Terms and Conditions for the Supply of Purchase of Eyesea Green Products and Services – Eyesea Green Limited
This Agreement (the "Agreement") is made and entered into as of [Date], by and between:
1. EYESEA GREEN LIMITED, a company organized under the laws of England and Wales, with its principal place of business at [Supplier’s Address] (the "Supplier"),
And
2.[Customer Name], a company/organisation organized under the laws of [Jurisdiction],with its principal place of business at [Customer’s Address] (the "Customer").
(together known as “the Parties”)
WHEREAS, the Supplier is engaged in the supplyof Eyesense (the "Device") and provides access to an associatedplatform (the "Platform");
WHEREAS, the Customer wishes to purchase the Device and obtain access to the Platform subject to the terms and conditions outlined in this Agreement;
NOW,THEREFORE, inconsideration of the mutual covenants and promises set forth herein, the parties agree as follows:
1 Definitions and Interpretation
Confidential Information means any commercial, financial or technical information, information relating to the Deliverables, plans, firmware, software, know-how or trade secrets which is obviously confidential in nature or has been identified as confidential, or which is developed by the Customer in performing its obligations under, or otherwise pursuant to the Contract;
Deliverables means the Products, Services and/or Platform access as the case may be;
Documentation means any descriptions,instructions, manuals, literature, technical details or other related materials supplied in connection with the Deliverables;
Products means the Products and related accessories, spare parts and Documentation and other physical material setout in the Order and to be supplied by the Supplier to the Customer in accordance with the Agreement;
Intellectual Property Rights means copyright, patents, know-how, trade secrets, trade marks, trade names, design rights, rights in get-up, rights in goodwill, rights in software, rights in Confidential Information, rights to invention, rights to sue for passing off,domain names and all other intellectual property rights and similar rights and,in each case:
(a) whether registered or not
(b) including any applications to protect or register such rights
(c) including all renewals and extensions of such rights or applications
(d) whether vested, contingent or future
(e) to which the relevant party is or may be entitled, and
(f) in whichever part of the world existing;
Location means the address or addresses for delivery of the Products and performance of the Services as set out in the Order or such other address or addresses as notified by the Supplier to the Customer at least 10 Business Days prior to delivery;
Order means the Customer’s order for theDeliverables in substantially a similar format as set in the Customer’s orderform;
Platform means Eyesea Green’s digital platformused to communicate with and transfer, record and analyse data from theProducts;
Price has the meaning given in clause 4.1;
Services means the services set out inthe Order and to be supplied by the Supplier to the Customer in accordance with the Agreement;
Specification means the description or Documentation provided for the Deliverables set out or referred to in the Agreement.
2 Application of these conditions
2.1 These Conditions apply to and form part of the Contract between the Supplier and the Customer. They supersede any previously issued terms and conditions of purchase.
2.2 No terms or conditions endorsed on, delivered with, or contained in the Customer’s purchase conditions, order, confirmation of order, specification or other document shall form part of the Contract except to the extent that the Supplier otherwise agrees in writing.
2.3 No variation of these Conditions or to an Order or to the Contract, shall be binding unless expressly agreed in writing and executed by a duly authorised signatory on behalf of each of the Customer and the Supplier respectively.
2.4 Each Order by the Customer to the Supplier shall be an offer to purchase the Deliverables subject to the Contract including these Conditions. If the Supplier is unable to accept an Order, it shall notify the Customer in writing as soon as reasonably practicable.
2.5 The offer constituted by an Order shall remain in effect and capable of being accepted by the Supplier for 20 Business Days from the date on which the Customer submitted the Order, after which time it shall automatically lapse and be withdrawn.
2.6 The Supplier may accept or reject an Order at its discretion. An Order shall not be accepted, and no binding obligation to supply any Deliverables shall arise, until the earlier of:
2.6.1 the Supplier’s written acceptance of the Order; or
2.6.2 the Supplier delivering or performing the Deliverables or notifying the Customer that they are ready to be delivered or performed (as the case may be).
2.7 Rejection by the Supplier of an Order,including any communication that may accompany such rejection, shall not constitute a counter-offer capable of acceptance by the Customer.
2.8 The Supplier will issue quotations to the Customer from time to time. Quotations are invitations to treat only. They are not an offer to supply Deliverables and are incapable of being accepted by the Customer.
3 Supply of Deliverables
3.1 The Supplier agrees to supply and deliver the Deliverables to the Customer in accordance with the specifications and quantities detailed in the Order at Schedule A attached hereto.
4 Price
4.1 The price for the Deliverables shall be as set out in the Order or, where no such provision is set out, shall be as advised by the Supplier from time to time before the date the Order is placed (the Price).
4.2 The Prices are exclusive of:
4.2.1 installation, packaging, delivery,insurance, shipping carriage, and all other related charges or taxes or describe relevant elements of the Products and services which are not included in the standard price which shall be charged in addition at the Supplier’s standard rates, and
4.2.2 VAT.
4.3 The Customer shall pay any applicable VAT to the Supplier on receipt of a valid VAT invoice.
4.4 The Supplier may increase the Prices at anytime by giving the Customer not less than 10 Business Days’ notice in writingprovided that the increase does not exceed 10% of the Prices in effectimmediately prior to the increase.
4.5 Notwithstanding clause 4.4, the Supplier may increase the Prices with immediate effect by written notice to the Customer where there is an increase in the direct cost to the Supplier of supplying the relevant Deliverables which exceeds 5% and which is due to any factor beyond the control of the Supplier.
5 Payment
5.1 The Supplier shall invoice the Customer for the Deliverables, partially or in full, at any time following delivery of an Order.
5.2 The Customer shall pay all invoices:
5.2.1 in full without deduction or set-off, in cleared funds within 30 days of the date of each invoice; and
5.2.2 to the bank account nominated by the Supplier.
5.3 Time of payment is of the essence. Where sums due under these Conditions are not paid in full by the due date:
5.3.1 the Supplier may, without limiting its other rights, charge interest on such sums at 4% a year above the base rate of the Bank of England from time to time in force, and
5.3.2 interest shall accrue on a daily basis and apply from the due date for payment until actual payment in full, whether before or after judgment.
6 Delivery and performance
6.1 The Products shall be delivered by the Supplier, or its nominated carrier, to the Location on the date/s specified in the Order.
6.2 The Products shall be deemed delivered on arrival only of the Products at the Location by the Supplier or its nominated carrier (as the case may be).
6.3 The Services shall be performed by the Supplier at the Location on the dates specified in the Order.
6.4 The Services shall be deemed delivered by the Supplier only on completion of the performance of the Services at the Location.
6.5 The Customer shall not be entitled to reject a delivery of the Products on the basis that an incorrect volume of the Products has been supplied.
6.6 The Supplier may deliver the Products or perform the Services in instalments. Any delay or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6.7 Time is not of the essence in relation to the performance or delivery of the Deliverables. The Supplier shall use its reasonable endeavours to meet estimated dates for delivery and performance, but any such dates are indicative only.
6.8 The Supplier shall not be liable for any delay in or failure of performance caused by:
6.8.1 the Customer’s failure to make the Location available;
6.8.2 the Customer’s failure to prepare the Location as required for the Deliverables;
6.8.3 the Customer’s failure to provide the Supplier with adequate instructions for performance or delivery or otherwise relating to the Deliverables;
6.8.4 Force Majeure.
6.9 If the Customer fails to accept delivery of the Products the Supplier shall store and insure the Products pending delivery, and the Customer shall pay all costs and expenses incurred by the Supplier in doing so.
6.10 If 20 Business Days following the due date for delivery of the Products, the Customer has not taken delivery of or collected them, the Supplier may resell or otherwise dispose of the Products without any obligation or liability to the Customer, except as provided for in clauses 6.10.1 and 6.10.2. The Supplier shall:
6.10.1 deduct all reasonable storage charges and costs of resale; and
6.10.2 account to the Customer for any excess ofthe resale price over, or invoice the Customer for any shortfall of the resale price below, the Price paid by the Customer for the Products.
7 Risk
7.1 Risk in the Products shall pass to the Customer on delivery.
8 Title
8.1 Title to the Products shall pass to the Customer once the Supplier has received payment in full and cleared funds for the Products.
8.2 Until title to the Products has passed to the Customer, the Customer shall:
8.2.1 hold the Products as bailee for the Supplier;
8.2.2 store the Products separately from all other material in the Customer’s possession;
8.2.3 take all reasonable care of the Products and keep them in the condition in which they were delivered;
8.2.4 insure the Products from the date of delivery: (i) with a reputable insurer (ii) against all risks (iii) for anamount at least equal to their Price (iv) noting the Supplier’s interest on the policy;
8.2.5 ensure that the Products are clearly identifiable as belonging to the Supplier;
8.2.6 not remove or alter any mark on of the Products;
8.2.7 inform the Supplier immediately if it becomes subject to any of the events or circumstances set out in clauses 18.1.1 to 18.1.4 or 18.2.1 to 18.2.14; and
8.2.8 on reasonable notice permit the Supplier to inspect the Products during the Customer’s normal business hours and provide the Supplier with such information concerning the Products as the Supplier may request from time to time.
8.3 Notwithstanding clause 8.2, the Customer may use the Products in the ordinary course of its business until such time as it becomes aware or ought reasonably to have become aware that an event specified in clauses 18.1.1 to 18.1.4 or 18.2.1 to 18.2.14 has occurred or is likely to occur.
8.4 If, at any time before title to the Products has passed to the Customer, the Customer informs the Supplier, or the Supplier reasonably believes, that the Customer has or is likely to become subject to any of the events specified in clauses 18.1.1 to 18.1.4 or 18.2.1 to 18.2.14, the Supplier may:
8.4.1 require the Customer at the Customer’s expense to re-deliver the Products to the Supplier; and
8.4.2 if the Customer fails to do so promptly,enter any premises where the Products are stored and repossess them.
9 Installation
9.1 The Customer is responsible for the installation of the Products on its premises.
9.2 The Supplier shall provide Installation Guidelines or Digital Media, if applicable. The Customer shall be responsible for the correct installation of the Products.
9.3 At the Customer’s request, the Supplier can provide installation services, which shall be performed at an additional cost,which shall be agreed with the Customer at the time of placing the Order.
9.4 Where the Customer purchases installation services, the Customer will be contacted with relevant details of the date and time of the installation, and of the engineer that will carry out the installation service.
9.5 It is the responsibility of the Customer to ensure someone is present at the business premises to allow access. The engineer will take reasonable care to carry out the installation without causing any unnecessary damage to the property.
9.6 The Customer acknowledges that the installation may cause some damage to certain areas on the premises (including removing or dismantling existing fixtures and fittings) which will need redecoration after the installation is finished, costs of which will be the sole responsibility of the Customer.
9.7 The Supplier accepts no responsibility for the repair of any pre-existing faults or damage to the Customer’s premises that are discovered during the installation of the Products.
10 Services
10.1 Installation: Pursuant to Clauses 9.3 to 9.7, the Supplier may provide installation services at an additional cost.
10.2 Platform Access: The data collected from the Product will be accessible live via the Supplier’s Eyesea Green platform once the Product is correctly installed.
10.2.1 Grant of Access: Subject to the terms of this Agreement, the Supplier grants the Customer a non-exclusive, non-transferable, and limited right to access and use the Platform for monitoring and managing the Products.
10.2.2 Platform Features: The Platform enables the Customer to remotely monitor, update
10.2.3 User Accounts: Eyesea Green may create user accounts as needed upon request by the Customer.
10.2.4 Subscription and Fees: Access to the Platform is provided for the duration of use of the Product. As of the date of commencement of this Agreement, the Platform access is free. The Supplier reserves the right to impose a subscription fee at any time by giving the Customer one month’s notice in writing of its intention to do so and the associated costs thereto.
11 Warranty
11.1 The Supplier warrants that, for a period of twelve months from delivery (the Warranty Period) the Deliverables shall:
11.1.1 conform in all material respects to any sample, their description and to the Specification;
11.1.2 be free from material defects in design, material and workmanship;
11.1.3 if Products, be of satisfactory quality within the meaning of the Sale of Goods Act 1979; and
11.1.4 if Services, be supplied with reasonable care and skill within the meaning of the Supply of Goods and Services Act 1982, Part II, s 13; and
11.1.5 any media on which the results of the Services are supplied shall be of satisfactory quality within the meaning of the Sale of Products Act 1979.
11.2 As the Customer’s sole and exclusive remedy, the Supplier shall, at its option,correct, repair, remedy, re-perform or refund the Deliverables that do not comply with clause 11, provided that the Customer:
11.2.1 serves a written notice on Supplier not later than five Business Days from delivery or performance in the case of defects discoverable by a physical inspection, or within a reasonable period of time from delivery or performance in the case of latent defects;
11.2.2 such notice specifies that some or all of the Products do not comply with clause 9.1 and identifying in sufficient detail the nature and extent of the defects; and
11.2.3 gives the Supplier a reasonable opportunity to examine the claim of the defective Deliverables.
11.3 The provisions of these Conditions shall apply to any Deliverables that are corrected, replaced, repaired, remedied or re-performed with effect from delivery or performance of those Deliverables.
11.4 The Supplier shall not be liable for any failure of the Products to comply with clause 11.1:
11.4.1 where such failure arises by reason of wear and tear, wilful damage, negligence, or could be expected to arise in the normal course of use of the Products;
11.4.2 to the extent caused by the Customer’s failure to comply with the Supplier’s instructions in relation to the Products, including any instructions on installation, operation, storage or maintenance;
11.4.3 to the extent caused by the Supplier following any specification, instruction or requirement of or given by the Customer in relation to the Products;
11.4.4 where the Customer modifies any Products without the Supplier’s prior written consent or, having received such consent, not in accordance with the Supplier’s instructions; or
11.4.5 where the Customer uses any of the Products after notifying the Supplier that they do not comply with clause 11.1.
11.5 Except as set out in this clause 11:
11.5.2 the Supplier gives no warranty and makes no representations in relation to the Deliverables;
11.5.2 shall have no liability for their failure to comply with the warranty in clause 11.1;
11.5.3 all warranties and conditions (including the conditions implied by ss 12–16 of the Supply of Products and Services Act 1982 and ss 13–15 of the Sale of Products Act 1979), whether express or implied by statute, common law or otherwise are excluded to the extent permitted.
11.6 Platform Warranty: The Supplier warrants that the Platform will function in accordance with the instructional media or documentation provided. However, the Supplier does not guarantee uninterrupted or error-free use of the Platform. The Customer acknowledges that the Platform and Products may be temporarily unavailable during routine or emergency maintenance.
11.7 Except as expressly set forth in this Agreement, the Supplier makes no other warranties, express or implied,including warranties of merchantability, fitness for a particular purpose, or non-infringement.
12 Limitation of Liability
12.1 The Customer agrees to indemnify, defend, and hold harmless the Supplier from any claims, liabilities, damages, and expenses (including reasonable attorneys' fees) arising out of or related to the Customer’s misuse of the Deliverables orany breach of this Agreement by the Customer.
12.2 In no event shall either party be liable to the other for any indirect,incidental, special, or consequential damages arising out of or related to this Agreement, including but not limited to, loss of profits, revenue, or business opportunities, even if advised of the possibility of such damages.
12.3 The Supplier’s total liability for any claims arising out of or related to the Deliverables shall in no event exceed the amount paid by the Customer for the Deliverables in the 12-month period preceding the claim.
12.4 The Supplier shall not be liable for any damages, injuries, or losses resulting from the use of the Products and Platform in critical environments, including but not limited to, nuclear facilities, fire detection systems, industrial safety systems, or life-support applications, where Product or Platform failure or inaccurate readings could result in personal injury, death, or substantial property damage. The use of the Product in such high-risk environments is at the user's sole risk.
12.5 The Supplier shall not be liable for any failure, defect, or damage caused by third-party products, software, or systems used in conjunction with the Deliverables.The performance of the Deliverables may be affected by external factors beyond the Supplier’s control, and the Supplier makes no warranties regarding the compatibility or performance of third-party components or services.
12.6 Any modifications or alterations made to the Deliverables by the Customer, including but not limited to,changes to the software, hardware, or installation, void the warranty and release the manufacturer from any liability for damages or injuries caused by such modifications.
13 Intellectual Property
13.1 All intellectual property rights in and to the Deliverables including any software,data, and documentation, remain the property of the Supplier or its licensors. The Customer receives no rights in such intellectual property except as expressly provided in this Agreement.
13.2 The Customer retains ownership of any data generated by the Deliverables and uploaded to the Platform. The Supplier may process such data to provide the services under this Agreement or as it may deem fit provided that no personal or commercially sensitive data is used in respect thereto.
14 Term and Termination
14.1 This Agreement shall commence on the date first written above and continue until terminated by either party in accordance with this section.
14.2 Either party may terminate this Agreement upon written notice if
14.2.1 the other party breaches any material term of this Agreement and fails to cure such breach within 30 days of receiving notice of the breach; or
14.2.2 if the Other Party becomes insolvent or if an order is made or a resolution is passed for the winding up of the Other Party (other than voluntarily for the purpose of solvent amalgamation or re-construction), or if an administrator,administrative receiver or receiver is appointed in respect of the whole or any part of the Other Party’s assets or business, or if the Other Party makes any composition with its creditors or takes or suffers any similar or analogous action in consequence of debt.
14.3 Upon termination, the Customer’s access to the Platform will be revoked, and the Customer shall return or dispose of the Device as instructed by the Supplier.
15 Confidentiality
15.1 Each party (Receiving Party) shall keep the confidential information of the other party (Supplying Party)confidential and secret, whether disclosed to or received by the Receiving Party. The Receiving Party shall only use the confidential information of the Supplying Party for the Purpose and for performing the Receiving Party’s obligations under the Agreement. The Receiving Party shall inform its officers, employees and agents of the Receiving Party’s obligations under the provisions of this clause, and ensure that the Receiving Party’s officers, employees and agents meet the obligations.
15.2 The obligations of clause 15.1 shall not apply to any information which:
15.2.1 was known or in the possession of the Receiving Party before the Supplying Party provided it to the Receiving Party;
15.2.2 is, or becomes, publicly available through no fault of the Receiving Party;
15.2.3 is provided to the Receiving Party without restriction or disclosure by a third party, who did not breach any confidentiality obligations by making such a disclosure;
15.2.4 was developed by the Receiving Party (or on its behalf) who had no direct access to, or use or knowledge of the confidential information supplied by the Supplying Party; or
15.2.5 is required to be disclosed by order of a court of competent jurisdiction.
15.3 This clause 15 shall survive termination of this Agreement for a period of 2 years.
16 Data Protection
16.1Each party shall comply with all applicable data protection legislation andregulations in force (including but notlimited to Council Regulation (EU) 2016/679 and the Data Protection Act 2018and any modifications or re-enactments of them for the time being in force).
17 Governing Law and Dispute Resolution
17.1 This Agreement shall be governed by and construed in accordance with the laws of England and Wales without regard to its conflict of law principles. Any disputes arising out of or related to this Agreement shall be subject to the exclusive jurisdiction of the courts located in London, England.
18 Miscellaneous
18.1 This Agreement, including all attached Schedules, constitutes the entire agreement between the parties and supersedes all prior agreements, understandings, and representations.
18.2 This Agreement may only be amended or modified in writing, signed by duly authorised representatives of the parties.
18.3 Neither party shall be liable for delays or failures in performance resulting from acts beyond their reasonable control, including but not limited to, acts of God, government restrictions, strikes, or natural disasters.
18.4 No failure or delay by the Supplier in exercising any right, power or privilege under this Agreement shall impair the same or operate as a waiver of the same nor shall any single or partial exercise of any right, power or privilege preclude any further exercise of the same or the exercise of any other right, power or privilege. The rights and remedies provided in this Agreement are cumulative and not exclusive of any rights and remedies provided by law.
18.5 This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the parties other than the contractual relationship expressly provided for in this Agreement. Neither party shall have, nor represent that it has, any authority to make any commitments on the other party’s behalf.
18.6 Each party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.
18.7 If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable,the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.
18.8 For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.