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PQS TECH SOLUTIONS – VRS LICENCE TERMS AND CONDITIONS OF SUPPLY

If you purchase access to a Topnet VRS Licence from PQS, these terms and conditions will apply.

1. Definitions and Interpretation

1.1

The following definitions and rules of interpretation apply in these Conditions:

Administrative Reinstatement Fee” has the meaning given in clause 6.4, the sum of which shall be £50 (fifty pounds) unless otherwise stated in the SOW.

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

Commencement Date” has the meaning given in clause 2.1.

Conditions” means these terms and conditions, as amended from time to time in accordance with clause 13.8.

Consumer Prices Index” means the Consumer Prices Index (CPI) (all items) (United Kingdom).

Contract” means the contract between PQS and the Customer for the supply of Services in accordance with these Conditions.

Control” has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.

Customer” means the person or firm who purchases the Services from PQS.

Customer Default” has the meaning given in clause 10.6.

Data Protection Legislation” all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

Deliverables” means any deliverables produced by PQS for the Customer as set out in the SOW.

Devices” means a Global Navigation System (GNSS) receiver hardware device and one or more wireless communication device that supports GSM or GPRS 3G/4G/5G wireless services. Please note that to receive data via GPRS the Devices must support the public domain NTRIP protocol (Networked Transport of RTCM via Internet Protocol.

Force Majeure Event” has the meaning given in clause 12.

Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, 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.

PQS” means PQS TECH SOLUTIONS LIMITED, a company incorporated in England and Wales under company number 07877176 with registered address at New Chartford House, Centurion Way, Cleckheaton, West Yorkshire BD19 3QB.

PQS website” means the PQS Tech website which has the URL address: www.pqstech.co.uk

Provider” means Topcon Europe Positioning B.V. or other Topcon subsidiary providing the Software that is accessible to the Customer.

Scope of Work” or “SOW” means the document or other written communication that details the Customer’s order for the supply of Services and the description and/or specification of the Services. This includes written confirmation of orders placed through the PQS website (www.pqstech.co.uk) and any written communication regarding the order that follows between PQS and the customer.

Services” means:

(i)PQS’ facilitation and provision of access to (and use of) the Software to the Customer;

(ii)PQS’ facilitation of any wireless data plan required for the Customer to effectively use the Software; and

(iii)any supplementary assistance provided by PQS to the Customer to enable it to use the Software,

as set out in the SOW.

Software” means the Provider’s ‘Topnet Live Services’ software.

UK GDPR” has the meaning given to it in section 3(10) (as supplemented by section205(4)) of the Data Protection Act 2018.

1.2

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

1.3

A reference to a party includes its successors and permitted assigns.

1.4

A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

1.5

Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

1.6

A reference to writing or written excludes fax but not email.

2. Basis of contract

2.1

Upon the customer purchasing Services through the PQS website and receiving written confirmation of the successful placement of the order, the Contract shall be formed (“Commencement Date“).

2.2

The Contract shall continue until all of the Services have been delivered or until such Contract is terminated in accordance with clause 11 of these Conditions.

2.3

Any samples, drawings, descriptive matter or advertising issued by PQS and any descriptions of the Products or illustrations or descriptions of the Services contained in PQS’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract nor have any contractual force.

2.4

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 law, trade custom, practice or course of dealing.

3. Supply of Services

3.1

PQS warrants to the Customer that the Services will be provided using reasonable care and skill.

3.2

PQS reserves the right to amend the SOW if necessary to comply with any applicable law, regulatory requirement or mandate issued by the Provider, or if the amendment will not materially affect the nature or quality of the Services, and PQS shall notify the Customer in any such event.

4. Software Warranty

4.1

The Customer acknowledges that the Software is provided by the Provider and not PQS. PQS makes no representation, warranty or guarantee as to the reliability, timeliness, quality, suitability, availability, accuracy or completeness of the Software, the content contained on the Software or any access thereto, and PQS gives no representation or warranty that:

(a)

the use of the Software will be secure, timely, uninterrupted or error-free or that the Software will effectively operate in combination with the Customer’s own hardware, software, systems or data; and

(b)

the Software will meet the Customer’s requirements or expectations.

4.2

PQS will (in so far as it is able) pass on to the Customer the benefit of any warranty relating to the Software which the Provider gives PQS in relation to such Software.

5. Customer’s obligations

5.1

The Customer shall, at all times, comply with the Provider’s terms and conditions of supply of the Software (i.e. “Topnet Live GNSS Network Service Terms of Service”) which can be found on the Provider’s website, or shall be made available to the Customer by PQS on request.

5.2

The Customer shall:

(a)

ensure that the information in the SOW is complete and accurate;

(b)

co-operate with PQS in all matters relating to the Services;

(c)

provide PQS with such information and materials as PQS may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;

(d)

ensure that it has possession or control of the relevant Devices to allow it toeffectively use the Software;

(e)

ensure that any site location in which the Services are to be delivered has and maintains sufficient access to the internet in order to ensure that the Services can be effectively delivered;

(f)

(if applicable) prepare the Customer’s premises for supply of the Services and provide PQS, its employees, agents, consultants and subcontractors, with access to the Customer’s premises, office accommodation and other facilities as reasonably required by PQS to provide the Services;

(g)

(if applicable) act in accordance with applicable laws to ensure that any site location in which the Services are to be delivered shall not expose any personnel of either the Customer, PQS or any other third party, to any risk to health or safety that may cause harm to such personnel;

(h)

obtain and maintain all necessary licences, permissions and consents which may be required for the Customer to be in receipt of the Services before the date on which the Services are to start; and

(i)

comply with all applicable laws.

5.3

Notwithstanding the other rights and remedies set out within clause 10, if PQS’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation under this Agreement (“Customer Default“):

(a)

without limiting or affecting any other right or remedy available to it, PQS shall have the right to suspend performance of the Services and remove the Customer’s access to the Software 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 in each case to the extent the Customer Default prevents or delays PQS’s performance of any of its obligations;

(b)

PQS shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from PQS’s failure or delay to perform any of its obligations as set out in this clause 5.3; and

(c)

the Customer shall reimburse PQS on written demand for any costs or losses sustained or incurred by PQS arising directly or indirectly from the Customer Default.

6. Price and Payment

6.1

The price for the Services shall be as set out on the PQS website at the date of the SOW and must be successfully paid by the Customer prior to the commencement of any of the Services as set out in the SOW.

6.2

PQS reserves the right to adjust the charges for any Services at any time to reflect any increases in the cost of delivering the Services due to any increase in the Price of the Software as implemented by the Provider.

6.3

If any payments, further to the initial payment made by the Customer at the commencement of the Contract, are due by the Customer to PQS in line with these terms and conditions, PQS shall invoice the Customer on and/or at any time after the relevant Contract is formed for the Services. The Customer shall pay each invoice submitted by PQS:

(a)

Prior to the commencement or reinstatement of the provision of Services by PQS; and

(b)

in full and in cleared funds to a bank account nominated in writing by PQS, and time for payment shall be of the essence of the Contract.

6.4

PQS reserves the right to suspend the provision of Services to the Customer until any payments that are due by the Customer to PQS in line with these terms have been paid in full.

6.5

If the Customer’s access to the Software is removed or suspended by the Provider further to the Customer’s breach of this Agreement, provided that PQS does not terminate the Contract and the Provider gives its consent for the Customer’s access to the Software to be reinstated, PQS reserves the right to charge the Customer the Administrative Reinstatement Fee to facilitate such reinstatement, this fee must be paid in full to PQS prior to PQS reinstating the Customers access to the Software.

6.6

All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by PQS to the Customer, the Customer shall, on receipt of a valid VAT invoice from PQS, pay to PQS such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

6.7

All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

7. Intellectual Property Rights

7.1

All Intellectual Property Rights in or arising out of or in connection with the Software shall be owned by the Provider. Nothing in the Contract grants the Customer any right of ownership to the Software.

8. Data Protection

The terms Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures shall be as defined in the Data Protection Legislation.

8.1

It is not anticipated by either party that any processing of personal data will occur further to delivery of the Services, however to the extent that any personal data is processed, this clause 8 will apply.

8.2

Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.

8.3

More information surrounding how PQS process personal data can be found athttps://www.pqstech.co.uk/privacy-policy/.

9. Confidentiality

9.1

Each party undertakes that it shall not at any time during the Contract, and for a period of 5 (five) years after termination of the Contract, disclose to any person any confidential information concerning the business, assets, affairs, customers, clients or suppliers of the other party or of any member of the group of companies to which the other party belongs, except as permitted by clause 9.2.

9.2

Each party may disclose the other party’s confidential information:

(a)

to its employees, officers, representatives, contractors or subcontractors or advisers who need to know such information for the purposes of exercising the party’s rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information comply with this clause 9; and

(b)

as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

9.3

No party shall use any other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

10. Limitation of Liability

10.1

The restrictions on liability in this clause 10 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise.

10.2

Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a)

death or personal injury caused by negligence;

(b)

fraud or fraudulent misrepresentation; or

(c)

any other liability that cannot be limited under the laws of England and Wales.

10.3

The Customer acknowledges that it is solely responsible for the proper maintenance, operation and support of any of its hardware and/or equipment that is used in connection with its receipt of the Services and the Customer assumes all risk related to the proper maintenance, operation and support of any of its hardware and/or equipment.

10.4

PQS shall have no liability to the Customer for: (a) loss of profits; (b) loss of sales or business; (c) loss of agreements or contracts; (d) loss of anticipated savings; (e) loss of use or corruption of software, data or information; (f) loss or damage to hardware; (g) wasted expenditure; (h) loss of or damage to goodwill; and (i) indirect or consequential loss.

10.5

PQS’s total liability to the Customer shall not exceed the total charges paid or payable by the Customer under the Contract in the preceding 12 (twelve) month period, or if the Contract has not been ongoing for a period of 12 (twelve) months or more the total charges paid or due to be paid by the Customer in the first 12 (twelve) months of the Contract.

10.6

THE CUSTOMER SHALL INDEMNIFY PQS, AND KEEP PQS INDEMNIFIED, AGAINST ALL LIABILITIES, COSTS, EXPENSES, DAMAGES AND LOSSES (INCLUDING BUT NOT LIMITED TO ANY DIRECT, INDIRECT OR CONSEQUENTIAL LOSSES, LOSS OF PROFIT, LOSS OF REPUTATION AND ALL INTEREST, PENALTIES AND LEGAL COSTS (CALCULATED ON A FULL INDEMNITY BASIS) AND ALL OTHER REASONABLE PROFESSIONAL COSTS AND EXPENSES) SUFFERED OR INCURRED BY PQS ARISING OUT OF OR IN CONNECTION WITH THE CUSTOMER’S BREACH OF THESE CONDITIONS (INCLUDING WITHOUT LIMITATION THE CUSTOMER’S OBLIGATION UNDER CLAUSE 5.1).

10.7

Except as expressly set out in these Conditions, all warranties, conditions and other terms implied by statute or common law or otherwise are, to the fullest extent permitted by law, excluded from the Contract.

10.8

This clause 10 shall survive termination of the Contract.

11. Termination and consequences of termination

11.1

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 commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within 25 (twenty five) days after receipt of notice in writing to do so;

(b)

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), obtaining a moratorium, 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

(c)

the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business.

11.2

Without affecting any other right or remedy available to it, PQS may terminate the Contract (any other contract between PQS and the Customer) with immediate effect by giving written notice to the Customer if:

(a)

the Customer breaches clause 5.1 of these Conditions;

(b)

the Customer fails to pay any amount due under the Contract on the due date for payment and remains in default not less than 7 (seven) days after being notified to make such payment;

(c)

there is a change of Control of the Customer.

11.3

On termination of the Contract:

(a)

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

(b)

the Customer’s access to the Software shall immediately cease;

(c)

any licences granted by either party to the other party under or in connection with the Contract shall immediately cease.

11.4

Termination of the Contract shall not affect any rights, remedies, obligations and 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.

11.5

Any provision of the Contract that expressly or by implication is intended to have effect after termination shall continue in full force and effect.

12. Force majeure

12.1

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (“Force Majeure Event“). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for 3 (three) months, the party not affected may terminate the Contract by giving 14 (fourteen) days’ written notice to the affected party.

13. General

13.1

Assignment and other dealings

(a)

PQS may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract.

(b)

The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of PQS.

13.2

Notices

(a)

Any notice given to a party under or in connection with the Contract shall be inwriting and shall be:

(i)

delivered by hand or by pre-paid first-class post or other next working day deliveryservice at its registered office or its principal place of business;

(ii)

sent by email to the addresses specified in the relevant SOW or the email used by the relevant party to communicate with the other party in relation to the Contract if no email is specified in the SOW.

(b)

Any notice shall be deemed to have been received:

(i)

if delivered by hand, at the time the notice is left at the proper address;

(ii)

if sent by next working day delivery service, at 9.00 am on the second Business Day after posting; or

(iii)

if sent by email, at the time of transmission, or, if this time falls outside businesshours in the place of receipt, when business hours resume (business hours being betweenthe times of 9:00am and 5:00pm).

(c)

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

13.3

Severance. 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. If any provision or part provision of the Contract is deemed deleted under this clause 13.3 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

13.4

Waiver. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

13.5

No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

13.6

Entire agreement.

(a)

The Contract constitutes the entire agreement between the parties.

(b)

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

13.7

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

13.8

Variation. Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

13.9

Governing law and jurisdiction. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.