Sales Purchase Provisions

1. Interpretation

These provisions shall apply to the exclusion of any other terms or conditions given to Spire or subject to which any Order is submitted to Spire by the Customer and any similar provision in the Customer’s terms and conditions shall be of no effect.

2. Supply of Devices and Services

Spire shall supply the Customer with such quantity of Products and such Services as set forth in the Customer Order, provided such Order has been duly accepted by Spire.

3. Orders

The Customer Order shall comply with Spire’s requirements on the form and content. Spire is free to accept or decline an Order at its absolute discretion. All Orders submitted by the Customer in accordance with Spire’s requirements will be deemed accepted by Spire five business days after submission unless rejected earlier in writing by Spire.

For the avoidance of doubt, any Order placed by the Customer must be for Products and accompanying Services (as applicable to the Product ordered) generally available from Spire as confirmed in writing by a Spire representative through a quotation or other similar process. The Customer may not order Products only.

4. Quality, Packing and Warranty

The Products supplied to the Customer by Spire shall on Delivery: (a) be of satisfactory quality (within the meaning of the Sale of Goods Act 1979, as amended), fit for any purpose held out by Spire; (b) comply with all applicable generic statutory and regulatory requirements on the date of the purchase order and excluding local country specific requirements (c) and be accompanied by a twelve month warranty as relates to the hardware and a ninety day warranty as relates to the software.

Except as set out in these provisions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the terms of this Order.

Spire shall ensure that the Products are properly packed and secured in such manner as is from time to time agreed between Spire and the Customer.

5. Delivery

All Products shall be delivered to the Delivery Location specified in each accepted Order, unless otherwise agreed in writing by the parties. Spire shall bear the risk of loss of or damage to Products until the Products have been successfully delivered to the Delivery Location, or if mutually agreed, a Customer. Delivery of an Order shall be considered successful when Spire (or its sub-contractors) hands the Product(s) to the Customer (or a representative of the Customer) at the Delivery Location or otherwise makes them available at that location.

Spire may deliver Orders by instalments, which may be invoiced and paid for separately. References to Orders shall, where applicable, be read as references to instalments.

Where Spire has been unable to successfully deliver a Product to a Customer it shall attempt to deliver such Products on two subsequent occasions. If on the third attempt delivery is still unsuccessful, Delivery will be deemed to have been successful for the purposes of the Order. Spire will notify the Customer that such Products have been returned to Spire and will hold such Products on behalf of the Customer until the Customer’s confirmation in writing as to how Spire should deliver the Products it being understood that Spire reserves the right to then charge for all delivery services.

Spire shall have no liability for any failure or delay in delivering an Order or performing any other of the Services to the extent that such failure or delay is caused by the Customer’s failure to comply with its obligations or any failure by a Customer, including any failure to accept Delivery of the Products.

6. Acceptance and defective products

The Customer may reject any Products delivered to it that are materially non-conforming (but for no other reason whatsoever), provided that notice of rejection is given to Spire within 3 business days of Delivery.

If the Customer fails to give notice of rejection in accordance with these provisions, then it shall be deemed to have accepted such Products.

If the Customer rejects Products in accordance with these provisions, then the Customer shall be entitled to require Spire to repair or replace the rejected Products. Once Spire has complied with the Customer’s request, it shall have no further liability to the Customer in respect of the rejected Products’ failure to comply with these provisions.

These provisions shall apply to any repaired or replacement Devices supplied by Spire.

7. Title and risk

Risk in Products shall pass to the Customer on Delivery. Title to Products shall not pass to the Customer until Spire has received payment in full (in cash or cleared funds) for such Products. If before title to Products passes to the Customer, the Customer ceases or threatens to cease to carry on its business or otherwise becomes insolvent then, provided that such Products have not been resold and without limiting any other right or remedy Spire may have, Spire may at any time require the Customer to deliver up such Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the relevant Products are stored in order to recover them. Title to software does not pass to the Customer, however, Spire grants the Customer a license to use such software as such software can be reasonable foreseen to be used.

8. Services

Spire shall provide the Services in relation to the Products ordered in accordance with these provisions. The Customer undertakes: (a) to exclusively purchase the Services from Spire in respect of the Products; (b) that it will not provide services similar to the Services in respect of the Products, itself or via any of its related companies; and (c) that it will not engage any third party to provide the Services (or services similar to the Services) in relation to Products purchased by Customer.

For the avoidance of doubt, nothing in this clause will prevent the Customer from acquiring services similar to the Services in respect of non-Spire products (other than for the avoidance of doubt the Spire Products) purchased from time to time by the Customer from other suppliers.

Spire shall carry out the Services in accordance with Good Industry Practice

9. The Customer’s obligations

The Customer shall: (a) not knowingly permit (and will take reasonable steps to prevent) any person to alter or interfere with any of the Products (other than Spire’s employees or sub-contractors); (b) make payments to Spire in accordance with these provisions; and (c) draw promptly in writing to Spire’s attention any relevant operational or technical problem arising generally in connection with the Products or the Services of which the Customer becomes aware.

10. Prices

The Prices for the Products shall be as set forth in the accepted Order. The Prices are exclusive of amounts in respect of VAT. The Customer shall, on receipt of a valid VAT invoice from Spire, pay to Spire such additional amounts in respect of VAT as are chargeable.

11. Terms of payment

The Customer shall pay invoices in full and in cleared funds within thirty (30) days of the date of the invoice. Payment shall be made to the bank account nominated in writing, from time to time, by Spire.

If the Customer fails to make any payment due to Spire by the due date for payment (due date), then, without limiting Spire’s remedies, the Customer shall pay interest on the overdue amount at the rate of 3% per annum above Lloyds TSB Bank plc’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount; and Spire shall be entitled to suspend all Services until payment has been received by Spire in full.

All amounts due shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).

Spire reserves the right at any time to require the Customer to issue a deposit, irrevocable letter of credit or other form of security acceptable to Spire if the Customer’s financial circumstances or payment history is or becomes unacceptable to Spire.

12. Intellectual Property

The Customer acknowledges that all rights, title and interest in the intellectual property rights in the Services, the Products and the Software or any other products, services or software that may be provided by Spire are and shall remain legally and beneficially owned by Spire or its licensors and except as expressly provided by these provisions, Spire makes no grant of any rights in any intellectual property rights owned by or licensed to Spire.

Spire hereby grants to the Customer a non-exclusive, non-transferable licence to use the Software and any other materials supplied pursuant to this Order for the purpose of using the Products and the Software and receiving any Services.

Spire shall indemnify the Customer against all liabilities, costs, expenses, damages and losses (excluding any indirect or consequential losses, loss of profit, loss of reputation but including all interest, penalties and reasonable and properly incurred legal and other professional costs and expenses) suffered or incurred by the Customer arising out of or in connection with any claim made against the Customer for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with use of the Devices or the Software, or receipt of the benefit of the Services, provided that, if any third party makes a claim, or notifies an intention to make a claim, against the Customer which may reasonably be considered likely to give rise to a liability under this indemnity (Claim), the Customer: (a) as soon as reasonably practicable, gives written notice of the Claim to Spire, specifying the nature of the Claim in reasonable detail; (b) does not make any admission of liability, agreement or compromise in relation to the Claim without the prior written consent of Spire (such consent not to be unreasonably conditioned, withheld or delayed); (c) gives Spire and its professional advisers access at reasonable times (on reasonable prior notice) to its premises and its officers, directors, employees, agents, representatives or advisers, and to any relevant assets, accounts, documents and records within the power or control of the Customer, so as to enable Spire and its professional advisers to examine them and to take copies (at Spire’s expense) for the purpose of assessing the Claim; and (d) subject to Spire providing security to the Customer to the Customer’s reasonable satisfaction against any claim, liability, costs, expenses, damages or losses which may be incurred, takes such action as Spire may reasonably request to avoid, dispute, compromise or defend the Claim.

Spire shall not in any circumstances have any liability for any claim of infringement of intellectual property rights: (a) caused or contributed to by the Customer or its use of the Devices and the Software in combination with software not supplied or approved in writing by Spire; and/or (b) where the claim for infringement arises in respect of a feature of the Services, the Products, the Software or any other products or software which was specified by the Customer.

If any Claim is made, or in Spire’s reasonable opinion is likely to be made, against the Customer, Spire may at its sole option and expense: (a) procure for Customer the right to continue using the Products, the Software or any other products or software (or any part of them) supplied by Spire for this Order; (b) modify the Products, Software or any other products or software (or any part of them) supplied by Spire so that they cease to be infringing and provide comparable functionality; (c) replace the Products, the Software or any other products or software (or any part of them) supplied by Spire with non-infringing works providing comparable functionality; or (d) terminate the Order immediately on notice to the Customer and repay to the Customer all sums which the Customer has paid to Spire for the Order, less a charge for the Services performed up to the date of termination.

Nothing in this clause shall restrict or limit the Customer’s general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.

Notwithstanding any other provision of these provisions, this clause constitutes the Customer’s exclusive remedy and Spire’s only liability in respect of Claims and, for the avoidance of doubt, is subject to the limitations of liability provided hereafter.

13. Limitation of liability

This clause sets out the entire financial liability of the parties (including any liability for the acts or omissions of their respective employees, agents and subcontractors) to each other in respect of: (a) any breach of these provisions however arising; (b) any use made or resale of the Products by the Customer, or of any product incorporating any of the Products; (c) any use made or sub-licence of the Software by the Customer, or of any software incorporating any of the Software; and (d) any representation, statement or tortious act or omission (including negligence) arising under or in connection with the Order.

Nothing shall limit or exclude the liability of either party for: (a) death or personal injury resulting from negligence; or (b) fraud or fraudulent misrepresentation; or (c) for any matter which it would be illegal for that party to exclude and/or limit, or attempt to exclude and/or limit, its liability.

Except as stated elsewhere in these provisions, Spire shall not under any circumstances whatever be liable to the Customer, whether in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, for any: (a) loss of profit; or (b) loss of goodwill; or (c) loss of business; or (d) loss of business opportunity; or (e) loss of anticipated saving; or (f) loss or corruption of data or information; or (g) special, indirect or consequential damage suffered by the Customer that arises under or in connection with this Order.

Without prejudice to the above, Spire’s total liability arising under or in connection with an Order, whether arising in contract, tort (including negligence) or restitution, or for breach of statutory duty or misrepresentation, or otherwise, shall in all circumstances be limited in aggregate to the total Price (excluding VAT) paid by the Customer to Spire for the supply of Products and Services pursuant to the Order.

14. Assignment and sub-contracting

Neither party may assign or transfer or sub-contract any of its rights, benefits or obligations under the Order without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed). Spire shall be entitled to sub-contract the performance of any of its obligations under this Order to any third party provided that Spire shall remain fully responsible and liable for the performance of all its obligations.

15. Confidentiality

The Customer agrees that the pricing provided by Spire is confidential information that may only be disclosed to: (a) its employees, officers, agents, consultants or sub-contractors (Representatives) who need to know such information; and (b) as may be required by law, court order or any governmental or regulatory authority.

16. Data Protection

The parties undertake, where applicable, to comply fully with the requirements of the Data Protection Act 1998.

17. Force majeure

Neither party (or any person acting on its behalf) shall have any liability or responsibility for failure to fulfil any obligation under this Order so long as and to the extent to which the fulfilment of such obligation is prevented, frustrated, hindered or delayed as a consequence of a Force Majeure Event.

A party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of a Force Majeure Event: (a) notify the other party of the nature and extent of such Force Majeure Event; and (b) use all reasonable endeavours to remove any such causes and resume performance under this Order as soon as feasible.

For the purposes of this clause, a Force Majeure Event means an event beyond the control of a party (or any person acting on its behalf), which by its nature could not have been foreseen by such party (or such person), or, if it could have been foreseen, was unavoidable, and includes, without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources.

18. Severance

If any of these provisions (or part of a provision) 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 the minimum modification necessary to make it legal, valid and enforceable.

19. Dispute resolution procedure

No party may commence any court proceedings in relation to any dispute arising out of this Order until 30 business days after an executive of each company has met and had the opportunity to try to resolve the dispute and, if unsuccessful, then 30 business days after the appointment of a mediator, provided that the right to issue proceedings is not prejudiced by a delay.

20. Variation and waiver

Any variation of these provisions must be in writing and signed by or on behalf of the parties. Any waiver of any right under these provisions is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. No failure to exercise or delay in exercising any right or remedy provided under these provisions or by law constitutes a waiver of such right or remedy nor shall it prevent any future exercise or enforcement of such right or remedy.

21. Notices

A notice served under this Order: (a) shall be in writing in the English language; (b) hall be signed by or on behalf of the party giving it; (c) hall be sent for the attention of the person, and to the address, given in the Order (or such other address or person as the relevant party may notify to the other parties in accordance with the provisions of this clause 22); and (d) shall be: (i) delivered personally; or (ii) sent by commercial courier; or (iii) sent by pre-paid first-class post or recorded delivery; or (iv) (if the notice is to be served by post outside the country from which it is sent) sent by airmail requiring signature on delivery.

The addresses for service of notice are set forth in the Order.

A notice or any other communication given in connection with this Order is deemed to have been received: (a) if delivered personally, at the time of delivery; or (b) if sent by commercial courier, at the time of signature of the courier’s delivery receipt; or (c) in the case of pre-paid first class post or recorded delivery, 11.00 am on the second Business Day after posting; or (d) in the case of airmail, 11.00 am on the fifth Business Day after posting.

22. Entire Agreement and Severability

These provisions constitute the whole agreement and understanding of the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Order. The Customer acknowledges that, in placing this Order, it has not relied on any statement, representation, assurance or warranty (whether made negligently or innocently) other than those expressly set out in the Order and these provisions. Each party agrees that all liability for and remedies in respect of any representations are excluded except as expressly provided in these provisions. Nothing in this clause shall limit or exclude any liability for fraud. If any term, provision, or portions thereof, of this Agreement shall be found to be illegal or unenforceable, then, notwithstanding, the remaining provisions of this Agreement shall remain in force and effect and such term or provision shall be deemed stricken. The parties shall agree to replace the stricken term with a term that meets with the intent of the parties’ as reflected in the stricken clause and in the absence of an agreement on a replacement clause the remainder of the agreement shall apply unchanged.

23. Rights of third parties

No term of this Order or these provisions shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by a person who is not a party to the Order, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.

24. Governing law and jurisdiction

This Order and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law without the application of rules or principles relating to conflicts of laws. The parties expressly agree to exclude the application of the UN convention on the international sale of goods. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Order or its subject matter or formation (including non-contractual disputes or claims).