“Calibration” means the alignment of the Product ground system with the Site (to be carried out by the Company or its authorised representative) in order to ensure correct operation of the Product at the Site.
“the Company” means Bactest Limited.
“the Contract” means the contract for the sale of the Product to the Customer for installation at the Site and its subsequent Calibration and maintenance, which is subject to these Conditions.
“the Customer” means the person, firm or company placing an order with the Company.
“the Installation Protocol” means the procedure supplied by the Company to the Customer which the Customer shall adhere to when installing the Product at the Customer’s site.
“Order” means any order for conduct of the Installation Protocol and delivery of the Product made by the Customer under the Contract.
“the Product” means any unit of the “Shepherd”® activated sludge management and monitoring system supplied by the Company to the Customer (including the Software and including any replacements and related packaging, containers, labels or instructions).
“the Site” means the site at which it is agreed the Product will be installed and operated.
“the Software” means the two software elements contained (and pre-installed) in the Product comprising (i) the software for the control cabinet standing by the lane; and (ii) the application comprising the dashboard in the Cloud. As specified in the Contract the Customer may purchase either (i) the control cabinet/sensor head solution (with related maintenance) for use independently of the SAAS dashboard or (ii) the control cabinet/sensor head solution bundled with the SAAS dashboard (“Dashboard Option”). The SAAS dashboard is accessed over the Internet and includes unlimited storage on a private Cloud facility.
“the Specifications” means the specifications for the Product incorporated in the data sheet on the Website and any amendment thereof signed by the Company’s authorised representative.
“Site Surveys” means the pre-installation questionnaires (comprising Site Survey 1 1, an initial suitability questionnaire, and Site Survey 2, a more in depth Site assessment) which the Customer must supply answers for and agree before the Product is supplied.
“the Website” means www.shepherdmanagingthefloc.com
2.1 These Conditions apply to any agreement between the Company and the Customer for the sale and purchase of the Product. All other terms, conditions and warranties whether written or verbal, expressed or implied, statutory or otherwise, including (without limitation) the Customer’s standard terms of business (if any) are to the fullest extent permitted by law excluded save to the extent provided in these Conditions or in any written document forming part of the Contract and signed on behalf of both parties by their duly authorised representatives or in any variations expressly specified in the Company’s order acknowledgement letter.
2.2 The Customer will be deemed to have accepted these Conditions and agreed to the completed versions of the Site Surveys by placing an Order. By accepting these Conditions, the Customer acknowledges that these Conditions shall prevail over any conditions inconsistent herewith purported to be imposed by the Customer or any previous course of dealing between the Company and the Customer save to the extent of any variations referred to in Section 2.1.
2.3 Product support shall be supported as provided in Appendix 2. Software updates and upgrades will be made by Bactest remotely.
The sensor in the Product will measure pressure in the sealed reactor vessel and calculate the level of biological activity within the activated sludge as a result. The Product will then transmit the resulting data every 60 minutes to the Customer’s Cloud data storage facility. The Company may vary the regularity of this sampling. Furthermore, if the Customer has purchased the Dashboard Option, it will have access to that data and a summary of the information derived from it. The status of this data can be emailed to the Customer every hour. The Customer retains ownership of such data (and all intellectual property rights in it) but the Company shall be free to collate such data and use it for research, to improve the Product, refine Calibration under Section 9 below and develop new products. In doing so, the Company will encrypt the data and anonymise Customer details. The Company shall retain this right even if the Customer’s licence to the SAAS Dashboard terminates.
3. Publications and Representation
3.1 All descriptions and illustrations contained in the Company’s related materials present a general idea of the Product described in them but do not form part of the Contract unless specifically incorporated therein as provided for in Section 2.1.
3.2 The Customer acknowledges that in entering into the Contract, it has not relied on and the Company shall not be liable for any written or oral representations made by or on behalf of the Company save as set forth in writing by the Company’s duly authorised representations and expressly included in the Contract.
4. Quotations, Orders and Acceptance
4.1 The quotation will be issued in each case subject to the answers to the Site Surveys being satisfactory. Any quotations issued by the Company do not constitute offers and the Company reserves the right to withdraw or revise such quotations at any time prior to accepting an Order.
4.2 The Company’s acceptance of an Order shall be effective only when it has emailed to the Customer its acknowledgement of receipt, quoting an Order number.
4.3 Once accepted, an Order may only be varied with the Company’s prior written consent.
5.1 The Company may update and amend any of the Specifications without notice to the Customer.
5.2 The Company is not obliged to alter any part of the Contract or the Product. Any such alteration shall be subject to the written agreement of the Company.
6. Cancellation of Orders, Returns
No cancellation of any Order by the Customer shall be effective unless it is received before shipping and it is in writing
and accepted in writing by the Company
7. Prices and Payment for Product supply
7.1 All prices quoted are exclusive of VAT or any other applicable sales tax, and any transportation or customs fees which shall be payable in addition.
7.2 Payment shall be made within 30 days of invoice in each case.
8. Delivery and Installation
8.1 In the first instance, the Company or its representatives shall visit the Site with Site Survey 2 for filling in in order to ensure the necessary environment for installation is in place. The Company shall fill in Site Survey 2 2 as a result of the Customer’s replies and submit it to the Customer for review. Once the Company has reviewed Site Survey 2 and is satisfied in this regard it shall by email give the Customer notice of the estimated delivery date for the Product and shall arrange delivery to the Customer’s premises. The Company reserves the right to refuse installation and cancel the Order if in its opinion the proposed site is unsuitable as a result of answers given for Site Surveys 1 and 2.
8.2 The Company will use reasonable efforts to maintain Site visit and delivery dates but time shall not be of the essence regarding such dates and the Company shall not be liable for failure to deliver the Products by such date. Each Order and the corresponding delivery shall constitute a separate Contract under these Conditions and the Company’s failure to make any delivery in full, on time or at all shall not vitiate the Contract as a whole.
8.3 The Customer shall be responsible for installing the Product at the Site. It must do so in compliance with the Installation Protocol in the Product operating manual and the schematic outlined in Site Survey 2.
9.1 Calibration shall take place after delivery. The Customer undertakes promptly on request to supply such data as the Company requires to calibrate the Product. The Company will keep this data confidential. The Customer shall be deemed to have accepted the Product once the Company informs it in writing that Calibration has taken place. However, the Company reserves the right thereafter to further refine the Product and carry out further recalibration if extreme or notable conditions at the Site (such as high precipitation or extreme temperature variations) make it necessary.
9.2 The Customer acknowledges that if it subsequently changes any Product configuration supplied by the Company, Calibration will be invalidated.
10.1 The legal and equitable ownership of any consignment of Product shall remain vested solely in the Company until payment in full of all amounts due in respect of that Order and all previous Orders have been received by the Company. However, the Product shall be at the risk of the Customer as soon as it is delivered and installed in accordance with Sections 8.1 and 9.1 above. The Customer shall insure to its full value any Product wherein the risk but not the title has passed to it and indemnify the Company for loss, damage to or destruction of any such Product. Any insurance money payable to the Customer in respect of the Product shall be held in trust for the Company.
10.2 Until title to the Product passes to the Customer:
10.2.1 the Customer must at the request of the Company deliver up the Product to the Company and for such purpose the Company may at any time (and whether or not the Customer shall be in default in making payment under this contract) in its absolute discretion enter the Customer’s premises to recover them; and
10.2.2 the Company shall be entitled, where the Product has become affixed or attached to or incorporated in any other products, to detach the it from such other products provided that it remains identifiable as a discrete item and that any such process is reversible.
1 11.1 The Company warrants that for a period of 12 calendar months from the date of delivery (“Warranty Period) which is proved to the Company’s reasonable satisfaction to be the result of defective material or workmanship, the Company will (save as provided below) at its option replace or repair such Product free of charge as soon as reasonably possible. The aforesaid warranty shall not apply in respect of:
11.1.1 defects or failures which are not reported to the Company within 30 days of the occurrence of the defect or the failure becoming apparent; or
11.1.2 invalidation of Calibration as provided in Section 9.2 above; or
11.1.3 any failure to take out and clean the Product every 6 calendar months according to the Company’s instructions (and the Customer must keep a log book in a format acceptable to the Company to confirm this has been done); or
11.1.4 any failure or damages due to the Products being misused, damaged or neglected or operated, maintained, transported or stored contrary to the Operating Manual issued with the Product or any other instructions issued by the Company or any relevant regulatory body concerning the use of the Product or to the Product being operated in excess of their rated capacity or subject to detrimental environmental conditions or otherwise contrary to Section 14; or
11.1.5 any breach of Section 8.3; or
11.1.6 any failure caused by any incomplete or incorrect answer to the Site Surveys, any other failure by the Customer to adhere to the Installation Protocol or any other incorrect or incomplete information or inadequate access supplied during the Company’s pre-installation Site visit; or
11.1.7 any Product which has been modified by the Customer or any third party; or
11.1.8 any Product which has continued to be used by the Customer after the failure or defect of the Product first became apparent; or
11.1.9 failure to use spare parts purchased from any party other than the Company; or
11.1.10 the incompatibility or failure of instrumentation, software or control systems (including without limitation pumps, fan belts and blowers) which the Product is connected to, sensors being wrongly calibrated or any consumables used with the Product; or
11.1.11 the Customer not allowing the Company or the Company’s authorised support contractor (as applicable) to maintain the Product as provided in Appendix 2 (and in this context “not allowing” includes the Company temporarily or permanently ceasing maintenance of the Product due to any breach of the Contract by the Customer; or
11.1.12 any failure of or defect in the third party Cloud data storage facility which the Product transmits data to; or
11.1.13 any down-time in the Wi-fi facility supplied by the Company’s telecoms service provider, which the Product is linked to; or
11.1.14 defects in software manufactured by a third party embedded in the Product; or
11.1.15 incorrect maintenance or failure to use properly trained personnel to maintain the Product; or
11.1.16 reliance on a translation of the Operating Manual.
11.2 If the Customer makes a warranty claim it must (if requested by the Company) arrange a time for the Company or its representatives to visit the Customer’s site to carry out repair (either on site or at the Company’s premises) or replacement. If it does not, the Customer shall comply with the Company’s directions regarding disposal. The aforesaid warranty shall be limited to the replacement or at the Company’s option the repair of the Product, shall not apply to any direct or indirect or consequential liability, loss, injury or damage (other than death or personal injury caused by the Company’s negligence) arising through any such failure or defect, shall not be affected by any technical advice or assistance given by the Company concerning the installation or operation of the Product, and is for the original application only. Any Product returned under a warranty claim must, save for the defect which is the subject of the claim, be in all other respects undamaged and accompanied by the original packaging and evidence of purchase. The replacement Product shall be subject to a minimum 6 month warranty period even if the Product replaced had less than 6 months left of its warranty claim at the time of replacement. If the Company determines that no warranty has been breached then, at the Customer’s election, the Company shall either return the Product to the Customer at the Customer’s expense or retain it for replacement or repair, should the Customer so wish, at the Company’s then standard rates.
11.3 SECTIONS 11.1-11.2 SET OUT THE COMPANY’S ENTIRE LIABILITY FOR BREACH OF WARRANTY.
11.4 Out of warranty maintenance is provided according to the terms in Schedule 2. Note that the need to replace components regularly (such components to be supplied by the Company only) as specified in the Operating Manual will be charged for and such an eventuality will NOT constitute a breach of warranty. Nor will any malfunction caused by any failure to adhere to these replacement guidelines.
12. Liability – THE CUSTOMER’S ATTENTION IS EXPRESSLY DRAWN TO THIS SECTION.
12.1 THE PRODUCT IS DESIGNED TO MEASURE ANSD INTERPRET BIOLOGICAL ACTIVITY TO PRODUCE A BOD5 PROXY AND ITS EFFICACY IS IN ANY EVENT DEPENDENT ON THE USER’S CORRECT INTERPRETATION OF DATA PRODUCED. FURTHERMORE, THE PRODUCT IS A DECISION SUPPORT MECHANISM NOT A CONTROL MECHANSIM AND THE CUSTOMER SHOULD ENSURE THAT ANY DATA PRODUCED BY THE PRODUCT (AND ANY RELATED OR CONSEQUENT EFFECT ON THE OPERATION OF THE SEWAGE LANE IT IS INSTALLED IN) IS VERIFIED MANUALLY BY TRAINED PERSONNEL. ACCORDINGLY, THE CUSTOMER IS SOLELY RESPONSIBLE FOR ANY AERATION OR OTHER DECISIONS IT TAKES OR FAILS TO TAKE IN RELIANCE ON SUCH DATA AND THE OBLIGATIONS OF THE COMPANY UNDER SECTIONS 9 AND 11 ARE UNDERTAKEN BY THE COMPANY AND SHALL BE ACCEPTED BY THE CUSTOMER IN LIEU OF AND TO THE EXCLUSION OF ALL CONDITIONS AND WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY (SAVE AS PROVIDED IN SECTION 12.2) OR OTHERWISE. SAVE AS PROVIDED IN SECTION 12.2 BELOW THE LIABILITY OF THE COMPANY FOR LOSS OR DAMAGE INCLUDING CONSEQUENTIAL OR INDIRECT LOSS OR DAMAGE TO THE CUSTOMER (INCLUDING WITHOUT LIMITATION LOSS UNDER CURRENT AND FUTURE CONTRACTS, LOSS OF BUSINESS AND DISASTER RECOVERY COSTS) SHALL NOT IN ANY EVENT EXCEED THE INVOICE PRICE OF THE PRODUCTS IN CONNECTION WITH WHICH SUCH LIABILITY ARISES WHETHER SUCH LIABILITY ARISES IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE AND BREACH OF STATUTORY DUTY), MISREPRESENTATION OR OTHERWISE HOWSOEVER AND EVEN IF THE COMPANY HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSS OCCURING.
12.2 The limitation of liability referred to in Section 12.1 shall not apply so as to exclude or restrict the Company’s liability for death or personal injury resulting from the negligence of the Company, its servants or agents, or in any other manner precluded by law.
12.3 The Customer shall indemnify and keep indemnified the Company against all claims, proceedings, losses and expenses arising out of or in connection with the use, sale or supply of the Products, unless the aforesaid are incurred due to the Company’s negligence or a breach of the warranty in Section 11.
12.4 The Customer undertakes not to give or make any warranties, representations, assurances or advice, whether written or verbal, in connection with the Products save for those expressly authorised in writing by the Company (“Unauthorised Representations”). The Customer shall indemnify the Company against any loss or liability which the Company incurs due to the Customer making any Unauthorised Representations or any third party acting in reliance on the same.
12.5 The Customer shall be solely responsible for ensuring that the Product’s installation and operation comply with all relevant legal and regulatory requirements in its territory.
13. Intellectual Property Rights
The Customer is only granted a licence to use the intellectual property contained in or relating to the Product save to the extent necessary to operate the Product. In this regard the Software is subject to the licence terms contained in Appendix 1 below which the Customer must accept on installation. The Customer shall not reverse-engineer or decompile any part of the Product save to the extent permitted by law. The Customer shall promptly notify the Company in writing if it becomes aware of:
13.1 any infringement or alleged infringement by any third party of the rights in any intellectual property contained in or relating to the Products; or
13.2 any allegation by any third party that the sale, use or exploitation of the Products infringes any intellectual property rights of any third party;
and subsequently supply to the Company such detailed information concerning the same as is available to it and extend such co-operation as the Company shall reasonably request (at the Company’s expense) in countering it.
14. Use of the Product
The Customer may use the Product in isolation or connected to other instrumentation, software or control systems. However, the Customer must use the Product in compliance with the Company’s Operating Manual, any other instructions given by the Company and all relevant legal and regulatory requirements.
15. Force Majeure
The Company shall not be liable to the Customer for any failure to perform or delay in performing any of its obligations under the Contract caused by factors beyond the Company’s reasonable control and no such failure or delay shall be deemed for any purpose to constitute a breach of the Contract.
Notices under the Contract are to be served by email and shall be deemed served when they have been downloaded on to the recipient’s server in each case. The parties’ respective email addresses for this purpose are as detailed in the original purchase order.
If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of these Conditions and the remainder of the provisions in question shall not be affected thereby.
18. Third Party Rights
Nothing in this Agreement should be construed as conferring rights on any third party, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
19. No Waiver
No waiver or indulgence by the Company in exercising any right, remedy, power or privilege under the Contract shall either be or be deemed to be a waiver of or in any way prejudice any such right, remedy, power or privilege. No single or partial exercise of any right, remedy, power or privilege shall preclude or restrict the further exercise or enforcement of any such right, remedy, power or privilege.
The Customer shall not assign, transfer, delegate, sub-license or subcontract any of its rights and obligations under the Contract. The Company shall be entitled to assign, transfer, delegate, sub-license or subcontract its rights and obligations under the Contract.
21. Law and Jurisdiction
21.1 Any controversy or claim of whatsoever nature arising out of or relating in any manner whatsoever to the Contract or any breach of any terms of the Contract shall be governed by and construed in all respects in accordance with the laws of England.
21.2 Each party hereby irrevocably acknowledges and agrees that the Courts of England shall have exclusive jurisdiction to resolve any controversy or claim of whatsoever nature arising out of or relating in any manner to the Contract, any terms of the Contract or any breach of the Contract or any such terms, save that the Company may apply for an injunction or other interim remedy and enforce a judgment awarded it in any court of competent jurisdiction.
In this Licence
“the Company” means Bactest Limited, the licensor of the Software under this Licence whether or not it is the Supplier.
“the Customer” means the person, firm or company placing an order with the Supplier.
“the Product” means any unit of the “Shepherd”® activated sludge management and monitoring system supplied by the Supplier to the Customer (including the Software and including any replacements and related packaging, containers, labels or instructions).
“the Software” means the two software elements contained (and pre-installed) in the Product comprising (i) the software for the control cabinet standing by the activated sludge; and (ii) the application comprising the dashboard in the Cloud. As specified in the Contract the Customer may purchase either (i) the control cabinet/sensor head solution (with related maintenance) for use independently of the SAAS dashboard or (ii) the control cabinet/sensor head solution bundled with the SAAS dashboard (“Dashboard Option”). The SAAS dashboard is accessed over the Internet and includes unlimited storage on a private Cloud facility.
“the Supplier” means the party from whom the Customer has bought the Product, being either the Company or its authorised distributor.
“the Website” means www.shepherdmanagingthefloc.com
Grant of Licence
In consideration of the sum paid by the Customer to purchase the Product and the Customer agreeing to comply with the terms of this Licence, the Customer is granted a non-exclusive licence, with no right to assign or sub-licence, to use the Software to operate the Product only in accordance with all legal and regulatory requirements and the Company’s instructions. Accordingly, if the Customer sells or otherwise supplies the Product to a third party, that third party must obtain its own licence of the Software from the Company. The Customer shall inform any such third party of this fact before making the Product available to it and shall inform the Company promptly in writing if it has reason to believe that the third party in question is not complying with this requirement.
Restrictions on use
The Customer undertakes not to amend, vary, copy, adapt, reverse engineer or decompile the Software save to the extent permitted by law, nor to use the Software save only to operate the Product as permitted above. If the Customer purchases other Products it will need a separate Licence to use the Software on each one.
The Company will install updates to the Software remotely.
The Supplier shall verify the Software has been installed and is working correctly when the Supplier delivers the Product to the Customer’s site and the Customer installs it as part of the Installation Protocol detailed in the Supplier’s Standard Terms and Conditions of Supply. IN ALL OTHER RESPECTS, THE SOFTWARE IS SUPPLIED “AS IS”. ACCORDINGLY, SAVE FOR THE WARRANTY GIVEN WITH THE PRODUCT UNDER THE COMPANY’S CONDITIONS OF SUPPLY, NO WARRANTY IS GIVEN REGARDING THE SOFTWARE WHETHER IN CONNECTION WITH EFFICACY, NON-INFRINGEMENT OF THIRD PARTY OR OTHER INTELLECTUAL PROPERTY RIGHTS OF OTHERWISE. IF USE OF THE SOFTWARE IS FOUND TO INFRINGE ANY THIRD PARTY’S RIGHTS, THE COMPANY SHALL, AT ITS OPTION AND AT ITS COST, EITHER AMEND THE SOFTWARE TO CIRCUMVENT THE INFRINGEMENT IN QUESTION, OBTAIN A LICENCE FROM THE INFRINGED THIRD PARTY OR REFUND THE CUSTOMER THE PRICE OF THE PRODUCT. THE AFORESAID SENTENCE SETS OUT THE CUSTOMER’S ENTIRE REMEDY IN THE EVENT OF ANY SUCH INFRINGEMENT.
The licence to use the Software granted hereunder is perpetual in respect of the control panel and renewable on an annual basis (subject to payment of the annual maintenance fee) in respect of the SAAS dashboard. It shall terminate forthwith if the Customer breaches any of its obligations under this Licence. In such event the Customer shall immediately cease all use of the Software and the Product as a whole.
The Company shall not be liable to the Customer for any failure to perform or delay in performing any of its obligations under the Licence caused by factors beyond the Company’s reasonable control and no such failure or delay shall be deemed for any purpose to constitute a breach of the Licence.
Notices under the Licence are to be served in writing by email and shall be deemed served when they have been downloaded on to the recipient’s server in each case. The parties’ respective email addresses for this purpose are as detailed in the original purchase order.
If any provision of this Licence is held by any competent authority to be invalid or unenforceable in whole or in part the validity of this Licence and the remainder of the provisions in question shall not be affected thereby.
Third Party Rights
Nothing in this Licence should be construed as conferring rights on any third party, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
No waiver or indulgence by the Company in exercising any right, remedy, power or privilege under this Licence shall either be or be deemed to be a waiver of or in any way prejudice any such right, remedy, power or privilege. No single or partial exercise of any right, remedy, power or privilege shall preclude or restrict the further exercise or enforcement of any such right, remedy, power or privilege.
The Customer shall not assign, transfer, delegate, sub-license or subcontract any of its rights and obligations under this Licence. The Company shall be entitled to assign, transfer, delegate, sub-license or subcontract its rights and obligations under this Licence.
Law and Jurisdiction
Any controversy or claim of whatsoever nature arising out of or relating in any manner whatsoever to this Licence or any breach of any terms of this Licence shall be governed by and construed in all respects in accordance with the laws of England.
Each party hereby irrevocably acknowledges and agrees that the Courts of England shall have exclusive jurisdiction to resolve any controversy or claim of whatsoever nature arising out of or relating in any manner to this Licence, any terms of this Licence or any breach of this Licence or any such terms, save that the Company may apply for an injunction or other interim remedy and enforce a judgment awarded it in any court of competent jurisdiction.
Service Level – Cloud based Dashboard
The Company will provide maintenance of the Cloud Based Dashboard as follows:
· Private Hosted solution in the Cloud consisting of a server which hosts the dashboard and a separate server which hosts the data.
· All communication to administrate the Dashboard and gain access to the data is controlled via SSH and also an IP white list setup. The backbone product (ML3G device or equivalent) which supplies access to M2M network provides a physical router which contains a firewall that prohibits only valid incoming and outgoing traffic from the control panel.
· All Software deployed on the control panel is obfuscated to prevent any information from being extracted to try and penetrate the system.
Software Technical Support – The Control Panel
The Company’s authorised maintenance contractor (“Supplier”) will provide first level support for The Control Panel as set out in its Service Level Agreement with the Customer. The Company will provide second level support to the Supplier as follows:
· Telephone support (9am-5pm, UK time).
· Extended hours email support (8am – 9pm, UK time).
· Subject to availability during above times, all requests for support answered within 24 hours, acknowledging receipt. Estimated fix time given as soon as reasonably possible.
· Remote access to validate system operation.
· Automatic remote provision of all Software updates throughout the course of the year as and when they are made available.
· The Company’s authorised maintenance contractor will use reasonable endeavours to fix software problems as soon as possible but cannot commit to any guaranteed resolution times.
· Software maintenance and the Dashboard SAAS will be charged for on an annual basis at the Company’s then current rates. These rates may be revised at any time on 30 days’ written notice.
· If any maintenance sum is not paid in full by its due date the Company may (without liability to the Customer) suspend further maintenance until payment in full. Any such sum shall furthermore bear interest before and after judgment at a rate of 5% above the base rate of Barclays Bank plc in the UK (calculated annually but accruing on a daily basis) or such higher rate as is allowed by law.
The Company may terminate provision of maintenance under this Appendix 2 on immediate written notice if the Customer is in breach of any of its obligations under the Contract and any such breach (if capable of remedy) is not remedied within 30 days the date of the Company’s notice requesting its remedy.