Implementation Terms & Conditions
Terms & Conditions
Aistetic Limited (Supplier) is a company registered in England and Wales with company number 11776060. Our registered office is at 5 the Chambers Vineyard Abingdon Oxfordshire OX14 3PX. These standard implementation terms and conditions (Conditions) apply to all services provided by the Supplier that are set out in a Proposal that has been signed by the Customer and the Supplier. The Proposal and these Conditions (plus any documents referred to in these Conditions) together constitute one entire agreement between the Supplier and the Customer regarding the supply of the relevant Services (Contract).
1. UNDERSTANDING THESE TERMS
Applicable Law: all applicable laws, regulations, codes of practice, guidelines, decisions, orders and decrees imposed by law or any competent national or international governmental or regulatory authority, including all advertising laws, regulations and codes, and Data Protection Legislation.
Business Day: any day that is not a Saturday, Sunday or public holiday in England.
Customer: the customer identified in the Proposal.
Customer Materials: any software, content and materials, and all Intellectual Property Rights in or to them, relating to the Customer that are provided or made available by the Customer to the Supplier for the purpose of providing the Services.
Data Protection Legislation: means the GDPR, the UK Data Protection Act 2018,Directive 2002/58/EC and any legislation and/or regulation implementing or made pursuant to them, or which amends, replaces, re-enacts or consolidates any of them, and all other applicable laws relating to processing of personal data and privacy that may exist in any relevant jurisdiction. GDPR means, in each case to the extent applicable to the processing activities: (i) Regulation (EU) 2016/679; and (ii) Regulation (EU) 2016/679 as amended by any legislation arising out of the withdrawal of the UK from the European Union.
Deliverables: the deliverables specified in the Proposal and/or Scope of Work.
Deposit: the lump sum advance payment (if any) specified in the Proposal that is payable by the Customer to the Supplier on the Commencement Date.
Due Diligence: a review by the Supplier of the agreed Proposal and Scope of Work (as defined in clause 3.2 below).
Fees: the fees payable by the Customer for the supply of the Services, as specified in the Proposal.
Intellectual Property Rights: patents, utility models, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, 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, including the Software, Supplier and Customer Materials 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.
Proposal: the written proposal for the supply of Services issued by the Supplier and agreed by the parties in accordance with clause 2 below.
Recurring Fee: the monthly or annual fee (if any) specified in the Proposal that is payable by the Customer to the Supplier for the Services monthly in instalments.
Service Description: the written description of the Services set out in the Proposal, and/or Scope of Work.
Services: the Services, including the Deliverables, specified in the Proposal, and/or Scope of Work.
Set Up Fee: the non-refundable fee (if any) specified in the Proposal that is payable by the Customer to the Supplier.
Software: the algorithm, user interface, database, knowhow, patented or otherwise protected computer code and any other ancillary knowledge relating to the human body sizing technology developed and owned by the Supplier.
Supplier: Aistetic Limited.
Supplier Materials: all software, content and materials, and all Intellectual Property Rights in or to them, provided or made available to the Customer.
Term: as defined in clause 16 below.
1.2.1. A reference to a statute or statutory provision is a reference to it as amended or re-enacted. A reference to a statute or statutory provision includes all subordinate legislation made under that statute or statutory provision.
1.2.2. Any words following the terms including, include, in particular, for example or any similar expression, will be construed as illustrative and will not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.2.3. A reference to writing or written includes email.
2. BASIS OF CONTRACT
2.1. The parties acknowledge and agree that the issuance by the Supplier of a written proposal for services shall constitute an offer which shall be deemed accepted when the Customer signs the proposal or instructs the Supplier to commence work, whichever is earlier (at which point, it shall become a Proposal and the Contract will come into existence (Commencement Date). Each Proposal creates a separate contract.
2.2. Either the Supplier or the Customer may cancel or reject a written proposal by written notice to the other party at any time prior to the Commencement Date.
2.3. 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. SCOPE OF WORK
3.1. Within 20 Business Days from Due Diligence being carried out by the Supplier, the Supplier may require that the parties have a scope of work call, during which they will discuss and agree the scope of Services to be provided, including details of all Deliverables, any variations to the initial Proposal and resulting changes to the Fees.
3.2. During or following the scope of work call, the Supplier may issue a written document confirming the agreed scope of services (Scope of Work). The parties acknowledge that where any such Scope of Work is issued, it may differ from the Proposal should such result from the parties’ discussions.
3.3. Any Scope of Work agreed in writing by the parties (including by email exchange) will be final and binding. If there is any conflict or inconsistency between the Proposal and a Scope of Work, the Scope of Work will prevail. No changes to a Scope of Work will be valid unless they agreed in accordance with the Change Procedure.
4. SUPPLY OF SERVICES
4.1. The Supplier shall not be obliged to provide any Services until a Proposal has been agreed in accordance with clause 2, save where the Supplier issues a Scope of Work in accordance with clause 3, in which case the Supplier shall not be obliged to provide any Services until such Scope of Work has been agreed in writing.
4.2. The Supplier will:
4.2.1. supply the Services to the Customer in accordance with the Proposal and/or Scope of Work (as applicable) in all material respects;
4.2.2. use all reasonable endeavours to meet any timeline(s) specified in the Proposal and/or Scope of Work, but such timeline(s) will be estimates only and time will not be of the essence for performance of the Services.
4.3. The Supplier can amend the Service Description if necessary, to comply with any Applicable Law, or if the amendment will not materially affect the nature or quality of the Services. The Supplier will notify the Customer in writing of any change to the Service Description.
4.4. Subject to clause 9.1 the Customer acknowledges that the Services are provided “as is" and to the fullest extent permitted by law any warranties other than those set out in this clause 4 (whether express or implied by law, statute or otherwise) as to the quality and availability of the Services and their correspondence with the Service Description, are excluded.
4.5. Notwithstanding any other provisions of this Contract, the Customer acknowledges and agrees that whilst the Services will generally be provided with reasonable care and skill, should any inaccuracies, failures or delays occur due to human error, the Customer shall notify the Supplier in writing of the same and Supplier shall within 30 days use reasonable endeavours to correct the issue and/or provide a reasonable solution. Where the Contractor complies with its obligations under this clause 4.5, it shall not be deemed to have committed any breach and shall not be liable to the Customer for any losses arising in connection with the relevant inaccuracy, failure or delay. We are not responsible for in-accurate results outside our control. We cannot guarantee accuracy. If our software is not able to provide accurate results (such as measurements, visualisations, recommendations) owing to factors (e.g. because of not wearing the right clothing, turning too quickly, not standing in front of a simple background or not capturing all of your body in the frame), we’ll let you know as soon as possible.
5. CUSTOMER OBLIGATIONS
5.1. The Customer will:
5.1.1. cooperate with the Supplier in all matters relating to the Services and respond in a timely manner to Supplier’s communications;
5.1.2. promptly provide the Supplier with such information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
5.1.3. obtain and maintain all necessary licences, permissions and consents which may be required to receive and use the Services;
5.1.4. be responsible for: (i) the accuracy and completeness of information concerning Customer’s organisation, products and services, which is provided to Supplier by Customer or by a third party authorised by Customer; (ii) any ideas or directions, provided to Supplier by Customer or by a third party authorised by Customer; and (iii) the content of any materials approved by Customer.
5.2. If the Supplier's performance of any of its obligations under this Contract is prevented, restricted or delayed by any act or omission by the Customer or failure by the Customer to perform any obligations under this Contract (Customer Default):
5.2.1. without limiting or affecting any other right or remedy available to it, the Supplier will have the right to suspend performance of the Services 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 the Supplier's performance of any of its obligations. Where the Services are suspended pursuant to this clause 5.2.1 the Term shall be extended for an additional period equal to the period during which the Services are suspended (Service Suspension Period); and (b) the Fee payable in respect of the Services during the Service Suspension Period shall be reduced to an amount equal to 20% of the Fees that would have been payable during the Service Suspension Period in circumstances where the Services had not been suspended;
5.2.2. without limiting or affecting any other right or remedy available to it, the Supplier shall also be entitled at its sole discretion to:
increase the Fees associated with the Services on a pro-rata basis with reference to any additional time and/or resources required to continue to perform the Supplier’s obligations under this Contract;
propose appropriate alternative contractual terms in good faith (acting reasonably) with view to addressing any delays, additional costs or other issues arising as a result of the Customer Default, which terms shall not be unreasonably refused by the Customer. Where the Supplier makes a proposal of alternative contractual terms (in writing), the alternative contractual terms shall be deemed to be accepted should the Supplier not receive a response in writing from the Customer within 14 days of the date on which the proposal was made; or terminate the Contract with immediate effect by giving written notice to the Customer.
5.2.3. the Supplier will not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations where this Clause 5.2.3 applies; and
5.2.4. the Customer will reimburse the Supplier on demand for any costs or losses arising directly or indirectly from the Customer Default.
6. CHANGES TO PROPOSAL OR SCOPE OF WORK
6.1. Throughout the Term the Customer and the Supplier will have regular meetings (in person, by phone or by video conference) to discuss progress and resolve any issues relating to Services.
6.2. If, as a result of such a meeting, the parties have agreed to make any change to the Services, Proposal and/or Scope of work, the Supplier will submit a written statement (“Customer Contact Form”) to the Customer by email, setting out (a) the proposed changes and (b) any resulting changes to the Fees and/or estimated timelines.
6.3. The Customer may object to such changes by responding to the Supplier by email within 5 Business Days of the date of the Customer Contact Form, and the parties will meet to agree in good faith an appropriate way forward.
6.4. If the Customer does not raise any objection within 5 Business Days, the proposed changes will be deemed to have been changed in accordance with the Customer Contact Form.
6.5. The Customer may request changes to a Proposal or Scope of Work at any time by submitting a written email request to the Supplier (Change Request). The Supplier will endeavour to respond to any Change Request within 5 Business Days by either (a) providing written details of the estimated timeline and any additional costs to be charged to the Customer for implementing the Change Request (Change Email) or (b) rejecting the Change Request with written reasons for its decision.
6.6. The Supplier may at its absolute discretion, reject any Change Request.
6.7. The Supplier may propose material changes to a Proposal or Scope of Work at any time by submitting a Change Email to the Customer explaining the reasons for the proposed changes and setting out details of the estimated timeline and any additional costs to be charged to the Customer for implementing proposed changes.
6.8. The Supplier will not implement any material changes to a Proposal, Scope of Work, Listing or Marketing Materials unless the Customer has provided written acceptance of the relevant Change Email.
6.9. The Supplier may implement non-material changes at any time without permission.
7. REPORTING AND PAYMENT
7.1. The initial implementation fee as set out in the proposal will be invoiced to the Customer on the signature of the Proposal.
7.2. Subsequent implementation fees will be invoiced on the dates or on achieving the milestones as set out in the Proposal.
7.3. The Supplier will invoice the Customer monthly in advance for any monthly service fees.
7.4. The Customer will pay each invoice submitted by the Supplier:
7.4.1. as soon as reasonably practicable and in any event within 5 working days of the date of the invoice; and
7.4.2. in full and in cleared funds to the Suppliers bank account nominated in writing by the Supplier, and
7.4.3. time for payment will be of the essence of the Contract.
7.5. All amounts payable by the Customer to the Supplier are exclusive of any value added tax or other sales tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer will, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier 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.
7.6. If the Customer fails to make a payment to the Supplier by the due date then, without limiting the Supplier's remedies under Clause 13, the Customer will pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgement. Interest under this Clause 6.6 will accrue each day at the higher of 4% a year, or 4% above the Bank of England's base rate from time to time.
7.7. All amounts payable by the Customer under this Contract will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8. INTELLECTUAL PROPERTY RIGHTS
8.1. As between the Customer and the Supplier, the Supplier owns or licenses the Supplier Materials and the Customer owns or licenses the Customer Materials. Nothing in this Contract is intended to, or will be deemed to, transfer any right, title or interest in any Intellectual Property Rights belonging to one party to the other party.
8.2. The Customer grants the Supplier a non-exclusive, non-transferable, non-assignable, revocable, royalty free licence during the Term to use the Customer Materials solely for the purpose of providing the Services.
8.3. The Supplier grants the Customer a non-exclusive, non-transferable, non-sublicensable, non-assignable, revocable licence, during the Term to use the Supplier’s Software and Materials solely for the purpose of receiving the Services. Title, copyright, intellectual property rights, and distribution rights of the Software remain exclusively with the Supplier at all times. Intellectual property rights include the software’s aesthetic, look, and feel. This Agreement constitutes a license for use only and is in no way a transfer of ownership rights to the Software.
8.4. Improvements, developments, advances and changes will be made to the Software as a natural result of the Proposal. It is hereby acknowledged and agreed that the ownership of the intellectual property invested in the Software as a result of these improvements whether or not such improvements arise from suggestions, work or any other input from the Customer remains wholly vested in the Supplier.
9.1. Each party warrants and represents to the other that it has all right, title and authority to enter into and perform its obligations under this Contract.
9.2. The Customer warrants and represents that:
9.2.1. when using the Services and performing its obligations under this Contract, it will, comply with all Applicable Laws;
9.2.2. it has obtained all necessary rights, permissions, licences and consents required for the Supplier to exercise the licence granted to it in clause 8;
9.2.3. the Supplier's use of the Customer Materials will not breach (a) any Applicable Laws and/or (b) any third-party rights (including without limit any Intellectual Property Rights);
9.2.4. it shall not do or omit to do anything which may bring the name or reputation of the Supplier into disrepute or prejudice the interests of the business of the Supplier; or
9.2.5. cause the Supplier to lose any licence, authority, consent or permission on which it relies for the purposes of conducting its business.
10.1. Each party undertakes that it will not at any time during the Term, and for a period of two years after, disclose to any person any confidential information concerning the business, 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 clauses.
10.2. Each party may disclose the other party's confidential information:
10.2.1. to its employees, officers, representatives, contractors, 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 this Contract. Each party will ensure that its employees, officers, representatives, contractors, subcontractors or advisers to whom it discloses the other party's confidential information comply with this Clause 10; and
10.2.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
10.3. Neither party will 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 this Contract.
10.4. Both the Supplier and Customer reserve the right to advertise, and share non-confidential elements of this work externally with prospective investors, customers, and partners. This could include and is not limited to logos, and general (non-confidential information) information that could be used in presentations and websites.
11.1. The Customer shall not, without the Supplier’s prior written consent, during the Term of or for a period of twelve (12) months after the expiry or termination of this Contract solicit or entice away from the Supplier or employ or attempt to employ any person who is, or has been, engaged as an employee or consultant by the Supplier in the provision of the Services.
12. DATA PROTECTION
12.1. The Customer and Supplier will comply, and will ensure that their respective personnel comply with, the provisions of the Data Protection Legislation applicable to the provision of the Services.
12.2 The Customer and Supplier will have a Data Sharing agreement in place, ensuring that personal and marketing data collected by either the Customer and Supplier as part of this work, is jointly controlled and processed by both parties.
13.1. The Customer hereby indemnifies the Supplier 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 reasonable legal costs suffered or incurred by the Supplier arising out of or in connection with the Customer's breach of the warranties set out in clause 9.
13.2. Clauses 14.2 and 14.3 will not apply to the Customer's indemnity obligations under clause 13.1.
14. LIMITATION OF LIABILITY
14.1. Nothing in this Contract will exclude or limit the liability of either party to the other for:
14.1.1. death or personal injury arising out of negligence;
14.1.2. fraud or fraudulent misrepresentation; or any other liability that cannot be excluded or limited by law.
14.2. Subject to clause 14.1, the total liability of the Supplier to the Customer, including liability for breach of contract, misrepresentation (whether tortious or statutory) and tort in respect of liability for loss of, or damage to, tangible property(including real property) arising as a result of the acts or omissions of the Supplier or the Supplier Personnel under or in connection with this Contract will not exceed the greater of:
14.2.1. £100; or
14.2.2. a sum equal to the total Fees paid or payable by the Customer under this Contract and the Proposal.
14.3. Subject to clause 14.1, neither party will be liable to the other party for:
14.3.1. any indirect, special or consequential loss or damage; or
14.3.2. any loss of profits, business opportunities, loss of anticipated savings or damage to goodwill (whether direct or indirect); or
14.3.3. any loss or corruption of data; or
14.3.4. any management expenses incurred as a result of the other party's breach of the Contract.
15. SUSPENSION OF SERVICES
15.1. Without prejudice to its other rights, the Supplier may suspend all or any part of the provision of the Services without notice to the Customer if:
15.1.1. the Customer fails to pay when due any Fees, until the payment is received in full; or
15.1.2. the Customer is in material breach of any term of the Contract, until such breach has been remedied to the Supplier's satisfaction; or
15.1.3. to comply with Applicable Laws.
15.2. The Customer will continue to pay the Fees for any Services that are suspended in accordance with clause 15.1.1 or 15.1.2.
16. TERM AND TERMINATION
16.1. This Contract will commence on the Commencement Date and continue for the term stated in the Proposal, unless no term is stated in the Proposal in which case it shall continue for 12 months (Initial Term), following which it will automatically renew on the same terms for successive periods equal to the Initial Term (each an Extended Term); in either case unless terminated by either party giving written notice to terminate at least 30 days before the end of the Initial Term or then current Extended Term (Term).
16.2. Without prejudice to its other rights, either party may terminate this Contract immediately on written notice to the other party if:
16.2.1. the other party commits a material breach of this Contract (or a series of persistent minor breaches of this Contract which, when taken together, amount to a material breach) and the breach (i) is not capable of remedy or (ii) is capable of remedy but the other party fails to remedy the breach within 30 days of the Supplier’s written request to do so; or
16.2.2. the other party: goes into liquidation; an administrator or receiver is appointed over the whole or any part of that other party's assets; enters into any arrangement for the benefit of or compounds with its creditors generally; or threatens to do any of these things or any judgement in respect of a debt is made against the other party; or there is any similar occurrence under any jurisdiction affecting the other party; and/or
16.2.3. the other party ceases or threatens to cease to carry on business.
16.3. The Supplier may terminate this Contract immediately on written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment and remains in default for 30 days.
17. CONSEQUENCES OF TERMINATION
17.1. Termination or expiry of this Contract will:
17.1.1. be without prejudice to all rights and remedies that have already accrued to either party under this Contract prior to such expiry or earlier termination; and not affect any provision of this Contract which is expressly or by implication intended to come into or remain in effect on or after termination or expiry. On expiry or termination of this Contract for any reason: all licences granted under this Contract will terminate immediately. all sums due and payable by one party to another as at the date of termination or expiry of this Contract (as applicable) will be paid within 20 Business Days of termination; and
17.1.2. the Customer will immediately cease all use of the Supplier Materials; and
17.1.3. each party will promptly destroy or return to the other (on request by the other party) all property of the other (including the Marketing Materials) and all Confidential Information belonging to the other that is within its possession or reasonable control at the time of termination.
17.2. If the Contract is terminated before the expiry of the Initial Term for any reason, the remainder of the Recurring Fee for that year will become immediately due and payable.
18. FORCE MAJEURE
18.1. Neither party will be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract (other than the Customer’s obligation to pay the Fees) if such delay or failure result from events, circumstances or causes beyond its reasonable control. In such circumstances the affected party will be entitled to a reasonable extension of the time for performing such obligations. If the period of delay or non-performance continues for 3 months, the party not affected may terminate this Contract immediately by giving written notice to the affected party.
19.1. Where any provision of this Contract refers to a party notifying, or otherwise providing a notice to, the other party (the associated notice being a "Notice"), any such Notice will be in writing in English and delivered by hand; sent by email or sent by first class recorded delivery to the address set out in the Order Confirmation (or otherwise notified by one party to the other in accordance with this clause 19.
19.2. This clause 19 will not apply to documents served in the course of court proceedings.
20. ENTIRE AGREEMENT
20.1. This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all agreements, arrangements, promises, undertakings, proposals, warranties, representations and understandings between them at any time before their respective signature ("Pre-Contractual Statements"), whether written or oral, relating to its subject matter.
20.2. Each party acknowledges that in entering into this Contract it does not rely on any Pre-Contractual Statement made by or on behalf of the other party (whether made innocently or negligently) in relation to the subject matter of this Contract, other than those which are set out expressly in this Contract.
20.3. Each party agrees that it will have no claim for innocent or negligent misrepresentation or negligent misstatement based on, and hereby waives all rights and remedies which might otherwise be available to it in relation to, any Pre-Contractual Statement.
20.4. Nothing in this clause 20 will limit or exclude the liability of either party arising out of any pre-contractual fraudulent misrepresentation or fraudulent concealment.
21.1. The Customer will not assign, transfer, mortgage, charge, declare a trust over ordeal in any other manner with this Contract, or with any of its rights or obligations under this Contract, without the prior written consent of the Supplier (not to be unreasonably withheld or delayed).
21.2. The Supplier may at any time assign, subcontract, transfer, mortgage, charge, declare a trust over or deal in any other manner with its rights or obligations (as applicable) under this Contract.
21.3. A person who is not a party to this Contract may not enforce any of its provisions under the Contracts (Rights of Third Parties) Act 1999.
21.4. If any provision, or part of a provision, of this Contract is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision will be deemed not to form part of this Contract and the legality, validity or enforceability of the remainder of the provisions of this Contract will not be affected, unless otherwise required by operation of applicable law.
21.5. The rights, powers and remedies provided in this Contract are (except as expressly provided) cumulative and not exclusive of any rights, powers and remedies provided by Law or otherwise.
21.6. Nothing in this Contract is intended to, or will be deemed to, establish or constitute any partnership or joint venture between the parties, create a relationship of principal and agent for any purpose between the parties, or authorise either party to make or enter into any commitments for or on behalf of the other party.
21.7. The failure to exercise, or delay in exercising, a right, power or remedy provided by this Contract or by Law will not constitute a waiver of that right, power or remedy.
21.8. If a party waives a right, power or remedy arising as a result of a breach of any provision of this Contract, this will not operate as a waiver of any right, power or remedy arising as a result of any subsequent breach of that provision or any other provision of this Contract, which will instead require a variation to this Contract.
21.9. This Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by and construed in accordance with the law of England and Wales.
21.10. Each party irrevocably agrees that the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.