The Customer’s attention is particularly drawn to the provisions of clause 12.

1. INTERPRETATION

  1. 1.1  Definitions. In these Conditions, the following definitions apply:
    Business Day: a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business.
    Commencement Date: has the meaning set out in clause 2.2.
    Conditions: these terms and conditions as amended from time to time in accordance with clause 14.7
    Contract: the contract between the Supplier and the Customer for the supply of Goods and/or Services in accordance with these Conditions.
    Customer: the person or firm who purchases the Goods and/or Services from the Supplier.
    Deliverables: the deliverables set out in the Order.
    Delivery Location: has the meaning set out in clause 4.2.
    Force Majeure Event: has the meaning given it herein.
    Goods: the goods (or any part of them) set out in the Order.
    Goods Specification: any specification for the Goods that is agreed in writing by the Customer and the Supplier. Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications 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 Order: the Customer’s order for the supply of Goods and/or Services, as set out in the Customer’s purchase order form OR the Customer’s written acceptance of the Supplier’s quotation.
    Services: the services, including the Deliverables, supplied by the Supplier to the Customer as set out in the Service Specification below.
    Service Specification: the description or specification for the Services provided in writing by the Supplier to the Customer.
    Supplier: NextGen (the trading name of Felicipe Ltd registered in Ireland with company number 505040 R.O. The NextGen Group Premier Business Park 3013 Lake Drive city West Dublin 24).
    Supplier Materials: has the meaning set out in clause 8.1(g).
  2. 1.2  Construction. In these Conditions, the following rules apply:
    1. (a)  a person includes a natural person, corporate or unincorporated body (whether or not having separatelegal personality);
    2. (b)  a reference to a party includes its [personal representatives,] successors or permitted assigns;
    3. (c)  a reference to a statute or statutory provision is a reference to such statute or statutory provision asamended or re-enacted. A reference to a statute or statutory provision includes any subordinatelegislation made under that statute or statutory provision, as amended or re-enacted;
    4. (d)  any phrase introduced by the terms including, include, in particular or any similar expression shall beconstrued as illustrative and shall not limit the sense of the words preceding those terms; and
    5. (e)  a reference to writing or written includes e-mails.

2. BASIS OF CONTRACT

  1. 2.1  The Order constitutes an offer by the Customer to purchase Goods and/or Services in accordance with theseConditions.
  2. 2.2  The Order shall only be deemed to be accepted when the Supplier issues written acceptance of the Order at whichpoint and on which date the Contract shall come into existence (Commencement Date).
  3. 2.3  The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of theSupplier which is not set out in the Contract.
  4. 2.4  Any descriptive matter or advertising issued by the Supplier and any descriptions of the Goods or illustrations or descriptions of the Services contained in the Supplier’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Services and/or Goods described in them. They shall not form part of the Contract or have any contractual force.
  1. 2.5  These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
  2. 2.6  Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

3. GOODS
3.1 THE GOODS ARE AS DESCRIBED IN THE QUOTATION OR THE GOODS SPECIFICATION. 4. DELIVERY OF GOODS
4.1 The Supplier shall ensure that:

(a) each delivery of the Goods is accompanied by a delivery note which shows the date of the Order, all relevant Customer and Supplier reference numbers, the type and quantity of the Goods (including the code number of the Goods, where applicable), and, if the Order is being delivered by instalments, the outstanding balance of Goods remaining to be delivered; and

  1. 4.2  The Supplier shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (Delivery Location) at any time after the Supplier notifies the Customer that the Goods are ready.
  2. 4.3  Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location with a proof of delivery form to be signed on behalf of the Customer.
  3. 4.4  Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. The Supplier shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide the Supplier with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
  4. 4.5  If the Supplier fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. The Supplier shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customers failure to provide the Supplier with adequate delivery instructions for the Goods or any relevant instruction related to the Supply of the Goods.
  5. 4.6  If the Customer fails to accept or take delivery of the Goods within 3 Business Days of the Supplier notifying the Customer that the Goods are ready, then except where such failure or delay is caused by a Force Majeure Event or by the Supplier’s failure to comply with its obligations under the Contract in respect of the Goods:
    1. (a)  delivery of the Goods shall be deemed to have been completed at 9.00 am on the third Business Day following the day on which the Supplier notified the Customer that the Goods were ready; and
    2. (b)  the Supplier shall store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
  6. 4.7  If 3 Business Days after the Supplier notified the Customer that the Goods were ready for delivery the Customer has not [taken OR accepted] delivery of them, the Supplier may resell or otherwise dispose of part or all of the Goods [and, after deducting reasonable storage and selling costs, account to the Customer for any excess over the price of the Goods or charge the Customer for any shortfall below the price of the Goods].
  7. 4.8  The Supplier may deliver the Goods by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.

5. QUALITY OF GOODS
5.1 The Supplier warrants that on delivery the Goods shall:

(a) conform in all material respects with their description.

  1. 5.2  Subject to clause 5.3, if:
    1. (a)  the Customer gives notice in writing within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
    2. (b)  the Supplier is given a reasonable opportunity of examining such Goods; and
    3. (c)  the Customer (if asked to do so by the Supplier) returns such Goods to the Supplier’s place of business,the Supplier shall, at its option, repair or replace the defective Goods, or refund the price of the defectiveGoods in full.
  2. 5.3  The Supplier shall not be liable for the Goods’ failure to comply with the warranty in clause 5.1 if:
    1. (a)  the Customer makes any further use of such Goods after giving a notice in accordance with clause 5.2;
    2. (b)  the defect arises because the Customer failed to follow the Supplier’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good tradepractice;
    3. (c)  the Customer alters or repairs such Goods without the written consent of the Supplier;

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(d) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal working conditions;

  1. 5.4  Except as provided in this clause 5, the Supplier shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty set out in clause 5.1.
  2. 5.5  The terms of these Conditions shall apply to any repaired or replacement Goods supplied by the Supplier under clause 5.2.

6. TITLE AND RISK

  1. 6.1  The risk in the Goods shall pass to the Customer on completion of delivery.
  2. 6.2  Title to the Goods shall not pass to the Customer until the earlier of:

(a) the Supplier receives payment in full (in cash or cleared funds) for the Goods and any other goods that the Supplier has supplied to the Customer in respect of which payment has become due in which case title to the Goods shall pass at the time of payment of all such sums.

  1. 6.3  Until title to the Goods has passed to the Customer, the Customer shall:
    1. (a)  store the Goods separately from all other goods held by the Customer so that they remain readilyidentifiable as the Supplier’s property;
    2. (b)  not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
    3. (c)  maintain the Goods in satisfactory condition and keep them insured against all risks for their full price onthe Supplier’s behalf from the date of delivery;
    4. (d)  give the Supplier such information relating to the Goods as the Supplier may require from time to time.
  2. 6.4  If before title to the Goods passes to the Customer the Customer becomes subject to a winding up order, the appointment of an examiner or liquidator or receiver, makes a composition with its creditors or any of similar event to the events listed in this clause then, without limiting any other right or remedy the Supplier may have:
    1. (a)  the Customer’s right to resell Goods or use them in the ordinary course of its business ceases immediately; and
    2. (b)  the Supplier may at any time:
      1. (i)  require the Customer to deliver up all Goods in its possession which have not been resold, orirrevocably incorporated into another product; and
      2. (ii)  if the Customer fails to do so promptly, enter any premises of the Customer or of any third partywhere the Goods are stored in order to recover them.

7. SUPPLY OF SERVICES

  1. 7.1  The Supplier shall provide the Services to the Customer in accordance with the Service Specification in all material respects.
  2. 7.2  The Supplier shall use all reasonable endeavours to meet any performance dates for the Services specified in the quotation, but any such dates shall be estimates only and time shall not be of the essence for the performance of the Services.
  3. 7.3  The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and theSupplier shall notify the Customer in any such event.
  4. 7.4  The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

8. CUSTOMER’S OBLIGATIONS

  1. 8.1  The Customer shall:
    1. (a)  ensure that the terms of the Order and (if submitted by the Customer) the Goods Specification are complete and accurate;
    2. (b)  co-operate with the Supplier in all matters relating to the Services;
    3. (c)  provide the Supplier, its employees, agents, consultants and subcontractors, with access to theCustomer’s premises, office accommodation and other facilities as reasonably required by the Supplier toprovide the Services;
    4. (d)  provide the Supplier with such information and materials as the Supplier may reasonably require tosupply the Services, and ensure that such information is accurate in all material respects;
    5. (e)  prepare the Customer’s premises for the supply of the Services;
    6. (f)  obtain and maintain all necessary licences, permissions and consents which may be required for theServices before the date on which the Services are to start;
    7. (g)  keep and maintain all materials, equipment, documents and other property of the Supplier (SupplierMaterials) at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation.
  2. 8.2  If the Supplier’s performance of any of its obligations in respect of the Services is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation (Customer Default):

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  1. (a)  the Supplier shall without limiting its other rights or remedies have the right to suspend performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
  2. (b)  the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this clause 8.2; and
  3. (c)  the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

9. CHARGES AND PAYMENT

  1. 9.1  The price for Goods shall be the price set out in the Contract. The price of the Goods is exclusive of all costs and charges of packaging, insurance, transport of the Goods, which shall be paid by the Customer when it pays for theGoods, unless otherwise agreed or included in the quotation and Contract.
  2. 9.2  In respect of Goods and services the Supplier shall invoice the Customer on or at any time after completion of delivery.
  3. 9.3  The Customer shall pay each invoice submitted by the Supplier:
    1. (a)  within 30 days of the date of the invoice or as otherwise agreed in the Contract; and
    2. (b)  in full and in cleared funds to a bank account nominated in writing by the Supplier, and

    time for payment shall be of the essence of the Contract.

  4. 9.4  All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable from time to time (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services or Goods at the same time as payment is due for the supply of the Services or Goods.
  5. 9.5  If the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 8% per annum above Bank of Ireland’s base rate from time to time. 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.
  6. 9.6  The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

10. INTELLECTUAL PROPERTY RIGHTS

  1. 10.1  All Intellectual Property Rights in or arising out of or in connection with the Services shall be owned by the Supplier.
  2. 10.2  The Customer acknowledges that, in respect of any third party Intellectual Property Rights in the Services, theCustomer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licencefrom the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.
  3. 10.3  All Supplier Materials are the exclusive property of the Supplier.

11. CONFIDENTIALITY

A party (receiving party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the receiving party by the other party (disclosing party), its employees, agents or subcontractors, and any other confidential information concerning the disclosing party’s business, its products and services which the receiving party may obtain. The receiving party shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging the receiving party’s obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. The receiving party may also disclose such of the disclosing party’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction. This clause 11 shall survive termination of the Contract.

12. LIMITATION OF LIABILITY: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

12.1 Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

  1. (a)  death or personal injury caused by its negligence, or the negligence of its employees, agents orsubcontractors;
  2. (b)  fraud or fraudulent misrepresentation;

12.2 Subject to clause 12.1:

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  1. (a)  the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
  2. (b)  the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed 10% of the Contract sum.
  1. 12.3  The terms implied by the Sale of Goods Act 1893 and the Supply of Goods and Services Act 1980 are, to the fullest extent permitted by law, excluded from the Contract.
  2. 12.4  This clause 12 shall survive termination of the Contract.

13. FORCE MAJEURE

  1. 13.1  For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of theSupplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or subcontractors.
  2. 13.2  The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
  3. 13.3  If the Force Majeure Event prevents the Supplier from providing any of the Services and/or Goods for more than 3 months, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

14. GENERAL

  1. 14.1  Assignment and other dealings.
    1. (a)  The Supplier may at any time assign, transfer, mortgage, charge, subcontract or deal in any other mannerwith all or any of its rights under the Contract and may subcontract or delegate in any manner any or all ofits obligations under the Contract to any third party.
    2. (b)  The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge,subcontract, declare a trust over or deal in any other manner with all or any of its rights or obligations under the Contract.
  2. 14.2  Notices.
    1. (a)  Any notice or other communication given to a party under or in connection with this Contract shall be inwriting, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier, fax [or e-mail].
    2. (b)  A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.2(a); if sent by pre-paid registered or first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by e-mail, one Business Day after transmission.
    3. (c)  The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action
  3. 14.3  Severance.
    1. (a)  If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall bedeemed 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.
    2. (b)  If one party gives notice to the other of the possibility that any provision or part-provision of this Contract is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
  4. 14.4  Waiver. A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its

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further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

  1. 14.5  No partnership or agency. Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.
  2. 14.6  Third parties. A person who is not a party to the Contract shall not have any rights to enforce its terms.
  3. 14.7  Variation. Except as set out in these Conditions, no variation of the Contract, including the introduction of anyadditional terms and conditions shall be effective unless it is agreed in writing and signed by the Supplier.
  4. 14.8  Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of Ireland.
  5. 14.9  Jurisdiction Each party irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract or its subject matter or formation (including non- contractual disputes or claims).