Terms for Hire and Use
of Spacebands Hardware

7. Lessee's Responsibilities

7.1 The Lessee shall during the term of this agreement:

• (a) ensure that the Equipment is kept and operated in a suitable environment in accordance with any operating instructions, and used only for the purposes for which it is designed, and operated in a proper manner by competent workers;
  
• (b) take such steps (including compliance with all safety and usage instructions provided by the Lessor) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;
  
• (c) maintain at its own expense the Equipment in good and substantial repair in order to keep it in as good an operating condition as it was on the Delivery Date (fair wear and tear only excepted) including replacement of worn, damaged and lost parts, and shall make good any damage to the Equipment;
  
• (d) make no alteration to the Equipment and shall not remove any existing component (or components) from the Equipment without the prior written consent of the Lessor. Title and property in all substitutions, replacements, renewals made in or to the Equipment shall vest in the Lessor immediately on installation;
  
• (e) keep the Lessor fully informed of all material matters relating to the Equipment;
  
• (f) permit the Lessor or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter on the Site or any premises at which the Equipment may be located, and shall grant reasonable access and facilities for such inspection;
  
• (g) not, without the prior written consent of the Lessor, part with control of (including for the purposes of repair or maintenance), 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;
  
• (h) not without the prior written consent of the Lessor, 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. If the Equipment does become affixed to any land or building then the Equipment must be capable of being removed without material injury to such land or building and the Lessee shall repair and make good any damage caused by the affixation or removal of the Equipment from any land or building and indemnify the Lessor against all losses, costs or expenses incurred as a result of such affixation or removal;
  
• (i) not do or permit to be done any act or thing which will or may jeopardise the right, title or interest of the Lessor in the Equipment and, where the Equipment has become affixed to any land or building, the Lessee must take all necessary steps to ensure that the Lessor may enter such land or building and recover the Equipment both during the term of this agreement and for a reasonable period thereafter, including by procuring from any person having an interest in such land or building, a waiver in writing and in favour of the Lessor of any rights such person may have or acquire in the Equipment and a right for the Lessor to enter onto such land or building to remove the Equipment;
  
• (j) not suffer or permit the Equipment to be confiscated, seized or taken out of its possession or control under any distress, execution or other legal process, but if the Equipment is so confiscated, seized or taken, the Lessee shall notify the Lessor and the Lessee shall at its sole expense use its best endeavours to procure an immediate release of the Equipment and shall indemnify the Lessor on demand against all losses, costs, charges, damages and expenses reasonably incurred as a result of such confiscation;
  
• (k) not use the Equipment for any unlawful purpose;
  
• (l) ensure that at all times the Equipment remains identifiable as being the Lessor's property;
  
• (m) deliver up the Equipment at the end of the Rental Period at such address as the Lessor requires, or if necessary allow the Lessor or its representatives access to the Site or any premises where the Equipment is located for the purpose of removing the Equipment; and
  
• (n) not do or permit to be done anything which could invalidate the insurances
  

7.2 The Lessee acknowledges that the Lessor shall not be responsible for any loss of or damage to the Equipment arising out of or in connection with any negligence, misuse, mishandling of the Equipment or otherwise caused by the Lessee or its officers, employees, agents and contractors, and the Lessee shall pay a charge of £50 for the replacement of any single piece of Equipment. Please refer to clause 8 for warranty information. 

7.3 The Lessee shall indemnify the Lessor in full against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Lessor arising out of, or in connection with any failure by the Lessee to comply with the terms of this agreement.

8. Warranty

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

• (a) the Lessee notifies the Lessor of any defect in writing using the email address support@spacebands.com (or such other latest contact as notified to the Lessee in writing) within 5 Business Days of the defect occurring;
  
• (b) the Lessee complies with any further instructions of the Lessor for the reporting and investigation of any defect, including descriptions, photo or video evidence of the defect;
  
• (c) the Lessee complies with any instructions for the return of any such Equipment;
  
• (d) the Lessor is permitted to make a full examination of the alleged defect;
  
• (e) the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than the Lessor's authorised personnel;
  
• (f) the defect did not arise out of any information, design or any other assistance supplied or furnished by the Lessee or on its behalf; and
  
• (g) the defect is directly attributable to defective material, workmanship or design.
  

8.2 Subject to clause 8.1, the Lessor will conduct an investigation within 7 Business Days of the Equipment being returned as instructed by the Lessor and report back to the Lessee when the repaired or replaced Equipment will be delivered, which will normally be 2 Business Days. 

8.3 Insofar as the Equipment comprises or contains equipment or components which were not manufactured or produced by the Lessor, the Lessee shall be entitled only to such warranty or other benefit as the Lessor has received from the manufacturer.

8.4 If the Lessor fails to remedy any material defect in the Equipment in accordance with clause 8.1, the Lessor shall, at the Lessee's request, accept the return of part or all of the Equipment and make an appropriate reduction to the Rental Payments payable during the remaining term of the agreement. 

8.5 All support services in relation to the Equipment are only available during Business Hours.

9. Limitation of Liability

9.1 The restrictions on liability in this clause 9 apply to every liability arising under or in connection with this agreement including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

9.2 Nothing in this agreement limits any liability which cannot legally be limited including liability for:

• (a) death or personal injury caused by negligence;
  
• (b) fraud or fraudulent misrepresentation;
  
• (c) breach of the terms implied by section 7 of the Supply of Goods and Services Act;
  
• (d) any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.
  

9.3 Subject to clause 9.2, the Lessor's total liability to the Lessee shall not exceed the total charges paid by the Lessee under this agreement at the date of the liability arising.

9.4 Subject to clause 9.2, the Lessor shall not be liable under this agreement for any:

• (a) loss of profits;
  
• (b) loss of sales or business;
  
• (c) loss of agreements or contracts;
  
• (d) loss of anticipated savings;
  
• (e) loss of use or corruption of software, data or information;
  
• (f) loss of or damage to goodwill; and
  
• (g) indirect or consequential loss.
  

9.5 Subject to clause 9.2, all implied terms and conditions as to the quality or performance of the Equipment and any other goods or services provided under this agreement are, to the fullest extent permitted by law, excluded from this agreement.

10. Termination

10.1 Without affecting any other right or remedy available to it, the Lessor may terminate this agreement with immediate effect by giving written notice to the Lessee if:

• (a) the Lessee fails to pay any amount due 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 Lessee commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 1 month after being notified in writing to do so;
  
• (c) the Lessee repeatedly breaches any of the terms of 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 Lessee breaches any other provision in relation to termination in the Software as a Service Agreement.
  

For the purposes of clause 10.1(b), a material breach means a breach that has a serious effect on the benefit the Lessor would otherwise derive from this agreement.

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

11. Consequences of Termination or Expiry

11.1 On expiry or termination of this agreement, however caused:

• (a) the Lessor's consent to the Lessee's possession of the Equipment shall terminate;
  
• (b) the Lessor may, by its authorised representatives, without notice and at the Lessee's expense, retake possession of the Equipment and for this purpose may enter the Site or any premises at which the Equipment is located; and
  
• (c) without prejudice to any other rights or remedies of the Lessee, the Lessee shall pay to the Lessor on demand:
  (i) all Rental Payments and other sums due but unpaid at the date of such demand together with any interest accrued pursuant to clause 4.4; and
  (ii) any costs and expenses incurred by the Lessor in recovering the Equipment or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).
  

11.2 On termination of this agreement pursuant to clause 10.1, any other repudiation of this agreement by the Lessee which is accepted by the Lessor or pursuant to clause 10.2, without prejudice to any other rights or remedies of the Lessor, the Lessee shall pay to the Lessor on demand a sum equal to the whole of the Rental Payments that would (but for the termination) have been payable if the agreement had continued from the date of such demand to the end of the Rental Period, less:

• (a) a discount of 10% for accelerated payment within 14 days of the demand; and
  
• (b) the Lessor's reasonable assessment of the re-sellable value of the Equipment on sale.
  

11.3 The sums payable pursuant to clause 11.2 shall be agreed compensation for the Lessor's loss and shall be payable in addition to the sums payable pursuant to clause 11.1(c). 

11.4 Any provision of this agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this agreement shall remain in full force and effect.

11.5 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 the agreement which existed at or before the date of termination or expiry.

12. Force Majeure

Neither party shall 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 result from events, circumstances or causes beyond its reasonable control. The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 7 days, the party not affected may terminate this agreement by giving 7 days' written notice to the affected party.

13. Confidential Information

13.1 Each party undertakes that it shall not at any time during this agreement, and for a period of five years after termination or expiry of this agreement, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause

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

• (a) to its employees, officers, representatives, contractors, subcontractors or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with this agreement. Each party shall ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with clause 13; and
  
• (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
  

13.3 Neither party shall use the other party's confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with this agreement.

14. Assignment and Other Dealings

This agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement.

15. Entire Agreement

15.1 This agreement and the Software as a Service Agreement constitutes the entire agreement between the parties.

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

16. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

17. No Partnership or Agency

17.1 Nothing in this agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, or authorise any party to make or enter into any commitments for or on behalf of any other party.

17.2 Each party confirms it is acting on its own behalf and not for the benefit of any other person.

18. Further Assurance

At its own expense, each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, promptly execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this agreement.

19. Third Party Rights

19.1 Unless it expressly states otherwise, this agreement does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this agreement.

19.2 The rights of the parties to rescind or vary this agreement are not subject to the consent of any other person.

20. Notices

20.1 Any notice given to a party under or in connection with this agreement shall be in writing and shall be:

• (a) sent by email to the following addresses (or an address substituted in writing by the party to be served): support@spacebands.com
  
• (b) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or
  

20.2 Any notice shall be deemed to have been received:

• (a) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.
  
• (b) if delivered by hand, at the time the notice is left at the proper address;
  
• (c) if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or
  

20.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

21. Waiver

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 prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

22. Rights and Remedies

Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

23. Severance

23.1 If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

23.2 If any provision or part-provision of this agreement is deemed deleted under clause 23.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

24. Governing Law

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

25. Jurisdiction

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