Terms & Conditions
1.1. The definitions and rules of interpretation in this paragraph apply in these Sensurity Limited Standard Terms and Conditions (Version 1.0) (Terms and Conditions). Agreement means any agreement entered into between the Supplier and a Third Party (both defined below) where these Terms and Conditions are expressly incorporated by reference into such agreement. Business Day means a day other than a Saturday, Sunday or public holiday in the place of receipt of the notice or communication.
Confidential Information means information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, Intellectual Property, affairs and finances of a party or any of its Group Companies (whether or not such information is marked confidential) disclosed by a party, its employees, officers or representatives to the other party.
Delivery Location shall have the meaning set out in paragraph 3.5.2.
Disclosing Party shall have the meaning set out in paragraph 8.1.
Force Majeure Event means, in relation to either party, any circumstances beyond the reasonable control of that party (including, without limitation, any strike, lock-out, other form of industrial action or act of God).
Group means in relation to a company, that company, each and any subsidiary or holding company from time to time of that company, and each and any subsidiary from time to time of a holding company of that company and Group Company shall be construed accordingly.
Improvement means any improvement, enhancement or modification to the Intellectual Property comprising, or the technology that is the subject of, the Licensed Intellectual Property and/or any Product or its method of manufacture.
Intellectual Property means all rights of any nature in patents, rights to inventions, utility models, copyright, moral rights, trade marks, service marks, trade, business and domain names, logos, rights in trade dress or get-up, rights protecting reputation, goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, topography rights, rights in confidential information (including know-how, inventions, processes, market information and lists of customers and suppliers, and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered, including all applications for and renewals or extensions of such rights, all similar or equivalent rights of forms of protection in any part of the world.
Licensed Intellectual Property means all Intellectual Property in the Products and accompanying documentation and such other Intellectual Property as may from time to time be agreed in writing by the parties.
Order means an order for Products submitted by a Third Party in accordance with paragraph 3.
Product means any item sold or supplied under an Agreement.
Receiving Party shall have the meaning set out in paragraph 8.1.
Relevant Agreements shall have the meaning set out in paragraph 11.5.
Relevant Claim shall have the meaning set out in paragraph 9.1.
Supplier means Sensurity Limited, a company incorporated and registered in Northern Ireland with company number NI613360 whose registered office is at 63 University Road, Belfast, Northern Ireland BT7 1NF.
Term means the period from the date of the applicable Agreement until the date upon which the Agreement is terminated or expires in accordance with the relevant provisions of that Agreement and paragraph 10 of these Terms and Conditions.
Territory has the meaning set out in the applicable Agreement.
Third Party means any individual or company entering into an Agreement with the Supplier.
Trade Marks means any such trademarks as the Supplier may notify to the Third Party in writing from time to time (being trade marks used by the Supplier on or in relation to the Products).
1.2. Paragraph headings shall not affect the interpretation of these Terms and Conditions.
2.1. The Supplier shall provide Product samples to the Third Party in accordance with such terms as the parties may agree in writing.
SUPPLY OF THE PRODUCTS
3.1. Subject always to the Supplier using all reasonable endeavours to fulfil Orders placed by the Third Party during the Term, the Supplier shall be entitled to decline to accept any Order from a Third Party, and the Supplier will not be under any obligation to continue the supply of all or any Products.
3.2. The Supplier will be entitled to make such alterations to the specifications of the Products as it may think fit, provided the alterations do not adversely affect the quality of the Products. The Supplier shall give notice of any changes to Product specifications to the Third Party as soon as reasonably practicable.
3.3. Each Order for Products will constitute a separate contract (governed by the terms of the Agreement), and any default by the Supplier in relation to any one Order accepted by the Supplier will not entitle the Third Party to treat the Agreement as terminated.
3.4. The Third Party shall, in respect of each Order for the Products to be supplied pursuant to an Agreement, be responsible for: (i) ensuring the accuracy of the Order; (ii) providing the Supplier with any information which is necessary in order to enable the Supplier to fulfil the Order; and (iii) obtaining any necessary import licences, certificates of origin or other requisite documents, and paying all applicable customs duties and taxes in respect of the importation of the Products into the Territory, their delivery from the Supplier to the Third Party and their resale in the Territory.
3.5. Unless agreed otherwise with the Supplier, where a Third Party is purchasing Products from the Supplier, the Third Party shall during the Term: (i) provide to the Supplier on a monthly basis a rolling three (3) month forecast of its estimated requirements for Products in each calendar month of the forthcoming three (3) months; and (ii) give the Supplier not less than one full calendar month’s written notice of its actual requirements of the Products for each calendar month (an Order). Unless agreed otherwise with the Supplier, the location within the Territory where the Products should be delivered shall be the Supplier’s premises at 63 University Road, Belfast, Northern Ireland BT7 1NF (the Delivery Location). Each Order made pursuant to this paragraph 3.5.2 shall specify the type and quantity of Products ordered.
TITLE AND RISK
4.1. Upon receipt and confirmation of each Order, the Supplier shall as soon as is reasonably practicable inform the Third Party of the Supplier’s estimated delivery date for the consignment. the Supplier shall use all reasonable endeavours to meet the delivery date, but time of delivery will not be of the essence and accordingly the Supplier will have no liability to the Third Party if, notwithstanding such endeavours, there is any delay in delivery.
4.2. The title to any consignment of the Products will not pass to the Third Party until the Supplier has received payment in full of the price therefor. Notwithstanding the provisions of paragraph 5, risk of loss of or damage to any consignment of the Products will pass to the Third Party at the point of completion of unloading of the Order at the Delivery Location (unless agreed otherwise by the parties in any Order).
PRICES AND PAYMENT
5.1. All Products to be supplied by the Supplier pursuant to an Agreement will be sold on the basis that (subject to paragraph 5.2 and unless agreed otherwise by the parties in any Order and subject to those costs which are for the account of the Third Party pursuant to paragraph 3.4 and/or paragraph 6.1) the Supplier will arrange and pay for all costs of transport and insurance for the Products up to the point of completion of unloading of the Order at the Delivery Location.
5.2. Where the parties agree in respect of any Order that the Supplier shall arrange for transport and insurance as agent for the Third Party (at Third Party’s cost), the Third Party shall reimburse the Supplier for the full costs thereof and all the applicable provisions of the relevant Agreement will apply with respect to the payment of such costs as they apply to payment of the price of the Products.
5.3. The Third Party shall pay the Supplier for each consignment of the Products in pounds sterling by transfer to such bank account as the Supplier may from time to time notify in writing to the Third Party, and in respect of all Orders, the Third Party shall pay to the Supplier the corresponding invoices in full within 30 calendar days of receipt of the invoice.
5.4. For the avoidance of doubt, all costs associated with any currency exchange and funds transfer shall be for the account of the Third Party.
5.5. If the Third Party fails to pay the price for any Products on or before the due date for payment thereof, the Supplier will be entitled (without prejudice to any other right or remedy it may have) to: (i) cancel or suspend any further delivery to the Third Party under any Order; (ii) sell or otherwise dispose of any Products which are the subject of any Order by the Third Party, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment; and (iii) charge the Third Party interest (calculated on a daily basis) on the overdue payment from the date the payment became due until the date that the actual payment is made (irrespective of whether the date of payment is before or after any judgment or award in respect of the same) at a rate of 8% per annum above the base lending rate of the Bank of England from time to time.
5.6. The Supplier shall have the right, upon seven days’ prior notice to audit (or appoint accountants instructed on its behalf to audit) the Third Party’s records of account insofar as they relate to the exercise of the rights granted to the Third Party under the Agreement, and in relation to the proceeds of distribution of Products. Any such audit shall be at the expense of the Supplier unless errors exceeding 2% in respect of the period under examination are found to the disadvantage of the Supplier, in which case the cost of such audit shall be paid by the Third Party.
VALUE ADDED TAX
6.1. All sums payable under the Agreement, or otherwise payable by any party to any other party under the Agreement are exclusive of any VAT chargeable on the supplies for which such sums (or any part of them) are the whole or part of the consideration for VAT purposes. All taxes, charges, levies, assessments and other fees of any kind imposed on the purchase or import of the Products shall be the responsibility of, and for the account of, the Third Party.
7.1. The Supplier hereby grants to the Third Party during the Term a non-exclusive royalty-free licence, in the Territory, of the Licensed Intellectual Property for the purposes only of exercising its rights and performing its obligations under the Agreement and, subject as provided in paragraph 7.2, the Supplier shall not grant any sub-licence of the same to any other person.
7.2. The Third Party may grant sub-licences of the Licenced Intellectual Property to its customers to the extent necessary to enable them to use the Products in accordance with their intended use.
7.3. The Third Party shall ensure that each reference to and use of any of the Trade Marks by the Third Party is in a manner from time to time approved by the Supplier and accompanied by an acknowledgment, in a form approved by the Supplier, that the same is a trade mark (or registered trade mark) of the Supplier.
7.4. The Third Party shall not: (i) make any modifications to the Products or their packaging; (ii) alter, remove or tamper with any Trade Marks, patent numbers, or other numbers or means of identification used on or in relation to the Products; (iii) use any of the Trade Marks in any way which might prejudice their distinctiveness or validity or the goodwill of the Supplier therein, or otherwise do anything, or omit to do anything, that would diminish or impair the value of or rights of the Supplier in the Licensed Intellectual Property; (iv) use in relation to the Products any trade marks other than the Trade Marks without obtaining the prior written consent of the Supplier; or (v) use in the Territory any trade marks or trade names so resembling the Trade Marks as to be likely to cause confusion or deception.
7.5. The Third Party hereby agrees and acknowledges that the Supplier (or the Supplier’s licensor/s) owns all Intellectual Property in the Licensed Intellectual Property and in any Improvements (whether made by the Third Party or otherwise). The Third Party hereby assigns to the Supplier by way of present assignment of future rights all Intellectual Property that may be owned or generated by the Third Party arising as a result of the Third Party’s performance of obligations or exercise of rights under the Agreement, including all Intellectual Property in any Improvements, for the full term of each Intellectual Property in question and any renewals or extensions thereof, including the right to sue for all infringements and threatened infringements.
7.6. The Third Party further agrees and acknowledges that except as provided in paragraph 7.1 the Third Party will have no rights in respect of the Licensed Intellectual Property or other trade names used by the Supplier in relation to the Products or of the goodwill associated therewith, and the Third Party hereby acknowledges that, except as expressly provided in the Agreement, it shall not acquire any rights in respect thereof and that all such rights and goodwill are, and will remain, vested in the Supplier (or the Supplier’s licensors, as applicable).
7.7. Nothing in the Agreement shall constitute any representation or warranty that: (i) any patent is valid or relevant to the Products; (ii) any patent comprising the Licensed Intellectual Property (if a patent application) shall proceed to grant or, if granted, shall be valid; or (iii) the exercise by the Third Party of rights granted under the Agreement will not infringe the rights of any person.
8.1. Each party (Receiving Party) agrees that it shall at all times (both during the Term and after termination or expiry of the Agreement) keep confidential, and shall not without the prior written consent of the other party (Disclosing Party) use (other than as permitted in paragraph 8.2) or disclose to any third party (other than as permitted in paragraph 8.3) any Confidential Information of the Disclosing Party, unless such information: (i) is or becomes generally available to the public (other than as a result of its disclosure by the Receiving Party, its Group Companies, officers, employees, representatives, customers or prospective customers in breach of the Agreement); (ii) was lawfully in the possession of the Receiving Party before the information was disclosed to it by the Disclosing Party as evidenced by written records; or (iii) is agreed by the Disclosing Party in writing not be confidential or to be disclosable.
8.2. The Receiving Party may use the Disclosing Party’s Confidential Information in the performance of its obligations under an Agreement.
8.3. Subject to paragraph 8.4, the Receiving Party may disclose the Disclosing Party’s Confidential Information (1) to the extent necessary to implement the provisions of the Agreement (but for no other reason): (i) to any prospective customer of the Third Party (subject however, in the case of the Third Party, to having obtained the Supplier’s prior written consent); (ii) where the Receiving Party is a body corporate, to any of the Receiving Party’s Group Companies; or (iii) to any employees, officers or representatives of the Receiving Party; or (2) to the extent necessary to comply with any law, regulation, order or legitimate request, to any relevant governmental or other authority or regulatory body, provided that, to the extent it is legally permitted to do so, it gives the Disclosing Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this paragraph 8.3.2, it takes into account the reasonable requests of the Disclosing Party in relation to the content of such disclosure.
8.4. The Receiving Party shall procure that its prospective customers, members of its Group, its own employees, officers and representatives and those of members of its Group are made aware of and comply with the confidentiality obligations set out in this paragraph 8. The Receiving Party shall make any persons to whom it discloses Confidential Information pursuant to paragraph 8.3.2 aware of the confidentiality obligations set out in this paragraph 8.
8.5. All documents and other records (in whatever form) containing Confidential Information supplied to or acquired by the Third Party from the Supplier shall be returned promptly to the Supplier on termination of the Agreement, and no copies shall be kept.
9.1. Subject to the Third Party fulfilling all the conditions in this paragraph 9 and subject to paragraphs 9.3 and 9.4, the Supplier shall indemnify the Third Party against any liability incurred by the Third Party in respect of damage to property, death or personal injury arising from any fault or defect in the materials or workmanship of the Products and any reasonable costs, claims, demands and expenses arising out of or in connection with that liability (Relevant Claim), except to the extent the liability arises as a result of the action or omission of the Third Party, its officers, employees, agents or subcontractors.
9.2. The Third Party shall, as soon as it becomes aware of a matter which may result in a Relevant Claim: (i) give the Supplier written notice of the details of the matter; (ii) give the Supplier access to and allow copies to be taken of any materials, records or documents as the Supplier may require to take appropriate action in respect of a Relevant Claim; and (iii) if the Supplier requests, allow the Supplier the exclusive conduct of any proceedings and take any action that the Supplier requires to defend or resist the matter, including using professional advisers nominated by the Supplier.
9.3. Subject to paragraph 9.5, the Supplier shall under no circumstances whatsoever be liable to the Third Party, whether in contract, tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Agreement for: (i) loss of profits; (ii) loss of sales or business; (iii) loss of agreements or contracts; (iv) loss of anticipated savings; (v) loss of or damage to goodwill; (vi) loss of use or corruption of software, data or information; or (vii) any indirect or consequential loss.
9.4. Subject to paragraph 9.5, the Supplier’s total liability to the Third Party in respect of all loss or damage arising under or in connection with an Agreement, whether in contract, tort (including negligence), breach of statutory duty, or otherwise and including pursuant to a Relevant Claim, shall in no circumstances exceed the actual amount received by the Supplier from the Third Party pursuant to the applicable Agreement.
9.5. Nothing in the Agreement shall limit or exclude either party’s liability for: (i) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); (ii) fraud or fraudulent misrepresentation; or (iii) any matter in respect of which it would be unlawful for it to exclude or restrict liability.
10.1. Either party may at any time terminate the Agreement with immediate effect by giving written notice to the other party if:
10.1.1. the other party commits a material breach of any term of the Agreement or of any Relevant Agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
10.1.2. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts;
10.1.3. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
10.1.4. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party;
10.1.5. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days;
10.1.6. an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the other party;
10.1.7. a floating charge holder over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
10.1.8. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
10.1.9. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in paragraph 10.1.2 to paragraph 10.1.8 (inclusive); or
10.1.10. the other party ceases, or threatens to cease, to carry on all or substantially the whole of its business.
11.1. Supplier Group: The Supplier will be entitled to perform any of the obligations undertaken by it and to exercise any of the rights granted to it under the Agreement through any third party it engages as a sub-contractor (including in respect of the manufacture of the Products) or through any other company in the Supplier Group and any act or omission of any such company shall, for the purposes of the Agreement, be deemed to be the act or omission of the Supplier.
11.2. Force Majeure: If a party is prevented, hindered or delayed in or from performing any of its obligations under the Agreement by a Force Majeure Event (Affected Party), the Affected Party shall not be in breach of the Agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly. The corresponding obligations of the other party will be suspended, and the time period for performance of such obligations extended, to the same extent as those of the Affected Party. The Affected Party shall: (i) as soon as reasonably practicable after the start of the Force Majeure Event, but no later than five (5) Business Days from its start, notify the other party in writing of the Force Majeure Event, the date on which it started, its likely or potential duration, and the effect of the Force Majeure Event on its ability to perform any of its obligations under the Agreement; and (ii) use all reasonable endeavours to mitigate the effect of the Force Majeure Event on the performance of its obligations. If the Force Majeure Event prevents, hinders or delays the Affected Party’s performance of its obligations for a continuous period of more than three months, the party not affected by the Force Majeure Event may terminate the Agreement by giving two weeks’ written notice to the Affected Party.
11.3. Data Protection: Each party shall comply with its obligations under applicable data protection legislation which arise in connection with an Agreement.
11.4. Independent Status: Nothing in the Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
11.5. Entire Agreement: The Agreement (together with any non-disclosure or confidentiality agreement entered into between the parties for the purposes of, or in the course of, discussions leading to the Agreement (the Relevant Agreements)) constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
11.6. Variation: No variation of the Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
11.7. Assignment: Except as otherwise provided in the Agreement or agreed by the parties from time to time, neither party may assign, sub-contract or deal in any way with, any of its rights or obligations under the Agreement or any document referred to in it, without the consent of the other party (such consent not to be unreasonably withheld or delayed).
11.8. No Waiver: Failure to exercise, or any delay in exercising, any right or remedy provided under the Agreement or by law shall not constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict any further exercise of that or any other right or remedy.
11.9. Severance: If any provision (or part of a provision) of the Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
11.10. Publicity: Neither party shall make any press or other announcements or releases relating to the Agreement without the written consent of the other party.
11.11. Inadequacy of Damages: Without prejudice to any other rights or remedies that either party may have, each party acknowledges and agrees that damages alone would not be an adequate remedy for any breach by it of the terms of the Agreement. Accordingly, each party shall be entitled to the remedies of injunction, specific performance or other equitable relief for any threatened or actual breach of the terms of the Agreement.
11.12. Notice: Any notice required to be given under an Agreement, shall be in writing and shall be delivered personally, or sent by pre-paid first class post, or e-mail, or airmail or recorded delivery or by commercial courier, to the party required to receive the notice at its address as set out as follows: (i) Party 1 contact: CEO; Party 1 contact address: the address first stated in the Agreement; (ii) Party 2 contact: Such contact specified for the Third Party in the Agreement, or if not specified, such contact agreed by the Parties, or if not agreed, the CEO of the Third Party; Party 2 contact address: the address stated in the Agreement, or as otherwise specified by the relevant party by notice in writing to each other party.
11.13. Third Party Rights: The Agreement is made for the benefit of the parties to it and their successors and permitted assigns and is not intended to benefit, or be enforceable by, anyone else.
11.14. Counterparts: The Agreement may be entered into on any number of counterparts and by the parties to it on separate counterparts, each of which when so executed and delivered shall be an original, but all the counterparts shall together constitute one and the same instrument.
GOVERNING LAW AND JURISDICTION
12.1. The Agreement and these Terms and Conditions and any dispute or claim arising out of or in accordance with either or the subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with Northern Irish law. The parties irrevocably agree that the courts of Northern Ireland shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with the Agreement and these Terms and Conditions or the subject matter or formation (including non-contractual disputes or claims).