“The Buyer” means the person(s) from a company who purchase the goods from Asystec Ltd;
“Asystec” means Asystec Limited or such other subsidiary, sister company or associated company named as seller or the Order Form Acceptance;
“Contract” means any contract or agreement between Asystec or the Buyer for the supply of Products by Asystec Ltd, incorporating, containing or referring to these conditions;
“Delivery Point” means the place where the delivery of the Product to the Buyer is to take place;
“Hardware” means the hardware component of the Product including all ancillary equipment, supplies and documentation and any software products pre-loaded on to the Hardware;
“Order Form Acceptance” means the acceptance by Asystec of the Buyer’s offer to procure the Product;
“Product” means the configuration of Hardware and/or Software and/or ancillary equipment or peripherals which the Buyer agrees to buy from Asystec;
“Sales Order” means the offer to purchase Product from Asystec whether in Asystec’s standard form or not;
“Scheduled Delivery Date” means the date upon which the product is scheduled for delivery;
In these conditions reference to any statute or statutory provisions shall, unless the context otherwise requires, be construed as a reference to that statute or statutory provisions as time to time amended, consolidated, modified, extended, re-enacted or replaced.
INCORPORATION OF TERMS
The Contract will be on these conditions to the exclusion of all other terms and conditions (including any terms or conditions which the Buyer will be purported to apply under any purchase order, confirmation of order, specification or other document).
No terms or conditions endorsed upon, delivered with or contained in the Buyer’s purchase order, confirmation of order, specification or other document will form part of the Contract simply as a result of such document being referred to in the Contract.
These conditions apply to all of Asystec’s sales and variations of these conditions and any representations about the Product shall have no effect unless expressly agreed in writing and signed by a Director of the Company.
Where Asystec has provided the Buyer with a written quotation, the same shall constitute an invitation to treat. All orders placed with Asystec by the Buyer for Products shall constitute an offer to Asystec and no Contract shall come into being until accepted by Asystec.
Each delivery of Product under the Contract shall be deemed to constitute a separate enforceable Contract to which the terms and conditions shall apply.
No failure, delay, relaxation or indulgence on the part of either party in exercising any power or right conferred upon such party by these terms and conditions or by law, shall operate as a waiver of such power or rights, or of any other power or right on any subsequent occasion.
Governing Law & Dispute Resolution
These terms and conditions shall be construed in accordance with the laws of the Republic of Ireland and the parties hereto hereby irrevocably submit to the exclusive jurisdiction of the Courts of Ireland.
Where a claim or dispute arising out of or in connection with these terms and conditions including any question regarding its existence, its validity or its termination is not settled by negotiation between the parties, the parties will in good faith consider using mediation in the Republic of Ireland or elsewhere if agreed before resorting to litigation. If either party does not wish to use or continue to use, mediation, or mediation does not resolve the dispute, either party may proceed with litigation as set out herein.
Unless otherwise agreed by Asystec in writing, the price for the Product shall be the price set out in the quotation from Asystec to the Customer.
Unless otherwise agreed, the price for the Product shall be exclusive of any Value Added Tax and costs in relation to delivery which the Buyer will pay in addition when it is due to pay for the Product.
The Buyer will make the Delivery Point available for inspection by appropriate Asystec staff before the Scheduled Delivery Date, if so required by Asystec. Unless otherwise specified by the Buyer, delivery will be made to the Delivery Point as specified in the Sales Order or subsequently by the Buyer.
The Buyer shall furnish the necessary labour to unload and furnish any Product into its designated operating point, unpacking it and placing it in the desired location.
The Scheduled Delivery Date referred to on any quotation, sales order or elsewhere are approximate only and not of any binding contractual effect. Whilst Asystec will use all reasonable endeavours to meet any Scheduled Delivery Date, it shall not have any liability for loss or damage (including loss of use (total or partial), loss of contract or loss of profits) incurred by the Buyer as a result of any failure to deliver upon any particular date or dates, nor will any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds 30 days.
If for any reason, the Buyer will not accept delivery of any of the Product when ready for delivery, or Asystec is unable to deliver the Product on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations:-
- Risk in the Product will pass to the Buyer (including for loss or damage caused by Asystec’s negligence;
- The Product will be deemed to have been delivered
- Asystec may store the Product until the delivery where upon the Buyer will be liable for all related costs and expenses (including without limitation storage and insurance).
The quantity of any consignment of Product as recorded by Asystec upon despatch from Asystec’s place of business shall be conclusive evidence of the quantity received by the Buyer on delivery unless the Buyer can provide conclusive evidence proving the contrary.
Asystec shall not be liable for any non-delivery of Product (even if caused by Asystec’s negligence) unless written notice is given to Asystec within 5 days of the date when the Product would in the ordinary course of events have been received.
Any liability of Asystec for any non-delivery of the Product shall be limited to replacing the Product within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Product.
Ownership of the Product shall not pass to the Buyer until Asystec has received in full (in cash or cleared funds) all sums due to it in respect of the Product and all other sums which are or which become due to Asystec from the Buyer on any account.
Until ownership of the Product has passed to the Buyer, the Buyer must;
- Hold the Product on a fiduciary basis as Asystec’s bailee;
- Store the Product (at no cost to Asystec) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as Asystec’s property;
- Not destroy, deface or obscure any identifying mark or packaging on or relating to the Product
- Maintain the Product in satisfactory condition, insured on Asystec’s behalf for its full price against all risks to the reasonable satisfaction. On request, the Buyer shall produce the policy of insurance to Asystec.
- Hold the proceeds of the insurance referred to in the conditions above on trust for Asystec and not mix them with any other money, or pay the proceeds into an overdrawn bank account
The Buyer may resell the Product before ownership has passed to it solely on the following conditions:-
- Any sale shall be effected in the ordinary course of the Buyer’s business at full market value and the Buyer shall hold such part of the proceeds of sale as represent the amount owed by the Buyer to Asystec on behalf of Asystec and the Buyer shall account to Asystec accordingly; and
- Any such sale shall be a sale of Asystec’s property on the Buyer’s own behalf and the Buyer shall deal as principal when making such a sale.
The Buyer’s right to possession of the Product shall terminate immediately if:
- the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any legislation for the time being in force for the relief of insolvent debtors (or being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or examiner appointed over its undertaking or any part thereof, or a resolution is passed or a petition presented to any Court for the winding up of the Buyer or for the granting of an examination order in respect of the Buyer or any proceedings that commence relating to the insolvency or possible insolvency of the Buyer; or
- the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it or fails to observe/perform any of his/its obligations under the Contract or any other contract between Asystec and the Buyer, or is unable to pay its debts within the meaning of s.214 of the Companies Act, 1963 or the Buyer ceases to trade or the Buyer encumbers or in any way charges any of the Product
Asystec shall be entitled to recover payment for the Product notwithstanding that ownership of any of the Product has not passed from Asystec.
The Buyer grants Asystec, its agents and employees an irrevocable license at any time to enter any premises where the Product are or may be stored in order to inspect them, or, where the Buyer’s right to possession is terminated to recover them.
Prices and Payments Terms
The payment of the price for the Product is due within 30 days of the date of dispatch of the Product, and time for payment shall be of the essence. No payment shall be deemed to have been received until Asystec has received cleared funds. All payments which are not received when payable will be considered overdue and remain payable by the Buyer together with interest for late payment at 3% per annum above the ECB main financing rate for the time being. Said interest shall accrue on a daily basis before as well as after any judgment and is payable on demand. Notwithstanding this condition, Asystec may, at its option and without prejudice to any other remedy at any time after the payment has become due, suspend any further deliveries due under the Contract and enter in or upon the Buyer’s premises and take possession of the products listed on the relevant sales order confirmation.
These rights shall continue until payment in full is received by Asystec.
Asystec warrants that it has good title to all Hardware supplied to the Buyer hereunder. Asystec, however, gives no warranty in relation to the functionality, use, quality or benefit of the Hardware. To the extent permitted by law, Asystec assigns the benefit of any guarantee or warranty covering any defects in Product received by Asystec under an agreement with the manufacturer or supplier of the relevant Product.
Limitation of Liability
The following provisions set out the entire financial liability of Asystec (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:-
- Any breach of these conditions; and
- Any representation, statement or tortuous act or omission including negligence arising under or in connection with the Contract.
All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by Section 12 of the Sale of Goods and Supply of Services Act, 1980) are, to the fullest extent permitted by law, excluded from the Contract. Nothing in these conditions excludes or limits the liability of the Company for death or personal injury caused by Asystec’s negligence or fraudulent misrepresentation. Asystec’s total liability in contract, tort (including negligence or breach of statutory duty), and misrepresentation or otherwise, arising in connection with the performance or contemplated performance of this Contract should be limited to €2,600,000. Asystec shall not be liable to the Buyer for any direct, indirect or consequential loss or damage (whether for loss of profit, loss of business, depletion of goodwill or otherwise), costs, expenses or other claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
Asystec gives no warranty in relation to software and the Buyer must rely solely on the warranties provided by the software manufacturer. Asystec will deliver to the Buyer the manufacturers’ warranty documentation on delivery of the Product.
All software and related documentation is supplied to the Buyer under the terms and conditions of applicable proprietary licence agreement (whether the same has been signed and/or returned to the Licensor) for use only on the Hardware specified therein. Title to Software does not transfer to the Buyer under any circumstances. It is the sole responsibility of the Buyer to comply with all of the terms and conditions of the said licence and the Buyer is hereby notified that any failure to comply with the terms of the licence may result in revocation.
The Buyer acknowledges that any software supplied by Asystec has not been prepared to meet the Buyer’s individual requirements and it is the Buyer’s responsibility to ensure that the facilities and functions of the software meet the Buyer’s requirements.