Terms and Conditions
This Agreement is made between:
(1) Hydrobot Ltd, having its registered office at 9 Buckstone Court, Edinburgh EH10 6UL, registered in Scotland (Company Number 352195), VAT registration no. 945 6415 05 (“HB”); and
(2) The purchaser of a report or reports prepared by HB as set out in the web submission (“Purchaser”).
1. THE SERVICES
1.1 Pursuant to the Terms and Conditions set out in this Agreement, HB will conduct data analysis and prepare a report or reports for the Purchaser. The report(s) will incorporate the outputs of Hydrobot, a geographical and economic model that uses elevation and streamflow data, combined with pricing, grid connection, main planning restrictions and other inputs to predict the best location and layout for hydropower schemes within the selected area. The Purchaser's preferences will influence the financial assessment of each option, and a summary of costs and revenues of each option, along with recommendations, will be provided (“Report” or “Reports”).
2. APPLICATION OF TERMS AND CONDITIONS
2.1 These Terms and Conditions set out in this Agreement together with web interface shall be the agreement between HB and the Purchaser to the exclusion of all other terms and conditions (including without limitation any terms and conditions which the Purchaser purports to apply under any purchase order, confirmation of order, specification or other document).
2.2 These Terms and Conditions apply to all Reports ordered by the Purchaser by placing an order with HB via the website located at www.hydrobot.co.uk (the “Website”). Any representations about the Reports or services provided by HB, and any variation to these Terms and Conditions shall have no effect unless expressly agreed in writing and signed by a representative of HB. The Purchaser acknowledges it has not relied on any statement, promise or representation made or given by or on behalf of HB which is not set out in these Terms and Conditions. Nothing in this condition 2 shall exclude or limit HB’s liability for fraudulent misrepresentation.
3. Conditions of use
3.1 The Purchaser agrees and acknowledges that, apart from the Purchaser itself, no person, firm, company or other organisation (including, without limitation, any company or organisation which is under common or partly under common ownership with the Purchaser) shall have any rights whatsoever under these Terms and Conditions. Accordingly the Purchaser acknowledges that the Report and any intellectual property subsisting therein is the property of HB and other than as expressly permitted herein the Purchaser shall not be entitled to copy, modify or disseminate the Reports.
3.2 The Purchaser is only licensed to use Reports internally within their own business or for their own personal, non-commercial use, without any right to display, provide the same or any part thereof to third parties, sublicence, resell, assign or otherwise transfer the same or any part thereof other than to provide a copy to its own professional or financial advisers. Such disclosure to professional or financial advisors shall be under strict confidentiality obligations in accordance with industry standards.
3.3 The Purchaser may make one print copy of each Report or export or download one electronic image of the Report in PDF format only, and in addition may make two copies or electronic images for dissemination to its own professional or financial advisers as permitted pursuant to condition 3.2 above. Any exception to this limit must be agreed in writing in advance with HB, and the Purchaser may be required to make further payments to HB.
3.4 The Purchaser accepts and acknowledges that HB is entitled to make any use of any Report or Reports, or part thereof, at any time at its sole discretion.
4. Pricing
4.1 The Reports are priced according to the geographical area selected by the Purchaser, and the size of the unit of area, as follows:
1 km2 tiles: 1 - 25 will cost £35 each including VAT
26 – 100 will cost £33 each including VAT
101+ will cost £31 each including VAT
25 km2 tiles: £775 each including VAT (saving £100 per tile)
4.2 The Purchaser is required to notify HB of the relevant geographical area selected and to make payment to HB for the Reports in advance via PayPal unless otherwise agreed in writing in advance with HB.
5. PURCHASER’S OBLIGATIONS
5.1 The Purchaser acknowledges that HB cannot provide the Reports without certain information and/or data from the Purchaser. The Purchaser agrees to provide, and is responsible for providing, to HB, its agents, subcontractors and employees all necessary, required complete and accurate (in all material respects) information and data as HB may require from time to time in order for HB to prepare the Reports. The Purchaser agrees to provide all reasonable assistance to, and to cooperate with, HB in connection with these Terms and Conditions and the Reports in a timely manner at all times.
5.2 If HB's performance of the services and provision of the Reports is affected, prevented or delayed as a result of a direct or indirect act, omission or delay by the Purchaser, its agents, subcontractors consultants or employees, HB shall not be responsible or liable for any costs, charges, losses sustained or incurred by the Purchaser or for any delay in relation to the Report or Reports.
6. Delivery
6.1 The method and destination of delivery will be specified in the order as placed by the Purchaser via the web-based tile selection interface located at the Website, or as agreed in writing directly with HB. HB shall then deliver the Report by sending a PDF attachment to an email. If delivery by post is required by the Purchaser (as indicated in the initial order), an additional charge will be imposed to cover postage again as specified on the tile selection page.
6.2 Reports will normally be dispatched within 48 hours of the order being placed by the Purchaser, but the Purchaser should allow up to two weeks. If after this time the Report has not been dispatched, the Purchaser may terminate this Agreement by written notice to HB and will be entitled to a full refund.
7. Termination
7.1 The Purchaser agrees that the service being provided (being the provision of the Report or Reports) may be completed by HB in less than seven (7) days from confirmation of the order and the entering into of this Agreement. In accordance with the Distance Selling Regulations, the Purchaser hereby expressly agrees that the provision of the services in relation to the Reports will commence prior to the usual seven (7) day cancellation period expires, and by agreeing to these Terms and Conditions (and therefore entering into this Agreement) before the service begins results in that the usual seven (7) day cancellation period expiring when provision of the service by HB begins. The Purchaser may terminate the Agreement at any time before the Report has been dispatched by informing HB in writing by email or post. If the Purchaser does terminate this Agreement and preparation of the Report(s) has begun, or where development of Hydrobot is required in order to generate a Report that does not follow the standard format and that development by HB of Hydrobot has commenced, time accrued by HB will be charged at the rate of £50 per hour plus VAT, up to a maximum value of the Agreement.
7.2 HB may terminate the contract at any time by informing the Purchaser in writing by email or post.
7.3 Without prejudice to HB’s rights that have accrued under this Agreement or any of its rights or remedies, HB may terminate this Agreement without any liability to the Purchaser immediately if:
7.3.1 the Purchaser presents a petition or has a petition presented by a creditor for its winding up or enters into any liquidation (other than for the purposes of reconstruction or amalgamation), calls a meeting of its creditors, has a receiver of all or any of its undertakings or assets appointed, or is deemed by virtue of the relevant statutory provisions under applicable law to be unable to pay its debts, or ceases to carry on business or undergoes analogous proceedings in any other jurisdiction; or
7.3.2 the Purchaser suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
8. INTELLECTUAL PROPERTY RIGHTS
8.1 As between HB and the Purchaser, all intellectual property rights and all other rights in the Reports shall be owned by HB. HB hereby grants to the Customer a non-exclusive, non-transferable licence to use the Report (and any intellectual property rights subsisting therein) but only to the extent necessary to enable the Purchaser to exercise the rights granted at condition 3 of this Agreement. If this Agreement is terminated, this licence shall automatically terminate.
8.2 The Purchaser agrees that it shall ensure that all proprietary notices, copyright notifies, trade marks, trade mark designations, disclaimers and any other markings set out in any Report by HB, remain on any copy of any Report and will not be removed by the Purchaser or any third party.
9. CONFIDENTIALITY
9.1 The Purchaser agrees to keep in strict confidence the Reports or any other information of a confidential nature that has been disclosed to the Purchaser by HB, its employees, agents, consultants or subcontractors and any other confidential information concerning HB’s business or services which the Purchaser may obtain.
9.2 The Purchaser may disclose such information:
9.2.1 in accordance with these Terms and Conditions;
9.2.2 to its employees, officers, representatives, advisers, agents or subcontractors who need to know such information; and
9.2.3 as may be required by law, court or any governmental or regulatory authority.
9.3 The Purchaser shall use such information (including without limitation the Reports) in accordance with these Terms and Conditions.
9.4 The Purchaser shall use its best endeavours to ensure that it uses all adequate technological and security measures to ensure that all information and data provided by HB (including without limitation Ordnance Survey data and any Report) to the Purchaser and any part thereof is secure from unauthorised use or access and is only used in accordance with the Terms and Conditions of this Agreement.
10. DATA PROTECTION
The Purchaser acknowledges and agrees that details of the Purchaser’s name, address and other personal information submitted by the Purchaser to HB will be processed by and on behalf of HB in connection with this Agreement and Terms and Conditions.
11. Warranties and Liability
11.1 HB shall use its reasonable endeavours to ensure that the Reports represent the information provided by the Purchaser and the Hydrobot modelled site layouts represent technically feasible, financially viable layout to a reasonable approximation of the realistic installed capacity or design power, and that the modelled capital cost of the scheme will be within a reasonable approximation of what the actual capital cost would be for the modelled site layout. Where the Report is found not to conform to these specifications and/or the information provided by the Purchaser, HB will use reasonable endeavours to rectify the problem so that the rectified Report substantially conforms to the aforementioned specifications.
11.2 HB accepts no responsibility or liability for any actions taken by the Purchaser as a consequence of receiving any Report, including without limitation any investments made on the basis of the findings within a Hydrobot Report, as Hydrobot’s outputs are equivalent to a pre-feasibility study, and a positive pre-feasibility study should always be followed up with a full feasibility study including flow monitoring and detailed design. The Purchaser agrees and acknowledges that any reliance the Purchaser places on any Report is strictly at its own risk.
11.3 HB cannot guarantee that the tiles selected by the Purchaser for analysis will contain a financially viable hydro scheme, and will not be liable for a refund in the case that there are no financially viable schemes.
11.4 The Purchaser warrants it owns, or has obtained all necessary rights to, any data or information it provides to HB in connection with these Terms and Conditions, including without limitation the right for HB to use and process the data and information to prepare the Report or Reports. The Purchaser warrants that no third party rights are infringed by the Purchaser providing any data or information in connection with these Terms and Conditions.
11.5 The Purchaser agrees to indemnify HB for all liabilities, claims, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation, and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by HB arising out of or in connection with any breach of these Terms and Conditions, including without limitation, the warranties.
11.6 All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 12 of the Sale of Goods Act 1979) are, to the fullest extent permitted by law, excluded from the Agreement.
11.7 Nothing in these conditions excludes or limits the liability of HB:
(a) for death or personal injury caused by HB’s negligence; or
(b) under section 2(3), Consumer Protection Act 1987; or
(c) for any matter which it would be illegal for HB to exclude or attempt to exclude its liability; or
(d) for fraud or fraudulent misrepresentation.
11.8 Subject to conditions 11.6 and 11.7:
(a) HB’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the agreement shall be limited to the amount paid by the Purchaser to HB pursuant to this agreement in the twelve (12) month period prior to the event arising which relates to the relevant liability; and
(b) HB shall not be liable to the Purchaser for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Agreement.
12. Events outside of control
12.1 HB will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by events outside our reasonable control (“Force Majeure Event”). A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control.
12.2 HB’s performance under this agreement is deemed to be suspended for the period that the Force Majeure Event continues, and HB will have an extension of time for performance for the duration of the Force Majeure Event. HB will use its reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which HB’s obligations under the agreement may be performed despite the Force Majeure Event.
13. Notice
13.1 Any notice required under the Agreement may be delivered personally or sent by first class recorded delivery post or airmail or transmitted by facsimile transmission in each case to the registered office or business address of the party to whom the notice is addressed and any such notice shall be deemed to have been validly served if sent by post on the expiry of forty eight hours of the time of posting and if delivered personally or transmitted by facsimile transmission at the time of delivery or transmission provided that any such telex or facsimile transmission is confirmed by letter sent within twenty four hours of transmission.
14. General
14.1 Any failure or neglect by HB to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of HB’s rights hereunder nor in any way affect the validity of the whole or any part of the Agreement nor prejudice our right to take subsequent action.
14.2 The Purchaser shall not assign or sub-contract any of its or duties under the agreement without HB’s prior written approval. HB shall be entitled to assign or otherwise transfer the benefit and/or burden of the Agreement without restriction.
14.3 If any provision of the Agreement is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Agreement and the remainder of such provision shall continue in full force and effect.
14.4 This Agreement and these Terms and Conditions constitute the whole agreement between the parties and supersedes all previous agreements between the parties relating to the subject matter. The Purchaser acknowledges that in entering into this Agreement and these Terms and Conditions, it has not relied on, and shall have no remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently).
14.5 Nothing in this Agreement or these Terms and Conditions is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.
15. Jurisdiction and governing law
This Agreement will be governed by and construed in accordance with Scottish law. In the case of disputes that cannot otherwise be resolved, the disputes will be referred to the Scottish courts. Both parties submit to the exclusive jurisdiction of the Scottish courts in respect of any proceedings issued by either party in connection with this Agreement.