Terms & Conditions
These Terms and Conditions will apply to all sales of Equipment (which will be hardware and the software embedded therein (“Firmware”) and/or software and/or user manuals), and no variation or purported variation (including in particular any terms and conditions on the Buyer’s contract or order form), whether before or after the making of the contract, will have effect unless expressly agreed to in writing by the Seller
A quotation is for information only and not binding on the Seller. There will be no contract between the Seller and the Buyer until the Buyer’s order is accepted in writing by the Seller.
THE CONTRACTUAL RIGHTS WHICH THE BUYER ENJOYS (IF ANY) BY VIRTUE OF SECTIONS 12, 13, 14 and 15 OF THE SALE OF GOODS ACT, 1893 (AS AMENDED) AND SECTION 39 OF THE SALE OF GOODS AND SUPPLY OF SERVICES ACT, 1980 (AS AMENDED) ARE IN NO WAY PREJUDICED BY ANYTHING CONTAINED IN THESE TERMS AND CONDITIONS SAVE (IF THE BUYER IS NOT DEALING AS A CONSUMER OR IN THE CASE OF AN INTERNATIONAL SALE OF GOODS) TO THE EXTENT PERMITTED BY LAW.
Words and expressions defined in the Sale of Goods Acts, 1893 and 1980 will, when used in these Terms and Conditions, save where the context otherwise requires, bear the same meanings as therein. The words “sell”, “sale” and any derivative terms shall mean in relation to software licence, sublicence and corresponding derivatives.
TRANSFER OF OWNERSHIP
Title to the property in the hardware and the user manuals will remain with the Seller until the date on which the Seller has received payment in full for all sums due and owing on any account by the Buyer (“Payment Date”). Title to the software (if any) and to the Firmware shall not vest in the Buyer.
If the Buyer sells or otherwise disposes of the hardware before payment in full as aforesaid has been made to the Seller, the Buyer will in such case hold all monies received by him from such sale or disposal in trust for the Seller in separate accounts and will on request furnish the Seller with the names and addresses of the persons to whom such disposals have been made together with all necessary particulars to enable the Seller to recover any outstanding sums due from such persons.
So long as the property in the hardware remains in the Seller, the Buyer will hold the hardware as bailee for the Seller and will store the hardware so as to clearly show them to be the property of the Seller, and
the Seller will have the right, without prejudice to the obligations of the Buyer to purchase the hardware, to retake possession of the hardware (and for that purpose to go upon any premises occupied by the Buyer).
Nothing in this clause will confer any right upon the Buyer to return the hardware. The Seller may maintain an action for the charges agreed notwithstanding that property in the hardware has not vested in the Buyer.
The Buyer shall not acquire title to the intellectual property rights in the Firmware and the software, which is supplied hereunder, and to any enhancements, additions, modifications, and adaptations thereto.
In consideration of the payment of the charges, the Seller hereby grants to the Buyer a personal, single, non-exclusive, non-transferable licence to use the software in the manner specified solely for processing its own data and for its own internal business purposes. The Seller may in its discretion terminate this licence at any time if he has reason to believe that the terms of this subclause have been breached by the Buyer.
In consideration of the payment of the charges, the Seller hereby grants to the Buyer a non-exclusive non- transferable licence to use the Firmware in the form it is embedded in or integrated into the hardware.
Except as otherwise expressly permitted by applicable law, the Buyer shall not copy, modify, adapt, translate, decompile, disassemble, or reverse engineer the Firmware or the software in any manner, shall not merge or integrate the Firmware or the software into any other computer program or work and shall not create derivative works of the Firmware or the software.
The Buyer may make as many copies of the user manuals as are necessary for its lawful use.
Nothing in this clause will be taken as limiting the Seller’s rights.
Any delivery date quoted is an estimate only and the Seller will not be liable for failure to deliver within the time quoted.
If the Equipment and the media on which the software is recorded (“Media”) is not received by the Buyer within three working days from the date of despatch, the carrier and the Seller must at once be informed by the Buyer.
The Seller will be entitled to make partial deliveries or deliveries by instalments, and the terms and conditions herein contained will apply to each partial delivery.
In respect of the Equipment, the Seller will provide the Services specified in his quote which may include the following: –
Training in the use of the Equipment at the times to be agreed between the parties.
Installation of hardware and maintenance of the software; and
Customisation and configuration of the software
RISK OF LOSS OR DAMAGE
Notwithstanding that the property in the Equipment may not have passed, and the property in the Firmware, software and Media does not pass, to the Buyer, the Buyer will carry all risk of loss of and damage to the Equipment and the Media from the time when the Equipment or the Media are delivered to a carrier for transmission to the Buyer or the prior delivery of the Equipment or the Media to the stipulated place of delivery, either of which events will constitute delivery to the Buyer, and section 32(2) and (3) of the Sale of Goods Act, 1893 will not apply.
From when the risk of loss of and damage to the Equipment commences to be carried by the Buyer until the Seller is paid in full for the Equipment, the Buyer will:
indemnify and keep indemnified the Seller against all loss of and damage to the Equipment and against any reduction in the re-sale value thereof below the charges to be paid therefor by the Buyer;
ensure and keep insured the Equipment in an amount at least equal to the charges to be paid therefor by the Buyer; and
hold upon trust for the Seller absolutely all proceeds of such insurance.
Unless otherwise agreed in writing, all charges for the Equipment and the Services will be as specified in the Seller’s quote, and will not include VAT, but will include any other applicable taxes or duties and the cost of any import or other licences or clearances, unless otherwise stated in the quote.
The Seller reserves the right at any time prior to delivery of the Equipment to adjust the charges for the Equipment and prior to the provision of a Service to adjust the charges for this Service to take account of any increase in the costs to him of materials, labour and services or of any currency fluctuations, which increase the costs to him of Equipment imported into the Republic of Ireland.
Unless otherwise stated, the charges do not include cost of delivery to the Buyer’s address agreed between the Seller and the Buyer but do include insurance in transit.
TERMS OF PAYMENT
All sums due under this Agreement shall be paid within 30 days of invoice date.
The Buyer will pay to the Seller interest on overdue payments calculated on the day-to-day balance at a rate of interest equal to that from time to time payable by the Seller on overdraft borrowings. Such interest will be payable on demand and may be charged and added to the balance of overdue payments, and thereby compounded, from time to time as the Seller may determine. A statement from the Seller as to the rate of interest applicable under this clause will, in the absence of manifest error, be conclusive.
Notice Period: Cancellations must be made four days prior to Data Edge attending site. Any Cancellations made after this time will incur cancellation fees.
Cancellation Fees: Professional Services Late Cancellation Fee; 100% if within 24hrs, 30% if within 3 days
Refunds: Refunds will be given if applicable. If the cancellation is within 4 working days before Data Edge is due to site, you will be entitled to a full refund. 70% within 3 days, and no refund if the cancellation is made within 24hrs.
Rescheduling: Clients have the option to reschedule instead of cancelling once it’s done in the outlined time frame.
Exceptions: There are circumstances under which the cancellation policy might be waived or modified. This includes emergencies, unforeseen circumstances, or mutual agreement between the service provider and the client.
Communication: Cancellations must be made through email referencing who quoted the works.
WARRANTIES AND REPRESENTATIONS
The Seller warrants and represents as follows:
At the time of delivery, the hardware and/or the Media will be free from defects in materials and workmanship, and the hardware will substantially conform to the Seller’s applicable specifications or, if applicable, to the specifications laid down by the manufacturer or other supplier of the hardware;
the Firmware and the software, when properly used, will operate substantially as set out in the manuals for a period of 90 days following the date of receipt by the Buyer;
the Equipment will accurately process date data (including, but not limited to, calculating, comparing and sequencing dates and calculating leap year) when used in accordance with its manuals and provided all other products used in combination with the Equipment properly exchange data with it.
Any Services provided under this Agreement will be performed with reasonable skill and care.
The Buyer’s sole remedy for breach of any of the warranties in Clause 10.1 or of any implied condition or warranty applicable thereto is to require the Seller (at the Seller’s option) to either repair or replace the Equipment, and to repeat the performance of the relevant Service, or to issue credit to the Buyer, provided that;
the Seller is notified in writing within 7 days of the discovery of any such defects by the Buyer and in any event not later than 14 days after purchase or the provision of the relevant Service; and in case of a defect in the Equipment provided that;
the relevant Equipment is returned to the Seller at the cost of the Buyer;
examination of such Equipment by the Seller discloses to its satisfaction that a breach of an implied condition or implied or express warranty has occurred as aforesaid, and that the Equipment has not been affected by misuse, neglect, accident, improper storage, installation, or handling or by repair or alteration not effected by the Seller; and
the Buyer will pay to the Seller the cost (as stated by the Seller) of any examination of the Equipment because of which the Seller does not admit liability.
The Buyer shall not reject the Equipment or part thereof or cancel or purport to cancel the contract or any part of it because of an alleged default unless and until the Seller has failed to correct such alleged default within a reasonable time after receipt of a written notice specifying the default.
The guarantee in Clauses 10.1 will not apply to, and all implied conditions and warranties other than those arising under section 12 of the Sale of Goods Act, 1893 (as amended) are hereby excluded in relation to any parts, components and accessories supplied by, but not manufactured by, the Seller and in relation to all Services provided, but the Seller will so far as possible pass to the Buyer the benefit of any guarantee, condition or warranty given to the Seller by the manufacturer
Except as expressly stated in Clause 10, all other warranties, conditions and representations, express or implied, statutory or otherwise are hereby excluded to the fullest extent permitted by law, and the Seller will not be liable in contract, tort or otherwise for any loss, damage, expense or injury of any kind whatsoever, consequential (as defined in Subclause 11.2) or otherwise, arising out of or in connection with the Equipment sold or any defect in them or from any other cause, whether or not any such matter amounts to a fundamental breach of a fundamental term of the contract.
The Seller’s aggregate liability, whether in contract, tort (including negligence) or otherwise, for any loss or damage arising out of or in connection with or resulting from the provision of the Services or the manufacture, sale, delivery, re-sale, replacement or use of the Equipment or part thereof will in no case exceed the charges paid by the Buyer to the Seller for the Service or the Equipment which gives rise to the claim, in case of the Equipment less an amount calculated based on a straight amortisation of this Equipment over three years. In no event will the Seller be liable for any special or consequential damages suffered by the Buyer, including, without limitation, loss of profits, loss of data, loss of use of programs, systems or network functionality and interest charges. Nothing contained in this paragraph will by implication create any liability or obligation on the part of the Seller, or effect or diminish any disclaimer or liability elsewhere contained herein.
The Seller’s liability under this provision will be limited to a period of one year from the date of receipt of the Equipment by the Buyer.
Nothing in this clause 10 will be taken as in any way limiting or excluding any liability which the Seller may have to the Buyer under Section 2 of the Liability for Defective Products Act, 1991.
DEFAULT BY BUYER
If the Buyer:
commits any breach of the provisions of the contract and, in the case of a breach capable of remedy, fails to remedy the same within 15 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied;
has a material change in his ownership or control that the Seller reasonably deems unacceptable
to him and to which he has not given his consent in writing; 11.1.3 challenges the intellectual property rights of the Seller;
commits an act of bankruptcy, makes an arrangement or composition with creditors or suffers any distress or execution;
resolves or is ordered to be wound up or has a receiver or examiner appointed; or
ceases, or threatens to cease, to carry on business;
cancels the Purchase Order then, in any such event, the Seller will have the right (without prejudice to any other remedies): (i) to cancel any uncompleted order and withhold or suspend delivery of further Equipment and the provision of the Services; (ii) to charge a restocking charge
(ii) to demand payment forthwith of all sums due by the Buyer to the Seller; and (iii) to terminate the contract and the licence contained therein.
In the event the Seller exercises any rights it may have to stop Equipment in transit because of the Buyer’s financial condition, the Seller may at its option resell such Equipment at public or private sale without notice to the Buyer and without affecting the Seller’s rights to hold the Buyer liable for any loss or damage caused by breach of contract by the Buyer.
INTELLECTUAL PROPERTY RIGHTS INDEMNITY
The Buyer will indemnify the Seller against all claims, liabilities, proceedings, costs, damages, penalties, losses, and expenses:
to which the Seller may become liable because of work done or the supply of Equipment in accordance with the Buyer’s specifications which involves the infringement of any letters patent, registered design, copyright, trademark or trade name or other rights of confidentiality of information or industrial, commercial, or intellectual property; or
incurred by the Seller caused by, or in any way connected with, the unauthorised use of the Firmware or the software by the Buyer and/or any third party whether through breach of the contract or any other negligent or wrongful act of the Buyer, his officers, employees, servants, agents, and contractors.
The Seller shall promptly notify the Buyer if any claim or demand is made, or action brought against the Seller for infringement or alleged infringement of any intellectual property right which may affect the use or possession of the Equipment.
Each party and its servants and agents will maintain confidential any information belonging to or relating to the other party which the recipient knows or is notified or has reason to believe is confidential to the disclosing party (“Confidential Information”) and shall not disclose to any other party, or use for any other purpose, or copy or modify any Confidential Information without the other party’s prior written consent.
The Seller will not be under any liability of whatever kind for non-performance in whole or in part of its obligations under the contract due to causes beyond the control of the Seller or beyond the control of the Seller’s suppliers including, but not limited to, war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, acts of the Buyer or a third party, failure or delay in transportation, acts of any Government or any agency or subdivision thereof, Government regulations, judicial actions, labour disputes, strikes, embargoes, illness, accident, fire, explosion, flood, tempest or other acts of God, delay in delivery to the Seller or the Seller’s suppliers or shortage of labour, fuel, raw materials or machinery or technical failure. In any such event, the Seller may, without liability, cancel or vary the terms of contract including, but not limited to, extending the time for performing the contract for a period at least equal to the time lost by reason of such causes.
The Buyer will not assign or transfer or purport to assign or transfer to any other person the contract or the benefit thereof or the benefit of any condition, warranty or guarantee or other term or condition (express or implied) forming part thereof or relating to the Equipment.
The headings of these Terms and Conditions are for convenience only and will have no effect on the interpretation thereof.
This contract will be governed and construed in all respects in accordance with the laws of Ireland.