Terms & Conditions

GENER8 SPACES LIMITED – MASTER TERMS AND CONDITIONS  

1. Definitions and Interpretation 

1. In these Terms, the following definitions apply:  

Affected Party: has the meaning given to it in clause 10.1. 

Agreement: the contract between Gener8 and the Customer for the Solution, incorporating these Terms and the Proposal. 

Applicable Laws: all applicable laws, statutes and regulations and codes from time to time in force. 

Authorised User: means those individuals that are authorised to use the Software on behalf of the Customer in accordance with Schedule 2. 

Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business. 

Business Hours: means the hours between 09:00 and 17:00 on a Business Day. 

Cancellation Fee: means 10% of the Charges, as incurred in accordance with clause 2.7.  

Charges: the fees payable for the Solution and such other fees payable by the Customer in accordance with these Terms, as particularised further in the applicable Schedules, or the Proposal (as the case may be). 

Commencement Date: has the meaning given to it in clause 2.4.  

Confidential Information: means any and all confidential information (whether in oral, written or electronic form) imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, Intellectual Property Rights, assets, strategy, services, software, products, solutions and customers, including without limitation information relating to manufacturing or other processes, management, financial, marketing, technical and other arrangements or operations of any person, firm, or organisation associated with that party. In the case of Gener8, source and object code relating to the Software shall be its Confidential Information for the purposes of this definition.  

Customer: the person or firm to whom or which Gener8 wishes to provide the Solution, and which wishes to purchase the Solution from Gener8 in accordance with the Proposal.  

Customer Default: has the meaning given to it in clause 3.3. 

Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR (as defined in section 3(10) (as supplemented by section 205(4)) of the DPA 2018; the DPA 2018 (and all regulations made thereunder); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended 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); and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party. 

Dispute: has the meaning given in clause 19. 

Dispute Notice: has the meaning given in clause 19(a). 

Documentation: the Operating Manuals, user instruction manuals, technical literature and all other related materials supplied by Gener8 in connection with the Solution (or any element thereof). 

DPA 2018: the Data Protection Act 2018. 

Equipment: the hardware and such equipment (or any part of them) set out in the Proposal and particularised further within any applicable Specification, subject of the Solution. 

Force Majeure Event: means events, circumstances or causes beyond a party’s reasonable control including but not limited to, Acts of God, flood, drought, earthquake or other natural disaster, terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo or breaking off of diplomatic relations, nuclear, chemical, biological contamination or sonic boom, epidemic or pandemic or similar event, any law guidance restriction or other action taken by a Government or a public authority including without limitation imposing an export or import restriction quota or prohibition, the collapse of buildings, fire, explosion or accident, or failure of telecommunications, utilities or any supplier, subcontractor or third-party service provider. 

Gener8: means Gener8 Spaces Limited incorporated and registered in England and Wales with company number 08901944 whose registered office is at Suite 4L Ribble Court Shuttleworth Mead Business Park, Padiham, Burnley, Lancashire, BB12 7NG. 

ICC: has the meaning given to it in clause 19(d).  

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 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. 

Loss: means actions, awards, charges, claims, compensation, costs, damages, demands, expenses, fees, fines, interest, liabilities, losses, penalties, proceedings and settlements, and Losses shall be construed accordingly.  

Normal Business Hours: 9:00 am to 5:00 pm GMT on a Business Day.    

Operating Manuals: all operating manuals, literature and specifications relating to the Solution which are provided to the Customer by Gener8. 

Order: means the Customer’s written Purchase Order for the Solution (in whatever form this may be and which shall for the avoidance of doubt includes email), raised in response to the Proposal and in accordance with clause 2 below.  

Order Period: has the meaning given to it in clause 2.2. 

Order Confirmation: means Gener8’s written acceptance of the Order. 

Privacy Policy: [INSERT LINK].  

Promotional Materials: Gener8’s catalogues, brochures, websites or such other applicable sales or promotional literature, materials or publications. 

Proposal: means Gener8’s proposal (whether in writing or given orally) to provide the Solution to the Customer, which is based on the Specification. 

Site: means the site subject to the Solution, as set out in the Proposal. 

Specification: any specification for the Solution, including any related plans and drawings, as set out in the Proposal, or as otherwise agreed by the Customer and Gener8 in writing.   

Software: the touch capable software set out in the Proposal (as the case may be) and particularised further within any applicable Specification, being subject of the Solution. 

Solution: the immersive learning space comprising of the Equipment and Software to be delivered by Gener8 to the Customer in accordance with these Terms, together with the Support Services and any applicable Creative Content Services, each as defined and particularised further in the applicable Schedules.  

Transfer: has the meaning given to it in clause 11.1. 

VAT: value added tax chargeable in the UK.  

2. In these Terms, the following rules of interpretation apply:  

3. a person includes a natural person, corporate or unincorporated body (whether or not having a separate legal personality); 

4. a reference to a party includes its personal representatives, successors and permitted assigns; 

5. a reference to legislation or legislative provision: 

6. is a reference to it as amended or re-enacted; and  

7. shall include all subordinate legislation made under that legislation or legislative provision from time-to-time;  

8. any words following the terms including, include or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms; 

9. a reference to writing or written includes email but not fax; 

10. the Schedules form part of these Terms and shall have effect as if set out in full in the body of these Terms; 

11. any reference to these Terms includes the Schedules; 

12. references to clauses and Schedules are to the clauses and Schedules of these Terms and references to paragraphs are to paragraphs of the relevant Schedule in which they appear; and 

13. any party shall include that party’s personal representatives, successors and permitted assigns. 

14. If there is any ambiguity, conflict or inconsistency in or between the documents comprising the Agreement, the priority of the documents shall be in accordance with the following sequence: 

15. the Proposal; 

16. the Terms. 

2. Commencement and duration 

1. These Terms apply to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. 

2. The Proposal shall remain valid for a period of 20 Business Days from the date specified on it (Order Period). Where the Customer accepts the position within the Proposal, it shall be required to raise an Order during the Order Period. 

3. The Order consists an offer by the Customer to purchase the Solution in accordance with these Terms. The Customer is responsible for ensuring that the terms of the Proposal and the Order (and any applicable Specification) are complete and accurate in every respect.  

4. Gener8 may accept or reject the Order at its absolute discretion and for any reason whatsoever. The Order shall only be deemed to be accepted at the earlier of when Gener8: 

5. commences with the supply of the Solution; or 

6. issues a written Order Confirmation, 

at which point the Agreement shall come into existence (Commencement Date).  

7. The Agreement shall commencement on the Commencement Date and shall remain in force in accordance with the applicable Schedule(s).  

8. Gener8 reserves the right to amend the Specification: 

9.  if required by Applicable Laws; or 

10. If the amendment will not materially affect the nature or quality of the Solution, 

and Gener8 shall notify the Customer in any such event. 

11. If, within 21 days from the Commencement Date, the Customer proposes to cancel the Agreement, it shall do so by notifying Gener8 in writing (which it may accept or reject at its absolute discretion). Any cancellations made by the Customer and accepted by Gener8 under this clause 2.7 shall be subject to a Cancellation Fee payable by the Customer to Gener8, together with any reasonable administrative cost to compensate it for expenses incurred.  

12. Any samples, drawings, descriptive matter or advertising produced by Gener8 and any descriptions or illustrations contained in the Promotional Materials are produced for the sole purpose of giving an approximate idea of the element of the Solution referred to therein (each to the extent applicable). They shall not form part of the Agreement nor have any contractual force. 

3. general obligations of the customer – special attention is drawn to this clause 

1. The Customer is responsible for ensuring and warrants that the terms of the Proposal and any applicable Specification in connection with the Solution are complete, accurate and suited to the Customer’s intended purpose. 

2. The Customer shall: 

3. fully co-operate with Gener8 in connection with any and all reasonable requests connected with the Solution and these Terms;  

4. provide Gener8 and all of its employees, contractors and agents with adequate, safe and unobstructed access to, egress from and movement around the Site and any telecommunications facilities as are reasonably required by Gener8 in order for the Solution (or relevant part thereof) to be provided; 

5. provide Gener8 in a timely manner with any information reasonably required by Gener8 from time-to-time in connection with the performance of its obligations under these Terms;  

6. obtain and maintain all necessary licences, consents, authorisations and permissions as are required to enable Gener8 to perform its obligations in respect of the Solution, in all cases prior to their commencement in accordance with the applicable Schedule; and 

7. comply with all Applicable Laws to enable Gener8 to perform its obligations in respect of the Solution.  

8. If Gener8’s performance of any of its obligations under these Terms is prevented or delayed by any act or omission by the Customer or any failure by the Customer to perform any relevant obligation (Customer Default): 

9. without limiting or affecting any other right or remedy available to it, Gener8 shall have the right to suspend performance of the Solution (whether or not directly affected by the Customer Default) until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations under these Terms; 

10. Gener8 shall not be liable for any Losses suffered or incurred by the Customer arising directly or indirectly from Gener8’s failure or delay to perform any of its obligations under these Terms; and 

11. the Customer shall reimburse Gener8 on written demand for any Losses sustained or incurred by Gener8 arising directly or indirectly from the Default. 

4. Charges and payment – special attention is drawn to this clause 

1. The Charges payable under these Terms shall be as set out in the Proposal.  

2. The Customer shall pay all Charges due to Gener8 in accordance with the payment terms detailed in the Proposal or, if no such terms are specified, the charges shall be payable as follows:  

3. 50% of the Charges shall be payable by the Customer on formation of the Agreement in accordance with clause 2.4;  

4. the remaining 50% of the Charges shall be payable by the Customer the Customer on the completion of the installation and commissioning of the Equipment in accordance with paragraph 4.4 of Schedule 1.   

5. Any invoice submitted by Gener8 to the Customer shall be payable within twenty eight (28) days of the date of the invoice to which those Charges relate. 

6. Time for payment of the Charges shall be of the essence.  

7. The Charges are exclusive of amounts in respect of VAT. The Customer shall on receipt of a valid VAT invoice from Gener8, pay to Gener8 such additional amounts in respect of VAT as are chargeable in connection with the Solution.  

8. If the Customer fails to make any payment due to Gener8 under these Terms by the due date for payment, then: 

9. the Customer shall pay interest on the overdue amount at the rate of 8% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and  

1. Gener8 may suspend all or part of the Solution (including any part that is unaffected by the Customer’s failure to make payment) until payment has been made in full. 

10. The Customer shall pay all amounts due under these Terms in full and without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law).  

11. Gener8 may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable (or any other liability) on behalf of Gener8 to the Customer.  

5. Liability AND INDEMNITY – special attention is drawn to this clause 

1. Neither party excludes or limits liability to the other party for: 

2. fraud or fraudulent misrepresentation; 

3. death or personal injury caused by negligence; or 

4. any matter in respect of which it would be unlawful to exclude or restrict liability. 

5. Subject to clause 5.1: 

6. Gener8 shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any: 

7. loss of profit; 

8. loss of goodwill; 

9. loss of business; 

10. loss of business opportunity; 

11. loss of anticipated saving; 

12. loss or corruption of data or information; or  

13. any indirect, special or consequential Loss, 

that arises under or in connection with these Terms; and  

14. Gener8’s total liability to the Customer in respect of all other Losses arising under or in connection with these Terms, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the total Charges actually paid by the Customer to Gener8 in the preceding 12 months in connection with the Solution.  

15. In light of the commitments provided by Gener8 to the Customer in respect of the Solution under these Terms, the terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and section 3, 4 and 5 of the Solution of Goods and Services Act 1982 and all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose (each to the extent applicable) are, to the fullest extent permitted by law, excluded from these Terms.  

16. The Customer shall indemnify Gener8, keep Gener8 indemnified and hold Gener8 harmless for and against any and all Losses suffered or incurred by Gener8 howsoever arising out of or in connection with the Customer’s performance, or failure to perform, its obligations under these Terms, whether such Losses arise under contract, tort (including negligence and breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise and whether the same are direct, indirect, special or consequential including any loss of profits, contract, business, revenue, goodwill or reputation or any other pure economic loss, loss or corruption of data or information. 

6. Intellectual property rights 

1. The parties agree that any and all Intellectual Property Rights in or arising out of or in connection with the Solution (or any part thereof), shall be owned by Gener8 (or its licensors) and that for the avoidance of doubt any and all Intellectual Property Rights remain in the possession of Gener8 (or its licensors) at all times, do not transfer to the Customer under these Terms.  

2. The extent to which the Customer shall be licensed to use Gener8’s Intellectual Property Rights, together with restrictions on that use, shall be as set out in the Schedules. 

7. Confidentiality 

1. Each party agrees and undertakes that it shall maintain the confidentiality of and will not use for its own purposes nor without the prior written consent of the other party disclose to any third party the other party’s Confidential Information and shall not, without the prior written consent of the other party, use, disclose, copy or modify such Confidential Information or permit others to do so other than as necessary for the performance of its right and obligations under these Terms. 

2. Each party shall: 

1. disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors to whom and to the extent to which such disclosure is necessary for the purposes contemplated under these Terms, and 

2. to procure that such persons are made aware of and agree in writing to observe the obligations in this clause. 

3. Each party shall: 

1. give notice to the other party of any unauthorised misuse, disclosure, theft or loss of its Confidential Information immediately upon becoming aware of the same;  

2. take all reasonable steps to maintain the confidentiality of the Confidential Information; 

3. maintain adequate security measures to safeguard the Confidential Information from theft, and from access by any person other than as permitted by these Terms; 

4. promptly bring to the other party’s attention any infringement of its rights in, or any unauthorised use of, the Confidential Information, which it becomes aware of. 

4. The provisions of this clause shall not apply to information which is: 

1. or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors; 

2. lawfully received by the other party from a third party free of any obligation of confidence at the time of its disclosure; 

3. independently developed by the recipient, without access to or use of such information; or 

4. required by Applicable Law, by court or governmental or regulatory order to be disclosed provided that the other party is, where possible, notified at the earliest opportunity. 

5. Whilst Gener8 may publicly announce that a business relationship has been entered into with the Customer, Gener8 shall not otherwise be permitted to publish or announce any Confidential Information relating to the Customer without the Customer’s prior written consent.  

8. termination – special attention is drawn to this clause 

1. Without limiting its other rights or remedies, Gener8 may terminate the Agreement (in whole or any part of it) with immediate effect by giving written notice to the Customer if: 

1. the Customer fails to pay any amount due under these Terms on the due date for payment and remains in default not less than 5 Business Days after being notified to make such payment; 

2. the Customer commits a material breach of any term of these Terms and (if such a breach is remediable) fails to remedy that breach within 10 Business Days of that party being notified in writing to do so; 

2. the Customer repeatedly breaches any of the terms of these Terms in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to perform these Terms;  

3. the Customer 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), obtaining a memorandum, 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;  

1. the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or 

2. the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of these Terms is in jeopardy.  

4. Without limiting its other rights or remedies, Gener8 may suspend the provision of the Solution or its obligations under any other contract between the Customer and Gener8 if any of the events listed in clause 8.1(a) to clause 8.1(f) take place, or Gener8 reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under these Terms on the due date for payment, without liability to the Customer.  

5. On termination or expiry of these Terms for any reason: 

1. the Customer shall immediately pay to Gener8 all of Gener8’s outstanding unpaid invoices and interest and, in respect of the Solution but for which no invoice has been submitted, Gener8 shall submit an invoice, which shall be payable by the Customer immediately on receipt;  

2. any provision of these Terms that expressly or by implication is intended to come into or continue in force on or after termination of these Terms shall remain in full force and effect;   

3. any licence granted by Gener8 to the Customer to use the Software and Gener8’s other Intellectual Property Rights under these Terms shall immediately terminate; and 

4. the Customer shall return to Gener8 all documents and materials (and any copies) containing Gener8’s Confidential Information and, to the extent possible, erase any such Confidential Information from its computer systems 

6. Termination (howsoever arising) or expiry of these Terms, shall not affect any of the parties’ rights and remedies that have accrued at termination, including the right to claim damages in respect of any breach of these Terms which excited at or before the date of termination or expiry.  

9. Data Protection 

In performing its respective obligations under these Terms, each party shall comply with the Data Protection Legislation. Without limiting its rights under the Data Protection Legislation, Gener8 shall process personal data relating to the Customer in accordance with the Privacy Policy.  

10. Force majeure 

1. If a party is prevented, hindered or delayed in or from performing any of its obligations (except a payment obligation) under the Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly. 

2. The corresponding obligations of the other party will be suspended, and its time for performance of such obligations extended, to the same extent as those of the Affected Party. 

3. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than 6 months the party not affected by the Force Majeure Event may the Agreement by giving 4 weeks’ written notice to the Affected Party. 

4. This clause 10 shall not apply in respect of the Customer’s obligation to pay the Charges to Gener8 in connection with the Solution. 

11. Assignment 

1. Gener8 may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with (Transfer) all or any of its rights or obligations under these Terms. 

2. The Customer may not Transfer any or all of its rights or obligations under these Terms without the prior written consent of Gener8, which Gener8 may withhold or provide subject to conditions. 

12. NoticeS 

1. Any notice or other communication given to a party under or in connection with these Terms shall be in writing and shall be: 

1. delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or 

2. sent by email to contact details specified in the Proposal or otherwise as notified previously by that party. 

2. Any notice shall be deemed to have been received, if: 

1. delivered by hand, on signature of a delivery receipt or at the time the notice is left at the proper address;  

2. sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting or at the time recorded by the delivery service; or  

3. sent by email, at 9.00 am on the next Business Day after transmission. 

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

13. Entire agreement 

1. The Agreement constitutes the entire agreement between the parties and to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or dealing and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.  

2. Each party acknowledges that in entering into the Agreement 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 these Terms. 

3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Terms. 

14. Variation 

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

15. WAIVER 

1. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.  

2. 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.  

16. Severance 

1. If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Terms. 

2. If any provision or part-provision of these Terms is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision. 

17. No partnership or agency 

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

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

18. Third-party rights 

1. The Agreement does not give rise to any rights under the Contract (Rights of Third Parties) Act 1999 to enforce any term of the Agreement  

2. The rights of the parties to rescind or vary the Agreement are not subject to the consent of any other person. 

19. Multi-tiered dispute resolution procedure  

If a dispute arises out of or in connection with this Agreement or the performance, validity of enforceability of it, excluding any dispute that solely relates to the Customer’s payment of the Charges, (Dispute) then, except as expressly provided in this Agreement, the parties may at their discretion follow the procedure set out in this clause:  

1. either party shall give the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with the relevant supporting documents. On service of the Dispute Notice, employees at management level (or the nearest equivalent) of the parties shall attempt in good faith to resolve the Dispute;  

2. if the management level employees are for any reason unable to resolve the Dispute within 30 days of service of the Dispute Notice, the Dispute shall be referred to the directors of the parties who shall attempt in good faith to resolve it; 

3. if the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Customer is not registered in the United Kingdom, the parties will attempt to settle by mediation; 

2. the parties shall have recourse to mediation in accordance with the International Chamber of Commerce’s (ICC) Mediation Rules (Rules), which are deemed to be incorporated by reference into this clause;  

3. if the Dispute is not settled by mediation within 30 days of the commencement of the mediation, or such further period as the parties shall agree in writing, the Dispute shall be submitted to the International Court of Arbitration of the ICC whose seat shall be London and shall be finally settled under the Arbitration Rules, of the ICC (Arbitration Rules) by one or more arbitrators appointed in accordance with the Arbitration Rules. The Emergency Arbitrator Provisions under the Arbitration Rules shall not apply; 

1. this clause 19 shall take the form of an arbitration agreement and is governed by the law of England and Wales. 

2. The language to be used in the mediation and in the arbitration shall be English.  

3. if the directors of the parties are for any reason unable to resolve the Dispute within 30 days of it being referred to them and the Customer is registered in the United Kingdom, the parties may commence court proceedings under clause 21 in relation to whole or part of the Dispute.  

20. Governing law  

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

21. Jurisdiction 

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 Agreement or its subject matter or formation (including non-contractual disputes or claims). 

SCHEDULE 1 – EQUIPMENT SUPPLY, COMMISSIONING AND INSTALLATION 

22. definitions 

Defined words and expressions used in this Schedule shall take the meaning given to them in the main body of these Terms, unless otherwise defined below: 

Equipment Training: means the Equipment Training provided by Gener8 to the Lead Contact for the proper use and performance of the Equipment. 

1. Installation: means the installation and commissioning of the Equipment at the Site in accordance with the Specification. Install and Installed shall be construed accordingly.  

2. Installation Date(s): shall mean the date(s) specified in the Proposal on which the Installation Services shall take place or, where no such date is specified, any such date(s) as may be agreed between the parties in writing.  

3. Installation Services: means Gener8’s installation of the Equipment at the Site, as set out in the Proposal.  

4. Lead Contact: has the meaning given to it in paragraph 5.1. 

Site: means the site(s) at which the Installation Services are to be performed by Gener8 in accordance with this Schedule. 

Warranty Period: has the meaning given to it in paragraph 6.2. 

23. Equipment 

1. The Equipment is described in the Proposal as modified by any applicable Specification.  

2. If, due to a Force Majeure Event, Gener8 is unable to supply a particular item of Equipment, Gener8 will notify the Customer of such. Gener8 will use reasonable endeavours to replace it with an item of equivalent standard and value or otherwise advise when the Equipment will be available for supply. 

24. Delivery– special attention is drawn to this Paragraph 

1. Gener8 shall ensure that each delivery of the Equipment is accompanied by a delivery note that shows all relevant Customer and Gener8 reference numbers, the type and quantity of the Equipment (including the code number of the Equipment, where applicable), special storage instructions (if any) and, if the Equipment is being delivered by instalments, the outstanding balance of Equipment remaining to be delivered. 

2. Gener8 shall deliver the Equipment to the Site at any time after Gener8 notifies the Customer that the Equipment is ready.  

3. Any dates quoted for delivery are estimates only, and the time of the delivery is not of the essence under these Terms. Gener8 shall not be liable for any delay in delivery of the Equipment that is caused by: 

1. a Force Majeure Event; or  

2. any Customer Default.  

4. If Gener8 fails to deliver the Equipment (and such failure does not arise due to the events set out in paragraph 3.3), Gener8’s total liability to the Customer shall be limited to the costs and expenses incurred by the Customer in obtaining replacement equipment of similar description and quality in the cheapest market available, less the price of the Equipment.  

5. If the Customer fails to accept delivery of the Equipment within three (3) Business Days of Gener8 notifying the Customer that the Equipment is ready, then, except where such failure or delay is caused by a Force Majeure Event or Gener8’s failure to comply with its obligations under these Terms: 

1. delivery of the Equipment shall be deemed to have been completed at 9:00 am on the third Business Day after the day on which Gener8 notified the Customer that the Equipment were ready; and 

2. Gener8 shall store the Equipment until actual delivery takes place and, at its absolute discretion, charge the Customer for all related costs and expenses (including insurance, which Gener8 may take out at its absolute discretion).  

6. If ten (10) Business Days after the day on which Gener8 notified the Customer that the Equipment was ready for Delivery the Customer has not accepted actual delivery, Gener8 may resell or otherwise dispose of part or all of the Equipment and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Equipment or charge the Customer for any shortfall below the price of the Equipment.  

7. Gener8 may deliver the Equipment by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in instalments shall not entitle the Customer to cancel any other instalment. 

8. Delivery is completed on the completion of the unloading of the Equipment at the Site. 

25. INSTALLATION AND cOMMISSIONING  

1. Gener8 warrants that the Installation Services performed by it shall:  

1. conform to any agreed Specification; and 

2. be executed with reasonable skill and care and by appropriately qualified and experienced personnel. 

2. Gener8 shall use reasonable endeavours to Install the Equipment at the Site on Installation Date(s), however any Installation Dates shall be estimate only and time for Installation is not of the essence. 

3. If Gener8 cannot make delivery and carry out Installation on the Installation Date(s) then it shall notify the Customer and an alternative date(s) shall be arranged. Where such failure to make delivery and carry out Installation is caused by the Customer (whether or not due to a Customer Default), Gener8 shall (in addition to any further charges that may arise elsewhere under these Terms) be entitled to charge the Customer an administration charge to compensate it for its reasonable expenses incurred.  

4. The Customer shall procure that a duly authorised representative of the Customer shall be present at the Site throughout the duration of the Installation Services. Acceptance by such representative of the Equipment once it has been Installed shall constitute conclusive evidence that the Customer has, following Gener8’s performance of the Installation had or had the opportunity to examine, inspect and test the: 

1. operability of the Equipment in line with the Specification; and 

2. condition of the Equipment so as to ascertain whether it is in good condition, fully functional and fit for the purpose for which it is intended. 

5. If required by Gener8, the Customer’s authorised representative shall sign a receipt confirming its acceptance of the Equipment once Installed. 

26. EQUIPMENT TRAINING 

1. Within 1 Business Day (or such other period of time as the parties may agree) of Installation, the Customer shall nominate a staff member to complete the relevant Equipment Training (Lead Contact) to be performed at the Site. 

2. The Customer shall make available the Lead Contact for the Equipment Training, at times and intervals notified in advance to the Customer by Gener8. Time for delivery of the Equipment Training is not of the essence under these Terms, and Gener8 may at its absolute discretion amend any dates or times on which the Equipment Training is to take place.  

3. Where the Customer wishes to reschedule or otherwise cancel a scheduled Equipment Training Session, Gener8 shall be entitled to invoice the Customer a cancellation fee of £500, together with any reasonable administrative costs to compensate it for expenses incurred. 

4. Gener8 shall notify the Customer of the Lead Contact’s successful completion of the relevant Equipment Training, at which point the Lead Contact shall, subject to purchasing applicable User Subscriptions (as defined in Schedule 2), be entitled to utilise the Equipment on behalf of the Customer. 

27. QUALITY, inspection and acceptance – special attention is drawn to this Paragraph 

1. This paragraph only applies in connection with Equipment that is supplied by Gener8. It does not, unless otherwise agreed in writing by Gener8, apply in connection with any Software that is licensed by Gener8 to the Customer, which shall be dealt with in accordance with Schedule 2 and Schedule 3 respectively. 

2. Gener8 warrants that, as the case may be, on completion of:  

1. delivery, where Gener8 is not performing Installation Services in connection with the Equipment; or  

2. the Installation Services, where Gener8 is performing Installation Services in connection with the Equipment, 

and for a period of 12 months thereafter (Warranty Period), the Equipment shall: 

3. subject to the Customer’s general warranty at clause 3.1, conform in all material respects with its description and any applicable Specification; 

4. be free from material defects in design, material and workmanship; 

5. be of satisfactory quality (within the meaning of the Sale of Goods Act 1979); and 

6. be fit for any purpose held out by Gener8. 

3. If the Customer gives notice in writing to Gener8 at any time during the Warranty Period that it alleges a breach of the warranties set out in paragraph 6.2 (Warranty Breach), then the Customer agrees to: 

1. provide Gener8 and any third party instructed on Gener8’s behalf with a reasonable opportunity of examining the Equipment in question, together with access to the Site, data, documentation, information, telecommunications and IT systems and such other materials as may reasonably be requested by Gener8; and 

2. if requested to do so by Gener8, allow Gener8 or any third party instructed on Gener8’s behalf to collect the Equipment from the Site for further inspection, 

in order for Gener8 to investigate the Warranty Breach.  

4. Where Gener8 agrees that there has been a Warranty Breach, Gener8 shall, at its option: 

1. repair or replace the defective Equipment; and/or  

2. reperform any defective Installation Services; and/or 

3. otherwise refund a proportionate amount of the Charges. 

5. Where Gener8 does not agree that there has been a Warranty Breach, Gener8 shall: 

1. provide the Customer with written reasons for determining such;  

2. in respect of Equipment that Gener8 has collected for further inspection under paragraph 6.3(b), return such Equipment to the Site on a date to be agreed (not later than 5 Business Days thereafter) between the parties (and paragraph 6.3 shall apply to such return); and 

3. be entitled to levy an additional charge on the Customer for any inspection, collection, return and other support provided under this paragraph 6. 

6. Gener8 shall not be liable for the Equipment failure to comply with the warranties contained in paragraph 6.2 if the: 

1. Customer makes any further use of such Equipment after giving notice in accordance with paragraph 6.3; 

2. defect arises because the Customer failed to follow Gener8’s oral or written instructions as to the storage, commissioning, installation, use and maintenance of the Equipment or (if there are none) good trade practice regarding the same;  

3. defect arises as a result of Gener8 following any drawing, design or specification supplied by the Customer; 

4. Customer alters or repairs such Equipment without the written consent of Gener8;  

5. defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions;  

6. Equipment differs from the Specification as a result of changes made to ensure it complies with Applicable Laws in accordance with clause 2.6(a); or  

7. defect arises due to any other Customer Default. 

7. Except as provided in this paragraph6, Gener8 shall have no liability to the Customer in respect of the Equipment failure to comply with any warranties provided under these Terms.  

8. This Schedule (together with any applicable further obligations in the main body of the Terms and other Schedules, to the extent applicable) shall apply to any repaired or replacement Equipment supplied by Gener8. 

28. TITLE AND RISK – special attention is drawn to this PARAGRAPH 

1. Save to the extent that Gener8 causes damage to the Equipment in performing the Installation Services, the risk in the Equipment shall pass to the Customer in accordance with paragraph 3.8. 

2. Title to the Equipment shall not pass to the Customer until Gener8 receives payment in full (in cash or cleared funds) for the Equipment and any other element of the Solution in respect of which payment has become due, in which case title to the Equipment shall pass at the time of payment of all such sums. 

3. Until title to the Equipment has passed to the Customer, the Customer shall: 

1. store the Equipment separately from all other goods held by the Customer so that they remain readily identifiable as the Gener8’s property; 

2. not remove, deface or obscure any identifying mark or packaging on or relating to the Equipment; 

3. maintain the Equipment in satisfactory condition and keep it insured against all risks for their full price from the date of delivery; 

4. notify the Gener8 immediately if it becomes subject to any of the events listed in clause 8.1(a) to clause 8.1(f); and 

5. give Gener8 such information as Gener8 may reasonably require from time to time relating to: 

1. the Equipment; and 

2. the ongoing financial position of the Customer. 

29. Customers’ OBLIGATIONS AND PERSONNEL – SPECIAL ATTENTION IS DRAWN TO THIS PARAGRAPH 

1. Notwithstanding the Customer’s further obligations in these Terms, the Customer warrants, represents and undertakes that it shall and, to the extent applicable, each Authorised User shall: 

1. ensure that the Equipment is kept and operated in a suitable environment.  

2. only use the Equipment on successful completion of the Equipment Training, for the purposes for which it is designed; 

3. ensure that the Equipment is operated in a proper manner, by trained competent staff, in accordance with the Operating Manuals; 

4. take any steps reasonably necessary to ensure the safety of Gener8’s personnel when attending the Site(s); 

5. take such steps (including compliance with all safety and usage instructions provided by Gener8) as may be necessary to ensure, so far as is reasonably practicable, that the Equipment is at all times safe and without risk to help when being set, used, cleaned or operated;  

6. not allow any person other than Gener8 to maintain, alter, modify or adjust the Equipment without the prior written approval of Gener8; and 

7. use any Software in accordance with the obligations set out in Schedule 2 and Schedule 3 respectively.  

2. The Customer warrants, represents and undertakes that the Site is free from all substances which could reasonably be deemed to be hazardous, noxious, poisonous or otherwise dangerous (Substances) including but not limited to asbestos and that Gener8 or any of its employees, contractors and agents shall not come into contact with any Substances in performing its obligations in accordance with these Terms. 

3. The Customer is responsible for providing and otherwise for the protection of, and liable for any damage to, any underground, surface or above ground services and utilities including, but not limited to cables, ducts, water pipes and gas lines, and the Customer shall liaise as necessary and comply with all requirements of the relevant statutory authority or similar body. 

SCHEDULE 2 – SOFTWARE LICENCE  

30. DEFINTIONS 

Defined words and expressions used in this Schedule shall take the meaning given to them in the main body of these Terms, unless otherwise defined below: 

Commissioning Date: means the date of the installation and commissioning of the Equipment, as determined in accordance with paragraph 4.4 (or paragraph 4.5 where applicable) of Schedule 1. 

Initial Term: means 12 months from the Commissioning Date.  

Hardware System: means the immersive suite computer supplied to the Customer and installed in accordance with Schedule 1.  

Renewal Term: the period of 12 months from the end of the Initial Term and each immediately preceding Renewal Term (as the case may be) or such other period as may be agreed in writing between the parties. 

Software Warranty Period: has the meaning given to it in paragraph 7.1(a).  

Subscription Term: has the meaning given to it in paragraph 4.2 (being the Initial Term together with the Renewal Term). 

Subscription Fee: means the subscription fee payable to Gener8, as set out in the Proposal.  

Third-Party Software: means any software proprietary to third parties which are provided to the Customer in accordance with paragraph 3. 

Third-Party Terms: means any terms and conditions relating to the Third-Party Software.  

User Subscription: the user subscriptions purchased by the Customer under these Terms which entitle Authorised Users to access and use the Software and Documentation via a Hardware System in accordance with this Schedule. 

Virus: any program which contains malicious code or infiltrates or damages a computer system without the owner’s informed consent or is designed to do so or which is hostile, intrusive or annoying to the owner or user and has no legitimate purpose. 

Vulnerability: any weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly. 

Warranty Defect: an error in the Software that causes it to fail to operate substantially in accordance with the Specification during the Software Warranty Period. 

31. Provision of software 

Gener8 shall supply the Software and the Documentation to the Customer for use in connection with the Equipment in accordance with this Schedule. 

32. Third-Party Software 

1. Where the provision of Third-Party Software is specified as being included in the Solution in the Proposal, Gener8 shall supply the Third-Party Software to the Customer under any applicable Third-Party Terms, copies of which shall be provided or otherwise made available or brought to the attention of the Customer.  

2. In addition to its obligations under these Terms, the Customer shall comply, and shall procure that all Authorised Users comply, with all Third-Party Terms that apply in connection with the Third-Party Software.   

3. The Customer agrees and acknowledges that the only warranties provided in relation to the Third-Party Software are those contained in the applicable Third-Party Terms relating to that Third-Party Software (or otherwise as may be provided by the third-party licensor). To the extent that any such warranties in respect of the Third-Party Software are given to Gener8 and are transferrable, Gener8 will pass on the benefit of those warranties to the Customer.  

4. The Customer shall indemnify Gener8, keep Gener8 indemnified and hold Gener8 harmless in respect of any and all Losses suffered or incurred by Gener8 as a consequence of any breach of the Third-Party Terms by the Customer howsoever arising.  

5. Gener8 may treat the Customer’s breach of any Third-Party Terms as a breach of these Terms.  

6. If, for any reason whatsoever, the Third-Party Software becomes unavailable or it is no longer provided by the applicable third-party licensor, Gener8 shall use reasonable endeavours to procure an alternative product that is reasonably suitable for the Customer’s desired purpose.  

33. Licence and Subscription Term 

1. Subject to the Customer purchasing the User Subscriptions in accordance with clause 4, the restrictions set out in paragraph 5 and the Customer’s compliance with these Terms, Gener8 hereby grants to the Customer a non-exclusive, non-transferable right, licence during the Subscription Term, (without the right to grant sublicences), to permit the Authorised Users to use the Software and the Documentation on or in conjunction with the Hardware System and the services supplied to the Customer in connection with the Solution.  

2. The licence granted pursuant to paragraph 4.1 shall commence on the Commissioning  Date and shall continue for the Initial Term, unless terminated in accordance with these Terms. The term of the Software licence shall automatically extend for Renewal Terms at the end of the Initial Term or Renewal Term (as the case may be), unless and until otherwise terminated: 

1. as provided for by the terms of the Agreement; or 

2. by either party giving the other party no less than 6 months’ notice before the end of the Initial Term or subsequent Renewal Term, to terminate the Licence as the end of the Initial Term or relevant Renewal Term as the case may be, 

(Subscription Term). 

34. Authorised Users 

1. An individual shall only be deemed to be an Authorised User once they have completed Equipment Training in accordance with Schedule 1 (either on or following the delivery and Installation of the Equipment). Any other access and/or use of the Software and or Documentation by individuals that are not an Authorised User is expressly prohibited without the prior written consent of Gener8 (which may be provided subject to conditions, including a condition that the Customer shall be required to purchase additional User Subscriptions and enrol such individuals on Equipment Training).  

2. In relation to the Authorised Users, the Customer undertakes that: 

1. the maximum number of Authorised Users that it authorises to access and use the Software and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time; 

2. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Software and/or Documentation; 

3. each Authorised User shall keep a secure password for their use of the Software and Documentation, and that each Authorised User shall keep their password confidential; 

4. it shall maintain a written, up to date list of current Authorised Users and provide such list to Gener8 within 5 Business Days of Gener8’s written request at any time or times; 

5. it shall permit Gener8 or Gener8’s designated auditor to audit usage of the Software and the Documentation and compliance with this Schedule in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this Schedule.  Each such audit may be conducted no more than once per quarter, at Gener8’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; 

6. if any of the audits referred to in paragraph 4.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to Gener8’s other rights, the Customer shall promptly disable such passwords and Gener8 shall not issue any new passwords to any such individual; and 

7. if any of the audits referred to in paragraph 4.2(e) reveal that the Customer has underpaid Charges to Gener8, then without prejudice to Gener8’s other rights, the Customer shall pay to Gener8 an amount equal to such underpayment as calculated in accordance with the prices set out in Schedule 1 within 10 Business Days of the date of the relevant audit. 

35. Customer Obligations 

1. The Customer shall not, and shall procure that each Authorised User shall not, access, store, distribute or transmit any Viruses, or any material during the course of its use of the Software and the Documentation that: 

1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; 

2. facilitates illegal activity; 

3. depicts sexually explicit images; 

4. promotes unlawful violence; 

5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or 

6. is otherwise illegal or causes damage or injury to any person or property; 

7. and Gener8 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 paragraph. 

2. The Customer shall not, and shall procure that each Authorised User shall not: 

1. 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 these Terms: 

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

2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;  

2. access all or any part of the Software or Documentation in order to build a product or service which competes with the Software, Documentation or wider Solution provided under these Terms;  

3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software or Documentation available to any third party except the Authorised Users, or 

4. attempt to obtain, or assist third parties in obtaining, access to the Software or Documentation, other than as permitted by Gener8; or  

5. introduce or permit the introduction of any Virus or Vulnerability into Gener8’s network and information systems or the network and information systems of any third party involved in connection with the Solution. 

3. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and Documentation and, in the event of any such unauthorised access or use, promptly notify Gener8. 

4. The rights provided under this paragraph 6 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer unless otherwise agreed in writing by Gener8. 

36. Gener8’s warranties 

1. Gener8 warrants that:  

1. the Software shall, as at the Commissioning Date, and for a period of 90 days thereafter (Software Warranty Period), perform in all material respects in accordance with the Specification; 

2. no Viruses are knowingly contained in the Software; and 

3. the Software incorporates encryption technology of commercially reasonable and appropriate standards, consistent with its intended use. 

2. The sole remedy for breach of the warranty under paragraph 7.1 above shall be correction of any Warranty Defect by Gener8 within a reasonable time from notification by the Customer of the Warranty Defect that constitutes such breach. 

3. The warranties set out in paragraph 7.1 above and elsewhere in these Terms are in lieu of all other express or implied warranties or conditions, including implied warranties or conditions of satisfactory quality and fitness for a particular purpose, in relation to these Terms. Without limitation, Gener8 specifically denies any implied or express representation that the Software will be fit to operate: 

1. in conjunction with any hardware items or software products other than with those items of Equipment subject to the Solution or those which Gener8 approves in writing; or 

2. uninterrupted or error-free. 

4. Gener8 does not warrant or guarantee that it will be able to rectify all Warranty Defects, nor that any Warranty Defect which does not materially affect the Customer’s operations using the Software will be corrected before the end of the Software Warranty Period. 

5. Whilst Gener8 warrants that the Software shall comply with the Specification under paragraph 7.1, the Software is otherwise supplied on an “as is” basis and without warranty as to the results the Customer may obtain by using the Software. The Customer assumes the entire risk as to the results and performance of the Software.   

6. Any unauthorised modifications, use or improper installation of the Software by, or on behalf of, the Customer, or any other breach of these Terms by the Customer shall render all Gener8’s warranties and obligations under these Terms in respect of the Software (and any Equipment on which the Software is installed) null and void. 

7. Gener8 shall not be obliged to rectify any particular Warranty Defect if attempts to rectify such Warranty Defect other than normal recovery or diagnostic procedures have been made by the Customer’s personnel or third parties without the permission of Gener8. 

37. Intellectual property rights  

1. Any and all Intellectual Property Rights subsisting in connection with the Software and the Documentation are owned and shall remain owned by Gener8 (or its licensors). Save that the Customer has a licence to use the Software and the Documentation during the Subscription Term in accordance with paragraph 4.1, the Customer shall otherwise have no rights in or to the Software and the Documentation. 

2. The Customer shall use reasonable endeavours to prevent any infringement of Gener8’s Intellectual Property Rights and shall promptly report to Gener8 any such infringement that comes to its attention. In particular, the Customer shall: 

1. ensure that each Authorised User, before starting to use the Software and Documentation, is made aware that it is proprietary to Gener8 and that it may only be used and copied in accordance with these Terms; 

2. implement suitable disciplinary procedures for employees who make unauthorised use or copies of Gener8’s Intellectual Property Rights, save to the extent provided for by these Terms; and 

3. not permit third parties to have access to the Software or the Documentation without the prior written consent of Gener8, who may require that such third party executes a written confidentiality agreement before being given access. 

3. Provided that Gener8 makes no warranty and provides no assurances that the Customer’s use of the Software and Documentation in accordance with these Terms does not breach the Intellectual Property Rights of any third party, if any third party makes a claim, or notifies an intention to make a claim, against the Customer that its use of the Software and/or Documentation in accordance with these Terms infringes that third party’s Intellectual Property Rights (IPR Claim), the Customer shall: 

1. as soon as reasonably practicable give written notice of the IPR Claim to Gener8, specifying the nature of the IPR Claim in sufficient detail so as to allow Gener8 to fully understand the allegations raised therein;  

2. not make any admission of liability, agreement or compromise in relation to the IPR Claim without the prior written consent of Gener8 (such consent to not be unreasonably withheld or delayed);  

3. giving Gener8 and its professional advisers access at reasonable times (on reasonable prior notice) to the Site (and such other premises), its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Gener8 and its professional advisers to examine them and to take copies (at Gener8’s expense) for the purpose of assessing the IPR Claim; and 

4. subject to Gener8 providing security to the Customer of an amount no greater than the cap set out in clause 5.2(b) against any claim, liability, costs, expenses, damages or losses which may be incurred, taking such action as Gener8 may reasonably request to avoid, dispute, compromise or defend the IPR Claim which may include, at Gener8’s option, allowing Gener8 to conduct such IPR Claim in place of the Customer. 

4. If any IPR Claim is made or, in Gener8’s reasonable opinion is likely to be made, against the Customer, Gener8 may at its sole cost and expense (but without any reduction in the applicable Charges): 

1. procure for the Customer the right to continue to use the Software and Documentation (or any part thereof) in accordance with the terms of these Terms; 

2. modify the Software and/or Documentation so that it ceases to be infringing; 

3. replace the Software and/or Documentation with non-infringing software and documentation; or 

4. terminate these Terms immediately by notice in writing to the Customer and refund any of the Charges paid by the Customer as at the date of termination (less a reasonable sum in respect of the Customer’s use of the Software and/or Documentation to the date of termination) on return of the Software and/or Documentation and all copies thereof, 

and the parties’ respective rights and obligations shall remain in place in connection with any replacement or modified Software and/or Documentation that is provided by Gener8 under this paragraph. The Customer agrees to accept any minor amendments to the Specification for the Software and Documentation which does not materially affect its receipt and use of the Solution.  

5. Notwithstanding any other provision in these Terms, paragraph 8.3 shall not apply to the extent that any IPR Claim arises directly or indirectly through the: 

1. Customer’s use of the Software and/or Documentation in breach of these Terms;  

2. Customer’s use of the Software and/or Documentation in connection with other software and/or hardware that is not permitted by Gener8; and  

3. possession or use of any Third-Party Software or through the breach of any Third-Party Terms by the Customer. 

6. This paragraph constitutes the Customer’s exclusive remedy and Gener8’s only liability in respect of IPR Claims and, for the avoidance of doubt, is subject to the exclusions and limit of liability contained in clause 5.2.  

SCHEDULE 3 – SUPPORT & MAINTENANCE 

38. DEFINITIONS 

Defined words and expressions used in this Schedule shall take the meaning given to them in the main body of these Terms, unless otherwise defined below: 

Fault: has the meaning given to it in paragraph 4.2. 

Good Working Order: the Maintained Equipment operates in accordance with the Specification (which shall, for the purpose of this Schedule, include applicable Operating Manuals notified to the Customer in writing). 

Maintenance Release: a release of Supported Software which corrects faults, adds functionality or otherwise amends or upgrades the Supported Software. 

Modification: any Maintenance Release which is acquired by the Customer.  

Optional Service: any other services that Gener8 and the Customer may from time to time agree shall be supplied to the Customer by Gener8 in connection with the Supported Software under these Terms.  

Response Times: has the meaning given to it in paragraph 4.3. 

Support Service: the support service more particularly described in the Proposal and paragraph 4 of this Schedule. 

Supported Software: has the meaning given to it in paragraph 2. 

Third-Party Software: means any software proprietary to third parties which are provided to the Customer in accordance with paragraph 3 of Schedule 2. 

39. supported software 

For this purposes of this Schedule, Supported Software means: 

1. the Software (together with the Equipment on which the Software is installed); 

2. any Third-Party Software (unless Gener8 otherwise notifies the Customer in writing); 

3. any Modification which is acquired by the Customer (whether under these Terms or any other agreement between Gener8 and the Customer); and 

4. any other software which Gener8 agrees in writing should be Supported Software for the purposes of these Terms.  

40. software maintenance services 

In respect of the Supported Software, Gener8 shall supply and the Customer shall take and pay for, the following:  

1. the Support Service; 

2. the Maintenance Release; 

3. the Updating Service; and  

4. such of the Optional Services as are agreed between Gener8 and the Customer,  

the charges of which shall be detailed within the Proposal or otherwise be agreed in writing between the parties.   

41. Support Service 

1. The Support Service shall be provided during Normal Business Hours and shall comprise: 

1. telephone support and email support for Authorised Users;  

2. remote diagnosis and where possible, correction of faults using the software management software; and 

3. where necessary, scheduled Site visits, 

all as more particularly defined in the Proposal and described further in this Schedule.  

2. The Customer shall notify Gener8 in writing where the Supported Software is malfunctioning, has failed or is otherwise not in Good Working Order (Fault).  In order for Gener8 to categorise that Fault in accordance with paragraph 4.3, the Customer shall provide full, complete and accurate information as to the cause of it, together with such further diagnostic assistance as Gener8 requires.  

3. Gener8 shall categorise all Faults in accordance with the following table: 

Problem Category	Problem Description
Critical	A problem which would make the system inoperable or unworkable. E.g. the Equipment providing no response, unable turn on, cameras not working, or unable to execute key commands.
Severe	A problem which would make the Equipment operationally inconvenient. E.g. more than one camera not working, no sound, more than one projector not working, a combination of cameras and projectors not working.
Medium	A problem which is inconvenient but does not reduce the Equipment’s operational capacity. E.g. colour distortion, minor fault with controllers, lights not working, one camera or projector not working.
Minor	A problem of a minor nature. E.g. a wireless keyboard not working, error in content.

4. Gener8 shall use reasonable endeavours to carry out any necessary Support Service relevant to the category of Fault, in accordance with the following response times:  

Fault Category	Response Time
Critical	1-2 Business Hours
Severe	3 Business Hours
Medium	2 Business Days
Minor	5 Business Days

(Response Times).  

5. The Response Times are estimates only, and time for completion of the Support Service shall not be of the essence under these Terms. Gener8 shall have no responsibility whatsoever towards the Customer where any failure to comply with the Response Times arises due to a Force Majeure Event or any Customer Default. 

42. Maintenance Releases and Updates 

1. Gener8 will, upon development of any Maintenance Releases, make such Maintenance Releases available to the Customer without charge. 

2. In relation to the Updating Service:  

1. Gener8 shall issue Modifications of the Supported Software as and when required and in whatever form by way of local fix or patch of the Supported Software or temporary by-pass solution in the absolute discretion of Gener8; 

2. it shall include the Solution to the Customer of all revisions to the Documentation which are necessary in order to reflect any Modification acquired by the Customer; 

3. for the avoidance of doubt, the cost of the Updating Service is included in the Charges payable for the Support Service; and 

4. once any Modification has been installed, the Customer shall return all copies of the Software or any part of the Software which is superseded by that Modification. 

43. customer’s obligations – special attention is drawn to this  PARAGRAPH 

1. The Customer shall, in addition to its other obligations under these Terms, ensure that appropriate environmental conditions are maintained for the Supported Software and shall take all reasonable steps to ensure that the Supported Software is operated in a proper manner by the Authorised Users. 

2. The Customer shall: 

1. co-operate with Gener8 in carrying out the Support Service and provide any assistance or information as may reasonably be required by Gener8, including in relation to the diagnosis of any Faults; 

2. report Faults promptly to Gener8; and 

3. keep full backup copies of all of its data relating to use of the Software. 

SCHEDULE 4 – CREATIVE CONTENT SERVICES 

44. DEFINITIONS 

Defined words and expressions used in this Schedule shall take the meaning given to them in the main body of these Terms, unless otherwise defined below: 

Approval: shall mean any:  

1. e-mail from the individual business e-mail address of an Authorised Client Approver; or 

2. the signature of an Authorised Client Approver on Gener8’s completion documentation.   

Authorised Client Approver: means the individual nominated on behalf of the Customer who will have authority to bind the Customer in matters relating to the Creative Content Services. 

Client Materials: includes, without limitation, any designs, documents, imagery, information, items, logos, text, trade and product names and all other materials which are provided by the Customer to Gener8 in connection with the Creative Content Services. 

Creative Content: the output of the Creative Content Services including, without limitation, including, without limitation, artwork, application, logos, designs, 2D and 3D images, videos, scans, diagrams, text, lesson content, and all other documents or materials provided by Gener8 to the Customer. 

Creative Content Services: the creative, graphic design, and editorial services, including the output of Deliverables, provided by Gener8 to the Customer as set out in the Proposal. 

Products: means, to the extent applicable, any classroom experience, solution, scene, application or any other Deliverables to be produced by Gener8 in connection with any Creative Content Services.   

Virus: any program which contains malicious code or infiltrates or damages a computer system without the owner’s informed consent or is designed to do so or which is hostile, intrusive or annoying to the owner or user and has no legitimate purpose. 

Vulnerability: any weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly. 

45. creative services 

1. Gener8 shall supply the Creative Content Services and warrants to the Customer that it shall: 

1. do so with reasonable care and skill;   

2. use all reasonable endeavours to meet any performance dates for the Creative Content Services specified in the Proposal or otherwise as may be agreed by the parties, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Creative Content Services (nor the delivery of any associated Deliverables); and 

3. ensure that any Creative Content it produces is of a satisfactory quality and it they will conform to any agreed Specification. 

2. The Customer acknowledges that Gener8’s ability to perform the Creative Content Services is dependent upon the full and timely co-operation of the Customer and the accuracy and completeness of any information and data the Customer provides to Gener8 in accordance with paragraph 3. 

46. CLIENT’S GENERAL obligations – SPECIAL ATTENTION IS DRAWN TO THIS paragraph 

1. The Customer shall not: 

1. 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 Agreement, attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Creative Content; or 

2. access all or any part of any element of the Creative Content in order to build a product or service which competes with the Creative Content Services; or 

3. attempt to obtain, or assist third parties in obtaining, access to the Creative Content, other than as provided under these Terms. 

2. The Customer shall not access, store, distribute or transmit any Viruses, Vulnerabilities or any material during the course of its use of the Solution. 

47. approvals and authority  

1. Any approval to be provided by the Customer under this paragraph shall not be unreasonably withheld or delayed. 

2. Gener8 may from time-to-time seek the Customer’s prior Approval of any draft Creative Content and such Approval will be the Customer’s final Approval of that draft Creative Content as being in conformity with the Agreement.  

3. In the event that the Customer does not approve of any matter requiring approval it shall notify Gener8 of its reasons for disapproval within a reasonable period of time (given the nature of the request and any agreed timeline by which the Creative Content Services are to be performed) of Gener8’s request. 

4. Where any disapproval under paragraph 4.3 is a consequence of Gener8’s failure to comply with the Agreement, Gener8 shall, within a reasonable period of time, carry out any such remedial action as may be reasonably required in order to ensure compliance without further charge to the Customer.  The Customer acknowledges and agrees that such remedial action shall be its sole and exclusive remedy and Gener8’s sole liability in respect of that failure to comply. 

5. Where any disapproval under paragraph 4.3 is provided for any other reason (including, without limitation, a change in the scope of the Creative Content Services initiated by the Customer), any amendments to the Creative Content Services shall be considered as additional services, for which Gener8 may raise additional charges.   

48. Intellectual property rights – SPECIAL ATTENTION IS DRAWN TO THIS paragraph 

1. Gener8 acknowledges that ownership of Client Materials and ownership of all Intellectual Property Rights in any Client Materials (including any modifications or adaptations of such Client Materials produced in the course of providing the Creative Content Services) shall remain vested in the Customer or its licensors. The Customer hereby grants to Gener8 a non-exclusive, worldwide, royalty free, licence during the term of the Agreement to use the Customer Materials for the purpose of providing the Creative Content Services and Deliverables.  

2. The Customer warrants, represents and undertakes to Gener8 that it owns all proprietary rights in the Customer Materials and that the Customer Materials (and their proposed modification, where applicable) under the Agreement do not infringe the rights (including Intellectual Property Rights) of any third party. 

3. Subject to the remaining provisions of this paragraph 5 and Gener8 receiving payment of all Charges attributable to Gener8 under the Agreement, Gener8 grants to the Customer a non-exclusive, sub-licensable and transferrable licence to use the Creative Content solely in connection with its intended purpose under the Agreement (and expressly not in connection with the provision of services which compete with the Creative Content Services by the Customer).   

4. The Customer acknowledges that, in producing the Creative Content, Gener8 may make use of certain templates, plans, code and other templates that are of a non-bespoke nature and which Gener8 uses in connection with providing services to third parties.  

5. Gener8 shall:  

1. be entitled to reproduce the Creative Content (in whole or in part) in the performance of services to third parties; 

2. be able during and after the term of these Terms to use any Creative Content for the purposes of promoting its work and its business including on Gener8’s website, social media platforms, in credentials pitches and in its showreel; and 

3. retain all know how obtained in connection with the Creative Content Services. 

6. For the avoidance of doubt, Gener8 shall not be liable under or in connection with these Terms for any modifications, adaptations or amendments to any Creative Content made by the Customer or by a third party on the Customer’s behalf, nor in the event that any fault, error, destruction or other degradation in the quality and/or quantity of the Deliverables arises due to the acts or omissions of the Customer.