Last modified: 10th June 2021
1. Applicability of Terms
1.1. These Terms and Conditions (as amended from time to time, together with any addenda attached hereto and incorporated herein by this reference, and any Terms of Service Appendix (if provided with the Proposal), are collectively the Terms and Conditions) and the accompanying AVL Cost Proposal (the Proposal) are the only terms and conditions which govern the sale of the equipment, any related software, cabling infrastructure and any other hardware specified in the Proposal (the Products) and services (including On-Going Services, together, the Services) specified in the Proposal by AVL Ltd (the Seller) to the buyer/customer identified in the Proposal (the Buyer). Where the Seller provides the servicing and maintenance services for the Buyer specified in the Proposal, these shall be the On-Going Services. Seller and Buyer may be individually referred to as a Party and collectively as Parties.
1.2. The Terms and Conditions and the Proposal (collectively, the Agreement) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of a conflict or inconsistency between the Terms and Conditions and any addendum, the addendum shall prevail to the extent of such conflict or inconsistency. In the event of a conflict between the Terms and Conditions and the Proposal, the Terms and Conditions shall prevail to the extent of such conflict or inconsistency. Notwithstanding anything herein to the contrary, if a master services agreement signed by both Parties is in effect covering the sale of the Products and Services that are the subject of the Proposal, the terms and conditions of said agreement shall prevail to the extent they conflict or are inconsistent with these Terms and Conditions.
2. Acceptance and Modification of Terms
2.1. This Agreement shall not be binding upon Seller until accepted by Buyer as set forth in this Clause 2.1 and the earlier of Seller’s confirmation in writing of Buyer’s order and Seller’s performance under the applicable Proposal. Buyer’s signed acceptance of the Agreement, issuance of order against the Agreement, payment of the Deposit or for any of the Products or Services contained in the Agreement, or receipt of the Products or Services contained in the Agreement, whichever occurs first, shall constitute Buyer’s acceptance of this Agreement.
2.2. Any modification, addition to, or waiver of any of this Agreement shall not be effective unless in writing and signed by an authorized representative of Seller, and any different or conflicting terms appearing in Buyer’s purchase order or other documents are expressly rejected by Seller. No relaxation, forbearance or indulgence by a Party in enforcing any of the terms and conditions of this Agreement or the granting of any time to the other Party shall prejudice or restrict the rights and powers of a Party hereunder, nor shall waiver of any breach hereof operate as a waiver of any subsequent or continuing breach hereof.
2.3. If either Party wishes to change the Products, the schedule of the deliverables under the Proposal, or the scope or execution of the Services, it shall submit details of the requested change to the other Party in writing.
2.4. If either party requests a change to the Products, schedule of delivery or the scope or execution of the Services, Seller shall, within a reasonable time, provide a written estimate to Buyer of:
a) the likely time required to implement the change;
b) any necessary variations to Seller’s charges arising from the change;
c) the likely effect of the change on the Proposal; and
d) any other reasonably foreseeable impact of the change on this Agreement.
2.5. If Buyer wishes Seller to proceed with the change requested in Clause 2.4, Seller has no obligation to do so and until the Parties have agreed the necessary variations to its charges, the Services, the Proposal and any other relevant terms of this Agreement to take account of the change and this Agreement has been varied in writing signed by both Parties.
2.6. Notwithstanding the above, Seller shall have the right to substitute any Product for one of equal or better quality and functionality (in Seller’s reasonable opinion, but subject to Buyer’s reasonable confirmation) in the event that Products specified in the Proposal are discontinued or otherwise unavailable.
2.7. Notwithstanding the above, the Seller has the right to update, amend and modify the Terms and Conditions at any time and any such changes shall be notified to the Buyer by way of an update on the Seller’s website or by email to the Buyer. Such updated Terms and Conditions will automatically and immediately apply to the Agreement notwithstanding the Buyer not having received such notification of the changes.
3.1. Seller will use its best efforts to deliver the Products in accordance with the Buyer’s requested delivery date, subject to receipt of all necessary information from Buyer and Buyer’s compliance with Seller’s reasonable instructions for site readiness. Shipping and installation dates are approximate only, and Seller shall not be liable for failures of or delays in manufacture, delivery or installation resulting from any cause or causes beyond its reasonable control and without its fault or negligence.
3.2. Except for any On-Going Services, the Services supplied under the Agreement and the Proposal shall continue to be supplied until the project as described in the Proposal (the Project) is complete or unless the Agreement is terminated in accordance with Clause 16. For the term of any On-Going Services please see the Terms of Service Appendix attached to the Proposal
3.3. Any delay due to causes beyond Seller’s reasonable control and without Seller’s fault or negligence shall extend delivery and installation dates to the extent caused thereby. Seller will use reasonable efforts to timely notify Buyer in the event of a delay. Buyer shall reimburse the Seller its reasonable additional expenses resulting from any Buyer-caused delay. When delivery of the Products is delayed at the request of the Buyer and the Products have already been shipped by Seller’s vendor, Seller will place the Products in storage and invoice Buyer the price of such Products, which will be promptly paid. Seller shall not be liable, and, subject to Clause 14, the Buyer shall have no right to cancel or rescind this Agreement, in the event of any delay due to causes beyond Seller’s reasonable control and without Seller’s fault or negligence, and Buyer shall accept such delayed performance by Seller. The Buyer’s receipt of the Products shall constitute a waiver of any claims for delay.
4.1. The Proposal shall be agreed in the following manner:
a) Buyer shall provide Seller with a request for a Proposal, setting out the requirements and specifications of the services which it is requesting from Seller, including a description of what work is to be done, dates by which it or each stage of the work is requested to be started and finished, the Products, any unusual factors or specific requirements that might impact upon the design and implementation of the work and any relevant information that Seller may request;
b) Seller shall, as soon as reasonably practicable, provide Buyer with a draft Proposal;
c) Seller and Buyer shall discuss and agree the draft Proposal (including agreement of the non-refundable sum payable immediately by Buyer upon agreement of the Proposal, being a sum equal to 20 per cent of the Proposal total (the Deposit)) and when it has been agreed, they shall both sign a copy of it and it shall become a Schedule to and subject to this Agreement. If it is not agreed, Buyer may request a new draft Proposal (subject to Clause 4.3); and
d) upon receipt of the Deposit, Seller shall supply supplementary design and engineering specifications, which shall be incorporated into the Proposal.
4.2. Once the Proposal has been agreed and signed in accordance with Clause 4.1(c), no amendment shall be made to it except in accordance with Clause 2.
4.3. If Seller and Buyer cannot agree the Proposal after the supply of the third draft Proposal, then this Agreement shall terminate upon written notice by either Party and with no further obligation upon the Buyer, save that Seller shall be entitled to invoice Buyer for time and materials to date in accordance with Clause 5.
5. Billing and Payment Terms
5.1. In consideration of the provision of the Services by Seller, Buyer shall:
a) pay the Deposit in full upon agreement of the Proposal;
b) pay all shipping, handling, delivery and customs costs associated with the Products; and
c) pay for the Services on a time and material basis in accordance with Clause 5.2; subject to any maximum sum, fixed fee or other arrangement agreed in the Proposal.
5.2. Where Services are provided on a time and materials basis:
a) the charges payable for the Services shall be calculated in accordance with Seller’s standard daily fee rates, as supplied in writing to Buyer and/or amended in accordance with Clause 5.4;
b) Seller’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 8.00am and 6.00 pm on weekdays (excluding public holidays);
c) Seller shall be entitled to charge an overtime rate of 50% of the normal daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the Project outside the hours referred to in Clause 5.2(b); and
d) Seller shall invoice Buyer monthly in arrears for its charges for time, expenses and materials for the month concerned, calculated as provided in this Clause 5.2 and Clause 5.3.
5.3.The Proposal contains estimates for travel expenses to be incurred by Seller, which shall be invoiced with accompanying reasonable documentation.
5.4. Seller may review and increase its standard daily fee rates. Seller shall give Buyer written notice of any such increase one month before the proposed date of that increase.
5.5. Buyer shall pay each invoice submitted to it by Seller, in full and in cleared funds, within 30 days of receipt to a bank account nominated in writing by Seller, or by any other method agreed by Seller in writing.
5.6. Without prejudice to any other right or remedy that it may have, if Buyer fails to pay Seller on the due date, Seller may:
a) charge interest on such sum from the due date for payment at the annual rate of 3.5% (three and a half percent) above the base lending rate of Republic Bank in the British Virgin Islands based on the current rate at the time funds are due, accruing on a daily basis and being compounded quarterly until payment is made, whether before or after any judgment and Buyer shall pay the interest immediately on demand; and
b) suspend or terminate all Services and supply of Products until payment has been made in full. Seller shall have no liability to Buyer for any such suspension or termination. In the event of any action by Seller to collect any amount not paid when due, Buyer will reimburse Seller for its costs of collection (including, without limitation, any reasonable attorneys’ fees). In the event of Buyer’s default, Seller may also, without notice, peaceably enter any premises in which the Products are located and remove, hold and sell them in accordance with applicable law, to satisfy in whole or in part Buyer’s obligations.
5.7. Time for payment shall be of the essence of this Agreement.
5.8. All sums payable to Seller under this agreement shall become due immediately on its termination, despite any other provision. This Clause 5.8 is without prejudice to any right to claim for interest under the law, or any such right under this Agreement.
5.9. Seller may, without prejudice to any other rights it may have, set off any liability of Buyer to Seller against any liability of Seller to Buyer.
5.10. Unless otherwise specified in the Proposal, all pricing and amounts are in US Dollars and all billing and payment shall be made in US Dollars.
6. Title and Risk of Loss
6.1. Title to the Products shall pass to Buyer upon (i) delivery and; (ii) upon receipt by Seller of payment for the Products from Buyer, subject to the manufacturer’s or Seller’s software license and any other intellectual property rights of the Seller in relation to the Products and Services (if applicable).
6.2. Risk of loss or damage to the Products or any part thereof shall pass to the Buyer upon delivery.
7. Installation and Site Preparation
7.1. Installation (e.g. field assembly, interconnection, equipment calibration and checkout) is to be performed by the Seller’s trained technical employees. The Seller shall be entitled to employ subcontractors and/or agents to assist in or carry out, in whole or in part, the installation.
7.2. Seller shall reasonably coordinate and cooperate with other trades to facilitate satisfactory work progress. If the Seller’s work in progress is impeded by other trades and/or contractors (excluding the Seller’s own subcontractors) or by scheduling delays due to the Buyer, time delays in the final installation as well as additional charges, including labour, travel and other reasonable expenses, may result.
7.3. Buyer shall ensure that any third parties engaged by Buyer to work on any matters connected to (or which impact in any material way) the Proposal and the provision of the Services, perform such work in a timely and professional manner and do not delay or impede the provisions of the Services.
7.4. The Buyer shall be responsible for preparing, at its own expense, the installation site in accordance with the Seller’s reasonable instructions, including the requirements specified in the Proposal and, where appropriate, with consideration of Clause 9.9.
8. Access to Project Site
8.1. The Buyer shall provide the Seller (and Seller’s agents, subcontractors, consultants and employees) with reasonable access to the installation site before delivery, for purposes of determining site readiness for installation, and shall designate an individual on Buyer’s staff to serve as a contact person for all site preparation and installation issues. Buyer shall provide Seller with free access to the installation site for the purpose of preparation for installation.
8.2. Buyer shall obtain at its expense and keep effective all permissions, licenses, and permits whenever required in connection with the installation and/or use of the Products and the premises where the Products shall be situated.
8.3. Buyer shall be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the Services.
8.4. All of Seller’s equipment used on the Project site or for the provision of Services shall, at all times, be and remain the exclusive property of Seller, but shall be held by Buyer in safe custody at its own risk and maintained and kept in good condition by the Buyer until returned to Seller, and shall not be disposed of or used other than in accordance with Seller’s written instructions or authorisation
9.1. All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from this Agreement.
9.2. Subject to the other provisions of Clause 9, Seller warrants that for a period of one year from the date of supply of the Services it will (at the option of Seller) repair, replace or refund the cost of any defects in the provision of those Products or Services, save for those expressly made known by Seller to Buyer at completion of the Services. Seller reserves the right to inspect any reported defects in order to determine whether the defect is within the terms of the warranty provisions of Clause 9.
9.3. Subject to the other provisions of Clause 9, in the event a defective Product requires replacement, Seller will remove, package, ship, receive and re-install the Product for no cost, other than any shipping, handling, delivery or customs fees. Subject to the other provisions of Clause 9, in the event a defective Product requires repairing by the Seller, Seller shall not charge for charge for parts or labour (other than any shipping, handling, delivery or customs fees). Repaired or replaced Products supplied by Seller shall be covered only by the unexpired portion of the warranty at Clause 9.2 remaining.
9.4. Subject to the other provisions of Clause 9, Seller warrants that for a period of one year from the date of installation it will repair, replace or refund the cost of any defects in any cabling infrastructure installed and supplied by Seller, save for those expressly made known by Seller to Buyer at completion of the Services.
9.5. Seller warrants that all Products will be new and in accordance with the Proposal. Seller shall to the fullest extent possible pass on any manufacturer’s warranties to Buyer (unless separately agreed otherwise). The Products are warranted only to the extent that any manufacturer’s warranty is enforceable by Seller. Subject to Clause 9.6, where Products are defective, Seller will, if requested by Buyer, use reasonable endeavours to enforce such warranty. All warranty replacement or repair costs for shipping, handling, delivery or customs fees, shall be considered a reimbursable cost.
9.6. Seller shall not be liable for nor have any warranty obligations with respect to Products that are in any way misused, altered and/or repaired by someone other than a representative of the Seller which, within the sole, reasonable judgment of the Seller, results in an adverse effect, including effects upon performance or reliability of the Products.
9.7. In order to make a warranty claim as mentioned in Clause 9.5, Buyer shall promptly notify Seller in writing. Buyer shall reasonably and promptly cooperate with Seller’s request for information regarding the claim and with return of the defective Product if required.
9.8. Except as otherwise specified in this Agreement, no warranty whatsoever is provided by the Seller hereunder as to Products manufactured by anyone other than the Seller, including but not limited to, cables, lamps, batteries, glassware, and evacuated devices (including valve, cathode ray tubes, and other special electron tubes). Seller’s sole obligation with respect to Products manufactured by someone other than Seller shall be to pass through the applicable warranties, if any, provided by the manufacturer.
9.9. Seller shall not be liable for nor have any guarantee, support or warranty obligations in relation to any equipment, Products or Services that do not conform with the following requirements:
a) electronic components and Products can only be turned on in a property that has passed a BVI electrical inspection;
b) Products must be installed in the designed permanent location of the specific Products and not placed in areas that are considered temporary or not fit for purpose;
c) Products must be fed by permanent mains power supply or a backup power supply;
d) backup power must be a sufficiently sized diesel or gas generator or alternative energy systems with batteries;
e) the site where the Products are located or Services provided must have a sufficient grounding or lightning protection;
f) the site where the Products are located or Services provided must have a stable electrical voltage and frequency mains power supply or back up power supply. Products installed in a Head-End rack area must have working air conditioning or a de-humidifier which should at all times be turned at the appropriate settings;
g) Head-End racks must have dedicated electrical circuits; and
h) Products that are delivered directly to site via container must not be removed by a third party and left outside, unless otherwise agreed by Seller.
9.10. Seller shall not be liable for the repair, refund or replacement costs relating to any equipment, Products or Services that were:
a) improperly maintained by persons other than the Seller;
b) used in the incorrect environment (such as using indoor components in an outdoor environment);
c) subjected to excessive voltage or current conditions;
d) exposed to hazardous environmental conditions;
e) used in an unauthorised, abnormal or improper way, or modified or operated in an unauthorised, abnormal or improper way;
f) damaged as a result of the negligence or actions (whether accidental or otherwise) of a person other than the Seller; or
g) worked on by contractors or individuals other than by Seller.
10. Buyer Responsibilities
10.1. Buyer or any user of the Products shall (i) notify Seller as soon as any unusual operating peculiarity appears, and (ii) operate the Products in a safe and competent manner in strict compliance with the Product specifications and operating procedures and applicable laws and government regulations. In the event the Buyer or any user of the Products fails to comply with this Clause 10, Seller’s warranties and its obligations hereunder shall terminate without notice to Buyer.
10.2. Buyer shall co-operate with Seller in all matters relating to the Services.
10.3. Buyer shall provide, in a timely manner, such information as Seller may require, and ensure that it is accurate in all material respects.
11. Limitation of Liability and Exclusion of Damages
11.1. Subject to Clause 11.3,to the fullest extent allowed by applicable law, in no event will Seller be liable for incidental, consequential, special, exemplary, or indirect damages, lost business profits, or loss, damage or destruction of data, arising out of or in any way related to this Agreement and the relationship and/or dealings between Buyer and Seller, regardless of the form of action, whether in contract, tort (including negligence), breach of warranty or otherwise. Except for Seller’s gross negligence, willful misconduct or fraud, Seller’s aggregate liability arising out of or related to this agreement shall not exceed the total amount paid or payable by Buyer under this Agreement. the above limitation will apply whether an action is in contract or tort and regardless of liability.
11.2. Buyer shall be liable to pay to Seller, on demand and on a full indemnity basis, all reasonable costs (including reasonable legal expenses), charges or losses sustained or incurred by Seller (including any direct, indirect or consequential losses, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) that arise directly or indirectly from the Customer’s fraud, willful negligence, willful or wrongful failure to perform or delay in the performance of any of its obligations under this agreement, subject to Seller confirming such costs, charges and losses to the Buyer in writing.
11.3. Nothing in this Agreement limits or excludes the liability of Seller:
a) for death or personal injury or damage to real or personal property resulting from negligence;
b) for any damage or liability incurred by Buyer as a result of willful misconduct, fraud, or fraudulent misrepresentation or omission by Seller.
12.1. Any and all taxes levied or based on the prices in this Agreement, or the Products being sold hereunder, exclusive of any taxes based on net income, shall be added to the purchase prices set forth in the Proposal.
12.2. All payments to be made hereunder shall be made in cleared funds, without any deduction or set-off and free and clear of and without deduction for or on account of any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by law. If Buyer is compelled to make any such deduction, it will pay to Seller such additional amounts as are necessary to ensure receipt by Seller of the full amount which Seller would have received but for the deduction.
13.1. Each Party may from time to time during the Agreement, in the course of discussions or dealings with each other, receive or learn, orally, visually or through any tangible medium, certain information regarding the other Party’s business, including but not limited to, its products, inventions, operations, methodologies, systems, processes, product development plans or intentions, know-how, designs, trade secrets, market opportunities, business or financial affairs, and technical, marketing, financial, employees, planning, intellectual property and other confidential or proprietary information (Confidential Information). Confidential Information does not include, and the restrictions in this Agreement shall not apply with respect to, information (i) possessed by or independently developed by the receiving Party prior to any disclosure, (ii) obtained from sources other than the disclosing Party, which sources had no obligation of confidentiality to disclosing Party with respect to the Confidential Information, or (iii) which is within the public domain when disclosed or becomes part of the public domain after disclosed to the receiving Party without fault on the part of the receiving Party. Seller’s Confidential Information also includes the terms of this Agreement.
13.2. The Confidential Information of a Party belongs to that Party. The receiving Party will not disclose the Confidential Information of the disclosing Party to any third party without the disclosing Party’s prior written consent. The receiving Party will not use the Confidential Information of the disclosing Party for any purpose not expressly permitted by this Agreement or to carry out the Services or the sale of Products, and will disclose the Confidential Information of the disclosing Party only to the employees or contractors of the receiving Party who have a need to know such Confidential Information for purposes of carrying out the Services or the sale of Products and who are under a duty of confidentiality no less restrictive than the receiving Party’s duty hereunder. Receiving Party will protect the disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
13.3. Receiving Party will, upon completion or termination of this Agreement or promptly upon request from the disclosing Party, return or destroy all Confidential Information of the disclosing Party, including any documents or materials that contain any Confidential Information of the disclosing Party. Notwithstanding anything to the contrary in this Agreement, the receiving Party (i) may retain one (1) copy of the disclosing Party’s Confidential Information solely for archival, audit, disaster recovery, legal or regulatory purposes and (ii) will not be required to search archived electronic back-up files of its computer systems for the disclosing Party’s Confidential Information in order to purge the disclosing Party’s Confidential Information from its archived files; provided, however, that the receiving Party must (i) maintain its confidentiality under this Agreement as if it were still in effect, and (ii) not use the retained Confidential Information of the disclosing Party for any other purpose.
13.4. The Parties recognize that a violation of this Clause13 can cause irreparable harm to the business of the disclosing Party that could not be adequately compensated by the payment of money damages and agree that the disclosing Party may seek injunctive relief against any actual or threatened breach of this Clause 13 in addition to any other available legal and equitable remedies. The prevailing Party in any action to enforce this Clause13 shall be entitled to recover from the non-prevailing Party reasonable attorneys’ fees in addition to other relief granted in such action.
13.5. As between Buyer and Seller, all intellectual property rights and all other rights in the Proposal shall be owned by Seller. Seller, in its sole discretion, licenses all such rights to Buyer free of charge and on a non-exclusive, worldwide basis to such extent as is necessary to enable Buyer to make reasonable use of the Products and the Services.
14. Force Majeure
14.1. Except for payment for amounts due under the Agreement, neither Party will be liable to the other for delays or failures to perform occasioned by causes beyond its reasonable control and without its fault or negligence. Such acts or events shall include but not be limited to, acts of God, civil or military authority, civil disturbance, riot, fire, strikes, earthquake, windstorm, tropical storm, hurricane (or other natural disaster), lockouts or slowdowns, factory or labour conditions, loss at sea, inability to obtain necessary labour, materials or manufacturing facilities, delayed issuance of export control licenses and persistent and material interruption or failure of utility service, including but not limited to electric power. In the event of such delays or failures to perform, any dates or times by which either Party is otherwise scheduled to perform shall be extended automatically for a period of time equal in duration to the additional time required because of the delay or failure to perform. The Party claiming force majeure shall promptly inform the other Party of any event of force majeure, and its expected duration and cessation. The Party claiming force majeure shall use its best efforts to mitigate such effects to the extent reasonably practicable.
14.2. If a force majeure event occurs in accordance with Clause 14.1 for a continuous period of more than three months, either Party may terminate this Agreement by giving 30 days’ written notice to the other Party. Such termination shall be without prejudice to the rights of the parties in respect of any breach of this Agreement occurring prior to such termination.
15. Restocking Fees
15.1. In the event Buyer wishes to return any Products, or cancel the order of any Products that have already been ordered but not yet delivered, based for reasons outside of Seller’s control, including but not limited to Buyer’s cancellation or termination of this Agreement or any portion thereof for its convenience, Buyer agrees, in addition to any other amounts due under this Agreement, to reimburse Seller at cost for any and all third party cancellation/restocking fees incurred by Seller.
16.1. Subject to Clause 16.6 or to any provisions of this Agreement that survive termination, this agreement shall terminate automatically upon completion of the Project.
16.2. Seller may, without prejudice to any rights or remedies available to Seller under this Agreement, at law or in equity, terminate this Agreement immediately for cause in the event Buyer breaches a material term of this Agreement (it being understood that Buyer’s payment obligations shall constitute a material term) and such breach is not cured within thirty (30) days after written notice thereof. Seller may also, without prejudice to any rights or remedies available to Seller under this Agreement, at law or in equity, terminate this Agreement immediately for cause upon written notice if Buyer: (i) breaches a material term of this Agreement and such breach is incapable of cure, (ii) fails on multiple occasions to pay any amounts when due, (iii) is declared insolvent, is unable to pay its debts as they fall due, or is deemed insolvent as such term is defined under applicable law, (iv) commences negotiations with creditors, enters into a compromise, scheme or other arrangement to reschedule its debts with creditors, passes a resolution or a notice is given of any reorganisation, administration or winding-up of the Buyer and not dismissed within thirty (30) days or (v) suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
16.3. Upon Seller’s termination of this Agreement for cause, without waiving or otherwise limiting any other remedies available to Seller under this Agreement, at law or in equity, Buyer shall become immediately liable for any outstanding charges for Products delivered and/or Services performed up to the date of termination, any third party restocking/cancellation fees incurred by Seller, and any interest on any and all past due charges as set forth in this Agreement.
16.4. Buyer may, without prejudice to any rights or remedies available to Buyer under this Agreement, at law or in equity, terminate this Agreement immediately for cause in the event Seller breaches a material term of this Agreement and such breach is not cured within thirty (30) days after written notice thereof. Buyer may also, without prejudice to any rights or remedies available to Buyer under this Agreement, at law or in equity, terminate this Agreement immediately for cause upon written notice if Seller: (i) breaches a material term of this Agreement and such breach is incapable of cure, (ii) is declared insolvent, is unable to pay its debts as they fall due, or is deemed insolvent as such term is defined under applicable law, or (iii) commences negotiations with creditors, enters into a compromise, scheme or other arrangement to reschedule its debts with creditors, passes a resolution or a notice is given of any reorganisation, administration or winding-up of the Buyer and not dismissed within thirty (30) days, or (iv) suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business.
16.5. Buyer may, upon 7 days written notice to Seller, terminate this Agreement for its convenience provided, however, that Seller shall be paid for all Products delivered and Services performed up to the effective date of termination (less amounts already paid) plus reimbursed at cost for any third party restocking/cancellation fees in accordance with Clause 15.
16.6. Upon termination of this Agreement for any reason prior to completion of the Project Buyer shall become immediately liable for any outstanding charges for Products delivered and/or Services performed up to the date of termination, any third party restocking/cancellation fees incurred by Seller, and any interest on any and all past due charges as set forth in this Agreement. For the avoidance of doubt, the Buyer shall pay to Seller all amounts committed to in advance by Seller for the purpose of obtaining equipment, materials and labour (including any shipping costs and duty) as required to meet Seller’s obligations under this Agreement to the extent Seller is unable to cancel such provisioning without payment. Seller may, in its absolute discretion, agree to purchase such equipment, materials and labour from Buyer at a price to be agreed between the Parties, provided that the price shall be no more than the cost of the equipment, materials and/or labour as purchased by Seller for the purpose of the Agreement. Buyer shall, return all of Seller’s equipment and Products for which payment has not been received. If Buyer fails to do so, then Seller may enter Buyer’s premises and take possession of them. Until they have been returned or repossessed, Buyer shall be solely responsible for their safe keeping.
16.7. Upon any expiration or termination of this Agreement, in addition to any other provisions of this Agreement that state survival after termination or expiration of this Agreement, and notwithstanding expiration, completion or termination of this Agreement, the Parties shall continue to be bound by the provisions of this Agreement that, by their nature, shall survive such completion or termination, including without limitation provisions relating to warranties, governing law and jurisdiction, and confidentiality.
17. On-Going Services
17.1. This Clause 17 only applies where On-Going Services are included as part of the Proposal. Where On-Going Services are included a separate Terms of Service Appendix will have been included. Please refer to the Terms of Service Appendix for the specific terms in relation to the commencement of such services, renewal and termination. Defined terms in the Terms of Service Appendix will apply in this Clause 17.
17.2. Each On-Going Service Period for each particular On-Going Service shall be for 12 calendar months from the Commencement Date for that service asset out in the table of the Terms of Service Appendix.
17.3. No On-Going Service may be cancelled within the first 12 months of that On-Going Service being provided. Following the completion of the first On-Going Service Period for each On-Going Service, any On-Going Service may be cancelled with 3 months written notice by the Buyer to the Seller.
17.4. If the Buyer does want to cancel the On-Going Services prior to the first Renewal Date (that is, within the first 12 months of the On-Going Services Period) for any reason other than in accordance with Clauses 14 (Force Majeure) and Clause 16.4 then the Buyer agrees to be pay for the remaining fees of the On-Going Services up to the Renewal Date. Clause 16.5 does not apply to On-Going Services.
17.5. Each On-Going Service Period shall automatically renew for a further 12 month period on the Renewal Date as set out in the table above. Thereafter, the On-Going Service Period shall automatically renew on each 12 month anniversary of the Renewal Date unless the Buyer notifies the Seller of their desire to discontinue the On-Going Services in accordance with Clauses 17.3 or 1.6.
17.6. If the Buyer does not wish for the On-Going Services Period to renew on the Renewal Date they must notify the Seller no later than 2 months prior to the Renewal Date. If a notice is received by the Buyer after such time, the On-Going Services will renew on the Renewal Date for a further 3 months.
17.7. The Seller agrees to respond within 4 hours to any request from the Buyer in-relation to the On-Going Services, provided such request is made within the Support Operating Hours set out in Clause 17.9 below.
17.8. The response time of 4 hours by the Seller referred to at Clause 17.7 shall mean the time it takes for a technician of the Seller to contact the Buyer following a request from the Buyer and for the technician to start looking at the problem, whether on-site or remotely or by phone.
17.9 The Support Operating Hours are: 7 days a week (excluding public holidays in the British Virgin Islands), 8am-6pm.
18. Governing Law and Jurisdiction
18.1 This Agreement shall be interpreted in accordance with and governed in all respects by the laws of the British Virgin Islands. Any dispute related to, arising out of, or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of the British Virgin islands. In the event of legal proceedings arising out of or relating to this Agreement, the prevailing Party, as determined by the court, shall be entitled to recover, from the non-prevailing Party, reasonable costs suffered or incurred in connection with such proceedings including, but not limited to, court fees, attorneys’ fees, expenses and costs of investigation and court.
19.1. The Proposal shall be firm for the period shown on the face of the Proposal, subject to withdrawal or change by the Seller upon notice at any time prior to Buyer’s acceptance. Notwithstanding the foregoing, the Seller shall have the right to amend the price of the Products to reflect current conditions that affect the price, including increase in raw material prices, and tariffs that had not been imposed at the time this Agreement was submitted to Buyer.
19.2. In providing the Products and Services, Seller shall be deemed to be an independent contractor and its personnel and representatives shall not act as nor be Buyer’s agents or employees. Seller shall have complete charge and responsibility for personnel employed or engaged by Seller.
19.3. Nothing in this Agreement is intended to, or shall operate to, create a partnership between the Parties, or to authorise either Party to act as agent for the other, and neither Party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
19.4. Buyer may not assign any of its rights or obligations under this Agreement, including by purchase, merger or operation of law, without the prior written consent of Seller, which consent shall not be unreasonably withheld or delayed. Seller may assign this Agreement to any of its affiliates or any successor of all or substantially all of its business. Any attempted assignment or transfer in violation of this Clause18.4 shall be null and void.
19.5. If any provision of this Agreement shall be held to be invalid, illegal, or unenforceable, the remaining terms of this Agreement shall in no way be affected or impaired.