GENERAL TERMS AND CONDITIONS
SENS INNOVATION GROUP LTD AND ITS SUBSIDIARIES
PREAMBLE
These General Terms and Conditions of Supply (“Terms”) are issued by SENS Innovation Group Ltd, a company incorporated and registered in Malta with registration No. C101007 having its registered office at GO, Triq Hal Tarxien, Zejtun ZTN 3000, Malta, and apply to all business activities carried out by SENS and/or its subsidiaries, including Llobeno Ltd, also a company registered in Malta with company registration No. C95649 (“Llobeno”), and any other entity operating under the SENS Innovation Group (“SENS”, “we”, “us” or “our”).
These Terms govern every commercial relationship between SENS (or any of its subsidiaries) and the Customer in connection with the supply of goods, equipment, software licences, installation services, commissioning services, maintenance services and the provision of the REACH platform, as applicable. They apply to all sales and projects performed by SENS whether in Malta or internationally.
These Terms are incorporated automatically into every transaction between SENS and the Customer. By placing an order, issuing a purchase order, signing a quotation, accepting delivery of any Equipment, or permitting commencement of any Services, the Customer conclusively accepts these Terms in full, without the need for any separate signature or countersignature of this document. Where a Project Agreement is entered into, both documents shall be read together.
1. DEFINITIONS
In these Terms, unless the context otherwise requires, the following expressions shall bear the meanings set out below:
“Acceptable Use Policy” Means the acceptable use obligations set out in clause 7A of these terms.
“Agreement” The binding contract between SENS and the Customer, consisting of these Terms, the relevant Quotation, the Order Confirmation, and any applicable Project Agreement or Maintenance Agreement.
“BMS” A building management system designed, supplied, installed and/or commissioned by SENS using third-party hardware and software, including the associated logic design and programming.
“Commencement Date” The date on which SENS begins performance of the Installation Works or, where no Installation Works are required, the date on which SENS dispatches the Equipment.
“Completion Date” The date on which SENS confirms in writing that the Installation Works and commissioning activities have been successfully completed and/or that the System is operational.
“Confidential Information” Any trade secret, proprietary information, technical data, business information or other confidential information of either party (including the Agreement itself), but excluding information: (a) in the public domain other than through a breach of these Terms; (b) already known to the recipient at the time of disclosure; or (c) independently developed by the recipient without reference to the disclosing party’s information.
“Customer” The natural or legal person (including any company, partnership, joint venture, association, government body or other public or private entity) identified as the purchaser in the Quotation or Order Confirmation.
“Customer Apparatus” Any apparatus, equipment or infrastructure belonging to or operated by the Customer that does not form part of the Equipment but which is connected, or intended to be connected, to the Equipment or the System.
“Deposit” The advance payment required from the Customer prior to commencement of any works or despatch of Equipment, as specified in the Quotation or Order Confirmation.
“Equipment” Any apparatus, hardware, IoT controllers, sensors, actuators, electronic locks, minibars, electronic safes, servers, network components, access control hardware or other physical goods supplied by SENS (or a third party authorised by SENS) to the Customer, as specified in the Quotation or Order Confirmation.
“Fees” All amounts payable by the Customer under the Agreement in respect of Equipment, Software licences, Installation Works, commissioning, support, maintenance and/or the Platform, as set out in the Quotation or Order Confirmation.
“Force Majeure Event” Any event beyond a party’s reasonable control, including but not limited to acts of God, war, invasion, civil commotion, fire, flood, earthquake, epidemic, pandemic, government action, regulatory action, sanctions, industrial disputes , failure of utilities, or failure of third-party telecommunications or internet services.
“GRMS” A guest room management system developed and supplied by SENS, incorporating SENS’s proprietary IoT controllers, third-party sensors and actuators, and the Messenger software.
“Installation Date” The estimated date for the installation of the Equipment at the Premises, as notified by SENS following acceptance of the Order.
“Installation Works” The installation, configuration, testing and commissioning of the System at the Premises as described in the Quotation or Project Agreement.
“Intellectual Property Rights” All rights in or relating to any patent, copyright, database right, registered design, design right, utility model, trade mark, brand name, service mark, trade name, business name, chip topography right, know-how, confidential information, and any other industrial or intellectual property rights, whether registered or unregistered, and all applications therefore.
“Maintenance Agreement” A separate written preventive maintenance agreement entered into between SENS and the Customer for the periodic servicing and maintenance of the System.
“Messenger” SENS’s proprietary on-premises server software installed at the Premises, which interfaces with the IoT controllers and communicates with the REACH Platform.
“Minimum Period” Where applicable, the minimum contractual period specified in the Agreement, which shall be not less than twelve (12) months from the Commencement Date unless otherwise agreed in writing.
“Miscellaneous Fees” Fees chargeable by SENS on a time-and-materials basis for services not included in the Fees, including (without limitation) standing time, abortive visit charges, rectification works caused by the Customer, and administrative charges, at SENS’s prevailing rates.
“Order Confirmation” SENS’s written confirmation (including by email) accepting the Customer’s purchase order .
“Platform / REACH” SENS’s proprietary cloud-based energy management and monitoring platform called REACH, hosted on Microsoft Azure, providing remote visibility, room status, energy data and statistics.
“Premises” The Customer’s premises or site at which the Equipment is to be delivered and/or the System is to be installed, as specified in the Agreement.
“Project Agreement” A separate written contract of works governing the detailed scope, programme, milestones and special conditions for large or complex projects.
“Quotation” SENS’s written offer to supply Equipment and/or Services, including any bills of quantity response (BOQ response), setting out the scope, price and applicable terms.
“REACH” See ‘Platform’.
“REMS” A room energy management system developed and supplied by SENS, incorporating SENS’s proprietary IoT controllers, third-party sensors and actuators, the Messenger software, and connected to the REACH Platform.
“Services” Any or all services provided by SENS, including Installation Works, testing and commissioning, technical support, the Platform subscription, and any other services specified in the Agreement.
“Software” The Messenger software, the REACH Platform, any embedded firmware, and any other proprietary software supplied or licensed by SENS under the Agreement.
“Subsidiary” Any entity directly or indirectly controlled by SENS Innovation Group Ltd, including (at the date of these Terms) Llobeno Ltd.
“System” The complete integrated system delivered and/or installed by SENS at the Premises, comprising the Equipment, Software, and associated components, as described in the Quotation or Order Confirmation.
“Third-Party Cloud Services” Cloud hosting platforms, internet service providers, telecommunications carriers, and other third-party infrastructure providers used by SENS in the delivery of the Platform or Services, including (without limitation) Microsoft Azure.
“Warranty Period” The period during which SENS’s warranty obligations apply, being two (2) years from the Completion Date (or the date of delivery where no Installation Works are performed), unless a different period is expressly stated in the Agreement.
2. FORMATION OF CONTRACT
2.1 A Quotation issued by SENS constitutes an offer which is open for acceptance for thirty (30) days from the date of issue unless otherwise stated. The Agreement shall only come into existence upon: (a) the Customer’s written acceptance of the Quotation (including by email); or (b) SENS’s written Order Confirmation; or (c) commencement of performance of any Services or dispatch of any Equipment by SENS, whichever occurs first.
2.2 These Terms, together with the Quotation and any Order Confirmation, constitute the entire Agreement between the parties and supersede all prior representations, negotiations, understandings and agreements, whether oral or written.
2.3 Any terms or conditions proposed by the Customer (whether in a purchase order, framework agreement or otherwise) shall have no effect and are hereby excluded, unless expressly accepted by SENS in writing signed by an authorised representative.
2.4 Any variation to these Terms or the Agreement must be confirmed in writing and signed by both the Customer and an authorised representative of SENS to be valid.
2.5 Where a Project Agreement is entered into for a specific project, the Project Agreement shall take precedence over these Terms in the event of any conflict, save that these Terms shall continue to apply in respect of all matters not expressly addressed in the Project Agreement.
2.6 SENS may engage any Subsidiary or duly authorised third-party subcontractor to perform all or part of the Services without requiring the prior consent of the Customer, provided that SENS shall remain responsible for the performance of such Services.
2.7 SENS reserves the right to decline to process any order or application if the Customer and/or, in the case of a legal person, any of its shareholders, directors and/or officers fails any credit assessment carried out by SENS, or if SENS has reasonable grounds to believe the Customer may be unable to meet its payment obligations. SENS may require the Customer to provide financial references or a bank guarantee as a condition of accepting any order.
3. SCOPE OF SUPPLY
SENS’s business encompasses, without limitation, the following activities, each subject to these Terms:
3.1 Supply of Equipment only (ex-works Malta): SENS supplies Equipment against the Quotation or Order Confirmation and the Customer is responsible for all installation, commissioning and integration.
3.2 Supply of Equipment with Testing and Commissioning: SENS supplies the Equipment and SENS technicians attend the Premises to test and commission the System after the Customer has completed all first and second fix wiring works at its own expense and in accordance with SENS’s technical drawings.
3.3 Supply of Equipment with Full Installation, Testing and Commissioning: SENS supplies the Equipment, carries out the Installation Works (including installation of the System), and performs testing and commissioning. Unless otherwise agreed in writing, all first and second fix wiring works shall remain the Customer’s responsibility and expense, to be carried out in accordance with SENS’s technical drawings.
3.4 Annual Preventive Maintenance: SENS provides periodic preventive maintenance services under a separate Maintenance Agreement.
3.5 Platform Subscription (REACH): SENS provides access to the REACH Platform as a cloud-hosted service, subject to these Terms and, where applicable, separate platform subscription terms.
3.6 The specific scope, deliverables and inclusions applicable to any particular order shall be as set out in the Quotation or Order Confirmation. Unless expressly stated therein, SENS shall have no obligation to provide: making-good, builders’ works, enabling works, fire-stopping, decoration, or any related ancillary works.
3.7 For projects based on a bill of quantities (BOQ), SENS’s obligations are limited to the scope and items expressly included in SENS’s BOQ response. Any works outside that scope shall be subject to a separate written variation order agreed by both parties.
3.8 Exclusions: Any items, materials, equipment, software, labour, or services not expressly listed in the Quotation, Order Confirmation, or Project Agreement are excluded from SENS’s scope and are not included in the Fees. The Customer shall not assume that any item is included unless it is explicitly stated.
3.9 Variations: Any request by the Customer for works, materials, or services beyond the agreed scope (a “Variation”) must be confirmed in writing by SENS before execution. SENS shall issue a separate Variation Quotation setting out the additional cost, revised programme impact (if any), and any other relevant conditions. No Variation shall be binding on SENS unless and until SENS issues a written Variation Quotation and the Customer provides written acceptance thereof. SENS reserves the right to decline any Variation request.
4. CUSTOMER’S OBLIGATIONS
The Customer shall, throughout the duration of the Agreement:
4.1 Prepare, or procure the preparation of, the Premises in good time and in accordance with SENS’s technical guidance to facilitate the delivery and installation of the Equipment.
4.2 Provide all reasonable assistance, access, and facilities, including the provision and installation of electrical supplies, data cabling infrastructure, conduit, trunking, and all other necessary enabling works, at its own cost and in accordance with SENS’s technical drawings.
4.3 Permit authorised personnel of SENS (and SENS’s subcontractors) to access the Premises at all reasonable times as necessary for the performance of the Installation Works, and provide all reasonable assistance as SENS may require.
4.4 Provide a safe and suitable working environment for all persons attending the Premises in connection with the Agreement, and ensure that all such persons are informed of and comply with the Customer’s reasonable health, safety and security requirements, of which the Customer shall give advance written notice.
4.5 Ensure that all approvals, permits and consents required for the Installation Works are obtained prior to the commencement of works. The Customer agrees to indemnify SENS against any claims from third parties arising from the Customer’s failure to obtain required permits or permissions, including any permission required to cross third-party property or install Equipment on third-party premises.
4.6 Designate a named representative with sufficient authority to give instructions and approve decisions on behalf of the Customer during the Installation Works.
4.7 Review and approve SENS’s technical drawings within ten (10) business days of receipt. Failure to respond within this period shall be deemed approved.
4.8 Complete all first and second fix wiring works (where the Customer is responsible for these under the agreed scope) prior to SENS’s attendance for testing and commissioning, in strict accordance with SENS’s technical drawings.
4.9 Use the System and Equipment only in accordance with the Acceptable Use Policy and such reasonable operating instructions as SENS may issue from time to time.
4.10 Maintain the Equipment in accordance with the manufacturer’s recommendations and SENS’s instructions throughout the Agreement.
4.11 Notify SENS promptly if the Customer becomes aware of any unauthorised use of the System, Equipment or Platform, or if any account credentials are lost, stolen or compromised.
5. INSTALLATION WORKS AND COMMISSIONING
5.1 Where the scope includes Installation Works, SENS shall carry out the Installation Works with reasonable skill and care, in accordance with the Agreement and good industry practice.
5.2 Any Installation Date communicated by SENS is an estimate only. SENS shall not be liable for any delay in meeting an estimated Installation Date, provided that SENS shall use reasonable endeavours to notify the Customer promptly of any material anticipated delay.
5.3 SENS may from time to time need to interrupt, pause or reschedule Installation Works for operational or safety reasons. SENS will provide as much notice as reasonably practicable of any such interruption.
5.4 SENS may suspend Installation Works immediately and without notice in the event of: (a) a health or safety risk at the Premises; (b) the Customer’s failure to make payment when due; (c) the Customer’s failure to provide access or required information; or (d) the Customer’s breach of any material obligation under the Agreement.
5.5 Where Installation Works are suspended pursuant to clause 5.4, SENS shall not be required to refund any Fees paid, and the Customer shall be liable for all reasonable additional costs (including mobilisation and demobilisation costs) incurred by SENS as a result of such suspension.
5.6 Following completion of the Installation Works, SENS shall carry out standard tests (“Commissioning Tests”) to verify that the System is operational. SENS will notify the Customer in writing upon successful completion. The Customer may not use the System commercially prior to receipt of such notification.
5.7 If the Commissioning Tests reveal defects attributable to SENS’s Installation Works or to Equipment supplied by SENS, SENS shall repair or replace the relevant components at its own cost and repeat the tests.
5.8 Where defects revealed by the Commissioning Tests are attributable to the Customer’s works, Customer Apparatus, or failure to comply with SENS’s technical drawings or instructions, the cost of rectification and repeat testing shall be borne by the Customer.
5.9 Risk in the Equipment shall pass to the Customer: (a) upon delivery to the Premises where SENS arranges delivery; or (b) upon departure from SENS’s warehouse where the Customer is responsible for shipping and delivery. Title in the Equipment, and in the System as a whole, shall pass to the Customer only upon receipt by SENS of payment in full of all Fees due under the Agreement. Until such time, SENS retains full legal title to the Equipment and the System, and the Customer holds them as bailee.
5.10 Access and Platform Rights Conditional on Payment: Notwithstanding the completion of Installation Works, SENS reserves the right to withhold, suspend or revoke the Customer’s access to the System, the Messenger software, and the REACH Platform until all outstanding Fees under the Agreement have been paid in full. The exercise of this right shall not constitute a breach of the Agreement by SENS and shall be without prejudice to SENS’s other rights and remedies.
5.11 SENS shall not be liable for any interruption or failure of the System or Platform caused by: (a) failure of the Customer’s power supply, data network, or other Customer Apparatus; or (b) interruption, downtime, outage or degradation of performance of any Third-Party Cloud Services (including Microsoft Azure) or other third-party infrastructure on which the Platform depends. SENS shall use reasonable endeavours to minimise the impact of such third-party interruptions but gives no warranty as to the continuous availability of Third-Party Cloud Services.
5.12 Chargeable Rectification for Non-SENS Works: Where the Customer requests SENS to investigate, troubleshoot, rectify, or re-commission any System or Equipment where the original installation, wiring, testing or commissioning was not performed by SENS, or was performed by the Customer or a third party not authorised by SENS, all such investigative and rectification works shall be treated as a Variation under clause 3.9 and shall be charged to the Customer at SENS’s prevailing time-and-materials rates. SENS shall not be obliged to undertake such works and may decline if the condition of the System or Equipment presents a risk to SENS’s personnel or to the integrity of SENS’s proprietary Equipment or Software.
6. EQUIPMENT
6.1 Until title passes to the Customer in accordance with clause 5.9, the Equipment remains the sole property of SENS (or, as applicable, SENS’s third-party suppliers). The Customer holds the Equipment as bailee and shall: (a) keep the Equipment insured against all risks for its full replacement value; (b) store the Equipment so that it can be readily identified as SENS’s property; and (c) not remove, tamper with or obscure any identification marks, labels or serial numbers on the Equipment.
6.2 The Customer shall not, without SENS’s prior written consent: (a) add to, modify, alter, repair, or otherwise interfere with the Equipment; (b) move the Equipment from the Premises; (c) allow any lien, charge or encumbrance to be created over the Equipment.
6.3 The Customer shall be liable to SENS for any loss of, or damage to, the Equipment occurring after delivery and before title passes, save where caused solely by SENS’s negligence.
6.4 SENS reserves the right to modify, substitute or upgrade Equipment at any time, provided that any such modification shall not materially reduce the functionality of the System. Except in an emergency, SENS shall provide reasonable advance written notice of any such planned modification.
6.5 Where this Agreement is terminated as a result of the Customer’s breach, including non-payment of any amounts due, the Customer shall make the Equipment available for collection by SENS within seven (7) days of SENS’s written request. If the Customer fails to make the Equipment available for collection within that period, the Equipment shall be deemed not returned and SENS shall be entitled to invoice the Customer for the full replacement value of the Equipment, together with all reasonable costs and expenses incurred in connection with its attempted recovery.
6.6 SENS may, from time to time and without prior notice, connect remotely to the Equipment or System to restart, update, manage or support it, for the purposes of maintaining quality of service, applying security patches, or providing technical support. The Customer agrees to cooperate with any reasonable instructions SENS may give in connection with such remote access.
7. SOFTWARE AND PLATFORM LICENCE
7.1 SENS grants the Customer a non-exclusive, non-transferable, revocable licence to use the Software solely: (a) in connection with the System installed at the Premises; and (b) for the Customer’s internal business purposes. No other rights in the Software are granted.
7.2 All Intellectual Property Rights in the Software (including the Messenger software, the REACH Platform, and any firmware embedded in the Equipment) remain the exclusive property of SENS and/or its licensors. The Customer acknowledges that it acquires no Intellectual Property Rights in the Software.
7.3 The Customer shall not: (a) copy, decompile, disassemble, reverse-engineer, or create derivative works from the Software; (b) sub-licence, sell, rent, transfer, or otherwise deal in the Software; (c) remove or alter any proprietary notices in the Software.
7.4 Access to the REACH Platform is provided on a subscription basis. Subscription Fees and the subscription term shall be as specified in the Quotation or Order Confirmation. SENS may modify the Platform from time to time, provided that it shall not materially reduce its core functionality during the subscription term without reasonable prior notice.
7.5 SENS may suspend access to the Platform immediately in the event of: (a) the Customer’s non-payment; (b) the Customer’s breach of the Acceptable Use Policy; (c) outstanding Fees remaining unpaid pursuant to clause 5.10; or (d) a security risk affecting the Platform or other customers.
7.6 The licence granted under this clause shall terminate automatically upon termination or expiry of the Agreement, or upon any attempt by the Customer to assign or sublicense the licence.
7.7 The Customer is solely responsible for maintaining the confidentiality and security of all usernames, passwords, and access credentials issued in connection with the Platform or System. The Customer shall notify SENS immediately if any credentials are lost, compromised, or suspected to have been accessed without authorisation. SENS shall not be liable for any loss or damage arising from the Customer’s failure to maintain credential security.
7A. ACCEPTABLE USE
7A.1 The Customer shall, and shall ensure, that its users shall, use the System, Equipment, Software, Platform and Services only for lawful internal business purposes and in accordance with the Agreement, applicable law, SENS’s reasonable instructions and good industry practice.
7A.2 The Customer shall not, and shall ensure that its users do not, use or permit use of the System, Equipment, Software, Platform or Services:
- Unlawfully, fraudulently, abusively, negligently or in a manner that infringes any third-party rights, including intellectual property, confidentiality, privacy, or data protection rights;
- To introduce malware or other harmful code, or to gain or attempt to gain unauthorised access to SENS’s systems, the Platform, other customers’ systems, third-party infrastructure, accounts, data or networks;
- To interfere with, disrupt, overload, impair, test, scan, prove, circumvent or compromise the security, availability, integrity or performance of the System, Equipment, Software, Platform, Services or related infrastructure without SENS’s prior written consent;
- To copy, modify, reverse engineer, decompile, disassemble, create derivative works from, resell, sublicense, commercially exploit, or otherwise misuse the Software, Platform or Services, except to the extent expressly permitted by the Agreement or applicable mandatory law;
- To process, monitor, track or use personal data unlawfully or without appropriate notices, consents or other lawful basis under applicable data protection laws; or
- In any manner that may cause SENS to breach applicable law, regulatory obligations, sanctions, third-party terms, supplier requirements, data protection obligations, or obligations owed to other customers.
7A.3 The Customer is responsible for all activity carried out using its accounts, credentials, access rights, systems or infrastructure, except to the extent caused by SENS’s breach of the Agreement. The Customer shall keep all credentials secure and confidential and shall promptly notify SENS of any actual or suspected unauthorised access, misuse, credential compromise security incident or breach of this Clause 7A.
7A.4 SENS may suspend, restrict or disable access to the System, Software, Platform or Services, in whole or in part, if SENS reasonably believes that the Customer or any user has breached this Clause 7A, or that continued access creates a legal, regulatory, operational, security or reputational risk for SENS, its Subsidiaries, suppliers, subcontractors, customers or third-party infrastructure. Where reasonably practicable, SENS shall notify the Customer, and provide an opportunity to remedy, but SENS may act without prior notice where immediate action is required to prevent or mitigate harm, unlawful activity, security risk or disruption.
7A.5 Any breach of this clause 7A shall constitute a material breach of the Agreement. SENS’s rights under this clause are without prejudice to any other rights or remedies available under the Agreement or applicable law.
8. CUSTOMER APPARATUS
8.1 The Customer is solely responsible for the competence, suitability, legal compliance, maintenance and repair of any Customer Apparatus.
8.2 The Customer warrants that no Customer Apparatus connected to the System will: (a) impair the operation or performance of the System; (b) cause damage to any Equipment; or (c) compromise the integrity or security of the Platform. The Customer shall not connect to the System any equipment that is not compliant with applicable local regulations or that may cause harm to the System, the Equipment or the Platform.
8.3 SENS may, at its reasonable discretion, disconnect any Customer Apparatus from the System if SENS reasonably determines that such apparatus is causing or is likely to cause harm to the System, the Equipment or the Platform. SENS shall endeavour to provide the Customer with reasonable prior notice save where immediate disconnection is required for safety or security reasons.
8.4 The Customer shall indemnify SENS against all claims, costs, losses, damages and expenses (including legal costs) arising directly or indirectly from any Customer Apparatus connected to the System, except where caused by SENS’s own negligence or wilful misconduct.
9. FEES AND PAYMENT
9.1 All Fees are exclusive of Value Added Tax (VAT) and any other applicable taxes, duties or levies, which shall be payable by the Customer in addition to the Fees at the applicable rate.
9.2 Unless otherwise specified in the Quotation or Order Confirmation, the following standard payment terms apply:
(a) Equipment (supply only): 70% Deposit upon order placement; 30% balance prior to dispatch (ex-works Malta).
(b) Installation Works / Labour: Monthly progress invoices payable within fourteen (14) days of issue, or as otherwise specified in the Project Agreement.
(c) Platform Subscription (REACH): As specified in the Quotation or Order Confirmation, payable monthly or annually in advance by standing order or direct debit.
(d) Maintenance Agreements: As specified in the Maintenance Agreement.
9.3 No Installation Works shall commence and no Equipment shall be dispatched until the required Deposit has been received in cleared funds by SENS.
9.4 Miscellaneous Fees incurred during a calendar month shall be invoiced at the end of that month and payable within fourteen (14) days of invoice.
9.5 All Fees are quoted ex-works Malta (EXW Incoterms 2020) unless otherwise stated in the Quotation or Order Confirmation. Freight, insurance, import duties, local taxes and all other costs of delivery beyond the ex-works point are for the Customer’s account.
9.6 In the event of late payment, interest shall accrue on overdue amounts from the due date until actual payment at the statutory rate applicable under Maltese Legal Notice 272 of 2012 (transposing EU Directive 2011/7/EU on combating late payment in commercial transactions), or at such other rate as applies under the law of the relevant jurisdiction.
9.7 If any amount remains unpaid beyond the applicable payment term, SENS shall, without prejudice to any other rights, be entitled to: (a) suspend performance of all or any part of the Agreement (including suspension of Platform access); (b) declare all outstanding amounts immediately due and payable; (c) terminate the Agreement pursuant to clause 12.4; and/or (d) enter the Premises and recover Equipment to which it retains title in accordance with clause 6.5. Any costs of recovery (including legal costs ) shall be payable by the Customer.
9.8 SENS may, with effect from each anniversary of the Commencement Date, increase Fees for ongoing services (including Platform subscriptions and Maintenance Agreements) by: (a) the percentage increase in the Retail Price Index (or, for non-Maltese contracts, the equivalent consumer price index for the relevant jurisdiction) over the preceding twelve months; and/or (b) any increase in third-party costs directly related to the supply of the Services. SENS shall give the Customer at least thirty (30) days’ advance notice of any such increase.
9.9 The Customer shall not be entitled to withhold, set off or deduct any amounts from Fees due to SENS by reason of any alleged counterclaim or cross-claim.
9.10 If the Customer disputes any invoice or part thereof, the Customer must notify SENS in writing before the due date of the disputed invoice, specifying the amount disputed and the grounds for the dispute. The Customer must pay the undisputed portion of any invoice by the due date. Failure to raise a dispute in writing before the due date shall be deemed acceptance of the invoice in full.
10. WARRANTY
10.1 Equipment Warranty: SENS warrants that any Equipment shall, under normal use, be free from defects in materials and workmanship for the Warranty Period of two (2) years from the Completion Date (or, where no Installation Works are performed, two (2) years from the date of delivery).
10.2 Installation Works Warranty: SENS warrants that Installation Works shall be performed in a professional and workmanlike manner in accordance with good industry practice. SENS’s liability for defective workmanship is limited to the re-performance of the affected works at SENS’s cost, subject to the exclusions and procedures set out in this clause.
10.3 Third-Party Equipment: Equipment (including access control hardware, minibars, electronic safes, BMS hardware, and other third-party products) is supplied subject only to the warranty terms of the original equipment manufacturer (OEM), which SENS shall pass through to the Customer to the extent permissible. SENS provides no additional warranty in respect of such third-party equipment beyond what the OEM provides.
10.4 Warranty Exclusions: The warranties set out in clauses 10.1 and 10.2 do not apply to defects, failures or damage caused or contributed to by:
(a) misuse, abuse, neglect, accidental damage, vandalism, or use otherwise than in accordance with SENS’s instructions or the manufacturer’s recommendations;
(b) modification, alteration, repair or interference with the Equipment by the Customer or any unauthorised third party, which shall immediately void the warranty;
(c) power failures, surges, lightning, fire, flood, or other events outside SENS’s control;
(d) use of the Equipment in combination with equipment not approved by SENS;
(e) consumables, batteries, cables, wearable items, or tooling;
(f) Customer Apparatus or enabling works carried out by the Customer or third parties not authorised by SENS;
(g) fair wear and tear;
(h) failure to maintain Equipment in accordance with the manufacturer’s recommendations or SENS’s instructions.
10.5 Warranty Claim Procedure: To make a warranty claim, the Customer must: (a) notify SENS in writing within thirty (30) days of discovering or reasonably becoming aware of a suspected defect, and in any event before the expiry of the Warranty Period; (b) describe the defect in reasonable detail; and (c) make the defective Equipment available to SENS for inspection and evaluation. Notice to a dealer, distributor or other third party does not constitute notice to SENS.
10.6 Return Authorisation: Before returning any Equipment to SENS, the Customer must obtain a written Return Materials Authorisation (RMA) from SENS. Any Equipment received by SENS without an RMA may be returned to the Customer at the Customer’s expense. The Customer is responsible for safe packing and shipping of the Equipment to the service facility designated by SENS.
10.7 Warranty Remedy: If SENS determines that a warranty claim is valid, SENS shall, , repair or replace the defective Equipment or re-perform the defective works. Replaced components become the property of SENS. Warranty repairs or replacements are warranted only for the remainder of the original Warranty Period.
10.8 Used Equipment: Any Equipment sold or described as used or refurbished is sold “as is” and carries no warranty, unless otherwise expressly stated in writing by SENS.
10.9 The warranties set out in this clause 10 constitute SENS’s sole and exclusive warranties in respect of the Equipment and Installation Works, and are in lieu of all other warranties, express or implied, including any implied warranties of satisfactory quality or fitness for a particular purpose, to the fullest extent permitted by applicable law.
11. INTELLECTUAL PROPERTY RIGHTS
11.1 Each party’s Intellectual Property Rights shall remain the sole property of that party at all times. Nothing in the Agreement transfers any Intellectual Property Rights from one party to the other.
11.2 SENS’s Intellectual Property Rights: All Intellectual Property Rights in the Equipment, the Software (including Messenger and REACH), the Platform, technical drawings, design documents, methods and know-how remain the sole property of SENS. The Customer acquires no rights in such Intellectual Property Rights other than the limited licence granted under clause 7.
11.3 Customer’s Intellectual Property Rights: SENS shall not acquire any rights in the Customer’s Intellectual Property Rights by reason of the Agreement.
11.4 Mutual IP Indemnity: Each party (the “Indemnifying Party”) shall indemnify and forever hold harmless the other party (the “Indemnified Party”) against all costs, claims, demands and expenses (including reasonable legal fees) arising from any third-party claim alleging that the Indemnified Party’s use of the Indemnifying Party’s Intellectual Property Rights infringes any third-party intellectual property rights, subject to the conditions that: (a) the Indemnified Party promptly notifies the Indemnifying Party in writing; (b) the Indemnified Party does not make any admission of liability without the Indemnifying Party’s prior written consent; (c) the Indemnifying Party is given sole conduct of the defence and any settlement negotiations; and (d) the Indemnified Party provides all reasonable cooperation and assistance.
11.5 SENS may use the Customer’s name, logo, trademarks, or other branding for marketing or promotional purposes, including in client lists, case studies, press releases, website content and product literature, only with the Customer’s prior written consent. Any such use shall be limited to the scope and purpose approved by the Customer and shall be carried out in a manner that does not materially damage the Customer’s reputation. The Customer may withdraw its consent by giving written notice to SENS, following which SENS shall cease such use within fourteen (14) days, except where removal is not reasonably practicable from materials already printed, distributed or published.
12. TERM AND TERMINATION
12.1 The Agreement shall commence on the Commencement Date and shall continue until the Completion Date (in the case of a project) or, in the case of ongoing services (including Platform subscriptions and Maintenance Agreements), for the Minimum Period and thereafter until terminated in accordance with this clause.
12.2 Termination on Notice (Ongoing Services): Unless terminated earlier in accordance with this Agreement, this Agreement shall continue for the Minimum Period. Upon expiry of the Minimum Period, this Agreement and the ongoing Services shall continue in full force and effect on the same terms unless and until terminated by either party by giving the other party not less than thirty (30) days’ written notice. The Customer shall remain liable for all Charges payable up to the effective date of termination.
12.3 Early Termination by Customer: If the Customer terminates the Agreement before the Completion Date or before the expiry of the Minimum Period (as applicable), SENS shall be entitled to recover from the Customer: (a) all Fees for work completed up to the date of termination; (b) the cost of all Equipment ordered or procured in furtherance of the Agreement ; (c) all reasonable costs incurred by SENS in connection with the termination; and (d) a sum equivalent to the Fees that would have been payable for the remainder of the Minimum Period by way of penalty.
12.4 Termination for Cause: SENS may terminate the Agreement immediately by written notice if:
(a) the Customer commits a material breach of the Agreement that is incapable of remedy, or which is capable of remedy but is not remedied within thirty (30) days of written notice from SENS;
(b) the Customer fails to make any payment when due and does not remedy such failure within seven (7) days of written notice;
(c) the Customer ceases or threatens to cease to carry on all or a substantial part of its business;
(d) a receiver, administrator, liquidator or similar officer is appointed over all or any part of the Customer’s assets and is not discharged within fifteen (15) days; or
(e) the Customer makes any arrangement or composition with its creditors or enters liquidation (other than for the purpose of a bona fide solvent reconstruction or amalgamation).
12.5 Consequences of Termination: Upon termination of the Agreement for any reason: (a) all sums owed by the Customer to SENS shall become immediately due and payable; (b) the Customer’s licence to use the Software shall immediately cease; (c) the Customer shall return all Equipment to which SENS retains title within fifteen (15) days; and (d) SENS’s rights to recover Equipment under clause 6.5 shall apply. Termination shall not affect any accrued rights or liabilities of either party or the right to recover damages or to have recourse to any other legal remedies.
12.6 Survival: The obligations of the parties under clauses 6.5, 7A, 7 (post-termination), 9, 10, 11,12, 13, 14, 15, 16, and 17 shall survive the expiry or termination of the Agreement for any reason.
12.7 Changes to These Terms: SENS may update or amend these Terms from time to time. SENS will notify the Customer of any changes at least thirty (30) days before they take effect, by email or by posting the updated Terms on SENS’s website. Continued use of the Services or the Platform after the effective date of any update or amendment constitutes acceptance of the revised Terms. If the Customer does not accept the revised Terms, the Customer may terminate the Agreement by written notice before the effective date of the change, subject to clauses 12.3 and 12.6.
13. LIABILITY AND LIMITATION OF LIABILITY
13.1 Unlimited Liability: Nothing in these Terms shall exclude or limit either party’s liability for: (a) fraud or fraudulent misrepresentation; or (b) death or personal injury caused by negligence; or (c) any other liability that cannot be excluded by law.
13.2 Exclusions: Subject to clause 13.1, SENS shall not be liable for:
(a) any indirect, special, incidental, punitive or consequential loss or damage, however arising (whether in contract, tort, negligence, breach of statutory duty or otherwise);
(b) any loss of business, revenue, profit, anticipated savings, goodwill, data, or reputation;
(c) any loss or damage caused by Force Majeure Events or by the Customer’s own acts or omissions;
(d) any loss arising from the Customer’s Premises being unsuitable or incompatible with the System or Equipment;
(e) any loss arising from interruption, unavailability or failure of the Platform that is caused by the Customer’s network, third-party infrastructure, or Third-Party Cloud Services including Microsoft Azure’s hosting services;
(f) any loss of data resulting from delays, non-deliveries or Service interruptions outside SENS’s reasonable control;
(g) any loss arising from the Customer’s failure to install updates, patches or configuration changes recommended or issued by SENS;
(h) any loss arising from unauthorised access to the Customer’s account, System or Platform credentials.
13.3 Cap on Liability: Subject to clauses 13.1 and 13.2, SENS’s total aggregate liability to the Customer under or in connection with any Agreement shall not exceed one hundred percent (100%) of the total Fees actually paid by the Customer to SENS under the relevant Agreement in the twelve (12) months immediately preceding the event giving rise to the claim.
13.4 Limitation Period for Claims: SENS shall not be liable for any claim under the Agreement unless SENS has received written notice of the claim within six (6) months of the date on which the Customer became aware, or ought reasonably to have become aware, of the circumstances giving rise to the claim.
13.5 Customer Indemnity: The Customer shall indemnify SENS against all claims, demands, losses, damages, costs and expenses (including legal costs) arising from: (a) any breach by the Customer of its obligations under the Agreement; (b) any damage caused by the Customer or its representatives to SENS’s Equipment, personnel or third parties at the Premises; and (c) any use of the System or Platform in breach of the Acceptable Use Policy.
14. DATA PROTECTION
14.1 Each party shall, in performing its obligations under the Agreement, comply at all times with applicable data protection laws, including (without limitation) the General Data Protection Regulation (EU) 2016/679 (“GDPR”), as transposed or applied in the relevant jurisdiction, and the applicable implementing legislation in Malta.
14.2 To the extent that SENS processes personal data on behalf of the Customer in connection with the Agreement, the parties shall enter into a Data Processing Agreement in accordance with applicable data protection laws.
14.3 SENS’s Privacy Policy, available on SENS’s website, sets out how SENS collects and processes personal data of the Customer’s employees and representatives in connection with the Agreement.
14.4 The Customer shall ensure that it has all necessary consents and legal bases for the transfer of any personal data to SENS in connection with the Agreement.
14.5 In the event of a personal data breach affecting data processed by SENS under the Agreement, SENS shall notify the Customer without undue delay and, where feasible, within seventy-two (72) hours of becoming aware of the breach, to the extent required by applicable data protection law. Both parties shall cooperate in good faith to mitigate the effects of any such breach.
14.6 SENS shall retain Customer data and personal data for a period of five (5) years following termination of and payment for all services under the Agreement, or for such longer period as may be required by applicable law or as necessary for the resolution of any pending dispute or legal proceedings. During and at the end of this retention period, SENS shall periodically review retained personal data and shall delete or irreversibly anonymise any personal data that is no longer necessary for the purposes of legal compliance, the exercise or defence of legal claims, or the performance of any surviving obligation under the Agreement. For the avoidance of doubt, anonymised or aggregated data that does not identify any natural person may be retained by SENS indefinitely. Upon written request following termination, SENS shall confirm to the Customer the categories of personal data retained and the basis for continued retention.
15. CONFIDENTIALITY
15.1 Each party undertakes to keep confidential all Confidential Information received from the other party and to use it solely for the purposes of performing its obligations or exercising its rights under the Agreement.
15.2 Each party may disclose Confidential Information: (a) to its directors, officers, employees, professional advisers, and (in the case of SENS) subcontractors, on a strict need-to-know basis, provided each such person is bound by obligations of confidentiality no less stringent than those set out in this clause; or (b) to the extent required by applicable law, regulation or court order, provided the disclosing party gives as much prior written notice as practicable and cooperates with the other party in seeking a protective order.
15.3 The obligations of this clause shall not apply to information that: (a) is or becomes publicly available other than through a breach of these Terms; (b) was already known to the recipient at the time of disclosure; (c) is received from a third party free of any obligation of confidentiality; (d) is independently developed by the recipient or (e) is required to support claims in judicial, mediation and/or arbitration proceedings.
15.4 The obligations of confidentiality shall survive the termination or expiry of the Agreement for a period of five (5) years.
16. FORCE MAJEURE
16.1 Neither party shall be in breach of the Agreement, nor liable for any delay or failure in performance of its obligations, to the extent such delay or failure is caused by a Force Majeure Event, provided that the affected party: (a) promptly notifies the other party in writing, setting out the nature and anticipated duration of the Force Majeure Event; and (b) uses all reasonable endeavours to mitigate the effect of and overcome the Force Majeure Event. Upon the cessation of the delay or failure resulting from Force Majeure the Party affected by the Force Majeure shall as soon as possible notify the other of such cessation.
16.2 If the Force Majeure Event continues for a continuous period of sixty (60) days or more, either party may terminate the Agreement by giving thirty (30) days’ written notice to the other, without liability to the other for such termination (except for payment of amounts due for work already performed up to the date of termination). The Customer shall remain bound to pay all amounts due under clause 9 in respect of works performed and any Equipment whether or not delivered prior to termination.
17. GENERAL PROVISIONS
17.1 Entire Agreement: These Terms, together with the Quotation, Order Confirmation and any Project Agreement or Maintenance Agreement, constitute the entire agreement between the parties with respect to its subject matter and supersede all prior agreements, representations and understandings.
17.2 Waiver: No failure or delay by either party in exercising any right or remedy under the Agreement shall constitute a waiver of that right or remedy. No waiver shall be effective unless in writing.
17.3 Severability: If any provision of these Terms is found by a competent court or authority to be invalid, unlawful or unenforceable, such provision shall be modified to the minimum extent necessary to make it valid, lawful and enforceable while retaining the original intention of the parties as far as possible. The remaining provisions shall continue in full force and effect.
17.4 Amendment: These Terms may not be amended except by a written instrument signed by an authorised representative of each party.
17.5 Notices: All notices under the Agreement shall be in writing and shall be delivered: (a) by hand or courier to the recipient’s registered address; (b) by email to the address specified in the Quotation or Order Confirmation. A notice shall be deemed received: (i) if delivered by hand or courier, on the date of delivery; (ii) if sent by first-class post, three (3) working days after posting; (iii) if sent by email, on the day of transmission if sent before 16:00 CET on a working day, otherwise on the next working day.
17.6 Relationship: Nothing in the Agreement shall create or be deemed to create a partnership, agency, employment relationship, or joint venture between the parties. Neither party has authority to bind the other.
17.7 Assignment: SENS may assign, novate, sub-contract or otherwise transfer any or all of its rights and obligations under the Agreement without the Customer’s consent. SENS may also be represented by or act through other companies within the SENS Innovation Group. The Customer may not assign or transfer any rights or obligations under the Agreement without SENS’s prior written consent. This Agreement is personal to the Customer.
17.8 Third Party Rights: Nothing in this Agreement shall confer on any third party any right to enforce any term of this Agreement. This Agreement is intended solely for the benefit of the parties and their permitted successors and assigns.
17.9 Language: These Terms have been prepared in English. In the event of any translation into another language, the English version shall prevail and be regarded as the authoritative text in the case of any ambiguity or inconsistency.
17.10 Anti-Bribery and Corruption: Each party shall comply with all applicable anti-bribery and corruption laws, including (without limitation) the Maltese Criminal Code provisions on corruption and any equivalent anti-corruption legislation applicable in the relevant jurisdiction.
17.11 Sanctions: The Customer represents and warrants that neither it, nor any of its directors, officers, or beneficial owners, is subject to any applicable economic or trade sanctions, and that the Agreement will not cause SENS to breach any applicable sanctions regime.
17.12 VAT and Taxes: Unless otherwise stated, all Fees are exclusive of VAT and all other applicable taxes, which shall be added to SENS’s invoices at the applicable rate and paid by the Customer.
17.13 Headings: Headings in these Terms are for convenience only and shall not affect their interpretation.
17.14 Business Days: Where any obligation falls due on a day that is not a business day in Malta, that obligation shall be performed on or by the next following business day.
17.15 Dispute Resolution: In the event of any dispute arising under or in connection with the Agreement, the parties shall attempt in good faith to resolve it through negotiations between senior representatives. If the dispute is not resolved within thirty (30) days of written notice from one party to the other, either party may refer the dispute to the courts in accordance with clause 17.16.
17.16 Governing Law and Jurisdiction: These Terms and any Agreement shall be governed by and construed in accordance with the laws of the Republic of Malta. The parties hereby irrevocably submit to the exclusive jurisdiction of the Maltese courts for the resolution of any dispute, except that SENS reserves the right to bring proceedings against the Customer in any other competent jurisdiction where SENS may do so under applicable law. These Terms apply to all transactions and projects performed by SENS and its subsidiaries, whether in Malta or internationally.
Contact us
If you have any questions or concerns about these terms and conditions, please do so in writing by email to info@sensinnovation.com.
