charge the Customer for all related costs and expenses (including insurance).

4.7              If 31 Business Days after the day on which the Supplier notified the Customer that the Goods were ready for delivery the Customer has not taken actual delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods and charge the Customer for any shortfall below the price of the Goods.

4.8              The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5.                 Quality of Goods

5.1              The Supplier warrants that on delivery, and for a period of 12 months from the date of delivery, the Goods shall:

5.1.1         conform in all material respects with their description and any applicable Goods Specification;

5.1.2         be free from material defects in design, material and workmanship;

5.1.3         be of satisfactory quality (within the meaning of the Sale of Goods Act 1979).

5.2              Subject to clause 5.3, if:

5.2.1         the Customer gives notice in writing or verbally to the Supplier during the Warranty Period within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;

5.2.2         the Supplier is given a reasonable opportunity of examining such Goods; and

5.2.3         the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier's place of business at the Customer's cost,

the Supplier shall, at its sole discretion and at its option, send replacement parts for the defective Goods to the Customer within three Business Days.

5.3              The Supplier shall not be liable for the Goods' failure to comply with the warranty set out in clause 5.1 if:

5.3.1         the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;

5.3.2         the defect arises because the Customer failed to follow the Supplier's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice regarding the same;

5.3.3         the defect arises as a result of the Supplier following any drawing, design or specification supplied by the Customer;

5.3.4         the Customer alters or repairs such Goods without the written consent of the Supplier;

5.3.5         the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;

5.3.6         acts of God, including but not limited to lightning, flood, tornado, earthquake or hurricane; or

5.3.7         the Goods differ from the Goods Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.

5.4              Pursuant to the warranty set out in clause 5.1, the Customer may, at any time during the Warranty Period, take out an extended warranty on the Goods. The extended warranty shall apply for such additional period as agreed by the Supplier, provided the Customer fulfils payment via the relevant Subscription.

5.5              Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 5.1.

5.6              These Conditions shall apply to any replacement Goods supplied by the Supplier.

6.                 Title and risk

6.1              The risk in the Goods shall pass to the Customer on completion of delivery.

6.2              Title to the Goods shall not pass to the Customer until the Supplier receives payment in full (in cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums.

6.3              Until title to the Goods has passed to the Customer, the Customer shall:

6.3.1         store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Supplier's property;

6.3.2         not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;

6.3.3         maintain the Goods in satisfactory condition and keep them insured against all risks for their full price on the Supplier's behalf from the date of delivery;

6.3.4         notify the Supplier immediately if it becomes subject to any of the events listed in clause 17.1.2 to clause 17.1.4; and

6.3.5         give the Supplier such information as the Supplier may reasonably require from time to time relating to:

6.3.5.1            the Goods; and

6.3.5.2            the ongoing financial position of the Customer.

7.                 Supply of Services

7.1              The Supplier shall supply the Services to the Customer in accordance with any Service Specification in all material respects.

7.2              The Supplier shall use all reasonable endeavours to meet any performance dates for the Services, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.

7.3              The Supplier reserves the right to amend the Service Specification if necessary to comply with any applicable law or regulatory requirement, or if the amendment will not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

7.4              The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

8.                 Customer's obligations

8.1              The Customer shall:

8.1.1         ensure that the terms of the Order are complete and accurate;

8.1.2         co-operate with the Supplier in all matters relating to the Services;

8.1.3         provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises, office accommodation and other facilities as reasonably required by the Supplier to provide the Services;

8.1.4         provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

8.1.5         prepare the Customer's premises for the supply of the Services;

8.1.6         obtain and maintain all necessary licences, permissions and consents which may be required for the Services before the date on which the Services are to start;

8.1.7         comply with all applicable laws, including health and safety laws;

8.1.8         keep all materials, equipment, documents and other property of the Supplier at the Customer's premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation. 

8.1.9         without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

8.1.10      the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this clause 8.2; and

8.1.11      the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

9.                 Charges and payment

9.1              The price for Goods and Services:

9.1.1         shall be the price set out in the Order or, if no price is quoted, the price set out in the Supplier's published price list as at the date of the order; and

9.1.2         shall be exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be invoiced to the Customer.

9.2              The Supplier reserves the right to:

9.2.1         increase the price of the Goods and Services, by giving notice to the Customer at any time before delivery, to reflect any increase in the cost of the Goods and Services to the Supplier that is due to:

9.2.1.1            any factor beyond the control of the Supplier (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);

9.2.1.2            any request by the Customer to change the delivery date(s), quantities or types of Goods ordered; or

9.2.1.3            any delay caused by any instructions of the Customer in respect of the Goods or Services or failure of the Customer to give the Supplier adequate or accurate information or instructions in respect of the Goods or Services.

9.3              The Supplier shall invoice the Customer for the Goods or Services, payment will be in advance of dispatch or supply of service.

9.4              The Customer shall pay for the service by cleared funds on the agreed monthly date.

9.4.1         Prior to dispatch of goods or service or if applicable and terms apply, within 30 days of the date of the invoice or in accordance with any credit terms agreed by the Supplier and confirmed in writing to the Customer; and

9.4.2         in full and in cleared funds to a bank account nominated in writing by the Supplier, and

time for payment shall be of the essence of the Contract.

9.5              All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.

9.6              If the Customer fails to make a payment due to the Supplier under the Contract by the due date, then, without limiting the Supplier's remedies under clause 17, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this clause 9.6 will accrue each day at 4% a year above the Bank of England's base rate from time to time, but at 4% a year for any period when that base rate is below 0%.

9.7              All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

10.              Subscriptions

10.1           Upon installation of the Goods, the Customer may commence their chosen Subscription service with the Supplier.

10.2           The different types of Subscriptions available are outlined on https://www.feedalert.co.uk/.

10.3           Subscription fees shall be charged on the first day of the applicable subscription period. Where any payment is not received, returned unpaid or otherwise rejected or denied, the Supplier reserves the right to cancel a Subscription or withhold data  unless the Customer provides the Supplier with a new payment method.

10.4           Any charges successfully made via a new payment method, prior to the Supplier cancelling the Subscription, shall be considered to have taken place on the original first day of the appliable subscription period.

10.5           The Customer may cancel their Subscription at any time and no further payments shall be taken by the Supplier from the date of cancellation.

10.6           Upon cancellation of a Subscription, access to any available data shall be cancelled and will no longer be accessible to the Customer.

10.7           Access to the Subscriptions is made through the subscription.feedalert.co.uk

10.8           Use of the App is subject to the App terms and conditions, a copy of which is contained in the Schedule.

11.              Promotional Trials

11.1           From time to time, the Supplier may offer certain promotional trials which, if offered, shall be subject to the terms of this Contract, unless otherwise confirmed by the Supplier.

11.2           At the end of the promotional trial, the Customer shall have the opportunity to commence a Subscription. Where the Customer decides not to commence a Subscription, any available data shall be cancelled and will no longer be accessible to the Customer.

12.              Updates

12.1           From time to time we may automatically update the App to improve performance, enhance functionality, reflect changes to the operating system or address security issues.

12.2           The Customer agrees that the Supplier may automatically install such updates without providing any additional notice to the Customer or receiving any additional consent from the Customer.

13.              Returns

13.1           If, for any reason, the Customer wishes to return the Goods to the Supplier, the Customer must do so within 30 days from the date the Goods were delivered to the Customer.

13.2           Refunds shall be issued by the Supplier to the Customer at the Supplier’s sole discretion, dependent upon the condition of the Goods upon their return to the Supplier.

13.3           Refunds shall be issued via the Customer’s original payment method for the Goods.

14.              Intellectual property rights

All Intellectual Property Rights in or arising out of or in connection with the Goods, the Services or the App shall be owned by the Supplier.

15.              Confidentiality

15.1           Each party undertakes that it shall not at any time disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party except as permitted by clause 15.2.

15.2           Each party may disclose the other party's confidential information:

15.2.1      to its employees, officers, representatives, contractors or subcontracts 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 the Contract. 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 15; and

15.2.2      as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

15.3           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 the Contract.

16.              Limitation of liability: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

16.1           The restrictions on liability in this clause 16 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

16.2           Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

16.3           Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

16.3.1      death or personal injury caused by negligence;

16.3.2      fraud or fraudulent misrepresentation;

16.3.3      breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 (title and quiet possession); and

16.3.4      defective products under the Consumer Protection Act 1987.

16.4           Subject to clause 16.3, the Supplier's total liability to the Customer shall not exceed 125% of the price payable for the Goods and Services by the Customer to the Supplier under the applicable Order.

16.5           Subject to clause 16.3 and clause 16.4, the Supplier shall not be liable to the Customer for any:

16.5.1      loss of profits;

16.5.2      loss of sales or business;

16.5.3      loss of agreements or contracts;

16.5.4      loss of anticipated savings;

16.5.5      loss of use or corruption of software, data or information;

16.5.6      loss of or damage to goodwill; and

16.5.7      indirect or consequential loss.

16.6           The Supplier has given commitments as to compliance of the Goods and Services with relevant specifications in clause 5 and clause 7. In view of these commitments, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3, 4 and 5 of the Supply of Goods and Services Act 1982 are, to the fullest extent permitted by law, excluded from the Contract.

16.7           This clause 16 shall survive termination of the Contract.

17.              Termination

17.1           Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

17.1.1      the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 14 days after receipt of notice in writing to do so;

17.1.2      the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

17.1.3      the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

17.1.4      the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

17.2           Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

17.2.1      the Customer fails to pay any amount due under the Contract on the due date for payment; or

17.2.2      there is a change of Control of the Customer.

17.3           Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services or delivery of Goods under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, the Customer becomes subject to any of the events listed in clause 17.1.2 to clause 17.1.4, or the Supplier reasonably believes that the Customer is about to become subject to any of them.

18.              Consequences of termination

18.1           On termination of the Contract:

18.1.1      the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest and, in respect of Services and Goods supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

18.1.2      the Customer shall return all of the Supplier Materials and any Deliverables or Goods which have not been fully paid for. If the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

18.2           Termination or expiry of the Contract shall not affect any rights, remedies, obligations and liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry.

18.3           Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

19.              Force majeure

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 3 months, the party not affected may terminate the Contract by giving 7 days notice to the affected party.

20.              General

20.1           Assignment and other dealings

20.1.1      The Supplier may at any time assign, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

20.1.2      The Customer shall not assign, transfer, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

20.2           Notices.

20.2.1      Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

20.2.1.1         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); or

20.2.1.2         sent by email to addresses provided by either party from time to time.

20.2.2      Any notice shall be deemed to have been received:

20.2.2.1         if delivered by hand, at the time the notice is left at the proper address;

20.2.2.2         if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

20.2.2.3         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.

20.2.3      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.

20.3           Severance. If any provision or part-provision of the Contract 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 the Contract. If any provision or part provision of the Contract is deemed deleted under this clause 20.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

20.4           Waiver.

20.4.1      A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

20.4.2      A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

20.5           No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

20.6           Entire agreement.

20.6.1      The Contract constitutes the entire agreement between the parties.

20.6.2      Each party acknowledges that in entering into the Contract it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.

20.7           Third party rights.

20.7.1      The Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

20.7.2      The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

20.8           Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

20.9           Governing law. The Contract 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 England and Wales.

20.10        Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

SCHEDULE – App Terms of Use

PLEASE READ THESE LICENCE TERMS CAREFULLY

BY CLICKING ON THE "ACCEPT" BUTTON, OR BY USING THE APP, YOU AGREE TO THESE TERMS WHICH WILL BIND YOU.

Who we are and what this Agreement does;

The FeedAlert™ mobile application software (App) is a product of E Collinson & Co Limited, (11461839) of Riverside Industrial Park, Catterall, Preston, Lancashire, PR3 0HP.

 E Collinson & Co Limited license you to use:

·                   The App and any updates or supplements to it.

·                   The service you connect to via the App and the content we provide to you through it (Service).

as permitted in these terms.

Use of the App is dependent on the associated FeedAlert hardware (Hardware) being correctly fitted and installed to your silo. If the Hardware is not correctly fitted and / or installed, the App and Services may not work. Please feel free to get in touch with us on the details stated below if you need any assistance with fitting or installation of the Hardware.

Subscriptions

Usage of the App is subject to you acquiring subscriptions.

To use the App service you must have a FeedAlert device, and provide us with a valid payment method.  ‘Payment method’ means a current, valid, accepted method of payment, this must be updated as required to continue the service.  Unless you cancel your subscription service before your chosen billing date you authorise us to charge the subscription fee for the next billing cycle to your payment method. 

The different types of subscriptions available are outlined on www.feedalert.co.uk.

Subscription fees shall be charged on the first day of the applicable subscription period. Where any payment is not received, returned unpaid or otherwise rejected or denied, we reserve the right to cancel your subscription unless you provide us with a new payment method.

Any charges successfully made via a new payment method, prior to us cancelling the subscription, shall be considered to have taken place on the original first day of the appliable subscription period.

You may cancel a subscription at any time and no further payments will be taken by us from the date of cancellation.

Upon cancellation of a subscription, access to any available data shall be cancelled and will be accessible until the paid subscription end date, thereafter data will no longer be accessible to you.

Promotional Trials

From time to time, we may offer certain promotional trials which, if offered, shall be subject to these terms, unless otherwise confirmed by us.

If a promotional trial includes a free period for use of the App service, in order to use the App service you must provide us with a valid payment method.  ‘Payment method’ means a current, valid, accepted method of payment.  You will be notified of the end of the promotional period, if you do not wish to continue with the service you will need to cancel your subscription service before billing commences. 

At the end of the promotional trial, you will have the opportunity to commence a subscription. Where you decide not to commence a subscription, any available data shall be cancelled and will not longer be accessible to you.

Your privacy

Under data protection legislation, we are required to provide you with certain information including who we are, how we process your personal data and for what purposes and your rights in relation to your personal data and how to exercise them. This information is provided in https://www.feedalert.co.uk/privacy-policy and it is important that you read that information.

Third party terms may also apply

If the way in which you use the App is controlled by any third parties from time to time, you may also need to comply with their rules and policies.

Operating system requirements

This App may require a minimum level of memory and operating system in order to use it on your desired device (which may be altered from time to time).

Support for the App and how to tell us about problems

If you want to learn more about the App or the Service or have any problems using them please take a look at our support resources at www.feedalert.co.uk.

Contacting us (including with complaints). If you think the App or the Services are faulty or misdescribed or wish to contact us for any other reason please email our customer service team at support@feedalert.co.uk or call the team on 01995 606451, choose option 5.

How we will communicate with you. If we have to contact you we will do so by email, by SMS or by pre-paid post, using the contact details you have provided to us.

How you may use the App, including how many devices you may use it on

In return for your agreeing to comply with these terms you may:

·                   download or stream a copy of the App onto Apple and Android devices and view, use and display the App and the Service on such devices for your purposes only; and

·                   receive and use any free supplementary software code or update of the App incorporating "patches" and corrections of errors as we may provide to you.

You must be 18 or over to accept these terms and buy the App.

You may not transfer the App to someone else

We are giving you the right to use the App and the Service as set out above. You may not otherwise transfer the App or the Service to someone else, whether for money, for anything else or for free. If you sell any device on which the App is installed, you must remove the App from it.

If you would like to share the App, you can add members to your team and they view this via the App on their phone device.

Changes to these terms

We may need to change these terms to reflect changes in law or best practice or to deal with additional features which we introduce.

We will give you at least 30 days notice of any substantive changes by sending you an email with details of the change or notifying you of a change when you next start the App.

We may make minor updates to these terms without prior notice to you.

If you do not accept the notified changes you will not be permitted to continue to use the App and the Service.

Update to the App and changes to the Service

From time to time we may automatically update the App and change the Service to improve performance, enhance functionality, reflect changes to the operating system or address security issues. Alternatively we may ask you to update the App for these reasons.

If you choose not to install such updates or if you opt out of automatic updates you may not be able to continue using the App and the Services.

The App will always work with the current or previous version of the operating system (as it may be updated from time to time) and match the description of it provided to you when you began using it.

If someone else owns the phone or device you are using

If you download or stream the App onto any phone or other device not owned by you, you must have the owner's permission to do so. You will be responsible for complying with these terms, whether or not you own the phone or other device.

We are not responsible for other websites you link to

The App or any Service may contain links to other independent websites which are not provided by us. Such independent sites are not under our control, and we are not responsible for and have not checked and approved their content or their privacy policies (if any).

You will need to make your own independent judgement about whether to use any such independent sites, including whether to buy any products or services offered by them.

Purchasing goods or products through the App

If you purchase any goods or services from any third parties via the App, such goods or services will be subject to the terms and conditions agreed between you and third party, not us.

Please ensure that you review and satisfy yourself in connection with any third party terms and conditions before purchasing goods or services from them.

We will have no liability for any goods or services that you acquire from third parties, whether pursuant to the App or otherwise.

Licence restrictions

You agree that you will:

·                   except in the course of permitted sharing rent, lease, sub-license, loan, provide, or otherwise make available, the App or the Services in any form, in whole or in part to any person without prior written consent from us;

·                   not copy the App or Services, except as part of the normal use of the App or where it is necessary for the purpose of back-up or operational security;

·                   not translate, merge, adapt, vary, alter or modify, the whole or any part of the App or Services nor permit the App or the Services or any part of them to be combined with, or become incorporated in, any other programs, except as necessary to use the App and the Services on devices as permitted in these terms;

·                   not disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of the App or the Services nor attempt to do any such things, except to the extent that (by virtue of sections 50B and 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are necessary to decompile the App to obtain the information necessary to create an independent program that can be operated with the App or with another program (Permitted Objective), and provided that the information obtained by you during such activities:

·                   is not disclosed or communicated without the licensor's prior written consent to any third party to whom it is not necessary to disclose or communicate it in order to achieve the Permitted Objective; and

·                   is not used to create any software that is substantially similar in its expression to the App;

·                   is kept secure; and

·                   is used only for the Permitted Objective;

·                   comply with all applicable technology control or export laws and regulations that apply to the technology used or supported by the App or any Service.

Acceptable use restrictions

You must:

·                   not use the App or any Service in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with these terms, or act fraudulently or maliciously, for example, by hacking into or inserting malicious code, such as viruses, or harmful data, into the App, any Service or any operating system;

·                   not infringe our intellectual property rights or those of any third party in relation to your use of the App or any Service, including by the submission of any material (to the extent that such use is not licensed by these terms);

·                   not transmit any material that is defamatory, offensive or otherwise objectionable in relation to your use of the App or any Service;

·                   not use the App or any Service in a way that could damage, disable, overburden, impair or compromise our systems or security or interfere with other users; and

·                   not collect or harvest any information or data from any Service or our systems or attempt to decipher any transmissions to or from the servers running any Service.

Intellectual property rights

All intellectual property rights in the App, the Services and the Hardware throughout the world belong to us (or our licensors) and the rights in the App and the Services are licensed (not sold) to you. You have no intellectual property rights in, or to, the App or the Services other than the right to use them in accordance with these terms.

Our responsibility for loss or damage suffered by you

We are not responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if either it is obvious that it will happen or if, at the time you accepted these terms, both we and you knew it might happen.

We do not exclude or limit in any way our liability to you where it would be unlawful to do so. This includes liability for death or personal injury caused by our negligence or the negligence of our employees, agents or subcontractors or for fraud or fraudulent misrepresentation.

We will not be liable for damage that you could have avoided by following our advice to apply an update offered to you free of charge or for damage that was caused by you failing to correctly follow installation instructions or to have in place the minimum system requirements advised by us, or if you failed to install or fit the Hardware correctly.

We are not liable for business losses. We will have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.

Limitations to the App and the Services. The App and the Services are provided for general information purposes only. They do not offer advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of information obtained from the App or the Service. Although we make reasonable efforts to update the information provided by the App and the Service, we make no representations, warranties or guarantees, whether express or implied, that such information is accurate, complete or up to date.

Please back-up content and data used with the App. We recommend that you back up any content and data used in connection with the App

Check that the App and the Services are suitable for you. The App and the Services have not been developed to meet your individual requirements. Please check that the facilities and functions of the App and the Services meet your requirements.

We are not responsible for events outside our control. If our provision of the Services or support for the App or the Services is delayed by an event outside our control then we will contact you as soon as possible to let you know and we will take steps to minimise the effect of the delay. Provided we do this we will not be liable for delays caused by the event but if there is a risk of substantial delay you may contact us to end your contract with us and receive a refund for any Services you have paid for but not received.

We may end your rights to use the App and the Services if you break these terms

We may end your rights to use the App and Services at any time by contacting you if you have broken these terms in a serious way. If what you have done can be put right we will give you a reasonable opportunity to do so.

If we end your rights to use the App and Services:

·                   You must stop all activities authorised by these terms, including your use of the App and any Services.

·                   You must delete or remove the App from all devices in your possession and immediately destroy all copies of the App which you have and confirm to us that you have done this.

·                   We may remotely access your devices and remove the App from them and cease providing you with access to the Services.

We may transfer this Agreement to someone else

We may transfer our rights and obligations under these terms to another organisation. We will always tell you in writing if this happens and we will ensure that the transfer will not affect your rights under the contract.

You need our consent to transfer your rights to someone else

You may only transfer your rights or your obligations under these terms to another person if we agree in writing.

No rights for third parties

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.

If a court finds part of this contract illegal, the rest will continue in force

Each of the paragraphs of these terms operates separately. If any court or relevant authority decides that any of them are unlawful, the remaining paragraphs will remain in full force and effect.

Even if we delay in enforcing this contract, we can still enforce it later

Even if we delay in enforcing this contract, we can still enforce it later. If we do not insist immediately that you do anything you are required to do under these terms, or if we delay in taking steps against you in respect of your breaking this contract, that will not mean that you do not have to do those things and it will not prevent us taking steps against you at a later date.

Which laws apply to this contract and where you may bring legal proceedings

These terms are governed by English law and you can only bring legal proceedings in respect of the products in the English courts.