1. We are Arc Simulations Ltd a company registered in England and Wales under number 14335119, whose registered office is at 228a Earlsfield Road, London, SW18 3DX(“Arc Simulations”, “we” ,“us” “our”).
2. You are a business user whose details appear on the Customer Account on the Platform as defined below (“Customer” “you”)
3. Arc Simulations has created the Dukes powered by Arc training device (“Ball”) and the Arc online software platform at [https://app.arcsim.io] (“Platform”) together referred to as the “Arc System” which enables you to collect and analyse data generated from the Ball on the Platform.
4. Arc Simulations has agreed to provide and the Customer has agreed to use the Arc System subject to these Terms. These Terms do not apply to individual consumers for personal use (that is, not in connection with, or for use in, their trade, business, craft, or profession).
5. The Arc System is currently in a beta version and may be subject to change in delivery and functionality from time to time as the Arc System continues to develop.

ACCOUNT

6. The Customer is required to set up an account on the Platform to use the Arc System (“Customer Account”).

7. The Customer shall be able to set up linked profiles on the Platform for one authorised coach and the number of players as set out in Schedule 1;

8. The Customer shall ensure it keeps a secure password for the Platform, that such password shall be changed frequently and that it shall keep its password confidential.

9. The Customer shall permit Arc Simulations to monitor its use of the Arc System.

10. If any of these Terms have been violated, then without prejudice to Arc Simulations’’ other rights, it may disable the Customer Account.

11. The Customer undertakes that:

    i. the maximum number of coaches and players that it authorises to access and use the Arc System shall not exceed the number it has purchased from time to time;

    ii. it will not allow or suffer any account to be used by more than one individual user unless it has been reassigned in its entirety to another individual user, in which case the prior user shall no longer have any right to access or use the Arc System;

    iii. each user shall keep a secure password for their use of the Arc System, that such password shall be changed no less frequently than yearly and that each user shall keep their password confidential;

    iv. it shall maintain a written, up to date list of current users and provide such list to Arc Simulations within 5 Business Days of the Supplier's written request at any time or times;

Licencse

12. Subject to these Terms Arc Simulations hereby grants to the Customer a non-exclusive, non-transferable right (without the right to grant sublicences) to use the Arc System solely for internal training purposes (defined below) for the term as set out in Schedule 1 unless terminated earlier in accordance with clause 65.
13. The rights granted under these Terms are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

FEE

14. The Customer shall pay Arc Simulations the amount set out in Schedule 1 (“Fees”).
15. Payment terms for the Customer are set out in Schedule 1
16. All Fees are non-refundable.
17. All amounts payable for the Fees are in pounds sterling and exclusive of VAT.

USE OF THE BALL AND PLATFORM

18. The Ball shall at all times remain the property of ArcSim and the Customer shall have no right, title, or interest in or to the Ball except as stated in these Terms.

19. Risk of loss, theft, damage or destruction of the Ball shall pass to the Customer upon it leaving the physical possession or control of Arc Simulations and shall not revert back to Arc Simulations until the Ball is back in Arc Simulations’ possession or control, notwithstanding the expiry of the term.

20. The Customer shall give immediate written notice to Arc Simulations in the event of any loss, accident or damage to the Ball.

21. Unless and until the Ball is returned to Arc Simulations, the Customer undertakes that it shall:

    i. keep the Ball in its possession and control on the Customer’s premises, not move or attempt to move any part of the Arc System to any other location without the prior written consent of Arc Simulations, and ensure that it is secure against loss, damage and theft;

    ii. operate and use the Arc System in a proper, safe and prudent manner in accordance with any operating instructions issued for it by Arc Simulations and for the purpose for which it was designed;

    iii. ensure that the Arc System is operated with all due care and attention and is used by properly skilled and trained personnel in accordance with Arc Simulations’ relevant instructions;

    iv. ensure, so far as is reasonably practicable, that the Ball is at all times safe and without risk to health when it is being set, used, cleaned or maintained by a person at work;

    v. keep the Ball in good working order, fair wear and tear excepted, and make good any damage to the Ball;

    vi. make no alteration to the Ball and not remove any existing component (or components) from the Ball without the prior written consent of Arc Simulations;

    vii. be responsible for the cost of any consumable used in the operation of the Ball, ensure that any consumable is compatible with the Ball and that it is approved by Arc Simulations;

    viii. not hold itself out as owner of the Arc System, nor charge, encumber, sell, let, lease, hire or otherwise dispose of, part with, or abandon the Ball, nor permit or suffer the creation of any lien or distress over the Ball;

    ix. ensure that any identification marks, labels or signs on or fixed to the Ball are not removed, defaced, amended, obscured or otherwise subjected to interference, including those which identify the Ball as belonging to Arc Simulations;

    x. permit Arc Simulations, its employees and agents access to the Ball and the Customer’s premises on which it is held for the purpose of inspecting, repairing, servicing and replacing the Ball;

    xi. not, without the previous written consent of Arc Simulations attach or affix the Ball to any land or premises so as to cause it to become a permanent or immovable fixture on such land or premises;

    xii. where the Ball is attached or affixed to land or premises, ensure that the Ball shall be capable of being removed without material injury to such land or building or the Ball and shall take all necessary steps to prevent ownership of the Ball from passing to the landlord of such land or building;

    xiii. repair and make good any damage caused by the affixation of the Ball to or its removal from any land or building and to indemnify Arc Simulations against all loss, damage or liability that either Arc Simulations or the Customer may incur or sustain as result of such affixation or removal;

    xiv. inform Arc Simulations of any change in its address;

    xv. ensure that the Ball is returned in the same condition that it was supplied in (fair wear and tear excepted); and

    xvi. ensure that use of the Ball complies with any relevant government or local authority regulations, including any applicable health and safety requirements.

22. The quality of data on the Platform is dependant on the use of the Ball;

23. Any timescales provided by Arc Simulations are indicative only and are not guaranteed.

24. Arc Simulations shall not be required to monitor any material, information or data supplied by the Arc System or otherwise.

25. The Customer shall at all times be responsible for any information or data collected via the Ball or uploaded and/or exchanged via the Platform or contained on the Arc System. It is the Customer’s obligation to monitor its use of the Arc System.

26. The Customer shall not access, store, distribute or transmit anything (including without limitation any software, code, file or programme) which may:

    a. prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device;

    b. prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including without limitation the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or

    c. adversely affect the user experience, including without limitation worms, trojan horses, viruses and other similar things or devices, or any material during the course of its use of the Arc System.

27. The Customer shall not access, store, distribute, upload or transmit anything (including without limitation any material, content, software, code, file or programme) which: a. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; b. facilitates illegal activity; c. depicts sexually explicit images; d. promotes unlawful violence; e. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or f. is otherwise illegal or causes damage or injury to any person or property;

28. In the event that the Customer breaches these Terms, Arc Simulations reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to the Arc System and/or terminate this agreement.

29. The Customer shall not:

    a. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under these Terms:

       i.	attempt to clone, benchmark, copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Arc System and/or any software contained therein (as applicable) in any form or media or by any means; or
       ii.	attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the software in the Arc System; or
       iii.	access all or any part of the software in the Arc System in order to build a product or service which competes with the Arc System; or
       iv.	use the Arc System to provide services to third parties; or
       v.	use the Arc System for unlawful purposes; or
       vi.	license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Arc System available to any third party; or
       vii.	attempt to obtain, or assist third parties in obtaining, access to the Arc System including without limitation any unauthorised third parties attempting to undertake unauthorised maintenance and/or support; or
       viii.	introduce or permit the introduction of, any virus or vulnerability into the Arc Simulations’ network, information systems, and/or the Arc System.
    

30. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Arc System and, in the event of any such unauthorised access or use, promptly notify Arc Simulations.

31. Notwithstanding its other rights Arc Simulations may at any time suspend access to the Arc System whilst it investigates any issues raised against a Customer.

32. Arc Simulations shall use commercially reasonable endeavours to make the Arc System available 24 hours a day, seven days a week, except for:

    a. planned maintenance; and

    b. unscheduled maintenance.

33. The Arc System are provided on an ‘as is’ and on an ‘as available’ basis.

34. Arc Simulations may alter, suspend or discontinue the Arc System (or any part of it) at any time and without notice.

35. Arc Simulations will not be liable to the Customer in any way if the Ball and/or Platform (or any part of it) is unavailable at any time and for any period.

36. Changes may, from time to time, be made to the Arc System for example, to reflect changes in relevant laws and regulatory requirements, or to address technical or security issues. These changes should not normally affect the Customer’s use of the Arc System.

37. All services performed by Arc Simulations will be carried out with reasonable skill and care. This shall not apply to the extent of any non-conformance which is caused by the Customer’s use of the Arc System contrary to Arc Simulations instructions or directions, or modification or alteration of the Arc System by any party other than Arc Simulations.

38. Arc Simulations does not warrant that:

    a. Any use of the Arc System will be uninterrupted or error-free.; or

    b. that the Arc System will meet the Customer’s requirements; or

    c. that the Arc System, or any software will be free from any vulnerabilities; or

    d. the Arc System software or services will comply with any heightened cybersecurity requirements; or

    e. the Arc System will be compatible with any specific device.

39. Arc Simulations is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including without limitation the internet, and the Customer acknowledges that the Arc System may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

40. The Customer acknowledges and agrees that Arc Simulations and/or its licensors own all intellectual property rights in the Arc System and software contained therein.

41. Except as expressly stated herein, these terms do not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Arc System or the software contained therein.

42. Arc Simulations confirms that it has all the rights in relation to the Arc System that are necessary to grant all the rights it purports to grant under, and in accordance with, these terms and conditions.

DATA

43. Arc Simulations shall comply with its Privacy Policy (link) relating to the privacy and security of the data collected via the Arc System (“Customer Data”).

44. The Customer shall comply with all applicable requirements of all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and any relevant legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) (“Data Protection Legislation”).

45. The parties acknowledge that:

    a. if Arc Simulations processes any personal data on the Customer’s behalf when performing its obligations under these Terms via the Arc System or otherwise, the Customer is the controller and Arc Simulations is the processor for the purposes of the Data Protection Legislation. b. The Arc Simulations Privacy Policy (link) sets out the scope, nature and purpose of processing by Arc Simulations the duration of the processing and the types of personal data and categories of data subject. c. Personal data may be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the services and for Arc Simulations to perform its other obligations under these Terms.

46. The Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the personal data to Arc Simulations via the Arc System or otherwise for the duration and purposes envisaged under these Terms and so that Arc Simulations may lawfully use, process and transfer any personal data in accordance with these Terms.

47. The Customer shall ensure that it each has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures.

48. The Customer consents to Arc Simulations appointing suitable third party processors as third-party processors of personal data.

49. Arc Simulations may at any time revise its data protection obligations under these Terms.

50. You understand that the Arc System uses artificial intelligence and machine learning. You appreciate that we may incorporate part of the Customer Data into our internal machine learning algorithms for ongoing development of the Arc System and our software. The content may be used to train the software to better understand the sport generally, training and different techniques. As a result we may incorporate any of the Customer Data or any data collected via the Arc System into our machine learning algorithms.

51. We shall be permitted to use any Customer Data as we determine and in our utter discretion as aggregated and anonymised bench-marking data.

CUSTOMER’S OBLIGATIONS

52. The Customer shall at all times, without affecting its other obligations under these Terms, comply with all applicable laws and regulations with respect to its activities under these Terms and in respect of the Customer Data and its use of the Arc System.
53. The Customer shall at all times provide all necessary access to information as may be reasonably required or requested by Arc Simulations.
54. Where the Customer fails to co-operate with Arc Simulations Arc Simulations reserves its rights to charge the Customer such additional sums required to compensate for any additional services or work required from Arc Simulations , including but not limited to in respect of Customer Data, security access information and configuration services.
55. The Customer shall carry out all its responsibilities under these Terms in a timely and efficient manner. In the event of any delays, Arc Simulations may adjust any timetable or delivery schedule as reasonably necessary.
56. The Customer shall use the Arc System in accordance with these Terms and shall be responsible for any breach of these terms.
57. The Customer shall obtain and maintain all necessary licences, consents, and permissions necessary for Arc Simulations, its contractors and agents to perform its services and operate the Arc System. This shall include without limitation the consents, rights and permissions required in respect of the Customer Data.
58. The Customer shall ensure that its network and systems and data comply with any relevant specifications provided by Arc Simulations from time to time. The Customer shall comply with all policies and terms on the Platform as amended from time to time.

INDEMNITY

59. At all times the Customer is responsible for its use of the Arc System.
60. At all times the Customer is responsible for the integrity of the Customer Data.
61. At all times the Customer shall defend, indemnify and hold harmless Arc Simulations against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Arc System and/or any Arc Simulations software.
62. At all times the Customer shall defend, indemnify and hold harmless Arc Simulations against any claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer Data, including without limitation in respect of any data protection obligations.

LIMITATION OF LIABILITY

63. Except as expressly and specifically provided in these Terms and to the maximum extent permitted by law: a. the Customer assumes sole responsibility for any and all results obtained from the use of the Arc System and for conclusions drawn from such use or any action taken as a result. b. Arc Simulations shall have no liability for any damage caused by errors or omissions in any information, instructions or data provided to Arc Simulations by the Customer in connection with the Arc System, or any actions (or inaction) taken by Arc Simulations at the Customer’s direction;

64. The Customer acknowledges and agrees that to the maximum extent permitted by law all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded in respect of its agreement with Arc Simulations and in respect of the Arc System.

65. Nothing in these Terms excludes the liability of Arc Simulations:

    a. for death or personal injury caused by Arc Simulations negligence; or

    b. for fraud or fraudulent misrepresentation; or

    c. for any other liability which cannot be legally excluded

66. To the maximum extent permitted by law Arc Simulations shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under these Terms.

67. Notwithstanding these Terms and to the maximum extent permitted by law Arc Simulations’ total aggregate liability in contract, tort (including without limitation negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of its agreement with the Customer shall be limited to the Fees paid during the 12-month period in which the breach arose.

TERMINATION

68. Without affecting any other right or remedy available to it, either Arc Simulations or the Customer may terminate these Terms with immediate effect by giving written notice to the other party if

    (a) the other party commits a material breach of the Terms which breach is irremediable or (if such reach is remediable) fails to remedy the breach within a period of 14 days after being notified to do so; and/or

    (b) the other shall have a receiver or liquidator appointed, shall pass a resolution for winding up (otherwise than for the purpose of amalgamation or reconstruction), if a Court shall make an order to that effect, if the other party shall enter into composition or arrangement with its creditor(s) or shall become insolvent or any analogous action. Such an event shall be deemed to be a material breach incapable of remedy.

69. On termination for any reason:

    a. all licences granted to the Customer to use the Arc System and/or any hardware or software of Arc Simulations shall immediately terminate and the Customer shall immediately cease all use of the Ball, Platform and/or any software of Arc Simulations;

    b. The Customer must arrange for the immediate return of the Balls;

    c. Arc Simulations may destroy or otherwise dispose of any of the Customer Data;

    d. the Fee shall not be refundable;

    e. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

FORCE MAJEURE

70. Arc Simulations shall have no liability to the Customer if it is prevented from or delayed in performing its obligations, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of ArcSim or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors.

CHANGES

71. Arc Simulations may revise these Terms from time to time. If Arc Simulations changes these Terms it will give the Customer reasonable advance notice of the changes and provide details of how to cancel these Terms if the Customer is not happy with them.

WAIVER

72. No failure or delay by Arc Simulations to exercise any right or remedy provided under these Terms or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

RIGHTS AND REMEDIES

73. Except as expressly provided in these Terms, the rights and remedies provided to ArcSim under these Terms are in addition to, and not exclusive of, any rights or remedies provided by law.

SEVERANCE

74. If any provision or part-provision of these Terms is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of these Terms.
75. If any provision or part-provision of these Terms is deemed deleted under clause 74 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.

ENTIRE AGREEMENT

76. These Terms constitutes the entire agreement between Arc Simulations and the Customer and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
77. The Customer acknowledges that in entering into these Terms it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Terms.
78. The Customer agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in these terms and conditions.
79. Nothing in these Terms shall limit or exclude any liability for fraud.

ASSIGNMENT

80. The Customer shall not, without the prior written consent of ArcSim, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.
81. Arc Simulations may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under these Terms.

NO PARTNERSHIP OR AGENCY 82. Nothing in these Terms is intended to or shall operate to create a partnership or joint venture between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

THIRD PARTY RIGHTS

83. These Terms do not confer any rights on any person or party (other than the Customer and Arc Simulations and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

GOVERNING LAW
84. These Terms and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.

JURISDICTION

85. The Customer and Arc Simulations each irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Terms or its subject matter or formation (including non-contractual disputes or claims).

Schedule 1

Term: See customer beta contract

Fees: See customer beta contract

Number of players: See customer beta contract