Marine Rescue Technologies Sea Marshall AU9, User Manual

Page: 35 / 44

Sea Marshall AU9 User Manual v2.8
MRT Ltd. © 2014
35
8 Risk and Property
(a) The Equipment shall be at the risk of the Supplier until
delivery to the Customer. The Supplier shall off-load the
Equipment at the Customer's risk.
(b) Ownership of the Equipment shall pass to the Customer on
the later of completion of delivery (including without limitation
off-loading), or when the Supplier has received in full in cleared
funds all sums due to it in respect of:
(i) the Equipment; and
(ii) all other sums which are or become due to the Supplier from
the Customer on any account.
(c) Until ownership of the Equipment has passed to the Customer
under clause 8(b), the Customer shall:
(i) hold the Equipment on a fiduciary basis as the Supplier's
bailee;
(ii) store the Equipment (at no cost to the Supplier) in satisfactory
conditions and separately from all the Customer's other
equipment or that of a third party, so that it remains readily
identifiable as the Supplier's property;
(iii) not destroy, deface or obscure any identifying mark or
packaging on or relating to the Equipment; and
(iv) keep the Equipment insured on the Supplier's behalf for its full
price against all risks with a reputable insurer, ensure that the
Supplier's interest in the Equipment is noted on the policy, and
hold the proceeds of such insurance on trust for the Supplier and
not mix them with any other money, nor pay the proceeds into an
overdrawn bank account.
(d) The Customer's right to possession of the Equipment before
ownership has passed to it shall terminate immediately if any of the
circumstances set out in clause 17 arise or if the Customer
encumbers or in any way charges the Equipment, or if the
Customer fails to make any payment to the Supplier on the due
date.
(e) The Customer grants the Supplier, its agents and employees
an irrevocable licence at any time to enter any premises where the
Equipment is or may be stored in order to inspect it, or where the
Customer's right to possession has terminated, to remove it. All
costs incurred by the Supplier in repossessing the Equipment shall
be borne by the Customer.
(f) On termination of the Contract for any reason, the Supplier's
(but not the Customer's) rights in this clause 8 shall remain in
effect.
(g) The Supplier may appropriate payments by the Customer to
such Equipment as it thinks fit, notwithstanding any purported
appropriation by the Customer to the contrary.
9 Inspection and Testing of Equipment
The Supplier shall:
(i) test and inspect the Equipment on delivery to ensure that it
complies with the requirements of the Contract; and
(ii) if so requested by the Customer, give the Customer
reasonable advance notice of such tests (which the Customer shall
be entitled to attend).
10 Software Licence
(a) If the Supplier refers to a software licence in its
acknowledgement of order, the price of the Equipment includes
the licence fee for the Customer's right to use the Software.
(b) If the Customer is provided with any operating system
software licence in respect of the Software, the Customer shall sign
and return it to the Supplier within seven days of installation of the
software, unless the licence has been supplied on a "shrink-wrap"
or "click-wrap" basis.
(c) If no software licence has been provided to the Customer, the
Customer hereby accepts a non-exclusive licence to use the object
code of the Software in conjunction with the Equipment for the
Customer’s own internal purposes in accordance with the
documentation (if any) provided with the Software on the following
conditions:
(i) the Customer shall not copy (except to the extent permissible
under applicable law which is not capable of exclusion by
agreement) or reproduce, translate, adapt, vary or modify the
software, nor communicate it to any third party, without Supplier's
prior written consent;
(ii) the Customer shall not use the Software on any equipment
other than the Equipment, and shall not remove, adapt or
otherwise tamper with any copyright notice, legend or logo which
appears in or on the Software on the medium on which it resides;
(iii) such licence shall be terminable by either party on 28 days'
written notice, provided that the Supplier may terminate only if the
continued use or possession of the Software by the Customer
infringes the developer's or a third party's rights, or the Supplier is
compelled to do so by law, or if the Customer has failed to comply
with any term of the Contract; and
(iv) on or before the expiry of this licence, the Customer shall
return to the Supplier all copies of the Software in its possession.
(d) The Customer's Software licence under clause 10(c) is
transferable by the Customer, subject to the Customer providing
to the Supplier the name, address and location of transferee and
payment of any applicable fees to the extent permissible under
local laws. The Customer will immediately upon transfer deliver all
copies of the Software to the transferee. The transferee must
agree in writing to the Supplier's Software licence terms. In
addition, the Customer's licence terms will be binding on
involuntary transferees, notice of which is hereby given.
Customer's licence will automatically terminate upon transfer.
11 Maintenance & Support - IMPORTANT
(a) It is the Customer’s responsibility to arrange for Annual
Maintenance/Support and Annual Recertification of all Equipment
to be undertaken by the Supplier in accordance with the
Maintenance Protocols for that Equipment under a separate
Annual Maintenance & Recertification Agreement. The Customer
will be responsible for all additional charges payable under the
Annual Maintenance & Recertification Agreement and for all
transportation expenses incurred in returning Equipment to the
Supplier for the provision of this service.
(b) Orders placed by the Customer for Annual Maintenance/Sup-
port and Annual Recertification are subject to the Supplier’s terms
and conditions relevant to the Equipment and services concerned.
The Customer also agrees, if required by the Supplier, to enter into
separate written Annual Maintenance & Recertification
Agreement(s) with the Supplier (in the Supplier’s then current form)
setting out the terms and conditions upon which such services will
be provided.
(c) Eligibility of Equipment for Annual Maintenance/Support and
Annual Recertification is limited to Equipment at current specified
revision levels.
(d) The Customer is responsible for removing any Equipment not
eligible for Annual Maintenance/Support or Annual Recertification
to enable the Supplier to perform these services. Additional
charges, calculated at the Supplier's standard rates, may be
incurred for any extra work caused by such Equipment.
(e) The Customer is responsible for maintaining a procedure
external to the Equipment to reconstruct lost or altered Customer
files, data or programs.
(f) Subject to the terms of any applicable Annual Maintenance &
Recertification Agreement, by giving not less than sixty (60) days’
written notice to the other party:
(i) the Customer may delete provision of Annual Maintenance/-
Support and Annual Recertification in respect of any Equipment,
or may cancel any related support agreement; or
(ii) the Supplier may delete Equipment no longer included in the
Supplier's support offering or may cancel a support agreement.
(g) Subject to the terms of any applicable Annual Maintenance &
Recertification Agreement, the Customer may not assign or
transfer a support agreement without the Supplier's prior written
consent. Any attempted assignment or transfer without such
consent will be void. As conditions to such consent; (i) the assignee
or transferee must agree in writing to the applicable support
agreement; (ii) the Supplier may require that all Equipment
included within a support agreement is in good operating
condition; and (iii) the Supplier may impose applicable charges in
connection with the assignment or transfer.
(h) If Annual Maintenance and Annual Recertification is not
promptly undertaken on any item of Equipment every 12 months
in accordance with the Maintenance Protocols for that Equipment,
this may severely affect the operability and safety of that
equipment, and accordingly such item is not safe for any further
use and the Supplier’s warranty provided in respect of the item of
Equipment concerned (under clause 12 below) will be void. The
Supplier also excludes all liability for continued use of that item of
Equipment in these circumstances (see clause 14(e) below).
12 Limited Warranty
(a) The Supplier warrants to the Customer that the Equipment is