1. DEFINITIONS AND INTERPRETATIONS

The definitions to be read with these Terms are set out in full at Clause 24.

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2. INTRODUCTION

2.1 E-Nano has developed the Device and certain software applications and a E-Nano branded platform (the ‘E-Nano Platform’) accessible directly on https://oscar.e-nano.io  (the ‘App Site’) (together, the ‘E-Nano Software’) and is one of the leading suppliers of automated and real-time data-driven solutions to the sports surface industry software delivered via computer, mobile or tablet device by way of a subscription software package (‘E-Nano Software Subscription Package’).

2.2 E-Nano hosts, maintains and supports the Client’s implementation and use of the E-Nano Software Subscription Package (Clauses 2.1 and 2.2 together shall be the ‘E-Nano Services’).

2.3 Client wishes to contract with E-Nano in order to avail of, and make use of the E-Nano Services in its business operations. E-Nano has agreed to provide the E-Nano Services (and any Additional Services as applicable) and Client has agreed to take and pay for the E-Nano Services (and any Additional Services as applicable) subject to these Terms and in accordance with the Commercial terms & Order Form and any Additional Services Agreement as applicable.

2.4 This Agreement shall consist of the Commercial Terms & Order Form inclusive together with the:

• E-Nano Device and SaaS Subscriber Terms set out in this Schedule 1; and,

• Service Availability, Maintenance and Support Services Terms (‘SAMSSs’) set out in Schedule 2;

​the (‘Schedules’),

which are also incorporated into the Agreement.

If there is a conflict between the Commercial Terms & Order Form and the Schedules, the Commercial Terms & Order Form shall prevail.

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3. GENERAL

3.1 E-Nano has agreed to sell you the Device and provide the E-Nano Services and You have agreed to take and pay for the E-Nano Services subject to these Terms.

3.2 By using any of the Device, E-Nano Services and the E-Nano Platform, You expressly agree to accept and to be bound by these Terms and all applicable legislation and codes of practice governing the Device, E-Nano Services and the E-Nano Platform.

3.3 These Terms form a legally binding agreement between You and E-Nano in relation to Your use of the Device, E-Nano Services and applies to all E-Nano Subscribers. Unless the Parties expressly agree otherwise in writing, each Order Form shall create a distinct contract under these Terms.

3.4 If You violate these Terms or any terms in the Agreement, E-Nano may terminate Your use of the App Site and the E-Nano Platform, bar You from future use of the App Site and the E-Nano Platform and/or take appropriate legal action against You.

3.5 Words denoting an obligation on You to do any act, matter or thing includes an obligation to procure that it be done and words placing You under an obligation or a restriction include an obligation not to permit or allow infringement of the obligation or restriction.

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4. DEVICE

Device Price and Payment

4.1 You will pay the Device price in accordance with the terms in the Order Form. If the Device Price is paid in instalments, You will only own the Device and the title for the Device will transfer to You after E-Nano has received payment for the last instalment and Device Price has been paid in full.

4.2 You agree and undertake to return the Device to us at our request in the circumstances in which payment is not made in full for the Device Price and the last instalment due date has passed.

Device Delivery

4.3 The Device shall be subject to the delivery terms below, unless otherwise stated in the purchase order confirmation issued by E-Nano to Client.

4.4 E-Nano will deliver the Device to You on the estimated date agreed on the purchase order confirmation to the address included on the purchase order confirmation.

4.5 E-Nano shall use all reasonable efforts to deliver the Device on the estimated delivery date but under no circumstances will E-Nano be liable for damages and/delays incurred by You for failing to meet the estimated delivery date.

4.6 Device shall be delivered by E-Nano to Client Ex-Works.

4.7 Unless otherwise agreed expressly by E-Nano, Client shall bear all additional freight costs, packing costs in excess of standard packing, public fees (including taxes), optional insurance and any custom duties applicable.

4.8 E-Nano and/or an authorised reseller shall be responsible for providing Client with the instructions necessary for the installation and use of the Device. Unless otherwise agreed by the Parties and without prejudice to any warranties provided hereunder, You shall be responsible for the installation and maintenance of the Device at the Facility and/or Client’s premises. Client must at its sole expense prepare the operating environment of the Device in conformity with E-Nano’s instructions.

4.9 The Client acknowledges and agrees that the Device and E-Nano Services could be affected by wireless connectivity at Client’s Facility (es) at any given time and that E-Nano relies at all times on network services provided by third parties for the Device to function and provide the E-Nano Services. After the Device is installed and connected to E-Nano Services, E-Nano will determine in its sole discretion, if the wireless’ connectivity at the Facility(es) is sufficient to provide and receive full benefit of the E-Nano Services. The Client agrees and acknowledges that E-Nano will not be responsible for any downtime and/or any issues that relate or derive from data transmission, including no transmission, due to lack of or inadequate wireless coverage. If Product is not communicating for a minimum of 72 (seventy-two) consecutive hours, then Client can contact E-Nano and request to return the Device to E-Nano.  E-Nano will have sole and full discretion whether will accept the return of the Device or not and whether the Client is entitled to a pro-rata or full refund for the return of the Device.

4.10 Client acknowledges and agrees that E-Nano has no control of the delivery terms and unit prices for the Device purchased by the Client from E-Nano’s authorised resellers. Such purchases are governed exclusively by the unit prices and delivery terms set forth in the terms and conditions of the  respective authorised reseller.

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5. E-NANO SERVICES REGISTRATION

5.1 Once You have agreed to take the E-Nano Services, E-Nano will generate Your Client Account for You.

5.2 All details submitted by You must be true, accurate and complete.

5.3 When executing this Agreement by way of the Commercial Terms & Order Form, the individual signing represents and warrants that they have authority to bind the Client to these Terms.

5.4 It is in E-Nano’s absolute discretion to decide if You shall qualify as a E-Nano Subscriber for the purposes of gaining access to the E-Nano Services. You must comply with all requests E-Nano may make for proof of identity and business references and/ or financial standing. E-Nano reserves the right to decline any application for a E-Nano subscription with or without notice or cause and in its entire sole discretion.

5.5 Upon successful verification, a Client Account will be activated and unique login credentials (‘E-Nano Login’) will be issued.

5.6 You will keep the E-Nano Login relevant to the E-Nano Platform and the E-Nano Services confidential and will not reveal it to anyone else. You shall be responsible for all activities that are carried out under the E-Nano Login. E-Nano will not be liable where a E-Nano Login is unlawfully used by another. You agree to notify E-Nano immediately by email to support@e-nano.io of any such unauthorised use.

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6. E-Nano SOFTWARE SUBSCRIPTION PACKAGE

6.1 Upon being registered by E-Nano, E-Nano hereby grants to You a non-exclusive, non-transferable right to permit the Authorised Users to use the E-Nano Services and the Documentation during the Subscription Term solely for Your internal business operations.

6.2 E-Nano is entitled to make any changes to the specification, functionality and features of the E-Nano Software that it desires at its sole discretion but shall provide notice of the same to You where necessary.

6.3 You will have administration privileges over the accounts of your Authorised Users, and You must disable the accounts for Authorised Users, who subsequently terminate their relationship with Your organisation.

6.4 You and/or any Authorised User shall not access, store, distribute or transmit any Viruses, or any other material during the course of Your use of the E-Nano Services that in E-Nano’s sole discretion is unacceptable or illegal and E-Nano reserves the right, without liability or prejudice to its other rights to You, to disable Your access to any material that breaches the provisions of this Clause.

6.5 You shall not:

a. except to the extent expressly permitted under there Terms:

i. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Device,  E-Nano Software and/or Documentation (as applicable) in any form or media or by any means; or,

ii. attempt to reverse compile, decompile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Device and/or E-Nano Software;

b. access all or any part of the E-Nano Services and Documentation in order to build a product or service which competes with the E-Nano Services and/or the Documentation; or

c. use the E-Nano Services and/or Documentation to provide services to third parties; or,

d. remove, alter, or obscure any proprietary notices, including copyright notices in or on the Device and/or E-Nano Services; or

e. copy, frame or mirror any part or content of the E-Nano Services; or

f. build a competitive product or device or service, or copy any features or functions of the E-Nano Services and/or Device; or

g. detrimentally interfere with or disrupt the integrity or performance of the E-Nano Services and/or products or Device;

h. attempt to gain or gain unauthorized access to the E-Nano Services or their related systems or networks;

i. use the E-Nano Services to store or transmit any content that is comprised of or in any way includes personally identifiable information, as defined by applicable law;

j. subject to Clause 20 on Assignment, license, sublicense, sell, rent, lease, sub-lease, lend, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the E-Nano Services and/or Documentation available to any third party except the Authorised Users; or,

k. attempt to obtain, or assist third parties in obtaining, access to the E-Nano Services and/or Documentation, other than as provided under this Clause 5; or

l. disclose to any third party any performance information or analysis relating to the E-Nano Services and/or products and/or device; or

m. cause or permit any third-party to do any of the above.

6.6 You shall use to prevent any unauthorised access to, or use of, the E-Nano Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify in writing E-Nano.

6.7 The rights provided under this Clause 6 are granted to You only, and shall not be considered granted to any subsidiary or Your holding company.

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7. TERM

7.1 Subject to earlier termination in accordance with Clause 16, these Terms shall commence on the Effective Date and shall continue for a period of two (2) year (‘Initial Subscription Term’) and thereafter, it shall automatically renew for successive one (1) year periods (each a ‘Renewal Subscription Term’) unless:

a. either Party notifies the other Party of termination, in writing, at least ninety (90) days before the end of the Initial Subscription Term or any Renewal Subscription Term, in which case these Terms shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Subscription Term; or,

b. otherwise terminated in accordance with the provisions of these Terms;

7.2 The Initial Subscription Term together with any subsequent Renewal Subscription Terms shall constitute the ‘Subscription Term’.

7.3 The renewal is automatic. Any Renewal Subscription Term will be in accordance with these Terms (as may be updated or amended from time to time). The latest contemporary content and features of the applicable E-Nano Software Subscription Package will apply.

7.4 Should You decide not to renew, You must send the notice of non-renewal by email to finance@e-nano.io in accordance with the notice period set out at Clause 7.1 a.

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8. E-Nano SERVICES

8.1 E-Nano undertakes that the E-Nano Services and any Additional Services will be performed with reasonable skill and care.

8.2 E-Nano shall provide the Set-Up Services to the Client promptly and as near to the Effective Date as possible.

8.3 The Client acknowledges that a delay in the Client performing its obligations in the Agreement may result in a delay in the performance of the Set-Up Services; and subject to Clause 18. E-Nano will not be liable to the Client in respect of any failure to meet the Set-Up Services timetable to the extent that that failure arises out of a delay in the Client performing its obligations under these Terms.

8.4 Subject to any written agreement of the Parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set-Up Services by E-Nano shall be the exclusive property of E-Nano.

8.5 The undertaking at Clause 8.1 shall not apply to the extent of any non-conformance which is caused by use thereof or of the E-Nano Services contrary to E-Nano's Documentation. If the E-Nano Services do not conform with the foregoing undertaking, E-Nano will, at its expense, use reasonable commercial endeavours to correct any such non-conformance in accordance with our SAMSSs detailed in Schedule 2 and will make reasonable commercial endeavours to provide You with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes Your sole and exclusive remedy for any breach of the undertaking set out in Clause 8.1.

8.6 These Terms shall not prevent E-Nano from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under these Terms.

8.7 E-Nano has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these Terms.

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9. ADDITIONAL SERVICES (Customisations)

9.1 You may choose to avail of Additional Services pursuant to an Additional Services Agreement for which Additional Services Fees shall be payable as set out in the Commercial Terms & Order Form.

9.2 E-Nano offers as part of its Additional Services an application programming interface called E-Nano API which allows You to transmit [Device Collected Data/ Device Processed Data] to third-party services. If you would like to activate this, please contact E-Nano at support@e-nano.io

9.3 You and E-Nano agree that E-Nano shall design, develop and implement a Customisation or Customisations in accordance with a SOW (including project plan) pursuant to an Additional Services Agreement agreed in the Commercial Services & Order Form or otherwise in writing by the Parties.

9.4 All Intellectual Property Rights in the Customisations shall, as between the Parties, be the exclusive property of E-Nano (unless the Parties agree otherwise in writing).

9.5 From the time and date when a Customisation is first delivered or made available by E-Nano to You, the Customisation shall form part of the E-Nano Platform, and accordingly from that time and date Your rights to use the Customisation shall be governed by these Terms.

9.6 You acknowledge that E-Nano may make any Customisation available to any of its Customers or any other third party at any time after the end of the period following the making available of the Customisation to You.

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10. E-Nano AVAILABILITY, MAINTENANCE & SUPPORT SERVICES (the ‘SAMSSs’)

10.1 E-Nano shall, during the Subscription Term, provide the SAMSSs with reasonable skill and care and make available the Documentation to You on and subject to the Commercial Terms & Order Form, these Terms and the SAMSSs set out at Schedule 2. The Parties acknowledge and agree that Schedule 2 shall govern the availability of the E-Nano Services as well as the maintenance and support of the same.

10.2 E-Nano may suspend the provision of the SAMSSs if any amount due to be paid by You under these Terms is overdue and E-Nano has given to You at least fourteen (14) days’ written notice, following the amount becoming overdue, of its intention to suspend the SAMSSs on this basis.

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11. DATA AND INTELLECTUAL PROPERTY OWNERSHIP

11.1 E-Nano and/or its licensors will remain at all times the owners of all rights, titles and interest in the Device Processed Data and E-Nano Intellectual Property Rights. For the duration of the Subscription Term, subject to this Agreement and payment of the Subscription Fees, E-Nano grants to You a non-exclusive, non-transferable, revocable and limited licence to access and use the Device Processed Data relevant to the Client for the sole purposes of enabling You to avail of the E-Nano Services and for internal business purpose. Except as expressly permitted by this Agreement, You may not use any of our E-Nano Intellectual Property Rights without our prior written consent.

11.2 You shall remain the owner of the Device Collected Data and the Client Intellectual Property Rights. You hereby grant to E-Nano a perpetual, irrevocable, non-exclusive, worldwide, royalty-free licence, to use, reproduce, publish, display and communicate with your consent the Device Collected Data in any manner whatsoever and  Your content, and to modify, adapt, translate, create derivative works from and/or incorporate the same into other works in any form, media or technology, to the extent that this is necessary to enable E-Nano to provide the E-Nano Services and for E-Nano’s internal purposes such as to aggregate the Device Collected Data with other data in order to gain insights and to improve and develop its devices, products and services.

11.3 You hereby undertake to not share the Device Collected Data with any third parties other than your sub-contractors for the purpose of performing internal business purposes without obtaining E-Nano’s express written consent.

11.4 You shall promptly give notice in writing to E-Nano in the event that You become aware of any claim that any of the Client Intellectual Property Rights infringes the rights of any third party. In such an event, E-Nano shall, at its absolute discretion, determine what action if any it shall take in respect of the matter (including immediately terminating these Terms) and You shall fully indemnify E-Nano for and against any damages, losses, costs and expenses (including reasonable legal costs and expenses) or other liabilities incurred by E-Nano as a result of such claim.

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12. CLIENT OBLIGATIONS

12.1 You undertake that at all times You shall (and where applicable shall procure that Authorised Users shall):

a. provide E-Nano with:

i. all necessary co-operation in relation to these Terms; and,

ii. all necessary access to such information as may be required by E-Nano;

in order to provide the E-Nano Services, including but not limited to data, security access information and configuration services as applicable;

b. operate Your business in accordance with good industry practice and in accordance with any applicable codes, regulations or guidance of any governmental, non-governmental or other applicable regulatory organisation;

c. comply with these Terms in all respects;

d. comply with the E-Nano ‘s Legal Policies (which will be supplied) when using the E-Nano Platform;

e. carry out all of Your other responsibilities set out in these Terms in a timely and efficient manner. In the event of any delays in Your provision of such assistance, E-Nano may adjust any agreed timetable or delivery schedule as reasonably necessary;

f. use the Device exclusively on the Facility(es) specified in the Commercial Terms & Order Form above;

g. ensure that the Authorised Users use the E-Nano Services and the Documentation in accordance with these Terms and shall be responsible for any Authorised User’s breach of these Terms and You shall fully indemnify E-Nano for and against any damages, losses, costs and expenses (including reasonable legal costs and expenses) or other liabilities incurred by E-Nano as a result of any breach by You or any Authorised User of these Terms for any reason whatsoever;

h. obtain and maintain all necessary licences, consents, and permissions necessary for E-Nano , its contractors, agents, partners to perform their obligations under these Terms, including without limitation the E-Nano Services;

i. be solely responsible for procuring and maintaining that Your network connections, internet connections and telecommunications.

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13. E-Nano FEES & PAYMENT

13.1 You shall pay the E-Nano Fees promptly as they fall due in accordance with the Commercial Terms & Order Form. Timely payment of Fees is of the essence to this Agreement.

13.2 If E-Nano does not receive payment in accordance with these Terms and the Commercial Terms & Order Form, without prejudice to any other rights and remedies of E-Nano:

a. E-Nano may, without liability to You, disable Your Client Login to the Client Account and access to all or part of the E-Nano Services and E-Nano shall be under no obligation to provide any or all of the E-Nano Services while the invoice(s) concerned remains unpaid; and,

b. charge You interest on the overdue amount at the rate of 6% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or,

c. claim interest and statutory compensation from the Client pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

13.3 All E-Nano Fees payable under these Terms shall be payable in pounds sterling and are non-refundable.

13.4 All amounts stated in or in relation to these Terms are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by You to E-Nano.

13.5 E-Nano may elect to vary any element of the E-Nano Fees and/or increase the E-Nano Fees by providing You with no less than thirty (30) days' written notice of such variation during the Subscription Term, and not more frequently than once every twelve (12) months.

13.6 In the event of any invoice dispute, You shall pay the amount in full pending the resolution of any dispute and, upon resolution, E-Nano shall (if necessary) pay any adjustment due within thirty (30) Business Days. You agree to pay all amounts due in full and You shall not, for any reason whatsoever, be entitled to assert any credit, set-off or counterclaim against E-Nano in order to justify withholding payment of any such amount in whole or in part.

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14. DATA PROTECTION

14.1 To the extent that the nature of the E-Nano or any other activities performed by E-Nano in accordance with these Terms requires E-Nano to process Personal Data on behalf of Client (and or its Authorised Users), E-Nano will act as a Data Processor for the purposes of the applicable Data Protection Legislation.

14.2 Subject to all applicable Data Protection Legislation and the terms of the E-Nano Privacy Statement, You (and Your Authorised Users as applicable) shall own all right, title and interest in and to all of the Personal Data including all database and copyright therein and You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the same.

14.3 E-Nano shall follow its archiving procedures for the Subscriber Content. In the event of any loss or damage to the Subscriber Content, the sole and exclusive remedy shall be for E-Nano to use reasonable commercial endeavours to restore the lost or damaged Subscriber Content from the latest back-up of such Subscriber Content maintained by E-Nano in accordance with its archiving procedure. E-Nano shall endeavour to perform one yearly back-up. E-Nano shall not be responsible for any loss, destruction, alteration or disclosure of Subscriber Content caused by any third party (except those third parties sub-contracted by E-Nano to perform services related to maintenance and back-up).

15. CONFIDENTIALITY

15.1 Save as is otherwise required by law or any regulatory authority, each Party undertakes to the other that during the Subscription Term and thereafter it shall keep secret and shall not without the prior written consent of the other Party disclose to any third party (except to its legal and professional advisors) any Confidential Information learned by the recipient Party or disclosed to the recipient Party by such other Party pursuant to, or otherwise in connection with these Terms, except to the extent that any Confidential Information:

a. is (otherwise than by breach of these Terms) in the public domain; or,

b. is already known by the recipient Party other than pursuant to disclosure from the other Party;

c. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

15.2 To the extent that it is necessary to give effect to these Terms, the recipient Party may disclose Confidential Information to its employees as may reasonably be necessary provided that the recipient Party shall:

a. before disclosure, make such employees aware of their obligations of confidentiality under these Terms;

b. at all times procure compliance with such obligations of confidentiality; and

c. if requested by the disclosing party, procure named employees to execute a confidentiality agreement directly in favour of the disclosing party.

15.3 Neither Party shall issue any press release or other public announcement relating to the subject matter of the Commercial Terms & Order Form  without the prior written consent of the other Party.

15.4 This Clause 14 shall survive termination of these Terms howsoever arising.

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16. TERMINATION

16.1 Either Party may terminate this Agreement with immediate effect without liability by service of written notice on the other and without prejudice to its other rights, if the other Party:

a. is in material breach of this Agreement where the breach is incapable of remedy; or

b. is in material breach of this Agreement where the breach is capable of remedy and fails to remedy that breach within insert e.g. thirty (30) days after receiving written notice of such breach or other default from the non-defaulting Party;

or if any of the following events occur:

c. it is, or is deemed for the purposes of any applicable law to be, unable to pay its debts as they fall due for payment;

d. a petition is presented or documents filed with a court or any registrar or any resolution is passed for its winding-up, administration or dissolution or for the seeking of relief under any applicable bankruptcy, insolvency, company or similar law;

e. any liquidator, trustee in bankruptcy, judicial custodian, compulsory manager, receiver, supervisor, administrative receiver, administrator or similar officer is appointed in respect of it or any of its assets; or

f. any event analogous to the events listed in (c) to (e) above takes place in respect of it in any jurisdiction.  

16.2 Clause 16.1 c - f above does not apply to a petition for winding-up presented by a creditor which is being contested in good faith and with due diligence and which is discharged or struck out within twenty-one (21) days.

16.3 E-Nano may suspend access to the E-Nano Services with immediate effect at any time during the Subscription Term if Client is in material breach of any obligation in this Agreement which shall include, but is in no way limited to, where any delinquent payment is not received by E-Nano within fifteen (15) calendar days after notice to Client. Client will continue to be charged for and be liable for all E-Nano Fees during any period of suspension. Where either Party initiate termination of this Agreement in accordance with Clause 16, Client will continue to be obligated to pay all balances lawfully due and payable.

16.4 On termination of these Terms for any reason:

a. all rights granted under these Terms shall immediately terminate;

b. each Party shall return and make no further use of any property including any Intellectual Property Rights (and all copies of them) belonging to the other Party;

c. E-Nano may destroy or otherwise dispose of any of the data in its possession unless E-Nano receives, no later than fifteen (15) days after the effective date of the termination of these Terms, a written request for the delivery to Client of the then most recent back-up of the data. E-Nano shall use reasonable commercial endeavours to deliver the back-up to Client within  sixty (60) days of its receipt of such a written request, provided that Client has, at that time, paid all E-Nano Fees outstanding at, and resulting from, termination (whether or not due at the date of termination). Client shall pay all reasonable expenses incurred by E-Nano in returning or disposing of Data; and,

d. the accrued rights of E-Nano or Client as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination shall not be affected or prejudiced.

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17. WARRANTIES AND INDEMNITIES

17.1 You hereby warrant, represent and undertake to E-Nano that these Terms constitute Your valid, legal and binding agreement, enforceable in accordance with its Terms.

17.2 E-Nano shall  use its best endeavours defend You against any Claim that the E-Nano Software, E-Nano Services or Documentation infringes any patent, copyright, trade mark, database right or right of confidentiality provided that:

a. E-Nano is given prompt notice of any such Claim;

b. You provide reasonable co-operation to E-Nano in the defence and settlement of such Claim, at Your sole expense E-Nano; and,

c. E-Nano is given sole authority to defend or settle the Claim.

17.3 In no event shall any E-Nano be liable to You to the extent that the alleged infringement is based on:

a. a modification of the E-Nano Software, E-Nano Services or Documentation by anyone other than E-Nano; or,

b. Your use of the E-Nano Software, E-Nano Services or Documentation in a manner contrary to the instructions given to You by E-Nano; or,

c. Your use of the E-Nano Software, E-Nano Services or Documentation after notice of the alleged or actual infringement from E-Nano or any appropriate authority.

17.4 This Clause 17 states Your sole and exclusive rights and remedies and the entire obligations and liability of E-Nano, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

17.5 The Client acknowledges that complex software is never wholly free from defects, errors and bugs (and security vulnerabilities); and subject to the other provisions of these Terms, E-Nano gives no warranty or representation that the E-Nano Services will be wholly free from defects, errors and bugs (or will be wholly secure).

17.6 The Client acknowledges that the E-Nano Services are designed to be compatible only with that software and those systems specified as compatible by E-Nano; and E-Nano does not warrant or represent that the E-Nano Services will be compatible with any other software or systems.

17.7 The Client acknowledges that E-Nano will not provide any legal, financial, accountancy or taxation advice or any other specific industry advice under these Terms or in relation to the E-Nano Services; and, except to the extent expressly provided otherwise in these Terms, E-Nano does not warrant or represent that the E-Nano Services or the use of the E-Nano Services by the Client will not give rise to any legal liability on the part of the Client or any other person.

Device Limited Warranty

17.8 Subject to each of the other provisions of this Agreement, E-Nano warrants, solely to Client, that for a maximum twelve (12) months following the initial delivery of the Device to Client (the “Warranty Period”), the Device will be free from manufacturing defects and the Device and the E-Nano Software will be capable of functioning substantially in accordance with the Documentation.

17.9 The warranty provided in this clause 17.8 will not apply if: (i) Client fails to notify E-Nano in writing during the Warranty Period of any such breach; or (ii) Client fails to promptly provide E-Nano with as detailed as possible description of any claimed defect or malfunction; or (iii) Client fails to implement all Updates to the Device or the E-Nano Software made available at no charge to Client during the Warranty Period; or (iv) during the Warranty Period the Client no longer subscribes or cesses to subscribe to the E-Nano Platform and E-Nano Services.

17.10 If E-Nano breaches the warranty set forth in this Section, Client’s sole and exclusive remedy, and E-Nano’s sole obligation, shall be to remedy such breach as set forth in this clause 17.10. At the sole discretion of E-Nano, E-Nano will, at its expense, either: (i) repair or replace the defective Device or Software to enable it to perform substantially in accordance with the Documentation; or (ii) terminate this Agreement and refund to Client any fees prepaid by Client to E-Nano for the defective Device for any period after the effective date of any such termination.

17.11 E-Nano’s warranty and support obligations under this Agreement do not under any circumstances extend to:(i) programming services related to, integrating the Device or E-Nano Software with, Your products or products of third parties; (ii) except in the case of manufacturer’s defects during the manufacturer’s warranty period, repair or replacement of wheels, batteries, battery chargers, exterior enclosures or bulbs of the Device; (iii) Defect and malfunction or correction in case of Client inserting or installing (internally or externally) mounted objects which are not part of the original Device configuration; (iv) Client failing to install updated software and firmware recommended and made available by E-Nano; or (v) defects or malfunctions that are based on non-compliance with the operating conditions for the Device (including but not limited to use of the Device in unapproved or unmapped environments)

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18. LIMITATION OF LIABILITY

18.1 This Clause 18 sets out the entire financial liability of E-Nano (including any liability for the acts or omissions of its employees, agents and sub-contractors) to You:

a. arising under or in connection with these Terms;

b. in respect of any use made by You of the E-Nano Software, E-Nano Services and Documentation or any part of them; and,

c. in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms.

18.2 Subject to clause 18.4, E-Nano shall not be liable to you in contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these terms.

18.3 E-Nano's total aggregate and maximum liability, in contract, tort or otherwise(including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of these terms shall be limited to the total subscription fees paid to E-Nano during the three (3) continuous months immediately preceding the date on which the claim arose.

18.4 Nothing in this Clause 18 shall however exclude or restrict any Party’s liability for (i) fraudulent misrepresentations, (ii) any liability where the law does not permit such exclusion of liability, and (iii) death or personal injury arising from negligence.

18.5 Subject to clauses 17.4, 18.3 and 18.4, E-Nano’s sole and exclusive liability and your sole and exclusive remedy, for any failure of the E-Nano Services shall be service credits where applicable as referred to in schedule 2. 

18.6 E-Nano shall not be in breach of any of its obligations under these Terms which arise or occur due to the act, omission, and default of You or Your failure to comply with any of its obligations under these Terms. Except as expressly set out in these Terms:

a. no conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the Device, E-Nano Software, Documentation, E-Nano Services  or to anything supplied or provided by E-Nano under this Agreement which are all provided to You on an ‘as is’ basis. You acknowledge that the service may be subject to limitations, delays and other problems inherent in the use of such communications facilities;

b. You assume sole responsibility for the results obtained from the use of the Device and/or E-Nano Services and the Documentation and for conclusions drawn from such use; and,

c. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from these Terms.

18.7 No action arising out of or in connection with these Terms may be brought by You more than six (6) months’ after the date of the event from which the Claim (or series of related Claims) arose.

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19. FORCE MAJEUR

E-Nano shall have no liability to Client under these Terms if it is prevented from or delayed in performing its obligations under these Terms, or from carrying on its business, by one or more Force Majeure Events provided that the Client is notified of such and the expected duration.

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20. NOTICES

20.1 Any notice given or made under these Terms shall be in writing and in English and signed by or on behalf of the Party giving it and shall be:

a. delivered by hand;

(A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery).

b. sent by pre-paid first-class post or recorded delivery post to the other Party at its address set out in these Terms, or such other address as may have been notified by that Party for such purposes; or,

(A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post).

c. by email to the Authorised Representative of the Party included in the Order Form.

(A notice sent by email shall be deemed to be received as verified by automated receipt or electronic log.)

20.2 Client and E-Nano agree that the provisions of this Clause shall not apply in relation to the service of any process in any legal action or proceedings arising out of or in connection with these Terms or the legal relationships established by these Terms.

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21. GENERAL

Assignment: These Terms shall be binding on and inure to the benefit of each of Client and E-Nano and their respective successors and assigns. Client shall not assign or sub-contract any of its rights or obligations under these Terms (in whole or in part) without the prior written consent of E-Nano. E-Nano shall be entitled to assign or sub-contract any of its rights or obligations under these Terms in whole or in part.

Enforceability: If any one or more of the provisions of these Terms should be held to be invalid, illegal or unenforceable in any respect, the validity and enforceability of the remaining provisions contained in these Terms shall not in any way be affected or impaired and Client and E-Nano shall amend these Terms to add a new provision having an effect as near as legally permissible to the one held to be invalid, illegal or unenforceable.

Entire Agreement: These Terms (which include by reference the applicable Commercial Terms & Order Form, the E-Nano Software Subscription Package and the E-Nano Legal Policies and the Schedules) constitutes the entire agreement and understanding between Client and E-Nano with respect to the subject matter of these Terms and supersedes any and all prior contracts, licences, arrangements and understandings relating to the matters provided for herein. Client and E-Nano acknowledge that they have not relied on any oral or written representations made by the other Party or the other Party’s representatives in entering into these Terms, including any information or material provided by E-Nano personnel and will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.

Status of Client: These Terms are not intended to create any partnership or joint venture relationship between E-Nano and Client or authorise either Party to act as agent for the other, and neither Party shall have the authority to act in the name of, or on behalf of, or otherwise to bind the other in any way.

Sub-Contracting: E-Nano may subcontract any of its obligations under the Agreement, providing that the E-Nano shall remain responsible to the Client for the performance of any subcontracted obligations. Notwithstanding any other provision of these Terms, the Client acknowledges and agrees that E-Nano may subcontract to any reputable third-party hosting business the hosting of the E-Nano Platform and the provision of related SAMSSs.

Variations: Save as expressly provided in these Terms, no variation to, or notice or consent under these Terms shall be effective unless it is in writing and signed by an authorised signatory of each Party. A waiver by any Party of any of the terms or conditions of these Terms in any instance shall not be deemed or construed to be a waiver of such term or condition for the future, or of any subsequent breach thereof.  No waiver of any right shall constitute a waiver of any other right or be effective unless made in writing and signed by an authorised signatory of the Party making the waiver.

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22. RIGHTS OF THIRD PARTIES

Save for a E-Nano Party, a person who is not a Party to these Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce of these Terms.

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23. GOVERNING LAW & JURISDICTION

These Terms and any dispute or claim arising out of or in connection with it or its subject matter, whether of a contractual or non-contractual nature, shall be governed by and construed in accordance with the laws of England and Wales. The Parties agree to submit to the exclusive jurisdiction of the English courts in respect of any dispute arising out of or in connection with these Terms.

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24. DEFINITIONS & INTERPRETATION

In these Terms (except where the context otherwise requires) the following words shall have the following meanings:

Additional Services: those additional services selected by You as set out in an Order Form which may include Customisations as referred to in Clause 9.

Additional Services Agreement: refers to the agreement containing the terms relating to any Additional Services as well as a SOW that may be agreed between the Parties in respect of Additional Services from time to time.

Additional Services Fees: refers to the fees for the Additional Services set out in the Commercial Terms & Order Form as applicable.

Agreement: means all the documentation containing the provisions of the Agreement, namely the Commercial Terms & Order Form, the main body of these Terms and the Schedules, including any amendments to that documentation from time to time.

App Site: refers to the E-Nano Platform application at  https://oscar.e-nano.io/  and also refers to any future Virtual Private Cloud hosted version of the E-Nano Platform that may be created for the Client in order to host their instance of the E-Nano Platform at a unique App Site URL created specifically for the Client.

Authorised Representatives: refers to the Client Authorised Representative and the E-Nano Authorised Representative.

Authorised Users: those employees, agents and independent contractors of Client who are authorised by Client to access and use the E-Nano Services.

Business Day: any day which is not a Saturday, Sunday or public holiday in the UK.

Business Hours: means the hours of insert e.g. 09:00 to 17:00 GMT/BST on a Business Day.

Claim(s): means all demands, claims and liability (actual and consequential and direct and indirect and whether known and unknown, suspected and unsuspected, disclosed and undisclosed, criminal or civil, in contract, tort or otherwise) for all Losses including any other exenses of any nature whatsoever.

Client Account: refers to the online account accessible by way of a E-Nano Login.

Client Authorised Representative: as set out in the Commercial Terms & Order Form.

Client Intellectual Property: refers to the Client’s trademarks, business names and branding including and all other Intellectual Property Rights owned by the Client including the Intellectual Property Rights embodied in the Device Collected Data.

Commercial Terms & Order Form: means an online (or hard-copy) order form published (or made available) by E-Nano and completed by the Parties signed or otherwise agreed by or on behalf of each Party, in each case incorporating these Terms by reference.

Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 15.

Customers: refers to customers of E-Nano.

Customisations: means a customisation of the E-Nano Services, whether made through the development, configuration or integration of software, or otherwise.

Data Protection Legislation: means, as applicable to either Party:

(a) the General Data Protection Regulation 27 April 2016;

(b) the Data Protection Act 2018;

(c) the Privacy and Electronic Communications (EC Directive) Regulations 2003;

(d) any other applicable law relating to the Processing, privacy and/or use of Personal Data, as applicable to either Party;

(e) any laws which implement any such laws; and,

(f) any laws that replace, extend, re-enact, consolidate or amend any of the foregoing.

Device: the device as specified in the Commercial Terms & Order Form.

Device Collected Data: means, other than Device Processed Data, information, data and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Client, by and through the Device and /or Services from the Facility.

Device Price: means the price payable by the Client for the Device as set out in the Commercial Terms & Order Form.

Device Processed Data: means information, data and other content that is derived by E-Nano analysing and processing the Device Collected Data and/or the Client’s use of the Services.

Documentation: means the policies, procedures and/ or written instructions provided by E-Nano to Client including the E-Nano Software Subscription Package as described on the App Site.

Effective Date: means the date upon which the Parties execute an Order Form.

E-Nano Authorised Representative: as set out in the Commercial Terms & Order Form.

E-Nano Fees: includes one or more fees payable to E-Nano as set out in the Commercial Terms & Order Form and Clause 13.

E-Nano Intellectual Property: refers to all Intellectual Property Rights belonging to E-Nano and/or present on or in the App Site, including all Intellectual Property Rights embodied in the Device Processed Data and the Services and all of the text, images, trademarks, business names, domain names, E-Nano Software (including source code), media, other materials and other content within the same but excluding the Client Intellectual Property.

E-Nano Legal Policies: refers to the policies applicable to the App Site and the E-Nano Platform such as the Cookie Policy and the Privacy Policy as amended, superseded or replaced by E-Nano from time to time.

E-Nano Parties/ Party: includes E-Nano and its affiliated or related companies and subsidiaries and their respective joint ventures, successors, assigns, directors, sub-contractors, officers, employees and agents.

E-Nano Platform: refers to the platform managed by E-Nano and used by E-Nano to provide the E-Nano Services by way of the App Site inclusive of the E-Nano Software as applicable which is accessible via the App Site by way of the E-Nano Login including the application and database software, the system and server software used and the computer hardware on which that application, database, system and server software is installed.

E-Nano Services: the subscription based, hosted E-Nano Software as a service provided by E-Nano to Client via the E-Nano Platform under these Terms.

E-Nano Software: refers to all human readable, machine operable and all other forms of the proprietary software comprised at the E-Nano Platform which is provided to Client as software as a service as part of the E-Nano Services (incorporating all forms of any modifications made to it by E-Nano from time to time).

E-Nano Software Subscription Package: refers to the type of package purchased by Client as agreed in the Commercial Terms & Order Form.

E-Nano Subscriber: refers to a Client who has subscribed to the E-Nano Services.

Facility: the areas where the Device can be used as specified in the Commercial Terms & Order Form.

Force Majeure Event: any happening or event beyond the reasonable control of the Party concerned including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of E-Nano or any other party), failure of a utility service or transport or telecommunications network, 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 sub-contractors, any act of God including fire, flood, earthquake, windstorm or other natural disaster; war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions; terrorist attack, civil war, civil commotion or riots; nuclear, chemical or biological contamination or sonic boom; fire, explosion or accidental damage; extreme adverse weather conditions; mandatory compliance with any law (including a failure to grant any licence or consent needed or any change in the law or interpretation of the law) which results in a failure or delay in the performance of that Party’s obligations under this Agreement.

Initial Subscription Term: the initial term of these Terms as referred to in the Commercial Terms & Order Form.

Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

IT Consultancy Daily Rate: refers to the fees for the Additional Services set out in the Commercial Terms & Order Form as applicable.

Losses: claims, losses, demands, actions, third party claims, damages, costs (including court costs and legal fees), fines, liabilities, obligations, liens and expenses.

Maintenance Services: means the general maintenance of the E-Nano Platform and E-Nano Services, and the application of Updates and Upgrades.

Order Form: means part of the Commercial Terms & Order Form i.e. an online (or hard-copy) order form published (or made available) by E-Nano and completed by the Parties signed or otherwise agreed by or on behalf of each Party, in each case incorporating these Terms by reference.

Personal Data: as defined in the applicable Data Protection Legislation.

Processing: has the meaning given in applicable Data Protection Legislation from time to time (and related expressions, including Process, Processed and Processes shall be construed accordingly).

Renewal Subscription Term(s): refers to the renewal period(s).

SAMSSs: refers to the Service Availability, Maintenance and Support Services Terms set out in Schedule 2.

Set-Up Fee: means the fees payable for the Set-Up Services as set out in the Commercial Terms & Order Form as applicable.

Set-Up Services:  means the configuration, implementation and integration of the E-Nano Services in accordance with the Commercial Terms & Order Form as applicable.

Statement of Work or SOW: refers to the document containing the details and project specifications of any Additional Services pursuant to an Additional Services Agreement.

Subscriber Content: means all the data, works and materials uploaded to or stored on the E-Nano Platform by the Client, Authorised Users (or supplied by the Client to E-Nano for uploading to, transmission by or storage on the E-Nano Platform on the Client's behalf) or generated by the E-Nano Platform as a result of the use of the E-Nano Services by the Client (which may or may not constitute Personal Data).

Subscription Fees: the subscription fees payable by Client to E-Nano for use of the E-Nano Services.

Subscription Term: refers to the Initial Subscription Term together with any subsequent Renewal Subscription Terms.

Supervisory Authority/ Authorities: as defined in the applicable Data Protection Legislation.

Support Services: means support in relation to the use of, and the identification and resolution of errors in, the E-Nano Services, but shall not include the provision of training services.

Terms: refers to these E-Nano SaaS Subscriber Terms in this Schedule 1 as amended by E-Nano as its sole discretion from time to time.

Training Consultancy Daily Rate: refers to the fees for the Additional Services set out in the Commercial Terms & Order Form as applicable.

Update: means a hotfix, patch or minor version update to any E-Nano Platform software.

Upgrade: means a major version upgrade of any E-Nano Platform software.

Virtual Private Cloud: refers to a privately hosted instance of the E-Nano Platform that is support and maintained by E-Nano and accessible only by the Client at a unique App Site created solely for the use of the Client.

Virus: anything or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.

Warranty Period: means the warranty period for the Device as specified in clause 17. 8.​