Exposure Terms & Conditions

1

Definitions and Interpretation

1.1

In this agreement the following words and phrases shall have the following meanings:

Agreement
the Contract Particulars and the Conditions;
Commencement Date
the date on which the Equipment is to be set up by EX at the Delivery Address;
Confidential Information
any information about EX, divulged by EX and/or received or obtained by You prior to or during the period of this agreement which is either marked or expressed by EX as confidential or which may be reasonably considered to be confidential;
Customer
the person hiring the Equipment from EX also referred to as "You” and “Your”;
Data
information obtained by EX from the Equipment relating to attendees at the Event other than their contact details;
Day
9:00am till 5:00pm on any day;
Delivery
the transfer of physical possession of the Equipment to You at the Delivery Address;
Delivery Address
the location where the Equipment will be delivered and installed for Your use;
Equipment
the number of Sensors specified in the Contract Particulars;
Event
the event or location in respect of which information is to be gathered under the Service;
EX
Exposure Analytics Limited registered in England and Wales with company number 08818692 and whose registered office is situated at Plestowes Barn, Hareway Lane, Barford, Warwick, England, CV35 8DD;
EX's Account
EX's bank account Sort Code [ ], account number [ ]
EX's E-mail
the e-mail address detailed as such in the Contract Particulars;
Identification Service
provision of contact details supplied by attendees at the Event;
Persistent Breach
in respect of any Period committing the same (or a similar) breach on two (2) or more occasions or committing three (3) or more breaches of this agreement in either case regardless of whether or not any breach was subsequently remedied;
Payments
the payments made by or on behalf of You to EX for delivery, installation and supply of the Equipment as further detailed in the Contract Particulars;
Period
the Period as detailed in the Contract Particulars, unless this agreement is terminated earlier in accordance with these Conditions, in which case the Period shall end on the date of such termination;
Portal
EX’s standard portal for making information collected by Sensors available to its customers;
Removal
the transfer of physical possession of the Equipment to EX at the Delivery Address;
Sensor
EX’s sensor to detect mobile Wi-Fi searches;
Service
the provision of information about attendees at the Event;
Total Loss
due to Your default the Equipment is, in EX's reasonable opinion or the opinion of its insurer(s), damaged beyond repair, lost, stolen, seized or confiscated;
Working Day
any days other than a Saturday or a Sunday or a bank or public holiday in England;
Your E-mail
the e-mail address detailed as such in the Contract Particulars.

1.2

In this agreement:

1.2.1

Words incorporating the masculine include the feminine and neuter and words incorporating the singular include the plural and vice versa.

1.2.2

The headings to clauses are for the purpose of information and identification only and do not form part of this agreement.

1.2.3

References to any statute or statutory provisions will, unless the context otherwise requires, be construed as including references to any subsequent statute and will include any orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision which are in force as at the date of this agreement or subsequently.

1.2.4

References to persons include individuals, bodies corporate, unincorporated associations, partnerships and any other legal or commercial entity or undertaking.

1.2.5

References to clauses and schedules are (unless otherwise specified) to the clauses and schedules of these Conditions.

1.2.6

Each schedule to these Conditions (if any) shall have the same force and effect as if set out in the main body of these Conditions.

1.2.7

The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context.

2

Basis of agreement

The Contract Particulars and these Conditions (and any documents referred to in them) constitute the whole agreement between You and EX for the supply of the Equipment and provision of the Service. You acknowledge that You have not relied upon any statement, promise or representation made or given by or on behalf of EX which is not set out in this agreement. If any of the Conditions are inconsistent with the Contract Particulars, the Contract Particulars shall prevail.

3

Supply of equipment

3.1

EX shall provide the Equipment to You for use at the Delivery Address in accordance with the Contract Particulars and these Conditions. EX reserves the right to modify or substitute the Equipment for a similar piece of equipment if required by any repair or applicable statutory or regulatory requirements so long as the substitute or replacement equipment operates to at least the same overall level and standard as the original Equipment.

3.2

EX shall not, other than in the exercise of its rights under these Conditions or applicable law, interfere with Your quiet possession of the Equipment.

4

Payments

4.1

The Period starts on the Commencement Date and shall continue for the Period.

4.2

The Service Fee shall be calculated on a daily basis in respect of each full or part Day during the Period. For the avoidance of doubt a Day shall end at 5pm and if on the final day of the Period You have not arranged for the Equipment to be available for removal by EX at or before 5pm or delay is caused by Your default and the Equipment can only be removed after 5pm, You will be charged for an additional Day. If EX has to wait more than 1 hour for the Equipment to be made available or has to return on another occasion to collect it, EX shall be entitled to charge an additional Removal Fee.

4.3

You shall pay to EX the Payments as to 50% on order and 50% no later than one week prior to the Commencement Date. The Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by You at the same time. Any other payments You are obliged to pay to EX shall be due upon receipt of invoice.

4.4

All amounts due under this agreement shall be paid in full by bank transfer to EX's Account without any set-off, counterclaim, deduction or withholding. Time of payment is of the essence.

4.5

If You fail to make any payment due to EX under this agreement by the due date for payment, then, without limiting EX's other remedies, EX shall be entitled to charge interest on the outstanding amount at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998. You shall pay the interest together with the overdue amount and any costs incurred by EX in recovering such amounts.

5

Delivery, installation and return

5.1

Delivery of the Equipment shall be made by EX to the Delivery Address. EX shall use all reasonable endeavours to effect Delivery by the Commencement Date and at the time agreed between the parties. EX shall not be responsible to You for any delay or failure of Delivery due to reasons outside EX's control.

5.2

Signature by Your duly authorised representative of EX's delivery note shall constitute conclusive evidence that You have examined the packaging for the Equipment and have found it to be in good condition and undamaged.

5.3

You shall at Your sole expense provide all requisite materials, facilities and suitable working conditions to enable appropriate use of the Equipment including power and internet connection to the specifications specified by EX.

5.4

You shall ensure that EX will have appropriate access to the Delivery Address for Delivery and Removal of the Equipment and You must confirm to EX that access has been granted. When EX requires you to return the Equipment to it at the end of the Event you shall do so immediately after the Event.

5.5

EX shall install and calibrate the Equipment so that it detects the presence of mobile Wi-Fi searches at the intensity and for the time periods which EX considers appropriate for the Event and transmits the relevant information to EX.

5.6

Where the Equipment is battery operated you will ensure that a charged battery is connected to the Equipment at all times when the Event is taking place.

6

Title, Risk and Insurance

6.1

Equipment shall at all times remain the property of EX and You shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this agreement).

6.2

The risk of loss, theft, damage or destruction of the Equipment shall pass to You once the Equipment has been delivered by EX. The Equipment shall remain at Your sole risk during the Period and any further term during which the Equipment is in Your possession, custody or control until such time as the Equipment is removed by EX.

6.3

Whilst the Equipment is at Your risk, we shall, at EX's expense, obtain and maintain the following insurances:

6.3.1

insurance of the Equipment to a value not less than its full replacement value comprehensively against all usual risks of loss, damage or destruction by fire, theft or accident, and such other risks as EX may from time to time consider reasonably necessary;

6.3.2

insurance for such amounts as EX may from time to time consider reasonably necessary, to cover any third party or public liability risks of whatever nature and however arising in connection with the Equipment; and

6.3.3

insurance against such other or further risks relating to the Equipment as may be required by law.

6.4

You shall give immediate written notice to EX in the event of any loss, accident or damage to the Equipment arising out of or in connection with Your possession or use of the Equipment.

6.5

If EX claim against an insurance policy for loss, accident or damage to the Equipment arising out of or in connection with Your possession or use of the Equipment, You shall be liable for the payment any excess required by the insurer in respect of the claim. EX shall be entitled to recover the same as a debt from You.

7

Your responsibilities

7.1

You shall during the term of this agreement:

7.1.1

ensure that the Equipment is kept and operated in a suitable environment, used only for obtaining information about the Event;

7.1.2

ensure that the Equipment is not damaged whilst in Your possession, power or control;

7.1.3

make no alteration to the Equipment;

7.1.4

make no attempt to reverse compile, disassemble, reverse engineer or otherwise copy or reproduce all or any part of the Equipment;

7.1.5

keep the Equipment at all times at the Delivery Address and shall not move or attempt to move any part of the Equipment to any other location without EX's prior written consent unless authorised by EX to be fitted to a touring unit;

7.1.6

permit EX or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon the Delivery Address or any site at which the Equipment may be located and shall grant reasonable access and facilities for such inspection;

7.1.7

not, without the prior written consent of EX, part with control of, sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;

7.1.8

not attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building;

7.1.9

not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of EX in the Equipment;

7.1.10

not use the Equipment for any unlawful purpose;

7.1.11

ensure that at all times the Equipment remains identifiable as being EX's property and not remove or cover any sign to that effect attached to the Equipment; and

7.1.2

not do or permit to be done anything which could invalidate the insurances referred to in clause 6.

8

The service

8.1

EX shall monitor the Data, shall process it and shall make it available to You via the Portal in the form of specified reports in accordance with and to the extent specified in EX's standard documentation. You have no right to the Data as a whole or otherwise in the form of such reports.

8.2

You acknowledge that the Data does not identify any individual person or particular piece of telecommunications equipment.

8.3

If You opt for the Identification Service:

8.3.1

EX shall make provision for the users of all devices detected by the Equipment at the Event to provide their identification subject to acceptance of EX’s standard conditions and shall make such identifications available to You via the Portal;

8.3.2

EX will use its standard landing page unless You provide alternative text and/or images in accordance with EX’s requirements in which case EX shall use such text and/or images provided that You shall indemnify EX against any claims made against EX as a result of using such text and/or images;

8.3.3

You will use (and, where you are organising the Event for a third party, You shall ensure that the third party will use) such identifications only for the purposes of contacting such users to give them information about the Event and to invite them to contact You (or the person for whom you are organising the Event as appropriate);

8.3.4

You acknowledge that such identifications and any other information discernable from them may constitute personal data within the meaning of the Data Protection Act.1998. You agree that You will (and, where you are organising the Event for a third party, You will ensure that the third party will) only use them for the purpose set out in this clause, process them only in accordance with the users’ instructions and take appropriate technical and organisational measures to prevent their unauthorised or unlawful processing or their accidental loss, destruction or damage.

8.4

EX shall use its reasonable endeavours to keep the Portal working and available to you 24 hours a day during the Event and for 3 months after return of the Equipment to EX, subject only to downtime required to fix faults in or associated with the Portal or related computer or telecommunications equipment, which downtime (where planned) will be notified to You in advance.

8.5

You shall use the Data as made available to you via the Portal only for the purposes of assessing the success of the Event and not for any other purpose.

8.6

You acknowledge that EX retain all rights to the Data and may use it and supply it to any third party for any purpose it requires provided that it shall only make it available to third parties on an anonymised basis from which neither You nor the Event can be identified.

9

Warranty

9.1

EX warrants that the Equipment shall substantially conform to its specification (as made available by EX), be of satisfactory quality and fit for any purpose held out by EX. EX shall use all reasonable endeavours to remedy, free of charge and as soon as reasonably practicable, any material defect in the Equipment which manifests itself, provided that:

9.1.1

You notify EX of any defect immediately upon the defect occurring or of becoming aware of the defect;

9.1.2

EX is permitted to make a full examination of the alleged defect and to have both physical and remote access to any defective Equipment promptly upon request;

9.1.3

he defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than EX's authorised personnel;

9.1.4

the defect did not arise out of any information, design or any other assistance supplied or furnished by You or on its behalf; and

9.1.5

the defect is directly attributable to defective material, workmanship or design.

9.2

If EX fails or is unable to remedy any material defect in the Equipment in accordance with clause 9.1, EX shall, at Your request, collect part or all of the Equipment and make an appropriate reduction to the Payments payable during the remaining term of this agreement.

9.3

EX warrants that the Service will be provided with reasonable care and skill in accordance with EX’s standard documentation as issued from time to time.

10

Liability

10.1

Without prejudice to clause 10.2, EX's maximum aggregate liability for breach of this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the total Payments due under this agreement.

10.2

Nothing in this agreement shall exclude or in any way limit:

10.2.2

either party's liability for death or personal injury caused by negligence;

10.2.3

either party's liability for fraud or fraudulent misrepresentation; or

10.2.4

any other liability which cannot be excluded by law.

10.3

This agreement sets forth the full extent of EX's obligations and liabilities in respect of the Equipment and the Service. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on EX except as specifically stated in this agreement. Any condition, warranty or other term concerning the Equipment or the Service which might otherwise be implied into or incorporated within this agreement, whether by statute, common law or otherwise, is expressly excluded.

10.4

Without prejudice to clause 10.2, EX shall not be liable under this agreement for any:

10.4.1

loss of profit;

10.4.2

loss of revenue

10.4.3

loss of business; or

10.4.4

indirect or consequential loss or damage,

in each case, however caused, even if foreseeable.

11

Termination

11.1

Without affecting any other right or remedy available to it, EX may terminate this agreement with immediate effect by giving notice to You if:

11.1.1

You have committed any material breach of Your obligations under this agreement or shall have failed to remedy any remediable breach within a period of twenty-eight (28) days of the receipt of a notice in writing from EX requiring You to do so; or

11.1.2

You have been in Persistent Breach of Your obligations; or

11.1.3

You, whether as a company, partnership or individual, are unable to pay Your debts within the meaning of s.123 of the Insolvency Act 1986 or suffer any event which could be reasonably considered to indicate that You are insolvent or are at risk of becoming so in the relatively near future including, insolvent liquidation, a declaration of bankruptcy, the presentation of a bankruptcy or a winding up petition or the appointment of an administrator, receiver or similar over any of Your assets or undertaking; or

11.1.4

any sum required under the terms of this agreement is not paid at the latest within two days following its due date; or

11.1.5

You cease to carry on or You take any steps to cease carrying on Your business.

11.2

This agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment.

12

Consequences of Termination

12.1

Upon termination of this agreement, however caused:

12.1.1

EX's consent to Your possession of the Equipment shall terminate and EX may, by its authorised representatives, without notice and at Your expense, retake possession of the Equipment and for this purpose may enter the Delivery Address or any site at which the Equipment is located;

12.1.2

Your right of access to and to use the Data shall terminate; and

12.1.3

without prejudice to any other rights or remedies, You shall pay to EX on demand:

(a)

all Payments and other sums due but unpaid at the date of such demand together with any interest accrued;

(b)

any costs and expenses incurred by EX in recovering the Equipment and/or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).

12.2

Upon termination of this agreement pursuant to clause 11.1, any other repudiation of this agreement by You which is accepted by EX or pursuant to clause 11.2, without prejudice to any other rights or remedies of EX You shall pay to EX on demand a sum equal to the whole of the Payments that would (but for the termination) have been payable if this agreement had continued from the date of such demand to the end of the Period.

12.3

The sums payable pursuant to clause 12.2 shall be payable in addition to the sums in clause 12.1.3 and shall be agreed compensation for EX's loss.

12.4

Termination or expiry of this agreement shall not affect any rights, remedies, obligations or 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 this agreement which existed at or before the date of termination or expiry.

13

Force Majeure

Neither we nor You shall be responsible to the other for any delay in the performance or any non-performance of our respective obligations under this agreement due to any causes (including fire, flood, act of terrorism, extreme weather conditions, industrial action, traffic congestion) (a “Force Majeure Event”) beyond the reasonable control of the party affected by the Force Majeure Event, but the party whose performance is affected by the Force Majeure Event in question shall promptly following the occurrence of such Force Majeure Event inform the other party in writing of the Force Majeure Event in question, stating that such Force Majeure Event in question has delayed or prevented its performance and after giving such notice such party shall take all reasonable steps to comply with the terms of this agreement as fully and promptly as possible.

14

Confidential Information

14.1

You shall maintain secret and confidential the terms of this agreement and all Confidential Information. You shall respect EX's proprietary rights in the Confidential Information and You shall use it exclusively for the purpose of this agreement.

14.2

You acknowledge that all information about the Sensors and how they operate constitutes EX’s Confidential Information and you in particular agree not to open the Sensors or to endeavour to reverse engineer the Sensors or EX’s technology and information used to provide the Service.

14.3

You shall procure that all members of Your staff who have access to any Confidential Information shall, before being given access (whether as a result of Your direct disclosure or otherwise) to such Confidential Information are made aware of and made subject to these obligations.

14.6

The obligations imposed by this clause 14 shall survive the variation, renewal, expiry or termination of this agreement.

14.5

You agree (and, where you are organising the Event for a third party, You shall procure that the third party agrees) that EX may use Your (and/or the third party’s) name and/or logo and refer to You and/or the third party as its customers in promoting its Exposure Solo service.

15

Waiver and Remedies

15.1

Neither EX's failure or delay to exercise any power given to EX under this agreement, or to insist upon strict compliance by You with any obligation under this agreement, nor any custom or practice of You or EX, or (save for an express waiver in writing) any action by EX shall constitute any waiver of any of EX’s rights under this agreement.

15.2

Any waiver by EX of any right or remedy we may have against You shall only be effective in respect of the particular circumstance that we have expressly stated that the waiver in question relates to and shall not apply to any other circumstance whether past or future.

15.3

Save as expressly stated otherwise each remedy available to EX under this agreement shall be without prejudice to any other rights and/or remedies, whether under this agreement, at common law, under statute or otherwise, which we may have against You and any single or partial exercise of any right or remedy by EX shall not preclude any other or further exercise of such or any other right or remedy available to EX.

16

Severability

If any provision of this agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

17

Notices

17.1

Notices sent in respect of any legal action arising under this agreement or terminating this agreement shall be in writing and must be sent:

17.1.1

by pre-paid first class post; or

17.1.2

by hand.

The notice shall be sent to the address of the party to be served as set out in this agreement or such other address as that party may advise the other party, in writing, as being its address for service.

17.2

All communications in connection with this agreement other than those referred to in clause 24.1 may also be sent by email to, as applicable, Your E-mail or EX E-mail.

17.3

Notice is deemed given:

17.3.1

in the case of hand delivery – at the time the delivery is made;

17.3.2

in the case of posting– two (2) Working Days after the notice is posted;

17.3.3

in the case of email at the time of transmission provided that notice of failed or incomplete transmission is not received by the sender.

18

Status of Parties

Each of the Parties to this agreement is an independent contractor and nothing contained in this agreement, and no action taken by the parties pursuant to this agreement shall be construed to imply that there is any relationship between the parties of partnership or of principal / agent or of employer /employee, nor are the parties hereby engaging in a joint venture, association or other co-operative venture, and accordingly neither of the parties shall have any right or authority to act on behalf of the other nor to bind the other by contract or otherwise, unless expressly permitted by the terms of this agreement.

19

Assignment and Subcontracting

19.1

EX may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its right under this agreement any may subcontract or delegate in any manner any or all of its obligations under this agreement to any third party.

19.2

You shall not, without the prior written consent of EX, assign, transfer, charge, subcontract or deal in any other manner with all or any of its right under this agreement.

20

Third Party Rights

Nothing in this agreement shall confer any right or benefit upon any person who is not a party to it whether under the Contracts (Rights of Third Parties) Act 1999.

21

Governing Law

This agreement shall be governed by and construed in accordance with English law and both parties submit to the jurisdiction of the English courts.

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