Ultraleap Limited: Terms and Conditions of Business (Conditions)
Last updated: 25th September 2019
The Order constitutes an offer by the Customer to purchase Goods, Software and/or Services in accordance with these Conditions. The Order shall only be deemed to be accepted when Ultraleap issues written acceptance of the Order, on which date the Contract shall come into existence (the Commencement Date). The Contract constitutes the entire agreement between the parties to the exclusion of any other terms that the Customer may seek to impose. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of Ultraleap which is not set out in the Contract. Any pre-contractual documents issued by Ultraleap shall not form part of the Contract. These Conditions shall apply to the supply of Goods, Software, and Services except where application to one or the other is specified.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Conditions: these terms and conditions.
Contract: the contract between Ultraleap and the Customer for the supply of Goods, Software and/or Services as embodied in a mutually executed Order together with these Conditions.
Customer: the person or firm to whom Ultraleap supplies the Goods, Software and/or Services as set out in the Order.
Deliverables: the deliverables set out in the Order, including any Third Party Materials.
Delivery Location: delivery ex-works from Ultraleap’s premises or such other location as the parties may agree.
Delivery Note: document accompanying Goods which sets out details including the date of Order, Customer reference numbers and description of the Goods.
Expenses Policy: Ultraleap’s expenses policy, a copy of which is available on request.
Force Majeure Event: an event beyond the reasonable control of Ultraleap including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Ultraleap or any other party), failure of a utility service or transport network, act of God, terrorism (including threats), 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, storm or default of suppliers or subcontractors.
Goods: the goods (or any part of them) set out in the Order. For the avoidance of doubt, Software is not included as Goods. Delivered Goods shall be accompanied by a Delivery Note.
Goods Specification: any specification for the Goods, including any relevant plans or drawings, that is agreed in writing by the Customer and Ultraleap. Ultraleap reserves the right to amend the Goods Specification if required by any applicable statutory or regulatory requirements.
Intellectual Property Rights: patents, inventions, copyright, and related rights, trademarks, domain names, designs, database rights, confidential information, and all other intellectual property rights worldwide, whether registered or unregistered.
Order: Customer's order for the supply of Goods, Software and/or Services, as set out in Customer’s purchase order form or, where applicable, Customer's acceptance of Ultraleap’s quotation. For the avoidance of doubt all additional or conflicting terms in any Customer purchase order, order acknowledgment or other similar purchasing document are expressly rejected, and shall not form any part of or apply to the Order or this Contract.
Purpose: means, subject to any Special Terms, the use of the Deliverables by the Customer including (i) internal evaluation; (ii) testing of Customer effects and prototypes; (iii) private internal and external demonstrations; but excluding public demonstration, display or exhibition, manufacture, any commercial exploitation, onward sale of the Goods or Software or sub-licensing of any of Ultraleap's Intellectual Property Rights.
Services: the services, including any Deliverables, as set out in the Order. Ultraleap shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services. Ultraleap shall notify the Customer in any such event. Service Specification: the description or specification for the Services provided in writing by Ultraleap to the Customer.
Software: the pre-installed software in the Goods or provided as part of the Deliverables, (whether pre-existing or specially commissioned) including firmware and FPGA code, the downloadable software development kit (SDK), the sensation editor; and any other software provided by Ultraleap under an Order or otherwise.
Special Terms: any additional license terms set out in Ultraleap's quotation.
Term: the term during which use of the Software is authorized in the applicable Order, or if no Term is specified it shall be indefinite (subject to termination at clause 13).
Third-Party Materials: software and equipment not created by Ultraleap that may be provided to the Customer as part of the Deliverables. For more information please see https://www.ultraleap.com/third-party-materials/ Ultraleap: Ultraleap Limited, company number 08781720, The West Wing, Glass Wharf, Bristol, BS2 0EL.
Ultraleap Materials: other than the Third Party Materials, all materials, equipment, documents and other property provided to the Customer by Ultraleap.
Ultraleap Marks: registered and unregistered trademarks owned by Ultraleap or members of its group from time to time, including but not limited to Ultraleap, the Ultraleap logo, STRATOS, Sensation Editor, Ultrahaptics and the Ultrahaptics logo
2. Delivery of Goods
2.1 At any time after Ultraleap notifies the Customer that the Goods are ready, Ultraleap shall deliver the Goods. Delivery of the Goods shall be completed on the Goods' arrival at the Delivery Location in each case (Delivery).
2.2 Customers outside of the EU shall be responsible for obtaining customs' clearance for the Goods.
2.3 Delivery dates are approximate only and time of delivery is not of the essence. Ultraleap shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer's failure to provide Ultraleap with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
2.4 Ultraleap may deliver the Goods by installments. Each installment shall be invoiced and paid for separately and shall constitute a separate contract. Any delay in delivery or defect in an installment shall not entitle the Customer to cancel any other installment.
2.5 If Ultraleap fails to deliver the Goods as agreed upon by the parties (Non-Delivery), Ultraleap's liability for Non-Delivery shall be limited to (at Ultraleap's option) replacing the Goods within a reasonable time or refunding any fees already paid by the Customer for such Goods.
3. Quality of Goods
3.1 THE GOODS, DELIVERABLES, AND SOFTWARE ARE PROVIDED AS IS AND ALL WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. ULTRALEAP DOES NOT WARRANT THAT THE GOODS OR SOFTWARE WILL BE ERROR-FREE OR MEET YOUR INDIVIDUAL REQUIREMENTS. WHERE WARRANTY LIABILITIES CANNOT BE EXCLUDED IT IS LIMITED AS SET OUT IN CLAUSE 12.
4. Title and Risk
4.1 The risk in the Goods shall pass to the Customer on Delivery. Title to the Goods shall not pass to the Customer until Ultraleap receives payment in full for the Goods.
4.2 Ultraleap licenses the Software to the Customer. Ultraleap does not sell the Software and remains the owner of the Software.
4.3 Until title to the Goods has passed to the Customer, the Customer shall safely store the Goods separately in their original packaging and keep them insured at full value against all risks.
5. Supply of Services
5.1. Ultraleap shall use commercially reasonable efforts to provide the Services to the Customer in accordance with the Order. Ultraleap shall reasonably endeavor to meet any performance dates for the Services specified in the Order but any such dates shall be estimates only and time for the performance of the Services shall not be of the essence.
5.2 Ultraleap warrants to the Customer that the Services will be provided using reasonable care and skill.
5.3. Ultraleap has no obligation to provide the Customer with any updates to the Software and cannot guarantee the availability of the Software.
6. Customer's obligations
6.1 The Customer shall:
(a) provide Ultraleap, its affiliates, employees, agents, consultants, and subcontractors with reasonable access to Customer's premises for the purpose of providing the Services and provide such information and materials as Ultraleap may reasonably request for the provision of the Services;
(b) co-operate with Ultraleap in all matters relating to the Services;
(c) maintain all necessary licenses, permission, and consents which may be required for the Services in advance of the Commencement Date.
6.2 If Ultraleap's performance of any of its obligations in respect of the Services is prevented or delayed by the Customer (Customer Default):
(a) Ultraleap shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays Ultraleap's performance of any of its obligations;
(b) Ultraleap shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from Ultraleap's failure or delay to perform any of its obligations as set out in this clause 6.2, and
(c) the Customer shall reimburse Ultraleap on written demand for any costs or losses sustained or incurred by Ultraleap arising directly or indirectly from the Customer Default.
6.3. When using the Software the Customer shall not:
(a) Transmit any worms, viruses, Trojans or other destructive code;
(b) Upload or post any unlawful, offensive, abusive, threatening, defamatory or obscene material; or
(c) Infringe the intellectual property rights of any third party.
6.4 If Ultraleap is notified or becomes aware of any suspected breach of this clause it may suspend the Customer’s access to Software updates.
6.5 The Customer warrants that if it becomes aware of any breach of this clause, it will email email@example.com immediately.
7. Charges and payment
7.1 The price for the Deliverables shall be the price set out in the Order or if no price is quoted it shall be the full commercial value of the Deliverables. The price of the Deliverables is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for the Deliverables.
7.2 The charges for Services shall be on a time and materials basis calculated in accordance with Ultraleap's standard daily fee rates (based on a 9.00 am to 5.00 pm day on Business Days), as set out in the Service Specification. Reasonable expenses (including travel) incurred by Ultraleap shall be payable by the Customer in accordance with the Expenses Policy.
7.3 In respect of the Goods and Software, Ultraleap shall invoice the Customer on or at any time after Delivery. In respect of Services, Ultraleap shall invoice the Customer monthly in arrears.
7.4 The Customer shall pay the invoiced amounts within 30 calendar days of the date of a correctly rendered invoice to a bank account nominated in writing by Ultraleap. Time for payment shall be of the essence of the Contract.
7.5 All amounts payable by the Customer under the Contract are exclusive of VAT or other sales taxes.
7.6 If the Customer fails to make any payment due under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 4% per annum above Barclays Bank plc's base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
7.7 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. Ultraleap may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by Ultraleap to the Customer.
8. Intellectual property rights
8.1 The Goods and Software are protected by copyright, patents, and patent applications and Ultraleap Marks. All goodwill arising from the use of Ultraleap’s Marks shall belong to Ultraleap.
8.2 All Intellectual Property Rights in the Goods and Software or arising out of or in connection with the Services shall be owned by Ultraleap.
8.3 Subject to any Special Terms, Ultraleap hereby grants the Customer a non-exclusive, non-transferable license to use the Software for the Purpose during the Term on the following conditions. The Customer may not, directly or indirectly, do or attempt to do any of the following:
(a) copy the Software except for the normal use of the Software, or where it is necessary for the purpose of back-up or operational security;
(b) rent, lease, publish, loan, translate, merge, adapt, vary or modify the Software;
(c) disassemble, decompile, reverse-engineer or create derivative works based on the whole or any part of the Goods or Software or access or attempt to read the FPGA code except where this is allowed by relevant law; and
(d) bypass any security measures or digital watermarking in the Software;
(e) use the Software to create any software which is substantially similar to that of the Software, or
(f) use the Software with third-party hardware.
8.4 The Customer acknowledges and agrees that:
(a) except as expressly set out in these Conditions, the Customer has no rights in or to the Software or any part thereof and nothing said or done by either Party shall constitute a transfer or license of such rights; and
(b) Ultraleap makes no warranties in relation to the Software and the Software has not been developed to meet the Customer’s individual requirements. The Software is licensed to the Customer on an ‘as is’ basis.
(c) Ultraleap may from time to time provide the Customer with maintenance releases. The Customer shall install all maintenance releases promptly after receipt.
(d) The Third Party Materials do not form part of the Software.
9.1 A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party). The receiving party shall only disclose such confidential information to those of its affiliates, employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party's obligations under the Contract. The receiving party may also disclose such of the disclosing party's confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.
This clause 9 shall survive the termination of the Contract.
10.1 The Customer must not remove any notices on the Goods and in the Software.
10.2 When using or referring to the Goods or Software, the Customer shall where possible credit Ultraleap as the creator of the Goods or Software and associated Intellectual Property Rights. The Customer shall use best efforts to use the following acknowledgment prominently and comply with any of our reasonable directions regarding use of the Ultraleap Marks:
in collaboration with
10.3 The Customer agrees that it will provide Ultraleap with a copy of any marketing material it creates using or referencing any Ultraleap product or Ultraleap Mark and allow Ultraleap to use the marketing material on and after its public release date in our own publications, blogs, presentations and social media as an example of the uses of the Goods and Software.
10.4 In the event that the Customer, following approval by Ultraleap, displays publicly a solution incorporating the Goods or Software, it grants to Ultraleap the non-exclusive, perpetual, worldwide, royalty-free rights to issue press releases, case studies and articles for publication through any public channel, to reference any publicly available, or otherwise mutually agreed upon information about the public display, including the use of images and videos for marketing and corporate purposes in print, digital media, websites and through social media.
The Customer's attention is particularly drawn to this clause
10.1 THE CUSTOMER AGREE TO INDEMNIFY ULTRALEAP, ITS DIRECTORS, EMPLOYEES, CONTRACTORS, AND SUPPLIERS FOR ANY DAMAGES, COSTS, AND LIABILITIES (INCLUDING LEGAL COSTS) ARISING FROM ANY BREACH OF THE CONTRACT OR INFRINGEMENT OF ULTRALEAP'S INTELLECTUAL PROPERTY RIGHTS.
The Customer's attention is particularly drawn to this clause
12.1 THE CUSTOMER ACKNOWLEDGES THAT THE GOODS AND SOFTWARE HAVE NOT BEEN DEVELOPED TO MEET ITS INDIVIDUAL REQUIREMENTS, AND THAT IT IS THEREFORE THE CUSTOMER'S RESPONSIBILITY TO ENSURE THAT THE FACILITIES AND FUNCTIONS OF THE GOODS AND SOFTWARE AS DESCRIBED IN THE SPECIFICATION MEETS ITS REQUIREMENTS.
12.2 ULTRALEAP SHALL NOT IN ANY CIRCUMSTANCES WHATEVER BE LIABLE TO THE CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, ARISING UNDER OR IN CONNECTION WITH THE CONTRACT FOR:
(A) LOSS OF PROFITS, SALES, BUSINESS, OR REVENUE;
(B) BUSINESS INTERRUPTION;
(C) LOSS OF ANTICIPATED SAVINGS;
(D) LOSS OR CORRUPTION OF DATA OR INFORMATION;
(E) LOSS OF BUSINESS OPPORTUNITY, GOODWILL OR REPUTATION; OR
(F) ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE.
12.3 OTHER THAN THE LOSSES SET OUT ABOVE (FOR WHICH ULTRALEAP IS NOT LIABLE), ULTRALEAP’S MAXIMUM AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THE CONTRACT WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL IN ALL CIRCUMSTANCES BE LIMITED TO THE FEE ACTUALLY PAID BY THE CUSTOMER UNDER THE ORDER. THIS MAXIMUM CAP DOES NOT APPLY TO DEATH OR PERSONAL INJURY RESULTING FROM ULTRALEAP'S NEGLIGENCE; FRAUD OR FRAUDULENT MISREPRESENTATION; OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH LAW. 12.4 THE CONTRACT SETS OUT THE FULL EXTENT OF ULTRALEAP’S OBLIGATIONS AND LIABILITIES IN RESPECT OF THE SUPPLY OF THE GOODS, DELIVERABLES AND SOFTWARE. EXCEPT AS EXPRESSLY STATED IN THE CONTRACT, THERE ARE NO CONDITIONS, WARRANTIES, REPRESENTATIONS OR OTHER TERMS, EXPRESS OR IMPLIED, THAT ARE BINDING ON US. ANY CONDITION, WARRANTY, REPRESENTATION OR OTHER TERM CONCERNING THE SUPPLY OF THE GOODS, DELIVERABLES AND SOFTWARE WHICH MIGHT OTHERWISE BE IMPLIED INTO, OR INCORPORATED IN THE CONTRACT WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, IS EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW.
12.5 ULTRALEAP EXPRESSLY EXCLUDES ANY LIABILITY FOR THIRD PARTY MATERIALS USED WITH THE GOODS AND SOFTWARE.
13.1 Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if: (i) the other party commits a material breach of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of receipt of notice in writing to do so; (ii) the other party becomes insolvent, enters into liquidation, administration, bankruptcy or other similar insolvency process anywhere in the world or is in any other way unable to pay its debts as they fall due; (iii) the other party suspends, threatens to suspend, ceases or threatens to cease to carry on, all or substantially the whole of its business; (iv) the other party's financial position deteriorates to such an extent that in Ultraleap's opinion the Customer's capability to adequately fulfil its obligations under the Contract has been placed in jeopardy; or (v) the other party (being an individual) dies or becomes incapable of managing his/her own affairs.
13.2 Without limiting its other rights or remedies, Ultraleap may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract within 10 Business Days of the due date for payment.
13.3 Without limiting its other rights or remedies, Ultraleap may suspend the supply of Services or all further deliveries of Goods and updates to the Software under the Contract or any other contract between the Customer and Ultraleap if the Customer fails to pay any amount due under the Contract within 10 Business Days of the due date for payment, the Customer becomes subject to any of the events listed in clause 0, or Ultraleap reasonably believes that the Customer is about to become subject to any of them. 13.4 On termination of the Contract for any reason:
(a) all rights granted to the Customer under the Contract shall cease;
(b) the Customer shall immediately pay to Ultraleap all of Ultraleap's outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has yet been submitted, Ultraleap shall submit an invoice, which shall be payable by the Customer immediately on receipt;
(c) the Customer must immediately stop using the Goods, Deliverables, and Software and return the Goods to Ultraleap's premises at the Customer's cost;
(d) the Customer must immediately remove the Software from all computer equipment in its possession.
(e) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(f) clauses which expressly or by implication have effect after termination shall continue in full force and effect.
14.2 Ultraleap may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of Ultraleap. The Customer shall not lend or transfer the Goods to a third party without prior written notice to Ultraleap at firstname.lastname@example.org.
14.3 Ultraleap shall not be liable to the Customer as a result of any delay or failure to perform its obligations under the Contract as a result of a Force Majeure Event.
14.4 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
14.5 A waiver of any right or remedy under the Contract or law is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract 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.
14.6 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, nor constitute either party the agent of the other for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
14.7 A person who is not a party to the Contract shall not have any rights to enforce its terms.
14.8 Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions, shall be effective unless it is agreed in writing and signed by Ultraleap.
14.9 Each of the conditions of these Conditions operates separately. If any court or competent authority decides that any of them are unlawful or unenforceable, the remaining conditions will remain in full force and effect.
The Customer will comply with all laws and rules relating to its use of the Goods and Software, including the US Export Administration Regulations and any other relevant prohibitions or sanctions (Export Controls). The Customer will not export the Goods or Software to anyone or any country in violation of Export Controls. 14.10 The Contract sets out the entire agreement between Ultraleap and the Customer for the Goods, Deliverables, and Software.
14.11 The parties shall comply with all applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption in relation to the Contract including but not limited to the Bribery Act 2010 and not engage in any activity, practice or conduct which would constitute an offence under the Bribery Act 2010 if such activity, practice or conduct had been carried out in the UK. 14.12 The Contract, (including non-contractual disputes), shall be governed by, and construed in accordance with the law of England and Wales and the courts of England and Wales shall have exclusive jurisdiction to settle any dispute (including non-contractual disputes or claims).