- Agreement to Purchase
The PURCHASER agrees to purchase the equipment and/or the right to use the software and/or the services (such
equipment right or services being hereinafter called “the Solution”) upon the terms and conditions hereinafter contained
and (in the case of a purchase of the right to use software) subject to the terms of the licence that will accompany the
software a copy of which licence is available upon request.
- Acceptance of Terms and Conditions
Acceptance in full of these terms and conditions is confirmed by the Purchaser ordering the Solution by an4 group
limited’s sales order form (“the Sales Order”) and the Purchaser agrees to purchase the Solution upon these terms and
conditions and (in the case of a purchase of the right to use software) subject to the terms of the licence that will
accompany the software a copy of which licence is available on request.
- Price, Payment and Delivery
(a) The price for the Solution shall be either the price specified in the Sales Order which price is the current price charged by an4 group limited on the date thereof for the Solution or such price as shall be the current list price of an4 group limited for the Solution on the date of delivery thereof to or to the order of the Purchaser whichever shall be higher together (where applicable) with Value Added Tax thereon.
(b) Save as hereinafter provided payment for the Solution and all delivery and installation charges shall become due and payable to an4 group limited on the seventh day after delivery or supply of the Solution as provided in the Sales Order and if all such monies are not paid as aforesaid then the Purchaser shall also pay to an4 group limited interest at the rate of five per cent above Lloyds Bank Plc base rate from time to time both before and at the election of an4 group limited after any interest) is not made within thirty days as aforesaid then an4 group limited shall be entitled without notice to enter upon any premises where the Solution or any part thereof may be and recover possession thereof and subsequently dispose of any part of the Solution recovered and shall be entitled to be reimbursed and the costs of obtaining possession as aforesaid and its loss of profit and further if at any time the Purchaser is liable to pay interest to an4 group limited under the provisions hereof then an4 group limited shall be entitled to suspend performance of or cancel any other contract between an4 group limited and the Purchaser.
(c) All monies payable hereunder shall immediately become due and payable if the Purchaser shall make any default under the Contract or under any other contract with an4 group limited or if any act shall be committed or proceedings commenced relating to or in connection with the solvency of the Purchaser.
(d) Time shall be of the essence in respect of payment of all monies hereunder.
(e) an4 group limited shall deliver or supply the Solution to the address specified on the Sales Order and in addition to the purchase price an4 group limited shall be entitled to charge its normal delivery charge or charges details of which are available upon request.
(f) an4 group limited shall endeavour to deliver or supply the Solution on the date specified on the Sales Order but time shall not be of the essence in respect of such delivery or supply and an4 group limited shall not under any circumstances be liable for any delay or for any consequence of any delay in the delivery or supply of the Solution and if any such delay shall occur unless the cause thereof shall render impossible or illegal the performance of the Contract (whereupon the Contract shall be at an end) an4 group limited’s period for performing its obligations shall be extended by such period (not limited to the length of the delay) as an4 group limited may require to complete the performance of its obligations thereunder.
- Installation of Solution
(a) an4 group limited shall not be responsible for the installation or commissioning of the Solution unless so specified in the Sales Order.
(b) If an4 group limited shall agree to install or commission the Solution then the Purchaser shall at its own expense prior to the anticipated delivery date prepare a site for the Solution such site conforming in all respects with the requirements of an4 group limited in respect of such sites and the Purchaser indemnifies an4 directly or indirectly from the failure of the Purchaser to comply with such requirements.
- Transfer of Title
(a) Save as expressly hereinafter provided the right to use any software and or property in any equipment forming part of the Solution shall not pass to the Purchaser until an4 group limited shall be paid in full in respect of the whole of the Solution in accordance with these terms and conditions and the Purchaser shall not be entitled to incorporate any such equipment into any larger assembly or connect such equipment with any other thing until an4 group limited has been paid in full as aforesaid provided that if such connection or incorporation is made then property in the whole of such equipment shall remain with an4 group limited.
(b) If in the opinion of an4 group limited part of the Solution the subject of the Sales Order is capable of being used by the Purchaser independently of other parts of the Solution then an4 group limited shall be entitled to deliver or supply and be paid for part of the Solution without waiting for the whole to be available.
(c) an4 group limited may at its discretion make delivery of the Goods by instalments. Each instalment shall constitute a separate Contract and failure by the an4 group limited to deliver any one or more of the instalments in accordance with these terms and conditions or any claim by the Purchaser in respect of any one or more instalments shall not entitle the Purchaser to treat the Contract as a whole repudiated. The an4 group limited may invoice for each instalment separately.
(d) If the Purchaser in the ordinary course of business sell by bonafide sale any such equipment before payment in full has been made to an4 group limited then the purchase monies shall forthwith become payable to an4 group limited and an4 group limited shall be entitled to trace the proceeds of such sale into the hands of the Purchaser and the Purchaser shall hold such proceeds of sale upon trust for an4 group limited.
(e) For so long as the property in any such equipment or the right to use software remains in an4 group limited then an4 group limited shall have the right by its servants and agents to enter upon any premises where the equipment or software is stored whether by breaking locks or otherwise and take possession thereof and subsequently dispose of all or any part of the Solution so recovered.
(f) Nothing in this agreement shall entitle the Purchaser to return the Solution or any part thereof to an4 group limited and an4 group limited shall be entitled to maintain an action for the price of the Solution notwithstanding the property in the Solution or any equipment forming part thereof may not have passed to the Purchaser.
(g) Risk in the Solution and each part thereof shall pass to the Purchaser upon departure thereof from an4 group limited’s premises and the Purchaser shall effect all such insurances as may be prudent.
(h) The unenforceability of any part of this clause shall not affect the enforceability of the remainder thereof.
- Warranty
(a) an4 group limited warrants that the Solution shall be free from defects in workmanship and materials at the time of delivery.
(i) If any of the Solution does not conform to that warranty an4 group limited will at its option:
(a) replace the Solution or part thereof
(b) take such steps as an4 group limited deems necessary to bring the Solution into a state where they are free from such defects; or
(c) take back the Solution or part thereof and refund or issue a credit note for the appropriate part of the purchase price provided that the liability of an4 group limited shall in no event exceed the purchase price of the Solution or part thereof and performance of any one of the above options shall constitute an entire discharge of an4 group limited’s liability under this warranty.
(ii) The foregoing warranty is conditional upon:
(a) The Purchaser giving written notice to an4 group limited of the alleged defects in the Solution , such notice to be received by an4 group limited within ten days of delivery or supply of the Solution as provided in the Sales Order;
(b) The defective part of the Solution being returned to an4 group limited or to such a person as they may reasonably direct within 10 days from the date of delivery of or supply of the Solution or part thereof;
(c) The Purchaser affording an4 group limited a reasonable opportunity to inspect the Solution or part thereof and if so requested returning the allegedly defective Solution or part thereof to an4 group limited;
(d) The Purchaser making no further use of the Solution of part thereof that are allegedly defective after the time at which the Purchaser discovers or ought to have discovered that they are defective
(e) The Purchaser shall pay to an4 Group Limited the amount of the cost of any tests of the Solution returned by the Purchaser to an4 group limited for examination together with the cost of returning such equipment to the Purchaser if upon examination it shall be determined that an4 group limited is not liable in respect of any defect in the Solution; and
(f) The benefit of this warranty shall apply only to the Purchaser
(iii) Until the expiry of the warranty period specified herein or until the Purchaser shall have paid in full all monies due hereunder whichever shall be the later:
(a) an4 group limited’s representative shall have full and free right of access to the Solution.
(b) The Purchaser shall not permit persons other than authorised representatives of an4 group limited to effect any replacement of parts maintenance adjustments or repairs to the Solution.
(c) The Purchaser shall properly maintain the installation facilities for the Solution in accordance with an4 group limited’ recommendations.
(d) The Purchaser shall use with the Solution only such operating supplies as meet ABC group limited’ specifications.
(e) The Purchaser shall not permit the operation of any part of the Solution by any person other than operators competent or conversant with the Solution and the Purchaser shall not permit any addition or attachment to or movement to any item of part of the Solution or assign or transfer any of its interest under the Contract.
- Sale by Sample
(a) the Purchaser hereby agrees that the sale and purchase of the Solution shall not be a sale and purchase by sample and that it has inspected the Solution and buys the same as a result of such inspection and agrees that the descriptions illustrations specifications drawings and all other materials contained in or referred to in any catalogue price list brochures leaflet or other descriptive matter produced or distributed by an4 group limited merely represents the general nature of the Solution described therein but such descriptions illustrations specifications drawings and other material do not form part of the Contract and the Purchaser agrees that it has not entered into the Contract upon the basis of any such representation but has satisfied itself as to the suitability of the Solution for the purpose for which the Purchaser intends it to be used.
(b) Samples are exhibited and inspected solely to enable the Purchaser to judge the quality of the Solution and as a mere indication of the type and quality of the Solution and not so as to constitute a sale by sample and the Purchaser shall take the Solution at his own risk as to their corresponding with the said sample and subject to the normal variation.
- Variation of Solution
The Purchaser hereby agrees with an4 group limited that an4 group limited shall have the right from time to time whether before or after the date hereof to alter the specification of the Solution or any part thereof without giving notice thereof to the Purchaser provided that such change shall not adversely affect the performance of the Solution and for the avoidance of doubt it is hereby agreed and declared that the sale and purchase shall not be a sale and purchase by sample.
9 Legal Proceedings
(a) In the event that any legal proceedings are commenced by any third party against the Purchaser for alleged infringement of any United Kingdom letters patent registered design trade mark or copyright by the Solution or any part thereof supplied here under or any allegation of such infringement is made and the Purchaser gives an4 group limited (at an4 group limited expense) all information assistance and authority required for those purposes does not by any act (including any admission or acknowledgement) or omission prejudice the conduct of such defence then:-
(i) an4 group limited will at its own election either effect any settlement or compromise which it deems reasonable or at its own expense defend such action or proceeding and
(ii) an4 group limited will pay the cost of any settlement or compromise effected by an4 group limited of all damages and costs awarded against the Purchaser in any such action or proceeding and
(iii) If the Solution or any part thereof is in such action or proceeding held to constitute infringement and is the subject of an injunction restraining its use or any order providing for its delivery up or destruction an4 group limited shall at its own election and expense either:-
(a) procure for the Purchaser the right to retain and continue to use the Solution or part thereof or that it becomes not infringing or
(b) remove part of the Solution or any part thereof which is not essential to the operation of the whole Solution granting the Purchaser a credit therefore not exceeding the written down value of the asset for income or corporation tax purposes
(iv) an4 group limited shall not be under any of the obligations specified in sub-clause (a) hereof in either of the following events:-
(b) Any infringement or allegation thereof based upon the use of the Solution or parts thereof in combination with equipment or other devices not made nor supplied by an4 group limited or if the infringement or allegation thereof is based upon the use of the Solution or parts thereof with any matter or in any manner for which the Solution was not designed or
(c) The Purchaser entering into any compromise or settlement in respect of any such action or proceeding without an4 group limited prior written consent.
(d) The Purchaser covenants with an4 group limited that it shall give immediate notice to an4 group limited of any alleged infringement as aforesaid and of any information that it may receive in respect of any infringement of any patent registered design trade mark, copyright or other intellectual property right enjoyed by an4 group limited or by the manufacturer or supplier of the Solution or any part thereof.
(d) The Purchaser warrants that any design or instruction furnished or given by it does not infringe any patent registered trade mark or copyright or any other such right or interest.
- Exclusions
(a) an4 group limited shall not be liable for any loss, injury or damage or for any consequence of any such loss or otherwise arising out of any cause whatsoever beyond an4 group limited reasonable control or (except as provided in any maintenance agreement) in respect of or consequent upon any malfunctioning of or defect in or failure of the Solution or any part thereof or for any loss to the use of the Solution and (in the absence of negligence on the part of an4 group limited in installation) any delay in commissioning of the Solution by an4 group limited and an4 group limited will not under any circumstances whatsoever be liable for any consequential loss or damage howsoever caused.
(b) an4 group limited shall not be liable for and the Purchaser shall indemnify and hold an4 group limited harmless against any claim by or loss of or damage to any person or property directly or indirectly occasioned by or arising from the use or operation (other than an4 group limited) or possession of any part of the Solution and from negligence (including the use of any part of the equipment otherwise than in accordance with an4 group limited operating instructions and manuals) or default Contract any delay any wrong information and any lack of required information) or misuse by or on the part of the Purchaser or any person or persons other than an4 group limited and this indemnity shall extend to any costs and expenses incurred by an4 group limited and shall continue in force notwithstanding the termination of the Contract.
(c) in the event that notwithstanding the provisions of this clause an4 group limited is found liable for any loss or damage that liability shall in no event exceed the invoice price of the Solution.
- Dealings
The Purchaser shall not lend lease sell dispose of or otherwise part with the possession of all or any part of the Solution
other than in the form in which the same is supplied to the Purchaser and shall not break down the Solution or any part
therefore or any component thereof into any other machine or Solution without the consent of an4 group limited.
- Repudiation
It is agreed between the parties that in the event of the Purchaser repudiating this agreement before delivery of or
supply of the Solution and having no legally enforceable right to do so there shall at the election of an4 group limited be
payable by the Purchaser to an4 group limited in the form of agreed liquidated damages for breach of contract whichever shall be the greater of fifteen per cent of the total price of the Solution and such sum as represents the value of the time spent by an4 group limited’ employees before an4 group limited receives notice of repudiation under and in connection with the Contract and with any associated contract and any payment due under this clause shall be payable within thirty days of such repudiation and if not paid within such period as aforesaid the Purchaser shall in addition pay interest at the rate of two percent per month after as well as before any Judgement.
- Restrictions
The Purchaser agrees that certain restrictions may from time to time be imposed by governmental or other authorities
having competent jurisdiction in regard to the sale or other disposal or movement of equipment or the thereby for
reasons of national security and strategic considerations the written authorisation of the authorities must be obtained
before any equipment or technical data is exported or released and the Purchaser covenants with an4 group limited that
it shall not export any equipment Solution or technical data supplied by an4 group limited outside the United Kingdom
without the consent of an4 group limited such consent not to be withheld save on the grounds of restrictions imposed as
aforesaid by governmental or other authorities having competent jurisdiction.
- Force Majeure
an4 group limited shall not be liable to the Purchaser if it shall be prevented from performing any of its obligations under
the Contract by reason of any cause beyond its reasonable control including (without limitation to the generality of the
foregoing) acts of God war insurrection riot civil commotion government regulations embargo explosions strikes labour
disputes flood fire or tempest.
- Entire Agreement
The Sales Order and these terms and conditions contain the entire agreement between an4 group limited and the
Purchaser and no variation hereof shall be effective save under the hand of a Director of an4 group limited and these
terms and conditions shall have effect notwithstanding any contrary or inconsistent provision in any order form or other
document not prepared by an4 group limited.
16.Notices
All notices required to be given hereunder shall be given by written notice personally delivered or by fax or by first class
recorded delivery mailed to the address of the party as stated in the Sales Order or to such address as either party may
from time to time notify to the other in writing and such notice shall be deemed to have been given immediately on
personal delivery of the notice or on despatch of the telex or within forty eight hours of the despatch of a recorded
delivery letter and the words “in writing” or “written” whichever is contained in this agreement shall be deemed to include
any notification sent by fax or letter.
- Proper Law and Jurisdiction
This agreement and all matters arising from it shall be governed and construed in accordance with English Law.