MONIKA TERMS AND CONDITIONS
Activation date: the date on which the Software is activated through the entry of a licence key
Additional Services: any Preventative Maintenance, Corrective Maintenance and Emergency Maintenance of the Devices as set out in Clause 15 and/or any Excluded Maintenance performed by Monika and/or Software Enhancements which are not included under the SSP.
Additional Services Fees: the fees payable in consideration of the provision of any Additional Services, which shall be calculated at the Additional Services Rates.
Additional Services Rates: the rates set out in the Contract Details, or those rates that are amended from time to time in accordance with the terms of this agreement.
Annual Service and Calibration: full on-site Preventative Maintenance, Corrective Maintenance and calibration of sensors and temperature probes to standards set out in the Contract Details.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Comprehensive SSP: Monika services provided as part of the Premium SSP plus Annual Service and Calibration.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in the Contract.
Configuration Services: the configuration and related work referred to in Clause 9, to be performed by Monika to configure the Software so that the Software conforms to the Customer’s bespoke requirements as agreed by the parties.
Contract: the contract between Monika and the Customer in accordance with the Contract Details and these Conditions.
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
(a) on-site repairs and rectification to the function and connectivity of the Devices
(b) making any adjustments to the Devices; and
(c) replacing any parts or components of the Devices required to restore the Devices to Good Working Order
Customer Data: the data inputted by the Customer or Monika on the Customer’s behalf for the purpose of using the Software Services or facilitating the Customer’s use of the Software Services.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications).
Documentation: the document made available to the Customer by Monika online via www.monika.com or such other web address notified by Monika to the Customer from time to time which sets out a description of the Software Services and the user instructions for the Software Services.
Devices: Monika branded sensors, hubs, tablets and other devices supplied by Monika for use on site for collecting and processing the Customer Data and connecting to the Monika Cloud platform or the Customer server.
Effective date: the date of the Contract or the Contract revision
(a) any defects or faults of the Third Party Devices;
(b) use of the Devices with digital devices computer equipment or materials not supplied or approved in writing by Monika;
(c) any maintenance, alteration, modification or adjustment performed by persons other than Monika or its employees or agents unless approved by Monika;
(d) the Customer or a third party moving the Devices;
(e) the use of the Devices in breach of any of the provisions of the agreement under which the Devices were supplied;
(f) a failure, interruption or surge in the electrical power or its related infrastructure connected to the Devices;
(g) a failure or malfunction in the air conditioning or other environmental controls required for the normal operation of the Devices, or an error or omission in the correct use of that air conditioning or other environmental controls by the Customer; or
(h) the neglect or misuse of the Devices.
Excluded Maintenance: any maintenance services required to restore any malfunctioning or failed Devices to Good Working Order where the malfunction or failure results from or is caused by any of the Excluded Causes.
Good Working Order: the Devices operates in accordance with the Operating Manuals.
Hosting Services: the Monika Cloud Platform services that Monika provides to the Customer to enable access to the Customer Data and use of the Software Services, including hosting set-up and ongoing services, as described in Clause 8
Contract Period: the period set out in the Contract Details starting from the Effective Date and concluding with the Renewal Date
Installation: the installation of the Devices by Monika field engineers or Monika’s approved sub-contractors at the customer site.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, 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.
Lifetime parts warranty: Free of charge return and replacement of defective or failed Devices excluding Third Party Devices subject to the conditions set out in clauses 21.2 and 21.3
Monika Cloud Platform: secure multi-tenanted remote internet subscription virtual server on which the Customer Data is held.
Monthly Contract: A Contract where the Contract period is one month and where the Effective Date is the Activation date.
Normal Business Hours: 8.00 am to 5.30 pm local UK time, each Business Day.
Operating Manuals: all operating manuals, specifications and other manufacturer documentation relating to the Devices.
Premium SSP: Monika services provided as part of the Standard SSP plus Software Enhancements, Corrective Maintenance and Remote Technical Support.
a) testing that the Devices are functional; and
b) making any adjustments as may be required to ensure the Devices remain in Good Working Order, conducted as part of an Annual Service and Calibration.
Remote User Support: Telephone, email and web based assistance provided to operators of the software in its use for the purpose for which it was installed.
Remote Technical Support: Telephone, email and web based assistance provided to Customer IT and service technicians in relation to the functionality of the software.
Renewal Periods: each successive period after the Initial Period for which the Contract continues in place as set out in Clause 2.
Response Time: 72 hours
Site: the Customer site in respect of which a Software Subscription has been purchased and as detailed in the Contract Details.
Software: the software applications subscribed for as detailed in the Contract Details as part of the Software Services which can include MonikaGo, a basic application for small businesses or MonikaPrime a professional application that comprises three modules: Team Management, Equipment Management and Enterprise Management. The scope of these applications is set out on the Monika website www.monika.com. In certain
Software Subscriptions: the software subscriptions purchased by the Customer which entitle the Customer to access and use the Software Services and the Documentation as detailed in the Contract Details
Software Enhancements: additional features added to the software to enhance the software functionality
Software Services: the Software made available by Monika to the Customer under these Conditions.
SSP: the software and support package subscribed for by the Customer as detailed in the Contract Details.
Standard SSP: comprises the Software Subscription, Lifetime Parts Warranty and Remote User Support.
Term: the Contract Period together with all Renewal Periods as further detailed in clause 2.
Third Party Devices: Third party devices sourced and supplied by Monika included in the Devices such as devices for entering data and viewing reports and analytics.
UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
Virus: any thing 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.
(a) A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Contract. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Contract under that statute or statutory provision.
(b) any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
(c) any other expressions defined in these Conditions that are not defined above shall have the meaning set out in the Contract Details; and
(d) A reference to writing or written includes e-mail.
1.3 For the avoidance of doubt these Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
The Contract shall commence on the Effective Date and, unless otherwise terminated in accordance with these Conditions, shall continue for the Contract Period and, thereafter, the Contract shall be automatically renewed for successive periods of:
(a) if the Contract is not a Monthly Contract 12 months (each a Renewal Period), unless either party notifies the other party of termination, in writing, at least 90 days before the end of the Initial Period or any Renewal Period, in which case the Contract shall terminate upon the expiry of the applicable Initial Period or Renewal Period.
(b) If the contract is a Monthly Contract 1 month unless either party notifies the other party of termination, in writing, at least 30 days before the end of any month, in which case the Contract shall terminate upon the expiry of the applicable month.
3. Software Subscriptions
3.1 Subject to these Conditions, Monika hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sub licences, to use the Software Services and the Documentation during the Term solely for the Customer’s internal business operations.
3.2 The Customer undertakes that:
(a) it will not allow or suffer any Software Subscription to be used by anyone other than the Customer’s personnel or the personnel of any supplier or contractor authorised by Customer who has a reasonable need to access the data; and
(b) it shall permit Monika or Monika’s designated auditor to audit the Software Services in order to establish Monika’s data processing facilities to audit compliance with these Conditions. Each such audit may be conducted no more than once per quarter, at Monika’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business.
3.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property;
and Monika reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
3.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Software Services and Documentation in order to build a product or service which competes with the Software Services and/or the Documentation; or
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software Services and/or Documentation available to any third party, or
(d) attempt to obtain, or assist third parties in obtaining, access to the Software Services and/or Documentation, other than as provided under this clause 3.
3.5 The rights provided under this clause 3 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
4. Software Services
Monika shall use commercially reasonable endeavours to make the Software Services available 24 hours a day, seven days a week, except during:
(a) planned maintenance and Software enhancements carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
(b) un-scheduled maintenance performed outside Normal Business Hours, provided that Monika has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
5. Customer data
5.1 The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.
5.2 The Customer grants to Monika a non-exclusive, personal, perpetual royalty-free licence to use the Customer Data, that is not personal data, and any other data generated as a result of the Software Services for its own business purposes and if in anonymised form in any way it wishes.
5.3 Monika shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party.
6. Monika’s obligations
6.1 Monika undertakes that the Software Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Software Services contrary to Monika’s instructions, or modification or alteration of the Software Services by any party other than Monika or Monika’s duly authorised contractors or agents. If the Software Services do not conform with the foregoing undertaking, Monika will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding the foregoing, Monika:
(a) does not warrant that the Customer’s use of the Software Services will be uninterrupted or error-free; or that the Software Services, Documentation and/or the information obtained by the Customer through the Software Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Software Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7. Customer’s obligations
The Customer shall:
(a) provide Monika with:
(i) all necessary co-operation in relation to the Contract; and
(ii) all necessary access to such information as may be required by Monika;
in order to provide the Software Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under the Contract, comply with all applicable laws and regulations with respect to its activities under the Contract;
(c) carry out all other Customer responsibilities set out in these Conditions in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, Monika may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that it uses the Software Services and the Documentation in accordance with these Conditions and shall be responsible for any breach of these Conditions by its personnel;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for Monika, its contractors and agents to perform their obligations under these Conditions, including without limitation the Software Services;
(f) ensure that its network and systems comply with the relevant specifications provided by Monika from time to time; and
(g) to the extent permitted by law, the Customer will be solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to Monika’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
8. Hosting Services
8.1 If the Customer additionally purchases Hosting Services Monika will establish and manage the Hosting Services for the Customer on its remote Monika Cloud Platform where it will hold the Customer Data to enable the Customer to access and use the Software Services.
8.2 Monika will manage the Customer Data and will provide continuous availability, security, scalability, load distribution, mirroring, recovery release management, change control and general housekeeping under the Hosting Services. The costs of providing these Hosting Services is included the Software Subscription where provided under the Contract Details.
8.3 Monika shall provide release management and change control services to ensure that storage, operating system software and utility and application software are audited and logged, and that new releases, patch releases and other new versions are implemented as deemed necessary by Monika to maintain the Hosting Services.
8.5 Where set out in the Contract Details, Monika will provide cellular data connectivity from the Site to the Monika Cloud Platform. This connectivity will be established through a SIM enabled Monika Hub or Gateway which will provide wireless connectivity to the Devices. Certain Devices are also SIM enabled to provide direct connectivity to the Monika Cloud Platform as required. The cellular data costs are included the Software Subscription.
8.7 Where the Customer elects to provide its own internet connection to the Monika Cloud Platform or where it elects to host its own data on its own server or servers the Customer must provide robust, pervasive and continuous Wi-Fi and/or wired Ethernet connections to Devices as appropriate to the Site infrastructure and the specifications of the Devices.
8.8 Where the Customer elects to host its own data on its own server or servers the Customer shall manage its own hosting services but will provide Monika with ongoing, continuous and unhindered but secure privileged remote access to enable Monika to provide the Software Services including deployment of new releases, patch releases and other new versions through the internet as deemed necessary by Monika. Monika will not be responsible for any security breach, cyber-attack or any misuse of the Customer’s data that may eventuate directly or indirectly as a consequence of this remote access provision.
9. Configuration Services
9.1 The Software is delivered to the Customer with default system parameters that represent typical safe equipment operating limits, task instructions, task schedules and other variables. This enables the Devices to be configured and the Software to be deployed for testing purposes only. It is the Customer’s responsibility to edit and configure the software settings based on its own risk and hazard profile and operating routines and procedures relevant to the processes carried out by the Customer at the Site.
9.2 Where set out in the Contract Details Monika will perform the Configuration Services which include editing and configuring the Software according to the set-up procedure included in the Documentation for applying the required processes, safety limits and other variables as provided by the Customer. This assistance will in no circumstances be construed as advice as to the appropriate safety or other variables set up within the Software which is the total responsibility of the Customer and for which Monika will in no case be held liable by the Customer for any consequences to the Customer or any third party of inappropriate or unsafe configuration of the Software.
9.3 Within five days of completion of the Configuration Services and Monika’s delivery to the Customer of the Software, the Customer shall review the Software to confirm that it functions in material conformance with its requirements. If the Software fails in any material respect to conform, the Customer shall give Monika a detailed description of any such non-conformance (Error), in writing, within the five-day review period.
9.4 With respect to any Errors contained in the Software delivered to the Customer during the Configuration Services, Monika shall use reasonable endeavours to correct any such Error within a reasonable time and, on completion, submit the corrected Software to the Customer.
9.5 If the Customer does not provide any written comments in the five-day period described above, or if the Software is found to conform, the Software shall be deemed accepted.
10.1 Where Training is included in the Contract Details Monika will provide the Customer with training on how to operate the Software as configured for or by the Customer. The Training will be delivered on site or remotely as agreed in the Contract Details.
10.2 Monika will provide on-line, digital and printed training aids and Software operating instructions as part of the Training as appropriate to the circumstances.
10.3 The Customer will provide Monika with details of those of its staff to be trained and provide times and dates for delivery of the training to enable it to be scheduled for delivery by Monika within 30 days of the Effective Date. Should there be a requirement to repeat or re-schedule the training due to the non-availability of the appropriate staff on the scheduled date there will be a further charge to the Customer equivalent to that provided for in the One-off Costs.
11.1 The Customer shall defend, indemnify and hold harmless Monika against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Software Services and/or Documentation, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) Monika provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
11.2 Monika shall defend the Customer, its officers, directors and employees against any claim that the Software Services or Documentation infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) Monika is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to Monika in the defence and settlement of such claim, at Monika’s expense; and
(c) Monika is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim, Monika may procure the right for the Customer to continue using the Software Services, replace or modify the Software Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Contract on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
11.4 Under no circumstances shall Monika, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Software Services or Documentation by anyone other than Monika; or
(b) the Customer’s use of the Software Services or Documentation in a manner contrary to the instructions given to the Customer by Monika; or
(c) the Customer’s use of the Software Services or Documentation after notice of the alleged or actual infringement from Monika or any appropriate authority.
11.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and Monika’s (including Monika’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. The Devices
12.1 Any samples, drawings, descriptive matter, or advertising produced by Monika and any illustrations contained in Monika’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Devices described in them. They shall not form part of the Contract or have any contractual force.
12.2 Monika reserves the right to amend the specification of the Devices if required by any applicable statutory or regulatory requirements.
13. Delivery of the Devices
13.1 If the Customer purchases the Devices as a One-off Cost under the Contract Details Monika shall ensure that:
(a) delivery of Devices is accompanied by a delivery note which shows the contract number, the type and quantity of Devices and special storage instructions (if any); and
(b) if Monika requires the Customer to return any packaging materials to Monika, that fact is clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as Monika shall reasonably request. Returns of packaging materials shall be at Monika’s expense.
13.2 Monika shall endeavour to deliver Devices to the Delivery Location on the relevant Delivery Date. The Devices may be delivered by Monika in advance of the quoted delivery date on giving reasonable notice to the Customer.
13.3 Delivery is completed on the completion of unloading of the Devices at the Delivery Location.
13.4 Delivery Dates are approximate only, and the time of delivery is not of the essence. Monika shall not be liable for any delay in delivery of any Devices that is caused by:
(a) An event described in clause 29; or
(b) the Customer’s failure to provide Monika with adequate delivery instructions or any other instructions that are relevant to the supply of the Devices.
13.5 If Monika fails to deliver Devices by the relevant Delivery Date, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement devices of similar description and quality in the cheapest market available, less the Price of the Devices. Monika shall have no liability for any failure to deliver Devices to the extent that such failure is caused by the Customer’s failure to provide Monika with adequate delivery instructions or any other instructions that are relevant to the supply of the Devices.
13.6 If 10 Business Days after the day on which Monika attempted to make delivery of Devices the Customer has not taken delivery of those Devices, Monika may resell or otherwise dispose of part or all of the Devices and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Devices, or charge the Customer for any shortfall below the price of the Devices.
13.7 If the Devices are purchased from a Monika authorised dealer or any other supplier Monika’s obligations under this Clause 13 will not apply
14. Devices Installation
14.1 If Monika is responsible for the installation of the Devices to be installed at the Delivery Location, as detailed in the Contract Details, Monika shall install the Devices on the Delivery Date.
14.2 The Customer shall be responsible (at the Customer’s cost) for preparing the Delivery Location for the delivery of the Devices and for the provision of all necessary access and facilities reasonably required to deliver and install the Devices. If Monika is prevented from carrying out delivery or installation on the Delivery Date because no such preparation has been carried out, Monika may levy additional charges to recover its loss arising from this event.
14.3 Devices Installation will include:
(a) Fitting battery or mains powered sensors and transmitters to the Customer’s host appliances and plant control panels as appropriate including wiring connections to mains powered items.
(b) Mounting recharge stations for Monika tablet and wireless probing devices with power connections to be provided by the Customer
(c) Mounting Monika Gateways Hubs and Signal Repeaters with power, power over Ethernet, Ethernet and internet connections to be provided by the Customer as appropriate
(d) Fitting other Devices as detailed in the Contract Details
15. SSP and Additional Services
15.1 During the Term, Monika will provide the Customer with the SSP services.
15.2 If the Customer requests Additional Services which are not included under the SSP for which the Customer has subscribed then the Customer will be charged at the Additional Services Rates.
15.3 Monika shall attend the Site to perform Preventative Maintenance of the Devices during Normal Business Hours as part of an Annual Service and Calibration where this is subscribed for under a System Support Package (SSP) and at such other times as is reasonably determined by Monika.
15.4 The Annual Service and Calibration will be completed within the month prior to each anniversary of the Effective Date.
15.5 Where a service and calibration is necessary more frequently than once annually to comply with relevant regulations, this will be subject to an additional charge at the Additional Services Rate.
15.6 If the Customer does not subscribe for a Comprehensive SSP it is the responsibility of the Customer to ensure that calibration is conducted to the frequency, level of accuracy, professional third party verification and requirements for traceability to UKAS and other relevant statutory or regulatory standards appropriate to the use of the Software Services
15.7 Monika cannot be held liable for any consequences of the use by the Customer of the Devices and the Software Services where calibration has not been carried out in accordance with this clause 15.
15.8 Where Corrective Maintenance:
(a) is included under a SSP, on the Customer informing Monika that Devices are malfunctioning or have failed or are otherwise not in Good Working Order, Monika shall:
(i) Use all reasonable endeavours to attend at the Site during Normal Business Hours within the relevant Response Time; and
(ii) Use all reasonable endeavours to perform Corrective Maintenance of the Devices within a time proportionate to the severity of the malfunction or failure and amount of rectification work required.
(b) is not included under a SSP Monika will at the Customer’s request perform the Additional Services at an attendance time suitable to Monika and charged at the Additional Services Rates for each of Monika’s personnel reasonably required to attend the Site. The Additional Services Fees shall be calculated from when the personnel arrive at the Site and until they leave the Site.
15.9 In performing the SSP and/or Additional Services, Monika shall use all reasonable endeavours to restore any malfunctioning or failed Devices to Good Working Order while in attendance at the Site. Where this is not reasonably practicable, or not reasonably practicable within Normal Business Hours (in the case of Preventative Maintenance and Corrective Maintenance), Monika shall either arrange for a further visit to the Site within Normal Business Hours to complete the repair, or remove the Devices or part of the Devices for repair off-site.
15.10 Software Enhancements developed for the Customer will remain Monika’s intellectual property and will at Monika’s discretion become part of the Software Subscriptions made available to the Customer.
16. Replacements and Spare Parts
16.1 In performing the SSP and/or the Additional Services, Monika shall use all reasonable endeavours to source spare parts required to restore the Devices to Good Working Order. Monika shall have the right to charge the Customer for the spare parts unless the Customer has subscribed for a Lifetime Parts Warranty under a SSP.
16.2 All spare parts and/or replacements provided by Monika to the Customer shall become part of the Devices and the property of the Customer. All parts and components removed from the Devices by Monika in the course of performing the SSP and/or the Additional Services shall no longer constitute part of the Devices and will be the property of Monika.
17. Monika’s Installation and Maintenance Obligations
17.1 Monika shall procure that its personnel shall, while on site at the Site, comply with the Customer’s reasonable health and safety and security policies provided that these policies have been brought to the attention of its personnel.
18. Customer’s Installation and Maintenance obligations
18.1 The Customer shall:
(a) ensure that the Devices held awaiting installation or replacement are kept in suitable premises and under suitable conditions
(b) notify Monika promptly if the Devices are discovered to be operating incorrectly;
(c) at all reasonable times permit full and free access to the Site and to the Devices to Monika, its employees, contractors and agents, and provide them with adequate and safe working space, and any telecommunications facilities as are reasonably required to enable Monika to perform the SSP and/or Additional Services while at the Site;
(d) provide Monika with any information that is reasonably requested in the performance of the SSP and/or the Additional Services;
(e) take any steps reasonably necessary to ensure the safety of Monika’s personnel when attending the Site;
(f) not allow any person other than Monika to maintain, alter, modify or adjust the Devices without the prior written approval of Monika;
(g) not move the Devices from the Site without the prior written approval of Monika (approval not to be unreasonably withheld or delayed);
19. Excluded Maintenance
19.1 Monika is not obliged to perform any Excluded Maintenance.
19.2 Where Monika performs or has performed the Additional Services in circumstances where it is established that the Devices were not in Good Working Order due to any of the Excluded Causes, Monika may charge, and the Customer shall pay, the Additional Services Fees in respect of that work.
20. Monika’s Warranties
20.1 Monika represents and warrants to the Customer that the SSP and the Additional Services shall be performed:
(a) by an appropriate number of suitably qualified and experienced personnel;
(b) using all reasonable skill and care; and
(c) in accordance with all applicable laws and regulations in force from time to time.
21. Quality and fitness for purpose
21.1 Monika warrants that, for a period of 12 months from the date of delivery (warranty period), the Devices shall:
(a) conform in all material respects with their description;
(b) be free from material defects in design, material and workmanship; and
(c) be of satisfactory quality (within the meaning of the Sale of Equipment Act 1979); and
(d) be fit for any purpose held out by Monika.
21.2 Subject to clause 21.3, if:
(a) the Customer gives notice in writing to Monika during the warranty period, within 7 Business Days of discovery that some or all of the Devices do not comply with the warranties set out in clause 21.1;
(b) Monika is given a reasonable opportunity of examining such Devices; and
(c) the Customer (if asked to do so by Monika) returns such Devices to Monika’s place of business at the Customer’s cost,
Monika shall, at its option, repair or replace any Devices that are found to be defective, or refund the price of such defective Devices in full.
21.3 Monika shall not be liable for Devices’ failure to comply with the warranties set out in clause 21.1 if:
(a) the Customer makes any further use of such Devices after giving notice of defects in accordance with clause 21.2;
(b) the defect arises because the Customer failed to follow Monika’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Devices or (if there are none) good trade practice regarding the same;
(c) the Customer alters or repairs such Devices without the written consent of Monika;
(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
(e) the Devices differ from their description as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
(f) the Devices are Third Party Devices, in which case the manufacturer’s warranty will apply in lieu of the warranties set out in this clause 21 and Monika will have no liability for these Devices under this clause.
21.4 Monika’s only liability to the Customer if the Devices fail to comply with the warranties set out in clause 21.1 is as set out in this clause 21.
21.5 The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
22. Title and risk
22.1 Risk in Devices shall pass to the Customer on completion of unloading the Devices at the Delivery Location.
22.2 Title to Devices shall only pass to the Customer once Monika receives payment in full (in cash or cleared funds) for them.
22.3 Until title to the Devices has passed to the Customer, the Customer shall:
(a) store the Devices separately from all other Devices held by the Customer so that they remain readily identifiable as Monika’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Devices;
(c) maintain the Devices in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify Monika immediately if it becomes subject to any of the events listed in clause 28.1(c) of the Conditions; and
(e) give Monika such information relating to the Devices as Monika may require from time to time.
22.4 Monika may recover Devices in which title has not passed to the Customer. The Customer irrevocably licenses Monika, its officers, employees and agents, to enter any premises of the Customer (including with vehicles) and to recover any Devices in which property has not passed to the Customer.
23. Price and payment
23.1 The Customer shall pay the Subscription Costs and the One-off Costs plus VAT at the prevailing rate in accordance with this clause 23.
23.2 The Customer shall prior to or on the Effective Date provide to Monika valid, up-to-date and complete credit card details, direct debit bank account details or approved purchase order information acceptable to Monika and any other relevant valid, up-to-date and complete contact and billing details and, if the Customer provides:
(a) its credit card details to Monika, the Customer hereby authorises Monika to bill such credit card on the first day of each year, quarter or month for the payment of the Subscription Costs as specified in the Contract Details.
(b) its direct debit bank account details to Monika, the Customer hereby authorises Monika to transfer from such bank account on the first day of each year, quarter or month for the payment of Subscription Costs as specified in the Contract Details.
(c) its approved purchase order information to Monika, Monika shall invoice the Customer on the first day of each year, quarter or month for the payment of Subscription Costs as specified in the Contract Details.
23.3 Where the Contract is completed online Monika shall collect the One-off Costs from the Customer by credit card or direct debit on the date of the online transaction. Alternatively, Monika may issue a pro forma invoice for the One-off Costs on the date this Contract is entered into and may request a deposit for an amount up to the One-off Cost as may be determined by Monika.
23.4 Monika may invoice the Customer for One-off Costs on or at any time after Monika has informed the Customer it is ready and willing to deliver the Devices with payment terms for any balance not covered by a deposit under clause 23.3 as may be determined by Monika.
23.5 The Price for the Devices excludes the costs of packaging, insurance and transport of the Devices, which shall be invoiced to the Customer in addition.
23.6 Monika may invoice the Customer for any Additional Service Fees on completion of the Additional Services and payment shall be due and payable within 30 days of receipt of a valid invoice from Monika. Any charges for spare parts shall be due within 30 days of receipt of a valid invoice from Monika.
23.7 Monika shall ensure that all invoices includes the Contract Number, Monika’s VAT registration number, and any supporting documentation that the Customer may reasonably require.
23.8 The Customer shall pay invoices in full in cleared funds within 30 Business Days of the invoice date. Payment shall be made to the bank account nominated in writing by Monika.
23.9 If Monika has not received any payment due on the due date, and without prejudice to any other rights and remedies of Monika:
(a) Monika may, without liability to the Customer, disable the Customer’s access to all or part of the Software Services and Monika shall be under no obligation to provide any or all of the Software Services or any other services to be performed under the Contract while the payment(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate Barclay’s Bank from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
23.10 All amounts and fees stated or referred to in the Contract:
(a) shall be payable in pounds sterling;
(b) are non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to Monika’s invoice(s) at the appropriate rate.
23.11 Monika shall be entitled to increase the Subscription Costs upon 30 days’ prior notice to the Customer and the Contract Details shall be deemed to have been amended accordingly:
(a) if the Contract is not a Monthly Contract at the start of each Renewal Period.
(b) if the Contract is a Monthly Contract on each anniversary of the Activation Date
23.13 When calculating an increase to the Subscription Costs Monika shall take into account cost increases in providing the Software Services to the Customer
23.14 The Customer shall pay all amounts due in full without set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). Monika may at any time, without limiting any of its other rights or remedies, set off any amount owing to it against any amount payable by Monika to the Customer.
24. Intellectual Property Rights
24.1 The Customer acknowledges that all Intellectual Property Rights used by or subsisting in the Devices are and shall remain the sole property of Monika or (as the case may be) third party rights, owner.
24.2 The Customer acknowledges and agrees that Monika and/or its licensors own all Intellectual Property Rights in the Software Services and the Documentation.
24.3 Except as expressly stated herein, these Conditions do not grant the Customer any rights to, under or in, any Intellectual Property Rights or any other rights or licences in respect of the Devices, Software Services or the Documentation.
25.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under the Contract. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
25.2 The Customer acknowledges that details of the Software Services, and the results of any performance tests of the Software Services, constitute Monika’s Confidential Information.
25.3 Monika acknowledges that the Customer Data is the Confidential Information of the Customer.
25.4 Subject to clause 25.6, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of the Contract.
25.5 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of these Conditions.
25.6 A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 25.6, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
25.7 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
25.8 No party shall make, or permit any person to make, any public announcement concerning the Contract without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
25.9 The above provisions of this clause 25 shall survive termination of the Contract, however arising.
26. Data Protection Legislation
26.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 26 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
26.2 The parties acknowledge that if Monika processes any personal data on the Customer’s behalf when performing its obligations under the Contract, the Customer is the controller and Monika is the processor for the purposes of the Data Protection Legislation.
26.3 Without prejudice to the generality of clause 26.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Monika for the duration and purposes of the Contract so that Monika may lawfully use, process and transfer the personal data in accordance with the Contract on the Customer’s behalf.
26.4 Without prejudice to the generality of clause 26.1, Monika shall, in relation to any personal data processed in connection with the performance by Monika of its obligations under the Contract:
(a) process that personal data only on the documented written instructions of the Customer unless Monika is required by any applicable laws to process personal data;
(b) not transfer any personal data outside of the European Economic Area;
(c) assist the Customer, at the Customer’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(d) notify the Customer without undue delay on becoming aware of a personal data breach;
(e) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Contract unless required by applicable law to store the personal data; and
(f) maintain complete and accurate records and information to demonstrate its compliance with this clause 28 and immediately inform the Customer if, in the opinion of Monika, an instruction infringes the Data Protection Legislation.
26.5 Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected in accordance with the Data Protection Legislation.
26.6 The Customer consents to Monika appointing third-party processors of personal data under this Contract. Monika confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 26. As between the Customer and Monika, Monika shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 26.
27. Limitation of Liability
27.1 Nothing in the Contract excludes the liability of Monika:
(a) for death or personal injury caused by Monika’s negligence; or
(b) for fraud or fraudulent misrepresentation.
27.2 Except as expressly and specifically provided in the Contract:
(a) the Customer assumes sole responsibility for results obtained from the use of the Software Services and the Documentation by the Customer, and for conclusions drawn from such use. Monika shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Monika by the Customer in connection with the Software Services, or any actions taken by Monika at the Customer’s direction;
(b) 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 the Contract; and
(c) the Software Services and the Documentation are provided to the Customer on an “as is” basis.
27.3 Subject to clause 27.1:
(a) Monika shall not be liable whether in tort (including for negligence or breach of statutory duty), 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 the Contract; and
(b) Monika’s total aggregate liability in contract (including in respect of any indemnity), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of its obligations under the Contract shall be limited to the greater of total fees paid by the Customer to Monika under the Contract during the 12 months immediately preceding the date on which the claim arose or any sums recoverable by Monika under any insurance policy it has in place.
(c) and except as expressly stated in this agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise (including satisfactory quality, fitness for purpose and suitability) are hereby excluded to the fullest extent permitted by law.
28.1 Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under the Contract 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 other party commits a material breach of any other term of the Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
(c) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(d) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(e) there is a change of control of the other party.
28.2 If the Customer cancels the contract prior to the Effective Date the Customer will be liable for payment of 30% of the One-off Costs or the amount of any deposit paid under Clause 23.3 whichever is the greater.
28.3 On termination of the Contract for any reason
(a) all licences granted under these Conditions shall immediately terminate and the Customer shall immediately cease all use of the Software Services and/or the Documentation;
(b) each party shall return and make no further use of any Devices, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) Monika may destroy or otherwise dispose of any of the Customer Data in its possession, unless Monika receives, no later than ten days after the effective date of the termination of this Contract, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. Monika shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Monika in returning or disposing of Customer Data;
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced.
29. Force majeure
Monika shall have no liability to the Customer under the Contract if it is prevented from or delayed in performing its obligations, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of Monika or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
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.
32. Rights and remedies
Except as expressly provided in the Contract, the rights and remedies provided under the Contract are in addition to, and not exclusive of, any rights or remedies provided by law.
33.1 If any provision or part-provision of the Contract 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 the Contract.
33.2 If any provision or part-provision of the Contract is deemed deleted under clause 33.1 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.
34. Entire agreement
34.1 This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
34.2 Each party acknowledges it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Contract.
34.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Contract.
35.1 The Customer shall not, without the prior written consent of Monika, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
35.2 Monika may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
36. No partnership or agency
Nothing in this Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
37. Third party rights
This Contract does not confer any rights on any person or party (other than the parties to the Contract and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
38.1 Any notice required to be given under this shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in the Contract Details or such other address as may have been notified by that party for such purposes.
38.2 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). 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. A notice sent by email shall be deemed to have been received at the time of transmission.
38.3 The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
39. Governing law
This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).
You can access former terms and conditions here: https://www.monika.com/monika-terms-conditions-previous/