Kelsius – Terms & Conditions
1. The Equipment referred to in this agreement shall consist of the following:
(i) Equipment purchased by the Customer from Kelsius (“Customer Equipment”)
(ii) Equipment supplied by Kelsius to the Customer which will remain in the ownership of Kelsius (“Kelsius Equipment”)
The equipment, as described in the agreement, shall be deemed to include all accessories, tools and fittings and all additions and renewals made to and replacements for the Equipment.
2. The following services will be provided by Kelsius on commencement of or through the duration of the agreement as applicable:
(i) Initial training on using the Kelsius system
(ii) Operating Software upgrades
(iii) Telephone customer services support
(iv) Warranty related service call-outs *(refer to your SLA)
(v) SMS alerts
(vi) Annual Performance / Calibration Reports of equipment
3. The following services are not provided by Kelsius under this agreement:
(i) Refresher training
(ii) Service call-outs due to misuse/damage of equipment (refer to your SLA)
Prices for the above services are available on request from Kelsius.
4. The following items are deemed to be consumables and will therefore be charged as per the standard Kelsius price list in place at the time of re-ordering: Tablets, Probes, Probe tips, printer labels, chargers, wall brackets, tablet cases and usb adapters.
5. Prices are available on request from Kelsius if the customer wishes to add additional probes and sensors to those originally installed.
6. The Customer shall ensure that there is constant WiFi access for Tablets and that if the Network Controller is attached to the network that this is always on.
7. The Customer must ensure that the Equipment is powered on at all times and operated properly and in accordance with the operating instructions delivered with the Equipment.
8. Kelsius warrants to the customer, that all equipment supplied will be free from defects in material and workmanship under normal use as follows:
(i) Tablets, printers & probes – warranty for a period of 6 months after original delivery to the customer
(ii) All other equipment – warranty for the duration of the agreement after original delivery to the customer
During the equipment warranty period upon proper notice to Kelsius, Kelsius will either:
(a) Repair and return the defective equipment within a reasonable time frame
(b) Replace the defective equipment with a new or refurbished component
(c) Replace the defective equipment with a different but similar component that contains compatible feature or functions.
Restrictions on the Equipment Warranty
This warranty does not apply if the equipment:
(a) is altered from its original specifications,
(b) is installed, configured, implemented or operated in a way that is contrary to its documentation,
(c) has damage resulting from negligence, accident or environmental stress or
(d) was subject to unauthorized repair or modification.
All defective equipment under warranty must be returned to Kelsius within two weeks of receiving the replacement equipment.
Replacement equipment will be invoiced at list price in the event that:
(a) defective products are not covered by warranty,
(b) lost products are being replaced, and,
(c) defective products are not returned to Kelsius.
9. The Customer shall not cause or permit the equipment to be removed from the premises indicated overleaf without prior consent of Kelsius. The Customer shall permit Kelsius or its authorised representative’s at all reasonable times to enter upon the premises where the equipment may from time to time be placed to inspect and test the condition of the equipment.
10. The agreement shall commence on the date of installation and the system is confirmed to be functional by the Kelsius Customer Services Team and shall remain in full force for the duration of the contract.
11. On commencement of the agreement the Customer will pay Kelsius the Monthly Service charge within 30 days with subsequent payments to be made thereafter at the agreed consecutive interval. The customer will also pay for the Kelsius equipment and installation within 30 days.
12. Upon serving an intention to terminate the agreement the customer is required to:
(i) Notify Kelsius 60 Days in advance of termination. The agreed payment will continue until the notice period of 60 days has been met.
(ii) Return the Kelsius Equipment to Kelsius and, if so required, provide access to Kelsius for the removal of the equipment.
13. Kelsius may give the customer not less than 6 months written notice of intention to terminate the contract. The customer will continue to pay the monthly service charge until access is granted for the removal of the Kelsius equipment.
14. The Customer shall not sell, assign, let or hire or otherwise depose or part with possession of the equipment or any part thereof or assign or charge the benefit of the Agreement or attempt to do any of the above.
15. Either party may terminate this agreement with the service of written notice on the other party if the other party shall commit any material breach of its obligations hereunder and shall not within 30 days of receipt of a written notice specifying the breach, remedy same.
16. Kelsius may terminate this agreement in the event of:
(i) Any distress, execution, or other legal process shall be levied on or due against the equipment or any part thereof or any premises where the same maybe or any of the Customer’s goods or other property or the Customer shall permit any judgement against him/it to remain unsatisfied for 7 days; or
(ii) The Customer, being an individual, shall die, shall commit any act of bankruptcy, shall suffer sequestration against any of the assets, shall have a receiving order made against him or shall make or negotiate for any composition or arrangement with or any assignment for the benefits of his creditors; or
(iii) The Customer, being a body corporate shall pass a resolution for voluntary winding up (other than for the purpose of amalgamation or reconstruction on term: previously approved by the Owner) or shall have a winding up order made against it or have a receiver or administrator appointed in respect of all or any part of its assets or calls a meeting of, or enters into any arrangement with, its creditors or ceases to carry on business.
(iv) Payment(s) not being received within the agreed payment terms.
17. The Customer shall upon any such termination:
(a) Pay all arrears of and sums then due under Condition 12 above; and
(b) Return the Kelsius equipment to Kelsius and if so required, provide access to Kelsius for the removal of the equipment.
The termination of the Agreement shall not affect any rights of Kelsius or liabilities of the Customer subsisting at the date of termination.
18. Kelsius assume no responsibility for consequential loss or contingent liability arising out of the use of the system. The configuration of the system supplied is outlined in the user manual which accompanies the system. The function of the system is described therein in detail.
19. Liability Cap: Unless otherwise agreed by the parties in writing, a Party’s maximum liability in aggregate to the other party arising out of this Agreement shall not exceed an amount equivalent to the Annual Support costs (………….) in respect of breaches other than non-payment of sums owed.
20. Force Majeure. Neither party shall be liable nor deemed to be in default for any delay or failure in performance under this Agreement or other interruption in the discharge of its responsibility, either directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, accidents, fires, explosions, earthquakes, floods, failure of transportation, machinery or supplies, vandalism, strikes or other work interruptions by employees, or any similar or dissimilar cause beyond the reasonable control of either party.
21. This agreement shall be governed by and construed in accordance with the law of Ireland.
22. Kelsius is a GDPR Compliant Company. Our Data Protection Policy and Privacy Statement are available upon request at firstname.lastname@example.org