Appendix 1 – The Conditions

1.Definitions and Interpretation

1.1. In this agreement the following words and phrases shall have the following meanings:

“Agreement”

the Contract Particulars and the Conditions;

“Commencement Date”

The date on which the event starts as confirmed by the “Customer”

“Confidential Information”

any information about EA, divulged by EA and/or received or obtained by You prior to or during the period of this agreement which is either marked or expressed by EA as confidential or which may be reasonably considered to be confidential;

“Customer”

the person hiring the Equipment from EA also referred to as “You” and “Your”;

“Data”

information obtained by EA from the Equipment relating to attendees at the Event other than their contact details;

“Day”

9:00am till 5:00pm on any day or otherwise stated;

“Delivery”

the transfer of physical possession of the Equipment to You at the Delivery Address;

“Delivery Address”

the location where the Equipment will be delivered or installed for Your use;

“Equipment”

the number of Sensors specified in the Contract Particulars;

“Event”

the event or location in respect of which information is to be gathered under the Service;

“EA”

Exposure Analytics Limited registered in England and Wales with company number 08818692 and whose registered office is situated at Unit 315 Victory Business Centre, Somers Road North, Portsmouth, PO1 1PJ;

“EA’s Bank Account”

As detailed on the invoice

“EA’s E-mail”

the e-mail address support@exposureanalytics.com;

“Persistent Breach”

in respect of any Period committing the same (or a similar) breach on two (2) or more occasions or committing three (3) or more breaches of this agreement in either case regardless of whether or not any breach was subsequently remedied;

“Payments”

the payments made by or on behalf of You to EA for delivery, installation and supply of the Equipment as further detailed in the quote;

“Period”

As Specified in the quote.

“Portal”

EA’s standard portal for making information collected by Sensors available to its customers;

“Removal”

the transfer of physical possession of the Equipment to EA;

“Sensor”

EA’s sensor to detect footfall analytics, either Apex or EX;

“4G Sensor”

EA’s Sensor that uses cellular mobile services to transmit Data to the Portal.

8.3.1 4G sensors require cellular mobile services to enable the sensor to transfer data to the Portal. In some areas the quality of the cellular service can be poor preventing data to be transferred seamlessly. As a consequence EA can not guarantee that data will be available on the Portal until 4 working days after the 4G sensors have been received by EA

“Service”

the provision of information about attendees at the event/location;

“Total Loss”

due to Your default the Equipment is, in EA’s reasonable opinion, damaged beyond repair, lost, stolen, seized or confiscated;

“Working Day”

any days other than a Saturday or a Sunday or a bank or public holiday in England;

“Your E-mail”

the e-mail address detailed as such in the Contract Particulars.

In this agreement:

1.2.1. Words incorporating the masculine include the feminine and neuter and words incorporating the singular include the plural and vice versa.

1.2.2. The headings to clauses are for the purpose of information and identification only and do not form part of this agreement.

1.2.3. References to any statute or statutory provisions will, unless the context otherwise requires, be construed as including references to any subsequent statute and will include any orders, regulations, instruments or other subordinate legislation made under the relevant statute or statutory provision which are in force as at the date of this agreement or subsequently.

1.2.4. References to persons include individuals, bodies corporate, unincorporated associations, partnerships and any other legal or commercial entity or undertaking.

1.2.5. References to clauses and schedules are (unless otherwise specified) to the clauses and schedules of these Conditions.

1.2.6. Each schedule to these Conditions (if any) shall have the same force and effect as if set out in the main body of these Conditions.

1.2.7. The words “include”, “includes”, “including” and “included” will be construed without limitation unless inconsistent with the context.

2. Basis of agreement

The Contract Particulars and these Conditions (and any documents referred to in them) constitute the whole agreement between You and EA for the supply of the Equipment and provision of the Service. You acknowledge that You have not relied upon any statement, promise or representation made or given by or on behalf of EA which is not set out in this agreement. If any of the Conditions are inconsistent with the Contract Particulars, the Contract Particulars shall prevail.

3. Supply of Equipment

3.1. EA shall provide the Equipment to You for use at the Delivery Address in accordance with the Contract Particulars and these Conditions. EA reserves the right to modify or substitute the Equipment for a similar piece of equipment if required by any repair or applicable statutory or regulatory requirements so long as the substitute or replacement equipment operates to at least the same overall level and standard as the original Equipment.

3.2. EA shall not, other than in the exercise of its rights under these Conditions or applicable law, interfere with Your quiet possession of the Equipment.

4. Payments

4.1. The Period starts on the Commencement Date and shall continue for the Period.

4.2. The Service Fee as outlined in the quote.

4.3. You shall pay to EA the Payments as to 50% on order and 50% no later than one week prior to the Commencement Date or otherwise agreed. The Payments are exclusive of VAT and any other applicable taxes and duties or similar charges which shall be payable by You at the same time. Any other payments You are obliged to pay to EA shall be due upon receipt of invoice.

4.4. All amounts due under this agreement shall be paid in full by bank transfer to EA’s Account without any set-off, counterclaim, deduction or withholding. Time of payment is of the essence.

4.5. If You fail to make any payment due to EA under this agreement by the due date for payment, then, without limiting EA’s other remedies, EA shall be entitled to charge interest on the outstanding amount at the rate prescribed by the Late Payment of Commercial Debts (Interest) Act 1998. You shall pay the interest together with the overdue amount and any costs incurred by EA in recovering such amounts.

5. Delivery, installation and return

5.1. Delivery of the Equipment shall be made by EA to the Delivery Address. EA shall use all reasonable endeavours to effect Delivery by the Commencement Date and at the time agreed between the parties. EA shall not be responsible to You for any delay or failure of Delivery due to reasons outside EA’s control.

5.2. Signature by Your duly authorised representative of EA’s delivery note shall constitute conclusive evidence that You have examined the packaging for the Equipment and have found it to be in good condition and undamaged.

5.3. You shall at Your sole expense provide all requisite materials, facilities and suitable working conditions to enable appropriate use of the Equipment including power and internet connection to the specifications specified by EA.

5.4. You shall ensure that EA will have appropriate access to the Delivery Address for Delivery and Removal of the Equipment and You must confirm to EA that access has been granted. When EA requires you to return the Equipment to it at the end of the Event you shall do so within 14 days after the Event, or incur £100 per Day per Sensor charge.

5.5. EA or You shall install and calibrate the equipment so that it detects the footfall data for the Event and transmits the relevant information to EA.

5.6. Where the Equipment is battery operated you will ensure that a charged battery is connected to the Equipment at all times when the Event is taking place.

6. Title, Risk and Insurance

6.1. Equipment shall at all times remain the property of EA and You shall have no right, title or interest in or to the Equipment (save the right to possession and use of the Equipment subject to the terms and conditions of this agreement).

6.2. The risk of loss, theft, damage or destruction of the Equipment shall pass to You once the Equipment has been delivered by EA. The Equipment shall remain at Your sole risk during the Period and any further term during which the Equipment is in Your possession, custody or control until such time as the Equipment is removed by EA. The replacement cost for EX is £450 per device and Apex £1750 per device.

6.3. You shall give immediate written notice to EA in the event of any loss, accident or damage to the Equipment arising out of or in connection with Your possession or use of the Equipment.

7. Your responsibilities

7.1. You shall during the term of this agreement:

7.1.1. ensure that the Equipment is kept and operated in a suitable environment, used only for obtaining information about the Event;

7.1.2. ensure that the Equipment is not damaged whilst in Your possession, power or control;

7.1.3. make no alteration to the Equipment;

7.1.4. make no attempt to reverse compile, disassemble, reverse engineer or otherwise copy or reproduce all or any part of the Equipment;

7.1.5. keep the Equipment at all times at the Delivery Address and shall not move or attempt to move any part of the Equipment to any other location without EA’s prior written consent unless authorised by EA to be fitted to a touring unit;

7.1.6. permit EA or its duly authorised representative to inspect the Equipment at all reasonable times and for such purpose to enter upon the Delivery Address or any site at which the Equipment may be located and shall grant reasonable access and facilities for such inspection;

7.1.7. not, without the prior written consent of EA, part with control of, sell or offer for sale, underlet or lend the Equipment or allow the creation of any mortgage, charge, lien or other security interest in respect of it;

7.1.8. not attach the Equipment to any land or building so as to cause the Equipment to become a permanent or immovable fixture on such land or building;

7.1.9. not do or permit to be done any act or thing which will or may jeopardise the right, title and/or interest of EA in the Equipment;

7.1.10. not use the Equipment for any unlawful purpose;

7.1.11. ensure that at all times the Equipment remains identifiable as being EA’s property and not remove or cover any sign to that effect attached to the Equipment; and

7.1.12. not do or permit to be done anything which could invalidate the insurances referred to in clause 6.

8. The Service

8.1. EA shall monitor the Data, shall process it and shall make it available to You via the Portal in the form of specified reports in accordance with and to the extent specified in EA’s standard documentation. You have no right to the Data as a whole or otherwise in the form of such reports.

8.2. You acknowledge that the Data does not identify any individual person or a particular piece of telecommunications equipment.

8.3. EA shall use its reasonable endeavours to keep the Portal working and available to you 24 hours a day during the Event and for 3 months after the return of the Equipment to EA, subject only to downtime required to fix faults in or associated with the Portal or related computer or telecommunications equipment, which downtime (where planned) will be notified to You in advance.

8.4. You shall use the Data as made available to you via the Portal only for the purposes of assessing the success of the Event and not for any other purpose. EA ensure the capture of the data is GDPR compliant.

8.5. You acknowledge that EA retain all rights to the Data and may use it and supply it to any third party for any purpose it requires provided that it shall only make it available to third parties on an anonymised basis from which neither You nor the Event can be identified.

9. Warranty

9.1. EA warrants that the Equipment shall substantially conform to its specification (as made available by EA), be of satisfactory quality and fit for any purpose held out by EA. EA shall use all reasonable endeavours to remedy, free of charge and as soon as reasonably practicable, any material defect in the Equipment which manifests itself, provided that:

9.1.1. You notify EA of any defect immediately upon the defect occurring or of becoming aware of the defect;

9.1.2. EA is permitted to make a full examination of the alleged defect and to have both physical and remote access to any defective Equipment promptly upon request;

9.1.3. the defect did not materialise as a result of misuse, neglect, alteration, mishandling or unauthorised manipulation by any person other than EA’s authorised personnel;

9.1.4. the defect did not arise out of any information, design or any other assistance supplied or furnished by You or on its behalf; and

9.1.5. the defect is directly attributable to defective material, workmanship or design.

9.1.6. If EA fails or is unable to remedy any material defect in the Equipment in accordance with clause 9.1, EA shall, at Your request, collect part or all of the Equipment and make an appropriate reduction to the Payments payable during the remaining term of this agreement.

9.1.7. EA warrants that the Service will be provided with reasonable care and skill in accordance with EA’s standard documentation as issued from time to time.

10. Liability

10.1. Without prejudice to clause 10.2, EA’s maximum aggregate liability for breach of this agreement (including any liability for the acts or omissions of its employees, agents and subcontractors), whether arising in contract, tort (including negligence), misrepresentation or otherwise, shall in no circumstances exceed the total Payments due under this agreement.

10.2. Nothing in this Agreement shall exclude or in any way limit:

10.2.1. either party’s liability for death or personal injury caused by negligence;

10.2.2. either party’s liability for fraud or fraudulent misrepresentation; or

10.2.3. any other liability which cannot be excluded by law.

10.3. This agreement sets forth the full extent of EA’s obligations and liabilities in respect of the Equipment and the Service. In particular, there are no conditions, warranties or other terms, express or implied, including as to quality, fitness for a particular purpose or any other kind whatsoever, that are binding on EA except as specifically stated in this agreement. Any condition, warranty or other term concerning the Equipment or the Service which might otherwise be implied into or incorporated within this agreement, whether by statute, common law or otherwise, is expressly excluded.

10.4. Without prejudice to clause 10.2, EA shall not be liable under this agreement for any:

10.4.1. loss of profit;

10.4.2. loss of revenue

10.4.3. loss of business; or

10.4.4. indirect or consequential loss or damage,

in each case, however, caused, even if foreseeable.

11. Termination

11.1. Without affecting any other right or remedy available to it, EA may terminate this agreement with immediate effect by giving notice to You if:

11.1.1. You have committed any material breach of Your obligations under this agreement or shall have failed to remedy any remediable breach within a period of twenty-eight (28) days of the receipt of a notice in writing from EA requiring You to do so; or

11.1.2. You have been in Persistent Breach of Your obligations; or

11.1.3. You, whether as a company, partnership or individual, are unable to pay Your debts within the meaning of s.123 of the Insolvency Act 1986 or suffer any event which could be reasonably considered to indicate that You are insolvent or are at risk of becoming so in the relatively near future including, insolvent liquidation, a declaration of bankruptcy, the presentation of a bankruptcy or a winding up petition or the appointment of an administrator, receiver or similar over any of Your assets or undertaking; or

11.1.4. any sum required under the terms of this agreement is not paid at the latest within two days following its due date; or

11.1.5. You cease to carry on or You take any steps to cease carrying on Your business.

11.2. This agreement shall automatically terminate if a Total Loss occurs in relation to the Equipment.

12. Consequences of Termination

12.1. Upon termination of this agreement, however, caused:

12.1.1. EA’s consent to Your possession of the Equipment shall terminate and EA may, by its authorised representatives, without notice and at Your expense, retake possession of the Equipment and for this purpose may enter the Delivery Address or any site at which the Equipment is located;

12.1.2. Your right of access to and to use the Data shall terminate; and

12.1.3. without prejudice to any other rights or remedies, You shall pay to EA on-demand:

(a) all Payments and other sums due but unpaid at the date of such demand together with any interest accrued;

(b) any costs and expenses incurred by EA in recovering the Equipment and/or in collecting any sums due under this agreement (including any storage, insurance, repair, transport, legal and remarketing costs).

12.2. Upon termination of this agreement pursuant to clause 11.1, any other repudiation of this agreement by You which is accepted by EA or pursuant to clause 11.2, without prejudice to any other rights or remedies of EA You shall pay to EA on demand a sum equal to the whole of the Payments that would (but for the termination) have been payable if this agreement had continued from the date of such demand to the end of the Period.

12.3. The sums payable pursuant to clause 12.2 shall be payable in addition to the sums in clause 12.1.3 and shall be agreed compensation for EA’s loss.

12.4. Termination or expiry of this agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of this agreement which existed at or before the date of termination or expiry.

13. Force Majeure

Neither we nor You shall be responsible to the other for any delay in the performance or any non-performance of our respective obligations under this agreement due to any causes (including fire, flood, act of terrorism, extreme weather conditions, industrial action, traffic congestion) (a “Force Majeure Event”) beyond the reasonable control of the party affected by the Force Majeure Event, but the party whose performance is affected by the Force Majeure Event in question shall promptly following the occurrence of such Force Majeure Event inform the other party in writing of the Force Majeure Event in question, stating that such Force Majeure Event in question has delayed or prevented its performance and after giving such notice such party shall take all reasonable steps to comply with the terms of this agreement as fully and promptly as possible.

14. Confidential Information

14.1. You shall maintain secret and confidential the terms of this agreement and all Confidential Information. You shall respect EA’s proprietary rights in the Confidential Information and You shall use it exclusively for the purpose of this agreement.

14.2. You acknowledge that all information about the Sensors and how they operate constitutes EA’s Confidential Information and you in particular agree not to open the Sensors or to endeavour to reverse engineer the Sensors or EA’s technology and information used to provide the Service.

14.3. You shall procure that all members of Your staff who have access to any Confidential Information shall, before being given access (whether as a result of Your direct disclosure or otherwise) to such Confidential Information are made aware of and made subject to these obligations.

14.4. The obligations imposed by this clause shall not apply to any Confidential Information which is at the date of this agreement in the public domain without any restriction on its use or which later comes into the public domain otherwise than by reason of Your breach of any of Your obligations under this agreement or a breach by any member of Your staff of any obligation of confidentiality that they are subject to.

14.5. You agree (and, where you are organising the Event for a third party, You shall procure that the third party agrees) that EA may use Your (and/or the third party’s) name and/or logo and refer to You and/or the third party as its customers in promoting its Exposure Solo service.

14.6. The obligations imposed by this clause 14 shall survive the variation, renewal, expiry or termination of this agreement.

15. Waiver and Remedies

15.1. Neither EA’s failure or delay to exercise any power given to EA under this agreement, or to insist upon strict compliance by You with any obligation under this agreement, nor any custom or practice of You or EA, or (save for an express waiver in writing) any action by EA shall constitute any waiver of any of EA’s rights under this agreement.

15.2. Any waiver by EA of any right or remedy we may have against You shall only be effective in respect of the particular circumstance that we have expressly stated that the waiver in question relates to and shall not apply to any other circumstance whether past or future.

15.3. Save as expressly stated otherwise each remedy available to EA under this agreement shall be without prejudice to any other rights and/or remedies, whether under this agreement, at common law, under statute or otherwise, which we may have against You and any single or partial exercise of any right or remedy by EA shall not preclude any other or further exercise of such or any other right or remedy available to EA.

16. Severability

If any provision of this agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way.

17. Notices

17.1. Notices sent in respect of any legal action arising under this agreement or terminating this agreement shall be in writing and must be sent:

17.1.1. by pre-paid first class post; or

17.1.2. by hand.

The notice shall be sent to the address of the party to be served as set out in this agreement or such other address as that party may advise the other party, in writing, as being its address for service.

17.2. All communications in connection with this agreement other than those referred to in clause 24.1 may also be sent by email to, as applicable, Your E-mail or EA E-mail.

17.3. Notice is deemed given:

17.3.1. in the case of hand delivery – at the time the delivery is made;

17.3.2. in the case of posting– two (2) Working Days after the notice is posted;

17.3.3. in the case of email at the time of transmission provided that notice of failed or incomplete transmission is not received by the sender.

18. Privacy and Data Protection

18.1 EA shall process all Data in accordance with all applicable laws including the Data Protection Act 2018 and with Exposure’s Privacy Policy. EA does not process any data that is deemed personal under GDPR guidelines.

18.2 EA is the processor of the data and You the controller of the data as defined in the Data Protection Act 2018.

19. Status of Parties

Each of the Parties to this agreement is an independent contractor and nothing contained in this agreement, and no action taken by the parties pursuant to this agreement shall be construed to imply that there is any relationship between the parties of partnership or of principal / agent or of employer /employee, nor are the parties hereby engaging in a joint venture, association or other co-operative venture, and accordingly neither of the parties shall have any right or authority to act on behalf of the other nor to bind the other by contract or otherwise, unless expressly permitted by the terms of this agreement.

20. Assignment and Subcontracting

20.1. EA may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its right under this agreement any may subcontract or delegate in any manner any or all of its obligations under this agreement to any third party.

20.2. You shall not, without the prior written consent of EA, assign, transfer, charge, subcontract or deal in any other manner with all or any of its right under this agreement.

21. Third Party Rights

Nothing in this agreement shall confer any right or benefit upon any person who is not a party to it whether under the Contracts (Rights of Third Parties) Act 1999.

22. Governing Law

This agreement shall be governed by and construed in accordance with English law and both parties submit to the jurisdiction of the English courts.