​

Terms of Business of Touchling Limited, trading as 1Guava

 

 

By signing up to or creating an account with  Touchling Limited trading as 1Guava (company number 12177443) (the ‘Supplier’, ‘1Guava’ and/or ‘We’), either on our mobile or web application, you (the ‘Customer’and/or ‘You’)  confirm You have read and agree to be bound by these Conditions. You must not sign up to, or create an account or otherwise access or use the Services if you do not agree to these Conditions. IF YOU DO NOT AGREE TO ANY OF THESE CONDITIONS, YOU ARE NOT AUTHORISED AND MUST CEASE USING THE APP IMMEDIATELY.

​

1. DEFINITIONS

The following definitions and rules of interpretation apply in these Conditions:

1.1

App: means the 1Guava mobile or web application created by the Supplier in order to (amongst other things) manage and track the utilisation of construction plant; manage files, people and signatures on site; and to provide such other services and capture such other items of information as the Supplier considers necessary or desirable in order to continue providing and improving the Services.

AUP: means the Supplier’s Acceptable Use Policy as described in Clause 4.2.

Authorised User:  means any employee of the Customer authorised to use the 1Guava Services. Authorised Users of Customers must be identified by a unique email address and username provided to the Supplier by the Customer. Two or more natural persons may not use the 1Guava Services as the same Authorised User. If a proposed User is not an employee of a Customer, use of the 1Guava Services will only be allowed by such person if the name and such other identification of the proposed additional User is provided to the Supplier in advance of any such additional proposed use, and the Customer provides written evidence satisfactory to the Supplier that such person is under a confidentiality agreement with the Customer, at least as restrictive as to confidentiality issues, as are set out in clause 8 of these Conditions, and that the Customer confirms in writing to the Supplier that such additional proposed User is accessing or using the 1Guava Services solely to support Customer’s internal business purposes.

Business Day:  a day other than a Saturday, Sunday, or public holiday in England, when banks in London are open for business.

Business Hours:  the period from 9.00 am to 5.30 pm on any Business Day.

Company: Touchling Limited trading as 1Guava, a private limited company registered in England and Wales with company number 12177443.

Commencement Date:  has the meaning given in Clause 2.2.

Conditions:  these terms and conditions as amended from time to time.

Confidential Information: has the meaning set out in Clause 8.

Contract:  a contract between the Supplier and the Customer for the supply of the Services.

Control:  has the meaning given in section 1124 of the Corporation Tax Act 2010, and the expression change of Control shall be interpreted accordingly.

Customer:  the person, firm or company who purchases Services from the Supplier.

Documentation: the Supplier’s manual setting out instructions as to how to use the App, and any other documentation provided by the Supplier to the Customer.

Fees: has the meaning set out in Clause 5.

Force Majeure Event:  has the meaning given to it in Clause 12. 

GDPR: means the General Data Protection Regulation implemented under the Data Protection Act 2018.

Intellectual Property Rights:  patents, utility models, rights to inventions, copyright and related rights, moral rights, trademarks and service marks, business names and domain names, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, Confidential Information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.

Online Services: the cloud-based construction management software services as further described in the description of the Services set out in paragraph 2.2 of Schedule 1.

Order:  an order by the Customer for the supply of the Services, which is confirmed and accepted by the Supplier in accordance with Clause 2.2.

Services:  the Online Services and the Support Services agreed to be supplied by the Supplier to the Customer including, but not limited to those set out in Schedule 1.

Specification(s):  the description of the Services to be provided by the Supplier under the Contract from time to time, including the Term, as set out in Schedule 1 to these Conditions and/or as described on the Website. 

Support Services: the support services described in the paragraph 2.1 of Schedule 1, which may include access to live chat and training webinars through the Website.

Supplier:  Touchling Limited trading as 1Guava (registered in England and Wales with company number 12177443).

Term: means the duration of the Contract as set out in Schedule 1.

User: means any individual, firm or company who uses the App on the Customer’s behalf or through or by utilising the Customer’s account or passwords.

UK GDPR:  has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018

Website: means the Supplier’s website as updated and amended by the Supplier from time to time at: https://www.touchling.com and https://www.1guava.com

 

1.2

(a)A ‘person’ includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

(b)A reference to a party includes its personal representatives and successors and permitted assignees.

(c)A reference to legislation or a legislative provision is a reference to it as amended or re-enacted. A reference to legislation or a legislative provision includes all subordinate legislation made under that legislation or legislative provision.

(d)A reference to ‘writing’ or ‘written’ excludes fax but not email.

 

2. BASIS OF CONTRACT

2.1

An Order constitutes an offer by the Customer to purchase the Services from the Supplier in accordance with these Conditions which the Supplier has accepted pursuant to clause 2.2.

2.2

An Order shall be deemed to be accepted and the Commencement Date shall only come into existence when the Customer either clicks  ‘ACCEPT/ACCEPTED’ in the process of opening an online registration form or account with the Supplier on the Supplier’s Website; or when the Customer provides written acceptance of the Supplier's quotation; or when the Supplier issues written acceptance of the Order in accordance with the terms of this Contract, as the case may be.

2.3

Any descriptive matter or advertising issued by the Supplier and any descriptions of the Services contained on the Supplier's Website, are issued or published for the sole purpose of giving an approximate idea of the Services described therein. They shall not form part of the Contract nor have any contractual force.

2.4

These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which may otherwise be implied by custom, practice, or any prior course of dealing between the parties.

2.5

Any quotation given by the Supplier shall not constitute an offer and is only valid for a period of 20 business Days from its date of issue.

2.6

The Customer waives any right it might otherwise have to rely on any term or condition endorsed upon, delivered with, or contained in any documents of the Customer that is inconsistent with these Conditions.

 

3. SUPPLY OF SERVICES

3.1

The Supplier shall use its reasonable endeavours both to supply the Services to the Customer, and to meet any performance dates for  provision of the Services (if any), each of which are set out in the Specifications.  Any performance dates shall be estimates only and time shall not be of the essence for the performance of any part of the Services.

3.2

The Supplier reserves the right to amend the Specifications for the Services from time to time, whether in order to comply with any applicable law or regulatory requirement, or otherwise, and to revise and upgrade the App at any time, including, without limitation, removing certain features and functions from the App. In any such event, the Supplier will endeavour to notify the Customer of any such changes to the System and/or the App within a reasonable timeframe.

3.3

If any such revision referred to in clause 3.2 materially reduces the functionality of the App or the Services, the Customer shall be entitled, at any time, to give 30 days written notice to terminate the Contract, and save for any Fees due to the date on which such termination notice expires, the Customer shall be regarded as having terminated the Contract without liability.

 

4. CUSTOMER'S OBLIGATIONS

4.1

The Customer shall:

(a)ensure that the terms of its Order are true, complete, and accurate and not misleading;

(b)co-operate with the Supplier in all matters relating to the provision of the Services and, in particular, use the App in compliance with the Documentation, training and video tutorials;

(c)provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer's premises and other facilities as required by the Supplier from time to time, to provide the Services;

(d)always provide the Supplier with such information and materials and facilities, as the Supplier may reasonably require in order to supply the Services, and ensure that any such information provided is true, complete and accurate and not misleading;

(e)prepare the Customer's premises for the supply of the Services;

(f)obtain and maintain all necessary licences, permissions and consents which may be required for the provision of the Services before the date on which the Services are to start;

(g)comply with all applicable laws and regulations, including, without limitation, all applicable health and safety and GDPR laws;

(h)keep all materials, equipment, documents and other property of the Supplier (Supplier Materials) at the Customer's premises in safe custody at its own risk; maintain the Supplier Materials in good condition until returned to the Supplier and not dispose of or use any of the Supplier Materials other than in accordance with the Supplier's written instructions or authorisation;

(i)comply with any additional obligations as set out in the Specifications;

(j) immediately notify the Supplier of any known or suspected unauthorised use of the App or breach of its security and use its best efforts to prevent any such unauthorised use or breach; and

(k) be responsible for and indemnify the Supplier against all and any Users’ misuse of the App including, without limitation, any unauthorised User conduct and any User conduct which would violate the AUP.

4.2

The Customer shall not do anything to breach the Supplier’s AUP from time to time in force, which shall include, but not be limited to:

(a) assigning this Contract or any of its rights hereunder, or re-selling, licencing or allowing the use of the App, or the Services to or by a third party;

(b) allowing any use or exploitation of the App otherwise than in compliance with the Documentation, or permitting any unauthorised access to the Services or the App by any third party (including, without limitation by protecting passwords and other login information);

(c) providing any App passwords or login details to any third party;

(d) accessing the App in order to build a competitive product or service or to build a product or service using similar ideas, features, functions or graphics to the App or any part thereof;

(e) copying any ideas, features, functions, or graphics of the App; or

(f) doing anything which might be considered, in the reasonable opinion of the Supplier, analogous to any of the foregoing.

4.3

In the event that it suspects any breach of the provisions of Clause 4.2, the Supplier may suspend the Customer’s access to the App without notice, in addition to any other rights or remedies that may be available by law to it.

4.4

If the Supplier's performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

(a)without limiting or affecting any other right or remedy available to it, the Supplier shall have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations in each case to the extent the Customer Default prevents or delays the Supplier's performance of any of its obligations;

(b)the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier's failure or delay to perform any of its obligations as set out in this Clause 4.4; and

(c)the Customer shall reimburse the Supplier on written demand for any costs, fees, expenses or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

4.5

The Customer:

(a)acknowledges and agrees that each Authorised User is required to have login details and a password to access the service;

(b)must ensure that each Authorised User keeps their login details safe and does not disclose this information to any third party;

(c)is responsible for ensuring that each Authorised User selects a secure password.

 

5. FEES, CHARGES AND PAYMENT

5.1

Schedule 2 sets out the Supplier’s schedule of Fees. The Fees shall be calculated by reference to the Specifications contained in Schedule 1.

5.2

The Customer shall pay the Supplier the Fees for the provision of the Services from time to time in force, or as otherwise appearing on the Website from time to time.

5.3

The Supplier shall be entitled to charge the Customer for any expenses reasonably incurred by the individuals whom the Supplier engages in connection with the provision of the Services including travelling expenses, hotel costs, subsistence, and any associated expenses.

 5.4

The Supplier reserves the right to:

(a)increase the charges for the Services with effect from the Commencement Date, taking into effect any changes to the Specifications and any additional services requested by the Customer;

(b)increase the price of the Services at any time in the event  that:

(i) the Supplier is impacted by events causing an increase in its own costs which are beyond its reasonable control;

(ii) any request by the Customer to change the delivery date(s) for the provision of the Services; or

(iii) any delay caused by any instructions of the Customer which are inconsistent with the terms previously agreed by the Supplier under the Contract.

5.5

The Customer shall pay each invoice submitted by the Supplier in full forthwith on presentation of each invoice, or, at the Supplier’s option, within 14 days of the presentation of each invoice and, in each case in cleared funds to a bank account nominated in writing by the Supplier. Time shall be of the essence in respect of the payment of all invoices.  

5.6

All charges levied by the Supplier are exclusive of value added tax (VAT). The Customer will be required to discharge all invoices on a VAT inclusive basis. Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services.

5.7

If the Customer fails to make a payment due to the Supplier under the Contract by any due date, then, without limiting the Supplier's remedies hereunder, the Customer shall pay interest on the overdue sum from the due date until payment of the overdue sum, whether before or after judgment. Interest under this Clause 5.7 will accrue each day at 4% a year above the Bank of England's base rate from time to time in force, but at 4% a year for any period when that base rate is below 0%.

5.8

All amounts due under the Contract shall be paid in full without any set-off, counterclaim, deduction or withholding into the bank account of the Supplier notified by the Supplier to the Customer from time to time.

 

6. INTELLECTUAL PROPERTY RIGHTS

6.1

All Intellectual Property Rights in or arising out of or in connection with the Services (other than Intellectual Property Rights in any materials provided by the Customer) shall be owned by the Supplier, including all software, system software, and applications to provide the App, including any source codes, updates, improvements, enhancements  modifications whether or not patentable and all inventions, content, graphics, media, user interfaces, logos and trademarks contained in, displayed or reproduced through the App.

6.2

This Contract is a contract for services and does not grant the Customer any intellectual property, licence, or rights in or to the App.

6.3

The Customer grants the Supplier a fully paid-up, non-exclusive, royalty-free non-transferable licence to copy and modify any materials provided by the Customer to the Supplier for the term of the Contract for the purpose of providing the Services to the Customer.

 

7. DATA PROTECTION

7.1

The following definitions apply in this Clause 7:

(a) ‘Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing, and appropriate technical and organisational measures’: as defined in the Data Protection Legislation.

(b)Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR, the Data Protection Act 2018 (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) and the guidance and codes of practice issued by the Information Commissioner or other relevant regulatory authority and applicable to a party.

(c)Domestic Law: the law of the United Kingdom or a part of the United Kingdom.

7.2

Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 7 does not relieve, remove or replace, a party's obligations or rights under the Data Protection Legislation.

7.3

The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller, and the Supplier is the Processor.

7.4

Without prejudice to the generality of Clause 7, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier and/or lawful collection of the Personal Data by the Supplier on behalf of the Customer for the duration and purposes of the Contract.

 

8. CONFIDENTIALITY AND NON-DISCLOSURE

8.1

The Customer accepts that all information disclosed to it by or on behalf of the Supplier is confidential (‘Confidential Information’) whether or not marked ‘confidential.’

8.2

The Customer undertakes that it shall not at any time, disclose to any person any Confidential Information concerning the business, assets, affairs, knowhow, technology, customers, clients, or suppliers of the Supplier or of any member of the Supplier’s group of companies, except as expressly permitted by this clause.

8.3

Each party may disclose the other party's Confidential Information:

(a)to its employees, officers, representatives, contractors or subcontracts or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives, or advisers to whom it discloses the other party's confidential information comply with this Clause 8; and

(b)as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.

8.4

No party shall use any other party's Confidential Information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.

8.5

The Customer shall promptly inform the Supplier of any misuse or misappropriation of Confidential Information that comes to the Customer’s attention.

8.6

This Contract does not transfer ownership of the Confidential Information or grant a licence thereto. The Supplier shall retain all rights, title, and interest to all Confidential Information.

 

9. LIMITATION OF LIABILITY: THE CUSTOMER'S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE.

9.1

The Supplier’s liability arising out of or related to this Contract shall not exceed the amount of the fees paid by the Customer to the Supplier in a period of 12 months immediately preceding the date on which the Customer presents a claim to the Supplier that it has breached the terms of this Contract.

9.2

The restrictions on liability in this Clause 9 apply to every liability arising under or in connection with the Contract including liability in contract, tort (including negligence), misrepresentation, restitution or otherwise and are hereby accepted by the Customer as being reasonable. The Customer expressly enters into the Contract on the basis of the limitations set out in this Clause 9.2.

9.3

Neither party may benefit from the limitations and exclusions set out in this clause in respect of any liability arising from its deliberate default.

9.4

Nothing in the Contract limits any liability which cannot legally be limited, including liability for:

(a)death or personal injury caused by negligence; or

(b)fraud or fraudulent misrepresentation.

9.5

The following types of loss are wholly excluded:

(i)loss of profits;

(ii)loss of sales or business;

(iii)loss of agreements or contracts;

(iv)loss of anticipated savings;

(v)loss of use or corruption of software, data or information;

(vi)loss of or damage to goodwill; and

(vii)indirect or consequential loss.

 

10. TERM AND TERMINATION

10.1

The Term of this Agreement shall commence on the date the Order has been accepted by the Supplier under Clause 2.2 and shall continue for an initial Term of 12 months from the date thereof, or as otherwise agreed between the Customer and the Supplier in writing

10.2

Following its expiration, the Term will continue for successive Terms equal to the initial Term unless either party refuses such renewal by serving written notice to the other party at its registered office or principal trading address, not less than 30 days prior to any such t renewal date.

10.3

Without affecting any other right or remedy available to it, either party may terminate the Contract with immediate effect by giving written notice to the other party if:

(a) the other party commits a material breach of its obligations under the Contract and (if such breach is remediable) fails to remedy that breach within ten business days after receipt of notice in writing to do so;

(b)the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;

(c)the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; or

(d)the other party's financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of the Contract is in jeopardy.

10.4

Without affecting any other right or remedy available to it, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if:

(a)the Customer fails to pay any amount due under the Contract on the due date for payment; or

(b)there is a change of Control of the Customer.

10.5

Without affecting any other right or remedy available to it, the Supplier may suspend the supply of Services under the Contract or any other contract between the Customer and the Supplier if the Customer fails to pay any amount due under the Contract on the due date for payment, or the Customer becomes subject to any of the events listed in Clause 10.3(b), or the Supplier reasonably believes that the Customer is about to become subject to any of them.

 

11. CONSEQUENCES OF TERMINATION

11.1

On termination of the Contract:

(a)the Supplier shall immediately discontinue the Customer’s access to the App and the Customer shall cease to use the App and shall delete, destroy or return all copies of the Documentation in its possession or control;

(b) the Supplier shall submit an invoice for all Services which have not already been invoiced and the Customer shall pay the Supplier immediately on receipt;

(c) the Customer shall return all the Supplier Materials and if the Customer fails to do so, then the Supplier may enter the Customer's premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract.

11.2

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

11.3

Any provision of the Contract that expressly or by implication is intended to have effect after termination or expiry shall continue in full force and effect.

 

12. FORCE MAJEURE

Neither party shall be in breach of the Contract or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). The time for performance of such obligations shall be extended accordingly. If the period of delay or non-performance continues for ten weeks, the party not affected may terminate the Contract by giving ten business days' written notice to the affected party.

 

13. GENERAL

13.1

Assignment and other dealings

(a)The Supplier may at any time assign, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all its rights and obligations under the Contract.

(b)The Customer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract without the prior written consent of the Supplier.

13.2

Notices.

(a) Any notice given to a party under or in connection with the Contract shall be in writing and shall be:

(i) delivered by hand or by pre-paid first-class post or other next working day delivery service at its registered office (if a company) or its principal place of business (in any other case); or

(ii) If sent by email to the registered office addresses (or an address substituted in writing by the party to be served) of each of the Supplier and the Customer:

(b) Any notice shall be deemed to have been received:

(i) if delivered by hand, at the time the notice is left at the proper address;

(ii) if sent by pre-paid first-class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; or

(iii) if sent by email, at the time of transmission, or, if this time falls outside Business Hours in the place of receipt, when Business Hours resume.

(c) This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

13.3

Severance.

If any provision or part-provision of the Contract 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 the Contract. If any provision or part provision of the Contract is deemed deleted under this Clause 13.3, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the commercial result of the original provision.

13.4

Waiver.

(a) A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.

(b) A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

13.5

No partnership or agency.

Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute either party the agent of the other, or authorise either party to make or enter into any commitments for or on behalf of the other party.

13.6

Entire agreement.

(a) The Contract constitutes the entire agreement between the parties.

(b) Each party acknowledges that in entering the Contract, it does not rely on any statement, representation, assurance, or warranty (whether made innocently or negligently) that is not set out in the Contract. Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in the Contract.

13.7

Third party rights.

(a) Unless it expressly states otherwise, the Contract does not give rise to any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Contract.

(b) The rights of the parties to rescind or vary the Contract are not subject to the consent of any other person.

13.8

Variation.

Except as set out in these Conditions, no variation of the Contract shall be effective unless it is agreed in writing and signed by the parties (or their authorised representatives).

13.9

Governing law.

The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the law of England and Wales.

13.10

Jurisdiction.

Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.

 

 

SCHEDULE 1 – SERVICES AND SPECIFICATIONS

 

1. GENERAL

1.1 Defined Terms.  The capitalized terms listed below will have the following meanings:

(a) Enhancement means any modification or addition that, when made or added to the App, materially changes its efficiency, performance, functional capability, or application, but that does not constitute solely an Error Correction. The Supplier may designate Enhancements as minor or major, depending on its assessment of their value and of the function added to the App.

(b) Error means any significant failure of the App to conform in any material respect to the Documentation.

(c) Error Correction means either a modification or addition that, when made or added to the App, brings the App into material conformity with the Documentation, or a procedure or routine that, when observed in the regular operation of the App, avoids the practical adverse effect of such nonconformity.

(d) Releases means new versions of any part of the App, which may include Error Corrections and/or Enhancements.

(e) Updates are modifications to any part of the App designated by the Supplier as bug fixes, patches, or changes to the Documentation.

 

2. SCOPE OF SERVICES

2.1 Support Services.

During the term of this Agreement, the Supplier will render the following Services in support of the App, during Business Hours:

(a) the Supplier will provide technical Support Services via email only, at support@1guava.com, in order to respond to issues and to provide assistance in connection with the use of the App, using reasonable commercial efforts to respond before close of business on the Business Day following  receipt of any such email;

(b)  the Supplier will be responsible for using reasonable diligence to correct verifiable and reproducible errors when reported to the Supplier in accordance with its standard reporting procedures, for Errors classified by severity as follows:

(i)  Priority 1: an Error which causes a system crash under normal usage.
The Supplier will within two working days of verifying that such an Error is present, initiate work in a diligent manner toward development of an Error Correction. 


(ii)  Priority 2: an Error which causes a crash of the App under normal usage.
The Supplier will within five working days of verifying that such an Error is present, initiate work in a diligent manner toward development of an Error Correction. 


(iii)  Priority 3: other Errors.
The Supplier will in the normal course of its general maintenance cycle of the App, initiate work in a diligent manner toward development of an Error Correction.

(c) Following completion of an Error Correction, the Supplier will use reasonable endeavours to provide the Error Correction through a “temporary fix” consisting of sufficient programming and operating instructions to implement the Error Correction. The Supplier will include the Error Correction in all subsequent Updates and Enhancements of the App. The Supplier will not be responsible for correcting Errors in any version of the App other than the most recent version of the App, provided that the Supplier will continue to support prior version releases superseded by recent releases for a reasonable period sufficient to allow the Customer to update to the newest version. 


(d) The Supplier may, from time to time, publish video tutorials on the Website; hold online webinars; and release Updates and Enhancements to the App. The Supplier will provide access to the Customer via email or on the Website for the Customer to update to the newest version and Enhancements without additional charge.

 

2.2 Online Services

Includes all cloud-base construction management software services provided through the 1Guava App. The Supplier will, upon request and for an additional fee and on such other terms as are to be mutually agreed by the Supplier and Customer, provide certain other cloud base software to the Customer.

 

3. SERVICE SPECIFICATIONS

3.1. Services provided on 1Guava mobile and web application include:

(a) Plant Insight: which seeks to provide a solution for managing and tracking utilisation of construction plant (cranes, excavators, hoist/lift, forklift truck, breaker, concreting plant, earthmoving plant and piling plant) with on-demand reports;

(b) Forms and Files: which comprises  end-to-end paperless solutions for handling forms and files on site.

(c) People: managing, offering and tracking training records of site personnel; and

(d) Signatures: collecting signatures in workflows and from site personnel.

 

 

SCHEDULE 2 – FEES

All fees associated with the use of the Services will be agreed between the Supplier and Customer in writing on or before the date on which  the Customer provides written acceptance of the Supplier's quotation, or when the Supplier issues written acceptance of the Order in accordance with the terms of these Conditions, as the case may be.