This document represents pureLiFi Limited’s standard terms and conditions for the sale of standard system and/or component products to a Customer.
In these Standard Terms & Conditions, the following words shall have the following meaning:
Branding: means any mark or impression representing pureLiFi or its products and services including logos and trademarks;
Branding Guidelines: means pureLiFi’s Branding guidelines available at https://purelifi.com/Brand-Guidelines/ as updated from time to time together with any specific instructions provided to the Customer by pureLiFi;
Business Day: means a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business;
Confidential Information: means any information of a confidential nature concerning the business, affairs, customers, clients or suppliers of the other Party or of any member of its Group, including but not limited to information relating to a Party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers;
Customer: means the person, company, firm or party identified in the Purchase Order Acceptance who purchases the Products from pureLiFi under the terms and conditions of the Contract.
Delivery Type: means the type of delivery in relation to Products specified in the Purchase Order Acceptance.
Delivery Completion Time: means, unless otherwise agreed in the Purchase Order Acceptance, the time that delivery of the Products is completed in accordance with the INCOTERM applicable to the Delivery Type;
Documentation: means any documentation provided to support the use of the Products or Software including but not limited to the user guide, product brief, Specification and design guidelines that may be provided by pureLiFi in advance of a Purchase Order or along with Products;
Handover Point: means the location specified for delivery or collection (as appropriate to the Delivery Type) in the Purchase Order Acceptance;
Fees: means the fees payable by the Customer to pureLiFi for the supply of Products and Services under the Contract as set out in the Purchase Order Acceptance;
Force Majeure Event: means an event or circumstance beyond a Party’s reasonable control including without limitation:
(a) acts of God, flood, drought, earthquake or other natural disaster;
(b) epidemic or pandemic;
(c) terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations;
(d) nuclear, chemical or biological contamination or sonic boom;
(e) any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition, or failing to grant a necessary licence or consent;
(f) collapse of buildings, fire, explosion or accident;
(g) any labour or trade dispute, strikes, industrial action or lockouts (other than in each case by the Party seeking to rely on this clause, or companies in their Group);
(h) non-performance by suppliers or subcontractors (other than by companies in the Group of the Party seeking to rely on the Force Majeure Event); and
(i) interruption or failure of utility service;
Group: means, in relation to a Party, that Party, any subsidiary or holding company from time to time of that Party, and any subsidiary from time to time of a holding company of that Party;
INCOTERMS: means the international rules for the interpretation of trade terms of the International Chamber of Commerce in force at the date when the Contract is made;
Intellectual Property Rights: means patents, utility models, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world;
Party means each of pureLiFi and the Customer and together the Parties;
Product(s): means pureLiFi standard System(s) and Component(s) to be purchased by the Customer from pureLiFi under the Contract as set out in the Purchase Order Acceptance;
Purchase Order: means the Customer’s purchase order for the Products (and if applicable the Services) which shall include the relevant quote number set out in the Quotation and be signed by an authorised signatory of the Customer;
Purchase Order Acceptance: means pureLiFi’s signed acceptance of the Purchase Order;
pureLiFi: means pureLiFi Limited (registered in Scotland with company number SC394047) having its registered office at 51 Timber Bush, Edinburgh, Scotland, EH6 6QH;
Quotation: means pureLiFi’s quotation for the Products (and if applicable the Services) issued to the Customer including a description of the proposed Products, the quote number, the proposed pricing and invoicing, the period of validity of quote and the proposed delivery arrangements;
Returns Form: means pureLiFi’s standard form for return of Products from time to time;
Services: means services, such as development, integration, training or support, to be provided by pureLiFi to the Customer in connection with Products under the Contract as set out in the Purchase Order Acceptance;
Software: means computer programs licensed by pureLiFi to the Customer for use with the Products, excluding any firmware embedded in Products by pureLiFi;
Specification: means the specifications for the Products including the data sheet provided by pureLiFi, any related documentation, materials, plans and drawings, for users in respect of the Products, for the purposes of the installation, integration and/or ongoing usage and/or support of the Products, and excluding any source code, schematics or other similar documentation;
Standard Terms & Conditions: means these terms and conditions for the sale of Products;
Component(s): means any Products that are classed as functionally independent part(s) or component(s) of a System including any firmware embedded by pureLiFi;
System(s): means any Products that are classed as a standard system product of pureLiFi, comprising a collection of Components (and any other elements or parts) organised together to perform a function including any firmware embedded by pureLiFi;
Warranty: means the warranty provided by pureLiFi to the Customer in respect of the Products supplied under the terms of the Contract; and
Warranty Period: means:
(a) where the Product is a System, a period of twelve (12) months from the Delivery Completion Time; and
(b) where the Product is a Component, provided that the Component remains unopened in the original packaging in which it was supplied by pureLiFi and is not used, modified or integrated in any way, a period of twelve (12) months from the Delivery Completion Time.
1.2 A reference to a statute or statutory provision is a reference to such statute or provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted.
1.3 Any phrase introduced by the terms including, include, in particular, or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
1.4 A reference to writing or written includes faxes and emails.
2. BASIS OF CONTRACT
2.1 The Contract shall comprise of the following documents:
(a) The Purchase Order Acceptance;
(b) Any specifications, schedules or annexes attached to the Purchase Order Acceptance including any schedule of agreed amendments;
(c) These Standard Terms & Conditions;
(d) where Systems are being purchased, the Branding Guidelines; and
(e) The Purchase Order.
2.2 If there is any conflict or ambiguity between the documents listed in clause 2.1, a term contained in a document higher in the list shall take precedence over one in a document lower in the list.
2.3 Products are for commercial use only and not intended for personal or consumer use. The Standard Terms & Conditions are for commercial (B2B) transactions only. The parties intend to establish a relationship of buyer and seller and as such are independent contractors with neither Party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other.
2.4 The Standard Terms & Conditions apply to the Contract to the exclusion of any other terms and conditions that the Customer refers to or seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Customer waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Customer that are inconsistent with these Standard Terms & Conditions.
2.5 The Quotation shall not constitute an offer and shall not form part of the Contract. Quotations shall be valid for the period of time stated in the Quotation failing which a period of thirty (30) Business Days from its date of issue shall apply. Any samples, drawings, descriptive matter or advertising produced by pureLiFi are produced for the sole purpose of giving an approximate idea of the Products and shall not form part of the Contract.
2.6 The Purchase Order constitutes an offer by the Customer to purchase the Products in accordance with these Standard Terms & Conditions. The Customer is responsible for ensuring that the terms of the Purchase Order and any applicable Specification are complete and accurate and sufficient for its purpose. The Customer is responsible for ensuring that the Purchase Order is signed by a representative who has the necessary authority to commit the Customer to the contractual and legal obligations set out and linked to the Contract.
2.7 Purchase Orders shall only be deemed to be accepted when pureLiFi issues a written Purchase Order Acceptance, signed by an authorised signatory. pureLiFi may accept or reject any Purchase Order at pureLiFi’s sole discretion.
3A. CUSTOMER OBLIGATIONS – GENERAL
3A.1 The Customer shall at its own expense comply with all laws and regulations relating to its activities under the Contract, as they may change from time to time, and with any conditions binding on it in any applicable licences, registrations, permits and approvals.
3A.2 The Customer shall ensure that it has legally compliant company policies in place including but not limited to ethics, anti-bribery, anti-corruption, data protection and privacy, conflict, anti-slavery and export control and that it ensures that its employees comply with such policies.
3B. CUSTOMER OBLIGATIONS – USE OF PRODUCTS
3B.1 The Customer will not copy, translate, adapt, vary, modify, disassemble, decompile or reverse engineer the Products or create derivative works of the same for any purpose (including error correction or any other type of maintenance) without pureLiFi’s prior written consent.
3B.2 The Customer will not use (or allow the use of) Products for or as part of in human implantation or in systems or applications where malfunction could lead to personal injury, death or catastrophic property or environmental damage. Any use of the Products by the Customer for such purposes is at the Customer’s own risk.
3B.3 Unless government authorisations are obtained in advance, the Customer will not use (or allow the use of) Products: (i) for a military end use; or (ii) for the design, development, fabrication, or use of nuclear, chemical, or biological weapons or missile technology.
3B.4 The Customer shall indemnify pureLiFi against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect and consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other expenses and professional costs suffered or incurred by pureLiFi arising out of or in connection with any infringement by the Customer (their employee, agent or subcontractor) of this clause 3B (Customer Obligations – Use of Products).
3C. CUSTOMER OBLIGATIONS – USE OF SYSTEMS
3C.1 Other than as agreed by pureLiFi in a Purchase Order Acceptance, the Customer will not sell, license, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer the System.
3C.2 The Customer shall indemnify pureLiFi against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect and consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other expenses and professional costs suffered or incurred by pureLiFi arising out of or in connection with any infringement by the Customer (their employee, agent or subcontractor) of this clause 3C (Customer Obligations – Use of Systems).
3D. CUSTOMER OBLIGATIONS – USE OF COMPONENTS
3D.1 The Customer shall only use Components as an integrated component in its own applications or products. The Customer will not sell, license, lease, rent, loan, lend, transmit, network, or otherwise distribute or transfer a Component as an unintegrated standalone item.
3D.2 The Customer is solely responsible for the design, validation, and testing of its applications or products that include any Components as well as for compliance with all legal, regulatory, and safety-related requirements concerning its applications or products that include the Components.
3D.3 In relation to the use of any Components within its own application or products, the Customer shall ensure that it:
(a) complies with industry best practice;
(b) conducts appropriate and adequate qualification tests on actual applications taking into account possible environmental and other conditions that the Customer’s application may encounter;
(c) has all the necessary expertise to create and implement safeguards that anticipate
dangerous consequences of failures, monitor failures and their consequences, and lessen the likelihood of failures that might cause harm, and to take appropriate remedial actions; and
(d) prior to using or distributing any systems that include Components, the Customer will thoroughly test such systems and the functionality of such Components as used in such systems.
3D.4 The Customer shall indemnify pureLiFi against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect and consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other expenses and professional costs suffered or incurred by pureLiFi arising out of or in connection with any infringement by the Customer (their employee, agent or subcontractor) of this clause 3D (Customer Obligations – Use of Components).
3D.5 Industry Standards. Unless pureLiFi has explicitly designated an individual Component as meeting the requirements of a particular industry standard (e.g., ISO 9001, IATF 16949, ISO 26262, etc.), pureLiFi is not responsible for any failure to meet such industry standard requirements.
3D.6 Safety Requirements. Where pureLiFi specifically promotes Components as facilitating or demonstrating functional safety features or as compliant with industry functional safety standards, such Components are intended to help enable Customers to design and create their own applications that meet applicable functional safety standards and requirements. Using Components in an application does not by itself establish any safety features in the application. The Customer must ensure compliance with safety-related requirements and standards applicable to its applications.
3D.7 Specifically Designated Qualification. pureLiFi may expressly designate certain Components as completing a particular qualification. The Customer agrees that it has the necessary expertise to select the Component with the appropriate qualification designation for its applications, and that proper Component selection is at the Customer’s own risk. The Customer is solely responsible for compliance with all legal and regulatory requirements in connection with such selection.
4A.1 The Customer shall name pureLiFi as its LiFi technology provider in all press releases and any other editorial content, including but not limited to blog posts relating to the launches, demonstrations, case studies or news, relating to or in connection with the Products.
4A.2 The parties agree that pureLiFi shall be provided with a reasonable period of notice (and in any event, at period of at least two calendar weeks) to approve, decline or amend any press releases, advertorials and miscellaneous advertisements relating to the Products. The pureLiFi information must be included in all editors’ notes in any launch press releases along with contact details for pureLiFi’s marketing and communications representative, as notified by pureLiFi to the Customer from time to time. The Customer shall include any quotes provided by pureLiFi in any launch press releases as directed by pureLiFi from time to time. Press releases shall not be publicised without the prior written consent of the Customer.
4A.3 The Customer shall not:
(a) tamper with any markings or name plates or other indication of the source of origin of the Products which may be placed by pureLiFi on the Products;
(b) add any additional marking, remove or amend any marking placed on pureLiFi products by pureLiFi;
(c) use any advertising, promotional or selling materials in relation to the Branding, except those supplied or approved by the Branding Guidelines or by pureLiFi; or
(d) use any name or mark similar to or capable of being confused with the Branding nor modify any of the Branding in any way nor use the Branding or any derivation of them otherwise than is permitted by the Contract.
4B. SYSTEMS – BRANDING & BRANDING GUIDELINES
4B.1 In relation to Products that are System(s), the Customer agrees to comply with the Branding Guidelines and include Branding and any legal notices required by the Branding Guidelines and subject to clause 4B.2, the Customer shall place the Branding:
(a) on all packaging and documentation (whether in print or in digital format) relating to the Products;
(b) on all digital and print marketing including on any website pages relating to the Products; and
(c) in a location visible to the audience as set out in the Branding Guidelines at any events and tradeshows that Customer attends and at which the Products are marketed.
4B.2 In the event that any Branding is used by the Customer on any packaging in connection with this or associated contracts or relating to the Products, Customer requires prior written authorisation from pureLiFi on the use and placement of the Branding before such packaging is produced.
4C.1 The Customer will not make copies of Documentation save that it may make a reasonable number of copies of such but only to the extent and for the duration that is reasonable for back-up, archival, and training purposes.
4C.2 The Customer may translate the Documentation at its expense into a local language and hereby assigns to pureLiFi ownership of all resulting copyright and other intellectual property rights in such translated materials. The Customer is responsible for ensuring the accuracy of translations. pureLiFi reserves the right to review and approve any translated version which the Customer has prepared prior to publication or distribution.
5. PURELIFI’S OBLIGATIONS
5.1 pureLiFi will supply the Products as described in the Purchase Order Acceptance and any attached Specification or other schedule/annex. pureLiFi reserves the right to amend the Specification at any time provided such changes do not materially change the nature, installation, performance, quality or price of the Products or if required by any applicable statutory or regulatory requirements. Such changes shall not invalidate any Purchase Order placed with pureLiFi prior to the changes being implemented or render pureLiFi liable to the Customer in any way.
5.2 Where agreed in a Purchase Order Acceptance by pureLiFi, Services and/or Software will be provided by pureLiFi in addition to the Products. pureLiFi will use reasonable endeavours to provide any agreed deliverables in accordance with agreed delivery schedule but time shall not be of the essence.
5.3 pureLiFi will:
(a) carry out all its obligations under the Contract using all due care and diligence and good industry practice;
(b) only use personnel who are suitably skilled to perform the tasks assigned to them and in sufficient number to ensure that pureLiFi’s obligations are met; and
(c) comply with any applicable laws and ensure that it maintains all consents, licences and permissions it may require and which are necessary to enable pureLiFi to carry out its obligations under the Contract.
6A. DELIVERY – GENERAL
6A.1 The responsibilities and costs associated with packing, loading, transporting, collecting, unloading and onward transport of the Products will be in accordance with the INCOTERM applying to the Delivery Type, unless otherwise agreed in the Purchase Order Acceptance.
6A.2 The responsibilities and costs associated with legal compliance, any arrangements and documentation for exportation and importation of the Products will be in accordance with the INCOTERM applying to the Delivery Type, unless otherwise agreed in the Purchase Order Acceptance.
6A.3 The Customer will acknowledge collection or delivery (as appropriate to the INCOTERM or as otherwise agreed in the Purchase Order Acceptance) of the Products from/to the Handover Point, however lack of acknowledgement shall not prevent completion of delivery and transfer of risk in accordance with clause 8.1.
6A.4 Acceptance of any change to the Handover Point requested by the Customer shall be at pureLiFi’s sole discretion and the Customer shall be liable for any additional expenses incurred by pureLiFi as a result of such change.
6A.5 pureLiFi shall use reasonable endeavours to meet any proposed date or times for delivery set out in the Purchase Order Acceptance or otherwise in writing, however any dates or times quoted for delivery are approximate only, and the time of delivery is not of the essence. pureLiFi shall not be liable for any delay or failure in delivery .
6.A.6 pureLiFi may deliver the Products by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
6A.7 A request for Purchase Order cancellation, postponement, delivery rescheduling or return of Products must be made in writing (stating the reason for the request). At all times, whether such a request is accepted, is entirely at the sole discretion of pureLiFi. pureLiFi reserves the right to invoice the Customer for, and the Customer shall be liable to pay pureLiFi’s associated costs and losses incurred as a result of such request.
6A.8 If pureLiFi requires the Customer to return any packaging materials to pureLiFi, that fact shall be clearly stated on the delivery note. The Customer shall make any such packaging materials available for collection at such times as pureLiFi shall reasonably request. Returns of packaging materials shall be at pureLiFi’s expense.
6B. DELIVERY – COMPLIANCE WITH LAWS AND EXPORT CONTROL
6B.1 The Customer shall comply with all applicable exchange controls, customs matters, control or export laws, regulations and orders, trade and financial sanctions and embargoes and shall not by any means or method export, re-export, resell, ship or divert or cause to be exported, re-exported, resold, shipped or diverted, directly or indirectly, any Products, Software or technology of pureLiFi except as permitted by and in accordance with applicable laws and regulations.
6B.2 Exports, re-exports, and transfers of Products or Software may be subject to export controls and sanctions as well as to other applicable national or international export control laws and regulations. The Customer acknowledges and agrees that Products or Software may not be exported, re-exported, sold or transferred to embargoed, sanctioned, or restricted destinations, persons, or entities without first obtaining any necessary governmental authorisation.
6B.3 If the delivery of Products or Software is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, pureLiFi may suspend its obligations and the Customer’s rights regarding such delivery until such license is granted or for the duration of such restriction and/or prohibition, respectively, and pureLiFi may terminate this Contract in relation to such Products or Software, without incurring any liability towards the Customer.
6B.4 If an end-user statement is required, pureLiFi will inform the Customer immediately and the Customer shall provide pureLiFi with required documentation upon pureLiFi’s written request. Customer shall inform pureLiFi immediately if an import license is required, and the Customer shall provide pureLiFi with the applicable document as soon as it is available. By entering into the Contract and/or accepting any Products or Software, the Customer agrees that it will not deal with the Products or Software, and/or Documentation related thereto in violation of any applicable export or import control laws and regulations.
6B.5 The Customer will indemnify and hold pureLiFi (including its agents and representatives) harmless against any damages, costs, losses, and/or liabilities arising out of any Customer non-compliance with this clause 6B. If any required authorisation cannot be obtained, or in the event the Customer breaches this clause 6B, pureLiFi may terminate, cancel, or otherwise be excused from any obligations that it may have under the Contract.
6B.6 This clause 6B will survive any termination or expiration of the Contract.
7.1 pureLiFi warrants that at the Delivery Completion Time, and for the duration of the Warranty Period, the Products shall conform in all material respects with any Specification published and applicable at the date of delivery. pureLIfi does not warrant firmware or Software. For the avoidance of doubt the Warranty shall cease should the Product go beyond the Customer in the supply chain. For the avoidance of doubt, where the Product is a Component, the Warranty shall cease should the Customer remove the Product from the original packaging in which it was provided by pureLiFi and/or use, modify or integrate such Component in any way.
7.2 pureLiFi does not warrant that the functions of the Products will meet any particular requirements or that their operation will be entirely error-free or that all program defects are capable of correction or improvement. All other warranties including any implied warranties of merchantability, satisfactory quality or fitness for purpose or ability to achieve a particular result are hereby excluded. In the absence of fraud, no oral or written information or advice given by pureLiFi or its agents or licensees shall create a warranty or give rise to any other liability other than is given in the Contract. Any Product classifications are for pureLiFi convenience only and shall not be construed as a representation or warranty of any kind.
7.3 pureLiFi itself does not warrant third party products. Where pureLiFi supplies third party hardware, pureLiFi will use reasonable endeavours to pass on to the Customer the benefit of any third party warranty which will usually be supplied by a third party manufacturer as specified in the documentation provided with the third party products.
7.4 Where the Customer during the Warranty Period believes that some or all of the Products do not comply with the Warranty, the following shall apply:
(a) The Customer shall provide notice in writing to pureLiFi within a reasonable time of discovery (which shall be no more than seven (7) days from initial discovery) that it believes that some or all of the Products do not comply with the Warranty;
(b) the Parties shall co-operate in technical troubleshooting to establish whether there is a potential problem;
(c) if it is agreed by pureLiFi that there is a potential problem with the Product via technical trouble shooting that warrants further inspection and investigation, pureLiFi will allocate a return merchandise authorisation (RMA) number to the Customer and provide the Customer with a Returns Form;
(d) Only after allocation of a RMA number and provision of a Returns Form, the Customer will return the Product for further inspection, together with a completed Returns Form, the RMA number to pureLiFi’s place of business at pureLiFi’s cost (which shall be recharged to the Customer should it be found that there is no breach of Warranty); and
(e) pureLiFi will then be given a reasonable opportunity of examining and investigation of such Products.
7.5 Subject to clause 7.6, if the process set out in clause 7.4 is followed and the Products are found by pureLiFi to fail to comply with the Warranty, pureLiFi shall, at its option, repair or replace the defective Products.
7.6 pureLiFi shall not be liable for failure to comply with the Warranty in any of the following events:
(a) The Customer makes any further use of such Products after notice has been given in accordance with clause 7.4(a);
(b) the defect arises because the Customer failed to follow the instructions provided by pureLiFi as to the storage, commissioning, installation, use and maintenance, handling and repair of the Products;
(c) the defect arises as a result of pureLiFi following any drawing, design or specification supplied by the Customer;
(d) The Customer, or an unauthorised third party, alters or repairs such Products without the written consent of pureLiFi;
(e) the defect arises due to abnormal physical or electrical stress, accident, usage outside recommended use, wilful damage, misuse, negligence, or abnormal storage or working conditions; or
(f) the Products differ from their specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
7.7 Except as provided in this clause 7, pureLiFi shall have no liability to the Customer in respect of failure to comply with the Warranty and to the fullest extent permitted by law, all other warranties, conditions and other terms are hereby disclaimed and excluded.
7.8 The Customer agrees that its sole remedy in respect of any non-conformance with the Warranty is that pureLiFi will remedy such non-conformance and if in pureLiFi’s reasonable opinion, it is unable to remedy such non-conformance pureLiFi will accept return of the Product and refund the relevant Fees, if paid and on a depreciated basis.
7.9 The conditions implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
7.10 For the avoidance of doubt, only the remainder of the Warranty Period that would have applied to the originally supplied Products shall apply to any repaired or replacement Product(s) supplied by pureLiFi.
7.11 pureLiFi’s decision as to whether the Products comply with the Warranty shall be final.
8. TITLE AND RISK
8.1 Risk in the Products shall pass to the Customer at the Delivery Completion Time.
8.2 All Products shall remain the sole and absolute property of pureLiFi until the Customer has paid the applicable Fees in full. Title in the Products shall not pass to the Customer until pureLiFi receives payment in full (in cash or cleared funds) of the applicable Fees.
8.3 Until title has passed to the Customer, the Customer shall:
(a) store the Products separately from all other items held by the Customer so that they remain readily identifiable as pureLiFi’s property;
(b) not remove, deface or obscure any identifying mark or packaging on or relating to the Products and/or Software;
(c) maintain the Products and/or Software and any deliverables provided as part of Services in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(d) notify pureLiFi immediately if it becomes subject to any of the events listed in clause 10.2; and
(e) give pureLiFi access to and such information relating to the Products and any deliverables provided as part of Services as pureLiFi may require from time to time.
9. FEES AND PAYMENT
9.1 The Fees payable by the Customer to pureLiFi shall be set out in the Purchase Order Acceptance.
9.2 pureLiFi may, by giving notice to the Customer at any time before delivery of the Products, Services or Software, increase the Fees, to reflect any increase in the cost that is due to:
(a) any factor beyond pureLiFi’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs); or
(b) any request by the Customer to change the delivery date(s), quantities or types described or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give pureLiFi adequate or accurate information or instructions.
9.3 Fees in relation to Services are on a time and materials basis at pureLiFi’s then current hourly rates or at rates mutually agreed to in writing. pureLiFi will generally invoice the Customer on or after the date of performance of the relevant Services.
(a) exclude amounts in respect of value added tax (VAT) or other applicable taxes, which the Customer shall additionally be liable to pay to pureLiFi at the prevailing rate, subject to the receipt of a valid VAT invoice; and
(b) exclude the costs and charges of duty, insurance, shipment and transport of the Products, which shall be invoiced to the Customer.
9.4 pureLiFi will invoice the Customer for the Fees and any other amounts due in accordance with the invoicing arrangements set out in the Purchase Order Acceptance. PureLiFi may raise more than one invoice in respect of any Contract.
9.5 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 by pureLiFi. Time of payment is of the essence.
9.6 The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). pureLiFi may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by pureLiFi to the Customer.
9.7 If the Customer fails to make any payment due to pureLiFi under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of five (5) % per annum above the base rate from time to time of Barclays Bank Plc. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
9.8 pureLiFi shall be entitled to refuse delivery of any further Products, Software or Services to the Customer until such time as any outstanding payments are received, without incurring any liability to the Customer.
9.9 Where the Customer has previously delayed or defaulted on payment of an invoice to pureLiFi or pureLiFi has reasonable grounds to expect that the Customer will delay on a future payment of an invoice, pureLiFi reserves the right to invoice and require payment in advance of delivery.
10. TERMINATION AND SUSPENSION
10.1 Without limiting its other rights and remedies, pureLiFi may terminate the Contract for any reason or no reason by giving the Customer thirty (30) days written notice.
(a) fails to pay any amount due under the Contract on the due date for payment and remains in default not less than fourteen (14) days after being notified in writing to make such payment;
(b) commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within thirty (30) days of the Customer being notified in writing to do so;
(c) takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
(d) suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business or the Customer’s financial position deteriorates to such an extent that in pureLiFi’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
11. CONSEQUENCES OF TERMINATION
11.1 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to pureLiFi all outstanding unpaid invoices and interest; and
(b) if relevant, each Party shall promptly deliver to the other Party all documents and materials containing all Confidential Information of the other Party or at the other Party’s request and option, destroy them and provide evidence of their destruction.
11.2 Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of the Contract that existed at or before the date of termination.
11.3 Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
12. CHANGE EVENTS
12.1 In this clause 12, the following words shall have the following meaning:
Trigger Event: means any of the following events:
- : a change in the legal requirements or a new requirement to comply with any existing law or existing law ceasing to apply to a Party;
- : the imposition of, a change to, or cessation of, a duty, tax, tariff or levy imposed on imports or exports of the Products, Software and/or Services or any materials or components used to produce the Products, Software and/or Services;
- : the loss of, a change to, or the imposition of a new requirement for any licence or consent required to perform the Contract;
- : a change of at least 10% to the rate of exchange of Sterling published by the Bank of England against the currency in which the Fees are agreed; or
- : a change to the business or economic environment in which a Party operates not covered by (a) to (d) above.
Adverse Impact: means:
12.2 If at any time during the term of the Contract, a Trigger Event occurs which has or is likely to have an adverse impact on a Party, pureLiFi may require the Customer to negotiate an amendment to the Contract to alleviate the Adverse Impact as follows:
(a) pureLiFi shall notify the Customer giving reasonable details about the relevant Trigger Event and Adverse Impact;
(b) the Parties shall discuss the situation within five (5) Business Days of the Customer receiving the notice under clause 12.2(a) above with a view to agreeing in good faith appropriate amendments to the Contract;
(c) any agreed amendments shall be recorded in accordance with clause 18.5.
12.3 If the Parties fail to agree amendments to the Contract within twenty (20) Business Days of the Customer receiving the notice under clause 12.2(a) above then pureLiFi may by written notice immediately terminate the Contract, without affecting any other right or remedy and without liability to the Customer.
13. LIMITATION OF LIABILITY
13.1 Nothing in the Contract shall limit or exclude either Party’s liability for:
(a) death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
(b) fraud or fraudulent misrepresentation;
(c) breach of the terms implied by section 12 of the Sale of Products Act 1979; or
(d) any matter in respect of which it would be unlawful to exclude or restrict liability.
13.2 Subject to clause 13.1, pureLiFi shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or revenue; loss of use or goodwill; or indirect or consequential loss arising under or in connection with the Contract even if pureLiFi was advised of the possibility of such loss.
13.3 Subject to clauses 13.1 and 13.2, pureLiFi’s total liability to the Customer in respect of all breaches occurring under the Contract shall in no circumstances exceed an amount equal to the total Fees paid to pureLiFi by the Customer under the Contract.
14A. INTELLECTUAL PROPERTY RIGHTS
14A.1 The Customer is granted no rights under the Contract except as expressly stated. pureLiFi owns and will continue to own all worldwide right, title and interest in its Intellectual Property Rights and its other rights, title and interest in and to the Products, Software, Documentation, Services (and any deliverables and materials created during the performance of or resulting from the Services), and Branding. Nothing in this Contract shall be construed as its conveying or transferring any ownership or proprietary interest in any Intellectual Property Rights in the Products, Software, Documentation, Services (and any deliverables and materials created during the performance of or resulting from the Services) or Branding to the Customer or any other party.
14A.2 The Customer undertakes:
(a) not to cause or permit anything which may damage or endanger pureLiFi’s Intellectual Property Rights or pureLiFi’s title to them or assist or allow others to do so;
(b) to notify pureLiFi of any actual, threatened or suspected infringement (to the extent reasonable based on available information) of pureLiFi’s Intellectual Property Rights;
(c) to notify pureLiFi of any claim by any third party that the Products or Software infringe any Intellectual Property Rights of any third party;
(d) to take such reasonable action as pureLiFi may direct at the expense of pureLiFi in relation to such infringement;
(e) to affix such notices to the Products or Software or their packaging or advertising as pureLiFi may be legally or statutorily required to do; and
(f) on the expiry or termination of the Contract not to use the Intellectual Property Rights save for any Products or Software already purchased under the terms of the Contract.
14A.3 pureLiFi asserts its full rights to control the use of its trademarks and any reputation in any trade marks affixed or applied to the Products or Software shall accrue to the sole benefit of pureLiFi or any other owner of the trade marks from time to time. The Customer shall not use (other than pursuant to this Contract) or seek to register any trade mark or trade name (including any company name) which is identical to, confusingly similar to or incorporates any trade mark or trade name which pureLiFi owns or claims rights in anywhere in the world.
14A.4 The Customer shall indemnify pureLiFi against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect and consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other expenses and professional costs suffered or incurred by pureLiFi arising out of or in connection with any infringement by the Customer (their employee, agent or subcontractor) of pureLiFi (or its licensors) Intellectual Property Rights.
14B. SOFTWARE LICENCE
14B.1 To the extent that firmware is embedded in a Product, the sale of the Product shall not constitute the transfer of ownership rights or title in the firmware and all references to “sale” or “sold” of any firmware shall be deemed to mean a licence from pureLiFi to the Customer to use the firmware with the Product.
14B.2 Software is licensed and not sold by pureLiFi.In consideration of the Fees paid by the Customer to pureLiFi, pureLiFi grants to the Customer a non-exclusive, non-transferable licence to use internally and distribute Software in machine-readable form, only in combination with or as part of the Product for which the Software has been provided and only one copy for each unit of Product. No rights or licenses with respect to any Software source code are granted to the Customer. The Customer will maintain in original and reproduce on copies, all of pureLiFi’s (or its licensor’s) copyright notices and other proprietary legends in the Software, and related documentation.
14B.3 With respect to Software and firmware, the Customer is not authorised to and agrees that it will not:
(a) reverse engineer, decompile, decrypt, disassemble or otherwise attempt to derive the source code, ideas, technology or algorithms, except to the extent expressly authorized by applicable law;
(b) modify or create derivative works;
(c) remove or alter any proprietary markings or notices;
(d) merge, link or incorporate Software or firmware into any other software; or
(e) attempt to create or modify its patents or patent applications based on Software or firmware.
14B.4 If the Customer creates any modifications or derivative works of all or a portion of Software or firmware, the Customer shall grant an irrevocable, worldwide, and perpetual license to pureLiFi to make, have made, use, sell, import, commercialise, sublicense and reproduce such modifications or derivative works without any payment to the Customer.
14B.5 The Customer’s rights under this Contract are conditional upon the Customer not performing any actions that may require any Software or firmware or any derivative works of the Software or firmware, to be licensed under open source software license terms that may, for example, require disclosing source code, granting a license under intellectual property rights, such as granting a permission to develop derivative works, or granting other rights or assuming responsibilities commonly associated with open source software.
14B.6 The Customer shall indemnify pureLiFi against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect and consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other expenses and professional costs suffered or incurred by pureLiFi arising out of or in connection with any infringement by the Customer (their employee, agent or subcontractor) of this clause 14B or the licences granted hereunder.
16.1 Each Party undertakes that, except as permitted by clause 16.2 or 16.3, it shall not at any time, disclose to any person any Confidential Information and that it shall at all times:
(a) keep all Confidential Information secure and strictly confidential;
(b) use such Confidential Information only for the purposes of exercising rights and performing obligations under or in connection with the Contract;
(c) not disclose the Confidential Information to any third party; and
(d) inform the disclosing Party immediately upon discovery of any loss or unauthorised access or disclosure and take all reasonable steps to recover such Confidential Information.
16.2 The Customer may disclose pureLiFi’s Confidential Information to its officers, employees, consultants or advisers who need to know such information for the purposes of exercising the Customer’s rights or carrying out its obligations under or in connection with the Contract or as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.3 pureLiFi may disclose the Customer’s Confidential Information to its (or its Group’s) officers, employees, consultants or advisers who need to know such information for the purposes of exercising pureLiFi’s rights or carrying out its obligations under or in connection with the Contract or as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
16.4 Each Party shall ensure that those persons to whom it discloses the other Party’s Confidential Information under clause 16.2 or 16.3 above comply with this clause 16.
16.5 The undertakings in clause 16.1 do not apply to any information that:
(a) was already in the possession of the receiving Party on the Purchase Order Acceptance date;
(b) is independently developed or generated by the receiving Party, without reference to any information provided by or otherwise obtained from the disclosing Party;
(c) is, or has been, provided to the receiving Party by a third party who was free of any restriction or obligation as to its use or disclosure at the time of such provision;
(d) is in the public domain at the Purchase Order Acceptance date or subsequently comes into the public domain (otherwise than in breach of the Contract); or
(e) is required to be disclosed by any regulatory authority, stock exchange or governmental body.
16.6 The Customer shall indemnify pureLiFi against all liabilities, costs, expenses, damages and losses (including but not limited to any direct, indirect amd consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all and other expenses and professional costs suffered or incurred by pureLiFi arising out of or in connection with any infringement by the Customer (their employee, agent or subcontractor) of this clause 16 (Confidential Information).
17. DISPUTE RESOLUTION
17.1 The Parties will use their best efforts to negotiate in good faith and settle any dispute that may arise out of or relate to this Contract or any breach of it.
17.2 If any such dispute cannot be settled amicably through ordinary negotiations between the parties, or either or both is or are unwilling to engage in this process, either Party may propose to the other in writing that structured negotiations be entered into with the assistance of a mediator fully accredited under the rules of the International Chamber of Commerce (ICC) before resorting to litigation.
17.3 Within fourteen (14) days of the appointment of the mediator by the ICC in accordance with their mediation procedure, the Parties will meet with the mediator to agree the procedure to be adopted for the mediation, unless otherwise agreed between the Parties and the mediator.
17.4 All negotiations connected with the relevant dispute(s) will be conducted in confidence and without prejudice to the rights of the Parties in any further proceedings.
17.5 If the Parties agree on a resolution of the dispute at mediation, the agreement shall be reduced to writing and, once signed by the duly authorised representatives of both Parties, shall be final and binding on them.
17.6 If the Parties fail to resolve the dispute(s) within sixty (60) days (or such longer term as may be agreed between the parties) of the mediator being appointed, or if either Party withdraws from the mediation procedure, then either Party may exercise any right to seek a remedy through arbitration by an arbitrator to be appointed by the International Chamber of Commerce the rules of the ICC arbitration scheme.
17.7 Any dispute shall not affect the Parties’ ongoing obligations under the Contract.
17.8 The commencement of mediation or arbitration shall not prevent the Parties commencing or continuing court proceedings in relation to the dispute.
18.1 Force majeure: Neither Party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for three (3) months, the Party not affected may terminate this Contract by giving thirty (30) days’ written notice to the affected Party.
18.2 Assignment and other dealings: pureLiFi may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under the Contract without the prior written consent of pureLiFi.
18.3 Entire agreement: The Contract constitutes the entire agreement between the Parties in relation to the Products supplier under the Purchase Order Acceptance and supersedes and extinguishes all previous agreements, promises, assurances, representations, warranties and understandings between them, whether written or oral, relating to the same supply of Products.
18.4 No warranty: Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Contract. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Contract.
18.5 Variation: pureLiFi reserves the right to modify these Standard Terms & Conditions at any time. Modifications shall have effect on all Contracts referring to the modified Standard Terms & Conditions from the date of the relevant Purchase Order Acceptance.
19.6 Waiver: A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy; nor prevent or restrict the further exercise of that or any other right or remedy.
18.7 Severance: If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
18.8 Notices: All notices to be given under this Contract shall be in writing and shall be deemed delivered upon hand delivery, confirmed delivery by a delivery services such as UPS, FedEx, or DHL, or three (3) days after deposit in the mail of the home country of the Party, postage prepaid, by certified, registered, first class or equivalent mail, addressed to the parties at their addresses set forth on the Purchase Order and Purchase Order Acceptance or at 9am on the next Business Day after transmission by email addressed to such address as that Party may have specified to the other Party in writing.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
18.9 Third party rights. No one other than a Party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
18.11 Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
18.12 Jurisdiction. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.