Agreement for the Sale of Goods

1. Definitions and Interpretation

1.1 “Agreement” shall mean the terms and conditions set out herein.

1.2 “Hardware” means items of hardware equipment excluding Software.

1.3 “Order” means any order placed by the Customer on SEPURA specifying Product requirement and agreed by SEPURA.

1.4 “Products” shall mean Software and/or Hardware.

1.5 “Quotation” means the quotation provided by SEPURA to the Customer which incorporates these terms and conditions.

1.6 “Software” means the object code version of the software, including modifications thereto.

1.7 “Specification” means the technical specification as produced by SEPURA.

1.8 “Type Approval” means regulatory approval of Hardware and/or Software for licensing certification.

1.9 “Unit” shall mean SEPURA’s TETRA handportable or mobile excluding the battery, accessories and Software.

2. Contract

2.1 This Agreement embodies the entire legal and contractual relationship between the Parties relating to the subject matter hereof and, except in the case of any fraudulent misrepresentation made by either Party and/or save as may be expressly referred to or referenced herein, terminates, cancels and supersedes all prior representations, agreements or understandings (written or oral) with respect to this Agreement and its subject matter.

2.2 Every Order is subject to these terms and conditions of sale, which may not be modified or varied without SEPURA’s prior agreement in writing, and these terms and conditions shall replace any other conditions that may be submitted by the Customer at any time. SEPURA reserves the right to reject any Order received from the Customer.

2.3 Any descriptive material provided by SEPURA to the Customer is provided solely to assist the Customer. It does not form part of any contract and SEPURA is not legally responsible for its contents. The Customer acknowledges that it is responsible for selecting Products to achieve its required results including where in combination with other equipment or software not supplied by SEPURA.

2.4 Where this Agreement comprises more than one Order, each Order shall be regarded as a separate Agreement except where stated to the contrary.

3. Term and Validity

3.1 This Agreement shall subsist for 2 (two) years after which time it shall automatically terminate unless extended by written agreement between the Parties.

3.2 Unless otherwise stated a Quotation is valid for 30 (thirty) days from the date thereof.

3.3 In the event of any conflict between the terms of this Agreement and the terms of the Quotation, the Quotation shall take precedence to the extent of such conflict.

4. Order Process Variation and Cancellation of Orders

4.1 The Customer shall make Orders by sending a complete and duly signed purchase order to SEPURA that SEPURA will then be free to accept or reject. Notwithstanding the same, SEPURA shall use all reasonable endeavours to fulfil any Order properly made and accepted by it, and will not unreasonably reject any properly made Order    

4.2 SEPURA’s employees and/or agents are not authorised to make any representations concerning the Products unless confirmed by SEPURA in writing and signed by a duly authorised officer of SEPURA. The Customer agrees that it does not rely on any such representations that are not confirmed in writing by a duly authorised officer of SEPURA.

4.3 SEPURA will acknowledge any Order correctly made by any means that it reasonably considers appropriate.

4.4 The Customer must accompany the Order with sufficient information, including, as appropriate and necessary any licensing, engineering or other information to enable SEPURA to proceed with any of its obligations under this Agreement.

4.5 Either Party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by notice in writing if the other Party commits a breach of any obligation under this Agreement and, where such breach is capable of remedy, fails to remedy such breach within 30 (thirty) days of the date of written notice advising said Party of the breach and the action required to remedy it.

4.6 Either Party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by notice in writing if the other Party ceases or threatens to cease to carry on the whole or substantially the whole of its business.

4.7 Either Party may, without prejudice to its other rights or remedies, terminate this Agreement with immediate effect by notice in writing if an event of Force Majeure prevents either Party from performing its material obligations for more than 90 (ninety) days.

4.8 SEPURA reserves the right to terminate and/or suspend this Agreement with immediate effect and without liability in the event that the Customer and/or any member, director, partner, officer, employee, agent or sub-contractor thereof commits or is alleged to have committed any offence of corruption or bribery in contravention of any law, rule or regulation governing the conduct of either Party (“Illegal Act”).

4.9 Notwithstanding clause 4.8 above, SEPURA shall act in a reasonable and proportionate manner having regard to such matters as the gravity of, and the identity of the person performing, the Illegal Act.

5. Delivery of Products

5.1 SEPURA shall give to the Customer an estimate of the time of delivery of the Order, and the Customer acknowledges that time for delivery shall not be of the essence. The estimated delivery date advised by SEPURA shall not be binding and is indicative only unless otherwise agreed in writing for a specific Order.

5.2 Unless otherwise agreed, delivery shall be EXW, (Ex Works) Cambridge, England as defined by the International Chamber of Commerce (Incoterms) 2020.

5.3 In the event that the Customer requires delivery terms different from those contained herein, the Customer may request that SEPURA quotes a charge for such delivery terms as advised to it.  If the quote is accepted by the Customer in the manner prescribed, the quote and the delivery terms to which it relates shall form part of this Agreement and shall supersede the terms herein to the extent necessary.

5.4 The Customer shall give all necessary information to enable SEPURA to deliver the Order.  In the event that SEPURA is unable to deliver as a result of not being supplied with necessary information SEPURA shall be entitled to place the Order or part thereof into storage notwithstanding the packaging obligations below and make a reasonable charge to the Customer for the same.

5.5 Part performance of the delivery of the Order shall not entitle the Order to be terminated. SEPURA shall use all reasonable endeavours to ensure full delivery.

6. Payment Terms, Price and Invoicing

6.1 The price and delivery schedule applicable to any Order shall be as stated in the Quotation. Any variation to the Quotation shall only be valid if agreed between the Parties prior to the Order being accepted by SEPURA.

6.2 Prices are net and shall be exclusive of any local taxes or similar charges, including without limitation any sales tax, withholding tax, customs duties or any other fees, levies or imposts as may be payable on the Products from time to time. Any such charges shall be payable by the Customer.

6.3 The Customer shall pay 100% (one hundred percent) of the Order value for Orders whose value is less than £10,000 (Ten thousand pounds sterling) with the Order.

6.4 For all Orders whose value is greater than £10,000 (Ten thousand pounds sterling), all payments shall be made by Irrevocable Letter of Credit (ILOC), First Class Bank Guarantee or pre-payment. The issuing bank and wording of any ILOC shall be approved by SEPURA at its sole discretion, although such approval will not be unreasonably withheld. The ILOC will be negotiable 30 (thirty) days after delivery and have a period of validity of not less than 72 (seventy two) days from the estimated delivery date for the Products secured thereby.

6.5 Should the ILOC or Bank Guarantee not be provided and approved by SEPURA prior to SEPURA accepting the Order(s) then SEPURA shall be entitled to suspend any or all work on the Order(s), without any liability whatsoever, until such time the said ILOC or Bank Guarantee is made available and approved by SEPURA.

7. Type Approval and Interoperability

7.1 The Customer shall obtain any permit or consent from the relevant authorities that may be required to import, operate or use the Products.

7.2 TETRA networks and terminals are being continually developed and upgraded.  Therefore the Customer acknowledges that there is no guarantee that SEPURA’s TETRA terminals will inter-operate with a network or terminals supplied by any other manufacturer.  The Customer is responsible for ensuring that such interoperability has been fully tested to its satisfaction.  If the Customer requires SEPURA to participate in such interoperability demonstrations then SEPURA will provide a Quotation for this service.

8. Warranty

8.1 All non-ATEX Units shall be warranted free from defects due to faulty design, workmanship or materials for a period of 36 (thirty six) months from the date of despatch by SEPURA. All ATEX Units shall be warranted free from defects due to faulty design, workmanship or materials for a period of 24 (twenty four) months from the date of despatch by SEPURA. All other Hardware excluding batteries and consumable items shall be warranted free from defects due to faulty design, workmanship or materials for a period of 12 (twelve) months from the date of despatch from SEPURA. All batteries shall be warranted to retain at least 80% (eighty percent) of original capacity after the earlier of 12 (twelve) months or 500 (five hundred) charge cycles, subject to charging with a SEPURA approved battery charger. SEPURA shall at its option repair or replace any Product or part thereof that is found to be defective during the relevant warranty period. The Customer shall comply with any reasonable instruction given by SEPURA in carrying out its obligations.

8.2 The warranty shall not apply where any part of an Order is found defective arising from misuse, abnormal working conditions, wrongful or incorrect storage, alteration or repair of the Products without SEPURA’s prior written approval.

8.3 SEPURA does not warrant Software to be error free. In the case of defects in Software contained in an Order for which SEPURA shall be responsible under this Agreement SEPURA shall use its reasonable endeavours to correct such defects at the earliest opportunity or replace it at its option. The Customer shall provide SEPURA with any assistance it may reasonably require in the resolution of Software defects. Defect correction shall be limited to those Software defects that materially affect the performance of the Order or part of the Order and which have been discovered within a period of 12 (twelve) months from delivery.

8.4 SEPURA does not warrant the accuracy and/or reliability of data derived by the Unit’s Global Positioning System (“GPS”). The GPS accuracy statistics set out in the Specification can only be achieved under certain conditions, e.g. open space, sufficient number of satellites visible, signal levels above acceptable magnitude, etc. and as such, inaccurate data may be output by the GPS where all relevant conditions are not met. The Parties agree and acknowledge that data provided by the GPS is for reference only.

8.5 The Customer shall not rely upon any warranty (other than those stated in this Agreement) or technical statements concerning the Hardware and Software which is to be supplied under this Agreement except where such statements have been confirmed in writing and signed by a duly authorised officer of SEPURA and expressly incorporated herein.

8.6 The warranties set out in this Agreement exclude and shall be in lieu of all other conditions and warranties express, implied, statutory or otherwise in respect of the Products.

8.7 The Customer acknowledges that the Software cannot be tested in every possible permutation and accordingly SEPURA does not warrant that Software will be free of all defects or that its use will be uninterrupted.

The above warranties of the Hardware and Software shall not apply in the event that any defect derives from:

• a combination of Software and or the Hardware with any software, equipment or device not supplied or approved in writing to the Customer by SEPURA;
• any modification or customisation of the Software and/or the Hardware by or on behalf of the Customer other than by SEPURA and/or its subcontractors or with its express fully informed prior approval;
• use of the Software and/or the Hardware in contravention of the manufacturer’s instructions or use other than for its designed purpose or in inappropriate environmental conditions and/or;
• the defect in the Hardware arises as a result of modifications or interference with the Hardware carried out by any party other than SEPURA, the manufacturer or its authorised subcontractors.

8.9 Notwithstanding any other term or condition of this Agreement, the provision by SEPURA of the remedies specified in this clause 8 shall be the Customer’s sole and entire remedy in respect of the said non-conformity or defects.

8.10 The Customer shall only supply accessories, batteries and any other attachment to the Units that have been approved for use with the Units by SEPURA. SEPURA will not unreasonably withhold or delay issuing approval for any product that the Customer intends to supply for use in conjunction with the Units subject to said products complying with any relevant statutes, legislation, rules, regulations and being fit for purpose. The Customer acknowledges that any damage, fault, defect or similar arising to Products as a result of being connected to or interfaced with non-approved products may not be covered by SEPURA’s warranty.

9. Intellectual Property

9.1 All intellectual property rights, including but not limited to the right to patent, copyright, trademarks and design rights in the Hardware, Software and/or arising and created under and in connection with this Agreement shall remain vested in and/or automatically and immediately upon creation vest in SEPURA and/or its licensors.

9.2 Subject to clauses 10 and 11, and the Customer’s compliance with the Software licence, SEPURA shall indemnify the Customer in the event of infringement of any third party intellectual property right published or acquired at the date of this Agreement by the use or sale of the Hardware and/or Software against all costs and damages which the Customer incurs in any action for such infringement and or for which the Customer becomes liable in any such action provided always that SEPURA shall not be liable to indemnify the Customer in the event that:

• The Customer has failed to permit SEPURA (at SEPURA’s expense) to conduct any litigation that may ensue and all negotiations for a settlement of the claim, or
• The Customer has made any admission that is or may be prejudicial to SEPURA in respect of an alleged infringement without SEPURA’s written consent.

9.3 The Customer warrants that any design or instruction furnished or given to SEPURA by the Customer shall not cause SEPURA to infringe any third party intellectual property right in the performance of SEPURA’s obligations in accordance with this Agreement.

9.4 Save as provided in this clause, SEPURA shall not be under any liability howsoever arising in respect of any infringement or alleged infringement of third party intellectual property rights.

10. Software Licence

10.1 SEPURA hereby grants to the Customer a non-exclusive non-transferable licence to use the Software subject to compliance with this software licence and/or to sub-licence the Software supplied to the Customer by SEPURA in connection with and for the operation of the Hardware. This licence shall not be construed, deemed or interpreted as giving the Customer any proprietary right in any Software.

10.2 The Software is supplied to the Customer in object code and to the best of its knowledge SEPURA has supplied the latest version.

10.3 The Customer is not entitled, unless otherwise agreed in writing between the Customer and an authorised officer of SEPURA, to any source code (in full or in part) or documentation or other materials from which the source code or any part thereof can be derived.

• The Customer shall not in relation to the Software or any documentation associated with the same do any of the following: copy, permit to be copied, de-compile, reverse engineer, translate, modify, disassemble, place on to the internet or any intranet, publish, decode, enhance, adapt, merge or reduce the Software into source code or any other low level language (“Prohibited Acts”)
• Notwithstanding the above, the Customer may make one back-up copy of the Software and any associated documentation for security purposes only.
• In the event that SEPURA gives the Customer permission to do any of the Prohibited Acts, then the Customer shall ensure that SEPURA is named as the author and include any copyright legend or other applicable and/or relevant proprietary mark identifying SEPURA as the author/owner.
• In the event that the licence is terminated as a result of a breach by the Customer, then the Customer agrees to remove any non- licensed Software from its equipment and return, at its expense, or, if required, destroy any Software, back-up copies (to the extent that such back-up copies are no longer reasonably required by the Customer), associated documentation and information relating to the Software.

10.8 This clause applies to all copies of the Software as it applies to the original copy.

10.9 In the event that the Customer needs further advice, assistance or information to achieve interoperability not warranted under this Agreement then the Customer should contact SEPURA. If SEPURA supplies the Customer with such information then the Customer agrees that it will only use that information for the purpose of achieving interoperability. (For the purposes of this clause “interoperability” has the meaning within Section 50B of the Copyright Designs and Patents Act 1988 as incorporated by the Copyright (Computer Program) Regulations 1992).

11. Sepura’s Liability

11.1 SEPURA shall indemnify the Customer against damage to property other than the Hardware and Software and death or injury to persons to the extent caused by the negligence of SEPURA, but not otherwise, and:

• SEPURA and its insurers shall immediately be notified of any claim and shall have full power to negotiate and settle any claims and
• SEPURA’s total liability for damage to tangible property shall be limited to £1,000,000 for any one event or any series of connected events in a twelve-month period.

11.2 The Customer shall similarly indemnify SEPURA and shall maintain or procure appropriate insurance for damage to SEPURA’s property (to the same limit) and death and injury to persons to the extent caused by the negligence of the Customer or its personnel or contractors.

11.3 Save for liability for death or personal injury and without prejudice to any other provision of this clause 11,  SEPURA hereby excludes all liability whether that liability arises under or in connection with this Agreement, its negligence, any breach of contract, statutory duty or otherwise (to the fullest extent permitted by law) in respect of any loss of profit or other economic loss, indirect loss, consequential loss, special loss, loss of a chance, damage to goodwill and/or loss of or damage to any other intangible asset.

11.4 Without prejudice to any liabilities of SEPURA that may arise under clauses 11.1 and 11.3 above the Customer hereby agrees that the total aggregate liability of SEPURA to the Customer under or in connection with this Agreement shall be no more than the value of any Order or any part thereof in default.

11.5 SEPURA shall not be liable for any loss, costs, expenses and or damages arising due to or in connection with the denying or withdrawing of any permit or consent in respect of the importing, distribution, reselling or operation of the Products.

• For Units whose Specification includes the feature known as “Man Down Alarm”, the Man Down Alarm should increase the chances of incapacitated users of Units being detected. However, whilst every effort is made to ensure the reliability of the Man Down Alarm, the nature of the technology and the circumstances of use are such that SEPURA cannot warrant that it will operate effectively in all circumstances and the Parties agree that users should not entrust their safety to the Man Down Alarm. SEPURA recommends that users check that they have sufficient power back-up for the Man Down Alarm before use. The Man Down Alarm should in no way be regarded as a substitute for compliance with appropriate risk assessment and other safety procedures and practices. As such, and specifically in respect of the Man Down Alarm:

11.6.1 All warranties, conditions or other terms implied by statute or common law are excluded by this Agreement. For the avoidance of doubt, no term is to be implied as to the fitness for purpose or satisfactory quality of the Man Down Alarm.

11.6.2 To the fullest extent permitted by law, SEPURA shall not be liable for any loss resulting wholly or partly from any failure of, or reliance placed on, the Man Down Alarm, whether caused by the negligence of SEPURA or otherwise. The Customer recognises, and shall ensure that users of the Man Down Alarm recognise, that the Unit will be used in fires and other inherently dangerous situations. In these circumstances, the Customer hereby waives, and shall ensure that the users waive, any claim that might be suffered as a consequence of such situations where it might otherwise be argued that the Man Down Alarm had caused or contributed to injuries. In any event, SEPURA shall not be held liable for any act, omission, negligence or default of the user, its servants, agents or employees, including without limitation any failure to comply with appropriate safety procedures and/or SEPURA’s instructions regarding use of the Man Down Alarm.

• The Customer shall ensure that all users of the Man Down Alarm fully understand and agree to these conditions and the Customer shall take all necessary steps to ensure compliance by all users with such clauses. The Customer and all users should seek appropriate assistance should any difficulties arise in the operation of the Man Down Alarm.

11.6.4 Marketing material issued on behalf of SEPURA is intended for general guidance only. No warranty is given as to the accuracy of any such material and SEPURA shall not be liable for any loss resulting from reliance thereon.

11.7 Clause 11 represents the entire liability of SEPURA under or in connection with this Agreement and shall apply before and/or after any termination of this Agreement howsoever arising.

12. Confidentiality

12.1 During the term of this Agreement both Parties may need to disclose information about their business to the other.

12.2 The Parties agree not to disclose to any third party, save as expressly authorised or contemplated by this Agreement, or as expressly authorised by the disclosing Party in writing, any Confidential Information.

12.3 The obligations of confidentiality set out in this clause 12 shall not apply to the extent that:-

• The information enters the public domain through no fault of either Party (not as a result of a breach of this Agreement or any other confidentiality obligation with SEPURA);
• The information is obtained by a Party from a source (who itself is not in breach of an obligation of confidence) other than the disclosing Party;
• The information is independently developed by the recipient, or information that is required to be disclosed by operation of law or at the request of a competent authority;
• The information is within the other Party’s lawful possession prior to the disclosure in connection with or under this Agreement.

12.4 The obligations of confidence imposed by this clause 12 shall continue for a period of 5 (five) years after the termination of this Agreement.

12.5 Subject to Sub clause 12.1 where a Party requires to disclose information to a third party, the Party shall ensure that any such third party is bound by similar confidentiality terms no less onerous than those contained herein.

12.6 Neither Party shall use any information gained through the operation of this Agreement for any purpose other than the purpose of this Agreement.

12.7 This clause 12 shall survive expiry of termination of this Agreement.

13. Title, Risk & Insurance

13.1 Title in all Hardware shall pass to the Customer upon receipt of full payment therefor by SEPURA. Risk in the Products shall pass to the customer EXW (Ex Works) Cambridge, England in accordance with Incoterms 2010.

13.2 Title in Software and the media in which it is embodied shall not pass to the Customer in any event.

14. Force Majeure

14.1 Neither Party shall be responsible for any failure or delay in performance of its obligations under this Agreement due to any force majeure event such as, but not limited to, an Act of God, weather of exceptional severity, refusal of licence (other than as a result of any act or omission of a Party) or other Government act or omission, any act or omission of the Highways Authorities or other competent authority, war, military operations, terrorist action, riot, fire, explosion, accident, lightning damage, electromagnetic interference, radio interference, strikes, industrial dispute, lockouts, the act or omission of any party for whom a Party is not responsible or any other cause beyond its reasonable control.

15. Entire Agreement

15.1 This Agreement shall constitute the entire agreement between SEPURA and the Customer in respect of the subject matter hereof and any other terms, conditions, performance criteria, guarantees, trade practise, custom or prior representation shall be of no effect unless expressly incorporated herein.

15.2 SEPURA’s catalogue, pamphlets, general and advertising literature are intended to display the features of the Products and the information contained in such publications shall not form part of this Agreement.

16. Severance

16.1 In the event that any provision of this Agreement should be held to be invalid or unenforceable, the remaining provisions shall not be affected thereby.

17. Jurisdiction and Law

17.1 This Agreement shall be subject to English Law and is subject to the exclusive jurisdiction of the English Courts.

18. Waiver

18.1 Save unless expressly agreed between the Parties’ authorised representatives, no admission, act or omission made by either Party shall constitute a waiver or release from any obligation or liability contained herein.

19. Third Party Rights

19.1 Nothing in this Agreement confers or purports to confer any benefit on any third party or right to enforce any benefit by any third party in accordance with the Contract (Rights of Third Parties) Act 1999.

20. Survival

20.1 Rights accrued at the date of any termination of this Agreement and rights intended by their nature to survive termination shall survive any such termination of this Agreement.

21. Social Accountability

21.1 SEPURA complies with the principles of the Business Charter for Sustainable Development (published by the International Chamber of Commerce in 1991) for environmental management and shall take into consideration environmental issues in all phases of Unit development. SEPURA encourages the adoption of the principles therein by the Customer and may, where appropriate, request improvements in the Customer’s practices to ensure compliance with the said principles.

SEPURA shall inform the Customer, on request, of all materials, substances and compounds by weight and by location in the Units and provide the Customer with instructions for disassembly, re-use and end-of-life treatment of the Products and with any other information that the Customer may need based on statutory requirements.

SEPURA’s principle manufacturer of Units implements an environment management system based on the principles of the ISO14001 standard. SEPURA shall use reasonable endeavours to ensure that other subcontractors implement the same.

21.2 SEPURA is committed to ethical conduct and respect for human rights in the spirit of internationally recognised social and ethical standards, e.g. SA8000. SEPURA may monitor the ethical performance of suppliers and/or customers and will be responsive where the ethical performance of a supplier and/or customer is questioned.