Thank you for selecting the Services offered by Avius Limited. Review these Terms of Service thoroughly. This Agreement is a legal agreement between you and Avius. By accepting electronically (for example, clicking “I Agree”), installing, accessing or using the Services, you agree to these terms. If you do not agree to this Agreement, then you may not use the Services.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these terms and conditions as its authorised representative, in which case the terms “you” or “your” will refer to such entity and its affiliates as well as you. If the legal entity that you represent does not agree with these terms and conditions, you must not accept this Agreement, register, and use or access the Services as an authorised representative.
1. GENERAL TERMS
This Agreement describes the terms governing your use of the Avius services provided to you on this website, products and services supplied to you. It includes by reference:
• Additional Terms and Conditions.
• Any terms provided separately to you for the Services, including product terms, ordering, activation, payment terms, etc
We reserve the right to change this Agreement at any time for customers not under contract, and the changes will be effective when posted on our website. For customers signatory to this contract we will notify you of changes.
The definitions and rules of interpretation in this clause apply in this Agreement:
Accidental Damage: physical damage, breakage or failure of Equipment due to an unforeseen and unintentional event occurring either due to handling (e.g. dropping the Equipment) or use. The damage must significantly affect the functionality of the Equipment.
Avius: Avius Limited referred to as “Avius”, “we”, “our”, or “us”.
Confidential Information: information of commercial value, in whatever form or medium, which has been kept confidential by the party (or any of its Affiliates) from whom the information originates and which has not come into the public domain during the term of this Agreement in breach of any obligation of confidence, including information relating to the System or any of its constituent parts, the Source Code relating to the System or any such parts, commercial or technical know-how, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing.
Data Protection Law: all applicable data protection law and regulations in any jurisdiction.
Defect: an error in the Software that causes it to fail to operate substantially in accordance with the relevant Documentation.
Equipment: the Survey Kiosk, Roaming survey device and/or accessories supplied by Avius.
Intellectual Property Rights: all patents, copyrights, design rights, trademarks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or not) and all applications for the same which may now or in the future subsist anywhere in the world, including the right to sue for and recover damages for past infringements.
Licence: the licence granted under Clause 6.
Licensed Software: Avius Software as specified in the Sales Contract.
Licensed Users: the employees and agents of the Customer who use the Licensed Software.
Personal Data: data subject to protection under Data Protection Law in any jurisdiction.
Sales Contract: the documents executed by both parties containing the variables of the Agreement and acknowledgement that they will be bound by these terms and conditions.
Services: the services to be provided by Avius under this Agreement.
Service Level Agreement: part of a service contract where a Service is formally defined between a Supplier and Customer.
Source Code: the source code of the software to which it relates, in the language in which the software was written or any intermediate language, together with all related flow charts and technical documentation, all of a level sufficient to enable the Customer’s development personnel to understand, develop and maintain integrations with that software.
Subscriptions – Automatic Renewals: Some of our services are subscriptions and will be charged as such.
Supplier Hardware: all the computers and other equipment to be supplied by Avius as set out in the Sales Contract.
Supplier Software: the Software as set out in the Sales Contract.
System: the system consisting of Avius Hardware and Avius Software.
Tools: any tools and know-how developed, and methods invented by Avius in the course of, or as a result of, carrying out the Work, whether or not developed or invented specifically or used exclusively to carry out the Work.
VAT: value added tax chargeable under the Value Added Tax Act 1994 and any similar additional tax or any other similar turnover, sales or purchase tax or duty levied in any other jurisdiction.
Work: all the works, duties and obligations to be carried out by Avius under this Agreement.
3.1 On the terms and conditions set out in this Agreement, Avius agrees to deliver the Avius Systems and services as agreed in the Sales Contract.
4.1 Avius shall submit invoices in accordance with the Sales Contract. The Customer shall make payment of each invoice by the due date stated in that invoice or within 30 days of receipt of the invoice, whichever is later.
4.2 The Price, the Support Charges and all other payments are net of tax. The Customer shall, in addition, pay to Avius the amount of any tax, duty or assessment, including any applicable VAT, which Avius is obliged to pay and/or collect from the Customer in respect of any supply under the Agreement (other than tax on Avius’s income).
4.3 If any sum is not paid on or before the due date under this Agreement, the party in default shall pay the other party interest at the rate specified in 4% above the Bank of England base rate which varies from time to time from the period beginning on the due date and ending with the date on which the sum is paid (and the period shall run after as well as before judgement).
4.4 All invoices issued by Avius under or in connection with this Agreement shall be accompanied by a sufficiently detailed breakdown of the matters being invoiced.
5.1 The Intellectual Property Rights in the System are, and shall remain, the property of Avius, and Avius reserves the right to grant a licence to use the System to any other party or parties.
5.2 The Licensed Software are proprietary to Avius and the Customer acquires no rights in or to the Licensed Software or the Documentation other than those expressly granted by this Agreement.
5.3 The Customer shall do and execute, or arrange for the doing and executing of, each necessary act, document and anything that Avius may consider necessary or desirable to protect the right, title and interest of Avius in and to the Intellectual Property Rights in the Software, the Tools and the Software.
5.4 The Customer shall use reasonable endeavours to prevent any infringement of Avius’s Intellectual Property Rights in the Licensed Software and shall promptly report to Avius any such infringement that comes to its attention. In particular, the Customer shall:
a) Ensure that each Licensed User, before starting to use the Licensed Software, is made aware that the Licensed Software is proprietary to Avius and that it may only be used and copied in accordance with this Agreement;
b) Implement suitable disciplinary procedures for employees who make unauthorised use or copies of the Licensed Software; and
c) Not permit third parties to have access to the Licensed Software without the prior written consent of Avius, who may require that such third party executes a written confidentiality agreement before being given access to the Licensed Software.
5.5 Unless You purchase the Equipment outright, it remains the property of Avius.
6. SOFTWARE LICENCE AND DOCUMENTATION
6.1 Avius grants, subject to the terms of this Agreement, the Customer and its Affiliates the non-exclusive, non-transferable right to use the Licensed Software and the Documentation for any purpose related to the Business (Licensed Purposes).
7. USE AND ADAPTATION OF LICENSED SOFTWARE
7.1 The Customer may use the Licensed Software with other software.
7.2 The Customer may not make adaptations or variations of the Licensed Software without the prior consent of Avius.
7.3 The Customer may not disassemble, decompile, reverse translate or in any other manner decode the Licensed Software, except as permitted by law.
8. THIRD PARTY RIGHTS
8.1 If you provide Avius with, or upload any content including, but not limited to images and text to Avius Systems it is your responsibility to ensure you have the legal rights to use that content for the purpose intended.
8.2 No person other than a party to this Agreement shall have any rights to enforce any term of this Agreement.
9.1 Each party undertakes not to use the other party’s Confidential Information otherwise than in the exercise and performance of its rights and obligations under this Agreement (Permitted Purposes).
9.2 In relation to the Customer’s Confidential Information, Avius shall treat as confidential all Confidential Information of the Customer supplied under this Agreement. Avius shall not divulge any such Confidential Information to any person except to its own employees, or sub-processor and then only as required for the Permitted Purposes.
9.3 In relation to Avius’s Confidential Information:
a) the Customer shall treat as confidential all Confidential Information of Avius contained or embodied in the System or Documentation, or otherwise supplied to the Customer during the performance of this Agreement;
b) the Customer shall not, without the prior written consent of Avius, divulge any part of Avius’s Confidential Information to any person other than the Customer’s Representative and other employees of the Customer who need to know it for the Permitted Purposes.
10. GENERAL DATA PROTECTION REGULATION (GDPR) AND DATA PROTECTION ACT 1998
10.1 The following definitions apply:
a) The terms “data controller”, “data processor”, “data subject” and “processing” bear the respective meanings given them in the Data Protection Act 1998 and General Data Protection Regulation, and “data protection principles” means the eight data protection principles set out in Schedule 1 to that Act.
b) Data includes Personal Data
c) Customer Personal Data means any Personal Data provided by or on behalf of the Customer.
10.2 Avius shall:
a) only carry out processing of any Customer Personal Data on the Customer’s instructions;
b) implement appropriate technical and organisational measures to protect any Customer Personal Data against unauthorised or unlawful processing and accidental loss or damage; and
10.3 Avius is a data processor for the purposes of collecting and processing personal data on behalf of the customer.
10.4 Avius uses sub-processors which may vary from time to time or be substituted, a current list is maintained on the website at https://avius.com/register-of-third-parties/
10.5 Avius shall promptly and fully notify the Customer in writing of any notices in connection with the processing of any Customer Personal Data, including subject access requests, and provide such information and assistance as the Customer may reasonably require.
10.6 Avius is a registered data controller and all data is stored securely in accordance with the Data Protection Act 1998. All data is the sole property of the Customer and will not be shared with any other party.
11.1 Avius warrants and represents that:
a) Avius Software are proprietary to Avius and that it has the right to licence all Intellectual Property Rights in and to Avius Software to the Customer and to provide the Support Services to the Customer;
b) none of the New Releases or New Versions supplied by Avius under this Agreement infringes the Intellectual Property Rights of any third party;
11.2 The warranties set out in Clause 12.1 are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to this Agreement. Without limitation, Avius specifically denies any implied or express representation that the System will be fit:
a) to operate in conjunction with any hardware items or software products other than with those hardware items and software products that are identified as being compatible with the System; or
b) to operate uninterrupted or error-free.
11.3 Avius does not warrant or guarantee that it will be able to rectify all Defects, nor that any Defects which does not materially affect the Customer’s operations using the Supported Software will be corrected.
11.4 Any unauthorised modifications, use or improper installation of the System by or on behalf of the Customer shall render all Avius’s warranties and obligations under this Agreement null and void.
11.5 Avius shall not be obliged to rectify any particular Defect if attempts to rectify such Defect other than normal recovery or diagnostic procedures have been made by the Customer’s personnel or third parties without the permission of Avius.
11.6 Avius supplied equipment unless otherwise stated includes a warranty period of 24 months.
12.1 If you subscribe to Avius Surveys, we will repair or replace Equipment which is subject to Accidental Damage which significantly affects the functionality of the Equipment.
12.2 If you purchased your Equipment outright from Avius or a third party, you are responsible for Accidental or Wilful Damage.
12.3 This does not cover; Equipment not supplied by Avius, Loss or theft of Equipment, Abuse or misuse of Equipment, Cosmetic damage, Fire or water damage, Equipment which has been modified.
12.4 Avius may delete the contents of the Equipment and reformat the storage media. Avius will not be responsible for any loss of software or data residing on the Equipment.
12.5 Avius will repair or replace Equipment which has suffered Accidental Damage up to twice a year.
12.6 Avius may require the customer to perform maintenance and diagnostic steps on our behalf.
12.7 Where it is deemed necessary to replace Your Equipment, you may receive refurbished Equipment.
12.8 Avius reserve the right to replace or repair equipment.
12.9 Avius may require the customer to arrange for equipment to be returned to Avius.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 Avius own all present and future rights to intellectual property including all related software, technology, inventions and improvements, trademarks, patents, designs, copyright, any corresponding property rights under the laws of any jurisdiction.
13.2 You shall not: permit any third party to access the Services except as permitted in the Agreement, reverse engineer the Services, build a competitive product or service, copy any features or functions of the Services.
13.3 No rights are granted to You other than as expressly set forth in the Agreement.
13.4 You may provide feedback and suggestions for Avius Services. We shall have all ownership rights of such feedback. You hereby grant Avius irrevocable, royalty-free, worldwide and transferable licence to develop, use, process, edit, reproduce and distribute such suggestions in any medium or format.
13.5 Publicity. Unless otherwise agreed, You hereby agree that Avius may reference You in Marketing and Public Relations materials, including announcing You as a customer.
13.6 Some of the icons in our software and printed materials are derivatives from Font Awesome, used under CC BY 4.0. Modifications include re-colouring, altering shapes, and using icons in part or whole to form other icons.
14. LIMITATION OF LIABILITY
14.1 Neither party excludes or limits liability to the other party for:
a) fraud or fraudulent misrepresentation;
b) death or personal injury caused by negligence;
c) a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
d) any matter for which it would be unlawful for the parties to exclude liability.
14.2 Avius shall not in any circumstances be liable whether in contract tort (including for negligence and breach of statutory duty howsoever arising) misrepresentation (whether innocent or negligent), restitution or otherwise, for:
a) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
b) any loss or corruption (whether direct or indirect) of data or information;
c) loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
d) any loss or liability (whether direct or indirect) under or in relation to any other contract.
14.3 Avius’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract shall:
a) in respect of any cause of action related to the provision of the Support Services be limited to the total charges paid for the Support Services by the Customer to Avius during the 12-month period immediately before the date on which the cause of action first arose or, if the cause of action arose during any period before 12 months had elapsed from the Commencement Date, during that shorter period; and
b) in respect of any other cause of action related to this Agreement (including any cause of action related to Avius Software), be limited to the amount of the Price.
14.4 Any dates quoted for delivery of the Work or the Support Services are approximate only, and the time of delivery is not of the essence.
15.1 Without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may at any time terminate this Agreement and/or the Support Services with immediate effect by giving written notice to the Customer if:
a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
b) the Customer commits a material breach of any term of this Agreement (other than failure to pay any amounts due under this Agreement) and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
c) the Customer repeatedly breaches any of the terms to this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
d) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
e) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
f) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Customer’s business other than for the sole purpose of a scheme for a solvent amalgamation;
g) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer;
a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver;
h) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer;
i) a creditor or encumbrance of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
j) Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
k) On termination of this Agreement for any reason, the Customer shall immediately pay any outstanding unpaid invoices and interest due to Avius. Avius shall submit invoices for any Services that it has supplied, but for which no invoice has been submitted, and the Customer shall pay these invoices immediately on receipt.
16.1 No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. 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.
17. ENTIRE AGREEMENT
17.1 This Agreement and any documents referred to in it constitutes the whole Agreement between the parties and supersedes any previous arrangement, understanding or Agreement between them relating to the subject matter of this Agreement.
17.2 Each party acknowledges that, in entering into this Agreement and the documents referred to in it or annexed to it, it does not rely on any statement, representation, assurance or warranty (Representation) of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement or those documents.
17.3 Each party agrees that the only rights and remedies available to it arising out of or in connection with a Representation shall be for breach of contract as expressly provided in this Agreement.
18. FORCE MAJEURE
18.1 Neither party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control.
19.1 Any notice or other communication required to be given under this Agreement, shall be in writing and shall be delivered personally, or sent by pre-paid first-class post or recorded delivery or by commercial courier or by e-mail, to each party required to receive the notice or communication to the address as set out in the Sales Contract or as otherwise specified by the relevant party by notice in writing to each other party.
19.2 Any notice shall be deemed to have been duly received:
a) if delivered personally, when left at the address and for the contact referred to in this Clause
b) if sent by pre-paid first-class post or recorded delivery, at 9.00am on the second Business Day after posting; or
c) if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
d) if delivered by e-mail without an automated out of office or rejection response received within a reasonable period of time.
19.3 The provisions of this Clause shall not apply to the service of any proceedings or other documents in any legal action.
20. GOVERNING LAW AND JURISDICTION
20.1 This Agreement 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) shall be governed by and construed in accordance with the law of England and Wales.
20.2 The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).