IMPORTANT NOTICE

Please take a few minutes to read this key information carefully together with the terms and conditions set out below relating to the Checkit Resource Management System.

Key information

What types of contract are available?

Checkit offers two types of subscription:

  • Peace of Mind:  Users benefit from a low all-inclusive initial payment. This contract has a minimum term of two years, with three months’ notice required to terminate. During the minimum term equipment is replaced free of charge as necessary. Please see clause 8 for more details. You will need to pass a credit reference check to qualify for this type of contract.
  • No Ties:  Users make a larger initial payment. This contract has a minimum term of one month, with one month’s notice required to terminate. Replacement equipment not under warranty must be purchased as required. Please see clause 9 for more details.
    A different minimum term and/or notice period may sometimes be agreed with you as part of your individual quote. Not all services will be available under both options and minimum monthly amounts may be required for some payment options and contract types.

Changes to the subscription

You may make changes to your subscription at any time. Please see clause 20 of the Terms and Conditions for more information about how to do this.

What happens at the end of the minimum term?

Your subscription will continue until you cancel. Your subscription will continue to be governed by the Terms and Conditions and your individual quote.

How can I cancel my subscription?

You may cancel your subscription at the end of or after the end of the minimum term by giving us the amount of notice required for your type of subscription. You are also allowed to end your subscription earlier in certain other circumstances. For details of when your subscription can be ended earlier please see clause 21 of the Terms and Conditions.

Who owns the Checkit equipment?

The equipment will belong to you once we have received your first payment. You will be responsible for any loss or damage to the equipment once it is in your possession. For details about replacing any of the equipment please see clauses 8 and 9 of the Terms and Conditions.

Support

If you are having problems with the equipment or accessing the Checkit cloud software, please contact us. For more details about our support service (including repair/replacement of equipment) please see clauses 8, 9 and 10 of the Terms and Conditions.

Contacting Checkit

If you’d like to speak to us about your subscription or the Checkit Service, please refer to http://www.Checkit.net/contact/.

Terms and Conditions

1            Definitions

1.1          We use the following definitions in these Terms and Conditions:

Additional Charges” means charges payable for additional services outside of the standard Subscription Fee;

Authorised User” means those of your employees and agents you have authorised to access the Software;

Beta Product” means any equipment, services, software, features or other digital content developed or made available by Checkit but which are not yet available to order through the Website;

Beta Trial” has the meaning set out in clause 5.1;

Business Day” means any day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;

Checkit” means Checkit Limited (registered in England and Wales with company number 9343487) whose registered office address is Broers Building, 21 J J Thomson Avenue, Cambridge, CB3 0FA or its successor or assignee operating under the trade mark Checkit;

Checkit Sensors” means any of Checkit’s devices (handheld, fixed, or otherwise) for monitoring food safety and capturing the Data;

Cloud” and “Cloud Software” mean the online software applications (as further described in the Sales Collateral) made available to you as part of your Subscription;

Checkit Service” means the Checkit Resource Management System, including the Software and the Equipment, and described in more detail in the Sales Collateral and/or the Website;

Conditions” means these terms and conditions for the provision of the Checkit Service;

Consumables” means any consumables provided by Checkit to you which may be required in order to use the Equipment and/or receive the Services including wipes, probes for the Checkit Sensors, and calibration certificates;

Data” means the monitoring data captured by the Checkit Sensors;

Embedded Software” means the software pre-installed on the Equipment;

Equipment” means the component parts of the Checkit Service, including the Checkit Sensors and any other Equipment provided to you as part of your Subscription;

Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world;

Login Details” means a user identification and password which provides access to a User Account;

Maintenance Releases” means any updated release of the Software to which it relates which corrects faults, adds functionality or otherwise amends or upgrades the relevant Software, but excludes any New Version;

Minimum Term” means: (i) in the case of the POM contract, a minimum period of two years from the Commencement Date; or (ii) in the case of the NT contract, a minimum period of one month from the Commencement Date; or (iii) where a different period is specified in the Quote or otherwise agreed with you in writing or via Checkit’s online system, that period;

New Version” means any new version of the software to which it relates which from time to time is publicly marketed and offered for licence by Checkit (or the relevant third party provider) in the course of its normal business;

Notice” and “Notice Period” mean: (i) in the case of the POM contract, three months; or (ii) in the case of the NT contract, one month; or (iii) where a different period is specified in the Quote or otherwise agreed with you in writing or via Checkit’s online system, that period;

NT” means the Checkit No Ties contract;

Personal Data” has the same meaning as set out in the Data Protection Act 1998;

POM” means the Checkit Peace of Mind contract;

Quote” means the quote generated by Checkit for your licence of the Checkit Service;

Sales Collateral” means Checkit’s product brochures, data sheets, and other associated documentation and information provided by Checkit to you, and which may be amended from time to time;

Software” means the Embedded Software, the Cloud Software and the Third Party Software;

Subscription” means your subscription for the Checkit Service as set out in the Quote and these Conditions;

Subscription Fee” means the fee or fees payable from time to time for the Checkit Service as set out in the Quote;

Subscription Period” means the period for which you subscribe to the Checkit Service as set out in clause 2.5;

Support Hours” means the hours of 09.00 to 17.00 (UK time) Monday to Friday;

Third Party Software” means any third party software programs referred to in the Sales Collateral, including Windows operating service, antivirus, and firewall programs;

User Account” means a Login provided by Checkit or generated by you to enable use of the Cloud Software in accordance with these Conditions;

Warranty Period” means: (i) in the case of the POM contract, 24 months from the date of delivery; or (ii) in the case of the NT contract, the relevant period as set out in clause 9;

Website” means Checkit’s website at http://www.checkit.net or such other website concerning the Checkit Service and/or related products or services as Checkit may operate from time to time; and

you” means the organisation stated to be placing the Order (and “your” shall be construed accordingly).

2            Your Subscription

2.1          Checkit will issue you with a Quote (whether via the internet or otherwise) based on your requirements for the Checkit Service. It is your responsibility to ensure the Quote is complete and accurate.

2.2          The Quote is only valid for a period of 30 Business Days from its date of issue.

2.3          Once you accept the Quote, we may carry out a credit reference check on you. Checkit may also request a deposit or an advance payment of amounts due under the contract as a result of the credit reference check. Checkit will confirm the required deposit or advance payment in an updated Quote.

2.4          Your Subscription Period will only begin when Checkit issues a separate confirmation (whether by email or online) accepting your request for a Subscription following: (i) its completion of the credit reference check and (ii) your acceptance of the Quote including the deposit and (iii) the delivery of the Equipment (“Commencement Date”).

2.5          Your Subscription will continue for the Minimum Term, unless either of us terminates it earlier in accordance with clause 21. On expiry of the Minimum Term, your Subscription shall continue until either of us gives Notice to terminate in accordance with clause 21. Checkit does not offer a cooling off period for your Subscription.

2.6          These Conditions apply to your Subscription unless and to the extent the Quote states otherwise.

2.7          The Quote and these Conditions apply to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. You acknowledge that you have not relied on any statement, promise or representation made or given by or on behalf of Checkit which is not set out in the Quote or these Conditions.

3            Software

3.1          Checkit hereby grants to you a non-exclusive, non-transferable, revocable, royalty-free licence to permit Authorised Users to use and access the Software in accordance with these Conditions.

3.2          You shall permit Authorised Users to use and access the Software solely for its intended purpose (as set out in these Conditions, the Sales Collateral and/or Website) and for receiving the Checkit Service. You may only use and access the Software in connection with the Checkit Service and not as a standalone product.

3.3          You undertake not to, and agree to ensure that your Authorised Users do not:

3.3.1               use the Software for any illegal purpose or any purpose other than that for which it is intended;

3.3.2               copy, record, edit, alter or translate the Software;

3.3.3               reverse engineer, disassemble, decompile, copy, duplicate, modify or adapt or otherwise attempt to derive source code for the Software in whole or in part except to the extent expressly permitted by law;

3.3.4               attempt to transmit to or via the Software any information that contains a virus, worm, Trojan horse or other harmful or disruptive component;

3.3.5               grant access to the Software or Data to any person other than an Authorised User;

3.3.6               remove, tamper with or circumvent the Login Details or any licence keys relating to the Software, or provide such licence keys to any individual or legal entity other than the Authorised Users, or use the Login Details or any licence keys provided by Checkit to change, modify, delete, interfere with or misuse any files or other data created, owned or provided by Checkit or any third party contained within, or provided as part of the Checkit Service (including the Cloud Software);

3.3.7               interfere with or disrupt the proper operation of the Cloud Software including, but not limited to, knowingly or negligently transmitting files that may interrupt, damage, destroy or limit the functionality of any computer software, hardware, services or networks including corrupted files or files that contain viruses, Trojans, worms, spyware or other malicious content;

3.3.8               upload any content or data other than the Data onto the Software; and/or

3.3.9               probe, scan or test the vulnerability of the Checkit Service or attempt to circumvent or hack any user authentication or security controls in respect of the Checkit Service.

3.4          From time to time Checkit may make available Maintenance Releases and New Versions of the Software. Checkit will roll out any such Maintenance Release(s) and New Version(s) automatically as part of your Subscription, provided you continue to pay the Subscription Fees. Where Maintenance Releases(s) and New Version(s) require any action on your part, you agree to carry out such action failing which Checkit cannot guarantee future functionality.

3.5          Any Maintenance Release(s) and New Version(s) provided to you shall form part of the Checkit Service and shall be subject to these Conditions.

3.6          Checkit may withdraw support and stop providing services in respect of any Software which is not the latest New Version, and in these circumstances Checkit shall have no liability or responsibility in respect of the proper operation of the Checkit Service in accordance with these Conditions.

Cloud Software

3.7          The Cloud Software is made available to you to configure and manage the operation of relevant hardware, to store and process the data from the hardware and to allow access to it across the internet. In order to access and use the Cloud Software, you must be connected to the internet.

3.8          The Cloud Software has been designed to run on a range of devices and browsers, details of which are set out in the Sales Collateral and/or on the Website (as updated from time to time). Checkit shall not have any liability to you if you attempt to use the Cloud Software on devices and/or browsers on which the Cloud Software has not been designed to run.

3.9          Checkit will provide you with the number of User Accounts set out in the Quote, and relevant Login Details, to access and use the Cloud Software.  You agree to:

3.9.1               keep all the Login Details confidential and not disclose them to any person or party other than your Authorised Users;

3.9.2               ensure the Authorised Users are aware of the confidential nature of the Login Details; and

3.9.3               notify Checkit promptly if any Login Details are disclosed to any person or party other than your Authorised Users and/or if you become aware of anything that may compromise the security and/or operation of the Login Details, User Accounts, the Cloud Software and/or the Checkit Service.

3.10        Subject to clause 3.11, Checkit will use commercially reasonable endeavours to make the Cloud Software available 24 hours a day, seven days a week, except for during limited periods of maintenance.

3.11        Owing to the nature of the internet, Checkit does not and cannot warrant or guarantee that your use of the Cloud Software will be uninterrupted or error-free.  Checkit is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and you acknowledge that the Cloud Software may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

Third Party Software

3.12        The Software contains open source software components which are used under licence. A list of those components and the associated licence terms are available here: http://www.checkit.net/tp_software/ (“Third Party EULAs”).

3.13        You agree to comply with the terms of the Third Party EULAs.

4            Try before you buy

4.1          From time to time, Checkit may at its sole discretion offer a ‘Try Before you Buy’ scheme at no charge to you (“TBYB Scheme”). Unless stated otherwise in the Quote, the TBYB shall continue for a maximum period of three months (“Scheme End Date”).

4.2          If you take part in the TBYB Scheme, then the Checkit Service will be provided to you on the terms set out in these Conditions, except that:

4.2.1               the Checkit Service is provided “as is” without any warranty during the TBYB Scheme;

4.2.2               clauses 8, 9 and 10 shall not apply during the TBYB Scheme; and

4.2.3               no charges will be due during the TBYB Scheme, unless the Equipment is lost or damaged due to an accident or your misuse, including where it becomes unusable as a result of such damage, in which case clause 13.4 shall apply.

4.3          Unless you return the Equipment to Checkit by the Scheme End Date or enter into a NT contract, your TBYB Scheme will automatically turn into a full Subscription for a POM contract with the Minimum Term commencing and the Subscription Fees becoming payable on the Scheme End Date.

4.4          Clauses 21.5 to 21.7 will apply where you return the Equipment to Checkit by the Scheme End Date and the TBYB Scheme automatically expires.

5            Beta Trials

5.1          From time to time, Checkit may invite you to test a Beta Product at no charge (a “Beta Trial”).  You may agree to or decline any such Beta Trial at your sole discretion.  Unless otherwise stated by Checkit, any Beta Trial will expire upon the earlier of (a) three months from the trial start date or (b) the date that a version of the relevant Beta Product becomes available to order through the Website.

5.2          Notwithstanding any other provision of these Conditions, if you agree to a Beta Trial, then the Checkit Service or Beta Product (as applicable) shall be provided to you by Checkit on the terms set out in these Conditions, except that:

5.2.1               any Beta Product is provided “as is” without any warranty and the Checkit Service is provided “as is” without any warranty during the Beta Trial;

5.2.2               clauses 8, 9 and 10 shall not apply during the Beta Trial; and

5.2.3               no charges will be due in respect of your use of the relevant Beta Product during the Beta Trial, unless:

(i)             any Beta Product or any other Equipment is damaged due to your misuse of the Beta Product or Equipment (as applicable) or lost (in which case clause 13.4 shall apply); or

(ii)            you fail to return the Beta Product or any other Equipment (as applicable) to Checkit on expiry of the Beta Trial, in which case Checkit shall be entitled to charge you for the full cost of the Beta Product or Equipment (as applicable).

5.3          On expiry of the Beta Trial clauses 21.5 to 21.7 will apply.

6            Delivery and installation

6.1          Checkit will deliver the Equipment to the location specified in the Quote or such other location as we agree (“Delivery Location”). Checkit shall ensure that each delivery of the Equipment is accompanied by a delivery note.

6.2          Delivery shall be complete on the Equipment’s arrival at the Delivery Location.

6.3          If you fail to accept or take delivery of the Equipment when Checkit attempts to deliver it:

6.3.1               delivery of the Equipment shall be deemed to have been completed at 9.00 am (UK time) on the Business Day following the day on which Checkit attempted delivery; and

6.3.2               Checkit shall store the Equipment and attempt re-delivery of the Equipment until actual delivery has occurred and shall be entitled to charge you for all related costs and expenses (including insurance and storage charges).

6.4          Where it has been agreed that Checkit shall install the Equipment, Checkit will install the Equipment as indicated in the Quote. You agree to allow Checkit appropriate access to your site(s) and system(s) for the purposes of carrying out the installation. Checkit will be entitled to charge a fee if an appointment has been arranged and no access is possible at that time. Checkit will make every effort to reschedule appointments when notified not less than 24 hours prior to the original appointment.

6.5          If the installation is ‘non-standard’, Checkit reserves the right to require payment of Additional Charges for such installation. Checkit will advise you of any such Additional Charge in advance of commencing the installation work.

6.6          Where you install the Equipment, you must do so in accordance with any relevant user installation guide or other instructions provided to you by Checkit.

6.7          Any dates quoted for delivery or installation of the Equipment are approximate only, and the time of delivery or installation is not of the essence.

7            Equipment

7.1          The Equipment will become your property on receipt by Checkit of your first payment of the Subscription Fee or delivery of the Equipment whichever happens later. You will take responsibility for the risk of loss, theft, damage or destruction of the Equipment from delivery onwards. Checkit recommends that you take out adequate insurance to cover any loss or damage to the Equipment, or any other element of the Checkit Service, for the Subscription Period and will advise you of applicable values on request.

7.2          The Equipment will be delivered with any relevant Embedded Software pre-installed. You must allow Checkit to update the Software remotely.

7.3          During your Subscription, you agree:

7.3.1               to ensure that the Equipment is kept and operated in a suitable environment, used only as part of the Checkit Service and for the purpose for which it is designed, and operated in a proper manner by trained competent staff in accordance with any operating instructions as may be provided by Checkit including in the Sales Collateral and/or on the Website;

7.3.2               to take such steps (including compliance with all safety and usage instructions as may be provided by Checkit including in the Sales Collateral and/or on the Website) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment and the manner of its use are at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;

7.3.3               to maintain (subject to reasonable wear and tear in the course of normal use) at your own expense the Equipment in good repair and not subject any Equipment to any misuse, or use or treatment outside of the parameters within which it is intended to operate;

7.3.4               to make no alteration to any Equipment without the prior written consent of Checkit;

7.3.5               to permit Checkit or its duly authorised representative to inspect the Equipment at all reasonable times;

7.3.6               not to use any Equipment for any unlawful purpose;

7.3.7               not to reverse engineer, disassemble, decompile, copy, duplicate, modify or adapt the Equipment in whole or in part or to permit any other party to do the same;

7.3.8               to retain at all times Checkit’s proprietary markings on the Equipment; and

7.3.9               to notify Checkit immediately if there is any loss, accident or damage caused to the Equipment or arising out of or in connection with your possession or use of it.

8            Equipment replacement (Peace of Mind customers only)

8.1          This clause 8 applies to POM contracts only.

8.2          The Equipment is described in the Sales Collateral. Checkit warrants that the Equipment will conform in all material respects with the description in the Sales Collateral.

8.3          Checkit will use reasonable endeavours to remedy any fault in the Equipment during the Warranty Period.

8.4          Where Checkit is unable to remedy a fault arising during the Warranty Period, Checkit will replace the relevant item of Equipment free of charge.

8.5          Checkit may (in its discretion) offer to replace faulty items outside of the Warranty Period providing you have not given Notice of termination. In this case you may be asked to agree to new terms and conditions and/or another Minimum Term as set out in a new Quote.

8.6          The replacement items of Equipment provided under clauses 8.4 and 8.5 will be new or refurbished.

8.7          Checkit will use all reasonable endeavours to deliver the replacement Equipment as soon as practicable, however Checkit will not be responsible for any loss direct or consequential caused as a result of any delay in delivery of the replacement caused by you or third party agents (including delivery companies).

8.8          If you and Checkit are unable to reach agreement under clause 8.5 then the Subscription Fee shall be forthwith reduced by a proportionate amount representing the value of the faulty item as a proportion of the total value of the system but you shall not be entitled to terminate the contract unless you have given Notice under the provisions of clause 21.

8.9          The warranty set out in clauses 8.1 to 8.4 shall not apply:

8.9.1               to any faults arising from your misuse of the Equipment or any accidental or deliberate damage to the Equipment whilst it is in your possession or control;

8.9.2               where the fault arises from the use of the Equipment in conjunction with equipment not provided by Checkit (or on Checkit’s behalf);

8.9.3               to any cosmetic damage which does not affect the functionality of the Equipment;

8.9.4               to any damage caused by events outside Checkit’s reasonable control (for example, any of the events referred to in clause 23);

8.9.5               from the date you give Notice to terminate your Subscription (unless Notice is given during the Minimum Term); and

8.9.6               outside of the United Kingdom or Republic of Ireland.

8.10        Checkit may periodically replace fully functioning Equipment free of charge as part of the Checkit Service in order to ensure optimal performance. Checkit will replace:

8.10.1            Checkit Sensor(s) to take account of their calibration requirements; and

8.10.2            all other items of Equipment at intervals to take account of their expected useful lives.

8.11        Checkit shall be entitled to supply replacement Equipment (including Memo handheld devices) to you under clause 8.10 either as new or refurbished units. You will be responsible for registering the replacement Equipment with the Cloud Software. Checkit is happy to provide assistance with this subject to payment of the Additional Charges.

8.12        You agree to return any existing Equipment in your possession (whether fully functioning or not) to Checkit for recycling and refurbishment within two weeks after receiving the replacement Equipment, at which point ownership of the existing Equipment will transfer to Checkit.

8.13        If you fail to return the relevant Equipment in accordance with clause 8.12:

8.13.1            Checkit will not be responsible for the performance of such Equipment from the date by which the Quote (or Checkit) indicates the Equipment should have been returned; and

8.13.2            if Checkit has sent any replacement Equipment to you Checkit shall be entitled to charge you for the full list price of the unreturned Equipment.

9            Equipment warranty (No Ties customers only)

9.1          This clause applies NT contracts only.

9.2          The Equipment is described in the Sales Collateral. Checkit warrants that the Equipment will conform in all material respects with the description in the Sales Collateral.

9.3          Checkit will use reasonable endeavours to remedy free of charge any fault in the Equipment arising during the applicable warranty period (calculated from the date of delivery) set out below:

Equipment                                          Warranty Period
Probe                                                        3 months
Sensors                                                    12 months
Memo handheld                                  12 months
Checkit hub                                           24 months
All other items of Equipment         12 months

9.4          Where Checkit is unable to remedy a fault arising during the applicable Warranty Period, Checkit will replace the relevant item of Equipment free of charge.

9.5          The replacement items of Equipment provided under clause 9.4 will be new or refurbished. Checkit will use all reasonable endeavours to deliver the replacement Equipment as soon as practicable, however Checkit will not be responsible for any delay in delivery of the replacement caused by you or third party agents (including delivery companies).

9.6          Where an item of Equipment is repaired or replaced under clauses 9.3 or 9.4 , Checkit will offer further repair/replacement until the later of: (i) the end of the original Warranty Period; and (ii) three months from the date of such repair/replacement.

9.7          The warranty set out in clauses 9.2 to 9.4 shall not apply:

9.7.1               to any faults arising from your misuse of the Equipment or any accidental or deliberate damage to the Equipment whilst it is in your possession or control;

9.7.2               where the fault arises from the use of the Equipment in conjunction with equipment not provided by Checkit (or on Checkit’s behalf);

9.7.3               to any cosmetic damage which does not affect the functionality of the Equipment;

9.7.4               to any damage caused by events outside Checkit’s reasonable control (for example, any of the events referred to in clause 23); and

9.7.5               outside of the United Kingdom or Republic of Ireland.

9.8          It is recommended that Checkit Sensors are serviced annually. On request Checkit will provide you with the relevant number of replacement Checkit Sensors at your expense. You shall return any existing Checkit Sensors in your possession to Checkit within two weeks after receiving the replacements. Checkit shall be entitled to supply replacement Checkit Sensors (including Memo handheld devices) to you either as new or refurbished units. Sensors will be provided with relevant calibration data for certification purposes in electronic format and accessible via the Cloud Software.

9.9          If you fail to return the relevant Checkit Sensors in accordance with clause 9.8:

9.9.1               Checkit will not be responsible for the performance of such Checkit Sensors from the date by which the Checkit Service indicates the Checkit Sensor should have been returned; and

9.9.2               if Checkit has sent any replacement Checkit Sensor(s) to you Checkit shall be entitled to charge you for the full list price of the unreturned Checkit Sensor(s).

10         Support

10.1        Checkit offers different levels of support for the Checkit Service. Details of each level of support are set out on the Website and/or in the Sale Collateral.

10.2        During the Subscription Period, Checkit will provide the level of support set out in the Quote.

10.3        Checkit shall have no liability nor obligation to provide support in respect of any software, hardware or other parts of your technical infrastructure that is not provided as part of the Checkit Service or where faults result from or are connected with:

10.3.1            any improper use, operation or neglect of the Software or any other element of the Checkit Service;

10.3.2            your failure to implement recommendations in respect of or solutions to faults previously advised by Checkit;

10.3.3            any repair, adjustment, alteration or modification of the Software or any other element of the Checkit Service by any person other than Checkit or the authorised agents of Checkit without Checkit’s consent;

10.3.4            use of the Software or any other element of the Checkit Service in combination with other software, hardware, or other parts of your technical infrastructure not licensed as part of your Subscription.

11          Checkit Service

11.1        Checkit warrants to you that the Checkit Service will be provided using reasonable care and skill.

11.2        Checkit has the right to make any changes to the Checkit Service which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Checkit Service, provided that Checkit notifies you of any such change at least one month prior to the change coming into effect.

12          Your obligations

12.1        You will:

12.1.1            ensure that your IT network and services comply with the relevant specifications required for the Equipment and Software to operate, as set out in these Conditions and the Sales Collateral;

12.1.2            be solely responsible for procuring and maintaining your IT network connections and telecommunications links and for all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet;

12.1.3            prepare your premises for the delivery of the Equipment and/or supply of the Services;

12.1.4            be responsible for all activities carried on by any person who accesses or otherwise uses the Checkit Service on your behalf using your Login Details;

12.1.5            monitor and manage the Authorised Users’ use of the Checkit Service and ensure the Authorised Users’ compliance with the applicable terms in these Conditions;

12.1.6            co-operate with Checkit in all matters relating to the Checkit Service;

12.1.7            provide Checkit, its employees, agents, consultants and subcontractors, with access to your premises, office accommodation and other facilities, and remote and local network access, and to the Equipment, as reasonably required by Checkit to provide the Checkit Service;

12.1.8            provide Checkit with such information and materials as Checkit may reasonably require to supply the Checkit Service, and ensure that such information is accurate in all material respects;

12.1.9            obtain and maintain all necessary licences, permissions and consents which may be required for the Checkit Service before the start of your Subscription Period;

12.1.10          ensure that you are familiar and are able to comply with all applicable requirements and restrictions imposed by law or by governmental and other authorities or corporations relating to the possession, use, import, export, or resale of the Equipment;

12.1.11          have full responsibility for downloading and backing up any Data held locally as defined in the relative data sheet and/or held on devices not supplied by Checkit; and

12.1.12          ensure that you have adequate security procedures in place to protect the Equipment and the Software including restricting physical and logical access to Authorised Users only, ensuring that the Equipment is (where relevant) stored in locked premises and that you have appropriate fire wall protections in place in respect of your IT network.

12.2        You shall not, and shall procure that your Authorised Users do not:

12.2.1            load any applications on to the Equipment other than the Software;

12.2.2            breach or fail to comply with these Conditions or any Third Party EULA;

12.2.3            modify, manipulate or change the Data or Equipment in any way, or grant access to the Data to any person other than an Authorised User;

12.2.4            provide access to the Checkit Service to any individual or legal entity other than the Authorised Users;

12.2.5            use the Checkit Service in contravention of any applicable law.

12.3        If Checkit’s performance of any of its obligations in respect of the Checkit Service is prevented or delayed by any act or omission by you or your failure to perform any relevant obligation (“Customer Default”):

12.3.1            Checkit may suspend provision of the Checkit Service until you remedy the Customer Default;

12.3.2            Checkit will not be liable for any costs or losses sustained or incurred by you arising directly or indirectly from Checkit’s failure or delay to provide the Checkit Service; and

12.3.3            you may be asked to reimburse Checkit for any costs or losses sustained or incurred by Checkit arising directly or indirectly from the Customer Default.

13          Charges and payment

13.1        The Subscription Fee shall be payable as set out in your Quote. The Subscription Fee is exclusive of all costs and charges of insurance, which are payable by you.

13.2        Additional Charges shall be calculated on a time and materials basis in accordance with Checkit’s standard hourly fee rates current at the time the relevant services and/or Equipment are provided, unless included as part of your Quote or an existing service agreement between you and Checkit.

13.3        Checkit reserves the right to:

13.3.1            increase its standard hourly fee rates used to calculate the Additional Charges, provided that such charges cannot be increased more than once in any 12 month period. Checkit will give you written Notice of any such increase before the proposed date of the increase;

13.3.2            increase the Subscription Fee from time to time provided that the Subscription Fee cannot be increased during the Minimum Term and cannot be increased more than once in any 12 month period after the end of the Minimum Term. Checkit will give you written Notice of any such increase before the proposed date of the increase and

13.3.3            increase the Subscription Fee, by giving you notice at any time before delivery, to reflect the delivery to you of a New Version or any increase in the cost of the Equipment to Checkit that is due to:

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

(ii)            any request by you to change the delivery date(s), quantities or types of Equipment ordered; or

(iii)           any delay caused by any of your instructions in respect of the Equipment or your failure to give Checkit adequate or accurate information or instructions in respect of the Equipment.

13.4        If, at any time during the term of your Subscription, any item of Equipment is damaged due to your misuse, including where it becomes unusable as a result of such damage, you shall remain liable to continue to pay the Subscription Fee in accordance with these Conditions and shall be obliged to place an order and pay Additional Charges in respect of any replacement Equipment required.

13.5        When you accept a Quote, you must provide Checkit with valid, up-to-date and complete credit card details or approved purchase order information acceptable to Checkit and any other relevant valid, up-to-date and complete contact and billing details and:

13.5.1            if you provide direct debit, debit card or credit card details to Checkit, you hereby authorise Checkit to bill such debit card or credit card or take the direct debit payment in accordance with the payment profile set out in the Quote;

13.5.2            in all other cases, you shall pay Checkit the Subscription Fee and all Additional Charges in accordance with the payment profile set out in the Quote and/or otherwise agreed in writing.

13.6        All amounts payable by you under these Conditions 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 to you by Checkit under these Conditions, you agree to, on receipt of a valid VAT invoice from Checkit, pay to Checkit such additional amounts in respect of VAT as are chargeable on the supply of the Checkit Service.

13.7        Without limiting any other right or remedy of Checkit, if you fail to make any payment due to Checkit by the due date for payment (“Due Date”):

13.7.1            the total amount due under this agreement shall become payable in accordance with the provisions of clause 21.5;

13.7.2            Checkit may suspend your access to the Cloud Software and destroy your Data held on the Cloud Software if your failure to make payment continues for more than two months’ beyond the Due Date;

13.7.3            Checkit shall have the right to charge an administration fee in relation to the overdue amount (not exceeding 100% of the overdue amount); and/or

13.7.4            Checkit shall have the right to charge interest on the overdue amount at the rate of 4 per cent per annum above the then current base rate of HSBC Bank accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

13.8        You shall pay all amounts due under these Conditions in full without any deduction or withholding except as required by law and you shall not be entitled to assert any credit, set-off or counterclaim against Checkit in order to justify withholding payment of any such amount in whole or in part. Checkit may, without limiting its other rights or remedies, set off any amount owing to it by you against any amount payable by Checkit to you.

14          Additional services

14.1        Checkit is happy to provide Consumables or additional Equipment and/or services (such as installation or onsite training) on request, subject to agreeing delivery dates and payment of Additional Charges. Any additional items or services provided under this clause will be subject to these Conditions.

14.2        You may also purchase additional User Accounts upon request and the relevant fees for such additional User Accounts (as published on the Website, or otherwise notified to you by Checkit, at the time of your relevant request) will be payable immediately on purchase.

15          Intellectual property rights in the Checkit Service

15.1        All Intellectual Property Rights in the Checkit Service are owned by Checkit or its third party licensors. You will not acquire any right, title or interest in or to the Intellectual Property Rights in the Checkit Service other than the right to use the Checkit Service in accordance with these Conditions.

15.2        Checkit confirms that it has all the rights in relation to the Software that are necessary to grant the rights to use it grants under these Conditions.

16          Confidentiality

16.1        Checkit takes confidentiality and data security extremely seriously and expects its customers to do the same.  A party (whether Checkit or you) (“Receiving Party”) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives, including any Data, which are of a confidential nature and have been disclosed to the Receiving Party by the other party (“Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain.  Subject to clauses 16.2 and 16.3, the Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.

16.2        The restrictions in clause 16.1 shall not apply to information that:

16.2.1            is or becomes publicly known other than through any act or omission of the Receiving Party;

16.2.2            was in the Receiving Party’s lawful possession before its disclosure by the Disclosing Party;

16.2.3            is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure; or

16.2.4            is independently developed by the Receiving Party, which independent development can be shown by written evidence.

16.3        Nothing in these Conditions shall restrict any disclosure of Confidential Information required by law or a court order.

17          Data

17.1        You will own all right, title and interest in and to all of the Data and shall have sole responsibility for its legality, reliability, integrity, accuracy and quality.

17.2        Checkit will follow its archiving procedures for Data stored in the Cloud as set out in its current data back-up policy available on request. In the event of any loss or damage to Data, your sole and exclusive remedy shall be for Checkit to use reasonable commercial endeavours to restore the lost or damaged Data from the latest back-up of such Data maintained by Checkit. Checkit will not be held responsible for any loss, destruction, alteration or disclosure of Data caused by any third party (except any third party sub-contracted by Checkit to perform services related to Data maintenance and back-up).

17.3        You agree that Checkit shall have the right (but not an obligation) to review and analyse the Data with the aim of improving the Checkit Service, providing data analysis services to you or carrying out diagnostics. You also agree that Checkit may use anonymised versions of the Data for product development and marketing purposes.

17.4        Checkit shall use its reasonable endeavours to ensure that appropriate safety and security services and procedures are maintained and enforced to prevent unauthorised access or damage to the Data or the Cloud Software.

17.5        If Checkit processes any Personal Data on your behalf when performing its obligations under this Agreement, you will be the Data Controller and Checkit will be your Data Processor and in any such case:

17.5.1            you acknowledge and agree that the Personal Data may be transferred to sub-processors engaged by Checkit to provide the Checkit Service;

17.5.2            you acknowledge and agree that the Personal Data may be transferred or stored outside the EEA, or the country where you and the Authorised Users are located, in order to carry out the Checkit Service;

17.5.3            you shall ensure that you are entitled to transfer the relevant Personal Data to Checkit and its sub-processors so that Checkit and its sub-processors may lawfully use, process and transfer the Personal Data on your behalf in accordance with these Conditions;

17.5.4            you shall ensure that the relevant third parties have been informed of, and have given their consent to, such use, processing, and transfer as required by all applicable data protection legislation;

17.5.5            Checkit shall process the Personal Data only in accordance with these Conditions and any lawful instructions reasonably given by you from time to time; and

17.5.6            each of us shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the Personal Data or its accidental loss, destruction or damage.

17.6        The terms “Data Controller” and “Data Processor” have the meanings given to them in the Data Protection Act 1998.

18          Our liability to you

18.1        Nothing in these Conditions shall limit or exclude Checkit’s liability for:

18.1.1            death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors;

18.1.2            fraud or fraudulent misrepresentation;

18.1.3            breach of the terms implied by section 2 of the Supply of Equipment and Services Act 1982 (title and quiet possession);

18.1.4            breach of the terms implied by section 12 of the Sale of Equipment Act 1979 (title and quiet possession).

18.2        Subject to clause 18.1:

18.2.1            Checkit shall under no circumstances whatever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for:

(i)             any loss of profit;

(ii)            loss of or damage to, or unauthorised access to, the Data; or

(iii)           any indirect or consequential loss arising under or in connection with your Subscription; and

18.2.2            Checkit’s total liability to you in respect of all other losses arising under or in connection with your Subscription, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total Subscription Fees paid in the 12 months preceding the date that such loss arises.

18.3        Except as expressly and specifically provided in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract. IN PARTICULAR, THE SOFTWARE IS PROVIDED BY CHECKIT “AS IS” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED.

19          Your indemnity

19.1        Subject to clause 18.1, Checkit will not accept any liability for any third party claim or action for death, personal injury or damage to property arising out of or in connection with your (or your employees, agents or Authorised Users’) use of the Checkit Service, where such use is not in accordance with the terms of your Subscription (“Claim”).

19.2        You agree to fully indemnify Checkit from and against all claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) incurred by, or awarded against Checkit as a result of, or in connection with, any Claim.

19.3        If any third party makes a Claim, or notifies an intention to make a Claim, you agree to provide such assistance to Checkit as Checkit may reasonably require in order to investigate and resolve such Claim including giving Checkit and its professional advisers access to your premises and your officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within your power or control, so as to enable Checkit and its professional advisers to examine them and to take copies.

20          Making changes to your Subscription

20.1        You may request an upgrade to your Subscription at any time. Checkit will issue a new Quote for your upgraded Subscription, which will begin as soon as you accept the New Quote. Upgrading your Subscription will not extend the Minimum Term unless specified in the new Quote.

20.2        You may downgrade your Subscription by giving Checkit the required Notice. Checkit will issue an amended Quote to confirm your downgraded Subscription and the Subscription Fees shall be reduced on expiry of the Notice Period or at the end of the Minimum Term, whichever occurs later.

21          Cancelling your Subscription

21.1        You or we may terminate your Subscription immediately (but are not obliged to do so) by giving written notice if:

21.1.1            the other commits a material breach of its obligations under these Conditions and does not remedy that breach (if it is possible to do so) within 30 days after being given written notice of the breach; or

21.1.2            the other suspends, threatens to suspend or ceases or threatens to cease to carry on all, or substantially the whole of its business, or has become insolvent or gone into liquidation or administration or has been otherwise unable to meet its debts as they fall due or has suffered any equivalent or similar action in consequence of debt.

21.2        Checkit may terminate your Subscription:

21.2.1            at any time by giving you three months’ notice, with such notice to expire no earlier than the end of the Minimum Term; or

21.2.2            immediately where you use the Equipment for any purpose that is not set out in these Conditions, or breach the terms of any Third Party EULA.

21.3        Where Checkit has the right to terminate your Subscription under any of the circumstances set out this clause 21, it may instead suspend its provision of the Checkit Service to you (including by Checkit suspending your access to the Software and/or all further deliveries of Equipment).

21.4        You may terminate your Subscription at any time by giving us the required Notice, with such Notice to expire no earlier than the end of the Minimum Term. From the date you give such Notice you will not be eligible to receive any further replacement Equipment under clause 8 unless replacement is required during the Minimum Term.

21.5        On termination of your Subscription:

21.5.1            your right to use the Software will automatically end;

21.5.2            you shall immediately pay to Checkit:

(i)             the Subscription Fees for the remainder of the Minimum Term (if applicable); and

(ii)            all of Checkit’s outstanding unpaid invoices and interest and, in respect of services supplied but for which no invoice has yet been submitted, Checkit shall submit an invoice, which shall be payable by you immediately on receipt; and

21.5.3            Checkit will download or provide for download one copy of all Data held in the Cloud Software and issue this to you in a suitable file format, provided all payments referred to in clause 21.5.2 have been received by Checkit. After Checkit has provided you with a copy of such download (or where any payment referred to in clause 21.5.2 has not been received within two months’ of termination), Checkit will have no obligation to retain any of the Data or provide you with copies of any such Data.

21.6        Any clauses that expressly state they will survive termination of your subscription will do so.

21.7        Any rights and remedies accrued at termination (including the right to claim damages for any breach of the Conditions at or before termination) will not be affected.

22          Our audit rights

22.1        You agree to allow Checkit to audit your and/or the Authorised Users’ use of the Checkit Service to ensure that the terms of this Contract are being complied with. Checkit will give you reasonable advance notice if it wishes to carry out an audit.

22.2        This audit right does not entitle Checkit access to confidential intellectual property or financial, payroll, personnel or other confidential records that belong to you that do not relate directly to the Contract.

23          Circumstances outside of Checkit’s control

23.1        Checkit will not be liable to you as a result of any delay or failure to perform its obligations due to an event outside of Checkit’s reasonable control, including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.

24          General conditions

24.1        Checkit may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights set out in these Conditions and may subcontract or delegate in any manner any or all of its obligations set out in these Conditions to any third party.

24.2        You may not, assign, transfer, charge or subcontract your Subscription or your rights or obligations under it without Checkit’s prior written consent.

24.3        Any notices given in connection with your Subscription must be in writing and sent by:

24.3.1            prepaid first-class post or commercial courier to the registered office or principal place of business; or

24.3.2            sent by email to the other party’s main email address as set out in the Quote; or

24.3.3            sent via the online contact form on the Checkit.net website.

24.4        A notice will be deemed to have been received, if sent by prepaid first-class post, at 9.00 am on the second Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by email, on the next Business Day after transmission provided no error report or “out of office” auto-response is received by the sender in response to such transmission.

24.5        Clauses 24.3 and 24.4 shall not apply to the service of any proceedings or other documents in any legal action.

24.6        A waiver of any right under these Conditions is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under these Conditions or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.

24.7        If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of these Conditions shall not be affected.

24.8        A person who is not a party to your Subscription shall not have any rights under or in connection with it.

24.9        Your Subscription and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) (“Disputes”) will be governed by English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales to settle any such Disputes. The United Nations Convention on the International Sale of Equipment shall not apply to your Subscription.

Terms and conditions version 1.0 rev 25/9/2015